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People v. Kozlowski3/4/2002
hout success. (See § 1118.1.)
The jury found Kozlowski and Gatson guilty of all charges and found all enhancement allegations to be true. In a court trial, Gatson admitted two prior conviction allegations were true. The trial court accepted these admissions.
Kozlowski's motion for new trial was denied. He was sentenced to two indeterminate sentences of life imprisonment without possibility of parole for the kidnapping for extortion convictions and two terms of life imprisonment with possibility of parole for the attempted murder convictions. The life terms were ordered to run consecutively.
Additional terms of four months on each deadly weapon use enhancement and one year for each great bodily injury enhancement were imposed but stayed on multiple punishment grounds. (See § 654.) No sentence was imposed on the remaining charges in order to avoid violating the ban on multiple punishment. (See ibid.) Kozlowski was ordered to pay a $50,000 restitution fine and a $50,000 parole revocation fine. (See § 1202.45; former § 1202.4, subd. (b).) Gatson's sentence was identical, but for the addition of two more consecutive terms-of five years and one year-for his prior convictions.
II. KIDNAPPING FOR EXTORTION
A. Extortion Of Property
First, Kozlowski and Gatson contend that they cannot lawfully be convicted of kidnapping for extortion because the PIN codes that they obtained from Lisa and Robyn do not constitute property that may be extorted under California law. At trial, they stood accused of kidnapping Lisa and Robyn "to commit extortion and to exact from another money and other things of value." The trial court instructed the jury that one who obtained a PIN code from another with her consent when that consent was induced by a wrongful use of force or fear committed extortion for purposes of kidnapping for extortion. The court also referred to a PIN code when it gave other instructions on consent and causation relating to the crime of kidnapping for extortion.
In its opposition to the motions to set aside the kidnapping for extortion counts of the information, the People stated that the "valuable thing" extorted from Lisa and Robyn were their PIN codes. During closing argument, the prosecution referred several times to extortion of the girls' PIN codes. The verdict forms by which the jury recorded their findings of guilt on the kidnapping for extortion charges used the same language as the information-the extortion of "money and other things of value." Thus, it is clear that the trial court and the prosecution assumed that a PIN code was property capable of being extorted and that this was the sole theory of kidnapping for extortion that was presented to the jury.
In July 1999 when these offenses were committed, section 209 made it a felony for one to kidnap someone in order to commit extortion. (See former § 209, subd. (a).) Our Penal Code defines extortion as "the obtaining of property from another, with his [or her] consent, . . . induced by a wrongful use of force or fear . . . ." (§ 518, italics added; see § 7 [masculine gender includes feminine].) Kozlowski and Gatson argue that, as a matter of law, a PIN code is not property that may be extorted, but is merely an intellectual construct that cannot be exclusively possessed. Thus, they contend that their convictions for kidnapping for extortion violate their federal and state constitutional rights to due process and must be reversed. (See U.S. Const., 14th Amend.; Cal. Const., art. I, § 15.) They also reason that as these convictions were unsupported by substantial evidence, the constitutional ban on double jeopardy bars any retrial on these counts-a result that
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