Concurring and Dissenting.—Based on a misunderstanding of the law governing the asportation element of aggravated kidnapping, the majority overturns implied findings of fact by the jury that the movement of these victims was not incidental to the robberies and that movement increased their risk of harm.
The majority starts its analysis of the “not incidental” prong with Daniels.1 Therefore, I will too.
It is important to note that Daniels involved three kidnappings for only the crime of robbery.2 (Daniels, supra, 71 Cal.2d at p. 1122.) In each case, the victim was moved in order for the fruits of the robbery to be obtained. (Id. at pp. 1123-1125.)3 As the majority notes, the Daniels court held, “[D]efendants had no interest in forcing their victims to move just for the sake of *610moving; their intent was to commit robberies and rapes, and the brief movements [18 feet, 5 to 6 feet and 30 feet] which they compelled their victims to perform were solely to facilitate such crimes. It follows, a fortiori, that those movements were ‘incidental to’ the robberies . . . within the meaning of Cotton [v. Superior Court (1961) 56 Cal.2d 459 [15 Cal.Rptr. 65, 364 P.2d 241] (Cotton)].” (Daniels, supra, 71 Cal.2d at pp. 1130-1131; maj. opn., ante, at p. 602.)4
In Cotton, supra, 56 Cal.2d at page 464, the California Supreme Court had held that movement which was “natural” to the target offenses was incidental to it.
The majority next discusses Earley, noting its holding, “Since the movement . . . [10 to 13 blocks] was substantial, it was not ‘. . . incidental to the commission of the robbery . . .’ even though it may have been solely to facilitate the commission of the robbery.” (Earley, supra, 14 Cal.3d at p. 130, italics added.) However, in concluding that the movement here was incidental to the robberies, the majority states, “[The] movement of the [victims] served only to facilitate the crime with no other apparent purpose.” (Maj. opn., ante, at p. 607.) This clearly contradicts Earley's holding.
The majority goes on to conclude that footnote 11 of Earley “qualifies” its holding. (Maj. opn., ante, at p. 604.) That footnote begins, “There is no merit to an assertion . . . that ‘when the robber’s intent is solely to facilitate the *611robbery the movement is merely incidental’ thereto within the meaning of Daniels. . . . [C]ases containing] language . . . tending to support [this] assertion . . . reflect a misconception of the first prong of the Daniels test in that they fail to take into consideration whether the movement was brief . . . .” (Earley, supra, 14 Cal.3d at p. 130, in. 11.) In other words, just because the robber could not have accomplished the crime in the manner he intended without the movement does not necessarily make the movement incidental. Contrary to the majority’s conclusion, this language is entirely consistent with the holding in Earley, which ignores whether the movement “may have been solely to facilitate the . . . robbery” (id. at p. 130) and focuses on the distance the victim was moved.
The Earley footnote goes on to state, “Other cases contain language suggesting that movement is not ‘. . . incidental’ to a robbery where the movement is ‘necessary’ or ‘essential’ to the commission of the robbery or ‘an important part of [the defendant’s] criminal objective, without [which] the crimes would not have been committed.’ . . . Although one definition of ‘incidental’ is ‘nonessential’ . . . that manifestly was not the sense in which the word . . . was used in Daniels.[5] Movement across a room to facilitate a robbery might be essential to the commission of the robbery but be incidental thereto within the meaning of Daniels. Insofar as such cases are inconsistent with the views expressed herein they are disapproved.” (Earley, supra, 14 Cal.3d at p. 130, fn. 11.) In other words, the defendant’s intent to commit the kidnapping as, in his or her mind, a necessary component of the target offenses is not determinate of whether the movement is incidental. Contrary to the majority’s conclusion, this portion of the footnote did not qualify the holding. It is entirely consistent with the latter’s focus on the distance traveled, rather than the intended purpose of the movement.
Finally, the majority cites People v. Rayford (1994) 9 Cal.4th 1 [36 Cal.Rptr.2d 317, 884 P.2d 1369] (Rayford), whose holding deserves reiteration here, “As for . . . whether the movement is merely incidental to the crime of robbery, the jury considers the ‘scope and nature’ of the movement. [Citation.] This includes the actual distance a victim is moved. However, . . . there is no minimum number of feet a defendant must move a victim in order to satisfy th[is] . . . prong. [Citation.] [f] In addition, we have since Daniels . . . considered] the context of the environment in which the movement occurred. [Citations.] . . . [¶] In Daniels, we . . . stated . . . , ‘We do not imply that the . . . [movement of the victim 15 feet] [is] controlling, i.e., that movements of th[at] scope and nature . . . could not support a conviction under [Penal Code] section 209 if the defendant’s intent *612was to commit robbery. Such a case, when and if it arises, must be decided on its own facts. . . .’ [Citation.]” (Id. at pp. 12-13.) According to Rayford, then, the amount of distance traveled, while remaining a valid consideration, is not the only one, but, rather, is part of the larger consideration of the scope and nature of the movement and the context of the environment.
