Brief Bank # B-820 (Re: F 9.54.1 n2 [Carjacking: Constitutional Vagueness Challenge Based On Phrase “Vicinity Of The Carjacking”].)
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION TWO
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
JANE DOE and
Defendants and Appellants.
OPENING BRIEF OF APPELLANT JANE DOE
Appeal From Final Judgment of Conviction
Superior Court, County of Riverside
The Honorable H. Dennis Myers
S. Michelle May
State Bar No. 111072
1800 Market St. # 38
San Francisco, CA 94102
Attorney for Jane Doe
By appointment of the Court of Appeal
II. PENAL CODE SECTION 209.5 IS UNCONSTITUTIONALLY VAGUE ON ITS FACE, BASED ON THE REQUIREMENT OF MOVEMENT A “SUBSTANTIAL DISTANCE FROM THE VICINITY OF THE CARJACKING”
In this Part, appellant will show that Penal Code section 209.5 is unconstitutionally vague on its face. In the next Part, appellant will show it is unconstitutionally vague as applied to appellant. The issue in Parts II and III have not been considered in any published opinion. [Footnote 1]
The constitutionality of the statute is a pure question of law which is reviewable though not raised below, based on this Court’s analysis in People v. Brown (1996) 42 Cal.App.4th 461, 470-471. Reviewability is discussed at greater length post, Part II(D).
A. Standards For Constitutional Vagueness Analysis
“That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.” (Connally v. General Construction Co. (1926) 269 U.S. 385, 391 [46 S.Ct. 126, 70 L.Ed. 322].)
Appellant will return to the Connally case, since it decides an issue strikingly similar to the one here. Suffice it to say Connally is followed, and still frequently cited. (See, e.g., People v. Superior Court (Caswell) (1988) 46 Cal.3d 381, 389; People v. Van Horn (1990) 218 Cal.App.3d 1378, 1401-1402.)
An unconstitutionally vague law cannot be applied to the extent it violates the Constitution. (1 Sutherland, Statutory Construction (5th ed. 1992), § 2.07 at pp. 36-44.) It is, in common parlance, “void for vagueness.” (E.g., Papachristou v. City of Jacksonville (1972) 405 U.S. 156, 162 [92 S.Ct. 839, 31 L.Ed.2d 110].) A stringent standard of adjudicating vagueness applies when the challenged law imposes criminal penalties. (Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. (1982) 455 U.S. 489, 498-499 [102 S.Ct. 1186, 71 L.Ed.2d 362].)
There are two ways in which a statute can be unconstitutionally vague: On its face, in which case the statute is invalid as to everyone (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1109), or as applied to a particular person or class of persons, in which case the statute is invalid as to that person or class. (Hale v. Morgan (1978) 22 Cal.3d 388, 404.) Our Supreme Court recently set forth the relevant standards:
A facial challenge to the constitutional validity of a statute or ordinance considers only the text of the measure itself, not its application to the particular circumstances of an individual. [Citation.] “‘“To support a determination of facial unconstitutionality, voiding the statute as a whole, petitioners cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute. . . . Rather, petitioners must demonstrate that the act’s provisions inevitably pose a present total and fatal conflict with applicable constitutional provisions.”’” [Citations.]
An as applied challenge may seek [relief] from a specific application of a facially valid statute or ordinance to an individual or class of individuals who are under allegedly impermissible present restraint or disability as a result of the manner or circumstances in which the statute or ordinance has been applied . . . . It contemplates analysis of the facts of a particular case or cases to determine the circumstances in which the statute or ordinance has been applied and to consider whether in those particular circumstances the application deprived the individual to whom it was applied of a protected right. [Citations.] When a criminal defendant claims that a facially valid statute or ordinance has been applied in a constitutionally impermissible manner to the defendant, the court evaluates the propriety of the application on a case-by-case basis to determine whether to relieve the defendant of the sanction. [Citation.]
(Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084.)
Courts do not lightly invalidate statutes on constitutional grounds. A statute is presumed to be constitutional and will be upheld unless its unconstitutionality “clearly, positively and unmistakably appears.” (Hale v. Morgan, supra, 22 Cal.3d at p. 404.)
At the same time, penal statutes may not be enlarged by judicial fiat. “The standards of certainty in statutes punishing for offenses is higher than in those depending primarily upon civil sanction for enforcement. . . . There must be ascertainable standards of guilt.” (Winters v. New York (1948) 333 U.S. 507, 515 [68 S.Ct. 665, 92 L.Ed. 840].) “[B]ecause of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity. This policy embodies ‘the instinctive distastes against men languishing in prison unless the lawmaker has clearly said they should.’ [Citation.]” (United States v. Bass, supra, 404 U.S. at p. 348; accord United States v. Wiltberger (1820) 18 U.S. 76, 95 [5 Wheat. 76, 5 L.Ed. 37] [Marshall, C. J.].) Judicial enlargements of statutory language also present fatal constitutional flaws based on principles similar to those prohibiting ex post facto laws. (Bouie v. City of Columbia (1964) 378 U.S. 347, 354 [84 S.Ct. 1697, 12 L.Ed.2d 894].)
Vague laws violate constitutional requirements by failing to provide a uniform standard for enforcement. “‘A vague law impermissibly delegates basic policy matters to policemen, judges and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.’ [Citation.] ‘Where the legislature fails to provide such minimal guidelines, a criminal statute may permit a “standardless sweep that allows policemen, prosecutors, and juries to pursue their personal predilections.”’ [Citations.]” (People v. Superior Court (Caswell), supra, 46 Cal.3d at pp. 389-390.)
Appellant does not suggest there is anything vague about the word “kidnapping,” or that she was not on notice her conduct was criminal and subject to punishment. But the challenged statute, section 209.5, provides punishments far beyond those of the kidnapping statute, section 207. It must therefore specify what conduct will result in the extra punishment.
B. Section 209.5 Is Void For Vagueness On Its Face
1. The “Vicinity” Clause Is Impermissibly Vague; The U.S. Supreme Court Has Held Synonymous Language To Be Impermissibly Vague As Well
“To withstand a facial vagueness challenge under the due process clause, a statute must satisfy two basic requirements. [¶] First, a statute must be sufficiently definite to provide adequate notice of the conduct proscribed. . . Second, a statute must provide sufficiently definite guidelines for the police in order to prevent arbitrary and discriminatory enforcement.” (Caswell, supra, 46 Cal.3d at pp. 389-390.)
