PEOPLE v. MARTINEZ (1997)

Court of Appeal, Fifth District, California.

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

No. F025079.

Decided: August 05, 1997

Barbara Michel, under appointment by the Court of Appeal, Berkeley, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, Stan Cross and Jean M. Marinovich, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

Appellant, Samuel Martinez, was charged by first amended information filed in Fresno County Superior Court, with one count of kidnapping in violation of Penal Code section 207, subdivision (a);  three counts of assault with a deadly weapon in violation of Penal Code section 245, subdivision (a)(1);  one count of false imprisonment in violation of Penal Code section 236;  and one count of making terrorist threats in violation of Penal Code section 422.¹  It was further alleged that appellant had personally used a knife within the meaning of section 12022, subdivision (b), in the commission of the kidnap, the false imprisonment, and the terrorist threat offenses.   It was also alleged, only as to the kidnap charge, that the victim was under 14 years of age within the meaning of section 208, subdivision (b).   Finally, it was alleged as to all counts that appellant had suffered a prior serious/violent felony conviction, specifically a section 288, subdivision (a) conviction, within the meanings of section 667, subdivisions (a)(1) and (b), section 1192.7, subdivision (c), and section 1170.12, subdivisions (a) through (e), inclusive.

Appellant entered pleas of not guilty to the foregoing offenses and denied each of the enhancements.   The matter then proceeded to jury trial.

On the first day of trial, appellant asked that the hearing on the truth of his prior felony conviction be bifurcated and waived his right to a jury trial on the matter.   On November 8, 1995, appellant was found guilty on all counts save the assault with a deadly weapon offense allegedly committed against Baby Doe for which a mistrial was declared.   The jury also found true each of the weapons use enhancements as well as the enhancement respecting the kidnap victim's tender age.

The following day, the court found the allegation regarding appellant's prior felony conviction true as alleged.

Imposition of judgment took place on December 12, 1995.   The court denied appellant probation and, treating the current offenses as second strikes, ordered him imprisoned for a total term of 33 years, 4 months.

Notice of appeal was timely filed on December 14, 1995.

FACTS

Appellant moved into the house Paula Limon shared with her uncle's family in September of 1994.   During the night of March 21, 1995, Paula was awakened by the sound of appellant trying to lock her bedroom door from the inside.   This was the first time since he had lived with them that appellant came into her bedroom in the middle of the night.   Paula insisted she had never invited appellant into the bedroom she shared with her one-year-old daughter Evelyn and, in fact, had specifically told him not to enter her room in order to get to the only bathroom in the house.   She told appellant to get out of her bedroom;  he responded by telling her to be quiet.   Paula could smell alcohol on appellant's breath and believed him to be very drunk at the time.   He told her not to scream and pushed her down on the bed.   Paula became frightened and called out for her uncle Victor Benitez.

When Victor heard her and came into the bedroom, appellant went into the adjoining bathroom.   Paula could hear appellant urinating a few moments later.   After she told Victor what had happened, he left her room and went out to the living room where he laid on the couch so that he could keep an eye on his two daughters who had fallen asleep watching television.   Paula listened as appellant left the bathroom a short time later using the door that led into the other adjoining bedroom.

A short time later, appellant returned to Paula's bedroom door.   This time he had a small knife with him.   Paula could hear her uncle Victor telling appellant that he was going to prevent him from entering Paula's room.   She also heard appellant threaten to stab her uncle with a knife if he intervened.

According to Victor, appellant, drunk and still armed with the knife, told him not to intervene or there would be trouble.   Victor initially said appellant did not expressly threaten to use the knife but did say he would “beat [Victor] up.”   Later, however, he said appellant had threatened to stab him with the knife and that he had been confused when he testified earlier to the contrary.²  Victor took these as threats of harm either to himself or his children and thought that appellant might very well stab him.   Paula got up and locked her bedroom door.

Victor responded to appellant's threat by “calm[ing] himself.”   He was afraid but had to remain calm to avoid any problems.   Victor said he was careful and listened to see what appellant would do.

When appellant tried to enter Paula's room by pushing on the bedroom door near the living room, Victor tried to calm appellant down.   Realizing he would not be able to do so, Victor left appellant and went into the bathroom and knocked on the door leading to Paula's bedroom.   She opened the door, let him in, and then locked the door behind him.

Appellant then tried to gain access to Paula's bedroom through the bathroom door Victor, Sr., had just used.   He pushed on the door but was unable to get into the bedroom.   Meanwhile, Victor left the bedroom, rounded up the two girls, Ramona and Janet Benitez, who were asleep in the living room, and brought them to Paula's bedroom through the living room side door.

When appellant went around this same door, Victor went into the bedroom on the other side of the bathroom and retrieved Victor, Jr. With this accomplished, all of the family members who were at home that evening were in Paula's bedroom.

Appellant did not give up and began exerting even greater force on the bedroom door that had the weak lock.   It sounded to Paula as though he was pushing as hard as he could.   Because the bathroom locks were more secure, they all decided to go into the bathroom and lock the doors.   Meanwhile, appellant continued to tell them not to make him angry and to open the door.   Fearing what would happen if they complied, they decided not to do as they were told.

The lock on Paula's bedroom door leading to the living room ultimately gave way.   Moments later, appellant was at the bathroom door trying to get inside.   He again told them to open the door but this time claimed he had to use the restroom.   No one responded to appellant's demands.

Appellant continued to go back and forth between the two doors that led into the bathroom trying to open each one before moving on to the other.   When appellant began hitting the doorknob on one of the doors with some unknown object, Victor, Sr., went out the other door and headed for the home of Mr. Martinez's father to ask for help.   Paula immediately locked the door after him.

It then became quiet in the house.   A short time later, appellant returned and began pounding on the doors again.   When this met with no success, he went outside and, using his hand, pounded on the bathroom window until it broke which allowed both Paula and Janet to see him on the other side.   Janet noticed blood on the window.   By this time, everyone in the bathroom was screaming and the children were crying.   Appellant continued to tell them not to yell and demanded that they open the door.

