In Re Bryant

19 Cal. App. 3d 933, 97 Cal. Rptr. 40, 1971 Cal. App. LEXIS 1337

• Court: California Court of Appeal
• Decided: September 7, 1971
• Docket: Crim. 20055
• Status: Published

Opinions

Opinion

HERNDON, J.

Petition for writ of habeas corpus.

The above entitled proceeding previously pending in the Court of Appeal, Third District, was transferred to this court by order of the Supreme Court dated April 26, 1971.

In February of 1965, petitioner was convicted on count II of an information charging robbery (Pen. Code, § 211), and on four counts of kidnaping for the purpose of robbery (Pen. Code, § 209). The named victim of the robbery was one Copeland. Each of the four kidnaping counts alleged a different victim identified as follows: Count I—Beard; count III—Copeland; count IV—Gulsrud; and count V—Hawkins.

As indicated, petitioner was found guilty on all five counts as charged. The allegations that petitioner was armed with a deadly weapon were found to be true and the robbery was found to be of the first degree. Petitioner was sentenced to state prison on count III for the kidnaping of Copeland for the purpose of robbery, and on all the remaining counts the imposition of sentence was suspended.

The record reveals that the transaction involved was a daylight armed robbery of a J. C. Penney store located in Santa Monica. The victim Beard arrived on the premises first, was taken upstairs and tied up. Copeland then arrived, was taken upstairs and forced to open the safe and then tied up. Gulsrud and Hawkins arrived later and likewise were tied up.

After the money had been put in bags, petitioner cut Copeland loose and told him, “You are coming with me.” The rest of the employees were told Copeland would be killed if anybody called the police within 15 minutes. The following events then occurred:

Petitioner told Mr. Copeland to go ahead of him down the stairs. When they had reached the main floor, petitioner picked up the zippered bags containing the money and gave one to Mr. Copeland to carry. They then left the store and walked a distance of about one block to where Mr. Copeland’s Volkswagen was parked on Third Street, just north of California. At petitioner’s direction, Mr. Copeland got into his car and opened the passenger door for appellant. Petitioner told Mr. Copeland to put the bag he was carrying on the floor behind the driver’s seat. Petitioner then put the other bag on the floor in the front seat and got into the car.

Following petitioner’s directions, Mr. Copeland drove the car. The route taken was north on Third to Montana, east on Montana to Fourth, north on Fourth to Adelaide, east on Adelaide to Seventh, and north on Seventh to where it intersects with Pacific Coast Highway and Chautauqua. Petitioner then told him to turn right and Mr. Copeland did so and proceeded up Chautauqua. However, petitioner then said, “No, I mean that street,” referring to Pacific Coast Highway. When asked if he wanted to turn around, petitioner said, “Keep going.” After driving a short distance on Chautauqua, petitioner told Mr. Copeland to pull over to the curb and get out. After Mr. Copeland had gotten out of the Volkswagen, petitioner slid into the driver’s seat and then proceeded along up Chautauqua until he was out of Mr. Copeland’s sight.

Relying upon the recent decisions of the Supreme Court in People v. Mutch, 4 Cal.3d 389 [93 Cal.Rptr. 721, 482 P.2d 633], and more particularly People v. Timmons, 4 Cal.3d 411 [93 Cal.Rptr. 736, 482 P.2d 648], the petitioner argues that his convictions on the four counts of kidnaping for the purpose of robbery should be vacated for the reason that the movements of the victims were purely incidental to the crime of robbery.

It is our conclusion that the cited cases support petitioner’s position with respect to the kidnapings charged in counts I, IV and V, but that the movement of Copeland was such as to support petitioner’s conviction of kidnaping of Copeland for the purpose of robbery as charged in count III. People v. Timmons, supra, is clearly distinguishable on the facts. In that case the vehicle in which the victims were robbed could properly be referred to as “the moving situs of the robbery.”

In the instant case, however, Copeland was removed from the store, forced into his automobile and compelled to drive a circuitous route of some two to three miles before being cast out of his automobile. Copeland’s abduction, accompanied by petitioner’s threat to kill him if the police were called, substantially increased the risk of harm to him far beyond that inherent in the crime of robbery. (People v. Timmons, supra, 4 Cal.3d at p. 415; People v. Ellis, 15 Cal.App.3d 66 [92 Cal.Rptr. 907]; People v. Stathos, 17 Cal.App.3d 33 [94 Cal.Rptr. 482], and decisions therein cited.) Furthermore, such abduction to prevent the apprehension of the robber necessarily involves the additional inherent risks incident to pursuit and escape. (Cf. People v. Ramirez, 2 Cal.App.3d 345, 356 [82 Cal.Rptr. 665].)

Petitioner has argued that where a kidnaping occurs after an otherwise completed robbery, the case is removed from the coverage of Penal Code section 209. This argument is fallacious. As stated in People v. Carroll, 1 Cal.3d 581, at page 585 [83 Cal.Rptr. 176, 463 P.2d 400]: “It is settled that the crime of robbery is not confined to the act of taking property from victims. The nature of the crime is such that a robber’s, escape with his loot is just as important to the execution of the crime as obtaining possession of the loot in the first place. Thus, the crime of robbery is not complete until the robber has won his way to a place of temporary safety. [Citations.]”

It was held that the shooting of the victim in Carroll occurred “in the course of commission of the robbery.” Likewise in the case at bench the asportation of the victim (for a distance of several miles under compulsion of threats to kill him and subjecting him to risks of fatal injury far greater than those normally incident to a robbery) occurred “in the course of commission of the robbery.” Manifestly, appellant entertained the intent to commit robbery continuously from the moment he entered the J. C. Penney store until he and his confederates reached their “place of temporary safety” in Pacific Palisades. (Cf. People v. Tribble, 4 Cal.3d 826 [94 Cal.Rptr. 613, 484 P.2d 589].)

Petitioner’s contention that double punishment was illegally imposed upon him (Pen. Code, § 654) is equally unfounded. The trial court stayed the sentence on the robbery count and thereby eliminated any claim of double punishment. (People v. Lynch, 14 Cal.App.3d 602, 605 [92 Cal.Rptr. 411].)

Accordingly, it is ordered that our remittitur in case No. 10988, People v. Bryant, is recalled, and the convictions on counts I, IV and V are vacated. In all other respects the judgment is affirmed. Except to the extent indicated, the petition is denied.

Fleming, J., concurred.