The constitutional infirmity in this statute is in subdivision (b), element  (see ante, fn. 2). By its terms, the statute only applies if “the victim is moved a substantial distance from the vicinity of the carjacking.” (Emphasis added.) In order to convict a defendant of the aggravated kidnapping in section 209.5, a jury has to find, and a court has to find substantial evidence of, movement for substantial distance beyond “the vicinity of the carjacking.”
Thus, the jury and court must first determine: What location is “the vicinity of the carjacking,” from which the “substantial distance” is measured? And more importantly, what objective, evenhanded criteria are a jury and court expected to use, in order to determine if the statutorily required “substantial distance from the vicinity” criterion is satisfied?
Statutes are interpreted in accordance with their plain meaning. (DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 601.) This is not only common statutory interpretation, it is also fundamental due process of law as it applies to a penal statute, since a penal statute requires common and easily understandable language. “[A] fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed.” (McBoyle v. United States (1931) 283 U.S. 25, 27 [51 S.Ct. 340, 75 L.Ed. 816] [Holmes, J.]; accord People v. Godinez (1993) 17 Cal.App.4th 1363, 1370.)
The plain meaning of “vicinity” is “a surrounding area or district: neighborhood.” (Webster’s Ninth New Collegiate Dictionary (9th ed. 1991), p. 1314.) That doesn’t say anything more than “vicinity.” “Neighborhood” is defined as “a place or region near.” (Id. p. 792.) Thus, section 209.5 applies only if the victim is moved a substantial distance from an “area or district [or] neighborhood” surrounding the carjacking, i.e., a substantial distance from a “place or region near” the carjacking.
These terms all refer to some general area nearby, but they don’t say anything more. They provide no objective, evenhanded manner in which anyone can determine whether a victim has been moved a “substantial distance from the vicinity of” a carjacking.
Caselaw is even less helpful. Some cases say “vicinity” is the same as “neighborhood,” and is different from adjoining, abutting or inside. (Brown v. Miami Valley Hospital Society (1957) 104 Ohio App. 53 [146 N.E.2d 620, 626]; Jones v. Rogers (1905) 85 Miss. 802 [38 So. 742, 745].) Other cases say vicinity is not the same as “neighborhood”; it is a greater area. (Wilson v. Ford (1901) 190 Ill. 614, 624 [60 N.E. 876, 879]; Coyle v. Chicago & A. R. Co. (1887) 27 Mo. App. 584, 593.) If appellate judges can’t agree on whether “vicinity” is synonymous with a vague term such as “neighborhood,” how are trial judges and juries supposed to figure out what it means?
Still other cases have discussed the vagueness of the word “vicinity.” “Vicinity, when applied to a practical matter, might very readily cause disagreement in honest minds, for vicinity is not a matter of eyesight only, but for the judgment also.” (In re Hancock Street Extension (1851) 18 Pa. 26, 31.) Thus, a land description which uses the word “vicinity” will fail for indefiniteness. (Jones v. Rogers, supra, 38 So. at p. 745.) If the word “vicinity” can’t even stand in a mere conveyance of property, how is it supposed to be used as a uniform penal standard in the State of California, to mandate a term of imprisonment for life?
It cannot, as is shown by a seminal U.S. Supreme Court case in which a penal statute was declared void for vagueness. Appellant has already adverted to Connally v. General Construction Co., supra. Connally’s holding is equally applicable here.
In Connally, the State of Oklahoma had threatened to prosecute the defendant for violating a statute which required payment of wages no less than the wages “in the locality where the work is performed.” (Id., 269 U.S. at pp. 388-389.) The defendant challenged the statute as void for vagueness on various grounds, including “that the term ‘locality’ itself is fatally vague and uncertain.” (Id. at p. 390.)
The U.S. Supreme Court agreed. It first set forth the often-quoted standard (quoted above) requiring sufficient precision in penal statutes. (Id. at p. 391; ante, p. .) It then discussed the general characteristics of a statute that passes a vagueness test:
[Generally] the decisions of the court, upholding statutes as sufficiently certain, rested upon the conclusion that they employed words or phrases having a technical or other special meaning, well enough known to enable those within their reach to correctly apply them [citations], or a well-settled common-law meaning, notwithstanding an element of degree in the definition as to which estimates might differ [citations], or . . . ‘that, for reasons found to result either from the text of the statutes involved or the subjects with which they dealt, a standard of some sort was afforded.’ [Citation.]
(Id. at pp. 391-392.)
Connally used the above standards to hold that the word “locality” was unconstitutionally vague. Its analysis is completely applicable to this case:
Who can say, with any degree of accuracy, what areas constitute the locality where a given piece of work is being done? Two men, moving in any direction from the place of operations, would not be at all likely to agree upon the point where they had passed the boundary which separated the locality of that work from the next locality. It is said that this question is settled for us by [a prior Oklahoma case]. But all the court did there was to define the word ‘locality’ as meaning ‘place,’ ‘near the place,’ ‘vicinity,’ or ‘neighborhood.’ Accepting this as correct . . . the result is not to remove the obscurity, but rather to offer a choice of uncertainties. The word ‘neighborhood’ is quite as susceptible of variation as the word ‘locality.’ Both terms are elastic and, dependent upon circumstances, may be equally satisfied by areas measured by rods or by miles. [Citations.]
(Id., 269 U.S. at pp. 394-395 [emphasis added for terms at issue or synonymous terms].)
Thus, in holding that the term “locality” in a penal statute was unconstitutionally vague, the High Court equated the vagueness of “locality” to the equally vague terms “place,” “near the place,” “vicinity,” or “neighborhood.” These are exactly the terms with which we are now dealing in the current case; as seen in the dictionary and caselaw definitions of “vicinity” above (ante, p. ), which equate that term to “near the place,” “neighborhood,” and the like.
The High Court in Connally elaborated on the inherent vagueness of all of these terms:
The case last cited held that a grant of common to the inhabitants of a certain neighborhood was void because the term ‘neighborhood’ was not sufficiently certain to identify the grantees. In other connections or under other conditions the term ‘locality’ might be definite enough, but not so in a statute such as that under review imposing criminal penalties. Certainly, the expression ‘near the place’ leaves much to be desired in the way of a delimitation of boundaries; for it at once provokes the inquiry, ‘How near?’
(Id. at p. 395 [emphasis added].)
