Filed 4/6/16 P. v. Saint John CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G050749

         v.                                                            (Super. Ct. No. 13WF0669)

KEVIN SAINT JOHN,                                                      OPINION

     Defendant and Appellant.


                   Appeal from a judgment of the Superior Court of Orange County, Sheila F.
Hanson, Judge. Affirmed.
                   Mark D. Johnson, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and
Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
                                          *                  *                  *
              Kevin Saint John was convicted of forcibly raping two women, and the jury
found true an allegation that he also kidnapped one of his victims. He appeals, arguing
there was insufficient evidence to sustain the finding of kidnapping. Specifically,
appellant argues that the short distance he moved his victim – only about 11 feet – was
not substantial in character, and that moving a victim a very short distance can never
amount to asportation for purposes of kidnapping. The argument is contrary to the very
case appellant relies upon, which clearly states that distance alone does not determine
asportation. And here, while the distance appellant forced his victim to move was
relatively short, he took her from the entryway of a convenience store’s walk-in cooler
into an adjacent freezer where he raped her. By doing that, appellant forced his victim to
move from a relatively public area into a significantly more secluded private area where
it was unlikely anyone entering the store would realize what was happening. This
movement consequently increased the risk of harm to the victim and decreased the
likelihood of detection. That is sufficient to support a finding of kidnapping.
              The judgment is affirmed.


                                           FACTS


              In August 2004, appellant entered a convenience store at about 3:00 a.m.
When the female clerk, who was stocking shelves inside the refrigerator, heard the
entrance bell ring, she went to the door of the refrigerator to ask if appellant needed
anything. He pointed what the clerk believed was a gun at her, and forced her back into
the refrigerator, and then into an adjacent commercial freezer. The total distance
appellant forced the clerk to move was approximately 11 feet. Once the clerk was in the
freezer, appellant forcibly raped her.
              In September 2004, appellant raped a different woman, in an incident that is
unrelated to the issues raised in this appeal.

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              In May 2014, an information was filed, alleging in count 1 that appellant
forcibly raped the first victim (Pen. Code, § 261, subd. (a)(2); all further statutory
references are to this code), and alleging in count 2 that appellant forcibly raped the
second victim. The information also alleged, in connection with count 1, that for
purposes of section 667.61 (the one strike sentencing law), appellant had kidnapped his
victim in violation of sections 207, 209 and 209.5. And the information alleged, in
connection with both counts, that appellant had committed an offense specified in section
667.61, subdivision (c), against more than one victim. If both of those additional
allegations were found true in connection with count 1, the combination would subject
appellant to a sentence of 25 years to life on that count of forcible rape. (§ 667.61, subd.
(a).) But if only one of those two findings were true, appellant’s sentence would be 15
years to life. (§ 667.61, subd. (b).)
              The jury found appellant guilty of the forcible rapes alleged in both counts.
And it also found true both additional allegations, including the allegation appellant
“kidnapped the victim” during the commission of the forcible rape alleged in count 1.
Appellant was sentenced to a term of 25 years to life on count 1, and a consecutive 15
years to life on count 2.


                                        DISCUSSION


              Appellant’s sole contention on appeal is that the evidence is insufficient to
support the jury’s finding that he kidnapped his victim during the commission of the rape
alleged in count 1. If we agreed, appellant would be entitled to have his sentence on
count 1 reduced from a term of 25 years to life to a term of 15 years to life. However, we
do not.
              “When assessing a challenge to the sufficiency of the evidence, the
reviewing court must decide whether the record contains substantial evidence such that a

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reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.
[Citation.] In applying this test, we review the entire record in the light most favorable to
the judgment and presume in its support the existence of every fact the trier could
reasonably have deducted from the evidence.” (People v. Robertson (2012) 208
Cal.App.4th 965, 982-983.) “We resolve neither credibility issues nor evidentiary
conflicts; we look for substantial evidence.” (People v. Shadden (2001) 93 Cal.App.4th
164, 168.)
               Appellant’s specific contention is that moving a victim a distance of only
11 feet is too short, as a matter of law, to qualify as “asportation,” which is the key
element of a kidnapping. He bases that assertion on People v. Martinez (1999) 20 Cal.4th
225 (Martinez), in which the Supreme Court stated “that contextual factors, whether
singly or in combination, will not suffice to establish asportation if the movement is only
a very short distance.” (Id. at p. 237.) However, Martinez does not support appellant’s
position in this case because it addresses the standard for determining asportation in a
case of simple kidnapping, which focuses on the physical movement of the victim.
(People v. Ortiz (2002) 101 Cal.App.4th 410, 414.) The traditional standard in such
cases, expressed as whether the victim’s movement was “‘“substantial in character,”’”
had been “exclusively dependent on the distance involved.” (Martinez, at p. 233.) But,
Martinez itself disapproved that pure focus on distance, holding instead that in cases of
simple kidnapping, courts must 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.” (Id. at p. 237.)
Nonetheless, the court made clear that some significant distance was still required to
establish asportation in cases of simple kidnapping, as reflected in the quote appellant
relies upon.