He then went back inside and renewed his efforts at forcing the door open.   As this was occurring, Paula sent Victor, Jr., out the other door to seek help from someone who lived in the apartments nearby.   Appellant finally succeeded in breaking the knob off the door that led from Paula's bedroom into the bathroom but another lock on the door prevented appellant from gaining access to the bathroom.

After some additional time passed, Paula let Ramona go but was unable to close and lock the door before appellant pushed his way into the bathroom where Janet (who was then 13 years of age), Paula, and Paula's baby remained.³  Paula could see that appellant had a knife in one hand and a hammer in the other.   Janet remembered only the knife.   Paula recognized the hammer as one belonging to her uncle but had never seen the knife before this moment.   She also noticed that blood was dripping from appellant's hands.

Appellant immediately demanded to know where the others had gone.   Paula told him that they had gone to the apartments next door to seek help.   Standing only one and one-half feet away, appellant angrily and repeatedly told Paula that someone was going to pay for what they had done to him.   Neither Paula nor Janet had any idea what appellant meant by these statements.

Appellant then placed the knife against Paula's lower ribcage, and holding the hammer in his other hand, repeated that someone was going to pay for what they had done to him;  he then demanded to be taken to Ramona.   He did not, however, threaten to kill Paula who continued to cling to her infant daughter.   Fearing that appellant would hurt them, Paula agreed to take appellant but he insisted that Janet be the one to do so.   Paula told Janet to go with appellant.

Appellant put the hammer in the bathroom sink and, with the knife in one hand, used his free hand to take Janet by the shoulder and lead her out of the bathroom and through Victor, Jr.'s, bedroom.   Janet could smell alcohol on his breath and thought he was very intoxicated.   Paula tried to follow but appellant ordered her to stay put.

Janet said she did not go with appellant of her own free will.   She explained that she went with him because she was afraid that he would use the knife to hurt her.

Janet did not know where Ramona had gone but decided to lead appellant to the apartment complex next door.   Janet said they walked through Victor, Jr.'s, bedroom, the kitchen, appellant's bedroom, then out the back door, across the 15-foot back porch, and to an area with three trees behind the house before the police spotted them and yelled at appellant to freeze.

Paula said her backyard was “small.”   She estimated the length of her backyard as roughly the distance between the witness stand and the courtroom door.   The court indicated that that distance was “about 36 feet.”   Paula also indicated that the backyard was open as it had no fence.   Victor testified that the trees are “right close to the walk” behind the house.

Officer Rogers of the Reedley Police Department was one of the officers who responded to the scene after he received a report of an incident at that location involving a man armed with a knife.   In describing the layout of the area, the officer said:

“Just south of the residence is an apartment complex with approximately 15 to 20 units in it.   That would be facing Manning Avenue away from this residence.   There's a parking area between the apartment complex and this residence as well as a large open field, maybe four or five acres, just west of this residence.

“․

“Part of the parking area is directly behind [this residence] and then is the large open field.   To the north of that would be ․ more residences approximately the same size as that one.”

He confirmed that there was no fence around the Benitez residence.

When asked where appellant was first seen upon his arrival, Officer Rogers said he was “right on the border between the backyard of the house and the parking area that kind of all kind of moves together.”   He explained that the dirt parking lot for the apartments and the dirt that makes up the end of the Benitez's backyard flowed together in that there was nothing to separate the two.   He estimated the distance from the back of the house to the area where appellant was first seen was 40 to 50 feet.   He also indicated that the area was well lit and that he had no trouble seeing this distance.

A short pursuit ensued and ended with appellant being taken into custody.   Officer Vanburgh said appellant smelled strongly of alcohol and was very combative and loud.   Appellant continued to yell a considerable amount in Spanish but the officer could not understand what was being said since he did not speak the language.   The officer first noticed that appellant had a “couple of cuts” on his hands when he placed appellant in the patrol car.

Appellant was taken to the hospital so that he could receive medical treatment for his cuts.   Appellant continued his combative behavior while enroute.   For example, he was spitting at the officer, kicking the cage that separated the officer from the back seat, and screaming at the top of his lungs.

Appellant continued this behavior while at the hospital-spitting all around the room, screaming for no apparent reason, and otherwise refused to do as he was told.   His behavior was so bad that the officer finally had to separate him from the general public.

Officer Rogers remained behind to examine the house for evidence.   He observed broken glass and a hammer with what appeared to be fresh blood on it in the bathroom.   Inspection of the exterior of the bathroom door revealed splatters of blood.   The doorknob belonging to this door was found laying on the floor.   The officer confiscated Janet's blood-stained T-shirt.

Investigating officers located a knife that when shown to the Benitez family members was identified as the knife appellant used during this incident.

At trial, everyone who was involved in the event identified appellant.

At trial, Paula spoke of a letter appellant had written and mailed from the local jail to her uncle in which appellant told them in Spanish to think of their children and not go to court.   Paula said she felt threatened by the letter and feared for her childrens' safety (she was pregnant at the time of the event and had since given birth to that child).   She said her fear grew out of appellant's behavior that evening which she acknowledged was different than it had been on other nights.

The letter, along with its English translation, were introduced at trial.   The letter, in full, states:

“Thursday, April 27, 1995, family Benitez or the Benitez family, I hope that you are you will-I hope that you are doing well healthwise along with your friends.   After this short greeting I go on to the following.   In the first place I would like to ask your forgiveness because of what happened the truth is I was not in my right mind.   You know very well that I have drank some beers and those beers made me go over the limit.   You know me.   You know that I am not a bad person when I am in my right mind.   I want to let you know that if you want to bring charges against me go ahead.   You can do that, but do not let the police force you to do it, because the police only threaten you-threatens you so that you can bring charges against me.   I am asking that if you are not thinking of big charges against me just tell them that you don't want them to keep bringing you to court.   I am asking you to think about this.   We are all human and we commit errors.   Think of your own children or the children you will have.   I know you would like-I know you would not like it if because of a human error your son might make-your son will be given the number of years that they want to give me.   I don't want revenge on anyone.   All I want is just to get out of here so that I can go back to my country.   Supposedly I am going to be deported because everyone is being deported.   That's all that I want to write to you about.   I hope you will forgive me.   I am asking a favor of you.   If there are any of my belongings please call my family and have them go over to pick them up.   Thank you.”

