People v. Hoard

• Citation: 103 Cal.App.4th 599,126 Cal.Rptr.2d 855
• Decision Date: 07 November 2002
• Docket Number: No. E030278.,E030278.
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Victor Maurice HOARD, Defendant and Appellant.

126 Cal.Rptr.2d 855

103 Cal.App.4th 599

The PEOPLE, Plaintiff and Respondent, v. Victor Maurice HOARD, Defendant and Appellant.

No. E030278.

Court of Appeal, Fourth District, Division 2.

November 7, 2002.

Review Denied January 29, 2003.

Nancy E. Olsen, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda L. Cartwright-Ladendorf, Supervising Deputy Attorney General, and Melissa Mandel, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

GAUT, J.

1. Introduction

After confining two female employees to a back room, defendant robbed a Temecula jewelry store of $40,000 worth of jewelry and escaped in the car of one of the employees. A jury convicted defendant of armed robbery, aggravated kidnapping, carjacking, and various related special allegations. In addition, the court found defendant had incurred three previous strike convictions. The court sentenced defendant to a total indeterminate sentence of 45 years to life.

Defendant appeals, challenging the two convictions for kidnapping to commit robbery and the conviction for carjacking for insufficiency of evidence. We hold that defendant's movement of the victims was merely incidental to the robbery and did not increase the risk of harm to them. We reverse the convictions for aggravated kidnapping but affirm the conviction for carjacking even though it differs somewhat from the more typical carjacking scenario where a victim is accosted in or near her car.

2. Facts

Joy Salem and Sarah Gibeson were employed by the Jewelry Mart. The owner, Roukan Hatter, had twice purchased jewelry from defendant.

Defendant entered the store shortly after it opened one Sunday afternoon. He displayed a gun and ordered the women to give him the key to the jewelry cases. He also demanded the keys to Gibeson's car. He directed the women into the office at the back, tied their ankles and wrists with duct tape, and taped their mouths. Then he began taking jewelry from the cases. When customers entered the store, he told them it was closed for maintenance or performing inventory.

Gibeson tried to call 911 on her cellular phone but she dropped the phone. Defendant returned to the office, threatened the women, and pulled the office phone out of the wall. After that, he left. After some other customers helped release the women, Gibeson saw her car had been taken.

3. Kidnapping to Commit Robbery

Defendant argues that, even viewing the evidence most favorably to the judgment,¹ the evidence is insufficient to show the element of asportation required by Penal Code section 209, subdivision (d),² and to prove aggravated kidnapping, in this instance, kidnapping to commit robbery.

Section 209 applies "if the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense."³ More simply, the movement must be more than incidental and must increase the inherent risk of harm.

The two-pronged test was derived from the California Supreme Court case of People v. Daniels,⁴ in which two defendants committed a number of rapes. In each instance, the rapists moved the victims short distances and the court deemed the movements to be incidental: "[Defendants had no interest in forcing their victims to move just for the sake of moving; their intent was to commit robberies and rapes, and the brief movements which they compelled their victims to perform were solely to facilitate such crimes. It follows, a fortiori, that those movements were `incidental to' the robberies and rapes...."⁵

Daniels cited a line of New York authority, including a case discussing an example exactly like the present one: "The court recognized that `Kidnapping is, by contemporary statutory standards, one of the most serious of crimes. In our era this crime has assumed particularly reprehensible forms.' [Citation.] But the court then turned to fundamentals, observing that `In basic concept the crime of kidnapping envisages the asportation of a person under restraint and compulsion. Usually the complete control of the person and the secrecy of his location are means of facilitating extortion.' [Citation.] Noting the breadth of the statutory definition of kidnapping, the court reasoned that it `could literally overrun several other crimes, notably robbery and rape, and in some circumstances assault, since detention and sometimes confinement, against the will of the victim, frequently accompany these crimes. Some of the definitions could apply alike to kidnapping and abduction. It is a common occurrence in robbery, for example, that the victim be confined briefly at gunpoint or bound and detained, or moved into and left in another room or place.'"<sup>6</sup> Additionally, the Daniels court mentioned the New York court's example of a robbery involving "`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.'"⁷

Citing the Model Penal Code, the Daniels court recognized "`the absurdity of prosecuting for kidnapping in cases where the victim is forced into his own home to open the safe, or to the back of his store in the course of a robbery.'" ⁸ Generally, brief movement inside the premises where a robbery is being committed is considered incidental to the crime and does not substantially increase the risk of harm otherwise present.⁹

Daniels concluded brief movement was "merely incidental" 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...."¹⁰

In re Earley,¹¹ a robbery case, followed Daniels. Earley repeated the twopronged requirement that "movements of a victim can constitute kidnapping for the purpose of robbery (§ 209) only if the movements (1) are not merely incidental to the commission of the robbery and (2) substantially increase the risk of harm beyond that inherent in the crime of robbery."¹² Earley pronounced: "Brief movements to facilitate either robbery or robbery and rape are incidental thereto within the meaning of Daniels. [Citations.] On the other hand movements to facilitate the foregoing crime or crimes that are for a substantial distance rather than brief are not incidental thereto within the meaning of Daniels."¹³ The Earley court then held that movement of 10 to 13 blocks to commit robbery was substantial and not "`merely incidental'" "even though it may have been solely to facilitate the commission of the robbery."¹⁴

The Earley court qualified these statements in footnote 11: "There is no merit to an assertion by Earley that `when the robber's intent is solely to facilitate the robbery the movement is merely incidental' thereto within the meaning of Daniels. ... Although one definition of `incidental' is `nonessential' [citation], that manifestly was not the sense in which the word `incidental' was used in Daniels. Movement across a room to facilitate a robbery might be essential to the commission of the robbery but be incidental thereto within the meaning of Daniels."¹⁵ Applying Earley in the present case means that, although it may have been either useful or essential to the robbery to put the women in the back room of the jewelry store, it could still be considered incidental movement.

Finally, we arrive at People v. Rayford¹⁶ in which the court again repeated the two prongs comprising kidnapping for robbery, as identified in Daniels and Earley:

"Kidnapping for robbery, or aggravated kidnapping, requires movement of the victim that is not merely incidental to the commission of the robbery, and which substantially increases the risk of harm over and above that necessarily present in the crime of robbery itself. [Citations.] These two aspects are not mutually exclusive, but interrelated.

"As for the first prong, or whether the movement is merely incidental to the crime of robbery, the jury considers the 'scope and nature' of the movement. [Citation.] This includes the actual distance a victim is moved. However, we have observed that there is no minimum number of feet a defendant must move a victim in order to satisfy the first prong. [Citation.]

"In addition, we have since Daniels, supra, analyzed the question of whether the movement was incidental to the commission of the underlying crime by considering the context of the environment in which the movement occurred. [Citations.] Thus, in Daniels, the defendants, 'in the course of robbing and raping three women in their own homes, forced them to move about their rooms for distances of 18 feet, 5 or 6 feet, and 30 feet respectively.' [Citation.] We held that these brief movements were merely incidental to the commission of robbery. [Citation.] [¶] ... [¶]

"The second prong of the Daniels test refers to whether the movement subjects the victim to a substantial increase in risk of harm above and beyond that inherent in robbery. [Citations.] This includes consideration of such factors as the decreased likelihood of detection, the danger inherent in a victim's foreseeable attempts to escape, and the attacker's enhanced opportunity to commit additional crimes. [Citations.]"¹⁷

In Rayford the court ultimately held there was sufficient evidence of asportation when the victim of a rape was moved 105 feet at night from a parking lot to an area behind a wall and not visible from the street. The facts...