People v. Martinez , 20 Cal. 4th 225 ( 1999 )

Opinion

BROWN, J.

We granted review in this case to decide whether Penal Code¹ section 208, subdivision (b) (section 208(b)), which prescribes a higher sentence for kidnapping a person under the age of 14, is a separate crime or a punishment provision, and what the standard of asportation is for that statute. The Court of Appeal determined section 208(b) is a separate offense and applied a modified standard of asportation for aggravated kidnapping (see § 209, subd. (b)(1)).

Regardless whether section 208(b) is a punishment provision or a separate crime, we conclude it has the same asportation requirement as simple kidnapping, and articulate what factors are appropriate to making that determination. Because, as a result, we overrule People v. Caudillo (1978) 21 Cal.3d 562 [146 Cal.Rptr. 859, 580 P.2d 274] (Caudillo), we do not apply the holding retroactively to defendant. We further conclude the evidence was insufficient to support the verdict for simple kidnapping; however, it shows defendant is guilty of attempted kidnapping of a person under the age of 14. We therefore reverse the judgment of the Court of Appeal and modify the conviction accordingly.

I. Facts and Procedural Background

In 1993, defendant Samuel Martinez was convicted of lewd and lascivious ° conduct with a child under the age of 14 in violation of section 288. Although ordered not to live with minor children, in September 1994, he rented a room from a family in Reedley, California. The household included Victor, his wife, his 12-year-old son, Victor, Jr., his daughters, Ramona (15 years old at the time of the crime) and Janet (13 years old at the time of the crime), and his adult niece, Paula, and her 1-year-old daughter, Evelyn.

At some point prior to March 21, 1995, defendant made sexual overtures to Ramona. When Ramona’s mother confronted him, he asked forgiveness and said he was drunk.

In the middle of the night of March 21, 1995, defendant returned home inebriated and instigated a violent confrontation with the family. Eventually, those present locked themselves in the bathroom for protection. Defendant repeatedly tried to break in, pounding on the door, knocking one doorknob off, and shattering a window.

During the melee, Victor, Victor, Jr., and Ramona managed to escape to seek help. Paula, who was holding Evelyn, and Janet were still in the bathroom when defendant forced the door open. He held a knife in one hand and a hammer in the other, and blood dripped from both hands. He demanded to know where Ramona was and repeatedly said someone was going to pay for what they had done to him. He put the knife to Paula’s rib cage, and demanded that Janet take him to Ramona.

Still holding the knife, defendant placed his other hand on Janet’s shoulder, and led her out of the residence. After going through the next room, the kitchen, and defendant’s bedroom, and crossing a 15-foot porch, they proceeded across the backyard and parking area, which bordered on a 5-acre vacant lot. At this point, officers responding to the scene spotted defendant and Janet between 2 trees, approximately 40 to 50 feet from the back of the residence. After a brief pursuit, defendant was apprehended.

Defendant was charged with kidnapping (§ 207, subd. (a); section 207(a)), three counts of assault with a deadly weapon (§ 245, subd. (a)(1)), false imprisonment (§ 236), and making terrorist threats (§ 422), with personal use of a knife alleged as to the kidnapping, false imprisonment, and terrorist threat offenses. (§ 12022, subd. (b).) The kidnapping charge alleged the victim was under 14 years of age. (§ 208(b).)² Defendant was also charged with having suffered a prior serious felony conviction. (§§ 288, subd. (a), 667, subds. (a)(1), (b)-(i), 1192.7, subd. (c), 1170.12, subds. (a)-(e).)

The jury found defendant guilty on all counts except the charge of assault with a deadly weapon against Evelyn, for which a mistrial was declared. It also found true the weapon use enhancements and the allegation regarding Janet’s age. In a bifurcated trial, the court determined defendant had suffered a prior felony conviction. Defendant was sentenced to 33 years and 4 months in state prison.

