*1 Dist., Div. Two. Nov. E030278. Fourth 2002.] [No. PEOPLE, Respondent,
THE Plaintiff HOARD, Defendant and Appellant. VICTOR MAURICE *3 Counsel for Defendant Olsen, the Court of Appeal, E. under
Nancy by appointment and Appellant. Anderson, General, Chief Assistant Attor- Robert R.
Bill Lockyer, Attorney General, L. General, Schons, Rhonda Attorney Assistant Gary W. ney General, Mandel, for Deputy Attorneys and Melissa Cartwright-Ladendorf Plaintiff and Respondent.
Opinion
GAUT, J.
1. Introduction room, robbed a back defendant female confining employees
After two car in the $40,000 and jewelry escaped worth of a Temecula store jewelry of armed robbery, defendant A convicted of one employees. allegations. and various related special carjacking, aggravated kidnapping, strike con- three addition, previous defendant had incurred court found sentence of a total indeterminate The court defendant to victions. sentenced to life. 45 years for kidnapping the two convictions challenging
Defendant appeals, evi- insufficiency for carjacking the conviction for commit merely the victims was movement of hold that defendant’s dence. We to them. We the risk of harm and did not increase incidental to the robbery the conviction but affirm aggravated kidnapping reverse the convictions for the more typical from it differs somewhat though even carjacking near her car. in or a victim is accosted scenario where carjacking
2. Facts Salem and Sarah Gibeson were Mart. The Joy Jewelry employed owner, Hatter, Roukan had twice from defendant. purchased jewelry
Defendant entered the store after it one afternoon. shortly Sunday opened He and ordered the women to him the to the displayed gun give key cases. He also demanded the to Gibeson’s car. He directed the jewelry keys back, women into the office at the tied their ankles and wrists with duct tape, their mouths. Then he began from cases. When taped taking jewelry store, customers entered the he told them it was closed for maintenance or performing inventory.
Gibeson tried to call 911 on her cellular but she phone dropped phone. office, women, Defendant returned to the threatened the and pulled *4 that, office out of the wall. After he left. After other phone some customers women, release the Gibeson her car had been taken. helped saw to Commit Kidnapping Robbery that, Defendant the argues even evidence most to viewing favorably the the element judgment,1 evidence insufficient show of asporta 209, tion Penal Code section subdivision and to required by (d),2 prove instance, in this aggravated to commit kidnapping, kidnapping robbery. Section “if the merely movement of victim is that applies beyond of, incidental commission and increases risk of harm to victim in, and over above that the intended of- necessarily underlying present fense.”3 More the movement must be more than incidental and must simply, increase the inherent risk of harm. test was derived from the California Court case two-pronged Daniels,4 in which two defendants committed a number of rapes. instance,
In each and the court moved victims short distances rapists deemed the movements to be incidental: had no interest “[Defendants their their intent victims to move for the sake of was to forcing just moving; commit robberies and and the brief movements which rapes, they compelled follows, their It a victims to were to facilitate such crimes. perform solely 1, 317, Rayford (1994) 1People v. 9 Cal.4th 1369]. statutory 2All references are to the Penal Code. 209, (b)(2). 3Section subdivision 225, v. Daniels P.2d A.L.R.3d and fortiori, rapes ‘incidental to’ the robberies that those movements were ”5 an a case discussing authority, including cited a line of New York
Daniels “The court recognized ‘Kidnap like the one: exactly example present standards, one of the most serious is, statutory ping by contemporary crimes. forms.’ reprehensible In our era this crime has assumed particularly fundamentals, that ‘In then observing But the court turned [Citation.] a envisages asportation person basic the crime of concept kidnapping control of the person restraint and Usually complete under compulsion. ’ are means of extortion. facilitating and of his location secrecy [Cita the court of the definition of statutory kidnapping, the breadth Noting tion.] crimes, other notably reasoned that it ‘could overrun several literally assault, detention and sometimes and in circumstances since some rape, confinement, victim, these the will of the against frequently accompany and abduc crimes. Some of the definitions could alike to apply kidnapping that the victim be tion. It is a common occurrence robbery, example, detained, or bound and or moved into briefly gunpoint left confined ’ ” 6 the Daniels court mentioned the Additionally, another room or place. “ York court’s of a ‘the of victim robbery involving tying up New example the crime remained in a bank and his movement into another room. essence although statutory language might literally some kidnapping ”7 also to it.’ apply *5 “ Code, ‘the absur- the Penal the Daniels court recognized Model Citing forced into of for in cases where the victim is dity prosecuting kidnapping safe, his in the course of a his own home to the or to the back of store open ”8 where a robbery brief movement inside robbery.’ Generally, premises the crime and does not committed is considered incidental to being of harm otherwise substantially present.9 increase risk did not movement was incidental” and “merely Daniels concluded brief “Indeed, when increase the risk of harm” otherwise “substantially present: his victim no more than move the course of a a defendant does robbery residence, it be a in which he finds him—whether around inside premises will conduct here, generally business or other enclosure—his as or place Daniels, supra, pages Cal.2d at 1130-1131. 5People v. Daniels, page 1135. 6People 7 supra, v. 71 Cal.2d Daniels, supra, page v. 1136. Daniels, Cal.2d at 8People v. Daniels, 1140; (1971) 4 Cal.3d People v. Mutch v. Cal.2d at P.2d 398-399 633]. not be deemed to constitute offense section 209. Move- proscribed by short, another, ment a room or from one room to cannot across reasonably ,”10 be found to be . . . asportation Earley,11 case, In re followed Daniels. robbery Earley repeated that “movements of a victim can constitute kid two-pronged requirement for if the movements are not napping purpose robbery (§ 209) only incidental to the commission of the and merely robbery substantially increase the risk of harm that inherent in the crime of beyond robbery.”12 “Brief either movements facilitate or Earley pronounced: robbery robbery are incidental thereto within the of Daniels. rape meaning [Citations.] On the other hand movements to facilitate the crime or crimes that foregoing are for a substantial distance rather than brief are not incidental thereto then within Daniels.”13 The court held that movement meaning Earley “ of 10 to 13 blocks to commit not robbery was substantial and ‘merely ” incidental’ “even it have been to facilitate the commis though may solely sion of the robbery.”14 court these statements in footnote 11: “There is no Earley qualified
merit to an assertion that ‘when the robber’s intent is by Earley solely facilitate the the movement is incidental’ thereto robbery within merely of Daniels. . . . one definition of ‘incidental’ is ‘nones- meaning Although [citation], sential’ was not the sense in which the word manifestly ‘incidental’ was used in Daniels. Movement across a room to facilitate a be essential to the commission of but be inciden- robbery might tal thereto within the of Daniels.”15 in the meaning Applying Earley present that, case means have been either useful or essential to the although may store, in the back room of the it could still jewelry women put be considered incidental movement. we arrive at in which the court
Finally, People Rayford,16 again the two for identified in as repeated prongs comprising kidnapping robbery, Daniels Earley: or movement of robbery, aggravated requires
“Kidnapping kidnapping, *6 of the the victim that is not incidental to commission merely robbery, increases the of harm over and above that necessar- which risk substantially in the crime of itself. These two are ily aspects present [Citations.] exclusive, not but interrelated. mutually Daniels,
10People
supra,
page
v.
Despite recent cases involving kidnapping incidental.” Two meaning “merely v. “incidental” with “necessary.” to commit confuse rape a motel into Salazar,18 hallway his victim feet from rapist dragged in the been attempted reasoned the could have rape motel bathroom. Salazar to commit necessary rape, motel Because movement was not hallway. Salazar, necessary according not incidental.19 Stated affirmatively, contrary that equation is incidental movement. But 17People Rayford, supra, 9 Cal.4th pages 12-14. *7 v. Cal.Rptr.2d 341 18People Salazar Cal.App.4th 33 337]. Salazar, 19People supra, Cal.App.4th page 33 at 347. v.
