Brief Bank # B-893 (Re: F 9.52.1 n4 [Kidnapping To Commit Sex Offense: Substantial Distance Requirement For Simple Kidnapping Must Be Established].)
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UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
U.S. Court of Appeals Docket Number: 99-16139
Lower Court Docket Number: CV-F-96-5107-AWI/SMS-P
JOHN DOE,
Petitioner-Appellant,
v.
FRANCISCO ALARCON,
Respondent-Appellee.
__________________________________________
APPEAL FROM THE JUDGMENT OF THE
U.S. DISTRICT COURT, EASTERN DISTRICT
STATE OF CALIFORNIA
HONORABLE ANTHONY W. ISHII,
DISTRICT COURT JUDGE
APPELLANT’S OPENING BRIEF
THOMAS LUNDY
Attorney at Law
CALIFORNIA STATE BAR #: 57656
2500 Vallejo Street, Suite 200
Santa Rosa, CA 95405
(707) 524-8112
Attorney for Appellant
JOHN DOE
QUESTION PRESENTED
Can a conviction of kidnapping to commit robbery be upheld when the same evidence would have been insufficient to support a conviction for the lesser included offense of simple kidnapping?
SUMMARY OF ARGUMENT
Petitioner is serving a life sentence pursuant to his conviction of kidnapping to commit robbery (California Penal Code § 209) based on an asportation of only 3-5 steps. This evidence was constitutionally insufficient to prove the asportation element for kidnapping. Jackson v. Virginia, 443 U.S. 307 (1979).
Under California law, all of the elements of simple kidnapping (Penal Code § 207) are included in a charge of kidnapping for robbery (Penal Code § 209). See Conde v. Henry, 98-56445 (9th Cir. 12/3/99) 99 DAR 12233. Hence, because the asportation in the present case of only 3 to 5 steps would have been insufficient to prove simple kidnapping under uncontroverted California law (see, e.g., People v. Green, 27 Cal.3d 1, 67 (1980)), such asportation was also constitutionally insufficient to prove kidnapping for robbery.
STATEMENT OF THE CASE
The Appellate Record
This action sought review of the state appellate court’s affirmance of petitioner’s conviction. The Clerk’s Transcript (hereinafter, “CT”) and the Reporter’s Transcript (hereinafter, “RT”) were filed in the District Court by respondent. “RTS” refers to the Supplemental Reporter’s Transcript of the resentencing proceedings in Kern County Superior Court held on January 26, 1993. [Footnote 1] No new evidence or testimony was presented in the District Court other than the matters referenced in the petition for writ of habeas corpus.
Nature Of The Case
The detention complained of by petitioner in his application for a writ of habeas corpus arose out of a state court conviction entered in Kern County Superior Court on October 13, 1992. Petitioner was convicted of a violation of Penal Code § 209(b) (kidnapping to commit robbery), as well as several other lesser charges. (CT 737-40, ER 1-4.)
The trial judge originally sentenced petitioner to the California Youth Authority. (RTS 14-17, ER 81-83; CT 741-42, ER 5-6.)
However, petitioner was returned from CYA as ineligible under Welfare and Institutions Code § 1731.4, because of the life sentence imposed for the Penal Code § 209(b) (kidnapping to commit robbery) charge. (RTS [Footnote 2] 2, ER 80.) The court then sentenced petitioner to life with the possibility of parole for the kidnapping for robbery (PC § 209(b)) conviction with a four-year enhancement for firearm use pursuant to Penal Code § 12022.5. (RTS 15-18, ER 81A-84.)
Petitioner appealed his convictions to the Fifth District Court of Appeal contending, inter alia, that the evidence was insufficient to support the kidnapping for robbery conviction. On November 9, 1994, the court affirmed the judgment in People v. Doe (F018682). The portion of the opinion relevant to this appeal is included in the excerpt of record. (ER 85-94.)
