by Douglas Ankney

In consolidated appeals, the Court of Appeal of California, Fourth Appellate District, held that the evidence was insufficient to show that a robbery victim was moved a “substantial distance” to support kidnapping convictions and further held that the amendments to California Penal Code § 186.22 enacted by Assembly Bill No. 333 (2021-2022 Reg. Sess.) (“AB 333”) apply retroactively, requiring vacatur of the gang enhancements. [Note: All statutory references are to the California Penal Code.]

Background

Codefendants Phalon Amad Hall and Patrick Redman were tried together for their roles in the August 15, 2018, home invasion and robbery of a victim identified as “A.T.” A.T. opened the front door to his home in order to sell marijuana to Hall. It was then that Hall, his brother Jamal Davenport, and a third man later identified as Darnell Winters forced their way into A.T.’s home.

The three robbers beat A.T., striking him with an unknown object and forcing him from the front door to the living room area. The robbers then forced A.T. up the stairs to a room where he was ordered to open a safe that contained rifles, camera equipment, and jewelry. They then forced A.T. back downstairs and into the kitchen where they tied A.T. to a chair and pistol whipped him. They finally exited through the home’s backdoor, carrying a potted marijuana plant, jars of marijuana seeds, A.T.’s cellphone, money, rifles, and a canvas bag containing camera equipment. Before leaving, one of the robbers said “something about Crips” and Long Beach.

A.T. identified Winters from a photographic lineup. Davenport was identified from A.T.’s home surveillance footage. During the course of the ensuing investigation, many of the items taken from A.T.’s home were retrieved from the trunk of Redman’s car. Additionally, cellphone video footage, text messages, and clothing associated with the Rollin 20s Crips were discovered, implicating Hall and Redman as members of the Rollin 20s Crips street gang located in Long Beach.

Procedural History

Winters agreed to plead guilty to lesser charges in order to avoid a life sentence and testified to the above recited facts for the prosecution.

In addition to the evidence of gang membership cited above, San Bernardino Sheriff’s Deputy Shawn Thurman and Long Beach Police Officer Fernando Archuleta testified as gang experts. Archuleta testified that Rollin 20s Crips gang members committed “assaults with deadly weapons, crimes involving possession of firearms or narcotics for sale, robberies, grand thefts, and homicides.” Thurman added “home invasions” to that list. As predicate crimes, the witnesses testified that a self-admitted member of the Rollin 20s Crips committed a robbery on September 10, 2017, and another self-admitted member of the Rollin 20s Crips was charged with committing a robbery on June 14, 2016. Thurman testified that Redman was convicted in 2018 of second-degree burglary; convicted in January 1997 and in February 1998 of possession of cocaine base for sale; and convicted in July 2009 and October 2009 of criminal threats. Thurman also opined that based on the “totality of the circumstances,” Redman, Hall, Davenport, and Winters were all Rollin 20s Crips gang members.

A jury found Hall and Redman guilty of home invasion robbery in concert (§§ 211, 212.5, and 213(a)) and simple kidnapping (§ 207(a)). The jury also found true several enhancements as to both defendants, including that the crime was committed for the benefit of a criminal street gang (§ 186.22(b)); that in the crime committed for the benefit of a criminal street gang, a principal was armed with a firearm (§ 12022.53(e)(1)); and that both defendants personally used a firearm (§ 12022.53(b)).

On June 8, 2022, the San Bernardino Superior Court sentenced Redman to an aggregate term of 60 years to life and sentenced Hall to a term of 15 years to life. But in both instances, the superior court stayed the punishment for the kidnapping offense. The defendants timely appealed.

Analysis

The Court observed that the “jury was instructed on the following elements of kidnapping pursuant to CALCRIM No. 1215: ‘1. The defendant took, held, or detained another person by using force or by instilling fear; 2. Using that force or fear, the defendant moved the other person or made the other person move a substantial distance; 3. The other person did not consent to the movement.’”

