THE PEOPLE, Plaintiff and Respondent, v. RODNEY TAUREAN LEWIS, Defendant and Appellant.
S272627
Supreme Court of California
June 22, 2023
Fourth Appellate District, Division Three G060049; Santa Clara County Superior Court B1366626
Justice Kruger filed a concurring opinion, in which Justice Groban concurred.
Opinion of the Court by Guerrero, C. J.
A jury convicted defendant Rodney Taurean Lewis of raping S.D. while she was intoxicated (
Lewis appealed. As relevant here, he contended 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 contended 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. (People v. Lewis (2021) 72 Cal.App.5th 1, 5 (Lewis).) The majority concluded that kidnapping by deception was an invalid legal theory, the trial court erred by including that theory in its instructions, the ordinary force or fear element of kidnapping applied even to intoxicated victims like S.D., and the evidence at trial was insufficient to support that element. (Id. at pp. 13–19.) One justice disagreed and would have affirmed the judgment on the ground that the ordinary force or fear element did not apply where the victim is intoxicated and unable to legally consent to movement. (Id. at pp. 31–32 (conc. & dis. opn. of Bedsworth, J.).)
We granted review to examine the force or fear element of kidnapping in the context of an intoxicated adult victim. We have previously interpreted the kidnapping statute to incorporate a relaxed standard of force where the victim is an infant or small child. (In re Michele D. (2002) 29 Cal.4th 600, 610 (Michele D.).) We reasoned that infants and children are too young to give their consent to being moved and are therefore “in a different position vis-à-vis the force requirement for kidnapping than those who can apprehend the force being used against them and resist it.” (Ibid.) Thus, “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.” (Ibid.) We conclude that an unresisting intoxicated person who is unable to legally consent is similarly vulnerable to victimization, and the Legislature must have intended the relaxed standard of force to apply to such individuals as well.
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
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.
I. FACTUAL AND PROCEDURAL BACKGROUND
During one early morning, a family attending a youth sports game in Palo Alto discovered a young woman lying in some landscaping adjacent to a parking lot. The woman, later identified as S.D., was unconscious and wrapped in a blanket. The family called 911 and waited for emergency personnel to arrive.
Fire department paramedics responded to the scene. S.D. “appeared to be passed out, and right next to a loud freeway.” A paramedic pulled back the sheet and found that S.D.’s
Police officers responded as well. One officer tried to speak to S.D., but she had a difficult time answering questions. S.D. did not understand where she was or what was going on. Her eyes were “very glassy,” and she had a dazed look.
The officer eventually accompanied S.D. to the hospital. S.D. became more coherent as time passed. She explained to the officer that she had been at a bar called “Rudy’s” the night before and had lost her cell phone. A stranger came up to her and said he knew who had her phone. The stranger appeared to call someone on his own cell phone, and then he suggested they get a drink. They went up to the bar, and S.D. drank some sort of brown liquid in a whiskey glass.
At the hospital, nurses collected blood and urine samples and performed a sexual assault examination on S.D. S.D. told one of the nurses she had pain in her vagina, and she thought it was likely she had had sexual intercourse. But, S.D. said, “I don’t remember a single thing.” The nurse noted various bruises, abrasions, and other physical indicators which were consistent with S.D.’s belief that she had vaginal intercourse, but not necessarily indicative of sexual assault. S.D.’s blood test
Meanwhile, a police detective made an emergency request to S.D.’s cell phone company and obtained the location of her cell phone, which was within a few yards of Rudy’s. The detective went to Rudy’s, met with the owner, and recovered the phone. The owner and the detective also reviewed surveillance video from inside the bar. (There were no security cameras outside the bar.) Using the video footage, police detectives were able to single out the man who interacted with S.D. They matched the footage to the man’s drink purchases and credit card receipts. The receipts identified the man as Rodney Lewis, the defendant here.
At trial, S.D. testified about her memory of the night. She was working at the time as an au pair in a city south of Palo Alto. She was 22 years old. S.D.’s employers had gone on vacation, so she invited a young man over for dinner. They shared a bottle of wine, and after dinner S.D.’s date suggested they go out somewhere. They took a taxi to Rudy’s, and S.D.’s date ordered drinks. S.D. thought her drink was too strong, like “pure alcohol,” so she only drank around a third of it. S.D. and her date went to the dance floor. At some point, S.D. realized she had lost her phone and walked around the bar looking for it. She felt “somewhat tipsy” but in control. Lewis approached S.D. and asked what she was doing. S.D. said she had lost her phone.