Ramona testified that on one occasion before this incident she had been asleep on the living room sofa when appellant kissed her on the lips.   He then sat down on the sofa and began to drink his coffee as though nothing had happened.

Ramona said that this was the first and only time this occurred with her.   She admitted though that appellant had on one prior occasion told her that she would be his whether she wanted “it or not.”   She took this to mean he desired a physical relationship with her.   The following day, Ramona told her mother what had happened.

Ramona also said that on one occasion after the kiss appellant telephoned and asked her if she wanted to be his girlfriend.   She declined his invitation.

Ramona's mother construed appellant's comment about making Ramona his as evidence of his intent to sexually abuse Ramona.   When she confronted appellant about his statement, he asked for her forgiveness and said he did not know what he was saying because he was very drunk at the time.

Defense

Appellant testified and readily admitted that, in June of 1993, he had been convicted of having committed lewd and lascivious conduct with a child under the age of 14 in violation of section 288.⁴  He said he had been ordered by the court not to live with minor children and acknowledged that he had not informed the Benitez family of this restriction on his living arrangements.

He said he was living with the Benitez family on the date of the incident.   Their arrangement provided him access to the kitchen, living room, his bedroom and the bathroom but not Paula Limon's bedroom.

Appellant said he had consumed five cans of beer in one hour before noon on the date of the incident.   He met four or five friends at the store when he returned in the afternoon to buy more beer.   After he and his friends consumed the six-pack he bought, his friends bought more beer.   He did not say how many cans of beer he actually consumed during this encounter and could not remember whether he ate lunch while there.   He then left his friends and began walking around town.

He spent the next several hours walking around town.   At some point, he stopped at a bar along the way and consumed an unknown amount of beer.   He could not remember whether he ate dinner at the bar.

He arrived home around midnight feeling the effects of the alcohol.   He initially said he could not recall whether he had gotten drunk.   He claimed to be well aware of that feeling as he had been drunk many times in the 15 years he had been consuming alcohol.   Later, he testified that he was very drunk that night.

Appellant remembered entering the Benitez residence through the back door and finding everyone asleep.   He said he tried to use the bathroom but found the door on one side closed.   So, he went around to the other side.   He was on his way to the bathroom when Paula woke up frightened and started yelling for Victor, Sr.

Appellant proceeded to use the restroom and, when done, exited through the other door.   He remembered seeing Victor, Sr., that evening and insisted that he, appellant, was not then carrying a knife.   In response to a question asked only moments later by defense counsel, appellant said he could not recall whether he had a knife when he first encountered Victor, Sr., that night.   Still later, he said he was certain he did not threaten Victor, Sr., with a knife.   Appellant continued to waver back and forth regarding his use of the knife throughout questioning.

Appellant admitted breaking the bathroom window.   He initially said he did it because he wanted to use the bathroom again and he could hear people in there.   He later repeatedly testified that he tried to gain access to the bathroom to tell the people inside not to make so much noise as he was trying to sleep.

He did not believe he forced anyone in the Benitez household to do anything.   He also said he was certain he did not take Janet out of the house by force.   Appellant later testified that he had no recollection of having walked through the house and outside with Janet.   He said she was standing in the doorway when he left the house alone.

He repeatedly testified that his recollection of the events that evening was none too good.   For example, he could not remember which door(s) he used to try to gain entry to the bathroom.   He could not recall whether he tried to lock Paula's bedroom door behind him.   He had absolutely no memory of having used a hammer to gain access to the bathroom, of having placed a knife against Paula's ribs, or of leaving the house with Janet.   Appellant remembered having something in his hands when he was in the bathroom with Janet, Paula, and Paula's baby but could not recall exactly what it was that he was holding.   He did say though that the knife introduced at trial looked like one he owned;  he just could not say for sure whether it belonged to him.   He attributed his faulty memory to his drunken condition that evening.

He did, however, remember being arrested that night but could not offer any explanation as to why he would remember this event and not others.

Appellant also remembered lying to the officer the day after the incident when he denied breaking the bathroom window.   He admitted telling the officer that he was mad at Paula because she did not turn down her music.   He also told the officer that he had already called the police and had gone outside to see if they were coming shortly before he was arrested.   He denied calling the officers liars when they said they saw him carrying Janet outside.   He claimed to have no recollection of having told the officers that the Benitez family members were liars when confronted with their version of events.

Appellant also denied kissing Ramona on a prior occasion while she slept.   He initially denied telling her that she would be his but a short time later said he could not recall whether he had done so.   Still later, he claimed to have been drunk on the day he was accused of doing these things.

Rebuttal

Officer Wright of the Reedley Police Department testified that he interviewed Victor Benitez, Sr., following the incident.   According to Victor, appellant told Victor not to interfere in his attempt to enter Paula's bedroom or he would stab him.

The officer interviewed appellant, whom he identified at trial, the day after the incident.   With the aid of an interpreter, Officer Wright advised appellant of his Miranda⁵ rights which appellant agreed to waive.   Appellant was not under the influence of alcohol at the time of this waiver.

Appellant told the officer that he went to Paula's room to ask her not to play her music so loud.   Paula told him to get out of her room and go to bed.   Appellant said she continued to play her music loudly.   So, he returned to Paula's room and again asked that she turn down her music.   This time, both Paula and Victor, Sr., told him to go to bed.   This made appellant angry.   He said he then went outside and was arrested by the police.

Appellant said all of the other members of the Benitez family household were lying to officers.   He denied breaking the door to Paula's bedroom or the bathroom window.   He also denied using a hammer or making any of the statements Ramona attributed to him.   He told the officer that he was never even in the bathroom that evening.

