Substantial evidence supported “force” element of carjacking conviction where defendant drove car while store employee attempted to stop him. Defendant Hudson stole a car from a car dealer’s service garage by taking it without permission and driving it out the exit. One of the dealer’s employees unsuccessfully attempted to pull defendant out of the moving vehicle. A jury convicted defendant of carjacking and second degree commercial burglary. Defendant appealed, challenging the trial court’s instruction on the definition of “force.” Held: Affirmed. Carjacking is “the felonious taking of a motor vehicle in the possession of another, from his or her immediate presence . . . accomplished by means of force or fear.” (Pen. Code § 215, subd. (a).) The standard jury instruction on carjacking (CALCRIM No. 1650) does not define the force requirement and the trial court here instructed the jury that the “force” required for carjacking is “more than just the quantum necessary to accomplish the mere seizing of the property, the force must be sufficient to overcome the victim’s resistance.” (See People v. Burns (2009) 172 Cal.App.4th 1251, 1258-1259.) Hudson argued this was error because it permitted the jury to convict him without finding that he used force in excess of that necessary to take the car. (See People v. Morales (1975) 49 Cal.App.3d 134, 139.) After analyzing relevant case law, the Court of Appeal here agreed with the holding People v. Lopez (2017) 8 Cal.App.5th 1230, that a perpetrator accomplishes a carjacking when he drives the vehicle while a victim holds on or otherwise physically attempts to prevent the theft. Under Lopez, the trial court did not err in permitting the jury to convict Hudson without finding he used more force than necessary to seize the property. Moreover, the jury at least made an implied finding that Hudson used more force than necessary to accomplish the mere seizing of the vehicle and the evidence was sufficient to support this finding. [Editor’s Note: The court disagreed with the Lopez court’s assumption that a perpetrator who peacefully seized a car and then overcame the resistance of a victim by driving off at a normal rate of speed would not be guilty of carjacking under the Morales formulation of the force requirement.]

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/A147910.PDF