People v. Daniels (71 Cal. 2d 1119, 1969)

MOSK, J.

By amended indictment defendant Simmons was charged in count I with raping Miss M. by means of force and threat (Pen. Code, § 261, subds. 3 and 4); in count II defendants Daniels and Simmons were charged with kidnap-ing Mrs. R. for the purpose of robbery, the victim suffering bodily harm (Pen. Code, § 209); in count III Simmons was charged with kidnaping Miss S. for the purpose of robbery, the victim suffering bodily harm (Pen. Code, §209); and in count IY Daniels and Simmons were charged with kidnaping Miss K. for the purpose of robbery, the victim suffering bodily •harm (Pen. Code, §209). Daniels was. charged with a prior conviction of simple kidnaping (Pen. Code, § 207) and rape (Pen. Code, § 261, subd. 3).

Defendants entered pleas of not guilty, and Daniels admitted the prior conviction. The jury found defendants guilty on all counts. The allegations in counts II, III, and IY that the kidnaping victims suffered bodily harm were found true.

The jury fixed the penalty at death on the kidnaping counts. Motions for new trial were denied. On count I Simmons was sentenced to prison for the term prescribed by law, and on the remaining counts he was sentenced to death; on counts II and IY Daniels was sentenced to death. The appeals from the judgments of death are automatic. (Pen. Code, § 1239, subd. (b).)

The relevant facts, viewed most favorably to the People, may be summarized as follows:

Count I. Miss M., a 24-year-old school teacher and graduate student, returned to her apartment shortly after midnight on January 17, 1966. Finding no nearby parking space, she drove, to her garage in an alley behind the apartment building. In so doing shé observed two men standing on the street comer. As she was getting out of her car in the garage, she looked to the rear and saw defendant Simmons. She screamed, - and he rushed towards her and struck her in the face, dislocating- her jaw. He said, “Shut up; I have a knife,” and held the weapon at her throat. Badly frightened, she asked, him what he wanted. He ordered her into the back' seat of the car, where he overcame her vigorous resistance and accomplished an act of rape. He then asked her if she had any money, and she told him to look in her purse.

'After Simmons left her, Miss M. crawled into the front seat and began to drive in'the direction of a hospital. In her hysteria she had forgotten to turn on the car’s headlights, and she was soon stopped by police for driving without lights and failing to observe a red signal. She ran towards the police car, .screaming for help and for a doctor. Her face was swollen, her hair and clothing were in disarray, and she had lost her shoes. The officer .obtained a description of the assailant, then took her to the hospital for treatment.

Count II. Two nights later, Mrs. R. was in her home awaiting the return of her husband, a deputy sheriff. There was a knock at the door, and she opened it. Defendants Daniels and Simmons, the latter carrying a gun, forced their way in. They pointed the weapon at her face and asked if she had any money, but she replied she did not. They walked her quickly through the dining room into the kitchen, a distance of approximately 18 feet. They repeated their demand for. money, and she told them to- look in her purse and see for themselves.

Daniels, who was then holding the gun, put a dish towel over Mrs. R. ’s face and warned her not to scream or he would shoot her. Simmons removed her pants and raped her. During the act of intercourse Daniels left the room briefly, then returned and told Simmons they had better get out of there. Again warning her not to move or cry out, defendants left the house. In a distraught condition Mrs. R. telephoned for her husband, and.when he arrived the police were called and furnished with a description of the attackers.

Count III. Miss S., a graduate student, lived alone in a one-room apartment with a small kitchen and bathroom. Shortly after 11 p.m. on May 19, 1966, there was a knock at the door. As she was expecting a classmate, she opened the door and was confronted by defendant Simmons. He asked for someone by a certain name; she said no one by that name lived there, and requested him to leave. She tried to> shut the door, but he forced his way in, pushed her against the" wall, and pulled a gun out of a paper bag he was carrying. When she screamed for her next-door neighbor, Simmons put the gun to the back of her neck and said he would shoot her if anyone came. He then demanded her money. She'walked over to a nearby table on which her purse was lying, a distance of five or six feet;,he followed with the gun, and she gave him the $12 that the purse contained.