DISCUSSION

Appellant has raised three separate issues on appeal, namely:  (1) whether sufficient evidence exists to support the kidnapping conviction;  (2) whether sufficient evidence exists in support of the terrorist threat conviction;  and (3) whether the matter needs to be remanded to allow the sentencing court to exercise its discretion to strike appellant's prior offense pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628.   Each of these contentions shall be addressed in turn.

I.

WHETHER SUFFICIENT EVIDENCE EXISTS INSUPPORT OF THE KIDNAPPING CONVICTION

Our function as an appellate court facing a challenge based on insufficiency of the evidence is to determine “ ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ”   (People v. Davis (1995) 10 Cal.4th 463, 510, 41 Cal.Rptr.2d 826, 896 P.2d 119, quoting Jackson v. Virginia (1979) 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560.)  “ ‘[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ ”  (People v. Guiton (1993) 4 Cal.4th 1116, 1126, 17 Cal.Rptr.2d 365, 847 P.2d 45;  accord People v. Edelbacher (1989) 47 Cal.3d 983, 1019, 254 Cal.Rptr. 586, 766 P.2d 1;  People v. Johnson (1980) 26 Cal.3d 557, 576-577, 162 Cal.Rptr. 431, 606 P.2d 738.)   We must “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”  (People v. Johnson, supra, 26 Cal.3d at p. 576, 162 Cal.Rptr. 431, 606 P.2d 738.)

Here, appellant contends the evidence is insufficient to support his kidnapping conviction in that it failed to show that the victim was moved the substantial distance needed to satisfy the asportation element of simple kidnap.   Not surprisingly, respondent disagrees and asks us to find this case analogous to those of People v. Smith (1995) 33 Cal.App.4th 1586, 40 Cal.Rptr.2d 31 and People v. Stender (1975) 47 Cal.App.3d 413, 121 Cal.Rptr. 334, where the courts looked to the circumstances surrounding the asporation and not just the distance traveled by the victim.

Before we can decide whether sufficient evidence of asporation supports the verdict, we must first determine the offense of which appellant stands convicted.   Appellant claims that subdivision (b) of section 208 does not constitute a new offense but was instead intended to enhance the punishment for kidnap when the victim is under 14 years of age.

A. Is Subdivision (b) of Section 208 a Separate Offense or an Enhancement?

As previously noted, the jury found appellant guilty of simple kidnap in violation of section 207, subdivision (a).   At all relevant times, section 207, subdivision (a), provided that “[e]very person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping.”   But the jury also found true, beyond a reasonable doubt, that the kidnapping victim was under 14 years of age within the meaning of section 208, subdivision (b).

 The question we must initially decide is whether the additional finding under section 208 constitutes a crime separate from, or merely an enhancement to, the crime of simple kidnapping set out in section 207, subdivision (a).   The answer to this question is significant because it dictates whether the asportation standard for simple kidnapping is applicable in this case.   If section 208, subdivision (b) amounts to nothing more than an enhancement, it necessarily incorporates the asportation standard for simple kidnapping.  (See People v. Rayford (1994) 9 Cal.4th 1, 8, 36 Cal.Rptr.2d 317, 884 P.2d 1369 [same conclusion but for subdivision (d) of section 208] (Rayford ).)   If, on the other hand, section 208, subdivision (b) is found to be a separate offense, then we must determine what asportation standard ought to apply.  (Ibid.)

We find the Rayford decision relevant to our analysis for two reasons.   First, is the high court's determination that a new offense was created by the enactment of section 208, subdivision (d)-a law which prohibits kidnapping with the intent to commit rape, oral copulation, sodomy, or rape by instrument.   We have no reason to believe that it would find to the contrary if called upon to decide the same issue but with respect to subdivision (b)-the subdivision that is currently before us-since the court's reasoning applies equally well here.  (See People v. Rayford, supra, 9 Cal.4th at pp. 8-11, 36 Cal.Rptr.2d 317, 884 P.2d 1369.)

In reaching their conclusion, the Rayford court first looked to see whether other penal statutes characterized section 208, subdivision (d) as a separate crime.  (Id. at p. 8, 36 Cal.Rptr.2d 317, 884 P.2d 1369.) In so doing, it observed:

“that the Legislature, in the recently enacted section 667.61 (part of what is commonly known as the ‘One Strike’ law), which creates a new enhancement, characterized section 208(d) as a separate crime.   In particular, one of the operative circumstances that gives rise to the application of the enhancement is that ‘the defendant kidnapped the victim of the present [sexual] offense in violation of Section 207, 208, 209, or 209.5’ (§ 667.61, subd. (e)(1), italics added.)   In addition, the ‘One Strike’ law also amends section 1203.066, subdivision (a)(6) to limit the trial court's sentencing options for ‘A person who violated Section 288 or 288.5 while kidnapping a child victim in violation of Section 207, 208, or 209.’  (Italics added.)   Significantly, section 1203.066, subdivision (a)(6), formerly read ‘A person convicted of kidnapping the child victim in violation of either Section 207 or 209 and who kidnapped the victim for the purpose of committing a violation of Section 288 or 288.5.’ ”  (Rayford, supra, 9 Cal.4th at p. 8, 36 Cal.Rptr.2d 317, 884 P.2d 1369.)

Appellant contends the Rayford court's reasoning regarding these statutes is inapposite here because they concern sexual offenses-something not present in this case.   This position overlooks the obvious.   It is not the fact that a sexual crime was committed that was important to the court's analysis.   It was instead the fact that section 208 was treated as an offense separate and distinct from section 207.   But this portion of the court's discussion is important to us for one other reason;  that being that neither statute differentiated between subdivision (b) and (d) of section 208 in doing so.