Petitioner sought rehearing in the Court of Appeal based, inter alia, on the court’s failure to address his contention that aggravated kidnapping under Penal Code § 209 requires no less asportation than does simple kidnapping. (ER 95-97.) The Court of Appeal denied the Petition for Rehearing.
Petitioner sought review in the California State Supreme Court (S043808). (ER 98-100.) On February 15, 1995, the Supreme Court denied the Petition for Review. (ER 100A.)
Petitioner filed a Petition for Writ of Habeas Corpus in the United States District Court for the Eastern District on February 6, 1996. This petition raised several claims including the insufficiency of the evidence to support the aggravated kidnapping conviction. (ER 101-106.)
On September 10, 1998, all claims but the one challenging the sufficiency of the evidence were dismissed. (See ER 114.)
On November 29, 1998, the Magistrate’s Report and Recommendation concluded that asportation of 3-5 steps was sufficient to support a conviction of aggravated kidnapping under California Penal Code § 209 even though such asportation would have been insufficient as a matter of law to support a conviction for simple kidnapping under Penal Code § 207. (ER 112-23.)
Petitioner filed objections to the Magistrate Judge’s Report and Recommendation on December 21, 1998, contending that if the evidence was insufficient to prove simple kidnapping it must also be insufficient to prove kidnapping to commit robbery. (See ER 124-26.)
On April 27, 1999, the Court entered an order adopting the Magistrate Judge’s Findings and Recommendations and denying petitioner’s application for a writ of Habeas Corpus. (ER 126-126A.)
Petitioner filed a notice of appeal and request for Certificate of Probable Cause on May 7, 1999. (ER 127-28.)
Judge Anthony W. Ishii denied petitioner’s request for a Certificate of Probable Cause for the reasons stated in his order dated May 25, 1999. (ER 129-30.)
On June 9, 1999, petitioner filed a Petition for Issuance of a Certificate of Probable Cause in this Court. (ER 131-36.)
On November 23, 1999, this Court issued a Certificate of Probable Cause. (ER 137.)
Petitioner is currently in the custody of the California Department of Corrections serving his life sentence under the kidnapping for robbery conviction.
Statement Of Facts
Petitioner was convicted of a series of crimes which occurred during a single continuous course of conduct over a short period of time on December 17, 1991. (RT 129, ER 13.) Although petitioner was only seventeen when the crimes were committed, he was tried as an adult. (RT 446, ER 66.)
1. Prosecution Evidence
a. The Initial Intrusion
The incident which led to petitioner’s convictions took place inside a residence owned by Ms. L and her husband, who also owned a Chinese restaurant in town. (RT 145, 160, 305-306, ER 14, 27, 39-40.) Others who lived in the house were Ms. L’s daughter, Ms. M, Ms. L’s niece, Ms. S, and some cooks from the restaurant. (RT 145-147, 160, 305-306, ER 14-16, 27, 39-40.)
About 1:30 in the afternoon, Ms. S was watching television in the sitting room when she heard dogs barking. (RT 148, 207, ER 17, 36.) Suddenly, petitioner came into the sitting room from the kitchen. (RT 148-149, ER 17-18.) He had a gun in his hand. (RT 149, ER 18.) Petitioner told Ms. S to lie on the floor. (RT 150, ER 19.) When she did, he bound her feet and hands with duct tape. (RT 150, ER 19.) He told her he wanted money. (RT 150, ER 19.)
While she was lying on the floor, Ms. S heard others enter the house. (RT 150-151, ER 19-20.) She heard two male voices and two female voices. (RT 151, 155, ER 20, 22.) She heard conversations in English, Cantonese, and Vietnamese. (RT 150, 162, 164-165, ER 19, 29, 30-31.) In addition, she heard sounds of someone searching through the house. (RT 156-159, 161-162, ER 23-26, 28-29.) At some point, a towel was thrown over her head. (RT 154, ER 21.)
b. The Movement For 3-5 Steps Into The House [Footnote 3]
About a half hour after the initial intrusion, Ms. L, the owner of the house, attempted to open the front door. (RT 166, 310, ER 32, 41.) Something was jamming the door. (RT 310, ER 41.) When she got the door slightly ajar, Ms. L saw people she did not know, including petitioner, in her house. (RT 310, ER 41.) Petitioner had a gun in his hand. (RT 311, ER 42.) Ms. L turned and ran. (RT 310, ER 41.)
