Opinion
NOT TO BE PUBLISHED
Superior Court County No. VA071747, of Los Angeles Dewey Lawes Falcone, Judge.
Jonathan P. Milberg, under appointment by the Court of Appeal, for Eleobardo Lopez, Defendant and Respondent.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, Robert David Breton, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Following a jury trial, appellant Eleobardo Lopez was found guilty of entering a large warehouse and committing 2 counts of kidnapping to commit robbery. (Pen. Code § 209, subd. (b)(1), counts 1 & 2); 17 counts of false imprisonment (§ 236, counts 3–16, 37, 38); and 17 counts of robbery (§ 211, counts 19–34, 36). The jury found true the allegations that appellant was armed with and personally used a firearm (§§ 12022, subd. (a)(1), 12022.53, subd. (b)) and took property whose value exceeded $50,000 (§ 12022.6, subd. (a)). The jury found not true the allegations as to four counts of false imprisonment (counts 3, 4, 11, 15) and one count of robbery (count 33).
All further statutory references are to the Penal Code.
The trial court granted appellant’s motion for judgment of acquittal on three of the robbery counts (counts 21, 22 & 29). It denied appellant's motion for a new trial as to count 1 and dismissed count 2 after finding the evidence was insufficient on the element of asportation. Appellant was sentenced to a total term of life in prison plus 90 years. This appeal concerns solely appellant's conviction on count 1, the kidnapping of Jose Olmedo. Appellant claims there was insufficient evidence of asportation to support his conviction. We disagree and affirm.
FACTS
El Tapatio Foods Warehouse distributes food to grocery stores. At 6:00 a.m. on May 24, 2002, three armed men entered the warehouse: appellant, Alfredo Rivera and a third man. Appellant and Rivera walked into the manager's office and told him the warehouse was being robbed. The men instructed eight people (employees and independent truck drivers) to walk into the manager's office. The eight individuals and the warehouse manager, Willie Velasco, were then ordered into a small, eight foot square bathroom. The armed men took the victims' cell phones to prevent them from calling for help.
We affirmed the conviction of Alfredo Rivera in a separate appeal in 2004. (People v. Rivera (2004) B167846 [nonpub. opn.].)
Appellant instructed Rivera to stand guard outside the bathroom door to make sure no one tried to escape or call the police. Velasco knew there was a hidden alarm in the bathroom, but he decided not to push it because he did not want to reveal its location to others, in case it was an inside job. Eight more people arrived, and appellant and the third accomplice forced them at gunpoint into the bathroom. There were now 17 victims in the bathroom, which had no windows and only a small vent.
One of the gunmen called two forklift operators, Jose Olmedo and Jose Castro, out of the bathroom and walked them approximately 50 feet at gunpoint to the loading dock where the forklifts were parked. Olmedo was directed to drive 40 feet to where the baby formula was stacked on pallets. Appellant ordered each man to transport three pallets of baby formula to the staging area. On two separate occasions, appellant pointed his handgun at Olmedo and Castro and threatened to shoot them if they did not comply with his orders.
Appellant forced Olmedo outside the warehouse and ordered him to walk 40 feet to the equipment yard where the refrigerator trucks were parked. He instructed Olmedo to get behind the wheel of one of the trucks and then climbed in beside him. Appellant handed Olmedo keys to the truck and, with his handgun pointed at Olmedo, ordered him to back the truck up 70 feet, turn it around and back it up another 60 feet to the loading dock.
Appellant directed Olmedo to walk 20 feet to where he had stacked the baby formula and ordered him to load it onto the refrigerator truck. This required Olmedo to make twelve separate 40-foot round trips. During his ordeal, Olmedo walked over 600 feet and spent approximately 30 minutes at gunpoint, complying with appellant's demands.
Olmedo and Castro were then ordered back into the bathroom. The gunmen demanded the victims' photo identification, saying if they called the police, the gunmen would track them down and kill them and their families. One of the gunmen drove a forklift to the bathroom door to barricade it. Appellant and his accomplices drove away at 7:04 a.m. with $82,034.40 worth of stolen baby formula.
