ARMSTRONG, Acting P. J., Dissenting. Wanner Luna, the purported victim of a kidnapping, testified that his former juvenile camp dominate showed up at his apartment house late one night drunk, looking for gang members and waving a gun; this frightened Lima. After defendant entered the building, he and Luna walked 15 feet down a hallway and through the open door to Luna’s apartment. Luna did not testify that defendant forced him into the apartment; rather, he repeatedly stated that they walked together down the hallway and into the unit. From these circumstances, coupled with the fact that defendant walked behind Luna, the majority infers that defendant made Luna walk to his apartment at gunpoint. Because I conclude that this inference is not reasonable in light of the evidence presented at trial, I cannot concur in affirming the kidnapping conviction. I also conclude that the majority has erroneously applied the asportation standard announced in [1437]People v. Martinez (1999) 20 Cal.4th 225 [83 Cal.Rptr.2d 533, 973 P.2d 512]. I therefore respectfully dissent.
“ ‘The standard applied by a trial court in ruling upon a motion for judgment of acquittal pursuant to [Penal Code] section 1118.1 is the same as the standard applied by an appellate court in reviewing the sufficiency of the evidence to support a conviction, that is, “whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.” ’ [Citation.] ‘The purpose of a motion under section 1118.1 is to weed out as soon as possible those few instances in which the prosecution fails to make even a prima facie case.’ [Citations.] The question ‘is simply whether the prosecution has presented sufficient evidence to present the matter to the jury for its determination.’ [Citation.] The sufficiency of the evidence is tested at the point the motion is made. [Citations.] The question is one of law, subject to independent review.” (People v. Stevens (2007) 41 Cal.4th 182, 200 [59 Cal.Rptr.3d 196, 158 P.3d 763].)
Thus, to the majority’s recitation of the standard of review I would add only that this court is to review “ ‘ “the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” ’ ” (People v. Valdez (2004) 32 Cal.4th 73, 104 [8 Cal.Rptr.3d 271, 82 P.3d 296], italics added.) We are not free to ignore, for example, the undisputed evidence that Luna’s apartment door was open (thus negating any reason for defendant to force Luna’s movement), or that Luna not only did not testify that he walked to his apartment at gunpoint, but stated that he did not know where defendant’s gun was at that point in time.
In order to evaluate the entire record to assess the sufficiency of the evidence, it is important to understand the physical space making up the supposed crime scene. This space can be divided into three parts, each one of which was the locus of discrete activity and only one of which was the site of the charged kidnapping. First, when Luna opened the front door to his apartment building in response to hearing his name, he found defendant (and a female companion) on the front walk; they were separated by a series of steps, which led up to the door of the complex. It was in this location that defendant waved his gun in a drunken fashion, demanding to know “where TMC’s at,” and to inspect Luna’s torso for gang tattoos. After Luna lifted his shirt to demonstrate the absence of tattoos, defendant continued to hunt for [1438]TMC gang members, but gave no indication that he believed Luna to be a member of TMC, or of any other gang. This location is the site of defendant’s assault on Luna.
Defendant left the first location by ascending a series of stairs and entering the apartment building. At this point, defendant was standing next to Luna and, according to respondent, had not yet commenced to kidnap him. This second space consists of the hallway leading from the front door of the building to Luna’s apartment, the door of which Luna had left open when he looked to see who was outside. This is the site of the charged kidnapping, a distance of 15 level feet, with no stairs. Luna walked down the hallway and into his apartment; defendant followed him.
The third location about which Luna testified was the inside of his family’s two-story apartment. When defendant reached Luna’s apartment, he immediately started to ascend the interior stairs; Luna followed him. Nothing that defendant or Luna did or did not do inside the apartment plays any part in the People’s prosecution of this case. That is to say, according to the prosecution’s theory of the case, the assault was complete when defendant was outside the building; the kidnapping was complete when Luna and defendant entered the apartment; no crime was committed, or attempted, inside the apartment.
