Opinion
The crime of kidnapping requires the unlawful movement of the victim by force or fear. California courts have wrestled with the degree of force necessary to establish the kidnapping of an unresisting infant or young child, and our Supreme Court has concluded that the requisite force “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)
Factual Background
The nine-year-old victim testified that on the morning of July 9, 2004, she saw defendant outside the home of her neighbors, minors Desiree and Dillon. When she asked defendant, whom she knew, if Desiree
After walking a short distance, they stopped. For five to 10 minutes while the victim followed him, defendant appeared to be looking for her neighbors. Defendant then placed one hand on the back of the victim’s neck and the other over her mouth and said, “Don’t scream or I’ll break your neck.” The victim lay down on the ground and defendant started choking her. Before she lost consciousness, the victim urinated on herself. When she regained consciousness, she was holding a wet sock in her hand and was unable to locate one of her shoes. She put the sock back on her foot and walked down the trail toward her house.
Craig L. testified he saw the victim walking with her head down, leaves in her hair, a dirty shirt and one shoe missing. When Craig L. asked if she had fallen off her bicycle, she mumbled that her bike had broken the previous week. She then moved her hair back from her face and he noticed a gash over her eye. He asked her whether she was alone and whether she had been there all night. To these questions she answered in a monotone, “I
Craig L. took the victim to the Brooktrails Fire Department. The fire chief noted she was extremely confused and had blood on her face and a considerable amount of bruising. He contacted the sheriff’s department and two deputies responded and met with the victim. Although she continued to appear disoriented, she was able to tell them her name, date of birth and address.
The victim was eventually transported to Howard Hospital where she was examined. As a result of the attack, she suffered abrasions of her face, burst capillaries in her eye, swelling of her lip and around her eye, and abrasions with small burst blood vessels along the back of her neck consistent with strangulation.
On October 7, 2004, the victim and several law enforcement officials took 15 to 20 minutes to walk the path taken by the victim during the crime.
Defendant’s Interview with Police
On the day of the incident, the victim reviewed a photographic lineup and identified defendant as her assailant. When Detectives Alvarado and Bailey interviewed defendant after his arrest, he told them he slapped and punched the victim a couple of times because she “was real mean” to his son and disrespected him by telling him to “fuck off and shit.” When the victim started screaming, he took her “up into the woods . . . and then slamm[ed] her down,” took one shoe and sock off her and put the sock in her mouth to quiet her. Although defendant claimed he did not remember what happened next, he ultimately said he “apparently . . . choked” the victim. Before leaving the area, he threw branches and leaves on top of her. He believed he may have killed the victim.
The jury convicted defendant of attempted murder with deliberation and premeditation (Pen. Code, §§ 664, 187, 189) 2 (count one) and kidnapping (§§ 207, subd. (a), 208, subd. (b)) (count two) and found true a special allegation that defendant inflicted great bodily injury during the commission of the kidnapping (§ 12022.7, subd. (a)). 3 On the attempted murder conviction, the court sentenced defendant to a prison term of life with the possibility of parole and imposed a consecutive term of 14 years for the kidnapping. 4 On appeal, defendant argues (1) the court erred in denying his motion under section 1118.1 for judgment of acquittal on the kidnapping charge; (2) imposing separate punishments for the kidnapping and attempted murder convictions violates section 654; and (3) there was insufficient evidence to support a finding that the attempted murder was committed with premeditation and deliberation. We reject each contention and affirm.
Discussion
I. The Trial Court Properly Denied Defendant’s Section 1118.1 Motion
At the close of the prosecution’s case, defendant moved under section 1118.1 for an entry of judgment of acquittal on the kidnapping and attempted murder charges. The court denied defendant’s motion as to both offenses; defendant
Section 1118.1 provides in relevant part: “In a case tried before a jury, the court on motion of the defendant. . . , at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the
entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal.”
5
In ruling on a motion for acquittal under this provision, the trial court must consider whether from the evidence presented, including all reasonable inferences to be drawn therefrom, there is any substantial evidence to support a finding of each element of the offense charged.
(People
v.
Coffman and Marlow
(2004)
We employ the same test on appeal: We review the whole record in the light most favorable to the judgment below to determine whether there is evidence which is reasonable, credible and of solid value, such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. This inquiry does not require the reviewing court to ask itself whether
it
believes the evidence established guilt beyond a reasonable doubt but whether, after viewing the evidence in the light most favorable to the prosecution,
any
rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
(People v. Cuevas
(1995)
In our review, we apply the corpus delicti rule.
“ 1 “ ‘The corpus delicti of a crime consists of two elements!:] the fact of the injury or loss or harm, and the existence of a criminal agency as its cause.’ ” ’ [Citation.] ‘In any criminal prosecution, the corpus delicti must be established by the prosecution independently from the extrajudicial statements, confessions or admissions of the defendant.’ [Citations.] Such independent proof may consist of circumstantial evidence [citations], and need not establish the crime beyond a reasonable doubt [citations].
“The purpose of the corpus delicti rule is to assure that ‘the accused is not admitting to a crime that never occurred.’ [Citation.] The amount of independent proof of a crime required for this purpose is quite small; we have described this quantum of evidence as ‘slight’ [citation] or ‘minimal’ [citation]. The People need make only a prima facie showing ‘ “permitting the reasonable inference that a crime was committed.” ’ [Citation.] The inference
need not be ‘the only, or even the most compelling, one . . . [but need only be] a
reasonable
one .. ..’ [Citation.]”
