Problem: Did He Move Her a "Substantial" Distance?

HISTORY: Tyrone Allen was convicted in the Superior Court, City and County of San Francisco, of kidnapping of a person under the age of 14. He appealed. The Court of Appeal affirmed. RUVOLO, J.

FACTS: On August 7, 1995, May SunYoung and her family lived at 2951 Treat Street in San Francisco. That morning, Ms. SunYoung was on her way to take her seven-year-old daughter, Kirstie, to summer camp and stopped her automobile briefly in the driveway to close her garage door manually as she was backing out onto the street. As Ms. SunYoung closed her garage door, a man approached her from behind and said, "Excuse me, can you do me a favor?" While turning around she saw Tyrone Allen getting into her vehicle, whose engine was still running. He then locked the car doors. Kirstie was still in the vehicle with her seatbelt on and began crying. Because the driver's side window was rolled down about seven inches, Ms. SunYoung put her arms through the window and struggled with the appellant in an attempt to reach the ignition key and turn off the engine. Allen then released the parking brake, put the vehicle in reverse, and backed out of the driveway with Kirstie inside and Ms. SunYoung running alongside the vehicle still attempting to reach the ignition key.

The vehicle backed across Treat Street, which was a two-lane road with two parking lanes, until it hit the opposite curb and came to a stop. Allen estimated the vehicle movement was 30 to 40 feet. While Allen now claims this estimate to be "speculation," both sides at different times suggested that the distance moved was approximately five car lengths, or 50 feet. Allen exited the vehicle, threw the car keys onto the ground, shoved Ms. SunYoung against a fence, and ran down the street carrying her purse, which had been left in the vehicle. Shortly thereafter, a neighbor on Treat Street several blocks away saw a man run by. In response to the neighbor's attempts to stop the man, the fleeing suspect stated, "Stay back, I got a gun." After a brief struggle, the man ran off but was later apprehended by San Francisco police officers and identified as the appellant. The jury instruction given regarding the simple kidnapping count was CALJIC No. 9.52, which sets forth the elements of kidnapping of a person under 14 years of age as follows: Every person who unlawfully and with physical force or by any other means of instilling fear moves any other person under 14 years of age without her consent for a substantial distance, that is, a distance more than slight or trivial, is guilty of the crime of kidnapping.... (Pen. Code, § 208, subd. (b); all further statutory references are to the Penal Code unless otherwise indicated.) OPINION The only element of the crime for which appellant asserts there was insufficient evidence and inadequate jury instructions is asportation. For "simple" kidnapping, that is, a kidnapping not elevated to a statutory form of "aggravated" kidnapping, the movement needed must be "substantial," or a distance that is more than "trivial, slight, or insignificant."

Allen argues that his conviction for simple kidnapping must be reversed because the minimum distance requirement for asportation is not met. He asserts the movement of Ms. SunYoung's vehicle 30-50 feet down her driveway and across Treat Street with Kirstie inside as a matter of law cannot be "substantial," or a distance that is more than "trivial, slight, or insignificant." Allen is correct that under most cases decided pre- 1981 which have examined only the actual distance involved, the movement here would not meet the legal test of substantiality. Those cases which have considered the quality and character of the movement in addition to its absolute distance have weighed the purpose for the movement, whether it posed an increased risk of harm to the victim, and the context of the environment in which the movement occurred. Purposes for movement found to be relevant have been those undertaken to facilitate the commission of a further crime, to aid in flight, or to prevent detection. We believe these factors are appropriate considerations. "Substantiality" implies something more than only measured distance. While "slight" is consistent with a quantitative analysis, the term "trivial" is a qualitative term suggestive of the conclusion that more is envisioned in determining whether a kidnapping occurs than simply how far the victim is moved. The legal requirement for asportation is satisfied by a finding of either. In so holding, we conclude that while in absolute footage the distance moved here may have been empirically short, it was of a character sufficient to justify a finding of "substantiality" by the jury. The movement, in part, was plainly made to prevent Ms. SunYoung from regaining possession of her vehicle and to facilitate appellant's flight from the area with Kirstie. In addition to evasion of capture, the vehicle was moved from a position of relative safety onto a thoroughfare. The boundary crossed was significant because it placed Kirstie at greater risk of injury.

We confirm these factors, coupled with the distance traveled, are sufficient to satisfy the "substantial movement" requirement for the crime of simple kidnapping. AFFIRMED. DISSENT KLINE, J. Movement as short a distance as that shown here-30 to 40 feet-has never been held to satisfy the asportation requirement of kidnapping. Indeed, considerably greater distances have often been held insufficient. As the majority opinion points out, movement of 90 feet, nearly three times the distance the victim in this case was moved, was held insufficient. The shortest distance this court has ever held to be "substantial" for this purpose was a full city block. People v. Brown (1974) 523 P.2d 226 also dramatically demonstrates that the movement in the present case must be deemed trivial as a matter of law. The defendant in Brown had gone to the victim's residence in search of her husband, whose name he had discovered in the home of his estranged wife. He forced the victim to accompany him in a search of the house for her husband. When a neighbor who heard the victim scream telephoned and asked if she needed help, the defendant dragged her out of the house and along a narrow passageway between her house and the house next door. A neighbor then ordered the defendant to release the victim and told him the police were on their way. Defendant released her and fled. All in all he had taken her approximately 40 to 75 feet from the back door of her house. A unanimous Supreme Court had little difficulty concluding that "the asportation of the victim within her house and for a brief distance outside the house must be regarded as trivial." I agree that by moving the child in the vehicle across the street Allen committed a crime other than carjacking and the various other offenses of which he was properly convicted; that crime was not kidnapping, however, but false imprisonment (Pen.Code, § 236), which does not require any movement. Because the asportation in this case was trivial within the meaning of the applicable case law, I would reverse the judgment of conviction of simple kidnapping for lack of evidentiary support. I agree that in all other respects the judgment should be affirmed.

Questions: 1. What test did the Court establish to determine how far defendants have to move victims to satisfy the asportation element of kidnapping actusreus?

2. What reasons does the majority give to support its definition of "asportation"?

3. How does the dissent's definition of "asportation" differ from that of the majority's?

4. What reasons does the dissent give for its definition?

5. Do you agree with the majority or the dissent's definition of "asportation"? Defend your answer.