The Court of Appeal concluded section 208(b) is a separate offense. In considering the appropriate asportation standard, it determined that “[i]f we apply the asportation test for simple kidnapping to these facts and treat [People v. Brown (1974) 11 Cal.3d 784 [114 Cal.Rptr. 426, 523 P.2d 226]] and [People v. Caudillo (1978) 21 Cal.3d 562 [146 Cal.Rptr. 859, 580 P.2d 274], disapproved of on other grounds in People v. Escobar (1992) 3 Cal.4th 740, 749-751 [12 Cal.Rptr.2d 586, 837 P.2d 1100],] as legally binding precedent, then we would have to find that inadequate evidence was presented at trial to show that [defendant] was guilty of simple kidnap in violation of section 207, subdivision (a).” “[Troubled” by this result, the court created a “modified version of the asportation standard for aggravated kidnap.” Because the jury had not been instructed according to this formulation, the court reversed and remanded for a new trial.

We granted the Attorney General’s petition for review, limited to the issues set forth above.

II. Discussion

A. Section 208(b) as a Separate Crime or a Punishment Provision

Section 208(b) provides for an increased sentencing range “[i]f the person kidnapped is under 14 years of age at the time of the commission of the crime . . . .” Because section 208(b) proscribes “kidnapping]” and not merely holding and detaining an individual, it must be construed to contain an asportation requirement. (People v. Rayford (1994) 9 Cal.4th 1, 11 [36 Cal.Rptr.2d 317, 884 P.2d 1369] (Rayford); cf. § 209, subd. (a); People v. Macinnes (1973) 30 Cal.App.3d 838, 844 [106 Cal.Rptr. 589].) Defendant asserts the statute is an enhancement for section 207(a).³ If so, it necessarily incorporates the asportation standard applicable to simple kidnapping. (See Rayford, supra, 9 Cal.4th at p. 8.) The Attorney General contends section 208(b) is a separate crime. If that is the case, we must determine whether the asportation standard is derived from simple kidnapping (§ 207(a)) or aggravated kidnapping (§ 209, subd. (b)(1)).⁴ (See Rayford, supra, 9 Cal.4th at p. 8.)

Aggravated kidnapping is for the purpose of robbery or certain sex offenses. (§ 209(b)(1); see People v. Stanworth (1974) 11 Cal.3d 588, 598 [114 Cal.Rptr. 250, 522 P.2d 1058]; see generally, Rayford, supra, 9 Cal.4th at p. 20; People v. Daniels, supra, 71 Cal.2d at p. 1139.) In contrast, culpability under section 208(b), as with simple kidnapping, arises independently of the commission or attempted commission of any other offense. (People v. Stanworth, supra, 11 Cal.3d at pp. 600-601; see In re Earley (1975) 14 Cal.3d 122, 128-129 & fn. 9 [120 Cal.Rptr. 881, 534 P.2d 721].) Since the Legislature cast this form of kidnapping in terms of the victim’s age rather than the perpetration of an underlying crime, we may infer an intent to incorporate the elements of section 207(a). Accordingly, regardless of whether section 208(b) is a separate crime or a punishment provision, the applicable standard for asportation is that required for simple kidnapping.

B. Asportation Standards⁵

With respect to asportation, aggravated kidnapping requires movement of the victim that is not merely incidental to the commission of the underlying crime and that increases the risk of harm to the victim over and above that necessarily present in the underlying crime itself. (§ 209(b)(2); see Rayford, supra, 9 Cal.4th at pp. 12, 22; People v. Daniels, supra, 71 Cal.2d at p. 1139.) “These two aspects are not mutually exclusive, but interrelated.” (Rayford, supra, 9 Cal.4th at p. 12.)

In determining “whether the movement is merely incidental to the [underlying] crime . . . the jury considers the ‘scope and nature’ of the movement. [Citation.] This includes the actual distance a victim is moved. However, we have observed that there is no minimum number of feet a defendant must move a victim in order to satisfy the first prong.” (Rayford, supra, 9 Cal.4th at p. 12; People v. Daniels, supra, 71 Cal.2d at p. 1128 [“to 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 second prong of the Daniels test refers to whether the movement subjects the victim to a substantial increase in risk of harm above and beyond that inherent in [the underlying crime]. [Citations.] This includes consideration of such factors as the decreased likelihood of detection, the danger inherent in a victim’s foreseeable attempts to escape, and the attacker’s enhanced opportunity to commit additional crimes. [Citations.] The fact that these dangers do not in fact materialize does not, of course, mean that the risk of harm was not increased. [Citations.]” (Rayford, supra, 9 Cal.4th at pp. 13-14, 22 [Evaluation of risk of harm includes “such factors as ‘the defendant’s motivation to escape detection,’ and ‘the possible enhancement of danger to the victim resulting from the movement.’ ”]; In re Earley, supra, 14 Cal.3d at p. 132.)

