Brief Bank # B-821 (Re: F 9.54.1 n3 [Increase In Harm To Victim Must Be Substantial].)
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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,
v.
JANE DOE and
ROBERT ROE,
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
Presiding Judge
S. Michelle May
State Bar No. 111072
1800 Market St. # 38
San Francisco, CA 94102
(415) 585-5907
Attorney for Jane Doe
By appointment of the Court of Appeal
ARGUMENT
I. THE INSTRUCTIONS AS TO COUNT 2 OMITTED THE DANIELS/RAYFORD ELEMENT OF A SUBSTANTIAL INCREASE IN THE RISK OF HARM, AND WERE THUS PREJUDICIALLY ERRONEOUS
In People v. Rayford (1994) 9 Cal.4th 1, our Supreme Court reiterated the standard for aggravated kidnappings established in People v. Daniels (1969) 71 Cal.2d 1119, the second part of which is a substantial increase in the risk of harm beyond that inherent in the target crime. (Rayford, supra, 9 Cal.4th at p. 12.) Rayford held the two-part Daniels standard was applicable to the crime of kidnap-for-sex offense under Penal Code section 208, subdivision (d), i.e., the movement must “substantially increase the risk of harm to the victim over and above that necessarily present in the commission or attempted commission of [the sex offense].” (Rayford, supra, 9 Cal.4th at p. 22 [emphasis added].)
As part of its holding, Rayford stated that the Legislature expressly adopted the Daniels risk of harm language in Penal Code section 209.5, the statute applicable to Count 2 of this case. (Rayford, supra, 9 Cal.4th at p. 21.) This conformed to the Court’s recognition that “the ‘movement’ factor of the Daniels rule is uniquely suited to . . . forms of kidnapping [which] by definition proscribe kidnapping for the purpose of committing a particular offense.” (Rayford, supra, 9 Cal.4th at p. 21 [citing People v. Stanworth (1974) 11 Cal.3d 588, 600].) Kidnap-for-carjacking under section 209.5 is one such form of kidnapping. Thus, under Rayford and Daniels, section 209.5 requires that the movement “substantially increase the risk of harm to the victim,” beyond that inherent in a carjacking. (Emphasis added.)
The trial court in this case, however, did not instruct the jury that the movement must substantially increase the risk of harm to the victim. It only instructed that the movement must increase the harm to the victim, with no mention of “substantially.” (CT 244-245; RT 468:27.)
The court’s failure to use the Daniels/Rayford “substantially increase” formulation was error. Particularly under the circumstances of this case, where there was a serious factual question as to the substantiality of the increase in harm to the victim, the error was prejudicial. [Footnote 1]
The instructional error is reviewable, though it appears all parties requested the instruction. (CT 243.) Instructional errors are reviewable though not raised below. (Pen. Code, § 1259.) The trial court is required to give correct instructions sua sponte, on the essential elements of the charged offense. (People v. Enriquez (1996) 42 Cal.App.4th 661, 665; People v. Haney (1977) 75 Cal.App.3d 308, 312.) The failure to do so was error. Even if the requirement of correct instructions on the elements of the offense could be waived through “invited error,” none exists as to this sua sponte instruction, since no tactical basis appears in the record. (See, e.g., People v. Marshall (1990) 50 Cal.3d 907, 931-932.)
One can understand why the trial court gave the instruction it did; the instruction tracked CALJIC No. 9.54.1. In turn, CALJIC No. 9.54.1 tracks the statutory language. Penal Code section 209.5, subdivision (b) also omits the word “substantially” from the phrase “substantially increase,” and simply requires the movement “increase” the risk of harm to the victim over and above that inherent in the crime of carjacking. But the Supreme Court, in Daniels and Rayford, has required the movement “substantially increase” the risk of harm to the victim. Which formulation must this Court follow?
This Court must follow the Supreme Court, for two reasons. First, it is required to, under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455. That was the holding of a line of cases including People v. Harvey (1980) 112 Cal.App.3d 132, 138; People v. Matthews (1980) 108 Cal.App.3d 793, 796; and People v. Savala (1981) 116 Cal.App.3d 41, 59-61, when the Legislature (unlike here) passed a statute intended to repudiate a prior Supreme Court decision. “[I]f the holding of [the Supreme Court] is to be changed, it must under the law be done by the court which authored it.” (People v. Harvey, supra, 112 Cal.App.3d at p. 138.)