“Every 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.” (Pen. Code,1 § 207, subd. (a).) The elements of kidnapping are: “ ‘(1) a person was unlawfully moved by the use of physical force or fear; (2) the movement was without the person’s consent; and (3) the movement of the person was for a substantial distance.’ (People v. Jones (2003) 108 Cal.App.4th 455, 462 [133 Cal.Rptr.2d 358].)” (People v. Bell (2009) 179 Cal.App.4th 428, 435 [102 Cal.Rptr.3d 300].) In order to constitute the crime of kidnapping, the movement must be forcible; the force applied need not, however, be physical. “ ‘ “The movement is forcible where it is accomplished through the giving of orders which the victim feels compelled to obey because he or she fears harm or injury from the accused and such apprehension is not unreasonable under the circumstances.” ’ ” (People v. Alcala (1984) 36 Cal.3d 604, 622 [205 Cal.Rptr. 775, 685 P.2d 1126].) If, however, the defendant does not say or do anything to force the [1439]victim to move, he has not committed the crime of kidnapping. In this case, it is the absence of evidence that defendant said or did anything to force Luna to move from which I conclude that the People failed to prove their case.
Here, the People relied on Luna’s testimony to prove the kidnapping charge, which respondent summarizes as follows: “Luna walked in front of [defendant] to his apartment door, a distance of about 15 feet, under threat of defendant’s gun . . . .” This phrasing suggests that there is direct evidence that defendant held a gun at Luna’s back and ordered him to return to his apartment. However, Luna did not so testify. Rather, Luna testified that defendant “went inside with the girl. He walked in, and then he went inside my apartment”; “He was walking, like, towards—because to my building, you have to walk up some stairs. So he walked up the stairs, and he told me where the TMC’s at, and I was like, I don’t know. So then, like, he walked, like—because the door was open from my house, he walked in, and he went all the way up”; “He was behind me. Yes, he went inside the apartment with me”; “Q: So you started walking to your apartment? A: Yes. Q: And he came with you? A: Uh-Huh.”
The majority opinion, in apparent recognition of the fact that there is no direct evidence of force, states that the jury could have reasonably inferred that defendant “pointed a gun at Luna, and followed him to the apartment to search for TMC gang members.” However, the evidence presented at trial does not support such an inference:
“Q: When you were walking to your apartment, did he still have the gun out?
“A: When he was walking to my apartment?
“Q: Yes.
“A: Did he have the gun out? Not, like, pointing it at me.
“Q: Where was he pointing it?
“A: I don’t remember.
“Q: But he still had the gun in his hands?
“A: If he had it, I don’t know. I don’t remember. I was just walking. ... I was walking in front of him.”
[1440]Luna later testified that defendant never threatened him.
This testimony renders unreasonable the proposed inference that Luna walked to his apartment at gunpoint or “under threat of defendant’s gun.” That is to say, it is not reasonable to conclude that Luna’s movement was in response to having a gun pointed at him, when he did not remember whether, at that point in time, defendant was holding the gun, and testified that defendant never threatened him. It is, rather, mere speculation unsupported by the evidence. “ ‘While substantial evidence may consist of inferences, such inferences must be “a product of logic and reason” and “must rest on the evidence” [citation]; inferences that are the result of mere speculation or conjecture cannot support a finding [citations].’ [Citation.]” (Casella v. Southwest Dealer Services, Inc. (2007) 157 Cal.App.4th 1127, 1144 [69 Cal.Rptr.3d 445].)
In fact, Luna did not give a clear account of the exact circumstances under which he walked from the building’s front door to his apartment door. What is clear is that Luna did not testify that he did so at defendant’s order, suggestion, or request, or in response to any verbal, visual or physical directive. In reply to the only direct question of why he traversed these 15 feet, Luna answered, “Because I didn’t want no—I don’t know. Because there was drama. I told him to, like, just chill. Like, to calm down. ... [f] ... [f] I guess he was drunk or something. I told him to calm down.” Luna explained that he was afraid, and that he turned around and walked to his apartment. While one may reasonably infer from this testimony that Luna walked to his apartment because he was afraid, one may not reasonably infer that he walked to his apartment because defendant forced him to do so. Neither is it reasonable to conclude from the fact that Luna was behaving in an accommodating manner (by, for example, leading defendant to his apartment) that defendant was demanding the accommodating behavior.
The majority posits that defendant kidnapped Luna so that he could search his apartment for TMC gang members. This conclusion does not square with the fact that the apartment door was open. Defendant did not need Luna to move in order to gain access to the apartment and conduct his search. It is not reasonable to conclude that defendant kidnapped Luna in order to search his apartment when he could have conducted the search without Luna’s assistance.
In sum, there would be no question that there was no kidnapping if Luna had followed, rather than led, defendant to his apartment. Yet there is no [1441]evidence upon which to ground an inference that Luna was in front of rather than behind defendant because defendant wanted it that way. In my view, the evidence simply does not support an inference of forced movement.
