People v. Stathos

• Decision Date: 23 April 1971
• Docket Number: Cr. 8264
• Citation: 17 Cal.App.3d 33,94 Cal.Rptr. 482
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Daniel Thomas STATHOS and Kenneth Lee Harnal, Defendants and Appellants.

Page 482

94 Cal.Rptr. 482

17 Cal.App.3d 33

PEOPLE of the State of California, Plaintiff and Respondent, v. Daniel Thomas STATHOS and Kenneth Lee Harnal, Defendants and Appellants.

Cr. 8264.

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

April 23, 1971.

Harold D. Messner, San Francisco, for appellants (Under appointment of the Court of Appeal).

Thomas C. Lynch, Atty. Gen., of California, Robert R. Granucci, Timothy A. Reardon, Deputy Attys. Gen., San Francisco, for respondent.

ELKINGTON, Associate Justice.

Following a trial by jury defendant Daniel Thomas Stathos was convicted of kidnaping for the purpose of robbery (Pen.Code, § 209) and two counts of first degree robbery (Pen.Code, §§ 211, 211a). His codefendant Kenneth Lee Harnal, tried at the same time, was convicted of kidnaping for the purpose of robbery and first degree robbery. (An accomplice in the offenses, Walter Hoefler, pleaded guilty without a trial.) Each defendant has appealed from the judgment which was entered against him on the jury's verdict.

Both Stathos and Harnal contend that the convictions of kidnaping for the purpose of robbery were contrary to law and unsupported by substantial evidence.

The following evidence was introduced at the trial. Luciano Sabella was the owner of a Marin County restaurant. Around 10:30 p.m. on November 24, 1968, he answered the doorbell at his home. He was confronted by Walter Hoefler who, producing a gun, said 'Don't do anything stupid or else I will kill you.' Hoefler then walked in followed by Stathos. Later Harnal joined the two men in the house. Sabella was told by Hoefler that he would be taken to his restaurant 'to open the safe and take money from there.' Around 12:30 a.m. Sabella was taken by Hoefler and Harnal to the restaurant in Sabella's automobile. Stathos remained behind with Sabella's children and his wife who was handcuffed to a piano. The three men had prearranged a plan that when the money was obtained from the restaurant safe Sabella would telephone the house, let the telephone bell ring twice, and then hang up. 'This would signal (Stathos) that everything is all right at the house and he would depart from the house and no one would be harmed.'

Arriving at the restaurant Sabella opened the safe. Hoefler placed its contents in a bag. Sabella then telephoned his home letting the bell ring twice and then hung up. He was then driven to some point where Hoefler and Harnal got out of Sabella's car and into another. Sabella had been admonished: 'Don't call the police, don't stop, get directly to your house because remember that your wife is still there.' He went home and saw that 'she was all right. * * * I went to the kitchen and got the keys to the handcuffs that were left on the table as they told me, and I released her.' Stathos in the meantime had departed.

Neither defendant contends that the foregoing facts were not established by substantial evidence. Instead the contention seems to be that, assuming their truth, a kidnaping for the purpose of robbery as proscribed by Penal Code section 209 was not made out. They rely on the case of People v. Daniels, 71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225. On a petition for rehearing, which we granted, they placed further reliance on a series of decisions of our Supreme Court, filed March 24, 1971, i.e., People v. Mutch, 4 Cal.3d 389, 93 Cal.Rptr. 721, 482 P.2d 633; People v. Timmons, 4 Cal.3d 411, 93 Cal.Rptr. 736, 482 P.2d 648; People v. Adame, 4 Cal.3d 417, 93 Cal.Rptr. 740, 482 P.2d 652; People v. Ungrad, 4 Cal.3d 420, 93 Cal.Rptr. 741, 482 P.2d 653; People v. Killean, 4 Cal.3d 423, 93 Cal.Rptr. 742, 482 P.2d 654; People v. Smith, 4 Cal.3d 426, 93 Cal.Rptr. 743, 482 P.2d 655; People v. Adams, 4 Cal.3d 429, 93 Cal.Rptr. 745, 482 P.2d 657; People v. Hunter, 4 Cal.3d 432, 93 Cal.Rptr. 746, 482 P.2d 658; People v. Coleman, 4 Cal.3d 436, 93 Cal.Rptr. 748, 482 P.2d 660; People v. Norman, 4 Cal.3d 439, 93 Cal.Rptr. 749, 482 P.2d 661; People v. Morrison, 4 Cal.3d 442, 93 Cal.Rptr. 751, 482 P.2d 663.

Specifically it is contended that without conflict, and as a matter of law, the evidence discloses 'that the movement of Sabella was incidental to the robbery and did not increase the risk of harm.' Under Daniels and its recent satellite cases, it is argued, a Penal Code section 209 kidnaping for robbery therefore does not appear.

Defendants misconstrue the rule of Daniels.

In Daniels, and in each of its progeny, the victims were asported by the robbers a short distance, usually a few feet, within the area which was the robbery situs. ¹ In each it was held that a Penal Code section 209 'kidnaping for robbery' as a matter of law was not established by the evidence.

