P. v. Lopez
Filed 6/19/13 P. v. Lopez CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and
Respondent,
v.
LUCIO ROJAS LOPEZ,
Defendant and
Appellant.
G046822
(Super. Ct.
No. 10NF1794)
O P I N I O
N
Appeal from a judgment
of the Superior Court
of
County, Daniel J. Didier, Judge. (Retired judge of the Orange Super.Ct.
assigned by the Chief Justice pursuant to art. VI, §6 of the Cal.
Const.) Affirmed.
Law Offices of Allen G. Weinberg and
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, Melissa Mandel and Eric A. Swenson, Deputy Attorneys General,
for Plaintiff and Respondent.
INTRODUCTION
A
jury convicted appellant of aggravated
kidnapping (Pen. Code, § 209, subd. (b)(1)) and commission of a
forcible lewd act upon a child under the age of 14 (Pen. Code, § 288,
subd. (b)(1)).
title="">[1] He was sentenced to life in prison with the
possibility of parole. On appeal, he
contends his aggravated kidnapping conviction must be reversed because his
movement of the victim was incidental to his commission of the lewd act upon
her, and therefore did not meet the asportation requirement of section 209,
subdivision (b)(1). He also contends
that section is unconstitutionally vague because it does not provide adequate
notice of what is prohibited conduct. We
reject both these arguments but conclude, as has the Attorney General, that his
sentence was incorrectly calculated, and he deserves an additional 101 days of
local conduct credits pursuant to section 2933.1.
FACTS
Martin
and Elizabeth shared their residence with Elizabeth’s cousin M. and her
nine-year-old daughter Casey. Appellant
Lucio Rojas Lopez also lived in the house.
M. and Casey slept on a couch in the living room, appellant in a bedroom
16 feet away.
One
night, Martin and appellant came home together.
Martin was a bartender and he gave appellant a ride home from the bar
after it closed. They both retired to
their bedrooms, but later Elizabeth came back from using the bathroom and asked
Martin where Casey was. Martin went
looking for her. When M. didn’t know
where she was, he looked in the bathroom.
When she was not there, he went to appellant’s room. The door was locked and Martin called for
appellant. Appellant opened the door
slightly and peered out. Martin asked
where Casey was and, when appellant did not respond, he pushed the door open
and found Casey, standing behind appellant and trembling.
Casey
said appellant had carried her into the bedroom, pulled down her pajama
bottoms, and begun touching her “bottom.â€
She said he woke her up on the couch, put his hand over her mouth, and
carried her into his bedroom.
name="_ftnref2" title="">[2] While he was touching her bottom and her
upper thighs, she was trying to scream and kicking appellant, but to no avail.
Interviewed
by the police, appellant made damaging admissions and concluded he was
“sick-minded.†He said he was very drunk
and blamed the incident on “a fucking temptation that sometimes dominates
everyone.â€
DISCUSSION
I.
Asportation
Section
209, subdivision (b)(1), requires asportation of the victim. The gravamen of any kidnapping offense is the
carrying away of the victim, and California law with regard to aggravated
kidnapping – a conglomeration of crimes gathered together in section 209, all
of which focus on moving someone in order to carry out another crime such as
robbery, rape, or child molestation – has developed a rich and somewhat
complicated decisional history on this issue.
The
briefing in this case expends a great deal of space and scholarship chronicling
this history and applying the decisional interpretation of section 209,
subdivision (b)(1) (kidnapping to commit a sex offense), to the facts of this
case. The briefing is clear and cohesive
enough to have allowed appellant to conclude, in his reply brief that, “The
parties do not disagree about the law in this area, but they disagree as to
whether the movement of the victim herein from a living room couch to a bedroom
satisfied the asportation element prerequisites that it: 1) must not be
incidental to the commission of the specified crime; and 2) increased the risk
of harm above that inherent in the enumerated sexual offense.â€
While
that may overstate somewhat the degree of agreement between the parties, it
does provide a ready framework for the resolution of the first issue raised on
appeal. Using that framework, we
conclude case law establishes that the movement here was not incidental and did
increase the risk of harm to Casey.
Contrary
to appellant’s assertion that “respondent cites no case that has upheld an aggravated
kidnapping conviction where the movement is such a short distance,†respondent
has cited People v. Shadden (2001) 93
Cal.App.4th 164 (Shadden). Shadden
dealt with facts not meaningfully distinguishable from those of our case. There a jewelry store sales clerk was dragged
nine feet from the front of the store – open to the public – to a small back
room, where her assailant intended to rape her.
Nine feet is, of course, not only a short distance, but one shorter than
the distance involved here.
name="_ftnref3" title="">[3]
“Where movement changes the victim’s
environment, it does not have to be great in distance to be substantial. (People
v. Smith [(1995)] 33 Cal.App.4th [1586,] 1593-1594 [defendant moved
the victim from the driveway into a camper at the rear of the house].)†(Shadden,
Here, the victim was moved from the front room of the house open to view
through windows and to anyone who entered through the front door, to a bedroom,
thus interposing another closed door between the crime and any rescuer. We
think it pretty clear this increased her danger, and, like the
discuss distance beyond that.