Second, the omission of “substantially” from subdivision (b) gives every appearance of being inadvertent, and not reflecting actual legislative intent. In reaching its ultimate holding in Rayford, the Supreme Court held what should already be obvious, that the Legislature intended to incorporate the Daniels standard into section 209.5. (Rayford, supra, 9 Cal.4th at p. 21.) The Daniels standard refers to a “substantial increase” in the risk of harm.
To construe subdivision (b) differently, by omitting the word “substantially,” would violate this legislative intent. It would also create absurd results obviously not intended by the Legislature. Such a construction would mean that although kidnap-for-robbery requires a substantial increase in risk of harm to the victim, under Daniels, kidnap-for-carjacking—which has the same penalties as kidnap-for-robbery, and is very closely related—could be met by the most trivial increase in risk of harm, e.g., driving the victim 8 feet farther toward the rear of a parking lot [unsubstantial increase in risk of harm].
Our Supreme Court has set forth the analysis used when an omission of language from a statute may not reflect the legislative intent:
The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law. [Citations.] In order to determine this intent, we begin by examining the language of the statute. [Citations.] But “[i]t is a settled principle of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend.” [Citations.] Thus, “[t]he intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.” [Citation.] Finally, we do not construe statutes in isolation, but rather read every statute “with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.” [Citation.]
(People v. Pieters (1991) 52 Cal.3d 894, 898-899.)
Daniels held that the intent of the Legislature in amending the kidnap-for-robbery statute in 1951 “was to exclude from its reach not only ‘standstill’ robberies [citation] but also those in which the movements of the victim are merely incidental to the commission of the robbery and so not substantially increase the risk of harm over and above that necessarily present in the crime of robbery itself.” (Daniels, supra, 71 Cal.2d at p. 1139 [emphasis added].) This requirement of “substantial increase in the risk of harm” has continued unchanged in every aggravated kidnap statute and case since Daniels. There is nothing to suggest the Legislature in 1993 suddenly decided to abandon the substantiality requirement only for kidnap-for-carjacking and not for any other aggravated kidnapping. To state such a proposition would be to show its absurdity.
Finally, were there any doubt, this Court should invoke the principle that criminal statutes should be construed most favorably to the accused, both as a matter of state law and under the Fourteenth Amendment. (Creutz v. Superior Court (Sept. 25, 1996) ___ Cal.App.4th ___ [96 Daily Journal D.A.R. 11771, 11773]; United States v. Bass (1971) 404 U.S. 336, 348 [92 S.Ct. 515, 30 L.Ed.2d 488].)
Accordingly, the proper interpretation of section 209.5 is that it requires a “substantial increase” in the risk of harm to the victim, beyond that inherent in the crime of carjacking. The trial court erred in omitting the word “substantial” from the instruction.
Based on the foregoing, the requirement of a “substantial” increase is an essential element of a violation of Penal Code section 209.5. The trial court’s error thus violated appellant’s state constitutional right to have the jury determine every material issue presented by the facts. (People v. Sedeno (1974) 10 Cal.3d 703, 720-721 [over’d o.g. in People v. Flannel (1979) 25 Cal.3d 668, 684-685].)
The error in failing to instruct the jury on an essential element of the charged offense also violated the Sixth and Fourteenth Amendments, in that the jury was never given the opportunity to consider whether that element existed at all. (See, e.g., United States v. Gaudin (9th Cir. 1994) 28 F.3d 943, 951 [cert. grd. o.g. and aff’d (1995) ___ U.S. ___ [115 S.Ct. 2310, 132 L.Ed.2d 444]]; Sullivan v. Louisiana (1993) 508 U.S. 275, ___ [113 S.Ct. 2078, 2080-2082, 124 L.Ed.2d 182].) The error is reversible per se, if it is impossible to tell whether the jury found the required element under other instructions. (Ibid.; People v. Sedeno, supra, 10 Cal.3d at pp. 720-721) That is so here, as CALJIC No. 9.54.1 was the only instruction that focused on the risk of harm to the victim as to the alleged violation of section 209.5.
But it doesn’t matter which harmless error standard is used. Under the standard of Chapman v. California (1967) 386 U.S. 18, 23-24 [87 S.Ct. 824, 17 L.Ed.2d 705], the result is the same. Because the jury could not have decided the question under other proper instructions, there is no way to know whether the jury found facts which would have supported a conviction under a proper interpretation of the law. The State thus cannot meet its burden of showing there is no reasonable possibility the error affected the jury’s actual verdict (id.), and the error is thus reversible anyway. (See People v. Kobrin (1995) 11 Cal.4th 416, 428-430.)
