Ervin v. Superior Court

• Decision Date: 09 April 1981
• Citation: 173 Cal.Rptr. 208,119 Cal.App.3d 78
• Court: California Court of Appeals Court of Appeals
• Parties: Harold Miller ERVIN, Jr., Petitioner, v. SUPERIOR COURT, CONTRA COSTA COUNTY, Respondent, PEOPLE of the State of California, Real Party in Interest. Civ. 49485.

Page 208

173 Cal.Rptr. 208

119 Cal.App.3d 78

Harold Miller ERVIN, Jr., Petitioner, v. SUPERIOR COURT, CONTRA COSTA COUNTY, Respondent PEOPLE of the State of California, Real Party in Interest.

Civ. 49485.

Court of Appeal, First District, Division 3, California.

April 9, 1981.

Edward L. Merrill, Merrill, Thiessen & Gagen, A Professional Corporation, Danville, for petitioner.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins, Dane R. Gillette, Deputy Attys. Gen., San Francisco, for real party in interest.

WHITE, Presiding Justice.

In this petition we are presented with two issues we previously decided in (People v. Conway (Nov. 26, 1980) 1 Civ. 49127 (unpub.opn.).) (hereafter Conway) We write on a clean slate because, though we certified our opinion in Conway for publication, the California Supreme Court directed the Reporter of Decisions not to publish the opinion in the Official Reports.

Petitioner is the alleged co-participant in the crimes charged against Mr. Conway. He challenges trial court denial of his motion to dismiss pursuant to Penal Code section 995, asserting that the court erred in not reaching the merits of his challenge to great bodily injury enhancement allegations and asserting that the evidence presented at the preliminary hearing did not support a charge of kidnapping. We issue writ of prohibition restraining the trial court from further proceedings on the enhancements other than to reconsider the motion to dismiss the enhancements and decide it on the merits. We uphold the trial court ruling on the kidnapping charge.

Petitioner is charged with kidnapping, robbery, two counts of rape, and assault with a deadly weapon. The information alleges infliction of great bodily injury during the commission of all counts and being armed with a firearm and using a deadly weapon in commission of all but the last crime. The facts concerning these crimes were presented at a separate preliminary examination from that held for co-participant Conway.

At petitioner's preliminary examination the victim testified that while hitchhiking in Berkeley she accepted a ride from petitioner and another man. Though her destination was the Richmond-San Rafael bridge, she agreed to a side trip to the co-participant's home to check on his children. At the home she was forcibly raped by both men. During a struggle she was choked and beaten around the head, face, eyes and ears by petitioner. She was tied up and a towel was stuffed in her mouth. She was cut on the hand with a knife as she fended off the co-participant. Rings and jewelry were taken from her purse and her person. At one point the co-participant threatened her with a gun and at another point petitioner threatened her with a knife.

After these events there was a discussion about what to do with the victim. The three discussed the alternatives of waiting for a friend with a truck to take her some place or of possibly killing her. The co-participant wanted to take her back to Berkeley, but petitioner did not. Ultimately she was returned to Berkeley and let off there, but the testimony does not reveal how the decision was made or under what circumstances the three entered the car and traveled to Berkeley except for showing that during the ride there was disagreement about whether to actually take her back to Berkeley.

Petitioner contends that the evidence at the preliminary examination was insufficient to sustain a charge of kidnapping and that the trial court should have granted his motion to dismiss that count of the information. We disagree.

Penal Code section 207 provides that "(e)very person who forcibly steals, takes, or arrests any person in this state, and carries him into another country, state, or county, or into another part of the same county," (emphasis added) is guilty of kidnapping. The section also provides for kidnapping by fraud, but an asportation by fraud alone constitutes a kidnapping only where there is unlawful transportation into the state for any purpose. (Pen. Code, § 207; People v. Green (1980) 27 Cal.3d 1, 164 Cal.Rptr. 1, 609 P.2d 468; People v. Rhoden (1972) 6 Cal.3d 519, 526-527, 99 Cal.Rptr. 751, 492 P.2d 1143.)

The information alleges that a kidnapping took place during the transportation from the rape site in San Pablo to Berkeley. The Attorney General supports this charge by arguing that the crimes committed in San Pablo permit a reasonable inference that the victim felt she had no choice other than to accept the ride back to Berkeley. "Had she declined, she conceivably could have been harmed further. She felt threatened. She felt she had no real alternatives. Under these circumstances, although her initial ride was voluntary, her subsequent movement back to Berkeley was forcible."

