PEOPLE v. McCRAY

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Court of Appeal, Fourth District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Sabu Shervin McCRAY, Defendant and Appellant.

E002069.

Decided: July 08, 1986

John M. Bishop, Riverside, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Peter Quon, Jr., Raquel M. Gonzalez, and Jeffery J. Koch, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

A jury convicted defendant Sabu Shervin McCray of kidnapping for robbery (Pen. Code, § 209, subd. (b)), attempted robbery (Pen. Code, §§ 211/664211664), and auto theft (Veh. Code, § 10851).   Defendant was found to have personally used a firearm in the commission of each offense (Pen. Code, § 12022.5).   Defendant has appealed from the judgment after being sentenced to state prison for life with the possibility of parole, the life sentence to be consecutive to a two-year term for the gun use.

The issues raised on appeal are:  (1) whether a defendant who kidnaps a victim to facilitate escape from the scene of an attempted robbery is guilty of kidnapping for robbery rather than simple kidnapping, (2) whether certain jury instructions were prejudicially erroneous, and (3) whether the sentence constitutes cruel and unusual punishment in violation of the California Constitution.

FACTS

The Kentucky Fried Chicken outlet in Sun City closed as usual at 9 p.m. on December 3, 1984.   An hour later the three employees were finishing their chores and preparing to leave.   Kevin and David, the two cooks, were emptying trash and Dawn Doxie, the night manager, was approaching her car to warm up the engine when defendant and a man named Martin stepped from behind the trash bins.   Both wore stocking masks and defendant carried a handgun while Martin had a shotgun.

Either defendant or Martin gave a command:  “Freeze, white honky bitch, just freeze.”   The three employees were ordered back inside and forced to lie down on the floor.   Defendant asked Doxie where the “short one” was.   Doxie understood the reference to be to the assistant manager and explained to defendant that the woman was not there.   Defendant told Doxie to open the safe but she told him she did not have the combination.   Defendant and Martin talked about taking wallets but Martin said to forget it.   He picked Doxie up from the floor and took the car keys from her hand.   Martin went outside to start Doxie's car while defendant put a hat on her head and taped it down so she would be unable to see.

In the meantime, Stephen Dail, a sheriff's deputy, had been patrolling the area and had been surprised to see cars still parked near the fast food outlet.   He parked his patrol car, walked up to the front door, and knocked four times with a flashlight.

Dawn Doxie heard the knocking sound as she was being led out the back door.   She screamed “Help” and “No.”   She was told to “shut up” and was placed in the front seat of her car between Martin, in the driver's seat, and defendant.   Her head was pushed down against Martin's thigh.

Officer Dail had walked toward the rear of the store and had seen Doxie being bundled into her car by two armed men wearing masks.   He returned to his patrol car, reported by radio on the apparent robbery/kidnap situation, and proceeded to follow cautiously without attempting to stop the Doxie vehicle.

Martin drove to the freeway and proceeded north, exiting at Fourth Street in Perris.   When two police units arrived to assist Officer Dail, the Doxie vehicle was stopped and both defendant and Martin were arrested.

Defendant was charged by information with attempted robbery, robbery, and kidnapping for robbery.   At the trial defendant presented no evidence in his own behalf.   His attorney, in argument to the jury, conceded that defendant had committed crimes but urged the jury to convict defendant of lesser included offenses rather than those charged.   This strategy was partially successful.   The prosecution had argued that defendant was guilty of robbery for taking Dawn Doxie's keys or her car or both.   The jury did not find defendant guilty of robbery but instead convicted him of the lesser included offense of vehicle theft.   Defendant was convicted of attempted robbery for attempting to take the contents of the safe.   He was convicted of kidnapping for robbery.   In answer to an inquiry from the court, the jury foreman said the kidnapping for robbery conviction was based on the attempted robbery rather than the taking of Doxie's keys or her vehicle.

I

According to defendant, kidnapping to facilitate escape from the scene of an attempted robbery cannot be kidnapping for robbery because the offense of kidnapping for robbery requires an intent to commit robbery, an intent which must be present when the kidnapping commences.  (People v. Tribble (1971) 4 Cal.3d 826, 832, 94 Cal.Rptr. 613, 484 P.2d 589.)   If the defendant has been frustrated in his attempt to commit robbery, and has neither committed robbery nor any longer intends to commit it then, so goes the argument, the element of intent to rob is necessarily lacking and the offense is no more than simple kidnapping.

