Earley, In re

• Decision Date: 01 May 1975
• Docket Number: Cr. 17574
• Citation: 14 Cal.3d 122,534 P.2d 721,120 Cal.Rptr. 881
• Court: California Supreme Court
• Parties: , 534 P.2d 721 In re Wayne D. EARLEY on Habeas Corpus.

Page 881

120 Cal.Rptr. 881

14 Cal.3d 122, 534 P.2d 721

In re Wayne D. EARLEY on Habeas Corpus.

Cr. 17574.

Supreme Court of California In Bank.

May 1, 1975.

Rehearing Denied June 4, 1975.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., and Jack R. Winkler, Chief Asst. Attys. Gen., Edward P. O'Brien and William E. James, Asst. Attys. Gen., Robert R. Granucci and Ronald E. Niver, Deputy Attys. Gen., for appellant.

William K. Rentz, Santa Cruz, and James S. Hurwitz, San Francisco, for respondent.

BURKE, ^* Justice.

This is an appeal by the People from a Marin County Superior Court order granting a writ of habeas corpus. (See Pen.Code, § 1506.) ¹ The People's sole contention is that the court erred in determining that Wayne D. Earley's conduct was not prohibited by section 209 (kidnaping for the purpose of robbery) as construed in People v. Daniels, 71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225.

In 1967 Earley was found guilty by a jury in the Alameda County Superior Court on one count of kidnaping for the purpose of robbery (§ 209) and one count of first degree robbery (§§ 211, 211a) and was sentenced to prison on each count. ² The judgment was affirmed on appeal. Thereafter we reinterpreted section 209 in Daniels, and People v. Mutch, 4 Cal.3d 389, 396, 93 Cal.Rptr. 721, 482 P.2d 633, relying on the principle in In re Zerbe, 60 Cal.2d 666, 667--668, 36 Cal.Rptr. 286, 288, 388 P.2d 182, 184, held that a defendant is entitled to habeas corpus relief under Daniels 'if there is no material dispute as to the facts relating to his conviction and if it appears that the statute under which he was convicted did not prohibit his conduct.' It is only where it appears as a matter of law that the defendant's conduct did not violate the statute under which he was convicted that the defendant is entitled to collateral relief under Zerbe. (See People v. Timmons, 4 Cal.3d 411, 416, 93 Cal.Rptr. 736, 482 P.2d 648, (conc. & dis. opn. by Sullivan, J.); In re Howard, 21 Cal.App.3d 318, 321, 98 Cal.Rptr. 531; In re Madrid, 19 Cal.App.3d 996, 1003, 97 Cal.Rptr. 354.)

After Daniels Earley filed several motions to recall the remittitur on the ground that his conduct did not violate section 209 as construed in that decision. The motions were denied, and we denied hearings. He then filed in this court a habeas corpus petition on the same ground, and we denied the petition. He subsequently filed in the Marin County Superior Court a petition for habeas corpus on the same ground as well as an unrelated one, and an order to show cause was issued limited to the question of the validity of the section 209 conviction in the light of Daniels. Following the filing of the return and the traverse thereto, the court determined that Earley's conduct did not violate section 209 as construed in Daniels, and the court filed an order vacating the judgment of conviction and remanding the case to the Alameda County Superior Court for resentencing on the robbery count and to permit Earley to renew his applications for probation and reduction of the charges. As heretofore stated, the People have appealed.

1. The Facts

About 4:50 a.m. on July 22, 1967, Werner Schopfer, Jr., stopped at a stop sign at a lighted intersection at East 14th Street and 77th Avenue in Oakland. Earley, who was wearing sunglasses, walked up to the driver's side of the car and stuck an object through the window. Schopfer thought the object was a gun, but it apparently was a gun-like cigarette lighter. ³ Earley told Schopfer to move over, and Schopfer complied. Earley got into the car and drove east on East 14th Street a block or two, turned onto a dark side street and eventually stopped away from any street lights, in the middle of a block, on a side street named Holly near 86th Avenue, a distance of some 10 to 13 blocks.

During the drive whenever Schopfer looked at Earley, Earley waved the apparent gun at Schopfer and said something to the effect that Schopfer was making him nervous and that Earley 'should just kill' Schopfer. Schopfer did not remember whether they passed any other cars. After stopping on Holly Street, Earley demanded and received Schopfer's wallet and watch. Earley then fled on foot. He took the car keys with him but left them at a nearby corner as he had promised to do. It does not appear that Schopfer was physically injured.

2. The Daniels Test

As a preliminary matter, it is necessary to consider the exact nature of the Daniels test. The People assert that it is only if both prongs of that test are met that a conviction of kidnaping for the purpose of robbery (§ 209) is invalid under Daniels.

