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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Joe Willy HILL, Defendant and Appellant.

No. D028550.

Decided: February 26, 1999

Richard Jay Moller, under appointment by the Court of Appeal, Garberville, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Raquel M. Gonzalez and Lora Fox Martin, Deputy Attorneys General, for Plaintiff and Respondent.

Joe Willy Hill was convicted of two counts of kidnapping, three counts of carjacking,2 one count of kidnapping for robbery, one count of second degree robbery, one count of attempted oral copulation while acting in concert, one count of rape while acting in concert, with a true finding the victim was kidnapped, and one count of receiving stolen property.

Hill was sentenced to a term of twenty-five years to life plus six years and two months.   He appeals, arguing error in the admission of statements he claims were both involuntary and taken in violation of Miranda,3 insufficient evidence to support one of the carjacking and one of the kidnapping convictions.   He also alleges sentencing error.


A. Prosecution Case

Late in the evening of April 19, 1996, January R. drove with her seven-month-old baby Marissa to their residence in Spring Valley.   January got out of the car and walked to the passenger side of the vehicle.   As she reached into the car to take the child from her seat, William Dabney grabbed January from behind while appellant walked to the front of her car.   Both men were wearing hooded jackets with bandannas over their faces.   Dabney was wearing gloves.   He told January to give him her money.   She told them they could have the car but asked them to let her and the baby go.   January gave Dabney her jewelry.   He then demanded her keys, grabbed them from her and tossed them to appellant.   Dabney and January got into the back seat.   Marissa was still in the front passenger seat.   Dabney told appellant to drive to a dark spot.   As they drove, Dabney tried to reach down into January's pants.

When the car stopped, Dabney pulled down his pants and told January to orally copulate him.   Dabney grabbed her head and tried to force it down into his lap.   Appellant was watching and laughing.   Dabney told January that if she took off her clothes they would let her go.   When she refused, Dabney told her he would shoot the baby.   Appellant reached into his pocket as if to retrieve a gun.   January believed Dabney was going to kill her and the baby.   Appellant stated to Dabney:  “No, don't do it.”   Dabney responded:  “Yeah, we are going to do this the right way.”

Believing if she complied with their demands they would let her and Marissa go, January undressed, stripping to her bra and underwear.   Dabney pushed January down on the seat and raped her.   January pushed Dabney away, grabbed the baby, opened the door and ran.

On April 23, 1996, sheriff's deputies went to the residence where appellant lived with Dabney, Dabney's mother and Dabney's sister Jacquetta Jenkins.   Jenkins was appellant's girlfriend.   Both men were detained as they tried to leave the house through a bedroom window.   A bandanna, like one worn by the assailants was found near appellant.   Dabney had a similar bandanna in his back pocket.   A jacket identified by January as similar to that worn by the men the night of the crime was found in a closet in the living room.   In a bedroom used by appellant and Jenkins, in a dresser drawer containing women's clothing, the officers recovered jewelry taken from January during the robbery.   Also in the bedroom the officers found a pair of gloves.   In a bathroom attached to that bedroom, the officers found a small vacuum cleaner January had kept in her car.   In a second bedroom used by Dabney's mother, the officers recovered a speaker taken from January's car.   Dabney slept in the livingroom.   In a closet in the living room, the officers found stereo equipment belonging to January.

January's car was recovered.   Dabney's palm print was found on one of its windows.   A semen stain on the back seat was consistent with Dabney's blood type.

Appellant was interviewed and after first denying he was involved in the crime, eventually stated he was the driver of the car used to abduct January and her baby and did so because he “had to back [his] partner's play.”

B. Defense Case

Experts testified appellant had damage to his frontal lobe which deals with impulse control.   A person with such an injury would suffer from impaired logical thought especially in highly emotional situations.   The frontal lobe is involved in the ability to understand the consequences of one's actions.

Jenkins testified that Dabney kept his possessions in the living room closet, while appellant did not keep possessions there.   Jenkins's mother agreed.

C. Rebuttal

The prosecution offered expert testimony questioning the defense evidence concerning appellant's claimed mental deficits.


