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Name: People v. Lewis (2023) 14 Cal.5th 876
Case #: S272627
Court: CA Supreme Court
District CalSup
Opinion Date: 06/22/2023

Majority opinion: Chief Justice Guerrero authored the opinion of the Court, in which Justices Corrigan, Liu, Kruger, Groban, Jenkins, and Evans concurred.
Concurring opinion: Justice Kruger filed a concurring opinion, in which Justice Groban concurred.

The force requirement for kidnapping is relaxed when the victim is an intoxicated adult—a defendant acting with an illegal intent or purpose may be liable for kidnapping if he uses physical force to move a person who is unable to consent due to intoxication. A jury convicted defendant of raping S.D. while she was intoxicated and kidnapping S.D. to commit rape. The evidence showed defendant met S.D. at bar and drove her away in his car when she was extremely intoxicated. On appeal, the Court of Appeal agreed with defendant that the trial court erred in instructing the jury on kidnapping by deception, and further concluded that the evidence was insufficient to support the force or fear element of kidnapping. The California Supreme Court granted review to consider the nature of the force or fear element of kidnapping in the context of an intoxicated adult victim. Held: Court of Appeal judgment reversed and case remanded. Kidnapping to commit rape is a type of aggravated kidnapping. It builds on the definition of kidnapping in Penal Code section 207, which includes an element of force or fear. Ordinarily, the force element requires something more than the quantum of physical force necessary to effect movement of the victim from one location to another. However, the force requirement is relaxed in the context of infants and children, who are incapable of consent. While children and adults who are mentally impaired due to intoxication may not be similar in all respects, they are similarly vulnerable to kidnapping and equally unable to consent to being moved, so the same relaxed standard of force should apply. Thus, the court concluded that “a defendant acting with an illegal intent or purpose may be liable for kidnapping under section 207 if he or she uses physical force to take and carry away a person who, because of intoxication or other mental condition, is unable to consent to the movement.” The quantum of force required is no greater than the amount of physical force required to take and carry the victim away a substantial distance.

Even assuming the jury instructions did not adequately convey the relaxed force requirement to the jury, any error was harmless beyond a reasonable doubt. The jury was instructed that defendant was guilty of kidnapping if he “used physical force or deception” to take and carry away S.D. In light of the Attorney General’s concession on the issue, the court assumed without deciding that the trial court erred by including deception as an alternate theory of kidnapping. This assumed error is a form of alternative-theory error because it is premised on the idea that the jury may have found defendant guilty based on an invalid theory of deception rather than a valid theory of force; thus, it is subject to Chapman review (as described in Aledamat). By its verdict, the jury found defendant moved or made S.D. move a substantial distance, beyond that merely incidental to the commission of rape. Further, it was undisputed at trial that defendant used some quantum of physical force to accomplish that movement, as he admitted driving S.D. in his car. The jury also found the remaining elements of the offense, including that defendant had the requisite illegal intent. Any rational juror who made these findings would, based on the evidence at trial, have likewise found defendant guilty of kidnapping under the relaxed force standard beyond a reasonable doubt. In other words, it would be impossible, based on the evidence, for a jury to make the findings reflected in its verdict without also making the findings that would support a valid theory of liability. The court reversed the judgment of the Court of Appeal, and remanded for further proceedings (including resolution of appellant’s unresolved sufficiency of the evidence claims). [Editor’s Note: In a concurring opinion, Justice Kruger noted that the because the Attorney General conceded it was error to instruct on a kidnapping-by-deception theory, the majority opinion does not address it. However, this silence is not an endorsement. “Whether the kidnapping of young or impaired victims can be accomplished by deception—or, for that matter, by any other means not involving technical uses of physical force—remains an open and significant question.”]