People v. Rayford

• Decision Date: 19 December 1994
• Docket Number: No. S035821,S035821
• Citation: 884 P.2d 1369,9 Cal.4th 1,36 Cal.Rptr.2d 317
• Court: California Supreme Court
• Parties: , 884 P.2d 1369 The PEOPLE, Plaintiff and Respondent, v. Jessie RAYFORD, Defendant and Appellant.

Page 317

36 Cal.Rptr.2d 317

9 Cal.4th 1, 884 P.2d 1369

The PEOPLE, Plaintiff and Respondent, v. Jessie RAYFORD, Defendant and Appellant.

No. S035821.

Supreme Court of California,

In Bank.

Dec. 19, 1994.

Rehearing Denied Feb. 16, 1995.

Terrence Verson Scott, under appointment by the Supreme Court, Los Angeles, and Andrew E. Rubin, Santa Monica, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Asst. Atty. Gen., Pat Zaharopoulos, Sara Gros-Cloren and Keith I. Motley, Deputy Attys. Gen., for plaintiff and respondent.

ARABIAN, Justice.

Our task is to determine whether a statute that proscribes kidnapping with the intent to commit rape, oral copulation, sodomy, or rape by instrument (Pen.Code § 208, subd. (d)), is an offense separate from, or an enhancement to, simple kidnapping (Pen.Code § 207, subd. (a)), and to delineate the circumstances under which evidence of asportation is sufficient to support a kidnapping conviction under Penal Code section 208, subdivision (d). We conclude that section 208, subdivision (d), is a separate crime, and that the evidence of asportation was sufficient to support the verdict in this case. Hence, we reverse the judgment of the Court of Appeal.

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 as she entered the parking lot of a closed store. He told her to stop and that he had a gun. Elizabeth started crying, and asked defendant not to hurt her. Defendant took Elizabeth by the arm, and told her to walk with him. He said that he would not hurt her if she did what he said.

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 person ... 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 normally would have been exposed in the commission of the crime of rape itself."

The jury found defendant guilty of simple kidnapping (PEN.CODE, § 207¹, subd. (a)), and found true the allegation that he had kidnapped the victim with the intent to commit rape pursuant to section 208, subdivision (d) (hereafter § 208(d)). The jury also convicted defendant of assault with intent to commit rape (§ 220), and second degree robbery (§ 211). He was found not guilty of the kidnapping for robbery charge. Defendant waived his right to a jury trial on the prior serious felony conviction of rape in concert and the court found the allegation true. He was sentenced to 17 years in state prison.

The Court of Appeal first tentatively concluded that section 208(d), kidnapping with the intent to commit rape, is an enhancement to the crime of section 207, subdivision (a) simple kidnapping, not a separate crime. The court further concluded, however, that defendant waived his right to challenge the form of the pleading by failing to file a demurrer.

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 section 208(d) kidnapping was that applied to section 207 simple kidnapping, not the standard used for section 209, subdivision (b) aggravated kidnapping that the trial court had used. Applying that test, the court concluded that the 105-foot distance alone was insufficient to constitute movement " 'into another part of the same county.' " Again relying in part on People v. Bradley, supra, 15 Cal.App.4th 1144, 19 Cal.Rptr.2d 276, the court stated, "Adding a consideration of the boundaries crossed does not convert the movement in this case from a slight movement to a substantial one.... [T]he victim here was not moved into an enclosed area out of public view.... [She] was taken to a place which was equally visible from the street and equally visible to people on the victim's side of the block wall. The wall only blocked the view from the parking lot side. Although the area the victim was taken to was darker than the parking lot in which she was accosted, we are not prepared to say that darkness constitutes a significant boundary.... [p] We therefore find the evidence insufficient to demonstrate asportation, an essential element of the offense." The Court of Appeal reversed the kidnapping conviction, and remanded for resentencing.

We granted the Attorney General's petition for review.

II. DISCUSSION

A. Is Section 208(d) a Separate Offense or an Enhancement?

At the outset, we consider whether section 208(d) ² is a crime separate from, or an enhancement to, the crime of section 207, subdivision (a) (hereafter § 207(a)), ³ kidnapping. If section 208(d) is an enhancement to section 207(a), it necessarily incorporates the asportation test articulated for section 207(a) simple kidnapping. If section 208(d) is a separate crime, however, we must then determine whether the asportation standard is derived from section 207 simple kidnapping or section 209 aggravated kidnapping.

Both parties assert that section 208(d) is a separate offense. We agree.

First, we observe that the Legislature, in the recently enacted section 667.61 (part of what is commonly known as the "One Strike" law), which creates a new enhancement, characterized section 208(d) as a separate crime. In particular, one of the operative circumstances that gives rise to the application of the enhancement is that "the defendant kidnapped the victim of the present [sexual] offense in violation of Section 207, 208, 209, or 209.5" (§ 667.61, subd. (e)(1), italics added.) In addition, the "One Strike" law also amends section 1203.066, subdivision (a)(6) to limit the trial court's sentencing options for "A person who violated Section 288 or 288.5 while kidnapping the child victim in violation of Section 207, 208, or 209." (Italics added.) Significantly, section 1203.066, subdivision (a)(6), formerly read, "A person convicted of kidnapping the child victim in violation of either Section 207 or 209 and who kidnapped the victim for the purpose of committing a violation of Section 288 or 288.5."

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 section 667.8, which at the time provided for an "additional term of three years" for any person convicted of a felony violation of various sexual offenses, "who, for the purpose of committing [that] sexual offense, kidnapped the victim in violation of Section 207," was an enhancement, not a substantive offense. (46 Cal.3d at pp. 200, 207-208, 249 Cal.Rptr. 850, 757 P.2d 1013.) We observed that "an enhancement 'means an additional term of imprisonment added to the base term.' " (Id. at p. 207, 249 Cal.Rptr. 850, 757 P.2d 1013, quoting Cal.Rules of Court, rule 405(c).) In contrast, a separate offense base term "involve[s] ... a choice among three possible terms prescribed by statute. (§ 1170, subd. (a)(2); [Cal.Rules of Court,] rule 405(b)....)" (46 Cal.3d at p. 207, 249 Cal.Rptr. 850, 757 P.2d 1013.) Section 667.8 provided for a single three-year term, and this "of itself suggest[ed] the section is not a separate offense." (46 Cal.3d at p. 207, 249 Cal.Rptr. 850, 757 P.2d 1013.) Moreover, "[i]ts language referring to 'an additional term' of three years is likewise consistent with other enhancement statutes." (Ibid.)

We noted that "The fact that section 667.8 includes an element in addition to those necessary to prove a violation of section 207 or the sex crimes specified, certainly d[id] not imply it has defined a new crime. Enhancements typically focus on an element of the commission of the crime or the criminal history of the defendant which is not present for all such crimes and perpetrators and which justifies a higher penalty...