What is the test for determining whether a victim's asportation is incidental to the underlying crime?

California, United States of America


The following excerpt is from People v. White, C087212 (Cal. App. 2019):

" '[I]ncidental' " means "that the asportation play no significant or substantial part in the planned [offense], or that it be a more or less ' "trivial change[ ] of location having no bearing on the evil at hand." ' " (People v. Ellis (1971) 15 Cal.App.3d 66, 70.)

In assessing whether movement is incidental to the underlying crime, the jury considers the scope and nature of the movement, including the distance a victim is moved, as well as the necessity for movement for completion of the crime. (People v. James (2007) 148 Cal.App.4th 446, 455.) "Lack of necessity is a sufficient basis to conclude a movement is not merely incidental." (Ibid.)

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As to whether movement increased the risk of harm, the jury considers " ' " '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.' " ' " (People v. Simmons (2015) 233 Cal.App.4th 1458, 1471.) The increased risk of harm may be physical injury or psychological terror. (People v. Nguyen (2000) 22 Cal.4th 872, 885.)

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