Simmons then. directed her to turn off the lights, lie down oh the couch, and remove her clothes. After forcing her to orally copulate him, he raped her but achieved only slight penetration. Hoping to distract him from hurting her further, Miss S. engaged him in conversation. The lights were turned on again, and she could see him clearly. After a while he took her into the adjoining bathroom and resumed the sexual assault, forcing her to orally-copulate .him once more and to submit to another act of rape. Returning to the living room, Simmons emptied out her purse and examined its contents. He threatened to rip' out the telephone cord unless Miss S. promised not to call anyone. Finally he replaced his gun in the paper bag and left the apartment. Miss S. immediately called the police, gave them a description of Simmons, and was taken to hospital for treatment.

Count TV Miss K., a student and part-time employee, was alone in her small cottage-apartment on the evening of May 31, 1966. She answered her doorbell about 9 :45 p.m. and was met by defendants Daniels and Simmons. Simmons asked if the manager was in • Miss K. said this was not the manager’s apartment and offered to give them the latter’s telephone number. They seemed to look around, then Simmons pulled a gun. from something he was carrying, pushed the door fully open, and forced Miss K. to step- back into the room. Simmons asked if she was alone, and she said she was. He turned her around, put one hand over her mouth, held the gun to* the back of her head, and walked her first towards the kitchen and then towards the bedroom to' see if anyone was there. He then sat her down on the bed and asked for her. money. The distance that the parties had covered was about 30' feet.

Miss K. told defendants her purse was on the couch in the living room, and Daniels went to look for it. Simmons put a bathrobe over her head, but she could hear her purse being shaken. They asked if there was any more money, and searched some dresser drawers. They then removed her stockings and pants, and each raped her in turn. After taking off the rest of her clothing, defendants debated whether to tie her up. Finally théy left the apartment, warning'her not to move. After they* had gone Miss K. discovered that a few dollars and some, coins were missing.

Each of the foregoing crimes took place in the vicinity of the University of Southern California campus. -Several teams of police officers were assigned to the case and provided with detailed descriptions of the suspects’ physical appearance and modus operand! On the evening of June 2, 1966, i.e., two nights after the rape and robbery of Miss K., officers on pátrol in the area observed two men, walking along the street, who fitted the description of the suspects. The men, defendants Daniels and Simmons, increased their pace when a second police ear passed them. The officers stopped them on a well-lighted street comer and undertook a “pat down” search. Simmons was carrying, in his right hand, a paper bag which was found to contain a loaded revolver. Defendants were thereupon placed under arrest. The gun was subsequently identified by Mrs. R., Miss S., and Miss K., as resembling the weapon displayed when they were attacked. Simmons’ fingerprints, moreover, were found in Miss S.’s bathroom on a bottle of lotion used by him before he raped her for the second time. Each of the victims identified her assailant or assailants in open court.

The défendants presented alibi defenses as to certain, but not all, of the crimes charged.

Penal Code section 209 provides in relevant part that “Any person who seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps or carries away any individual by any means whatsoever with intent to hold or detain, or who holds or detains, such individual for ransom, reward or to commit extortion or to exact from relatives or friends of such person any money or valuable thing, or any 'person who kidnaps or ■ carries away any individual io commit robbery, or any person who aids or abets any such act, is guilty of a felony and upon conviction thereof shall suffer death or shall be punished by imprisonment, in the state prison for life without possibility of parole, at the- discretion of the jury trying the same, in cases in which the person or persons subjected to such kidnaping suffers or suffer bodily harm or shall be punished by imprisonment in the state prison for life with possibility of parole in cases where such person or persons do not suffer bodily harm. ’ ’ (Italics added.)

