*1 deposit the check. any duty failing to cash or breach of judgment is affirmed. Schauer, J., Shenk, J., J., Carter, J., Traynor, J., Edmonds, Spence, J., concurred. rehearing May Appellants’ petition for a was denied 1950. Apr. 21, No. 4992. In Bank.
[Crim. 1950.] KNOWLES, THE PEOPLE, Respondent, v. DAVID Appellant. *3 MacLymont Bates and Aileen M. Appellant.
Rosalind G. Attorney Howser, General, Henry N. and Dietz, Fred A. Attorney Respondent. Deputy General, for Caryl TRAYNOR, J.Defendant and Chessman were charged by jointly information with two counts armed kidnapping robbery, two counts of of robbery, grand theft. and one count of Defendant waived jury a and separately. The him guilty was tried trial court found on both robbery kidnapping, and both counts of counts of but not guilty grand on the count of theft. It determined that one kidnapping bodily involved harm to the victim and sentenced appellant imprisonment possibility to life without parole. concurrently. on the other offenses were to run The sentences judgment appeals from the Defendant conviction and the trial, contending for a new denying order his motion guilt to establish is insufficient his and that the evidence punishable kidnapping armed is not under Penal Code, section 209. January p. 23, 1948, m.,
On at about :30 defendant and clothing Chessman a store in Redondo entered Beach. There except was no one in the store the owner Melvin Waisler and Lesher, Joe a clerk. Defendant asked to look at overcoats and nearby Lesher showed him several while Chessman sat Waisler around walked the store. accused stood in a well- lighted Waisler and Lesher testified area, and were they get Shortly good thereafter, able to look at them. defendant displayed guns, saying stick-up, put Chessman “this is a They up your compelled hands.” Waisler and Lesher to wall, enter stockroom rear of the store and face the gunpoint and then took wallets. Defendant held them at their stockroom while Chessman took some clothes and register. attempted open the cash He returned to stock- open register room, forced Lesher to come back and him, therefrom, after he money took returned Lesher to the Defendant struck Waisler on the stockroom. gun, head with the barrel of and then left with Chessman. his Waisler and Lesher ran to the front of the time store gray escaping see defendant and Chessman in a 1946 Ford coupé. They police. then notified the police ear later,
About an hour two officers radio northerly gray proceeding in a direction observed Ford Angeles, on Vermont about half a block Avenue in Los south Hollywood They pursued the Ford and Boulevard. saw Chessman, station, turn into a service circle driving, who was high proceeded speed it south at and drive out. Ford mile, attempted then for about a and when Chessman car into the of the Ford. U-turn the officers drove their side quickly caught. men the car The offi- Both ran from but were clothing and a .45 automatic in the rear cers found the stolen person Ford. Chessman had about on his $150 defendant $8.00. alibi, produced defendant Miss Ann Stan-
To establish an Holly- her at her field who testified that he visited residence p. evening wood about 6 m. on the and that at If her he remained there for about or minutes. testi- *4 mony appellant in true, were could not have been Redondo robbery. distant, Beach, 23 miles at the time of the Defend- by appointment that he met Chessman at the ant testified Avenue and Boulevard at about corner Sunset Vermont evening robbery. p. m. on He that there 7 testified him by man the ear at the time introduced to Chess- was a Joe, police and that Joe rode with them when the man
179 got the car at the service station pursuit began, but out of appellant rest room while Chessman ran into the story. defendant’s off. corroborated drove Chessman every testimony material foregoing was contradicted Waisler and Lesher by prosecution. detail witnesses robbery. participant in the positively defendant as a identified at plain view they that had the car The officers testified they only occupants, and that that there were two times, all it at the station. direct conflict saw none leave People. the trial court in favor of the was resolved evidence and Lesher’s iden contends that Waisler’s Defendant beyond guilt a reason of him does not establish his tification not doubt, because the identification was means able line-up, they police because made the identifica standard police had being tion after informed that robbers caught picture in the they been and after saw defendant’s upon company his “a newspapers Chessman, arrest in with ” weigh is for trier of the evi famous bandit. facts relating dence to identification and to resolve conflicts inherently acceptance His not therein. an identification upheld improbable must be if there is substantial evidence though it, contradictory evidence, believed, if support even Waller, contrary (People have induced a would result. v. 693, ; People Braun, P.2d 14 Cal.2d 700 v. 14 Cal.2d [96 344] 1, ; People P.2d 213 463 Farrington, 5 v. Cal. 402] [92 814]; People 88 Ash, Cal.App.2d P.2d v. 825 [2 [199 ; People Alexander, Cal.App.2d 954, P.2d 711] Tanner, ; Cal.App.2d P.2d 813] 26]; People Deal, Cal.App.2d P.2d guilt his evidence of defendant’s leaves Substantial first contention without merit. he also
Defendant contends that crime which only robbery, that Penal Code was convicted is armed properly applicable to 209 cannot be construed as view, applies that crime. his the statute orthodox robbery, not to the detention kidnapping for ransom inter during of armed This victim commission pretation support language no in its of section finds pro sanctioned without a legislative history; it could not be repeal by judicial fiat. tanto language does
Defendant the statute concedes ordinary interpretation. his Under support sense its inflicted language one accused of armed who has *5 bodily on victim, charged harm can capital with a may regard offense. unduly Reasonable men the statute as unwise; they they if do, harsh therefore should address Legislature. their to the doubts is not courts to nullify merely a statute because it be unwise. “We do pause consider to whether a statute differently conceived yield and framed would results more consonant with fairness and reason. We take this statute as we find it.” (Cardozo, J., Wilson, Anderson U.S. S.Ct. 77 L.Ed. 1004].) its
Before amendment in Penal Code, section 209 provided “Every person forcibly maliciously,' who or fraudulently away any person takes or entices with intent to person thereby restrain such to commit extortion or rob bery, or from the person exact relatives or friends of such any money thing” (italics added) or valuable shall be pun by imprisonment ished for life years. or a minimum of ten made punishment, amendment where the victim bodily harm, imprisonment suffered death or life without possibility parole. At the time, however, Legis same encompass “Every lature redefined the offense to person who seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps away by any or carries individual any means what detain, soever with intent to hold or or detains, who holds and for ransom, such individual reward or to commit extortion added.) (Italics or ...” by The addition amend ment of the italicized words is a deliberate abandonment of requirement of movement of the victim that characterized proscribed kidnapping the offense of section 209 before ‘‘ By the amendment. changed amendment the offensetheretofore described in section 209 from one asportation required the of the victim to one in which act seizing to ransom, reward or commit or extortion rob felony.” bery (People Raucho, 8 Cal.App.2d became 663 [47 P.2d The trial court found on substantial evidence that defendant restrained Waisler and Lesher in the stockroom for twenty bodily fifteen or minutes about and inflicted harm on during detention, while Waisler his confederate Chessman register. clearly That rifled