In the bathroom, Velasco pushed the silent alarm and the sheriff responded. In the meantime, the employees were able to break down the bathroom door and push the forklift away from the opening. The robbery had lasted one hour. All of appellant's actions had been recorded by hidden surveillance cameras. Appellant and Alfredo Rivera were apprehended one month later.
DISCUSSION
Appellant argues that the evidence of asportation is insufficient to support a kidnapping conviction because the movement of Olmedo was merely incidental to the robbery. He contends that moving Olmedo around the warehouse area did not increase his risk of harm. Appellant claims that he actually made Olmedo safer by ordering him into the warehouse yard. Appellant reasons that this created a greater likelihood that any assault would be detected and increased Olmedo's opportunity for escape.
In determining the sufficiency of the evidence to support a conviction, we determine whether, after viewing the evidence in the light most favorable the prosecution, any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Rayford (1994) 9 Cal.4th 1, 23; People v. Leon (2008) 161 Cal.App.4th 149, 156.)
The crime of simple kidnapping consists of moving another person against his or her will by force or fear. (§ 207, subd. (a).) A kidnapping to commit robbery or rape is aggravated kidnapping, punishable by imprisonment in the state prison for life with the possibility of parole. (§ 209, subd. (b)(1); People v. Dominguez (2006) 39 Cal.4th 1141, 1152.)
"Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state and carries the person into another . . . county, or into another part of the same county, is guilty of kidnapping." (Pen. Code, § 207, subd. (a).)
The aggravated kidnapping statute "requires movement of the victim that is not merely incidental to the commission of the underlying crime and that increases the risk of harm to the victim over and above that necessarily present in the underlying crime itself." (People v. Martinez (1999) 20 Cal.4th 225, 232; People v. Rayford, supra, 9 Cal.4th at p. 12; § 209, subd. (b)(2).) This asportation standard was first articulated by our Supreme Court in People v. Daniels (1969) 71 Cal.2d 1119. There, two defendants committed a series of home invasions. They forced their female victims to move around inside their apartments in order to rob and rape them. The women were forced to walk a distance of 18 feet, 5-6 feet and 30 feet respectively. (Id. at p. 1126.)
The Daniels court reversed three convictions of kidnapping for the purpose of robbery. It concluded that the victims' movements made in furtherance of the robberies were merely incidental to the crimes. (People v. Daniels, supra, 71 Cal.2d at p. 1140.) The court was concerned that the Legislature had not intended such incidental movements to constitute asportation sufficient to establish kidnapping. (Id. at pp. 1131, 1134.) It wished to preclude convictions based on movements of a robbery victim that "are merely incidental to the commission of the robbery and do not substantially increase the risk of harm over and above that necessarily present in the crime of robbery itself." (Id. at p. 1139.)
Penal Code section 209, subdivision (b)(2), enacted in 1997, codifies the Daniels rule, except that it does not require that the movement "substantially" increase the risk of harm to the victim. (People v. James (2007) 148 Cal.App.4th 446, 454, fn. 5; see also People v. Martinez (1999) 20 Cal.4th 225, 232, fn. 4.)
The two-part Daniels test was refined in Rayford, which extended the asportation standard to the crime of kidnapping to commit rape. (People v. Rayford, supra, 9 Cal.4th at p. 20.) The first prong of the Daniels test requires a determination of whether the movement is merely incidental to the underlying offense. In making this assessment, a jury must consider the "scope and nature" of the movement and the "context of the environment" in which the movement occurred. This includes consideration of the actual distance a victim is moved. However, there is no minimum number of feet a defendant must move a victim to satisfy the first prong. (Id. at p. 12.)
