People v. Rocco

• Decision Date: 12 November 1971
• Docket Number: Cr. 8733
• Citation: 98 Cal.Rptr. 365,21 Cal.App.3d 96
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Johnny Angelo ROCCO, Defendant and Appellant.

Page 365

98 Cal.Rptr. 365

21 Cal.App.3d 96

PEOPLE of the State of California, Plaintiff and Respondent, v. Johnny Angelo ROCCO, Defendant and Appellant.

Cr. 8733.

Court of Appeal, First District, Division 4, California.

Nov. 12, 1971.

John F. Shirley, Shirley & Peterson, San Francisco, for appellant (under appointment of the Court of Appeal).

Evelle J. Younger, Atty. Gen., of Cal., Robert R. Granucci, Sanford Svetcov, Deputy Attys. Gen., San Francisco, for respondent.

CHRISTIAN, Justice.

Johnny Rocco appeals from a judgment sentencing him to concurrent terms of imprisonment after a jury found him guilty of kidnapping (Pen.Code, § 207) and forcible rape (Pen.Code, § 261). Appellant admitted prior convictions of burglary, forcible rape, and oral copulation.

The victim testified that on June 4, 1969, at approximately 1:00 in the morning, she drove to an apartment building in Berkeley seeking to find her estranged husband at his girlfriend's apartment. She parked her car next to her husband's, which she found in a garage adjoining the apartment. While she was at the entrance of the building, looking for the name of her husband or of his girlfriend, appellant and codefendant Vea drove up. Vea approached and began to talk to her. Noticing a strong odor or alcohol on his breath, she returned to her car. Vea followed and, when she got into the driver's seat pushed her to one side, took the keys from her, and grabbed her by the neck. Rocco then entered the car, and Vea drove to an unpopulated place in the Berkeley hills. Vea told Mrs. Kling that he had a gun and on several occasions threatened to use it if she did not cooperate. The victim submitted to intercourse with, first, appellant, then Vea. She submitted without resistence because fear induced by threats which had been made. After about 30 to 40 minutes, she was returned to the area from which she had been abducted, and soon reported the incident to the police.

Vea testified that the victim consented to intercourse with both men, after requesting them to beat up her estranged husband and to assist her in stealing his car. The victim denied making such suggestions. Appellant did not testify.

Appellant first contends that the kidnapping conviction must be reversed in light of People v. Daniels (1969) 71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225, which held that brief movements of a victim which are merely incidental to the commission of another offense and do not substantially increase the victim's risk of harm do not constitute kidnapping. The Daniels principle is applicable to simple kidnapping under Penal Code section 207, as well as to aggravated kidnapping under Penal Code section 209. (People v. Williams (1970) 2 Cal.3d 894, 901, 88 Cal.Rptr. 208, 471 P.2d 1008; Cotton v. Superior Court (1961) 56 Cal.2d 459, 15 Cal.Rptr. 65, 364 P.2d 241.)

A review of the background and of the current development of the Daniels principle will assist in the consideration of appellant's contention. In Cotton v. Superior Court, supra, 56 Cal.2d 459, 15 Cal.Rptr. 65, 364 P.2d 241, the Supreme Court first declared that movement merely incidental to the commission of another crime was not itself punishable as kidnapping under Penal Code section 207. This construction of the statute was given broader effect in People v. Daniels, Supra, 71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225, when the court held that the kidnapping-for-robbery provision of the code (Pen.Code, § 209) did not apply to forced movement, associated with a robbery, 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.' (71 Cal.2d at p. 1139, 80 Cal.Rptr. at p. 910, 459 P.2d at p. 238.) Daniels involved room-to-room movements incident to robberies; the court did not indicate an intention to expand its holding beyond those facts.

Similarly, in People v. Williams (1970) 2 Cal.3d 894, 88 Cal.Rptr. 208, 471 P.2d 1008, cert. den. 401 U.S. 919, 91 S.Ct. 903, 27 L.Ed.2d 821, the court dealt with a gas station robbery in which the victim/attendant was moved within the premises. Answering the Attorney General's contention that the movement of the victim was not 'incidental' because not necessary to the commission of the crime, the court declared that because movement appeared 'to have been brief and to have been solely to facilitate the commission of the crime of robbery' it was incidental within the meaning of Daniels. (2 Cal.3d at p. 902, 88 Cal.Rptr. at p. 213, 471 P.2d at p. 1013.)

