California Court of Appeals, Second District, Eighth Division
Cal.Rptr.3d 249] APPEAL from a judgment of the Superior Court
of Los Angeles County, Shannon Knight, Judge. Affirmed in
part, reversed in part, and remanded with directions. (Los
Angeles County Super. Ct. No. MA072867)
Weksler, Agoura Hills, 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 Hos wallet. Based on Hos 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 salons large
front window that blocked his customers view of him with a
cigarette. Night had fallen. Lighting illuminated the salons
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 distance ...."
Ho stopped, he was at the corner of the building and 12
inches into the unlit alley next to the salon, blocked from
everyones view. Ho was "inside around the corner in the
alley ...." Taylor demanded Hos wallet, which Ho
surrendered. Taylor said, "there better be money [in the
youre going to die tonight." Taylor told Ho to walk
back into the shop and "dont look back." Ho slowly
walked back inside the salon.
video showed Ho returned to the nail salon about 83');">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 [257 Cal.Rptr.3d 250] robbery sentence under
section 654 and imposed fines and fees.
reverse the kidnapping conviction because Hos 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 crimes
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.
crime at issue is section 209s 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:
1. The defendant must move the victim beyond movement
"merely incidental" to the robbery, and
2. This movement must increase the victims "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, 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');">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) 83');">830');">51 Cal.4th 83');">830,
869, fn. 20, 83');">830');">124 Cal.Rptr.3d 83');">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.)
case turns on requirement one. Because Taylors 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.
1872, Californias common law of simple kidnapping required
kidnappers to move their victims across county or state
lines. Californias 1872 statute codified this rule.
(People v. Nguyen (2000) 22 Cal.4th 872, 882, 95
Cal.Rptr.2d 178, 997 P.2d 493');">997 P.2d 493 (Nguyen ).) This 1872
formulation sharply confined the definition of kidnapping
because relatively few assailants ...