People v. Apo

• Decision Date: 19 May 1972
• Docket Number: Cr. 18298
• Citation: 25 Cal.App.3d 790,102 Cal.Rptr. 242
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Lidwina APO et al., Defendants and Appellants.

Page 242

102 Cal.Rptr. 242

25 Cal.App.3d 790

PEOPLE of the State of California, Plaintiff and Respondent, v. Lidwina APO et al., Defendants and Appellants.

Cr. 18298.

Court of Appeal, Second District, Division 5, California.

May 19, 1972.

Hearing Denied July 12, 1972.

Richard H. Levin, Los Angeles, under appointment by the Court of Appeal, for defendants and appellants.

Evelle J. Younger, Atty. Gen., Herbert L. Ashby, Chief Asst. Atty. Gen., Crim. Div., William E. James, Asst. Atty. Gen., Appeals Section, Norman H. Sokolow and Howard J. Schwab, Deputy Attys. Gen., for plaintiff and respondent.

COLE, ^* Justice.

Nineteen defendants appeal from various judgments of conviction arising out of incidents taking place on the campus of San Fernando Valley State College on November 4, 1968. ¹ Initially, 28 defendants were charged in count 1 with conspiracy to violate section 207 (kidnaping) and sections 236 and 237 (false imprisonment) of the Penal Code all in violation of section 182, subd. 1 of that code. In counts 2 through 35, inclusive, all of the defendants were charged with kidnaping, each of these counts referring to a different victim. In counts 36 through 72, each of these defendants was charged with the crime of false imprisonment, each count likewise relating to a different victim. Counts 73 and 74 charged violations of another Penal Code section against appellant Dancer. The substance of these counts is not directly relevant to this appeal. Count 75 charged a misdemeanor assault as to which the defendant involved was acquitted. The nonappealing defendants either were acquitted, dismissed from the action or in one case did not appeal from the judgment of conviction.

Thirteen of the appellants were convicted of the conspiracy charged in count 1 and of three counts of kidnaping and twenty-nine counts of false imprisonment. They were acquitted of all other counts against them. ² The victims of the three kidnaping counts as to which convictions resulted were Glenn Arnett, Byrne Fernelius and Sam Winningham.

The remaining 6 appellants were convicted on 23 counts of false imprisonment and acquitted of all other charges against them.

Facts

No attack is made on the substantiality of the evidence. We set forth here as many of the facts as appear pertinent to the limited issues raised by these appeals.

The charges in question grew out of a claim by black students at the college that a freshman football coach had, during the course of a game, kicked or otherwise abused a black football player who had gone onto the football playing field although he was not at that moment in the game.

Glenn Arnett was the director of athletics as well as a professor at the college. Sam Winningham was a professor of physical education and the varsity football coach. Byrne Fernelius was a professor and chairman of the department of recreation at the college.

Dr. Arnett read in the student newspaper that there was going to be a meeting between himself and members of the Black Student Union to discuss the firing of the freshman football coach. This was the first he knew of such a meeting. Dr. Arnett conferred with Dr. Winningham and then with Dr. Stanley Charnosky, the head of the educational opportunities program. Dr. Arnett indicated that he would be willing to meet with only three representatives of the Black Student Union.

At the time appointed for the meeting there were 50 or 60 black students in or around the physical education building. After some discussions with appellant Archie Chatman, (who assumed a leadership role in the events to follow) as to the size of the meeting, Arnett, Winningham and Charnosky met in a small conference room with four students, including two of the appellants. The maximum length of this conference was approximately 45 minutes, although other witnesses gave it a shorter duration. During the meeting, Dr. Arnett insisted that since a personnel matter was involved, even if he were disposed to fire the freshman football coach, the question would have to be referred ultimately to the president of the college. The discussion became heated and the students commenced to yell. A telephone in the conference room was shoved or thrown at Dr. Arnett so that he could contact the president by telephone.

In the meanwhile, other students occupied the offices of the physical education department whose regular inhabitants were prevented, or felt that they were prevented, from leaving. Dr. Fernelius was in the outer office where the students were present. At a given signal, telephone receivers were taken off the secretaries' desks by male students and placed in wastepaper baskets. At least two times some student or other shouted the word 'Positions,' and most of the students, both those in and out of the conference room, assumed various stances with their clenched fists.

