Simple kidnapping conviction reversed because jury was not instructed to consider whether the movement of the victim was merely incidental to the commission of a domestic violence battery. Defendant was convicted of a number of offenses, including simple kidnapping, false imprisonment, and domestic violence battery, based on acts he committed against his ex-girlfriend in her apartment. On appeal he challenged the kidnapping offense because the trial court failed to instruct the jury to consider whether the movement of the victim was merely incidental to the commission of the other crimes. Held: Kidnapping conviction reversed. At trial the parties agreed to modify CALCRIM No. 1215 (simple kidnapping) to delete the portion stating the jury should consider whether the movement of the victim was merely incidental to an associated crime in determining whether the asportation element was met. For simple kidnapping, an associated crime is any criminal act the defendant intends to commit where, incident to its commission, he moves the victim by force or fear against her will. For domestic violence battery (Pen. Code, § 243, subd. (e)(1)) a defendant must willfully touch the victim in a harmful manner. The evidence here reflected such a touching occurred when defendant dragged the victim from the living room to a bedroom and this evidence was sufficient to show that the relationship between the kidnapping and the battery meets the associated crime test under People v. Bell (2009) 179 Cal.App.4th 428. Thus, the “associated crime” instruction should have been given. The error was prejudicial because the jury was precluded from determining whether the movement was merely incidental to the domestic violence battery.

The false imprisonment and assault with a firearm (ADW) were not associated crimes of simple kidnapping. False imprisonment is a lesser included offense (LIO) of kidnapping so cannot be an associated crime as a matter of law. This is because the point of the associated crime rule is to determine whether more than one crime has been committed, and conviction of both a greater and LIO is always prohibited. The ADW was not an associated crime as a matter of fact because no movement occurred during its commission.