Monday, March 12, 2007
Page 3
C.A. Clarifies Rule on Movement of Victim in Robbery-Kidnap Case
By a MetNews Staff Writer
A robber’s act of forcibly moving a maintenance worker at gunpoint from the exterior to the interior of a business establishment in order to gain entry to the building was sufficient to support a kidnapping-for-robbery conviction, this district’s Court of Appeal has ruled.
Div. Three Thursday affirmed Los Angeles Superior Court Judge Patrick T. Meyers’ order denying a new trial motion by Gregory Wayne James, who was convicted in connection with a December 2002 robbery of the Bingo Club in Hawaiian Gardens.
After a jury found him guilty of five counts of robbery and one count of kidnapping for robbery, James contended that his kidnapping for robbery conviction was unsupported because his movement of the kidnapping victim was “merely incidental” to the robbery.
The victim, Jesus Gonzales, was an employee of the Bingo Club whom James and his associates used to gain entry into the club. While Gonzales was outdoors hosing down the club’s parking lot, James and several associates approached him and pointed a gun at his head.
The club was not yet open for business and James and his accomplices forced Gonzales at gunpoint to walk up to the door, knock and identify himself. One of his coworkers inside of the building, Ignacio Barrera, recognized his voice and opened the door to let him in, to Gonzales standing in front of another man who was holding a gun at his back.
After ordering Barrera to turn around and lie on the floor, the armed man threw Gonzales to the floor next to Barrera, and also ordered two other employees to join them on the floor.
The intruders then proceeded to the area in which the club kept its safes, two of which contained $60,000 in cash, and two of which still held deposits from the previous two nights.
During the course of the armed robbery—in which James and his accomplices forced the club’s office manager, Michelle Hines, and her supervisor, Al Lazar, to open up the safes—Gonzales and the other employees with him remained on the floor while being watched by the robbers who did not follow James into the safe area.
After some time, Gonzales and his coworkers were moved and told to lie on the floor in another section of the club. After emptying the safes, the robbers marched Hines, Lazar, Gonzales and the other employees into a single-person bathroom, and ordered them not to leave the room for ten minutes. The victims exited about seven minutes later.
At trial, James was found guilty of kidnapping for robbery under Penal Code Sec. 209, and was sentenced on that count to life in prison with a ten year enhancement for the firearm use.
The defendant sought a new trial as to the kidnapping count on the ground that there was insufficient evidence supporting the “asportation” element of the offense, but Meyers did not agree.
Justice H. Walter Croskey, writing for Div. Three, concurred with Meyers that James in fact did satisfy Sec. 209’s asportation element—which requires that the movement of a kidnapping victim be “beyond that merely incidental to” the commission of the offense and increase the risk of harm to the victim beyond that inherent in the intended offense.
“This is not a case where Gonzales was himself robbed, and defendant is charged with kidnapping Gonzales due to some trivial, criminologically insignificant movements of Gonzales that were incidental to that robbery,” Croskey wrote.
Instead, he said, the underlying offense was the robbery of the Bingo Club managers, which James and his associates chose to accomplish by bringing Gonzales to the door of the club at gunpoint. This choice means James committed the robbery by means of a kidnapping, the justice explained.
The justice noted his conclusion was not based simply on the fact that Gonzales was forcibly moved from an outdoor to an indoor location.
“We have instead considered the totality of circumstances and concluded that the entirety of the movement of Gonzales was not merely incidental to the robbery of the Bingo Club managers, and substantially increased the risk of harm to Gonzales over and above that in the underlying robbery,” Croskey wrote.
Presiding Justice Joan D. Klein and Justice Richard D. Aldrich concurred in the opinion.
The case is People v. James, 07 S.O.S. 1169.
Copyright 2007, Metropolitan News Company