Is Hair on Your Head “Personal Property” for Purposes of Robbery Law?

From the Sept. 30 decision in People v. Barraza by California Court of Appeal Justice Richard Huffman, joined by Justices William Dato and Truc Do:

[1.] 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 [1] first degree felony murder, with the underlying felony being robbery and [2] assault with a deadly weapon. 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. 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.

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. 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….

[2.] Human hair, once severed from the head, qualifies as a good or chattel which can be sold, bought, or given away …. 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.” Under the common law, robbery is larceny with the aggravating circumstances that “the property is taken from the person or presence of another” and “is accomplished by the use of force or by putting the victim in fear of injury.”

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….

[3.] [T]he 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….

To the extent this produces an arbitrary result, the Legislature could 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 … without straining the existing “personal property” element over whether attached hair is a “thing” separate from the body….

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.

I take it the issue was central to the case because there wasn’t enough evidence that Barraza intended to kill Nikko, or was even guilty of “depraved heart murder,” which is to say grossly reckless homicide. That’s why the prosecution proceeded on a felony murder theory, which doesn’t require a showing of purpose or gross recklessness as to killing, but just a death that is proximately caused by conduct during a felony such as robbery.

Marcia R. Clark (apparently the same Marcia Clark who was the lead prosecutor in the O.J. trial) represents defendant.