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Court of Appeal:
Gratuitous Force Is Relevant to Asportation for Kidnapping
Opinion Says Using Unnecessary Violence Turns Movement Into More Than That Which Is Required for Robbery, Distinguishing Earlier Cases
By Kimber Cooley, associate editor
Div. Six of this district’s Court of Appeal has held that the fact that criminal defendants used more violence, threats, and victims than was necessary to complete a robbery rendered the movement of three employees less than 40 feet within a cellular phone store—and forcing them into a small, back room where the safe was located—into a substantial asportation independent of the theft, as required for kidnapping convictions.
A simple kidnapping charge, under Penal Code §207, requires the prosecution to prove that a person was unlawfully moved, by physical force or fear, and that the movement was of a substantial distance. For cases involving another offense like robbery, the movement must be more than that which is necessary to complete the other crime.
Appealing their judgments of convictions were Marquishon Hughey and Dequon Dillard, each of whom was charged with kidnapping and robbery relating to an incident at a Camarillo AT&T store on July 29, 2021.
AT&T employees Abdul Razai, Carlos Molina, and Renan Lansang were closing up the store when three men walked into the establishment. One of them, Damien Barron, ran toward the employees with a gun, followed by Hughey and Dillard.
The three men told the employees to move to the back room containing the safe. The room was small, usually only accommodating two persons, and the intruders were shouting contradictory information.
One of the men pressed a gun to the back of Molina’s neck as he was told to open the safe and Razai was given a bag to fill with phones from the safe. Lansang testified that one of the defendants told him “I’m going to Glock you down,” which he interpreted as meaning that he would be shot if he failed to follow orders.
Following pleas of no contest by Hughey and Dillard on the robbery charges, Ventura Superior Court Judge Anthony J. Sabo held a court trial on the kidnapping counts. Sabo convicted both defendants of kidnapping and robbery and sentenced to 12 years in state prison.
Presiding Justice Arthur Gilbert wrote the opinion, filed Thursday, affirming the judgment of convictions.
Gilbert’s opinion acknowledges two similar cases in which the Court of Appeal for this district came to the opposite conclusion on kidnapping convictions—the 2005 case of People v. Washington and the 2017 decision in People v. Williams—factually distinguishing them and saying that the opinions “condone unnecessary violent conduct.”
Two Cases
The defendants cited the Washington and Williams cases as support for their claim that the movement of the three employees was only incidental to the robbery and could not support separate charges for kidnapping.
The Washington decision, written by Presiding Justice Joan Klein (now deceased), held that the moving of all employees to the back room of a bank was insufficient to support a kidnapping charge as “the cooperation of two bank employees was required to open the vault,” making the asportation incidental to the robbery.
Then-Justice Jeffrey W. Johnson (who was subsequently removed from office by the Commission on Judicial Performance) authored the opinion in the Williams case, which found that the moving of a single security guard 50 feet inside a cellular phone store in Fontana and ordering him to open the safe was necessary to complete the robbery and was insufficient to support an additional charge of kidnapping.
Distinguishing Washington, Gilbert wrote that “[w]here more than one victim is moved, the court may properly decide whether moving multiple victims was necessary to commit robbery” and concluded that, in the present case, the movement of all three employees to the safe room was unnecessary as only one was needed to open the safe.
He reasoned:
“Molina testified he knew the codes. Lansang testified he also knew the codes to open the security doors and safes. He said he could have written down those codes which would have provided access to the security doors and all the safes. But the defendants did not ask him or any of the employees for the codes. They did not ask that only one person go with them, which would have allowed the other two employees to stay where they were.”
Gilbert continued:
“Here movement of more than one employee was not necessary. Defendants’ counsel argued defendants committed robbery by using the method they selected. But the court is not bound by the defendants’ modus operandi; it may consider whether they ‘could have’ committed the offense without moving the victims.”
Gratuitous Violence
Turning to the level of violence, he said:
“In Williams…and Washington…the appellate court concluded the robbers’ conduct was necessary in the circumstances of the robbery. In Williams, the robbers 1) held a knife to a woman’s neck, 2) physically assaulted a victim, and 3) made a death threat. In Washington, the robbers struck a compliant woman leaving a mark on her face and grabbed another woman by her hair and threw her to the floor.”
Gilbert said that these decisions ignore the fact that unnecessarily violent conduct places victims at increased risk of harm and opined:
“The robbers may detain victims in one place and go to another to take items…; but whenever they elect to move victims, they may face more serious consequences. Forced movement of victims that is not necessary to commit robbery increases their risk of harm, is not incidental to robbery, and supports a kidnapping conviction.”
Facts Examined
Looking at the facts before the court, the presiding justice remarked:
“[I]nstead of simply taking the items from the safes and leaving the store…, the defendants forced the employees to aid them in completing the robbery and to go through an unnecessary ordeal….
“After forcing the employees into the small vault room with its limited space, the defendants then ordered them to load the phones into bags. This was followed by an express death threat if the employees did not follow their orders….[T]he trial court could reasonably infer forcing the employees to perform in this do-or-die terror chamber environment was excessive, gratuitous, and not merely incidental to robbery given that the defendants could have simply taken the loot and avoided the trauma they caused.”
As to the movement itself, Gilbert said:
“In determining whether the movement is substantial, ‘the trier of fact may consider more than actual distance.’….The ‘totality of the circumstances’ must be considered….The movement may be substantial where it changed the victim’s ‘environment’ and ‘increased’ the victim’s ‘risk of harm.’ ”
Disagreeing with the defendants that the movement of the victims by “less than 40 feet to the safe room” was insignificant, he said that “[h]ere the defendants caused the employees to be hidden from public view and increased the employees’ risk of harm.”
The case is People v. Hughey, 2024 S.O.S. 3292.
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