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Filed 11/10/15 Salvadori v. Super. Ct. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

DANTE KEITH SALVADORI,

Petitioner,

v.

THE SUPERIOR COURT OF SONOMA 

COUNTY,

Respondent,

THE PEOPLE,

Real Party in Interest.

 A144504

 (Sonoma County

 Super. Ct. No. SCR-646719)

Petitioner Dante Keith Salvadori, defendant below, petitions for a writ of 

prohibition and/or mandate that directs the Sonoma County Superior Court to dismiss a 

kidnapping to commit robbery count against him. Petitioner contends the trial court 

improperly denied his motion, brought pursuant to Penal Code section 995,1to dismiss 

that count for lack of evidence that the asportation of the alleged victim was other than 

incidental to robbery. We conclude the trial court properly denied his motion and deny 

the petition.

BACKGROUND

In April 2014, the Sonoma County District Attorney filed a felony complaint 

alleging in seven counts that petitioner had violated numerous sections of the Penal Code 

based on his participation in an attack on, and attempted robbery of, Bolivar Medina on 

 

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 All further statutory references herein are to the Penal Code.
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November 27, 2013. The District Attorney did not allege that petitioner had participated 

in a kidnapping. 

I. 

The Preliminary Hearing

At the preliminary hearing before a magistrate, Bolivar Medina testified through an 

interpreter that in the early evening of November 27, 2013, he parked his truck on the 

street outside his Santa Rosa, California home and separated from those who had 

accompanied him about town. Medina walked alone towards his house as he talked on 

his mobile phone. When he had walked about ten feet to his driveway and stood about 30 

feet from his house door, four pistol-armed men dressed in black, three of them wearing 

masks, approached him. Medina did not know them. The unmasked man threw him to 

the ground and all four jumped on top of him. They said, “ ‘Where’s the marijuana at?’ ” 

Medina replied that he did not know what they were talking about. 

According to Medina, the four men then got him up off the ground, pointed guns 

at him and walked him to the door of his house. They yelled at him to open it and not to 

move because they were going to kill him. Medina unlocked the door, then tried to go in 

quickly and shut it behind him out of concern for his wife, son and stepson, who were

inside. However, the men hit him and forced their way into the house. Medina threw one 

of the men onto the ground. His wife came into the room and one of the attackers threw 

her down beside Medina. 

Medina testified that the men were screaming things like, “ ‘Get down on the 

ground; don’t move.’ ” Asked if the men made demands for marijuana or any other 

property, Medina testified, “There was so much confusion and—and yelling and—and 

they were pulling—taking one thing and another; and I didn’t—and they were asking for 

a lot of things from me. They were yelling out, and they were all yelling just in—in 

English,” a language Medina did not know. The men hit him, including with their guns. 

Medina also testified that as he wrestled on the ground with one of the men, a shot 

fired from the man’s gun. The men dispersed and Medina’s wife was able to get up and 
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call the police. The men heard her and left. Later, a doctor counted 16 injuries to 

Medina’s head. Medina required stitches and a three-day hospitalization. 

Medina said that nothing was missing from his house except for a knife that police 

found in his driveway. He thought the men took his mobile phone because he could not 

find it after the attack. At trial, he identified petitioner as the unmasked man who

attacked him. 

Two police officers testified that they arrested petitioner later in the evening of

November 27, 2013, after engaging in a high speed chase with a car in which he was a 

passenger. Police searched the car and discovered paperwork with petitioner’s name on 

it, several cell phones and a two-way radio, various pieces of black clothing and a bag 

containing several pounds of marijuana. 

The magistrate held petitioner to answer for five of the seven criminal counts pled 

against petitioner. 

II. 

The Addition of a Kidnapping to Commit Robbery Count

After the magistrate’s ruling, the Sonoma County District Attorney filed a felony 

information that included a new “Count I.” In it, the District Attorney alleged that 

defendant violated section 209, subdivision (b)(1) by unlawfully kidnapping and carrying

away Medina to commit robbery, and made certain sentence enhancement allegations. 

Petitioner moved pursuant to Penal Code section 995 to dismiss this new 

aggravated kidnapping count. Petitioner contended the evidence presented to the 

magistrate indicated that “Medina was allegedly moved from his driveway into his house 

where the men believed there was marijuana.” After noting that the People had to prove 

that Medina’s movement was other than merely incidental to the robbery to establish a 

kidnapping, he contended, “The marijuana which was the focus of the robbery was 

believed to be inside the home. Mr. Medina was moved into the house solely to reach his 

marijuana and facilitate the robbery. Thus, there was insufficient evidence presented at 

the preliminary hearing to support [the] charge . . . and Count I should be set aside.” 
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At the hearing on petitioner’s motion, the trial court found it particularly 

significant that Medina was scared to death; his attackers’ actions, such as their being

armed and some of them masked, indicated planning and sophistication; the facts of the 

case were similar to those in cases concluding kidnapping had occurred; Medina’s wife 

was also thrown to the ground inside the house; Medina was pistol-whipped in the head;

and Medina’s attackers threatened to kill him. The court concluded that the movement of 

Medina was more than incidental to the robbery and denied petitioner’s motion.

