The PEOPLE, Plaintiff and Respondent, v. Tyrone Miguel ALLEN, Defendant and Appellant.
Appellant appeals from criminal convictions for carjacking, kidnapping of a person under the age of 14, first degree burglary, second degree robbery, receiving stolen property, and auto theft following a bifurcated jury trial of two consolidated cases.
At the conclusion of the bifurcated portion of the trial, the jury found true allegations that appellant suffered a prior conviction for voluntary manslaughter in 1985, qualifying both under the “Three Strikes” law (qualifying prior conviction) and as a “serious felony” sentencing enhancement, that appellant suffered a prior state prison term following a conviction of receiving stolen property in 1992; and that the convictions for carjacking, kidnapping, and robbery were committed while appellant was on bail on his own recognizance (OR release). On December 14, 1995, the court sentenced appellant to serve an aggregate state prison term of 19 years, 4 months. This appeal followed.
In the published portion of this opinion, we conclude the jury could properly consider the nature, character, and purpose of the victim's asportation, in addition to actual measured distance, when determining whether the movement was “substantial” as required for the crime of kidnapping. We remand the case for a further sentencing hearing at which the trial court may determine if discretion should be exercised in striking appellant's prior conviction and the 1-year prior prison term enhancement imposed. Based on the People's concession, the conviction for receiving stolen property is reversed. The judgment entered and sentence imposed are affirmed in all other respects.
Procedural History and Assignments of Error
Appellant's multiple convictions followed the consolidation and trial of two criminal informations filed by the San Francisco County District Attorney's Office. The first information (No. 158066, sometimes referred to herein as the “066 action”) charged appellant with first degree burglary (Count I) and receiving stolen property (Count II). Also included were allegations that appellant suffered a qualifying prior conviction within the meaning of the Three Strikes law based upon a 1985 voluntary manslaughter conviction, and that appellant also suffered a prior prison term resulting from a 1992 receiving stolen property conviction.
Following arraignment and after numerous continuances, appellant was released on his own recognizance on August 3, 1995.
A subsequent information was filed by the district attorney on September 11, 1995, charging appellant with new crimes alleged to have been committed by him while on OR release. The new information included charges of carjacking (Count I), kidnapping during the commission of a carjacking (Count II), attempted kidnapping during commission of a carjacking (Count III), kidnapping (Count IV), second degree robbery (Count V), and auto theft (Count VI). This second information (No. 161194, sometimes referred to herein as the “194 action”) also included sentencing enhancement allegations that appellant suffered prior conviction of a serious felony, that appellant suffered a prior prison term following his 1992 conviction for receiving stolen property (also alleged as a sentencing enhancement in the 066 action), and new enhancements based on the allegation that appellant committed the crimes charged in the 194 action while on OR release. Also included was the allegation of appellant's qualifying prior conviction in 1985 within the meaning of the Three Strikes law.
Over the ensuing months there was considerable law and motion activity relating to the second information, the details of which are not pertinent to this appeal, with the exceptions that the trial court granted appellant's motion to dismiss Count II in the 194 action (kidnapping in the commission of a carjacking), and granted respondent's motion to consolidate the 066 and 194 actions. As a result of amendments, counts in the 194 action which were presented to the jury at the commencement of trial included carjacking (Count I), kidnapping of a victim under the age of 14 (Count IV), second degree robbery (Count V), and auto theft (Count IV). However, the counts contained in the 066 action remained unchanged. Similarly, the sentencing enhancements and qualifying prior conviction previously recounted in both informations were unchanged and bifurcated upon appellant's request.
On November 9, 1995, the jury returned its verdict finding appellant guilty as charged on all remaining counts in the 066 and 194 actions. Following presentation of evidence relating to the bifurcated sentencing enhancements and qualifying prior conviction later that same day, the jury also found true each and all of the alleged enhancements.
Thereafter, the trial court sentenced appellant to an aggregate state prison term of 19 years, 4 months in the 066 action, calculated as follows: The court selected the carjacking count in the 194 action as the base term, and imposed the midterm of 5 years for this count. That term was doubled to 10 years as a result of the prior manslaughter conviction, and a consecutive term of 2 years was added based upon the OR enhancement. Appellant was sentenced to 16 months for the burglary conviction, to which the court added a 5-year serious felony enhancement and a 1-year prior prison term enhancement.
The trial court also sentenced appellant to a concurrent 8-year midterm for the kidnapping conviction in the 194 action, which was doubled to 16 years as a result of the manslaughter conviction. Appellant was sentenced to a doubled 6-year term on the robbery conviction in the 194 action, which was also ordered to run concurrently. A doubled 4-year term was imposed for the auto theft conviction in the 194 action, and an 8-month term was imposed for the conviction of receiving stolen property count in the 066 action. To the counts on which appellant was convicted in the 194 action, other than the carjacking count, the court added a total of 3 years for the OR enhancements, and ordered all of this additional time to be served concurrently with the 19 years, 4 months imposed.
Assignments of error in this timely appeal include the following: (1) The kidnapping conviction was not supported by sufficient evidence, particularly as to the required element of “asportation of the victim;” (2) the trial court erred in instructing the jury on the element of asportation in the crime of kidnapping; (3) the trial court erred in instructing the jury with the 1994 revision to CALJIC No. 2.90; (4) remand for resentencing is required under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628 to determine whether discretion should be exercised in striking appellant's prior manslaughter conviction; and (5) the case should be remanded for a resentencing hearing to determine whether the court should exercise its discretion in striking the 1-year prior prison term enhancement imposed.
The Kidnapping Conviction is Supported By Substantial Evidence and the Jury Was Properly Instructed As To The Element of “Asportation”
The first two assignments of error are inextricably interrelated and are therefore discussed together. Appellant raises both legal and factual issues, claiming the court instructed the jury improperly as to the legal standard for the “asportation” element of the crime of kidnapping, and that had the proper standard been applied, there was a lack of substantial evidence presented which would support a conviction for kidnapping.
The standard of review applied to determine the factual sufficiency of the evidence to support a conviction for kidnapping directs appellate courts to view the evidence in the light most favorable to the respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Lewis (1990) 50 Cal.3d 262, 277, 266 Cal.Rptr. 834, 786 P.2d 892.) Therefore, we review the evidence presented at trial in that light.1
On August 7, 1995, May Sun-Young and her family lived at 2951 Treat Street in San Francisco. That morning, Ms. Sun-Young was on her way to take her 7-year old daughter, Kirstie, to summer camp and stopped her automobile briefly in the driveway to close her garage door manually as she was backing out onto the street.
As Ms. Sun-Young closed her garage door, a man approached her from behind and said, “Excuse me, can you do me a favor?” While turning around she saw the man later identified as appellant 2 getting into her vehicle, whose engine was still running. He then locked the car doors. Kirstie was still in the vehicle with her seatbelt on and began crying. Because the driver's side window was rolled down about seven inches, Ms. Sun-Young put her arms through the window and struggled with appellant in an attempt to reach the ignition key and turn off the engine.
Appellant then released the parking brake, put the vehicle in reverse, and backed out of the driveway with Kirstie inside and Ms. Sun-Young running alongside the vehicle still attempting to reach the ignition key. The vehicle backed across Treat Street, which was a two-lane road with two parking lanes, until it hit the opposite curb and came to a stop. Appellant estimated the vehicle movement was 30-40 feet. While respondent now claims this estimate to be “speculation,” below both sides at different times suggested that the distance moved was approximately 5 car lengths, or 50 feet. Appellant exited the vehicle, threw the car keys onto the ground, shoved Ms. Sun-Young against a fence, and ran down the street carrying her purse which had been left in the vehicle. Shortly thereafter, a neighbor on Treat Street several blocks away saw a man run by. In response to the neighbor's attempts to stop the man, the fleeing suspect stated, “Stay back, I got a gun.” After a brief struggle, the man ran off but was later apprehended by San Francisco police officers and identified as appellant.
The jury instruction given regarding the simple kidnapping count was CALJIC No. 9.52, which sets forth the elements of kidnapping of a person under 14 years of age as follows: “Every person who unlawfully and with physical force or by any other means of instilling fear moves any other person under 14 years of age without her consent for a substantial distance, that is, a distance more than slight or trivial, is guilty of the crime of kidnapping ․” (Pen. Code, § 208, subd. (b); all further statutory references are to the Penal Code unless otherwise indicated.) The only element of the crime for which appellant asserts there was insufficient evidence and inadequate jury instructions is asportation. For “simple” kidnapping, that is, a kidnapping not elevated to a statutory form of “aggravated” kidnapping, the movement needed must be “substantial,” or a distance that is more than “trivial, slight, or insignificant.” (People v. Caudillo (1978) 21 Cal.3d 562, 572, 146 Cal.Rptr. 859, 580 P.2d 274 (Caudillo ), overruled on other grounds in People v. Escobar (1992) 3 Cal.4th 740, 749-751, 12 Cal.Rptr.2d 586, 837 P.2d 1100.)
Appellant first argues that his conviction for simple kidnapping 3 must be reversed because the minimum distance requirement for asportation is not met. He asserts the movement of Ms. Sun-Young's vehicle 30-50 feet down her driveway and across Treat Street with Kirstie inside as a matter of law cannot be “substantial,” or a distance that is more than “trivial, slight or insignificant.” (Caudillo, supra, 21 Cal.3d at p. 572, 146 Cal.Rptr. 859, 580 P.2d 274.)
