THE PEOPLE, Plаintiff and Respondent, v. JESSIE RAYFORD, Defendant and Appellant.
No. S035821
Supreme Court of California
Dec. 19, 1994
Appellant‘s petition for a rehearing was denied February 16, 1995.
Terrence Verson Scott, under appointment by the Supreme Court, and Andrew E. Rubin for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pat Zaharopoulos, Sara Gros-Cloren and Keith I. Motley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARABIAN, J.----Our task is to determine whether a statute that proscribes kidnapping with the intent to commit rape, oral copulation, sodomy, or rape by instrument (
I. FACTS AND PROCEDURAL BACKGROUND
At approximately 10:30 on the evening of April 24, 1991, the victim, Elizabeth R., was walking home from a bus stop when she was accosted by
Defendant led Elizabeth beyond a block wall at the end of the parking lot. The wall ran perpendicular to the two-lane street. Bushes were located at the end of the wall. Defendant took Elizabeth to a slender tree behind the wall, located approximately 34 feet from the street. The ground behind the wall was undeveloped, and made up of dirt and rocks.
Defendant repeatedly told Elizabeth to get on the ground by the tree. She finally did so, sitting with her back to the wall. Defendant then told her to remove her clothes. She removed her pants and underwear. Defendant removed his pants. Elizabeth dissuaded defendant from raping her by pointing out that she was bleeding, and they got dressed. Defendant asked if she had any money, and she gave him $10 and her wallet. He returned her wallet and told her to stay where she was for 15 minutes and not to get up until he was gone. The incident lasted 15 to 20 minutes. Subsequent measurements showed she was moved a distance of approximately 105 feet.
Elizabeth positively identified defendant. Defendant did not testify or present any witnesses. The jury was instructed in relevant part:
“The defendant is accused in the special allegation to Count 1 . . . of having committed the crime of kidnapping with intent to commit rape, a violation of section 208D of the Penal Code. Every person who with specific intent to commit rape kidnaps any individual is guilty of the crime of kidnapping to commit rape. . . .”
“Kidnapping is the unlawful movement by physical force or by any other means of instilling fear, of a рerson . . . for a substantial distance, where such movement is not merely incidental to the commission of the rape, and where such movement substantially increases the risk of significant physical injuries to such person over and above those to which such person is normally exposed in the commission of the crime of rape itself.”
“In order to prove such allegation, each of the following elements must be proved: . . . 4[.] The movement of such person was for a substantial distance that‘s a distance more than slight or trivial; and 5[.] Such movement substantially increased the risk of significant physical injuries to such person over and above those to which such person is normally exposed in the commission of the crime of rape itself.”
The Court of Appeal first tentatively concluded that
Relying in part on a then recent Court of Appeal decision, People v. Bradley (1993) 15 Cal.App.4th 1144 [19 Cal.Rptr.2d 276], the court next concluded that the asportation test for
We granted the Attorney General‘s petition for review.
A. Is Section 208(d) a Separate Offense or an Enhancement?
At the outset, we consider whether
Both parties assert that
First, we observe that the Legislature, in the recently enacted
Second, we have previously outlined a general approach to ascertaining whether a statute is an enhancement or a substantive offense. In People v. Hernandez (1988) 46 Cal.3d 194 [249 Cal.Rptr. 850, 757 P.2d 1013], we held that
We noted that “The fact that
Since People v. Hernandez, supra, 46 Cal.3d 194, the Legislature has modified the way in which it drafts enhancements. As we recently observed in People v. Hall (1994) 8 Cal.4th 950 [35 Cal.Rptr.2d 432, 883 P.2d 974], “Although the [Determinate Sentencing Act] from its inception included sentence enhancements, originally the statutes imposing such enhancements provided only a single term, rather than a range of possible terms.” (Id. at pp. 958-959.) “[I]n 1989, the Legislature amended several existing enhancement provisions by replacing the single term of imprisonment, specified for the enhancement, with a range of three possible terms of imprisonment.” (Id. at p. 959.) Thus, contrary to what we suggested in Hernandez, supra, it is no longer dispositive that a statute is a separate crime if it prescribes confinement for one of three terms. We note, however, that the enhancement in Hall used the language, “an additional term” and “enhancement.” (Id. at p. 954;
Third, a finding that
Apparently in response to certain opposition to both the proposed lack of an asportation requirement and the severity of the penalty, a compromise was reached and Senate Bill No. 2079 was moved from
Finally, we note that at the time of
In sum, we conclude that
B. Standard for Sufficiency of the Evidence of Asportation
Because
1. Kidnapping Asportation Standards
At the time of the crime here,7 thеre existed two distinct standards of asportation for kidnapping, depending on whether the kidnapping was for
Kidnapping for robbery, or aggravated kidnapping, requires movement of the victim that is not merely incidental to the commission of the robbery, and which substantially increases the risk of harm over and above that necessarily present in the crime of robbery itself. (People v. Daniels (1969) 71 Cal.2d 1119, 1139 [80 Cal.Rptr. 897, 459 P.2d 225, 43 A.L.R.3d 677]; In re Earley (1975) 14 Cal.3d 122, 127-128 [120 Cal.Rptr. 881, 534 P.2d 721].) These two aspects are not mutually exclusive, but interrelated.
