People v. Lopez

118 Cal. Rptr. 2d 539, 97 Cal. App. 4th 583
CourtCalifornia Court of Appeal
DecidedJune 26, 2002
DocketF036242
StatusPublished

This text of 118 Cal. Rptr. 2d 539 (People v. Lopez) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Lopez, 118 Cal. Rptr. 2d 539, 97 Cal. App. 4th 583 (Cal. Ct. App. 2002).

Opinion

118 Cal.Rptr.2d 539 (2002)
97 Cal.App.4th 583

The PEOPLE, Plaintiff and Respondent,
v.
Daniel Sapien LOPEZ, Defendant and Appellant.

No. F036242.

Court of Appeal, Fifth District.

April 10, 2002.
Review Granted June 26, 2002.

*540 Joseph Shipp, under appointment by the Court of Appeal, Sebastapol, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Patrick J. Whalen and Brian G. Smiley, Deputy Attorneys General, for Plaintiff and Respondent.

Certified for Partial Publication.[*]

OPINION

VARTABEDIAN, Acting P.J.

Defendant Daniel Sapien Lopez engaged in a series of crimes, resulting in the trial court finding him guilty of numerous felony criminal charges and finding true various appended allegations, including enhancements. Because of his status as a repeat offender, he received a substantial term of imprisonment. In the published portion of this opinion we uphold the carjacking (Pen.Code § 215)[1] conviction he challenges, finding there was a completed carjacking even though the vehicle itself was not physically moved. In the unpublished portion of this opinion, we address and reject numerous additional contentions raised by defendant, including other substantial evidence challenges, his dispute concerning the breadth of his jury trial waiver, his claim of interpreter "hearsay," challenges to the three strikes law, and arguments regarding the severity of his punishment. We affirm.

FACTS AND PROCEEDINGS[**]

DISCUSSION

I. Waiver of Jury Trial[**]

II. Sufficiency of Evidence of Asportation for Carjacking

Defendant was convicted in count five of carjacking. Wa Vue Yang was sitting in the driver's seat of his parked vehicle waiting for his wife to come out of the market. Defendant approached the driver's side of the vehicle and asked Yang if he wanted to buy a watch. Yang declined because he did not need a watch. Defendant pulled out a gun and fired it at the ground. Defendant pointed the gun at Yang's face and told him to get out of the vehicle. Yang got out of the vehicle. Leaving the keys in the ignition, Yang started to walk away. Defendant got into the vehicle, throwing his backpack onto the passenger seat. Yang realized he had left some checks in the vehicle. Wanting the checks, *541 he turned around, returned to the vehicle and confronted defendant. He was not as afraid of the gun as he was initially because, after thinking about it, he thought the gun was an air gun. Defendant pointed a gun at Yang and pulled the trigger twice; the gun did not fire. Defendant fled.

Defendant argues that asportation is required to prove a carjacking and that an asportation does not occur if the vehicle is not moved. Because the vehicle here was not moved, or even started, defendant argues that this offense was attempted carjacking, not a completed carjacking.

Respondent contends the crime of carjacking does not require a defendant to physically move the motor vehicle; instead, respondent argues the legislative intent underlying the statute and the nature of a motor vehicle mandates that a carjacking is complete once a defendant uses force or fear to divest the victim of control of the motor vehicle and the defendant assumes dominion and control over the vehicle.

The question posed here, whether actual movement of the motor vehicle is required to prove the crime of carjacking, is one of first impression. Carjacking is a relatively new crime and was added to the Penal Code as part of Senate Bill No. 60 (1993-1994 Reg. Sess.). According to the author of Senate Bill No. 60, "[t]here 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.)

Section 215 defines the crime of carjacking as follows:

"(a) `Carjacking' is 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.

".......................................

"(c) This section shall not be construed to supersede or affect Section 211 [robbery]. 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."

Section 211 defines the crime of robbery: "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."

*542 The carjacking statute follows the basic template of the robbery statute, and numerous courts have utilized the law of robbery and larceny in determining if a carjacking has occurred. For example, in People v. Alvarado (1999) 76 Cal.App.4th 156, 90 Cal.Rptr.2d 129, we reviewed the law of robbery, which requires both a taking and an asportation (carrying away). We applied the well-developed law applicable to the requirements of robbery to resolve whether an asportation had occurred in a carjacking. For the purposes of our discussion in Alvarado we assumed, but did not find, that carjacking required an asportation. There, the vehicle was already in motion when Alvarado made his demand. Because there was actual movement of the vehicle in Alvarado after the demand was made (the braking distance after Alvarado ordered the victim to stop the car), it was not necessary to determine if a carjacking could occur without movement of the vehicle itself. We are faced squarely with that issue in the present case.

Although the courts have frequently interpreted the requirements for carjacking by utilizing the law applicable to the elements of robbery and larceny, the California Supreme Court has emphasized that the interpretation of the carjacking statute should not follow in lockstep with these other crimes.[4] In People v. Hill (2000) 23 Cal.4th 853, 98 Cal.Rptr.2d 254, 3 P.3d 898, Hill and his accomplice accosted a mother as she was removing her seven-month-old daughter from the car.

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Bluebook (online)
118 Cal. Rptr. 2d 539, 97 Cal. App. 4th 583, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-lopez-calctapp-2002.