People v. Martinez

• Decision Date: 08 April 1999
• Docket Number: No. S064345,S064345
• Citation: 20 Cal.4th 225,973 P.2d 512,83 Cal.Rptr.2d 533
• Court: California Supreme Court
• Parties: , 973 P.2d 512, 99 Cal. Daily Op. Serv. 2593, 1999 Daily Journal D.A.R. 3383 The PEOPLE, Plaintiff and Respondent, v. Samuel MARTINEZ, Defendant and Appellant

Page 533

83 Cal.Rptr.2d 533

20 Cal.4th 225, 973 P.2d 512, 99 Cal. Daily Op. Serv. 2593,

1999 Daily Journal D.A.R. 3383

The PEOPLE, Plaintiff and Respondent, v. Samuel MARTINEZ, Defendant and Appellant.

No. S064345.

Supreme Court of California

April 8, 1999.

[973 P.2d 514] Barbara Michel, Berkeley, under appointment by the Supreme Court, for Defendant and Appellant.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Stan Cross, W. Scott Thorpe, J. Robert Jibson and Jean M. Marinovich, Deputy Attorneys General, for Plaintiff and Respondent.

BROWN, J.

We granted review in this case to decide whether PENAL CODE SECTION 208¹, subdivision (b)(section 208(b)), which prescribes a higher sentence for kidnapping a person under the age of 14, is a separate crime or a punishment provision, and what the standard of asportation is for that statute. The Court of Appeal determined section 208(b) is a separate offense and applied a modified standard of asportation for aggravated kidnapping (see § 209, subd. (b)(1)).

Regardless whether section 208(b) is a punishment provision or a separate crime, we conclude it has the same asportation requirement as simple kidnapping, and articulate what factors are appropriate to making that determination. Because, as a result, we overrule People v. Caudillo (1978) 21 Cal.3d 562, 146 Cal.Rptr. 859, 580 P.2d 274 (Caudillo ), we do not apply the holding retroactively to defendant. We further conclude the evidence was insufficient to support the verdict for simple kidnapping; however, it shows defendant is guilty of attempted kidnapping of a person under the age of 14. We therefore reverse the judgment of the Court of Appeal and modify the conviction accordingly.

I. FACTS AND PROCEDURAL BACKGROUND

In 1993, defendant Samuel Martinez was convicted of lewd and lascivious conduct with a child under the age of 14 in violation of section 288. Although ordered not to live with minor children, in September 1994, he rented a room from a family in Reedley, California. The household included Victor, his wife, his 12-year-old son, Victor, Jr., his daughters, Ramona (15 years old at the time of the crime) and Janet (13 years old at the time of the crime), and his adult niece, Paula, and her 1-year-old daughter, Evelyn.

At some point prior to March 21, 1995, defendant made sexual overtures to Ramona. When Ramona's mother confronted him, he asked forgiveness and said he was drunk.

In the middle of the night of March 21, 1995, defendant returned home inebriated and instigated a violent confrontation with the family. Eventually, those present locked themselves in the bathroom for protection. Defendant repeatedly tried to break in, pounding on the door, knocking one doorknob off, and shattering a window.

During the melee, Victor, Victor, Jr., and Ramona managed to escape to seek help. Paula, who was holding Evelyn, and Janet were still in the bathroom when defendant forced the door open. He held a knife in one hand and a hammer in the other, and blood dripped from both hands. He demanded to know where Ramona was and repeatedly said someone was going to pay for what they had done to him. He put the knife to Paula's rib cage, and demanded that Janet take him to Ramona.

Still holding the knife, defendant placed his other hand on Janet's shoulder, and led her out of the residence. After going through the next room, the kitchen, and defendant's bedroom, and crossing a 15-foot porch, they proceeded across the backyard and parking area, which bordered on a 5-acre vacant lot. At this point, officers responding to the scene spotted defendant and Janet between 2 trees, approximately 40 to 50 feet from the back of the residence. After a brief pursuit, defendant was apprehended.

Defendant was charged with kidnapping (§ 207, subd. (a); section 207(a)), three counts of assault with a deadly weapon (§ 245, subd. (a)(1)), false imprisonment (§ 236), and making terrorist threats (§ 422), with personal use of a knife alleged as to the kidnapping, false imprisonment, and terrorist threat offenses. (§ 12022, subd. (b).) The kidnapping charge alleged the victim was under 14 years of age. (§ 208(b).) ² Defendant was also charged with having suffered a prior serious felony conviction. (§§ 288, subd. (a), 667, subds. (a)(1), (b)-(i), 1192.7, subd. (c), 1170.12, subds. (a)-(e).)

The jury found defendant guilty on all counts except the charge of assault with a deadly weapon against Evelyn, for which a mistrial was declared. It also found true the weapon use enhancements and the allegation regarding Janet's age. In a bifurcated trial, the court determined defendant had suffered a prior felony conviction. Defendant was sentenced to 33 years and 4 months in state prison.