The asportation requirement for simple kidnapping has historically been less clear. In Stanworth, we distinguished the considerations delineated in People v. Daniels, supra, 71 Cal.2d 1119, as relevant only to aggravated kidnapping, which involves an underlying offense. (People v. Stanworth, supra, 11 Cal.3d at pp. 598-599, 601.) “[W]here only simple kidnaping is involved, it is clear that the victim’s movements cannot be evaluated in the light of a standard which makes reference to the commission of another crime.” {Id. at p. 600.) Instead, we inferred from the statutory language that the critical consideration was distance—a term we attempted to amplify by saying “the victim’s movements must be more than slight [citation] or ‘trivial’ [citation], they must be substantial in character to constitute kidnaping under section 207.” (Id. at p. 601.)

In Caudillo, supra, 21 Cal.3d at page 572, the court affirmed that the movement must be “ ‘substantial in character,’ ” but made the asportation standard exclusively dependent on the distance involved. The defendant had moved the rape victim for an “unspecified distance from the elevator to the storage room, and from the storage room to her apartment.” {Ibid.) In assessing whether this evidence was sufficient to establish asportation for simple kidnapping, the court estimated the distance from the record and compared it to the movements in several other kidnapping cases. (Id. at pp. 573-574.) Based entirely on this comparison of distances, the court found the evidence insufficient because “the factual situation most nearly resembles those encountered in [People v. Brown (1974) 11 Cal.3d 784 [114 Cal.Rptr. 426, 523 P.2d 226]] (a movement of approximately 75 feet), [People v. Thornton (1974) 11 Cal.3d 738 [114 Cal.Rptr. 467, 523 P.2d 267]] (a movement within the confines of a single room), and [Cotton v. Superior Court (1961) 56 Cal.2d 459 [15 Cal.Rptr. 65, 364 P.2d 241]] (a movement within various rooms of a house and an additional 15 feet outside), than those found in Stanworth (a movement of a quarter of a mile), and [People v. Stender (1975) 47 Cal.App.3d 413 [121 Cal.Rptr. 334]] (a movement of 200 feet).” (Id. at p. 574; see also People v. Green (1980) 27 Cal.3d 1, 67 [164 Cal.Rptr. 1, 609 P.2d 468] [for the reasons stated in People v. Brown (1974) 11 Cal.3d 784 [114 Cal.Rptr. 426, 523 P.2d 226], 90-foot movement “insufficient as a matter of law” to establish asportation], disapproved on other grounds in People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3 [226 CaLRptr. 112, 718 P.2d 99].)

Although purportedly no particular distance was controlling, distance nevertheless became the sole criterion for assessing asportation, with only “more than slight [citation] or ‘trivial’ [citation]” as guidance in assessing when movement was “substantial in character.” (People v. Stanworth, supra, 11 Cal.3d at p. 601.) The court expressly declined the People’s invitation “to introduce considerations—other than actual distance—as determinative of what constitutes ‘sufficient movement’ of the victim .... Neither the incidental nature of the movement, the defendant’s motivation to escape detection, nor the possible enhancement of danger to the victim resulting from the movement is a factor to be considered in the determination of substantiality of movement for the offense of [simple] kidnaping. Such factors would be relevant in a Daniels situation of aggravated kidnaping—a kidnaping for the purpose of robbery (Pen. Code, § 209)—but we held in Stanworth that the Daniels test was not applicable to simple kidnaping under Penal Code section 207.” (Caudillo, supra, 21 Cal.3d at p. 574, fn. omitted; see also Cotton v. Superior Court (1961) 56 Cal.2d 459, 464-465 [15 Cal.Rptr. 65, 364 P.2d 241].)

