Full Opinion

Filed 9/30/26 CERTIFIED FOR PUBLICATION COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, D085759 Plaintiff and Respondent, (Super. Ct. No. SCD294035) v. ALBERTO JORGE BARRAZA, Defendant and Appellant. APPEAL from a judgment of the Superior Court of San Diego County, Evan P. Kirvin, Judge. Reversed. Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General, Seth Friedman and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent. Alberto Jorge Barraza cut off parts of Nikko G.’s hair with a knife as Nikko tried to fight him off. Barraza stabbed Nikko in the leg, severing an artery and killing him. A jury convicted Barraza of first degree felony murder, with the underlying felony being robbery (Pen. Code,1 § 187, subd. (a), count 1) and assault with a deadly weapon (§ 245, subd. (a)(1), count 2). Barraza appeals, contending insufficient evidence supported his first degree felony murder conviction because the evidence did not establish a robbery or attempted robbery. This appeal presents a question of first impression—whether growing human hair, still attached to the victim’s body, constitutes “personal property” for purposes of robbery.2 (§ 211.) We conclude that growing human hair that is still attached to a person’s head is part of the human body and not personal property. Accordingly, removing it by force does not meet the legal definition of robbery. I. FACTUAL AND PROCEDURAL BACKGROUND Nikko became acquainted with Barraza and two of Barraza’s friends— John W., and John’s mother, Lee Ann W. (together the Ws). Nikko was a member of an Indian tribe who was very proud of his Native American heritage. He had long hair that went down to his waist. Nikko took great pride in his hair and had spoken to John about his plan to sell it to a “cancer company that made wigs.” In early 2022, Barraza and his friends turned against Nikko after concluding he had stolen from them. Barraza and John discussed cutting off Nikko’s hair to teach him a “lesson.” Knowing of Nikko’s intention to sell his hair, John referred to it as an “asset”—the “bank account” on top of his head. 1 Undesignated statutory references are to the Penal Code. 2 Although Barraza argued in the trial court that human hair does not constitute personal property, he did not renew that argument on appeal and forfeited it. (People ex rel. Reisig v. Acuna (2017) 9 Cal.App.5th 1, 25.) To avoid a potential claim of ineffective assistance of appellate counsel, we requested and received supplemental briefing on this issue. 2 Another acquaintance similarly regarded Nikko’s hair as his “prized possession” recalling, “[h]e was always in his hair or always fixing his hair.” John went so far as to warn Nikko directly, “don’t be surprised if that—that hair gets cut off” “one of these days.” On March 26, 2022, Nikko was spending time with two mutual friends of Barraza and John. Nikko was asleep in his friend’s car when they drove to Barraza’s apartment. The friends left Nikko sleeping in the car as they went inside to visit Barraza and the Ws. Upon learning that Nikko was outside in the car, Barraza went outside with a knife to confront him. Barraza opened the car door, grabbed Nikko’s hair, which was in a bun, and began cutting it off with the knife. He wanted to cut the entire bun off but Nikko woke up and fought back—kicking Barraza, flailing his arms and screaming for Barraza to stop, crying “ ‘Not my hair.’ ” Barraza responded by punching Nikko and then stabbed him in the leg with the knife. The knife penetrated approximately four inches into the back of Nikko’s leg, severing the popliteal artery and causing his death. During a police interview, Barraza gave inconsistent accounts of the incident. He admitted to fighting with Nikko and grabbing his hair because he knew “how much [Nikko] like[d] his hair” but denied injuring him. He knew two major arteries were behind the leg, maintained he did not see any blood, and claimed that, had he stabbed Nikko, the amount of blood loss would have made it obvious. He later acknowledged having a knife and attempting to cut off all Nikko’s hair but denied that he had stabbed Nikko. At the conclusion of the interview, he wrote an “apology” letter to Nikko’s family, characterizing the stabbing as an “accident” and claiming he had only intended to “hurt” and “humiliate” him. 3 A jury convicted Barraza of first degree felony murder (count 1) and assault with a deadly weapon (count 2). As to count 1, the jury found true that Barraza personally used a deadly weapon. (§ 12022, subd. (b)(1).) As to count 2, it found true that Barraza personally inflicted great bodily injury (§ 12022.7, subd. (a)) and personally used a deadly weapon (§1192.7, subd. (c)(23)). The trial court sentenced him to 25 years to life in prison for the murder conviction, in addition to a consecutive one-year term for the deadly weapon enhancement. The court stayed the sentence