Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F11223
ROBIE, J.
Defendant Zacchaeus Nathan Watie was convicted of carjacking and robbery arising out of a single incident involving several victims. On appeal, he contends the evidence is insufficient to sustain his conviction for carjacking. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In the early evening of December 26, 2005, four friends, Mohammad Mohammad, Khalid Naiem, Qadar Tariq, and Erika Olivares arrived at a park in Sacramento in Tariq’s Chevrolet Corvette and Mohammad’s Honda Accord. They parked the vehicles on a street adjacent to the park and went to sit on a park bench to smoke marijuana. After a short time, the friends were approached by two men, both with guns and wearing ski masks or beanies over their faces. The men pointed guns at the victims and demanded “everything [they] ha[d].”
The robbers took money from three of the victims and the keys to Tariq’s Corvette. The robbers then went to the Corvette; one of them drove the car away, and the other ran into a nearby neighborhood. The victims then ran to the Honda, began to follow the stolen Corvette, and called 911. The victims were able to track the Corvette for several miles until the Sacramento Police intercepted the vehicle and made a vehicle stop. The driver was defendant.
Defendant testified on his own behalf. He admitted driving the Corvette but denied being involved with the robbery. He claimed that he was leaving a friend’s house when an acquaintance by the name of “Big Homie” arrived and offered defendant the opportunity to drive the car. Shortly after defendant drove off, he noticed that police were following him. Defendant was unable to locate “Big Homie” after his arrest.
Defendant was charged with one count of carjacking, three counts of robbery, and one count of attempted robbery. It was further alleged as to each count that defendant personally used a firearm. A jury found defendant guilty as charged and the court imposed a sentence of 15 years in state prison.
DISCUSSION
Defendant’s only contention on appeal is that the evidence was insufficient to sustain his conviction for carjacking because it fails to show that the car was taken from the immediate presence of the victims. We disagree.
“‘Carjacking’ is 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.” (Pen. Code, § 215, subd. (a), italics added.) Defendant asserts that the element of a taking from the “immediate presence” was not proven because “[t]he Corvette was nowhere near the ‘immediate presence’ of the victims” because they were anywhere from 50 feet to 200 yards away from the car at the time of the taking.
Defendant contends that the language of the statute itself does not support his conviction. When this question is before the court, “[w]e begin by examining the words of the statute; if the statutory language is not ambiguous, then we presume the Legislature meant what it said, and the plain meaning of the language governs. If, however, the statutory language lacks clarity, we may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history. In such situations, we strive to select the construction that comports most closely with the Legislature’s apparent intent, with a view to promoting rather than defeating the statute’s general purposes.” (In re Travis W. (2003) 107 Cal.App.4th 368, 371.)
Defendant argues that the analysis of the legislative intent of the carjacking statute in the recent case of People v. Coleman (2007) 146 Cal.App.4th 1363 supports a reversal of his conviction. Specifically, defendant asserts that Coleman found that the Legislature “sought specifically to protect occupants of a car from being directly, forcefully confronted by a person bent on taking the car.” He argues that Coleman disapproved of the broadening of the interpretation of the immediate presence element beyond a vehicle’s occupants in the cases of People v. Medina (1995) 39 Cal.App.4th 643 (immediate presence met where victim was in a motel room and his car was parked outside, 20 feet away) and People v. Hoard (2002) 103 Cal.App.4th 599 (immediate presence met where defendant took victim’s keys from her in a store while her car was parked in store parking lot).
Defendant states: “The analysis of the Coleman case, which is clearly more faithful to the statutory language than the expansive interpretations of such cases as Hoard, dictates reversal here.” “There was here nothing close to a potential abduction, or to the thrill of yanking a person out of his car and taking off with it. As the Coleman court’s whole analysis demonstrates, the ‘from [the] person or immediate presence’ element of carjacking certainly was not proven here.” We disagree.
First, defendant misstates the distance at issue in this case. He alleges the distance is “anywhere from 50 to 600 feet,” ignoring the fact that the parties stipulated that the distance from the park bench, where the victims were sitting, to the location of the parked Corvette was 199 feet. Therefore, the issue is whether the immediate presence element was met where the victims were sitting at a park bench 199 feet from the vehicle when confronted.
Second, defendant’s reliance on Coleman is misplaced. That case dealt with the possession element of carjacking, which is not at issue here. (People v. Coleman, supra, 146 Cal.App.4th at p. 1367.) Coleman does discuss the immediate presence requirement, but it does so in the context of holding that the court could rely on robbery cases, as Hoard and Medina did, to find constructive possession upon its facts. (Coleman, at pp. 1371-1372.) However, the court in Coleman declined to follow the analysis in those cases. (Id. at p. 1372.) Coleman, therefore, does not speak to the immediate presence issue in this case except by expressly acknowledging “that a carjacking may occur where neither the possessor nor the passenger is inside or adjacent to the vehicle.” (Coleman, at p. 1373.)