Defendant also maintains that the prosecution failed to establish the asportation element of simple kidnapping; that is, that the space over which the prosecution alleged that defendant moved Luna—the 15 feet between the front door of the apartment building and the front door of Luna’s apartment—was a “substantial distance.” Because I believe that the majority uses inapposite authority to find the distance substantial, I review the case law defining the asportation element of simple kidnapping at some length.
I note first that multiple statutes make unlawful the crime of kidnapping. Thus, section 207, subdivision (a) prohibits “simple” kidnapping, defined as forcibly, or by any other means of instilling fear, carrying a person “into another country, state, or county, or into another part of the same county.” Other statutes proscribe kidnapping in conjunction with another crime; kidnapping a child under 14 for the purpose of committing any act defined in section 288 (§ 207, subd. (b)); kidnapping for ransom, reward, or extortion (§ 209, subd. (a)); and kidnapping to commit robbery or sexual assault (§ 209, subd. (b)). The asportation element of simple kidnapping has developed through the case law independently from asportation in the context of kidnapping for the purpose of committing another crime, as I explain below.
The asportation element of the crime of kidnapping has a long and confusing history. In the middle of the last century, California law was clear that, if a victim was moved without his or her consent by force or fear, the crime of kidnapping had been committed: “It is the fact, not the distance, of forcible removal which constitutes kidnaping in this state.” (People v. Chessman (1951) 38 Cal.2d 166, 192 [238 P.2d 1001].)
That rule of law was abrogated in People v. Daniels (1969) 71 Cal.2d 1119 [80 Cal.Rptr. 897, 459 P.2d 225] (hereafter Daniels), where the defendants were convicted of kidnapping for the purpose of robbery. The court held that “when in. the course of a robbery a defendant does no more than move his victim around inside the premises in which he finds him—whether it be a residence, as here, or a place of business or other enclosure—his conduct generally will not be deemed to constitute the offense proscribed by section 209. Movement across a room or from one room to another, in short, cannot reasonably be found to be asportation ‘into another part of the same county.’ (Pen. Code, § 207.)” (Id. at p. 1140.) The new asportation test for aggravated kidnapping announced in Daniels was two pronged: (1) the movement of the [1442]victim must not be “merely incidental to the commission of the robbery”; and (2) such movement must “substantially increase the risk of harm over and above that necessarily present in the crime of robbery itself.” (Id. at p. 1139.)
The Daniels asportation test was explicated in a number of subsequent Supreme Court opinions: “As for the first prong, or whether the movement is merely incidental to the crime of robbery, the jury considers the ‘scope and nature’ of the movement. (People v. Daniels, supra, 71 Cal.2d at p. 1131, fn. 5.) This includes the actual distance a victim is moved. However, we have observed that there is no minimum number of feet a defendant must move a victim in order to satisfy the first prong. [Citation.] [][]... [f] The second prong of the Daniels test refers to whether the movement subjects the victim to a substantial increase in risk of harm above and beyond that inherent in robbery. (In re Earley[ (1975)] 14 Cal.3d [122,] 131 [120 Cal.Rptr. 881, 534 P.2d 721]; People v. Lara (1974) 12 Cal.3d 903, 908 & fn. 4 [117 Cal.Rptr. 549, 528 P.2d 365].) 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. (See, e.g., People v. Lara, supra, 12 Cal.3d at p. 908 & fn. 4 [examples of such risk of harm ‘include not only desperate attempts by the victim to extricate himself but also unforeseen intervention by third parties’]; In re Earley, supra, 14 Cal.3d at p. 132 [‘asportation gave rise to dangers, not inherent in robbery, that an auto accident might occur or that the victim might attempt to escape from the moving car or be pushed therefrom by [defendant]’]; cf. People v. Caudillo (1978) 21 Cal.3d 562, 574 [146 Cal.Rptr. 859, 580 P.2d 274] [aggravated kidnapping includes 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.’].) The fact that these dangers do not in fact materialize does not, of course, mean that the risk of harm was not increased.” (People v. Rayford (1994) 9 Cal.4th 1, 12-14 [36 Cal.Rptr.2d 317, 884 P.2d 1369].)
Because the Daniels court specifically referred to section 207,2 there arose a question of whether the asportation requirement of aggravated kidnapping with which the court was concerned in Daniels applied as well to the offense of simple kidnapping. That question was answered in People v. Stanworth (1974) 11 Cal.3d 588 [114 Cal.Rptr. 250, 522 P.2d 1058] (hereafter Stanworth), which rejected the Daniels asportation test for simple kidnapping.