for count 2 and the related allegations. II. DISCUSSION “ ‘Property’ includes both real and personal property.” (§ 7, subd. (b)(10).) “Personal property” includes “money, goods, chattels, things in action, and evidences of debt.” (§ 7, subd. (b)(12); Civ. Code, § 14, subd. (b)(3), [same].) Human hair, once severed from the head, qualifies as a good or chattel which can be sold, bought, or given away—a point Barraza does not dispute and one in which we agree. The question is whether human hair that is still growing and attached to a person’s head constitutes “personal property” for purposes of robbery. Our independent research has revealed no state or federal case addressing this issue. Thus, we turn to the legal definition of robbery. Section 211 provides: “Robbery is 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.” (Italics added.) Under the common law, robbery is larceny with the aggravating circumstances that “the property is taken from the person or presence of 4 another” and “is accomplished by the use of force or by putting the victim in fear of injury.” (People v. Gomez (2008) 43 Cal.4th 249, 254, fn. 2.) Robbery requires “personal property,” which necessarily implies “property” such as a purse, necklace or a ring, meaning it cannot be part of the person. Attached hair is not a good or chattel; rather, it is anatomically part of a person’s body until it is severed. If a defendant forcibly cuts off a person’s hair or takes part of the person’s scalp in the process, this conduct fits within offenses protecting bodily integrity, such as battery (§ 242) or mayhem (§ 203). If a pair of scissors, a knife, or a razor is held to the person’s head to cut the hair this could qualify as assault with a deadly weapon. (§ 245.) Thus, severing attached hair fits within offenses protecting bodily integrity rather than proprietary interests and supports the proposition that attached hair should be legally viewed as part of the person. Additionally, section 211 speaks of taking property “from [the] person.” This language presumes the property is distinct from the person. Attached hair, however, is part of the person’s body. Thus, while there is no California authority stating body parts such as hair cannot be personal property, section 211 establishes that robbery is a possession-based crime against the person which requires personal property. Additionally, legally protected interests in human tissues arise primarily from specialized statutory schemes or other limited doctrines rather than traditional common law ownership. In Moore v. Regents of University of California (1990) 51 Cal.3d 120, doctors took blood, bone marrow and other bodily substances from plaintiff. (Id. at p. 126.) Among other things, plaintiff sued for conversion. (Id. at p. 125.) The Supreme Court held that a person does not retain a sufficient interest in excised cells to support a cause of action for conversion, noting several laws governing 5 things such as human tissues and blood as “sui generis, regulating their disposition to achieve policy goals rather than abandoning them to the general law of personal property.” (Id. at p. 137.) From this authority it can be said that California generally declines to treat human body parts as ordinary personal property and instead recognizes that any legally protected interests in human tissues arise primarily from specialized statutory schemes or other limited doctrines rather than traditional common law ownership. Citing People v. Dillon3 (1983) 34 Cal.3d 441 (Dillon), the People contend it makes little sense to draw a distinction between hair that is willingly removed from the body by the victim prior to the theft and hair that is forcibly removed from the victim’s body by the perpetrator at the time of the theft. They use the example of a person holding a bag of hair that had been previously removed from their body when a perpetrator forcibly takes that bag from them would constitute a robbery. In contrast, under Barraza’s interpretation, if a perpetrator physically restrains a person and forcibly cuts off their hair to take or destroy it, the perpetrator could only be convicted of assault or battery. They argue such an approach creates an unjust result by treating the former situation more harshly than the latter situation even though the latter situation presents the more egregious criminal act. In Dillon, supra, 34 Cal.3d 441, defendant was convicted of attempted robbery based on evidence he and others armed themselves and invaded a field of growing marijuana plants intending to steal the plants after overpowering the men guarding the crop. (Id. at pp. 451–452.) The Supreme Court rejected defendant’s argument that growing crops could not be the subject of robbery or attempted robbery because at common law crops 3 Dillon abrogated by statute on a different ground as stated in People v. Chun (2009) 45 Cal.4th 1172, 1186. 