Moving robbery victims from front of store to back room where goods and cash were kept is insufficient to establish the asportation requirement for aggravated kidnapping (Pen. Code, § 209, subd. (b)(1)). Williams and three codefendants held-up a series of cell phone stores and were convicted of a number of offenses including multiple counts of robbery, kidnapping, and kidnapping to commit robbery (aggravated kidnapping). They appealed on a number of grounds including that there was insufficient evidence of the movement element for aggravated kidnapping since the victims were only moved “60, 50, and 40 feet, always inside the store, from locations closer to the front of the store (and visible from the outside) to the rears of the store or to backrooms, where the merchandise and/or cash was kept.” Held: Aggravated kidnapping convictions reversed. Kidnapping for the purpose of robbery (aggravated kidnapping) “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 . . . In determining whether the movement is merely incidental to the underlying crime . . . the jury considers the ‘scope and nature’ of the movement . . . This includes the actual distance a victim moved.” (People v. Martinez (1999) 20 Cal.4th 225, 232-233.) The movements in this case were all incidental to the robberies. “Robbery of a business owner or employee includes the risk of movement of the victim to the location of the valuables owned by the business that are held on the business premises . . . The fact thresholds within the business are crossed cannot elevate robbery to aggravated kidnapping . . . .” (People v. Washington (2005) 127 Cal.App.4th 290, 300.) The aggravated kidnapping convictions must be reversed. For similar reasons, the simple kidnapping convictions (Pen. Code, § 207, subd. (a)) must also be reversed.
Trial court committed harmless error by admitting evidence of uncharged robberies to show motive, intent, or common plan. One defendant, Jarrod, argued that the trial court erred by admitting evidence of three uncharged robberies to show motive, intent, and common plan. The Court of Appeal agreed. The charged and uncharged robberies were typical of many cell phone store robberies throughout the state. The lack of distinctive characteristics diminishes their probative value to show motive, intent, and common plan. But even if the details of the robberies were distinctive, the prosecution produced no evidence that Jarrod was involved in them. Evidence of common design or plan is not admissible to prove identity. “The evidence would tend to prove only that the same person or persons had committed all the crimes [charged and uncharged]. The evidence would not tend to prove that person was Jarrod.” And because the evidence did not tend to prove that Jarrod committed the robberies, admitting the evidence, although error, was harmless.
Penal Code section 654 prohibits punishing defendants separately for false imprisonment and robbery where both offenses were part of an indivisible course of conduct committed pursuant to a single intent or objective. Defendants also argued that the trial court erred under section 654 by punishing them separately for false imprisonment and robbery. The Court of Appeal agreed. Section 654 “generally prohibits multiple punishments for a single physical act that violates different provisions of law . . . .” (People v. Newman (2015) 238 Cal.App.4th 103, 111-112.) It also prohibits multiple punishment for an “indivisible course of conduct that violates more than one criminal statute” depending on “the intent and objective of the actor.” (Ibid.) “Here, the false imprisonment and the robberies of each victim . . . were an indivisible course of conduct committed ‘pursuant to a single intent or objective,’ that is, to rob the victims of the cell phones, cash, and other merchandise in the back rooms of the stores.” (Citing People v. Beamon (1973) 8 Cal.3d 625, 639.) The trial court should have stayed the punishment for the false imprisonment counts.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B259659.PDF