40 Cal.App.5th 68
Cal. Ct. App.2019Background
- Newman and H had a relationship from 2013–2016 marked by repeated physical abuse by Newman.
- On March 6, 2017 Newman broke into H’s locked bedroom at about 7:00 a.m., pointed a gun at her, and ordered her toward his car.
- H moved from her bed to the front door (20–30 feet), ran ~35 feet to the entry gate, then ran another ~135 feet toward the car before escaping into a neighbor’s unlocked back door; the court treated the movement as roughly 190 feet before she broke free.
- Newman turned himself in the same day; a jury convicted him of first degree burglary, assault with a firearm, and kidnapping, and found firearm-use enhancements true.
- The trial court sentenced Newman to 15 years plus fines and fees; Newman appealed raising three principal arguments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of asportation for kidnapping | Evidence shows movement was substantial under the Martinez standard | Movement was only a short/trivial distance and insufficient for kidnapping | Conviction affirmed; movement (≈190 feet amid gunpoint coercion) was substantial when viewed with all circumstances |
| Duty to instruct on attempted kidnapping | No evidence supported a lesser included offense, so no instruction required | Court should have instructed on attempted kidnapping as a lesser offense | No duty to instruct; no reasonable evidence the offense was less than charged |
| Challenge to fines/fees under People v. Dueñas | Trial court’s imposition of fines/fees stands absent timely objection | Fines and fees should be struck under Dueñas as unconstitutional without ability-to-pay hearing | Forfeited on appeal because defendant failed to object in trial court; claim not considered |
Key Cases Cited
- People v. Martinez, 20 Cal.4th 225 (establishing that kidnapping requires movement that is "substantial in character" and courts must consider all circumstances)
- People v. Virgil, 51 Cal.4th 1210 (standard of review for sufficiency of evidence—view evidence in light most favorable to the People)
- People v. Arias, 193 Cal.App.4th 1428 (moving a victim 15 feet met asportation requirement)
- People v. Shadden, 93 Cal.App.4th 164 (moving a victim nine feet within a store was substantial asportation)
- People v. Jones, 75 Cal.App.4th 616 (forcing a victim 40 feet to a car increased risk of harm and satisfied asportation)
- People v. Breverman, 19 Cal.4th 142 (trial court must instruct on lesser included offenses only when evidence raises a question whether all elements of charged offense are present)
- People v. Millbrook, 222 Cal.App.4th 1122 (standard for reviewing failure to instruct on lesser included offenses)
- People v. Dueñas, 30 Cal.App.5th 1157 (addresses constitutional limits on imposing fines/fees without an ability-to-pay hearing)