People v. Williams

• Decision Date: 21 July 1970
• Docket Number: Cr. 14337
• Citation: 471 P.2d 1008,88 Cal.Rptr. 208,2 Cal.3d 894
• Court: California Supreme Court
• Parties: , 471 P.2d 1008 The PEOPLE, Plaintiff and Respondent, v. Theo Ervin WILLIAMS, Defendant and Appellant.

Page 208

88 Cal.Rptr. 208

2 Cal.3d 894, 471 P.2d 1008

The PEOPLE, Plaintiff and Respondent, v. Theo Ervin WILLIAMS, Defendant and Appellant.

Cr. 14337.

Supreme Court of California In Bank.

July 21, 1970.

Michael Korn, Reseda, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Timothy F. O'Leary and James H. Kline, Deputy Attys. Gen., for plaintiff and respondent.

BURKE, Justice.

Theo Ervin Williams was found guilty by a jury on two counts of first degree robbery (Pen.Code, §§ 211 and 211a) and one count of kidnaping for the purpose of robbery (Pen.Code, § 209). The jury also found that he was armed with a deadly weapon at the time of the commission of each offense. The court reduced the kidnaping offense to simple kidnaping (Pen.Code, § 207) in lieu of granting a motion for a new trial and sentenced defendant to prison on each count.

Defendant appeals, contending that: The evidence is insufficient to support his kidnaping conviction in the light of People v. Daniels, 71 A.C. 1165, 80 Cal.Rptr. 897, 459 P.2d 225; the court improperly refused to appoint another attorney when a dispute arose between him and the public defender; the court erred in determining that defendant was competent to represent himself; he was denied his right to counsel at a police lineup; and certain evidence was improperly excluded. We have concluded that only the first contention can be upheld. A further question presented, although not raised by the parties, is whether, as a result of the principles enunciated in People v. Floyd, 71 A.C. 918, 80 Cal.Rptr. 22, 457 P.2d 862, a modification of the judgment is required. As we shall see, such a modification must be made.

Jack Miller, the victim named in one of the robbery counts, testified: About 7 p.m. on December 11, 1967, defendant entered a liquor store in Gardena, where Miller was working. Defendant pointed a sawed-off shotgun at Miller and told him to open the cash register. Miller complied, and defendant took about $290 from the register.

Britton Murry, the victim named in the other robbery count and in the kidnaping count, testified: About 6:15 a.m. on December 12, 1967, defendant and one Smith. ¹ pulled into a service station in Los Angeles where Murry was working, and defendant asked Murry whether he had a battery for the car. After Murry replied in the affirmative, the two men and Murry went inside the station. There Smith pulled out a sawed-off shotgun and defendant asked him for 'the money.' Murry handed him more than $100. They then locked Murry in a bathroom (apparently in the service station), but a few minutes later defendant let Murry out and said he wanted Murry to help carry a tool box and some tires. They took him to the office. After a customer entered the station, they went to the 'lube room' where defendant took the customer's wallet. 'They then returned to the office, a distance of 25 or 30 feet. Defendant was behind Murry, and Murry walked that distance because of fear for his own safety. Murry and the customer took several tires from a rack apparently in the office and brought them and a tool box back to the 'lube room.' Defendant told them to bring the tires and tool box 'outside.' They brought them 'out on the street' and began to put them down beside a car. Smith hollered that was not the car, and defendant said to bring the tires and tool box 'down further.' Murry and the customer put the tires and box outside a station wagon, and defendant told them 'to walk on down the street.' After they got 'so far,' defendant hollered to 'go to the other side of the street.' They then went to a coffee shop where they called the police. Upon returning to the gas station, Murry found the tires and tool box gone.

Officer Phillip Katz testified: On December 13, 1967, he saw defendant and Michael Smith get into a car the officer had under surveillance. He had previously received information that defendant committed the liquor store robbery. The officer followed the car, and, after it stopped, the officer, carrying his badge and revolver, approached the car and ordered the two men to get out. Smith complied. Defendant started to slouch down in the car seat and to reach under it. The officer told him to stop or he would shoot and to get out of the car. After defendant alighted, the officer looked under the seat and found a sawed-off shotgun. According to Murry and Miller, the shotgun looked like the one used in the robberies.