The rule that an intent to rob must exist at the commencement of the kidnapping was formulated in response to the situation where the defendant undertook the kidnapping for some other purpose, such as to rape the victim, and as an afterthought decided to commit robbery as well.   Where these facts have been presented, the intent at the commencement of the kidnapping has been held to be controlling, the rationale being that “[s]ince a robbery committed as an afterthought to a kidnapping generally does not substantially increase the risk that someone will be injured or killed such conduct may not be proscribed by the provisions of section 209.”  (People v. Laursen (1972) 8 Cal.3d 192, 199, 104 Cal.Rptr. 425, 501 P.2d 1145.)

 The intent requirement does not mean that the kidnapping victim must also be an intended robbery victim (see People v. Laursen, supra, 8 Cal.3d at p. 200, fn. 7, 104 Cal.Rptr. 425, 501 P.2d 1145;  People v. Hill (1971) 20 Cal.App.3d 1049, 98 Cal.Rptr. 214) or that the taking of property must occur after the commencement of the kidnapping.   A kidnapping to facilitate escape from the scene of a robbery is kidnapping for robbery:  “․ the carrying away of the victim or some other individual during the commission of a robbery, even though motivated by events occurring after the commencement of a robbery still in progress, most certainly increases the risk that he will be injured or killed and is specifically the type of conduct made punishable by section 209 ․ where a kidnapping is in furtherance of a robbery during which the kidnapping occurs, a violation of section 209 is committed even though the intent to kidnap was formulated after the robbery commenced.”  (People v. Laursen, supra, 8 Cal.3d at p. 199, 104 Cal.Rptr. 425, 501 P.2d 1145.)

The present case is similar to Laursen (the case cited in the last paragraph) in three respects:  defendant entertained an intent to rob, the formation of the intent to rob preceded the commencement of the kidnapping, and the purpose of the kidnapping was to facilitate escape from the scene.   The only difference is that in Laursen the taking of property by force had actually occurred whereas in the present case the robbery could not be completed because the safe could not be opened.

 This distinction is not significant.   For one thing, kidnapping for robbery does not require a completed robbery (People v. Hernandez (1950) 100 Cal.App.2d 128, 132, 223 P.2d 71) just as kidnapping for ransom does not require the actual obtaining of a ransom (People v. Anderson (1979) 97 Cal.App.3d 419, 425, 158 Cal.Rptr. 727) and escape to a place of safety is as much a part of attempted robbery as of robbery itself.   More importantly, it makes no sense to require the success of the criminal enterprise.  (Ibid.)  The purpose of defining a crime of kidnapping for robbery is “to impose harsher criminal sanctions to deter the carrying away of persons during the commission of a robbery in a manner which substantially increases the risk that someone will suffer grave bodily or psychic injury or even death.”  (People v. Laursen, supra, 8 Cal.3d at p. 198, 104 Cal.Rptr. 425, 501 P.2d 1145.)   Obviously it is just as important to deter the kidnapping whether the robbery has been successful or not.

 A defendant who carries a person away to facilitate escape after an unsuccessful robbery attempt is guilty of kidnapping for robbery.   Given the evidence presented at trial, defendant was properly convicted of that offense.

II

Defendant contends that the jury instructions on the intent element of the crime of kidnapping for robbery were confusing and diluted the proper standard of proof to something less than proof beyond a reasonable doubt.

 The jury was told that “[a]ny person who, with the specific intent to commit robbery, kidnaps any individual, is guilty of the crime of kidnapping to commit robbery,” and that “[t]he specific intent to commit robbery must be present when the kidnapping commences.”  (CALJIC No. 9.23, 1979 re-revision.)   The jury was also informed, by special instruction, that a kidnapping for robbery could be committed “even though the intent to kidnap was formulated after the robbery commenced.”   Another instruction stated that for the crime of kidnapping for robbery “it is not necessary to establish that such purpose was accomplished, for a crime of that nature is complete if and when the kidnapping is done for such a purpose.”  (CALJIC No. 9.25.)   The jury was told that a kidnapping for robbery conviction could be based on either the taking of the victim Doxie's keys, the taking of her automobile, or the attempted robbery of the business, but that the jurors must all agree on the same act or acts.  (CALJIC No. 17.01, as modified by trial court.)