“The result is that the application of the law depends, not upon a word of fixed meaning in itself, or one made definite by statutory or judicial definition, or by the context or other legitimate aid to its construction, but upon the probably varying impressions of juries as to whether given areas are or are not to be included within particular localities. The constitutional guaranty of due process cannot be allowed to rest upon a support so equivocal.” (Connally, supra, 269 U.S. at p. 395.)
Appellant could not better describe the term “vicinity” in section 209.5. To be convicted of violating the statute, she was required to have moved the victim “a substantial distance from the vicinity of the carjacking.” Notably, she was not required to have moved the victim a substantial distance from the point of the carjacking. Rather, the movement had to be a “substantial distance” from the “vicinity”—i.e., a substantial distance outside the neighborhood of the carjacking, or outside the locality of the carjacking, or beyond an area near the carjacking. All of these terms “are elastic and, dependent upon circumstances, may be equally satisfied by areas measured by rods or by miles.” (Connally, supra, 269 U.S. at p. 395.)
This standard is as meaningless as that in Connally. Yet it is a standard essential to the operation of the statute, since section 209.5, subdivision (b) says the statute shall only apply if each of the three criteria therein are satisfied. When a provision of a statute essential to its operation is vague, indefinite and uncertain, the statute must be invalidated as contrary to the Fourteenth Amendment. (Lanzetta v. New Jersey (1939) 306 U.S. 451 [59 S.Ct. 618, 83 L.Ed. 888]; Connally v. General Construction Co., supra, 269 U.S. at p. 395.)
Furthermore, the word “vicinity” in section 209.5 does not have any of the general characteristics of a statute that passes a vagueness test, which were set forth in Connally. (Ante, p. .) In particular, as shown above, it not only has no well-settled common-law meaning, but common-law courts viewed the word as inherently vague.
The legal standard in this case was so nebulous that the two parties argued significantly different interpretations of it. The prosecutor argued based on language from CALJIC No. 9.54.1, that the movement only had to be “more than slight, brief or trivial.” (RT 400-401.) The defense argued the statutory language of section 209.5, that the movement had to be a substantial distance from the “vicinity” of the carjacking, and further argued the word “vicinity” has a common meaning of “neighborhood.” (RT 430.) In rebuttal, the prosecutor argued the statutory language of “substantial distance from the vicinity” was not the law, and argued the movement need only be “slight, brief or trivial.” (RT 436.)
That should be a red flag. In arguing to the jury, parties will differ significantly on the facts of the case, their interpretation, or their application to the law; that is the nature of our adversarial system. However, the law itself is supposed to be a constant, authoritatively given to the jury by the trial judge. (Bollenbach v. United States (1946) 326 U.S. 607, 612 [66 S.Ct. 406, 90 L.Ed. 350]; People v. Mahoney (1927) 201 Cal. 618, 626-627; People v. Whitehurst (1992) 9 Cal.App.4th 1045, 1050.) When parties end up arguing diametrically opposed versions of what they think a law means, chances are good that there is too much room for interpretation, and the law is too vague. So it was here.
2. No Proper Narrowing Construction Is Available
Nor can the statute be saved by some form of limiting construction. A court does have a duty to seek a limiting construction if possible, since a statute cannot be invalidated as unconstitutionally vague if “any reasonable and practical construction can be given to its language.” (People v. Heitzman (1994) 9 Cal.4th 189, 209.) A statute will be upheld if its terms may be made reasonably certain by reference to objectively ascertainable sources, such as common law or the statute’s legislative history or purpose. (People v. McCaughan (1957) 49 Cal.2d 409, 414.)
“A court, however, may not create a standard . . . .” (Id.) Moreover, a court is confined to ascertaining a limiting (narrowing) construction (see, e.g., Pryor v. Municipal Court (1979) 25 Cal.3d 238, 254-255), since a court cannot constitutionally legislate a penal statute (United States v. Bass, supra, 404 U.S. at p. 348) or expand one. (Bouie v. City of Columbia, supra, 378 U.S. at p. 354.) The limiting construction must itself be consistent with legislative intent (United States v. Thirty-Seven Photographs (1971) 402 U.S. 363, 369-370 [91 S.Ct. 1400, 28 L.Ed.2d 822]; it must provide fair warning (Dombrowski v. Pfister (1965) 380 U.S. 479, 491, fn. 7 [85 S.Ct. 1116, 14 L.Ed.2d 22]); and it cannot be impermissibly vague. (Board of Airport Commissioners v. Jews for Jesus, Inc. (1987) 482 U.S. 569, 576 [107 S.Ct. 2568, 96 L.Ed.2d 500]; FEC v. National Conservative Political Action Committee (1985) 470 U.S. 480, 498-499 [105 S.Ct. 1459, 84 L.Ed.2d 455]; In re Timothy R. (1988) 202 Cal.App.3d 593, 600.)
No such limiting construction exists here. Judicial expositions on the word “vicinity,” if anything, show there isn’t any appropriate limiting construction because the word is inherently vague. (Ante.) There is no preexisting judicial interpretation making clear where section 209.5’s “vicinity” begins or where it ends. (The one mention our Supreme Court has made of section 209.5 is discussed below.) There is simply nothing by which a court could give a limiting construction to the word “vicinity.” [Footnote 2]
The problem here is not that a court would be incapable of creating an ad hoc definition of “vicinity” which would solve the problem in this case. Even if a court could create one for this case, ad hoc, the Fourteenth Amendment prohibits case-by-case definitions. (People v. Superior Court (Caswell), supra, 46 Cal.3d at pp. 389-390.) Rather, the problem is that there is no way to interpret or narrow this statute so that it makes clear what conduct is proscribed in any case, which is the function of a statute. If there is no way to construe the statute so it can be consistently and evenhandedly applied to all defendants, then it is void for vagueness. (See, e.g., Kolender v. Lawson (1983) 461 U.S. 352, 361-362 [103 S.Ct. 1855, 75 L.Ed.2d 903].) That is the situation here.
In this context, appellant obviously must discuss our Supreme Court’s brief observation on section 209.5 in People v. Rayford, supra, 9 Cal.4th 1, since it is all the Supreme Court has said about section 209.5 to date.