Defendant did not testify in his own behalf. He called two defense witnesses. Verlie Grisham, the first such witness, testified: Defendant was ill with the flu for several days including December 8 to December 12. He was then living at her home. She worked as a physiotherapist from 7:30 a.m. until 4 p.m., and during the time she was home he did not leave the house. He could not leave because he had a temperature. She is engaged to defendant's brother.

Michael Smith, the other defense witness, testified: He and defendant were arrested to December 13, 1967. The last time he saw defendant before that date was about a week earlier. The automobile in which they were riding on the day of the arrest belonged to Willie Brown. Smith had not told defendant the shotgun was in the automobile. Smith is at Wayside Honor Rancho because he was convicted of first degree robbery.

The rule in People v. Daniels, Supra, 71 A.C. 1165, 80 Cal.Rptr. 897, 459 P.2d 225, applies to the instant case, which was pending on appeal when the decision in Daniels was rendered. (People v. Cheffen, 2 Cal.App.3d 638, 82 Cal.Rptr. 658; People v. Ramirez, 2 Cal.App.3d 345, 354--357, 82 Cal.Rptr. 665; People v. Blair, 2 Cal.App.3d 249, 257, 82 Cal.Rptr. 673, People v. Ballard, 1 Cal.App.3d 602, 605--606, 81 Cal.Rptr. 742; People v. Ross, 276 A.C.A. 877, 884 (mod. 1 Cal.App.3d 780a), 81 Cal.Rptr. 296; People v. Diaz, 276 A.C.A. 636 (mod. 1 Cal.App.3d 225b), 81 Cal.Rptr. 16) Although Daniels was directed toward a construction of the statute defining aggravated kidnaping (Pen.Code, § 209), it is clear that the considerations therein enunciated are applicable as well to simple kidnaping (Pen.Code, § 207).

In Daniels, we held 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.' (71 A.C. at p. 1186, 80 Cal.Rptr. at p. 910, 459 P.2d at p. 238.) Under that rule we there concluded that the defendants' acts did not constitute kidnaping. 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. Daniels stated, '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 'into another part of the same county.' (Pen.Code, § 207.)' (71 A.C. at p. 1186, 80 Cal.Rptr. at p. 910, 459 P.2d at p. 238.)

In the instant case as shown by the recited facts the movements of Murry were (1) on the gas station premises and (2) on a sidewalk or street. In determining whether defendant's acts constituted kidnaping we shall consider the former movements first.

Although the movements on the gas station premises do not appear to have been all inside an enclosure, those movements are analogous to movements inside 'a residence * * * or place of business or other enclosure' and cannot reasonably be found to be asportation 'into another part of the same county.' (Pen.Code, § 207.)

No claim is made by the Attorney General, nor does it appear, that those movements substantially increased the risk of harm to Murry over and above that necessarily present in the crime of robbery itself. The Attorney General, however, argues that some of the movements were not 'merely incidental to the commission of the robbery.' He admits that up to the point when Murry was locked in the bathroom all the movements were incidental to the robbery but argues that the movements after Murry was released from the bathroom 'were not incidental because they were not necessary movements of the type which ordinarily occur during the commission of a robbery.' He asserts that the movements and forced action of Murry in obtaining and carrying the tires and tool box constituted 'involuntary servitude' rather than mere incidental movements, and he cites dictionary definitions of the word 'incidental,' apparently relying upon a limited portion of those definitions. ²

The phrase 'merely incidental to the commission of the robbery,' as used in Daniels, however, does not have the restricted meaning urged by the Attorney General. Daniels stated, 'In the present case * * * 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 within the meaning of (Cotton v. Superior Court, 56 Cal.2d 459, 15 Cal.Rptr. 65, 364 P.2d 241), and that 'the Legislature could not reasonably have intended that such incidental movement be a taking * * * from one part of the county to another.'' (71 A.C. at p. 1177, 80 Cal.Rptr. at p. 904, 459 P.2d at p. 232...