The evolution of the language and construction of this statute Since its enactment at the turn of the century has been explored at length in our prior decisions (see, e.g., People v. Tanner (1935) 3 Cal.2d 279 [44 P.2d 324]; People v. Knowles (1950) 35 Cal.2d 175 [217 P.2d 1]; People v. Chessman (1951) 38 Cal.2d 166 [238 P.2d 1001]; and People v. Wein (1958) 50 Cal.2d 383 [326 P.2d 457]), and the analysis need not be repeated here. For present purposes, it is sufficient to observe that by reason of the most recent amendment of section 209 (Stats. 1951, ch. 1749, p. 4167) the statute now makes punishable every person, inter alios, “who kidnaps or carries away any individual to commit robbery. ...” Penal Code section 207, in turn, defines “kidnapping” as the act of one who ‘ ‘ forcibly steals, takes, or arrests any person in this state, and carries him into another country, state, or county, or into another part of the same county, ...”

We meet at the outset the issue whether the acts of defendants Daniels and Simmons, on the record in this case, constitute the kind of conduct proscribed by section 209. In People v. Chessman (1951) supra, 38 Cal.2d 166, 192, the court construed the phrase, “kidnaps or carries away,” to mean the act of forcibly moving the victim any distance whatever, no matter how short or for what purpose, declaring that “It is the fact, not the distance, of forcible removal which constitutes kidnaping in this state.” In People v. Wein (1958) supra, 50 Cal.2d 383, the court applied the Chessman construction to characterize as “kidnapping” under section 209 the conduct of a defendant who, in the course of robbing and raping several women within the confines of their homes, forced each to move either from one room to another or across a single room, for distances varying from more than 50 feet to as little as 4 or 5 feet. The case at bar is the first to reach us on facts essentially identical to Wein: defendants here, in the course of robbing and raping' three women in their- own homes, forced them to move about their rooms for distances of 18 feet, 5 or 6 feet, and 30 feet respectively. Under the rule of Chessman and Wein, such brief movements of the victims would constitute “kidnaping or carrying away” within the meaning of the statute and would therefore be sufficient to support defendants ’ convictions of violating section 209.

We believe, however, the time has come to reconsider the construction placed upon the statute in Chessman and applied in Wein.. More than a decade has elapsed since the latter lecision, and almost two decades since the former. During this )eriod the law of kidnaping has not remained stagnant. There lave been, as we will demonstrate, fresh judicial approaches, :ar-reaching legislative innovations, and considerable analysis >f the problem by legal commentators and scholars. Out of ;his ferment has arisen a current of common sense in the ionstruction and application of statutes defining the crime of ddnaping. Chessman and Wein, it now appears, stand as obstructions to the flow of that current in California.

We are not foreclosed from undertaking such an inquiry at this time by the statment in Wein (at p. 400 of 50 C'al.2d) hat “the Legislature has been in session several times since the Chessman case was decided, and it has not seen- fit to amend the kidnaping law to limit the rule we announced. If the section, as interpreted by this court, is regarded as too harsh, the remedy is for the Legislature to redefine kidnaping, and not for this court to engraft some uncertain distance limitation onto the plain language of the section.” (Italics added.) Legislative silence after a court has construed a statute gives rise at most to an arguable inference of acquiescence or passive approval, the weaknesses of which have been exposed elsewhere. But something more than mere silence should be required before that acquiescence is elevated into al species of implied legislation such as to bar the court from! reexamining its own premises. “We are not here faced with al situation in which the Legislature has adopted an established judicial interpretation by repeated reenactment of a statute.” (Italics added.) (Muskopf v. Corning Hospital Dist. (1961) 55 Cal. 2d 211, 218 [11 Cal. Rptr. 89, 359 P.2d 457] ; see, e,g., People v. Curtis (1969) 70 Cal.2d 347, 355.) [74 Cal. Rptr. 713, 450 P.2d 33].) The Legislature has neither reenacted nor amended nor rewritten any portion of sections 207 or 209 since the 1951 legislation construed in Chessman. The lawmakers, in short, have simply not spoken on the subject during the intervening years.