Appellant is correct that under most cases decided pre-1981 which have examined only the actual distance involved, the movement here would not meet the legal test of substantiality. In People v. Brown (1974) 11 Cal.3d 784, 114 Cal.Rptr. 426, 523 P.2d 226 (Brown ), after breaking into the victim's residence, the defendant forced the victim to accompany him through a search of her house for her husband. When the victim's husband was not found, the defendant moved the victim outside and along a passageway next to the house until a neighbor's intervention caused the defendant to abandon the victim and flee alone. The total distance the victim was moved was unascertained. The Supreme Court held the asportation of the victim was insufficient to satisfy the “substantial” requirement and was no more than trivial. (Id. at pp. 788-789, 114 Cal.Rptr. 426, 523 P.2d 226.)
In the case of Caudillo, the defendant accosted the victim in an apartment building elevator and led her away to a storage room and then to her apartment. Once again the record was silent as to the actual distance traveled between the elevator and storage room or between the storage room and the victim's apartment. (Caudillo, supra, 21 Cal.3d at p. 568, fn. 2, 146 Cal.Rptr. 859, 580 P.2d 274.) The court reversed the simple kidnapping conviction concluding the record did not support a finding of “substantial” movement. The People argued distance alone was not determinative, and the jury could consider other factors such as the character of the movement and its purpose to find “substantiality.” While stating such factors might be relevant to aggravated kidnapping, the court rejected attempted reliance on similar factors in the case of simple kidnapping. (Id. at p. 574, 146 Cal.Rptr. 859, 580 P.2d 274.)
The Supreme Court reviewed the asportation requirement for simple kidnapping again in People v. Green (1980) 27 Cal.3d 1, 164 Cal.Rptr. 1, 609 P.2d 468 (Green ), questioned on other grounds in People v. Guiton (1993) 4 Cal.4th 1116, 17 Cal.Rptr.2d 365, 847 P.2d 45. The movement of the victim there was analyzed in three separate segments: The first consisted of a 20-mile automobile drive during which the victim voluntarily accompanied the defendant under false pretenses, but without fear of force being employed; the second occurred 5 miles short of reaching the defendant's intended destination, when the victim attempted to climb from the front seat into the rear seat and was restrained by the defendant; and the third occurred after the vehicle stopped and all occupants got out. At that point, the defendant armed himself and forced the victim to accompany him approximately 90 feet through underbrush to the place where he murdered her. The court concluded the first segment did not constitute asportation because of the absence of force or fear. The second, movement within the car, was plainly inadequate. In evaluating the sufficiency of the 90 feet third segment, the court examined other cases in which distances were known.
“Most of our decisions holding forcible movements of a victim to be ‘substantial’ within the meaning of the law of kidnap[p]ing involved distances far in excess of that here shown. (See, e.g., People v. Camden  16 Cal.3d 808, [129 Cal.Rptr. 438, 548 P.2d 1110] [miles]; In re Earley (1975) 14 Cal.3d 122 [120 Cal.Rptr. 881, 14 Cal.3d 122] [10-13 blocks]; People v. Lara (1974) 12 Cal.3d 903 [117 Cal.Rptr. 549, 528 P.2d 365] [miles]; People v. Stanworth  11 Cal.3d 588, 602-604 [114 Cal.Rptr. 250, 522 P.2d 1058] [from 1/4 mile to 5 to 10 miles]; People v. Milan (1973) 9 Cal.3d 185 [107 Cal.Rptr. 68, 507 P.2d 956] [miles]; People v. Beamon (1973) supra, 8 Cal.3d 625 [105 Cal.Rptr. 681, 504 P.2d 905] [15 blocks].) The shortest distance this court has ever held to be ‘substantial’ for this purpose was a full city block. (People v. Thornton (1974) 11 Cal.3d 738, 768 [114 Cal.Rptr. 467, 523 P.2d 267].)
“On the other hand, in a number of cases we have ruled that the distance that the victim was transported was inadequate as a matter of law to constitute movement ‘into another part of the same county’ within the meaning of section 207․ (See, e.g., People v. Caudillo (1978) 21 Cal.3d 562 [146 Cal.Rptr. 859, 580 P.2d 274] [from an elevator to a storage room, down the hall to the victim's apartment, then around the apartment]; People v. Stanworth (1974) supra, 11 Cal.3d at p. 597 [114 Cal.Rptr. 250, 522 P.2d 1058] [25, feet]; In re Crumpton (1973) 9 Cal.3d 463 [106 Cal.Rptr. 770, 507 P.2d 74] [20-30 feet]; People v. Mutch (1971) 4 Cal.3d 389 [93 Cal.Rptr. 721, 482 P.2d 633] [30-40 feet]; People v. Williams (1970) 2 Cal.3d 894, 88 Cal.Rptr. 208, 471 P.2d 1008[, cert. denied 401 U.S. 919, 91 S.Ct. 903, 27 L.Ed.2d 821] [around a gas station]; People v. Daniels (1969) supra, 71 Cal.2d 1119 [80 Cal.Rptr. 897, 459 P.2d 225] [around several premises].)” (Green, supra, 27 Cal.3d at p. 66, 164 Cal.Rptr. 1, 609 P.2d 468, fns. omitted.)
The Supreme Court also reexamined the facts in Brown, supra, 11 Cal.3d 784, 114 Cal.Rptr. 426, 523 P.2d 226, and calculated that the total possible movement in that case was no more than the 90 feet of asportation also present in Green. Since it had six years earlier found this same distance alone to be insufficient, the court concluded that “[f]or the reasons stated in Brown, therefore, we conclude that the latter brief movement did not amount to a taking ‘into another part of the same county’ and hence would be insufficient as a matter of law to support the verdict of guilt [for kidnapping]․” (Green, supra, 27 Cal.3d at p. 67, 164 Cal.Rptr. 1, 609 P.2d 468.)
Despite persistent pronouncements that there is no mathematical “bright line” test for the asportation element of simple kidnapping,4 the decisions exemplified by those discussed above exhibit an apparent juridical thirst for just such a test. To the contrary, with one exception, another line of more contemporary cases, including others authored by the Supreme Court, have resisted setting forth a specific minimum distance below which the asportation requirement could not be satisfied, or have considered the nature and character of the movement in addition to the absolute distance measured in inches, feet, yards, or miles.
The court in People v. Stender (1975) 47 Cal.App.3d 413, 121 Cal.Rptr. 334 dealt with a kidnapping charge which involved movement of the victim of approximately 200 feet. “[I]t cannot be said whether 200 feet, standing alone, is trivial or substantial movement. However, this 200 feet becomes more a substantial distance when it is considered it accomplished the purpose of removing the victim from the ready help of her mother.” (Id. at p. 423, 121 Cal.Rptr. 334.)
Similarly in People v. Williams (1990) 220 Cal.App.3d 1165, 1171, 269 Cal.Rptr. 705, the court considered both the actual distance and the qualitative facts that the movement exposed the victim to increased risk of harm by forcing her through a major traffic arterial and was for the purpose of escape.
People v. Bradley (1993) 15 Cal.App.4th 1144, 19 Cal.Rptr.2d 276, was an aggravated kidnapping case in which the movement involved was 50 to 60 feet. Defendant forcibly moved the 16-year-old victim from a lighted telephone booth to a dimly lit garbage dumpster area where he sexually assaulted her. The court held this distance, when viewed in the context of the circumstances surrounding the movement, met the substantiality requirement for asportation. “After having said this [applying the asportation test for simple kidnapping to aggravated kidnapping under section 208 subdivision (d) ],5 we acknowledge distance, in and of itself, is not the only factor probative of asportation. Consideration must be given to the change in surroundings between the point of capture and destination.” (Id. at p. 1153, 19 Cal.Rptr.2d 276.)
While citing from People v. Daniels (1969) 71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225 (Daniels ), the court in People v. Stanworth, supra, 11 Cal.3d 588, 114 Cal.Rptr. 250, 522 P.2d 1058 (Stanworth ) cautioned, “In enacting section 207, the Legislature did not provide a definition of kidnap [p]ing that involves movements of an exact distance; rather, it defined it in minimum terms as forcible movements ‘into another part of the same county.’ (§ 207.) Indeed, ‘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․' ” (Id. at pp. 600-601, 114 Cal.Rptr. 250, 522 P.2d 1058.)
For more than 90 years California has recognized kidnapping committed during the commission of certain crimes to be “aggravated” forms of kidnapping meriting increased penalties. (See Bickel, Struggling with California's Kidnapping to Commit Robbery Provision (1976) 27 Hastings L.J. 1335, 1338.) Although kidnapping during the commission of robbery was the first form of aggravated kidnapping, in recent years kidnapping in the commission of rape (§ 208, subd. (d)) and kidnapping in the commission of a carjacking (§ 209.5) have been added.