6 wrongfully severed from real estate and carried away in one continuous act was not larceny. The court noted that the Legislature adopted section 495 redefining detachable crops and fixtures as personal property subject to larceny “in the same manner as if the thing had been severed by another person at some previous time.” (Dillon, at p. 458.) Section 495 thus eliminated an artificially created common law distinction maintained by judges reluctant to impose the death penalty for felony larceny on persons who pilfered growing food or wood for fuel.4 (Dillon, at p. 458.) The Legislature also enacted companion statutes which graded the offense by value. (§§ 487b, 487c; Dillon, at p. 458.) The Dillon court construed the legislative history as expressing the Legislature’s disapproval of the old common law rule and, on that basis, extended the same fix to robbery even though section 495 by its terms addressed larceny only—reasoning that the Legislature could not plausibly have meant to abolish the absurd rule for thieves while preserving it to exonerate robbers. (Dillon, at pp. 459–462.) The People’s argument presents a similar structural defect—whether the “personal property” element of robbery is satisfied turns on the arbitrary timing of severance relative to the taking. A person taking already cut hair by force commits a robbery because cut hair is a chattel. However, a person who forcibly cuts a person’s hair and takes it in one continuous act commits a battery because no “personal property” exists yet to be the subject of a taking. To the extent this produces an arbitrary result, the Legislature could 4 At common law, only theft of already severed produce counted as larceny, because standing crops were real property, not personal property, until severed. (Dillon, supra, 34 Cal.3d at pp. 456–458.) Thus, a thief who cut and took a crop in one continuous act committed a trespass, while a thief who merely picked up crops someone else had already cut was guilty of larceny. 7 remediate the issue by adding a statute declaring that hair (or, more broadly, bodily material) severed from a person in the course of the same act by which it is taken is deemed personal property in the possession of that person in the same manner as if it had been severed at some previous time. Such legislation would collapse the timing distinction and allow courts to reach the same result Dillon reached for crops without straining the existing “personal property” element over whether attached hair is a “thing” separate from the body. Courts do not enact laws. The Dillon court extended the crop severance “fix” to robbery because the Legislature had already expressed through sections 495, 487b and 487c, a policy judgment against the common law rule and concluded the Legislature could not have intended that judgment to stop short of robbery. (Dillon, supra, 34 Cal.3d at pp. 461–462.) Here, by contrast, no statute deems hair or other bodily material severed and taken5 in one continuous act to be “personal property” in the way section 495 does for crops or fixtures. Without such legislation, we cannot extend the personal property element of section 211 to reach hair that has not yet been severed from the person at the time force is applied. Unless and until the Legislature enacts such legislation, courts are confined to applying section 211 as written. 5 For purposes of analysis, we assume Barraza took the hair although the evidence is to the contrary. “ ‘The taking element of robbery has two necessary elements, gaining possession of the victim’s property and asporting or carrying away the loot.’ ” (People v. Hill (1998) 17 Cal.4th 800, 852.) Accordingly, Barraza’s act of severing the hair does not equal asportation. Although the movement necessary to constitute asportation “may be short” (CALCRIM No. 1600), the record indicates there was none. Barraza left the hair with Nikko on the front seat of the car and walked away. 8 Indeed, if the People have identified a line-drawing incongruity, it is largely a function of the scope of section 189 and the nature of the felony murder rule. The Legislature has chosen to limit application of first degree felony murder to certain enumerated felonies, including robbery but not including assault with a deadly weapon. We merely decide that the crime committed by the defendant here was the latter and not the former. In conclusion, the taking of growing hair still attached to the victim’s head cannot supply the personal property element of robbery. Because the evidence does not establish a robbery or attempted robbery, it cannot support felony murder based on that felony. Accordingly, Barraza’s first degree felony murder conviction must be reversed. 9 III. DISPOSITION The judgment is reversed. HUFFMAN, J.* WE CONCUR: DATO, Acting P. J. DO, J. * Retired Associate Justice of the Court of Appeal, Fourth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 10