What is the test for determining whether a kidnapping has increased the risk of harm beyond that necessarily present in the underlying crime?

California, United States of America


The following excerpt is from People v. Sturk, H043453 (Cal. App. 2018):

The determination of whether the asportation subjected a kidnapping victim to an increased risk of harm beyond that necessarily present in the underlying crime "involves a comparison of the victim's physical location before and after the asportation" (People v. Salazar (1995) 33 Cal.App.4th 341, 348 (Salazar)), and "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" (People v. Rayford (1994) 9 Cal.4th 1, 13 (Rayford)). "The fact that these dangers do not in fact materialize does not, of course, mean that the risk of harm was not increased." (Rayford, supra, at p. 14.) "[E]xamples of such risk of harm 'include not only desperate attempts by the victim to extricate himself [or herself] but also unforeseen intervention by third parties.' " (Id. at pp. 13-14.)

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