Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F01305
ROBIE, J.
Defendant Steven C. Davis and codefendant Kavasio Hall were charged with, among other things, kidnapping to commit robbery (aggravated kidnapping) and first degree robbery. The information alleged defendant personally used a firearm in committing each offense. The case was tried before separate juries. During the trial, defendant moved for judgment of acquittal, contending there was insufficient evidence as to the firearm enhancements and aggravated kidnapping. The court denied defendant’s motion. A jury found him guilty of aggravated kidnapping and first degree robbery, but found not true the allegations of the use of a firearm. The court denied probation and sentenced defendant to four years for first degree robbery (which was stayed) and seven years to life for aggravated kidnapping.
Defendant appeals, contending there was insufficient evidence to support his conviction of aggravated kidnapping. We reject this contention and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
One night in January 2007, Yuliya Dvoretskikh walked from her home in midtown Sacramento at 17th Street and Q Street to a friend’s house several blocks away at 25th Street and P Street. During this walk, she noticed a white car pass by her, but she paid no attention to it and continued walking. She walked down P Street and crossed 22nd Street. As she crossed the intersection, defendant grabbed her from the back and pushed her toward some bushes near the intersection. The bushes were slightly taller than her and were located in the darkest part of the intersection. He wrapped his arms about her and pressed an object that she thought was a gun at her neck. It was actually a plastic gun that shoots yellow plastic bullets. Defendant said something to the effect of, “‘Don’t scream, don’t do anything, just do what I say.’”
After he pushed Dvoretskikh to the bushes, defendant searched her. He looked through her purse and pockets and reached his hands into her bra. Meanwhile, the white car she saw earlier parked in front of her. Defendant gave her purse to the driver. Defendant went to the front seat of the car and appeared to speak to the driver briefly. Then defendant told her to get inside the car; when she refused, he made a sound that she believed was defendant loading the gun. She was “devastated” and “was afraid for [her] life very much.” Being put into the car was “the scariest thing” for her. Defendant then put her in the backseat and they drove away.
Once Dvoretskikh was in the car, defendant asked her if she had a bank account. She responded that she had an account with Washington Mutual; defendant said he wanted to go there and take money out of her account. She asked if they would release her afterwards, and they said they would. Because she was not paying attention to the roads, when they got to the intersection of 28th Street and N Street she realized they were going the wrong way. By then, they had already driven 8 to 10 blocks, and the closest ATM was on 21st Street and Capitol Avenue. She gave directions to the driver on how to get to the ATM.
That night before seeing Dvoretskikh, defendant had taken “some powder,” and the driver had taken ecstasy pills and had not slept for a day and one-half.
After the driver missed the turn for 21st Street, they parked on the street near the bank. Defendant gave Dvoretskikh her ATM card. After she went to the ATM and withdrew roughly $280, she walked back to the car. She gave defendant the money; the men kept her wallet and cell phone, returned her purse to her, and drove away.
Dvoretskikh walked to the Golden Bear on 24th Street and K Street, where her boyfriend was waiting. Although she knew she needed to call 911, she had her boyfriend call because by then she could not talk. She no longer feels safe walking at night and tries to take a cab rather than walk.
DISCUSSION
Defendant contends there was insufficient evidence to support his conviction for aggravated kidnapping. We disagree.
I
Legal Standard
A conviction for aggravated kidnapping requires proving two prongs: (1) the movement of the victim was not “merely incidental to the commission of the robbery”; and (2) such movement “substantially increase[d] the risk of harm over and above that necessarily present in the crime of robbery itself.” (People v. Daniels (1969) 71 Cal.2d 1119, 1139.)
