Brief Bank # B-710 (Re: F 9.50c / F 9.50d [Kidnapping: Requirement that Victim be Alive (PC 207 & PC 209)/Kidnapping: Good Faith Belief That The Victim Was Dead (PC 207 & PC 209)].)
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May 28, 1996
Stephen M. Kelly
Clerk, Court of Appeal
Fourth Appellate District
303 West Fifth Street
San Bernardino, CA 92401-1345
Re: People v. Tolbert, E015955
Dear Mr. Kelly:
By an order filed May 8, 1996, the court has requested supplemental briefing to address two issues:
1. In a prosecution for kidnaping for robbery, is knowledge that the victim was alive during the asportation part of the intent element of kidnaping?
2. If such knowledge is an element of the offense, is there sufficient evidence of such knowledge here to support the kidnaping for robbery conviction?
As will be shown, knowledge that the victim was alive during the asportation is a part of the intent element of kidnaping. Hence, a mistaken belief that the victim is dead prior to the asportation negates the intent element of the offense. Furthermore, the evidence here is insufficient to sustain the kidnaping for robbery conviction.
A. A Mistaken Belief That A Victim Is Dead Negates The Intent Element Necessary To Sustain A Kidnaping For Robbery Conviction.
Appellant was convicted of kidnaping for robbery, a violation of Penal Code section 209. Section 209 provides in relevant part: “(b) Any person who kidnaps or carries away any individual to commit robbery shall be punished by imprisonment in the state prison for life with possibility of parole.” The term “kidnaps” in section 209 means kidnaping as defined in section 207. (People v. Daniels (1969) 71 Cal.2d 1119, 1131 [80 Cal.Rptr. 897].) Simple kidnaping is a general intent crime; whereas, aggravated kidnaping, i.e., kidnaping for robbery, requires proof of a specific intent to commit a robbery. (People v. Thornton (1974) 11 Cal.3d 738, 765 (114 Cal.Rptr. 467].)
In California, a person is incapable of committing a criminal act if the act was committed under an ignorance or mistake of fact, which disproves any criminal intent. (Pen. Code, § 26, subd. 3.) Thus, “[w]hen a person commits an act based on a mistake of fact, his guilt or innocence is determined as if the facts were as he perceived them.” (People v. Beardslee (1991) 53 Cal.3d 68, 87-88 [279 Cal.Rptr. 276); see also People v. Rivera (1984) 157 Cal.App.3d 736, 743 [203 Cal.Rptr. 842].)
In People v. Mayberry (1975) 15 Cal.3d 143 (125 Cal.Rptr. 745], the Supreme Court held that a defendant’s reasonable belief that the victim consented to accompany the defendant and to engage in sexual intercourse negates the intent elements required for convictions of simple kidnaping and rape. As the court stated, “If a defendant entertains a reasonable and bona fide belief that a prosecutrix voluntarily consented to accompany him and to engage in sexual intercourse, it is apparent he does not possess the wrongful intent that is a prerequisite under Penal Code section 20 to a conviction of either kidnaping (§ 207) or rape by means of force or threat (§ 261, subds. 2 & 3).” (Id. at p. 155; see also People v. Williams (1992) 4 Cal.4th 354, 360 (14 Cal.Rptr.2d 441] [“Mayberry is predicated on the notion that under section 26, reasonable mistake of fact regarding consent is incompatible with the existence of wrongful intent.”].)
The ruling in Mayberry flows from the “most fundamental doctrine of criminal law” that in every crime there must be a concurrence of act and intent. (Pen. Code, § 20; People v. Green (1980) 27 Cal.3d 1, 53 (164 Cal.Rptr. 1].) “‘So basic is this requirement that it is an invariable element of every crime unless excluded expressly or by necessary implication.’ (Fn. omitted.)” (People v. Green, supra, 27 Cal.3d at p. 53, quoting People v. Vogel (1956) 46 Cal.2d 798, 801.) The element of joint operation of act and intent requires that any specific intent or mental state required by a penal statute concur with the actus reus of the crime. (See People v. Hernandea (1964) 61 Cal.2d 529, 532 [39 Cal.Rptr. 361].) “The primordial concept of mens rea, the guilty mind, expresses the principle that it is not conduct alone but conduct accompanied by certain specific mental states which concerns, or should concern the law.” (Ibid.)
To sustain a kidnaping conviction, there must be proof that the defendant forcibly moved a person. (Pen. Code, § 207, subd. (a).) The Penal Code defines “person” as “a natural person.” (Pen. Code, § 7.) In other words, the kidnaping victim must be a live human being at the time of asportation. A dead body cannot be kidnaped because it cannot consent to the asportation, nor can it be placed in fear. (Cf. People v. Kelly (1992) 1 Cal.4th 495, 524 [3 Cal.Rptr.2d 677] [a dead body cannot consent to or protest a rape, nor can it be in fear of immediate and unlawful bodily injury]; see also People v. Stanworth (1974) 11 Cal.3d 588, 604-605, fn. 15 [114 Cal.Rptr. 250); People v. Thompson (1990) 50 Cal.3d 134, 153, fn. 5 (266 Cal.Rptr. 309) [noting prosecutor’s argument that defendant was not guilty of kidnaping if victim killed in an apartment and defendant had transported only a dead body].)