Daniels stated (71 Cal.2d at p. 1139, 80 Cal.Rptr. at p. 910, 459 P.2d at p. 238), 'we hold that the intent of the Legislature in amending Penal Code, section 209 in 1951 was to exclude from its reach not only 'standstill' robberies (e.g., People v. Knowles, . . . 35 Cal.2d 175, 217 P.2d 1) but also those in which the movements of the victim are merely incidental to the commission of the robbery And do not substantially increase the risk of harm over and above that necessarily present in the crime of robbery itself. (Italics added.) (See Note, Room-to-Room Movement: A Risk Rationale for Aggravated Kidnaping . . . 11 Stan.L.Rev. 554, 555; Note, A Rational of the Law of Kidnapping . . . Colum.L.Rev. 540, 554--557.)' ⁴

Some authorities have indicated that, if the movement is not merely incidental to the robbery, a conviction under section 209 is not invalid under Daniels irrespective of whether there is an increase in danger to the victim under the second prong of the Daniels test. (E.g., People v. Stathos, 17 Cal.App.3d 33, 38--39, 94 Cal.Rptr. 482; see In re Bryant, 19 Cal.App.3d 933, 937--938, 97 Cal.Rptr. 40, (conc. opn.); 59 Cal.L.Rev. 180, 189.) ⁵

On the other hand from language in the majority opinion in People v. Thornton, 11 Cal.3d 738, 114 Cal.Rptr. 467, 523 P.2d 267, it may be inferred that movements of a victim can constitute kidnaping for the purpose of robbery (§ 209) Only if the movements (1) are not merely incidental to the commission of the robbery And (2) substantially increase the risk of harm beyond that inherent in the crime of robbery. ⁶ The Thornton dissent clearly so indicates. ⁷ (See also In re Crumpton, 9 Cal.3d 463, 466--467, 106 Cal.Rptr. 770, 507 P.2d 74; People v. Cleveland, 27 Cal.App.3d 820, 825, 104 Cal.Rptr. 161, and People v. Lobaugh, 18 Cal.App.3d 75, 83, 95 Cal.Rptr. 547.) That indication is correct. ⁸ Cases such as People v. Stathos, Supra,17 Cal.App.3d 33, 94 Cal.Rptr. 482, are disapproved insofar as they are inconsistent with the views expressed herein.

Nothing in People v. Stanworth, Supra, 11 Cal.3d 588, 114 Cal.Rptr. 250, 522 P.2d 1058, is inconsistent with the requirement that to convict a defendant of violating section 209 the jury must find both of the foregoing matters. Stanworth held (11 Cal.3d at p. 596, 114 Cal.Rptr. 250, 522 P.2d 1058) that the Daniels test is inapplicable to simple kidnaping (§ 207). Stanworth pointed out that both prongs of the Daniels test refer to robbery and that simple kidnaping may occur in the absence of another crime. Stanworth stated (p. 601, 114 Cal.Rptr. p. 259, 522 P.2d p. 1067) that the language of section 207 'implies that the determining factor in the crime of kidnaping is the actual distance of the victim's movements; and further, that the minimum movements necessary for the commission of the crime are present were the victim is forcibly taken 'into Another part of the same county.' (Italics added.) Finally, because the victim's movements must be more than slight . . . or 'trivial' . . . they must be substantial in character to consitute kidnaping under section 207.' Stanworth involved not only section 207 convictions but also a section 209 conviction, and with respect to the latter Stanworth applied the Daniels test.

Stanworth further noted (p. 600, 114 Cal.Rptr. p. 259, 522 P.2d p. 1066) that 'In Daniels, we observed that section 209 fails to define the term 'kidnaps' . . . and concluded that the Legislature must have intended the term to have the same meaning as the word 'kidnaping' used in section 207. (Daniels, 71 Cal.2d at p. 1131 (80 Cal.Rptr. 897, 459 P.2d 225.)) In sum, both Daniels, involving section 209 kidnaping, and Cotton (v. Superior Court (1961) 56 Cal.2d 459, 15 Cal.Rptr. 65, 364 P.2d 241), involving section 207 kidnaping, construe the term 'kidnaping' to mean movements which are not merely incidental to associated crimes.' ⁹ (Stanworth, at p. 600, 114 Cal.Rptr. 259, 522 P.2d 1066.) However, in view of the fact that, as we stated in Daniels, 'section 209 prescribes increased punishment when the kidnaping is for the purpose of ransom or robbery' (Daniels, 71 Cal.2d at p. 1131, 80 Cal.Rptr. at p. 904, 459 P.2d at p. 232; see also Witkin, Cal. Crimes (1973 Supp.) § 358A, p. 187), ¹⁰ violation of section 209 requires Not only that the asportation be not merely incidental to the associated crime of robbery (i.e., that there be a kidnaping) but also that it 'substantially increase the risk of harm over and above that necessarily present in the crime of robbery itself.' (Daniels, 71 Cal.2d at p. 1139, 80 Cal.Rptr. at p. 910, 459 P.2d at p. 238.)

3. Whether, As A Matter of Law, Earley's Conduct Did Not Violate Section 209 As Construed in Daniels

(a) Whether the movements were 'merely incidental to the commission of the robbery'

Brief movements to facilitate either robbery or robbery and rape are incidental thereto within the meaning of Daniels. (See, e.g., People v. Stanworth, Supra, 11 Cal.3d 588, 114 Cal.Rptr. 250, 522 P.2d 225 (25 feet from road to field); People v. Mutch, Supra, 4 Cal.3d 389, 397--399, 93 Cal.Rptr. 721, 482 P.2d 633 (30 to 40 feet from one room to another in business establishment); People v. Williams, 2 Cal.3d 894, 902, 88 Cal.Rptr. 208, 471 P.2d 1008 (around gas station premises); People v. Daniels, Supra, 71 Cal.2d 1119, 1122,...