[125]Opinion
BURKE, J.* This is an appeal by the People from a Marin County Superior Court order granting a writ of habeas corpus. (See Pen. Code, § 1506.)1 The People’s sole contention is that the court erred in determining that Wayne D. Earley’s conduct was not prohibited by section 209 (kidnaping for the purpose of robbery) as construed in People v. Daniels, 71 Cal.2d 1119 [80 Cal.Rptr. 897, 459 P.2d 225, 43 A.L.R.3d 677].
In 1967 Earley was found guilty by a jury in the Alameda County Superior Court on one count of kidnaping for the purpose of robbery (§ 209) and one count of first degree robbery (§§ 211, 211a) and was sentenced to prison on each count.2 The judgment was affirmed on appeal. Thereafter we reinterpreted section 209 in Daniels, and People v. Mutch, 4 Cal.3d 389, 396 [93 Cal.Rptr. 721, 482 P.2d 633], relying on the principle in In re Zerbe, 60 Cal.2d 666, 667-668 [36 Cal.Rptr. 286, 388 P.2d 182, 10 A.L.R.3d 840], held that a defendant is entitled to habeas corpus relief under Daniels “if there is no material dispute as to the facts relating to his conviction and if it appears that the statute under which he was convicted did not prohibit his conduct.” It is only where it appears as a matter of law that the defendant’s conduct did not violate the statute under which he was convicted that the defendant is entitled to collateral relief under Zerbe. (See People v. Timmons, 4 Cal.3d 411, 416 [93 Cal.Rptr. 736, 482 P.2d 648] [conc. & dis. opn. by Sullivan, J.]; In re Howard, 21 Cal.App.3d 318, 321 [98 Cal.Rptr. 531]; In re Madrid, 19 Cal.App.3d 996, 1003 [97 Cal.Rptr. 354].)
After Daniels Earley filed several motions to recall the remittitur on the ground that his conduct did not violate section 209 as construed in that decision. The motions were denied, and we denied hearings. He then filed in this court a habeas corpus petition on the same ground, and we denied the petition. He subsequently filed in the Marin County Superior Court a petition for habeas corpus on the same ground as well as an unrelated one, and an order to show cause was issued limited to the question of the validity of the section 209 conviction in the light of Daniels. Following the filing of the return and the traverse thereto, the [126]court determined that Earley’s conduct did not violate section 209 as construed in Daniels, and the court filed an order vacating the judgment of conviction and remanding the case to the Alameda County Superior Court for resentencing on the robbery count and to permit Earley to renew his applications for probation and reduction of the charges. As heretofore stated, the People have appealed.
1. The Facts
About 4:50 a.m. on July 22, 1967, Werner Schopfer, Jr., stopped at a stop sign at a lighted intersection at East 14th Street and 77th Avenue in Oakland. Earley, who was wearing sunglasses, walked up to the driver’s side of the car and stuck an object through the window. Schopfer thought the object was a gun, but it apparently was a gun-like cigarette lighter.3 Earley told Schopfer to move over, and Schopfer complied. Earley got into the car and drove east on East 14th Street a block or two, turned onto a dark side street and eventually stopped away from any street lights, in the middle of a block on a side street named Holly near 86th Avenue, a distance of some 10 to 13 blocks.
During the drive whenever Schopfer looked at Earley, Earley waved the apparent gun at Schopfer and said something to the effect that Schopfer was making him nervous and that Earley “should just kill” Schopfer. Schopfer did not remember whether they passed any other cars. After stopping on Holly Street, Earley demanded and received Schopfer’s wallet and watch. Earley then fled on foot. He took the car keys with him but left them at a nearby comer as he had promised to do. It does not appear that Schopfer was physically injured.
2. The Daniels Test
As a preliminary matter, it is necessary to consider the exact nature of the Daniels test. The People assert that it is only if both prongs of that test are met that a conviction of kidnaping for the purpose of robbery (§ 209) is invalid under Daniels.
