FILED 7/30/98

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR

THE PEOPLE,
Plaintiff and Respondent,

v.

GUILLERMO RODRIGUEZ,
Defendant and Appellant.

A077543

(San Francisco County
Super. Ct. No. 161951)

Guillermo Rodriguez (appellant) was convicted by a jury of aggravated sexual assault upon a child (Pen. Code1, ß 269, subd. (a)(4)). The jury also found true the enhancement that appellant kidnapped the victim for the purpose of committing the sexual offense (ß 667.8, subd. (b)). On appeal, he contends that the trial court violated his Sixth Amendment right to a jury trial by discharging the sole holdout juror for a not guilty verdict. He also contends that the trial court committed error in failing to instruct the jury that it could consider evidence of appellantís intoxication as a defense to the section 667.8 kidnapping enhancement and that there is insufficient evidence to support the kidnapping enhancement. We reverse, concluding that appellantís Sixth Amendment right to a unanimous jury was violated and that the trial court committed instructional error.

FACTS

On July 1, 1995, Alfonso C., a seven year old boy, went with his father, brother and sister to watch a soccer game at Crocker-Amazon Park in San Francisco. During the game, Alfonso walked alone to the bathroom. On the way, he encountered appellant. Appellant asked Alfonso if he wanted a dollar. Alfonso replied, "no" and kept walking towards the bathroom. Appellant followed him. When Alfonso was within four and one-half and five feet from the bathroom door, appellant grabbed both of Alfonsoís hands and pulled him into the bathroom. Appellant pulled Alfonso into one of the bathroom stalls and locked the door. Alfonso was crying. No one was in the bathroom at the time.

In the bathroom stall, appellant pulled Alfonsoís pants down. He picked Alfonso up and placed him on top of the toilet and orally copulated him. He then placed Alfonso back on the floor. Appellant unzipped his pants and placed Alfonsoís hand on his erect penis. Appellant shook Alfonsoís hand after he placed it on his penis. Alfonso was still crying. He then heard some other men talking in the bathroom. The men started to kick the stall door. Appellant unlocked the stall door. Alfonso ran out of the bathroom, screaming, "help". Appellant pulled his pants back up and also ran out of the bathroom.

Angel Montes was one of the men that was in the bathroom. Montes, Carlos Jacob and two of their friends stopped at the bathroom before leaving the playground. They entered the bathroom and talked about the soccer game. Montes then heard a little boyís voice but could not see him. Montesí friend, Sergio, looked over the top of the adjoining bathroom stall and told Montes that a man was in the stall with a little boy. Jacob then pushed open the stall door. Montes and Jacob saw Alfonso against the stall door while appellant was facing him. Appellant was pulling his pants up. Jacob asked Alfonso if appellant was his father. Alfonso said "no" and ran out of the bathroom. Appellant then ran out of the bathroom, pushing Jacob to the floor. Jacob told Sergio to follow appellant.

Alfonso ran to his father. Montes followed him. Montes told Alfonsoís father that something had happened to his son and to follow him back to the bathroom. As they walked towards the bathroom, Alfonso told Montes that "the man want[ed] him to put his thing in his mouth." When they reached the bathroom and found that no one was inside, Montes called the police. Montes then walked to the parking lot area where he saw appellant surrounded by several people.

Police Officer Robert Kaprosch responded to the scene. Appellant was surrounded by 20 to 25 people and had an abrasion on his forehead. Kaprosch saw Alfonso, who was crying, repeatedly point at appellant. The police took Alfonso to San Francisco General Hospital.

Dr. David Bell examined Alfonso. Bell took a swab of Alfonsoís penis to test it for saliva. Criminalist Ralph Whitten tested the swab for saliva and found a small amount.

In defense, appellant testified that on the morning of July 1, 1995, he went to the park to watch soccer games. He started to drink beer at about 10 a.m. and consumed about 18 beers that day. He testified that he did not remember seeing Alfonso that day nor did he remember any of the incidents in the bathroom. He did, however, remember being arrested by the police. He had never been arrested prior to that day.

DISCUSSION

I.

