California Court of Appeal Oct 20, 2015 No. D066545Unpublished
Filed 10/20/15 P. v. Walker CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D066545
Plaintiff and Respondent,
v. (Super. Ct. No. SCE339870)
OTIS CONWELL WALKER III,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Lantz
Lewis, Judge. Affirmed.
Law Offices of Russell S. Babcock and Russell S. Babcock for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler and Julie L. Garland,
Assistant Attorneys General, A. Natasha Cortina and Parag Agrawal, Deputy Attorneys
General for Plaintiff and Respondent.
A jury convicted Otis Conwell Walker, III of first degree robbery (Pen. Code,1
suspects did not establish absence of fear].) Here, the evidence additionally showed
Woods himself fled from the area and called police after he demanded that Walker leave
his car. The jury reasonably concluded that Woods remained fearful throughout these
events, and that Woods's demand that Walker get out of his car did not negate his fear.
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IV. Substantial Evidence Supports the Intent Element of Carjacking
Walker also contends that no evidence established his intent to deprive Woods of
his car. He asserts that Woods remained in control of his car at all times and allowed
Walker to drive it without offering any verbal or physical resistance. Walker argues he
would not have brought Woods with him if he intended to take the car, and Woods
exercised his dominion and control over the car when he told Walker to get out. The
People respond that the evidence shows Walker had the requisite intent when he drove
Woods's car against Woods's will to the ATM, a destination of Walker's choosing.
We agree the record contains substantial evidence that Walker intended to
temporarily dispossess Woods of his car, which intent existed while Woods was still
frightened and intimidated from Walker's prior threats and actions. A defendant forms
the requisite intent if he commits a crime against the victim and later takes the victim's
vehicle using the victim's fear of future harm. (See People v. Gomez, supra, 192
Cal.App.4th at pp. 622-623.)
In People v. Gomez, the Court of Appeal addressed the defendant's contention that
there was no evidence he intended to deprive the victim of his truck at the same time as
he used force or fear against the victim. (People v. Gomez, supra, 192 Cal.App.4th at
pp. 618, 619.) There, four men exited a car driven by the defendant and approached the
victim as he walked to his apartment. (Id. at p. 614.) The four men repeatedly hit the
victim, and the defendant twice threw a concrete block or brick at him. (Ibid.) One of
the men obtained the keys to the victim's truck during the attack, but the group ran to
their car and left. (Id. at pp. 614, 619-620.) After they drove away, one of the men said,
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"[H]ey, I got [the victim's] car keys" and told the defendant to turn back. (Id. at p. 618.)
The group returned 10 to 20 minutes after the attack. (Id. at pp. 614, 615.) The victim
stayed in his apartment but made eye contact with two of the men as they exited the
defendant's car. (Id. at pp. 614, 615.) After failing to enter the apartment, the two men
approached the victim's truck, entered it, and drove off. (Id. at pp. 614, 615, 618.) The
victim stayed inside because he was afraid the two men might assault his family, and he
wanted to be there to protect them. (Id. at pp. 614, 615, 623.)
The Court of Appeal pointed out there was no evidence that the defendant had
formed any intent to deprive the victim of his truck during the physical attack. (People v.
Gomez, supra, 192 Cal.App.4th at p. 619.) It was undisputed that one of the men took
possession of the victim's car keys during the assault, but they took no action on the truck
during or immediately after the assault. (Id. at p. 622.) "Just as the act of taking a car by
one who steals the keys can imply that the key thief intended to steal the car when he
took the keys, the failure to take, mention, ask about, or look for the vehicle when the
keys are taken implies the absence of an intent to take the car." (Ibid.) However, the
appellate court held the evidence supported the conclusion that the attackers intended to
take the truck upon their return to the victim's apartment, and that they used fear at that
time to accomplish the taking. (Id. at p. 619.) The defendant knew his associate intended
to take the truck when he announced that he had the car keys and told the defendant to
turn back. (Id. at pp. 618, 623.) The associates used the victim's fear to take the truck
because the victim was too frightened to stop them and stayed inside to protect his
family. (Id. at pp. 619, 622, 623.)
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The rationale in Gomez extends to this case. As Gomez points out, "the act of
taking a car by one who steals the keys can imply that the key thief intended to steal the
car when he took the keys . . . ." (People v. Gomez, supra, 192 Cal.App.4th at p. 622.)
Similarly, here, Walker took Woods's car keys while Woods remained in the bathroom of
his hotel room, cowed by Walker's threats of physical harm. He then kept Woods's keys
after he accompanied Woods out of the room, followed Woods out to his car, then
entered and drove the car, all while Woods remained in fear. There was no break in
Walker's contact with Woods during the 25-minute period from Walker taking Woods's
keys to Woods fleeing his car and dialing 911, unlike in Gomez, where the defendant's
group took the victim's keys but then left the scene, reflecting no intent during their
assault to take the victim's car. Sufficient evidence thus supports the jury's finding that
Walker possessed the requisite intent to permanently or temporarily deprive Woods of his
car by use of fear.
