P. v. Phinsavanh CA4/1

Filed 6/14/13 P. v. Phinsavanh CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D061750

Plaintiff and Respondent,

v. (Super. Ct. No. SCD237499)

PHONESSAVANH PHINSAVANH,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Lisa A.

Foster, Judge. Affirmed.

Marianne Harguindeguy Cox, under appointment by the Court of Appeal, for

Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Charles C.

Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
 Phonessavanh Phinsavanh appeals a judgment following his jury conviction of one

count of carjacking (Pen. Code, § 215, subd. (a))1 and one count of unlawful taking or

driving a vehicle (Veh. Code, § 10851, subd. (a)). On appeal, he contends his carjacking

conviction must be reversed because: (1) the evidence is insufficient to support findings

that the victim possessed the vehicle at the time of the taking and Phinsavanh used force

or fear to take the vehicle; and (2) the carjacking statute was not intended to address the

circumstances in this case.

FACTUAL AND PROCEDURAL BACKGROUND

At about 12:00 p.m. on November 10, 2011, Marcus Neal parked his black Ford

Expedition on the street in front of his grandmother's house on Hilltop Drive. He left its

doors unlocked, its keys in the ignition, and its windows down. He went inside to assist

his uncle in lifting his grandmother into bed in the front bedroom.

After ingesting methamphetamines, Phinsavanh and Phao Chav walked down the

sidewalk on Hilltop Drive and approached Neal's parked Expedition. Phinsavanh and

Chav got in it and Phinsavanh drove it away. Hearing the Expedition's loud engine with

its enhanced exhaust system, Neal glanced out the front bedroom window and saw his

Expedition moving and someone inside it. Neal ran outside, flagged down a passing

utility truck, and got in. The truck's driver pursued the Expedition. When the Expedition

stopped at a red light at an intersection about a mile from his grandmother's house, Neal

got out of the truck, ran up to the Expedition, and jumped on its passenger side running

1 All statutory references are to the Penal Code unless otherwise specified.

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board. Because the front passenger side window was open, he reached inside and

grabbed onto a handle to steady himself. Neal saw Phinsavanh sitting in the driver's seat

and Chav in the passenger's seat. He yelled at Phinsavanh that the Expedition was his car

and asked what he was doing in it. Phinsavanh and Chav repeatedly said, "oh shit, oh

shit."

When the traffic light turned green, Phinsavanh drove the Expedition through the

intersection with Neal hanging onto its side. Afraid of getting hurt, Neal said to him:

"Okay, okay, okay. Stop. Slow down, slow down. I promise I['ll] get off." Phinsavanh

then began to drive in a zigzag pattern and pumped the brakes. After the Expedition had

travelled about 20 feet past the intersection at a speed of about 15 to 20 miles per hour,

Neal jumped off and fell onto the street. Neal injured his shoulder and stomach and

sustained cuts and scrapes to his knuckles, knee, and elbow.

Responding to a radio call regarding a carjacking, San Diego Police Sergeant

Martha Sainz stopped Neal's black Ford Expedition on 45th Street. Phinsavanh, its

driver, and Chav, its front passenger, were removed from the Expedition.

An information charged Phinsavanh and Chav with carjacking (§ 215, subd. (a))

and unlawful taking or driving a vehicle (Veh. Code, § 10851, subd. (a)). The

information also alleged Phinsavanh had previously been convicted of felony vehicle

theft (§ 666.5, subd. (a)), had been convicted twice or more of a felony offense (§ 1203,

subd. (e)(4)), and had served five prior prison terms (§§ 667.5, subd. (b), 668).

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Following trial, the jury found Phinsavanh guilty of both counts.2 The trial court then

found true the prior conviction allegations against Phinsavanh. Pursuant to section 1385,

the trial court struck the prison prior allegations and sentenced Phinsavanh to an upper

term of four years in prison for his count 2 vehicle theft conviction (Veh. Code, § 10851,

subd. (a)) and imposed, but stayed pursuant to section 654, a lower term of three years in

prison for his count 1 carjacking conviction (§ 215, subd. (a)). Phinsavanh timely filed a

notice of appeal.

DISCUSSION

I

Substantial Evidence to Support Carjacking Conviction

Phinsavanh contends his carjacking conviction must be reversed because the

evidence is insufficient to support findings that (a) Neal possessed the Expedition at the

time of the taking, and (b) he (Phinsavanh) used force or fear to take the Expedition.

