Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 07NF0784 Richard F. Toohey, Judge.
Tony Rackauckas, District Attorney, Jessica Bingham and Stephen Sauer, Deputy District Attorneys, for Plaintiff and Appellant.
Martin Kassman, under appointment by the Court of Appeal, for Defendant and Respondent.
OPINION
RYLAARSDAM, J.
A jury convicted defendant Henry Wandario of kidnapping for robbery (Pen. Code, § 209, subd. (b)(1)); all further statutory references are to this code), false imprisonment (§ 236) as lesser included offense of kidnapping for rape (§ 209, subd. (b)(1)), robbery (§ 211), aggravated assault (§ 245, subd. (a)(1)), and making criminal threats (§ 422). It also found the great bodily injury allegations true as to the robbery and aggravated assault counts. (§ 12022.7.)
On defendant’s motion, the trial court dismissed the kidnapping for robbery count citing section 1181 and stating it “believe[d] that the movement of the victim in relation to the crime of robbery was really incidental....” It subsequently sentenced defendant to the upper term of five years in prison on the robbery count, plus three years for the great bodily injury enhancement, and stayed or imposed concurrent terms on the remaining counts.
The Orange County District Attorney contends the court erred in “disregard[ing] the jury’s verdict and dismiss[ing] the kidnapping for robbery” count. We disagree and affirm the judgment.
FACTS
Around 2:30 a.m., the victim was walking home when defendant grabbed her from behind, put his hand over her mouth, pushed her into the alley, and asked if she had any money. The victim answered, “No... [t]he only thing [she] had valuable was [her] cell phone” and let him look inside her purse. He took the cell phone from her hand. At that point, they “were only inches from where... [defendant had] grabbed [her].” They were also “in front of [a] blue car.”
Defendant told the victim that if she did not have any money he wanted sex. When the victim refused, defendant attacked her and she fought back. The struggle took them farther into the alley and they “ended up... towards the middle of the alley” near the “right middle side of the blue [car].” At some point, defendant choked her until she blacked out. When she regained consciousness, he was kicking her but she escaped and ran towards a police car. A forensics specialist testified the distance “from th[e] halfway point on the sidewalk” to a handprint on the hood of the blue car was about 23 feet.
DISCUSSION
The district attorney contends “[t]he trial court... exceeded its [authority under] section 1181 when it dismissed the jury verdict as to the kidnapping for robbery charge.” We need not address this because we conclude the dismissal was proper under section 1385. As the district attorney concedes, “If the dismissal is correct upon any legal theory applicable to the case, it will be upheld on appeal regardless of the court’s stated explanation for the ruling. [Citation.]” (People v. Salgado (2001) 88 Cal.App.4th 5, 9-10.)
Section 1385, subdivision (a) permits a trial court to dismiss an action after a guilty verdict has been rendered if the court determines that the evidence is insufficient as a matter of law. (People v. Hatch (2000) 22 Cal.4th 260, 268-271; People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 501, 504-505.) When making legal sufficiency determinations, both the trial and appellate courts “must apply the substantial evidence standard.... [Citations.]” (People v. Hatch, supra, 22 Cal.4th at p. 272.) We review “the entire record in the light most favorable to the verdict” and determine whether there is substantial evidence which would permit any rational jury to find the defendant guilty beyond a reasonable doubt. (People v. Salgado, supra, 88 Cal.App.4th at p. 15.)
Kidnapping for robbery, or aggravated kidnapping, occurs when “‘[a]ny person... kidnaps or carries away any individual to commit robbery’.... [Citation.]” (People v. Burney (2009) 47 Cal.4th 203, 255.) The crime “‘requires movement of the victim that is not merely incidental to the commission of the robbery, and which substantially increases the risk of harm over and above that necessarily present in the crime of robbery itself.’ [Citation.]” (Ibid.) Both prongs must be satisfied to sustain an aggravated kidnapping conviction. (In re Earley (1975) 14 Cal.3d 122, 128.)
Regarding the first prong, “‘[i]ncidental’” means “the asportation play[ed] no significant or substantial part in the planned robbery, or that it be a more or less ‘“trivial changes of location having no bearing on the evil at hand.”’ [Citation.]” (People v. Ellis (1971) 15 Cal.App.3d 66, 70.) In deciding whether a victim’s movement is incidental to the underlying crime, “‘the “scope and nature”’ of the movement” is considered, including “‘the actual distance a victim is moved,’” but “‘there is no minimum number of feet a defendant must move a victim in order to satisfy the first prong.’ [Citations.]” (People v. Martinez (1999) 20 Cal.4th 225, 233.)
People v. Daniels (1988) 202 Cal.App.3d 671 is instructive. There, the defendant forced his robbery victim to drive half a block from a market, a public area, to a residential area, a less-frequented location, and robbed him. Upon finding the victim’s bank card, defendant then required him to drive three or four blocks to a nearby bank to withdraw cash from an automated teller machine. The court held the initial movement of the victim was brief and incidental to the robbery but that forcing the victim to drive three or four blocks to the bank “for the purpose of effecting a robbery was movement for a substantial distance ‘even though it may have been solely to facilitate the commission of the robbery.’ [Citations].” (Id. at p. 683.)
Here, the facts underlying the kidnapping for robbery charge resemble the initial movement of the victim in Daniels. The victim testified repeatedly that when defendant robbed her, they “were only inches from where” he had grabbed her. Although she also testified she was “in front of the blue car” when she opened her purse, either way, the initial movement into the alley was brief and served only to facilitate the underlying crime of robbery with no other apparent purpose. Accordingly, the movement of the victim was merely incidental to the robbery. (See People v. Daniels, supra, 202 Cal.App.3d at p. 683.)
The district attorney argues the movement of the victim 23 feet into the alley “increase[d] the risk of harm to the victim,” enhanced defendant’s “opportunity to commit additional crimes,” and allowed defendant to “avoid detection.” But the additional movement into the alley occurred only after the victim told defendant she did not have any money, at which point, defendant demanded sex, the victim refused, and a struggle ensued.
Moreover “any movement of a robbery victim increases the risk of harm to the victim over and above that present in a standstill robbery. Where the movement of a robbery victim is... found insufficient to support a conviction of aggravated kidnapping..., analysis of whether the movement of the victim increased the risk of harm need not be undertaken. Indeed, a finding of sufficient movement in this case would eliminate the first part of the test in favor of a test based entirely on increased risk of harm. Clearly, that is not the law.” (People v. Washington (2005) 127 Cal.App.4th 290, 301.) Thus, having determined the victim’s movement was incidental to the commission of the robbery, it is unnecessary to decide whether the movement substantially increased the risk of harm above and beyond that inherent in robbery.
DISPOSITION
The order dismissing respondent’s conviction of kidnapping for robbery is affirmed.
WE CONCUR: SILLS, P. J., FYBEL, J.