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Name: People v. Newman
Case #: B291412
Court: CA Court of Appeal
District 2 DCA
Division: 8
Opinion Date: 09/19/2019

Substantial evidence supported asportation element of kidnapping where defendant ordered the victim at gunpoint to move at least 190 feet from her bedroom towards his car outside her home. Newman broke into his ex-girlfriend’s locked bedroom. He pointed a gun at her chest and directed her to go outside to his car. She got out of bed and went toward her front door, approximately 20-30 feet away. Once they were outside, Newman then told her to start running to his car, which was parked about 550 feet from the front door. He ran with her, pointing the gun at her several times as he urged her to run faster. The victim, fearing for her life, ran to a neighbor’s house for help. Newman was convicted of first degree burglary, assault with a firearm, and kidnapping. On appeal, he argued that the movement (approximately 190 feet in total) was not substantial and did not satisfy the asportation element of kidnapping. Held: Affirmed. Kidnapping requires movement that is “substantial in character” and a jury considers all the circumstances to determine whether the kidnapping movement was substantial rather than trivial. (People v. Martinez (1999) 20 Cal.4th 225.) Distances much shorter than 190 feet have been held to be substantial. Taking the victim from her bedroom, through her house, out the door, through the front gate, and almost 200 feet towards Newman’s waiting car was not trivial. Despite Newman’s argument that his removal of his ex-girlfriend from the house decreased the risk of harm, the jury was entitled to disagree. There was substantial evidence to support the jury’s conclusion that the asportation element was satisfied. [Editor’s Note: The Court of Appeal also concluded that the trial court had no duty to give an attempted kidnapping instruction because, contrary to Newman’s argument, attempted kidnapping is not a lesser included offense of completed kidnapping. (See People v. Fontenot (2019) 8 Cal.5th 57, 71.)]

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