PEOPLE v. MONTERO

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Court of Appeal, Second District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. David MONTERO, Defendant and Appellant.

No. B090082.

Decided: August 27, 1996

Mary Holbrook, under appointment by the Court of Appeal, Los Angeles, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Norman H. Sokolow and Margaret E. Maxwell, Deputy Attorneys General, for Plaintiff and Respondent.

David Montero appeals from the judgment entered following his conviction by jury of carjacking (count 1), firearm assault (count 3), and second degree robbery (count 4), all with personal firearm use.  (Pen.Code, §§ 215, subd. (a);  245, subd. (a)(2);  211, 212.5;  12022.5.) 1  Montero received a 13–year aggregate sentence:  a 9–year high term on count 1, plus a consecutive 4–year low term firearm use enhancement. (§§ 215, subd. (b);  12022.5, subd. (a)(2).)   The trial court permanently stayed sentences imposed on counts 3 and 4 under section 654.

ISSUES AND HOLDING

Montero raises two issues.  (I) Just before trial, Montero's lawyer, Daniel Ditlof, lost contact with material defense witnesses under court ordered body attachments.   Because these witnesses would have provided the only corroboration for his testimony, Montero, on Ditlof's advice, chose not to testify and presented no defense except a suggestion of victim misidentification.   Montero argues the trial court prejudicially erred in denying his continuance motion designed to secure the witnesses' presence.   Alternatively, Montero argues Ditlof was prejudicially incompetent if he failed to seek a continuance.  (II)  Before Montero chased the victim away, the victim made his car inoperable.   Montero thus dispossessed the victim and took possession of the car, but was prevented from moving it.   Montero argues that some movement of the car is necessary to complete a carjacking.   Because he never moved the car, he concludes he committed only attempted carjacking.2

In the unpublished portion of the opinion, we agree with Montero that his trial counsel's failure to seek a continuance to secure the witnesses' trial presence was prejudicially incompetent because it completely withdrew a potentially meritorious defense.   We reverse the judgment and remand the matter for a new trial.   We reach the second issue because, if Montero is correct, he could be retried only for attempted carjacking on count 1. In the published portion of the opinion, we hold that the “taking” required for a completed carjacking requires either some movement of the car or seizure of possession and control by forceful dispossession of the victim's possession and control.   Thus, Montero may be retried for completed carjacking in count 1.

FACTS REGARDING THE CRIMES

About 9:30 p.m. on October 7, 1993, Carlos Ocheita was driving his car northbound on Kingsley Street toward Melrose Avenue.   Ocheita was alone and was headed home after leaving work and dropping off a friend.   Ocheita slowed as he approached a stop sign at Kingsley and Melrose.   A man crossed the street in front of him.   Ocheita stopped.   Montero approached the open driver's window, displayed a knife, grabbed Ocheita, and ordered him out of the car.   As Ocheita got out, he hit an ignition “kill” switch hidden under the dash with his knee, immobilizing the car.

Montero sat in the driver's seat.   When he could not start the car, Montero demanded that Ocheita tell him how to do so.   Ocheita did not comply.   Meanwhile, Montero's confederate entered the car through the front passenger door and found Ocheita's unloaded gun, which he used in his security guard job, under the seat.   The confederate alerted Montero to his find and put the gun on the seat near Montero.   Montero grabbed the gun, pointed it at Ocheita, and told him to leave.   Ocheita refused.   Montero pointed the gun at Ocheita and twice pulled the trigger.   Ocheita heard two clicks.   Montero looked at the gun and demanded that Ocheita give him the ammunition.   When Ocheita refused, Montero hit him in the face with the gun and knocked him down.   As a result, Ocheita lost six teeth and required stitches to close facial wounds.3

Ocheita ran away and immediately called the police from a pay telephone.   The police responded within minutes and drove Ocheita back to the crime scene.   They found Ocheita's assailants gone and his car where he had left it with the kill switch still engaged.   The car had not been moved.   Only Ocheita's gun was gone.4  Ocheita later deactivated the kill switch and drove his car home.

In defense, Ditlof, through cross-examination and testimony from a police officer called as a defense witness, introduced evidence of several prior inconsistent statements by Ocheita.   Specifically, Ocheita offered several different descriptions of his assailants.   The original police reports lacked a claim that Montero displayed a knife or tried to shoot Ocheita.   At one time, Ocheita claimed the loaded gun magazines were near the front seat, and he ran back and pocketed them to keep Montero from loading the gun.   At trial, Ocheita claimed the magazines were locked in the trunk.   Several additional inconsistencies and memory lapses supported a misidentification defense.