Under the second prong of the Daniels test, the jury must determine whether the movement subjected the victim to a substantial increase in the risk of harm above and beyond that inherent in the offense. Factors to be considered are the decreased likelihood of detection; the dangers inherent in the victim's foreseeable attempts to escape; and attacker's enhanced opportunity to commit additional crimes. (People v. Rayford, supra, 9 Cal.4th at p. 13.)
Our Supreme Court elaborated upon the Rayford standard in People v. Dominguez, supra, 39 Cal.4th at p. 1152, which concerned kidnapping to commit rape. Dominguez directed that we to make a "multifaceted qualitative evaluation" rather than a "simple quantitative assessment" to determine whether the movement is incidental to the underlying offense and whether it increased the victim's risk of harm. (Ibid.)
We have previously addressed the element of asportation within the context of kidnapping to commit rape. (See People v. Aguilar (2004) 120 Cal.App.4th 1044; People v. Shadden (2001) 93 Cal.App.4th 164.) We next consider this standard as it relates to kidnapping to commit robbery. The issue before us is whether appellant's movement of Olmedo was merely incidental to the warehouse robbery and whether the movement exposed him to an increased risk of harm.
Moving a robbery victim 15 feet from the teller area of a bank to a vault has been viewed as merely incidental to the commission of a robbery. "[T]here was no excess or gratuitous movement" beyond what was necessary to obtain money from the vault. (People v. Washington (2005) 127 Cal.App.4th 290, 299.) However, in other contexts, the element of asportation has been sufficient to constitute aggravated kidnapping. For example, moving a robbery victim 40 feet across a parking lot to her car was not incidental to the robbery. By forcing her into her car, the defendant substantially increased her risk of harm. (People v. Jones (1999) 75 Cal.App.4th 616, 629.) Moving victims after a robbery was aborted can constitute aggravated kidnapping. (People v. Corcoran (2006) 143 Cal.App.4th 272 [after defendants aborted their robbery, they moved victims 10 feet at gunpoint within the building].) Even moving a defendant into a building can constitute asportation. (People v. James (2007) 148 Cal.App.4th 446, 449 [movement of victim, at gunpoint, from outside of bingo club to its interior].)
At oral argument, appellant's counsel argued that Daniels stands for the proposition that movement is merely incidental to a robbery if it is within a "curtilage" and the victim is not taken outside the premises. Appellant is correct that Daniels concluded that the movement of the female victims within their apartments was incidental to the crime of robbery. However, appellant ignores the Supreme Court's subsequent refinement of the Daniels test in Rayford and Dominguez and he overlooks the more recent authorities cited above.
Appellant argues extensively that we are bound by the holding in People v. Williams (1970) 2 Cal.3d 894. There, armed robbers entered a gas station and demanded cash from an employee. He gave them over $100, and they locked him in a bathroom. A few minutes later, they let him out and moved him around the premises of the gas station, for a distance of about 25 feet. The Williams court concluded that movement of the employee was brief and made solely to facilitate the robbery, thus it was merely incidental to the commission of the crime. (Id. at pp. 902-903.)
Williams differs markedly from the "scope and nature" of Olmedo's movement and the "context of the environment" in which he was moved. Olmedo was taken from the bathroom to the loading dock. He was forced to transport pallets of baby formula by forklift to the staging area. Olmedo was next ordered to walk into the equipment yard, drive a refrigerator truck to the staging area and load the baby formula onto the truck. He was moved approximately 633 feet, much of it at gunpoint. The movement was not merely incidental to the underlying offense.
Removed from the relative safety of the bathroom, Olmedo was exposed to an increased risk of harm. Separated from the others, and required to perform a variety of activities, he could easily have been seriously injured or killed if he angered appellant or tried to escape. For 30 minutes he was subjected to appellant's demands at gunpoint. The forcible movement of Olmedo substantially increased his risk of harm. A jury could reasonably have found sufficient evidence of asportation to support appellant's conviction on count 1.
The judgment is affirmed.
We concur: GILBERT, P.J., PERREN, J.