“‘As for the first prong, or whether the movement is merely incidental to the crime of robbery, the jury considers the “scope and nature” of the movement. [Citation.] This includes the actual distance a victim is moved. However, we have observed that there is no minimum number of feet a defendant must move a victim in order to satisfy the first prong. [Citation.]’ [¶] ‘The second prong of the Daniels test refers to whether the movement subjects the victim to a substantial increase in risk of harm above and beyond that inherent in robbery. [Citation.] This includes consideration of such factors as the decreased likelihood of detection, the danger inherent in a victim’s foreseeable attempts to escape, and the attacker’s enhanced opportunity to commit additional crimes. (See, e.g.,... In re Earley [(1975)]14 Cal.3d [122,] 132 [“asportation gave rise to dangers, not inherent in robbery, that an auto accident might occur or that the victim might attempt to escape from the moving car or be pushed therefrom by (defendant)”]....) The fact that these dangers do not in fact materialize does not, of course, mean that the risk of harm was not increased.’” (People v. Jones (1999) 75 Cal.App.4th 616, 628-629.) Further, the harm can be of a psychological nature. (People v. Nguyen (2000) 22 Cal.4th 872, 886.)
II
The Movement Of Dvoretskikh Was More Than Merely Incidental To The Robbery
Defendant raises the following arguments to support his contention that the first prong of the Daniels test was not satisfied: (1) the sole reason for the asportation was to get Dvoretskikh’s money from the ATM; (2) the Daniels court rejected a rule framed in terms of a specific distance for asportation; and (3) his case is like Daniels and People v. Timmons (1971) 4 Cal.3d 411, where the judgments were vacated. (Timmons, at pp. 414-416; People v. Daniels, supra, 71 Cal.2d at pp. 1122-1125, 1143.)
Reviewing the evidence in the light most favorable to the People (People v. Redmond (1969) 71 Cal.2d 745, 755), defendant pushed Dvoretskikh from the middle of an intersection to some bushes, the darkest spot on the intersection, as she crossed the street. When she got in the car, they drove roughly 8 to 10 blocks before she told them that the nearest ATM was on Capitol Avenue and 21st Street. Thus, the asportation that concerns us was at least 8 to 10 blocks.
Turning to defendant’s arguments, the California Supreme Court has already rejected his first argument. In Earley,the court explained that “Brief movements to facilitate... robbery... are incidental thereto within the meaning of Daniels. [Citations.] On the other hand movements to facilitate [robbery] that are for a substantial distance rather than brief are not incidental thereto within the meaning of Daniels.” (In re Earley (1975) 14 Cal.3d 122, 129-130, italics added.) The court further explained that this is true “even though [the movement] may have been solely to facilitate the commission of the robbery.” (Id.at p. 130.) Thus, even if the sole reason for the asportation was to get Dvoretskikh’s money from the ATM, that does not make the movement “merely incidental” within the meaning of Daniels.
As for defendant’s second argument, a review of similar cases shows this case fits squarely within the limits for aggravated kidnapping convictions. Courts have upheld convictions for asportation of similar distances. (E.g., In re Earley, supra, 14 Cal.3d at p. 126 [10 to 13 blocks]; People v. Thornton (1974) 11 Cal.3d 738, 747 [four blocks].) Also, courts have upheld convictions where there was asportation to take the victim to an ATM for a substantial distance to complete the robbery. (E.g., People v. Daniels (1988) 202 Cal.App.3d 671, 673-674 [three-to-four block drive from gas station to versateller]; People v. Smith (1992) 18 Cal.App.4th 1192, 1194-1195 [two-to-three block drive from victim’s apartment to ATM].) Thus, Dvoretskikh’s asportation from 22nd Street and P Street to the ATM -- at least 8 to 10 blocks -- matches previous cases on this point.
Regarding defendant’s third argument, although he believes his case is like Daniels and Timmons, those cases are distinguishable. First, Daniels is distinguishable because there the defendant simply moved his victims from one room inside the victims’ residence to another (People v. Daniels, supra, 71 Cal.2d at pp. 1123-1124); here, however, defendant placed Dvoretskikh in a car and they drove from the location where he first found her to the ATM many blocks away. Second, in Timmons, the defendant approached the victims while they were driving, got inside the car, took the money, and got out of the car and left near a fire hydrant down the street (People v. Timmons, supra, 4 Cal.3d at pp. 413-414); here, however, defendant first searched Dvoretskikh on the street, not a car, so we are not dealing with “the moving situs of the robbery” like the car in Timmons. (Id. at p. 414.)