Discharge of Juror No. 22

Pursuant to section 1089, the trial court may, upon good cause, discharge a juror and replace him with an alternate juror, "[i]f at any time, whether before or after the final submission of the case to the jury, a juror . . . is found to be unable to perform his duty . . . ." (See also Code Civ. Proc., ß 233.) "Ď[T]he trial court has at most a limited discretion to determine that the facts show an inability to perform the functions of a juror, and that inability must appear in the record as a demonstrable reality.í" (People v. Collins (1976) 17 Cal.3d 687, 696; quoting People v. Compton (1971) 6 Cal.3d 55, 60, fn. omitted.) On appeal, the courtís finding that there was good cause to discharge a juror will be upheld if substantial evidence supports it. (People v. Johnson (1993) 6 Cal.4th 1, 21.)

Here, on the fourth day of deliberations, the foreperson of the jury sent a note to the court stating, "[o]ne of our Jurors wishes to quit." Juror No. 2 then sent the following note to the court: "I canít possibly make a decision on whether defendant is guilty or not. [∂] The instructions itself [sic] seem impossible to understand taken as a whole. [∂]  I ask to be excluded in this jury." The jury foreman also sent a note asking to speak to the court about "how to make a [decision] if there is doubt whether or not the defendant is guilty. The law instructions are somewhat very confusing." Finally, the court received a note signed by Jurors Nos. 1, 7, and 11, stating, "I can not continue [deliberating] with a juror that can not follow the law and [instructions] given by the Judge. This is not fair to anyone involved. The juror has stated to us that [Juror No. 2] can not follow the laws or instructions as given to come to a conclusion."

After receiving these notes, the court spoke to Juror No. 2 in chambers. The following colloquy occurred:

"[THE COURT]: Donít tell me any votes on Count 1, any of the vote numbers, okay. Donít tell me any vote numbers right now. I donít want to know the results of the vote numbers at this point. Okay. [∂]  I just want you to tell me what you mean in your note and why you want to be excluded.

"[JUROR NO. 2]: Well, I -- I donít know how to say without telling about the votes.

"[THE COURT]: Tell me generally, if you can.

"[JUROR NO. 2]: I donít know if I can. I mean --

"[THE COURT]: Let me ask you some questions. Maybe I can help you. [∂]  Obviously, you have taken many votes, I would assume. You have been here for four days, practically --

"[JUROR NO. 2]: The group --

"[THE COURT]: You can tell me how many votes you have taken. How many votes has the group taken?

"[JUROR NO. 2]: How many times we have voted?

"[THE COURT]: Yes.

"[JUROR NO. 2]: Three.

"[THE COURT]: Three times. Okay. [∂] Now, is the reason that you feel that you canít work with this jury because you donít agree with them, or is it because you donít understand the process or is it because you donít wish to deliberate any longer? [∂] There is no right answer, I want to assure you of that. I just need to know --

"[JUROR NO. 2]: I deliberated. But I feel there is a possibility that the deliberation is not accurate because the instructions are confusing and because I am taking into account some holes in the evidence, some things that donít match. [∂] Hum, I suppose other jurors have put aside the holes or the things that donít match and they have voted otherwise. In my case, I canít.

"[THE COURT]: So are you --

"[JUROR NO. 2]: Itís either one or zero. [∂] But I cannot say, okay, itís probably this. I have to be completely sure.

"[THE COURT]: Are you saying then that you think that there is insufficient evidence for you to vote guilty or not guilty? [∂]  Is the evidence insufficient for to you make a vote?

"[JUROR NO. 2]: The vote -- the evidence is insufficient to prove him guilty.

"[THE COURT]: In your mind.

"[JUROR NO. 2]: In my mind. That leaves you the other choice, which is not guilty."

