People v. Taylor

43 Cal.App.5th 1102

257 Cal.Rptr.3d 246

The PEOPLE, Plaintiff and Respondent,

v.Isaac William TAYLOR, Defendant and Appellant.

B293881

Court of Appeal, Second District, Division 8, California.

Filed January 6, 2020

Maxine Weksler, Agoura Hills, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Noah P. Hill, and Paul S. Thies, Deputy Attorneys General, for Plaintiff and Respondent.

WILEY, J.

Isaac Taylor used a gun to back David Ho four steps towards a dark alley, where Taylor took Ho’s wallet. Based on Ho’s four steps backwards, a jury convicted Taylor of kidnapping to commit robbery as well as of the robbery itself. We reverse the kidnapping conviction, address sentencing issues, remand for resentencing, and otherwise affirm. Code references are to the Penal Code.

I

Ho worked at a nail salon. On December 22, 2017 at 6:00 p.m., he went out to his usual place to smoke, which was on the sidewalk in front, next to a poster in the salon’s large front window that blocked his customers’ view of him with a cigarette. Night had fallen. Lighting illuminated the salon’s interior and its sheltered front sidewalk, as well as the surrounding plaza and parking lot. But the alley right next to the salon was unlit.

As Ho left through the front door, Taylor happened to walk by on the sidewalk. Taylor passed Ho without pause or comment, but then Taylor circled back. Video evidence showed Taylor returning to Ho about 27 seconds later. Ho testified Taylor yelled "Do you believe in Jesus" two or three times and told Ho to look down, where Taylor was pointing a gun at Ho at waist level.

Taylor told Ho to move back into the alley. Ho obeyed. Taylor did not touch him. Ho testified he took "three, four steps" backward: "a very short distance ...."

When Ho stopped, he was at the corner of the building and 12 inches into the unlit alley next to the salon, blocked from everyone’s view. Ho was "inside around the corner in the alley ...." Taylor demanded Ho’s wallet, which Ho surrendered. Taylor said, "there better be money [in the wallet] or you’re going to die tonight." Taylor told Ho to walk back into the shop and "don’t look back." Ho slowly walked back inside the salon.

A video showed Ho returned to the nail salon about 83 seconds after Taylor approached him the second time.

The jury convicted Taylor of second degree robbery (count 2, § 211) and of kidnapping to commit robbery (count 1, § 209, subd. (b)(1)). It found Taylor used a handgun in the robbery and kidnapping. At sentencing, Taylor admitted a prior serious felony conviction. The trial court sentenced Taylor to 29 years to life for kidnapping (seven years to life doubled due to the prior conviction plus a five-year serious felony enhancement under § 667(a)(1) and a ten-year firearm enhancement under § 12022.53(b)) and 25 years for robbery (five years doubled plus a five-year serious felony enhancement and a ten-year firearm enhancement). The court stayed the robbery sentence under section 654 and imposed fines and fees.

II

We reverse the kidnapping conviction because Ho’s movement was merely incidental to the robbery.

We review the evidence in the light most favorable to the prosecution to see if jurors could have found the crime’s essential elements beyond a reasonable doubt. ( People v. Virgil (2011) 51 Cal.4th 1210, 1263, 126 Cal.Rptr.3d 465, 253 P.3d 553.) As is sometimes the case, this review becomes a question of law about the precise liability rule. (E.g., People v. Bipialaka (2019) 34 Cal.App.5th 455, 458–462, 246 Cal.Rptr.3d 177.) When defining this rule, our review is independent, but we continue to view the facts in the light favorable to the party that prevailed at trial.

The crime at issue is section 209’s kidnapping to commit robbery , which is aggravated kidnapping, in contrast to simple kidnappings illegal under section 207. How much must kidnappers move victims to commit aggravated kidnapping? The jargon for this issue is "asportation."

The statute sets two requirements:

1. The defendant must move the victim beyond movement "merely incidental" to the robbery, and

2. This movement must increase the victim’s "risk of harm" beyond that necessarily present in the robbery. (§ 209, subd. (b)(2).)

Both requirements are essential. ( People v. Washington (2005) 127 Cal.App.4th 290, 301, 25 Cal.Rptr.3d 459.) The requirements are interrelated. No minimum distance is required if the movement is substantial. ( People v. Dominguez (2006) 39 Cal.4th 1141, 1152, 47 Cal.Rptr.3d 575, 140 P.3d 866 ( Dominguez ).) In 1997, the Legislature modified the second requirement by replacing the need substantially to increase the risk of harm to the victim with a requirement merely to increase that risk. ( People v. Vines (2011) 51 Cal.4th 830, 869, fn. 20, 124 Cal.Rptr.3d 830, 251 P.3d 943, overruled on other grounds by People v. Hardy (2018) 5 Cal.5th 56, 104, 233 Cal.Rptr.3d 378, 418 P.3d 309.)