We note, however, that there are other penal statutes not mentioned by the court that addressed subdivision (d) of section 208 in a slightly different way.   Under section 290, for example, a person who has been convicted of certain specified offenses including, “subdivision (b) of Section 207, kidnapping, as punishable pursuant to subdivision (d) of Section 208, Section 220 ․” must register as a sex offender. (§ 290, subd. (a)(2)(A).)  Another subdivision of that same statute requires certain juvenile offenders to register if they have been adjudicated a ward of the court because of the commission or attempted commission of “․ subdivision (b) of Section 207, or kidnapping, as punishable pursuant to subdivision (d) of Section 208.” (§ 290, subd. (d)(3)(B), emphasis added.)   Other examples include sections 290.4, subdivision (a)(1) [compilation of sex offender registration information];  667.5, subdivision (c)(15) [prior prison term enhancement], 667.7(a) [habitual offender statute], and 667.71, subdivision (d) [habitual sexual offender statute].

Appellant contends the language of section 667.5 actually supports his claim that section 208 constitutes an enhancement.   He points out that among the violent felonies listed in subdivision (c) are “Kidnapping, in violation of subdivision (b) of Section 207,” and “Kidnapping, as punished in subdivision (b) of Section 208.” (§ 667.5(c)(14), (15).)

We admit that, at first blush, all of these statutes might appear to treat section 208 as encompassing only sentencing considerations.   But on closer examination it becomes clear that they too treat section 208 as establishing a distinct offense.   For each of these statutes requires that the defendant either stand convicted or adjudicated of certain enumerated offenses or crimes, among them kidnapping as punished by section 208, or that the defendant has served a prior prison term therefor. (§§ 290, subds.(a)(1), (a)(2)(A), (d)(3)(B);  290.4, subd. (a)(1), 667.5, subds. (a), (c)(15);  667.7, subd. (a);  667.71, subds. (a), (d).)   The fact that the Legislature did not list section 207 as the statute being violated speaks volumes.

We turn then to the second factor considered in Rayford-whether the prison term stands on its own or is added to a principal term.  (Rayford, supra, 9 Cal.4th at pp. 8-9, 36 Cal.Rptr.2d 317, 884 P.2d 1369.)   The penalty set out in section 208 is not added to a base term for simple kidnapping but instead stands alone as did subdivision (d) in Rayford.

The third factor considered in Rayford was whether the legislative history indicates that the Legislature treated the section as a crime or merely an enhancement.  (Id. at p. 10, 36 Cal.Rptr.2d 317, 884 P.2d 1369.)   We note that subdivision (b) of section 208 was added to the Penal Code as part of the Davis-Grisham Missing Children Act of 1986.  (See Stats.   1986 (A.B.606), c. 249, § 7.)

There is nothing in the legislative history of this act to show the Legislature intended that kidnapping of a child be given a separate Penal Code number or be added to the already existing kidnapping statutes-sections 207 and 209.   Its clear intent was to simply amend section 208.

Appellant insists that the Legislature referred to subdivision (b) of section 208 as an “additional term” to be imposed for simple kidnapping when the victim is under the age of 14.   He directs our attention to the following language found in the California Legislative Summary Digest regarding this bill which he claims supports his position:

“The bill would increase the criminal penalty for kidnapping in certain cases by providing that individuals who kidnap person under 14 years of age shall be punished by imprisonment in the state prison for 5, 8, or 11, years, except as specified.   The additional term in the case of kidnapping for the purpose of committing certain sexual offenses would be increased to 9 years in cases in which the victim was under 14 years of age, except as specified.”  (Cal. Legis.   Summary Dig., 1985-1986, Statutory Record, 1979-1986, pp. 80-81, emphasis added by appellant.)

He has misread the legislative history.

While the length of the proposed prison term varied during the legislative negotiations that ultimately resulted in the passage of this bill, the nature of the term did not.   Throughout its history, this bill consistently sought imposition of a greater-not an additional-term of imprisonment for the kidnapping of a child under 14 years of age.  (See, for example, Assem.   Com. on Public Safety Report for 4/15/85 Hearing, p. 5;  Sen. Com. on Judiciary, A.B. 606 as amended 7/1/85, p. 5.)

Indeed, appellant acknowledges as much when he observes that the amendment to section 208 “increase[d] the penalty for kidnap, otherwise punishable by 3, 5, or 8 years, to 5, 8, or 11 years … if the victim is under 14.”   He thus concedes that the greater term actually replaces that which is ordinarily imposed.   The “additional term” appellant referenced pertains to that which could be imposed under section 667.8, subdivision (b)-a simultaneously enacted enhancement provision-if the victim was under the age of 14 and was kidnapped for the purpose of committing certain enumerated sex crimes. (§ 667.8, subd. (b), emphasis added.)   The fact that the Legislature chose different treatment for these two factual scenarios within the same bill persuades us that they knew full well how to create an enhancement and that they chose not to do so when adding subdivision (b) to section 208.

As to the last of the Rayford factors, appellant points to the Rayford court's observance that section 667.8, subdivision (a)-an enhancement provision for those who kidnap their victims (without any reference to age) for the purpose of committing various sex offenses-already existed at the time subdivision (d) was added to section 208.   From this, the Rayford court reasoned that the Legislature would most likely have added the language of subdivision (d) of section 208 to section 667.8 had it intended to create an enhancement.   Here, by contrast, appellant argues there was no separate enhancement provision for the kidnapping of a child under the age of 14 in existence when subdivision (b) was added to section 208.

But, as noted above, the Legislature evidenced its ability to create enhancements when it amended section 667.8 to provide for an even greater enhancement for those who kidnap their child victims for the purpose of committing various sexual offenses.   Had it wished to create an enhancement for those who kidnap children under the age of 14 it could easily have done so either by amending section 667.8 or by creating an entirely separate enhancement.   The Legislature chose to do neither.

Based on the foregoing, we believe subdivision (b) of section 208 is an offense separate and distinct from section 207, subdivision (a).

B. Which Asportation Standard Ought to Apply?

Since section 208, subdivision (b) prohibits the “kidnap[ping]” of a child, it necessarily includes an asportation requirement.  (See Rayford, supra, 9 Cal.4th at p. 11, 36 Cal.Rptr.2d 317, 884 P.2d 1369.)   The question is, which one?

