Error and/or relief
We reverse the defendant’s convictions for kidnapping to commit robbery in counts 11 and 12, and we reduce the convictions in counts 11 and 12 to the lesser included offense of felony false imprisonment by violence or menace. We remand the matter for a full resentencing as to all counts, so that the trial court can exercise its sentencing discretion in light of the changed circumstances.
First Holding:
Kidnapping for robbery requires a simple kidnapping in which the movement increased the risk of harm to the victim over and above that necessarily present in the intended underlying offense. The increased risk may be of either physical or psychological harm.
Authority:
PEN 209(b)(1)–(2)
People v. Rayford (1994) 9 Cal.4th 1, 11–12
People v. Waqa (2023) 92 Cal.App.5th 565, 577
People v. Nguyen (2000) 22 Cal.4th 872, 886
Second Holding:
In a simple kidnapping or kidnap for robbery involving an associated crime, the jury should be instructed to consider whether the distance a victim was moved was incidental to the commission of that crime in determining the movement’s substantiality. Such consideration is relevant to determining whether more than one crime has been committed, and is amply supported by the case law. An associated crime for the purposes of simple kidnapping is any criminal act the defendant intends to commit where, in the course of its commission, the defendant also moves a victim by force or fear against his or her will.
Authority:
People v. Williams (2017) 7 Cal.App.5th 644, 671
Third Holding:
Whether movement is incidental and whether it increased the risk to the victim are not mutually exclusive, but interrelated.
Authority:
People v. Hin (2025) 17 Cal.5th 401, 470
Fourth Holding:
If in the course of a robbery a defendant does no more than move his victim around inside the premises in which he finds him or her—whether it be a residence or a place of business or other enclosure—his conduct generally will not be deemed to constitute the offense proscribed by section 209. Indeed, most movements that have been found to be insubstantial or merely incidental to the underlying crime have been within a building, or within the premises of a business. It is not unusual in the course of a robbery for a robber to move the victims to one spot to make it easier for the robber to search for valuables and flee undetected. Although measured distance is relevant, no minimum distance is required to satisfy the asportation requirement so long as the movement is substantial. Each case must be considered in the context of the totality of its circumstances.
Authority:
People v. Daniels (1969) 71 Cal.2d 1119, 1140
People v. Power (2008) 159 Cal.App.4th 126, 139
People v. Leavel (2012) 203 Cal.App.4th 823, 834
People v. Dominguez (2006) 39 Cal.4th 1141, 1152
People v. Corcoran (2006) 143 Cal.App.4th 272, 279 [holding that movement of 10 feet was a substantial distance in connection with a robbery]
Fifth Holding:
In general, to prove the crime of simple kidnapping, the prosecution must prove three elements: (1) a person was unlawfully moved by the use of physical force or fear; (2) the movement was without the person’s consent; and (3) the movement of the person was for a substantial distance.
Authority:
People v. Hartland (2020) 54 Cal.App.5th 71, 77
Sixth Holding:
Where, as here, the appellate court finds there is insufficient evidence to support a conviction for a greater offense, we may modify the judgment of conviction to reflect a conviction for a lesser included offense. We remand the matter for a full resentencing as to all counts, so that the trial court can exercise its sentencing discretion in light of the changed circumstances.
Authority:
PEN 1181, subd. 6
PEN 1260
People v. Bailey (2012) 54 Cal.4th 740, 748
People v. Ellis (2025) 108 Cal.App.5th 590, 601
People v. Buycks (2018) 5 Cal.5th 857, 893
Seventh Holding:
Our Supreme Court has long recognized that under sections 1181, subdivision 6, and 1260, an appellate court that finds that insufficient evidence supports the conviction for a greater offense may, in lieu of granting a new trial, modify the judgment of conviction to reflect a conviction for a lesser included offense.
Authority:
People v. Navarro (2007) 40 Cal.4th 668, 671