As for the first prong, or whether the movement is merely incidental to the crime of robbery, the jury considers the “scope and nature” of the movement. (People v. Daniels, supra, 71 Cal.2d at p. 1131, fn. 5.) This includes the actual distance a victim is moved. However, we have observed that there is no minimum number of feet a defendant must move a victim in order to satisfy the first prong. (People v. Daniels, supra, 71 Cal.2d at p. 1128 [to define the required movement “in terms of a specific number of inches or feet or miles would be open to a charge of arbitrariness“].)
In addition, we have since Daniels, supra, analyzеd the question of whether the movement was incidental to the commission of the underlying crime by considering the context of the environment in which the movement occurred. (People v. Daniels, supra, 71 Cal.2d at pp. 1131, fn. 5, 1140; In re Crumpton (1973) 9 Cal.3d 463, 466 [106 Cal.Rptr. 770, 507 P.2d 74].) Thus, in Daniels, the defendants, “in the course of robbing and raping three women in their own homes, forced them to move about their rooms for distances of 18 feet, 5 or 6 feet, and 30 feet respectively.” (People v. Daniels, supra, 71 Cal.2d at p. 1126.) We held that these brief movements were merely incidental to the commission of robbery. (Id. at p. 1140.) We observed, “Indeed, when in the course of a robbery a defendant does no more than move his victim around inside the premises in which he finds him-whether it be a residence, as here, or a place of business or other enclosure-his conduct generally will not be deemed to constitute the offense proscribed by
In Daniels, we relied in part on our reasoning in Cotton v. Superior Court (1961) 56 Cal.2d 459 [15 Cal.Rptr. 65, 364 P.2d 241], which concluded that the defendants could not be charged with simple kidnapping under the facts of that case. (People v. Daniels, supra, 71 Cal.2d at pp. 1129-1131, 1139.) We stated, however, “We do not imply that the facts of Cotton [movement of the victim 15 feet] are controlling, i.e., that movements of the scope and nature of those in Cotton could not support a conviction under
Likewise, in In re Crumpton, supra, 9 Cal.3d 463, the victim was forcibly moved 20 to 30 feet behind a truck parked on the service station premises. (Id. at p. 466.) We concluded that this movement did not satisfy the first part of the Daniels test, but was merely incidental to the crime of robbery. (Ibid.) We found “[p]articularly relevant . . . People v. Williams (1970) 2 Cal.3d 894 . . . , in which we held a service station, including the adjacent outdoor areas, to be analogous to a place of business or enclosure within our meaning in Daniels. In Williams the victims were forced tо move to several different sites on the service station grounds. If such conduct was insufficient to activate
The second prong of the Daniels test refers to whether the movement subjects the victim to a substantial increase in risk of harm above and beyond that inherent in robbery. (In re Earley, supra, 14 Cal.3d at p. 131; People v. Lara (1974) 12 Cal.3d 903, 908, & fn. 4 [117 Cal.Rptr. 549, 528 P.2d 365].) This includes consideration of such factors as the decreased likelihood of detection, the danger inherent in a victim‘s foreseeable attempts to escape, and the attacker‘s enhanced opportunity to commit additional crimes. (See, e.g., People v. Lara, supra, 12 Cal.3d at p. 908 & fn. 4 [examples of such risk of harm “include not only desperate attempts by the victim to extricate himself but also unforeseen intervention by third parties“]; In re Earley, supra, 14 Cal.3d at p. 132 [“asportation gave rise to dangers, not inherent in robbery, that an auto accident might occur or that the victim might attempt to escape from the moving car or be pushed therefrom by [defendant]“]; cf. Peоple v. Caudillo (1978) 21 Cal.3d 562, 574 [146 Cal.Rptr. 859, 580 P.2d 274]
The asportation requirement for simple kidnapping is less stringent than that for aggravated kidnapping, and less clear. We have stated that certain factors other than the actual distance a victim is moved are not to be considered. (People v. Caudillo, supra, 21 Cal.3d at p. 574.) However, we have resisted setting a specific number of feet as the required minimum distance, and have further required that the movement must be “substantial in character,” while offering little guidance as to what that term means. (Id. at p. 573; People v. Stanworth (1974) 11 Cal.3d 588, 601 [114 Cal.Rptr. 250, 522 P.2d 1058].) As one Court of Appeal has observed, “Jury confusion is understandable. Without a frame of reference, ‘substantial’ has little or no meaning.” (People v. Daniels (1993) 18 Cal.App.4th 1046, 1053, fn. 5 [22 Cal.Rptr.2d 877].)