Relying on a non-legal-dictionary definition of “incidental,” the inappropriateness which I have already addressed,6 the majority criticizes the holdings in Salazar, a decision of Division One of this court, and Shadden,7 an opinion from the Second District, Division Six, equating “incidental” with “necessary.” Although the majority fails to say so, these two are not the only cases equating the two terms. Division Two of the Second District did the same in People v. Smith (1995) 33 Cal.App.4th 1586, 1594 [40 Cal.Rptr.2d 31], as did Division Five of that court in People v. Diaz (2000) 78 Cal.App.4th 243 [92 Cal.Rptr.2d 682] (Diaz). I assume that the majority singles out Salazar and Shadden because the distances traveled in those cases (29 feet and nine feet) were considerably shorter than that here. However, they also missed People v. Jones (1999) 75 Cal.App.4th 616 [89 Cal.Rptr.2d 485] (2d Dist., Div. 4) (Jones) in which the victim was moved 10 feet less than these victims.
The majority offers no sound reason why the equating of “incidental” and “necessary” is insupportable. To the extent the majority suggests it conflicts with footnote 11 of Earley, it is incorrect. As stated before, that footnote addresses the defendant’s intent, whereas Salazar and Shadden focus on whether the movement was beyond the bare minimum required to accomplish the target crime. Certainly, the equation is not inconsistent with Cotton's notion that movement which is natural to the target offense is merely incidental to it.
Moreover, despite the majority’s implication otherwise (maj. opn., ante, at p. 605), neither case relied exclusively on the equation of “incidental” and “necessary” to support its conclusion that the distance traveled was not incidental. Salazar held, “In Cotton, . . . [t]he [California Supreme C]ourt concluded [that] the kidnapping charge was unsupported because the movement was ‘natural’ under the circumstances of the assault and thus incidental. [Citation.] [¶]••• In contrast to Cotton, the movement [here] was not natural to the crime. Salazar could have raped [the victim] on the walkway outside the motel room door and avoided moving her at all. The movement of [the victim] was not necessarily related to the rape crime itself; rather, a jury could reasonably conclude it was an essential part of Salazar’s plan to *613avoid detection and to make the crime easier to commit. ..[!]... [T]he jury could find the movement crossed significant boundaries (from the public walkway into the motel room bathroom) and was not a necessary or a natural part of committing the rape. Thus, the movement was not incidental to the crime.” (Salazar, supra, 33 Cal.App.4th at p. 347.) As is clear from the foregoing, Salazar did not rely exclusively on whether the movement of the victim was necessary or essential to the commission of the rape. It relied also on the crossing of significant boundaries, a point the majority does not assail as an improper consideration in assessing the scope and nature of the movement and the context of the environment under Rayford.
Similarly, Shadden did not rely exclusively on its equation of “necessary” and “incidental.” It also held, “[The defendant] pulled off [the victim’s] panties and pulled down his zipper after he dragged her to the back room and shut the door [but before taking four videotapes]. The jury could reasonably infer that the movement was not incidental to the attempted rape because [the defendant] only began the sexual attack after he moved her. [Citations.][8] [¶] • • • Where movement changes the victim’s environment, it does not have to be great in distance to be substantial. [Citation.] [The defendant] slugged [the victim] and dragged [her] nine feet from an open area to a closed room. From these facts the jury could reasonably infer that the distance was substantial for [the victim] and it changed her environment.” (Shadden, supra, 93 Cal.App.4th at p. 169.) Clearly, the Shadden court based its conclusion that the movement was not incidental on more than the basis the majority criticizes, and those remaining reasons are both unassailed by the majority and unassailable.
In Diaz, the court noted, “[Relatively short distances have been found not to be incidental where the movement results in a substantial change in ‘the context of the environment.’ ” (Diaz, supra, 78 Cal.App.4th at p. 247.) The defendant in Diaz had moved the rape victim “at least 150 feet” (id. at p. 248) from a spot next to a sidewalk bordering on a busy city street to behind a closed building in a darkened park. Relying on Rayford, Jones and Salazar, the Diaz court concluded that the movement was not incidental, thusly: “The defendant could have sexually assaulted the victim in the sidewalk area where he first accosted her .... He quite obviously moved [her] in order to complete the attack and to avoid detection. The scope and nature of the *614movement dramatically changed the environmental context. [|] We note the present case provides a good illustration of the distinction between incidental and nonincidental movements. . . . [T]he . . . defendant had [initially] attacked the . . . victim on a grassy strip immediately adjacent to the sidewalk [perhaps near where he had first accosted her], in foil view of a major urban street. The movement from the sidewalk to the grassy strip could easily be characterized as incidental, in that it effected no substantial change in the surroundings, and may have been a short distance from where the defendant first made contact with the victim. However, the forcible movement of the victim into the darkened park and behind a large building was properly found by the jury to have been more than incidental to the sexual assault.” (Diaz, supra, 78 Cal.App.4th at pp. 248-249.) It is interesting to note that Diaz echoes the reliance of Salazar on the fact that the underlying crime could have been accomplished without the movement.
