Can a person get charged /punished for the number of people presents in the home during the crime (example 5 people home equals 5 counts of 211 pc)? If one of the victims claim to have been moved to the garage during the crime is that considered kidnapping and constitutes a kidnapping charge?
Criminal Defense Attorney
Yes and maybe. Robbery is taking property from the presence of a person by fear or force. Penal Code §211. If there are multiple people who are jointly in possession of the property, there are multiple robberies.
Kidnapping is the forced movement of a person. The movement must be for a substantial distance, not just incidental to a crime. For instance, if the robber made a store clerk take a couple of steps to the cash register, that would not be kidnapping. However, if the movement increases the risk of harm to the victim -- forcing the store clerk into a back room, for instance -- it would support a kidnapping conviction. Kidnapping for purposes of robbery is punishable by life in prison with the possibility of parole. Penal Code §209.
Please understand that this is a general discussion of legal principles by a California lawyer and does not create an attorney/client relationship. It's impossible to give detailed, accurate advice based on a few sentences on a website (and you shouldn't provide too much specific information about your legal matter on a public forum like Avvo, anyway). You should always seek advice from an attorney licensed in your jurisdiction who can give you an informed opinion after reviewing all of the relevant information.
Criminal Defense Attorney
Because robbery is the taking of property from a person by force or fear, the property can be taken from the victim directly or from their "immediate presence." For example, if a person walks into a 7-11 store and points a gun at the clerk behind the register, then walks to the beer cooler and takes a 12-pack, that's robbery. The clerk is in possession of the goods in the store and they're all considered in his immediate presence. Change the scenario just a bit - now the guy walks in, pulls a gun on a customer in the store and demands his wallet. That person is a victim of robbery, but the clerk is not.
Same analysis in the home invasion case, but with a twist. Can all five people be victims? Possibly, but the specific facts of the case would determine if they were truly victims of robbery or just present when a robbery of another person took place.
The movement aspect of a kidnapping charge does require that increased risk of harm. It's not measured in feet, but in the change in circumstances and additional risk to the alleged victim. Even movement from one room to another can count, but it doesn't necessarily. Again - the specific facts of the case dictate whether or not it will meet the definition of kidnap or not.