Incidental movement of a victim during a robbery is not kidnapping

People v. Taylor (Cal. Ct. App., Jan. 6, 2020, No. B293881) 2020 WL 5698

Summary: A jury convicted Isaac Taylor of kidnapping to commit robbery as well as of the robbery itself. 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, the jury convicted Taylor of kidnapping. The Court of Appeal reversed the kidnapping conviction.

Penal code section 209- kidnapping to commit robbery-aggravated kidnapping

Aggravated kidnapping, in contrast to simple kidnappings under Penal Code section 207, requires “asportation.”

The statute requires both that:

The defendant must move the victim beyond movement “merely incidental” to the robbery, and
This movement must increase the victim’s “risk of harm” beyond that necessarily present in the robbery. (§ 209, subd. (b)(2).)

The requirements are interrelated. If the movement is substantial, no minimum distance is required. (People v. Dominguez (2006) 39 Cal.4th 1141, 1152 (Dominguez).) In 1997, the Legislature modified the second requirement by replacing the need to 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.)

Here Taylor’s movement of Ho was merely incidental to the robbery, so this was not kidnapping, only a robbery.

History of changes to California law of kidnapping

In 1872, California’s common law of simple kidnapping required kidnappers to move their victims across county or state lines. Aggravated kidnapping cases were not common because relatively few kidnappers take victims across a county line.

Knowles and Chessman Decisions- People v. Knowles (1950) 35 Cal.2d 175 (Knowles) and People v. Chessman (1951) 38 Cal.2d 166(Chessman).

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 and eliminated the requirement kidnappers move victims any distance at all. The Supreme Court in 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.)

The Knowles and Chessman decisions obscured the distinction between the crime of kidnapping and robbery or rape. Assailants commonly move robbery or rape victims at least some distance. 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.

Robbery 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. The minimum penalty for kidnapping for robbery is life in prison. (§ 209, subd. (b).) Formerly the penalty could be death. So Knowles and Chessman encouraged overcharging.

Before Chessman, the crime of kidnapping had a distinctive status as an extremely grave crime, worthy of distinctively and extremely grave penalties. The virtue of retaining aggravated kidnapping as a distinct and distinctively serious offense was lost.

The California Supreme Court responded to this problem in its 1969 Daniels decision revising Knowles’s and Chessman’s dilution of kidnapping standards. (People v. Daniels (1969) 71 Cal.2d 1119, 1138. (Daniels).)

The Daniels case involved multiple charges of aggravated kidnapping where kidnapping distances were as short as six feet. Daniels held this was not kidnapping.

The Daniels opinion then quoted the “learned draftsmen of the Model Code,” who wrote it was “desirable to restrict the scope of kidnapping, as an alternative or cumulative treatment of behavior whose chief significance is robbery or rape, because the broad scope of this overlapping offense has given rise to serious injustice .” Daniles quoted Model Penal Code § 212.1, which recommended kidnappings can arise only if victim is moved a “substantial distance from the vicinity where he is found” or if victim is confined “for a substantial period in a place of isolation.”

Daniels and the two-part test for kidnapping

Daniels established a new two-part test for kidnapping for robbery, which the Legislature later codified in section 209:

The defendant must move the victim beyond movement “merely incidental” to the robbery, and
This movement must increase the victim’s risk of harm beyond the risk necessarily present in the robbery. (§ 209, subd. (b)(2)

Ambiguity of this “merely incidental” test

There was no clear and objective way to determine when moving a victim is “incidental” to a robbery. Imposing an objective and logical order on a robbery by dividing it into major and incidental elements is subjective.

The classic kidnapping to commit robbery involves a robber taking a victim from one place to another to help get a distant and valuable thing the robber wants: money from a cash machine or valuables from a home. This robbery was just an ordinary robbery. The victim backed up four steps and ended up 12 inches into an alley, where the darkness and the corner screened the robbery out of public view. Taylor never confined Ho in an isolated room. The whole episode lasted a mere minute and a half. This movement was trivial and incidental to the robbery.

Holding:

Under these facts, there was no kidnapping and the Court reversed Taylor’s conviction for kidnapping for robbery.