Daniels stated (at p. 1139), “we hold that the intent of the Legislature in amending Penal Code section 209 in 1951 was to exclude from its reach not only ‘standstill’ robberies (e.g., People v. Knowles,... 35 Cal.2d 175 [217 P.2d 1]) but also those in which the movements of the victim are [127]merely incidental to . the commission of the robbery and do not substantially increase the risk of harm over and above that necessarily present in the crime of robbery itself. [Italics added.] (See Note, Room-to-Room Movement: A Risk Rationale for Aggravated Kidnapping... 11 Stan.L.Rev. 554, 555; Note, A Rationale of the Law of Kidnapping. . . Colum.L.Rev. 540, 554-557.)”4
Some authorities have indicated that, if the movement is not merely incidental to the robbery, a conviction under section 209 is not invalid under Daniels irrespective of whether there is an increase in danger to the victim under the second prong of the Daniels test. (E.g., People v. Stathos, 17 Cal.App.3d 33, 38-39 [94 Cal.Rptr. 482]; see In re Bryant, 19 Cal.App.3d 933, 937-938 [97 Cal.Rptr. 40] [conc. opn.]; 59 Cal.L.Rev. 180, 189.)5
On the other hand from language in the majority opinion in People v. Thornton, supra, 11 Cal.3d 738, it may be inferred that movements of a victim can constitute kidnaping for the purpose of robbery (§ 209) only if the movements (1) are not merely incidental to the commission of the robbery and (2) substantially increase the risk of harm beyond that inherent in the crime of robbery.6 The Thornton [128]dissent clearly so indicates.7 (See also In re Crumpton, 9 Cal.3d 463, 466-467 [106 Cal.Rptr. 770, 507 P.2d 74]; People v. Cleveland, 27 Cal.App.3d 820, 825 [104 Cal.Rptr. 161]; and People v. Lobaugh, 18 Cal.App.3d 75, 83 [95 Cal.Rptr. 547].) That indication is correct.8 Cases such as People v. Stathos, supra, 17 Cal.App.3d 33, are disapproved insofar as they are inconsistent with the views expressed herein.
Nothing in People v. Stanworth, supra, 11 Cal.3d 588, is inconsistent with the requirement that to convict a defendant of violating section 209 the jury must find both of the foregoing matters. Stanworth held (at p. 596) that the Daniels test is inapplicable to simple kidnaping (§ 207). Stanworth pointed out that both prongs of the Daniels test refer to robbery and that simple kidnaping may occur in the absence of another crime. Stanworth stated (p. 601) that the language of section 207 “implies that the determining factor in the crime of kidnaping is the actual distance of the victim’s movements; and further, that the minimum movements necessary for the commission of the crime áre present where the victim is forcibly taken ‘into another part of the same county.’ (Italics added.) Finally because the victim’s movements must be more than slight... or ‘trivial’... they must be substantial in character to constitute kidnaping under section 207.” Stanworth involved not only section 207 convictions but also a section 209 conviction, and with respect to the latter Stanworth applied the Daniels test.
Stanworth further noted (p. 600) that “In Daniels, we observed that section 209 fails to define the term ‘kidnaps’ . . . and concluded that the Legislature must have intended the term to have the same meaning as the word ‘kidnaping’ used in section 207. (Daniels, 71 Cal.2d at p. 1131.) [129]In sum, both Daniels, involving section 209 kidnaping, and Cotton [v. Superior Court (1961) 56 Cal.2d 459 (15 Cal.Rptr. 65, 364 P.2d 241)], involving section 207 kidnaping, construe the term ‘kidnaping’ to mean movements which are not merely incidental to associated crimes.”9 (Stanworth, at p. 600.) However, in view of the fact that, as we stated in Daniels, “section 209 prescribes increased punishment when the kidnaping is for the purpose of ransom or robbery” (Daniels, 71 Cal.2d at p.. 1131; see also Witkin, Cal. Crimes (1973 Supp.) § 358A, p. 187),10 violation of section 209 requires not only that the asportation be not merely incidental to the associated crime of robbery (i.e., that there be a kidnaping) but also that it “substantially increase the risk of harm over and above that necessarily present in the crime of robbery itself.” (Daniels, 71 Cal.2d at p. 1139.)
3. Whether, As a Matter of Law, Earley’s Conduct Did Not Violate Section 209 As Construed in Daniels
(a) Whether the movements were “merely incidental to the commission of the robbery”
Brief movements to facilitate either robbery or robbery and rape are incidental thereto within the meaning of Daniels. (See, e.g., People v. Stanworth, supra, 11 Cal.3d 588 [25 feet from road to field]; People v. [130]Mutch, supra, 4 Cal.3d 389, 397-399 [30 to 40 feet from one room to another in business establishment]; People v. Williams, 2 Cal.3d 894, 902 [88 Cal.Rptr. 208, 471 P.2d 1008] [around gas station premises]; People v. Daniels, supra, 71 Cal.2d 1119, 1122 et seq. [5 to 30 feet within own homes].) On the other hand movements to facilitate the foregoing crime or crimes that are for a substantial distance rather than brief are not incidental thereto within the meaning of Daniels. (See People v. Thornton, supra, 11 Cal.3d 738, 747, 750, 767-768 [movements .of victims one block and four blocks]; People v. Stephenson, 10 Cal.3d 652, 657-661 [111 Cal.Rptr. 556, 517 P.2d 820] [five or six blocks].) Movements for a substantial distance within one county manifestly constitute a carrying “from one part of the county to another” (see § 207).
