Unconstitutional Vagueness Challenge to Aggravated Kidnapping Charge (PC 209) based on Johnson v. United State (2015) 135 S.Ct. 2551 [Johnson]
October 1st, 2018

This post discussed the applicability of Johnson to inherently dangerous second degree felony murder. The same analysis could be applied to aggravated kidnapping per PC 209 which defines the required movement in terms of “risk of harm to the victim.”

The Authority section of CC 1203 also states “Movement Must Substantially Increase Risk of Harm to Victim,” citing People v. Dominguez (2009) 39 Cal. 4th 1141.

However, the Legislature in 1997 rewrote the aggravated kidnapping statute to delete the requirement that the movement must substantially increase the risk of injury to the victim over and above the risk inherent in the commission of the underlying crime. (People v. Robertson (2012) 208 Cal. App. 4th 965, 980-82.)

The current version of the aggravated kidnapping statute, PC § 209(b)(2), requires that the prosecution prove beyond a reasonable doubt that a defendant’s movement of the victim “increased the risk of harm to the victim over and above that which is inherent in the sexual offense itself. [But], section 209, subdivision (b)(2) does not require proof that the movement substantially increased the risk of harm to the victim.” (Ibid.)

The bottom line is that by defining aggravated kidnapping in terms of “risk of harm or injury” the statute may be unconstitutionally vague under Johnson.

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