As more than one Court of Appeal has observed, decisions of this court provide scant assistance in determining simple kidnapping asportation: “The increasing complexity of the law marches on. What [People v. Stanworth, supra, 11 Cal.3d 588] and [People v. Brown, supra, 11 Cal.3d 784] seem to teach is this: the test of simple kidnaping is not (1) whether the movement is incidental to an underlying crime [citation]; (2) whether there is an increase in the risk of harm above that present in an underlying crime [citation]; (3) a mathematical formula [citation]; or (4) the crossing of arbitrary boundaries. [Citation.] Thus we are left to ponder what the movement is in simple kidnaping. We are told it ‘is the actual distance of the victim’s movements’ and they must be substantial in character [citations] but, of course, it is not a question of mathematical measurement or crossing of arbitrary boundaries. Thus, we are led in circles.” (People v. Stender (1975) 47 Cal.App.3d 413, 422 [121 Cal.Rptr. 334].) “Jury confusion is understandable. Without a frame of reference, ‘substantial’ has little or no meaning. To only say, as [the standard jury instruction] does, that it is ‘more than slight or trivial’ scarcely helps.” (People v. Daniels (1993) 18 Cal.App.4th 1046, 1053, fn. 5 [22 Cal.Rptr.2d 877].)

In Rayford, we “recognize[d] that Caudillo’s 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. [Citations.]” (Rayford, supra, 9 Cal.4th at p. 22.) However, because we concluded in Rayford that the statute at issue incorporated the aggravated kidnapping asportation standard, we had no occasion to address the standard for simple kidnapping, the question now before us. (Ibid.)

C. Factors Appropriately Considered for Simple Kidnapping Asportation

The Court of Appeal found section 208(b) “more analogous” to simple kidnapping. It declined, however, to apply the simple kidnapping asportation standard because under Caudillo, it would have been limited solely to distance in assessing substantial evidence, a limitation the court found troubling “since it fails to factor the victim’s tender age into the asportation equation.” The court thus formulated a modified version of the aggravated kidnapping standard that took into consideration whether “the movement of the child . . . substantially increases the risk of harm to, or vulnerability of, the child victim over that which existed immediately before the movement.”

We agree that factors other than actual distance are relevant to determining asportation under section 208(b). For the reasons discussed below, however, we conclude such consideration should apply in all cases involving simple kidnapping. (§ 207(a).) Increased risk of harm and vulnerability may arise regardless of the victim’s age. We therefore reaffirm that for simple kidnapping asportation the movement must be “substantial in character” (People v. Stanworth, supra, 11 Cal.3d at p. 601), but hold that the trier of fact may consider more than actual distance.

“[S]ection 207 does not speak in terms of a movement of any specific or exact distance.” (Caudillo, supra, 21 Cal.3d at p. 572.) Accordingly, nothing in the language of section 207(a) limits the asportation element solely to actual distance. Section 207(a) proscribes kidnapping or forcible movement, not forcible movement for a specified number of feet or yards. Our apparent limitation to actual distance in Caudillo adds language to the statute that is simply not there. Indeed, as we have historically recognized for both aggravated and simple kidnapping, limiting a trier of fact’s consideration to a particular distance is rigid and arbitrary, and ultimately unworkable.

Rather, section 207(a) refers to “kidnapping” in the same respect section 209(b)(1) uses the word “kidnaps,” which has been interpreted to require consideration of the “scope and nature” of the movement and the increased risk of harm to the victim. (People v. Daniels, supra, 71 Cal.2d at pp. 1131, fn. 5, 1139.) The two prongs of aggravated kidnapping are not distinct, but interrelated, because a trier of fact cannot consider the significance of the victim’s changed environment without also considering whether that change resulted in an increase in the risk of harm to the victim. Thus, for simple kidnapping asportation, movement that is “substantial in character” arguably should include some consideration of the “scope and nature” of the movement or changed environment, and any increased risk of harm.