As heretofore appears, the movement in the instant case was 10 to 13 blocks. Movement of that distance or less has been expressly or impliedly viewed as substantial rather than brief in cases involving section 209 (People v. Thornton, supra, 11 Cal.3d 738, 747, 750, 767-768; People v. Stephenson, supra, 10 Cal.3d 652, 657-661), and section 207 (People v. Stanworth, supra, 11 Cal.3d 588, 603 [one-fourth mile]). Since the movement here was substantial, it was not “merely incidental to the commission of the robbery” (People v. Daniels, supra, 71 Cal.2d 1119, 1139), even though it may have been solely to facilitate the commission of the robbery.11
People v. Timmons, supra, 4 Cal.3d 411 (a four to three decision), [131]held a distance of five blocks to facilitate a robbery to be brief and incidental thereto. That holding in Timmons, however, has been impliedly overruled by People v. Thornton, supra, 11 Cal.3d 738, 747, 750, 767-768, and People v. Stephenson, supra, 10 Cal.3d 652, 657-661.12
(b) Whether the movements “substantially increase[d] the risk of harm over and above that necessarily present in the crime of robbery itself’
“Under Daniels, the ‘risk of harm’ factor refers to the risk created by the victim’s movements that he will ‘suffer significant physical injuries over and above those to which a victim of the underlying crime is normally exposed’; it does not refer to the increased risk that the crime of robbery will be committed. (People v. Timmons [supra], 4 Cal.3d 411, 414 .. ..)” (People v. Stanworth, supra, 11 Cal.3d 588, 598.)
The “risk of harm” test is satisfied when the victim is forced to travel a substantial distance under the threat of imminent injury by a deadly weapon. (People v. Lara, 12 Cal.3d 903 [117 Cal.Rptr. 549, 528 P.2d 365].)13 Here, however, Earley did not have a deadly weapon but a cigarette lighter his victim believed was a gun.
The “risk of harm” test may also be satisfied in the absence of a deadly weapon under some circumstances. For example, in People v. Thornton, supra, 11 Cal.3d 738, 750, 767-768, after 8 p.m. the defendant forced his way into one victim’s car and, seizing her around the throat with his arm, informed her he wanted her money. Rather than carrying out the robbery at that location, however, the defendant drove the victim four blocks—steering with one hand while keeping her pinioned to the seat by means of his arm around her throat. After parking, defendant took [132]the victim’s , money and sexually assaulted her. Thornton, in holding that as a matter of law the risk of harm to the victim was substantially increased, reasoned (at p. 768), “Clearly any substantial asportation which involves forcible control of the robbery victim such as that occurring in this case exposes her to grave risks of harm to which she would not have been subject had the robbery occurred at the point of initial contact.” (See also People v. Stephenson, supra, 10 Cal.3d 652, 657-661.)
Here, as in Thornton, there was substantial asportation of the victim involving forcible control. Although such control was not by the identical means as in Thornton, it is clear that the movements increased to some extent the risk of harm beyond that inherent in the commission of the crime of robbery itself. Under the circumstances set forth above it appears that the asportation gave rise to dangers, not inherent in robbeiy, that an auto accident might occur or that the victim might attempt to escape from the moving car or be pushed therefrom by Earley. The fact that these dangers did not materialize does not, of course, mean that the risk of harm was not increased. (People v. Milan, 9 Cal.3d 185, 193 [107 Cal.Rptr. 68, 507 P.2d 956].) And in our opinion it cannot be said under the circumstances here appearing that as a matter of law the increase in the risk of harm was not substantial.