The court also met with the jury foreperson. After confirming with her that the jury had taken three votes on count 1, the court asked her if they only reached count one. The foreperson confirmed that they had worked only on count one and explained that "[t]here was the concern we had because [Juror No. 2] came into the jury room and [Juror No. 2] came in very confused. And since the very beginning since it [sic] was started deliberating [Juror No. 2] was somewhat not sure whether [Juror No. 2] wanted to be there or not, yet [Juror No. 2] felt that . . . by not obeying the law, not obeying your rules, [Juror No. 2] would be in trouble. [∂]  So [Juror No. 2] decided to proceed with it. And [Juror No. 2] would say, Ďbut in the police report of this -- or "I need this [sic] things", that were irrelevant to the case. [∂] [Juror No. 2] wanted records of those things because [Juror No. 2] truly believes the child is lying. Since the very beginning [Juror No. 2] believes that the child -- [Juror No. 2] donít give credibility to the child, regardless. Thatís why we [sic] taking so long, because of [Juror No. 2].í" The foreperson told the court that Juror No. 2 was deliberating and that Juror No. 2 had voted the same way three times. The court then asked "Do you get the sense that [Juror No. 2] disagrees with the rest of the group or that [Juror No. 2ís] not cooperating?" The foreperson responded, "No, [Juror No. 2] is cooperating but [Juror No. 2] definitely believes the child is lying."

As the colloquy between the court and both Juror No. 2 and the foreperson demonstrates, Juror No. 2 was a holdout juror who had voted to acquit appellant. Although the trial court initially concluded that the jury was involved in a "classic disagreement", after hearing argument from the deputy district attorney, the court, over the objection of defense counsel, decided to question the three jurors who wrote the note complaining about Juror No. 2. This belated inquiry, however, impermissibly intruded into the thought processes of the jurors. (See U.S. v. Thomas (2d Cir. 1997) 116 F.3d 606, 619.)

As the courtís in camera interview with Juror No. 1 illustrates, the courtís questioning resulted in an inquiry into the substance of the juryís deliberations and the thought processes of the individual jurors: "[THE COURT]: . . . Are you in your statement here that [Juror No. 2] has stated that [Juror No. 2] could not follow the law or instructions as given to come to a conclusion? [∂] Is [it] that [Juror No. 2] would not follow the law as I gave it or that [Juror No. 2] did not agree with the rest of the group? [∂] [JUROR NO. 1]: [Juror No. 2] said [Juror No. 2] could not follow the law the way they [sic] were [sic] or the instructions that were laid out because [Juror No. 2] had all kind of other thoughts and maybe [Juror No. 2] was not as clear as [Juror No. 2] should be on what they were. [∂] So we spent hours and hours and hours to clear up any types of misunderstanding, et cetera, examples. We did everything to make sure that [Juror No. 2] felt comfortable and [Juror No. 2] understood. And other people had their own stuff come up as well when we were doing it. [∂] And then [Juror No. 2] states after all of this, and at the end, after we voted, we havenít even discussed it, that [Juror No. 2] was frustrated because [Juror No. 2] couldnít -- . . . couldnít come to conclusion one way or the other. So [Juror No. 2] had to vote not guilty. We didnít even know this -- [∂] [THE COURT]: Okay. [∂] [JUROR NO. 1]: -- When the ballots were read. And so at that point I became frustrated simply because thatís a different agenda than what we are here to do. I canít go on and do a just -- do any justice to either side knowing that somebody is sitting there and they [sic] really donít understand. [∂]  [THE COURT]: Was it -- Did you have a feeling that [Juror No. 2] didnít understand or that . . . -- there wasnít enough evidence for [Juror No. 2] to make a decision? [∂] [JUROR NO. 1]: No. I think it was that [Juror No. 2] didnít understand and that [Juror No. 2] has some cultural crossing there thatís holding everything in place. . . . And so the lack of understanding is coming basically from that too. [∂] And so I could show [Juror No. 2] that the sky is blue at this point but if from [Juror No. 2ís] viewpoint if thatís how [Juror No. 2] feels that itís green, thatís what [Juror No. 2] is going to say. [∂]  You understand what Iím saying. [∂] The evidence is clear and precise now and itís laid out. And [Juror No. 2] looks at it like nobody else looks at it. We just said no, we have to do the second part, thatís what the instructions are, A to B. Nobody had an opinion or anything." The court asked Juror No. 1 several additional questions including whether Juror No. 2 voted; whether [Juror No. 2] deliberated and if [Juror No. 2] disagreed with Juror No. 1 on the facts. Juror No. 1 answered each question affirmatively.