In Rayford, the Supreme Court was considering a different but related statute, Penal Code section 208, subdivision (d). The issue before the Court was what standard for asportation should be used for section 208, subdivision (d); i.e., whether to use the asportation standard for simple kidnapping, section 207, or the aggravated kidnapping standard of People v. Daniels, supra, 71 Cal.2d 1119. Daniels requires  a movement of the victim that is not merely incidental to the commission of a robbery, and  that the movement substantially increase the risk of harm over and above that necessarily present in the crime of robbery. (Id., 71 Cal.2d at pp. 1138-1139; Rayford, supra, 9 Cal.4th at pp. 12, 16.) The Court discussed the evolution of the Daniels standard and its inapplicability to simple kidnapping, and held Daniels applies in section 208, subdivision (d) cases. (Rayford, supra, 9 Cal.4th at pp. 15-22.)
In the course of this discussion, the Court referred to section 209.5 as follows: “We are also conscious of the fact that the only occasion in which the Legislature appears to have expressly adopted the Daniels risk of harm language is in section 209.5, which prohibits robbery of a vehicle or carjacking.” (Rayford, supra, 9 Cal.4th at p. 21.) An earlier footnote said basically the same thing. (Id. at p. 11, fn. 7.)
The Court was certainly correct; the Daniels standard is expressly included within section 209.5. Element  of Daniels, movement not merely incidental to the crime, is element  in section 209.5, subdivision (b). And element  of Daniels, substantial increase in risk of harm over and above that inherent in the crime, is element  of section 209.5, subdivision (b).
But that does not end the discussion, because section 209.5, subdivision (b) has an extra element beyond the two-part Daniels standard—namely its own element , that “the victim is moved a substantial distance from the vicinity of the carjacking.” The word “and” after “vicinity of the carjacking” in element  of section 209.5, subdivision (b), makes clear that all three elements of subdivision (b) must be met before a person can stand convicted under that statute.
Thus, based on the plain language of section 209.5, satisfaction of the Daniels test alone does not suffice for the asportation requirement in subdivision (b). The plain language of the statute imposes an additional distance test, with the point of reference beginning at the “vicinity of the carjacking.” That test can never be met, because the point of reference fails for vagueness, and no limiting construction is possible. [Footnote 3]
“The concern of our citizens with curbing criminal activity is certainly a matter requiring the attention of all branches of government. As weighty as this concern is, however, it cannot justify legislation that would otherwise fail to meet constitutional standards for definiteness and clarity.” (Kolender v. Lawson, supra, 461 U.S. at p. 361.)
Thus, it remains true that “[n]o one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.” (Lanzetta v. New Jersey, supra, 306 U.S. at p. 453.) “The citizen cannot be held to answer charges based upon penal statutes whose mandates are so uncertain that they will reasonably admit of different constructions.” (Connally v. General Construction Co., supra, 269 U.S. at p. 393.) A statute with such a constitutionally prohibited consequence will be struck down as vague on its face irrespective of the defendant’s conduct. (See, e.g., Kolender v. Lawson, supra, 461 U.S. at pp. 361-362.)
Based on the foregoing, section 209.5 is unconstitutionally vague on its face, and violates the Fourteenth Amendment. Accordingly, the judgment of conviction must be reversed as to Count 2.
Kidnapping under Penal Code section 207 is obviously a necessarily included lesser offense within section 209.5. Accordingly, under Penal Code section 1260, the judgment as to Count 2 may be reduced to simple kidnapping. The cause may be remanded for resentencing.
The issue in this Part is reviewable for a number of reasons. First, this is a pure question of law on undisputed facts; for the facial challenge, the facts are irrelevant, and for the as-applied challenge, the facts are not disputed since they are taken most favorably to the People. Such purely legal questions may be raised on appeal, particularly when the enforcement of a penal statute is involved, the asserted error fundamentally affects the validity of the judgment, or important issues of public policy are at issue. (Hale v. Morgan (1978) 22 Cal.3d 388, 394; People v. Brown, supra, 42 Cal.App.4th at p. 471.) All are true here.
Second, the trial court instructed the jury on this alleged offense. Claims of legal error in jury instructions are reviewable. (Pen. Code § 1259; People v. Wickersham (1982) 32 Cal.3d 307, 332-333.) Here, the trial court could not constitutionally give the instruction at all, so giving it was error.
Third, an unconstitutionally vague law is void. (In re Newbern (1960) 53 Cal.2d 786, 797; People v. Washington (1996) 44 Cal.App.4th 162, 168.) Something that is void has no legal effect. (Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 544.) Thus, a conviction under an unconstitutional law has no legal effect, and may be challenged at any time. (In re Johnson (1970) 3 Cal.3d 404, 417-418; Williams v. Department of Motor Vehicles (1969) 2 Cal.App.3d 949, 954.)
Finally, the matter should be considered to obviate any claim of ineffective assistance of counsel appellant must reluctantly make in the alternative, to ensure this contention may be reviewed. (People v. Campbell (1991) 230 Cal.App.3d 1432, 1444; People v. Pitts (1990) 223 Cal.App.3d 606, 859.) “[B]ecause a constitutional issue is involved and [appellants] could feasibly claim their respective trial counsel were in some fashion ineffective for not raising these issues, in the interests of justice we address their concerns . . . .” (People v. Campbell, supra, 230 Cal.App.3d at p. 1444.)
Absent any of these grounds of reviewability, this case also meets the Sixth Amendment standards of Strickland v. Washington (1984) 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674], for trial counsel’s failure to raise a meritorious legal issue with no possible risk. There can have been no reasonable tactical basis, since raising the issue would have presented the possibility of a favorable result with no possibility of a worse one. (See, e.g., People v. Belcher (1974) 11 Cal.3d 91, 96; People v. Moreno (1987) 188 Cal.App.3d 1179, 1191; People v. Asbury (1985) 173 Cal.App.3d 362.) Prejudice would be obvious, since a favorable result would have eliminated the most severe charge, the one carrying the life sentence. (See, e.g., People v. Belcher, supra, 11 Cal.3d at pp. 99-101.)
However, the other standards in this section present more than adequate bases of reviewability, and appellant would ask this Court to consider the issue on direct review.
III. PENAL CODE SECTION 209.5 IS UNCONSTITUTIONALLY VAGUE AS APPLIED TO APPELLANT’S CASE, BASED ON THE VAGUENESS OF THE “VICINITY” LANGUAGE
If it were assumed the statute is not vague on its face, it would still be unconstitutionally vague as applied to appellant’s particular case. The analysis of Connally v. General Construction Co., supra, and the discussion in Part II(B) above, underscores the vagueness of this statute as it is applied to a case where the victim ended up only a few feet from the mall in which she was kidnapped.
