Brief Bank # B-833 (Re: F 9.40g / F 9.46 n6 [Taking From Intoxicated Victim / Victim Must Be Aware Of The Taking].)
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IN THE SUPREME COURT OF THE
STATE OF CALIFORNIA
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Petitioner,
On Appeal From the Judgment Of The Superior Court Of California,
San Diego County, No. SCD0000
Honorable Judith F. Hayes, Trial Judge
APPELLANT’S OPENING AND ANSWER BRIEF ON THE MERITS
So’Hum Law Center Of
RICHARD JAY MOLLER
State Bar #95628
P.O. Box 1669
Redway, CA 95560-1669
Telephone: (707) 923-9199
Attorney for Appellant by
Appointment of the Supreme Court
I. THERE IS INSUFFICIENT EVIDENCE THAT APPELLANT CARJACKED THE SEVEN-MONTH OLD INFANT AGAINST HER WILL AND BY MEANS OF
FORCE OR FEAR
A. The Relevant Facts and the Ruling Below
The state charged appellant in Count 2 with kidnapping Baby M during a carjacking. The jury, however, acquitted appellant of that charge and convicted him of the lesser-included offenses of carjacking and kidnapping Baby M. (CT 375, 376-377, 525.)
Just as the trial court had dismissed the carjacking count with respect to Baby M under section 995, the court of appeal reversed the carjacking conviction with respect to Baby M because the evidence was insufficient. (CT 491, 3, 12-14; slip op. at 21-23.) [Footnote 1]
The appellate court cogently explained:
“Carjacking is a relatively new crime and there are few cases dealing with its element of compulsion. However, the crime of robbery has the identical requirements of a taking of property in the possession of another against the victim’s will, accomplished by means of force or fear. (Pen. Code, §211.) We think it appropriate to apply to the crime of carjacking the well developed law applicable to the compulsion element of robbery. (See Ventura County Deputy Sheriffs’ Assn. v. Board of Retirement (1997) 16 Cal.4th 483, 496, fn. 16; In re Bittaker (1997) 55 Cal.App.4th 1004, 1009.)
“Robbery is essentially larceny aggravated by use of force or fear to facilitate the taking of property from the person or presence of the possessor.” (In re Albert A. (1996) 47 Cal.App.4th 1004, 1007.) Robbery is considered a more serious crime than simple theft or grand theft person because it entails a greater danger of physical and psychological harm. The law has concluded, therefore, there is no robbery when the victim is unaware of the event. A stealthful pocket picking is not a robbery, neither is the taking of property from an unconscious person. (See People v. Kelley (1990) 220 Cal.App.3d 1358, 1369; 4 Wharton’s Criminal Law (15th ed. 1996) Robbery, §464, pp. 40-44; 67 Am.Jur.2d Robbery, §§22, 29, 31-32, pp. 76-77, 84-85, 87; 77 C.J.S. (1994) Robbery, §22, p. 610.)
In this case, seven-month-old Baby M was, in any meaningful sense, unaware that her mother’s car was being taken. She had, in no meaningful sense, will which was overcome. Concepts of compulsion as a means of accomplishing the taking of the vehicle in which she was a passenger simply have no meaning. She was essentially unconscious and we conclude she could not be the victim of a robbery or carjacking.
(Slip op. at 22-23.)
B. The Standard of Review
“`When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence—i.e., evidence that is credible and of solid value—from which a[ny] rational trier of fact could have found the defendant guilty beyond a reasonable doubt.’ In applying this test, we must ‘presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.'” (People v. Fosselman (1983) 33 Cal.3d 572, 578 [citations omitted]; see also Jackson v. Virginia (1979) 443 U.S. 307, 318-319 [61 L.Ed.2d 560, 573, 99 S.Ct. 2781, 2789]; People v. Towler (1982) 31 Cal.3d 105, 118 [“the relevant inquiry on appeal remains whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt”].) A reasonable inference, however, “may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence.” (People v. Morris (1988) 46 Cal.3d 1, 21.)
Moreover, because of the presumption of innocence, an appellate court will uphold a conviction based substantially on circumstantial evidence only if the evidence is irreconcilable with any rational conclusion other than defendant’s guilt. In addition, when relying on circumstantial evidence, the state must prove beyond a reasonable doubt each fact essential to complete the chain of circumstances that establishes defendant’s guilt. (People v. Watson (1956) 46 Cal.2d 818, 830.)
Finally, the construction of a statute is subject to de novo review. (See People v. Heitzman (1994) 9 Cal.4th 189.)