In Stanworth, the court considered the defendant’s contention that “the rule announced by us in Daniels applies not only to aggravated kidnaping (§ 209) [1443]but to so-called simple kidnaping (§ 207).” (Stanworth, supra, 11 Cal.3d at p. 596.) The court concluded that it does not. “[W]here 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.” (Id. at p. 600.) Thus, in determining whether the evidence supported the asportation element of simple kidnapping, the court refused to consider such factors as whether the movement increased the risk of harm to the victims, and instead assessed only whether the distance the victims involuntarily traversed was not slight or trivial but substantial. (Id. at p. 601.) The Stanworth court concluded that the one-quarter mile which the victims were forced to walk “cannot be reasonably regarded as slight or insubstantial.” (Id. at p. 603.)
The Supreme Court confirmed the “distance alone” standard of asportation for simple kidnapping several years later in People v. Caudillo, supra, 21 Cal.3d 562 (hereafter Caudillo). In Caudillo, the defendant accosted the victim on the elevator of her apartment building and forcibly moved her to a storage room next to the elevator, where he kept her for 20 minutes before taking her to her apartment down the hall from the storage room, where he sexually assaulted her. The actual distance from the elevator to the storage room to the victim’s apartment was not mentioned in the opinion, but was apparently less than measurements found to be trivial or insubstantial in earlier Supreme Court cases. (Id. at pp. 573-574.) Thus, the People sought to introduce considerations other than actual distance—for instance, the defendant’s movement of the victim to the storage room to avoid detection—to assess whether there had been “sufficient movement” for purposes of section 207. The court rejected this approach: “Neither 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 kidnaping—a kidnaping for the purpose of robbery (Pen. Code, § 209)—but we held in Stanworth that the Daniels test was not applicable to simple kidnaping under Penal Code section 207.” (21 Cal.3d at p. 574.)
Following the Stanworth!Caudillo rulings, the “distance alone” standard of asportation was applied by the appellate courts to reverse convictions for simple kidnapping for distances deemed not substantial. (People v. Thornton (1974) 11 Cal.3d 738, 767 [114 Cal.Rptr. 467, 523 P.2d 267] [rape victim forced from front to rear of laundromat; “[b]ecause the sexual assault there took place wholly within the confines of a single room in a laundromat, any asportation involved was not ' “into another part of the same county” ’ ”]; People v. Brown (1974) 11 Cal.3d 784 [114 Cal.Rptr. 426, 523 P.2d 226] [victim forced through own house and 75 feet outside house]; People v. Green (1980) 27 Cal.3d 1 [164 Cal.Rptr. 1, 609 P.2d 468] [90 feet]; People v. Sheldon [1444](1989) 48 Cal.3d 935 [258 Cal.Rptr. 242, 771 P.2d 1330] [movement of victim from attached garage into house, through hall and three rooms]; People v. Daly (1992) 8 Cal.App.4th 47 [10 Cal.Rptr.2d 21] [40 feet across parking lot to defendant’s van].) Thus, were Stanworth and Caudillo the last word on the asportation element of simple kidnapping, defendant’s conviction in this case, based on asportation of 15 feet, would indisputably require reversal.
In People v. Martinez, supra, 20 Cal.4th 225 (hereafter Martinez), the Supreme Court reconsidered its rulings that distance alone is determinative of the asportation element of simple kidnapping. The facts in Martinez were these: The defendant had rented a room from a family consisting of a husband and wife, their two daughters, ages 13 and 15, and their niece and her two children. The defendant returned home late one night and instigated a violent confrontation with the family, forcing family members to lock themselves in the bathroom. The husband and his older daughter escaped and sought help. While holding a knife in one hand and a hammer in the other, the defendant put the knife to the niece’s ribcage and demanded that the 13-year-old girl take him to her sister. Still holding the knife and with blood dripping from his hands, the defendant led the young girl through the next room, through the kitchen and the defendant’s room, across a 15-foot porch to a point outside the home across the backyard and parking area approximately 40 to 50 feet behind the residence. The jury found the defendant guilty of kidnapping a child under the age of 14 in violation of sections 207, subdivision (a) and 208, subdivision (b), as well as assault with a deadly weapon, false imprisonment, and making terrorist threats. (20 Cal.4th at pp. 230-231.)