Petitioner subsequently filed this petition. We issued an alternative writ or order

to show cause based on our preliminary conclusion that the trial court had erred in 

denying petitioner’s section 995 motion. We directed the superior court to set aside and 

vacate its order and enter a new one granting petitioner’s motion or, in the alternative, to 

show cause before this court why a peremptory writ of mandate should not be granted. 

We also stayed the proceedings below pending further order of this court. Subsequently, 

the People, as real party in interest, filed a return in which they argued that petitioner’s 

movement of Medina was not merely incidental to robbery. We now conclude that the 

People are correct.

DISCUSSION

In his petition, petitioner again contends Medina’s movement was merely 

incidental to robbery “because the marijuana which was the target of the robbery was 

believed to be inside the home. Mr. Medina was moved into the house solely to reach his 

marijuana and facilitate the robbery. Thus, there was insufficient evidence presented at 

the preliminary hearing to support a charge of section 209[, subdivision] (b), and Count I 

should be set aside.” 

I.

Standard of Review

We first address our standard of review. Section 995 requires an information to be 

set aside if, among other reasons, the defendant “had been indicted without reasonable or 

probable cause.” (§ 995, subd. (a)(1)(B).) In reviewing the trial court’s ruling on a 

section 995 motion, we directly review the determination of the magistrate. (See People 
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v. Barba (2012) 211 Cal.App.4th 214, 227–228 (Barba).) As the parties’ legal citations 

indicate, generally we defer to the magistrate’s evidentiary findings. (See People v. 

Laiwa (1983) 34 Cal.3d 711, 718 [magistrate “is the finder of fact; the superior court . . . 

must draw every legitimate inference in favor of the information, and cannot substitute its 

judgment as to the credibility or weight of the evidence for that of the magistrate”]; 

Rogers v. Superior Court (1955) 46 Cal.2d, 3, 7 [“[a] defendant has been held to answer 

without reasonable or probable cause if his commitment is based entirely on incompetent 

evidence”]; Salazar v. Superior Court (2000) 83 Cal.App.4th 840, 842 [“ ‘an . . . 

information should be set aside only when there is a total absence of evidence to support 

a necessary element of the offense charged’ ”].) “ ‘A reviewing court may not substitute 

its judgment as to the weight of the evidence for that of the magistrate, and every 

legitimate inference that may be drawn by the reviewing court from the evidence must be 

drawn in favor of the information.’ ” (People v. Williams (1988) 44 Cal.3d 883, 925.)

Neither party cites law that applies directly to these particular circumstances, 

where the trial court has denied a section 995 motion to dismiss a count added by the 

District Attorney after a magistrate has conducted a preliminary hearing.2 We also are to 

be deferential in such circumstances: “ ‘[W]hen a district attorney files an information in 

the superior court, containing an offense not included in the commitment order signed by 

the magistrate who conducted the preliminary examination on the initial complaint, the 

court must uphold the information if the evidence adduced at the preliminary hearing is 

sufficient to support the new or additional charge [citation].’ [Citation.] ‘. . . [T]he 

district attorney is not bound by the view of the committing magistrate; he [or she] is free 

to file an information charging the highest offense which any reasonable construction of 

the evidence adduced at the preliminary hearing admits [citation]. . . . [I]f the defendant 

 

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 The District Attorney is authorized to add such a count pursuant to section 739, 

which states in relevant part: “When a defendant has been examined and committed . . . 

it shall be the duty of the district attorney . . . to file in the superior court of that 

county . . . an information against the defendant which may charge the defendant with 

either the offense or offenses named in the order of commitment or any offense or 

offenses shown by the evidence taken before the magistrate to have been committed.”
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moves to dismiss the information under these circumstances, the question of his guilt or 

innocence is not before the court nor does the issue concern the quantum of evidence 

necessary to sustain a judgment of conviction. On the contrary, the court should decide 

from the evidence adduced at the preliminary hearing, without attempting to reconcile 

conflicts or judge the credibility of the witnesses, whether there is reasonable or probable 

cause to believe the defendant guilty of the offense charged.’ ” (Barba, supra,

211 Cal.App.4th at pp. 227–228.) 

II.

The Elements of Aggravated Kidnapping

“Any person who kidnaps or carries away any individual to commit robbery” is 

guilty of an aggravated kidnapping and subject to an indeterminate life sentence in state 

prison. (§ 209, subd. (b)(1).) This is only the case “if the movement of the victim is 

beyond that merely incidental to the commission of, and increases the risk of harm to the 

victim over and above that necessarily present in,” the robbery. (§ 209, subd. (b)(2).) 

The two requirements of kidnapping for robbery—movement of the victim that is 

not merely incidental to the commission of the robbery, and which substantially increases 

the risk of harm over and above that necessarily present in the crime of robbery itself, 

“ ‘are not mutually exclusive, but interrelated.’ ” (People v. Dominguez (2006) 

39 Cal.4th 1141, 1152, quoting People v. Rayford (1994) 9 Cal.4th 1, 12, overruled on 

other grounds in People v. Acosta (2002) 29 Cal.4th 105, 118–120 & fn. 7.) In analyzing 

whether the movement was incidental to the commission of the underlying crime, we 

consider the “ ‘ scope and nature’ of the movement,” including the actual distance 

moved, and “the context of the environment in which the movement occurred.” 