C. There Is Insufficient Evidence That Appellant Took The Car Against The Infant’s Will, Or That Appellant Took The Car From The Infant By Force Or Fear
The Legislature defined “carjacking” as
the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the 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.
(§215(a) [emphasis added].) Thus, two essential and distinct elements of the crime are (1) that it be committed “against [the] will” of the victim, and (2) that it be “accomplished by means of force or fear.” [Footnote 2]
In the present case, seven-month old Baby M could not have been the victim of a carjacking because there was insufficient evidence of both of these elements.
Because the carjacking statute is relatively recent—it was enacted in 1993—there are few appellate decisions construing section 215(a) and none construing either “against his or her will” or “accomplished by means of force or fear.” Nonetheless, this Court is not writing on a clean slate. The Legislature directly modeled the carjacking provision on the robbery provision, section 211, [Footnote 3] and both provisions are included in the “Robbery” chapter of the Penal Code. Indeed, the carjacking and robbery provisions are complementary; the Legislature enacted section 215(a) to fill a potential gap in the robbery provision. Because some carjackers do not intend permanently to deprive the owner of the vehicle (such intent is an element of robbery), the Legislature expressly stated that the intent could be to “permanently or temporarily deprive” the owner of possession. (See People v. Hamilton (1995) 40 Cal.App.4th 1137, 1141-1142 [citing the relevant legislative history].) Moreover, the Legislature provided that a defendant could not be punished for both robbery and carjacking for the same act. (§ 215(c).) For those reasons, appellate courts construing the carjacking provision have relied heavily on the case law construing the robbery provision. (People v. Hamilton, supra, 40 Cal.App.4th at 1142 [“Because carjacking is very closely related to robbery, the cases dealing with robberies are significant in directing our interpretation of section 215”]; People v. O’Neil (1997) 56 Cal.App.4th 1126, 1131 [“While a distinct crime from robbery, the elements and statutory language of carjacking are analogous to those of robbery, and the ‘taking’ language of the carjacking statute is framed in identical language to the robbery statute. We therefore presume the Legislature intended the carjacking statute to ‘be given a like interpretation.’”].) Thus, in construing section 215(a), this Court should look to the case law construing section 211 and similarly worded statutes.
1. Appellant Did Not Take The Car “Against” The Infant’s Will Because She Was Too Young To Have A Will With Respect To The Car
As the court of appeal appreciated, a seven-month old baby does not have “free will” (Slip op. at 18, 23), at least certainly not toward the possession of a car. To state the matter differently, there is no evidence that appellant took the car against Baby M’s will.
The appellate courts and treatise writers are virtually unanimous: if the taking of property is not against the conscious will of the victim, there has been no robbery, but at most a theft. For example, no robbery has been committed when the defendant takes property from a sleeping or voluntarily drunk person; the theft is not against the victim’s will. (See People v. Kelley (1990) 220 Cal.App.3d 1358, 1368-1369 [citing treatises as well as cases from California and several other states].) No doubt there has been a theft—and the defendant may be punished for that offense—but there has been no robbery because there is no proof of an essential element of the crime of robbery. For the same reason, taking a car, absent evidence that the taking was against the will of the passenger in the car, may be car theft (§ 487(d)), but it is not carjacking against the passenger, as that crime is defined in section 215(a).
Similarly, federal decisions in kidnapping cases are relevant since in those cases the government also must prove that the defendant acted against the will of the victim. [Footnote 4] In a case involving a 23-month old baby, the Eighth Circuit held that while an infant
“may have had a ‘recognizable will’ regarding simple matters such as hunger, thirst, comfort, and affectionate attention, he was certainly not competent to know the nature of his journey with [the defendant]. The will that [the infant] showed is present in babies from birth. To accept an infant’s desires for food and comfort as the type of will contemplated in the context of a kidnapping would render the concept meaningless. We think that for a child to show a will regarding an alleged kidnapping, the child must, at least, understand the concept of kidnapping and its potential relevance to his situation.”
(United States v. McCabe (8th Cir. 1987) 812 F.2d 1060, 1061-1062, cert. denied (1988) 484 U.S. 832 [emphasis added]; cf. United States v. Macklin (2d Cir. 1982) 671 F.2d 60, 64 n. 5, [“Quite obviously, if the victim is an infant, the absence of a ‘recognizable will’ speaks for itself . . .”].)
