People v. Livingston CA2/5, B303241

Between Dec 2016 and Mar 2017 defendant Robert Livingston and an accomplice robbed multiple AutoZone stores in the Los Angeles area, following a common pattern (masks, at least one gun, demand for safe/register money).
During several robberies the robbers directed employees and customers to move from the store front into a back area near the safe, an area not visible from the front door and more confined by tall shelving.
Four customers (Jolly E., Juan F., Carlos M., Frida M.) were forced into those back areas during two robberies; they testified they were scared and could not see exits once moved.
Defendant was convicted of 18 counts of second‑degree robbery, 2 counts of attempted robbery, and 4 counts of kidnapping to commit robbery (§ 209(b)(1)/(b)(2)); jury found a principal was armed; trial court imposed 21 years 4 months determinate plus four consecutive life terms.
On appeal the court affirmed the convictions for aggravated kidnapping (§ 209) but reversed and remanded for resentencing because the trial court believed it was required to impose consecutive terms and therefore did not exercise its sentencing discretion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether forced movement of customers satisfied § 209(b)(2) (more than incidental and increased risk)	Movement from front to concealed back area over meaningful distance and into confined space increased physical and psychological risk	Movements were incidental and done only to avoid detection; did not increase risk beyond robbery	Affirmed: substantial evidence supports aggravated kidnapping convictions — movement not merely incidental and increased risk
Whether CALCRIM No. 1203 misstated law by using “increased” rather than “substantially increased” risk	CALCRIM correctly follows current statutory text and governing decisions (no “substantially” requirement)	Legislative history allegedly retained the older “substantially” standard	Held: Instruction correct; statute and controlling cases require only that movement “increases” risk, not that it “substantially” increases it
Whether sentencing must be remanded because trial court thought consecutive terms were mandatory	Trial court had discretion under § 669 to impose concurrent sentences; record shows court believed consecutive sentences were required	Defendant sought resentencing; parties agree court misunderstood its discretion	Held: Sentence reversed and remanded for resentencing so trial court may exercise informed discretion

People v. Vines, 51 Cal.4th 830 (discusses relationship between asportation and risk elements under § 209)
People v. Daniels, 71 Cal.2d 1119 (formative asportation analysis excluded movements merely incidental to robbery)
People v. Martinez, 20 Cal.4th 225 (discusses § 209(b)(2) codification and statutory meaning)
People v. Williams, 7 Cal.App.5th 644 (treatment of asportation/risk inquiry and factual application)
People v. Simmons, 233 Cal.App.4th 1458 (considerations for scope/nature/distance of movement)
People v. Robertson, 208 Cal.App.4th 965 (movement inside premises can increase risk; statutory interpretation support)
People v. Westerfield, 6 Cal.5th 632 (standard of review for sufficiency of evidence)
People v. McDaniels, 22 Cal.App.5th 420 (remand required when trial court misunderstands sentencing discretion)