But while the Legislature may thus choose to remain silent, we may not. It continues to be our duty to decide each case that comes before us; in so doing, we must apply every statute in the case according to our best understanding of the legislative intent; and in the absence of further guidance by the Legislature, we should not hesitate to reconsider our prior construction of that intent whenever such a course is dictated by the teachings of time and experience. As the above-quoted language of Wein indicates, the rule of deference to legislative judgment applies to the statute “as interpreted by this court.” It is this judicial interpretation, and not the wisdom of the statute itself, that is here in issue; and if we conclude we should now revise that interpretation, we have both the power and the duty to do so. (See, e.g., People v. Hutchinson (1969) 71 Cal.2d 342 [78 Cal.Rptr. 196, 455 P.2d 132], People v. Pierce (1964) 61 Cal.2d 879 [40 Cal. Rptr. 845, 395 P.2d 893]; People v. Cahan (1955) 44 Cal.2d 434 [282 P.2d 905, 50 A.L.R.2d 513].) Respect for the role of the judiciary in our tripartite system of government demands no less.

Turning to the merits, we first observe that the Wein court was essentially concerned with the practical problems which it feared would arise in any attempt to ‘ ‘ engraft some uncertain distance limitation” onto the language of section 209. That concern, however, no longer appears so pressing. It is true .that an effort 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. But it does not follow, conversely, that a definition other than in such terms would necessarily be “uncertain” in any legally objectionable sense of the word. The law is replete with instances in which a person must, at his peril, govern his conduct by such nonmathematical standards as “reasonable,” “prudent,” “necessary and proper,” “substantial,” and the like. Indeed, a wide spectrum of human activities is regulated by such terms: thus one man may be given a speeding ticket if he overestimates the “reasonable or prudent” speed to drive his car in the circumstances (Yéh. Code, §22350), while another may be incarcerated in state prison on a conviction of wilful homicide if he misjudges the “reasonable” amount of force he may use in repelling an assault (People v. Jones (1961) 191 Cal.App.2d 478 [12 Cal.Rptr. 777]). As the Supreme Court said in Go-Bart Importing Co. v. United States (1931) 282 U.S. 344, 357 [75 L.Ed.2d 374, 382, 515 S.Ct. 153], “There is no formula for the determination of reasonableness.” Yet standards of this kind are not impermissively vague, provided their meaning can be objectively ascertained by reference to common experiences of mankind.

In Cotton v. Superior Court (1961) 56 Cal.2d 459 [15 Cal. Rptr. 65, 364 P.2d 241], three years after Wein and 10 years after Chessman, we adopted such a standard for applying the kidnaping statute in California. There, a, farm workers’ camp had been picketed for some time by members of a labor union seeking to induce nonunion braceros to join a strike. After failing to persuade the braceros to come out of the camp voluntarily, the strikers forced their way in and resorted to violence. One bracero was chased into’ the barracks, then ordered out by strikers variously armed with a knife, sticks and stones. A second bracero was pushed by the strikers towards the front gate of the camp. A third was seized by the shirt, pulled out of a washroom, struck on the head, dragged some 15 feet, then thrown to the ground. An indictment was returned charging the strikers, inter alia, with three counts of kidnaping in violation of Penal Code section 207, predicated on their conduct in forcibly moving the three braceros from one part of the camp to another.

The case came to us on the defendants’, petition for writ of prohibition. The record before the grand jury established that the defendants had forced each bracero to move some distance against his will. In such circumstances, we could simply have invoked the Chessman-Wein apothegm that “It is the fact, not the distance, of forcible removal” which constitutes kid-naping in this state. That would have both begun and ended the analysis, and the defendants would have been required to stand trial for “kidnaping” as that crime had theretofore been defined in our decisions.