On appeal, the Supreme Court was faced first with the question of whether section 208, subdivision (b) is a separate crime or a punishment provision. Upon concluding that it is a separate offense, the court was required to determine which standard applied to the asportation element, that of simple kidnapping, in which case Stanworth and Caudillo controlled, or aggravated kidnapping, in which case Daniels applied. After reaffirming that the movement of the victim must be “substantial in character” to meet the asportation requirement for simple kidnapping, the court overruled the “actual distance only” standard, holding that the trier of fact may consider more than actual distance in evaluating whether there is sufficient evidence of asportation. Specifically, the trier of fact may consider the totality of the circumstances, including “the ‘scope and nature’ of the movement and the increased risk of harm to the victim.” (Martinez, supra, 20 Cal.4th at p. 236.) The court emphasized, however, “that contextual factors, whether singly or in combination, will not suffice to establish asportation if the movement is only a very short distance.” (Id. at p. 237.) Because the distance traversed in Martinez was less than the distances deemed “insufficient as a matter of law” in [1445]People v. Green, supra, 27 Cal.3d at page 67 (90 feet) and People v. Brown, supra, 11 Cal.3d 784 (75 feet), the court declined to apply its holding retroactively and reversed the defendant’s conviction for simple kidnapping.
The rationale for the court’s analysis is readily apparent: In two factual situations where the defendants not only moved their victims but rendered them substantially more vulnerable to the defendant’s criminal intentions, the Supreme Court reversed kidnapping convictions because the distances traversed were slight compared with distances found insubstantial in earlier cases. The victim in Caudillo was snatched from an elevator, held captive in a storage room to avoid detection, and dragged to her apartment where she was forced to unlock the door; having thus moved his victim into her own home, the assailant was able to, and did, assault her at will over a substantial period of time without fear of interruption. Regardless of the precise number of feet the victim was moved against her will, the circumstances of the asportation in Caudillo can hardly be characterized as trivial. Similarly, in Martinez, the defendant broke down the door of the bathroom where the victim and her family sought protection from the defendant’s violent rampage, grabbed his young victim with his bloody hands and, with knife in hand, physically forced her through three rooms, across a 15-foot porch, and across the backyard and parking area, a total distance approaching 90 feet. As in Caudillo, the circumstances, if not the distance, of the asportation were not trivial.
Respondent’s position that Luna’s movement from the front door of the building to the threshold of his apartment, a distance of 15 feet, met the asportation element of simple kidnapping must be evaluated by the standards set forth in Martinez.3 In this regard, I am mindful that, prior to 1999, there is no doubt that defendant’s conviction for kidnapping would be subject to reversal; thus, a ruling affirming defendant’s conviction must be consonant with the rationale as well as the rule of Martinez.
First, I note that the 15 feet at issue in this case is a substantially slighter distance than those at issue in the cases cited above. Respondent offers a single case, People v. Shadden (2001) 93 Cal.App.4th 164 [112 Cal.Rptr.2d 826], which concerned a distance less than that at issue here. In Shadden, the victim was moved nine feet, from her video store to the store’s back room. The appellate court found this asportation substantial. However, the defendant in Shadden was not charged with simple kidnapping under section 207, subdivision (a), but with kidnapping with intent to commit rape under section 209, subdivision (b)(1). “[T]he standard for proving the asportation element [1446]of simple kidnapping is not the same as that for aggravated kidnapping.” (People v. Bell, supra, 179 Cal.App.4th at p. 435.) This is so because, as our Supreme Court has made clear, these two types of kidnapping do not share the same asportation element: “[W]here 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.” (Stanworth, supra, 11 Cal.3d at p. 600.) Thus People v. Shadden is not pertinent authority for the issue before us.4 In the other cases cited by respondent, the victims were moved distances of between 29 and 50 feet. Not only are these distances greater than the 15 feet at issue here, but these cases, like Shadden, concerned the asportation element of aggravated, not simple, kidnapping.