S.D.’s date generally corroborated S.D.’s testimony. They had dinner, shared a bottle of wine, and went to Rudy’s. He bought a drink for each of them. Each drink was essentially four shots of liquor with a small amount of soda. He recalled that S.D. lost her cell phone, they were separated, and they met up again after S.D. met Lewis. S.D.’s date was becoming intoxicated, and he lost sight of S.D. He remembered looking for S.D. and eventually leaving Rudy’s. He took a taxi back to S.D.’s house, but she was not there, so he slept in his car.
The surveillance video depicts most of the time S.D., her date, and Lewis spent at Rudy’s. Lewis arrives alone around 10:45 or 11:00 p.m. He never appears to meet up with anyone, though he tries to talk to and dance with a couple of women. S.D. and her date arrive at around 11:15 p.m. They sit down together in the front bar area. S.D. and her date eventually move to the dance floor and dance together for a while. At approximately 12:30 a.m., S.D. apparently realizes she lost her cell phone, and S.D. and her date return to the front bar area. They separate, and S.D.’s date appears to be speaking with various people. A couple of minutes later, the video captures S.D. and Lewis talking in a different bar area. They walk up to the bar, and Lewis orders two drinks, as well as a shot for S.D. While they wait, Lewis puts his phone up to his ear. S.D. and Lewis lean close to one another; S.D.’s date stands behind them
The bartender who served Lewis had tended bar for 14 years and undergone regular training sponsored by the police department to spot dangerous levels of intoxication in patrons. She remembered interacting with Lewis and S.D. When Lewis attempted to order two more shots, the bartender believed S.D. was too drunk and should not be drinking any more. S.D. was leaning heavily on the bar, “swerving,” and “just didn’t seem coherent.” The bartender recalled telling Lewis, “[L]ook at her. She can barely stand up.” Lewis started arguing with the bartender and claimed the shots were not for S.D. Lewis said he knew the owners of the bar and threatened to have the bartender fired. The bartender decided to trust Lewis and serve the shots. She did not see who eventually drank them.3
A detective interviewed Lewis a few days after S.D. was found. Lewis told the detective he was at Rudy’s waiting for a friend and ended up meeting S.D. S.D. asked Lewis if he had found her phone. Lewis “thought maybe he knew someone that may have found a phone,” and they went outside. Lewis said S.D. was “pretty drunk” and asked for a ride home. In Lewis’s car, S.D. was “passing out” but she eventually awoke, started “freaking out,” and demanded to leave the car. Lewis said he exited the freeway, tried to convince S.D. to stay, but eventually let her out in a driveway. Lewis initially denied having sex with S.D. But when the detective told Lewis she had a warrant to collect a DNA sample, Lewis changed his story. He admitted they had sex, and he claimed it happened in his car on a side street in Palo Alto. Lewis still maintained that S.D. demanded to be let out of his car afterward. He said he gave her a blanket that he happened to have and left her outside.
A wireless communications expert reviewed data from Lewis’s cell phone provider to determine Lewis’s location after he left Rudy’s with S.D. Lewis made two short outgoing phone calls to his girlfriend at the time and received a third incoming call from her. The third call, which lasted approximately 15 minutes, was initiated at 1:10 a.m. The cell tower data associated with these calls was consistent with a route directly from Rudy’s to Lewis’s home north of Palo Alto. It was not consistent with a route from Rudy’s to the parking lot where S.D. was found.
Lewis testified in his own defense. He said he went to Rudy’s that evening to meet a friend, but the friend never
The trial court instructed the jury on the elements of the charged offenses. For the offense of rape of an intoxicated woman, the instructions required the prosecution to prove (1) “the defendant had sexual intercourse with a woman,” (2) “he and the woman were not married to each other at the time of the intercourse,” (3) “the effect of an intoxicating or controlled
For the offense of kidnapping to commit rape, the instructions required the prosecution to prove (1) “the defendant intended to commit rape of a woman while intoxicated”; (2) “acting with that intent, the defendant used physical force or deception to take and carry away an unresisting person with a mental impairment”; (3) “acting with that intent, the defendant moved the person with a mental impairment a substantial distance”; (4) “the person with a mental impairment was moved or made to move a distance beyond that merely incidental to the commission of a rape of a woman while intoxicated”; (5) “when that movement began, the defendant already intended to commit rape of a woman while intoxicated”; (6) S.D. “suffered from a mental impairment that made her incapable of giving legal consent to the movement”; and (7) “the defendant knew or reasonably should have known that [S.D.] was a person with a mental impairment.” The instructions went on to state, “A person with a mental impairment may include [an] unconscious or intoxicated adult[] incapable of giving legal consent. A person
In closing arguments, the prosecutor contended that Lewis deliberately plied S.D. with alcohol and Xanax, drove her to his house, and raped her. Afterward, Lewis drove S.D. back to Palo Alto and left her passed out in the parking lot, where she was found the next day. The prosecutor argued that Lewis kidnapped S.D. using both deception and force. Lewis deceived S.D. by claiming his friend had recovered her phone, and he used force against S.D. by taking her forearm and guiding her out of the bar. By contrast, defense counsel argued that S.D. was not intoxicated and she freely consented to sex with Lewis. S.D. voluntarily left the bar with Lewis, and he had no intention of raping her.