A. Appellant's Statements*

B. Sufficiency of Evidence

Appellant argues the evidence was insufficient to convict him of carjacking or kidnapping with regard to Marissa, January's seven-month-old baby.

Appellant notes he was charged in count one with the offense of kidnapping to facilitate a carjacking (§ 209.5, subd.(a)) with regard to January and with the same offense as to Marissa in count two.   Appellant was found not guilty of those crimes.   Instead, as to both victims, the jury found appellant guilty of the lesser included offenses of carjacking (§ 215) and kidnapping (§ 207).

1. Kidnapping

Appellant, noting that an element of kidnapping is that the victim's free will be overcome by means of force, threat or fear, argues there was no evidence that, assuming a seven-month-old child has free will, Marissa's will was overcome.

Penal Code section 207, subdivision (a), states:  “Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into ․ another part of the same county, is guilty of kidnapping.”

 As a general matter, the gravamen of kidnapping is some form of compulsion.   The essence of the offense is that the victim's free will is overcome by force, threat or by means that instill fear.  (People v. Moya (1992) 4 Cal.App.4th 912, 916, 6 Cal.Rptr.2d 323;  People v. Martinez (1984) 150 Cal.App.3d 579, 599, 198 Cal.Rptr. 565.)

An analytical problem arises when the person taken, for example a baby, lacks free will.   The resolution of the problem in California has been somewhat indirect and in many respects unsatisfactory.   In People v. Oliver (1961) 55 Cal.2d 761, 12 Cal.Rptr. 865, 361 P.2d 593 (Oliver), the defendant was convicted of lewd conduct with, and the kidnapping of, a two-year-old child.   The court noted the child had willingly gone with the defendant but also observed that a child cannot give legal consent to being taken.  (Id. at pp. 763-764, 12 Cal.Rptr. 865, 361 P.2d 593.)

The court was concerned that this inability to consent might result in the conviction of one who merely moved a child to protect it or to innocently enjoy its company.   The court noted such a conviction could also result from the movement of an insensible adult for an innocent or altruistic purpose.   The court stated the Legislature could not have intended such a result.   The court then stated:  “On the other hand, if I find such a child under any of the supposed circumstances and transport him in exactly the same manner with an evil and unlawful intent, everybody would equally agree that my conviction of kidnapping would fall within the legislative purpose.”  (Oliver, supra, 55 Cal.2d at p. 765, 12 Cal.Rptr. 865, 361 P.2d 593.)

Citing rules of construction that allow courts “to read exceptions into the law” when to do otherwise would lead to absurd results, the court stated:  “Penal Code section 207, as applied to a person forcibly taking and carrying away another, who by reason of immaturity or mental condition is unable to give consent thereto, should ․ be construed as making the one so acting guilty of kidnapping only if the taking and carrying away is done for an illegal purpose or with an illegal intent.”  (Oliver, supra, 55 Cal.2d at p. 768, 12 Cal.Rptr. 865, 361 P.2d 593.)

To the end of avoiding kidnapping convictions for good Samaritans, the court, as to children and insensible adults, declared that the crime of kidnapping does not require that the taking be against the victim's free will.

Further, as noted in Parnell v. Superior Court (1981) 119 Cal.App.3d 392, 402, footnote 3, 173 Cal.Rptr. 906, Oliver implies that as to children and insensible adults, there is no requirement the taking be accomplished by compulsion.   This implication reasonably arises from the fact no compulsion was used in the Oliver case, from examples given by the court that included noncompelled and nonforceful movements of children and insensible adults, and from the fact that if a victim has no free will, then issues of compulsion would seem irrelevant since compulsion implies resistance.5

 That being the case, the issue of whether Marissa was kidnapped turns on whether appellant moved her for an illegal purpose or with an illegal intent.6  Appellant was well aware of the child's presence in the car since he ignored January's plea to allow her to remove the baby.   He and his accomplice Dabney certainly had no innocent or humane intent in moving January with Marissa still in the car.   Their intent was rather to remove January to a secluded location were she could be sexually assaulted.   Appellant, who drove the vehicle with the child still in it and then reached into his pocket as if to retrieve a gun, clearly facilitated Dabney in using the child to gain January's compliance.   Indeed, he was aware Dabney threatened the child's life as a means of controlling January.   Even if we assume the movement of Marissa might not have been a means to commit a crime directly against her, it was, however, carried out as the direct result of the intent to commit a crime and, within the reasoning of Oliver, renders appellant liable for Marissa's kidnapping pursuant to section 207.