This case turns on requirement one. Because Taylor’s movement of Ho was merely incidental to the robbery, this was not kidnapping. This was just robbery.

Turbulent change has shaped this field of the law.

In 1872, California’s common law of simple kidnapping required kidnappers to move their victims across county or state lines. California’s 1872 statute codified this rule. ( People v. Nguyen (2000) 22 Cal.4th 872, 882, 95 Cal.Rptr.2d 178, 997 P.2d 493 ( Nguyen ).) This 1872 formulation sharply confined the definition of kidnapping because relatively few assailants take victims across a county line. Because this conduct is unusual, so too were aggravated kidnapping cases.

This legal situation changed in the 1950s with the decisions in People v. Knowles (1950) 35 Cal.2d 175, 217 P.2d 1 ( Knowles ) and People v. Chessman (1951) 38 Cal.2d 166, 238 P.2d 1001 ( Chessman ).

The 1950 Knowles decision anticipated Chessman , and involved Caryl Chessman’s confederate. Knowles and Chessman robbed a store by initially ordering the clerks into a rear stockroom. The robbers forced one clerk back out and then returned him to the stockroom. The Supreme Court held this back-and-forth was kidnapping to commit robbery. ( Knowles, supra, 35 Cal.2d at pp. 180–186, 217 P.2d 1.)

Then the 1951 Chessman decision eliminated the requirement kidnappers move victims any distance at all. Chessman interpreted the California Penal Code to mean the act of forcibly moving a victim any distance, no matter how short or for what purpose, constituted kidnapping: "It is the fact, not the distance, of forcible removal which constitutes kidnaping in this state." ( Chessman , supra , 38 Cal.2d at p. 192, 238 P.2d 1001.)

The Knowles and Chessman decisions greatly loosened the definition of kidnapping, thus making it far easier to charge and to prosecute. Indeed, these decisions threatened entirely to eliminate the distinction between kidnapping on one hand and robbery or rape on the other. Assailants commonly move robbery or rape victims at least some distance. Motionless crimes are possible but not customary. Under Knowles and Chessman , even insignificant movements could add an aggravated kidnapping count to the case. This meant most robberies became kidnappings to commit robbery.

This judicial innovation was a bad idea. Dissenting Justice Edmonds in Knowles decried this "startling innovation in criminal law." Justice Edmonds observed this innovation meant the crime of kidnapping "may merge into the crime of robbery." ( Knowles , supra , 35 Cal.2d at p. 190, 217 P.2d 1 (dis. opn. of Edmonds, J.), italics added.)

Merging aggravated kidnapping into robbery had an adverse effect. Robbery, although serious, was traditionally less serious than aggravated kidnapping. But merging the two made the extremely severe penalties for aggravated kidnapping available in most or all robbery cases. For instance, today the minimum penalty for kidnapping for robbery is life in prison. (§ 209, subd. (b).) Formerly the penalty could be death. So Knowles and Chessman virtually invited overcharging.

The Knowles dissenters made exactly this forecast. Dissenting Justice Edmonds predicted overcharging was "inevitabl[e]." ( Knowles , supra , 35 Cal.2d at pp. 190–191, 217 P.2d 1 (dis. opn. of Edmonds, J.).) Dissenting Justice Carter used stronger language: "The prosecuting attorney is given the sole and arbitrary power to determine whether a person shall suffer life imprisonment without possibility of parole or even death on the one hand, or, in the case of robbery in the second degree, as little as one year’s imprisonment. It all depends on the charge he chooses, at his whim or caprice, to make against the accused.... It is not to be supposed that the Legislature intended to place any such drastic and arbitrary power in the hands of the district attorney." ( Knowles , supra , 35 Cal.2d at pp. 203–204, 217 P.2d 1 (dis. opn. of Carter, J.).)

These forecasts, made in dissent, proved true. About two decades later, bad experience with the Chessman rule led to its rejection.

Before Chessman , the crime of kidnapping had a distinctive status as an extremely grave crime, worthy of distinctively and extremely grave penalties. As Justices Edmonds and Carter perceived, the core problem with the Knowles and Chessman rule was that it threatened to, or did, abolish this distinctive status. The virtue of retaining aggravated kidnapping as a distinct and distinctively serious offense was lost.

Within decades, the California Supreme Court identified this problem and responded to it. Its 1969 Daniels decision revised Knowles ’s and Chessman ’s dilution of kidnapping standards, citing sources that lamented inappropriate prosecutions for kidnapping. ( People v. Daniels (1969) 71 Cal.2d 1119, 1138, 80 Cal.Rptr. 897, 459 P.2d 225 ( Daniels ).)

The Daniels case involved multiple charges of aggravated kidnapping where kidnapping distances were minimal: as short as six feet. ( Daniels, supra , 71...