A

When a defendant on appeal challenges a criminal conviction based on a claim of

insufficiency of the evidence, "the reviewing court's task is to review the whole record in

the light most favorable to the judgment to determine whether it discloses substantial

evidence--that is, evidence that is reasonable, credible, and of solid value--such that a

reasonable trier of fact could find the defendant guilty beyond a reasonable doubt."

(People v. Rodriguez (1999) 20 Cal.4th 1, 11, citing People v. Johnson (1980) 26 Cal.3d

2 A mistrial was declared on the counts against Chav.

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557, 578.) "Resolution of conflicts and inconsistencies in the testimony is the exclusive

province of the trier of fact. [Citation.] Moreover, unless the testimony is physically

impossible or inherently improbable, testimony of a single witness is sufficient to support

a conviction." (People v. Young (2005) 34 Cal.4th 1149, 1181.)

The substantial evidence standard of review involves two steps. "First, one must

resolve all explicit conflicts in the evidence in favor of the respondent and presume in

favor of the judgment all reasonable inferences. [Citation.] Second, one must determine

whether the evidence thus marshaled is substantial. While it is commonly stated that our

'power' begins and ends with a determination that there is substantial evidence [citation],

this does not mean we must blindly seize any evidence in support of the respondent in

order to affirm the judgment. . . . [Citation.] '[I]f the word "substantial" [is to mean]

anything at all, it clearly implies that such evidence must be of ponderable legal

significance. Obviously the word cannot be deemed synonymous with "any" evidence.

It must be reasonable . . . , credible, and of solid value . . . .' [Citation.] The ultimate

determination is whether a reasonable trier of fact could have found for the respondent

based on the whole record." (Kuhn v. Department of General Services (1994) 22

Cal.App.4th 1627, 1632-1633, fns. omitted.) "[T]he power of an appellate court begins

and ends with the determination as to whether, on the entire record, there is substantial

evidence, contradicted or uncontradicted, which will support the determination, and when

two or more inferences can reasonably be deduced from the facts, a reviewing court is

without power to substitute its deductions for those of the trial court. If such substantial

evidence be found, it is of no consequence that the trial court believing other evidence, or

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drawing other reasonable inferences, might have reached a contrary conclusion."

(Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.)

B

Section 215, enacted in 1993, defines the offense of "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 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." (§ 215, subd. (a); People v. Medina

(1995) 39 Cal.App.4th 643, 647.)

We consider the elements and statutory language of section 211 robbery in

interpreting the carjacking statute. "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.' (§ 211.) 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.' " ' " (People v. O'Neil (1997) 56

Cal.App.4th 1126, 1131 (O'Neil).) "[W]e presume the Legislature intended the language

used in the carjacking enactment should be given a like interpretation to the analogous

robbery statute." (Id. at p. 1132.) Likewise, in interpreting section 215, the California

Supreme Court stated: "In the absence of a contrary intent, we presume that in adopting

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the phrase, 'felonious taking,' from the robbery statute, the Legislature intended that those

same words within section 215 be given the same construction." (People v. Lopez (2003)

31 Cal.4th 1051, 1063 (Lopez).) "The legislative history is replete with comparisons

between robbery and the new crime of carjacking." (Id. at p. 1062.) Lopez concluded a

section 215 carjacking offense, like a robbery offense, requires asportation or movement

of the motor vehicle. (Lopez, at pp. 1054-1055, 1063.)

C

Phinsavanh asserts his carjacking conviction must be reversed because the

evidence is insufficient to support a finding that Neal possessed the Expedition at the

time of the taking. A carjacking offense requires a "felonious taking of a motor vehicle

in the possession of another . . . ." (§ 215, subd. (a), italics added.) In adopting the

phrase, "in the possession of another," from the robbery statute, we conclude the

Legislature intended that those same words within section 215 be given the same

construction. (Cf. Lopez, supra, 31 Cal.4th at p. 1063 [similar conclusion regarding the

phrase "felonious taking" in section 215].) We consider the ample case law on robbery

offenses in interpreting what constitutes "in the possession of another" under the

carjacking statute.

"A robbery cannot be committed against a person who is not in possession of the

property taken or retained. [Citation.] Possession may be actual or constructive."

(People v. Bradford (2010) 187 Cal.App.4th 1345, 1349.) "A person who owns property

or who exercises direct physical control over it has possession of it, but neither ownership

nor physical possession, is required to establish the element of possession for the

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purposes of the robbery statute." (People v. Scott (2009) 45 Cal.4th 743, 749 (Scott).)