For the reasons that follow in part II.B.3., we conclude that the asportation standard for kidnapping for rape is that applied to aggravated kidnapping. We first briefly review the relevant and decidedly nonlinear history of the simple kidnapping, kidnapping for robbery, and kidnapping for ransom, reward, or extortion statutes.
2. Development of Asportation Standards
In People v. Knowles, supra, 35 Cal.2d 175, we held that the “holds and detains” language of former
In People v. Chessman (1951) 38 Cal.2d 166 [238 P.2d 1001], we upheld the defendant‘s conviction for kidnapping for the purpose of robbery, with infliction of bodily harm, for which he had received the death penalty. (Id. at pp. 172, 192-193.) The defendant had forced one victim to walk 22 feet at gunpoint from the car she was in to his car, and there committed “sex crimes.” (Id. at p. 192.) We stated, “It is the fact, not the distance, of forcible removal which constitutes kidnaping in this state.” (Id. at p. 192.)
In People v. Wein (1958) 50 Cal.2d 383 [326 P.2d 457], we applied Chessman to uphold the defendant‘s convictions of kidnapping for robbery, with infliction of bodily harm, for which he also had received the death penalty. (Id. at pp. 391, 399-400Id. at pp. 391-393, 399-400.) We observed that “the Legislature has been in session several times since the Chessman case was decided, and it has not seen fit to amend the kidnaping law to limit the rule we announced. If the section, as interpreted by this court, is regarded as too harsh, the remedy is for the Legislature to redefine kidnaping, and not for this court to engraft some uncertain distance limitation onto the plain language of the section.” (Id. at p. 400.)
In Cotton v. Superior Court, supra, 56 Cal.2d 459, we implicitly declined to extend the Chessman/Wein rule to
In People v. Daniels, supra, 71 Cal.2d 1119, we abrogated the Chessman/Wein rule for kidnapping for robbery, relying in part on Cotton v. Superior Court, supra, 56 Cal.2d 459. (71 Cal.2d at pp. 1129-1131, 1139.) As noted earlier, in Daniels, the defendants “in the course of robbing and raping three women in their own homes, forced them to move about their rooms for distances of 18 feet, 5 or 6 feet, and 30 feet respectively.” (Id. at p. 1126Id. at p. 1122.)
We reversed the kidnapping convictions, observing that under the Chessman/Wein rule, “The criminologically nonsignificant circumstance that the
In People v. Williams, supra, 2 Cal.3d 894, we stated, “Although Daniels was directed toward a construction of the statute defining aggravated kidnaping (
In Stanworth, we observed that “the ‘movement’ factor of the Daniels rule is uniquely suited to
Rather, “the determining factor in the crime of [simple] kidnaping is the actual distance of the victim‘s movements; and further, that the minimum movements necessary for the commission of the crime are present where the victim is forcibly taken ‘into another part of the same county’ . . . . Finally, because the victim‘s movements must be more than slight . . . or ‘trivial’ . . . , they must be substantial in character to constitute kidnaping under
Thus, Stanworth relied on the absence of an associated crime to explain why Daniels was inapplicable to simple kidnapping. However, it noted that Cotton v. Superior Court, supra, 56 Cal.2d 459, which had invoked the simple kidnapping standard, had involved the associated crime of assault. (People v. Stanworth, supra, 11 Cal.3d at pp. 599-600.) Stanworth itself went on to apply the simple kidnapping standard to asportations resulting in the associated crimes of rape and murder. (Id. at pp. 602-603.)