Where a form of aggravated kidnapping is charged, in addition to the movement meeting the “substantiality” test, it also must be of such a nature as to substantially increase the risk of harm to the victim beyond the danger posed by the associated crime and not be merely incidental to its commission. (People v. Rayford (1994) 9 Cal.4th 1, 36 Cal.Rptr.2d 317, 884 P.2d 1369 (Rayford ); CALJIC No. 9.54.) In Rayford, the defendant was charged, among other crimes, with kidnapping with intent to commit rape. The victim had been forcibly moved 105 feet after being accosted while walking home from a bus stop. The path of movement was from a parking lot to a nearby wall where the defendant and victim would be better obscured from view by passersby. After ordering the victim to remove her clothes, the defendant robbed her but apparently was dissuaded by the victim from committing rape. The entire incident took 15-20 minutes.
The trial court had instructed the jury in accordance with the asportation requirement believed necessary for an “aggravated” kidnapping, that is, movement for a substantial distance, more than that incident to the commission of the intended crime of rape, and of such a nature that there was a substantial risk of harm from the movement beyond the risk attendant to the intended crime. The Court of Appeal reversed the trial court concluding only the asportation element for simple kidnapping was required (that the movement be substantial and more than a trivial or slight distance). (Rayford, supra, 9 Cal.4th at p. 14, 36 Cal.Rptr.2d 317, 884 P.2d 1369.)
The Supreme Court reversed the Court of Appeal, holding the asportation requirement for kidnapping a victim with intent to commit rape is derived from another “aggravated” kidnapping, and thus the trial court was correct in the manner in which the jury was instructed. The Supreme Court noted the two-pronged test utilized by the trial court was first articulated in People v. Daniels, supra, 71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225, which held that in order for the defendant to be properly charged with the aggravated crime of kidnapping in the commission of robbery, the movement of the victim had to be more than that required for simple kidnapping. (Rayford, supra, 9 Cal.4th at p. 12, 36 Cal.Rptr.2d 317, 884 P.2d 1369.) The defendants in Daniels, in the course of robbing and raping 3 women in their homes, forced them to move about rooms in those houses for distances of 5 to 30 feet. Without setting any distance parameters per se, the court concluded the “scope and nature” of the movements was merely incidental to the underlying crimes and would not support separate kidnapping charges. (Daniels, supra, 71 Cal.2d at p. 1131, fn. 5, 80 Cal.Rptr. 897, 459 P.2d 225.) Thus, the standard has evolved in the aggravated crimes of kidnapping in the commission of robbery or kidnapping in the commission of rape that the asportation must first be “substantial,” and more than “trivial” or “slight,” as is required for simple kidnapping. However, the movement must also be beyond that which is incidental to commission of the underlying crime and involve exposing the victim to risk of harm over and above that associated with the commission of the underlying crime. (Rayford, supra, 9 Cal.4th at p. 22, 36 Cal.Rptr.2d 317, 884 P.2d 1369.)
In commenting upon the asportation requirement common to all forms of kidnapping, the Supreme Court in Rayford revealed a dissatisfaction with those cases which have refused to consider factors beyond simple mathematical distance when evaluating the “substantiality” of movement. “Because we interpret section 208(d) to incorporate the aggravated kidnapping asportation standard, we need not reach the question of whether Caudillo 's rejection of certain factors other than the actual distance traveled should be revisited. We recognize that Caudillo 's narrow approach might be subject to the criticism that it fails to appreciate that a primary reason forcible asportation is proscribed by the kidnapping statutes is the increase in the risk of harm to the victim that arises from the asportation. [Citations.] ․ Contrary to our language in Caudillo, this evaluation [of a similar case] would include review of such factors as ‘the defendant's motivation to escape detection,’ and ‘the possible enhancement of danger to the victim resulting from the movement.’ [Citation.]” (Rayford, supra, 9 Cal.4th at p. 22, 36 Cal.Rptr.2d 317, 884 P.2d 1369.)
The court also criticized the failure of the court in Bradley, supra, 15 Cal.App.4th 1144, 19 Cal.Rptr.2d 276 to apply correctly the full Daniels test to a case of aggravated kidnapping, and stated the following concerning the substantial distance analysis in Bradley: “It is apparent that Bradley reviewed the sufficiency of the evidence of asportation for simple kidnapping on bases arguably inconsistent with People v. Caudillo, supra, 21 Cal.3d 562 [146 Cal.Rptr. 859, 580 P.2d 274]. Perhaps in response to the frustration of not having an articulable standard for the meaning of ‘substantial distance,’ we note that other Court of Appeal opinions have also reviewed the sufficiency of the evidence for simple kidnapping on similarly inconsistent bases. In People v. Daly (1992) 8 Cal.App.4th 47 [10 Cal.Rptr.2d 21], the victim was moved ‘approximately 40 feet across a parking structure in [defendant's] unsuccessful effort to get her into his van.’ (Id. at p. 57 [10 Cal.Rptr.2d 21].) The Court of Appeal noted that ‘The entire movement was within the parking structure and we cannot say on this record the risk of harm to the victim was increased by the movement of this short distance.’ (Ibid., italics added.) The court concluded that the evidence of asportation was insufficient to support a simple kidnapping conviction. (Id. at pp. 56-57 [10 Cal.Rptr.2d 21].)[¶] 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 [269 Cal.Rptr. 705].) 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 [269 Cal.Rptr. 705].) 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] [cert. denied 513 U.S. 1022, 115 S.Ct. 591, 130 L.Ed.2d 504] [while no evidence of actual distance, concluding movement of victim solely within garage and adjoining home ‘too minor to constitute [simple] kidnapping’].) Because we conclude that the asportation standard for section 208(d) is that used for aggravated kidnapping, we need not address this issue here.” (Rayford, supra, 9 Cal.4th at pp. 19-20, fn. 10, 36 Cal.Rptr.2d 317, 884 P.2d 1369.)
In the post-Rayford kidnapping 6 case of People v. Smith (1995) 33 Cal.App.4th 1586, 40 Cal.Rptr.2d 31 (Smith ), the defendant moved his victim from the front of a residence into a camper parked in the rear of the property where he sexually assaulted her. The distance moved was 40-50 feet. The court distinguished Caudillo, Green, and Daly based on the fact that in those cases there were no “boundaries” crossed during the movement, nor was there any distinctive change in the character of the places traversed. “There [Caudillo ], the victim was moved an unspecified distance from an elevator, to a storage room, then to her apartment. No real boundaries were crossed as the victim was moved from semiprivate locations located on the same floor of a multiunit building. Appellant also cites People v. Green [supra ] 27 Cal.3d 1, 66-67 [164 Cal.Rptr. 1, 609 P.2d 468] and People v. Daly (1992) 8 Cal.App.4th 47, 57 [10 Cal.Rptr.2d 21] for the proposition that distances of 25 to 90 feet are insufficient as a matter of law under section 207. In People v. Green, the court reversed the jury's finding that the defendant was guilty of simple kidnapping under section 207, subdivision (a). That fact situation is also distinguishable. There, the victim was forced by her husband to walk at gunpoint from a car already parked in a secluded location to another spot 90 feet away where he then had sexual intercourse with her and killed her. Similarly, in People v. Daly, supra, defendant moved the victim 40 feet across a parking structure in an attempt to get her into her van. Finding that the entire movement was within the parking structure, the court concluded that the movement was insufficient and reduced the kidnapping conviction under section 207, subdivision (a) to attempted kidnapping.” (Smith, supra, 33 Cal.App.4th at pp. 1594-1595, 40 Cal.Rptr.2d 31.)
Therefore, those cases which have considered the quality and character of the movement in addition to its absolute distance have weighed the purpose for the movement, whether it posed an increased risk of harm to the victim, and the “context of the environment in which the movement occurred. [Citations.]” (Rayford, supra, 9 Cal.4th at p. 12, 36 Cal.Rptr.2d 317, 884 P.2d 1369.) Purposes for movement found to be relevant have been those undertaken to facilitate the commission of a further crime, to aid in flight, or to prevent detection. We believe these factors are appropriate considerations. “Substantiality” implies something more than only measured distance. While “slight” is consistent with a quantitative analysis, the term “trivial” is a qualitative term suggestive of the conclusion that more is envisioned in determining whether a kidnapping occurs than simply how far the victim is moved. The legal requirement for asportation is satisfied by a finding of either. (CALJIC No. 9.52.)
In so holding, we conclude that while in absolute footage the distance moved here may have been empirically short, it was of a character sufficient to justify a finding of “substantiality” by the jury. The movement, in part, was plainly made to prevent Ms. Sun-Young from regaining possession of her vehicle and to facilitate appellant's flight from the area with Kirstie. In addition to evasion of capture, the vehicle was moved from a position of relative safety onto a thoroughfare. The boundary crossed was significant because it placed Kirstie at greater risk of injury. We confirm these factors, coupled with the distance traveled, are sufficient to satisfy the “substantial movement” requirement for the crime of simple kidnapping.
The dissent asserts our doing so violates the holding in Stanworth, supra, 11 Cal.3d 588, 114 Cal.Rptr. 250, 522 P.2d 1058. In Stanworth the defendant contended the Daniels two-pronged test applied to both charges of simple and aggravated kidnapping. The court rejected this contention, which the dissent concludes means that no factors other than measured distance may be considered by a jury in a simple kidnapping case. We disagree. The Stanworth court merely held that the more stringent test for aggravated kidnapping was not required to convict for simple kidnapping. It does not state that such matters may not be considered at all.