However, regardless of whether “incidental” and “necessary” may properly be equated, the question to be answered here is whether there was a sufficient basis upon which this jury could reasonably conclude that the movements of the victims were not incidental to the robberies. I believe there was. The victims were moved from the showroom of a jewelry store, openly accessible to customers, fronted by large windows, within view of the general public, to a five-foot by five-foot office in the rear that had a window into the showroom from which one could look out, but not in. The majority notes that the victims were moved 50 feet. Although the victims could not recall if Hoard closed the door to the office after first putting them in there, after he reentered it when the cell phone dropped, he slammed the door shut as he left to resume the taking of jewelry from the showroom counters. Before leaving the office, he destroyed the only phone he believed to be present. These facts constituted more than a sufficient basis upon which this jury could reasonably conclude that the scope and nature of the movement (Rayford, supra, 9 Cal.4th at p. 12) and the changed context of the victims’ environment (ibid.) were such that the movement was not incidental to the robberies.
The majority also overturns the jury’s implied finding of fact that the movement increased the risk of harm to the victims over and above that necessarily present in robbery. To reiterate, this prong of the asportation element includes consideration of such factors as the decreased likelihood of detection, the danger inherent in a victim’s foreseeable attempt to escape, and the attacker’s enhanced opportunity to commit additional crimes. (Rayford, supra, 9 Cal.4th at p. 13.)
We begin by noting that the majority concludes that the movement did not “substantially increase the risk of harm.” (Maj. opn., ante, at p. 607, italics *615added.) However, as the majority earlier noted (maj. opn., ante, at p. 602), Penal Code section 209 does not require that the increase in risk be substantial, nor did the instructions given this jury.
In Rayford, the California Supreme Court held, “[The victim] was forcibly moved ... at night from a parking lot of a closed store to the other side of a wall located at the edge of the lot. She was forced to sit against the wall and beside a small tree, 34 feet from the street. The wall blocked the view of any passersby from the parking lot side, and the tree and bushes at the end of the wall limited detection of [her] from the street. While the area beyond the wall bordered on a two-lane street, it was underdeveloped, and made up of dirt and rocks. Finally, . . . [t]here is no evidence as to whether [the defendant and the victim] were detectable from the street. [¶] The jury could reasonably have concluded that [the victim’s] forcible movement . . . substantially increased her risk of harm.” (Rayford, supra, 9 Cal.4th at p. 23.)
I note that an increased risk of harm is consistently upheld where the defendant is armed during the movement of the victim. (See, e.g., People v. Lara (1974) 12 Cal.3d 903, 908 [117 Cal.Rptr. 549, 528 P.2d 365]; Earley, supra, 14 Cal.3d at p. 131.)
I recognize, as does the majority (maj. opn., ante, at p. 607), that California Supreme Court cases that predated Rayford held that the removal of the victim from public view in itself does not substantially increase the risk of harm. (People v. Stanworth (1974) 11 Cal.3d 588 [114 Cal.Rptr. 250, 522 P.2d 1058]; In re Crumpton (1973) 9 Cal.3d 463, 467 [106 Cal.Rptr. 770, 507 P.2d 74].)9 However, a substantial increase in the risk of harm is no longer required. Additionally, as is clear from my research, the law on the asportation element has evolved over the years. I also note that Rayford’s reliance solely upon the isolation of the victim caused by the movement was echoed in Diaz, supra, 78 Cal.App.4th at page 249, and Salazar, supra, 33 Cal.App.4th at page 348.
However, the isolation of the victims here was not the only factor upon which this jury could rely in finding that the movement increased their risk of harm. In Jones, supra, 75 Cal.App.4th at page 630, the court noted that “[a]n increased risk of harm was [also] manifested by [the defendant’s] demonstrated willingness to be violent, having knocked [the victim] to the ground [and] gripped her mouth so tightly as to leave a bum mark on her *616face, and grabbing] her [when she tried to escape after the kidnapping began].” Here, like in Jones, Hoard demonstrated a willingness to be violent. When he suspected that the victims were trying to use the phone to summon help, he became angry, pulled the phone off the wall and smashed it on the ground, then slammed shut the door to the office. Additionally, by immobilizing the victims by duct-taping their wrists and ankles, he increased the opportunity to commit additional crimes against them.