Respondent adds: “Furthermore, as the prosecutor argued, [defendant’s] movement of Luna further into the building and into Luna’s apartment increased the risk of harm to Luna by decreasing the risk of detection and making escape more difficult. (People v. Martinez, supra, 20 Cal.4th at p. 237.)” However, respondent provides no analysis for this conclusion: How did the “risk of detection” change based on Luna’s movement from the front door of the apartment building to the threshold of his family’s apartment? And what was at risk of being detected? Defendant was not moving through the building and apartment stealthily to avoid being detected, but was vociferously announcing his presence and his interest in finding members of a certain gang. How was Luna’s ability to escape affected by reason of the movement? Luna’s action in closing the apartment door suggests that he had no thought of “escaping,” and defendant’s immediate ascent of the interior stairs once he entered the apartment made Luna’s escape easier, not more difficult. Respondent cites no evidence to support its contention that Luna was placed at increased risk of harm, but relies on imagined possibilities of what could have, but did not, happen. The majority endorses this use of speculation when it states that Luna’s movement into his apartment rendered it “less likely defendant would have been detected if he had committed an additional crime.” (Maj. opn., ante, at p. 1435.) However, it is undisputed that defendant committed no crime inside the apartment. We are required to confine ourselves to the evidence presented at trial and the reasonable inferences to be drawn therefrom.
[1447]A review of the kidnapping cases reveals that asportation can increase the risk of harm to the victim in one of distinct two ways: The movement itself can be dangerous, or the result of the movement can increase the victim’s risk of harm. In the former circumstance, for instance, where the defendant transports the victim in a motor vehicle, there is the inherent risk of a collision or the possibility that the victim will attempt to escape from the moving car. In such cases of inherently dangerous movement, “[t]he fact that these dangers do not in fact materialize does not, of course, mean that the risk of harm was not increased.” (People v. Rayford, supra, 9 Cal.4th at p. 14.)
More often, the risk of danger is increased by the movement of the victim to a more secluded location, which increases the likelihood that the defendant will be able to achieve his criminal intentions, whether they be rape, robbery, assault, or another crime, without interruption or detection. (See, e.g., Caudillo, supra, 21 Cal.3d 562 [movement to storage closet and then to the victim’s apartment]; People v. Shadden, supra, 93 Cal.App.4th 164 [movement to backroom of store]; People v. Jones (1999) 75 Cal.App.4th 616 [89 Cal.Rptr.2d 485] [movement into parked car]; People v. Smith (1995) 33 Cal.App.4th 1586 [40 Cal.Rptr.2d 31] [movement into camper]; People v. Salazar (1995) 33 Cal.App.4th 341 [39 Cal.Rptr.2d 337] [movement through motel room into bathroom].) In these cases, where the defendant moves the victim in order to harm him or her in private without interruption, it is of course irrelevant if the defendant is prevented, by circumstances unforeseen by him, from harming the victim.
Here, respondent does not contend that the movement itself—several strides through the apartment’s hallway—was inherently dangerous. Rather, it maintains that the result of the asportation—placing Luna “further into the building and inside his apartment”—“increased the risk of harm to Luna by decreasing risk of detection and making escape more difficult.” This supposes, however, that defendant moved Luna with the intention of harming him. There is no evidence to support this supposition. Rather, the only reasonable inference to be deduced from the evidence is that defendant’s sole purpose in moving Luna into the apartment was to determine whether any TMC gang members were present. While Luna might have been put at increased risk of harm if such persons had been present, because they were not (a fact known to Luna), the movement did not, in fact, increase the risk of harm to Luna.
I conclude that, given the totality of the circumstances, including the very short distance involved, the fact that Luna simply walked down the hall, and the absence of evidence of an increased risk of harm, the asportation was not [1448]substantial for purposes of section 207, subdivision (a). (Martinez, supra, 20 Cal.4th at p. 237.) In addition, as explained above, I find no substantial evidence of forcible movement. Consequently, I would reverse the kidnapping conviction.
Appellant’s petition for review by the Supreme Court was denied July 13, 2011, S192739.
Further statutory references are to the Penal Code.
In fact the court relied extensively on its reasoning in an earlier case (Cotton v. Superior Court (1961) 56 Cal.2d 459 [15 Cal.Rptr. 65, 364 P.2d 241]), in which it set aside an indictment charging the petitioners with simple kidnapping, due to an insufficient showing of asportation.
For purposes of this discussion of the third element of the charged offense, I assume that there is no challenge concerning the first two elements of simple kidnapping, that is, forcible, involuntary movement.
The court in Shadden found the nine feet at issue substantial based on the fact that the defendant did not need to move the victim in order to rape her, and thus the movement was not “incidental” to the rape. This analysis has been rejected by subsequent appellate courts, based on the differing constructions of the word “incidental.” (See, e.g., People v. Hoard (2002) 103 Cal.App.4th 599, 607 [126 Cal.Rptr.2d 855].) Because simple kidnapping has no other offense as a referent, it is particularly difficult to apply the analysis of asportation for aggravated kidnapping to a simple kidnapping case.