606 minor, subordinate, definitions of incidental as or accepted secondary, nonessential.20
Salazar there are cases acknowledged many involving alleged kidnapping to commit in which the California Court has followed robbery footnote, and In a tried to Daniels found movement was incidental.21 Salazar cases, those on a difference distinguish focusing robbery between perceived and a that “Whereas commission of rape: robbery may frequently require a victim be to the robbery, moved which is property object rape involves an attack on the and does not solely person necessarily require movement not make This sentence does sense. complete crime.”22 is more if not out of Certainly, rape easily, necessarily, accomplished plain It view than could be said public hallway. rape may frequently require movement. It could also be said a does not correctly necessarily movement. More some robberies and move- require accurately, rapes require ment and some do not. Salazar’s effort to and between distinguish rape is not persuasive. Shadden,23 v. defendant a video store owner People attempted rape after her nine feet into a small back room of store. The court dragging Salazar’s does not adopted reasoning necessarily rape require Salazar, and therefore movement was more than incidental.24 Like Shadden of “incidental” with “The could equates meaning “necessary:” infer that the movement was not incidental to the reasonably attempted rape Then, because Shadden the sexual attack after he moved her.”25 only began contradiction, the Shadden court also observes that “when seeming [defend- door, closed the he enhanced his and injure opportunity rape ant] [the words, In other the victim to the back room facilitated moving victim.]”26 thus, Daniels, under could be as incidental to rape regarded properly the main crime.27 view,
In our
incidental
mean the
thing.
do not
same
necessary
courts in Shadden and Salazar seem to have committed the error of ipse
“
dixit,
Alice,
I
a word’ ...
‘it
as when
told
‘When use
Humpty Dumpty
682;
college
Dictionary (3d
1991) page
20Webster’s New World
ed.
Webster’s Third New
Dictionary (1993)
page
at
1142.
International
Salazar,
21People
supra,
Cal.App.4th
page
at
v.
33
347.
Salazar,
22People
supra,
v.
page
8.
Cal.App.4th
at
footnote
23People
v. Shadden
Cal.App.4th
826].
Shadden,
Salazar,
supra, 169, citing
24People
supra,
People
v.
Cal.App.4th
page
v.
Cal.App.4th
page
footnote 8.
Shadden,
25People
supra,
v.
169.
Shadden,
v.
27
Daniels,
pages
607 nor less.’”28 But we I it to mean—neither more means what choose just notion is mean it “This says: prosaic Alice a word should what with agree language that communication suffers when based on our conviction abiding what it does not mean.”29 says and
Instead, used Salazar reasoning we decline apply Daniels, under and Earley, the facts of this case analyze Shadden em store the two by forcing Here defendant robbed Rayford. jewelry of the store. 50 feet to the office at back to move about ployees to the office defendant free access gave the women in back Confining from customers robbery any entering and allowed him to conceal jewelry of the two women have thwarted him. Defendant’s movement might who no Consid served to facilitate the crime with other only apparent purpose.30 crime, “merely of this we conclude was circumstances ering particular in the back of the store. incidental” to the to confine women increase the risk of substantially also decide the movement did not We Shadden, a victim out of the moving harm to the women. In the court said it makes of the crime discovery view causes increased risk because public have held that removal from the public less But other cases likely.31 many not, itself, the risk of harm.32 Further- view does increase substantially more, a victim more at risk when concealed from certainly public rape case, the and therefore vulnerable to attack. But in the present view more back where they victims have been at less risk tied in the office may up than had remained at in the they could not to thwart the try gunpoint of a of the store. Nor is this a case in which “substantial movement front in the risk of victim, force or fear . . . a substantial increase poses that to be from a trauma to the victim beyond expected psychological case, the victim moved to . . . .”33 In the stationary robbery Nguyen hours,34 few not 50 feet for a five different locations over period minutes. were not established conclude the elements of aggravated kidnapping