Within 3 to 5 steps, she fell to the ground. (RT 312-313, ER 43-44.) Petitioner followed her outside and ordered her into the house. (RT 313, ER 44.) Petitioner had hold of her hair as she walked into the house. (RT 313, 322, ER 44, 46.)
c. The Room-To-Room Movement [Footnote 4]
Once inside the house, petitioner led Ms. L from room to room asking her where the money was. (RT 321, 323, 334-335, ER 45, 47, 48-49.) When they got to Ms. L’s bedroom, another person, by the name of Mr. Y, bound her with duct tape. (RT 321-322, ER 45-46.) Petitioner and Mr. Y were speaking English and Vietnamese, and Ms. L could not understand what they were saying. (RT 321, ER 45.)
d. Petitioner’s Arrest And Statement To The Police
While petitioner was still in the house the police arrived and arrested petitioner and Mr. Y. (RT 181-83, 275, ER 33-35, 38.)
Shortly after his arrest, petitioner gave a statement to police officers. (RT 381-384, ER 50-53.) In this statement, petitioner admitted being in L’s residence. (RT 394, ER 54.) He said he entered the house through a window at the back door. (RT 411, ER 62.) (However, there was no window at the back door.) (RT 422, ER 64.)) He entered with the purpose of finding money. (RT 396, 408, 414, ER 56, 61, 63.) Petitioner also admitted bringing a lady who had knocked at the front door into the house. (RT 394-395, ER 54-55.) However, he denied that he had possessed a gun or that he had bound any of the three people with duct tape. (RT 398-400, 406, ER 57-59, 60.)
2. Defense Case
The defense contended that the evidence was insufficient to permit a conviction of kidnapping to commit robbery. (CT 257-62, ER 7-12; RT 612, ER 79.)
Also, petitioner, testifying in his own behalf, denied participating in the crimes. (RT 445-460, ER 65-78A.)
ARGUMENT
I
BECAUSE THE EVIDENCE WAS INSUFFICIENT TO PROVE THE LESSER INCLUDED
OFFENSE OF SIMPLE KIDNAPPING IT WAS ALSO INSUFFICIENT
TO PROVE THE GREATER OFFENSE OF KIDNAPPING TO COMMIT ROBBERY
A. Summary Of Argument
Petitioner is serving a life sentence pursuant to his conviction of kidnapping to commit robbery (California Penal Code § 209) based on an asportation of only 3-5 steps. This evidence is constitutionally insufficient to prove the asportation element for kidnapping under settled California law. Jackson v. Virginia, supra, 443 U.S. 307 (1979).
Under California law, all of the elements of simple kidnapping (Penal Code § 207) are included in a charge of kidnapping for robbery (Penal Code § 209). See, e.g., Conde v. Henry, 98-56445 (9th Cir. 12/3/99) 99 DAR 12233. Hence, because the asportation in the present case of only 3 to 5 steps would have been insufficient to prove simple kidnapping under uncontroverted California law (see, e.g., People v. Green, 27 Cal.3d 1, 67 (1980)), such asportation was also constitutionally insufficient to prove kidnapping for robbery.
B. Argument Raised And Addressed Below
This issue was raised in the district court in a Petition for Writ of Habeas Corpus and Supporting Points and Authorities. (ER 101-111.)
It was rejected in the Findings and Recommendations which were adopted by the District Court. (ER 118-22.)
It was raised again in the objections to the Magistrate’s Findings and Recommendations. (ER 123-25.)