Similarly, in questioning Juror No. 7, the court further elicited information concerning the substance of the juryís deliberations. For example, the court specifically asked Juror No. 7 what Juror No. 2 had said when they started deliberations. Juror No. 7 said, ". . . That [Juror No. 2] expressed that . . . there wasnít enough . . . in the case to produce either type of decision. So [Juror No. 2] didnít know what to do. And we canít tell [Juror No. 2] what to do because we all have to make a decision, you know, based on our own beliefs. [∂] And . . . I didnít know what to assume, I guess, but not knowing what [Juror No. 2ís] verdict is, however, but we went through deliberation. I mean, I donít know if you been in the jury room but itís -- we got stuff everywhere. We have gone over this back and forth and back and forth and gone over the facts, and determining the facts from, you know, circumstantial to direct evidence to physical evidence to everything. [∂] And having served on a criminal case before, I donít think -- you know, I have prior experience so I understand what this can be like. [∂] But for [Juror No. 2], I feel like itís very strenuous. [Juror No. 2] doesnít understand a lot and itís making it difficult for the rest of us because we know that we are supposed to uphold the law. We can follow the instructions and go by those instructions. [∂] We keep stating them over and over again and explaining them and asking if there is [sic] any questions . . . ." The court then attempted to find out from Juror No. 7 whether Juror No. 2 simply disagreed about the facts. Juror No. 7 replied, "[Juror No. 2] even specifically stated that [Juror No. 2] didnít disagree with the facts or anything else, just that [Juror No. 2] did not -- what exactly were [Juror No. 2ís] words? ĎI donít know one way or the otherí. . . . ĎIf heís guilty or not guilty, or if heís lying or not lying, or if the boy is lying or not lying because I donít have enough evidence.í [∂] We are like, but unfortunately you have to go by the evidence thatís presented and you have to determine from those facts because we donít have any other evidence to go by, do we? I mean, you canít presume evidence outside of what was presented in the courtroom; is that correct?" The court asked Juror No. 7 if Juror No. 2 voted. Juror No. 7 acknowledged that Juror No. 2 voted and volunteered that Juror No. 2 said "ĎI couldnít put guilty. I couldnít put not guilty because I donít know because I donít think there is enough evidence.í"

Finally, the courtís interview of Juror No. 11, further impinged on the secrecy of the juryís deliberations. The court, in questioning Juror No. 11 asked if [Juror No. 11] could provide an example of how Juror No. 2 was not following the courtís instructions. Juror No. 11 stated, ". . . On Monday, [Juror No. 2] said that [Juror No. 2] cannot believe any witnesses[í] testimony because any of them could be lying. Itís possible that either of them can be lying. [∂] And on Tuesday when we tried to explain to [Juror No. 2] that [Juror No. 2] canít dismiss somebodyís testimony without some sort of evidence to support that, and whether they were lying or dismiss part of it, [Juror No. 2] needs some evidence to support why [Juror No. 2] is dismissing them. [∂] And we talked about it all day Tuesday, Wednesday and I thought [Juror No. 2] had understood this . . . . [∂] And today, before we took our vote, we discussed it again and I asked everybody in the room if they had a problem with that, and if -- if they thought there was any reason that they could dismiss the childís testimony and nobody said anything, nobody said that they could dismiss his testimony."