People v. Timmons, supra, 4 Cal.3d 411, differs on its facts from the present case. There Mr. Baird and Miss Stephens, market employees, picked up bags containing $15,600 from a bank, and as they parked in the market parking lot upon their return from the bank defendant approached them. He stated, “This is a holdup,” got into their car, and directed Baird to drive out of the lot. He further stated, “Do as I tell you and I won’t hurt anybody.” He asked for and received the bags of money. He directed Baird to stop some five blocks from the market and left his victims unharmed. Timmons, after noting that the victims drove their own car for some five blocks along a city street in broad daylight, that there was no reckless driving, that neither victim was harmed, and that neither victim observed any weapon in the defendant’s possession and the court found he was unarmed, stated, “In the circumstances, this brief asportation.[14] may conceivably have increased the risk [of harm] in some slight degree beyond that inherent in the commission of the. robberies, but it cannot be said to have ‘substantially’ increased that [133]risk.” Here the distance was 10 to 13 blocks rather than 5 blocks as in Timmons. Further, in Timmons one of the victims drove during the daytime and presumably was able to give his undivided attention to driving, whereas here Earley drove at night while wearing sunglasses and holding an apparent weapon in one hand and it may be inferred his attention was divided between driving and watching his victim. Further here, unlike Timmons, the victim observed what he believed to be a gun in the robber’s hands, the robber expressly threatened to kill him, the victim did not have a companion with him, and the robber drove from a lighted intersection to dark side streets.15
We conclude that the court erred in determining, as a matter of law, that Earley’s conduct did not violate section 209.
The order is reversed.
Wright, C. J., and Sullivan, J., concurred.
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.
All section references hereafter are to the Penal Code.
Execution of the sentence on count one (robbery) was stayed pending appeal and service of the sentence on count two (kidnaping for the purpose of robbery) the stay to become permanent upon completion of the sentence on count two.
When Earley was arrested he had in his possession a derringer-style cigarette lighter. Schopfer testified that it looked like the object that Earley stuck in the car window.
In 1973 the Legislature adopted section 190.2, which contains a restatement of the Daniels test. Section 190.2 provides, “The penalty for a person found guilty of first degrete murder shall be death in any case in which the trier of fact. . . makes a special finding that: ... (3) The murder was willful, deliberate, and premeditated and was committed during the commission or attempted commission of any of the following crimes: ... (ii) Kidnapping, in violation of Section 207 or Section 209. Brief movements of a victim which are merely incidental to the commission of another offense and which do not substantially increase the victim’s risk of harm over that necessarily inherent in the other offense do not constitute kidnapping within the meaning of this paragraph.” In People v. Stanworth, 11 Cal.3d 588, 599 [114 Cal.Rptr. 250, 522 P.2d 1058], we expressed no opinion as to the effect of section 190.2, and we likewise do not do so here.
The People also cite People v. Beamon, 8 Cal.3d 625, 636 [105 Cal.Rptr. 681, 504 P.2d 905], in support of their assertion that it is only if both prongs of the test are met that a conviction of kidnaping for the purpose of robbery (§ 209) is invalid under Daniels. In Beamon we stated, “Without addressing ourselves to the issue whether the kidnaping was merely incidental to the robbery within the meaning of Daniels it conclusively appears... that the abduction imposed a substantial increase in the risk of harm . . . ,” and we upheld the section 209 conviction. In Beamon the movement was for some 15 blocks. Such distance was substantial rather than brief (see People v. Thornton, 11 Cal.3d 738 [114 Cal.Rptr. 467, 523 P.2d 267]) and thus both prongs of Daniels were not met.
Thornton stated (at p. 768), “The fact that in each case defendant chose to consummate the robbery at a location remote from the place of initial contact does not render the subsequent asportation ‘merely incidental’ to the crime, for it is the very fact that defendant utilized substantial asportation in the commission of the crime which renders him liable to the increased penalty of section 209 if that asportation war such that the victim’s risk of harm was substantially increased thereby.” (Italics added.)
The Thornton dissent stated (at p. 771), “[W]e required in Daniels (at p. 1139) that to convict a defendant of violating section 209 the jury must find that the movements he compelled the victim to perform were significant displacements in space or time and substantially increased the risk of physical harm to the victim over and above that necessarily present in the crime of robbery.” (Italics added.) Page 1139 of Daniels contains the language heretofore quoted above.
The CALJIC instruction on kidnaping (CALJIC No. 9.23 (1973 rev.)) is in accord with cases such as Thornton insofar as that instruction indicates that the movements must be not merely incidental to the commission of the robbery and must also substantially increase the risk of harm beyond that inherent in the crime of robbery in order to constitute kidnaping for the purpose of robbery (§ 209). That instruction reads in relevant part: “Kidnaping is the unlawful movement by physical force of a person against his will and without his consent for a substantial distance where such movement is not merely incidental to the commission of the robbery and where such movement substantially increases the risk of significant physical injuries to such person over and above those to which such person is normally exposed in the commission of the crime of robbery itself.”
Section 207, of course, differs from section 209 in that violation can occur in the absence of an “associated crime.” (Stanworth, at p. 601; see also People v. Brown, 11 Cal.3d 784, 787 [114 Cal.Rptr. 426, 523 P.2d 226]; People v. Apo, 25 Cal.App.3d 790, 797 [102 Cal.Rptr. 242].) When an “associated crime’? is involved, there can be no violation of section 207 unless the asportation is more than incidental to the commission of that crime. (Cotton v. Superior Court, supra, 56 Cal.2d 459.)