In any event, a rational jury could easily have found appellant guilty in Count 2 under the erroneous instruction, while it would have found her not guilty under a correct one. The considerations in appellant Roe’s AOB, pages 20-23, are relevant here, and appellant Doe incorporates them by reference. Moreover, no one touched, threatened or restrained Ms. M, the van was driving safely, Ms. M was driven through and dropped off in public places, and she was even let out off of the roadway. Nonetheless, the erroneously instructed jury could have found Ms. M’s movement represented a nonsubstantial or trivial increase in risk of harm. Ms. M was probably a short distance closer to a phone in the parking lot than on the shoulder of the onramp; and although Ms. M was let out off the traveled roadway and was extremely unlikely to be struck, traffic does move faster on an onramp than in a parking lot.
At the same time, had the jury been instructed on the requirement of a substantial increase in risk of harm, it may readily have found that requirement was not met. The likelihood that a properly instructed jury could have acquitted appellant under a proper instruction also shows prejudicial error. There is at least a reasonable probability of a different result without the error (People v. Watson (1956) 46 Cal.2d 818, 836), and the relative weakness of the People’s case under a correct instruction also shows prejudice. (People v. Rocca (1980) 106 Cal.App.3d 685, 696.)
Thus under any standard, the judgment of conviction as to Count 2 should be reversed. Because this instructional error affected only the conviction under section 209.5, and would not have affected a conviction for the lesser included offense of simple kidnapping under section 207, the cause should be remanded for a new trial, subject to the People having the right to elect a judgment for simple kidnapping by failing to bring appellant to trial within 60 days after the issuance of the remittitur. (See People v. Edwards (1987) 39 Cal.3d 107, 118.) If the People elect to accept judgment for the lesser included offense, the trial court may resentence appellant.
V. THE TRIAL COURT’S SECTION 209.5 INSTRUCTION WAS PREJUDICIALLY ERRONEOUS NO MATTER WHAT “SUBSTANTIAL DISTANCE FROM THE VICINITY” MEANS
The trial court instructed the jury under CALJIC No. 9.54.1 in pertinent part as follows:
In order to prove the crime of kidnapping during the commission of carjacking, each of the following elements must be proved . . . 6. The movement of such person was for a substantial distance from the vicinity of the carjacking, that is a distance more than slight, brief or trivial.
(RT 469.)
The court’s erred prejudicially in this instruction, because its definition of “substantial distance from the vicinity of the carjacking” is contrary to Penal Code section 209.5, as enacted by our Legislature.
Section 209.5, subdivision (b) states in pertinent part:
This section shall only apply if . . . the victim is moved a substantial distance from the vicinity of the carjacking . . . .
The words “substantial distance,” all by themselves, mean “a distance more than slight, brief or trivial.” The “more than slight, brief or trivial” definition of the phrase “substantial distance” comes from People v. Stanworth (1974) 11 Cal.3d 588, 601 [cited with approval in People v. Rayford, supra, 9 Cal.4th at p. 16]. It is still used in section 209.5 cases. (See, e.g., People v. Smith (1995) 33 Cal.App.4th 1586, 1593-1594; People v. Williams (1990) 220 Cal.App.3d 1165, 1171.) It is also incorporated into other standardized instructions which use a “substantial distance” test. (See, e.g., CALJIC Nos. 9.50, 9.54, 9.54.2.)
Because the words “substantial distance” by themselves mean “a distance more than slight, brief or trivial,” the phrase “substantial distance from the vicinity” means “a distance more than slight, brief or trivial from the vicinity.” This is a matter of plain English, which controls in the interpretation of statutes. (People v. Estrada (1995) 11 Cal.4th 568, 577.)
That isn’t what the trial court instructed the jury, however. The court charged the jury that a substantial distance from the vicinity of the carjacking “is a distance more than slight, brief or trivial.” In other words, the court’s instruction defined “substantial distance from the vicinity” with the same meaning of slight, brief or trivial that is used to define “substantial distance” all by itself.
The court’s instruction thus operated to eliminate the phrase “from the vicinity” from the law. That was in error.