cash conduct is covered given plain meaning. words of their Webster’s Dictionary, Unabridged (1943), International Edition New possession by force,” defines “seize” as take “To “confine” “To limits; limit; restrain within ... keep ... keep restraint put up; imprison; shut possession Clearly person is taken going out.” from point of a a room at the compelled to enter when he is force limits, within shut He also restrained in this case. gun, as forced to he is remain kept going from out when up, and he twenty minutes. That is held and for fifteen that room purpose of was the thereby detention and that such detained readily apparent. There can be confinement the seizure and Chessman seized and that defendant no doubt therefore *6 and them to hold detain with intent the two victims confined ” (the detained “such they held and individual[s] or that robbery. confined) to commit seized and victims the victim is asportation of concedes that Defendant he contends that 209, but element of section not an essential only apply to acts Legislature that the statute the intended to a “traditional act of confinement incident and seizure however, has broadened the Legislature, kidnapping.” The only the and con statutory not seizure prohibition to include kidnapping traditional act of an individual a finement of and confinement reward), but also the seizure (for ransom or robbery, purpose foreign purpose of an individual It is kidnapping” by as defined defendant. to “traditional suggest aptly described the that conduct therefore idle Raucho, (People v. punishable thereunder. is not statute Cal.App.2d 655, 663.) supra, 8 Legislature power question the has the
There is no that enough offense kidnapping broadly to include the to define specified in prescribe punishment the and to here committed prohibition of cruel Subject to constitutional 209. the may define and Legislature punishment, and unusual Cal.App. 115 (People Lavine, v. as it sees fit. punish offenses California, Lavine v. 496], appeal dismissed, 297 P.2d 289, [1 1270].) may define 500, 76 L.Ed. 286 528 S.Ct. U.S. [52 regard that other states kidnapping an punish as offense that definition as 209 establishes as armed Section 296 279, Tanner, 3 Cal.2d (People v. [44 of California. the law proscribed of the statutory definition 324].) P.2d some ambiguous because rendered uncertain offenses is not kidnap regarded ordinarily as prohibited acts are not of the punishable acts Legislature made such has ping. When impute statute not this court should kidnapping, ‘ 1 judg wording. rationally by its meaning supported not not does interpret I court, reasoning aright, if ment gone beyond its upon ruling Congress that would have rest truly professed purpose was the power purpose it if the that upon ruling judgment cherished. The of the court rests may be read beneath purpose, professed, that another not surface, imputed, so the statute is de spread to stroyed. process psycho-analysis Thus the has fields. There a wise and ancient doctrine that unaccustomed inquire legislative body.” a court will motives of a into the (Cardozo, J., dissenting Constantine, United States 233]; U.S. 298-299 80 L.Ed. Smith v. S.Ct. [56 Co., ; City Eureka Union Oil 166 Cal. P. 966] City Diaz, ; 469-470 P. Cal. Callahan 961] County Francisco, Cal.App.2d 286, San Legislature The will of must be determined statutes; from the to it at odds intentions cannot ascribed with the intentions articulated the statutes. Section clearly prohibits punishes offense committed defend ;ant there is no did supposing basis for that the not mean what it said.
An upon judicial regard insistence words imply they statute in a dic- does not are like words They tionary, ranging to be read mind. are no with no longer alphabetical Released, at rest in their bins. combined in phrases imperfectly thoughts communicate one another, they challenge give man to men them more than *7 passive reading, context, ponder to consider well to what their may consequences. their brush Speculation cuts with the pertinent question: purpose what did the seek to express it strung those words into a statute? The court turns first to the words themselves for the It also answer. properly rely history on aids, statute, extrinsic the legislative debates, reports, committee statements to the voters on initiative however, and referendum Primarily, measures. words, in arrangement superimposes of Legislature upon dictionary meaning, their stand immo- sentry, bilized arrangement reminders that whether their folly, wisdom or wittingly it was undertaken and not to be disregarded. “While longer courts are no confined language to the [of statute], they are by still confined it. not Violence must ’ ’
be done to the legislature. words (Frankfurter, chosen Some on Reading Statutes, 47 Columb. Reflections of 527, 543.) L.Rev. A prescribed by standard of conduct hardly statute would command were if statute acceptance
183 interpretation ordi contrary to interpretation given an all, give it. “After subject to the statute would nary men terms is addressed expressed in technical legislation not when to be understood of men and is therefore common run ordinary man has thing, as the according the sense of the ’’ (Addi him. rely addressed to right ordinary on words Co., 607, 322 618 Holly Hill Fruit Products U.S. son v. [64 McBoyle States, ; see, also, v. United 1215, 88 L.Ed. S.Ct. 1488] If 340, L.Ed. the words 25, 283 U.S. 27 S.Ct. 75 [51 not add to or clear, are the court should of the statute appear on the accomplish purpose that does not alter them to legislative history. (Matson or from its of the statute face 352, 162, 76 States, 284 U.S. 356 S.Ct. Nav. Co. v. United [52 Market Equalization Young’s v. 336]; Board L.Ed. State ; 81 United 59, 77, 62-64 S.Ct. L.Ed. Co., 299 U.S. 38] [57 Johnson, 488, 627, 221 496 55 LEd. v. U.S. S.Ct. States [31 ; Miller, 191, 31 Cal.2d 198-199 P.2d ; re 722] [187 823] Co., 344, 22 353-354 Caminetti v. Mut. Ins. Cal.2d Pacific Life Corp. 361, ; Shay, Acc. v. 214 Cal. P.2d Seaboard [139 908] 193 431 ; People Stanley, 428, 369 P.2d Cal. 882] [225 [5 City Diego, ; 734, P. Mulville v. San 183 Cal. 739 [192 1] 702]; 812, City Angeles, Cal.App.2d P. Los 63 Gordon 961]; People Cal.App.2d 1941 P.2d v. One Buick [147 ; Co., P.2d 661, 667 Guano Cal. 401] Pacific also, Sloovere, 848-849 De App.2d 845, ; see, P.2d 254] L.Quar. 591, Equity Statute, and Reason Cornell Interpretation Statutes, 5 Fordham L.Rev. Contextual Statutes, 230; Interpretation in the 219, 221, Extrinsic Aids 527, 531, 538; Cox, Penn. L.Rev. Learned Hand Univ. of Interpretation Statutes, 374- and the Harv.L.Rev. Statutory Legislative Intention, 40 375; Jones, Doubts and Inter in the 957, 964, 974, Columb.L.Rev. and Extrinsic Aids Wash.U.L.Q. 2, 8, 9.) Cer pretation Statutes, Federal meanings liberty hidden not tainly the court is at seek aids. available extrinsic suggested the statute or 722], 31 Cal.2d 198-199 (In Miller, re therein.) cited cases entirely interpretation of the statute rests