The state presented no evidence that seven-month old Baby M had the requisite “will” within the meaning of the carjacking statute, and no evidence that appellant did anything to overcome any will she might have had. Given her extremely young age and corresponding level of mental development, she might as well have been asleep. (See generally, J. Piaget (1952) The Origins of Intelligence in Children; M. Bornstein and W. Kessen (1979) Psychological Development from Infancy: Image to Intention.) Absent evidence that Marissia had a sufficiently developed will regarding the car, the carjacking conviction in Count 2 cannot stand.
Well aware that the prosecution failed to prove that taking the car was against the infant’s will, the state desperately concocts arguments that have no basis in logic or law. First, the state argues that if this Court affirms the judgment below—i.e., that no carjacking occurred because Baby M does not have a sufficient will—the prosecution would unfairly bear the difficult burden of proving that the alleged victim had a “will” with respect to the vehicle, and that “the victim manifested that ‘will’ with some level of coherence.” (State’s Brief on the Merits at 15.) This argument ignores that section 215(a) expressly requires such a finding; there is no legal basis to ignore the statutory language. Moreover, the People vastly overstate this difficulty, overlooking the fact that it must prove the existence of such a will in robbery and rape cases. (See § 211 [a conviction for robbery requires proof that the taking was “against the will” of the victim]; § 261(a)(2) [a conviction for rape requires proof that sexual intercourse was “against a person’s will”]; People v. Iniguez (1994) 7 Cal.4th 847, 852 [rape requires proof that the victim “submit[ted] to sexual intercourse against her will”].) The need to prove that taking a car was “against the will” of the victim is no more onerous than proving the identical requirement in robbery cases and the closely analogous requirement in rape cases. There can be no unfairness in carrying a burden that the Legislature has repeatedly imposed.
The state also claims that the court of appeal decision would require the prosecution to prove that the carjacking victim actually resisted. (State’s Brief on the Merits at 15-16.) The state completely misreads the appellate court’s opinion. Just as there is no requirement that the prosecution prove the victim resisted a robbery or a rape—both of which require the perpetrator’s actions to be against the will of the victim—there is no such requirement for a carjacking. (See People v. Dominguez (1992) 11 Cal.App.4th 1342, 1347-1349 [taking property after the victim flees in fear constitutes robbery; the prosecution need not show the victim’s resistance]; People v. Iniguez, supra, 7 Cal.4th at 858-859 [the law of rape has “outgrown the resistance concept”].)
In short, the prosecution failed to provide any evidence that the car was taken from the seven-month old infant against her will, and the state provides no persuasive explanation in law, policy, or logic why this Court should ignore that element of the crime. Consequently, the court of appeal correctly reversed appellant’s carjacking conviction with respect to Baby M.
2. There Is Insufficient Evidence That Appellant Took The Car From Baby M By Force Or Fear
Not surprisingly, there is no evidence that appellant took the car “from the immediate presence” of seven-month old Baby M “by means of force or fear.” Given her extremely young age, she was not aware what was happening, and while appellant or Mr. D employed force and fear against Ms. R, they essentially ignored the infant.
The state concedes, as it must, that just as a sleeping or voluntarily unconscious person cannot be a victim of a robbery because he did not surrender the property out of fear, such a person also cannot be the victim of a carjacking. (State’s Brief on the Merits at 14, fn. 5; People v. Kelley (1990) 220 Cal.App.3d 1358, 1368-1369; People v. Mungia (1991) 234 Cal.App.3d 1703, 1709 fn. 2 [“there must be evidence from which it can be inferred that the victim was in fact afraid, and that such fear allowed the crime to be accomplished”].) In other words, the state agrees that the victim must subjectively experience fear; otherwise, taking a car without consent at most would be car theft. [Footnote 5]
The state’s principal argument rests on the speculation that Baby M expressed the requisite fear when she cried during the ordeal. (State’s Brief on the Merits at 15.) Resting as it does on conjecture, supposition, and guess work, this argument cannot save the carjacking conviction against Baby M.
Here are the facts and the reasonable inferences: Baby M was a seven-month old baby. (RT 126.) All infant babies cry, and so did Baby M. (RT 174.) A seven-month old infant is likely to cry for numerous reasons, including because she wants to be held; she wants her mother; she does not want to be in her car seat; she soiled her diaper; she is hungry; she is hot; she is cold; or she is overtired. Thus, the circumstantial evidence that she cried does not prove beyond a reasonable doubt the ultimate fact that Baby M was expressing or experiencing fear. On the contrary, such a conclusion would be improperly “based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work” rather than “an inference drawn from evidence.” (People v. Morris, supra, 46 Cal.3d at 21.) On the evidentiary record in this case, the claim that appellant took the car from Baby M by means of fear is wholly inconsistent with the requirement that a conviction may rest on circumstantial evidence only if that evidence is irreconcilable with any rational conclusion other than defendant’s guilt. (People v. Watson (1956) 46 Cal.2d 818, 830.) Given the numerous reasons why an infant might cry, and no basis in the present case to believe one reason was more likely than another, there was insufficient evidence to support the carjacking conviction against Baby M.