We and those two counts should be reversed. 28Carroll, Looking-Glass (1872). Found There Through the and What Alice 564, 843], Cal.Rptr.2d (2000) 570 Superior 29Rose v. Court 81 [96 1130-1131; Daniels, Earley, 14 In re Cal.3d 30People pages v. 71 Cal.2d
page 129. 31 Shadden, supra, People v. 93 588, 250, P.2d Cal.Rptr. 522 v. Stanworth [114 225, Cal.Rptr.2d grounds v. Martinez 20 Cal.4th overruled on other [83 770, 463, 533, 507 P.2d 512]; Crumpton (1973) Cal.3d P.2d In re 74]. 178, Nguyen (2000) 22 Cal.4th 33People v. 493]. pages footnote 7. 34People Nguyen, supra, 22 Cal.4th 874-876
4. Carjacking “ in the is the felonious of a motor vehicle ‘Carjacking’ taking possession immediate another, or her . . . his or against from his or person presence her will and with the intent to either or permanently temporarily deprive of the her accom motor vehicle of his or person possession possession, means of force or fear.”35 Defendant asserts a by carjacking plished was not because defendant did not take Gibeson’s car from “her proved or immediate an area defined for the as within being person presence,” “reach, control, could, her observation or so that he or she if not overcome fear, violence or retain of the by by subject prevented possession property.” Instead, defendant took Gibeson’s from her while her car was keys the store in a lot. outside parked parking
Defendant on v. Medina37 in the court found there relies which People room when his keys was a when victim “was inside motel carjacking were taken and his car was driven The court forcibly nearby away.”38 “immediate of what in the con issue constitutes sidestepped presence” text of a because the victim had been lured from his car carjacking away Instead, a trick.39 But Medina offers no to defendant here. it held: support “The force or fear be to the driver . . . clearly statute requires applied confrontation must occur. . . . the victim need not be actually physi [But] in the vehicle when the confrontation occurs.”40 cally present case, In a court concluded the crime of carjack- subsequent appellate like the crime of be established not when ing, robbery, “may only victim, defendant taken out of of the but also has property physical presence when the defendant exercises dominion and control over the victim’s prop- force or fear.”41 erty through cases, with originating cite a number of federal
Additionally,
People
Burns,42
United States v.
in which the courts have found
carjackings
(a).
subdivision
35Section
36CALJIC No. 9.46.
112],
Cal.Rptr.2d
37People
Cal.App.4th
v. Medina
643 [46
Medina,
Cal.App.4th
648.
38People
supra,
v.
Medina,
39People
Cal.App.4th
pages
v.
651-652.
Medina,
v.
41
Gray (1998)
985 [78
(9th
1983)
v. Burns
Cir.
5. Disposition affirm the We reverse the convictions for but aggravated kidnapping and armed convictions. carjacking
J.,Ward concurred. RAMIREZ, J.,P. on a misunderstand- Concurring Dissenting.—Based of the the element of ing aggravated kidnapping, law governing asportation the that the movement the overturns of fact majority implied findings of these victims was not incidental to the robberies and that movement increased their harm. risk of 1
The starts its of the “not incidental” with Daniels. majority analysis prong Therefore, I will too.
It that three for only to note Daniels involved important kidnappings case, crime of Cal.2d at In each robbery.2 1122.) 71 (Daniels, supra, p. victim was moved in order to be obtained. (Id. fruits of held, notes, court As the the Daniels pp. 1123-1125.)3 majority “[D]efen dants had no interest in their victims to move for the sake forcing just 1163; (10th 1999) Cir. 198 F.3d (11th 1999) 43U.S. v. Kimble Cir. 178 F.3d U.S. v. Moore 793. Medina, 44People 39 225, 897, 1119, 43 Cal.Rptr. 459 P.2d (1969) v. Daniels 1130-1131 [80 (Daniels). A.L.R.3d 677] kidnapping purpose rape. for the 2The defendants were not convicted of 208, Cal.Rptr. 2 471 P.2d People (1970) 3The was true in v. Williams Cal.3d 894 same [88 it, alongside gas the street around a station and down where the victim was moved belonged delivering them to a car the victim believed picking up items for the defendants and 742, P.2d Cal.Rptr. 482 (Accord, People (1971) the defendants. v. Killean Cal.3d to [93 for valuables throughout apartment while the defendant searches is moved his 654] [victim Thus, room].) each v. Salazar 337] [39 and the brief their intent was to commit robberies
moving;
rapes,
their
feet,
feet and 30
which they compelled
movements
5 to 6
[18
feet]
follows,
fortiori,
such
It
were
to facilitate
crimes.