The phrase “from the vicinity” in section 209.5, subdivision (b) must be interpreted to have meaning for several reasons. First, it is presumed that every word and phrase in a statute is intended to have meaning. (Shoemaker v. Myers (1990) 52 Cal.3d 1, 22; Dyna-Med, Inc. v. Fair Employment & Housing Commission (1987) 43 Cal.3d 1379, 1386-1387.) Second, courts interpret statutes in accordance with their plain language. (People v. Coronado (1995) 12 Cal.4th 145, 151.) Third, the plain language of the statute is what gives notice to the world of the conduct proscribed by the statute, as required by the Fourteenth Amendment. (McBoyle v. United States (1931) 283 U.S. 25, 26-27 [51 S.Ct. 340, 75 L.Ed. 816] [Holmes, J.].) Finally, “from the vicinity” cannot be construed to be meaningless without a court rewriting the statute, which under the Fourteenth Amendment a court cannot do. (Bouie v. City of Columbia, supra, 378 U.S. at p. 354; United States v. Bass, supra, 404 U.S. at p. 348.)
Whatever the phrase “from the vicinity of the carjacking” means, it is an essential element of a violation of Penal Code section 209.5, because according to subdivision (b), no conviction can stand without it. The trial court thus erred in giving the jury an instruction that effectively eliminated this essential element from the law. This violated appellant’s state constitutional right to have the jury determine each essential element of the charged offense. (People v. Sedeno, supra, 10 Cal.3d at pp. 720-721.)
The error in failing to instruct the jury on an essential element of the charged offense also violated the Sixth and Fourteenth Amendments, since the jury was never given the opportunity to consider whether that element existed at all. (See, e.g., United States v. Gaudin, supra, 28 F.3d at p. 951; Sullivan v. Louisiana, supra, 508 U.S. at p. ___ [113 S.Ct. at pp. 2080-2082].) The error should be reversible per se, if it is impossible to tell whether the jury found the required element under other instructions. (Ibid.; People v. Sedeno, supra, 10 Cal.3d at pp. 720-721.) It is impossible to tell here, because no other instruction focused the jury on the issue of whether Ms. M’s movement was a substantial distance—i.e., a distance more than “slight, brief, or trivial”—from the vicinity of the carjacking.
But it doesn’t matter which harmless error standard is used. Under the standard of Chapman v. California, supra, 386 U.S. at pp. 23-24, the result is the same. Because the jury could not have decided the question under other proper instructions, there is no way to know whether the jury found facts which would have supported a conviction under a proper interpretation of the law. The State thus cannot meet its burden of showing there is no reasonable possibility the error affected the jury’s actual verdict (id.), and the error is thus reversible anyway. (See People v. Kobrin, supra, 11 Cal.4th at pp. 428-430.) In any event, the People’s case as to the missing element (“substantial distance from the vicinity”) was weak, which shows prejudicial error as well. (People v. Rocca, supra, 106 Cal.App.3d at p. 696.)
Accordingly, the judgment of conviction as to Count 2 should be reversed. Because this error affected only the conviction under section 209.5, and would not have affected a conviction for the lesser included offense of simple kidnapping, the cause should be remanded for a new trial, subject to the People having the right to elect a judgment for simple kidnapping by failing to bring appellant to trial within 60 days after the issuance of the remittitur. (See People v. Edwards, supra, 39 Cal.3d at p. 118.) If the People elect to accept judgment for the lesser included offense, the trial court may resentence appellant.
OPENING BRIEF FOOTNOTES:
Footnote 1: This assumes arguendo there was substantial evidence from which the jury could have found a substantial increase in harm to the victim. Part I of co-appellant Roe’s opening brief argues there was no such substantial evidence, and appellant Doe has joined that argument. (Post, Part X.)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION TWO
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
v.
JANE DOE and
ROBERT ROE,
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
Presiding Judge
S. Michelle May
State Bar No. 111072
1800 Market St. # 38
San Francisco, CA 94102
(415) 585-5907
Attorney for Jane Doe
By appointment of the Court of Appeal
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION TWO
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
v.
JANE DOE
ROBERT ROE,
Defendants and Appellants.
__________________________________/
Appeal from the Superior Court of Riverside County
The Honorable H. Dennis Myers, Presiding Judge
ARGUMENT
I. THE INSTRUCTIONS AS TO COUNT 2 OMITTED THE DANIELS/RAYFORD ELEMENT OF A SUBSTANTIAL INCREASE IN THE RISK OF HARM, AND WERE THUS PREJUDICIALLY ERRONEOUS [AOB, Part I, Pages 6-11]
A. The People’s Arguments Are Self-Contradictory
The People’s arguments as to Part I of the AOB, and as to the arguments in Parts II-IV, are self-contradictory.