Defendant’s statutory support upon speculation. finds no legislative implications or language its contextual *8 public history upon relies the wave of the statute. He during widespread kidnapping for ransom indignation the at He takes early as a motivation for the statute. the 1930’s terrorizing armed equally rampant and no account of the compelled legislatures the attention that of state at suppose There is no reason the same time. to that the latter in of the statute, particu- evil was not the minds authors of the larly robbery” in view of the retention the “to commit . . . only provision. kidnapping The contention that orthodox for contemplated hardly ransom was statute is the tenable scope Lindbergh of the federal view of the broad Law that served as a model for the revision of section 209. The federal prohibition kidnapping limit its to pur- statute did not pose (Act of ransom or reward. of May 18, 1934, 301, ch. §408a) 781, provides discretionary Stat. U.S.C. death penalty transportation the interstate commerce of a person for ransom or (Italics “held reward or otherwise.” added.) holding prevent of an officer to the arrest of his although admittedly captor, concept not within the of orthodox pecuniary kidnapping punish- for ransom or benefit, was held (Gooch States, able under the statute. v. United 124, 297 U.S. 80 L.Ed. S.Ct. Legislature 1901, the Since has included purposes kidnapping prohibited one under section making penalty 209. There is no indication that in there- concept for more severe and the of the crime that so broad longer Legislature movement of the victim was no required, apply provisions only intended to these kidnapping legal expressions “Familiar ransom or reward. their legal (Henry States, familiar sense” v. United 251 U.S. 322]) Legislature 64 L.Ed. used S.Ct. indi- contrary, coverage cates that the broad was intended. unequivocal language of the there statute, Given Legislature is no merit to defendant’s contention that the did change existing nature not intend to substantive Certainly support any no that contention finds crime. Tanner, decided under the cases statute. 324], Cal.2d 279 defendants forced the victim go driveway gunpoint from his his house at and there money they questioned him about the location of had premises. appeal from conviction heard was on the On their they contended that their offense was under section Legislature robbery and that did intend to armed kidnapping punish it under a statute. court affirmed holding conviction, empowered define clearly indi- criminal offenses as it sees fit and that the statute punish kidnapping an intention to standstill under its cates provisions. suggested that there must It is under the statute
185 preconceived plan under a victim, be movement of the property that would not be protracted detention to obtain ordinary robbery. Defendant in the course of armed available that the be seeks to read into the statute a condition victim moved a substantial distance. The statute itself is a refuta- only one tion of that contention. Movement the victim is by statutory of several methods which the offense be “Every person provides committed. statute that who [any] seizes, confines ... or who holds or detains individual robbery guilty ... extortion ... fel to commit of a ’’ ony. properly It is contended the statute that cannot indicated, be read with the omissions for all that is then left legal verbiage” significance. statute, “cautious of no however, ones, sets forth the conditions as alternative only present. Thus, one need be providing under a statute that the victim be or abducted, seized a defendant who has exemption seized a victim cannot claim from the statute because he has not also abducted him.
There is no condition in kidnapping the statute that premeditated part robbery be pre of a or that be part meditated as 29 kidnapping. People Brown, In v. rejected Cal.2d 929], 558-559 P.2d this court an [176 attempt read into the statute a condition that the premeditated, where the defendant abducted a woman to rape. raping her, commit After he her took wristwatch. finding bodily A that supported the victim suffered harm was rape both the forcible fact defendant that the subsequently judgment imposing struck her. The the death penalty taking ground was affirmed that on the wristwatch kidnapping made the rob abduction commit bery, original objective rape even if the were and the intent afterthought. also, Kristy, (See, People to rob was v. 4 Cal.2d 504 ; Holt, Cal.App.2d P.2d 93 [50 798] ; People Melendrez, Cal.App.2d 476 P.2d 25 [209 94] Cal.App. ; People Johnston, P.2d 870] [35 233, 90 States,
Chatwin v. United S.Ct. U.S. contention. 198], support appellant’s L.Ed. affords no Kidnapping Act case, that a conviction under Federal marriage of a member of a interstate trans plural sect for the portation 15-year-old spouse” of his “celestial was reversed ground girl on the the record failed to show against required by held her broad- will as the act. “But the statutory language permit us to tear does
ness magic using lexigraphy of their context, words out lacking the immoral situations apply to unattractive or them very which is the es seizure and detention involuntariness kidnapping. Thus, this essential the crime sence if in illicit relations participating missing, element is act of entering a minor or contributing delinquency trans marriage, the interstate into a celestial followed Kid under the Federal portation, not constitute a crime does (Chatwin States, 326 U.S. napping Act.” v. United added.) no Italics There is 233, 90 L.Ed. S.Ct. 198]. transpor forcible, been intimation that had the restraint meaning *10 the broad of tation would not have been within Similarly, act. “or otherwise” of the federal clause present seizure and restraint one, in a case likes the where the robbery, the seizure is clearly forcible and the of are meaning 209. of section kidnapping offense is within Code, Penal for violation of Defendant’s convictions (rob Code, 211 (kidnapping) Penal section section 209 and single a act: the tak upon the of bery) both rest commission Waisler and possession of ing personal property of possession immediate persons from their and their Lesher confining by seizing and them by fear*, namely, force and were an seizure and confinement under force of arms. The pro inseparable part of the Penal Code section in differ punishable is made : “An act or omission which vides may punished be ways by provisions this code ent different of pun it provisions, in no ease can be under either of such but and one; acquittal or conviction under more than ished prosecution a for the same under either one bars sentence any If com under the two offenses or omission other.” act that the commission of one the same act are such mitted necessarily other, included in the commission is only punished can for the commission of one. defendant be P.2d : (People Greer, 30 Cal.2d “Where 512] necessarily committed without commit an offense cannot be necessarily offense, latter included of ting another is transport (Health use a minor to narcotics & fense.” The 11714) necessarily delinquency Code, contributes to the Saf. § 702). re- (Welf. Code, & Inst. of that minor Section § Code, "Robbery taking 211: *Penal the felonious another, personal property possession person from his presence, against will, accomplished his immediate means of force or fear.” only of those for one punished the defendant he quires that 592, 598 Cal.App.2d (People Krupa, offenses. statutory rape nec Similarly 416].) the commission of P.2d victim delinquency minor essarily contributes both for violation of punished cannot be a defendant 30 Cal. (People Greer, one act. on statutes .basis 2d 596 [184 limited 654 is not applicability of section
But conduct If of criminal offenses. a course necessarily included offense, than one each of more causes the commission appli any other, the committing without can committed separate depend upon whether cability 654 will of section con basis of each be established as the distinct act can committed single act has been so whether viction, or only single act If has been violated. more one statute than only multiple one convictions, charged the basis of the notwithstanding that the offenses affirmed, can be conviction singleness of necessarily It is the included offenses. are not A determinative. statute and not of the offensethat is the act any operating a1 ‘still” providing punishment person (Stats. 1927, ch. having possession in his a ‘‘still” operation possession. two distinct offenses: p. 497) states necessarily only If, however, possession act of is that conviction can be affirmed. operation, incident to the one 681].) An Clemett, P. (People v. Cal. form attempt murder use of a bomb unsuccessful at with attempted murder, assault the basis for convictions *11 only explosives. Insofar kill, or malicious use of intent to however, charged convictions, single act is as the basis of the Kynette, only punished (People can be once. v. the defendant 794].) possession of nar 731, 15 762 P.2d Cal.2d [104 thereof, transportation from the cotics is an offense distinct single only act of be one conviction when a but there can only possession is transportation proved and the act of transportation. (Sehroeder v. United incident to the that 600 65.) People Greer, In 30 States, 7 F.2d v. Cal.2d charged 512], with the violation P.2d the defendant was [184 288. Code, 261(1), Code, and Penal section of Penal section single inter charges upon were based act of sexual Both girl either possible under 14. It is to violate course with violating other, without and this court there stated statute separable if distinct acts were that the commission of although they might at rela charged, have been committed tively time, the same the convictions of both offenses would