Walker suggests the evidence shows he did not intend to take Woods's car because
he brought Woods with him; he asserts Woods "was all times with his vehicle and
continued to exercise dominion and control over his vehicle" and thus no carjacking
could have occurred. He maintains these facts distinguish his case from People v. Duran,
supra, 88 Cal.App.4th at p. 1377.2 These arguments appear to conflate the taking
2 In Duran, the defendant crashed his car following a robbery and an attempted robbery. (People v. Duran, supra, 88 Cal.App.4th at p. 1374.) The victim, who was driving a car with his wife and infant son, witnessed the accident and pulled over to call for help. (Ibid.) The defendant pulled a gun on the victim, forced him back into his car, and ordered him to drive. (Ibid.) He then entered the backseat, pointed a gun at the 13
element of carjacking with the intent element. To the extent Walker relies on Duran to
challenge the evidence of his dominion and control over Woods's vehicle, it does not
assist him. Walker plainly exerted dominion and control over the car by retaining the car
keys and telling Woods he was going to drive them both. In Duran, the defendant
exercised dominion and control over the car by threatening the victim and his family and
ordering him to drive. A fortiori, evidence that a defendant took a victim's keys through
fear, remained beside the victim, told the victim "I'll drive you," then started and
proceeded to drive the car, as occurred here, is manifest evidence of dominion and
control.
Woods's presence in the vehicle does not negate Walker's intent to deprive or
exercise of dominion and control. A defendant completes a carjacking after obtaining
dominion over the property, "even if the owner still has some measure of nominal
control." (In re Travis W., supra, 107 Cal.App.4th at p. 376, citing People v. Duran,
supra, 88 Cal.App.4th at p. 1377; People v. Gray (1998) 66 Cal.App.4th 973, 984-985;
People v. Alvarado, supra, 76 Cal.App.4th at pp. 160-161.) Dispossession occurs "not
only when the perpetrator physically forces the victim out of the vehicle, but also when
infant's head, and threatened to kill them all. (Ibid.) He dictated the speed and direction to the victim for around 20 minutes until he asked to be dropped off. (Id. at p. 1375.) The Duran court held that a felonious taking for purposes of carjacking can occur when the victim remains in the vehicle. (Id. at pp. 1375-1376.) It concluded a taking had occurred in that case when the defendant imposed his dominion and control over the car by ordering the victim to drive, and victim responded by actually driving, provided the asportation or "carrying away" element. (Id. at p. 1377.) We are unsure of Duran's relevance to the intent element of carjacking at issue here, other than to say the victim's presence in the vehicle plainly did not negate the intent element as the court found a carjacking had occurred. The intent element, however, was not the focus of Duran's holding. 14
the victim remains in the car and the defendant exercises dominion and control over the
car by force or fear." (People v. Gray, 66 Cal.App.4th at p. 985.)
That the facts of this case differ from the traditional carjacking scenario does not
affect our analysis, as long as the statutory elements of a carjacking are met. (See People
v. Johnson, supra, 60 Cal.4th at p. 990 ["This might not be a classic carjacking such as
when the perpetrator approaches a car stopped at a red light and, at gunpoint, forces the
driver and any passengers out, then drives the car away. But all of the statutory elements
of carjacking are met"]; see also People v. Hoard (2002) 103 Cal.App.4th 599, 608, 609,
fn. 44 [carjacking conviction upheld where defendant demanded keys to jewelry cases
and victim's car at gunpoint, then drove off with the car while both victims were
restrained inside the store], disagreed with on another ground by People v. Coleman
(2007) 146 Cal.App.4th 1363, 1373; People v. O'Neil (1997) 56 Cal.App.4th 1126, 1132-
1133 [victim jumped in the bed of his truck as the defendant drove off with his vehicle
but later relinquished control out of fear]; People v. Medina (1995) 39 Cal.App.4th 643,
651-652 [immediate presence element of carjacking satisfied even though an accomplice
had lured the victim away from his car by trick or device].) Such is the case here.
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DISPOSITION
The judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
McINTYRE, Acting P. J.
IRION, J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that sufficient evidence supported the defendant's carjacking conviction, finding that the victim's fear of the defendant persisted throughout the encounter and that the defendant exercised the requisite dominion and control over the vehicle.
Issues
Whether there was sufficient evidence to support the element of force or fear in a carjacking conviction.
Whether there was sufficient evidence to support the element of intent to deprive the owner of a vehicle in a carjacking conviction.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Sufficient evidence thus supports the jury's finding that Walker possessed the requisite intent to permanently or temporarily deprive Woods of his car by use of fear.”