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Name: People v. Robertson
Case #: F061058
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 08/21/2012

Aggravated kidnaping does not require proof that the movement substantially increased the risk of harm to the victim. Appellant asked the victim to come to his property to do some cleaning. He took her into a dark, detached garage and began touching her. When she resisted, appellant pushed her to the front of the garage, where he sexually assaulted her. A jury convicted appellant of aggravated kidnaping for the purpose of committing rape (Pen. Code, § 209, subd. (b)(1)) and other offenses. On appeal appellant challenged the sufficiency of the evidence that his movement of the victim from the back of the garage to the front “substantially” increased the risk of harm to the victim for purposes of aggravated kidnaping and the “One Strike” law (Pen. Code, § 667.61, subd. (e)). Affirmed. Section 209, as amended in 1997, requires only proof that the movement was more than incidental and increased the risk of harm above that inherent in the offense. It does not require proof of a “substantial” increase in the risk of harm. By modifying the asportation standard of section 209 to delete the requirement that the asportation be “substantial,” it was the intent of the Legislature to apply a modified version of the two-prong test in People v. Daniels (1969) 71 Cal.2d 1119, to violations of section 209, subdivision (b). The evidence here was sufficient to prove aggravated kidnaping; the distance the victim was moved was sufficient in its context. The movement reduced the ability of the victim to escape and the increased seclusion enabled appellant to commit a number of sex acts upon her.

The court did not err in admitting evidence of appellant’s 35-year-old prior involving sexual misconduct. Over defense objection, the court allowed evidence of a kidnaping and sexual offense appellant committed in 1974. This was not error. Evidence Code section 1108 authorizes admission of other sex offense evidence in a sex crime case, subject to exclusion under Evidence Code section 352. Substantial similarities between the charged and prior offenses can balance out the remoteness of the prior crime. Here, there were “striking” similarities between the current and prior offenses. Given the fact appellant denied committing the current offense, evidence bearing on his credibility was highly probative – it reflected on his credibility relative to the victim and that he had a propensity to commit sexual offenses.

The no contact order was without statutory authority. At sentencing the prosecution requested, and the court ordered, that appellant have no contact with the victim. Although there are a number of statutes allowing such an order, none applied in this case. Stricken.

The jury was correctly instructed on the asportation required for aggravated kidnaping. The Attorney General challenged the kidnaping for rape instruction (CALCRIM No. 1203), stating that it erroneously required the jury find the asportation “substantially” increased the risk of harm to the victim. The issue was factually erroneous because during a jury instruction conference the instruction was modified to remove the word “substantial.” The court declined to further address the adequacy of the instruction.