Provide your opinion as to whether you agree with the majority opinion or the dissent in the case of People v. Allen. Most importantly, articulate why and how you have arrived at your opinion in this matter. Be sure to use legal arguments to support your position

424 CHAPTER 10 . CRIMES AGAINST PERSONS II (continued) The jury instruction given regarding the simple kidnapping count was CALJIC No. 9.52, which sets HISTORY forth the elements of kidnapping of a person under Tyrone Allen was convicted in the Superior Court, 14 years of age as follows: City and County of San Francisco, of the kidnapping Every person who unlawfully and with physi- of a person under the age of 14. He appealed. The cal force or by any other means of instilling Court of Appeal affirmed. fear moves any other person under 14 years of RUVOLO, J. age without her consent for a substantial dis- tance, that is, a distance more than slight or FACTS trivial, is guilty of the crime of kidnapping.... On August 7, 1995, May Sun Young and her fam- (Pen. Code, S 208, subd. (b); all further statu- ily lived at 2951 Treat Street in San Francisco. That tory references are to the Penal Code unless morning, Ms. Sun Young was on her way to take her otherwise indicated.) seven-year-old daughter, Kirstie, to summer camp and stopped her automobile briefly in the driveway OPINION to close her garage door manually as she was back- The only element of the crime for which Allen asserts ing out onto the street. there was insufficient evidence and inadequate jury As Ms. Sun Young closed her garage door, a man instructions is asportation. For "simple" kidnapping, approached her from behind and said, "Excuse me, that is, a kidnapping not elevated to a statutory form can you do me a favor?" While turning around she of "aggravated" kidnapping, the movement needed saw Tyrone Allen getting into her vehicle, whose must be "substantial," or a distance that is more than engine was still running. He then locked the car "trivial, slight, or insignificant." doors. Kirstie was still in the vehicle with her seatbelt Allen argues that his conviction for simple big on and began crying. Because the driver's side win- napping must be reversed because the minimum dow was rolled down about seven inches, Ms. SunY- distance requirement for asportation is not met. He oung put her arms through the window and struggled asserts the movement of Ms. Sun Young's vehicle with Allen in an attempt to reach the ignition key and 30-50 feet down her driveway and across Treat turn off the engine. Street with Kirstie inside as a matter of law cannot Allen then released the parking brake, put the "substantial," or a distance that is more than "trivia, vehicle in reverse, and backed out of the driveway slight, or insignificant." with Kirstie inside and Ms. Sun Young running along Allen is correct that under most cases decided side the vehicle still attempting to reach the ignition pre-1981 which have examined only the actual dis- key. The vehicle backed across Treat Street, which was tance involved, the movement here would not meet a two-lane road with two parking lanes, until it hit the the legal test of substantiality. Those cases which opposite curb and came to a stop. Allen estimated the have considered the quality and character of the vehicle movement was 30 to 40 feet. While Allen now movement in addition to its absolute distance have claims this estimate to be "speculation," both sides at weighed the purpose for the movement, whether it different times suggested that the distance moved was posed an increased risk of harm to the victim, and the approximately five car lengths, or 50 feet context of the environment in which the movement Allen exited the vehicle, threw the car keys onto occurred. the ground, shoved Ms. Sun Young against a fence, Purposes for movement found to be relevant and ran down the street carrying her purse, which have been those undertaken to facilitate the commis- had been left in the vehicle. Shortly thereafter, a neighbor on Treat Street several blocks away saw a sion of a further crime, to aid in flight, or to prevent man run by. In response to the neighbor's attempts to detection. We believe these factors are appropriate considerations. stop the man, the fleeing suspect stated, "Stay back, I got a gun." After a brief struggle, the man ran off "Substantiality" implies something more than but was later apprehended by San Francisco police only measured distance. While "slight" is consistent officers and identified as Allen. with a quantitative analysis, the term "trivial" is a qualitative term suggestive of the conclusion thatPERSONAL RESTRAINT CRIMES 425 more is envisioned in determining whether a kidnap- case was moved, was held insufficient. The shortest ping occurs than simply how far the victim is moved. distance this court has ever held to be "substantial" The legal requirement for asportation is satisfied by for this purpose was a full city block. a finding of either. I agree that by moving the child in the vehicle In so holding, we conclude that while in abso- across the street Allen committed a crime other than lute footage the distance moved here may have been carjacking and the various other offenses of which he empirically short, it was of a character sufficient to was properly convicted; that crime was not kidnap- justify a finding of "substantiality" by the jury. The ping, however, but false imprisonment (Pen. Code, movement, in part, was plainly made to prevent Ms. S 236), which does not require any movement. Sun Young from regaining possession of her vehicle Because the asportation in this case was trivial and to facilitate Allen's flight from the area with within the meaning of the applicable case law, I would Kirstie. In addition to evasion of capture, the vehicle reverse the judgment of conviction of simple kidnap- was moved from a position of relative safety onto a ping for lack of evidentiary support. I agree that in thoroughfare. The boundary crossed was significant all other respects the judgment should be affirmed. because it placed Kirstie at greater risk of injury. We confirm these factors, coupled with the dis- tance traveled, are sufficient to satisfy the "substan- QUESTIONS tial movement" requirement for the crime of simple kidnapping.... 1 . What test did the court establish to determine Affirmed. how far defendants have to move victims to sat- isfy the asportation element of kidnapping actus DISSENT reus? 2. KLINE, J. What reasons does the majority give to support its definition of "asportation"? Movement as short a distance as that shown here-30 3. How does the dissent's definition of "asporta- to 40 feet-has never been held to satisfy the asporta- tion" differ from that of the majority's? tion requirement of kidnapping. Indeed, considerably 4. What reasons does the dissent give for its greater distances have often been held insufficient. definition? As the majority opinion points out, movement of 90 5 . Do you agree with the majority or the dissent's feet, nearly three times the distance the victim in this definition of "asportation"? Defend your answer. KIDNAPPING MENS REA Kidnapping mens rea means the specific intent to confine, significantly restrain, or hold kidnapping mens rea victims in secret. The Wisconsin statute, for example, defines a "kidnapper" as one the mental element of who "seizes or confines another without his consent and with intent to cause him to kidnapping requiring the be secretly confined." Whatever the exact wording of the statutes, the heart of the kid- specific intent to confine, napping mental attitude remains to "isolate the victim from the prospect of release or hold victims in secret significantly restrain, or friendly intervention" (Wisconsin Criminal Code 2006, $ 940.31). GRADING KIDNAPPING SERIOUSNESS Kidnapping is usually divided into two degrees: simple and aggravated. The most com- mon aggravating circumstances include kidnapping for the purpose of: . Sexual inv aini ge