Kidnaping to Commit Sex Offense

Kidnaping to Commit Sex Offense

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  • Rape;
  • Spousal rape;
  • Oral copulation;
  • Sodomy;
  • Forcible rape in concert;
  • Lewd and lascivious acts with a child or a dependent person;
  • Sexual penetration.1

The movement is the same as that of aggravated kidnaping. It must be beyond that which is necessary to perform the underlying offense. The movement must also increase the threat of injury to the victim outside of that necessary to commit the crime.2

The movement requirement is not a set distance, but must be examined because of all the circumstances surrounding the act3, including, “the context of the environment in which the movement occurred.”4

The movement may be enough, even where it is just done to perform the underlying crime. Movement is not enough where it just occurs within a building or a business.5

Movement is not a necessary element of rape.6

When evaluating if the movement is merely incidental to the rape, “the context of the environment in which the movement occurred.”

Movement can be substantial if its sole purpose is to facilitate the commission of the underlying offense.

However rape does not require movement of the victim to complete the crime.

Movement apart from that needed to commit the rape is enough if it greatly increases the risk of injury to the victim.7

The follow acts are often considered to show if the movement is adequate.

  • Decreases detection,
  • Increases the danger should a victim attempt to escape, or
  • Enhances the opportunity for the attacker to commit additional crimes.8

Where a defendant moves a victim from a public area to one more secluded, the risk of injury is increased even if the distance is short.9

Kidnaping to Commit Sex Offense

Moving the victim to a more isolated, less visible area where detection is less likely is sufficient, even if the less visible area is a public sidewalk rather than a hidden area.10

The increased risk of injury need not be great, it only needs to increase the possibility of injury over and above that resulting from performing the underlying crime.11

The sentence for a conviction of kidnap to commit a sex act is prison for life with the possibility of parole.12

1 Section 209(b)(1) of the California Penal Code; People v. Daniels (2009) 176 C.A.4th 304, 333, 97 C.R.3d 659

2 Section 209(b)(2) of the California Penal Code; People v. Rayford (1994) 9 C.4th 1, 36 C.R.2d 317, 884 P.2d 1369.

3 People v. Shadden (2001) 93 C.A.4th 164, 169, 112 C.R.2d 826.

4 People v. Dominguez (2006) 39 C.4th 1141, 1152, 47 C.R.3d 575, 140 P.3d 866.

5 People v. Power (2008) 159 C.A.4th 126, 139, 70 C.R.3d 799

6 People v. Shadden, supra

7 People v. Dominguez, supra, 39 C.4th 1152

8 People v. Dominguez, supra; People v. Shadden, supra, 93 C.A.4th 168.

9 People v. Shadden, 93 C.A.4th 169.

10 People v. Aguilar (2004) 120 C.A.4th 1044, 1048, 16 C.R.3d 231.

11 Section 209(b)(2) of the California Penal Code.

12 Section 209(b)(1) of the California Penal Code.