At the time of the incident which led to the filing of this case, there existed essentially two distinct asportation standards-that applicable to simple kidnapping and another applicable to aggravated kidnapping (which was, at that time, limited to kidnapping done to accomplish a robbery).⁶

 The asporation standard for aggravated kidnapping is comprised of two parts.   It “requires movement of the victim that is not merely incidental to the commission of the robbery, and which substantially increases the risk of harm over and above that necessarily present in the crime of robbery itself.”  (Rayford, supra, 9 Cal.4th at p. 12, 36 Cal.Rptr.2d 317, 884 P.2d 1369, citing People v. Daniels (1969) 71 Cal.2d 1119, 1139, 80 Cal.Rptr. 897, 459 P.2d 225 (Daniels );  In re Earley (1975) 14 Cal.3d 122, 127-128, 120 Cal.Rptr. 881, 534 P.2d 721.)   Our high court has observed that these two prongs are not mutually exclusive but are instead interrelated.  (Rayford, supra, 9 Cal.4th at p. 12, 36 Cal.Rptr.2d 317, 884 P.2d 1369.)

 When deciding whether the first prong has been satisfied, the jury is allowed to consider both the “ ‘scope and nature’ ” of the movement.   (Ibid.) This, our high court has declared, includes the actual distance a victim is moved as well as the context of the environment in which the movement occurred.  (Ibid.)

 The second prong of the Daniels test focuses on “whether the movement subjects the victim to a substantial increase in risk of harm above and beyond that inherent in robbery.  [Citation.]   This includes consideration of such factors as the decreased likelihood of detection, the danger inherent in a victim's foreseeable attempts to escape, and the attacker's enhanced opportunity to commit additional crimes.  [Citations.].” (Rayford, supra, 9 Cal.4th at p. 13, 36 Cal.Rptr.2d 317, 884 P.2d 1369.)   The fact that these dangers do not ultimately materialize does not mean that the risk of harm did not increase.  (Id. at p. 14, 36 Cal.Rptr.2d 317, 884 P.2d 1369, citing In re Earley, supra, 14 Cal.3d at p. 132, 120 Cal.Rptr. 881, 534 P.2d 721;  People v. Lara (1974) 12 Cal.3d 903, 908, 117 Cal.Rptr. 549, 528 P.2d 365.)

 The asportation test for simple kidnapping is far less clear.   As previously noted, section 207, subdivision (a) has at all relevant times, provided that “[e]very person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping.”   Recognizing that section 207 contained no express terms setting out the minimum distance to be traveled within the same county and reasoning that the Legislature could not have intended for all movements no matter how slight to be prosecuted as a kidnap, our Supreme Court read into the statute an implied standard of “substantial” or “more than slight … or trivial” movement.  (E.g., People v. Caudillo (1978) 21 Cal.3d 562, 573, 146 Cal.Rptr. 859, 580 P.2d 274, overruled on other grounds in People v. Escobar (1992) 3 Cal.4th 740, 749-751, 12 Cal.Rptr.2d 586, 837 P.2d 1100;  People v. Stanworth (1974) 11 Cal.3d 588, 601, 114 Cal.Rptr. 250, 522 P.2d 1058;  Cotton v. Superior Court (1961) 56 Cal.2d 459, 465, 15 Cal.Rptr. 65, 364 P.2d 241;  see also People v. Rayford, supra, 9 Cal.4th at p. 14, 36 Cal.Rptr.2d 317, 884 P.2d 1369.)   This substantiality standard has, however, proven difficult to apply over the years.

Part of the problem stems from the confusion as to whether factors other than the distance of the victim's movement can be considered in satisfying the asportation element of simple kidnapping.   This difficulty has arisen, in part, from the decisions that have been issued over the years on this subject.

In Caudillo, for example, our high court held that the victim's movement must be “substantial in character ” but went on to find that certain factors other than the actual distance a victim is moved are not to be considered.  (People v. Caudillo, supra, 21 Cal.3d at pp. 573, 574, 146 Cal.Rptr. 859, 580 P.2d 274, emphasis added;  accord Rayford, supra, 9 Cal.4th at p. 14, 36 Cal.Rptr.2d 317, 884 P.2d 1369.)

A sampling of the simple kidnapping cases that have found the asportation element satisfied based solely on the distance the victim was moved include:  People v. Green (1980) 27 Cal.3d 1, 65, 68, 164 Cal.Rptr. 1, 609 P.2d 468 & fns. 59, 71 [victim forcibly driven 5 miles];  People v. Stanworth, supra, 11 Cal.3d at p. 602, 603, 114 Cal.Rptr. 250, 522 P.2d 1058 [victims ordered at gunpoint to walk to a small hill approximately one-quarter mile away];  and People v. Blackburn (1976) 56 Cal.App.3d 685, 688-689, 693, 128 Cal.Rptr. 864 [victims forcibly moved about 500 feet into an abandoned apartment building].

A sampling of those who have found the asportation element of simple kidnapping unsatisfied under this standard include:  People v. Sheldon (1989) 48 Cal.3d 935, 953, 258 Cal.Rptr. 242, 771 P.2d 1330, [victim forcibly taken from the attached garage and through several rooms of her home];  People v. Green, supra, 27 Cal.3d at p. 65, 71, 164 Cal.Rptr. 1, 609 P.2d 468 [victim forcibly moved a distance of “only 90 feet”], disapproved on other grounds in People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3, 226 Cal.Rptr. 112, 718 P.2d 99;  People v. Caudillo, supra, 21 Cal.3d at pp. 573-574, 146 Cal.Rptr. 859, 580 P.2d 274 [no evidence of actual distance traveled but victim taken from an elevator to a storage room on the same floor of her apartment complex];  People v. Brown (1974) 11 Cal.3d 784, 789, 114 Cal.Rptr. 426, 523 P.2d 226 [movement throughout house and 40 to 75 feet directly outside home];  Cotton v. Superior Court, supra, 56 Cal.2d at pp. 464-465, 15 Cal.Rptr. 65, 364 P.2d 241 [forcible movement of 15 feet];  People v. Daly (1992) 8 Cal.App.4th 47, 57, 10 Cal.Rptr.2d 21 [woman dragged 40 feet from her car across the same parking structure to a van].   In People v. Thornton (1974) 11 Cal.3d 738, 767, 114 Cal.Rptr. 467, 523 P.2d 267, overruled on another ground in People v. Flannel (1979) 25 Cal.3d 668, 684, 160 Cal.Rptr. 84, 603 P.2d 1, the court reversed the defendant's conviction for simple kidnapping after the People conceded that reversal was necessary given the fact that the victim remained within the confines of a single room in a laundromat.