Appellant utilizes the test for vagueness as applied in Tobe v. City of Santa Ana, supra, 9 Cal.4th at p. 1084, quoted above at p. , and all of the standards for reviewability (and in the alternative ineffective assistance of counsel) set forth in Part II(C), ante.
A brief recapitulation of relevant facts is in order. After Roe ordered Ms. M into the van, appellant drove it for about 100 feet before the two children were picked up. (RT 69, 99, 245.) Roe took the wheel, drove the van through the mall parking lot, turned right onto McKinley at a light leaving the mall, then drove the van along the perimeter of the mall—taking McKinley to the 91 Freeway onramp and then turning right there, before stopping along the onramp to let out Ms. M. (RT 44-46, 78-79, 156-157, 174, 268-269.) People’s Exhibit 1 is the relevant pictorial exhibit, and Detective Anderson’s concise description at RT 339:18-24 is also helpful in describing the layout of the area.
Roe’s total driving distance was about a quarter-mile on the odometer. (RT 269, 339.) However, Roe did not let Ms. M out of the van a quarter-mile from the “vicinity of the carjacking.” If the “vicinity” was any area bigger than the mall, Roe was still within it when he let Ms. M out. If the “vicinity” was the mall itself, Roe was never more than a few feet from it. The chain-link fence visible next to the freeway onramp separates the public right-of-way from the mall boundary, and it is only a few feet from the shoulder of the onramp to the fence. (Accord RT 339:23-24 [testimony of Det. Anderson] [traveling Roe’s route and ending on the onramp, “[y]ou’re basically almost back in the parking lot again on the other side of the fence”].)
Any juror would reasonably conclude that if the mall boundary itself were the “vicinity of the carjacking,” a few feet from the mall is not a “substantial distance from the vicinity of the carjacking.” But of course, that is the issue here: What is the “vicinity of the carjacking”?
It is important to note again that section 209.5 does not say a “substantial distance” from the point of the carjacking. That was the standard the prosecutor was using, and in fact, she used the driving distance of a quarter-mile from the point of the carjacking (RT 339), rather than the straight-line distance of 200 yards from the point of the carjacking (RT 340). (See RT 436.) But in either case, that isn’t what section 209.5 says.
With that in mind, the discussion in Part II(B) above becomes particularly germane, and appellant incorporates it by reference.
Thus, one must ask again: What is a “vicinity”? As noted above, the dictionary definition is a “neighborhood.” (Webster’s Ninth New Collegiate Dictionary, supra, p. 1314.) That is what defense counsel argued here:
What [the instruction] adds is a substantial distance from the vicinity of the carjacking. [¶] (Indicating.) This, we would submit, is the vicinity of the carjacking, this neighborhood of stores here. Take the word “vicinity.” In its common meaning, it means area, neighborhood. . . . The law requires that . . . she be taken a substantial distance from the vicinity, not just a substantial distance, a substantial distance from the vicinity.
Defense counsel was only arguing what the statute said. If the jury had accepted that interpretation of the law, based on the statutory language, it should have acquitted because appellant was only a few feet from what he called the “neighborhood of stores,” the mall. Instead, the jury obviously accepted the prosecutor’s interpretation of the law.
This underscores the problem, as appellant has already discussed. (Ante, p. .) The verdict should not have depended on which attorney’s interpretation of the law the jury preferred. A law is unconstitutionally vague if it “delegates basic policy matters to . . . judges and juries for resolution on an ad hoc and subjective basis.” (People v. Superior Court (Caswell), supra, 46 Cal.3d at p. 389.) That is exactly what happened here. [Footnote 4]
Appellant isn’t even sure defense counsel’s interpretation was right, since “vicinity” can also refer to an area a lot bigger than a mall, as discussed in Part II(B) above. But it shouldn’t matter. It should not be left up to a jury to determine subjectively what a “vicinity” is in any given case, for purposes of triggering a sentence of life imprisonment. The law should be a constant, giving the same fair warning and notice to all.
“Due process entitles a defendant to notice, before he acts, of the criminality and consequences of his conduct.” (People v. Godinez, supra, 17 Cal.App.4th at p. 1369 [citation omitted, emphasis in original].) In this case, Doe could not reasonably have been on notice that the phrase “a substantial distance from the vicinity of the carjacking” would apply to a point a few feet from the mall in which the carjacking took place. The plain English definition of “vicinity” points to the exact opposite.
Based on the foregoing, section 209.5 cannot be applied to appellant Doe consistently with the Fourteenth Amendment. Accordingly, the judgment should be reversed as to Count 2, and the conviction reduced to one for simple kidnapping in violation of section 207, under Penal Code section 1260.
IV. IF ALTERNATIVELY, PENAL CODE SECTION 209.5 HAD A SUFFICIENTLY DEFINITE MEANING OR LIMITING INTERPRETATION TO PASS CONSTITUTIONAL VAGUENESS ANALYSIS, THEN THERE WOULD BE NO SUBSTANTIAL EVIDENCE TO SUPPORT A CONVICTION UNDER THAT STATUTE
Appellant now assumes for argument’s sake that section 209.5 could pass constitutional muster, or that there was a proper limiting interpretation. In that case, whatever the statute means, appellant did not violate it.
If one construction of a statute will save it from unconstitutionality and another will condemn it or create serious doubt, the clearly constitutional construction is preferred. (NLRB v. Jones & Laughlin Steel Co. (1937) 301 U.S. 1, 30 [57 S.Ct. 615, 81 L.Ed. 893]; Crowell v. Benson (1932) 285 U.S. 22, 62 [52 S.Ct. 285, 76 L.Ed. 598].) The Fourteenth Amendment requires that any ambiguity be interpreted in favor of the defendant, based on the principles that fair warning is necessary as to what conduct will be punished, and that legislators and not courts should define criminal activity. (United States v. Bass, supra, 404 U.S. at pp. 347-348.)
The California principle is the same; criminal statutes are, in case of doubt, to be construed favorably to the defendant. (Creutz v. Superior Court, supra, __ Cal.App.4th at p. ___ [96 Daily Journal D.A.R. at p. 11773]; People v. Norris (1985) 40 Cal.3d 51, 56.) There should be plenty of doubt in this case, for all of the reasons discussed in Parts II and III above, which appellant incorporates by reference.