Furthermore, our narrow approach in Caudillo 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 because of the diminished likelihood of discovery, the opportunity for the commission of additional crimes, and the possibility of injury from foreseeable attempts to escape. (See People v. Bradley (1993) 15 Cal.App.4th 1144, 1154 [19 Cal.Rptr.2d 276], disapproved on other grounds in Rayford, supra, 9 Cal.4th at p. 21 [Victim’s forcible movement 50 to 60 feet from the open street, and around building to the inside of a separate structure, an enclosed dumpster area “provid[ed] the necessary environment to commit the targeted crime without interruption or detection.”]; People v. Williams (1990) 220 Cal.App.3d 1165, 1171 [269 Cal.Rptr. 705] [danger sought to be prevented by simple kidnapping statute was realized when one victim, who was driving, abandoned moving vehicle to escape, causing truck to collide with another car and allowing second victim opportunity to flee]; People v. Stender, supra, 47 Cal.App.3d at p. 423 [“200 feet becomes more a substantial distance when it is considered it accomplished the purpose of removing the victim from the ready help of her mother”]; cf. People v. Ford (1966) 65 Cal.2d 41, 58 [52 Cal.Rptr. 228, 416 P.2d 132], overruled on other grounds in People v. Satchell (1971) 6 Cal.3d 28, 35 [98 Cal.Rptr. 33, 489 P.2d 1361, 50 A.L.R.3d 383] [simple kidnapping “ ‘inherently dangerous to human life’ ”].)

In cases involving simple kidnapping, the instructions currently provide that the victim must have been moved “for a substantial distance, that is, a distance more than slight or trivial.” (See CALJIC No. 9.50.) In view of the foregoing discussion, we conclude it would also be proper for the court to instruct that, in determining whether the movement is “ ‘substantial in character’ ” (Caudillo, supra, 21 Cal.3d at p. 572), the jury should consider the totality of the circumstances. Thus, in a case where the evidence permitted, the jury might properly 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.⁶

We nevertheless do not adopt the Court of Appeal’s asportation standard, which would have required a finding that the movement substantially increased the victim’s vulnerability or risk of harm. While the jury may consider a victim’s increased risk of harm, it may convict of simple kidnapping without finding an increase in harm, or any other contextual factors. Instead, as before, the jury need only find that the victim was moved a distance that was “substantial in character.” (See Caudillo, supra, 21 Cal.3d at p. 572; People v. Stanworth, supra, 11 Cal.3d at p. 601.) To permit consideration of “the totality of the circumstances” is intended simply to direct attention to the evidence presented in the case, rather than to abstract concepts of distance. At the same time, we emphasize that contextual factors, whether singly or in combination, will not suffice to establish asportation if the movement is only a very short distance.

In addition, in a case involving an associated crime, the jury should be instructed to consider whether the distance a victim was moved was incidental to the commission of that crime in determining the movement’s substantiality. Contrary to our language in Caudillo and Stanworth, such consideration is relevant to determining whether more than one crime has been committed, and is amply supported by the case law. (See In re Earley, supra, 14 Cal.3d at p. 129, fn. 9 [“When an ‘associated crime’ is involved, there can be no violation of section 207 unless the asportation is more than incidental to the commission of that crime.”]; People v. Daniels, supra, 71 Cal.2d at pp. 1130-1131 [movements incidental to rapes and robberies insufficient evidence of asportation]; Cotton v. Superior Court, supra, 56 Cal.2d at p. 465 [where the movement is merely incidental to the alleged assault and rioting, section 207 does not apply]; People v. Magana (1991) 230 Cal.App.3d 1117, 1121 [281 Cal.Rptr. 338] [actual distance of at least one-half mile plus lengthy walk in park not merely incidental to rape].)

Because section 208(b) provides for three possible penalties—five, eight, or eleven years in prison—defendant contends factors such as the victim’s vulnerability, which are properly considered under the sentencing rules (Cal. Rules of Court, rule 421), cannot also be considered in determining whether the movement of the victim was “substantial in character.” Of course, to use defendant’s example, we are not concluding a trier of fact must find the victim was vulnerable, only that the jury may consider such a factor in determining whether the asportation was proved. If such is the case, California Rules of Court, rule 420(d), precludes its use in imposing the upper term.

