Avila

I. Introduction

Defendant, Erick Alejandro Avila, appeals from his conviction of: the forcible rape of Jacqueline M. (Pen. Code, § 261, subd. (a)(2)); the kidnapping with intent to rape Jacqueline M. (§ 208, subd. (d)); and the forcible rape of a second victim. With respect to the forcible rape of Jacqueline M., the jury found to be true the special allegation defendant kidnapped her for the purpose of committing rape. (§ 667.8, subd. (a).) Defendant contends the trial court should have instructed the jury that movement which substantially increased the risk of harm to the victim over and above that necessarily present in the crime of rape itself was an element of the kidnapping with intent to rape charge. While this appeal was pending, but after defendant filed his opening brief, the California Supreme Court held in People v. Rayford (1994) 9 Cal.4th 1, 22 [ 36 Cal.Rptr.2d 317 , 884 P.2d 1369 ], that the standard of asportation for section 208, subdivision (d) kidnapping is as follows in pertinent part: “Thus the standard of asportation for section 208(d) kidnapping requires that the movement of the victim be for a distance which is more than that which is merely…