v. Pratarelli, 2020 COA 33

Background

Marcello Pratarelli and his wife separated and used an informal, alternating parenting arrangement (no custody order).
On Nov. 7, 2016, Pratarelli picked up their 3‑year‑old daughter from daycare, she fell asleep in his car, and he later drove to his estranged wife’s home and assaulted her with a stun gun.
After the assault he drove away with the still‑sleeping daughter and ultimately traveled to Mexico; the wife negotiated the child’s return and came back with the child.
Pratarelli was arrested and charged with crimes related to the assault and later charged with first‑degree kidnapping of his daughter; a jury convicted him of first‑degree kidnapping (as to the child) and other offenses.
The Court of Appeals vacated the first‑degree kidnapping conviction for the child (insufficient evidence of “forcibly seizes and carries”) and affirmed the remaining convictions; remanded with directions to enter acquittal on that count.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether evidence proved the statutory element “forcibly seizes and carries” for first‑degree kidnapping	People argued Pratarelli’s act of putting the child in the car and driving her to Mexico showed he used power and thus forcibly seized and carried her	Pratarelli argued there was no evidence he used or threatened force against the child; he had legal custody and the child was asleep and not resisting	Vacated conviction — “forcibly” requires use or threat of power, violence, or pressure against a person and against opposition or resistance; no such evidence here
Whether a custodial parent can be guilty of kidnapping absent a custody order	People implicitly relied on statutory application to this case	Pratarelli relied on parental fundamental rights and Armendariz: absent court order parents share custody and a custodial parent cannot be convicted of kidnapping or second‑degree kidnapping for taking their own child	Court applied Armendariz principles: parental custody rights limit criminal liability; here parental rights undermined forcible‑seizure proof
Whether the court should enter second‑degree kidnapping as a lesser included offense	People asked the court to replace vacated first‑degree kidnapping with second‑degree kidnapping	Pratarelli argued Armendariz precludes convicting a custodial parent of second‑degree kidnapping absent custody order	Denied — Court declined to substitute second‑degree kidnapping because Armendariz bars convicting a custodial parent under those circumstances
Whether the district court violated defendant’s right to present a mental‑condition defense (denials of continuance, exam, and restrictions on testimony)	People maintained the court properly managed scheduling and procedure; no prejudice shown	Pratarelli argued denials prevented investigation of cerebral small vessel disease and impaired his defense; sought continuances, a court‑ordered exam, and to testify about memory/cognition	Denial of additional continuance and exam not an abuse of discretion; defendant had prior notice and time to investigate, failed to timely seek expert notice, journal was admitted and documented complaints, any testimonial restriction was harmless

Key Cases Cited

Troxel v. Granville, 530 U.S. 57 (recognizing parents’ fundamental right to care, custody, and control of their children)
Armendariz v. People, 711 P.2d 1268 (Colo. 1986) (absent custody order, parents share custody and a custodial parent generally cannot be convicted of kidnapping)
Commonwealth v. Beals, 541 N.E.2d 1011 (Mass. 1989) (absent custody order, a parent does not commit kidnapping by taking exclusive possession of their child)
Lee v. People, 127 P. 1023 (Colo. 1912) (kidnapping conviction upheld where parent took child in violation of custody decree)
People v. Metcalf, 926 P.2d 133 (Colo. App. 1996) (affirming kidnapping conviction where parent seized child in violation of custody order)
Turbyne v. People, 151 P.3d 563 (Colo. 2007) (court may not add elements to a statute beyond the legislature’s text)