People v. Bell (2009)179 Cal. App. 4th 428, held that the wording of a portion of CC 1215 was erroneous.
“Without further explanation of what distance is ‘merely incidental’ to the associated crime, a jury could easily interpret the instruction to require a jury to acquit a defendant of kidnapping because the movement was compelled ‘in the course of committing the associated crime, regardless of the increased risk of danger to the victim, or, for that matter, that the distance was ‘substantial’ by any reasonable measure.” (People v Bell (2009) 179 Cal. App. 4th 428, 440.)
However, “if the incidental movement paragraph were to be interpreted in that fashion, it would be an incorrect statement of the law” because “whether the movement was over a distance merely incidental to an associated crime is simply one of several factors to be considered by the jury (when permitted by the evidence) under the ‘totality of circumstances,’. . .[and] is not a separate threshold determinant of guilt or innocence, separated from other considerations bearing on the substantiality of the movement as the current wording of the incidental movement paragraph of [CC 1215] now suggests.”
Bell offered the following suggested re-wording of CC 1215:
Substantial distance means more than a slight or trivial distance. In deciding whether the distance was substantial, you must consider all the circumstances relating to the movement. Thus, in addition to considering the actual distance moved, you may also consider other factors such as whether the [distance the other person was moved was beyond that merely incidental to the commission of the crime of evading a police officer,] whether the movement increased the risk of [physical or psychological] harm, increased the danger of a foreseeable escape attempt, [or] gave the [defendant] a greater opportunity to commit additional crimes.” (Id. at 440-41.)