C. Standard Of Review And Prejudice
Review: This court reviews de novo the district court’s disposition of a sufficiency of evidence claim on habeas corpus. Mikes v. Borg, 947 Fed.2d 353, 356 (9th Cir.1991). Under Jackson v. Virginia, supra, 443 U.S. 307 (1979), due process requires the reviewing court to determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 319, emphasis in original; McMillan v. Gomez, 19 Fed.3d 465, 469 (9th Cir. 1994). In making this determination, “all of the evidence is to be considered.” Jackson v. Virginia, supra, 443 U.S. at 319.
Prejudice: A conviction that fails to meet the Jackson v. Virginia standard violates due process and entitles the convicted defendant to habeas relief. Mikes v. Borg, supra, 947 Fed2d 353, 356 (9th Cir. 1991).
D. Petitioner Was Erroneously Convicted Of Aggravated Kidnapping Based On Evidence Which Wasn’t Sufficient To Convict Him Of Simple Kidnapping
1. Simple Kidnapping (PC § 207) Requires Much Greater Movement Than 3-5 Steps
The California law which was applicable at the time of the offense, required movement for a “substantial distance” to support a conviction for simple kidnapping under Penal Code § 207. See, People v. Caudillo, 21 Cal.3d 562, 574 (1978). [Footnote 5] In Caudillo (21 C3d at 572), the California Supreme Court said that kidnapping “…must involve a movement which is more than that which would be regarded as trivial, slight or insignificant.” The “determining factor…is the actual distance of the victim’s movements….” Ibid.
Under the Caudillo actual distance rule, movement for as much as 90 feet is insufficient as a matter of law to support a conviction for kidnapping. See People v. Green, 27 Cal.3d 1, 67 (1980) [90 feet or less is “legally insufficient”]; see also People v. Reyes-Martinez, 14 Cal.App.4th 1412, 1415-18 (1993) [prejudicial error to instruct the jury that asportation of 500 feet is “sufficiently substantial to sustain a kidnap conviction]; see also People v. Daly, 8 Cal.App.4th 47, 56-57 (1992).
Hence, it would have been a patent violation of Jackson v. Virginia, supra, 443 U.S. 307 (1979) to have convicted petitioner of simple kidnapping based on the movement of 3 to 5 steps.
2. Simple Kidnapping (PC § 207) Is A Lesser Included Offense of Aggravated Kidnapping (PC § 209)
It is beyond question that, under California law, simple kidnapping (Penal Code § 207) is a lesser included offense of aggravated kidnapping (Penal Code § 209). See Conde v. Henry, 98-56445 (9th Cir. 12/3/99) 99 DAR 12233 [trial court erred in denying defendant’s request for instruction on simple kidnapping as lesser included of kidnapping for robbery]; see also, People v. Bigelow, 37 Cal.3d 731, 755 (1984); People v. Green, supra, 27 Cal.3d 1, 68; People v. Smith, 13 Cal.App.4th 1182 (1993); People v. Mayes, 202 Cal.App.3d 908, 910 (1988); People v. Freddie John, 149 Cal.App.3d 798, 810 (1983); Talamantez v. Superior Court, 122 Cal.App.3d 629, 639 (1981); People v. Panky, 82 Cal.App.3d 772, 776 (1978); People v. Bailey, 38 Cal.App.3d 693, 700 (1974) [judgment modified to simple kidnapping as lesser included of kidnapping for robbery]; see also 1999 CJER Mandatory Criminal Jury Instructions Handbook, § 2.58, p. 52; CALJIC (5th Ed. 1988) Appendix C, p. 530.
The law is so clear on this point that the California Attorney General has conceded it in other cases. (See Conde v. Henry, 98-56445 (9th Cir. 12/3/99) 99 DAR 12233 [Attorney General apparently did not contest court’s conclusion that simple kidnapping is lesser included of kidnapping to commit robbery]; People v. Davis, 191 Cal.App.3d 1365, 1368 (1984) [Attorney General concedes that “simple kidnapping is a lesser included offense of kidnapping for the purpose of robbery….”].)