Furthermore, contrary to defendant’s position, we conclude that it is proper to rely (as Medina and Hoard did) on robbery cases to construe the element of immediate presence. “The legislative history of the carjacking statute leaves no doubt that the new offense of carjacking is a direct offshoot of the crime of robbery.” (In re Travis W., supra, 107 Cal.App.4th at p. 374; see also People v. Alvarado (1999) 76 Cal.App.4th 156, 160 [concluding that the Legislature intended to treat carjacking just like robbery, with two exceptions: (1) carjacking requires an intent to either temporarily or permanently deprive the owner whereas robbery always requires an intent to permanently deprive; and (2) carjacking involves only vehicles whereas robbery may involve any type of property].) Numerous appellate courts have observed the similarities between the statutes and have turned to robbery cases when construing elements of the carjacking statute. (See In re Travis W., supra, 107 Cal.App.4th at pp. 375-376 and cited cases.)
The element of “immediate presence” at issue in this case is framed in identical language in both the robbery and carjacking statutes. “When legislation has been judicially construed and a subsequent statute on a similar subject uses identical or substantially similar language, the usual presumption is that the Legislature intended the same construction, unless a contrary intent clearly appears.” (People v. Lopez (2003) 31 Cal.4th 1051, 1060.) The legislative history of the carjacking statute does not indicate that the Legislature intended to further distinguish carjacking from robbery by requiring a closer proximity between the victim and the vehicle. (See In re Travis W., supra, 107 Cal.App.4th at pp. 374-376.) We presume, therefore, that the Legislature intended to adopt the construction given those same words in the robbery context when it created the carjacking statute.
Robbery is defined as “taking of personal property in the possession of another, from his person or immediate presence, and against his will . . . .” (Pen. Code, § 211, italics added.) Carjacking is defined as “taking of motor vehicle in possession of another, from his or her person or immediate presence, against his or her will . . . .” (Pen. Code, § 215, subd. (a), italics added.)
In 1990, prior to the enactment of the carjacking statute, the California Supreme Court discussed “immediate presence” as an element of robbery and adopted a definition of that term. (People v. Hayes (1990) 52 Cal.3d 577, 626.) The court stated that “‘“[a] thing is in the [immediate] presence of a person, in respect to robbery, which is so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it.”’” (Id. at pp. 626-627.) The court further stated that the area includes that “‘“within which the victim could reasonably be expected to exercise some physical control over [her] property.”’” (Id. at p. 627.)
Thus, relying on this definition, a vehicle is in the immediate presence of a person when the vehicle is so within his or her reach, inspection, observation or control, that he or she could, if not overcome by violence or prevented by fear, retain his or her possession of it. This is also substantively equivalent to the instruction given to the jury for immediate presence here, which defendant does not challenge.
The jury was instructed with CALCRIM No. 1650, in pertinent part, as follows: “A vehicle is within a person’s immediate presence if it is sufficiently within his or her control so that he or she could keep possession of it if not prevented by force or fear.”
Given this definition, we review the sufficiency of evidence by viewing the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found defendant guilty beyond a reasonable doubt. (People v. Bolin (1998) 18 Cal.4th 297, 331.) In this case, the victims were sitting outside on a bench 199 feet from where the vehicle was parked on the road alongside the park. It was close enough that the victims could see the car. Qadar Tariq was in physical control of the car keys until forced to relinquish them at gunpoint. After the Corvette drove off, the victims were able to run to the other vehicle that was parked near the Corvette, quickly enough to follow the Corvette.
Under these circumstances, a reasonable finder of fact could conclude that Tariq was in an area in which he could have exercised control over the vehicle had he not been overcome by violence or prevented by fear. Accordingly, we conclude that, although the victim was not in the vehicle while it was being taken, the car was not so distant as to be beyond the victim’s control, and therefore, the car was in the victim’s immediate presence at the time the force was used.
Several robbery cases construing immediate presence, prior to the adoption of the carjacking statute, further support this conclusion. For example, in People v. Webster (1991) 54 Cal.3d 411, 440 “immediate presence” was found where the victim was a quarter mile away from his car when he was killed, his keys were taken from him, and then his car was taken. In People v. Hayes, supra, 52 Cal.3d at pages 628-629 “immediate presence” was found where the victim was assaulted and killed 107 feet from a motel office where the property was subsequently taken. In People v. Bauer (1966) 241 Cal.App.2d 632, 635-636, 642 immediate presence was found where the victim was killed inside her apartment, her keys stolen, and then her car taken from an outside parking location.
We are also not convinced by defendant’s argument that, despite the interpretation of immediate presence in California case law, we should construe the element in defendant’s favor under the “‘rule of lenity’” and therefore reverse his conviction. (See People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 312-313.) In light of the language and purpose of the statute, immediate presence is not reasonably susceptible to two constructions. As discussed above, a definition of immediate presence was adopted by the California Supreme Court in the robbery context prior to the enactment of the carjacking statute. Defendant fails to convince us why we should not apply that definition.
Based on the foregoing observations that the Legislature intended the element of immediate presence be interpreted the same in the carjacking and robbery statutes, and the application of that definition in both robbery and carjacking cases, we conclude that there was sufficient evidence that the Corvette was taken from the victim’s immediate presence.
DISPOSITION
The judgment is affirmed.
We concur: DAVIS, Acting P.J., BUTZ, J.