People v. Hill

• Decision Date: 08 November 1971
• Docket Number: Cr. 9485
• Citation: 98 Cal.Rptr. 214,20 Cal.App.3d 1049
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Lloyd Henry HILL, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

Page 214

98 Cal.Rptr. 214

20 Cal.App.3d 1049

The PEOPLE of the State of California, Plaintiff and Appellant, v. Lloyd Henry HILL, Defendant and Respondent.

Cr. 9485.

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

Nov. 8, 1971.

Evelle J. Younger, Atty. Gen., Robert R. Granucci, William D. Stein, Deputy Attys., Gen., San Francisco, for plaintiff and appellant.

Donatas Januta, San Francisco, for defendant and respondent.

CALDECOTT, Justice.

Respondent Lloyd Henry Hill and four others ¹ were charged by amended indictment filed September 17, 1970 with the following offenses: Count I: conspiracy to commit armed robbery (Pen.Code § 182) Count II: kidnapping of E. Marie Hemphill for purposes of robbery (Pen.Code § 209); Count III: kidnapping Grady Hemphill for the purposes of robbery (Pen.Code § 209); Counts IV, VI, VII: assault with intent to commit murder (Pen.Code § 217); Count V: robbery (Pen.Code § 211). Respondent was charged with a prior felony conviction.

Respondent entered a plea of not guilty.

The superior court dismissed Counts II and III (kidnapping), and the People appeal from the order dismissing these counts.

On Friday, August 28, 1970, Mr. Grady Hemphill was seated in his automobile in the parking lot of a Lucky supermarket in Redwood City. Respondent Hill approached the car, exhibited a pistol in a holster, and ordered Mr. Hemphill out of the car. He directed Hemphill to march towards the store. Approximately half way between the car and the store they encountered Mrs. Hemphill who had been shopping. Mr. Hemphill said, 'This fellow's robbing us. He has our car keys.' Mrs. Hemphill tried to talk Hill into returning the car keys, but he pulled out a 'little hatchet and waved it in front of her face,' and started them both marching back to the store after showing Mrs. Hemphill the gun. As they entered the store, Mrs. Hemphill realized that Hill and an accomplice intended to rob it. Before she realized what happened, Hill was already to a checkstand about 20 feet away from the entrance to the market where he had left the Hemphills standing. She yelled 'It's a robbery. Call the police,' whereupon Hill pulled his gun and shot her in the chest.

The assistant manager of the store was in the office when he heard shots and looked up to see an apparent robbery in progress. He dialed the operator to relay the information to the police. One of the robbers came into the office with a grocery clerk in custody and emptied a safe of currency.

When the police arrived they parked in front of the store. As they left their cars one of the robbers backed out of the store, turned and fired, striking an officer in the arm. The wounded officer managed to recover his weapon and proceeded to the side exit of the store where he apprehended all the robbers as they were entering the getaway vehicle.

The only issue raised on this appeal is whether the superior court erred in dismissing the kidnapping counts of the indictment.

Under the rule of People v. Daniels, 71 Cal.2d 1119, 1139, 80 Cal.Rptr. 897, 910, 459 P.2d 225, 238, a defendant may not be convicted of kidnapping where '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.'

The record reveals no purpose for the movement of the victims herein, Mr. and Mrs. Hemphill, other than to facilitate the robbery of the supermarket. People v. Gibbs, 12 Cal.App.3d 526, 90 Cal.Rptr. 866, to the extent that it requires the movements to be 'necessarily included' in the robbery, has been disapproved by the holding in People v. Timmons, 4 Cal.3d 411, 93 Cal.Rptr. 736, 482 P.2d 648. (See People v. Williams, 2 Cal.3d 894, 902, 88 Cal.Rptr. 208, 471 P.2d 1008.)

The basic question presented by this appeal pertains to the second element of the Daniels case--substantial increase in the risk of harm. The present case is distinguishable from Daniels, People v. Mutch, 4 Cal.3d 389, 93 Cal.Rptr. 721, 482 P.2d 633; People v. Williams, Supra, and People v. Timmons, Supra. As stated in Daniels, '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 (Penal Code) section 209' (Id. 71 Cal.2d at p. 1140, 80 Cal.Rptr. at p. 910, 459 P.2d at p. 238.) In Mutch the alleged kidnapping took place within the offices of a milk company, and the pistol whipping of the victims commenced before there was any movement. In both of these cases, Daniels and Mutch, the victims were...