Furthermore, cases which have affirmed consideration of the character of the movement in addition to arithmetic distance have involved factors beyond those allowable to prove aggravated kidnapping. For example, movement incident to the commission of associated crimes is specifically excluded from consideration in Daniels. Asportation to avoid detection or to facilitate escape are not included in the test for aggravated kidnapping. Movement for the purpose of hiding the victim from public view may not satisfy the increased risk component of the Daniels test. (In re Crumpton (1973) 9 Cal.3d 463, 106 Cal.Rptr. 770, 507 P.2d 74.)
Thus, circumstances which texture the movement in simple kidnapping cases in a legally significant manner may or may not also satisfy the test for aggravated kidnapping. Where it does, it is simply coincidental. As a further illustration of this point, Justice Mosk, the author of Daniels, clarified in People v. Timmons (1971) 4 Cal.3d 411, 415-416, 93 Cal.Rptr. 736, 482 P.2d 648, that the increased risk to the victim necessary for aggravated kidnapping is limited to the increased risk of physical harm. Yet, in assessing whether there is substantial movement a jury may properly consider whether the movement puts others at risk of harm, or if the risk to the victim involves non-physical harm.
The dissent also charges our opinion with exceeding our judicial power under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937, in that we fail to follow established precedent set by our Supreme Court. In the face of the disparate authorities discussed in the body of this opinion, we are not compelled to accept unquestioningly only those authorities the dissent finds more compatible with its particular outlook. As the Supreme Court noted in setting forth the general rule of stare decisis: “Of course, the rule under discussion has no application where there is more than one appellate court decision, and such appellate decisions are in conflict. In such a situation, the court exercising inferior jurisdiction can and must make a choice between the conflicting decisions.” (Id. at p. 456, 20 Cal.Rptr. 321, 369 P.2d 937.) In this opinion we declare our choice to follow the better reasoned line of cases.
Appellant next contends the instant case is a “hybrid”-a factual case which falls between the statutory aggravated kidnapping crimes, and simple kidnapping. In such hybrid cases appellant argues the asportation requirement must be more than that merely incident to the commission of the associated crime, namely carjacking, and the two-pronged Daniels test should have been applied. He concedes, however, the alleged kidnapping here was not a pure form of aggravated kidnapping under current statutory and case law. Respondent counters by arguing the movement requirement for simple kidnapping applies, and no reported decisions have expanded the asportation requirement beyond that necessary to the aggravated crimes of kidnapping to commit rape or robbery.
In fact, as we note in our discussion of Stanworth, supra, 11 Cal.3d 588, 114 Cal.Rptr. 250, 522 P.2d 1058, attempts to require application of the Daniels test to non-aggravated kidnapping cases have been unequivocally rejected. (Ante, at p. 506.) Similarly, the Supreme Court noted in Rayford that the Daniels asportation test is not mandated in cases involving an associated crime other than in a recognized case of statutory aggravated kidnapping. “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.” (Rayford, supra, 9 Cal.4th at p. 21, 36 Cal.Rptr.2d 317, 884 P.2d 1369.) 7 The legal requirements for kidnapping should not become increasingly stringent solely because the defendant commits more crimes in the course of a simple kidnapping, and under circumstances where the Legislature has not determined the joint misconduct warrants elevation to the status of aggravated kidnapping.
Furthermore, in 1993 the Legislature enacted section 209.5, creating the crime of aggravated kidnapping committed during the commission of a carjacking. (Stats.1993, ch. 611, § 1, No. 9 West's Cal. Legis. Service, pp. 2821-2823.) This statute states specifically “This section shall only apply if the movement of the victim is beyond that merely incidental to the commission of the carjacking, the victim is moved a substantial distance from the vicinity of the carjacking, and the movement of the victim increase the risk of harm to the victim over and above that necessarily present in the crime of carjacking itself.” (§ 209.5, subd. (b).) For this latest form of aggravated kidnapping, the Daniels two-pronged test for asportation has been included in the statutory definition of the new crime. Yet there has been no attempt made by the Legislature to impose the Daniels test to all cases where a kidnapping allegedly occurs with an associated crime. “The Legislature, of course, is deemed to be aware of statutes and judicial decisions already in existence, and to have enacted or amended a statute in light thereof. [Citation.]” (People v. Harrison (1989) 48 Cal.3d 321, 329, 256 Cal.Rptr. 401, 768 P.2d 1078.) If the Legislature intended to extend the Daniels test for asportation to “hybrids,” it clearly would have done so. We will not act in its stead.
The dissent notes a pretrial motion was made by appellant under section 995 seeking dismissal of the separately charged crime of kidnapping during the commission of a carjacking (§ 209.5).8 That motion was made on the grounds that the alleged kidnapping was merely incidental to the carjacking, and the distance was not substantial. Mention is also made in the moving papers of respondent's failure to prove that the kidnapping increased the risk of harm to the victim, which is a separate requirement for this form of aggravated kidnapping.
The motion was submitted without argument, and granted by the trial court by minute order. Absent a statement of reasons, it is not appropriate for the majority or the dissent to speculate as to the ground or grounds upon which the court granted the motion. We therefore conclude the disposition of that motion has no effect on the determination of appellant's issues on appeal.9
Having expressed our satisfaction with the court's instruction on the crime of kidnapping, we find ample evidence to support the jury's conviction. Therefore, we conclude the jury's conviction of kidnapping under the facts of this case was indeed supported by substantial evidence.
The case is remanded for resentencing for the purpose of affording the trial court an opportunity to consider the exercise of its discretion to dismiss the sentencing enhancements under sections 667, subdivisions (d)-(e), 1170.12, subdivisions (b)-(c), and the 1-year enhancement imposed as a result of appellant having suffered a prior prison term (§ 667.5, subd. (b)) alleged and proved by the People, in the interests of justice.
The trial court judgment shall be amended to include dismissal of Count II in the 066 action (receiving stolen property), and the sentence modified accordingly.
In all other respects the convictions, sentence imposed, and judgment entered are confirmed.
I concur in all portions of the majority opinion except Section II, which relates to whether the asportation requirement of simple kidnapping has been satisfied in this case; with respect to that issue, I respectfully dissent. While I agree appellant's movement of the child across the street constitutes a crime, it is not kidnapping.
The majority opinion conflicts with the “settled law” of this state that the forcible movement of a person does not constitute simple kidnapping unless it is “ ‘substantial in character’ ” (People v. Caudillo (1978) 21 Cal.3d 562, 572, 146 Cal.Rptr. 859, 580 P.2d 274, overruled on other grounds in People v. Escobar (1992) 3 Cal.4th 740, 12 Cal.Rptr.2d 586, 837 P.2d 1100), and that considerations “other than actual distance” may not be taken into account in making the spatial determination. (Id., at p. 574, 146 Cal.Rptr. 859, 580 P.2d 274.) Under the majority's unjustifiably expansive view of the crime of simple kidnapping, the “determining factor” is not “the actual distance of the victim's movements,” as held by the Supreme Court in Caudillo, supra, at p. 572, 146 Cal.Rptr. 859, 580 P.2d 274, and other cases (see, e.g., People v. Stanworth (1974) 11 Cal.3d 588, 601, 114 Cal.Rptr. 250, 522 P.2d 1058) but instead the unspecified “quality,” “character” or “nature” of the movement. This redefinition of simple kidnapping, which resurrects problems put to rest long ago by our Supreme Court, exceeds the power of this intermediate appellate court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937.)
As will be seen, the movement in this case is much shorter than distances that have repeatedly been found too “slight” or “trivial” to constitute simple kidnapping. (See discussion, post, at pp. 516-518.) Therefore, under the applicable “substantial distance” test, the judgment of simple kidnapping cannot stand.
Moreover, reversal would be required in this case even if, as is not the law, we could properly consider factors other than the actual distance the victim was moved. The most salient characteristics of the movement-that it was merely incidental to the commission of the carjacking and did not increase the risk of harm to the victim over and above that necessarily present in the crime of carjacking-were clearly the reasons the trial court dismissed the charge of aggravated kidnapping, as will be seen. If we may take into account factors other than actual distance when evaluating the validity of a simple kidnapping conviction, as may be done in connection with aggravated kidnapping, there would be no logical reason to exclude these relevant considerations. In that event, the simple kidnapping here would have to be put aside for the same reasons the aggravated kidnapping charge was dismissed, as both offenses were predicated on the same movement.
The concerns the “substantial distance” requirement was designed to address were most cogently expressed by the American Law Institute in 1962, when it adopted section 212.1 of the Model Penal Code. As that provision of the Model Code is the genesis of the present law of California with respect to this issue (see, e.g., People v. Daniels (1969) 71 Cal.2d 1119, 1137-1139, 80 Cal.Rptr. 897, 459 P.2d 225), it is the appropriate analytical starting point.
Section 212.1 provides that “[a] person is guilty of kidnapping if he unlawfully removes another from his place of residence or business, or a substantial distance from the vicinity where he is found, or if he unlawfully confines another for a substantial period in a place of isolation,” for any one of several specified purposes.1 (American Law Inst., Model Penal Code, § 212.1, pp. 209-210, italics added.) The requirement that the victim be moved a “substantial distance” or confined for a “substantial period” was designed to constrict the definitions of kidnapping which then prevailed in many American jurisdictions, specifically including California, which were felt by the drafters of the Model Code to be dangerously overexpansive.