The state seeks to bolster this argument by claiming that Baby M was “tossed about,” but that claim misstates the evidence. Ms. R. testified that Baby M’s car seat “rolled back and forth” because it was not secured to the front seat of the car, even though Baby M was strapped into her car seat. (RT 174-175.) In any event, such motion does not demonstrate that appellant carjacked the car from Baby M by instilling fear in her. (See People v. Mungia, supra, 234 Cal.App.3d at 1709, & fn. 2 [a purse snatching was not accomplished through fear because the victim was not aware of the defendant’s approach or planned purse snatch until he had snatched the purse from behind].)
More fundamentally, a seven-month old infant cannot be carjacked for the same reason that a voluntarily unconscious person cannot be carjacked or robbed—the crime did not involve the use of fear. (Ibid.; People v. Kelley, supra, 220 Cal.App.3d at 1369 [“In cases where the evidence showed the defendant took property from a person who was voluntarily asleep or unconscious from drinking, the courts have held the evidence did not support a robbery conviction”]; People v. Garcia (1996) 45 Cal.App.4th 1242, 1246 [a pickpocket does not commit a robbery simply by touching the victim while extracting a wallet, because the victim is unaware of the crime].) A conviction for carjacking—and robbery—requires proof that the crime was “accomplished by means of force or fear.” (§§ 215(a); 211.) An extremely young infant—no differently than an unconscious person—with no awareness that her mother’s car was being taken, and against whom no force or fear was used, was not the victim of a carjacking. Appellant does not dispute that section 215(a) specifically protects passengers as well as drivers. (People v. Hamilton, supra, 40 Cal.App.4th at 1140-1145 [the defendant could be convicted of multiple counts of carjacking if passengers were also present].) The state’s argument notwithstanding, the presence of a passenger alone is not a basis to sustain a conviction for carjacking against the passenger. (See State’s Brief on the Merits at 11-12.) In Hamilton, there was sufficient evidence that the defendant used force against the adult passenger and that the vehicle was taken against the will of the passenger by means of force or fear. (People v. Hamilton, supra, 40 Cal.App.4th at 1144-1145.)
Aware that the record is devoid of evidence that appellant used fear to take the car from Baby M, the state asks this Court to rewrite the carjacking statute. According to the state, requiring proof that appellant took the car by instilling fear in Baby M “inappropriately places the sole focus on the state of mind of the victim, rather than where it properly rests, on the mind of the perpetrator.” (State’s Brief on the Merits at 16.) This argument is wrong on both legal and policy grounds.
First, section 215(a) expressly and unambiguously requires such a showing. There is nothing unfair or absurd about this element that warrants the radical judicial remedy of rewriting the express statutory language. (See Beecham v. United States (1994) 511 U.S. 368, 374 [114 S.Ct. 1669, 1672, 128 L.Ed.2d 383, 390] [because statute was clear, court’s task was not “the hopeless one of ascertaining what the legislators who passed the law would have decided had they reconvened to consider petitioner’s particular case”]; Ratzlaf v. United States (1994) 510 U.S. 135, 140-141 [114 S.Ct. 655, 126 L.Ed.2d 615] [judges should hesitate to treat statutory terms as surplusage].) If the state believes this statutory element is inappropriate, they should take their complaint to the Legislature, not this Court. Second, proving this element is no more burdensome or less appropriate than it is for the crimes of robbery, rape, or kidnapping. To prove robbery, the government must show that the victim was actually afraid. (People v. Davison (1995) 32 Cal.App.4th 206, 212-215; People v. Mungia, supra, 234 Cal.App.3d at 1709, fn. 2.) [Footnote 6]
To prove rape, the government must show prove both subjective and objective fear. (People v. Iniguez (1994) 7 Cal.4th 847, 852-853 [“the element of fear of immediate and unlawful bodily injury has two components, one subjective and one objective. The subjective component asks whether a victim genuinely entertained a fear of immediate and unlawful bodily injury sufficient to induce her to submit to sexual intercourse against her will. . . . [T]he objective component . . . asks whether the victim’s fear was reasonable under the circumstances, or, if unreasonable, whether the perpetrator knew of the victim’s subjective fear and took advantage of it.”].) Similarly, kidnapping requires proof of a reasonable apprehension of harm. (See People v. Reyes-Martinez (1993) 14 Cal.App.4th 1412, 1415.) In light of these stringent requirements for the crimes of robbery, rape and kidnapping, it cannot be credibly argued that such a requirement would undermine the Legislature’s goal to punish carjacking.
