People v. Tribble

• Decision Date: 12 May 1971
• Docket Number: Cr. 15212
• Citation: 4 Cal.3d 826,484 P.2d 589,94 Cal.Rptr. 613
• Court: California Supreme Court
• Parties: , 484 P.2d 589 The PEOPLE, Plaintiff and Respondent, v. Willie Lee TRIBBLE, Defendant and Appellant.

Page 613

94 Cal.Rptr. 613

4 Cal.3d 826, 484 P.2d 589

The PEOPLE, Plaintiff and Respondent, v. Willie Lee TRIBBLE, Defendant and Appellant.

Cr. 15212.

Supreme Court of California,

In Bank.

May 12, 1971.

Philip Jefferson, Los Angeles, under appointment by the Supreme Court, for defendant-appellant.

Thomas C. Lynch and Evelle J. Younger, Attys. Gen., William E. James, Asst. Atty. Gen., and Howard J. Schwab, Deputy Atty. Gen., for plaintiff-respondent.

WRIGHT, Chief Justice.

The principal issue considered in this opinion is when the specific intent to rob must be formed in relation to the seizing of the victim in order to constitute a violation of Penal Code section 209 (kidnaping for the purpose of robbery) in those offenses which took place after the 1951 amendment to said code section. We have concluded that the intention to commit robbery must be present at the time of the original asportation.

A jury found defendant guilty of robbery in the first degree (Pen.Code, §§ 211, 211a) kidnaping to commit robbery with bodily harm (Pen.Code, § 209), and oral copulation (Pen.Code, § 288a). It fixed the penalty for the kidnaping at life imprisonment without possibility of parole. Defendant appeals from the judgment entered on the verdicts.

Facts

About 10:50 p.m. on January 19, 1969, the victim arrived at the Los Angeles International Airport from Canada en route to the Philippines. To continue her trip she had to go from the American Airlines terminal to the Japan Airlines terminal. She was unable to find a taxi and therefore accepted the offer of a man who approached her to have a friend drive her to the Japan Airlines terminal. The friend, later identified as defendant, drove up and the other man and the victim got in the car. Defendant drove away from the airport, refused to allow the victim to leave the car, and finally parked in a dark area. The two men then forced the victim to orally copulate and masturbate each of them. Each then raped her. ¹ Defendant's companion told her that he had a knife in the glove compartment of the car and would kill her if she did not cooperate.

After the sex offenses were completed, defendant resumed driving. The victim tried to induce the men to take her back to the airport, but instead they took her luggage and the money from her handbag, and finally let her out of the car at an isolated place. As they drove away she was able to read the license number of the car. A passerby drove her to a police station, and she told the officers what had happened. From the license number the officers determined the name and address of the owner. They went to the address about 1:45 a.m. and saw the car parked in the driveway. On its top was a red photograph album that the victim had reported was taken from her. The officers then entered defendant's apartment and arrested him. Within the apartment they found the other personal property taken from the victim. Apparently the other man involved in the crimes was never apprehended.

Kidnaping

The court instructed the jury that 'Anessential element of the crime of Kidnapping for the Purpose of Robbery is that the defendant had the specific intent to commit said robbery at any time during the course of the kidnapping. This intent must be a motivating purpose of the action, although it need not be the only such purpose. (Par.) To constitute the crime of Kidnapping for the Purpose of Robbery, it is not necessary that the perpetrator shall have intended to commit robbery at the time of first contacting the complaining witness. It is sufficient even if the intent to commit robbery was formed later but during the progress of the kidnapping.'

These instructions are in accord with the holding in People v. Brown (1947) 29 Cal.2d 555, 558, 176 P.2d 929. That holding, however, was based on the language of section 209 as it read before its amendment in 1951. ² At that time section 209 included any person 'who holds or detains (the victim) * * * to commit extortion or robbery.' Accordingly, the court stated that the 'section makes it unnecessary to determine whether the kidnaper intended to commit extortion or robbery at the time of the original seizure or carrying away. It is sufficient if the extortion or robbery was committed during the course of the abduction. Thus, whatever may have been the original motive of the kidnaping, if the kidnaper commits extortion or robbery during the kidnaping, he 'holds or detains' his victim 'to commit extortion or robbery' within the meaning of section 209.' (29 Cal.2d at p. 558, 176 P.2d at p. 931.)