There is no error harmful to defendant in any of these instructions.   Possibly the CALJIC No. 9.23 instruction could have been improved by adding language explaining that “intent to rob” could mean an intent to facilitate escape from the scene of a robbery or attempted robbery.   However, the failure to make this clarification in CALJIC No. 9.23 could not have prejudiced defendant.   If anything, it worked to his advantage.

 The instruction most strenuously challenged on appeal is a special instruction based on language appearing in People v. Monk (1961) 56 Cal.2d 288, 295, 14 Cal.Rptr. 633, 363 P.2d 865.   The instruction makes a change in the wording of Monk which, although apparently slight (neither defendant nor the Attorney General has mentioned it), results in a substantial change in meaning.

The language used in Monk, is as follows:  “․ it has been held that where a kidnaping occurs after the actual perpetration of a robbery such kidnaping may be kidnaping for the purpose of robbery if it may reasonably be inferred that the transportation of the victim was to effect the escape of the robber or to remove the victim to another place where he might less easily sound an alarm.”  (Emphasis added.)

The instruction as given stated:  “Where a kidnaping occurs after the actual perpetration of a robbery such kidnaping is kidnaping for the purpose of robbery if it may reasonably be inferred that the transportation of the victim was to effect the escape of the robber or to remove the victim to another place where he might less easily sound an alarm.” (Emphasis added.)

As a definition of the intent element of kidnapping for robbery the instruction is correct but as a statement of the burden of proof the instruction may be misleading because it permits conviction based on a reasonable inference without regard to the possibility of drawing other reasonable inferences.   This is not, of course, a criticism of the Monk opinion.   Not only was the wording of the opinion materially changed, but the opinion was not attempting to define the appropriate burden of proof in the trial court and may in fact have been referring to the standard of review on appeal.   This illustrates the dangers encountered when the language of appellate opinions is used in jury instructions.

 In any event, the instruction was erroneous and the consequences of the error must be determined.   Defendant urges use of the Garcia standard (People v. Garcia (1984) 36 Cal.3d 539, 205 Cal.Rptr. 265, 684 P.2d 826) to determine whether the error was prejudicial.   The Garcia standard, which is a reversible per se standard with limited exceptions, is appropriate where an essential element of a crime or defense has been removed entirely from the jury's consideration.  (People v. Garcia, supra, at p. 554, 205 Cal.Rptr. 265, 684 P.2d 826.)   That is not the case here.   The intent element was correctly defined and the jury was instructed on the necessity of finding it.   Even as to the standard of proof the instructions were not uniformly erroneous.   In addition to the incorrect special instruction the jury was given the standard instruction on proof beyond a reasonable doubt (CALJIC No. 2.90, 1979 rev.) and the standard instruction on proof by circumstantial evidence (CALJIC No. 2.10, 1979 rev.).   The latter instruction contained the following statements:

“Also, if the circumstantial evidence as to any particular count is susceptible of two reasonable interpretations, one of which points to the defendant's guilt and the other to his innocence, it is your duty to adopt that interpretation which points to the defendant's innocence, and reject that interpretation which points to his guilt.   If, on the other hand, one interpretation of such evidence appears to you to be reasonable and the other interpretation to be unreasonable, it would be your duty to accept the reasonable interpretation and to reject the unreasonable.”

This language, which correctly stated the law, was much more complete and specific than the vague reference to a reasonable inference in the special instruction based on Monk.   A reasonable jury would resolve the ambiguity in the Monk instruction by reading into it the full and correct explanation in CALJIC No. 2.01.   Given the nature of the instructional error, prejudice is appropriately determined according to the Watson standard.  (See People v. Brigham (1979) 25 Cal.3d 283, 292, 157 Cal.Rptr. 905, 599 P.2d 100;  People v. Santascoy (1984) 153 Cal.App.3d 909, 919, 200 Cal.Rptr. 709.)   Looking to the instructions as a whole, “it is not reasonably probable that the jury was confused as to the proper use of circumstantial evidence” to determine intent.  (People v. Ramos (1982) 30 Cal.3d 553, 583, 180 Cal.Rptr. 266, 639 P.2d 908.)

The evidence against defendant on the issue of intent was overwhelming.   If, as the jury concluded, defendant did not intend to rob Dawn Doxie of her keys or her vehicle, then an intent to facilitate the escape of defendant and Martin is the only reasonable explanation for the kidnapping.

Reading the instructions as a whole, and viewing them in the context of the evidence presented at trial, it is not reasonably probable that the error in the special instruction resulted in prejudice to defendant.