As these excerpts of the courtís interviews indicate, the trial courtís questioning of the jurors was a severe intrusion on the secrecy of the juryís deliberations.3 "[I]t is the courtís duty to make whatever inquiry is reasonably necessary to determine if the juror should be discharged . . . .í" (People v. Burgener (1986) 41 Cal.3d 505, 518.) The courtís inquiry here, however, went beyond that necessary to determine whether there was good cause to discharge Juror No. 2. The Second Circuit in U.S. v. Thomas, supra, 116 F.3d at pp. 620-621 discussed the need for limiting an inquiry into alleged juror misconduct during deliberations. The Thomas court distinguished between cases in which good cause to dismiss a juror is apparent upon a cursory inquiry such as a jurorís unavailability due to religious or business obligations, incapacitation or bias (People v. Burgener, supra, at pp. 520-521 [intoxication during jury deliberations]) and those cases, like the case here where an inquiry may delve into the jurorís thought processes. (U.S. v. Thomas, supra, 116 F.3d at p. 620.) In the former cases, "the presiding judge can make appropriate findings and establish whether a juror is biased or otherwise unable to serve without delving into the reasons underlying the jurorís views on the merits of the case. Rather, an event or relationship itself becomes the subject of investigation, with the trial court considering the likelihood that it will prejudice or otherwise disable the juror or jurors in question." (Id. at p. 621.)

In contrast, in the latter cases as well as here, where the court has received a report that a juror is defying the courtís instructions on the law, the court "may well have no means of investigating the allegation without unduly breaching the secrecy of deliberations. . . . [T]o determine whether a juror is bent on defiant disregard of the applicable law, the court would generally need to intrude into the jurorís thought processes. Such an investigation must be subject to strict limitations. Without such an inquiry, however, the court will have little evidence with which to make the often difficult distinction between the juror who favors acquittal because he is purposefully disregarding the courtís instructions on the law, and the juror who is simply unpersuaded by the Governmentís evidence. Yet this distinction is a critical one, for to remove a juror because he is unpersuaded by the Governmentís case is to deny the defendant his right to a unanimous verdict." (U.S. v. Thomas, supra, 116 F.3d at p. 621.) Thus, the Thomas court concluded that if the investigation discloses "any possibility" that the complaint about a jurorís conduct "stems from the jurorís view of the sufficiency of the governmentís evidence, the court must deny the request" to dismiss the juror. (Id. at pp. 621-622.)

Here, the courtís investigation into Juror No. 2ís reasons to be discharged from the jury was unnecessarily intrusive. Moreover, because the courtís inquiry of Juror No. 2 disclosed that [Juror No. 2] had doubts about the sufficiency of the evidence and in fact had voted to acquit appellant, we conclude that the courtís discharge of Juror No. 2 violated appellantís right to a unanimous jury verdict.

The Sixth Amendment of the Constitution guarantees a defendant in a criminal trial the right to a unanimous verdict. (Apodaca v. Oregon (1972) 406 U.S. 404. In U.S. v. Brown (D.C. Cir. 1987) 823 F.2d 591, 596, the court held that that right is violated when the court dismisses a juror during deliberations and the record discloses the possibility that the juror asked to be discharged because he had doubts about the sufficiency of the governmentís evidence. There, the evidence before the court that the juror had some doubts about the sufficiency of the evidence was far less clear than that present here.

In U.S. v. Brown, supra, 823 F.2d at p. 594, after the jury had deliberated for five weeks, a juror sent a note to the court that he was not able to discharge his duties as a juror. The juror explained to the court that he had difficulty with "the way the R.I.C.O. conspiracy act reads. . . . " (Ibid.) After further questioning by the court, it became clear that the juror might also have difficulty with the evidence presented at the trial. The juror stated, "Itís the way its written and the way the evidence has been presented." (Ibid.) He further explained, "[i]f the evidence was presented in a fashion in which the law is written, then, maybe, I would be able to discharge my duties. . . ." (Brown, supra, at p. 594.) The district court discharged the juror finding "just cause" under Federal Rule of Criminal Procedure 23(b).4 The court of appeals reversed, concluding that there was a substantial possibility that the juror requested to be discharged because he had doubts about the sufficiency of the evidence. "Given the possibility--that Spriggsí desire to quit deliberations stemmed from his belief that the evidence was inadequate to support a conviction, we must find that his dismissal violated the appellantsí right to a unanimous jury verdict." (Brown, supra, at p. 597.)