As the drafters explained, the offense of kidnapping was “relatively unknown and inconsequential” under the common law. (Id., § 212.1, comment 1, p. 210.) It consisted of the unlawful confinement and transportation of another out of the country, and was punishable only as a misdemeanor. (Ibid.) Expansion of the offense was motivated not just by the desire to reach situations not encompassed by the common law concept of kidnapping, but by the inadequacies of the law of attempt. “Traditional doctrine restricted liability for attempt to cases where the actor had come very close to completion of the crime. Even then, penalties for attempt were often minimal relative to the gravity of the contemplated offense. Thus, the brigand who carried off a merchant in order to rob him or the man who abducted a female with intent to rape her might escape with minor sanctions if his enterprise were frustrated at an early stage. Courts and legislatures found an expanded definition of kidnapping an easy way to deal with such problems.” (Id., at p. 213, fns. omitted.)
One of the ways in which the concept of kidnapping was expanded was the virtual abandonment of the asportation requirement. The drafters of the Model Code used a series of California cases to show how far this had gone. “Thus, forcing a person from one parked car to another [citing People v. Chessman (1951) 38 Cal.2d 166, 238 P.2d 1001, cert. den. 343 U.S. 915, 72 S.Ct. 650, 96 L.Ed. 1330] or merely requiring the victim to leave his home [citing People v. Phillips (1959) 173 Cal.App.2d 349, 343 P.2d 270] were held to constitute kidnapping. Indeed, in some cases even more trivial instances of coerced movement supplied the premise for liability, as, for example, movement from one room to another within a house or place of business. [Citing People v. Knowles (1950) 35 Cal.2d 175, 217 P.2d 1, cert. den. 340 U.S. 879, 71 S.Ct. 117, 95 L.Ed. 639.] The effect of such provisions was to extend the offense to situations rather distant from its essential rationale and to blur the distinction between kidnapping, which was rightly regarded as a serious offense, and false imprisonment, which was an offense quite trivial by comparison.” (Id., at p. 212, and fns. 6, 7, 8.) As a result, kidnapping was being unjustifiably used by prosecutors “to reach behavior preparatory to robbery, rape, or some other crime.” (Id., at p. 213.)
The drafters of the Model Code felt the substitution of kidnapping for attempt was no longer necessary because modern reformulation of the law of attempt now assigns more appropriate penalties and attaches liability “as soon as it becomes clear that the actor is seriously committed to the criminal enterprise.” (Ibid., fn.omitted.) The definition of kidnapping needed to be constricted, the drafters felt, not only because expansion no longer served a useful purpose, but because the cumulation of penalties for conduct that genuinely comprised only one wrongful act often led to injustice. Because the law of kidnapping had become “indefensibly broad in many jurisdictions, with penalties in many instances far out of proportion to the gravity of the underlying conduct” (Id., at p. 220), the drafters of the Model Code proposed a significant restriction in the definition of the offense. The “substantial distance” requirement was a major element of this reform.
The Model Code's critique of California case law greatly watering down the asportation requirement was validated in People v. Daniels, supra, 71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225. After discussing the concerns described in the Model Penal Code, our Supreme Court appeared to agree that the definition of kidnapping then prevailing in this state “ ‘has given rise to serious injustice.’ ” (Id. at p. 1138, 80 Cal.Rptr. 897, 459 P.2d 225.) Responding to the problem, the Daniels court declared that “the rule of construction declared in People v. Chessman (1951) supra, 38 Cal.2d 166, 192 [238 P.2d 1001], i.e., that ‘It is the fact, not the distance of forcible removal which constitutes kidnapping in this state,’ is no longer to be followed. Rather, we hold that the intent of the Legislature in amending Penal Code section 209 in 1951 was to exclude from its reach not only ‘standstill’ robberies (e.g., People v. Knowles (1950) supra, 35 Cal.2d 175 [217 P.2d 1]) but also those in which the movements of the victim are merely incidental to the commission of the robbery and do not substantially increase the risk of harm over and above that necessarily present in the crime of robbery itself. [Citations.]” (Id., at p. 1139, 80 Cal.Rptr. 897, 459 P.2d 225.) 2
Though Daniels involved an aggravated kidnapping, the court's rationale of the need to narrow the definition of kidnapping relies heavily on Cotton v. Superior Court (1961) 56 Cal.2d 459, 15 Cal.Rptr. 65, 364 P.2d 241, finding it irrelevant that that case involved only simple kidnapping. “We are not unmindful of the fact that Cotton was a case of ‘simple’ kidnapping under section 207, while we deal here with ‘aggravated’ kidnapping under section 209. For the purpose at hand, however, this is a distinction without a difference ․ [because] the word ‘kidnaps' in section 209 means kidnaping as defined in section 207.” (People v. Daniels, supra, 71 Cal.2d at p. 1131, 80 Cal.Rptr. 897, 459 P.2d 225.)
Cotton involved a strike that turned into a riot during which the striking defendants forcibly moved three persons from one part of a farmworker camp to another while assaulting them. The court noted in Daniels that in Cotton it “could simply have invoked the Chessman-Wein apothegm that ‘It is the fact, not the distance, of forcible removal’ which constitutes kidnaping in this state. That would have both begun and ended the analysis, and the defendants would have been required to stand trial for ‘kidnaping’ as that crime had theretofore been defined in our decisions. [¶] But we did not do so. Rather, we issued a writ prohibiting the trial court from taking any further proceedings on the kidnaping counts other than to order their dismissal. Our reasoning was clear and forthright: ‘In the instant case, the only movements that occurred were those natural in a riot or assault. The evidence reveals that persons were pushed to the ground, dragged around, chased, and assaulted. All “asportation” in the instant case would appear to be only incidental to the assault and rioting.” (Daniels, supra, 71 Cal.2d at pp. 1129-1130, 80 Cal.Rptr. 897, 459 P.2d 225, italics in original, quoting Cotton, supra, 56 Cal.2d at p. 464, 15 Cal.Rptr. 65, 364 P.2d 241.) The Daniels court went on to quote its earlier observation in Cotton that “ ‘To us, it does not seem reasonable that the California Legislature, in enacting Penal Code section 207, intended the statute to apply to a case of assault or riot such as occurred in the case now engaging our attention. Such a holding could result in a rule that every assault could also be prosecuted for kidnapping under Penal Code section 207, as long as the slightest movement was involved.’ [Citation.] Accordingly, we held [in Cotton ] that ‘Where the movement is incidental to the alleged assault, Penal Code section 207 should not have application, as the Legislature could not reasonably have intended that such incidental movement be a taking “ ․ from one part of the county to another.” ’ ” (Ibid., italics in original.)
The foregoing language, as well as the later decision in People v. Williams (1970) 2 Cal.3d 894, 88 Cal.Rptr. 208, 471 P.2d 1008, which applied the Daniels rule in a simple kidnapping case, made it reasonable to assume that the rule announced in Daniels applied as much to simple as to aggravated kidnapping. Witkin was prominent among those who drew that conclusion. (Witkin, California Crimes (1973) p. 182.) The assumption proved mistaken. In People v. Stanworth, supra, 11 Cal.3d 588, 599, 114 Cal.Rptr. 250, 522 P.2d 1058, the Supreme Court emphasized “that the rule articulated by us in People v. Daniels, supra, 71 Cal.2d at p. 1139, 80 Cal.Rptr. 897, 459 P.2d 225 is not applicable to kidnapping charged as a violation of section 207 but only to charges of kidnaping for robbery bottomed on section 209, commonly referred to as aggravated kidnaping.” The Stanworth court acknowledged that “ ‘both Daniels, involving section 209 kidnaping, and Cotton, involving section 207 kidnaping, construe the term ‘kidnaping’ to mean movements which are not merely incidental to associated crimes. [¶] However, the ‘movement’ factor of the Daniels rule is uniquely suited to section 209 and not to section 207. The rule concerns one type of kidnaping described in section 209 which, by definition, involves the underlying offense of robbery. In contrast, kidnaping, as defined by section 207, may occur in the absence of another crime. Thus where only simple kidnaping is involved, it is clear that the victim's movements cannot be evaluated in the light of a standard which makes reference to the commission of another crime. Coincidentally, Cotton did involve related charges of rioting and assault. Because the victim's movements were not substantial, we concluded that those movements were ‘only incidental to the assault and rioting.’ (Cotton, 56 Cal.2d at p. 464, 15 Cal.Rptr. 65, 364 P.2d 241.) Nevertheless, the central thrust of Cotton is contained in our reasoning that the Legislature did not intend to apply criminal sanctions where the ‘slightest movement’ is involved. (Cotton, 56 Cal.2d at p. 465, 15 Cal.Rptr. 65, 364 P.2d 241.)” (People v. Stanworth, supra, 11 Cal.3d at p. 600, 114 Cal.Rptr. 250, 522 P.2d 1058, italics added, fn. omitted.)