188 If, ease, however, that the violation of both upheld. as in single commission act of predicated on the statutes 654, requires that the intercourse, Code, sexual Penal section only under punished defendant be one statute. recognized People supra, Greer, v. has
The distinction multiple affirmance of convictions in cases in permitted the as the proved and divisible acts have been separate which closely conviction, though were each even those acts basis part and were of the same criminal venture. time connected 1], Slobodion, 561-563 P.2d People In v. Cal.2d [191 Code, Penal sustained convictions under sections this court young 288a, upon a of conduct with a 288 and based course separate act as the basis girl the commission of a where People Pickens, v. proved. (See, also, each offense was People Cal.App. Cal.App. 405, ; Ciulla, P. v. 1027] [214 supra, court People Ciulla, P. In sus v. Code, Penal kidnapping under tained convictions for having rape, both offenses been committed forcible charged upon girl, reason that the acts were the same only by the fact separate and divisible and were connected they single criminal venture. part were of a predicated upon were defendant’s convictions Since subjected pun single act, he cannot be of a the commission People Greer, under the rule of for both offenses ishment act confinement Defendant committed no of seizure or supra. necessarily incident the commission of rob other than only bery. were restrained while Waisler and Lesher property being accomplished. taking personal was actual the commission of the rob separate act not essential to No no bery charged proved. reason, For that there is this court inconsistency case and those in which between this multiple kidnapping and affirmed convictions of has cases, the acts that formed the basis In of those each separate from those that involved were kidnapping conviction People Brown, In 29 Cal.2d taking property. the actual to drive 929], defendant forced his victim P.2d city they where to the outskirts of the a considerable distance dressing, he took raped he her. While she was stopped carrying away upon abduction or her wristwatch. The separable based was from kidnapping conviction was essential to its commission. and not drove 686], the defendants Dorman, Cal.2d 846 attempting rob about for several hours without their victim money. him thereafter took his bery, murdered then
189
commis-
separable from the
kidnapping
act
was
Again, the
of
Cal.App.
Pickens,
v.
61
(See,
People
also,
of
sion
504
4
1027].)
People Kristy,
v.
Cal.2d
P.
In
405, 407 [214
and then
robbed their victims
798], the defendants
P.2d
[50
In
escape
prison.
from
their
accomplish
kidnapped them
(habeas
614
P.2d
People
Pearson,
Cal.App.2d
41
463]
v.
[107
401]),
P.2d
re
Unlike the defendants coincident with kidnapping that committed no act There was no seizure taking personal property. robbery as that from the actual separated confinement could be only single, separate and distinct he committed act. Since 654, requires he act, Penal be Code, indivisible Legis punished only once fact therefor. view the greater prescribed punishment lature for the violation of sec tion it must be the more 209 deemed to have considered that and the offense, serious convictions thereunder must be the (People ones P.2d Kehoe, 711, affirmed. 33 Cal.2d 716 v. [204 ; People Chapman, Cal.App.2d 857, v. 81 866 321] [185 ; People Degnen, Cal.App. 567, ; v. 578 P. 70 424] 129] States, 439; Durrett v. United F.2d Hewitt United States, Gog 10-11; People gin, F.2d N.Y. 174], aff’g Heacox, 587; People N.E.2d N.Y.S.2d 231 App.Div. N.Y.S. denying
The order for a new trial is affirmed. the motion The judgments kidnapping conviction of affirmed, judgments are of conviction of armed are reversed.
Shenk, J., Sehauer, Spence, J., J., concurred. EDMONDS, J.By present decision, “the detention during robbery” of a victim commission of armed consti- ‘‘ lddnaping, tutes although committed no efendant [d] necessarily act of seizure or other than that inci- confinement dent robbery,” prosecuted commission he *13 robbery kidnaping for
either or for at the election of the dis- attorney. trict As I read 209 of the Penal Code, section it neither compels construction, nor warrants and it this is a startling innovation in criminal law that an act which con- robbery kidnaping. stitutes is also stated, kidnaping may Under the of law now the crime merge into the crime practical operation, of its robbery may where one is only, imprisoned convicted of he be period for years only of from five life. If is to he convicted of kidnaping, may he under circumstances be confined certain life, possibility being for with upon parole. of released But if he guilty only kidnaping robbery, not also of but since pun- under section 654 of the Penal Code he cannot be may ished for crimes, imprisonment only both his term of be for period prescribed for one of them. greater punishment
Thus one who also robs will receive no nothing than kidnap per- the criminal who more does than kidnaper. nothing son. This is a clear invitation to the He has if property person lose he also takes from his victim’s presence by (Penal immediate Code, means of or fear force §211). present prosecuted Under the if for both decision, kidnaping robbery, punishment imposed only can be kidnaping. subject stated, being Otherwise instead imprisonment upon may sentences, two each of which be for parole life possibility and, practical with the in effect terms given years, confinement for he can be one such sen- tence, consequent with in reduction in the time to be served prison. subject imprisonment fact that be Knowles will possibility parole life under without one kidnaping sentences for does warrant a construction of not applicable statutes to allow a substantial decrease punishment amount of the victim was those eases where kidnaped physical harm. robbed but suffered no
Under stated, the rule now 209 of the Penal Code may By applied be in connection with section 1159. the latter any statutes, jury may guilty “The find the defendant offense, the commission of which is included necessarily charged. robbery that with which he is ...” As an act of may kidnaping, jury now will also find one constitute a charged robbery guilty kidnaping. result, one with As a ordinarily subjected who would be a sentence for a minimum year charges term of one on, many executed. Prom now of attempted robbery, inevitably one every robbery, punishable by may be for a crime prosecutions will be death. to make either power has the
Unquestionably, my But capital offense. attempted back considering language and historical both opinion, A rule of so. cardinal ground 209, it has done of section ‘ fairly interpretation ‘. . . a statute is statutory where leading inevitably to mis constructions, one susceptible of two consisting of sense absurdity and the other sound chief or rejected the former should be and the latter policy, and wise (People Refining Co., adopted.” v. Ventura Cal. Joaquin Stevinson, 60]; Co. P. P. San etc. Irr. P.