The Brown courtís opinion was followed by the Second Circuit in U.S. v. Thomas, supra, 116 F.3d 606. There, during the course of deliberations, a member of the jury sent the court a note stating that the jury was unable to reach a verdict because "Juror no. 5" had a "Ďpredisposed disposition.í" (Id. at p. 611.) The court removed Juror No. 5 after an investigation in which all jurors were interviewed. (Ibid.) During his interview, Juror No. 5 disclosed that "he needed Ďsubstantive evidenceí establishing guilty Ďbeyond a reasonable doubtí in order to convict." (Id. at p. 611.) The court cited a number of reasons for the discharge including the jurorís defiance of the courtís instructions. (Id. at pp. 612-613.) The court of appeals determined that the district court erred in dismissing Juror No. 5, concluding that "we cannot say that it is beyond doubt that Juror No. 5ís position during deliberations was the result of his defiant unwillingness to apply the law, as opposed to his reservations about the sufficiency of the Governmentís case against the defendants." (Brown, supra, 823 F.2d at p. 624.) Foreshadowing the present case, the court noted a hypothetical where "a strong majority of the jury favors conviction, but a small set of jurors--perhaps just one--disagrees. The group of jurors favoring conviction may well come to view the Ďholdoutí or Ďholdoutsí not only as unreasonable, but as unwilling to follow the courtís instructions on the law. The evidentiary standard that we endorse today--that Ďif the record evidence discloses any possibility thatí a complaint about a jurorís conduct Ďstems from the jurorís view of the sufficiency of the governmentís evidence, the court must deny the requestí--serves to protect these holdouts from fellow jurors who have come to the conclusion that the holdouts are acting lawlessly." (U.S. v. Thomas, supra, 116 F.3d at p. 622.)

Here, the evidence is quite clear that Juror No. 2 was a holdout juror and that [Juror No. 2] questioned the sufficiency of the evidence to convict appellant. Indeed, as the trial courtís interviews with the jurors disclosed, the jury had already voted on count 1, with Juror No. 2 voting to acquit, and was prepared to move on to count 2. Given these circumstances, the trial court erred in discharging Juror No. 2. "While . . . a defendant is not entitled to be tried by a jury composed of any particular individuals, but only by a jury composed of qualified and impartial jurors, this does not mean that either side is entitled to have removed from the panel any qualified and acting juror who, by some act or remark made during the trial, has given the impression that he favors one side or the other. It is obvious that it would be error to discharge a juror for such a reason, and that, if the record shows (as it does here), that, based on the evidence, that juror was inclined toward one side, the error in removing such a juror would be prejudicial to that side. If it were not, the court could Ďloadí the jury one way or the other." (People v. Hamilton (1963) 60 Cal.2d 105, 128 disapproved on other grounds in People v. Daniels (1991) 52 Cal.3d 815, 864.) The violation of appellantís Sixth Amendment right to a unanimous jury requires reversal. (Ibid., see, also Perez v. Marshall (9th Cir. 1997) 119 F.3d 1422, 1426-1428; U.S. v. Brown, supra, 823 F.3d at p. 597.)

II.

A. Sufficiency of the evidence to support the kidnapping enhancement

Appellant contends that there is insufficient evidence to support the kidnapping enhancement under section 667.8, subdivision (b) because the victim was moved only four to five feet. Section 667.8, subdivision (b) provides for a sentencing enhancement of 15 years for any person convicted of kidnapping a victim, under the age of 14, in violation of section 207 for the purpose of committing certain sexual offenses. To constitute kidnapping under section 207, the movement of the victim must be more than slight, trivial or insignificant, it must be substantial in character. (People v. Caudillo (1978) 21 Cal.3d 562, 572, overruled on other grounds in People v. Escobar (1992) 3 Cal.4th 740, 749-751 [movement of rape victim for an unspecified distance from the elevator to the storage room and from the storage room to her apartment was not substantial movement within the meaning of section 207]; People v. Stanworth (1974) 11 Cal.3d 588, 601 [movement of 1/4 mile sufficient to support kidnapping conviction].)