We subsequently offered an alternative reason why the Daniels test was inapplicable to
We observed: “The People seek to introduce considerations--other than actual distance--as determinative of what constitutes ‘sufficient movement’ of the victim to constitute the offense of”
The issue we address in this case is whether the asportation standard for
Applying the
The court concluded that the 50-to-60-foot movement was “not a trivial or inconsequential movement, in light of the boundaries which were traversed over this distance and the unlit and secluded nature of the destination providing the necessary environment to commit the targeted crime without interruption or detection. . . . [T]he inherent danger from sexual attack in the secluded dumpster area was considerably more than the public phone area.” (People v. Bradley, supra, 15 Cal.App.4th at p. 1154.)10
The parties articulate somewhat different tests for determining whether the evidence of asportation is sufficient under
The Attorney General, relying on People v. Bradley, supra, 15 Cal.App.4th 1144, argues that the
We discern little meaningful distinction between these two tests. In effect the parties’ disagreement is not over whether the simple or aggravated kidnapping asportation standard should apply, but over whether the increase in risk of harm to the victim must be “substantial.”
We conclude that defendant has the better argument, and that the two-part Daniels asportation test should apply to
In reaching our conclusion, we are mindful of the fact that we have previously declined to extend the Daniels test to either simple kidnapping or a kidnapping involving an associated crime other than robbery. Rather, as demonstrated above, we have applied the
We are also conscious of the fact that the only occasion in which the Legislature appears to have expressly adopted the Daniels risk of harm language is in
Nor are we persuaded, as People v. Bradley, supra, 15 Cal.App.4th 1144, concluded, that we should continue to define the substantive asportation standard of a kidnapping statute solely on the basis of the punishment prescribed. Rather, our obligation is to construe the statute as a whole. We
Indeed, it is no longer clear that when the act of rape, oral copulation, sodomy, or rape by instrument is accomplished, the penalties between
Thus, the standard of asportation for
Because we interpret
The test on appeal for determining if substantial evidence supports a conviction is whether “‘a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt.‘” (People v. Johnson (1980) 26 Cal.3d 557, 576 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255].) In making this determination, we “‘must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.‘” (Ibid.)
The jury here applied the Daniels test to find that defendant moved Elizabeth a “substantial distance” and that this movement “substantially increased” her risk of physical injury “over and above those to which such person is normally exposed in the commission of the crime of rape.” Applying the same test, we conclude that the evidence of asportation in this case was sufficient to support the kidnapping conviction.
Here, Elizabeth was forcibly moved 105 feet at night from the parking lot of a closed store to the other side of a wall located at the edge of the lot. She was forced to sit against the wall and beside a small tree, 34 feet from the street. The wall blocked the view of any passersby from the parking lot side, and the tree and the bushes at the end of the wall limited detection of Elizabeth from the street. While the area beyond the wall bordered on a two-lane street, it was undeveloped, and made up of dirt and rocks. Finally, while it was light enough for Elizabeth to observe defendant‘s actions in this area, and for defendant to be able to see the blood on Elizabeth‘s underwear, the two were located right next to each other. There is no evidence as to whether they were detectable from the street.
The jury could reasonably have concluded that Elizabeth‘s forcible movement for this distance and under these circumstances was not merely incidental to the attempted commission of rape, and substantially increased her risk of harm. Thus, we cannot conclude as a matter of law that there was insufficient evidence of asportation to support the jury‘s verdict.
Conclusion
For the reasons set forth above, the judgment of the Court of Appeal is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.
Lucas, C. J., Kennard, J., Baxter, J., George, J., and Werdegar, J., concurred.
The jury, as the majority state, convicted defendant of a violation of
For this kidnapping-for-rape case, the majority adopt the kidnapping-for-robbery test set forth in People v. Daniels (1969) 71 Cal.2d 1119 [80 Cal.Rptr. 897, 459 P.2d 225, 43 A.L.R.3d 677]. The majority explain, “the standard of asportation for
Applying this test, the majority conclude that “the evidence of asportation in this case was sufficient to support the kidnapping conviction.” (Maj. opn., ante, p. 23.)