(Rayford, at p. 12.) “ ‘Indeed, when in the course of a robbery a defendant does no more 

than move his victim around inside the premises in which he finds him . . . his conduct 

generally will not be deemed to constitute the offense proscribed by section 209. 

Movement across a room or from one room to another, in short, cannot reasonably be 

found to be asportation “into another part of the same county.” ([§ 207].)’ ” (Id. at 

pp. 12–13, quoting People v. Daniels (1969) 71 Cal.2d 1119, 1140.) However, as our 
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colleagues in Division One of this appellate district have recently explained, “ ‘There 

is . . . no minimum distance a defendant must move a victim to satisfy’ this element.” 

(People v. Simmons (2015) 233 Cal.App.4th 1458, 1471 (Simmons).) Further, “ ‘[t]here 

is no rigid “indoor-outdoor” rule by which moving a victim inside the premises in which 

he is found is never sufficient asportation for kidnapping for robbery while moving a 

victim from inside to outside (or the reverse) is always sufficient.’ . . . Simply stated, ‘the 

movement must be more than incidental and must increase the inherent risk of harm.’ ” 

(Ibid.)

III.

Analysis

Certainly, petitioner’s actions increased the risk of harm to Medina, and petitioner 

does not contend otherwise. Instead, petitioner argues that Medina’s movement was 

incidental to robbery. That is one inference, but not the only one that can be drawn from 

the evidence presented to the magistrate. For example, there is no evidence that 

petitioner believed the marijuana was inside Medina’s home or even in Medina’s 

possession. Medina merely testified that petitioner and others jumped him when he was 

outside, 30 feet from the door of his house, and demanded that he tell them the location 

of “the marijuana.” Neither the attackers nor Medina indicated it was or might be in the 

house. Instead, Medina told his attackers that he did not know what they were talking 

about. There also is no evidence that once everyone was inside the house, Medina or his 

wife indicated that they knew anything about the marijuana their attackers sought, or that 

the attackers made any effort to search the house for marijuana. Instead, they continued 

to attack Medina, and attacked his wife as well.

The evidence is susceptible of an inference that petitioner moved Medina for 

reasons that were beyond that of facilitating a robbery of marijuana that was located 

inside his house. For example, a reasonable fact finder could conclude that petitioner did 

so to commit robbery—and additional crimes of violence against Medina and whoever 

else was inside the house, such as Medina’s wife—by forcing Medina and/or his wife to 

reveal the location of the marijuana, which could have been kept elsewhere. Therefore, 
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the People met their burden of showing probable cause to believe defendant was guilty of 

aggravated kidnapping. (Barba, supra, 211 Cal.App.4th at pp. 227–228.)3

As the trial court concluded, these facts are similar to those discussed in Simmons. 

There, defendants, among other things, confronted two victims outside the home of one 

of them and moved them a significant distance up the front steps and into the home. 

(Simmons, supra, 233 Cal.App.4th at p. 1472.) The movement not only increased the 

likelihood of harm to these victims, but also “allowed defendants to engage in additional 

and more dangerous crimes by hiding their victims from public view and providing 

access to additional victims, and it increased the possibility of something going awry and 

somebody getting hurt.” (Ibid.) This arguably is true for the circumstances of the present 

case as well. 

Petitioner seeks to distinguish Simmons by arguing that “the defendants in 

Simmons did not have a specific target or object of the robbery” while here, petitioner 

“always intended to steal marijuana that was in the home.” However, petitioner does not 

provide evidence to support this distinction. His arguments, and the cases he cites, are 

premised on his unsupported factual contention that he believed the marijuana was in 

Medina’s house. (See People v. Daniels, supra, 71 Cal.2d at pp. 1130–1131 [defendants 

who moved victims around their houses caused “brief movements . . . solely to facilitate” 

their crimes of robbery and rape]; People v. Washington (2005) 127 Cal.App.4th 290, 

299, 300 [concluding defendants’ movement of bank employees inside a bank about 25 

feet to a vault room did not justify an aggravated kidnapping charge]; People v. Williams 

(1970) 2 Cal.3d 894, 901–903 [robbers moving their victims around a gas station did not 

support a kidnapping conviction].) Therefore, he does not establish that Medina’s 

movement was merely incidental to petitioner’s efforts to rob him of marijuana stored 

somewhere in Medina’s house.

 

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 Of course, our conclusion has no bearing on whether a jury will ultimately 

convict or acquit petitioner of this offense; it merely means the People may proceed to 

prosecute petitioner for it.
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In short, the trial court properly denied petitioner’s section 995 motion to dismiss 

Count 1, the aggravated kidnapping charge.

DISPOSITION

Petitioner’s petition for a writ of prohibition and/or mandate is denied and our 

alternative writ or order to show cause is discharged. Upon this decision becoming final, 

our previous order to stay proceedings below is vacated.
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STEWART, J.

We concur.

RICHMAN, Acting P. J.

MILLER, J.
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