"In enacting section 207, the Legislature did not provide a definition of kidnapping that involves movements of an exact distance; rather, it defined it in minimum terms as forcible movements Ďinto another part of the same county.í (ß 207.) Indeed, Ďto define the phrase, "another part of the same county," in terms of a specific number of inches or feet or miles would be open to a charge of arbitrariness. . . . [∂] . . . The statutory language implies the determining factor in the crime of kidnapping is the actual distance of the victimís movements; and further, that the minimum movements necessary for the commission of the crime are present where the victim is forcibly taken Ďinto another part of the same county.í" (Italics added.) (People v. Stanworth, supra, 11 Cal.3d at pp. 600-601.)

Whether factors other than the actual distance can be considered in determining if there is sufficient evidence of asportation present to establish a kidnapping is a question currently pending before the California Supreme Court. (See People v. Martinez (1997) 56 Cal.App.4th 1268 review granted October 22, 1997 (S064345); People v. Allen (1997) 55 Cal.App.4th 943 review granted September 17, 1997 (S062860).) In People v. Rayford (1994) 9 Cal.4th 1, 14, the California Supreme Court noted that the asportation requirement of simple kidnapping is less stringent than that for aggravated kidnapping but "less clear." "We have stated that certain factors other than the actual distance a victim is moved are not to be considered. (People v. Caudillo, supra, 21 Cal.3d at p. 574.) However, we have resisted setting a specific number of feet as the required minimum distance, and have further required that the movement must be Ďsubstantial in character,í while offering little guidance as to what that term means. [Citations.]" (People v. Rayford, supra, at p. 14.) The Rayford court further noted that several courts of appeal have reviewed the sufficiency of the evidence for simple kidnapping on bases arguably inconsistent with People v. Caudillo, supra, 21 Cal.3d at p. 562. For example, in People v. Daly (1992) 8 Cal.App.4th 47, 57, the court considered the increase in the risk of harm to the victim caused by the movement in reviewing the evidence. And, in People v. Williams (1990) 220 Cal.App.3d 1165, the court concluded that a victimís movement for more than a city block was not "slight or trivial" because the roadway was a major street and it was late at night, noting that "it is apparent that consideration may be given to the locations and boundaries traversed." (Id. at p. 1171.) The Rayford court also cited People v. Sheldon (1989) 48 Cal.3d 935, 952-953 as "one of our own cases [that] has implicitly examined the character of the movement as well as the actual distance in determining whether there was sufficient evidence of asportation for simple kidnapping. Finally, the Rayford court recognized that "Caudilloís narrow approach might be subject to the criticism that it fails to appreciate that a primary reason forcible asportation is proscribed by the kidnapping statutes is the increase in the risk of harm to the victim that arises from the asportation." (Rayford, supra, 9 Cal.4th at p. 22.) The court, while declining to address the Caudillo issue noted that factors such as "Ďthe defendantís motivation to escape detection,í and Ďthe possible enhancement of danger to the victim resulting from the movementí" might be relevant in determining the sufficiency of the evidence to support the asportation requirement. (Ibid.)

As the Rayforth court acknowledged, several courts of appeal have considered factors other than distance in determining the sufficiency of the evidence of asportation. Indeed, in People v. Bradley (1993) 15 Cal.App.4th 1144, 1153, the court acknowledged that "distance, in, and of itself, is not the only factor probative of asportation. Consideration must be given to the change in surroundings between the point of capture and destination." The Bradley court held that the movement of a rape victim for 50 to 60 feet movement from a pay phone on the open street and forcibly around the building to an enclosed dumpster was "not a trivial or inconsequential movement, in light of the boundaries which were traversed over this distance and the unlit and secluded nature of the destination providing the necessary environment to commit the targeted crime without interruption or detection. . . . [T]he inherent danger from sexual attack in the secluded dumpster area was considerably more than in the public phone area." (Id. at p. 1154.)

Similarly, in People v. Smith (1995) 33 Cal.App.4th 1586, 1595, the court held that the movement of a rape victim 40 to 50 feet from a driveway that was open to street view, to the inside of a camper located behind the house was not merely incidental to the rape but necessary in order to perpetuate it.

