There was insufficient evidence of asportation to support the jury’s aggravated kidnapping finding under the One Strike law where the rape victim was moved from one bathroom stall to another. A jury convicted defendant of forcible rape after he sexually assaulted a woman in a public restroom. Because he moved the victim from the restroom’s small stall to its large stall before raping her, the jury also found true an aggravated kidnapping circumstance under the One Strike law (Pen. Code, § 667.61), requiring a sentence of 25 years to life. Defendant appealed. Held: Sentence modified. Under the One Strike law, if the defendant committed a simple kidnapping of the victim under section 207, subdivision (a), the required term for the sexual offense is 15 years to life (§ 667.61, subds. (b), (e)(1)). Simple kidnapping requires movement of a substantial distance. If the movement also “substantially” increased the risk of harm to the victim, the required term is 25 years to life (§ 667.61, subds. (a), (d)(2)). Here, even if the minor differences between the bathroom stalls supported a finding of some increase in the risk of harm to the victim, there was no evidence from which to reasonably infer that the movement “substantially” increased that risk. Although the movement may have made it easier for defendant to commit the rape, it did not appreciably decrease the likelihood of detection, nor did it substantially increase the danger in the victim’s foreseeable attempts to escape.
There was sufficient evidence to support a lesser finding of simple kidnapping. By finding the aggravated kidnapping circumstance true, the jury necessarily determined that defendant committed a simple kidnapping of the victim. This finding was supported by substantial evidence. For simple kidnapping, the asportation element requires that the defendant moved the victim a substantial distance and that the movement was not merely incidental to the sexual offense. A reasonable juror could conclude that dragging the victim from the small stall to the large stall was movement of a substantial distance because it took her farther from the restroom’s exit and gave defendant more room to maneuver, facilitating the rape and other potential crimes.
The court may modify the judgment to reflect a 15-year-to-life sentence based on the lesser kidnapping circumstance (§ 667.61, subd. (e)(1)) instead of reversing the aggravated kidnapping circumstance outright. Because a One Strike allegation exposes a defendant to greater punishment than would be authorized by a verdict on the offense alone, it is treated as the functional equivalent of an element of a greater offense. Under section 1260, an appellate court may modify a verdict to reflect a conviction of a lesser included offense where insufficient evidence supports the conviction on the greater offense. Here, it is impossible to meet the elements of the aggravated kidnapping circumstance without also meeting the elements of the kidnapping circumstance. The court saw no reason that defendant should avoid a One Strike sentence where the jury necessarily made a factual finding that satisfies a circumstance requiring a term of 15 years to life, that circumstance is a lesser included circumstance of the one found true, and that circumstance is supported by substantial evidence.