In People v. Timmons (1971) 4 Cal.3d 411, 93 Cal.Rptr. 736, 482 P.2d 648, the Supreme Court for the first time considered the application of Daniels to a case involving movement away from the primary site of a robbery. There a supermarket employee had been forced to drive a car five blocks in daylight on a city street while the robber seized money belonging to the store; the robber then proceeded to rendezvous with an accomplice. (4 Cal.3d at pp. 413--414, 93 Cal.Rptr. 736, 482 P.2d 648.) The court first restated the two branches of the Daniels test: (1) whether the movement was merely incidental to the commission of another crime; and (2) whether the movement substantially increased the risk of harm. Then, discussing the incidental nature of the movement, the court reemphasized the Williams definition, declaring that 'A reasonably brief movement for the purpose of facilitating the commission of the robbery is 'incidental' thereto within the meaning of Daniels.' (4 Cal.3d at p. 414, 93 Cal.Rptr. at p. 738, 482 P.2d at p. 650.) Citing with approval People v. Schafer (1970) 4 Cal.App.3d 554, 560--561, 84 Cal.Rptr. 464, the Supreme Court indicated that crriminal liability did not depend on any indoor-outdoor rule or on any specified distance, but rather on the character of the movement as incidental to the crime. In Schafer, two rape victims had been moved 'about one mile' and 'a few hundred yards' and the appellate court had held that Daniels compelled reversal of the kidnapping counts. (4 Cal.3d at p. 415, 93 Cal.Rptr. 736, 482 P.2d 648.)

On the question of increased danger, Timmons held that merely increased probability that the crime would succeed did not support liability for kidnapping. 'Rather, we intended to refer to an increase in the risk that the victim may suffer significant physical injuries over and above those to which a victim of the underlying crime is normally exposed.' (4 Cal.3d at p. 414, 93 Cal.Rptr. at p. 738, 482 P.2d at p. 650, emphasis added.) As an example of a substantial increase in the risk of harm, the court pointed to the circumstances of People v. Ramirez (1969) 2 Cal.App.3d 345, 82 Cal.Rptr. 665, where defendant and a cohort abducted a girl, attempted rape, and were chased by police; in a wild race the fugitive car overturned and defendant's cohort was killed. (4 Cal.3d at p. 415, 93 Cal.Rptr. 736, 482 P.2d 648.) Noting that there was no indication in the facts of Timmons that there was any increase in the danger to the victims over and above that inherent in robbery, the court said that 'In the circumstances, this brief asportation may conceivably have increased the risk in some slight degree beyond that inherent in the commission of the robberies, but it cannot be said to have 'substantially' increased that risk.' (4 Cal.3d at p. 416, 93 Cal.Rptr. at p. 739, 482 P.2d at p. 651.) Timmons' kidnapping conviction was accordingly vacated.

After Daniels, at least 30 reported appellate decisions have dealt with Daniels based challenges to charges of kidnapping. Of these 11 were reversals of convictions based on movements within buildings; these cases merely apply the Daniels rule to Daniels facts. ¹ Of the remaining 19, several are of doubtful value as arguably having been superseded by the Timmons decision which postdated them. ²

Analysis of the 'substantial danger' part of the Daniels test has received less attention, but two conceptual problems have emerged: (1) the definition of a substantial increase in danger; and (2) the extent to which the determination of substantial increase in danger presents a question of fact.

We have seen that there is no substantial increase in the 'risk of harm' within the meaning of Daniels where the movement does no more than increase the chance that the intended crime will be carried out successfully; Daniels-Timmons requires dangers 'over and above those to which a victim of the underlying crime is normally exposed.' (4 Cal.3d at p. 414, 93 Cal.Rptr. at p. 738, 482 P.2d at p. 650.) Accordingly, in In re Bryant (1971) 19 Cal.App.3d 933, 97 Cal.Rptr. 40, the Court of Appeal vacated three kidnap convictions involving movements within a store but held that movement of a hostage for some distance out of the store 'accompanied by petitioner's threat to kill him if the police were called, substantially increased the risk of harm to him far beyond that inherent in the crime of robbery.' The court noted that additional risks were inherent in any abduction to prevent apprehension by the police. (19 Cal.App.3d at p. 936, 97 Cal.Rptr. 40.)

The second conceptual problem in regard to the 'risk of harm' test is the question whether the appellate court, where the question was not put to the jury under appropriate instructions, can make a determination as a matter of law or must remand for trial as a question of fact. In both Timmons and People v. Mutch (1971) 4 Cal.3d 389, 93 Cal.Rptr. 721, 482 P.2d 633, the kidnap convictions were reversed, the court concluding as a matter of law that there was no substantial increase to the victim's danger. In other cases the Courts of Appeal have reversed for determination of the substantial danger question rather than decide the issue themselves. In People v. Chavez (1970) 4 Cal.App.3d 832, 84 Cal.Rptr. 783, the victim was moved 240 feet off a street into a field and robbed....