Additional students entered into the conference room so that there were as many as 18 there.

At one point several of the students made the statement 'If the man comes in, we are going to do you.'

We now come to the facts which support the conviction of kidnaping. Those in the conference from were advised that they 'were going to the administration building.' Drs. Arnett, Fernelius and Winningham were then marched from the physical education building to the administration building, a distance of some 700 yards (just slightly less than four-tenths of a mile). They were each physically surrounded by a number of students. Other students, mostly females, went along but were not actually part of the group surrounding the professors.

The professors were moved against their wills to the administration building. During the march, Dr. Arnett was continually jostled or shoved when he tried to delay or stop, as were Drs. Fernelius and Winningham. Each of them went unwillingly; each was afraid; from time to time statements to the effect 'Move along whitey or we will stick you' were made. During the forced trek a black student hit a white student on the jaw. Several times during the march appellant Chatman said to other of the students 'Let's keep our formation; let's keep them enclosed; we are going to the administration building; don't let them out.'

The group marched through the first floor of the administration building, outside again and back inside. The professors were then forced to walk to the fifth floor of the administration building where the president and other top officers of the college had their offices. They were kept on the fifth floor for a matter of some hours until the president of the college arrived and at the direction of appellant Chatman signed a paper relative to various demands of the students.

Contentions

Three contentions are raised by appellants: (1) The 13 appellants convicted of conspiracy to commit kidnaping and of Kidnaping allege that under the teaching of People v. Daniels, 71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225, the act of taking Drs. Arnett, Fernelius and Winningham from the physical education building to the administration building did not constitute the crime of kidnaping but rather was an asportation incidental to the crime of false imprisonment; (2) all appellants claim that they were denied equal protection of the law because they were charged in a grand jury indictment rather than by way of information, and (3) a generalized claim is made that the identification procedures used before the grand jury were so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. We have determined that these claims are without merit.

The Kidnaping Contentions

Daniels established a two-branch test that a kidnaping conviction was improper (1) where the movements of the victims are merely incidental to the commission of the offense otherwise involved--robbery in Daniels, and (2) where the movement of the victims did not substantially increase the risk of harm to them over and above that necessarily present in the underlying crime itself. (See also, People v. Timmons, 4 Cal.3d 411, 414, 93 Cal.Rptr. 736, 482 P.2d 648; People v. Stathos, 17 Cal.App.3d 33, 38, 94 Cal.Rptr. 482.) While Daniels dealt with a conviction under section 209 of the Penal Code dealing with the charge of aggravated kidnaping for the purpose of robbery, the Daniels approach has been held equally applicable to the so-called simple kidnaping involved here under section 207 of the Penal Code. (People v. Williams, 2 Cal.3d 894, 901, 88 Cal.Rptr. 208, 471 P.2d 1008.)

Appellants here assert that the movement involved here was merely incidental to the crime of false imprisonment. We agree with appellants that the mere distance of a movement as such is not itself the controlling factor. We reject their assertion that Daniels precludes a kidnaping conviction.

We look first at the 'risk of harm' element. While the question may be one of law in some factual settings, e.g., movements within apartments or premises in connection with robberies and rapes (People v. Daniels, Supra,71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225), in most cases whether a movement substantially increases the risk of harm is a question of fact. (People v. Gibbs, 12 Cal.App.3d 526, 546, 90 Cal.Rptr. 866; People v. Moreland, 5 Cal.App.3d 588, 594, 85 Cal.Rptr. 215.) The trial court here affirmatively found that the reasoning of Daniels was not applicable 'under the facts in this case.'

Compared with the situation in the Physical Education Department offices, during the movement found to constitute the kidnaping, there was a much larger crowd surrounding the three victims of the kidnaping counts. They were bodily and forcibly pushed and shoved during the movement. Threats were made to 'stick them' and they were forced to walk against their will down one flight of stairs in the physical education building and up four flights of stairs in the administration building. There is obviously substantial evidence to support the...