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Kidnapping to Commit Rape Based on the Use of Deception to Take Intoxicated Adult Victim

Case Name: People v. Lewis (2023) __ Cal.5th __
Case #: S272627
Last Updated: June 22, 2023

Can a defendant be convicted of kidnapping to commit rape (Pen. Code, § 209, subd. (b)(1)) based on the use of deception, as an alternative to force or fear, to take and carry away an intoxicated adult victim?


A jury convicted Lewis of raping S.D. while she was intoxicated (Pen. Code, § 261, subd. (a)(3)) and kidnapping S.D. to commit rape (§ 209, subd. (b)). Lewis appealed. As relevant here, he argued the trial court erred by instructing the jury that he could be convicted of kidnapping to commit rape based on the theory that he accomplished the kidnapping by deception rather than by force or fear. Lewis further argued the evidence at trial did not support the required element of force or fear, thus barring retrial on the kidnapping offense. A divided Court of Appeal agreed with Lewis. The Supreme Court granted review to examine the force or fear element of kidnapping in the context of an intoxicated adult victim. The court concluded that an unresisting intoxicated person who is unable to legally consent is vulnerable to victimization, and the Legislature must have intended the relaxed standard of force that applies where the victim is an infant or small child applies to intoxicated individuals as well. Under this relaxed standard, “the amount of force required to kidnap an unresisting infant or child is simply the amount of physical force required to take and carry the child away a substantial distance for an illegal purpose or with an illegal intent.” (In re Michele D. (2002) 29 Cal.4th 600, 610.)

In his petition for review, the Attorney General did not raise the underlying instructional error found by the Court of Appeal, and the parties have not briefed the issue. Thus, although the Attorney General agrees with the Court of Appeal that deception is an invalid theory of kidnapping even for an intoxicated adult victim, we do not need to consider that question here. Even assuming this instructional error, we conclude it was harmless beyond a reasonable doubt. By its verdict, the jury found that Lewis moved or made S.D. move a substantial distance, beyond that merely incidental to the commission of rape, and it was undisputed at trial that Lewis used some quantum of physical force—he admitted driving S.D. in his car—to accomplish that movement. The jury also found the remaining elements of the offense, including that Lewis had the requisite illegal intent. Any rational juror who made these findings would, based on the evidence at trial, have likewise found Lewis guilty of kidnapping under the relaxed force standard beyond a reasonable doubt. (In re Lopez (2023) 14 Cal.5th 562, 589 [306 Cal. Rptr. 3d 348, 526 P.3d 88] (Lopez).) 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.” (Id. at p. 568.)

Because the Court of Appeal found prejudicial instructional error, it was unnecessary for it to consider Lewis’s other appellate contentions. We therefore reverse the judgment of the Court of Appeal but remand with directions to conduct further proceedings, including addressing any contentions that remain unresolved by this opinion.

This case was decided on 6/22/2023. Chief Justice Guerrero authored the opinion of the court, in which Justices Corrigan, Liu, Kruger, Groban, Jenkins, and Evans concurred. Justice Kruger filed a concurring opinion, in which Justice Groban concurred.


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