perform
solely
victims
. . . within the
were ‘incidental to’ the robberies
that those movements
Court
held movement tal to it. its “Since move- Earley, noting holding, next discusses majority substantial, it not ‘. . . incidental to the
ment . . .
to 13
was
blocks]
solely
. . .’ even
have been
though may
commission of the robbery
Cal.3d
robbery.” (Earley, supra,
p.
commission
facilitate
here was inciden-
that the movement
concluding
italics added.)
states,
robberies,
tal
“[The]
[victims]
*11
crime with no other
(Maj.
served
to facilitate the
only
apparent purpose.”
ante,
This
contradicts
clearly
Earley's holding.
at
opn.,
p. 607.)
its
Earley “qualifies”
on to conclude that footnote 11 of
goes
The majority
ante,
“There is no merit
at
That footnote begins,
holding. (Maj. opn.,
p. 604.)
intent is
to facilitate
solely
to an
. . . that ‘when the robber’s
assertion
cases,
early
a
that in these
the movement was
(Salazar), Division One of this court noted
moving
crimes could not be had without
necessary part of the robberies because the fruits of
348,
8.)
majority
that
place. (Id.
p.
at
in.
The
asserts
Salazar’s
place
the victim from
to
ante,
605-606.)
It is not.
(Maj. opn.,
pp.
is nonsensical.
observation
appellate
opinion
a New York
court
language appearing
4The
cites
in Daniels from
“ '
robbery,
that the victim be . . . moved
example,
in
for
that
“It is a common occurrence
’ ”
603,
ante,
citing,
(maj.
p.
omitted),
italics
place,”
opn.,
and left in
room or
into
another
movement,
moving
another
tying
up
in a bank and
him to
example
an
incidental
victim
as
of
ante,
appellate court reversed
p. 603.)
opinion,
In that
the New York
(Maj. opn.,
room.
robbery
the victims back into
where the defendants forced
kidnapping
convictions for
minutes,
relieving
possessions.
them of their
them blocks for 20
while
their car and drove
appellate
York
court
p. 1135.) Daniels also cited another New
(Daniels, supra, 71 Cal.2d at
drugged
pharmacist
his victims
reversing
kidnapping where a
decision
convictions for
1137.)
the California
Queens. (Id.
p.at
when
transported them from Manhattan to
substantially
circum
shorter movement under similar
Supreme Court was confronted with
Cal.Rptr.
city blocks)
v. Thornton
Cal.3d
(four
stances
short
668,
467,
267],
grounds People
v. Flannel
disapproved
on other
P.2d
684,
84,
aggravated
upheld
the conviction for
Cal.Rptr.
603 P.2d
court
fn. 12 [160
(Thornton, at
concluding
was not incidental to the crime.
kidnapping,
that
movement
that
following
Earley,
Court concluded
768.) Similarly,
year, in
California
p.
robbery
to 13 blocks was not incidental to
movement of the victim in a car 10
forced
881,
during
(In Earley (1975)
re
suggesting
. incidental’ to a robbery where the
movement is
or
‘necessary’
‘essential’ to the commission of the
or
‘an
important part
criminal objective, without
[the defendant’s]
[which]
the crimes would not have been committed.’
..
.
one definition of
Although
‘incidental’ is ‘nonessential’ . . . that
was not the sense in which
manifestly
Daniels.[5] Movement
the word . . . was used in
across a room to facilitate
a robbery might be essential to the commission of the
but be
incidental thereto within the
meaning Daniels. Insofar as such cases are
inconsistent with the views
herein
are
expressed
they
disapproved.” (Earley,
words,
Cal.3d at
fn.
p.
In other
11.)
defendant’s intent to
as,
commit the
mind,
in his or her
kidnapping
a necessary
component
offenses is not
target
determinate of whether the movement is incidental.