The trial court's test on a motion to dismiss pursuant to Penal Code section 995 is whether the evidence at the preliminary hearing provides " 'some rational ground for assuming the possibility' " that a kidnapping was committed. (Ghent v. Superior Court (1979) 90 Cal.App.3d 944, 955, 153 Cal.Rptr. 720.) This court, on review, may not substitute its judgment for that of the magistrate as to the weight of the evidence, and every legitimate inference to be drawn from it must be drawn in favor of the information. (Id.)

The difficulty in this case is that there was no testimony at the preliminary examination concerning the circumstances of the return trip to Berkeley. It is true the testimony reveals that a discussion of alternatives took place and that it is reasonable to infer that the victim's vote was not a strong vote in the discussion. But in order to support a kidnapping charge one must draw the further inference that petitioner or his co-participant forced her to accompany them in the car and refused her the option of calling a cab, walking down the street, or otherwise leaving their company. If they drove her to Berkeley to save her the cost of cab fare or the inconvenience of finding another means of transportation, then certainly no kidnapping occurred.

In spite of this gap in the testimony, we uphold the trial court ruling on the kidnapping. Two reasonable inferences may be drawn concerning the transportation to Berkeley: (1) that petitioner and his co-participant were still exercising control over the victim and forced her to leave the crime scene with them; or (2) that the men drove her to Berkeley as an accommodation to the victim, chosen by her, over being left to find her own transportation. While we would have preferred the gap be filled by testimony, we cannot say that the first inference is unreasonable. ¹ While at the San Pablo residence the men beat, raped, threatened, and robbed the victim. Thereafter they considered killing her. Even while in the car, they debated her fate. It is not unreasonable to conclude that before they arrived in Berkeley they relinquished their control over her only to the extent of giving her a choice of in what place, removed from the crime scene, she wished to be released. That constitutes kidnapping.

Petitioner contends that the injuries sustained by the victim did not constitute great bodily injury within the meaning of Penal Code section 12022.7. He cites People v. Caudillo (1978) 21 Cal.3d 562, 146 Cal.Rptr. 859, 580 P.2d 274, and a line of cases following Caudillo. He asserts that the trial court did not so rule because it felt bound to apply the holding of People v. Superior Court (Grilli) (1978) 84 Cal.App.3d 506, 148 Cal.Rptr. 740, which exempts enhancement allegations from the reach of a Penal Code section 995 motion to dismiss.

The Attorney General has conceded that the writ should issue and that the trial court should be directed to consider the merits of the motion to dismiss enhancement allegations. However, he makes that concession out of concern for consistency with the result we reached in the Conway case, not because of agreement with the legal analysis used in the Conway opinion.

The Attorney General's concession concerning this case relieves us from the obligation of restating our views about the validity of Grilli. Thus we need not and will not issue a decision on the Grilli issue. To do so would create unnecessary confusion in the trial courts, which would be forced to decide which decision to follow. However, we believe our criticism of Grilli is valid. We believe also that our analysis should be available for consideration, debate, criticism, refinement, and citation to other Court of Appeal panels and to the Supreme Court. Therefore, in the following discussion we reiterate our analysis from Conway and augment it with consideration of criticisms made in the petition for hearing in Conway, of which we take judicial notice.

In Grilli, the defendant was charged with rape (two counts) and oral copulation, and was held to answer on all counts. Thereafter the People filed an information adding, inter alia, Penal Code section 12022.7 enhancement allegations as to all counts. In response to the defendant's section 995 motion, the trial court dismissed all the clauses alleging great bodily injury. The People sought and obtained writ of mandate.

The Grilli court's reasoning is reproduced in substantial part: "The People contend that the fact of great bodily injury charged in an accusatory pleading pursuant to section 12022.7 may not be the subject of a motion to dismiss made pursuant to section 995. We agree. Although section 12022.7 has been the subject of but limited judicial interpretation (People v. Caudillo (1978) 21 Cal.3d 562, 580-589, (146 Cal.Rptr. 859, 580 P.2d 274) ...), it is clear from judicial analysis of analogous enhancement statutes (§§ 12022, 12022.5) that its provisions do not define a crime or offense but relate to the penalty to be imposed under certain circumstances. (In re Culbreth (1976) 17 Cal.3d 330, 333, (130 Cal.Rptr. 719, 551 P.2d 23) ...; ...