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              By contrast, the standard for asportation in an aggravated kidnapping –
referring specifically to a kidnapping carried out “to commit robbery, rape” or other
specified offenses (§ 209, subd. (b)(1)) ‒ focuses more on the movement’s relationship to
the other crime. The standard “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.”
(Martinez, supra, 20 Cal.4th at p. 232, italics added; § 209, subd. (b)(2).) The two
elements of this test “are not mutually exclusive, but interrelated.” (People v. Rayford
(1994) 9 Cal.4th 1, 12 (Rayford).) And they combine to set a different standard than the
one applicable to simple kidnapping. (People v. Bell (2009) 179 Cal.App.4th 428, 435.)
Significantly, “there is no minimum number of feet a defendant must move a victim in
order to satisfy [this test].” (Rayford, at p 12.) Because this case involves an aggravated
kidnapping, rather than a simple one, the Martinez standard has no application and we
reject appellant’s reliance upon it.
              As an alternative, appellant argues that even if a movement of 11 feet were
not too short, as a matter of law, to be considered “substantial in character,” it must still
be deemed so because the contextual factors discussed in Martinez do not support such a
finding. Again, this argument is based on the standard for simple kidnapping, rather than
aggravated kidnapping. However, because appellant also mixes in the elements of
asportation for cases of aggravated kidnapping, we will address them briefly.
              First, appellant contends there is no substantial evidence that the movement
of his victim “was beyond that merely incidental to the rape.” But several cases hold that
moving a rape victim from a relatively public space to a more private and secluded one,
before raping her, is not incidental movement. In Rayford, supra, 9 Cal.4th at page 23,
the Supreme Court determined that evidence demonstrating the victim “was forcibly
moved 105 feet at night from the parking lot of a closed store to the other side of a wall
located at the edge of the lot” was sufficient to sustain the necessary findings. (Ibid.) As

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the court explained, the victim “was forced to sit against the wall and beside a small tree,
34 feet from the street. The wall blocked the view of any passersby from the parking lot
side, and the tree and the bushes at the end of the wall limited detection of [the victim]
from the street.” (Ibid.) Based on that evidence, the court decided “[t]he jury could
reasonably have concluded that [the victim’s] forcible movement for this distance and
under these circumstances was not merely incidental to the attempted commission of
rape, and substantially increased her risk of harm.” (Ibid.) Similarly, in People v.
Salazar (1995) 33 Cal.App.4th 341 (Salazar), the defendant moved the victim 29 feet
from a public walkway through a private motel room and into an even more secluded
inner bathroom. This movement was viewed as not merely incidental to the rape because
the defendant could have raped her where he found her, without moving her at all. The
movement also increased the danger to the victim because in addition to facilitating the
crime – which would be more difficult to carry out in such a public area – it significantly
changed the victim’s environment from outdoor and public to indoor and private. Of
similar effect is People v. Shadden (2001) 93 Cal.App.4th 164, where the victim’s
movement, though a short distance, took her “from an open area to a closed room,” and
thus supported the inference that it “changed her environment.” (Id. at p. 169.)
              Appellant’s additional assertion on this point, that “shortly after [he] moved
[the victim] into the freezer he forced her to bend over a pile made up of bags of ice so he
could penetrate her” does not help his position. The fact that these latter movements
were brief, and “‘natural’ to the crime involved,” in no way explains why moving her
from the doorway of the refrigerator all the way back into the freezer could also be
characterized as such.
              Appellant also maintains there is no evidence that moving his victim into
the freezer increased the risk of harm to her. As explained in Rayford, supra, 9 Cal.4th at
page 13, “[t]his [determination] includes consideration of such factors as the decreased
likelihood of detection, the danger inherent in a victim’s foreseeable attempts to escape,

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and the attacker’s enhanced opportunity to commit additional crimes.” We need only
consider the first factor. Appellant’s theory is that because only one person entered the
store during the rape – a vendor delivering newspapers – and that vendor allegedly would
not have heard the rape even if it had occurred in the refrigerator, appellant’s movement
of the victim into the freezer did not decrease the likelihood of detection. This assertion
borders on the frivolous. First, appellant’s argument asks us to consider the facts in the
light most favorable to his assertion, which we cannot do. And second, he asks us to
compare the rape that actually occurred in the freezer to a theoretical rape otherwise
occurring within the refrigerator. But appellant did not encounter his victim inside the
refrigerator; she had come to the doorway to ask him if he needed assistance. Thus, the
proper comparison would be to a rape occurring at the entrance to the refrigerator. We
have no trouble concluding that presents a far greater likelihood of detection than one
occurring inside the adjacent freezer.
              More fundamentally, we reject appellant’s contention because it conflates
the likelihood of detection – an abstract notion that compares two environments – with
the issue of whether someone actually would have detected this particular rape at the
moment it occurred. Appellant’s entire argument is premised on the idea that because the
only person who entered the convenience store during the rape did not venture near the
refrigerator, there is no evidence the rape would have been detected even if he had left his
victim where he found her. But if that were the test, proving asportation would be a
matter of pure happenstance, and dependent solely upon the actions of third parties: the
defendant in Rayford could have been found guilty of aggravated kidnapping only if it
were established that some third party happened to drive through the “the parking lot of a
closed store” from which the victim had been dragged at the time she was being raped
(Rayford, supra, 9 Cal.4th at p. 23); and the defendant in Salazar could have been found
guilty only if it were proved someone else had actually walked along the walkway during
the exact time he was raping his victim in a nearby bathroom. But that is not the test, nor

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is it consistent with the analysis of either case. Rather, the test is whether, viewed in the
abstract, it is less likely that a rape would be detected if it occurred in the place where the
defendant moved his victim. This case easily meets that test.


                                       DISPOSITION


              The judgment is affirmed.




                                                   RYLAARSDAM, J.

WE CONCUR:



O’LEARY, P. J.



IKOLA, J.




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