Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge., No. FVI702102
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Kelley Johnson and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Richli, J.
All statutory references are to the Penal Code unless stated otherwise.
A jury convicted defendant Perry Giovanni Adams of kidnapping for the purpose of robbery (§ 209, subd. (b)(1)), attempted robbery (§§ 664/211) and assault with a firearm (§ 245, subd. (a)(2).) The trial court sentenced him to 13 years on the first count. An additional 13 years were stayed. The court also imposed various fees, fines, and custody credits.
On appeal, defendant argues there was insufficient evidence of kidnapping. In the alternative, defendant urges that attempted robbery is a lesser included offense of kidnapping for robbery and his second conviction should be reversed.
The parties agree the abstract of judgment must be corrected to reflect the amount of the restitution and parole revocation fines were $2,500 each, not $25,000. We agree the correction should be made. Otherwise the judgment, as modified, is affirmed.
II. Facts
At 10:00 a.m. on September 17, 2007, defendant entered the store where Gi Bong Kang sold drinking water. Defendant asked Kang about the price of a water cooler, including sales tax. When Kang used the cash register to calculate the tax, defendant pointed a gun at Kang’s forehead and grabbed him by the neck. The two men grappled with the gun and defendant, enraged, began hitting Kang on the head.
Defendant spoke something to Kang in English, which Kang did not understand. Defendant continued to hit Kang eight or nine times and to push him toward the back of the store, trying to shove him into the equipment room and the bathroom. When Kang resisted and screamed for help, defendant ran from the store and Kang pursued him.
One witness, Suzette Pornelos, heard a commotion and saw defendant flee the store, chased by Kang, covered in blood. She called the police and watched them apprehend defendant.
Another witness, Robert Baca was driving by and encountered defendant waving a gun. Baca blocked defendant’s escape with his truck. When defendant collided with the truck, he fell down but he got to his feet and kept running. Baca exited his truck, tackled defendant, and pinned him down until the police arrived.
Defendant had discarded the gun, which police found in the bushes. A few weeks later, Kang found the gun’s loaded magazine near some pallets in the back of the store.
When the police transported defendant to the hospital for treatment of his sprained wrist, Deputy Conley answered defendant’s question about how much time he might serve, “double digits.” Defendant speculated he might serve 10 or 12 years because of two strikes, “It’s the robbery and kidnapping that’s going to fuck me.”
Kang’s head injury required four staples to close the wound on the side of his head and three staples for the wound on the top of his head. He suffers residual headaches.
Nothing was taken from the store.
III. Kidnapping for Purposes of Robbery
The offense of kidnapping for purposes of robbery is defined by section 209:
“(b)(1) Any person who kidnaps or carries away any individual to commit robbery... shall be punished by imprisonment in the state prison for life with the possibility of parole.
“(2) This subdivision shall only apply if the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense.”
Many cases have grappled with the asportation element of the crime and the meaning of incidental movement of the victim. Recently, in the context of kidnapping for rape, the California Supreme Court has elaborated on these issues:
“Whether a forced movement of a rape victim (or intended rape victim) was merely incidental to the rape, and whether the movement substantially increased the risk of harm to the victim, is difficult to capture in a simple verbal formulation that would apply to all cases. We discussed the standard in Rayford and explained that the jury must ‘consider[] the “scope and nature” of the movement,’ as well as ‘the context of the environment in which the movement occurred.’ ([People v. Rayford (1994) 9 Cal.4th 1,] 12; see People v. Aguilar (2004) 120 Cal.App.4th 1044, 1051 [emphasizing the context of the movement].) This standard suggests a multifaceted, qualitative evaluation rather than a simple quantitative assessment. Moreover, whether the victim’s forced movement was merely incidental to the rape is necessarily connected to whether it substantially increased the risk to the victim. ‘These two aspects are not mutually exclusive, but interrelated.’ (Rayford, at p. 12.)
“The essence of aggravated kidnapping is the increase in the risk of harm to the victim caused by the forced movement. (Rayford, supra, 9 Cal.4th at p. 22.) We have articulated various circumstances the jury should consider, such as whether the movement decreases the likelihood of detection, increases the danger inherent in a victim’s foreseeable attempts to escape, or enhances the attacker’s opportunity to commit additional crimes. (Id. at p. 13.)...
“Measured distance... is a relevant factor, but one that must be considered in context, including the nature of the crime and its environment. In some cases a shorter distance may suffice in the presence of other factors, while in others a longer distance, in the absence of other circumstances, may be found insufficient. For example, moving robbery victims between six and 30 feet within their home or apartment [citation] or 15 feet from the teller area of a bank to its vault (People v. Washington (2005) 127 Cal.App.4th 290, 299) may be viewed as merely incidental to the commission of the robbery and thus insufficient to satisfy the asportation requirement of aggravated kidnapping. Yet, dragging a store clerk nine feet from the front counter of a store to a small back room for the purpose of raping her (see People v. Shadden (2001) 93 Cal.App.4th 164, 167) or forcibly moving a robbery victim 40 feet within a parking lot into a car (see People v. Jones (1999) 75 Cal.App.4th 616, 629) might, under the circumstances, substantially increase the risk of harm to the victim and thus satisfy the asportation requirement. These examples are illustrative only; each case must be considered in the context of the totality of its circumstances.