"[T]he theory of constructive possession has been used to expand the concept of

possession to include employees and others as robbery victims . . . ." (People v. Nguyen

(2000) 24 Cal.4th 756, 762.) "[B]ased upon a theory of constructive possession, ' "a store

employee may be the victim of a robbery even though he is not its owner and not at the

moment in immediate control of the stolen property." ' " (Scott, at p. 751.) Therefore, the

element of possession for a robbery offense is established if the property is taken while

an employee of the property owner is on duty. (Id. at p. 756.) Furthermore,

nonemployees who have a "special relationship" with the owner of the property sufficient

to show they had authority or responsibility to protect the stolen property on behalf of the

owner can also be victims of a robbery. (Id. at p. 753.) Scott concluded: "By requiring

that the victim of a robbery have possession of the property taken, the Legislature has

included as victims those persons who, because of their relationship to the property or its

owner, have the right to resist the taking, and has excluded as victims those bystanders

who have no greater interest in the property than any other member of the general

population." (Id. at pp. 757-758.)

In this case, "possession" for purposes of the carjacking statute is established if the

motor vehicle is taken from its owner or from a person with actual or constructive

possession of the vehicle, which we interpret expansively as in the context of robbery as

discussed above. Contrary to Phinsavanh's apparent assertion, section 215's phrase "in

the possession of another" is not interpreted narrowly to require that a motor vehicle be

taken from a person with actual physical possession (i.e., dominion and control) of the

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vehicle. The California Supreme Court stated: "A person who owns property or who

exercises direct physical control over it has possession of it . . . for the purposes of the

robbery statute." (Scott, supra, 45 Cal.4th at p. 749, italics added.) As discussed above,

we interpret that section 215 phrase in the same manner as it is interpreted for purposes of

the robbery statute. The record in this case shows, and Phinsavanh does not dispute, that

Neal was the owner of the Expedition that he took. Therefore, there is substantial

evidence to support the finding that Phinsavanh took the Expedition "in the possession of

another" for purposes of a carjacking under section 215. (Scott, at p. 749.)

Even if a narrower definition of possession were applied, we would conclude there

is substantial evidence Phinsavanh feloniously took the Expedition from Neal's

possession. A "felonious taking," whether a robbery or a carjacking, consists of both the

initial taking and asportation thereafter of the property or vehicle. A carjacking continues

until the perpetrator reaches a place of temporary safety. (People v. Flynn (2000) 77

Cal.App.4th 766, 772 (Flynn).) Because Neal immediately pursued Phinsavanh after the

initial taking and caught up with the Expedition about a mile from Neal's grandmother's

house, there is substantial evidence to support a finding, objectively determined, that

Phinsavanh had not yet reached a temporary place of safety. Therefore, when Neal

jumped onto the Expedition's running board and demanded his vehicle back, he had

sufficient control and dominion over it for purposes of a section 215 carjacking. Because

Neal had the right to resist the taking of his Expedition, he had possession of it within the

meaning of section 215. (Cf. Scott, supra, 45 Cal.4th at pp. 757-758.) Contrary to

Phinsavanh's assertion, Neal's purported "precarious position" on the running board of the

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Expedition did not preclude a finding he had possession of the Expedition for purposes of

section 215.

People v. Cabrera (2007) 152 Cal.App.4th 695, cited by Phinsavanh, is factually

and legally inapposite to this case and does not persuade us to reach a contrary

conclusion. We further note Phinsavanh's appellant's opening brief purportedly quotes

our language in Cabrera, but that language is actually quoted from a concurring opinion

of Justice Werdegar in People v. Montoya (2004) 33 Cal.4th 1031, 1038 (conc. opn. of

Werdegar, J.). (Cabrera, at pp. 702-703.) In any event, we do not find Justice

Werdegar's concurring opinion in Montoya sufficiently persuasive to preclude a finding

of possession by Neal in this case. To the extent carjacking is a crime against possession

rather than ownership, as Justice Werdegar apparently believes, the requirement that the

vehicle be taken from the immediate presence of the owner or possessor of the vehicle, or

a passenger thereof, satisfies the legislative intent underlying section 215.

Phinsavanh alternatively asserts Neal was not in the "immediate presence" of the

Expedition at the time Phinsavanh took it. He cites People v. Medina, supra, 39

Cal.App.4th 643 in support of his apparent assertion that the Expedition had to be within

Neal's reach or control such that he could have retained possession of it had he

(Phinsavanh) not prevented him from doing so by force or fear. As discussed above,

carjacking, like robbery, is an offense that continues after the initial taking through

asportation until the perpetrator reaches a temporary place of safety. (Lopez, supra, 31

Cal.4th at pp. 1054-1055, 1063; cf. People v. Gomez (2008) 43 Cal.4th 249, 258 (Gomez)

[robbery is a continuing offense]; Flynn, supra, 77 Cal.App.4th at p. 772 ["A theft or

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robbery remains in progress until the perpetrator has reached a place of temporary

safety."].) Because there is substantial evidence to support a finding that Neal pursued

and caught up with Phinsavanh in the Expedition before he reached a place of temporary

safety, there likewise is substantial evidence to support a finding that the Expedition was

within the "immediate presence" of Neal during the felonious taking by Phinsavanh (e.g.,

when Neal jumped onto the Expedition's running board).

In Gomez, the California Supreme Court held that the "immediate presence"

requirement for robbery was satisfied if that presence did not occur on the initial taking,

but instead occurred during asportation of the property. (Gomez, supra, 43 Cal.4th at

pp. 258-264.) Gomez stated: "Under the language of section 211, the phrases 'person or

immediate presence' and 'force or fear' both refer to the 'taking' of personal property. The

force of fear element of robbery can be satisfied during either the caption or the

asportation phase of the taking. [Citation.] By the same logic, the immediate presence

element can be satisfied at any point during the taking." (Id. at p. 261, italics added.)

Gomez held the "immediate presence" element of robbery "may also be satisfied . . .

during asportation." (Id. at p. 263.) Therefore, Gomez concluded "[a] victim who tries to

stop a thief from getting away with his property is in the presence of the property." (Id.

at p. 264, fn. omitted.) Applying that holding to the same element in a carjacking

offense, we conclude a victim not present during the initial taking of a motor vehicle may

subsequently be in the immediate presence of the vehicle during the asportation or

driving away phase of a carjacking offense. When Neal pursued and caught up with the

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Expedition and jumped onto its running board, he was in its "immediate presence" for

purposes of a section 215 carjacking offense. (Gomez, at p. 264.)

In any event, there also is substantial evidence to support a finding that Neal was

in the "immediate presence" of the Expedition when Phinsavanh initially took it. In the

context of robbery offenses, courts have held victims to be within the immediate presence

of stolen property at distances equal to or greater than that involved in this case. (See,

e.g., Gomez, supra, 43 Cal.4th at p. 265 [distance of 100 to 150 feet away]; People v.

Harris (1994) 9 Cal.4th 407, 422-424 [victim forcibly restrained in car outside home and

office while perpetrators looted home and office]; People v. Webster (1991) 54 Cal.3d

411, 439-442 [victim one-quarter mile away when car was taken]; People v. Hayes

(1990) 52 Cal.3d 577, 626-629 [victim in another room 107 feet away from motel office

where property was taken].) The record in this case shows Neal was in the front bedroom

of his grandmother's house when he looked through the window and saw his Expedition

on the street being driven away. The distance between Neal and the Expedition at that

time presumably was less than the distances in the above-cited robbery cases in which the

"immediate presence" element was satisfied. We conclude there is substantial evidence

to support a finding that Neal was in the immediate presence of the Expedition at the time

Phinsavanh initially took it.

D

Phinsavanh asserts his carjacking conviction must be reversed because there is

insufficient evidence that he used force or fear to take the Expedition. In so arguing, he

apparently does not disagree that the "force or fear" element of section 215 can be

12
satisfied during the asportation or driving away phase of a carjacking. The force or fear

element of robbery "can be satisfied during either the caption or the asportation phase of

the taking." (Gomez, supra, 43 Cal.4th at p. 261, citing People v. Anderson (1966) 64

Cal.2d 633, 638 and People v. Estes (1983) 147 Cal.App.3d 23, 28.) Applying that case

law to the carjacking statute, the section 215 "force or fear" element can likewise be

satisfied during either the initial taking or the asportation or driving away phase of a

carjacking. (O'Neil, supra, 56 Cal.App.4th at p. 1133.)

Phinsavanh instead argues the evidence is insufficient to support a finding that he

used force or fear against Neal when he (Neal) jumped onto the Expedition's running

board after catching up with it. He argues the evidence shows, at most, that he

(Phinsavanh) was surprised when he saw Neal on the running board and, in a panic,

drove through the intersection and braked to allow Neal to jump off. However, in so

arguing, Phinsavanh misconstrues and/or misapplies the substantial evidence standard of

review. In reviewing the record for substantial evidence, we consider the evidence and

make all reasonable inferences favorable to support the verdict. "[W]hen two or more

inferences can reasonably be deduced from the facts, a reviewing court is without power

to substitute its deductions for those of the trial court. If such substantial evidence be

found, it is of no consequence that the trial court believing other evidence, or drawing

other reasonable inferences, might have reached a contrary conclusion." (Bowers v.

Bernards, supra, 150 Cal.App.3d at pp. 873-874.)

Considering the evidence in this case favorably to support the carjacking

conviction, we conclude there is substantial evidence to support the finding that

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Phinsavanh accomplished the felonious taking of the Expedition "by means of force or

fear." (§ 215, subd. (a).) After Neal caught up with the Expedition and jumped onto its

running board while it was stopped at a red light, Phinsavanh began accelerating the

vehicle when the light turned green. Apparently afraid for his safety, Neal then told

Phinsavanh: "Okay, okay, okay. Stop. Slow down, slow down. I promise I['ll] get off."

Rather than immediately stopping, Phinsavanh drove the Expedition through the

intersection in a zigzag pattern and pumped its brakes. About 20 feet past the

intersection, Neal jumped off the Expedition while it was going about 15 to 20 miles per

hour and he tumbled onto the street. Neal injured his shoulder and stomach and sustained

cuts and scrapes to his knuckles, knee, and elbow.

Based on that evidence, the jury could reasonably infer Neal was afraid during that

sequence of events. (Cf. O'Neil, supra, 56 Cal.App.4th at pp. 1128, 1134 [substantial

evidence of "force or fear" when victim jumped onto back of truck during asportation,

subsequently became afraid for his safety, and then jumped off]; People v. Wright (1996)

52 Cal.App.4th 203, 210 [constructive force for robbery includes force, not actual or

direct, exerted on a victim by operating on a fear of injury].) "So long as the perpetrator

uses the victim's fear to accomplish retention of the [vehicle], it makes no difference

whether the fear is generated by the perpetrator's specific words or actions designed to

frighten, or by the circumstances surrounding the taking itself." (Flynn, supra, 77

Cal.App.4th at p. 772.) In this case, the record supports a finding that Phinsavanh used

force and/or fear when he drove the Expedition in a zigzag pattern through the

intersection with Neal standing on its running board, and did so to prevent Neal from

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regaining it. There is substantial evidence to support the "force or fear" element of

Phinsavanh's carjacking offense.3

II

Intent of Carjacking Statute

Phinsavanh contends his carjacking conviction must be reversed because the

carjacking statute was not intended to address the circumstances in this case. In support

of his argument, he cites the following language from Lopez, supra, 31 Cal.4th at page

1057:

"The legislative history [of section 215] reveals the underlying
purpose for creating the new crime of carjacking: 'According to the
author [of the legislative bill]: [¶] There 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, italics
added.)"

3 Contrary to Phinsavanh's assertion, the trial court's statements in imposing the
lower term for his carjacking conviction do not show there is insufficient evidence to
support that conviction.

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He also cites People v. Antoine (1996) 48 Cal.App.4th 489, in which we stated: "[T]he

reason for a special statute on [carjacking], with a penalty greater than that for second

degree robbery, is that carjacking is a particularly serious crime that victimizes persons in

vulnerable settings and, because of the nature of the taking, raises a serious potential for

harm to the victim, the perpetrator and the public at large." (Id. at p. 495.)

Based on our review of the record in this case, we conclude Phinsavanh's conduct

in the circumstances of this case falls within the type of offense the Legislature intended

to address in enacting section 215. In broad daylight, Phinsavanh entered the Expedition

through an unlocked door and started it with a key left in the ignition. Its windows were

open and it was parked on the street in front of a home. By the very nature of those

circumstances, there was a significant risk the owner or possessor of the Expedition was

nearby and would attempt to retain or regain possession of it. That is what happened.

Neal pursued the stolen Expedition and attempted to regain it at the red light by jumping

on its running board and demanding it back. A confrontation occurred between

Phinsavanh and Neal. Phinsavanh drove the Expedition through and past the intersection

in a zigzag pattern and pumped its brakes. Neal jumped off and was injured. We

conclude the confrontation that occurred in this case is the type of confrontation the

Legislature intended to address in enacting section 215. Phinsavanh's conduct was of the

type that "raise[d] a serious potential for harm to the victim, the perpetrator and the

16
public at large." (People v. Antoine, supra, 48 Cal.App.4th at p. 495.) Phinsavanh was

properly convicted of a section 215 carjacking offense.4

DISPOSITION

The judgment is affirmed.

McDONALD, J.

WE CONCUR:

McCONNELL, P. J.

McINTYRE, J.

4 People v. Coleman (2007) 146 Cal.App.4th 1363, cited by Phinsavanh, is factually
and legally inapposite to this case and does not persuade us to reach a contrary
conclusion.

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