Defendant was convicted in the Superior Court, Los Angeles County of kidnapping and two counts of assault with a semiautomatic firearm. The California Court of Appeal, Second District, affirmed.

Defendant, a member of the Rebels street gang, went on a mission late one evening to locate and “blast” a member of a rival gang—The Magicians Club (TMC). In an effort to find TMC gang members, defendant summoned 17–year–old Wanner Luna out of his apartment and pointed a gun at him.

Defendant asked him whether he was a member of TMC and if he knew the location of TMC gang members. Luna denied membership in the rival gang. Nevertheless, defendant, still holding the gun, walked behind Luna for approximately 15 feet to Luna’s apartment, so that defendant could search for TMC gang members. Defendant left the apartment after finding no TMC gang members. Defendant then encountered Byron Delcid in the hallway. Defendant pointed the gun at him and asked if he were a TMC gang member. Delcid said he was not a member of the gang, whereupon defendant ordered him into an apartment and left the scene.

A jury convicted defendant of kidnapping and two counts of assault with a semiautomatic firearm. In addition, the jury found defendant used a firearm in the commission of the offenses and that the offenses were committed for the benefit of a criminal street gang. He was sentenced to 20 years, 4 months in state prison and ordered to pay statutory fees/fines.

. . . Prosecution Evidence 1. Defendant Begins His Search for TMC Gang Members Wanner Luna began his testimony by stating, “I’m not here to press charges. I’m just here to say what happened that night.” He was concerned a street gang would “go after” him because he testified.

The events he testified to occurred near midnight on December 12, 2008. It was then that Luna heard someone calling his name from outside his apartment building. He exited the building and observed defendant standing with a girl.

Defendant pointed a gun toward Luna’s chest or stomach.

Defendant asked if Luna knew the location of TMC gang members and whether Luna was a TMC gang member. Luna replied, “No.” Defendant told Luna to lift up his shirt so defendant could examine Luna’s stomach for TMC tattoos.

Luna complied—he did not have any TMC tattoos.

Luna was “scared” and “just following [defendant’s]

directions.” Defendant and the female walked behind Luna for about 15 feet to Luna’s apartment door. Defendant still had the gun. Luna took the situation seriously and asked defendant to “chill.” He went to the apartment because he was afraid and defendant had a gun. Although defendant entered the apartment, Luna did not invite defendant into his apartment and did not want him to enter his apartment.

When they reached the apartment, defendant said, “I’m telling you again, where the TMC’s at [sic]?” Luna said he did not know the location of the gang members, and asked defendant to leave. Defendant, however, ascended the apartment’s stairs to the second story. Luna followed. He explained, “[I]

thought [defendant] was going . . . to do something like check the rooms. And my mom was sleeping, and he had a gun. . ..”

Defendant eventually left the apartment. Luna locked the door and could hear defendant confront another individual.

2. Defendant Encounters Byron Delcid After leaving Luna’s apartment, defendant saw Byron Delcid in the hallway. Delcid was in the apartment building to visit his brother-in-law. Defendant pointed the gun at Delcid’s stomach, asked him if he was a TMC gang member, and instructed him to lift up his shirt. Delcid lifted his shirt, showed defendant that he had no tattoos, and indicated he was not a TMC gang member. He was afraid defendant might enter the apartment and harm Delcid’s family.

Delcid’s sister-in-law opened the apartment door. Defendant told Delcid to enter the apartment and close the door. He followed defendant’s instruction.

. . . Discussion

. . . In order to establish a kidnapping under section 207, subdivision (a), the prosecution must prove “‘(1) a person was unlawfully moved by the use of physical force or fear;

(2) the movement was without the person’s consent; and (3) the movement of the person was for a substantial distance.’”

In determining whether the third element, asportation, has been satisfied, a trier of fact may consider “not only the actual distance the victim is moved, but also 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.”

Defendant contends the trial court erred by denying his section 1118.1 motion because there was insufficient evidence of asportation. In order to find merit to this claim, we would have to conclude that no rational trier of fact could have decided this element was satisfied after the prosecution’s case-in-chief. Based on the record, we are not inclined to reach such a conclusion and, therefore, reject defendant’s claim.

A rational trier of fact could have concluded defendant was on a mission to locate and shoot a TMC gang member and, in an effort to do so, he pointed a gun at Luna, and followed him to the apartment to search for TMC gang members. Luna testified he did not want defendant to enter his apartment but was “scared” and “just following [defendant’s] directions.” A rational trier of fact could have concluded that Luna was involuntarily moved 15 feet to the inside of his apartment in order to allow defendant to facilitate his search for TMC gang members.

The movement of Luna increased his risk of harm in that he was moved from a public area to the seclusion of his apartment.

Similarly, by scaring Luna into moving away from a public place, it was less likely defendant would have been detected if he had committed an additional crime. These factors support the asportation requirement for kidnapping. (See People v. Shadden (2001) [movement of nine feet to the back of a store meets asportation requirement of kidnapping]; People v. Smith (1995) [movement of victim from driveway “open to street view” to camper increased risk of harm to victim].)

. . . We recognize Luna was equivocal in his testimony.

However, his fear caused him to be a very reluctant witness. It is true that a rationale trier of fact could have concluded Luna simply walked away from defendant and defendant followed Luna to his apartment for a friendly chat. But, a reviewing court is not permitted to reverse a conviction on the ground of insufficient evidence simply because the facts could be reconciled with a finding of innocence, or of guilt of a lesser crime. Rather, we must construe the facts in the light most favorable to the prosecution. After doing so, we hold the trial court did not err in denying defendant’s motion for judgment of acquittal.

Questions:-

1. Identify all of the elements of kidnapping required under the California statute.
2. Explain the element of asportation and what factors are used to determine if it is satisfied.
3. Should the fact that defendant acted “for the benefit of a criminal street gang” impact his sentence? Why or why not?