D. Retroactivity

Our overruling of Caudillo raises the further question whether today’s holding may be applied retroactively to defendant.

“It is settled that a state Supreme Court, no less than a state Legislature, is barred from making conduct criminal which was innocent when it occurred, through the process of judicial interpretation.” (People v. Escobar (1992) 3 Cal.4th 740, 752 [12 Cal.Rptr.2d 586, 837 P.2d 1100].) “ ‘[judicial enlargement of a criminal act by interpretation is at war with a fundamental concept of the common law that crimes must be defined with appropriate definiteness’ [citation] and, when ‘applied retroactively, operates precisely like an ex post facto law, such as Art. I, § 10, of the Constitution forbids.’ [Citation.] [H] Thus, ‘[i]f a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction. [Citation.] The fundamental principle that “the required criminal law must have existed when the conduct in issue occurred,” [citation], must apply to bar retroactive criminal prohibitions emanating from courts as well as from legislatures. If a judicial construction of a criminal statute is “unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue,” it must not be given retroactive effect. [Citation.]’ [Citations.]” (In re Baert (1988) 205 Cal.App.3d 514, 518 [252 Cal.Rptr. 418]; see Bouie v. City of Columbia (1964) 378 U.S. 347, 353-354 [84 S.Ct. 1697, 1702, 12 L.Ed.2d 894]; cf. People v. Guerra (1984) 37 Cal.3d 385, 400-402 [208 Cal.Rptr. 162, 690 P.2d 635] [retroactivity analysis not implicating ex post facto and due process focuses on reliance and policy considerations].)

Accordingly, retroactive application turns on whether the change effects “an unforeseeable judicial enlargement of a criminal statute” (Bouie v. City of Columbia, supra, 378 U.S. at p. 353 [84 S.Ct. at p. 1702]) and whether defendant had “fair warning that . . . contemplated conduct constitutes a crime.” {Id. at p. 355 [84 S.Ct. at p. 1703].)

As to the first question: The simple kidnapping standard remains “substantial distance”; however, in overruling Caudillo we have not only expanded the factual basis for making that determination but in the process effectively overruled cases holding that specific distances failed to establish asportation. Two of those decisions are particularly relevant as to these facts. In People v. Brown, supra, 11 Cal.3d 784, the defendant confronted the victim in her kitchen and “forcibly took her through [the] house in search of her husband.” (Id. at p. 788.) They returned to the kitchen and then the living room, after which the defendant dragged her outside for an additional 75 feet. (Id. at pp. 788-789.) Without considering any other factors, the court found the distance involved “insufficient to show that the movements were substantial.” (Id. at p. 789.) Again, in People v. Green, supra, 27 Cal.3d at page 67, a 90-foot movement was “insufficient as a matter of law” “[f]or the reasons stated in Brown . . . .”

Applying the holdings in Brown and Green in light of Caudillo, the facts of this case do not satisfy the simple kidnapping asportation standard. From the record, it appears defendant moved the victim from the bathroom “across the room [where her father and brother slept],” “through the kitchen [and] that little room where [defendant] slept,” across a 15-foot porch, and “approximate [ly] 40 to 50 feet” away from the house. Even if more than the 90 feet in Green, we can reasonably infer the movement within the house was no greater than the movement within the house in Brown. Since the 65-foot movement outside is also less than the 75 feet in Brown, a reviewing court would be compelled to reverse for insufficiency of the evidence under prior law. Plainly, our decision constitutes “judicial enlargement of a criminal Act” (Pierce v. United States (1941) 314 U.S. 306, 311 [62 S.Ct. 237, 239-240, 86 L.Ed. 226]) for which defendant must have had fair warning to be held accountable.