While there may not be any “bright line” test for kidnapping, the foregoing cases teach us that, at a minimum, the victim must be moved more than 90 feet before the asportation element of simple kidnapping can be satisfied if we are limited to distance alone.

However, in two pre-Caudillo cases, the high court noted that, because the boundaries established by buildings and other enclosures, ownership of property, fences and the like would vary in size and distance from case to case, the character of the victim's movements could not be determined simply on the basis that the victim remained inside or was taken outside.   (People v. Stanworth, supra, 11 Cal.3d at pp. 600-601, 114 Cal.Rptr. 250, 522 P.2d 1058;  People v. Brown, supra, 11 Cal.3d at p. 789, fn. 6, 114 Cal.Rptr. 426, 523 P.2d 226.) These cases thus suggest that the crossing of such boundaries could properly be considered in cases of simple kidnapping.   The Rayford court went so far as to acknowledge that it had implicitly considered the character of such boundaries in a simple kidnapping case where no evidence was presented regarding the actual distance the victim traveled.   (People v. Rayford, supra, 9 Cal.4th at p. 19, fn. 10, 36 Cal.Rptr.2d 317, 884 P.2d 1369, citing People v. Sheldon, supra, 48 Cal.3d at pp. 952-953, 258 Cal.Rptr. 242, 771 P.2d 1330.)

This confusion over the use of factors other than distance also appears to be partially attributable to the fact that many of the appellate level courts did not understand that separate and distinct asportation standards had developed for simple, as opposed to aggravated, kidnapping (until recently, the latter being limited to one committed with the intent to rob in violation of section 209).  (People v. Rayford, supra, 9 Cal.4th at pp. 11-22, 36 Cal.Rptr.2d 317, 884 P.2d 1369;  People v. Caudillo, supra, 21 Cal.3d at p. 574, 146 Cal.Rptr. 859, 580 P.2d 274.)   As a result, the courts frequently and erroneously applied the aggravated kidnapping asportation standard to cases where a simple kidnapping was charged along with some other criminal offense.  (See People v. Rayford, supra, 9 Cal.4th at p. 19 & fn. 10, 36 Cal.Rptr.2d 317, 884 P.2d 1369, citing as examples, People v. Bradley (1993) 15 Cal.App.4th 1144, 1153-1154, 19 Cal.Rptr.2d 276;  and People v. Daly, supra, 8 Cal.App.4th at pp. 56-57, 10 Cal.Rptr.2d 21.)

Our high court has openly acknowledged that considerable confusion surrounds the asportation standard for simple kidnap when it stated:

“As one Court of Appeal subsequently observed:  ‘The increasing complexity of the law marches on.   What Stanworth and Brown seem to teach is this:  the test of simple kidnapping is not (1) whether the movement is incidental to an underlying crime …;  (2) whether there is an increase in the risk of harm above that present in an underlying crime …;  (3) a mathematical formula …;   or (4) the crossing of arbitrary boundaries .… Thus we are left to ponder what the movement is in simple kidnapping.   We are told it “is the actual distance of the victim's movements” and they must be substantial in character … but, of course, it is not a question of mathematical measurement or crossing of arbitrary boundaries.   Thus, we are led in circles.’ ”   (People v. Rayford, supra, 9 Cal.4th at p. 17, fn. 9, 36 Cal.Rptr.2d 317, 884 P.2d 1369, quoting People v. Stender, supra, 47 Cal.App.3d at p. 422, 121 Cal.Rptr. 334.)

A thorough reading of the Rayford decision shows that our high court continues to operate under the belief that Caudillo remains the standard by which to judge the asportation element of simple kidnapping-even though it went on to “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.”   (People v. Rayford, supra, 9 Cal.4th at p. 22, 36 Cal.Rptr.2d 317, 884 P.2d 1369, emphasis added.)   In support of its belief that the asportation standard for simple kidnapping may be ripe for review, the Rayford court cited to People v. Williams (1990) 220 Cal.App.3d 1165, 1171, 269 Cal.Rptr. 705, where the court held that the danger sought to be prevented by simple kidnapping statute realized when victim, who was driving, abandoned moving vehicle to escape, causing car to crash with another;  People v. Stender, supra, 47 Cal.App.3d at p. 416, 423, 121 Cal.Rptr. 334, where the court observed that “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;” and People v. Ford (1966) 65 Cal.2d 41, 58, 52 Cal.Rptr. 228, 416 P.2d 132, where the court declared that simple kidnapping is “inherently dangerous to human life”.  (People v. Rayford, supra, 9 Cal.4th at p. 22, 36 Cal.Rptr.2d 317, 884 P.2d 1369.)   We note that at least two other decisions have been issued since Rayford where a court has looked to factors other than distance in determining whether the asportation standard for simple kidnapping has been satisfied.  (People v. Allen (A072610, June 11, 1997) [in the context of § 208, subd. (b) ];  People v. Smith (1995) 33 Cal.App.4th 1586, 40 Cal.Rptr.2d 31, [same but for § 667.8, subd. (a) ] rev. den.   July 13, 1995.)   However, until such time as our high court actually revisits the issue, we feel compelled under authority of Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937, to treat Caudillo as a correct statement of the asportation standard for simple kidnapping.

We turn then to the issue of which standard ought to apply in this case.   Of the two standards, it would seem on first impression that the offense proscribed by section 208, subdivision (b) is more analogous to that of simple, as opposed to aggravated, kidnapping since it has no requirement that the kidnapping be for the purpose of committing some other crime.   In addition, the only difference between simple kidnapping and the action needed to violate section 208, subdivision (b) appears to be the age of the victim.