Dvoretskikh’s movement of at least 8 to 10 city blocks was not merely incidental to the robbery. Accordingly, there was sufficient evidence for the jury to find this prong was satisfied.
III
The Movement Subjected Dvoretskikh To A Substantial Increase In A Risk Of Harm Above And Beyond That Inherent In Robbery
Defendant raises the following arguments to support his contention that the second prong of the Daniels test was not met: (1) the asportation itself did not increase the risk of psychological harm for Dvoretskikh; (2) Dvoretskikh was not tied up or restrained in any way; (3) the men did not display a weapon and they did not injure her; (4) they did not threaten her; (5) there was no evidence of physical or verbal threats, abuse, or assault to Dvoretskikh; (6) defendant never waved a weapon at her; (7) there was no evidence of any erratic driving or other behavior that would cause the manner of the asportation to increase the risk of harm to Dvoretskikh; and (8) Dvoretskikh testified she had no real contact with the driver and she never saw the driver or heard his voice.
However, reviewing the evidence in the light most favorable to the People (People v. Redmond, supra, 71 Cal.2d at p. 755), the record provided the jury with sufficient evidence to find the second prong of the Daniels test was met. Defendant put his arms around Dvoretskikh. She thought the object pressed against her neck was a gun. The object clicked, so she thought it was a gun. Defendant threatened her by saying something to the effect of, “‘Don’t scream, don’t do anything, just do what I say.’” Defendant, in searching Dvoretskikh, reached into her bra. They both got into the car at the intersection of 22nd Street and P Street and drove 8 to 10 blocks at minimum.
When Dvoretskikh first refused to get in the car, defendant made it look like he had loaded the gun, which led Dvoretskikh to believe he was capable of shooting her. She was “devastated” and “was afraid for [her] life very much.” When she saw her boyfriend, he had to call 911 because she could not speak. Dvoretskikh testified that although she continued to live in midtown Sacramento after the incident, she no longer felt safe walking there, especially at night.
From this evidence, a jury reasonably could have found that the movement subjected Dvoretskikh to a substantial increase in risk of harm above and beyond that inherent in robbery. Once defendant placed Dvoretskikh inside the car, “she was no longer in public view as when she was in plain sight with [defendant]... a situation which would have aroused concern immediately in any onlookers.” (People v. Jones, supra, 75 Cal.App.4th at pp. 629-630.) That this all occurred at night while Dvoretskikh was alone were also factors the jury could have relied on in finding this prong was met. (In re Earley, supra, 14 Cal.3d at p. 133, distinguishing People v. Timmons, supra, 4 Cal.3d at p. 411.) The jury could have found that Dvoretskikh believed defendant had a gun and that this belief, along with being placed in the car with two men on drugs, might have led her to try to escape while she was in the car. (Earley, at p. 132.) Also, the driver’s having little sleep and being on ecstasy could have caused an accident. Thus, defendant’s argument that there was no substantial increase in the risk of harm because Dvoretskikh was not physically restrained or injured or verbally threatened is unavailing.
Moreover, there was evidence on which the jury could have relied to find the harm was psychological in nature. Dvoretskikh testified about her fear when defendant put her inside the car, calling it “the scariest thing” for her. She was so distraught, she was unable to call the police herself when she had access to a phone. Even after the robbery, she still fears walking around midtown Sacramento at night. From this, the jury could have reasonably believed the asportation caused her psychological harm. (People v. Nguyen, supra, 22 Cal.4th at p. 886.)
Defendant relies on People v. Mutch (1971) 4 Cal.3d 389 to support his arguments. His reliance is misplaced. In Mutch a conviction was overturned where the victim was pistol whipped because that is “a risk inherent in the crime of armed robbery.” (Id. at p. 398.) In its facts, Mutch is irrelevant and has no bearing on the facts of this case.
The jury reasonably concluded the movement substantially increased the risk of harm.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P. J., BUTZ, J.