Arias

*1430 Opinion

Defendant, a member of the Rebels street gang, went on a mission late one evening to locate and “blast” a member of a rival gang—The Magicians Club (TMC). In an effort to find TMC gang members, defendant summoned 17-year-old Wanner Luna out of his apartment and pointed a gun at him. Defendant asked him whether he was a member of TMC and if he knew the location of TMC gang members. Luna denied membership in the rival gang. Nevertheless, defendant, still holding the gun, walked behind Luna for approximately 15 feet to Luna’s apartment, so that defendant could search for TMC gang members. Defendant left the apartment after finding no TMC gang members. Defendant then encountered Byron Delcid in the hallway. Defendant pointed the gun at him and asked if he was a TMC gang member. Delcid said he was not a member of the gang, whereupon defendant ordered him into an apartment and left the scene.

A jury convicted defendant of kidnapping (Pen. Code, § 207, subd. (a)) 1 and two counts of assault with a semiautomatic firearm (§ 245, subd. (b)). In addition, the jury found defendant used a firearm in the commission of the offenses (§ 12022.53, subd. (b) [kidnapping]; § 12022.5,…

Wanner Luna, the purported victim of a kidnapping, testified that his former juvenile camp dominate showed up at his apartment house late one night drunk, looking for gang members and waving a gun; this frightened Lima. After defendant entered the building, he and Luna walked 15 feet down a hallway and through the open door to Luna’s apartment. Luna did not testify that defendant forced him into the apartment; rather, he repeatedly stated that they walked together down the hallway and into the unit. From these circumstances, coupled with the fact that defendant walked behind Luna, the majority infers that defendant made Luna walk to his apartment at gunpoint. Because I conclude that this inference is not reasonable in light of the evidence presented at trial, I cannot concur in affirming the kidnapping conviction. I also conclude that the majority has erroneously applied the asportation standard announced in *1437 People v. Martinez (1999) 20 Cal.4th 225 [ 83 Cal.Rptr.2d 533 , 973 P.2d 512 ]. I therefore respectfully dissent.

“ ‘The standard applied by a trial court in ruling upon a motion for judgment of acquittal pursuant to [Penal Code] section 1118.1 is the same as the…