In the September 30 ruling of People v. Barraza, authored by California Court of Appeal Justice Richard Huffman and joined by Justices William Dato and Truc Do:
[1.] Alberto Jorge Barraza seized portions of Nikko G.’s hair with a blade as Nikko tried to push him back. Barraza also stabbed Nikko in the leg, lacerating an artery and causing his death. A jury found Barraza guilty of first-degree felony murder based on the underlying felony of robbery, as well as assault with a deadly weapon. Barraza challenges the verdict on the ground that the evidence does not prove a robbery or an attempted robbery, thereby undermining the felony-murder conviction.
This appeal raises a question of first impression—whether hair that is still growing and attached to the victim constitutes “personal property” for purposes of robbery. We hold that hair that remains grown on a person’s head is part of the body, not property. Accordingly, forcibly removing it does not satisfy the legally required element of robbery.
Nikko had formed a friendship with Barraza and two of Barraza’s acquaintances—John W. and John’s mother, Lee Ann W. (collectively, the Ws). Nikko, a member of a Native American tribe, took considerable pride in his long hair, which hung to his waist. He cherished his mane and had discussed with John his plan to sell it to a “cancer company that made wigs.”
Early in 2022, Barraza and his companions concluded Nikko had stolen from them and resolved to cut his hair as a punitive measure. John referred to Nikko’s hair as an “asset”—the “bank account” perched atop his head. Another acquaintance described Nikko’s hair as his “prized possession,” noting that he was “always in his hair or always fixing his hair.” John even warned 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. While Nikko slept in their friend’s car, they drove to Barraza’s apartment and left him resting in the vehicle as they went inside to visit Barraza and the Ws. Learning that Nikko remained outside, Barraza stepped outside with a knife to confront him.
Barraza opened the car door, grabbed Nikko’s hair which was tied in a bun, and began to cut it off with the knife. He intended to remove the entire bun, but Nikko woke, fought back—kicking Barraza and flailing his arms while crying for him to stop, crying “Not my hair.” Barraza responded by punching Nikko and then stabbing him in the leg. 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. He admitted to scuffling with Nikko and grabbing his hair because he knew “how much [Nikko] liked [his] hair” but denied injuring him. He claimed he did not see any blood and suggested that if he had stabbed Nikko, the amount of bleeding would have been obvious. He later acknowledged possessing a knife and attempting to cut all of Nikko’s hair but again denied stabbing him. At the end of the interview, he drafted an “apology” letter to Nikko’s family, characterizing the stabbing as an “accident” and asserting that his aim was only to “hurt” and “humiliate” him….
[2.] Human hair, once severed from the scalp, can be treated as a commodity that may be bought, sold, or given away … The question remains whether hair that is still growing and attached to a person’s head qualifies as “personal property” for robbery purposes. Our independent research did not uncover any state or federal case directly addressing this issue. Consequently, we examine the statutory definition of robbery.
Section 211 defines: “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.” Under the common law tradition, robbery is basically larceny enhanced by the facts that the property is taken from the person or in their immediate presence and is achieved through the use of force or by inducing fear of injury in the victim.
Robbery requires “personal property,” which presupposes property that is detachable from the person themselves—think purses, necklaces, or rings—and therefore cannot be a part of the person. Hair that is still attached to the head is not a good or chattel; it remains an anatomical part of the body until it is cut away. If someone forcibly removes hair or severs part of the scalp during a taking, the conduct falls under bodily-protecting offenses such as battery (§ 242) or mayhem (§ 203). If a weapon is used while holding the head to remove hair, it could constitute assault with a deadly weapon (§ 245). Hence, cutting away attached hair aligns with protections for the body rather than proprietary claims, supporting the view that attached hair should be treated as part of the person. Further, Section 211’s language about taking property “from the [person]” presumes property distinct from the person; however, attached hair is intrinsically part of the body. While California authority may not expressly declare that body parts like hair cannot be personal property, Section 211 establishes robbery as a possession-based crime against the person that requires personal property…
Moreover, legally protected interests in human tissues primarily arise from specific statutory regimes or other narrow doctrines rather than from traditional common-law ownership concepts.
[3.] The People contend that drawing a line between hair removed with the victim’s consent before a theft and hair forcibly removed during the theft would be illogical. They offer the example of a person who, while holding a bag containing previously removed hair, has it taken by force—such an act would constitute robbery. In Barraza’s view, however, if a perpetrator physically restrains a person and forcibly severs their hair to seize or destroy it, the act would be criminal only as assault or battery. They argue this approach yields an unjust outcome by treating the former situation as more grievous even though the latter presents the most severe criminal conduct…
To the extent this creates arbitrary results, the Legislature could rectify the issue by enacting a statute declaring that hair (or bodily material) severed from a person in the same act as its taking shall be deemed personal property in the possession of that person just as if it had been severed previously. Such legislation would remove the timing distinction without forcing the existing “personal property” element to treat attached hair as a distinct object separate from the body…
Indeed, if the People have flagged a line-drawing inconsistency, it largely reflects the scope of section 189 and the nature of the felony-murder doctrine. The Legislature has limited first-degree felony murder to certain enumerated felonies, including robbery, but not including assault with a deadly weapon. We simply determine that the offense committed here was the latter, not the former.
Thus, the taking of hair that remains attached to the victim’s head cannot fulfill the “personal property” element of robbery. Since the evidence does not establish robbery or attempted robbery, it cannot support a felony-murder conviction predicated on that underlying felony. Consequently, Barraza’s conviction for first-degree felony murder must be overturned.
I interpret the central issue as hinging on whether there was sufficient evidence that Barraza intended to kill Nikko, or even acted with depraved indifference. That’s why the prosecution pursued a felony-murder theory, which does not require proof of intent or extreme recklessness to kill, but only that a death occurred during the course of a qualifying felony such as robbery.
Marcia R. Clark (arguably the same prosecutor who led the O.J. Simpson case) represents the defendant.