In support of his position that defendant had fair warning, the Attorney General cites language in Rayford, supra, 9 Cal.4th at page 22, assertedly foreshadowing the demise of Caudillo, and Court of Appeal decisions that purportedly “looked to factors other than actual distance despite the apparent prohibition in Caudillo.”'⁷ (See People v. Bradley, supra, 15 Cal.App.4th 1144, 1154; People v. Williams, supra, 220 Cal.App.3d 1165, 1171.) As for the Court of Appeal decisions, if they purposefully failed to follow the “actual distance” rule of Caudillo, they erred under the principles set forth in Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 [20 Cal.Rptr. 321, 369 P.2d 937]. (See In re Baert, supra, 205 Cal.App.3d at p. 520, fn. 2.) Such fundamental judicial error cannot form the basis of constitutionally compelled notice. We note, however, that People v. Bradley, supra, 15 Cal.App.4th 1144, involved kidnapping with intent to commit rape to which the aggravated, not simple, kidnapping standard applies. (Rayford, supra, 9 Cal.4th at p. 20.) In People v. Williams, supra, 220 Cal.App.3d 1165, the defendant moved the victims more than 840 feet, a distance that would have sufficed under Caudillo. (Caudillo, supra, 21 Cal.3d at p. 574, citing with approval People v. Stender, supra, 47 Cal.App.3d at p. 423, in which movement of 200 feet was found sufficient.) Any discussion of other factors was dictum and without significance as fair warning.

With respect to language in Rayford, we observed “that Caudillo’s 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. [Citations.]” (Rayford, supra, 9 Cal.4th at p. 22, italics added.) Apart from its ambiguous tone, this statement is plainly dictum and dictum of very recent vintage at the time this incident occurred. Until today, Caudillo was the rule of law as announced by the state’s highest court, on which all individuals were entitled to rely in determining their conduct. “The mere possibility that this court might reconsider its own precedent is not the equivalent of actually overruling it.” (People v. King (1993) 5 Cal.4th 59, 80 [19 Cal.Rptr.2d 233, 851 P.2d 27].)

“Although it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed.” (McBoyle v. United States (1931) 283 U.S. 25, 27 [51 S.Ct. 340, 341, 75 L.Ed. 816].) At the time of defendant’s crime, the line for simple kidnapping asportation was laid down in our holdings in People v. Brown, supra, 11 Cal.3d at page 789, and People v. Green, supra, 27 Cal.3d at page 67. Defendant’s conduct did not cross it, and he had no fair warning it would be redrawn. (See Bouie v. City of Columbia, supra, 378 U.S. at pp. 356-361 [84 S.Ct. at pp. 1704-1706].) Accordingly, we find the evidence insufficient to support the judgment of conviction on sections 207(a) and 208(b).

Although we must reverse the kidnapping count, section 1181, subdivision 6, authorizes us to reduce the conviction to the lesser included offense of attempted kidnapping of a person under the age of 14 (§§ 664/ 207, 208) in light of the record. (See People v. Daly (1992) 8 Cal.App.4th 47, 57 [10 Cal.Rptr.2d 21].) When defendant grabbed Janet, he demanded she take him to Ramona, who had escaped to an apartment complex located on the other side of a parking area behind the house. He then took her outside and across the backyard toward the complex. When the police arrived, defendant and Janet were at the rear of the property moving in the direction of the parking area and an adjacent open field. This evidence shows that, but for the prompt response of the police, the movement would have exceeded the minimum asportation distance set by Brown and Green. (See People v. Daly, supra, 8 Cal.App.4th at p. 57.)

Disposition

The judgment of the Court of Appeal is reversed. The conviction of kidnapping in violation of sections 207 and 208 is modified to attempted kidnapping of a person under the age of 14 and the matter remanded for further proceedings consistent with this opinion.

George, C. J., Kennard, J., Baxter, J., Werdegar, J., and Chin, J., concurred.