Finally, in People v. Nguyen (2000) 22 Cal.4th 872 [95 Cal.Rptr.2d 178, 997 P.2d 493], the California Supreme Court held that the increased risk of harm necessary for aggravated kidnapping could be psychological harm.10 The jury here was so instructed. The victims testified that Hoard asked them if they had families and told them that if they wanted to see their loved ones again, they had better cooperate with him. He used obscenities when threatening to kill them. He threatened them again after he suspected they had tried to use the phone. Both were hysterical and either screaming or crying immediately after the crimes. Neither wanted to work at a jewelry store again. One of the victims testified at trial, “I thought the second this even started that . . . that was it. It was over. Just that fast, I thought. I had no idea what was gonna happen.” Under the circumstances, the jury could reasonably conclude that the movement of the victims to the office also increased the risk of mental harm.
I concur in the majority’s conclusion that the carjacking conviction should be affirmed, but I dissent from its reversal of the aggravated robbery convictions.
Respondent’s petition for review by the Supreme Court was denied January 29, 2003.
People v. Daniels (1969) 71 Cal.2d 1119, 1130-1131 [80 Cal.Rptr. 897, 459 P.2d 225, 43 A.L.R.3d 677] (Daniels).
The defendants were not convicted of kidnapping for the purpose of rape.
The same was true in People v. Williams (1970) 2 Cal.3d 894 [88 Cal.Rptr. 208, 471 P.2d 1008], where the victim was moved around a gas station and down the street alongside it, picking up items for the defendants and delivering them to a car the victim believed belonged to the defendants. (Accord, People v. Killean (1971) 4 Cal.3d 423 [93 Cal.Rptr. 742, 482 P.2d 654] [victim is moved throughout his apartment while the defendant searches for valuables in each room].) Thus, in People v. Salazar (1995) 33 Cal.App.4th 341 [39 Cal.Rptr.2d 337] *610(Salazar), Division One of this court noted that in these early cases, the movement was a necessary part of the robberies because the fruits of crimes could not be had without moving the victim from place to place. (Id. at p. 348, in. 8.) The majority asserts that Salazar’s observation is nonsensical. (Maj. opn., ante, at pp. 605-606.) It is not.
The majority cites language appearing in Daniels from a New York appellate court opinion that “ ' “It is a common occurrence in robbery, for example, that the victim be . . . moved into and left in another room or place,” ’ ” (maj. opn., ante, at p. 603, italics omitted), citing, as an example of incidental movement, tying a victim up in a bank and moving him to another room. (Maj. opn., ante, at p. 603.) In that opinion, the New York appellate court reversed convictions for kidnapping for robbery where the defendants forced the victims back into their car and drove them 27 blocks for 20 minutes, while relieving them of their possessions. (Daniels, supra, 71 Cal.2d at p. 1135.) Daniels also cited another New York appellate court decision reversing convictions for kidnapping where a pharmacist drugged his victims and transported them from Manhattan to Queens. (Id. at p. 1137.) However, when the California Supreme Court was confronted with a substantially shorter movement under similar circumstances (four short city blocks) in People v. Thornton (1974) 11 Cal.3d 738 [114 Cal.Rptr. 467, 523 P.2d 267], disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12 [160 Cal.Rptr. 84, 603 P.2d 1], the court upheld the conviction for aggravated kidnapping, concluding that the movement was not incidental to the crime. (Thornton, at p. 768.) Similarly, the following year, in Earley, the California Supreme Court concluded that forced movement of the victim in a car 10 to 13 blocks was not incidental to the robbery committed during it. (In re Earley (1975) 14 Cal.3d 122 [120 Cal.Rptr. 881, 534 P.2d 721] (Earley))
5It is interesting, then, that this is precisely one of the definitions the majority adopts as the correct meaning of “incidental.” (Maj. opn., ante, at p. 605.)
See footnote 5, ante, and related text.
People v. Shadden (2001) 93 Cal.App.4th 164 [112 Cal.Rptr.2d 826] (Shadden).
8The majority finds “seeming contradiction” (maj. opn., ante, at p. 606) between this statement and the Shadden court’s later conclusion that moving the victim to the back room increased her risk of harm because it made detection less likely and thus “enhanced his opportunity to rape and injure her.” (Shadden, supra, 93 Cal.App.4th at p. 170.) However, there is no contradiction between the two statements, and the latter consideration is entirely proper in assessing the increased risk of harm prong of Daniels. (Rayford, supra, 9 Cal.4th at p. 13.)
However, in Earley, supra, 14 Cal.3d 122, the California Supreme Court noted, “ ‘[A]cts of removing the victim from public view . . .’ [citation] . . . remain a circumstance to be considered in determining whether the risk of harm was substantially increased.” (Id. at p. 133, fn. 15, italics added.)
The majority cannot ignore the holding of Nguyen permitting the consideration of psychological harm on the basis that the facts in Nguyen are unlike those here. (Maj. opn., ante, at p. 607.)