III

 Under the constitutional prohibition against cruel or unusual punishments (Cal.Const., art. I, § 17), a criminal punishment is impermissible “if it is grossly disproportionate to the offense as defined or as committed, and/or to the individual culpability of the offender.”  (People v. Dillon (1983) 34 Cal.3d 441, 450, 194 Cal.Rptr. 390, 668 P.2d 697.)

Considering first the disproportionality of the offense as defined, we note that the punishment of imprisonment for life without the possibility of parole has been held not to be disproportionate to the offense of kidnapping for robbery in which the victim suffers death or bodily injury.  (People v. Isitt (1976) 55 Cal.App.3d 23, 27–32, 127 Cal.Rptr. 279;  In re Maston (1973) 33 Cal.App.3d 559, 564, 109 Cal.Rptr. 164.   See also, People v. McKinney (1979) 95 Cal.App.3d 712, 746, 157 Cal.Rptr. 414.)   For similar reasons, we are persuaded that the punishment of imprisonment for life with the possibility of parole is not disproportionate to the offense of kidnapping for robbery as it is presently defined.1

“By legislatively and judicially recognized contemporary standards, kidnapping is one of the most serious of all crimes.  [Citations.]   By its very nature it involves violence or forcible restraint.”  (In re Maston, supra, 33 Cal.App.3d at p. 563, 109 Cal.Rptr. 559.)   The crime of kidnapping for robbery “does not embrace a broad spectrum of unlawful conduct.”  (People v. Isitt, supra, 55 Cal.App.3d at p. 29, 127 Cal.Rptr. 279.)   Not only is a specific intent to rob required, as discussed previously, but the movement of the victim must be such as to increase substantially the risk of harm to the victim over and above that necessarily present in the crime of robbery itself.  (Id., at p. 28, 127 Cal.Rptr. 279.)

Cases which have found gross disproportionality of punishment to an offense as defined have generally involved nonviolent crimes such as narcotic offenses or nonviolent theft or sexual offenses.  (See People v. Dillon, supra, 34 Cal.3d at pp. 478–479, 194 Cal.Rptr. 390, 668 P.2d 697.)   No case has been found in which a life sentence for a violent offense such as kidnapping for robbery, which presents a high risk of great bodily injury or even death, has been invalidated on the basis that the punishment was grossly disproportionate to the offense as defined.

In support of his argument that the punishment is grossly disproportionate to the offense as committed and to his individual culpability, defendant relies heavily on People v. Dillon, supra, 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697, in which a life sentence with possibility of parole was held to be disproportionate to an offense of first-degree felony murder.

Dillon was a case presenting highly unusual facts showing reduced culpability of the offender which outweighed the extreme gravity of the offense.   The defendant in Dillon was an immature 17–year-old high school student, with no previous criminal record, who killed under circumstances of great stress in which he believed his life was threatened by the armed victim.

Although defendant in the present case was only a year older than the defendant in Dillon at the time of their respective crimes, the similarity ends there.   Defendant has a substantial criminal record, including a juvenile adjudication of assault with a deadly weapon, and was on parole from the Youth Authority at the time of the present offense.   The attempted robbery here was committed at night against a commercial establishment using firearms and stocking masks.  (See People v. Laboa (1984) 158 Cal.App.3d 115, 122, 204 Cal.Rptr. 181.)   As planned this was a highly serious and dangerous enterprise which became even more dangerous with the kidnapping of Dawn Doxie who was forced to lie with her head on a seat cushion, a hat taped over her eyes, for a period of roughly 15 minutes, while her car was being driven on the freeway and eventually stopped by law enforcement officers.   Defendant was not a mere passive observer of these events;  he actively participated in both the attempted robbery and the kidnapping.   There are no unusual circumstances establishing that the punishment is so disproportionate to defendant's individual culpability or to the offense as committed that it shocks the conscience and offends fundamental notions of human dignity.   It therefore does not constitute cruel and unusual punishment.

The judgment is affirmed.

FOOTNOTES

1.   As the result of legislation enacted in 1976, the infliction of bodily injury on the victim no longer increases the punishment to life without parole for the offense of kidnapping for robbery, although it still has that effect for the offense of kidnapping for ransom or extortion.  (Pen. Code, § 209.)

RICKLES, Acting Presiding Justice.

KAUFMAN and McDANIEL, JJ., concur.