But “[w]here the movement is associated with another crime, courts have adopted an additional consideration: ‘in a case involving an associated crime, the jury should be instructed to consider whether the distance a victim was moved was incidental to the commission of that crime in determining the movement’s substantiality…. [S]uch consideration is relevant to determining whether more than one crime has been committed….’” People v. Martinez, 973 P.2d 512 (Cal. 1999). In general, movement within a single premises is insufficient to constitute aggravated kidnapping proscribed by § 209. See, e.g., People v. Daniels, 459 P.2d 225 (Cal. 1969).

However, the Court observed that the Attorney General argues that a more lax standard applies to simple kidnapping proscribed by § 207(a). An understanding of the differences between the two types of kidnapping is necessary, according to the Court. Aggravated kidnapping is defined as carrying “away an individual to commit robbery, rape, oral copulation, sodomy,” and certain enumerated sex crimes. § 209(b)(1). Importantly, § 209(b)(2) states: “This subdivision shall only apply if the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense.”

Simple kidnapping is defined as carrying the victim away into “another part of the same county.” § 207(a). Historically, the focus was exclusively on the distance a victim was moved. People v. Bell, 179 Cal. App. 4th 428 (2009). However, the Court explained that Martinez prescribed a more qualitative assessment that does not focus solely on the distance the victim is moved, which includes consideration of movement that is incidental to another crime. The change implemented by Martinez brought the standard for simple kidnapping “closer to the one for aggravated kidnapping.” Quoting Bell.

The Court found People v. Williams, 7 Cal. App. 5th 644 (2017), instructive in addressing the Attorney General’s argument. In Williams, the defendants were charged with simple kidnapping arising from the robbery of a cellphone store. During the robbery, the defendants moved a security guard and an employee approximately 50 feet to the rear of the store. The Williams Court concluded that the “movements were merely incidental to the robbery and did not constitute a separate kidnapping offense.”

Turning to the present case, the Court concluded that the “same is true here. 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 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.”

The Attorney General argued that the movement of A.T. should instead be considered substantial based on People v. Waqa, Cal. App. 5th 565 (2023), in which the victim was moved from a small bathroom stall to a larger one where she was raped. The Waqa Court concluded that the evidence was “sufficient” to constitute substantial movement because the victim was moved farther away from the bathroom’s exit and the larger stall provided the assailant more room to maneuver.

The Court rejected the argument that the present case is more analogous to Waqa than Williams, stating that obviously robbery is not rape so Williams is more analogous. The Court explained that the risks associated with the two crimes are very different, i.e., a rape victim is more at risk when concealed from public view, but the same is not necessarily true for a robbery victim. A.T. was beaten the moment he opened the front door, so clearly, the danger to him did not depend on him being forcibly moved elsewhere out of public view, unlike the victim in Waqa. Thus, the Court reversed the defendants’ convictions for simple kidnapping.

Turning to the gang enhancements, the Court observed that AB 333 made the following changes:

“First, it narrowed the definition of a ‘criminal street gang’ to require that any gang be an ‘ongoing, organized association or group of three or more persons.” People v. Tran, 515 P.3d 1210 (Cal. 2022).

Second, while former § 186.22(f) required only that a gang’s members “individually or collectively engage in” a pattern of criminal activity in order to be defined as a “criminal street gang,” AB 333 “requires that any such pattern have been ‘collectively engage[d] in’ by the members of the gang.” Tran.

Third, AB 333 “narrowed the definition of a ‘pattern of criminal activity’ by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang ‘members’ as opposed to just ‘persons’; (3) the offenses commonly benefitted a criminal street gang; and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense.” Tran.

Fourth, AB 333 “narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any ‘common benefit’ be ‘more than reputational.’” Tran. Finally, the substantive changes made by AB 333 are retroactive. Tran.

The Court concluded that because these amendments to AB 333 were not enacted until after the defendants’ trial, the jury was not properly instructed as to the applicable standards for determining the existence of a criminal street gang. Thus, the Court ruled that the gang enhancements found true against the defendants must be vacated.

Accordingly, the Court reversed the kidnapping convictions against the defendants and reversed the sentencing enhancements imposed pursuant to §§ 186.22(b) and 12022.53(e)(1). See: People v. Hall, 104 Cal. App. 5th 1077 (2024). 

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