The Court of Appeal concluded section 208(b) is a separate offense. In considering We granted the Attorney General's petition for review, limited to the issues set forth above.

                [973 P.2d 516] the appropriate asportation standard, it determined that "[i]f we apply the asportation test for simple kidnapping to these facts and treat [People v. Brown (1974) 11 Cal.3d 784, 114 Cal.Rptr. 426, 523 P.2d 226] and [People v. Caudillo (1978) 21 Cal.3d 562, 146 Cal.Rptr. 859, 580 P.2d 274, disapproved of on other grounds in People v. Escobar (1992) 3 Cal.4th 740, 749-751, 12 Cal.Rptr.2d 586, 837 P.2d 1100,] as legally binding precedent, then we would have to find that inadequate evidence was presented at trial to show that [defendant] was guilty of simple kidnap in violation of  section 207, subdivision (a)."  "[T]roubled" by this result, the court created a "modified version of the asportation standard for aggravated kidnap."   Because the jury had not been instructed according to this formulation, it reversed and remanded for a new trial
                

II. DISCUSSION

A. Section 208(b) as a Separate Crime or a Punishment Provision

Section 208(b) provides for an increased sentencing range "[i]f the person kidnapped is under 14 years of age at the time of the commission of the crime...." Because section 208(b) proscribes "kidnapp[ing]" and not merely holding and detaining an individual, it must be construed to contain an asportation requirement. (People v. Rayford (1994) 9 Cal.4th 1, 11, 36 Cal.Rptr.2d 317, 884 P.2d 1369 (Rayford ); cf. § 209, subd. (a); People v. Macinnes (1973) 30 Cal.App.3d 838, 844, 106 Cal.Rptr. 589.) Defendant asserts the statute is an enhancement for section 207(a). ³ If so, it necessarily incorporates the asportation standard applicable to simple kidnapping. (See Rayford, supra, 9 Cal.4th at p. 8, 36 Cal.Rptr.2d 317, 884 P.2d 1369.) The Attorney General contends section 208(b) is a separate crime. If that is the case, we must determine whether the asportation standard is derived from simple kidnapping (§ 207(a)) or aggravated kidnapping (§ 209, subd. (b)(1)). ⁴ (See Rayford, supra, 9 Cal.4th at p. 8, 36 Cal.Rptr.2d 317, 884 P.2d 1369.)

Aggravated kidnapping is for the purpose of robbery or certain sex offenses. (§ 209(b)(1); see People v. Stanworth (1974) 11 Cal.3d 588, 598, 114 Cal.Rptr. 250, 522 P.2d 1058; see generally, Rayford, supra, 9 Cal.4th at p. 20, 36 Cal.Rptr.2d 317, 884 P.2d

                [973 P.2d 517] 1369;  People v. Daniels, supra, 71 Cal.2d at p. 1139, 80 Cal.Rptr. 897, 459 P.2d 225.)   In contrast, culpability under section 208(b), as with simple kidnapping, arises independently of the commission or attempted commission of any other offense.  (People v. Stanworth, supra, 11 Cal.3d at pp. 600-601, 114 Cal.Rptr. 250, 522 P.2d 1058;  see In re Earley (1975) 14 Cal.3d 122, 128-129 & fn. 9, 120 Cal.Rptr. 881, 534 P.2d 721.)   Since the Legislature cast this form of kidnapping in terms of the victim's age rather than the perpetration of an underlying crime, we may infer an intent to incorporate the elements of  section 207(a).  Accordingly, regardless of whether section 208(b) is a separate crime or a punishment provision, the applicable standard for asportation is that required for simple kidnapping
                

B. Asportation Standards ⁵

With respect to asportation, aggravated kidnapping requires movement of the victim that is not merely incidental to the commission of the underlying crime and that increases the risk of harm to the victim over and above that necessarily present in the underlying crime itself. (§ 209(b)(2); see Rayford, supra, 9 Cal.4th at pp. 12, 22, 36 Cal.Rptr.2d 317, 884 P.2d 1369; People v. Daniels, supra, 71 Cal.2d at p. 1139, 80 Cal.Rptr. 897, 459 P.2d 225.) "These two aspects are not mutually exclusive, but interrelated." (Rayford, supra, 9 Cal.4th at p. 12, 36 Cal.Rptr.2d 317, 884 P.2d 1369.)

In determining "whether the movement is merely incidental to the [underlying] crime ... the jury considers the 'scope and nature' of the movement. [Citation.] 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." (Rayford, supra, 9 Cal.4th at p. 12, 36 Cal.Rptr.2d 317, 884 P.2d 1369; People v. Daniels, supra, 71 Cal.2d at p. 1128, 80 Cal.Rptr. 897, 459 P.2d 225 ["to define the phrase 'another part of the same county,' in terms of a specific number of inches or feet or miles would be open to a charge of arbitrariness"].)

"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 [the underlying crime]. [Citations.] 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. [Citations.] The fact that these dangers do not in fact materialize does not, of course, mean that the risk of harm was not increased. [Citations.]" (Rayford, supra, 9 Cal.4th at...