But we did not do so. Bather, we issued a writ prohibiting the trial court from taking any further proceedings on the kidnaping counts other than to order their dismissal. Our reasoning was clear and forthright: “In the instant case, the only movements that occurred were those natural in a riot or assault. The evidence reveals that persons were pushed to the ground, dragged around, chased, and assaulted. All ‘asportation’ in the instant case would appear to be only incidental to the assault and rioting.” (Italics added.) (56 Cal.2d at p. 464.)

In reaching this conclusion we invoked the settled rule of statutory interpretation that “All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character. The reason of the law in such cases should prevail over its letter.” (United States v. Kirby (1868) 74 U.S. (7 Wall.) 482, 486-487 [19 L.Ed.2d 278, 279]; accord, People v. Oliver (1961) 55 Cal.2d 761, 767 [12 Cal.Rptr. 865, 361 P.2d 593], and cases cited.) Turning to the kidnaping statute, we explained that ‘ ‘ To us, it does not seem reasonable that the California Legislature, in enacting Penal Code section 207, intended the statute to apply to a ease of assault or riot such as occurred in the case now engaging our attention. Such a holding could result in a rule that every assault could also be prosecuted for kidnapping under Penal Code section 207, as long as the slightest movement was involved.” 56 Cal.2d at p. 465.) Accordingly, we held that “Where the movement is incidental to the alleged assault, Penal Code section 207 should not have application, as the Legislature could not reasonably have intended that such incidental movement be a taking ‘. . . from one part of the county to another.’ ” (Italics added.)

This reasoning applies equally and perhaps more significantly to the case before us. In Cotton the defendants’ primary intent was not to commit bodily harm upon their victims but to force them to move from one specific place to another, i.e., to “come out of the camp” (56 Cal.2d at p. 461) so as to join the strike. As one of the braceros testified, “All of them [i.e., the strikers] were hollering for us to get out of the camp.” (Id. a.t p. 463.) In the present case, by contrast, defendants had no interest in forcing their victims to move just for the sake of moving; their intent was to commit robberies and rapes, and the brief movements which they compelled their victims to perform were solely to facilitate such crimes. It follows, a fortiori, that those movementsi were “incidental to” the robberies and rapes within the meaning of Cotton, and that “the Legislature could not reasonably have intended that such incidental movement be a taking '. . . from one part of the county to another. ’ ’ ’

We are not unmindful of the. fact that Cotton was a case of ‘ ' simple ’ ’ kidnaping under section 207, while we deal here with “aggravated” kidnaping under section 209. For the purpose at hand, however, this is a distinction without a difference. Since 1872 the code has defined “kidnaping” only in section 207, and since 1905 that definition has read as quoted earlier in this .opinion. Section 208 declares the basic punishment for the crime of kidnaping (imprisonment for 1 to 25 years), and section 209 prescribes increased punishment when the kidnaping is for the purpose of ransom or robbery. In 1933, “The verb 'kidnaps’ was included in the definition of the crime defined by section 209. It cannot be assumed the Legislature meant to define the section 209 crime by itself1 by using this word. The word must be construed to have a meaning apart from and narrower than the crime defined by section 209. There are two possibilities; (1) It meant common law kid-naping; or (2) it meant kidnaping as defined in section 207. Since the Legislature had already rejected the common-law definition of kidnaping and redefined it, the clear implication is that the word ‘kidnaps’ in section 209 means kid-naping as defined in section 207. This is the contention of the attorney general in his brief in this case.” (People v. Wein (1958) supra, 50 Cal.2d 383, 415 (dissenting opinion of Carter, J.).) Indeed, although Chessman was a prosecution for aggravated kidnaping, five of the seven eases there relied on for the proposition that “fact not distance” constitutes the crime (38 Cal.2d at p. 192) were themselves, as was Cotton, prosecutions for simple kidnaping.