Contrary
conclusion,
to the majority’s
this
of the footnote did
portion
not
It
qualify
holding.
entirely consistent with the latter’s focus on the
*12
traveled,
distance
rather than the intended
of the movement.
purpose
the
Finally,
cites
majority
People
Rayford (1994)
The majority it conflicts To the extent the majority suggests is “necessary” insupportable. before, incorrect. As stated that footnote with footnote 11 of Earley, focus on intent, Salazar and Shadden addresses the defendant’s whereas minimum to accom- the movement was bare beyond required whether inconsistent with crime. is not Certainly, equation plish target natural offense is target that movement which is Cotton's notion to it. incidental merely ante, at
Moreover, otherwise (maj. opn., the majority’s implication despite “incidental” and relied on the exclusively equation neither case 605), p. traveled was not its conclusion that distance “necessary” support Cotton, held, “In . . . incidental. Salazar C]ourt [t]he [California the move because charge unsupported the kidnapping concluded [that] and thus inciden ‘natural’ under the circumstances of assault ment was *13 Cotton, was not to the movement tal. In contrast [here] [Citation.] [¶](cid:127) (cid:127) (cid:127) crime. on the walkway Salazar could have raped natural to the victim] [the at The movement and avoided her all. moving the motel room door outside itself; rather, crime a related to the necessarily rape of was not victim] [the to of Salazar’s plan conclude it was an essential reasonably part could jury 5, ante, and related text. 6See footnote (Shadden). Cal.App.4th 164 7People v. Shadden 826] detection and make the crime easier to commit. avoid to [T]he ..[!]... the could find the crossed boundaries significant (from movement jury a and was not a or necessary into the motel room public walkway bathroom) Thus, movement not incidental natural of the the was part committing rape. the at is clear from 347.) to the crime.” As (Salazar, supra, Cal.App.4th p. the of the on whether movement rely Salazar did not foregoing, exclusively to the of the It relied also victim was or essential commission necessary rape. boundaries, does not assail crossing majority on the a significant point in and nature of scope as an consideration improper assessing and the of the under Rayford. movement context environment “necessary” not on its Similarly, rely equation Shadden did exclusively held, and “incidental.” It off pulled also “[The victim’s] defendant] [the and and his after he her the back room panties pulled dragged down zipper reasonably shut the door before four The could taking jury videotapes]. [but because infer that the movement was not incidental to the rape attempted the sexual attack after he moved her. only began [the defendant] [Citations.][8] environment, it movement (cid:127) (cid:127) (cid:127) Where victim’s changes [¶ ] does not have to be in distance substantial. to be great [The [Citation.] and nine an slugged feet from dragged open defendant] victim] [her] [the infer that area to closed room. From these facts the could reasonably her environment.” the distance substantial and changed [the victim] (Sh the Shadden 169.) at adden, Cal.App.4th p. Clearly, supra, based its that the was not incidental on more court conclusion criticizes, than the basis the are both remaining and those reasons majority and unassailed unassailable. majority Diaz, noted, not “[Relatively court distances have been found short ‘the incidental in a change
to be where the movement results substantial ” The 247.) context environment.’ (Diaz, p. (id. at defendant in Diaz “at least feet” rape p. had moved victim from a on a to behind busy next to a sidewalk street 248) spot bordering city Salazar, on Jones and building park. Relying Rayford, closed a darkened incidental, “The thusly: court that the not the Diaz concluded movement was area defendant could assaulted the victim the sidewalk sexually have He in order obviously he first accosted her .... moved where quite [her] and nature scope attack and to avoid detection. complete ante, this “seeming opn., p. 606) between (maj. 8The finds contradiction” room moving the the back statement and the Shadden court’s later victim to conclusion likely “enhanced his it made less and thus increased her risk of harm because detection (Shadden, 170.) p. opportunity rape injure her.” entirely statements, the latter consideration is no contradiction the two there is between (Rayford, supra, 9 Cal.4th of Daniels. assessing prong risk of harm proper in increased p. 13.) *14 movement the environmental context. We note the dramatically changed [|] case a illustration of the distinction between inciden- present provides good tal and . . . . nonincidental movements. . . defendant had [initially] [T]he attacked the . . . victim on a the grassy strip immediately adjacent her], sidewalk near where he had first accosted in foil view of a [perhaps the urban street. The movement from sidewalk to the major grassy strip incidental, it easily could be characterized as in that effected