The state invokes People v. Antoine (1996) 48 Cal.App.4th 489, 495, for the proposition that because the Legislature enacted the carjacking law to protect vulnerable victims, this Court must rewrite the statute to dispense with the “fear” element. (State’s Brief on the Merits at 14.) This argument wrongly assumes that the Legislature did not know how to draft section 215(a) to achieve its goals. The state overlooks the fact that for other crimes—but not carjacking—the Legislature expressly added provisions that would protect vulnerable victims, such as mentally disabled persons or children. Thus, although rape is defined as sexual intercourse “against a person’s will by means of force . . . or fear . . .” (§261(a)(2)), the Legislature added that rape also included sexual intercourse where a person is “incapable, because of a mental disorder or developmental or physical disability of giving legal consent,” or a person is unconscious of the nature of the act. (§261(a)(1), (a)(4).) The Legislature also adopted a special provision that makes sex with a minor illegal even absent proof of force or fear. (§ 288(a).) Thus, if the Legislature had wanted to create a species of carjacking for infants that did not require proof of fear, it could easily have done so. The Legislature apparently did not deem carjackings against infants to be of sufficient concern to legislate specially against it.
The reason is simple. Carjacking poses a special threat of violence and injury not present in car theft. The use of force or fear creates an additional, significant danger that the carjacker will physically or psychologically injure the victim, or that the victim will resist or not react quickly enough, thereby precipitating greater violence. Thus, the penalties for carjacking (and robbery) are more severe than the penalties for auto theft (and grand theft) because the former crimes address potentially much more dangerous situations. Because such dangers do not arise when someone takes a car from an infant, the Legislature did not enact special provisions for infant victims, but instead wrote the statute to apply general elements of section 215(a) to all victims.
Footnote 1: The court of appeal upheld the kidnapping conviction. Appellant’s challenge to that part of the judgment is found in Part II, infra.
Footnote 2: The “against the will” and “force or fear” elements of carjacking are distinct, and this Court should so construe them. (See City and County of San Francisco v. Farrell (1982) 32 Cal.3d 47, 54 [“In construing the words of a statute . . . to discern its purpose the provisions should be read together; an interpretation which would render terms surplusage should be avoided, and every word should be given some significance, leaving no part useless or devoid of meaning.”].)
Although proof that a taking was “accomplished by means of force and fear” often is sufficient to prove it was “against [the victim’s] will,” the elements are not always congruent. One can imagine circumstances where a car could be taken by force or by fear without it being taken against the will of the owner. To illustrate the distinction, consider the distinctions between robbery and extortion. In both cases, property is taken from another by “force or fear,” but in robbery it is taken “against his will,” while in extortion the property is taken “with his consent.” (People v. Torres (1995) 33 Cal.App.4th 37, 50.) Thus, to prove carjacking from the seven-month old infant, the state must show both that it was against her will and that it was accomplished by force or fear against her.The state cites People v. Riley (1888) 75 Cal. 98, 99, for the proposition that “against his or her will” and “accomplished by means of force or fear” are redundant. (State’s Brief on the Merits at 16, fn. 7.) Riley, however, held that an information charging robbery was not fatally defective because it omitted the words “against his will.” The decision does not stand for the proposition that the elements are always synonymous, but only that, under the circumstances, the language “accomplished by means of force and fear” was sufficient to give the defendant notice of the robbery charge.
Footnote 3: Section 211 states:
“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.”
Footnote 4: Although the federal kidnapping statute did not expressly state that the taking must be “against the will” of the victim, the federal courts have held that the government must show that “the victim is taken, held and transported against his or her will.” (United States v. Macklin (2d Cir. 1982) 671 F.2d 60, 64.)
Footnote 5: This argument focuses on “fear” rather than “force” because the People do not maintain that appellant took the car from the infant by force, thus tacitly conceding that part of the argument.
Footnote 6: Section 212 defines fear as:
1. The fear of an unlawful injury to the person or property of the person robbed, or of any relative of his or member of his family; or,
1. The fear of an immediate and unlawful injury to the person or property of anyone in the company of the person robbed at the time of the robbery.