People v. Rayford

*24 MOSK, J., Dissenting.

In my view the evidence of asportation was insufficient to support the conviction of kidnapping in violation of Penal Code section 208, subdivision (d).

The jury, as the majority state, convicted defendant of a violation of Penal Code section 207, subdivision (a), and found true an allegation that he kidnapped Elizabeth R. with the intent to rape under Penal Code section 208, subdivision (d). As do the majority, I review this case as if defendant had been convicted of the substantive offense of kidnapping with intent to rape under the latter provision although in fact there was no rape.

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 section 208(d) kidnapping requires that the movement of the victim be for a distance which is more than that which is merely incidental to the commission or attempted commission of rape, oral copulation, sodomy, or rape by instrument, and that this movement substantially increase the risk of harm to the victim over and above that necessarily present in the commission or attempted commission of these crimes.” (Maj. opn., ante, p. 22.)

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 under 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 police 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.

*25 This case, however, presents different facts. The jury could not have learned whether the secondary location was significantly more secluded than the “primary location”—i.e., the place where Elizabeth was accosted—and therefore could not properly have determined that there was a substantial increase in the risk of harm to her.

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 make 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 asportation 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 *26 of harm to [Elizabeth] in some degree, it cannot have ‘substantially’ increased it as required by Daniels.” (People v. Lara (1974) 12 Cal.3d 903, 911 [ 117 Cal.Rptr. 549 , 528 P.2d 365 ] (conc. & dis. opn. of Mosk, J.).)

I would affirm the judgment of the Court of Appeal.

Appellant’s petition for a rehearing was denied February 16, 1995.