As shown, a good faith belief that an alleged victim consents to the asportation negates the intent element for a kidnaping conviction. (People v. Mayberry, supra, 15 Cal.3d at p. 155.) Similarly, then, a good faith belief that the alleged victim is dead negates the intent necessary for a kidnaping or kidnaping for robbery conviction. If a defendant moves an alleged kidnaping victim with the mistaken belief that the alleged victim is dead, “his guilt or innocence is determined as if the facts were as he perceived them.” (People v. Beardslee, supra, 53 Cal.3d at p. 87.) Thus, if the facts as perceived by the defendant are that the alleged victim is dead prior to the asportation, then he cannot be guilty of simple kidnaping or kidnaping for robbery.
B. The Evidence Is Insufficient To Sustain The Kidnaping For Robbery Conviction.
The evidence presented at trial is insufficient to sustain a finding that appellant knew Mr. K was alive during the asportation. In fact, the evidence shows that appellant reasonably believed Mr. K was dead when appellant drove the vehicle around town.
Appellant told investigators that he drove with Mr. K to purchase some rock cocaine. (4 RT 591E-F.) Nothing in the evidence suggests that appellant enticed Mr. K to accompany him in this search for drugs or that Mr. K did not consent to go with appellant. Significantly, there is no evidence to show when Mr. K was placed in the trunk of his car. Thus, it is pure speculation to infer that the asportation occurred from the moment appellant got into the car with Mr. K, or that Mr. K was placed in the trunk, driven about town, and then shot. A jury’s verdict cannot be sustained if it is based on “suspicion alone, imagination, speculation, supposition, surmise, conjecture, or guess work.” (People v. Morris (1988) 46 Cal.3d 1, 21 (249 Cal.Rptr. 119].)
The only reasonable conclusion supported by the evidence is that Mr. K was placed in the trunk of the car, shot, then driven around town until the car was set on f ire. This conclusion is supported by the testimony of Mr. J.B. and Mr. T.B., and the forensic evidence regarding the nature of the fatal wound.
Mr. J.B. testified that when he first saw the vehicle, its lights were off and it was slowly pulling up in front of Mr. J.B.’s residence. (2 RT 275-276.) The car took off suddenly and Mr. J.B. followed it around town. (2 RT 280.) Mr. J.B. could not tell who was in the vehicle. The vehicle stopped at a dump and in a field, but Mr. J.B. never saw anyone get out of the car. (2 RT 280-308.)
Mr. T.B. testified that he saw Mr. Ks car parked in a driveway. Mr. T.B. considered taking the vehicle because the keys were inside and the motor was running. However, as Mr. T.B. headed for the vehicle, appellant told him not to touch the vehicle because there was a dead body inside. (1 RT 106- 108.)
Mr. K was shot in the right eye from a close range. The evidence indicates that Mr. K was in the trunk when the shot was fired. (3 RT 472-473, 480-481, 493.) The gunshot wound would have caused immediate unconsciousness. (3 RT 482-483, 486.) Given the nature of the wound and Mr. K unconsciousness, appellant reasonably could have believed that Mr. K was dead as appellant drove around town.
Moreover, the movement of Mr. K from the interior of the vehicle to the trunk of the car is not sufficient asportation to sustain a conviction for kidnaping for robbery. As the jury was instructed, kidnaping for robbery requires movement of a ” substantial distance, that is a distance more than slight, brief or trivial[.]” (CALJIC No. 9.56; People v. Daniels, supra, 71 Cal.2d at p. 1139.) Brief movements which a defendant compels a victim to perform in furtherance of a robbery are merely incidental to the robbery and, thus, insufficient to constitute kidnaping for robbery. (Id. at p. 1140; see also People v. Stanworth, supra, 11 Cal.3d at p. 598 [moving victim a distance of 25 feet from the road to a field incidental to robbery and insufficient to sustain section 209 conviction].)
In conclusion, appellant’s good faith belief that Mr. K was dead during the asportation precludes a conviction for kidnaping or robbery. Furthermore, the only reasonable inference to be drawn from the evidence is that appellant believed he was transporting a dead body in the trunk of the car. Accordingly, appellant’s conviction for kidnaping for robbery must be reversed.
Roberta K. Thyfault
Attorney for Appellant
Robert Louis Tolbert
cc: See Attached Proof of Service.
