Movement of child sex victim from bathroom to bedroom did not increase risk of harm, rendering evidence insufficient to support aggravated kidnapping enhancement. Perkins was convicted of numerous offenses arising from the kidnapping and rape of a 17-year-old girl, and the rape and sodomy of his 11-year-old former stepdaughter. As to several of the offenses committed against his former stepdaughter, the jury found true allegations that defendant’s sex crimes committed in the bedroom involved both aggravated kidnapping and kidnapping under the One Strike law (Pen. Code, § 667.61, subd. (j)(1), (2)). One issue raised on appeal challenged the sufficiency of the evidence to support the aggravated kidnapping and kidnapping enhancement findings. Held: Reversed in part. To prove the aggravated kidnapping enhancement, it must be established that the defendant kidnapped the victim of the underlying offense (Pen. Code, § 207) “and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense.” (Pen. Code, § 667.61, subd. (d)(2).) Further, the asportation of the victim requires movement that was substantial in character and not merely incidental to the underlying offense. In determining whether the movement was merely incidental to the offense and whether it increased the risk of harm to the victim, the scope and nature of the movement, as well as the context in which it occurred, must be considered. Here, after sodomizing the victim, Perkins forced her to move from the apartment’s only bathroom to its only bedroom, a distance of between 10 and 30 feet; movement for a short distance inside a private residence. The movement did not increase the risk of harm to the victim, decrease the likelihood the crime would be detected, or increase Perkins’ opportunity to commit other crimes.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/C072545.PDF