California Court of Appeals, Second District, Eighth Division
from a judgment of the Superior Court of Los Angeles County,
No. MA072867 Shannon Knight, Judge. Affirmed in part,
reversed in part, and remanded with directions.
Weksler, under appointment by the Court of Appeal, for
Defendant and Appellant.
Becerra, Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Noah P. Hill, and Paul S. Thies, Deputy
Attorneys General, for Plaintiff and Respondent.
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.
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.
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.
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
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.
showed Ho returned to the nail salon about 83 seconds after
Taylor approached him the second time.
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.
reverse the kidnapping conviction because Ho's movement
was merely incidental to the robbery.
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.) 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.) 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.
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.”
statute sets two requirements:
defendant must move the victim beyond movement “merely
incidental” to the robbery, and
movement must increase the victim's “risk of
harm” beyond that necessarily present in the robbery.
(§ 209, subd. (b)(2).)
requirements are essential. (People v. Washington
(2005) 127 Cal.App.4th 290, 301.) The requirements are
interrelated. No minimum distance is required if the movement
is substantial. (People v. Dominguez (2006) 39
Cal.4th 1141, 1152 (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)
830');">51 Cal.4th 830, 869, fn. 20, overruled on other grounds by
People v. Hardy (2018) 5 Cal.5th 56, 104.)
case turns on requirement one. Because Taylor's movement
of Ho was merely incidental to the robbery, this was ...