I agree with the test the court has adopted. But undеr our test I conclude no reasonable trier of fact could have found a substantial increase in the risk of harm above that necessarily present in the underlying crime. Therefore the evidence did not support the verdict, and the Court of Appeal correctly reversed the judgment.
The risk of harm accompanying the crime of attempted rape is high by itself. To prove kidnapping with the intent to rape, with its required substantial increase in that risk, the risk of harm must therefore be very high indeed. In most cases to establish such an increase in risk the prosecution must prove that the perpetrator removed the victim to a secluded “secondary location” where privacy affords the perpetrator great control and the victim very little. Many asportations to commit sexual assaults probably do involve removals of this type and hence do elevate the risk of harm sufficiently to satisfy our test. Indeed, as I understand their view, the poliсe generally believe that when a female victim follows an armed male assailant‘s order to enter a vehicle for removal to a secluded secondary location, she risks not only rape, but also death.
Defendant accosted Elizabeth about 10:30 p.m. on April 24, 1991, in the City of Fontana. At that hour and place, of course, it was nighttime. But the photographic exhibits of the crime scene all contained, in counsel‘s words, “one fatal flaw“: they were “all taken during the daytime . . . .” Before the trial‘s evidentiary phase the court forbade the jurors to visit the scene themselves to makе a nighttime assessment, and the court did not provide the jury with an actual tour of the scene. Finally, the investigating detective never visited the scene at the hour of night when the crimes occurred. In sum, the jury never obtained an accurate understanding whether the secondary location was substantially more isolated at night than was the primary.
In fact there was no substantial increase in isolation. The record reveals that a streetlight stood 65 feet from the primary location and about 125 feet from the secondary location. The secondary location was well enough lit for Elizabeth to be able to scrutinize defendant‘s features and for them to see spots of blood on her undergarments caused by a previous medical condition. Indeed, she testified that the light was of “pretty even” intensity during the entire course of events. There was thus no significant increase in seclusion attributable to decreased illumination.
Nor was there a significant increase in seclusion attributable to the presence of physical barriers to observation by third parties at the secondary location. The primary location was a deserted parking lot. Defendant led Elizabeth from there to the other side of a low wall that separated the parking lot from some train tracks, and had her sit on the ground next to the wall at a point about 34 feet from the street. The wall was only 43 inches high; hence, as long as defendant and Elizabeth were walking or standing, they could be seen from any direction. As far as can be discerned, the wall impaired only the view from the empty parking lot after Elizabeth was made to sit down. And the tree beside which Elizabeth was made to sit was so scrawny and so bare of foliage that it would not appear out of place in a drought-parched veldt; at no hour of the day or night could it have aided concealment.
On this record no reasonable trier of fact could have found the asрortation of Elizabeth “substantially increased her risk of harm.” (Maj. opn., ante, p. 23.) “[E]ven if the asportation here may conceivably have increased the risk
I would affirm the judgment of the Court of Appeal.
Notes
In People v. Williams (1990) 220 Cal.App.3d 1165 [269 Cal.Rptr. 705], the Court of Appeal upheld a simple kidnapping conviction where the victims were transported for more than an 840-foot block. (Id. at p. 1171.) In addition to the actual distance, the court concluded that the victims’ movement was not “slight or trivial” because the roadway was a major street in a large town, the “late hour of the evening offered the victims several last desperate chances for escape,” and one of the victims “attempted to escape from defendant‘s hold only because of the change in location to an area where the number of people on the street made her feel somewhat safe.” (Ibid.) The court observed that while Stender‘s analysis had been criticized in part in Caudillo, “it is apparent that consideration may be given to the locations and boundaries traversed.” (220 Cal.App.3d at p. 1171.) While we have not directly addressed this issue since Caudillo, at least one of our own cases has implicitly examined the character of the movement as well as the actual distance in determining whether there was sufficient evidence of asportation for simple kidnapping. (See People v. Sheldon (1989) 48 Cal.3d 935, 952-953 [258 Cal.Rptr. 242, 771 P.2d 1330] [while no evidence of actual distance, concluding