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People v. Taylor

California Court of Appeals, Second District, Eighth Division

January 6, 2020

The PEOPLE, Plaintiff and Respondent,
Isaac William TAYLOR, Defendant and Appellant.

         [257 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)

Page 1103


         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.

Page 1104

          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.


          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

Page 1105

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');">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 [257 Cal.Rptr.3d 250] robbery sentence under section 654 and imposed fines and fees.


          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).)

Page 1106

          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');">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.)

         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');">997 P.2d 493 (Nguyen ).) This 1872 formulation sharply confined the definition of kidnapping because relatively few assailants ...

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