Friday, September 20, 2019
By a MetNews Staff Writer
A man who broke into the bedroom of his former girlfriend and forced her, at gunpoint, to get out of bed and go outside, intending her to enter his car, yesterday lost his bid for reversal of a kidnapping conviction on the ground that the distance the woman travelled before she broke loose and fled was too short to meet the requirement of being “substantial.”
Defendant Andrew Newman—who did not contest his convictions for first degree burglary and assault with a firearm—relied upon the California Supreme Court’s 1999 decision in People v. Martinez. There, then-Justice Janet Rogers Brown said that “for simple kidnapping asportation the movement must be ‘substantial in character,’ ” but added that “the trier of fact may consider more than actual distance.”
Court of Appeal Justice John Shepard Wiley Jr. of this district’s Div. Eight wrote the opinion affirming the judgment. He said Newman forced the victim—termed “H”—to move at least 190 feet.
“A jury considers all the circumstances to determine whether the kidnapping movement was substantial rather than trivial,” he said. “Based on the evidence, a rational jury could have found Newman made H move a substantial distance.”
“Newman’s substantial evidence challenge masks what is in reality his request that we declare 190 feet to be a trivial distance as a matter of law. He cites no precedent for this quantitative challenge, no case holding this distance is too short. We reject this proposal.”
Newman argued that the trial judge, Kathleen Blanchard of the Los Angeles Superior Court, erred in declining to instruct the jury on attempted kidnapping. Wiley disagreed, explaining that “[t]here is no evidence Newman committed anything less than kidnapping.”
Fee Hearing Sought
The appellant also argued he was entitled, under People v. Dueñas—decided by this district’s Div. Seven on Jan. 8, with Acting Presiding Justice Laurie Zelon authoring the opinion—to a hearing to determine his ability to pay fines fees and assessments.
Newman made no such request in the trial court.
Neither had the defendant in People v. Castellano, a case handed down March 26 by Div. Seven. Presiding Justice Dennis Perluss said the appellant did not forfeit the argument because “at the time Castellano was sentenced, Dueñas had not yet been decided; and no California court prior to Duenas had held it was unconstitutional to impose fines, fees or assessments without a determination of the defendant’s ability to pay.
In declaring that “Newman forfeited his Dueñas claims,” Wiley cited two decisions which rejected the reasoning in Castellano: Div. Eight’s April 4 opinion in People v. Frandsen, by Presiding Justice Tricia A. Bigelow, and a June 4 majority opinion in People v. Bipialaka by Justice Judith L. Haller of the Fourth District’s Div. One.
More recent decisions have rejected or sought to limit the holding in Dueñas.
Yesterday’s decision came in People v. Newman, B291412.
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