Skip to content
Name: People v. Anderson
Case #: C047502
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 04/02/2007
Subsequent History: Modi. 150 Cal.App.4th 305a; Review Granted 7/11/07 (S152695)
Summary

There was no error in the trial court’s modification of CALJIC 9.51 to define a substantial distance. Appellant was convicted of numerous sex offenses with minors, including kidnap for the purpose of committing the lewd and lascivious acts. The jury was instructed with a modified version of CALJIC 9.51, which defined a substantial distance as a distance which increased the risk of harm above that which existed prior to the movement, decreased the likelihood of detection, or increased the danger inherent in an escape. Appellant argued that the proper standard is whether the movement increased the risk of harm beyond that inherent in the target offense. The appellate court found the issue waived for failure to raise it below. Further, there was no error because the instruction did not misstate the factors which may be considered in assessing substantiality of the distance moved. CALJIC 2.50.01 is a correct statement of law and the trial court did not err by refusing to modify it to clarify that the permissible inference of a disposition to commit the charged offense applies only to the sexual portion of the offense, i.e. the intent to commit a lewd and lascivious act, and not to the asportation portion. The trial court erred when it imposed two “one strike” enhancements based on the same conduct. Appellant was also charged with violating Penal Code section 288, subdivision (a), and two “one strike” enhancements under Penal Code section 667.61 – one alleged under subdivision (d)(2) and the other on subdivision (e)(1) – based on an allegation that the victim had been kidnaped. The jury convicted him and found both allegations, based on the same conduct, true. The court imposed a sentence of 25 to life based on the subdivision (d)(2) finding, and imposed and stayed pursuant to section 654 a sentence of 15 to life based on the subdivision (e)(1) finding. On appeal, he argued that the (e)(1) finding and sentence had to be stricken because the express language of that subdivision says it applies only when (d)(2) does not apply. The appellate court agreed, and ordered the (e)(1) sentence stricken.