Following a half-day of deliberations, the jury convicted Lewis of raping S.D. while she was intoxicated (
On appeal, as relevant here, Lewis renewed his challenge to deception as a theory of kidnapping. (Lewis, supra, 72 Cal.App.5th at p. 12.) The Court of Appeal majority agreed that deception was not a valid theory of kidnapping. It observed, “Since 1972, our Supreme Court has repeatedly held asportation by fraud alone does not constitute general kidnapping in California.” (Id. at p. 13.) However, the majority identified “two lines of cases where courts have recognized a reduced quantum of force was permissible in a kidnapping case.” (Ibid.) The majority held that neither line, one involving minor victims and another involving incapacitated persons, applied here. (Id. at pp. 13–14.) And, in any event, the majority believed the challenged jury instruction allowed the jury to convict Lewis without any showing of force. (Id. at p. 16.) The majority further held that the error was prejudicial under People v. Aledamat (2019) 8 Cal.5th 1 (Aledamat) because, in its view, the evidence at trial did not compel the conclusion that Lewis must have used force against S.D. (Lewis, at pp. 17–18.) Indeed, the majority believed there was no evidence of force at all. (Id. at p. 19.) It therefore reversed Lewis’s conviction for kidnapping
One justice disagreed. His separate opinion reviewed the applicable precedent and concluded that “kidnapping can — under narrowly drawn exceptional cases — be accomplished without force or fear.” (Lewis, supra, 72 Cal.App.5th at p. 31 (conc. & dis. opn. of Bedsworth, J.).) Where, as here, the victim “lacked the capacity to legally consent to being moved, due to her inebriated condition,” a jury could convict Lewis of kidnapping based “upon proof that defendant took advantage of [S.D.’s] mental impairment by luring her out the bar under false pretenses for the purpose of raping her.” (Id. at p. 32.) Moreover, even if force or fear were required, the separate opinion posited that the instructional error was harmless because “all [the prosecution] would have had to show is that [Lewis], acting with unlawful intent, used enough force to take and carry [S.D.] away a substantial distance while she was mentally incapacitated.” (Id. at p. 33.) “By driving [S.D.] away from the bar, [Lewis] clearly and indisputably used enough force to move her a substantial distance while the kidnapping was in progress.” (Ibid.) The separate opinion would therefore have affirmed Lewis’s kidnapping conviction. (Id. at p. 36.) We granted the Attorney General’s petition for review.
II. DISCUSSION
A. Kidnapping To Commit Rape
Kidnapping to commit rape is a type of aggravated kidnapping, which is kidnapping “for the purpose of robbery or certain sex offenses.” (People v. Martinez (1999) 20 Cal.4th 225, 232 (Martinez).) It is defined by statute: “A person who kidnaps or carries away an individual to commit . . . rape . . . shall be
The parties agree force or fear is required to accomplish the offense of aggravated kidnapping as alleged, and the trial court erred by including deception as an alternative. We note the concurring and dissenting opinion below took a different position. It believed that “kidnapping can — under narrowly drawn exceptional cases — be accomplished without force or fear.” (Lewis, supra, 72 Cal.App.5th at p. 31 (conc. & dis. opn. of Bedsworth, J.).) But the Attorney General did not raise this issue, and the parties have not briefed it, so we have no occasion to consider whether deception is a valid theory under the circumstances here. We assume without deciding that it is not.
We granted review to consider the nature of the force or fear requirement for an intoxicated adult victim. The Attorney General contends the force required to kidnap an intoxicated
The relaxed force requirement applicable to infants and children appears to have its origins in People v. Oliver (1961) 55 Cal.2d 761 (Oliver), a case involving the kidnapping and molestation of a two-year-old boy. The defendant led the boy away by the hand, took him behind a fence, and undressed the boy and himself. (Id. at p. 763.) Police officers arrived, witnessed lewd conduct, and arrested the defendant. (Ibid.) On the kidnapping charge, the trial court provided the following instruction: “ ‘To constitute the crime of kidnaping . . . there must be a carrying, or otherwise forcible moving, for some distance of the person who, against his will, is stolen or taken into the custody or control of another person.’ ” (Id. at p. 764.) The instructions did not require any specific intent beyond a general criminal intent. (Ibid.)