no substantial in the have been a short distance from where change surroundings, may However, the defendant first made contact with the victim. the forcible the movement of victim into the darkened and behind a park large building was found the to have been more than incidental to the properly by jury (Diaz, sexual assault.” It is interest- pp. 248-249.) to note that Diaz echoes the reliance of Salazar on the fact that the ing crime could been the movement. underlying have without accomplished of whether “incidental” and regardless “necessary” may prop- be the be there erly answered here is whether equated, question sufficient basis which this could conclude that the upon jury reasonably the I movements of victims were not incidental to the robberies. believe store, there was. The of a jewelry victims were moved from showroom windows, customers, accessible to fronted within view of openly by large that had a general five-foot five-foot office in rear public, out, window into the showroom from which one could look but not in. The notes that the feet. majority victims were moved 50 victims Although could not recall if Hoard closed the door to the office after first them putting there, after he reentered when the cell he slammed phone dropped, door shut left as he to resume the from the showroom taking jewelry office, counters. Before he he believed leaving destroyed only phone to be more than a These facts constituted sufficient basis present. upon which this could conclude that the and nature of the reasonably scope Cal.4th at and the context of the 12) changed (Rayford, supra, p. victims’ environment were such that the movement was not incidental (ibid.) to the robberies. of fact that the finding also overturns the majority jury’s implied that
movement increased the risk of harm to the victims over and above reiterate, To this necessarily present robbery. prong asportation element factors as the decreased likelihood of includes consideration such detection, to escape, inherent in a victim’s foreseeable danger attempt enhanced and the to commit additional crimes. (Ray attacker’s opportunity 9 Cal.4th at ford, supra, p. 13.) that the movement did not
We concludes begin by noting ante, 607, italics increase the risk of harm.” “substantially (Maj. opn., p.
615 ante, at p. 602), noted However, (maj. opn., earlier as the added.) in risk be substan- that the increase does not require Code section 209 Penal this tial, given jury. did the instructions nor held, forcibly was Court the California Rayford, Supreme victim] “[The of the other side a closed store to lot of ... from night parking
moved the wall forced to sit against of the lot. She was located at the edge a wall of the view The wall blocked tree, 34 feet from the street. and beside a small of at the end side, the tree and bushes lot from any parking passersby beyond the area from the street. While limited detection of the wall [her] and made of street, up underdeveloped, it was bordered on a two-lane wall whether no evidence as to . . . Finally, dirt and rocks. [the [t]here could the street. The jury detectable from and the were defendant [¶] victim] . . . sub forcible movement that have concluded reasonably [the victim’s] Cal.4th at 23.) 9 supra, p. her risk of harm.” (Rayford, increased stantially where consistently upheld that an increased risk of harm is I note e.g., of the victim. (See, armed the movement during defendant is 549, 903, 365]; Earley, 12 Cal.3d Cal.Rptr. Lara (197 4) [117 131.) 14 Cal.3d supra, p. ante, at that Califor 607), the majority (maj. opn., p.
I
as does
recognize,
held that the removal
that predated Rayford
nia
Court cases
the risk of
increase
substantially
from
view in
does not
victim
public
itself
250, 522
Cal.Rptr.
Finally, People Nguyen Cal.4th 872 California Court held Supreme that the increased risk of harm for necessary aggravated could be kidnapping harm.10 psychological here was so instructed. The victims testified that Hoard asked them if had they families and told them that if wanted they to see their loved ones again, had better they with cooperate him. He used obscenities when threat- to kill ening them. He threatened them after he again suspected had they tried to use the Both were phone. hysterical and either screaming or crying after immediately the crimes. Neither wanted to work at a store jewelry again. One of the trial, victims testified at “I the second thought this even started that . . . that was it. It was fast, over. Just that I I thought. had no idea what was gonna Under happen.” circumstances, the jury could reasonably conclude that the movement of the victims to the office also increased the risk of mental harm.
I concur in the conclusion that majority’s conviction should carjacking affirmed, be but I dissent from its reversal of the aggravated robbery convictions.
Respondent’s petition review Court was denied 29, 2003. January 10The Nguyen permitting ignore holding cannot the consideration
psychological harm on the basis that the Nguyen facts in are unlike (Maj. opn., those here. ante, at p. 607.)