Opinion
For Opinion on Hearing, see 110 Cal.Rptr. 617, 515 P.2d 1169.
Opinion on pages 130-134 omitted.
HEARING GRANTED
See 10 Cal.3d 392 for Supreme Court Opinion.
[108 Cal.Rptr. 102]Evelle J. Younger, Atty. Gen. of Cal., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Criminal Division, William E. James, Asst. Atty. Gen., Derald E. Granberg, Deputy Atty. Gen., San Francisco, for plaintiff and appellant.
Sheldon Portman, Public Defender, Guy N. Jinkerson, Deputy Public Defender, Santa Clara County, San Jose, for defendant and respondent.
ELKINGTON, Associate Justice.
On this appeal by the People from an order setting aside the first count of an amended information against defendant Richard Marco Alday, we are concerned with the construction of Penal Code section 210.
From the evidence presented at Alday's preliminary examination one could conclude that he had telephoned a San Jose businessman named Brown, stating that he and others had kidnaped Brown's 13-year-old daughter. Brown was ordered within twenty seconds to leave for his bank, obtain $15,000, and put it in a briefcase. If he did not do this, he was told that his 'daughter will be hurt bad.' After being warned not to call the police, Brown was ordered to take the money to a designated phone booth where he would meet the caller or get further instructions. Before departing for the bank, Brown told an employee about the call. A few minutes later, at the bank, Brown learned from the employee that his daughter had not been kidnaped, but instead was safe at school.
An amended information was filed against Alday charging him with the offense defined by Penal Code section 210, and with extortion. (Pen.Code, § 518.) The superior court granted his motion to dismiss the first count covering the section 210 charge for the reason that commission of that offense had not been established at the preliminary hearing.
Penal Code section 210 provides:
'Every person who for the purpose of obtaining any ransom or reward, or to extort or exact from any person any money or thing of value poses as, or in any manner represents himself to be a person who has seized, confined, inveigled, enticed, decoyed, abducted, concealed, kidnaped or carried away any person, or who poses as, or in any manner represents himself to be a person who holds or detains such person, or who poses as, or in any manner represents himself to be a person who has aided or abetted any such act, or who poses as or in any manner represents himself to be a person who has the influence, power, or ability, to obtain the release of such person so seized, confined, inveigled, enticed, decoyed, abducted, concealed, kidnaped or carried away, is guilty of a felony and upon conviction thereof shall be punished by imprisonment in a State prison during his natural life, or for any number of years not less than five. [p] Nothing in this section prohibits any person who, in good faith believes that he can rescue any person who has been seized, confined, inveigled, [108 Cal.Rptr. 103] enticed, decoyed, abducted, concealed, kidnaped or carried away, and who has had no part in, or connection with, such confinement, inveigling, decoying, abducting, concealing, kidnaping, or carrying away, from offering to rescue or obtain the release of other thing of value.'
The single issue of this appeal is whether section 210 applies only where there has been an actual kidnaping or carrying away of a person. The question is one of first impression.
There is language of section 210 which strongly suggests that such a kidnaping or carrying away is not necessary to its application. A portion of its first sentence may properly be condensed to the following: 'Every person who . . . to extort or exact from any person any money . . . poses as, or in any manner represents himself to be a person who . . . has . . . kidnaped or carried away . . . any person . . .' is guilty, etc. This language appears to cover the conduct of Alday. But the words are followed by a disjunctive clause, which states: '. . . or who poses as or in any manner represents himself to be a person who has the influence, power, or ability, to obtain the release of such person so . . . kidnaped or carried away,' etc. (Emphasis added.) This language, at least debatably, indicates a legislative intent that there must be a person so 'kidnaped or carried away.'
The statute discloses an uncertain legislative intent whether for its application there must exist a person who has been kidnaped or carried away.
A frequently emphasized applicable rule was stated in People v. Ralph, 24 Cal.2d 575, 581, 150 P.2d 401, 404, as follows: 'When language which is reasonably susceptible of two constructions is used in a penal law ordinarily that construction which is more favorable to the offender will be adopted. . . .' The same rule was expressed by the court in In re Tartar, 52 Cal.2d 250, 257, 339 P.2d 553, 556, in this manner: 'The defendant is entitled to the benefit of every reasonable doubt, whether it arises out of a question of fact, or as to the true interpretation of words or the construction of language used in a statute. . . .' (To the same effect see Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905; People v. Baker, 69 Cal.2d 44, 46, 69 Cal.Rptr. 595, 442 P.2d 675; In re Murdock, 68 Cal.2d 313, 317, 66 Cal.Rptr. 380, 437 P.2d 764; People v. Alotis, 60 Cal.2d 698, 708, 36 Cal.Rptr. 443, 388 P.2d 675; In re Zerbe, 60 Cal.2d 666, 668, 36 Cal.Rptr. 286, 388 P.2d 182; People v. Smith, 44 Cal.2d 77, 79, 279 P.2d 33; People v. Valentine, 28 Cal.2d 121, 143, 169 P.2d 1; People v. Johnson, 134 Cal.App.2d 140, 144, 285 P.2d 74; People v. Smith, 131 Cal.App.2d Supp. 889, 891, 281 P.2d 103.)
The only prior attempt to construe section 210, which has come to our attention, is found in Fricke's California Criminal Law (9th ed.), page 211, where the author concluded that it applied 'after a kidnaping' had taken place. That work states:
'This cumbersomely worded statute evidently means that every person who, after a kidnaping in violation of section 209, 'poses' as one of the kidnapers or as having the ability to obtain the release of the victim for the purpose of obtaining anything of value is guilty of this offense unless he falls within the exception applicable to one who in good faith offers to secure the return of the victim for a consideration. It would seem that the statute will apply to a person who, though having had no connection with the kidnaping, makes the false pretense that he was a principal therein and has the ability to obtain the return of the victim for a consideration or it could be applied where the person making the pretense was in fact one of the kidnapers against whom there was not sufficient evidence to convict him of the kidnaping but who by his conduct in endeavoring to obtain money or other consideration brought his conduct within the statute.'
For the reasons pointed out we conclude that the superior court's interpretation of Penal Code section 210 was correct, and that its order dismissing count [108 Cal.Rptr. 104] one of the amended information must be affirmed.
Affirmed.
MOLINARI, P. J., and SIMS, J., concur.