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 At the time of defendant’s crimes, section 208 provided: “(a) Kidnapping is punishable by imprisonment in the state prison for three, five, or eight years. “(b) If the person kidnapped is under 14 years of age at the time of the commission of the crime, the kidnapping is punishable by imprisonment in the state prison for 5, 8, or 11 years. This subdivision is not applicable to the taking, detaining, or concealing, of a minor child by a biological parent, a natural father, as specified in Section 7611 of the Family Code, an adoptive parent, or a person who has been granted access to the minor child by a court order. “(c) In all cases in which probation is granted, the court shall, except in unusual cases where the interests of justice would best be served by a lesser penalty, require as a condition of the probation that the person be confined in the county jail for 12 months. If the court grants probation without requiring the defendant to be confined in the county jail for 12 months, it shall specify its reason or reasons for imposing a lesser penalty. “(d) If the person is kidnapped with the intent to commit rape, oral copulation, sodomy, or rape by instrument, the kidnapping is punishable by imprisonment in the state prison for 5, 8, or 11 years.” (Stats. 1992, ch. 163, § 101, p. 781.) In 1997, the Legislature deleted subdivision (d) and incorporated it in section 209, subdivision (b)(1). (Stats. 1997, ch. 817, §§ 1, 2.) This change has no bearing on the substantive issue before us. Therefore, for ease of reference, we will refer to the statutory provisions by their current designations.

3 Section 207(a) provides: “Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping.” “The language ‘into another part of the same county’ was added in 1905 in response to Ex parte Keil (1890) 85 Cal. 309 [24 P. 742], in which this court held that the forcible removal of a person 20 miles from San Pedro to Santa Catalina Island, both in Los Angeles County, was not kidnapping within the meaning of the statute as it existed at that time.” (Rayford, supra, 9 Cal.4th at p. 8, fn. 3; Ex parte Keil (1890) 85 Cal. 309, 310-311 [24 P. 742]; see code comrs. note, 47 West’s Ann. Pen. Code (1988 ed.) foil. § 207, p. 518.)

4 At the time of defendant’s crimes, section 209, subdivision (b) (section 209(b)) provided: “(b) Any person who kidnaps or carries away any individual to commit robbery shall be punished by imprisonment in the state prison for life with possibility of parole." In 1997, the Legislature revised the statute to provide: “(b)(1) Any person who kidnaps or carries away any individual to commit robbery, rape, spousal rape, oral copulation, sodomy, or rape by instrument in violation of Section 289, shall be punished by imprisonment in the state prison for life with possibility of parole. “(2) This subdivision shall only apply if the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense." (Stats. 1997, ch. 817, § 2; see ante, fn. 2.) Section 209(b)(2) thus codifies both Rayford, supra, 9 Cal.4th 1, and a modified version of the People v. Daniels (1969) 71 Cal.2d 1119 [80 Cal.Rptr. 897, 459 P.2d 225, 43 A.L.R.3d 677] asportation standard. (Stats. 1997, ch. 817, § 17; Sen. Rules Com., Analysis of Assem. Bill No. 59 (1997-1998 Reg. Sess.) as amended Sept. 4, 1997, p. 3.) Unlike our decisional authority, it does not require that the movement “substantially" increase the risk of harm to the victim. (Cf. People v. Daniels, supra, 71 Cal.2d at p. 1139.)

5 Our opinion in Rayford, supra, 9 Cal.4th at pages 14-20, recounts at length the “relevant and decidedly nonlinear history of the simple kidnapping, kidnapping for robbery, and kidnapping for ransom, reward, or extortion statutes.” (Id. at p. 14.)

6 To the extent Caudillo, supra, 21 Cal.3d 562, prohibited consideration of factors other than actual distance in determining whether the asportation was sufficient to constitute simple kidnapping, it is overruled.

7 Based on a reference in Rayford, supra, 9 Cal.4th at page 19, footnote 10, the Attorney General also argues that this court considered other factors in People v. Sheldon (1989) 48 Cal.3d 935, 952-953 [258 Cal.Rptr. 242, 771 P.2d 1330]. On closer examination, it does not appear that we “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.” (Rayford, supra, 9 Cal.4th at p. 19, fn. 10.) In Sheldon, the defendant alleged the trial court erred in admitting a Nevada prior conviction for simple kidnapping at his penalty trial. He argued the evidence was insufficient as a matter of law because “the asportation took place almost entirely within [the victim’s] home.” (48 Cal.3d at p. 952, citing, inter alia, People v. Brown, supra, 11 Cal.3d at pp. 788-789.) On this record, we agreed “that the asportation at issue was too minor to constitute kidnapping” but found the error harmless. (48 Cal.3d at p. 953.) The opinion contains no reference to any factor other than actual distance as the basis for this determination. (Id. at pp. 952-953.)