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

PEOPLE of the State of California, Plaintiff and Respondent, v. Wendall Warren NORRIS, Defendant and Appellant.


Decided: July 24, 1984

John K. Van de Kamp, Atty. Gen., Herbert F. Wilkinson, Ronald E. Niver, Deputy Attys. Gen., San Francisco, for plaintiff and respondent. Allen R. Crown, Dixon, for defendant and appellant.

Defendant Norris was convicted upon a jury's verdicts of the crimes of (count I) kidnapping to commit extortion (Pen.Code, § 209), (count II) assault with a deadly weapon (Pen.Code, § 245, subd. (a)), a related offense, included in the charged offense of kidnapping to commit extortion, (count III) kidnapping (Pen.Code, § 207), (count IV) kidnapping (Pen.Code, § 207), and (count V) escape by force (Pen.Code, § 4530, subd. (a)).  As to the offenses other than assault with a deadly weapon, the jury found that he had used a deadly weapon in the perpetration of each of them.   He was sentenced upon the kidnapping to commit extortion, and assault with a deadly weapon, convictions of counts I and II.   As to the remaining offenses (counts III, IV and V) imposition of sentences was stayed.

The appeal is from the judgment entered upon counts I and II.

We affirm the judgment for reasons as follow.

I. Norris' first contention is that:  “The evidence was insufficient to sustain the conviction of kidnapping to commit extortion in violation of Penal Code section 209(a).”

Evidence admitted at the trial disclosed the following factual context.

Sheriff's officers went to Folsom State Prison for the purpose of transporting defendant Norris, a prison inmate, to Solano County for legal proceedings.   On the return trip Norris, in the vehicle's rear compartment, was shackled with leg irons and “belly chains” holding his handcuffed wrists close to his body.

Nearing Vallejo, Norris had somehow obtained a small revolver.   He directed the officers of the front seat to “turn around and look at something.”   Upon doing so, and observing the handgun pointed at them, the officers were ordered to continue driving to San Francisco.   Norris then directed them to throw their firearms to the floor, and one of them to handcuff himself to the steering wheel.   The two were then directed to handcuff themselves together.   When they moved slowly to obey, they were threatened by Norris with death unless they quickly complied.   Instead of complying, according to the driving officer:  “I was going between approximately 35 miles an hour when I grabbed the steering wheel with my left hand, cranked it to the left, came up with my right hand, hit the gear shift lever into park, and slammed on the brakes, put the car into a left-hand jerking motion and slide.   I don't recall which hand I used to hit the door lever on the door, but I managed to open the door and roll out of the vehicle.”   And the other officer dove out of the car's right-hand passenger doorway.   The car came to a rest against a tree with Norris still manacled in its back seat compartment.

Other officers soon appeared.   Norris was removed from the car, on the rear floorboard of which was found a .22 caliber revolver, loaded and cocked for firing.   Norris later explained “that friends had got [the revolver] to him while [the officers] were away from our vehicle at Folsom.”

Penal Code section 518, as here relevant, states:  “Extortion is ․ the obtaining of an official act of a public officer, induced by a wrongful use of force or fear․”

Norris' instant contention may be narrowed to an argument that kidnapping for the purpose of extortion was not made out by the above-narrated uncontroverted facts.   He insists that his commands to the officers, to handcuff themselves together and to the vehicle's steering wheel, and to drive to San Francisco, were not to do official acts as necessitated by Penal Code section 518.   No legal authority is offered in support of the point.   And such supportive argument as is made seems to say that because the demanded acts were not part of the officers' “official duty” they could not be official acts.

We disagree.

 Such an interpretation would render Penal Code section 518 meaningless.   For the “doing of an official act induced by a wrongful use of force or fear” would reasonably never be part of an officer's “official duty.”   Instead, we discern a legislative intent that section 518's phrase, “an official act,” means an act in the course of one's public duty or employment.   Here the demanded acts were manifestly ordered to be done in the course of the officer's duty or employment.

 Statutes must be construed reasonably, and not in such a manner as “would result in an absurdity.”  (Leo v. Board of Medical Examiners, 36 Cal.App.2d 490, 493, 97 P.2d 1046.)

II. Norris' remaining appellate contention is that:  “Appellant was improperly convicted of assault with a deadly weapon as a lesser included offense of kidnapping to commit extortion.”

Assault with a deadly weapon is manifestly not a lesser offense necessarily included in the crime of kidnapping for the purpose of extortion.

But here the record expressly establishes that it was Norris who requested the trial court to give a jury instruction on the “lesser included offense of ․ assault with a deadly weapon, 245, as a lesser included of all the kidnaps.”

Controlling, we think, is the high court's recent case of People v. Geiger, (1984) 35 Cal.3d 510, 525, 199 Cal.Rptr. 45, 674 P.2d 1303, where it was said:  “[W]here the defense is that the defendant has committed an offense other than that on which the prosecution case is predicated, and he has presented evidence which if believed supports his theory, reliability in the factfinding process demands that the jury be instructed on that offense.   Similarly, reliability of the factfinding process demands affording the jury the ‘third option’ when the evidence supports a conviction of a related, but not necessarily included, offense.”  (Emphasis added.)

Here the offense of assault with a deadly weapon was a “related, but not necessarily included, offense,” vis à vis that charged, i.e., kidnapping for the purpose of extortion.

 We do, however, observe nothing in People v. Geiger which discards the long existent rule that where the evidence establishes “that if the defendant is guilty at all, he is guilty of the higher offense” (People v. McCoy, 25 Cal.2d 177, 187, 153 P.2d 315).   Here, if Norris was guilty at all he was patently guilty of the higher offense.   Rejection of Norris' requested “lesser included” instruction would therefore not have been error.

But under People v. Geiger, Norris may not reasonably claim reversible error, in respect of that which benefited him.  “[One] cannot claim prejudice by reason of an erroneous ruling of the court which is in his favor.”   (People v. Gonzales, 87 Cal.App.2d 867, 878, 198 P.2d 81.)   And:  “Anyone who seeks on appeal to predicate a reversal of conviction on error must show that it was prejudicial.”  (People v. Archerd, 3 Cal.3d 615, 643, 91 Cal.Rptr. 397, 477 P.2d 421.)

The judgment is affirmed.

I dissent.

Manifestly, Norris' purpose in kidnapping the officers was not to force them to perform such “official acts” as throwing weapons on the floor, or handcuffing one another.   Instead, his purpose in kidnapping them was to effect an escape from prison.

Therefore, even if I were able to agree that the acts viewed by the majority as “official acts” were cognizable under Penal Code section 518 (I do not), I would conclude that the charge of violation section 209, subdivision (a), was mistaken, and the conviction based upon it erroneous.

ELKINGTON, Acting Presiding Justice.

HOLMDAHL, J., concurs.