We noted the child “went willingly with [the] defendant,” but he was “too young to give his legal consent to being taken by the defendant.” (Oliver, supra, 55 Cal.2d at p. 764.) We observed that the traditional rule, under circumstances where the victim is capable of giving consent, did not require any specific intent by the kidnapper: “It is equally true that the forcible moving of a person against his will . . . is kidnaping under . . . section 207, without more, and ‘[the] purpose or motive of the taking and carrying away [is] immaterial in prosecutions for kidnapping.’ ” (Id. at p. 765.) But such a rule,
We determined that the same logic would apply to “an adult person, who by reason of extreme intoxication, delirium or unconsciousness from injury or illness is unable to give his consent [and] is forcibly carried by another.” (Oliver, supra, 55 Cal.2d at p. 765.) Justice Dooling wrote, “If I forcibly carry a helplessly intoxicated man lying in the middle of the highway to a place of greater safety, if I forcibly take a delirious man or one who is unconscious to a hospital or to a doctor, nobody again could reasonably believe that it was the intention of the Legislature that for any of these acts I could be convicted of kidnaping. But if I forcibly take one of such persons and carry him in the same manner for an evil and unlawful purpose, everybody would again agree that my conviction of kidnaping would fall within the legislative design.” (Id. at pp. 765–766.)
To resolve this contradiction, we announced an exception to the literal scope of the kidnapping statute. We held that the general rule, “which makes a person who forcibly carries such a person and transports him against his will guilty of kidnaping, however good or innocent his motive or intent may otherwise be, can only lead to obvious injustice and a perversion of the legislative purpose if blindly and literally applied where the person who is forcibly transported, because of infancy or mental condition, is incapable of giving his consent.” (Oliver, supra, 55 Cal.2d at p. 766.) In this situation, “The courts are not powerless to read exceptions into the law when confronted by a criminal statute which literally interpreted would lead to the conviction of crime in cases to which it is obvious that the Legislature cannot have intended the statute to apply.” (Ibid.) Thus, “as applied to a person forcibly taking and carrying away another, who by reason of immaturity or mental condition is unable to give his legal consent thereto,” we construed the statute “as making the one so acting guilty of kidnaping only if the taking and carrying away is done for an illegal purpose or with an illegal intent.” (Id. at p. 768.)
Oliver is notable for two reasons. First, it accepted that the defendant had “forcibly” carried away the two-year-old victim, even though the boy went willingly with the defendant. (Oliver, supra, 55 Cal.2d at pp. 764–765.) The premise of Oliver’s holding was that the statute would have covered the defendant’s conduct, but for the exception announced by the court. (Id. at p. 766.) Thus, “At the least, our decision in Oliver ‘indicated that in kidnapping cases the requirement of force may be relaxed where the victim is a minor who is “too young to give his legal consent to being taken” ’ ” and the kidnapping “ ‘is done for an illegal purpose or with an illegal intent.’ ” (People v. Hill (2000) 23 Cal.4th 853, 857 (Hill).) Second, Oliver analogized the situation of a small child to “an adult person, who by reason of extreme intoxication, delirium or unconsciousness from injury or illness is unable to give his consent.” (Oliver, at p. 765.) Oliver therefore broadly described its exception as applying to a victim “who by reason of immaturity or mental condition is unable to give his legal consent.” (Id. at p. 768, italics added.)
Four decades later, we considered the force requirement more directly in Michele D., supra, 29 Cal.4th 600. There, a
We began our discussion by noting that “ordinarily the force element in section 207 requires something more than the quantum of physical force necessary to effect movement of the victim from one location to another.” (Michele D., supra, 29 Cal.4th at p. 606.) But we held the “minor’s conduct falls within the ambit of the statute. Even if force, as conventionally understood, was not used to effect [the infant’s] kidnapping, the minor’s intent in carrying off the infant still renders her conduct kidnapping.” (Ibid.)
