The asportation requirements of the aggravated kidnapping statute and One Strike law sentencing enhancement for aggravated kidnapping are not unconstitutionally vague. A jury convicted Ledesma of rape and kidnapping to commit rape, and found true allegations under the One Strike law. Ledesma appealed, arguing that the crime of aggravated kidnapping and the One Strike law enhancement for aggravated kidnapping are impermissibly vague under People v. Johnson (2015) 576 U.S. ___ [135 S.Ct. 2551], thereby violating his due process rights. Held: Affirmed. If a kidnapping is done for the purpose of committing rape, the defendant may be convicted of aggravated kidnapping “if the movement of the victim [was] beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense.” (Pen. Code, § 209, subd. (b)) The One Strike law permits an increased penalty if an almost identical finding is made in the case (see Pen. Code, § 667.61, subd. (d)(2)). Ledesma likened the asportation requirements of the aggravated kidnapping statute and the One Strike law enhancement to the residual clause of the Armed Career Criminal Act (ACCA), which the United States Supreme Court held was impermissibly vague in People v. Johnson. To determine whether a crime qualified as a “violent felony” under the residual clause of the ACCA, a court was required to imagine the kind of conduct the crime involved in the ordinary case and to judge whether that abstraction presented a serious potential risk of physical injury. In contrast, the asportation requirements of the aggravated kidnapping statute and One Strike law enhancement require the fact-finder to apply a legal standard of reasonableness to the facts of the particular incident involved in the case. The court held that this type of inquiry, which occurred in this case, was precisely the type of determination that Johnson held was beyond the void-for-vagueness problem presented by the residual clause.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/D070755.PDF