In re Travis W.

• Decision Date: 25 March 2003
• Docket Number: No. A097596.,A097596.
• Citation: 132 Cal.Rptr.2d 135,107 Cal.App.4th 368
• Parties: In re TRAVIS W., a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. Travis W., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

132 Cal.Rptr.2d 135

107 Cal.App.4th 368

In re TRAVIS W., a Person Coming Under the Juvenile Court Law.

The People, Plaintiff and Respondent, v. Travis W., Defendant and Appellant.

No. A097596.

Court of Appeal, First District, Division 4.

March 25, 2003.

Review Denied June 18, 2003.

Certiorari Denied November 10, 2003. See 124 S.Ct. 548.

A. Charles Dell'Ario, for Appellant.

Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Eric D. Share, Supervising Deputy Attorney General, Laurence K. Sullivan, Supervising Deputy Attorney General, for Respondent.

KAY, P.J.

What started as a drug buy ended as a carjacking. An adult held a gun on the owner and demanded the keys to the car while Travis W. and another person forced the owner to his knees. When the owner produced the keys, it was Travis who took them. Travis himself never held the gun. The primary issue presented by this timely appeal is whether the juvenile court was correct in concluding that what Travis did constituted "[c]arjacking ... while armed with a dangerous or deadly weapon" within the meaning of Welfare and Institutions Code section 707, subdivision (b)(25),¹ which was the basis of Travis's commitment to the California Youth Authority for a period not to exceed ten years.

The offense for which defendant was committed is described in subdivision (b)(25) as follows: "Carjacking, as described in Section 215 of the Penal Code, while armed with a dangerous or deadly weapon." The issue before us is whether "armed" means that the minor must be personally armed with a dangerous or deadly weapon when the offense was committed, or whether it applies to principals to the offense who were not personally wielding the weapon.

We begin by examining the words of the statute; if the statutory language is not ambiguous, then we presume the Legislature meant what it said, and the plain meaning of the language governs. If, however, the statutory language lacks clarity, we may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history. In such situations, we strive to select the construction that comports most closely with the Legislature's apparent intent, with a view to promoting rather than defeating the statute's general purposes. We also try to avoid any interpretation that would lead to absurd consequences. (E.g., People v. Walker (2002) 29 Cal.4th 577, 581, 128 Cal.Rptr.2d 75, 59 P.3d 150; People v. Coronado (1995) 12 Cal.4th 145, 151, 48 Cal.Rptr.2d 77, 906 P.2d 1232.)

Viewed in isolation, the language of subdivision (b)(25) does not dispel all doubt as to its meaning. It lacks the unambiguous clarity of various provisions specifying penal consequences for someone who is either "personally armed" (Pen.Code, §§ 666.7, subds.(b)(6), (i)(2), 1203.06, subd. (a)(2), 12022, subds. (c), (d)) or who "personally us[es]" a weapon in the commission of a crime (e.g., Pen.Code, §§ 666.7, subds.(a)(13), (b)(5), 1192.7, subd. (c)(8), 1319.5, subd. (b)(F), 12022, subd. (b), 12022.5, subd. (a)). Numerous statutes use the word "armed" in describing forbidden conduct (e.g., Pen.Code, §§ 666.7, subds.(a)(12), (c)(2), (h)(8), (j)(1), 12022, subd. (a)(1), 12022.2, subd. (a), 12022.3, subd. (b)).² Defendant bases his contention upon one such statute.

The current version of Penal Code section 1203 directs that probation shall not be granted to any person who is convicted of a specified offense—including carjacking—and who "was armed ... with a deadly weapon, other than a firearm" at the time the offense was committed. (Pen. Code, § 1203, subd. (e)(1).) This provision has been construed to require that the defendant have personal control of the deadly weapon. The prohibition against probation does not apply if it was not the defendant, but an accomplice, who was armed. In short, at least for purposes of probation ineligibility, one could not be derivatively or vicariously armed. Courts reached this conclusion after examining the statute's language and finding no indication that the Legislature intended the more expansive liability. (See People v. Alvarez (2002) 95 Cal.App.4th 403, 406-409, 115 Cal.Rptr.2d 515 and authorities cited.) Travis contends that analysis of the language of section 707, subdivision (b)(25) will compel this court to reach the same construction.

Travis's statutory argument is not implausible. Courts of Appeal have come to differing conclusions as to whether enhancement statutes not containing the words "personal" or "personally" cover vicarious use; a decisive factor is whether there is any legislative direction that the statute is to be applied to persons who do not themselves commit the prohibited act.³ For the reasons that follow, we reject Travis's contention that subdivision (b)(25) must be construed to be inapplicable to a principal who is not personally armed.

