Return to CALJIC Part 9-12 – Contents
F 9.52.1 n1 Kidnapping To Commit Sex Offense: Instruction On Intended Sex Offense (PC 208(d)).
PC 208(d) permits enhancement where the kidnapping was committed “with the intent to commit rape, oral copulation, sodomy, or rape by instrument …”
NOTE: This requires a specific intent to commit the enumerated offense or offenses. (People v. Bryant (92) 10 CA4th 1584, 1595-96 [13 CR2d 601].) Thus, full instruction upon the elements of the intended offense should be given.
However, there may be strategic reasons for not requesting such instruction so as not to emphasize the underlying offense.
F 9.52.1 n2 Kidnapping To Commit Sex Offense: Movement Must Substantially Increase Risk Of Harm (PC 208(d)).
CALJIC declined to take a position on whether the movement required to establish a violation of PC 208(d) — kidnapping to commit a sex offense — should be governed by the aggravated kidnapping principles (the increased risk of harm standard) or the lesser standard for simple kidnapping. FORECITE took the position that the aggravated kidnapping standard should be employed since kidnapping to commit a sex offense is analogous to kidnapping to commit robbery in that each proscribes kidnapping for the purpose of committing a particular offense. (FORECITE criticized People v. Bradley (93) 15 CA4th 1144, 1151-54 [19 CR2d 276] for its failure to follow the reasoning of People v. Stanworth (74) 11 C3d 588 [114 CR2d 250].)
In People v. Rayford (94) 9 C4th 1, 21 [36 CR2d 317], the Supreme Court approved the position taken by FORECITE. The court concluded that 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 to Stanworth.]” [Original emphasis.] Thus, the standard of asportation for PC 208(d) kidnapping requires that the movement of the victim be for a distance which is more than that which is merely incidental to the commission or attempted commission of the sex offense and that this movement substantially increase the risk of harm to the victim over and above that necessarily present in the commission or attempted commission of such sex offenses. In so concluding, the court disagreed with Bradley. (Rayford 9 C4th at 21-22.)
As to standard of prejudice for failure to instruct on this element, see discussion of People v. Avila (95) 35 CA4th 642 [41 CR2d 484] at PG X(C)(1).
F 9.52.1 n3 Kidnapping To Commit Sex Offense: Enhancement Vs. Substantive Offense (PC 208(d)).
In People v. Rayford (94) 9 C4th 1, 8-10 [36 CR2d 317] the court held that kidnapping to commit a sex offense PC 208(d) is a separate offense rather than an enhancement.
F 9.52.1 n4 Kidnapping To Commit Sex Offense: Substantial Distance Requirement For Simple Kidnapping Must Be Established.
People v. Rayford (94) 9 C4th 1, 21 [36 CR2d 317] held that the standard for proof of aggravated kidnapping (PC 209) also applies to kidnapping to commit a sex offense (PC 208). Under this standard the jury must determine both whether the victim was moved a “substantial distance” and whether this movement “substantially increased” the risk of physical injury over and above the incidental movement to which such person would normally be exposed in the commission of the intended crime. (Rayford, 9 C4th at 23; see also People v. Smith (92) 18 CA4th 1192, 1196 [27 CR2d 20].) Utilizing this standard, the Rayford court concluded that movement of 105 feet is a “substantial distance”, and moving the victim out of public view substantially increased the risk of physical injury, and that such movement was not incidental to the intended sex crime.
People v. Salazar (95) 33 CA4th 341, 345-46 [39 CR2d 337] upheld a conviction for kidnap under PC 208(d) based on an asportation of only 29 feet. Salazar’s analysis is suspect because it fails to recognize that both the substantial distance and substantial increase in risk of harm requirements must be satisfied. That is, Salazar failed to recognize that, unless the asportation is for a substantial distance, then not even a simple kidnap has been committed and, a fortiori, an aggravated kidnap was not committed either. Salazar’s misunderstanding is evidenced by the following specious attempt to distinguish between the 105 feet in Rayford and the 29 feet in Salazar: “Although the total distance of movement was greater in Rayford than under the present facts, the resulting increase in isolation and risk of harm was less. The added seclusion afforded by the wall and tree was certainly less than the added seclusion Maria faced while confined in the bathroom of the motel room…the jury could reasonably have concluded Maria’s forcible movement was not merely incidental to the attempted commission of rape, and substantially increased her risk of harm.” (Salazar 33 CA4th at 349.) Hence, rather than first determining whether the distance was substantial and then determining whether the risk of harm was substantial, Salazar held that the substantial distance determination may vary depending upon the risk of harm to the victim. (See also People v. Shadden (2001) 93 CA4th 164 [112 CR2d 826] [concluding that movement of nine feet to back room of video store was sufficient without considering issue of whether evidence was sufficient to establish a simple kidnapping].) Such an analysis blurs the distinction between substantial distance and increased risk of harm, and more importantly, the distinction between simple kidnapping and aggravated kidnapping. [See Brief Bank # B-892 and Brief Bank # B-893 for briefing on this issue.]
