THE PEOPLE, Plaintiff and Respondent, v. VICTOR MAURICE HOARD, Defendant and Appellant, 103 Cal. App. 4th 599

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, the evidence is insufficient to show the element of asportation required by Penal Code

section 209, subdivision (d), 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.” 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, 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 ” 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. ’ ” 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.’ ” 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.’ ” 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.

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 . . . ,” In re Earley, a robbery case, followed Daniels.

Earley repeated the two-pronged 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.” 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.” 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.” 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.” 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.

Rayford, 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.]” 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 of Rayford differ significantly from the present case in which the movement occurred within the store where the robbery occurred. Despite this line of cases, the lower courts have continued to grapple with the meaning of “merely incidental.” Two recent cases involving kidnapping to commit rape confuse “incidental” with “necessary.” In People v. Salazar, a rapist dragged his victim 29 feet from a motel hallway into a motel bathroom. Salazar reasoned the rape could have been attempted in the motel hallway. Because movement was not necessary to commit the rape, it was not incidental.

Stated affirmatively, according to Salazar, necessary movement is incidental movement. But that equation is contrary to the accepted

definitions of incidental as secondary, minor, subordinate, or nonessential. Salazar acknowledged there are many cases involving alleged kidnapping to commit robbery in which the California Supreme Court has followed Daniels and found movement was incidental.

In a footnote, Salazar tried to distinguish those cases, focusing on a perceived difference between robbery and rape: “Whereas the commission of a robbery may frequently require that a victim be moved to the property which is the object of the robbery, a rape involves solely an attack on the person and does not necessarily require movement to complete the crime.” This sentence does not make sense. Certainly, rape is more easily, if not necessarily, accomplished out of plain view than in a public hallway. It could be said rape may frequently require movement.

It could also be correctly said a robbery does not necessarily require movement. More accurately, some robberies and rapes require movement and some do not. Salazar’s effort to distinguish between rape and robbery is not persuasive. In People v. Shadden, defendant attempted to rape a video store owner after dragging her nine feet into a small back room of the store. The court adopted Salazar’s reasoning that rape does not necessarily require movement and therefore movement was more than incidental.

Like Salazar, Shadden equates the meaning of “incidental” with “necessary:” “The jury could reasonably infer that the movement was not incidental to the attempted rape because Shadden only began the sexual attack after he moved her.” Then, in seeming contradiction, the Shadden court also observes that “when [defendant] closed the door, he enhanced his opportunity to rape and injure [the victim.]” In other words, moving the victim to the back room facilitated the rape and thus, under Daniels, could properly be regarded as incidental to the main crime.

In our view, incidental and necessary do not mean the same thing. The courts in Shadden and Salazar seem to have committed the error of ipse dixit, as when Humpty Dumpty told Alice, “ ‘When I use a word’ ... ‘it means just what I choose it to mean—neither more nor less.’” But we agree with Alice a word should mean what it says: “This prosaic notion is based on our abiding conviction that communication suffers when language says what it does not mean.” Instead, we decline to apply the reasoning used in Salazar and Shadden and analyze the facts of this case under Daniels, Earley, and Rayford.

Here defendant robbed the jewelry store by forcing the two employees to move about 50 feet to the office at the back of the store. Confining the women in the back office gave defendant free access to the jewelry and allowed him to conceal the robbery from any entering customers who might have thwarted him. Defendant’s movement of the two women served only to facilitate the crime with no other apparent purpose. Considering the particular circumstances of this crime, we conclude it was “merely incidental” to the robbery to confine the women in the back of the store.

We also decide the movement did not substantially increase the risk of harm to the women. In Shadden, the court said moving a victim out of the public view causes increased risk because it makes discovery of the crime less likely. But many other cases have held that removal from the public view does not, in itself, substantially increase the risk of harm. Furthermore, a rape victim is certainly more at risk when concealed from public view and therefore more vulnerable to attack.

But in the present case, the victims may have been at less risk tied up in the back office where they could not try to thwart the robbery than had they remained at gunpoint in the front of the store. Nor is this a case in which “substantial movement of a victim, by force or fear . . . poses a substantial increase in the risk of psychological trauma to the victim beyond that to be expected from a stationary robbery . . . .” In the Nguyen case, the victim was moved to five different locations over a period of hours, not 50 feet for a few minutes.

We conclude the elements of aggravated kidnapping were not established and those two counts should be reversed. 4.

Carjacking “ ‘Carjacking’ is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence . . . against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear.” Defendant asserts a carjacking was not proved because defendant did not take Gibeson’s car from “her person or immediate presence,” an area defined for the jury as being within her “reach, observation or control, so that he or she could, if not overcome by violence or prevented by fear, retain possession of the subject property.” Instead, defendant took Gibeson’s keys from her while her car was parked outside the store in a parking lot.

Defendant relies on People v. Medina in which the court found there was a carjacking when the victim “was inside a motel room when his keys were forcibly taken and his nearby car was driven away.” The court sidestepped the issue of what constitutes “immediate presence” in the context of a carjacking because the victim had been lured away from his car by a trick. But Medina offers no support to defendant here.