Section 209, as amended in 1951, provided that a person convicted of kidnaping for the purpose of robbery “shall suffer death or shall be punished by imprisonment in the state prison for life without possibility of parole, at the discretion of the jury trying the same, in cases in which the person or persons subjected to such kidnaping suffers or suffer bodily harm or shall be punished by imprisonment in the state prison for life with possibility of parole in cases where such person or persons do not suffer bodily harm.” (Stats. 1951, ch. 1749, § 1, p. 4167.) That section was repealed in 1973 (Stats. 1973, ch. 719, § 7), and under the new section 209 adopted in 1973 (Stats. 1973, ch. 719, § 8), a person convicted of kidnaping for the purpose of robbery “shall suffer death in cases in which any person subjected to any such act suffers death, or shall be punished by imprisonment in the state prison for life without possibility of parole in cases in which any person subjected to any such act suffers bodily harm, or shall be punished by imprisonment in the state prison for life with possibility of parole in cases where no such person suffers death or bodily harm.”
The penalty for simple kidnaping since 1923 has been imprisonment for one to twenty-five years. (§ 208.)
There is no merit to an assertion by Earley that “when the robber’s intent is solely to facilitate the robbery the movement is merely incidental” thereto within the meaning of Daniels. People v. Williams, supra, 2 Cal.3d 894, 902, cited by Earley, does not support his assertion. Williams stated that since the movements were “brief’ and “solely to facilitate the commission of the robbery” they were incidental thereto. Some cases contain language that might be viewed as tending to support Earley’s assertion (see, e.g., People v. Iverson, 26 Cal.App.3d 598, 605 [102 Cal.Rptr. 913]; People v. Henderson, 25 Cal.App.3d 371, 376 [101 Cal.Rptr. 129]), but, to the extent that they do so, they reflect a misconception of the first prong of the Daniels test in that they fail to take into consideration whether the movement was brief, and such cases are hereby disapproved.
Other cases contain language suggesting that movement is not “merely incidental” to a robbery where the movement is “necessary” or “essential” to the commission of the robbery or “an important part of [the defendant’s] criminal objective, without it the crimes would not have been comitted.” (See, e.g., People v. Hall, 34 Cal.App.3d 834, 846 [110 Cal.Rptr. 440]; People v. Curtis, 21 Cal.App.3d 704, 708 [98 Cal.Rptr. 775]; In re Bryant, supra, 19 Cal.App.3d 933, 937-938 [cone, opn.] [97 Cal.Rptr. 40]; People v. Miller, 12 Cal.App.3d 922, 934 [91 Cal.Rptr. 97].) Although one definition of “incidental” is “nonessential” (see Webster’s New Internat. Diet. (3d ed.)), that manifestly was not the sense in which the word “incidental” was used in Daniels. Movement across a room to facilitate a robbery might be essential to the commission of the robbery, but be incidental thereto within the meaning of Daniels. Insofar as such cases are inconsistent with the views expressed herein they are disapproved.
People v. Schafer, 4 Cal.App.3d 554 [84 Cal.Rptr. 464], set aside two section 207 convictions on the asserted ground that they were invalid under Daniels since the movement of each victim was incidental to rape. One victim had been driven a distance, the longest estimate of which was a mile; the other victim, a distance of “the length of a large lot” or “a few hundred yards.” Insofar as Schafer holds that movement for a substantial distance (e.g., a mile) can be incidental to an underlying crime it has been impliedly disapproved by Thornton and Stephenson. Insofar as Schafer holds the Daniels test applicable to a section 207 conviction, Schafer has been impliedly disapproved by People v. Stanworth, supra, 11 Cal.3d 588.
Lara noted, “It takes but little imagination to envision the kind of violent events whose likelihood of occurrence is great in a situation of this kind. Ready examples include not only desperate attempts by the victim to extricate himself but also unforeseen intervention by third parties.”
As heretofore appears, Timmons was impliedly overruled by People v. Thornton, supra, 11 Cal.3d 738, and People v. Stephenson, supra, 10 Cal.3d 652, insofar as it held a five block movement to be brief and incidental to the robbery.
“[A]cts of removing the victim from public view do not in themselves substantially increase the risk of harm within our rule in Daniels” (italics added; In re Crumpton, supra, 9 Cal.3d 463, 467), but such acts or similar ones remain a circumstance to be considered in determining whether the risk of harm was substantially increased.