As Rayford recognized, a stricter test, above and beyond that necessary to prove simple kidnapping, is required for aggravated kidnapping. Logically, the legislature has determined that simple kidnapping, for which a lesser punishment is imposed, involves kidnapping without aggravating circumstances. On the other hand, aggravated kidnapping requires a simple kidnapping to which aggravating circumstances are added. The problem with the Salazar analysis is that it lumped both simple and aggravating kidnapping into the same test and permitted conviction for aggravated kidnapping in a case where the asportation distance would have been insufficient to sustain a simple kidnapping. Instead, the correct analysis is to first determine – independent of the risk of harm question -whether the asportation was for a substantial distance. Once the substantial distance factor is satisfied, then the inquiry may turn to the question of whether the kidnapping was aggravated.
To permit conviction and punishment for aggravated kidnapping in a case which does not satisfy the asportation requirement for simple kidnapping would violate the state and federal constitutional provisions regarding due process, trial by jury and cruel/unusual punishment. (U.S. Const. 5th, 6th, 8th and 14th Amendments; Calif. Const. Art 1 §15 and §16.) Furthermore, lack of a meaningful standard to distinguish between simple and aggravated kidnapping frustrates the intent of the legislature and arbitrarily imposes criminal liability in violation of the constitutional principles of equal protection and substantive due process. (U.S. Constitution 5th and 14th Amendments; California Const., Art. 1, §15 and §16; (see Gray v. Whitmore (71) 17 CA3d 1, 21 [94 CR 904]).)
Note:This distinction is recognized in CJ 9.54 and 9.52.1.
(See FORECITE F 9.54d.)
F 9.52.1 n5 Aggravated Kidnapping: Substantially Increased Risk Of Psychological Harm Is Sufficient.
(See FORECITE F 9.51 n2.)
F 9.52.1 n6 Kidnapping To Commit Sex Offense: Requirement That Simple Kidnapping Be Committed (PC 208).
(See FORECITE F 9.54 n5.)
Kidnap To Commit Sex Crime: Non-Incidental
Movement As Distinct Element
*Add the following to the numerical list of elements specified in CJ 9.52.1:
6. The movement of the victim was beyond that which was merely incidental to the crime of robbery.
Points and Authorities
The seminal case of People v. Daniels (69) 71 C2d 1119, 1139 [80 CR 897] held that to qualify as a kidnapping for robbery under PC 209, the asportation must satisfy two prerequisites: 1) It must not be incidental to the commission of the robbery; and 2) it must substantially increase the risk of harm to the victim. (See also, People v. Rayford (94) 9 C4th 1, 16 [36 CR2d 317].) Moreover, because every aggravated kidnapping necessarily includes a simple (PC 207) kidnapping (People v. Ordonez (91) 226 CA3d 1207, 1233 [277 CR2d 382]), the movement must also be for a substantial distance. (See also, People v. Smith (92) 18 CA4th 1192, 1196 [27 CR2d 20].) Hence, before returning an aggravated kidnapping conviction, the jury must find that:
1. The movement was beyond that which was merely incidental to the commission of the robbery;
2. The movement substantially increased the risk of harm to the victim over and above that necessarily present in the crime of robbery itself; and
3. The victim was moved for a substantial distance from the vicinity of the robbery.
The above requirements are the Legislature’s express affirmation of Daniels and the elements of aggravated kidnapping as set forth in PC 209.5(b) relating to kidnap for carjacking. (See Senate Floor Analysis, AB 6 (Burton) Sept 9, 1993, p 5; August 26, 1993, pp 4-5.) This statutory language is equally applicable to PC 209 kidnapping because the statutes are in pari materia (Dieckmann v. Superior Court (85) 175 CA3d 345, 356 [220 CR 602]) and because the Legislature expressly relied upon Daniels in its statutory analysis. Accordingly, CALJIC incorrectly relied upon People v. Gonzales (94) 21 CA4th 1648, 1652-56 [26 CR2d 773] to conclude that the jury need not determine whether the movement was incidental to the underlying crime so long as it found that the movement was for a substantial distance.
It is true that In re Earley (75) 14 C3d 122, 130-31 [120 CR 881] suggested that movement which is substantial is not incidental to the underlying crime. However, as pointed out by Justice Mosk in his dissent in Earley (14 C3d at 135), this is a departure from the Daniels’ requirement that the movement be “criminologically significant.” (Ibid., Mosk dissenting.) Indeed, if substantial movement always satisfies the incidental prong of Daniels, then there would have been no reason to establish the incidental prong to begin with since substantial movement is an element of all kidnapping whether simple or aggravated. (See People v. Smith, 18 CA4th at 1196.)
More importantly, PC 209.5(b) expresses the Legislature’s intent that aggravated kidnapping require both substantial and non-incidental movement. Again, if the Legislature had intended for substantial movement and non-incidental movement to be one and the same, there would have been no need to include the non-incidental element. In evaluating legislative intent, the courts should seek to avoid making any language surplusage and thus rendered useless. (In re Estate of MacDonald (90) 51 C3d 262, 270 [272 CR 153]; see also, Moyer v. Workmen’s Comp. Appeals Bd. (73) 10 C3d 222, 230 [110 CR 144].) Hence, the express statement of legislative intent in PC 209.5(b) mandates that the jury be instructed upon and find all three elements of aggravated kidnapping set forth in the statute.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
[The legislative history of PC 209.5, in which the Daniels standard is expressly relied upon, is available to FORECITE subscribers. Ask for Legislation Bank # L-2001.]
Kidnapping: Definition Of “Substantial Distance”
(PC 207 & PC 209)
*Modify CJ 9.52.1 as follows:
[See FORECITE F 9.50b.]