It is true that the aggravated kidnapping cases typically focus on the two pronged Daniels (People v. Daniels, 71 Cal.2d 1119, 1134-39 (1969)) test which requires consideration of whether the movement was incidental to the intended offense (e.g., robbery) and whether the movement increased the risk of harm to the victim. (See, e.g., People v. Rayford, 9 Cal.4th 1 (1994).) However, the Daniels test was never intended to change the status of simple kidnapping as a lesser included offense of kidnapping for robbery. See People v. Martinez, 20 Cal.4th at 247 (1999), Mosk, J., dissenting [“[Daniels] …added additional requirements for kidnapping under [Penal Code] 209…” [Emphasis in original]; People v. Rayford, supra, 9 Cal.4th 1, 14 [asportation for aggravated kidnapping is “more stringent” than for simple kidnapping]. The post-Daniels cases have never questioned the status of simple kidnapping as a lesser included of kidnapping for robbery. (See cases pp. 14-5, above.)
In sum, kidnapping for robbery “requires at a minimum that the defendant’s acts constitute a simple kidnapping.” (Emphasis added.) People v. Smith, 18 Cal.App.4th 1192, 1196 (1992).
3. Conviction Of Kidnapping For Robbery Should Not Be Based On Less Evidence Than Would Be Necessary To Convict Of Simple Kidnapping
“As is invariably true of a greater and lesser included offense — [the lesser] — requires no proof beyond that which is required for conviction of the greater….” (Brown v. Ohio, supra, 432 U.S. 161, 167.) Hence, because simple kidnapping is a lesser included of kidnapping for robbery, a conviction for kidnapping for robbery cannot be based on less evidence than would be necessary to convict of simple kidnapping. See People v. Lohbauer, 29 Cal.3d 364, 369 (1981); see also U.S. v. Dinkane, 17 Fed.3d 1192, 1198 (9th Cir. 1994) [lesser included offense is “a ‘subset” of the greater offense.
Yet this is exactly what happened in the present case: Petitioner was convicted of kidnapping for robbery based on evidence which was legally insufficient to convict him of simple kidnapping. (See pp. 13-14, above.)
4. If The Evidence Was Insufficient To Convict Of The Lesser Offense It Must Also Be Insufficient To Commit Of The Greater
In light of the above, the magistrate erroneously concluded that it was proper to convict petitioner of aggravated kidnapping based on evidence which could not have convicted him of simple kidnapping. If the asportation was insufficient to sustain a conviction of the lesser included offense of simple kidnapping, then it is self evident that the greater offense cannot be upheld either. See Brown v. Ohio, 432 U.S. 161, 168 (1977); Wrublewski v. McInerney 166 Fed.2d 243, 244 (9th Cir. 1948) [acquittal of lesser included offense barred subsequent prosecution for the greater].
5. Apart From The Lesser Included Analysis, The Asportation For Kidnapping For Robbery Is “More Stringent” Than For Simple Kidnapping
The California Supreme Court has made it clear that the standard of asportation for aggravated kidnapping is “more stringent” than for simple kidnapping. People v. Rayford, supra, 9 Cal.4th 1, 14. Hence, if the evidence is insufficient as a matter of law to meet the standard for simple kidnapping, it follows, a fortiori, that it is also insufficient under the “more stringent” standard for aggravated kidnapping. Hence, under this analysis, as well, the legal insufficiency of the evidence to meet the standard of asportation for simple kidnapping under Penal Code § 207 necessarily makes it insufficient to meet the “more stringent” standard for kidnapping for robbery under Penal Code § 209.
CONCLUSION
For the foregoing reasons the petition for writ of habeas corpus should be granted and petitioner’s conviction for kidnapping for robbery under Penal Code § 209 should be invalidated.
STATEMENT OF RELATED CASES
To counsel’s knowledge, there are no cases pending in this court which are related to the present one, per Circuit Rule 28-2.6.