Implicit in the majority opinion is a fundamental disagreement with Stanworth, or at least that part of the opinion making the actual distance the victim is moved the dispositive consideration.3 (Id., at p. 601, 114 Cal.Rptr. 250, 522 P.2d 1058.) Whether my colleagues like it or not, however, Stanworth ringingly reaffirms the centrality of the “substantial distance” requirement in simple kidnapping cases. Prefiguring Caudillo, decided four years later, Stanworth holds that the “determining factor” in the offense of simple kidnapping “is the actual distance of the victim's movements.” (Id., at p. 601, 114 Cal.Rptr. 250, 522 P.2d 1058.) The holding was predicated on the very language of section 207, which requires movement of the victim “into another country, state, or county, or into another part of the same county.” The court reasoned that movement that must at a minimum be “into another part of the same county” cannot be slight and must involve a substantial distance. Such movement is not likely to be merely incidental to the commission of another offense. (See, e.g., In re Earley (1975) 14 Cal.3d 122, 130, 120 Cal.Rptr. 881, 534 P.2d 721.)
Because the two-part Daniels rule does not apply to simple kidnapping, the “substantial distance” requirement is in that context the only insurance against the “serious injustice” and “abusive prosecution” of concern to the drafters of the Model Penal Code and our Supreme Court. (People v. Daniels, supra, 71 Cal.2d at p. 1138, 80 Cal.Rptr. 897, 459 P.2d 225.) The Court has for that reason assiduously stricken efforts to dilute this requirement-and thereby expand the concept of kidnapping-by looking to factors other than actual distance, such as the factors my colleagues take into consideration in this case. If movement that would otherwise be too “slight” or “trivial” to constitute simple kidnapping could nonetheless be deemed sufficient on the basis of the “character” or “nature” of the movement, the dangers spelled out in the Model Penal Code, which have been of continuing concern to our Supreme Court, will plague us once again.
The best example of the Supreme Court's resistance to watering down the asportation requirement for simple kidnapping is People v. Caudillo, supra, 21 Cal.3d 562, 146 Cal.Rptr. 859, 580 P.2d 274, which makes it clear as can be that considerations of the sort the majority relies upon may not be used to find that the substantiality requirement has been met. The defendant in Caudillo had seized the victim in the elevator of her apartment building, moved her to a storage room between the elevator and her apartment, and then took her to her apartment where he committed various offenses over a two-hour period. The People argued that because the movement to the storage room was designed to avoid detection, thereby increasing the danger to the victim, and because the defendant waited 20 minutes before he moved her, the movement should be deemed sufficient to constitute simple kidnapping. The Supreme Court rejected this argument and barred the People from introducing any considerations-“other than actual distance-as determinative of what constitutes ‘sufficient movement’ of the victim to constitute the offense of kidnapping pursuant to Penal Code section 207.” (Id., at p. 574, 146 Cal.Rptr. 859, 580 P.2d 274.)
Effectively conceding that the movement in the present case is too “slight” or “trivial” to constitute simple kidnapping if only the actual distance is considered, the majority says the movement here nonetheless satisfies the “substantial distance” requirement because (1) the movement “was plainly made to prevent Ms. Sun-Young from regaining possession of her vehicle and to facilitate appellant's flight,” and (2) because the movement placed the victim “at greater risk of injury.” (Maj. opn. at pp. 505-506.) Though proper under the Daniels rule, these inquiries clearly cannot be made in this simple kidnapping case. As stated in Stanworth, “where only simple kidnaping is involved, it is clear that the victim's movements cannot be evaluated in the light of a standard which makes reference to the commission of another crime.” (11 Cal.3d at p. 600, 114 Cal.Rptr. 250, 522 P.2d 1058, italics added.) The fact that the movement was made to perfect the associated offense of carjacking, which relates to the first prong of the Daniels test and should therefore not even be considered here, is a reason to prevent, not allow, that movement from being used for the additional purpose of supporting a kidnapping charge.
The second reason the majority claims the movement is substantial-the fact that it increased the risk of harm to the victim over and above that necessarily present in the crime of carjacking itself-manifestly misapplies to simple kidnapping the second prong of the Daniels rule. As Justice Work noted in People v. Bradley (1993) 15 Cal.App.4th 1144, 19 Cal.Rptr.2d 276, the use of “risk analysis” to determine whether movement is substantial “simply reinstates the Daniels test for simple kidnapping.” (Id., at p. 1154, 19 Cal.Rptr.2d 276.)
My colleagues attempt in vain to reconcile their conception of the law with that set forth in Stanworth and Caudillo. They first argue that their analysis is consistent with Stanworth because “[t]he Stanworth court merely held that the more stringent test for aggravated kidnapping was not required to convict for simple kidnapping ․ [but][i]t does not state that such matters may not be considered at all.” (Maj. opn. at p. 506, italics in original.) The majority's creative conjuration-that courts are not required to but may apply the Daniels rule in simple kidnapping cases-effectively emasculates Stanworth, as trial courts will not bar jurors (or prevent themselves) from considering factors the trier of fact “may” consider.
The majority also endeavors to justify its consideration of factors other than the actual distance of the movement on the ground that a mathematical bright line test cannot be devised. Quoting a statement in Daniels reiterated in Stanworth, the majority observes: “ ‘Indeed, “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․” ' ” (Maj. opn. at pp. 503-504, Stanworth, supra, 11 Cal.3d at p. 601, 114 Cal.Rptr. 250, 522 P.2d 1058, quoting People v. Daniels, supra, 71 Cal.2d at p. 1128, 80 Cal.Rptr. 897, 459 P.2d 225.) The quote is misleading, however, because it leaves out the next following sentence in Daniels: “[Nonetheless] [t]he law is replete with instances in which a person must, at his peril, govern his conduct by such nonmathematical standards as ‘reasonable,’ ‘prudent,’ ‘necessary and proper,’ ‘substantial,’ and the like.” (Stanworth, supra, at p. 601, 114 Cal.Rptr. 250, 522 P.2d 1058, quoting Daniels, supra, at pp. 1128-1129, 80 Cal.Rptr. 897, 459 P.2d 225.) In short, the asportation requirement applicable to simple kidnapping, which excludes considerations of the factors the majority takes into account, provides a workable guideline that has been used in this state for decades. There would therefore be no need to revise the rule even if we had the authority to do so. Moreover, the considerations the majority would take into account-the “quality,” “character” or “nature” of the movement-are as subjective as the concept of substantiality and would not provide a more workable guideline than the one we already have.
The majority's final (and somewhat inconsistent) defense of its consideration of factors other than actual distance consists of a putative distinction between the factors examined under the Daniels rule and therefore excluded in simple kidnapping cases and the ostensibly different factors that may properly be used to determine whether movement satisfies the asportation requirement for simple kidnapping. According to the majority, “movement incident to the commission of associated crimes is specifically excluded from consideration in Daniels,” but “[a]sportation to avoid detection or to facilitate escape are not included in the test,” and therefore may be considered. (Maj. opn. at p. 506.) “Thus,” the majority concludes, “circumstances which texture the movement in simple kidnapping cases in a legally significant manner may or may not also satisfy the test for aggravated kidnapping. Where it does, it is simply coincidental.” (Ibid.) This confusing distinction has no practical value to any trier of fact operating in the real world and is, in any case, false. If the asportation is designed to perfect the kidnapping itself there is no issue. The issue arises only where it is claimed that the movement is calculated to avoid detection of or to facilitate escape from an associated crime. Asportation that is so motivated is by definition incident to the commission of the associated crime and therefore under Daniels cannot constitute kidnapping.
The distinction the majority offers is transparently artificial. Whether the forcible movement of a person was designed to facilitate kidnapping will usually depend on whether it could instead have been undertaken to achieve a different criminal purpose. Stanworth bars this inquiry in simple kidnapping cases on the theory that the “substantial distance” requirement renders it unnecessary; that is, the Supreme Court assumes that if movement is not “substantial” it is therefore not incidental to the commission of an associated offense. (In re Earley, supra, 14 Cal.3d at p. 130, 120 Cal.Rptr. 881, 534 P.2d 721. [“Since the movement here was substantial, it was not ‘merely incidental to the commission of the robbery.’ ”]; People v. Stanworth, supra, 11 Cal.3d at p. 600, 114 Cal.Rptr. 250, 522 P.2d 1058; Cotton, supra, 56 Cal.2d at p. 464, 15 Cal.Rptr. 65, 364 P.2d 241.) The majority's examination of the “character” of the movement is really no more than an inquiry into whether the movement was designed to facilitate kidnapping, which implicates the inquiry prohibited by Stanworth, because the determination the movement facilitated kidnapping implies it did not facilitate the associated offense, or that it is irrelevant whether it did. The majority's conclusion that appellant's movement of Ms. Sun-Young's vehicle was designed to facilitate the kidnapping of her daughter is unreasonable because it ignores the undisputed evidence to the contrary. As the majority says, appellant's movement of the child “was plainly made to prevent Ms. Sun-Young from regaining possession of her vehicle.” (Maj. opn. at p. 506.)
It is only by blinding itself to an obviously relevant consideration and approaching the factual question it improperly poses from this skewed perspective that the majority is able to persuade itself that a kidnapping occurred in this case.
