People v. Robertson
208 Cal. App. 4th 965
Cal. Ct. App.2012Background
- Appellant Robertson kidnapped and sexually assaulted M.H. on October 12, 2009; convicted of aggravated kidnapping for the purpose of rape (count 1), sexual penetration by a foreign object (count 2), and forcible rape (count 3).
- Jury found true a special finding: movement of victim in connection with counts 2 and 3 pursuant to § 667.61(e)(1); acquitted counts 4 and 5; special finding No. 1 not true.
- Sentence: consecutive terms on counts 2 and 3 of 15 years to life; seven years to life on count 1 stayed; no-contact with victim ordered at prosecutor’s request (later deemed unauthorized).
- Prosecution argued movement of the victim increased risk of harm; trial court held § 209(b)(2) requires more than incidental movement but not necessarily substantial increase.
- Defense argued prior 1974 sexual misconduct evidence should be excluded as remote; argued no-contact order inappropriate.
- Court held: evidence sufficient for aggravated kidnapping; movement not merely incidental and increased risk; admitted prior misconduct under Evidence Code § 1108; no-contact order struck as unauthorized.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of asportation under § 209(b)(2) | Movement was more than incidental and increased risk. | § 209(b)(2) does not require substantial increase; argument on sufficiency of movement failed. | Yes; movement not incidental and increased risk; count 1 and special finding sustained. |
| Necessity of substantial increase in risk under § 209(b)(2) | Oregon? (Robinson) Not applicable; movement increased risk beyond inherent rape. | Martinez/Vines rule limited; no substantial increase required. | Court held no substantial increase required; increased risk standard satisfied. |
| Admissibility of prior sexual misconduct under Evidence Code § 1108 | Prior acts probative to show disposition and credibility; substantially similar. | Too remote and prejudicial; 352 balancing required. | Admissible; probative value not substantially outweighed by prejudice; abuse of discretion not shown. |
| Constitutionality of 1108 | Statute constitutional and necessary to prove disposition in sex offenses. | Or opposed due process concerns. | Constitutionality upheld; no due process/fair trial violation shown. |
| Unauthorized no-contact order | Order included during sentencing; statutory basis lacking. | No-contacts were desirable; order to be issued. | No-contact order stricken as unauthorized; judgment affirmed in other respects. |
Key Cases Cited
- People v. Martinez, 20 Cal.4th 225 (1999) (codified Rayford; asportation standard relaxed—no substantial increase needed)
- People v. Vines, 51 Cal.4th 830 (2011) (amendments to § 209 do not require substantial increase; modified asportation standard)
- People v. Dominguez, 39 Cal.4th 1141 (2006) (discusses asportation standard and totality of circumstances in aggravated kidnapping)
- People v. Rayford, 9 Cal.4th 1 (1994) (asportation standard for kidnapping and aggravated kidnapping)
- People v. Daniels, 71 Cal.2d 1119 (1969) (Daniels asportation standard (pre-Rayford modification))
- People v. Ortiz, 101 Cal.App.4th 410 (2002) (asportation under § 209 does not require substantial increase; context matters)
- People v. Shadden, 93 Cal.App.4th 164 (2001) (asportation analysis; movement beyond incidental)
- People v. Hoard, 103 Cal.App.4th 599 (2002) (rape victims’ vulnerability when concealed affects risk assessment)
- Falsetta, 21 Cal.4th 903 (1999) (Evid. Code § 1108; standard balancing with 352)
- People v. Manning, 165 Cal.App.4th 870 (2008) (constitutional considerations for 1108)