Dated: February ____, 2000
____________________________
THOMAS LUNDY
Attorney for Petitioner
JOHN DOE
FOOTNOTES:
Footnote 1: Petitioner has included relevant portions of the “CT,” “RT” and “RTS” in the Excerpt of the Record. The original transcript page numbers appear at the top of the page; the ER pagination at the bottom.
Footnote 2: “RTS” refers to the Supplemental Reporter’s Transcript of the resentencing proceedings in Kern County Superior Court held on January 26, 1993.
Footnote 3: This movement was held sufficient to support the kidnapping for robbery conviction. (ER 91-94.)
Footnote 4: This movement was held insufficient to support the kidnapping for robbery charge. (ER 89-91.)
Footnote 5: People v. Martinez, 20 Cal.4th 225 (1999) expressly overruled Caudillo and held that where the evidence permits, the jury may properly consider not only the actual distance the victim was moved, “but also such factors as whether the movement increased the risk of harm above that which existed prior to the asportation, decreased the likelihood of detection, and increased both the danger inherent in a victim’s foreseeable attempts to escape and the attacker’s enhanced opportunity to commit additional crimes.” (20 Cal.4th at 233.)
However, this new and expanded interpretation of the asportation requirement may not be applied retroactively to cases in which the crime was committed prior to the decision in Martinez. (20 Cal.4th at 238-40.) Due process principles require that the Caudillo definition of substantial distance be applied to petitioner. (See Bouie v. City of Columbia, 378 U.S. 347 (1964) [the Due Process Clause which protects criminal defendants against novel developments in judicial doctrine].)
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
U.S. Court of Appeals Docket Number: 99-16139
Lower Court Docket Number: CV-F-96-5107-AWI/SMS-P
JOHN DOE,
Petitioner-Appellant,
v.
FRANCISCO ALARCON,
Respondent-Appellee.
__________________________________________
APPEAL FROM THE JUDGMENT OF THE
U.S. DISTRICT COURT, EASTERN DISTRICT
STATE OF CALIFORNIA
HONORABLE ANTHONY W. ISHII,
DISTRICT COURT JUDGE
APPELLANT’S REPLY BRIEF
THOMAS LUNDY
Attorney at Law
CALIFORNIA STATE BAR #: 57656
2500 Vallejo Street, Suite 200
Santa Rosa, CA 95405
(707) 524-8112
Attorney for Appellant
JOHN DOE
I.
RESPONDENT CONCEDES THAT DOE SHOULD NOT BE LIABLE FOR
AGGRAVATED KIDNAPPING IF THE EVIDENCE WOULD NOT HAVE BEEN
SUFFICIENT FOR SIMPLE KIDNAPPING
Respondent concedes that if the evidence was insufficient to convict Doe of the lesser included offense of simple kidnapping (PC 207) then it was also insufficient to convict him of the greater offense of kidnapping for robbery (PC 209). RB 4-5.
Hence, the parties are in agreement that the question in the present case is whether the record contains substantial evidence of simple kidnapping under the applicable California law.
II.
A REVIEWING COURT WOULD HAVE BEEN “COMPELLED TO REVERSE”
IF DOE HAD BEEN CONVICTED OF SIMPLE KIDNAPPING
A. Actual Distance Is The “Sole Criterion” Which May Be Considered
The parties agree that the sufficiency of the evidence in the present case must be measured by the standard articulated in People v. Caudillo, 21 Cal.3d 562 (1978). See RB 10, fn. 4. However, the parties disagree as to whether factors other than actual distance, (i.e., the change in the context of the environment and whether the movement was incidental in nature) can be considered under the Caudillo standard. Respondent asserts that these additional factors can be considered to find that a simple kidnapping was proven even though the movement was only 9 to 15 feet. RB 4-5 [“The substantiality of the movement is not measured by actual distance …”]. On the other hand, Doe argues that only actual distance may be considered. AOB 13-14.
Caudillo decisively resolves this dispute in Doe’s favor.