As
for whether the movement was merely incidental to the crime, we reject
appellant’s argument that any movement done to facilitate the crime is
incidental. Were we to accept that view,
we would pretty much abnegate section 209 entirely, since it would be
impossible for the prosecution ever to satisfy the asportation
requirement. Movement of the victim is
That is the whole point.
Instead,
we adopt the analysis of our Supreme Court in People v. Rayford (1994) 9 Cal.4th 1 (Rayford), the case that caused the legislature to move aggravated
kidnapping out of section 208 and into its own section 209. There, in dealing with kidnapping for
robbery, the court noted the difficulty of devising a formulaic solution for
the issue of whether movement is incidental.
It said, “[T]he jury considers the ‘scope and nature’ of the movement. [Citation.]
This includes the actual distance a victim is moved. However, we have observed that there is no
minimum number of feet a defendant must move a victim in order to satisfy [this
requirement].†(Rayford, at p. 12.) The
court said the determination whether movement is incidental must be resolved
“by considering the context of the environment in which the movement
occurred.†(Ibid.) And it must be
remembered that whether the movement is incidental is not a question to be
determined in a vacuum, but is “interrelated†to the question of whether the
movement has increased the victim’s danger.
(Ibid.; Cited with approval in
Dominguez, supra, 39 Cal.4th at p. 1152.)
This
is, obviously, an individualized task, a process that will be different in
every case. But we are convinced the
Supreme Court made this process much easier for us in Dominguez, supra, 39 Cal.4th 1141, when it explained,
“Measured distance, therefore, 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 (see [People v.] Daniels
[(1969)] 71 Cal.2d [1119,] 1123-1124 [(Daniels)]
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
[, supra,] 93 Cal.App.4th [at p.] 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.†Moving a
child 16 feet from the living room of a home to a bedroom with a closed door
not only might, but did, substantially increase the risk of harm to her. Considering the facts of this case, where the
crime could have been accomplished in the living room, but was moved to another
room solely to decrease the likelihood of detection, make escape more
difficult, and facilitate other crimes (ibid.),
we are satisfied asportation was adequately established.
II.
Vagueness
Appellant’s
argument that section 209, subdivision (b)(1), is unconstitutionally vague is
related to his contention he should not be subject to kidnapping sanctions for
moving his victim a mere 16 feet. He
complains that “if the statute is applied in a manner which that [
a couch to a bedroom is ‘beyond that merely incidental,’ then section 209,
subdivision (b)(2) fails to give a person reasonable notice of what constitutes
a violation of section 209.â€
We are
unable to construct a syllogism that works for this argument. Appellant’s claim is that interpretation of
the statute to make such a small movement sufficient to constitute a kidnapping
does not enable a miscreant to distinguish between “the greatly enhanced
penalty they are subject to under section 209 versus simple kidnapping in
section 207.†But the difference between
section 207 and section 209 has never been the distance involved. The difference between the two crimes is the
purpose for which the victim is moved.
If the victim is culpably moved for one of the purposes designated in
section 209 (“robbery, rape, spousal rape, oral copulation, sodomy, or any
violation of Section 264.1, 288, or 289†or ransom) the crime is aggravated
kidnapping under section 209. If the
victim is moved for another purpose, the crime is a simple kidnapping under
section 207.
The
“notice†of which crimes fall under section 207 and which fall under section
209 has nothing to do with distance. It
could hardly be clearer, and we think it plenty clear enough to “avoid
arbitrary and discriminatory enforcement.â€
(People v. Townsend (1998) 62
Cal.App.4th 1390, 1400.) As our Supreme
Court said in Daniels,
1128-1129, “The law is replete with instances in which a person must, at his
peril, govern his conduct by such nonmathematical standards as ‘reasonable,’
‘prudent,’ ‘necessary and proper,’ ‘substantial,’ and the like. Indeed, a wide spectrum of human activities
is regulated by such terms: thus one man
may be given a speeding ticket if he overestimates the ‘reasonable or prudent’
speed to drive his car in the circumstances [citation], while another may be
incarcerated in state prison on a conviction of willful homicide if he
misjudges the ‘reasonable’ amount of force he may use in repelling an assault
[citations] . . . . Yet standards of
this kind are not impermissively vague, provided their meaning can be
objectively ascertained by reference to common experiences of mankind.†Nothing in this opinion undermines the
constitutional validity of the notice provided by section 209.
III.
Conduct Credits
The
trial court, in calculating the amount of time appellant had spent in custody,
gave him 678 days of actual credit for time served, but “zero pre-sentence
conduct time.†This was error. As appellant argues, and the Attorney General
concedes, only defendants convicted of murder are stripped of their conduct
credits (§ 2933.2). Appellant
should have received 15 percent of the 678 days he spent in custody as conduct
credits. We therefore order the abstract
of judgment amended to add 101 days of conduct credits, for a total of 779 days
credited. The trial court is directed to
prepare an amended abstract of judgment and forward a copy to the
DISPOSITION
In
all other respects, the judgment is affirmed.
BEDSWORTH,
J.
WE CONCUR:
RYLAARSDAM,
ACTING P. J.
ARONSON, J.
name="_ftn1" title=""> [1] All further statutory references
are to the Penal Code.
name="_ftn2" title=""> [2] Casey’s mother was apparently
outside, engaged in a cellphone conversation when this happened, doubtless
thinking her daughter was safe inside the house.