164 Cal. “Every in 1933, provides: person section 209 amended As con- seizes, confines, inveigles, entices, decoys, abducts, who *14 away by any kidnaps any or individual means ceals, carries or or de- detain, with intent to hold or who holds whatsoever extor- ransom, individual for or to tains, such reward commit robbery kidnaping. punishable . .” is tion or . [Italics largely The turns proper construction of the statute added.] meaning prevailing opin- italicized upon the words. although ion stresses “seizes” “confines,” also the words kid- concept of them is consistent with the traditional each pertain italicized naping, and unlike those does not to conduct robbery. invariably present Dictionary,
As defined Webster’s New International Unabridged (1943), Edition word means: “seize” possession . . force; “Transitive . 2.b To take . . . lay suddenly forcibly; pris- 4. hold of or 5. To ... To take . . Intransitive ... 3. make a clutch.” oner; . To snatch or Synonyms for “Catch, grip; apprehend, “seize” are listed as capture.” authority arrest, take, The same the word defines “. as . . transitive 2. To restrain lim- “confine” ... within limit; up; put keep its; imprison; ... to shut or cir- Synonyms “Restrain, immure, ...” listed restraint are cumscribe, incarcerate, compass; cage.” synonyms
The definitions and demonstrate that words which, are consistent with conduct “seizes” “confines” present decision, has understood to amount to until the been necessary kidnaping. Although proof asportation is not conviction, required nevertheless much more is than sustain a invariably attempted present “detention” mere almost “arrest,” prisoner,” or Words like “take “imprison,” suggest and “incarcerate” purposeful more aspect of the control wrongdoer exercised over the person victim’s which is in kidnaping. presept As to the controversial words of designated section 209 italics, the first clause of the specific statute defines the intent necessary to establish the kidnaping. crime of Rather than the requirement prior to 1933 that the acts be done “maliciously, forcibly or fraudulently,” the amended statute declares that the acts need be done “. . . with intent to hold or detain.” None of the acts listed in the first clause is that of holding detaining. The conduct described constituting kidnaping is the seizing, act of confining, inveigling, enticing, decoying, abducting, concealing, kidnaping carrying away any individual with intent to hold or detam him. [Italics Had the intended the added.] detention of the victim, in and itself, to constitute kidnaping, that conduct would have been stated as the criminal act denounced, rather being than necessary used to describe the intent. The first clause, therefore, defines as a any crime one of a specified
series of acts done any to “. . . individual . . .” specific with the intent to hold or detain Following Mm. this disjunctive clause word, is the “or.” This word introduces an alternative definition of kidnaping. One “. . . who holds or detains, such individual for ransom, reward or to commit extor- tion or ...” guilty is also kidnap- [italics added] ” ing. phrase “. .. who holds qualified by or detains words". . . such individual.” The words “such individual” must refer to the antecedent noun, “individual,” pre- ceding clause. And word “individual” in the first clause qualified as one person whom a “. . . seizes, confines, inveigles, entices, decoys, abducts, kidnaps conceals, or carries *15 away. . . .”
Applying plain grammatical these principles, it follows that only type holding the detaining of or which constitute kidnaping under section 209 holding detaining is the or of an previously individual who has kidnaped been in the well under- stood sense. It is clear “holding” that the words and “detain- ing” are used in the code section to extend the definition of kidnaping to one guard who acts as the keeper or the of kid- naped victim. The inclusion of the words “. . . who aids or abets ...” superabundance reflects a part caution on the of the Legislature, and also demonstrates an intent to make even one keeper who aids the guilty kidnaping.
For reasons, language these the used the it clear that mere detention is not sufficient to constitute makes excepting detention a tradi- kidnaping, where the follows the kidnaping. Grammatically, tional act of construction placed upon supported which court has is not the statute language. grammatical And if its even there were sound authority reached, for conclusion individual words subjected dissection; not statute should to semantic spirit severed members are cold and lifeless without the law. background development
The historical and of section 209 simple during also lead the conclusion that detention kidnaping. analyzing act of does constitute is legislation, distinguish evolution of it essential to statutory kidnaping between two crimes of which exist in California and most jurisdictions. modern first, The and historically more orthodox form the offense, is defined in section 207 of the Penal It with is, Code. certain modifications its harmonize with political terms modern development, continuation of kidnaping crime as it existed has since before the Christian era. (See Lardone, Kidnaping in Law, Roman 163-171.) U.Det.L.J. At law, common as under law, earlier kidnaping Jewish was “the forcible abduction stealing away of man, woman or child from . . . [his] country, own and sending . . . (4 into another.” Bl. [him] 221.) Comm. substantially This is [Christian the crime Ed.] defined as it was enacted in 1872 and since has remained change. without material (Amended Stats. p. 653, to add “carries him into another . . . county, into part county. another ”) same The crime of kidnaping second comparatively recent origin. Perhaps no deeply modern crime inescapably attached to its historical basis kidnaping as is pecuniary purposes, any adequate analysis necessarily of the offense upon thorough must be based understanding appreciation background. of that
Apparently kidnaping for ransom was unknown at common reported law. of the first One instances of the crime this country occurred in (Ross, 1874. Kidnapped [1876], Child cited N.Y.TJ.L.Q. in 12 discussed 646, 649-50.) Rev. kidnaping next ransom which attracted great attention was in 1900 Cudahy when Edward was ab- $25,000 ducted and demanded (Spreading for his Evil release. *16 Autobiography [1927], Pat Crowe cited and dis —The 650-51.) N.Y.U.L.Q. following Rev. In the in 12 cussed kidnaping for ransom to year, one of the first statutes adopted Illinois, which States was be enacted United extorting outset, kidnaping purpose “for the made from the (Stats. 1901, p. 145, §1.) capital ransom” a offense. Ill. jurisdictions statutes, penalty similar enacted but Other no generally imprisonment, was more than life prescribed although penalty under the well in excess uniformly kidnaping, “common-law” such as that preexisting crime of 207 of the Penal Code. in section defined 209 of enacted section In 1901 the California “Every maliciously, person read: who Code, the Penal away any fraudulently person with takes or entices forcibly, or person thereby to extortion intent restrain commit to such per the relatives friends of such robbery, or from or exact any money thing, guilty felony, or valuable son by imprisonment state’s punished therefor shall be any years not life, number of less than ten.” prison for (Stats. 1901, 83, p. 98.) This differed from the ch. kidnaping for ransom or extortion majority of statutes enumerating robbery purpose an additional of the unlawful as obtaining extortion, defined, as “the Inasmuch then act. as (Pen. another, Code, with his consent” property from 1872]), evidently Legislature deter quite 518§ [enacted specified be order should mined that taking thing person of a of value from include Cal.App. against (People Fisher, his victim, will. [promissory property]; and deeds to P. note 7] Cal.App.2d 59 Salter, 59 840] [combina safe].) tion to office years after first World War a number