DISCUSSION

I. Incompetency of Counsel.**

II. Must the Defendant Move the Victim's Car to Complete a Carjacking?

 Based on the similarity in the wording and elements of carjacking (§ 215) and robbery (§ 211), Montero argues that carjacking is a type of robbery.   As the People concede, movement is required to complete a robbery.   A robber must take the victim's property by some movement, however slight, to complete the robbery.   Without movement of the loot, the crime is only attempted robbery.   Likewise, Montero argues, movement is an element of carjacking.   If the carjacker fails to move the car, the crime is only attempted carjacking.   Since he never moved the victim's car, Montero concludes the evidence was insufficient as a matter of law to support his carjacking conviction.   Because, as discussed in section I above, we reverse due to incompetency of counsel, on retrial Montero says he may be tried only for attempted carjacking on count 1.

Despite their concession that movement is required to complete a robbery, the People argue the Legislature intended that a carjacking is complete when the carjacker forcibly deprives the victim of possession and control of the car, even if the carjacker never moves the car.   Since any, even the slightest, movement is sufficient to complete a robbery, the People argue that depriving the carjacking victim of possession and control of his car is the functional equivalent of slight movement, given the physical difficulty of quickly moving a car.

“The proper test to determine a claim of insufficient evidence in a criminal case is whether, on the entire record, a rational trier of fact could find appellant guilty beyond a reasonable doubt.  [Citations.]  In making this determination, the appellate court ‘ “must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”   [Citations.]  ․ “[O]ur task ․ is twofold.   First, we must resolve the issue in the light of the whole record.  ․   Second, we must judge whether the evidence of each of the essential elements ․ is substantial ․” ’  [Citation.]  [¶]  Although the appellate court must ensure the evidence is reasonable in nature, credible, and of solid value [citation], it must be ever cognizant that ‘ “it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends․” ’  [Citations.]   Thus, if the verdict is supported by substantial evidence, this court must accord due deference to the trier of fact and not substitute its evaluation of a witness's credibility for that of the fact-finder.  [Citations.]”  (People v. Barnes (1986) 42 Cal.3d 284, 303–304, 228 Cal.Rptr. 228, 721 P.2d 110.)

“The fundamental rule of statutory interpretation is to ‘ “ascertain the intent of the Legislature so as to effectuate the purpose of the law.” ’   [Citation.]  In determining intent, the court looks first to the words themselves.  [Citation.]  ‘When the language is clear and unambiguous, there is no need for construction.’  [Citation.]  The court will decline to follow the plain meaning of a statute only when to do so would inevitably frustrate the manifest purposes of the legislation as a whole or lead to absurd results.   [Citation.]”  (In re Ge M. (1991) 226 Cal.App.3d 1519, 1522–1523, 277 Cal.Rptr. 554.)

Section 215, added to the Penal Code effective October 1, 1993, states:  “(a) ‘Carjacking’ is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, ․ against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear.  [¶] (b)  Carjacking is punishable by imprisonment in the state prison for a term of three, five, or nine years.   [¶] (c)  This section shall not be construed to supersede or affect Section 211.   A person may be charged with a violation of this section and Section 211.   However, no defendant may be punished under this section and Section 211 for the same act which constitutes a violation of both this section and section 211.”  (Emphasis added.)   The issue we must decide is what is necessary to satisfy the taking requirement of carjacking.

As Montero notes, the carjacking statute is located within chapter 4 (Robbery) of title 8 (of Crimes Against the Person) of the Penal Code.   Montero argues this shows the Legislature's conclusion that carjacking is a type of robbery.   If so, Montero argues, carjacking is analytically simply robbery of a car and, like robbery, requires movement of the loot to satisfy the “taking” element of robbery.

 In fact, the carjacking statute is a hybrid of robbery and unlawful vehicle taking.  “ ‘[C]arjacking’ ․ is nothing more than an aggravated violation of the unlawful driving and taking of a motor vehicle as defined in Vehicle Code section 10851.   The carjacking offense omits the ‘driving’ element of Vehicle Code section 10851 and adds to it the element of securing the vehicle from the immediate presence of the victim ․ by force or fear.   The intent requirement is the same as for a violation of Vehicle Code section 10851, requiring an intent to permanently deprive, or the intent to temporarily deprive.  [¶] ․ [¶]  This court rejects appellant's claim [that] carjacking is just another type of robbery and appellant's analogy to the robbery/grand theft auto cases.   Carjacking is not a necessarily lesser included offense to robbery, or vice versa․”  (People v. Dominguez (1995) 38 Cal.App.4th 410, 418–419, 45 Cal.Rptr.2d 153, fn. omitted.)

“Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.”  (Pen.Code, § 211, emphasis added.)   Unlawful vehicle taking is committed by “[a]ny person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle․”  (Veh.Code, § 10851, subd. (a), emphasis added.)

Carjacking, robbery, and unlawful vehicle taking all require that the loot be “taken” to complete the crime.   The elements of carjacking are:  “1. A person had possession of a motor vehicle;  [¶] 2. The motor vehicle was taken from his or her person or immediate presence, ․ [¶] 3. The motor vehicle was taken against the will of the person in possession;  [¶] 4. The taking was accomplished by means of force or fear;  and [¶] 5. The person taking the vehicle had the intent to either permanently or temporarily deprive the person in possession of the vehicle of that possession.”  (CALJIC No. 9.46 (1994 new).)

The elements of robbery are:  “1. A person had possession of property of some value however slight, [¶] 2. Such property was taken from such person or from [his][her] immediate presence, [¶] 3. Such property was taken against the will of such person, [¶] 4. The taking was accomplished either by force or fear, and [¶] 5. Such property was taken with the specific intent permanently to deprive such person of the property.”  (CALJIC No. 9.40 (1995 rev.).)

The elements of unlawful vehicle taking are:  “1. A person took or drove a vehicle belonging to another person, [¶] 2. The other person had not consented to such taking or driving of [his][her] vehicle, and [¶] 3. When such person took or drove the vehicle [he][she] had the specific intent to deprive the owner either permanently or temporarily of [his][her] title to or possession of the vehicle.”  (CALJIC No. 14.36 (5th ed.1988).)

In California, unlike some other jurisdictions, the taking necessary to complete the crimes of robbery and unlawful vehicle taking require some movement, however slight and however short in duration.  (2 Witkin & Epstein, Cal.Criminal Law (2d ed.   1988) Crimes Against Property, §§ 576, 641, pp. 653, 723 (theft and robbery);  id., Crimes Against Public Peace and Welfare, § 952, p. 1078 (unlawful vehicle taking).)   However, in robbery, “[a]s in larceny, no great movement is required, and it is not necessary that the property be taken out of the physical presence of the victim.  [Citations.]  [¶]  Nor is it necessary that the defendant take actual manual possession.”  (Id., Crimes Against Property, § 641, p. 723.)   Witkin then cites People v. Quinn (1947) 77 Cal.App.2d 734, 737, 176 P.2d 404, where the robber pointed a gun at the victim and told him to throw his wallet on the ground.   The victim complied and said the wallet contained no money.   At the robber's command, the victim picked up the wallet and opened it.   After the robber saw the wallet was empty, he ordered the victim to leave.   The victim did so.   The Quinn court found the robbery complete, and affirmed the conviction, although the robber never touched or moved the wallet, which remained in the victim's physical presence throughout the crime.

Thus, unlawful vehicle taking requires some slight movement of the car.  (People v. White (1945) 71 Cal.App.2d 524, 525, 162 P.2d 862;  cf.   People v. Score (1941) 48 Cal.App.2d 495, 497, 120 P.2d 62, holding that finding an auto burglar inside the victim's parked car and ransacking it provided probable cause to arrest the burglar for, among other crimes, attempted auto theft and completed unlawful vehicle taking, because the burglar “temporarily deprive[d] the owner of [the] vehicle of temporary possession even without the intent to steal․”)