In determining whether there is substantial evidence to support the kidnapping enhancement here, we must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence -- evidence that is credible and of solid value -- from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) As in Bradley and Smith, the evidence here demonstrates that appellant moved the victim from a place of relative safety on a public thoroughfare to the isolation of an area away from public view. Although the distance of the movement here was four to five feet to the outside door of the bathroom, appellant forcibly asported the victim an additional ten to twelve feet to the bathroom stall. The asportation to the stall afforded appellant the privacy to commit the oral copulation and provided the necessary environment to hinder interruption or detection. The danger to the victim in the bathroom stall was considerably more than on the road to the bathroom. Under these circumstances, there was substantial evidence to support the juryís finding that the victim was asported a substantial distance.

B. Sufficiency of the evidence to support aggravated sexual assault

Appellantís argument that his conviction must be reversed because there was no evidence presented during the prosecutionís case in chief of the age difference between him and the victim lacks merit. In order to support a conviction of section 269, subdivision (a), the People must show that appellant committed the aggravated assault "upon a child who is under 14 years of age and 10 or more years younger . . . ."

Contrary to appellantís reading of the record, there was substantial evidence in the record at the time the prosecution completed its case to show that appellant was an adult and at least 10 or more years older than the victim. The victim testified that he was seven years old at the time of the offense and that a "grown-up" committed the oral copulation. Officer Kaprosch testified that appellant was in his late forties or early fifties. In addition, both Montes and Jacob described appellant as a man. In sum, this evidence was sufficient for the trier of fact to find that appellant committed the offense.

III.

Finally, appellant contends that the trial court committed instructional error when it instructed the jury that it could not consider the evidence that appellant was intoxicated as a defense to the section 667.8 kidnapping enhancement.5 This contention has merit.

The section 667.8 kidnapping enhancement requires proof of specific intent to which voluntary intoxication is a defense. (People v. Hernandez (1988) 46 Cal.3d 194, 209-211.) On retrial, the jury should be instructed accordingly.

IV.

The judgment is reversed.

______________________

Hanlon, P.J.

 

 

We concur:

 

 

___________________

Poché, J.

 

 

___________________

McGuiness, J.

 

 

 

Trial Court:
Superior Court
San Francisco County

 

Trial Judge: Honorable Lee D. Baxter

 

Counsel for Appellant:
Clifford Gardner
Gardner & Derham

 

Counsel for Respondent:
Daniel E. Lungren
Attorney General
Aileen Bunney
Deputy Attorney General

 

FOOTNOTES

* Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts IIB and III.

1 Unless otherwise indicated, all statutory references are to the Penal Code.

2 The Attorney Generalís brief improperly identifies several of the jurors in this case. Pursuant to Code of Civil Procedure section 237 and California Rules of Court, rule 33.6, the names of the trial jurors were sealed. The Attorney General is advised to use the identifying numbers provided by the clerk of the court in preparing briefs on appeal. (See Cal. Rules of Court, rule 33.6.)

3 The trial courtís investigation also disclosed that Jurorís Nos. 1, 7 and 11 expressed frustration in continuing to deliberate with Juror No. 2. By discharging Juror No. 2, the trial court in essence acceded to the wishes of these jurors and impermissibly allowed them to exercise control over the composition of the jury. (People v. Roberts (1992) 2 Cal.4th 271, 325.)

4 Federal Rule of Criminal Procedure 23(b), like section 1089, authorizes the court to discharge a juror after deliberations have commenced "if . . . necessary" and "for just cause."

5 The court instructed the jury that "[u]under the law it is the general rule that no act committed by a person while in a state of voluntary intoxication is less criminal by reason of being in such condition. [∂] Thus, in the crimes of aggravated sexual assault of a child, and the attendant allegation in the crime of forcible oral copulation and kidnapping charged in count 1, the fact that the defendant was voluntarily intoxicated is not a defense and does not relieve defendant was voluntarily intoxicated is not a defense and does not relieve defendant of responsibility for the crime. . . ."

6 In light of our disposition, we need not reach the other issues advanced by appellant.