Although kidnapings occurred, “it was not until for ransom of isolated began public aware part latter of 1931 that the becoming numerous, and kidnapings were more the fact that given criminal had hit-or-miss methods of the lone that the carefully professional.” away planned activity of to the Lindbergh Kidnapping (Fisher McGuire, & and the So-Called N.Y.U.L.Q. [citing Sullivan, Law, Rev. The Snatch acquired appeared some Racket, “Kidnaping have profitable profession.” of a and skilled characteristics Lindbergh Law, Georgetown 908, 909.) L.Rev. (Finley, kidnaping people American Lindbergh awakened the generally committed revolting being crime was the fact that fearlessly the menace determina- unless was met with very law tion, “the sanction of the criminal was threatened.” *17 (Fisher McGuire, supra.) Kidnapping, & Kidnaping Act, Lindbergh
The Federal the so-called Law (18 22, §1, 1201; 1982], 271, ch. U.S.C.A. Stats. [June background 326), against organized “drawn in 1932 a was of by Cong. Kidnaping violence. 75 Ree. 13282-13304. that time epidemic had become an in the United crim States. Ruthless legal inal every bands utilized and scientific known means to achieve and themselves. protect their aims Victims were among wealthy great from study. selected the with care and fully Details of the seizures and detentions were and meticu lously out worked in advance. Ransom was the usual motive.” (Chatwin 455, (1946), United States 462-3 U.S. 233,
S.Ct. 90 L.Ed. in atmosphere public that, this nationwide alarm in 1933, the California amended section 209 of the kidnaping ransom, reward, Penal Code to make for extortion robbery capital or During years 1935, crime. the 1933 to states, similar statutes were enacted in almost all of the other punishment specified or by existing the defining statutes kid- naping was increased. The effectiveness this uniform action states, the particularly govern- various the Federal ment, clearly is demonstrated the statistics which show kidnaping larger in percentage decrease and a of convictions (See commission this crime. Bomar, Lindbergh Law, Contemp. 1 Law & 435; Prob. McGuire, Fisher & Kid- napping, supra.) unique
California is almost specification in its purposes as one kidnaping. of the than Other Nevada and Arizona, upon where statute is modeled the California (Nev. code Comp. section 1931-41, Supp. 2, Laws vol. two § 10612.01; Ariz. states in United Code Anno. States [1939] specify robbery vol. 3, 43-3202), only § as a (Ark. kidnaping. 4, 41-2302; Wyo. Stats. 1947 Anno. vol. § Comp. 9-214.) 1945 Anno. 1, majority Stats. vol. The vast § jurisdictions American list or “ransom” “extortion” as purpose.1 the dominant states, however, Five follow the New 1201; [1935], 48, $ 77(4); 18 U.S.C.A. Colo. Stats. Anno. ch. Gen. 3, 8372; [1940], 22-2101; Stats. Conn. vol. Dist. Code Rev.] $ $ Col. 22, 805.02; [1933], 26-1603; Fla. Stats. Anno. vol. Ga. $ Code Smith-Hurd $ 386; Stats., 38, [1935], Il l. Anno. ch. Gen. Stats. Kans. Anno. $ Ky. 21, 5, 449; 435.140; ch. $ art. Rev. Stats. Anno. $ Laws of 26; 28.581; Mass. vol. ch. $ Mich. Stats. Anno. vol. Mo. $ only- having single kidnaping, pattern of crime of York being detain,2 although in purpose specified to hold New Maryland offense, broadly it York, as is Delaware and carry defined, penalty. a death Lindbergh during although enacted Thus, laws state vary great body them greatly specific phraseology, era kidnaping for the crime ransom extortion define as early gangland tradition of the 1930’s. two American general (1) York exceptions found New to the rule are which, kidnaping, makes common law” such as effect, act Code, capital offense; 207 of Penal defined our statute, (2) in the which includes California purposes the crime. one of the scope during robbery kidnaping, simple If detention go York far coverage and New statutes of the California conceptions kidnaping for ransom. The beyond any normal revolting nature of very severity punishment,3 driving modern force behind such *18 the crimes which were statutes, make it obvious that detention incidental kidnaping for statutes are kidnaping. is not These ransom light historical contemporary “to be construed [their] 442 So. background” (Finch State, 437, v. 116 Fla. [156 489]); “the must be so to avoid absurd- act construed noted Laws Rev. result of Wash. Rev. Stats. Anno., Code, 10 21, art. 1177a; Code vol. or extortion without 1941 S. Tenn. Code of Crim. L. Proc. § § § § 10970.1; 619.34; 14; 5929(3); 2 39 3In Page’s C., life § 27, Stats. Anno. vol. 745; Anno., McKinney’s also Code of Ala. § and criticized California, although 221] Code, [1942 vol. tit. Utah Code Anno. 209.) imprisonment possibility § N. Rev. or judicial Ohio Gen. Code Rev. 385. Ore. Anno., §4407; 18, §4723; Wis. Stats. 1, §1122; 80 P.2d vol. Rep.] vol. Wash. H. Code Comp. Stats, Possibly Washington & [1942], 3, 7, Cons. Laws of N. construction 10-2903; Del. § 553; in 38 vol. § of Neb. 41-2503; Laws 13, parole, 10795; (Pen. S. Gen. Laws R. [1943], [1935], [1943], vol. [1940], Anno., State v. § D. 4, §2410-1; Vermont Stats. be [1943], Columb.L.Rev. first 4414; Anno., Code of Iowa Code, Code [1939] [1943] 2, if the victim suffers punished by Vernon’s Gen. Stats. § degree § art. § 340.56; p. 1827; tit. Rev. Code 12427; Berry, 5174; vol. vol. their statute. §190), Y. vol. 740-44; N.J.S.A., 14, I. should 3, 5, W. Va. Code [1943] murder is [Pen. Rev. Stats. Anno. Code Texas Pen. [1938], 2, Okla. [200 § § 1287; [1947], § Minn. N. C. 7; ch. vol. 23-435; death [1946], kidnaping 103-33-1 Mont. also be listed here Code], pt. Burns Ind. Stats. Wash. 28, Stats. Anno. 1, ch. 19 Ore. L.R. State 1943, Stats. § punishable § [1935] § Purdon’s Pa. vol. bodily 417; Me., 8259; Remington’s 606, §21; (b) Md. 13.2701; Code, 495] life 2:143-1. vol. v. 2, 2, 1250; Anno. vol. vol. N. (1); Virginia [1939], imprisonment Anno. vol. 93 P.2d Andre, harm. § § purposes vol. [1937] Mex. Stats. 1, 706.3; 2, Williams 301. Code § ch. Anno., 2, 14-39; vol. Anno, Stats. death (Pen. Rev. [195 title 782, 117, art. La. 40, 1, 5, ity. object designed court must restrain words. The The act to be reached must limit and control the literal import phrases employed. (1 terms and Kent’s Com. 462; United Commonwealth States v. Fisher, v. Kimball, Cranch 24 Pick. [358] [Mass.] L.Ed. 370; ” (State Clark, 96.) 29 N.J.L. exceedingly language
The courts which construed the broad among recognize of the New York statute were the first placed upon language reasonable limitations which must be legislation. used in in People Kuntzsch, such Thus, N.Y.S. 2d involving was a case abduction union membership purposes during a strike, dismissed an the court kidnaping, saying; reading indictment for “A literal statute confine, against makes a wilful seizure with intent to person seized, kidnaping. will Such a literal con can struction . carried to absurd extremes. . . The Court construing keep penalty Statute should mind the imposed for violation of the statute. crime is most seri ous.” (64 118-9; at see, also, Interpreta N.Y.S.2d Black on Laws, tion of 46, p. 129.) 2d Ed. § tendency federal courts have also shown recent
retreat from their former broad
construction of
intent
required under
Lindbergh
specifies,
Law. That act
“for
ransom or
reward
otherwise.” In Gooch v. United States
(1936), 297
522],
U.S.
