People v. Ellis

• Decision Date: 05 February 1971
• Docket Number: Cr. 8508
• Parties: PEOPLE of the State of California, Plaintiff and Appellant, v. Nathan ELLIS, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

Page 907

92 Cal.Rptr. 907

15 Cal.App.3d 66

PEOPLE of the State of California, Plaintiff and Appellant, v. Nathan ELLIS, Defendant and Respondent.

Cr. 8508.

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

Feb. 5, 1971.

Thomas C. Lynch, Atty. Gen., Derald E. Granberg, Sanford Svetcov, Deputy Attys. Gen., San Francisco, for plaintiff and appellant.

Edward T. Mancuso, Public Defender of the City and County of San Francisco, Charles G. Warner, Ina Gyemant, Deputy Public Defenders, San Francisco, for defendant and respondent.

ELKINGTON, Associate Justice.

This appeal by the People is taken from a superior court order setting aside (pursuant to Pen.Code, § 995) counts one, four, seven, and nine of a grand jury indictment returned against defendant Nathan Ellis. Each of the dismissed counts stated a charge of kidnapping for purpose of robbery, a violation of Penal Code, section 209.

As relevant here Penal Code, section 209 provides: '(A)ny person who kidnaps or carries away any individual to commit robbery, * * * is guilty of a felony * * *.'

The term 'kidnapping' as used in Penal Code, section 209, and as pertinent here, is defined by section 207 of the same code in this manner: 'Every 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, * * * is guilty of kidnapping.' (See People v. Daniels, 71 Cal.2d 1119, 1126, 80 Cal.Rptr. 897, 459 P.2d 225.)

We have concluded that the superior court's order rests upon a misapplication of the rule announced in People v. Daniels, supra, and that the order must therefore be reversed. Our reasons follow.

Daniels (p. 1139, 80 Cal.Rptr. p. 910, 459 P.2d p. 238) holds: '(T)hat the intent of the Legislature in amending Penal Code, section 209 in 1951 was to exclude from its reach not only 'standstill' robberies * * * 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.' Elsewhere the court, referring to the section 207 definition of kidnapping, stated (p. 1130, 80 Cal.Rptr. p. 904, 459 P.2d p. 232): "(T)he Legislature could not reasonably have intended that such Incidental movement be a taking '* * * from one part of the county to another."'

The term 'incidental' is ordinarily defined as 'subordinate, nonessential, or attendant in position or significance. * * *' (Webster's New International Dictionary (3d ed.)); and as 'Depending upon or appertaining to something else as primary' (Black's Law Dictionary (4th ed.)). But if this broad meaning be given the term 'incidental' as used in Daniels, it must have the effect of nullifying section 209, for by definition a kidnapping for the purpose of robbery is subordinate, secondary and ancillary, and therefore Incidental, to the intended crime.

In Daniels the court reversed three section 209 (kidnapping for the purpose of robbery) convictions. In that case on three occasions one or both of the defendants gained entrance to residential quarters occupied by a lone woman. In the course of ensuing robberies and rapes the victims, under compulsion, moved respective distances within their living areas of 18 feet, 5 or 6 feet, and 30 feet. The court pointed out (p. 1140, 80 Cal.Rptr. p. 910, 459 P.2d p. 238): '* * * 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.' (Pen.Code, § 207.)'

A reading of Daniels will indicate no intent to emasculate the kidnapping for the purpose of robbery statute, but rather to prevent its application under inappropriate factual circumstances. Its holding will only be applied, the court indicated, where the asportative acts are 'integral to other crimes and are not essentially kidnapping' (p. 1136, 80 Cal.Rptr. p. 908, 459 P.2d p. 236), or where they "played no significant role in the crimes" or where they occurred 'as a subsidiary incident,' or did not facilitate 'the commission of a felony.' (Pp. 1137--1138, 80 Cal.Rptr. p. 908, 459 P.2d p. 236) And the court expressed agreement with the drafters of the proposed Model Penal Code for the need to make 'clear the purpose to preclude kidnapping convictions based on trivial changes of location having no bearing on the evil at hand.' (P. 1138, 80 Cal.Rptr. p. 909, 459 P.2d p. 237)

In Daniels the court appears to have relied substantially on People v. Levy, 15 N.Y.2d 159, 256 N.Y.S.2d 793, 204 N.E.2d 842, and People v. Lombardi, 20 N.Y.2d 266, 282 N.Y.S.2d 519, 229 N.E.2d 206.

