Martinez

*229 Opinion

We granted review in this case to decide whether Penal Code 1 section 208, subdivision (b) (section 208(b)), which prescribes a higher sentence for kidnapping a person under the age of 14, is a separate crime or a punishment provision, and what the standard of asportation is for that statute. The Court of Appeal determined section 208(b) is a separate offense and applied a modified standard of asportation for aggravated kidnapping (see § 209, subd. (b)(1)).

Regardless whether section 208(b) is a punishment provision or a separate crime, we conclude it has the same asportation requirement as simple kidnapping, and articulate what factors are appropriate to making that determination. Because, as a result, we overrule People v. Caudillo (1978) 21 Cal.3d 562 [ 146 Cal.Rptr. 859 , 580 P.2d 274 ] (Caudillo), we do not apply the holding retroactively to defendant. We further conclude the evidence was insufficient to support the verdict for simple kidnapping; however, it shows defendant is guilty of attempted kidnapping of a person under the age of 14. We therefore reverse the judgment of the Court of Appeal and modify the conviction accordingly.

I. Facts and Procedural…

The majority reach out unnecessarily in this matter to revise the asportation standard for simple kidnapping. Although they do not apply the new rule to this case, they determine that, in future cases, the trier of fact may consider factors other than the actual distance a victim was moved in determining whether such movement was “substantial.” I strongly disagree *242 that consideration whether, for example, movement resulted in a “changed environment” or “any increased risk of harm” (maj. opn., ante, at p. 236) can substitute for the basic requirement under Penal Code section 207 that a defendant forcibly carried the person “into another country, state, or county, or into another part of the same country.” Our long-standing precedents (see, e.g., People v. Brown (1974) 11 Cal.3d 784 [ 114 Cal.Rptr. 426 , 523 P.2d 226 ] and People v. Caudillo (1978) 21 Cal.3d 562 [ 146 Cal.Rptr. 859 , 580 P.2d 274 ]), holding that simple kidnapping involves movement of a substantial physical distance, should not be overruled in favor of the diluted, ambiguous standard adopted by the majority.

In my view, existing law in point is clear and correct. If a victim is forcibly moved only a slight…