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People v. Kozlowski3/4/2002
key itself was a tangible object, the real harm that its making created was that harm to the owner's intangible ability to control access to the house. (See Kwok, supra, 63 Cal.App.4th at p. 1251.)
The Kwok court held that making an unauthorized copy of a borrowed key-like making an unauthorized copy of a trade secret or of computer data-destroys the intangible benefit and prerogative of being able to control access to one's residence as much as theft of the key would do. (Kwok, supra, 63 Cal.App.4th at p. 1251.) In like manner, when Kozlowski and Gatson compelled Lisa and Robyn to reveal their PIN codes, that knowledge destroyed the intangible benefit of being able to control access to the bank accounts. The intangible property taken-the PIN codes-were the means to obtain the more tangible property-the bank funds-contained in those accounts.
Nevertheless, Kozlowski and Gatson argue that a PIN code has no intrinsic value-that it only becomes valuable when used in conjunction with an ATM card. This argument has a facial appeal, but we find it unpersuasive. Unless the holder has both the tangible ATM card and the intangible PIN code, the holder cannot access any funds in the account.
In our case, the evidence establishes that Kozlowski and Gatson obtained the PIN codes from Lisa and Robyn after finding each girl's ATM card in her purse. Thus, their own conduct supports a finding that the joint possession of the ATM cards and the necessary PIN codes rendered both the cards and the PIN codes valuable.
For all these reasons, we conclude that a PIN code constitutes property for purposes of kidnapping for extortion.
B. Sufficiency of Evidence
1. Extortion of Money or Valuable Property
Next, Kozlowski and Gatson raise several challenges to the sufficiency of evidence to their convictions for kidnapping for extortion, arguing first that they cannot be guilty of this offense because they did not extort money or valuable property as required by former section 209. They contend that, for this reason, the prosecution failed to adduce sufficient evidence of kidnapping for extortion. As such, Kozlowski and Gatson argue that their convictions violate both federal and state due process because there was insufficient evidence of every element of the charged offense. (See U.S. Const., 14th Amend.; Cal. Const., art. I, § 15.) They also reason that the constitutional ban on double jeopardy bars any retrial of these kidnapping charges.
This claim of error turns on the success of their related claim that a PIN code is not property that may be extorted within the meaning of kidnapping for extortion. As we have already rejected that contention, this claim of error necessarily fails, as well. (See pt. II.A., ante.)
2. Secondary Extortion Victim
Kozlowski and Gatson also argue that there was insufficient evidence to support their convictions for kidnapping for extortion because there was only a single victim for each offense. They contend that kidnapping for extortion pursuant to former section 209 necessarily requires two victims for each offense-one victim who is kidnapped and a second victim from whom the accused extorted property. They reason that this distinction is essential because it allows us to distinguish between the different punishments imposed for kidnapping for extortion and kidnapping for robbery or rape. Kozlowski and Gatson contend that their convictions of kidnapping for extortion violate state and federal due process because the People did not prove all elements of the offense-that is, a second victim for each offense. (See U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, § 15.) T
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