The People v. Duran
| Decision Date | 14 May 2001 |
| Citation | 106 Cal.Rptr.2d 812,88 Cal.App.4th 1371 |
| Court | California Court of Appeals Court of Appeals |
| Parties | (Cal.App. 4 Dist. 2001) THE PEOPLE, Plaintiff and Respondent, v. JESSE PAUL DURAN, JR., Defendant and Appellant. G024274 FOURTH APPELLATE DISTRICT DIVISION THREE Filed |
Appeal from a judgment of the Superior Court of Orange County, Dennis S. Choate, Judge. Affirmed in part and reversed in part.
Ivy S. Kessel, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Robert M. Foster and Lora Fox Martin, Deputy Attorneys General, for Plaintiff and Respondent.
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CERTIFIED FOR PARTIAL PUBLICATION*
O P I N I O N
Jesse Raul Duran, Jr. appeals from a judgment sending him to prison for life plus 17 years.1 We reverse his carjacking conviction because, as the Attorney General concedes, it was a necessarily included offense within the kidnapping-for-carjacking charge.2 Duran contends the evidence is insufficient to support the remaining convictions of kidnapping for carjacking, simple kidnapping, robbery, attempted robbery, and a single count of street terrorism. Duran also argues that the trial court erred when it failed to instruct the jury sua sponte on lesser included offenses. We affirm the judgment as to all counts, excepting the single charge for simple carjacking.
On August 2, 1997, Duran entered a Laguna Hills drugstore, covered half his face, pulled a gun and ordered two employees to empty the cash registers. Duran left the store with approximately $535 in cash. He then went to a Westminster grocery store where he again covered his face, pulled the gun on the employees and ordered them to empty the registers. The second robbery was foiled when the police were called before Duran got any money.
Duran left the grocery store in a convertible black Mustang which entered the 405 freeway and headed north at approximately 100 miles an hour. The car skidded out of control, flipped over, and came to a crash on the side of the freeway. Duran was severely injured, but managed to walk to a freeway call box where he came upon Christopher Beardsley, who had seen the accident and had pulled off the freeway to call for help.
Duran pulled the gun on Beardsley, forcing him back into his car and ordering him to drive him away from the scene. Unfortunately, Beardsley was not alone in the car: his wife, Kristen, was in the front seat and their infant son, Jake, was sitting in the back. Duran entered the backseat of the car, pointed the gun at the baby's head, and threatened to kill them all unless Beardsley drove him to where he wanted to go. Duran forced Beardsley to drive around for about 20 minutes until he asked to be dropped off in Westminster. The Beardsleys drove away and called the police.
Before going to a hospital, Duran returned to his gang's territory in the city of Norwalk. Duran had admitted on prior encounters with Kenneth Perry, a gang-unit officer with the Los Angeles County Sheriff's Department (LACSD), that he was an active member of Varrio Norwalk, the largest criminal street gang in the city of Norwalk. Duran's gang was well known to police as having engaged in a pattern of criminal activity, including crimes such as murder and kidnapping. Only a few months before, fellow gang member, Robert Munoz, had been sent to state prison following his convictions on similar robbery and carjacking charges.
For any attack on the sufficiency of the evidence, we are necessarily limited by the substantial evidence rule. That is, we are required to review the evidence in the light most favorable to the verdict, reach all reasonable inferences and deductions presented by the evidence, and resolve all conflicts in favor of the judgment. (Cf. People v. Sanchez (1995) 12 Cal.4th 1, 31-32; People v. Carpenter (1997) 15 Cal.4th 312, 387.)
Duran contends that all three convictions for kidnapping during a carjacking should be overturned because he never succeeded in getting the car away from its owner. Carjacking requires a felonious taking of a motor vehicle. ( 215, subd. (a).) Because the Beardsleys remained in the car during the entire episode, Duran alleges no "taking" occurred under the meaning of the statute. Thus, he should have been prosecuted only for simple kidnapping, which carries a lower sentence. We disagree.