Whatever the limiting construction might be, or whatever meaning is ascribed to the word “vicinity,” appellant cannot have violated this statute. Appellant does not know how the statute could be interpreted to solve the vagueness problem, but assuming it could, the smallest “vicinity” in this case is the one defense counsel argued: The “vicinity” of this particular carjacking may have been the mall premises. (RT 430:1-15; see ante, p. .) The carjacking began in the middle of a mall parking lot, and under any uniform interpretation of section 209.5 applicable to all cases, there would be no principled way to draw a boundary within the mall as to where the “vicinity” ended and “beyond the vicinity” began. Appellant cannot imagine deeming the “vicinity” in this case to be anything smaller than the mall, consistent with the common meanings of the word “vicinity” such as “neighborhood” or “area,” although larger areas would also fit the definition of “vicinity” (see ante, p. ).
With all this in mind, there can be no substantial evidence appellant violated section 209.5, under any reasonable construction. Ms. M was let out alongside the onramp, a few feet from the fence that separated the public right of way from the mall boundary. If the mall boundary was the “vicinity” of the carjacking, then Mr. M was moved to only a few feet from the vicinity of the carjacking. A few feet is obviously not a substantial distance. (See, e.g., People v. Daniels, supra, 71 Cal.2d at p. 1126.)
Even as to the related statute section 209, which does not have a test of substantial distance from the vicinity, movement solely within premises would not support a criminal conviction. “[W]hen 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.” (People v. Daniels, supra, 71 Cal.2d at p. 1140 [emphasis added].) Thus for example, in People v. John (1983) 149 Cal.App.3d 798, movement of 150 yards was held not to be a “substantial distance” when effected entirely within the boundaries of an eight-acre property. (Id. at pp. 806-807; see generally Opening Brief of Appellant Roe, Part I.)
But this is not even a section 209 case. As noted above, section 209.5 requires meeting the Daniels test [elements  and  of the statute, see ante, fn. 3] plus the requirement that the movement be a “substantial distance from the vicinity” of the carjacking [element  of the statute]. (See ante, p. .) No matter how the word vicinity might be construed in the statute, this case does not contain substantial evidence of element .
Because there is no substantial evidence to support the conviction, the judgment as to Count 2 must be reversed, as a matter of state law and under the Fourteenth Amendment Due Process Clause. (People v. Johnson (1980) 26 Cal.3d 557, 577-578; Jackson v. Virginia (1979) 443 U.S. 307, 319, 324, fn. 16 [99 S.Ct. 2781, 61 L.Ed.2d 560].) Retrial is barred by the Fifth Amendment Double Jeopardy Clause. (Burks v. United States (1978) 437 U.S. 1, 11 [98 S.Ct. 2141, 57 L.Ed.2d 1]; People v. Belton (1979) 23 Cal.3d 516, 527, fn. 13.)
OPENING BRIEF FOOTNOTES (1-4):
Footnote 1: Penal Code section 209.5 states, in part pertinent here:
(a) Any person who, during the commission of a carjacking and in order to facilitate the commission of the carjacking, kidnaps another person who is not a principal in the commission of the carjacking shall be permitted by imprisonment in the state prison for life with the possibility of parole.
(b) This section shall only apply if  the movement of the victim is beyond that merely incidental to the commission of the carjacking,  the victim is moved a substantial distance from the vicinity of the carjacking, and  the movement of the victim increases the risk of harm to the victim over and above that necessarily present in the crime of carjacking itself.
The portion of the statute challenged here for vagueness is underlined above. The bracketed, boldfaced numerals are added to distinguish the three essential elements of the “movement” requirement, as will be discussed.
Footnote 2: To adopt a limiting construction, a court would have to take into account the inherent nature of a kidnap-for-carjacking, in which the legislature would recognize the obvious, that the victim will end up being moved by car. So the question becomes: How far must a person travel in a car before he travels beyond the “vicinity” of a carjacking? (Or, more precisely, how far must the person travel before he travels a “substantial distance” beyond the “vicinity” of the carjacking?) It would be some nontrivial distance, given the inherently mobile nature of a car. But what distance would that be? Who could possibly know?
Footnote 3: “Vicinity” may be of some use in determining what crimes can not be prosecuted. The word was used in the Model Penal Code kidnapping proposal cited in People v. Daniels, supra, 71 Cal.2d at p. 1138. “By using the word ‘vicinity’ rather than ‘place’ and by requiring substantial removal, the section makes clear the purpose to preclude kidnapping convictions based on trivial changes of location having no bearing on the evil at hand.” (Id.) Appellant readily agrees that section 209.5 does not apply to “trivial changes of location having no bearing on the evil at hand.” (She also believes this is one such case, for the reasons set forth in this brief and appellant Roe’s brief.)
However, that does not answer the question of how to determine what crimes can be prosecuted. We know that the most trivial movements—including no movement at all—could not qualify as a “substantial distance from the vicinity of the carjacking.” But we cannot know the other extreme, namely, what is the least movement that does qualify as a “substantial distance from the vicinity of the carjacking”? The inherent vagueness of the word “vicinity” prevents this question from having a sufficiently definite answer to pass constitutional muster.
Footnote 4: While we do not assume a defendant will consult the Penal Code, still “due process entitles defendant to fair warning that his contemplated conduct is within the prescription of a particular statute.” (People v. Godinez, supra, 17 Cal.App.4th at p. 1370.) Nonetheless, even a felon might know the difference between a life sentence (section 209.5) and a non-life sentence (section 207). A person in appellant’s position, knowing what the statute says would trigger a life sentence, could logically conclude on a freeway onramp: “We’ve gone this far, and if we get caught I’m in really serious trouble, but if I tell the driver to let this person go now, we still haven’t gone beyond the vicinity of the carjacking, and at least I won’t get a life sentence.” That type of reasoning—even from someone who has already committed a very serious felony—should be encouraged. Our laws should, and usually do, allow someone to recognize that (s)he can avoid even worse punishment by stopping at Crime A, before the more serious Crime B is committed and its harm irretrievably inflicted.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION TWO
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
JANE DOE and
Defendants and Appellants.