2. Carjacking

Appellant argues the evidence was insufficient to convict him of the carjacking of seven-month-old Marissa.   He notes the crime requires a taking against the victim's will and that it be accomplished by force or fear.   Appellant argues Marissa had no will to be overcome and that there is no evidence the carjacking was accomplished against her by means of force or fear.

Penal Code section 215, subdivision (a), states:  “ ‘Carjacking’ is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear.”

Carjacking is a relatively new crime and there are few cases dealing with its element of compulsion.   However, the crime of robbery has the identical requirements of a taking of property in the possession of another against the victim's will, accomplished by means of force or fear.  (§ 211.)   We think it appropriate to apply to the crime of carjacking the well-developed law applicable to the compulsion element of robbery.  (See Ventura County Deputy Sheriffs' Assn. v. Board of Retirement (1997) 16 Cal.4th 483, 496, fn. 16, 66 Cal.Rptr.2d 304, 940 P.2d 891;  In re Bittaker (1997) 55 Cal.App.4th 1004, 1009, 64 Cal.Rptr.2d 679.)

 “Robbery is essentially larceny aggravated by use of force or fear to facilitate the taking of property from the person or presence of the possessor.”  (In re Albert A. (1996) 47 Cal.App.4th 1004, 1007, 55 Cal.Rptr.2d 217.)   Robbery is considered a more serious crime than simple theft or grand theft person because it entails a greater danger of physical and psychological harm.   The law has concluded, therefore, there is no robbery when the victim is unaware of the event.   A stealthful pocket picking is not a robbery, neither is the taking of property from an unconscious person.  (See People v. Kelley (1990) 220 Cal.App.3d 1358, 1369; , 269 Cal.Rptr. 900 4 Wharton's Criminal Law (15th ed.)   § 464;  67 Am.Jur.2d Robbery, §§ 22, 29, 31-32;  77 C.J.S. Robbery, § 22.)

 In this case, seven-month-old Marissa was, in any meaningful sense, unaware that her mother's car was being taken.   She had, in no meaningful sense, will which was overcome.   Concepts of compulsion as a means of accomplishing the taking of the vehicle in which she was a passenger simply have no meaning.   She was essentially unconscious and we conclude she could not be the victim of a robbery or carjacking.

Appellant's conviction for the carjacking of Marissa is reversed.   The abstract of judgment is ordered amended to delete any reference to the conviction for carjacking in count two.

C. Sentencing**


The conviction for count seven is ordered deleted from the abstract of judgment.   The conviction of appellant for the carjacking of Marissa (count two) is reversed.   The term imposed for the kidnapping of January (count one) is reversed and the matter is remanded to the trial court to consider whether any additional terms should be imposed.   In all other respects the judgment is affirmed.


2.   Appellant's convictions for carjacking in counts one and seven both arose from the single act of carjacking January R. The conviction for count seven is ordered deleted from the abstract of judgment.

3.   Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694

FOOTNOTE.   See footnote 1, ante.

5.   In 1990 the Legislature amended section 207 by adding subdivision (e) which states the section does not apply “(1) To any person who steals, takes, entices away, detains, conceals, or harbors any child under the age of 14 years, if that act is taken to protect the child from danger or imminent harm.”  (Stats.1990, ch.   55 (S.B.1564) § 1.) While this amendment is a more rational approach to the problem addressed in Oliver, it does not affect the impact of Oliver on the present issue.

6.   The jury was instructed in the terms of CALJIC No. 9.57:  “If the person moved away is incapable of consenting thereto by reason of immaturity or mental condition, then the person moving such person is guilty of kidnapping only if such act was done with the specific intent to Carjack or Rob after moving.”

FOOTNOTE.   See footnote 1, ante.

BENKE, Acting P.J.

HUFFMAN, J., and NARES, J., concur.

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