In the carjacking context, however, we think a mechanical insistence that the car must be moved would frustrate both the Legislature's intent in proscribing carjacking and the realities of taking motor vehicles.   As discussed above, carjacking is distinct from, and not just a form of, robbery.  (People v. Dominguez, supra, 38 Cal.App.4th at p. 419, 45 Cal.Rptr.2d 153.)  “Senate Bill No. 60 (1993–1994 Reg. Sess.) created [carjacking].   The reason for the creation of this new crime was set forth by the author:  [¶] ‘According to the author, there has been considerable increase in the number of persons who have been abducted, many have been subjected to the violent taking of their automobile and some have had a gun used in the taking of the car.  [¶] [ ]This relatively “new” crime appears to be as much thrill-seeking as theft of a car.   If all the thief wanted was the car, it would be simpler to hot-wire the automobile without running the risk of confronting the driver.   People have been killed, seriously injured, and placed in great fear, and this calls for a strong message to discourage these crimes.   Additionally, law enforcement is reporting this new crime is becoming the initiating rite for aspiring gang members and the incidents are drastically increasing.  [¶] [ ]Under current law there is no carjacking crime per se and many carjackings cannot be charged as robbery because it is difficult to prove the intent required of a robbery offense (to permanently deprive one of the car) since [many] of these gang carjackings are thrill seeking thefts.   There is a need to prosecute this crime.’  (Assem. Com. on Pub. Safety analysis of Sen. Bill No. 60 (1993–1994 Reg. Sess.) July 13, 1993, p. 1.)” (People v. Medina (1995) 39 Cal.App.4th 643, 647–648, 46 Cal.Rptr.2d 112, fn. omitted.) 5

Carjacking is a violent, assaultive crime, in which particularly vulnerable victims, trapped in their cars, are confronted, often, as here, with weapons, and forced from their cars.   We are confident any carjacking victim, and the Legislature, would consider the carjacking complete where, as here, the victim is dragged from his car at knife point and driven away by pistol-whipping, abandoning his car to his attacker, who then tries to move it but is prevented from doing so by the victim's artifice in activating a kill switch.   Whether the victim prevents the car's movement by taking his keys, or the attacker is so inept that he cannot start it before fleeing to avoid being caught makes no difference.   Smaller, lighter personal property would always have been taken by that point.   Only the car's bulk prevents it from being taken without starting.   Moreover, the terrorized victim who is forced to flee has lost his car just as surely as if he watches the attacker drive it away.   Likewise, the robbery in Quinn would have been just as complete if the robber had forced the victim to leave his wallet on the ground, rather than taking it with him.

At least in this context, we do not think we should engraft a judicial “asportation” or movement requirement onto the statutory requirement that the carjacker “take” the car.   Doing so essentially changes the language from the statutory “taking” to a common law “taking and carrying away” requirement.   “Commission of the crime of larceny requires a taking (caption) and carr[y]ing away (asportation) of another's property.   A taking occurs when the offender secures dominion over the property, while a carrying away requires some slight movement away of the property.”  (2 LaFave & Scott, Substantive Criminal Law (1986) Larceny—Taking & Carrying Away, § 8.3, p. 345, fn. omitted.)   However, many states, and the Model Penal Code, have eliminated the “carrying away” requirement for larceny based crimes.  (Id. at pp. 345–349.)   In the carjacking context, we agree that “[t]he common law asportation requirement is generally of no significance today, as theft offenses in the modern codes are usually defined without resort to that concept.   In this respect, these statutes follow the Model Penal Code.   While this abandonment of the asportation requirement has sometimes been criticized, the Code position is sound.   If the defendant has taken control of the property, then it is of no penological significance whether or not he has in any sense engaged in a carrying away of that property.”  (Id. at pp. 348–349, fns. omitted;  see Annot.   Asportation of Motor Vehicle as Necessary Element to Support Charge of Larceny (1976) 70 ALR3d 1202.) 6

The asportation (movement or carrying away) requirement in larceny based crimes arose in part to satisfy both the common law and statutory requirement that crimes include “a union, or joint operation of act and intent․”  (§ 20;  CALJIC Nos. 3.30, 3.31, 3.31.5 (1992 rev.);   1 Witkin & Epstein, Cal.Criminal Law, supra, Elements of Crime, § 114, p. 135.)  “One basic premise of Anglo–American criminal law is that no crime can be committed by bad thoughts alone.   Something in the way of an act ․ is required too.   To wish an enemy dead, to contemplate the forcible ravishment of a woman, to think about taking another's wallet—such thoughts constitute none of the existing crimes (not murder or rape or larceny) so long as the thoughts produce no action to bring about the wished-for results․  [¶] ․ [¶]  Several reasons have been given in justification for the requirement of an act.   One is that a person's thoughts are not susceptible of proof except when demonstrated by outward actions․  Another reason given is the difficulty in distinguishing a fixed intent from mere daydream and fantasy.   Most persuasive, however, is the notion that the criminal law should not be so broadly defined to reach those who entertain criminal schemes but never let their thoughts govern their conduct.”  (1 LaFave & Scott, Substantive Criminal Law, (1986) The Requirement of an Act, § 3.2(b), pp. 273–275, fns. omitted.)