REPLY BRIEF OF APPELLANT JANE DOE
Appeal From Final Judgment of Conviction
Superior Court, County of Riverside
The Honorable H. Dennis Myers
S. Michelle May
State Bar No. 111072
1800 Market St. # 38
San Francisco, CA 94102
Attorney for Jane Doe
By appointment of the Court of Appeal
II. PENAL CODE SECTION 209.5 IS UNCONSTITUTIONALLY VAGUE, BASED ON THE REQUIREMENT OF MOVEMENT A “SUBSTANTIAL DISTANCE FROM THE VICINITY OF THE CARJACKING”; IF ARGUABLY IT COULD BE LIMITED TO AVOID THE VAGUENESS PROBLEM, APPELLANT COULD NOT BE CONVICTED UNDER ANY SUCH NARROWING CONSTRUCTION [AOB, Parts II-IV, Pages 12-33]
In response to appellant’s vagueness arguments, the People rely on People v. Rayford, supra (RB 14)–the very case they asked this Court to reject in the previous Part–as a means of interpreting section 209.5. Indeed, they ask this Court to interpret section 209.5 in the same manner as “the other ‘kidnapping for’ crimes” (RB 14), exactly what they asked this Court not to do in Part I.
The self-contradiction should not escape notice. Both of the People’s arguments cannot be correct. As appellant has argued, neither one is. [Footnote 5]
The People make no attempt to argue that a statute which requires determining a “vicinity” is anything other than unconstitutionally vague. They thus make no effort to defend the statute as it was worded by the Legislature (unlike Part I, where they fall back on literal statutory language).
Rather, the People attempt an end-run around the statute. They say that phrase “from the vicinity” is used in the Model Penal Code; the Model Penal Code standard prohibits kidnapping prosecutions for trivial movements that are incidental to the underlying crime; therefore, section 209.5 applies when a “movement is not trivial and not simply incidental to the underlying crime.” (RB 14.)
To begin with, the Fourteenth Amendment prohibits courts from interpreting a penal law against a person, in a manner contrary to the penal law’s plain language. The Due Process Clause requires “a fair warning . . . to the world in language that the common world will understand.” (McBoyle v. United States (1931) 283 U.S. 25, 27 [51 S.Ct. 340, 75 L.Ed. 816]; People v. Weidert (1985) 39 Cal.3d 836, 849 [quoting McBoyle].)
Only by ignoring the statutory language could one argue that “the phrase ‘from the vicinity’ adds nothing more to this statute than . . . that the movement is not trivial and not simply incidental to the underlying crime.” (RB 14.) That is contrary to McBoyle and Weidert, supra, and it is thus contrary to law.
That principle should end the discussion all by itself.
Beyond that, contrary to the People’s suggestion (RB 13), People v. Daniels, supra, did not adopt Model Penal Code section 212.1. It only said the Model Penal Code was part of the “spirit animating . . . judicial developments in the law of kidnapping.” (Daniels, supra, 71 Cal.2d at p. 1137.) There is nothing to suggest our Legislature based section 209.5 on a “spirit animating judicial developments.”
The asportation standards of Daniels do not include the word “vicinity.” (Id., 71 Cal.2d at p. 1139.) Indeed, the word “vicinity” can be found nowhere in the entire Daniels opinion, except in the discussion of the Model Penal Code, and once as a generalization in the statement of facts. There is nothing to suggest our Legislature intended to adopt a 1962 Model Penal Code formulation when it enacted section 209.5 over three decades later, and when our Supreme Court did not adopt the Model Penal Code in Daniels.
But the Model Penal Code doesn’t define the word “vicinity” anyway. Moreover, as appellant has already shown, Model Penal Code section 212.1 did not answer or consider the question of where the “vicinity” ended and “beyond the vicinity” began. (AOB 25, fn. 5.) Section 212.1 was directed at a different problem, that of states characterizing even the tiniest movement ancillary to another offense as “kidnapping,” in order to permit the greater punishments which kidnapping laws usually carried. (Commentary to section 212.1, quoted in Daniels, supra, 71 Cal.2d at p. 1138.) The vagueness problem discussed in this Part was never addressed. [Footnote 6]
In any event, section 209.5 already has a provision which says it does not apply to trivial movements merely incidental to the crime–requirement : “This section shall only apply if  the movement of the victim is beyond that merely incidental to the commission of the carjacking . . . .” The People’s argument thus attempts to delete from the statute the “from the vicinity” language, requirement  (see AOB 12, fn. 3), and to render it nugatory. A person seeking fair notice from section 209.5 would not read requirement  out of the statute as the People do, not only because of McBoyle, but also because that is not how our Supreme Court interprets statutes. (Shoemaker v. Myers (1991) 52 Cal.3d 1, 22 [“We do not . . . construe statutory provisions so as to render them superfluous.”].)
The People’s argument depends on this Court rewriting section 209.5(b), and interpreting the statutory language to mean something other than what it says. This Court would have to either eliminate requirement  of section 209.5(b), or change the words “substantial distance from the vicinity of the carjacking” to say “substantial distance from the point of the carjacking,” as the prosecutor did (see AOB 21).
But the Legislature didn’t do either.
Statutory rewriting is sometimes permissible, albeit sparingly and cautiously, in order to avoid invalidation. (Kopp v. Fair Political Practices Commission (1995) 11 Cal.4th 607, 660-661, 671-676 [plur. opn. of Lucas, C.J. and conc. opns. of Mosk and Werdegar, JJ.].) “Courts hesitate least to rewrite a law when all that is called for is to ‘construe’ a vague or overbraod law by specifying or narrowing its application.” (Id. at pp. 675-676 [conc. opn. of Werdegar, J.].)
However, it is never permissible to rewrite an otherwise vague penal statute by broadening it beyond its statutory language. (AOB 22, and cases cited.)
From the early days of our nation, it has been “the legislature, not the Court, which is to define a crime, and ordain its punishment.” (United States v. Wiltberger (1820) 18 U.S. 76, 95 [5 Wheat. 76, 5 L.Ed. 37] [Marshall, C. J.].) This has been based partly on the separation of powers (id.), and particularly on the “instinctive distaste against [wo]men languishing in prison unless the lawmaker has clearly said they should.” United States v. Bass, supra, 404 U.S. at p. 348 [quoting H. Friendly, Benchmarks (1967) p. 209]; Wiltberger, supra, 18 U.S. at pp. 95-96.) For even if a construction of a penal statute according to its terms is “extremely improbable,” nonetheless, a court “cannot enlarge the statute.” (United States v. Wiltberger, supra, 18 U.S. at p. 105 [emphasis added].)
