Is a failure to properly instruct on the increased risk of harm element of section 667.61 kidnapping qualifying circumstance harmless beyond a reasonable doubt?

California, United States of America


The following excerpt is from People v. Briseno, B297164 (Cal. App. 2021):

Additionally, we conclude that any failure to properly instruct on the increased risk of harm element of the section 667.61 kidnapping qualifying circumstance was harmless beyond a reasonable doubt. (See People v. Luna (2012) 209 Cal.App.4th 460, 468 [ 667.61, subd. (e)(1) kidnapping qualifying circumstance]; People v. Jones (1997) 58 Cal.App.4th 693, 715-716 [ 667.61, subd. (d)(2) aggravated kidnapping].) In convicting appellant of aggravated kidnapping in count three, the jurors were required to find that appellant's movement of Claudia increased her risk of harm above the risk inherent in the underlying offenses.

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