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Court of Appeal:
Movement Up, Down Staircase Is Insufficient to Support Simple Kidnapping Conviction
Sanchez Says Asportation Was Merely Incidental to a Home-Invasion Robbery; Moore Dissents, Insists Majority Applies Wrong Standard in Undermining Jury
By a MetNews Staff Writer
Div. Three of the Fourth District Court of Appeal held Friday that the simple kidnapping convictions of two defendants—who pushed their way into the victim’s home, forced the resident upstairs at gunpoint to open a safe containing other firearms before dragging the man back downstairs to be tied to a chair—were not supported by the evidence as the movement was too insignificant and was merely incidental to the home-invasion robbery.
Appealing their convictions were Phalon Hall and his father Patrick Redman. On June 8, 2022, both were convicted, following a jury trial, of the robbery and kidnapping of Anthony T.
On the afternoon of Aug. 15, 2018, Anthony T. was unafraid when Hall came to his door because the two were neighbors who had previously smoked marijuana together. Once he saw Hall make a motion toward his waistband, however, Anthony T. tried to shut the door as Hall and two other men forced their way inside.
Anthony T. was struck by an unknown object, beaten, and pistol-whipped. Hall and the other men eventually left the home through a back door, carrying away a potted marijuana plant, jars of seeds, a cell phone, money, rifles, and a bag of camera equipment.
Redman was tried as an aider and abettor for allegedly providing the firearm used in the robbery and acting as the getaway driver.
San Bernardino Superior Court Judge Kawika Smith ordered Hall to serve an indeterminate prison term of 15 years to life for the robbery and sentenced Redman to 60 years to life on the same charge, due to certain enhancements and prior convictions. Smith stayed punishment for both defendants on the kidnapping charge.
Justice Maurice Sanchez authored the opinion reversing the kidnapping convictions. He wrote:
“After the victim met the robbers at the door, the robbers pushed into the house and proceeded to beat the homeowner. Afterward, they forced him upstairs so that he could open a safe and then took him back downstairs to tie him up while they continued looting the house. This movement up and down the stairs, the prosecution argued, constituted kidnapping. We disagree. For kidnapping, the movement must be ‘substantial.’ This was not. Accordingly, we reverse the conviction for kidnapping.”
Justice Thomas M. Goethals joined in the opinion and Acting Presiding Justice Eileen C. Moore dissented.
Simple Kidnapping
Sanchez noted that there are two types of kidnapping—simple and aggravated. Penal Code §207(a) defines simple kidnapping as the carrying away of another person by force or fear and case law has established that the movement involved must be substantial.
Aggravated kidnapping, on the other hand, is defined in §209 and involves the carrying away of another person to commit robbery or certain enumerated sex offenses. Subdivision (b)(2) provides that the crime requires that “the movement of the victim is beyond that merely incidental to the commission of…the intended underlying offense.”
Sanchez said that “[h]istorically, the movement element of simple kidnapping focused entirely on the amount of distance the person was moved” but pointed to the 1999 California Supreme Court decision in People v. Martinez as prescribing a more qualitative assessment of the asportation.
In Martinez, the defendant was charged with kidnapping a minor in violation of §208 but the high court found that the crime bears the same asportation requirement as simple kidnapping and set forth factors other than distance which are relevant to the substantiality of the movement.
Such factors include whether the movement increased the risk of harm or decreased the likelihood of detection. In cases where another crime is charged, courts are instructed to also consider whether the movement is merely incidental to that necessary to accomplish another offense.
The jurist opined that, following Martinez, the difference between the required standard of movement for simple and aggravated kidnappings has been reduced.
Incidental Movement
Applying the Martinez analysis to the present case, Sanchez said:
“When the assailants entered A.T.’s home, they immediately began beating him. The movement did not occur until after they had beaten him into submission. The movement up the stairs was a short distance and was plainly for the purpose of accessing A.T.’s safe. The movement back down the stairs was to secure him while they continued to ransack the house. The overall distance moved was short, and the purpose of the movements was to facilitate the robbery.”
Under these circumstances, he opined:
“Although defendants continued to threaten and physically assault A.T., force and fear is an essential part of robbery and is already considered in the punishment for robbery….Moreover, there is no evidence here that the movement had any substantial impact on those aspects of the crime. Accordingly, the movements were merely incidental to the crime of robbery.”
He cited the 2017 Second District case of People v. Williams, which held, in an opinion by then-Justice Jeffrey W. Johnson (who was subsequently removed from office by the Commission on Judicial Performance), that the moving of a security guard 50 feet inside a cell phone store was merely incidental of the robbery and could not support a separate kidnapping offense.
Moore’s View
Moore turned to the record in the case and noted:
“All three attackers…moved Alexander at gunpoint up an L shaped staircase….Based on the configuration of the staircase, a jury could reasonably find that this movement increased the risk of physical harm through an accidental (or intentional) firearm discharge….
“Once upstairs, the attackers then moved Alexander away from the stairs past a loft area where they had him open a safe….Inside of the safe were two rifles, which increased the danger of the attackers committing additional crimes during the course of the home invasion robbery….
“The attackers then moved Alexander from the second floor, back down the stairs, and into the kitchen/living room area—a distance estimated at more than 15 feet—which the 12 jurors could have reasonably found was more than slight or trivial.”
Based on this evidence, Moore declared:
“[T]here is substantial evidence that supports the jury’s factual determination that Alexander was moved a substantial distance. We simply have no legal authorization to substitute our judgment for that of the jury…. Thus, I would affirm the defendants’ convictions for simple kidnapping.”
Reliance on Williams
Unpersuaded by the majority’s reliance on the Williams case, the justice said:
“The Court of Appeal reversed the defendants’ simple kidnapping convictions because the court found this movement of the victims ‘was merely incidental to the robbery and was therefore not substantial.’….However, the Williams court did not analyze any of the other relevant factors, which the California Supreme Court has expressly stated are to be weighed by a jury when considering whether the distance of a victim’s movement was substantial in a simple kidnapping case.”
Turning to the standard of review she remarked:
“In a substantial evidence review, the word ‘substantial’ is something of a misnomer. The word ‘substantial’ suggests that an appellate court determines whether there is ‘enough’ evidence in the record to support the jury’s verdict. But that is wrong. A substantial evidence review is essentially a binary analysis. That is, either substantial evidence exists in the record, or it does not.”
The case is People v. Hall, G062749.
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