Instead, we have a statute which legislates that certain movements within the “vicinity of the carjacking,” and a nonsubstantial distance beyond, are not subject to the heightened punishment of section 209.5. That cannot be changed by a court. Courts cannot rewrite a statute to create a punishment the Legislature did not provide for. (Ante.)
In their effort to get this Court to rewrite section 209.5, the People don’t even cite any authority to prove the Legislature meant that the “substantial distance from the vicinity” provision should either be meaningless, or mean something other than what it says. They just say it is so. (RB 14.) That is not enough. And it is not how courts interpret penal statutes.
The Legislature is presumed to have been aware of existing law when it adopts a statute. (People v. Harrison (1989) 48 Cal.3d 321, 329 [cited in RB 10].) Thus, it must be presumed the Legislature was familiar with Daniels when it enacted section 209.5. By enacting a statute that expressly incorporated the Daniels asportation requirements, and added an extra requirement that the movement be a “substantial distance from the vicinity of the carjacking,” the Legislature required something more than merely the Daniels standard, for the extra punishment under section 209.5. The issue in this case is: What is that “something more”?
The conviction must fail because (1) the “something more” is incapable of definition adverse to appellant, whether on its face or as applied to this case, and (2) a reviewing court is not permitted to excise or emasculate the “something more” requirement, because that would broaden the scope of a criminal law beyond the legislative enactment, which no court can do.
But if this Court were to do what the People ask, the statutory construction could not be applied retroactively to appellant’s case. On that score, this case is governed (inter alia) by cases such as our Supreme Court’s decision in People v. Weidert, supra, 39 Cal.3d 836.
The nonretroactivity of the People’s sought-after construction is founded on Bouie v. City of Columbia (1964) 378 U.S. 347, 354 [84 S.Ct. 1697, 12 L.Ed.2d 894], which prohibits retroactive application of unforeseeable judicial enlargements of statutes. (AOB 15.)
Our Supreme Court has relied on Bouie to prohibit new legal principles from applying retroactively (see, e.g., People v. King (1993) 5 Cal.4th 59, 79-80)–and not solely in situations where prior precedent was being overruled. (See People v. Weidert, supra.) Bouie itself, after all, was not a case in which prior judicial precedent was being overruled.
Interpretation of a penal law more broadly than is permitted by its statutory language, and in a manner that nullifies part of the statutory language or is contrary to its plain English meaning, unquestionably fits into the category of cases covered by Bouie.
That was the Supreme Court’s alternative holding in Weidert. There, the People sought to have the Court construe the special circumstance in Penal Code section 190.2, subdivision (a)(10) to apply not only to “any criminal proceeding”–the plain language of the statute–but also to a juvenile proceeding for violation of a criminal statute. One of the Court’s holdings was to reject the People’s argument on the grounds appellant urged earlier in this Part, that it was contrary to the plain language of the statute. (Weidert, supra, 39 Cal.3d at pp. 848-849 [quoting McBoyle v. United States, supra]; see ante, p. .)
A secondary holding of Weidert was what appellant argues now: Interpreting the statute contrary to its plain language “which speaks only of criminal proceedings,” and making that interpretation retroactive to the defendant, would deny due process under Bouie. (Weidert, supra, 39 Cal.3d at p. 851.) So too here.
The bottom line, however, is that a person whose conduct is guided by section 209.5 is entitled to conclude that it means what it says. The Fourteenth Amendment requires no less. (McBoyle v. United States, supra.) And for all the reasons appellant has set forth, what the statute actually says cannot result in conviction.
The judgment should be reversed as to Count 2, subject to the People’s right to accept a conviction for simple kidnapping.
III. THE TRIAL COURT ERRED PREJUDICIALLY IN FAILING TO GIVE A PRIOR INSTRUCTION ON THE MEANING OF THE “SUBSTANTIAL DISTANCE FROM THE VICINITY” REQUIREMENT [AOB, Parts V-VI, Pages 34-38]
These arguments have a substantial difference from the arguments in Parts II-IV of the AOB. However, the People do not address it. It seems they miss the point of these arguments.
The point is that our Supreme Court has interpreted the words “substantial distance” to mean a distance more than “slight, brief or trivial.” (AOB 34-35.) Therefore, as a matter of plain English (on which the People ostensibly rely in Part I), “substantial distance from the vicinity” means a distance more than “slight, brief or trivial” from the vicinity.
To hold otherwise would be to eliminate from the statute the words “from the vicinity.” No court can do that, based on the common state-law canons of statutory construction and Fourteenth Amendment requirements of plain-language statutory interpretation discussed in the opening brief. (AOB 35, and authorities cited.)
Moreover, it appears the People cannot address these arguments. For in Part III of their own brief, they have relied on People v. Rayford, supra, and prior caselaw interpreting the related section 209(b). The authority on which appellant relies for the construction of the phrase “substantial distance” is the same–People v. Rayford, supra, and prior caselaw interpreting the related section 209(b). (See AOB 34, and cases cited.)
If as they do, the People are willing to acknowledge that prior constructions of section 209(b) must prevail in construing section 209.5(b), then they must recognize the correctness of the definition of “substantial distance” in People v. Stanforth (1974) 11 Cal.3d 588, 601, and numerous later cases. With that recognition, appellant’s point is made.
REPLY BRIEF FOOTNOTES (5-6):
Footnote 5: Appellant’s arguments, by contrast, are fully consistent with each other. Appellant argues in each of Parts I-IV of her AOB that the Daniels asportation standards are incorporated into section 209.5. She argues in addition in Parts II-IV that in addition to the Daniels asportation standards, section 209.5 contains an extra statutory provision which is not one of the Daniels asportation standards, namely that the victim must be “moved a substantial distance from the vicinity of the carjacking.”
Footnote 6: Rather than adopting the Model Penal Code formulation, Daniels merely discussed it as persuasive to show why the kidnap-for-robbery statute should not be interpreted literally to encompass any movement at all, but then adopted a different standard. (Id., 71 Cal.2d at pp. 1137-1139.) However, if one were to adopt the Model Penal Code formulation merely because Daniels found it persuasive, then appellant would also ask the Court to follow the two New York decisions which Daniels also found persuasive, immediately before the discussion of the Model Penal Code. Both held that movements over long distances–27 blocks in one case, several miles in another–did not constitute kidnapping because they were merely ancillary to the commission of another crime. (See discussions in Daniels, supra, 71 Cal.2d at pp. 1135-1137.) Under that interpretation, appellant’s actions cannot have violated section 209.5 as a matter of law.