If courts were able to consider the “character” of movement to determine whether it satisfies the substantiality requirement in simple kidnapping cases in which it was claimed that the movement was merely incident to the commission of an associated offense, the characteristics they would first examine would be those specified in Daniels, which are the most plainly pertinent. Significantly, in findings not challenged on this appeal, the trial court effectively determined that the movement in this case does not survive scrutiny under the Daniels rule. That rule, which the Legislature incorporated into the statutory definition of kidnapping during the commission of a carjacking (Pen.Code, § 209.5, subd. (b)), was the basis upon which the trial court dismissed the aggravated kidnapping charge in this case. That is, the court below must have determined that the same movement with which we are now concerned was not “beyond that merely incidental to the commission of the carjacking” and/or that the movement did not “increase[ ] the risk of harm to the victim over and above that necessarily present in the crime of carjacking itself.” (Ibid.) 4 Those factual determinations, which are amply supported by the record, are simply cast aside by the majority because they do not coincide with the expansive concept of simple kidnapping it seeks to establish.
The majority's final defense of its analysis is a self-serving attempt to relieve itself of the burden of the doctrine of stare decisis by claiming that the appellate decisions are in conflict, and that it is therefore required to “ ‘make a choice between the conflicting decisions.’ ” (Maj. opn. at p. 506.) There is no such conflict. Stanworth is still good law in California, as is Caudillo; those precedents mean that “the determining factor in the crime of kidnapping [under section 207] is the actual distance of the victim's movements” (Stanworth, supra, 11 Cal.3d at p. 601, 114 Cal.Rptr. 250, 522 P.2d 1058), and that considerations “other than actual distance” may not be considered. (Caudillo, supra, 21 Cal.3d at p. 574, 146 Cal.Rptr. 859, 580 P.2d 274.) As explained in Caudillo, “[n]either the incidental nature of the movement, the defendant's motivation to escape detection, nor the possible enhancement of danger to the victim resulting from the movement is a factor to be considered in the determination of substantiality of movement for the offense of kidnaping. Such factors would be relevant in a Daniels situation of aggravated kidnapping ․ but we held in Stanworth that the Daniels test was not applicable to simple kidnaping under Penal Code section 207.” (Ibid., italics added, fn. omitted.) If the Supreme Court wishes to retreat from this position it is certainly free to do so. We are not. Nor are we authorized to use a test designed to restrict the offense of kidnapping to instead expand it.
Aware its analysis cannot be squared with case law, the majority feels free to ignore it because it discerns in People v. Rayford, supra, 9 Cal.4th 1, 36 Cal.Rptr.2d 317, 884 P.2d 1369 “a dissatisfaction” with the line of cases that commence with Stanworth and Caudillo. (Id. at p. 12, 9 Cal.4th 1, 36 Cal.Rptr.2d 317, 884 P.2d 1369.) The majority's reading of the tea leaves seriously misconstrues Rayford.
Rayford addresses only the issue whether the asportation standard for section 208, subdivision (d) kidnapping-i.e., kidnapping with the intent to commit rape, oral copulation, sodomy, or rape by instrument-is derived from that used for simple or aggravated kidnapping. (Id., at p. 18, 36 Cal.Rptr.2d 317, 884 P.2d 1369.) Agreeing with the defendant, the court concluded that the two-part Daniels asportation test applies to kidnapping for purposes of rape. Kidnapping for purposes of rape is analogous to kidnapping for purposes of robbery, the court reasoned, both in terms of the heightened penalty and the fact that culpability will always involve associated crimes or attempted crimes. (Id., at pp. 20-21, 36 Cal.Rptr.2d 317, 884 P.2d 1369.) This issue has nothing to do with the question before us in this case.
Furthermore, the Rayford court explicitly refused to reconsider Caudillo's rejection of certain factors other than the actual distance travelled. (Id., at p. 22, 36 Cal.Rptr.2d 317, 884 P.2d 1369.) It is entirely inappropriate for this intermediate appellate court to undertake precisely the reconsideration the Supreme Court refused to embark upon.
Finally, and most importantly, the majority misreads the dicta in Rayford that it seizes upon. The only language in Rayford that raises any question about Caudillo is the following sentence: “We recognize that Caudillo 's narrow approach might be subject to the criticism that it fails to appreciate that a primary reason forcible asportation is proscribed by the kidnapping statutes is the increase in the risk of harm to the victim that arises from the asportation. [Citations.]” (Rayford, supra, 9 Cal.4th at p. 22, 36 Cal.Rptr.2d 317, 884 P.2d 1369.) Whether the movement in question increases the risk of harm to the victim over and above that necessarily present in the associated crime is, of course, one of the two inquiries required to be made under the Daniels rule. This inquiry cannot be made in connection with simple kidnapping without overruling, not just Caudillo, but Stanworth, because it is the latter case which bars application of the Daniels rule to simple kidnapping. (People v. Stanworth, supra, 11 Cal.3d at pp. 596-601, 114 Cal.Rptr. 250, 522 P.2d 1058.) Stanworth was resoundingly reaffirmed by the Supreme Court in Rayford (9 Cal.4th at p. 21, 36 Cal.Rptr.2d 317, 884 P.2d 1369) and remains binding on this court.5
The majority quotes at great length from a footnote in Rayford commenting on the opinion in People v. Bradley, supra, 15 Cal.App.4th 1144, 19 Cal.Rptr.2d 276. This is much ado about nothing. The issue in Bradley, like that presented in Rayford, was whether the asportation standard for section 208, subdivision (d) kidnapping-kidnapping for the purpose of rape or certain other sex offenses-is derived from that used for simple or aggravated kidnapping. After observing that Bradley “reviewed the sufficiency of the evidence of asportation for simple kidnapping on bases arguably inconsistent with People v. Caudillo,” (Rayford, supra, 9 Cal.4th at p. 19, fn. 10, 36 Cal.Rptr.2d 317, 884 P.2d 1369), the court noted that two other Court of Appeal opinions had as well. (Ibid., citing People v. Daly (1992) 8 Cal.App.4th 47, 10 Cal.Rptr.2d 21 and People v. Williams (1990) 220 Cal.App.3d 1165, 269 Cal.Rptr. 705.) The footnote then concludes with the statement that “[w]hile we have not directly addressed the 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.” (Ibid.) The Supreme Court case referred to, People v. Sheldon (1989) 48 Cal.3d 935, 952-953, 258 Cal.Rptr. 242, 771 P.2d 1330, was extremely unusual. The record in that case did not reveal the distance of the asportation, which took place almost entirely within the victim's residence, and the defendant claimed the asportation did not amount to kidnapping “regardless of the actual distance involved.” (Id., at p. 952, 258 Cal.Rptr. 242, 771 P.2d 1330, italics added.) In those unusual circumstances it was hardly surprising that the Supreme Court-which agreed with the defendant that “the asportation at issue was too minor to constitute kidnapping” (Id., at p. 953, 258 Cal.Rptr. 242, 771 P.2d 1330)-was willing to look to the “character” of the movement, which was all it had.
In any event, with respect to the question whether the “character” and not just the actual distance of movement may be considered in a simple kidnapping case has not been revisited by the Supreme Court since Stanworth and Caudillo were decided. The Rayford footnote my colleagues rely upon concludes with the statement that “we need not address this issue here. ” (Rayford, supra, 9 Cal.4th at p. 20, fn. 10, 36 Cal.Rptr.2d 317, 884 P.2d 1369, italics added.) The footnote thus provides far too slender a reed upon which to predict the repudiation of Caudillo, let alone adoption of an outdated concept of kidnapping repeatedly rejected by our Supreme Court.
It bears emphasizing, finally, that the presumptuousness of the majority opinion consists not just of its assumption Caudillo will be overruled, but as well the supposition its expansive concept of simple kidnapping will replace that set forth in Caudillo. The majority is anticipating, in other words, not just the repudiation of Caudillo but the renunciation by our high court of its seminal opinion in Daniels, with which, as I have explained, the majority's view of the law cannot be reconciled.
The majority essentially concedes the movement in this case does not meet the legal test of substantiality if only actual distance is considered. In light of this, I need not belabor the manifest insufficiency of the evidence to satisfy the asportation requirement properly applicable to simple kidnapping.
It deserves emphasis, however, that movement as short a distance as that shown here-30 to 40 feet-has never been held to satisfy the asportation requirement of kidnapping. Indeed, considerably greater distances have often been held insufficient. As the majority opinion points out, movement of 90 feet, nearly three times the distance the victim in this case was moved, was held insufficient in People v. Green (1980) 27 Cal.3d 1, 164 Cal.Rptr. 1, 609 P.2d 468 (disapproved on other grounds in People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3, 226 Cal.Rptr. 112, 718 P.2d 99), where the Supreme Court noted that “[t]he shortest distance this court has ever held to be ‘substantial’ for this purpose was a full city block.” (Id., at p. 66, 164 Cal.Rptr. 1, 609 P.2d 468, citing People v. Thornton (1974) 11 Cal.3d 738, 768, 114 Cal.Rptr. 467, 523 P.2d 267, overruled on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12, 160 Cal.Rptr. 84, 603 P.2d 1.)