In Part I of the Respondent’s Brief, the People say section 209.5 does not incorporate the asportation requirements of People v. Daniels (1969) 71 Cal.2d 1119, in order to try to avoid the Daniels/Rayford “substantial increase in risk of harm” requirement. (RB 7, 9-10.) In Parts II and III of their brief, however, they say section 209.5 does incorporate the Daniels asportation requirements (RB 14-17), in order to try to avoid the fatal vagueness problems of the word “vicinity.”
Which is it? Appellant respectfully submits that either section 209.5 is intended to incorporate the Daniels asportation requirements, or it isn’t. It can’t be both yes and no, as the People argue.
B. The Daniels Asportation Requirements, Including A “Substantial Increase In The Risk Of Harm,” Are Incorporated Into Section 209.5
Our Supreme Court provided the answer in People v. Rayford (1994) 9 Cal.4th 1: “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.” (Id. at p. 21.) The People followed Rayford in Parts II and III of their brief. (RB 14, 15, 16, 17.)
The People essentially contend, however, that the above passage is dictum and the issue wasn’t before the Supreme Court. (RB 10.) If that were so in this Part, it would be so in Parts II and III of their brief also.
In Rayford, the Supreme Court held that kidnapping for sexual purposes under section 208, subdivision (b) was a distinct crime, and although the two-part Daniels asportation test was not written into the statute, it was implicit in it nonetheless. (Rayford, supra, 9 Cal.4th at pp. 20-21.) If one were to use the People’s argument in this case to analyze section 208(b) [at issue in Rayford], one would conclude the Daniels asportation test is not a part of section 208(b), because that statute is “clear and unambiguous” (RB 9) and doesn’t expressly contain the Daniels asportation test.
Of course, that is not how the Supreme Court analyzed section 208(b) in Rayford. It isn’t how the Attorney General analyzed the issue in Rayford either, since he argued there that section 208(b) is a separate offense. (Id., 9 Cal.4th at p. 8.)
In Rayford, the Supreme Court held that section 208(d) utilized the Daniels asportation test, which had previously been used only for kidnap-for-robbery in section 209(b). One of the main reasons for its holding was that the two statutes were parallel because culpability in both “cannot ‘occur in the absence of another crime,’ or an attempt to commit a crime.” (Rayford, supra, 9 Cal.4th at p. 21.) “Thus, the “‘”movement” factor of the Daniels rule is uniquely suited to section 209′ and section 208(d) because these forms of kidnapping by definition proscribe kidnapping for the purpose of committing a particular offense. [Citation.]” (Rayford, supra, 9 Cal.4th at p. 21 [emphasis in original].)
That holding applies equally to section 209.5, which also “cannot occur in the absence of another crime,” and “by definition proscribe[s] kidnapping for the purpose of committing a particular offense.” There is no logical distinction in that regard between kidnap-for-rape, kidnap-for-robbery, and kidnap-for-carjacking. Rayford is a fortiori to this case.
In pronouncing its holding in Rayford, the Supreme Court recognized that the Daniels standard was not expressly written into section 208(d), but appeared to have been expressly written into section 209.5. It then analyzed this difference in statutory language. (Rayford, supra, 9 Cal.4th at p. 21.)
If the Daniels standard of “substantial increase in risk of harm” had not been part of section 209.5, this part of the Court’s analysis would be completely invalid. One therefore cannot pass off this part of the analysis as mere dictum. It is part of the holding. (AOB 6-7.) It is binding on all intermediate courts. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) And even if arguendo it were dictum, it was still a reasoned discussion by the Court, which “should not be disregarded by an intermediate appellate court without a compelling reason” (Lawler v. City of Redding (1992) 7 Cal.App.4th 778, 784; Estate of Hilton (1996) 44 Cal.App.4th 890, 919.) None is given here.
The People provide no analysis as to why the omission of “substantial” in section 209.5 was supposedly intended by our Legislature. They just assume it was. (RB 13.)
But statutes are not interpreted by assumptions. Rather, there are rules for interpreting statutes, which reflect both common sense and established law. Some of those rules are contained in People v. Pieters (1991) 52 Cal.3d 894, 898-899, which appellant quoted in AOB 8-9, and which the People do not discuss.
The People claim only that section 209.5 is “clear and unambiguous” and therefore a court is prohibited from interpreting it. (RB 9.)