The ultimate question here is whether a felonious taking can occur under the carjacking statute when the victim remains with the car. It appears to be one of first impression in California.3 '"Carjacking' is the felonious taking of a motor vehicle in the possession of another, from his or her person or in the 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 force or fear." ( 215 subd. (a), italics added.) The law was passed in 1993 to address what was then an increasingly dangerous problem of people being abducted from their cars, sometimes at gunpoint. (See People v. Alvarado (1999) 76 Cal.App.4th 156, 160.)
Before 1993, the crime was charged as a robbery. However, the robbery statutes presented unique evidentiary hurdles because carjackers typically did not intend to permanently dispossess owners of their cars, a requirement for a robbery. "Under [then] current law there [was] 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 . . ." (People v. Medina (1995) 39 Cal.App.4th 643, 648, quoting Assem. Com. on Pub. Safety analysis of Sen. Bill No. 60 (1993-1994 Reg. Sess.) July 13, 1993, p. 1.)
Although the question is one of first impression in California, we find it persuasive that other jurisdictions have affirmatively ruled that a "taking" can occur when the victim remains with the car under other similar carjacking statutes. (See U.S. v. DeLaCorte (9th Cir. 1997) 113 F.3d 154 [upholding a federal carjacking conviction when the victim was not forced to leave the vehicle]; see also People v. Green (Mich. 1998) 580 N.W.2d 444 [].) Additionally, we are substantially aided by the rationale found in People v. Alvarado, supra, 76 Cal.App.4th at page 156.
In Alvarado, the defendant told the victim to get out of his car or he would be shot. Instead of complying, the victim parked the car, yanked the keys out of the ignition, and ran. (People v. Alvarado, supra, 76 Cal.App.4th at p. 158.) Although Alvarado was unable to drive the car without the keys, his conviction for carjacking was upheld. (Id. at p. 162.) The court reviewed the legislative history of the carjacking statute and determined that, because the law was passed to fill gaps in the robbery statutes, the Legislature had intended to treat the elements of carjacking essentially the same as the elements for robbery. (See People v. Alvarado, supra, 76 Cal.App.4th at p. 160.)
(People v. Alvarado, supra, 76 Cal.App.4th at p. 160.) "For robbery, a felonious taking requires both a taking [] and a carrying away []." (Id. at p. 161, citing People v. Hill (1998) 17 Cal.4th 800, 852.) '" A taking occurs when the offender secures dominion over the property, while a carrying away requires some slight movement of the property.'" (Id. at p. 161, quoting 2 LaFave & Scott, Substantive Criminal Law (1986) Larceny - Taking & Carrying Away, 8.3, p. 345, italics added.) The court held that a "reasonable fact finder could find that a taking occurred when defendant exercised dominion and control over the car by ordering [the victim] to stop the car and to get out; [the victim's] response in braking the car and running away from it provides the asportation element of the completed crime." (Id. at p.161, italics added.)
Here, we adopt the sound reasoning from Alvarado and similarly hold that the Legislature intended that the well-established robbery definition of dominion and control be applied to the new crime of carjacking. When Duran entered the car he threatened to kill the entire family if Beardsley did not take him where he wanted to go. As Beardsley drove the car, Duran told him at gunpoint when to speed up and slow down, when to get on the freeway and when to get off, as well as where and when to turn. A taking occurred when Duran imposed his dominion and control over the car by ordering Beardsley to drive; Beardsley's response in driving the car where Duran directed him provided the asportation element of the completed crime.
There was sufficient evidence on which the jury could find that a felonious taking had taken place under the carjacking statute. We therefore affirm Duran's three convictions of kidnapping for carjacking.
Duran contends that the kidnapping and the kidnapping-for-carjacking convictions as to Jake Beardsley must be reversed because the victim was an infant incapable of exercising free will. Therefore, the elements of the crimes were not proven. We disagree.
An essential element of kidnapping is that the will of the victim be overcome by the use of force or by any other means. (See 207.) An issue arises when young children are victims because they lack the mental capacity to consent to, or oppose, the taking of their person. "If a person's free will was not overborne...
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