S.Ct.
80 L.Ed.
the “or
given
otherwise” clause was
abroad construction
cover non-
monetary
recently,
benefits.
However,
Chatwin United
States (1946),
Applying the the Chatwin the facts shown quite prosecution of Knowles a situation different reveal general against from conduct which the framers of legislation. Clearly, participant he statute directed was robbery, but of sec- armed a strained construction kidnaping tion 209 his acts be said constitute for the robbery. showing record purpose includes no evidence any plan to the victims’ as a method control whereabouts extorting money from them or their friends. The dominant act accomplished could been without was have go into the That requiring the victims movement storeroom. merely robbery; it incidental to the was a movement dur- was robbery, it ing the but was not a considered and essential prehide robbery. Unquestionably, crime Knowles to the kidnaping purpose committed the sense that the intended the enactment 209 of the Penal Code. amendment of section of the cases logically This conclusion follows rationale in 1901 was effect. decided when the statute enacted (1916), Cal.App. 7], P. court v. Fisher “reads prefaced noting that the record its statement of facts brigandage.” The defend- though it awere tale of medieval him write highawy and forced seized the victim on the ants They drove secretary then explaining his his absence. note to they Stockton, escaped and him from Merced to where he unsigned captured. deeds Wire-tapping equipment, were prom- blank all a number of property of the victim’s real clear This was a issory found in automobile. notes were prop- robbery, is, kidnaping case of his erty person from victim’s without was to be obtained entirety, it Moreover, viewing in its transaction consent. kidnaping. was an orthodox act the 1901 prosecuted under
The other cases which were *20 199 In upon People (1933), facts. v. Lombard were decided similar Cal.App. 955], attempt a of to 131 525 P.2d conviction [21 upon for was kidnaping purposes of ransom sustained commit hideaway kidnap plan: pre the usual a facts which showed preparations extorting pared, ransom notes and other for money. Cal.App. And v. 133 People Wagner (1933), 775 [24 according 927], case, P.2d one of defendants was “just playing a case of one racket on another.” The court object kidnaping there of which is said that “the made an primarily offense statute seizure and restraint mulcting of him his victim, but the relatives or friends money property through (133 or other Cal.App. coercion.” at p. 780.)
The first decision which this considered court the effect of the 1933 amendment to section 209 the Penal Code (1935), v. Tanner Cal.2d 3 279 P.2d [44 324]. large defendants believed the victim had a amount of cash just hidden in his house. He accosted in his was car outside garage his and was forced to reenter the house. For over an hour questioned, threatened, finally he was tortured as attempted money” the defendants find “real out where the they was Finally, hidden. became convinced that their infor- large mation money was incorrect and there was no sum of Although asportation slight, house. was clearly was it prearranged plan connected with pro- which called for holding tracted and coercion to obtain from prop- the victim erty which would not have been available the course of an ordinary armed type This was the of criminal con- Legislature sought duct prevent by making which the kid- naping purpose “for robbery” capital crime. prosecutions four
At least other under the 1933 amendment placed category. them, within the same one of prison there was break in which the warden and other offi- cials were purpose obtaining money detained clothing prison. and to assure safe exit from the The seizure transportation purpose was as much purpose obtaining human escape. shields for part organized of an plan all seize victims secure the escape.4 (People Kristy, Cal.2d P.2d 4The 1939 amendment to the extortion statute which added the lan guage by obtaining public officer, “the of an act official induced wrongful fear,” (Pen. Code, §518; use of force or Am. Stats. 1939, p. 2017), appear aptly bring prison would to more such break kidnapings heading under the “for of extortion.” 486],
People Grimes, Cal.App.2d presents P.2d kidnaping A example of orthodox for ransom. excellent her after a farmer’s wife was taken from home demand was $25,000 never made for under threat that otherwise she would again. People Salter, Cal.App.2d be seen *21 a in 840], concerned situation similar to shown v. Tanner, the in supra. The defendants seized victim his drive way both his and in him, and thereafter held in house a car they attempted to from him town, driven about while obtain prosecution And in the combination to his office safe. the 839], 857 was People Anderson, Cal.App.2d v. 87 [197 upon kidnaping the of a used car dealer who based for feigned a demonstration ride. All of deci was taken on these sions, upon facts, judgments their affirmed of conviction for away person for seizing carrying a a where, place he was attacked. accomplished could not be at the legislative of To ascertain intent in the amendment the properly to Bill 209, reference be made Senate section in Assembly 1226 Bill No. 334 which were enacted No. bills, text, “An to in were entitled act 1933. These identical relating punish- 209 the Code, amend of the Penal to ’’ kidnaping. passed assem- of After the the ment governor by legisla- to the bly bill, report a on it was made the him, duty charged advising counsel, who is with the tive upon legislators, pending as bills and other matters as well the (Gov. Code, 10230-10245; Rule 34 of Joint Rules of the §§ Assembly, Legislature, 1949). the California Senate as follows: “This report analyzed proposed amendment the doing the kidnapping. makes enlarges bill the definition of by deleting existing the designated of the act or acts an offense away must carrying be done requirement that seizure or the forcibly fraudulently, and includes within the maliciously, or ’’ one who aids abets. definition upon conviction, is existing penalty kidnapping, “The for years life. prison in from 10 to imprisonment the state penalties.” specifies [greatly . . . This bill increased] governor the opinion went to legislative counsel’s being by him. “The executive considered the bills were while law-making component part the constitution, the is, by act ... law, supposed he is . . . approving power. (Fowler v. government.” the legislative branch of part of the legislation re- Peirce, 165, 172.) 2 And the enactment of Cal. two houses action quires the concurrent City Los governor. (See: Davies Legislature, but
201
Angeles,
37,
engaged
86 Cal.
50
P.
“While
in con
[24
sidering
presented
approval
disap
. .
him for
bills
.
acting
proval,
legislative capacity
he
and not as
(Lukens Nye,
498,
593,
executive.”
156 Cal.
501
P.
20
Wright
See, also,
Ann.Cas.
L.R.A.N.S.
244].
States,
439];
United
U.S.
S.Ct.
L.Ed.
States,
Edwards v. United
U.S.
S.Ct.
1239].) Presumably,
considering
L.Ed.
bills,
two
governor
upon,
considered,
opinion
relied
or at least
legislative
legislation
presented
counsel.
As
him by
advisor,
only purpose
his
amendment of
requirement
section 209
specified
was to omit the
that the acts
maliciously
change
statute then
effect be done
penalties
kidnaping.
Since the amendment
the decisions
this
have
court
consistently recognized the distinct characteristics of kid
naping and
present case,
Before the
whenever the
guilty
conviction of one found
of both kidnaping and
arising out of the same chain
upheld,
judg
of events was
ment as to
crime
By
each
has been affirmed.
decisions,
these
*22
impliedly
least,
at
it has been held that one
robbery
can.commit
being guilty
without also
kidnaping;
of
until now the court
has not held
that the same act
both kidnaping
constitute
robbery.
and
The decisions are
the contrary.