The legal commentators quickly recognized, the relevance of Cotton to the Chessman-Wein line of decisions. It was noted, for example, that the “broad language” used in the earlier cases to describe the element of asportation was “severely limited” by Cotton. (Enright, California's Aggravated Kidnaping Statute — A Need for Revision (1967) 4 San Diego L.Rev. 285, 293.) Another writer characterized Cotton as “in direct opposition” to the prior kidnaping cases. (Note, Kidnaping and the Element of Asportation (1962) 35 So.Cal.L.Rev. 212.) Still another observed that in Cotton “the California court seems to have rejected the thrust of its earlier kidnapping decisions.” (Note, 110 U.Pa.L.Rev. (1961) 293, 295.) Pointing to the “compelling factual similarity” between Cotton and Wein, the author reasoned that ‘ ‘ It would be difficult to distinguish them on the ground that the slight asportation involved in both was, in the language of the court in [Cotton], more ‘natural in’ or more ‘incidental to’ rioting and assault than to a rape accomplished within the confines of a single enclosure. The court recognized that mere movement of the victim of a crime should not inevitably lead to the criminal’s being indicted for kidnapping, for movement is incidental to the commission of many crimes.” (Iiid.) Finally, the view was voiced that while it would be salutary for the Legislature to codify the gloss placed upon the kid-naping statute by Cotton, “perhaps it is more realistic and appropriate to urge the courts, which, originally eviscerated the statute, to apply the rationale of [Cotton] not only in all simple kidnapping cases but also in cases of aggravated kidnapping, where the problems of construing what constitutes asportation are highly analogous. ’ ’ (Id. at p. 297.)

A further analogy must be drawn to decisions of this court construing an equally essential element of section 209, Le., whether the victim has suffered “bodily harm” within the meaning of the statute. Until 1955 the leading decision construing this language was People v. Tanner (1934) supra, 3 Cal.2d 279, 297. The court there said: “It will be noted that the statute does not use the words actual bodily harm, or great bodily harm, or bodily injury. Bodily, used singly, is defined as pertaining to the body. It is opposed to mental ‘as bodily labor or pain; physical is often synonymous with bodily, as physical discomfort, suffering.’ Harm is defined as ‘hurt; injury; damage; (2) grief,-pain, sorrow; (3) evil; wrong; wickedness.’ (Webster’s International Dictionary, 2d ed.) Bodily harm is generally defined as ‘any touching of the person of another against his will with physical force in an in-;entional, hostile and aggravated manner, or projecting of mch force against his person. ’ ’ ’

Applying this broad definition — taken essentially from the tort law of battery — the Tanner court held that a kidnaping victim who was locked in a closet and then bound hand and foot had suffered “bodily harm” within the meaning of section 209. The Tanner definition was quoted with approval in ívery aggravated kidnaping decision thereafter rendered by this court. (People v. Britton (1936) 6 Cal.2d 1, 3 [56 P.2d 194] ; People v. Brown (1947) 29 Cal.2d 555, 559-560 [176 P.2d 929]; People v. Chessman (1951) supra, 38 Cal.2d 166, 185.)

In People v. Jackson (1955) 44 Cal.2d 511 [282 P.2d 898], however, we reconsidered the matter. There, the kidnaping victim was pushed into a sitting position on a coueh and was bound hand and foot with chains. The factual similarity to Tanner was striking. Under the Tanner construction of section 209 such mistreatment was sufficient to constitute ‘bodily harm,” and the more severe penalties were accordingly imposed.

On appeal in Jackson, we reversed with directions to re-sentence the defendants for the crime of kidnaping for ransom but without bodily harm. In language foreshadowing our Cotton opinion, we said: “Tested in its application to the facts of the present case, it is seriously questionable whether the definition in the Tanner case states the intention of the Legislature in distinguishing between kidnaping with bodily harm and cases in which no injury to the victim has resulted. If the more serious penalty may be imposed when the only injury is of a nature similar to that shown by the present record, which concededly is almost necessarily an incident to every forcible kidnaping, neither the purpose of enhancement of the penalty for the more heinous crime nor the intention of deterring the kidnaper from killing or injuring his victim is subserved.” (Italics added.) {Id. at.p. 517.) We concluded that the evidence “shows such trivial injury as to compel, as a matter of law, the conclusion that it is not of the nature contemplated by the Legislature in providing the more serious penalty for a kidnaping.” {Ibid.) We have since reaffirmed the Jackson rule (People v. Gilbert (1965) 63 Cal.2d 690, 711 [47 Cal.Rptr. 909, 408 P.2d 365]), and it has been incorporated into a standard jury instruction.

