People v. Curtis

• Decision Date: 01 December 1971
• Docket Number: Cr. 8990
• Citation: 98 Cal.Rptr. 775,21 Cal.App.3d 704
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Ronald Elmer CURTIS and Alfred West, Defendants and Appellants.

Page 775

98 Cal.Rptr. 775

21 Cal.App.3d 704

The PEOPLE of the State of California, Plaintiff and Respondent, v. Ronald Elmer CURTIS and Alfred West, Defendants and Appellants.

Cr. 8990.

Court of Appeal, Second District, Division 1, California.

Dec. 1, 1971.

Hearing Denied Jan. 26, 1972.

David N. Rakov, Sherman Oaks, under appointment by the Court of Appeal for defendants and appellants.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., and Russell Iungerich, Deputy Atty. Gen., for plaintiff and respondent.

LILLIE, Acting Presiding Justice.

In 1963 a jury found Curtis and West guilty on count I of kidnapping one Charles and Mrs. Carter for the purpose of robbery (§ 209, Pen.Code) and on Count II, of first degree robbery (§ 211, Pen.Code); it further found that there was no bodily harm as a result of the kidnaping, and both defendants were armed at the time of the commission of the offenses. Curtis admitted to be true the allegation that he had suffered a prior felony conviction (§ 11530, Health & Saf.Code). Defendants appealed from the judgment of conviction but subsequently abandoned the appeal, and the same was dismissed at their request. On defendants' application to recall remittitur the California Supreme Court on May 28, 1971, transferred the cause to this court to recall remittitur, vacate order dismissing the appeal, appoint counsel and determine the appeal in light of People v. Daniels, 71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225; People v. Mutch, 4 Cal.3d 389, 93 Cal.Rptr. 721, 482 P.2d 633, and People v. Timmons, 4 Cal.3d 411, 93 Cal.Rptr. 736, 482 P.2d 648. Such order was issued by this court on June 18, 1971.

On November 14, 1962, between 9 and 10 p.m. Charles was driving with Mrs. Carter on Arlington; as he approached the intersection with Adams he stopped for a red traffic light whereupon Curtis walked up to the driver's side and West to the passenger's side; through the open window on the driver's side Curtis asked Charles 'where is Adams'; Charles replied, 'Fellow, that's Adams here'; Curtis then said, 'Shut your damn mouth,' and pointed a black automatic pistol, either a .32 or .25, at the bridge of his nose between his eyes; West got into the rear, and Curtis told Charles to get over, pushed him over to Mrs. Carter, got into the driver's seat and drove Charles' car about five blocks to a deserted 'dark place' where the freeway was under construction; there were no houses, buildings, or other persons in the area. Curtis stopped the car, then instructed West to search Mrs. Carter; West did so, running his hands over her, through and under her clothing. Meanwhile all of Charles' clothes were 'pulled off' and he was 'stripped buck naked'; his clothing and billfold were searched, all of his cards and papers were thrown on the floor or the car and a $20-bill was taken from him. Defendants warned, 'Don't look back or you'll get your damn brains blown out,' and ran away across the back of the car. Charles drove off naked to 23rd Street where he found a police car. At all times Curtis pointed the automatic at Charles even while he drove the car and during the time defendants searched him and Mrs. Carter.

Defendants denied that they had ever seen Charles or Mrs. Carter and presented an alibi defense.

Relying on People v. Daniels, 71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225, and People v. Timmons, 4 Cal.3d 411, 93 Cal.Rptr. 736, 482 P.2d 648, appellants contend that the movements of the victims were 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, thus the kidnaping convictions must be reversed. In Daniels the movement of the victims was from 5 to 30 feet. The court concluded 'that the brief movements which defendants Daniels and Simmons compelled their victims to perform in furtherance of robbery were merely incidental to that crime and did not substantially increase the risk of harm otherwise present. Indeed, when in the course of a robbery a defendant does no more than move his victim around inside the premises in which he finds him--whether it be a residence, as here, or a place of business or other enclosure--his conduct generally will not be deemed to constitute the offense proscribed by section 209. Movement across a room or from one room to another, in short, cannot reasonably be found to be asportation 'into another part of the same county.' * * *' (71 Cal.2d p. 1140, 80 Cal.Rptr. p. 910, 459 P.2d p. 238.)

Contrary to appellants' claim, People v. Timmons, 4 Cal.3d 411, 93 Cal.Rptr. 736, 482 P.2d 648, is not 'on all fours' with the instant case and is clearly distinguishable. Around 11:15 a.m. market employees, Baird and Miss Stephens, parked in a market parking lot with several bags of cash they had just gotten from the bank; defendant approached them, said it was a holdup, got into the car and directed Baird to drive out of the lot; Baird drove about five blocks; while the car was in motion defendant took the money than ordered Baird to stop, opened the door and got out. The court held that the movement was incidental to the commission of the robbery since the car was the moving situs of the robbery, and that it did not substantially increase the risk of harm beyond that inherent in the...