People v. Brown (1974) 11 Cal.3d 784, 114 Cal.Rptr. 426, 523 P.2d 226 also dramatically demonstrates that the movement in the present case must be deemed trivial as a matter of law. The defendant in Brown had gone to the victim's residence in search of her husband, whose name he had discovered in the home of his estranged wife. He forced the victim to accompany him in a search of the house for her husband. When a neighbor who heard the victim scream telephoned and asked if she needed help, the defendant dragged her out of the house and along a narrow passageway between her house and the house next door. A neighbor then ordered the defendant to release the victim and told him the police were on their way. Defendant released her and fled. (Id., at pp. 786-787, 114 Cal.Rptr. 426, 523 P.2d 226.) “All in all he had taken her approximately 40 to 75 feet from the back door of her house.” (Id., at p. 787, 114 Cal.Rptr. 426, 523 P.2d 226.) A unanimous Supreme Court had little difficulty concluding that “[t]he asportation of the victim within her house and for a brief distance outside the house must be regarded as trivial.” (Id. at p. 789, 114 Cal.Rptr. 426, 523 P.2d 226.) “[U]nder the particular facts of this case,” the court said, “the movement of the victim did not constitute a forcible taking ‘into another part of the same county’ and ․ the conviction of simple kidnapping must be reversed.” (Ibid.)
The movement in the present case is about half the distance which in Brown was held “trivial.” Further, the victim in Brown was moved out of one area, the house, into another; and the movement of the victim was much more clearly intentional than that here, as it is not even clear appellant knew a child was in the vehicle when he moved it across the street.
I think it unreasonable to conclude that, when it enacted Penal Code section 207, the Legislature contemplated that backing up a car 30 to 40 feet across a street constitutes asportation “into another part of the same county” within the meaning of that statute. It must be remembered that the only definition of kidnapping that appears in the California Penal Code is that which appears in section 207. As the Supreme Court has noted on several occasions, the verb “kidnaps” used in section 209 (as well as in other statutes prescribing increased punishments for aggravated kidnappings, such as section 208 and 209.5) means kidnapping as defined in section 207. (People v. Daniels, supra, 71 Cal.2d at p. 1131, 80 Cal.Rptr. 897, 459 P.2d 225; In re Earley, supra, 14 Cal.3d at p. 128, 120 Cal.Rptr. 881, 534 P.2d 721.) When the Legislature enacted section 209.5 in 1993 it not only adopted the section 207 definition of kidnapping, but explicitly incorporated into the new statute the “substantial distance” requirement imposed by the courts. (Pen.Code, § 209.5, subd. (b).) The Legislature must be deemed to have been aware of the distances considered by the courts too “slight” or “trivial” to satisfy this requirement in cases like Caudillo, People v. Green, supra, 27 Cal.3d 1, 164 Cal.Rptr. 1, 609 P.2d 468 and People v. Brown, supra 11 Cal.3d 784, 114 Cal.Rptr. 426, 523 P.2d 226. As has been noted, the Legislature is presumed to know of existing case law; its failure to alter the judicial interpretation of a statute in pertinent subsequent legislation is indicative of legislative approval of such interpretation. (See 58 Cal.Jur.3d, Statutes, §§ 92, 112, pp. 446-449, 497-500, cited with approval in People v. Superior Court (Lavi) (1993) 4 Cal.4th 1164, 1178, fn. 9, 17 Cal.Rptr.2d 815, 847 P.2d 1031.) Statutory adoption of the “substantial distance” requirement in 1993 therefore constitutes legislative acceptance of the spatial determinations in cases such as Caudillo.
The fact that the Legislature punished aggravated kidnapping more severely than simple kidnapping has nothing to do with the distance the victim is moved but only to the greater harm to which the victim is exposed when a kidnapping is related to certain other serious offenses. If the Legislature felt aggravated kidnapping required movement over a greater distance than would suffice for simple kidnapping it would not have adopted the section 207 definition of kidnapping in an aggravated kidnapping statute, as it has, nor applied to aggravated kidnapping the same substantial distance requirement applicable to simple kidnapping, as it also has done. (Pen.Code, § 290.5, subd. (b).)
I agree that by moving the child in the vehicle across the street appellant committed a crime other than carjacking and the various other offenses of which he was properly convicted; that crime was not kidnapping, however, but false imprisonment (Pen.Code, § 236), which does not require any movement.6 Permitting appellant to be convicted of kidnapping-even simple kidnapping-by materially diminishing if not eliminating the asportation requirement creates the very danger sought to be avoided by the Model Penal Code and by our Supreme Court in a long line of cases. As the Supreme Court has repeatedly observed, “the Legislature did not intend to apply criminal sanctions [for any form of kidnapping] where the ‘slightest movement’ is involved.” (Stanworth, supra, 11 Cal.3d at p. 600, 114 Cal.Rptr. 250, 522 P.2d 1058; see also Cotton v. Superior Court, supra, 56 Cal.2d at p. 465, 15 Cal.Rptr. 65, 364 P.2d 241.)
Because the asportation in this case was trivial within the meaning of the applicable case law, I would reverse the judgment of conviction of simple kidnapping for lack of evidentiary support. I agree that in all other respects the judgment should be affirmed.
1. Only certain of the convictions in the 194 action are in issue on appeal. None of the counts for which appellant was convicted in the 066 action are contested here.
2. While identity was part of appellant's defense in the trial court, appellant does not contest this issue on appeal.
3. Although simple kidnapping is codified in section 207, and appellant was convicted of a violation of section 208(b), the only difference between the two crimes is the age of the victim. In all other respects the elements of the crime of kidnapping of a person under the age of 14 are identical to the crime of simple kidnapping.
4. See also People v. Sheldon (1989) 48 Cal.3d 935, 953, 258 Cal.Rptr. 242, 771 P.2d 1330, certiorari denied 513 U.S. 1022, 115 S.Ct. 591, 130 L.Ed.2d 504.
5. As we explain post, at p. 514, the court's application of only the substantial movement component of the Daniels test is criticized in Rayford.
6. The kidnapping conviction involved was section 667.8, subdivision (a), which provides for an enhanced sentence for persons convicted of simple kidnapping during the course of committing certain sex offenses.
7. It was not until 1990 that section 208, subdivision (d) was enacted, adding kidnapping in the commission of rape as a form of aggravated kidnapping. (Stats.1990, ch. 1560, § 1, p. 7329.)
8. This new crime carries with it a punishment of life imprisonment with the possibility of parole, while the punishment for simple kidnapping was, and is, 3, 5 and 8 years' imprisonment.
9. This reference by the dissent to the proceedings below is not nearly as noteworthy as the “anomaly” noted by the court in Smith wherein the trial court granted defendant's 995 motion to suppress the simple kidnapping count brought under section 207 on the basis that the movement was not substantial as a matter of law, but denied the motion relating to the section 667.8, subdivision (a) enhancement. (Smith, supra, 33 Cal.App.4th at pp. 1592-1593, 40 Cal.Rptr.2d 31.)
FOOTNOTE. See footnote *, ante.
1. “(a) to hold for ransom or reward, or as a shield or hostage; or (b) to facilitate commission of any felony or flight thereafter; or (c) to inflict bodily injury on or to terrorize the victim or another; or (d) to interfere with the performance of any governmental or political function.”
2. In 1993 the Legislature incorporated these caveats into the statutory definition of kidnapping in the commission of carjacking. (Pen.Code, § 209.5, subd. (b).) In 1994 the Supreme Court also applied the Daniels rule to kidnapping for the purpose of rape, even though that rule had not been incorporated into Penal Code section 208, subdivision (d), the statute defining that offense. (People v. Rayford (1994) 9 Cal.4th 1, 36 Cal.Rptr.2d 317, 884 P.2d 1369.)
3. Without suggesting we need not follow Stanworth, I confess I too have doubts about the analytical coherence and wisdom of that opinion, albeit for a different reason. The problems that led to the rule in Daniels are not confined to aggravated kidnapping but are as likely to occur in connection with simple kidnapping where, as in this case, there is an associated offense. Stanworth provides no persuasive explanation why the Daniels rule should not be applied to such simple kidnappings, as both the Model Penal Code and Daniels itself strongly suggest. The different asportation analyses Stanworth requires to be accorded aggravated and simple kidnapping involving an associated offense is the source of much of the current confusion in the California case law regarding the asportation requirement.
4. The only other possible explanation for dismissal of the aggravated kidnapping in this case is that the victim was not “moved a substantial distance from the vicinity of the carjacking.” (Pen.Code, § 209.5, subd. (b).) In that event, however, the court would presumably also have dismissed the simple kidnapping, as this requirement applies equally to both simple and aggravated kidnapping.
5. If the reversal of Stanworth is what the Supreme Court has in mind, the result would presumably be the application to simple kidnapping of the same asportation requirement applicable to aggravated kidnapping. In that event, as earlier noted, the simple kidnapping in this case would have to be set aside for the same reason the aggravated kidnapping was dismissed.
6. False imprisonment is defined in section 236 as “the unlawful violation of the personal liberty of another.” This offense is punishable as a misdemeanor or, if “effected by violence, menace, fraud, or deceit,” as a felony. (Pen.Code, § 237.)
RUVOLO, Associate Justice.
LAMBDEN, J., concurs.