Here, the 13-year-old victim was forcibly moved about within her own home, across a 15-foot back porch, and an additional distance of 40 to 50 feet outside her home.   If we apply the asportation test for simple kidnapping to these facts and treat Brown and Caudillo as legally binding precedent, then we would have to find that inadequate evidence was presented at trial to show that appellant was guilty of simple kidnap in violation of section 207, subdivision (a).

We are, however, troubled by the application of this standard to section 208, subdivision (b) since it fails to factor the victim's tender age into the asportation equation.   Just like the movement that is not incidental to the underlying offense of rape or robbery increases the risk of harm to the aggravated kidnapping victim, so too does the tender age of a child victim.   There can be no doubt but that a child of such tender years is far more vulnerable to harm than an adult victim and that the likelihood of harm to that child increases substantially with his/her removal from his home and/or family.   Indeed, this increased vulnerability of young children was a driving force behind the passage of the Davis-Grisham Missing Child Act of 1986.

 We thus conclude that a modified version of the asportation standard for aggravated kidnap ought to apply to section 208, subdivision (b);  that being that the movement of the child must be such that it substantially increases the risk of harm to, or vulnerability of, the child victim over that which existed immediately before the movement.

We are then left with the question of whether to apply this new standard to the case before us.   As we observed in People v. Lopez (1992) 11 Cal.App.4th 1115, 14 Cal.Rptr.2d 692:

“ ‘To determine whether a decision should be given retroactive effect, the California courts first undertake a threshold inquiry:  does the decision establish a new rule of law?   If it does, the new rule may or may not be retroactive, as we discuss below;  but if it does not, “no question of retroactivity arises,” because there is no material change in the law․

“ ‘․

“ ‘If the decision establishes a new rule of law, a second question arises:  was there a prior rule to the contrary?   If there was, the new rule ․ may or may not be retroactive, as we discuss below;  if there was not, the new rule applies in all cases not yet final.   This is so for the obvious reason that there cannot have been any justifiable reliance on an old rule when no old rule existed.   And the emphasized word is crucial:  “Unjustified ‘reliance’ is no bar to retroactivity.”  [Citation.]   It follows that “[i]n all such cases the ordinary assumption of retrospective operation [citations] takes full effect.”  [Citation.]

“ ‘․

“ ‘Examples of decisions that establish a new rule when there was no prior rule to the contrary are noted as follows in [Donaldson v. People (1983) 35 Cal.3d 24, 37, 196 Cal.Rptr. 704, 672 P.2d 110]:  [For example, there is no] “issue of retroactivity when we ․ address an issue not previously presented to the courts.” ’ ”  (People v. Lopez, supra, 11 Cal.App.4th at pp. 1121-1122, 14 Cal.Rptr.2d 692, quoting People v. Guerra (1984) 37 Cal.3d 385, 399-400, 208 Cal.Rptr. 162, 690 P.2d 635, fn. omitted.)

 Here, there can be no issue of retroactivity because, at the time of appellant's trial, the asportation standard for a violation of section 208(b) had yet to be declared by either the legislature or the courts.   As such, we see no difficulty in applying this new standard to the case before us.   This does not, however, conclude our analysis.

 A separate question arises as to the remedy to be afforded appellant.   As pertinent, the jurors were instructed that, in order to convict appellant of simple kidnap, they must find that:

“3. The movement of such other person was for a substantial distance, that is, a distance more than slight or trivial.

“4. The law does not provide an exact measure of substantial distance.   The issue is one of fact for you to decide, not one of law for the court to decide.   Based upon the facts you determined from the evidence, you may decide the distance was substantial or that it was not substantial.”

They were separately instructed that:

“In addition to charging the crime of kidnapping, the information also alleges that the person kidnapped was under fourteen years of age at the time of the commission of the crime.   If you find the defendant guilty of kidnapping, you must then determine whether this additional allegation has been proved.

“The People have the burden of proving the truth of this allegation.   If you have a reasonable doubt that it is true, you must find it to be not true.

“You will include a special finding on that question in your verdict, using a form that will be supplied for that purpose.”

As these instructions reveal, the jury was not foreclosed from considering the victim's age.   Even though the prosecutor argued risk of harm to the jury, the latter was never asked to decide whether the movement of the victim substantially increased her vulnerability and/or risk of harm over that which existed prior to her movement.   The instruction instead focused on whether the distance the victim was moved was substantial.   Since we have no way of knowing what facts formed the basis of the jury's guilty verdict, appellant's conviction for section 208, subdivision (b) must be reversed and the matter remanded for a new trial in which the jury can be instructed in a manner consistent with this opinion.  (In re Winship (1970) 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368;  People v. Kobrin (1995) 11 Cal.4th 416, 423, 45 Cal.Rptr.2d 895, 903 P.2d 1027.)

II-III**

Appellant's conviction for kidnapping is hereby reversed and the matter is remanded for a new trial on that charge.

The judgment is affirmed in all other respects.

FOOTNOTES

1.   All future statutory references are to the Penal Code.

2.   The reason for the confusion was unclear.   It may have had something to do with the fact that a Spanish-English interpreter had to be used to obtain Victor's testimony at trial.

3.   At trial, Janet testified that she was born in 1982.

4.   The trial court had the case file before it and took judicial notice of this conviction.

5.   Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

6.   Arguably, a third asportation standard was in existence at that time.   It was apparently patterned after that employed in cases of aggravated kidnap and was created by the Legislature when it enacted section 209.5 which proscribes kidnapping during the commission of a carjacking.  (Rayford, supra, 9 Cal.4th at p. 11, fn. 7, 36 Cal.Rptr.2d 317, 884 P.2d 1369.) This standard is satisfied “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 increases the risk of harm to the victim over and above that necessarily present in the crime of carjacking itself.” (§ 209.5, subd. (b).)

FOOTNOTE.   See footnote *, ante.

ARDAIZ, Presiding Justice.

STONE (WM.A.) and THAXTER, JJ., concur.