(People
v.
Jones
(1998)
“Generally, to prove the crime of kidnapping, the prosecution must prove three elements: (1) a person was unlawfully moved by the use of physical force or fear; (2) the movement was without the person’s consent; and (3) the movement of the person was for a substantial distance. (§ 207, subd. (a).)”
6
(People v. Jones
(2003)
In In re Michele D., the defendant, who was 15 years old, accompanied a woman and her 12-month-old daughter, Cameron, to a market. The defendant and the mother alternated pushing the baby in her stroller. At some point the defendant and the mother headed to different areas of the store, with defendant pushing Cameron in the stroller. When the defendant did not return, the police were called and found the defendant and Cameron approximately a mile and a half away. The defendant was accused of kidnapping. (In re Michele D., supra, 29 Cal.4th at pp. 603-604.) The Supreme Court recognized that the defendant’s conduct did not satisfy the literal requirements of the kidnapping statute in that “force,” as that term is conventionally understood, was not used to effect the illegal movement. Nevertheless, the court held, “[I]t is settled that the language of a statute should not be given a literal meaning if doing so would result in absurd consequences that the Legislature did not intend. . . . [Citation.] The fact that the Legislature may not have considered every factual permutation of kidnapping, including the carrying off of an unresisting infant, does not mean the Legislature did not intend for the statute to reach that conduct.” (Id. at p. 606.) Recognizing that no prior California case had established the “quantum of force necessary to establish the force element of kidnapping in the case of an infant or small child,” the court set that standard as follows: “[T]he 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.” (Id. at p. 610.) This rule is now codified in section 207(e).
Defendant presents two arguments for distinguishing the facts of our case from the acts criminalized in section 207(e). First, he argues section 207(e) pertains only to “infants and small children,” and not to the nine-year-old victim in this case. Second, he contends that In re Michele D. “retained an element of force,” “a physical talcing,” which is absent here.
Parnell
v.
Superior Court
(1981)
The same reasoning applies here. A nine year old certainly qualifies as a “young child,”
7
and, due to defendant’s deception, the victim was no more able to appreciate her peril than the
Parnell
victim. Moreover, once the victim encountered defendant at the park entrance, he directed her to a wooded area, physically escorting her to this remote location, where he tried to murder her. This is not a situation where an adult engages in a deception to persuade a child to meet him later in a secluded spot and commits a crime when the victim appears. Section 207, subdivision (b) proscribes the movement of a child under the age of 14 procured by deception alone, but only
when that deception is for the purpose of committing any act defined in section 288.
8
Section 207(e) requires a taking and that component is satisfied where, as here, the defendant relies on deception to obtain a
People v. Oliver, supra,
Defendant argues, unpersuasively, that Oliver and Parnell should be distinguished because each involved a physical taking: In Oliver, the accused held the child’s hand and, in Parnell, a vehicle was utilized to transport the child. But, since the children in Oliver, Parnell and here did not resist, the use of the car in Parnell and the handholding in Oliver are simply immaterial.
Thus, under section 207(e), evidence that a defendant deceives a young child into walking with him a substantial distance away from public view, leaving her particularly vulnerable to his attack, is sufficient to satisfy the corpus delicti rule in a kidnapping case. The evidence submitted by the prosecution in its case-in-chief justified denial of defendant’s motion for judgment of acquittal without consideration of his statement.
II., III. *
Disposition
The judgment is affirmed.
Jones, P. J., and Gemello, J., concurred.
Appellant’s petition for review by the Supreme Court was denied February 14, 2007, S148557.
Notes
The victim testified that she did not tell Craig L. what happened because she did not feel safe.
All undesignated section references are to the Penal Code.
The jury also found that the victim was under the age of 14.
The court also imposed a two-year concurrent term for defendant’s violation of probation.
Section 1118.1 reads in full as follows: “In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal. If such a motion for judgment of acquittal at the close of the evidence offered by the prosecution is not granted, the defendant may offer evidence without first having reserved that right.”
Section 207, subdivision (a) defines kidnapping in relevant part as follows: “Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping.”
Section 207(e) is expressly limited to situations where the victim of the alleged kidnapping is an “unresisting infant or child.” The language comes directly from
In re Michele D.,
but one can plausibly argue that
In re Michele D.
only intended the rule to apply to infants and young children, because it articulated the rule in response to the need for a standard setting the level of force necessary to establish a kidnapping of an “infant or small child.”
(In re Michele D., supra,
Section 207, subdivision (b) provides: “Every person, who for the purpose of committing any act defined in Section 288, hires, persuades, entices, decoys, or seduces by false promises, misrepresentations, or the like, any child under the age of 14 years to go out of this country, state, or county, or into another part of the same county, is guilty of kidnapping.”
In addition, section 207, subdivision (c) provides: “Every person who forcibly, or by any other means of instilling fear, takes or holds, detains, or arrests any person, with a design to take the person out of this state, without having established a claim, according to the laws of the United States, or of this state, or who hires, persuades, entices, decoys, or seduces by false promises, misrepresentations, or the like, any person to go out of this state, or to be taken or removed therefrom, for the purpose and with the intent to sell that person into slavery or involuntary servitude, or otherwise to employ that person for his or her own use, or to the use of another, without the free will and consent of that persuaded person, is guilty of kidnapping."
See footnote, ante, page 775.