“Robberies and sex crimes, the necessary predicates for an aggravated kidnapping (see § 209), can of course be committed in a variety of ways. To catalog all the myriad and various possible aspects of such crimes would be impossible. But beginning with the template established in [People v. Daniels (1969) 71 Cal.2d 1119, 1139], prohibiting increased liability for aggravated kidnapping for what are essentially brief and trivial movements in ‘standstill’ robberies or for movements ‘merely incidental’ to commission of the offense, through Rayford, supra, 9 Cal.4th 1, the applicable test under former section 208(d) is clear: for aggravated kidnapping, the victim must be forced to move a substantial distance, the movement cannot be merely incidental to the target crime, and the movement must substantially increase the risk of harm to the victim. Application of these factors in any given case will necessarily depend on the particular facts and context of the case.” (People v. Dominguez (2006) 39 Cal.4th 1141, 1151-1153.)
In the present case, defendant argues that his movement of the victim while pistol-whipping him occurred incidentally to the robbery because defendant’s purpose was to search the back rooms of the business for valuables to steal. (People v. Washington, supra, 127 Cal.App.4th at p. 299.) Nothing in the record supports this interpretation of what occurred. According to the record, defendant neither said or did anything to indicate he was looking for another target for his robbery. His only action was to continue beating Kang. Instead, it is much more reasonable that the jury concluded defendant was pushing and hitting Kang because he was angry at him for thwarting his robbery attempt.
Additionally, the victim unquestionably suffered an increase in the risk of harm caused by his forced movement. (People v. Rayford, supra, 9 Cal.4th at p. 22.) The movement to the back of the store obviously decreased the likelihood of detection and increased the danger inherent in Kang’s attempts to escape. (Id. at p. 13.) The kidnapping in the present case was accomplished by movement beyond that merely incidental to the commission of, and increased the risk of harm to Kang, over and above that necessarily present in the intended robbery. Sufficient evidence established the aggravated kidnapping.
IV. Attempted Robbery
As an alternative argument, defendant urges that attempted robbery is a necessarily included offense of kidnapping for robbery and he cannot be convicted of both offenses. (People v. Montoya (2004) 33 Cal.4th 1031, 1034.) We reject these arguments because the two are separate crimes.
The California Supreme Court has consistently held that robbery is not a lesser included offense of kidnapping for robbery because kidnapping for robbery does not require a completed robbery. (People v. Lewis (2008) 43 Cal.4th 415, 518-519; People v. Davis (2005) 36 Cal.4th 510, 565.) In the present case, however, defendant argues that the failed robbery attempt was a lesser included offense because attempted robbery and intent to commit kidnapping for robbery both require an intent to commit robbery. (CALCRIM Nos. 460 and 1203; People v. Wallace (2008) 44 Cal.4th 1032, 1077; People v. Laursen (1972) 8 Cal.3d 192, 198; People v. Crawford (1968) 259 Cal.App.2d 874, 877.)
Although this argument is superficially appealing, we reject it. First, we note it is generally acknowledged that the lesser included offenses of kidnapping for robbery are kidnapping, attempted kidnapping, and false imprisonment. (CALCRIM No. 1203.) Attempted robbery is a lesser included offense of robbery. (CALCRIM No. 1600.) Nevertheless, defendant seeks to make attempted robbery a lesser included offense of kidnapping for robbery as well.
Although both the kidnapping and robbery crimes include intent as an element, attempted robbery includes the additional element of proof of a direct but ineffective step requiring more than merely planning or preparation and shows that a person is putting his plan into action. (CALCRIM No. 460.) “‘“planning the offense”’ and “‘devising, obtaining or arranging the means for its commission”’ are merely aspects of preparation.” (People v. Luna (2009) 170 Cal.App.4th 535, 543-544, citing People v. Memro (1985) 38 Cal.3d 658, 698 and People v. Dillon (1983) 34 Cal.3d 441, 452.)
Theoretically, it would be possible to commit a kidnapping with the intent to commit robbery but without the additional element of a direct but ineffective step. Therefore, under the elements test, the elements of attempted robbery are not necessarily included in the elements of the crime of kidnapping for robbery. (People v. Montoya, supra, 33 Cal.4th at p. 1034.) We decline to reverse defendant’s conviction for attempted robbery.
V. Disposition
We affirm the judgment as modified. The trial court is directed to prepare an amended abstract of judgment correcting the amount of the restitution and parole revocation fines to be $2,500 each and to forward certified copies of it to the Department of Corrections and Rehabilitation.
We concur: Ramirez P. J., McKinster J.