Friday, November 20, 2009
Page 3
C.A. Scores Standard Jury Instruction on Kidnapping
By KENNETH OFGANG, Staff Writer
The standard jury instruction on simple kidnapping is defective, the Fourth District Court of Appeal ruled yesterday.
Div. Three overturned Rodney Bell’s conviction for kidnapping his former wife after he spotted a police officer who, responding to a tip from the victim, was prepared to arrest Bell on an outstanding warrant for parole violation.
The panel said Orange Superior Court Judge David A. Thompson erred in omitting the bracketed language in CALCRIM No. 1215 that informs the jury that the defendant cannot be convicted if his movement of the victim was merely incidental to the commission of a another crime.
But the instruction itself is defective, Justice Raymond Ikola wrote, because it does not inform jurors as to how they are to determine whether the movement of the victim is substantial enough to satisfy the aportation element of simple kidnapping.
Bell was tried for crimes allegedly committed in March 2007. According to testimony, his ex-wife Arna Jennings arranged to meet him at her work place in Fullerton in order to repay him some money she owed him.
Jennings then informed police that Bell would be there at the arranged time. When Bell arrived early, the pair went out to lunch with Jennings’s boyfriend, with whom Bell quarreled as they returned to the office where Jennings worked.
When police exited their vehicle, and one of the officers drew his gun, Bell slammed his car into the police vehicle and fled. Jennings testified that she asked him three times to let her out, and he finally did so about 70 yards away.
Bell was ultimately apprehended after being chased by several police cars.
He was convicted of evading a police officer while driving recklessly; resisting and obstructing an officer; kidnapping; and hit and run with property damage. The jury found him not guilty of two counts of aggravated assault on a peace officer.
He received an 11-year prison sentence, including six years for kidnapping, as a second-strike offender under the Three Strikes Law.
Ikola, writing for the Court of Appeal, explained that under People v. Martinez (1999) 20 Cal.4th 225, the asportation standard for simple kidnapping takes into account “such factors as whether that movement increased the risk of harm above that which existed prior to the asportation, decreased the likelihood of detection, and increased both the danger inherent in a victim’s foreseeable attempts to escape and the attacker’s enhanced opportunity to commit additional crimes.”
The justice wrote:
“Under these facts, the court should have instructed the jury that, in determining whether defendant’s movement of Jennings was substantial, they could consider whether the movement was merely incidental to the crime of evasion (as one factor among others). Because defendant’s reckless flight from the police was an associated crime to simple kidnapping, the court erred by failing to instruct the jury with regard to the movement’s substantiality in relation to the evasion.”
The court’s ruling does not affect Bell’s conviction on the counts other than kidnapping.
The case is People v. Bell, G041051.
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