DANIEL E. LUNGREN State of California
Attorney General DEPARTMENT OF JUSTICE
110 WEST A STREET, SUITE 1100
SAN DIEGO, CA 92101
P.O. BOX 85266 SAN DIEGO, CA 92186-5266
FACSIMILE: (619) 645-2271
May 24, 1996
Stephen M. Kelly, Clerk
California Court of Appeal
Fourth Appellate District
303 W. Fifth Street
San Bernardino, California 92401-1345
RE: People v. Tolbert
Case No. E01 5955
Dear Mr. Kelly:
In this supplemental letter brief, respondent answers the Court’s following question: Is knowledge that the victim was alive during the asportation part of the intent element of kidnapping, and if so, was there sufficient evidence of such knowledge here to support the kidnapping for robbery conviction?
KNOWLEDGE THAT THE VICTIM IS ALIVE DURING
ASPORTATION IS NOT PART OF THE INTENT ELEMENT OF
The pertinent provisions of Penal Code section 207 provide, “Every person who forcibly … steals or takes, or holds, detains, or arrests any person … and carries the person into another … part of the same county, is guilty of kidnapping.” (Pen. Code, § 207, supra.)
Nothing in that section requires that the kidnapper know his victim is alive during asportation.
While a defendant who reasonably and in good faith believes the victim consents to the asportation is not guilty of kidnapping (People v. Mayberry (1995) 15 Cal.3d 143, 1 54-157), a defendant whose victim has died is not similarly relieved of criminal responsibility for the kidnapping. A defendant who brings about his kidnapping victim’s death displays the necessary wrongful, criminal intent for the crime even without knowing his victim was still alive during the asportation. (See Pen. Code, § § 20 and 26, discussed in People v. Mayberry, supra, 15 Cal.3d at p. 1 54.)
THERE WAS, IN ANY EVENT. SUFFICIENT EVIDENCE
APPELLANT KNEW HIS VICTIM WAS ALIVE
TO SUPPORT HIS CONVICTION OF KIDNAPPING
TO COMMIT ROBBERY
Shortly before victim Mr. K was killed, appellant told acquaintance Ms. D that Mr. K was parked in front of Mr. J.B.’s house. (5 RT 836.) Mr. J.B. later followed Mr. K’s car around Rubidoux, thinking something was wrong because of the erratic manner in which it was being driven. (1 RT 76, 2 RT 278-289, 3 RT 530-532, 5 RT 978-979; CST 1 0.) He could not see who was driving the car. (2 RT 290; CST 15, 85.) He was afraid someone may have “jacked” Mr. K’s car and was concerned about Mr. K’s welfare. (2 RT 289, 294-295, 298-299, 303; SCT 4, 8, 11, 16, 18.) During this same general time frame, Mr. S.B. saw appellant standing by Mr. K’s idling car in front of another residence; appellant told Timothy there was a body in the trunk. (1 RT 107-108; CST 29-31, 34, 40.)
Although Mr. J.B. lost sight of Mr. K’s car for a period of time (2 RT 291-302, 5 RT 998, CST 9-10, 84-86), he later saw it abandoned and on fire. (1 RT 90-91, 2 RT 311, 329, 397, 406-408, 3 RT 532, 5 RT 981, 1000; CST 4, 86-87.) Mr. K’s body was later found in the trunk of the smoldering car with a fatal shotgun wound to the head (3 RT 472-483, 4 RT 724-727), airway soot and premortem thermal burns showing that Mr. K was nevertheless alive for some time while the car burned. (3 RT 483-494.) Mr. K had been forced into the trunk before being shot in the right eye at close range (3 RT 480-482), as evidenced by the shotgun wadding found in the trunk underneath his head. (4 RT 724-727.)
Appellant later told Mr. T.B. that a white man got killed earlier in the night. (1 RT 118, 125; CST 25-27, 33.)
After first denying any knowledge of the victim or his car, appellant later told sheriff’s deputies that he rode around with the victim in the victim’s car in order to “score” (the victim) some dope.” (4 RT 591 C-591 F, 5911, 591 J, 591 K, 591 L, 591 M, 591 R, 591 S, CST 65-68.)
Assuming arguendo that appellant had to know Mr. K was alive during asportation to be guilty of kidnapping to commit robbery in violation of Penal Code section 209, subdivision (b), the foregoing record shows sufficient substantial circumstantial evidence of such knowledge. (People v. Towler (1982) 31 Cal. 3d 105, 118-119.) It can reasonably be inferred from the foregoing evidence that appellant knew Mr. K was alive either when he forcibly commandeered Mr. K’s car or when he enticed Mr. K to give him a ride before forcing Mr. K into the trunk. Appellant’s act of forcing Mr. K from an area of relative safety into the trunk was itself kidnapping. A victim’s initial consent to the asportation does not vitiate the kidnap if the victim is later forcibly restrained. (People v. Davis (1995) 10 Cal.4th 463, 517-518.)
Since sufficient substantial circumstantial evidence showed appellant knew his victim was alive during asportation, his kidnapping to commit robbery conviction should be affirmed even if such knowledge is part of the intent element of kidnapping.
Accordingly, for reasons stated in respondent’s brief and respondent’s supplemental letter brief, respondent respectfully asks that the judgment be affirmed.
DANIEL E. LUNGREN
Supervising Deputy Attorney General