In People v. Levy, supra, as a couple were about to emerge from their automobile two men entered. One took control of the vehicle and drove aimlessly for a considerable distance around city streets while the other, in the back seat, robbed the victims. The men were convicted of kidnapping and other offenses. The appellate court reversed the kidnapping convictions, concluding that the car's movement in no way facilitated the robberies since they could as well have been committed in the parked car. The court said (15 N.Y.2d p. 165, 256 N.Y.S.2d p. 796, 204 N.E.2d p. 844): 'In the case before us the movement of the automobile, which was itself the situs of the robbery, was not essentially different in relation to the robbery than would be the tying up of a victim in a bank and his movement into another room. In essence the crime remained a robbery although some of the kidnapping statutory language might literally also apply to it.'

In People v. Lombardi, supra, 20 N.Y.2d 266, 282 N.Y.S.2d 519, 229 N.E.2d 206, a pharmacist on each of several occasions drugged a girl and then drove her a considerable distance to a motel where he sexually molested her. The court, relying on People v. Levy, supra, reversed the kidnapping convictions which followed. The stated reasons were (pp. 270--271, 282 N.Y.S.2d p. 521, 229 N.E.2d p. 208): 'But the direction of the criminal law has been to limit the scope of the kidnaping statute, with its very substantially more severe penal consequences, to true kidnapping situations and not to apply it to crimes which are essentially robbery, rape or assault and in which some confinement or asportation occurs as a subsidiary incident. ( ) Asportation in the present case, for example, played no significant role in the crimes. Had defendant drugged his victims and taken them to a room in back of the pharmacy and there attempted to rape them or make sexual advances, the crimes would appear more clearly to be attempted rape or assault and essentially something other than kidnapping. ( ) * * * One might suppose that taking his drugged victims in daylight to a public motel, thus inviting the possible risk of inquiry, was a less certain way of achieving his purpose than taking them somewhere on the pharmacy premises.'

We advert to the holding of the Daniels court, stated Ante, that "the Legislature could not reasonably have intended that such Incidental movement be a taking '* * * from one part of the county to another."' (Emphasis added; 71 Cal.2d p. 1131, 80 Cal.Rptr. p. 904, 459 P.2d p. 232) It becomes clear from a reading of Daniels, and the authority there relied upon, that the term 'incidental' was used in the sense that the asportation play no significant or substantial part in the planned robbery, or that it be a more or less "trivial changes of location having no bearing on the evil at hand." 71 Cal.2d at p. 1138, 80 Cal.Rptr. at p. 909, 459 P.2d at p. 237)

It thus appears to be the rule of Daniels that where 'the movements of the victim are merely incidental to the commission of robbery (i.e., playing no significant or substantial part in the attempt to accomplish that crime), and do not substantially increase the risk of harm over and above that necessarily present in the crime of robbery itself' (see p. 1139, 80 Cal.Rptr. p. 910, 459 P.2d p. 238), the strictures of Penal Code, section 209 are not applicable.

Such appears to be the interpretation given Daniels by several Post Daniels cases of the Courts of Appeal of this state.

In People v. Ross, 276 Cal.App.2d 729, 81 Cal.Rptr. 296 (hrg. den.), four men were charged with kidnapping (Pen.Code, § 207), and robbery of a clothing store. The asportation of the victims consisted of ordering two employees to lie on the floor, and then requiring one of them to open a back door and return to his prone position. In this close factual counterpart of Daniels the Court of Appeal found that the asportation of the victims 'was 'merely incidental to' the robbery and did not 'substantially increase' the potential for harm' to the victims, and reversed the kidnapping convictions.

In People v. Ramirez, 2 Cal.App.3d 345, 82 Cal.Rptr. 665 (hrg. den.), the victim was pulled from her automobile and thrown by two men into the back seat of another car. As the car drove off the men clearly indicated by words and acts an intent to rape the girl; they were, however, intercepted by police before they could accomplish their purpose. One of the men, Ramirez, was later found guilty of kidnapping (Pen.Code, § 207), attempted rape, and assault with intent to commit rape. The Court of Appeal sustained the kidnapping conviction. Daniels was interpreted as holding (p. 354, 82 Cal.Rptr. p. 671) that a person is guilty...