However, as the People put it, their argument “ignores the basic rules of statutory construction.” (RB 9.) Merely because a statute is written in grammatically correct English sentences does not mean a court lacks the power to interpret the statute. Rather, a court will always seek to carry out the intent of our Legislature:
“[T]he ‘plain meaning’ rule does not prohibit a court from determining whether the literal meaning of a statute comports with its purpose or whether such a construction of one provision is consistent with other provisions of the statute. . . . Literal construction should not prevail if it is contrary to the legislative intent apparent in the statute. The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.”
(Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735; Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 658-659; City of Ontario v. Superior Court (1993) 12 Cal.App.4th 894, 904.)
Provisions relating to the same subject matter “must be harmonized, both internally and with each other, to the extent possible.” (People v. Simon (1995) 9 Cal.4th 493, 514; Lakin v. Watkins Associated Industries, supra, 6 Cal.4th at pp. 658-659.) That can only be done by holding that because the Daniels asportation standard is included within section 208(d), and section 209(b), it is also included within the closely related statute section 209.5. By contrast, the People seek a result which would create statutory disharmony, contrary to the established rules above. The People’s sought-after construction would also lead to absurd results, as appellant has already shown. (AOB 8.)
Furthermore, as shown by the case on which the People rely, any ambiguities in a penal statute must be construed favorably to the defendant:
When language which is susceptible of two constructions is used in a penal law, the policy of this state is to construe the statute as favorably to the defendant as its language and the circumstance of its application reasonably permit. The defendant is entitled to the benefit of every reasonably doubt as to the true interpretation of words or the construction of a statute.
(People v. Overstreet (1986) 42 Cal.3d 891, 896 [cited in RB 9, bottom].) Thus, even if it were merely unclear that the Daniels asportation standards were incorporated in section 209.5–which it is not–that ambiguity would have to be resolved favorably to appellant.
Finally, the People’s claim of “harmless error” (RB 10) is a near throwaway, and has no merit.
The People have not rebutted the settled principle that the jury must determine every material issue presented by the facts, both under state and federal law. (AOB 10-11.) Removal of even a single essential element from the jury’s consideration thus cannot be deemed “harmless,” when as here the record does not affirmatively show the jury decided the issue under other proper instructions. Our Supreme Court so held in People v. Kobrin (1995) 11 Cal.4th 416, 428-430, and its holding tracks those of other courts on the same issue. (See, e.g., United States v. Nguyen (9th Cir. 1995) 73 F.3d 887, 894-895; United States v. Smith (4th Cir. 1996) 94 F.3d 122, 124-125; United States v. DiRico (1st Cir. 1996) 78 F.3d 732, 736-738.) The People’s case of People v. Avila (1995) 35 Cal.App.4th 642 [cited in RB 10] was decided five months before Kobrin, and therefore is of no validity to the extent it is inconsistent with Kobrin.
Even if harmless error analysis could apply, the People have not applied the proper test under Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705], which is that an error must be measured by its effect on this jury’s actual verdict. (Id. at pp. 23-24; Sullivan v. Louisiana (1993) 508 U.S. 275, 280-281 [113 S.Ct. 2078, 124 L.Ed.2d 182]; People v. Kobrin, supra, 11 Cal.4th at p. 429.)
The People have the burden of proving there is no reasonable possibility the error affected this jury’s actual verdict (Chapman, supra, 386 U.S. at pp. 23-24; see O’Neal v. McAninch (1995) ___ U.S. ___ [115 S.Ct. 992, 995, 130 L.Ed.2d 2470].) They have not tried to meet it. Nor can they, because they cannot show the jury ever decided the issue of substantiality of increase in risk of harm, when the judge never told the jury to do that.
The case cited by the People is irrelevant, because it truly did involve a substantial increase in the risk of harm, and the jury unanimously found the facts to show that. By uncontradicted evidence there, the victim was driven around for several hours, including some time when the defendant was racing the car, “swerving around cars,” and “driving crazy” (People v. Avila, supra, 35 Cal.App.4th at pp. 664-665); the jury in Avila would have had no basis to conclude otherwise. Those facts are very far from this case. And in this case, there is no hint in the record of what the jury would have found on the “substantial increase in the risk of harm issue,” had it been instructed on that issue.
Based on the law as set forth by our Supreme Court, or common sense in the analysis of a statute that is directly related to other aggravated kidnapping statutes, the judgment should be reversed, subject to the People’s right to accept a conviction for simple kidnapping.
