People v. Burnes CA2/7

INTRODUCTION

Pierce Burnes was convicted by a jury of two counts of aggravated kidnapping (Pen. Code,1 § 209, subd. (b)(1)) and three counts of second degree robbery (§ 211) in connection with the robbery of an AT&T store on April 11, 2013 and the robbery of a Radio Shack store on March 30, 2013. Burnes was also convicted of a separate attempted robbery (§§ 211, 664) on April 11, 2013. The court found true the allegation that Burnes had a prior conviction for a violent or serious felony under the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and one prior serious felony conviction within the meaning of section 667, subdivision (a)(1). The court sentenced Burnes to an aggregate state prison term of 28 years to life plus a determinate term of 26 years and four months. Burnes only challenges his kidnapping convictions on appeal. At issue is whether the acts by Burnes at each store after taking the merchandise to move his victim to a location in the store not in the public view, then tying up the victim, was “incidental to the [crime of] robbery,” and whether the movement “increase[d] the risk of harm to the victim over and above that necessarily present” in…