(In
Pearson,
re
In v. Dorman, supra, the defendant convicted upon murder, kidnaping one count for one count for for the purpose of robbery, and for three counts affirm- ing judgment, Justice Shenlc discussed “. . . undis- puted transporting Bigelow acts spot, and isolated support him” as sufficient evidence to each of the
robbing convictions. Brown, supra, is in
A case which Justice later affirming in Traynor for the court for two spoke convictions robbery kidnaping purpose and one counts of bodily the victim suffered harm. robbery, The most where Pearson, petition supra, is In re which decision recent imprisoned corpus was denied one a writ of habeas follow- for kidnaping attempted robbery for based ing convictions page At opinion, facts. Justice upon the same ‘ kidnaping, as to the conviction for ‘Petitioner stated Schauer possibility parole for life imprisoned without legally is judgment punishment.” verdict which so fixes his under By decision, the has present court sub silentio overruled 1933 an of robbery And if since act has also the cases cited. kidnaping, defendants cases were those constituted given relief now same Knowles. to the entitled distinguish majority opinion attempts prior ground that, them, each of . upon the “. . the decisions kidnaping the basis of the were formed conviction acts that taking prop- from those that involved actual separate true, present apparently If this be case erty. ...” legal history reported California where there the first one in robbery kidnaping. Furthermore, acts of inseparable were assuming upon which convictions records kidnaping were affirmed separable constituting crimes, acts court showed these this entirely those cases are inconsistent with the the decisions any certainty It cannot be said with now reached. conclusions judgments placed the of conviction triers of fact whether necessary incidental detention to relieve upon evidence property, upon testimony concerning the victims their directly connected with the rob- conduct not the defendants’ every robbery kidnaping because stated, As now beries. say unable to detention one is of such incidental *23 guilty upon the verdict of jury relied as basis for its act the juries the determined prior If in the cases kidnaping. robbery the incidental to and based was detention that there then, upon evidence, that as kidnapings the for convictions robbery for been of conviction should have here, judgment the formula, because, either is true under the new This reversed. robbery or con- incidental to that as to detention the evidence robbery sup- would cerning independent act unrelated applying And kidnaping. for judgment of conviction port the section 654 in majority of the Penal Code as nsed the opinion, present where, case, robbery as in the the for conviction kidnaping robbery for the purpose upon based are robbery alone, the conviction lesser crime should have been set aside. my grammatical
To conclusions, summarize construction language legislative statute, history of the develop- legislative ment of section and the intent as derived from history surrounding and circumstances the enactment of clearly the 1933 robbery amendment show that one can commit being guilty without kidnaping. also Considering particu- larly present record, facts shown I see no basis holding whatever for one who moves his victim within merely zone of immediate the crime to facilitate the rob- bery, briefly him or detains in order property to obtain from him, guilty kidnaping. is stated,
Otherwise if there alone, be detention it must follow kidnaping a traditional act of order in to render the one detaining guilty of that crime. It is true that section 209 does every require case asportation, although that is an usually present element kidnaping. But seizure, con- finement, inveigling, enticing, decoying, abducting, conceal- ing, kidnaping carrying away done, must be as the words demonstrate, themselves to control the victim’s whereabouts robbery If or extortion. the defendant’s person control location of the purely victim’s transi- tory incidental, ordinary robbery, the crime is not kidnaping. judgments
I would reverse the of conviction for kidnaping, judgments and affirm the of conviction for J., Gibson, O. concurred.
CARTEE., J., Dissenting. I amin full accord with the expressed views in the dissenting opinion of Mr. Justice Edmonds, but feel something further should be said in regard holding to the opinion. It majority is there held that a is also a violation of section 209 of the Penal Code, “kidnapping.” called prosecuting attorney given arbitrary power the sole and to determine whether a person imprisonment shall suffer life possibility without parole hand, or even death on or, the one in the case of degree, year’s imprisonment. second as little as one depends charge on the he chooses, at his whim or all caprice, *24 charges robbery he
to If both against make the accused. crimes, is convicted of both he kidnapping and the defendant greater punishment provided lddnapping, for must suffer the kidnapping or, wishes, may charge if he he alone and likewise may charge robbery However, he penalty. obtain the extreme conviction, punishment alone, in case a lesser would and, things these could occur on the identical set follow. All only-robbery appear. will is facts which establish as later supposed Legislature place any be that not to the intended arbitrary power in the hands of the district such drastic attorney. it contrary, the it is that did not intend to On clear the Penal Code. embrace the crime of section robbery Every robbery, degree, necessarily whether first or second give holding or the if we involves some detention victim Legisla- meaning. a those words narrow restricted carefully punishment, has defined and fixed its ture deeming punishment adequate. If it had intended to directly depart from those it would have done so provisions, by attempted have amending the statute. It would not by amending kidnap the achieve that result Shull, squarely In re 23 Cal.2d statute. The case falls within impos- a court held that statute 417], where this five-year a ing imprisonment term where additional deadly weapon intended felony was not was committed with a deadly weapon, for apply a felony assault with punish- were the same and the the elements both instances “It is clearly for latter defined. It is there said: ment was suppose Legislature believed that not unreasonable to not one of the gun felonies which use of a like, an added factors, rape, larceny, essential such imposed by fact that penalty reason of the should probably be being weapon would defendant armed with such or physical of death dangerous probability more because by weapon. Hence, such a condi- injury being inflicted increasing penalty grounds for tion would be reasonable necessary as a are not where felonies involved which do include being pistol. The has element armed with a only imposed punishment where the other acts an increased' being deadly weapon, factor, with a additional armed present. simple assault and difference between deadly weapon factor. The commission one with a is the latter simple misdemeanor, punish- and the declared a assault is imprisonment or $500 ment therefor is fine of not over county (Pen. jail Code, or both. months, six §§ 241.) deadly When there is added to the assault the use of a imprisonment in weapon punishment is increased to exceeding years county jail state ten or in the not prison exceeding year exceeding $5,000 one or a fine not both imprisonment (Pen. fine and Code, 245), and if section § 1168(2) (a) applicable weapons and the 3024(2) therein years used, mentioned the minimum term is fixed at five are *25 perpetrator where previously is not one convicted of a felony. Legislature Briefly, punishment fixed the has deadly weapon assault where a used, particular crime, is and it supposed is not to be that for the same offense without any existing punishment additional factor the added should imposed. deadly felonies weapon where a anot factor offense, punishment imposed by additional Deadly Weapons Act, of the because of the additional factor ’’ of deadly weapon being involved.
Applying foregoing rule bar, to the ease at it seems obvious to me that the amendment to section 209 of the Penal Code the did not punish- intend to make the kidnapping ment for applicable robbery, but such is the holding majority in this case.
Appellant’s petition for a rehearing was denied May Gibson, J., 1950. C. Edmonds, J., Carter, J., voted for rehearing. A. Apr. No. 20863. In Bank.
[L. 1950.] ROSA LOCKE, YORBA Appellant, v. YORBA IRRIGA
TION (a COMPANY Corporation) al., Respondents. et