Both parties cite In re Christopher R. (1993) 6 Cal.4th 86, 23 Cal.Rptr.2d 786, 859 P.2d 1301. The issue considered there by the Supreme Court was whether the offense of "[r]obbery while armed with a dangerous or deadly weapon" designated by subdivision (b)(3) of section 707 covered only instances where the perpetrator was personally armed. The Court concluded the statute's reach was broad enough to cover vicarious arming because the courts had held that the same language "person being armed with a dangerous or deadly weapon" contained in the pre-existing robbery statute, included persons vicariously armed. "It was in 1976 that the Legislature added subdivision (b), including subdivision (b)(3), to section 707. [Citation.] [¶] In 1976, former section 211a of the Penal Code stated: `All robbery which is perpetrated by torture or by a person being armed with a dangerous or deadly weapon, and the robbery of any person who is performing his duties as operator of any motor vehicle, streetcar, or trackless trolley used for the transportation of persons for hire, is robbery in the first degree. All other kinds of robbery are of the second degree.' [Citation.] It covered `vicarious' as well as `personal' arming. [Citations.] [11] In view of the foregoing, we answer the question stated above thus: By specifying the criminal offense of `[r]obbery while armed with a dangerous or deadly weapon' in subdivision (b)(3) of section 707, the Legislature referred to the felony described in former section 211a of the Penal Code." (In re Christopher R., supra, at pp. 92-93, 23 Cal.Rptr.2d 786, 859 P.2d 1301, fn. omitted.)

Travis argues that the underlying basis for the decision in Christopher R. is absent here. In the case of carjacking, subdivision (b)(25) was added to section 707 at the same time that the Legislature created the substantive crime. (See Stats.1993, ch. 611, § 6, p. 3508 [adding Pen.Code, § 215], § 34, pp. 3585-3587 [adding subd. (b)(25].) Thus, unlike the phrase "robbery while armed," there could be no existing judicial construction of the words "carjacking while armed" that the Legislature could be deemed to have taken into account with the enactment of subdivision (b)(25). We agree with this portion of appellant's analysis. Assuming that Christopher R. is not conclusive in our situation, we turn now to an analysis of the essential nature of carjacking.

Carjacking is defined as "the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, 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." (Pen.Code, § 215, subd. (a).) Robbery is defined as "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.) The similarities between the definition of carjacking and the definition of robbery are apparent at once. Both involve "the felonious taking" of property that is "in the possession of another" person. Both require that the taking be from the "person or immediate presence" of the person. Both are "accomplished by means of force or fear." True, there are differences. Robbery can involve any type of personal property, while carjacking deals with a single form of property. Also, robbery requires an intent to permanently deprive the victim of possession of the property, while carjacking can be committed with the intent of temporary dispossession. By virtue of these differences, neither carjacking nor robbery is a necessarily included offense of the other. (People v. Green (1996) 50 Cal. App.4th 1076, 1083-1084, 58 Cal.Rptr.2d 259; People v. Dominguez (1995) 38 Cal. App.4th 410, 418-419, 45 Cal.Rptr.2d 153.) Nevertheless, there is an undeniable measure of overlap between robbery and carjacking.

It has been long and widely recognized by courts that the essence of robbery is the fear of the victim yielding to real or threatened coercion. (E.g., Todd v. State (Alaska (1996) 917 P.2d 674, 681; Goodwine v. State (Wyo.1988) 764 P.2d 680, 683; State v. Fulks and Feurt (1934) 114 W.Va. 785, 788, 173 S.E. 888, 889; State v. DiBattista (1930) 110 Conn. 549, 558, 148 A. 664, 667; People v. Bodkin (1922) 304 Ill. 124, 127-128, 136 N.E. 494, 495; State v. Redmond (1922) 122 Wash. 392, 393, 210 P. 772; State v. Luhano (1909) 31 Nev. 278, 284, 102 P. 260, 262; State v. Perley (1894) 86 Me. 427, 432, 30 A. 74, 76; State v. Burke (1875) 73 N.C. 83, 86; James v. State (1875) 53 Ala. 380, 387; Long v. State (1852) 12 Ga. 293, 321.) The most common form of the coercion is physical harm from violence. Death is always a possibility. (See People v. Alvarado (1990) 224 Cal.App.3d 1165, 1168, 274 Cal. Rptr. 452; People v. Pendleton (1985) 167 Cal.App.3d...