In the carjacking context, under the facts before us, Montero has committed a series of objectively verifiable acts which constitute carjacking.   He used force to seize control of Ocheita's car for himself, tried to force Ocheita to tell him how to start the car, and used additional force to dispossess Ocheita's possession and chase him away.   He tried to start the car, demonstrating that these objectively violent acts were coupled with the required intent to temporarily or permanently take the car, assuring society we are not punishing him for bad thoughts alone.   Montero concedes as much but claims his acts were not enough to complete the crime, but were sufficient only to be an attempt.   As discussed above, we disagree.   When, under these circumstances, Montero chased Ocheita away, the carjacking was as complete as if Montero had driven the car around the corner, leaving Ocheita standing outside.   This is not a situation which violates the rule that “even bad thoughts plus action do not equal a particular crime if the action is not that which the definition of the crime requires.”  (1 LaFave & Scott, Substantive Criminal Law, supra, p. 275.)

Montero claims our analysis would make one who prevented a drunken person from entering his car, thus preventing the inebriate from illegally driving under the influence, guilty of carjacking.   The claim lacks merit.   Such a good Samaritan has not asserted dominion and control over the car.   In fact, he has done the opposite;  he would permit anyone except our frustrated drunken driver to use the car, and lacks intent to take or use it himself, even temporarily.

 We conclude that the “taking” required for a completed carjacking proscribed by section 215 requires either some movement of the car or seizure of possession and control by forceful dispossession of the victim's possession and control.   Because Montero satisfied the second of these requirements, he completed the carjacking.   On retrial, he may be retried for a completed carjacking in count 1.

DISPOSITION

We reverse the judgment and remand the matter for a new trial.   On retrial, Montero may be tried for a completed carjacking in count 1.

FOOTNOTES

1.   Unless otherwise noted, all further section references are to the Penal Code.

2.   Montero also claims Ditlof was incompetent for not seeking dismissal of the carjacking charge on this ground at the close of the prosecution's case (§ 1118.1) or through a new trial motion.   Count 1 originally charged Montero with attempted carjacking.   Harry Weiss, Montero's earlier trial counsel with whom Ditlof worked, unsuccessfully brought a pretrial dismissal motion (§ 995) as to the original count 1, based on the failure to move the car.   The People later amended the information to charge a completed carjacking in count 1.   Moreover, trial counsel moved to dismiss count 1 on precisely this ground under section 1118.1 after the prosecution's rebuttal witness testified and before the case was argued or submitted to the jury.   The trial court denied the motion, stating the victim “was forced to leave the scene of his car [sic].   At that point, [Montero] had control of the car even though he may not be able to drive it away.”   Section 1118.1 permits defendants to make dismissal motions “at the close of the evidence on either side and before the case is submitted to the jury for decision․”  Because trial counsel did what appellate counsel claims he did not, we reject this claim.

3.   The jury acquitted Montero of attempted murder (count 2;  §§ 664, 187, subd. (a)) and intentionally inflicting great bodily injury in counts 1 and 3 (§ 12022.7).

4.   The People's trial theory regarding the count 4 robbery was that it applied to the forced taking of Ocheita's gun.

FOOTNOTE.   See footnote *, ante.

5.   Of course, carjacking and robbery are related, and some of their elements are parallel.   Where that is so, analogies to robbery are useful.  (See People v. Hamilton (1995) 40 Cal.App.4th 1137, 1140–1145, 47 Cal.Rptr.2d 343 (carjacker who carjacks a car containing more than one person is guilty of carjacking as to each person, just as robber who robs more than one person may be convicted and sentenced for robbery as to each person).)

6.   We expressly limit ourselves to the carjacking context.   We do not address the movement requirement as necessary to completed auto thefts (§ 487h), unlawful vehicle takings, or joyridings (§ 499b).  (See People v. Frye (1994) 28 Cal.App.4th 1080, 1086–1090, 34 Cal.Rptr.2d 180.)   We also note carjacking requires a taking.  (Cf. § 499b, which requires either a taking or driving.)

ORTEGA, Associate Justice.

SPENCER, P.J., and MIRIAM A. VOGEL, J., concur.

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