Like Oliver, we were required in Michele D. to construe section 207. But, “whereas in Oliver we were concerned that a literal construction of the statute might lead to wrongful convictions, in this case a literal construction of the statute might result in the absurd consequence of finding that a kidnapping did not occur where it is clear a kidnapping was intended. Minor removed [the infant] from her stroller with the intention of taking her away and raising her as her own child. Like the Court of Appeal in the present case, ‘we find it inconceivable that the Legislature intended the physical taking of an infant in the manner described in these facts not to be the crime of kidnapping. In fact, we believe the taking of an infant
To “avoid[] the absurd consequence of allowing a defendant who carries off an infant or small child under circumstances similar to those in the present case to escape liability” (Michele D., supra, 29 Cal.4th at p. 613), we construed the statute to include a reduced force requirement where the victim is an infant or child. We held, “[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.)
The Legislature later codified this standard. (
The Court of Appeal applied these precedents to an intoxicated victim in People v. Daniels (2009) 176 Cal.App.4th 304 (Daniels). The victim in Daniels had consumed around 13 shots of alcohol over three to four hours. (Id. at p. 308.) After leaving a bar, she ran over to a parking lot, vomited, and passed out. (Ibid.) She woke up in an alley with the defendant, but apparently she passed out again. (Ibid.) She ended up in the defendant’s car, but she did not remember how and did not consent to the movement. (Ibid.) The victim continued to alternately vomit and pass out. (Id. at pp. 308–309 passed out again. (Id. at p. 309.) The defendant drove to a motel and carried the victim up to a room. (Ibid.) When the victim realized the defendant had left for a moment, she escaped and sought help from other hotel guests. (Ibid.) For the charged offense of kidnapping to commit rape, the trial court instructed the jury using the relaxed force requirement described in Michele D., i.e., ” ‘the defendant used enough physical force to take and carry away an unresisting person with a mental impairment’ ” and, moreover, ” ‘acting with that intent, the defendant moved the person with a mental impairment a substantial distance.’ ” (Daniels, supra, 176 Cal.App.4th at pp. 324-325.) The instructions went on to explain, ” ‘A person with a mental impairment may include unconscious or intoxicated adults incapable of giving legal consent. The person is incapable of giving legal consent if he or she is unable to understand the act, its nature, and possible consequences.’ ” (Id. at p. 325.) On appeal, the defendant challenged the relaxed force requirement as inapplicable and inadequate. (Daniels, supra, 176 Cal.App.4th at p. 326.) The Court of Appeal rejected this challenge based on a direct analogy to Michele D. (Id. at p. 332.) It held, “An interpretation of . . . section 209, subdivision (b)(1) to avoid the absurd consequence of allowing a defendant to escape liability for carrying off an incapacitated person for the purpose of rape serves the legislative purpose underlying the statute, just as the California Supreme Court‘s construction of . . . section 207 did in Michele [D.] Indeed, under the rationale of Michele [D.], it is our ‘duty’ to construe . . . section 209, subdivision (b)(1) to proscribe the kidnapping for rape of an incapacitated person, as to find otherwise would be absurd.” (Ibid.) The Court of Appeal concluded that the statute was violated “when a defendant takes and carries away an incapacitated person to commit rape even if the defendant uses only the force necessary to accomplish such a taking and carrying away.” (Id. at p. 333.) The Court of Appeal in Daniels correctly synthesized our holdings in Michele D. and Oliver. Michele D. approved the relaxed force requirement for infants and children. (Michele D., supra, 29 Cal.4th at p. 610.) Oliver drew a direct connection between infants and children, on one hand, and adults “who by reason of extreme intoxication, delirium or unconsciousness from injury or illness [are] unable to give [their] consent,” on the other. (Oliver, supra, 55 Cal.2d at p. 765.) While children and mentally impaired adults may not be similar in all respects, they are similarly vulnerable to kidnapping and equally unable to consent to being moved, so the relaxed force requirement applies to each. Lewis accepts the holding in Daniels, but he contends it is factually distinguishable. The majority below likewise found Daniels inapposite because, “Unlike the victim in Daniels, [S.D.] was not lying face down on the bar unable to move or talk. At various points [S.D.] leaned on the bar and swerved. But she talked to Lewis and [her date], and she was able to stand without assistance. She walked out of Rudy‘s on her own. The video does not show a person who was unable to stand on her own and needed to be helped out of the bar. Indeed, [the bartender] said that although she had concerns about [S.D.‘s] sobriety, she did not look ‘completely out of control.’ ” (Lewis, supra, 72 Cal.App.5th at p. 15.) While we agree the victim in Daniels likely was more intoxicated than S.D., at least at the moment S.D. left Rudy‘s, Daniels itself did not require such a high degree of intoxication. