People v. Vargas

* Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of the heading for part III.A and parts III.B and III.C.

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 458

I. INTRODUCTION Defendant, Robert Vargas, appeals from his convictions for: two counts of carjacking (Pen. Code,1 § 215, subd. (a)); two counts of second-degree robbery (§ 211); and a single count of assault with a deadly weapon. (§ 245, subd. (a)(1).) The jury also found that defendant personally used a deadly and dangerous weapon in the commission of the two carjackings and second-degree robberies. (§12022, subd. (b)(1).) In the published portion of this opinion, we address the question of whether defendant may be convicted of the completed crime of carjacking when he was unable to make the car move after gaining possession of it. Our resolution of this question depends upon the meaning of the term "felonious taking" in section 215, subdivision (a). We conclude there is no substantial evidence of any asportation or movement of the automobile defendant tried to carjack. We therefore reduce his conviction to that of attempted carjacking. *Page 459 II. FACTUAL BACKGROUND We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Osband (1996)13 Cal.4th 622, 690; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) On March 1, 2000, defendant pointed a .45 caliber handgun at Gabriel Herrera. His girlfriend, Indira Montiel, accompanied Mr. Herrera. They were accosted as they were getting out of Mr. Herrera's car. Defendant demanded Mr. Herrera's keys and wallet. Defendant got inside the car, manipulated the stick shift, and drove out of the parking structure. Mr. Herrera had approximately $30 to $40 in his wallet. Mr. Herrera also had approximately $200 in the ashtray of his car, which his mother had given him to buy a new tire. In addition, Mr. Herrera had a baby gift, which Ms. Montiel had purchased for his nephew. Mr. Herrera had just purchased a $1,500 stereo system for the car. When the car was returned to Mr. Herrera, none of those items was inside.

On March 4, 2000, Roberto Velasquez, Martina Saavedra, and Yolanda Ramirez were sitting in a parked rental car. Mr. Velasquez was in the driver's seat of the rented automobile. Defendant walked past the car. Defendant then ran back and pointed a gun at Mr. Velasquez. Mr. Velasquez testified, "[H]e pointed a gun [at] me and he told me, `Get out of the car.'" Defendant then said, "`Give me your money, your wallet.'" The keys were in the ignition of the car. At trial, Ms. Saavedra testified she believed the engine was still running. Mr. Velasquez testified the engine was not running when he got out of the car. Ms. Saavedra left her wallet in the car. Ms. Saavedra, Ms. Ramirez, and Mr. Velasquez got out of the car and walked away to call the police. When defendant got into the rented car, the engine was no longer running. Defendant attempted to start the car. Defendant moved the key around in the ignition causing a "grinding" noise and manipulated the stick shift back and forth. The rented car did not move. Defendant then got out of the car and quickly walked away.