Here, as in. Jackson, we are called upon to construí an essential term of the kidnaping statutes. In Jackson we dl not deem ourselves barred from doing so because a prior construction of the statute by this court had been left undisturbed by the Legislature for some two decades, nor shoul such legislative silence immobilize us in the present case. Jus as we recognized in Jackson that some minor injuries an necessarily incidental to the crime of forcible kidnaping, s< we now recognize that some brief movements are necessarily incidental to the crime of armed robbery. Indeed, “It is diffi cult to conceive a situation-in which the victim of a robbery does not make some movement under the duress occasioned by force or fear.” (Enright, op. cit. supra, 4 San Diego L.Rev. 285.) And just as we concluded in Jackson that such incidental injuries are “not of the nature contemplated by the Legislature” in prescribing the bodily harm element of aggravated kidnaping, so we now conclude that such incidental movements are not of the scope intended by the Legislature in prescribing the asportation element of the same crime.

Persuasive authority for our holding is found in a recen-series of decisions by the New York Court of Appeals. Whilel the precise wording of the kidnaping statute there construed is not the same as ours, the court’s reasoning on the question| of asportation is nevertheless applicable to the issue before us.

Until 1965, New York followed the rule that virtually any confinement or movement of the victim constituted kidnaping, even when it was undertaken solely to facilitate commission of another crime. A typical example -was People v. Florio (1950) 301 N.Y. 46 [92 N.E.2d 881, 17 A.L.R.2d 993], in which the defendants, pursuant to a prearranged plan to satisfy their sexual desires, lured a young woman into their automobile and drove from Manhattan to an isolated place in Queens, where they raped her. The defendants were convicted of kidnaping as well as assault and rape, and the New York Court of Appeals affirmed. While conceding that ‘ ‘ the detention inevitably occurring during the immediate act of commission of such a crime as rape or robbery would not form a basis for a separate crime of kidnapping, ’ ’ the court held that such a separate crime had been committed in the circumstances of that case. (Id. at p. 882.) In so doing, the court relied on two earlier New York cases in which the victim had been confined in an automobile “for a short time” and for “less than two minutes.” (Id. at pp. 882-883.)

In the landmark decision of People v. Levy (1965) 15 N.Y. 2d 159 [256 N.Y.S.2d 793, 204 N.E.2d 842], however, the Court of Appeals rejected its earlier construction of the kid-naping law. There the defendants accosted a husband and wife as they pulled up in front of their house and forced them at gunpoint back into their car; one defendant drove the vehicle aimlessly for 27 blocks, consuming 20 minutes of time, while the other robbed the victims of their jewelry and wallet. The defendants were convicted of kidnaping as well as first degree robbery and possession of a pistol. The Court of Appeals reversed the judgments on the kidnaping counts and directed dismissal of those counts as a matter of law.

The court recognized that “Kidnapping is, by contemporary statutory standards, one of the most serious of crimes. In our era this crime has assumed particularly reprehensible forms.” (204 N.E.2d at p. 843;) But the court then turned to fundamentals, observing that “In basic concept the crime of kidnapping envisages the asportation of a person under restraint and compulsion. Usually the complete control of the person and the secrecy of his location are means of facilitating extortion.” (Id. at pp. 843-844.) Noting the breadth of the statutory definition of kidnaping, the court reasoned that it “could literally overrun several other crimes, notably robbery and rape, and in some circumstances assault, since detention and sometimes confinement, against the will of the victim, frequently accompany these crimes. Some of the definitions could apply alike to kidnapping and abduction. It is a common occurrence in robbery, for example, that the victim be confined briefly at gunpoint or bound and detained, or moved into