Subsequently, in People v. Knowles (1950) 35 Cal.2d 175, 180--181, 217 P.2d 1, the court extended the holding in Brown and concluded that section 209 did not require any asportation of the victim and that therefore even a 'standstill' robbery could be punished under its terms. (See People v. Daniels (1969) 71 Cal.2d 1119, 1139, 80 Cal.Rptr. 897, 459 P.2d 225.) Thereafter, in 1951, the Legislature amended section 209 and abrogated the rule of the Knowles case. ³ The section no longer covers a person who 'seizes, confines, inveigles, entices, decoys, abducts (or) conceals * * * any individual * * * with intent to hold or detain, or who holds or detains, such individual * * * to commit * * * robbery.' Insofar as robbery is concerned, the section now applies only to 'any person who kidnaps or carries away any individual to commit robbery.'

The 1951 amendment did more than make asportation an element of the crime of kidnaping to commit robbery. It also abrogated the rule of the Brown case. A person could not kidnap and carry away his victim to commit robbery if the intent to rob was not formed until after the kidnaping had occurred. As the court stated in People v. Smith (1963) 223 Cal.App.2d 225, 234, 35 Cal.Rptr. 719, 724, in condemning instructions essentially the same as those given in this case, both the Brown case and the Knowles case 'preceded the 1951 amendment when detention alone was sufficient to constitute kidnapping for purpose of robbery and no asportation was required. (Par.) * * * (A)n additional effect of the change in the statute is to make it necessary for the trier of fact to determine whether the kidnaper intended to commit robbery at the time of the original seizing. In this respect the crime is similar to burglary where it is necessary to show that the entry was with the intent to commit larceny or any felony. An illegal entry but without such an intent is not a burglary, (People v. Jenkins, 16 Cal. 431); similarly since the 1951 amendment to section 209, kidnapping without intent to rob constitutes kidnapping but not kidnapping for purpose of robbery; and a robbery during a kidnapping where the intent was formed after the asportation is a robbery and not a kidnapping for purpose of robbery.' (Per Burke, P.J.; accord: People v. Lindsay (1964) 227 Cal.App.2d 482, 508--510, 38 Cal.Rptr. 755.) In re Ward (1966) 64 Cal.2d 672, 676, 51 Cal.Rptr. 272, 414 P.2d 400, is not to the contrary, for the court was there considering crimes that were committed before the 1951 amendment to section 209. People v. Paxton (1967) 255 Cal.App.2d 62, 72, 62 Cal.Rptr. 770, and People v. Gomez (1967) 252 Cal.App.2d 844, 859, 60 Cal.Rptr. 881, are not persuasive, for neither case considered the impact of the 1951 amendment. To the extent that they are inconsistent with our decision herein they are disapproved.

In the present case defendant was entitled to have the jury determine whether he intended to commit robbery at the time the kidnaping commenced or whether the intent to commit robbery was an after-thought to a kidnaping that was sexually motivated. The instructions took this issue from the jury, and the error was therefore prejudicial. (People v. Smith, supra; People v. Lindsay, supra.)

Other Contentions

Defendant contends that the victim's personal property seized in defendant's apartment was illegally obtained on the ground that the arresting officers did not demand admittance and explain their purpose before entering the apartment. ⁴ Officer Moen, one of the arresting officers, located defendant's apartment through the license number supplied by the victim. He saw the car, which was a Rambler registered in defendant's name, in the driveway and found defendant's name on the mailbox of apartment No. 3. He found a photograph album that the victim had reported as having been taken from her on top of defendant's car. He called for assistance and waited in his police car parked on the street. He then saw two men in a Volkswagen that had been parked in the driveway near defendant's apartment. The Volkswagen started to back out and then drove rapidly forward and stopped. Additional officers had then arrived, and they went to the Volkswagen, arrested its occupants, and recovered a gun. Officer Moen then went to the door of defendant's apartment where he heard what sounded like running footsteps. Another officer forced the door open, and Officer Moen entered with his gun drawn.

Compliance with the demand and notice requirements of section 844 is excused if the specific facts known to the officer before his entry are sufficient to support his good faith belief that compliance will increase his peril, frustrate the arrest, or permit the destruction of evidence. (People v. Gastelo (1967) 67 Cal.2d u586, 587--588, 63 Cal.Rptr. 10, 432 P.2d 706; People v. De Santiago (1969) 71 Cal.2d 18, 23--29, 76 Cal.Rptr. 809, 453 P.2d 353.) In the present case, the violent character of the crimes involved, the victim's 586, 587--588, 63 Cal.Rptr. 10, 432 P.2d recovery of a gun from the Volkswagen, and the sound of running footsteps within fully justified Officer Moen's stated belief that 'I felt that there was a possibility of bodily injury to myself or my partner if we hesitated.' Compliance with section 844 was therefore excused. ⁵

Defendant contends that a lineup at which he was identified by the victim a few hours after...