Instead, it held: “The statute requires force or fear to be applied to the driver . . . clearly a confrontation must occur. . . . [But] the victim need not actually be physically present in the vehicle when the confrontation occurs.” In a subsequent case, the appellate court concluded the crime of carjacking, like the crime of robbery, “may be established not only when the defendant has taken property out of physical presence of the victim, but also when the defendant exercises dominion and control over the victim’s property through force or fear.” Additionally, the People cite a number of federal cases, originating with United States v.

Burns, in which the courts have found that carjackings occurred when the owner was forced to give up his car keys at an inside location and the car was taken from an outside location. In the present case, the elements of carjacking were established. Defendant took possession of Gibeson’s car by threatening her and demanding her car keys. Although she was not physically present in the parking lot when he drove the car away, she had been forced to relinquish her car keys. Otherwise, she could have kept possession and control of the keys and her car.

Although not the “classic” carjacking scenario, it was a carjacking all the same. 5. Disposition We reverse the convictions for aggravated kidnapping but affirm the carjacking and armed robbery convictions. Ward J., concurred. People v. Rayford (1994) 9 Cal.4th 1, 23 [36 Cal.Rptr.2d 317, 884 P.2d 1369]. All statutory references are to the Penal Code.

Section 209, subdivision (b)(2). People v. Daniels (1969) 71 Cal.2d 1119, 1139 [80 Cal.Rptr. 897, 459 P.2d 225, 43 A.L.R.3d 677], People v. Daniels, supra, 71 Cal.2d at pages 1130-1131. People v. Daniels, supra, 71 Cal.2d at page 1135. People v. Daniels, supra, 71 Cal.2d at page 1136. People v. Daniels, supra, 71 Cal.2d at page 1138. People v. Daniels, supra, 71 Cal.2d at page 1140; People v. Mutch (1971) 4 Cal.3d 389, 398-399 [93 Cal.Rptr. 721, 482 P.2d 633]. People v. Daniels, supra, 71 Cal.2d at page 1140. In re Earley (1975) 14 Cal.3d 122 [120 Cal.Rptr. 881, 534 P.2d 721].

In re Earley, supra, 14 Cal.3d at page 127. People v. Earley, supra, 14 Cal.3d at pages 129-130. In re Earley, supra, 14 Cal.3d at page 130. People v. Earley, supra, 14 Cal.3d at page 130, footnote 11. People v. Rayford, supra, 9 Cal.4th 1. People v. Rayford, supra, 9 Cal.4th at pages 12-14. People v. Salazar (1995) 33 Cal.App.4th 341 [39 Cal.Rptr.2d 337]. People v. Salazar, supra, 33 Cal.App.4th at page 347. Webster’s New World Dictionary (3d college ed. 1991) page 682; Webster’s Third New International Dictionary (1993) at page 1142. People v. Salazar, supra, 33 Cal.App.4th at page 347. People v.

Salazar, supra, 33 Cal.App.4th at page 348, footnote 8. People v. Shadden (2001) 93 Cal.App.4th 164 [112 Cal.Rptr.2d 826]. People v. Shadden, supra, 93 Cal.App.4th at page 169, citing People v. Salazar, supra, 33 Cal.App.4th at page 348, footnote 8. People v. Shadden, supra, 93 Cal.App.4th at page 169. People v. Shadden, supra, 93 Cal.App.4th at page 170. People v. Daniels, supra, 71 Cal.2d at pages 1130-1131. Carroll, Through the Looking-Glass and What Alice Found There (1872). Rose v. Superior Court (2000) 81 Cal.App.4th 564, 570 [96 Cal.Rptr.2d 843], People v.

Daniels, supra, 71 Cal.2d at pages 1130-1131; In re Earley, supra, 14 Cal.3d at page 129. People v. Shadden, supra, 93 Cal.App.4th at page 170. People v. Stanworth (1974) 11 Cal.3d 588, 598 [114 Cal.Rptr. 250, 522 P.2d 1058], overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 237 [83 Cal.Rptr.2d 533, 973 P.2d 512]; In re Crumpton (1973) 9 Cal.3d 463, 467 [106 Cal.Rptr. 770, 507 P.2d 74]. People v. Nguyen (2000) 22 Cal.4th 872, 886 [95 Cal.Rptr.2d 178, 997 P.2d 493]. People v. Nguyen, supra, 22 Cal.4th at pages 874-876 and page 886, footnote

Section 215, subdivision (a). CALJIC No. 9.46. People v. Medina (1995) 39 Cal.App.4th 643 [46 Cal.Rptr.2d 112], People v. Medina, supra, 39 Cal.App.4th at page 648. People v. Medina, supra, 39 Cal.App.4th at pages 651-652. People v. Medina, supra, 39 Cal.App.4th at page 650. People v. Gray (1998) 66 Cal.App.4th 973, 985 [78 Cal.Rptr.2d 191], United States v. Burns (9th Cir. 1983) 701 F.2d 840. U.S. v. Kimble (11th Cir. 1999) 178 F.3d 1163; U.S. v. Moore (10th Cir. 1999) 198 F.3d 793. People v. Medina, supra, 39 Cal.App.4th at page 648.