Caudillo could not have made it more clear that actual distance is the sole criterion for assessing asportation:
“The People seek to introduce considerations-other than actual distance-as determinative of what constitutes “sufficient movement” of the victim to constitute the offense of kidnapping pursuant to Penal Code section 207. The People claim that intimations in Stender suggest that, in the case before us, we should consider Maria’s movement substantial because defendant moved Maria to the storage room to avoid detection, thereby increasing her danger, then waited 20 minutes before he moved her to her apartment. In our view, this position is lacking in substance. Neither the incidental nature of the movement, the defendant’s motivation to escape detection, nor the possible enhancement of danger to the victim resulting from the movement is a factor to be consider in the determination of substantiality of movement for the offense of kidnapping. Such factors would be relevant in a Daniels situation of aggravated kidnapping-a kidnapping for the purpose of robbery (Pen. Code, § 209)-but we held in Stanworth that the Daniels test was not applicable to simple kidnapping under Penal Code section 207.”
Caudillo, supra, at p. 574 [emphasis added].
In short, under Caudillo “distance … became the sole criterion for assessing asportation.” Martinez, 20 C4th at 234 [emphasis added].
And, Martinez made it equally clear that Caudillo remained the law of the land until it was overruled in Martinez, notwithstanding conflicting lower court opinions. “As for the Court of Appeal decisions, if they purposefully failed to follow the ‘actual distance’ rule of Caudillo, they erred under the principles set forth in Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450 (1962). [Citation.]” Id. at 240.
In sum, until it was overruled, Caudillo’s actual distance standard “was the rule of law as announced by the state’s highest court ….” Martinez, 20 Cal.4th at 240.
Accordingly, the non-distance factors relied upon by respondent should not be considered in deciding whether the evidence was sufficient to convict Doe of simple kidnapping. The one and only factor relevant for that purpose is actual distance. Caudillo, 21 Cal.3d at 574; see also Martinez, 20 C4th at 234; People v. Stanworth, 11 Cal.3d 588, 601 (1974). [Footnote 6]
B. Under The Actual Distance Standard Doe Was Not Guilty Of Simple Kidnapping
Under Caudillo a reviewing court “would be compelled to reverse for insufficiency of evidence” for distances far in excess of the 9-15 feet in the present case. Martinez, 20 Cal.4th at 239 [since the courts reversed in People v. Brown, 11 Cal.3d 784, 788 (1974) [75 feet] and People v. Green, 27 Cal.3d 1, 67 (1980) [90 feet], reversal “would be compelled” for a distance of 65 feet]. It follows, a fortiori, that a reviewing court “would be compelled” to find the evidence legally insufficient to support a conviction for simple kidnapping in Doe’s case.
C. Because The Evidence Is Insufficient To Convict Doe Of Simple Kidnapping His Kidnapping For Robbery Conviction Cannot Stand
As a lesser included offense of kidnapping for robbery, simple kidnapping is a “subset” of kidnapping for robbery. See Schmuck v. United States, 489 U.S. 705 (1989); see also U.S. v. Dinkane, 17 Fed.3d 1192 (9th Cir. 1994). Hence, if the evidence is insufficient to establish all the elements of the lesser simple kidnapping offense, that evidence is also necessarily insufficient to prove all the elements of the greater aggravated kidnapping offense. And, because the federal constitution requires the prosecution to prove every element of the charged offense beyond a reasonable doubt (In re Winship, 397 U.S. 358 (1970)), a conviction for the greater offense cannot be affirmed where the evidence was constitutionally insufficient to convict of the lesser included offense. See Jackson v Virginia, 443 U.S. 307 (1979).
III.
