Once police officer’s transportation of an arrested person is no longer for legitimate law enforcement objectives, it may transmute into a kidnapping. Alvarez, while on patrol in his official capacity as a West Sacramento police officer, induced five women to provide him sexual favors to avoid being taken to jail. He was convicted of multiple counts of aggravated kidnapping, and oral copulation/rape under threat of authority and by duress. Multiple sentencing enhancements, including kidnapping in the commission of the offenses, were sustained. On appeal, Alvarez raised numerous claims. With respect to the kidnapping counts and enhancements, Alvarez claimed that some of the victims were not kidnapped because they were under lawful arrest at the time of the movement. Held: Affirmed in part; reversed in part. Pertinent to this case, Penal Code section 207, subdivision (a) defines kidnapping as “forcibly, or by any other means of instilling fear, steal[ing] or tak[ing], or hold[ing], detain[ing], or arrest[ing] any person in this state, and carr[ying] the person into another country, state, or county, or into another part of the same county . . . .” However, “any person acting under” Penal Code section 834 (defining a legal arrest) is not guilty of kidnapping. (Pen. Code, § 207, subd. (f).) After analyzing sections 207 and 834, the Court of Appeal concluded that “once the transportation [during an arrest] is no longer for lawful law enforcement objectives, it may transmute into a kidnapping.” At the point where Vasquez sought to obtain sexual favors from some of the women in his patrol car in exchange for their release, he was no longer “acting under” a lawful arrest but was acting to pursue his own interests. As a result, the lawful arrest defense did not apply. Alvarez also failed to show that some of the victims freely consented to being transported in his patrol car.

Alvarez’s claim of lawful arrest in defense of the kidnapping charge and kidnapping enhancement fails where the arrest was illegal at the outset. As to victim Rochelle G., who was stopped for being under the influence of a narcotic, Alvarez conducted a field sobriety test during which he placed his hands inside her bra and patted her crotch. Incident to a lawful arrest, an officer may conduct a search for evidence of a crime or to prevent destruction of evidence (People v. Tom (2014) 59 Cal.4th 1210), or for officer safety (Riley v. California (2014) 134 S.Ct. 2473). But in this case, there was no evidence Rochelle G. was armed or was concealing evidence on her person. Therefore, Alvarez’s search of her was unreasonable and her arrest was not conducted in a lawful manner, rendering the lawful arrest defense to kidnapping inapplicable. [Editor’s Note: A number of Alvarez’s convictions were reversed in the unpublished portion of the opinion.]

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/C076235.PDF