COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Annunziata and
Senior Judge Duff
Argued at Alexandria, Virginia
SHEILA SANCHEZ
OPINION BY
v. Record No. 0538-99-4 JUDGE ROSEMARIE ANNUNZIATA
APRIL 18, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Joanne F. Alper, Judge
Andrew G. Lawrence for appellant.
Shelly R. James, Assistant Attorney General
(Mark L. Earley, Attorney General, on
brief), for appellee.
Sheila Sanchez appeals her conviction for carjacking by the
Circuit Court of Arlington County on October 14, 1998, on the
ground that the trial court erred in denying her proposed jury
instruction for assault and battery as a lesser-included offense
of carjacking. In this matter of first impression, we find no
error and affirm the conviction.
FACTS
Early in the morning of June 20, 1998, taxi driver Sallu
Fallah was driving Sanchez and a companion, Jeffrey Manley, to
various destinations in Washington, D.C., and northern Virginia.
Sanchez sat beside Fallah on the front seat of the cab. A
disagreement between Fallah and the passengers arose when
Sanchez and Manley decided to change their destination, and
Fallah refused to convey them unless they paid an increased
fare. While the taxi was stopped at a traffic light, Sanchez
grabbed Fallah by the shirt, put a finger against his throat,
slapped him, and began to punch him in the side with her fist.
When the traffic signal changed to green, Fallah immediately
turned left into the parking lot of a service station, as
Sanchez grabbed the steering wheel in an effort to prevent the
turn. Fallah parked and ran from the taxi to telephone the
police, leaving his keys in the ignition. Sanchez and Manley
pursued him briefly, then returned to the taxi, where Sanchez
positioned herself in the driver's seat and attempted to drive
from the scene with Manley sitting in the back seat. Fallah
returned to the cab and offered to refund their fare if they
would not take the car. Sanchez and Manley refused his offer
and remained in the car. A customer at the service station who
witnessed the incident parked his car in front of the taxi,
blocking its path. Manley exited the taxi and threatened to
shoot the customer if he did not move his vehicle, but the
customer refused. The police arrived momentarily, but Sanchez
remained in the car, refusing to get out even when the officers
drew their weapons. Ultimately, three officers pulled her from
the vehicle as she physically resisted.
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At a jury trial on October 14, 1998, Sanchez was found
guilty of carjacking in contravention of Code § 18.2-58.1. The
court entered judgment in accordance with the verdict on
February 23, 1999, and this appeal followed.
ANALYSIS
When reviewing a trial court's refusal of a proposed
lesser-included offense jury instruction, we must first decide
whether the proffered instruction presents a lesser-included
offense. See Simms v. Commonwealth, 2 Va. App. 614, 616-17, 346
S.E.2d 734, 735 (1986). The elements of the greater offense as
charged must be examined in relation to the purported lesser
offense, and where every commission of the greater offense is
also a commission of the lesser offense, a lesser offense may be
deemed to exist. See Kauffmann v. Commonwealth, 8 Va. App. 400,
409, 382 S.E.2d 279, 283 (1989) (a lesser-included offense is
one "which is composed entirely of elements that are also
elements of the greater offense"). The required examination of
the two charges focuses not on the facts of the particular case
under review, but on the offenses in the abstract. See Seibert
v. Commonwealth, 22 Va. App. 40, 45, 467 S.E.2d 838, 841 (1996)
(citation omitted). Thus, because the issue presented on appeal
concerns a question of law, not a question of fact, it is
subject to review de novo. See Rusty's Welding Service, Inc. v.
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Gibson, 29 Va. App. 119, 127, 510 S.E.2d 255, 259 (1999) (en
banc) (citation omitted).
The question before us is controlled by our holding in Low
v. Commonwealth, 11 Va. App. 48, 396 S.E.2d 383 (1990). In Low,
we applied the test set out in Blockburger v. United States, 284
U.S. 299 (1932), and determined that assault and battery is not
a lesser-included offense of robbery. See Low, 11 Va. App. at
52, 396 S.E.2d at 385. We have previously noted that carjacking
is a species of robbery. See Bell v. Commonwealth, 21 Va. App.
693, 701, 467 S.E.2d 289, 293 (1996). As Code § 18.2-58.1
defines carjacking essentially as "a particularized form of
robbery," it follows that, because assault and battery is not a
lesser-included offense of robbery, neither is it a
lesser-included offense of carjacking.
The trial court therefore did not err in denying Sanchez's
proffered instruction on assault and battery, 1 and we affirm her
conviction. 2
Affirmed.
1
Because Sanchez's appeal only questions whether the trial
court properly refused an instruction on assault and battery, we
do not consider the propriety of an instruction on simple
assault.
2
Because we decide this appeal on a question of law, we do
not decide whether more than a scintilla of evidence supported
the submission of the instruction to the jury.
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