THE LOWER COURT AUTHORITY CITED BY RESPONDENT SHOULD NOT BE RELIED
UPON BY THIS COURT TO AUTHORIZE CONVICTION FOR AGGRAVATED
KIDNAPPING BASED ON MOVEMENT WHICH WOULD NOT SATISFY THE CAUDILLO
ACTUAL DISTANCE STANDARD
Even though respondent correctly concedes that conviction for aggravated kidnapping is improper if there is insufficient evidence of simple kidnapping (RB 4-5), the Court of Appeal cases cited by respondent imply a contrary rule by affirming convictions for aggravated kidnapping based on asportation which would not have satisfied the Caudillo actual distance standard. See e.g., People v. Salazar, 33 Cal.App.4th 341, 347 (1995) [29 feet]; see also People v. Jones,75 Cal.App.4th 616, 629-30 (1999) [25-40 feet]. However, to the extent that these cases imply that simple kidnapping — as defined by the actual distance standard — is not included in the offense of aggravated kidnapping, they conflict with the California Supreme Court’s pronouncement that aggravated kidnapping is “deemed to incorporate the definition of ‘kidnapping’ set forth in [Penal Code] 207.” People v. Green, 27 Cal.3d 1, 66 fn. 57(1980); People v. Daniels, 71 Cal.2d 1119, 1131 (1969); see also AOB pp. 14-16. Hence, these lower court decisions are in violation of California’s jurisdictional principles. See Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450, 454-56. Nor may this court rely on these lower court decisions since they are not authority from California’s highest court. See Wainwright v. Goode, 464 U.S. 78, 84 (1983) [federal habeas review is governed by the law as pronounced by the state’s highest court].
In point of fact, California Supreme Court authority is fully consistent with the established rule that simple kidnapping is necessarily included in aggravated kidnapping. See AOB pp. 14-16. No Supreme Court case has ever affirmed an aggravated kidnapping conviction based on asportation that was insufficient, as a matter of law, to satisfy the Caudillo actual distance standard. The shortest distance for which a conviction has been affirmed was in People v. Rayford, 9 Cal.4th 1 (1994) where the distance (105 feet) exceeded the distances found to be legally insufficient in other cases; e.g., Brown, supra, [75feet]; Green, supra, [90 feet]. Moreover, the question of whether aggravated kidnapping may be based on asportation which does not satisfy Caudillo was neither addressed by the parties nor considered by the court in Rayford. The issue in Rayford was “whether the increase in risk of harm to the victim must be ‘substantial.’” Rayford, 9 Cal.4th at 20. Therefore, even if the distance had been shorter, Rayford would not be authority for the proposition that a kidnapping for robbery conviction can be affirmed in a situation where the actual distance standard for simple kidnapping would not have been met. See fn. 3, below.
In sum, notwithstanding the lower court opinions cited by respondent, under established California Supreme Court authority, simple kidnapping is a lesser included offense of aggravated kidnapping. See also Conde v. Henry, 198 F.3d 734, 739-40 (9th Cir. 1999). Therefore, at least for cases predating Martinez, the California Supreme Court does not authorize conviction for aggravated kidnapping based on movement which would be insufficient under the Caudillo actual distance rule.
CONCLUSION
For the forgoing reasons as well as those set forth in Appellant’s Opening Brief the evidence is insufficient to uphold Doe’s conviction for kidnapping to commit robbery.
Dated: March 17, 2000
____________________________
THOMAS LUNDY
Attorney for Petitioner
JOHN DOE
REPLY BRIEF FOOTNOTES:
Footnote 6: Respondent implies that a “change in environmental context” was somehow not included in the factors which Caudillo rejected. RB 10, fn. 4. However, by specifying actual distance as the “sole criterion” Martinez, 20 C4th at 234, Caudillo necessarily ruled out consideration of any other factor whether styled as a “change in environment,” increase in risk of harm or non-incidental movement. Caudillo, 21 Cal.3d at 574. Morover, a “change in the environmental context” is just another way of describing the increased risk of harm factor which Caudillo specifically rejected: “…a trier of fact cannot consider the significance of the victim’s changed environment without also considering whether that change resulted in an increase in the risk of harm to the victim.” Martinez, 20Cal.4th at 236.