The Supreme Court was concerned with the rapidly growing practice of the "distortion of lesser crimes into a much more serious crime by excess of prosecutorial zeal.' * * * ' (Daniels, 71 Cal.2d p. 1137, fn. 10, 80 Cal.Rptr. p. 908, 459 P.2d p. 237.) It approved language of the draftsmen of the Model Code to the effect: 'Examples of abusive prosecution for kidnapping are common. Among the worst is use of this means to secure a death sentence or life imprisonment for behavior that amounts in substance to robbery or rape, * * *' (Daniels, supra, 71 Cal.2d at p. 1138, 80 Cal.Rptr. at p. 909, 459 P.2d at p. 238.) And the court spoke of the "absurdity of prosecuting for kidnaping 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. * * * " (P. 1138, 80 Cal.Rptr. p. 909, 459 P.2d p. 238.)

Applying this reasoning to the facts of the case before it--movements within a home of from 5 to 30 feet--the Daniels court found a legislative intent that such minimal asportation did not constitute 'kidnaping' under Penal Code section 209. The court stated (p. 1139, 80 Cal.Rptr. p. 910, 459 P.2d p. 239):

'(We) hold that the intent of the Legislature in amending Penal Code section 209 in 1951 was to exclude from its reach not only 'standstill' robberies (e.g., People v. Knowles (1950) * * * 35 Cal.2d 175, 217 P.2d 1) 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. (See Note, Room-to-Room Movement: A Risk Rationale for Aggravated Kidnaping (1959) 11 Stan.L.Rev. 554, 555; Note, A Rationale of the Law of Kidnapping (1953) Colum.L.Rev. 540, 554--557.) * * *'

The above holding has since been spoken of (see People v. Timmons, supra, 4 Cal.3d 411, 414, 93 Cal.Rptr. 736, 482 P.2d 648) as the 'Daniels test' for the nonapplication of section 209, the 'two branches' of which exist where (1) the movements of the victim are merely incidental to the commission of the robbery, and (2) they 'do not substantially increase the risk of harm over and above that necessarily present in the crime of robbery itself.' Where both of the 'branches' appear there can be no 'kidnaping for robbery' as denounced by Penal Code section 209.

As noted, defendants first contend that their asportation of Sabella from his home to his place of business was but 'incidental' to the robbery.

The word 'incidental' is defined as 'subordinate, nonessential, or attendant in position or significance'--'occurring merely by chance or without intuition or calculation * * *.' (Webster's Third New Internat. Dict.; see also People v. Williams, supra, 2 Cal.3d 894, 902, fn. 2, 88 Cal.Rptr. 208, 471 P.2d 1008.)

The Supreme Court has repeatedly emphasized that, in the Daniels context, it gives the word a similar meaning. It has consistently qualified its use of the term 'incidental' by the adverb 'merely.' (See People v. Daniels, supra, 71 Cal.2d 1119, 1139, 80 Cal.Rptr. 897, 459 P.2d 225; People v. Williams, supra, 2 Cal.3d 894, 901, 88 Cal.Rptr. 208, 471 P.2d 1008; People v. Mutch, supra, 4 Cal.3d 389, 395, 93 Cal.Rptr. 721, 482 P.2d 633.) In Daniels, describing its intended meaning, it used or adopted such expressions as, movements which "were those Natural in" the crime involved (71 Cal.2d p. 1130, 80 Cal.Rptr. 897, 459 P.2d 225), 'brief movements' (p. 1130, 80 Cal.Rptr. 897, 459 P.2d 225), 'mere movement of the victim of a crime should not inevitably lead to the criminal's being indicted for kidnapping,' (p. 1132, 80 Cal.Rptr. p. 905, 459 P.2d p. 234), "(i)t is difficult to conceive a situation in which the victim of a robbery does not make some movement under the duress occasioned by force or fear" (p. 1134, 80 Cal.Rptr. p. 906, 459 P.2d p. 235), '(i)t is a common occurrence in robbery, for example that the victim be * * * Moved into and left in another room or place' (p. 1135, 80 Cal.Rptr. p. 907, 459 P.2d p. 236), a true kidnaping situation does not exist where the asportation "played no significant role in the crimes" (p. 1137, 80 Cal.Rptr. p. 908, 459 P.2d p. 237), and "trival changes of location having no bearing on the evil at hand." (P. 1138, 80 Cal.Rptr. p. 909, 459 P.2d p. 238.)

In the case at bench Sabella was transported across Marin County for a substantial distance and was held for a considerable period of time. The asportation was not merely incidental. It was an important, even necessary, part of the criminal project, for without it there could be no robbery, at least in the manner planned by defendants. The first branch of the Daniels test for nonapplication of Penal Code section 209--that the asportation be Merely incidental to the robbery--is not established.

Although not necessary to our conclusion, since an asportation Not merely incidental to a robbery will not defeat a section 209 charge, we nevertheless inquire whether the Daniels test's second branch is applicable here.

Reference to the authority upon which Daniels predicated the second branch of its test makes clear that the court was concerned with something more than the threat of danger...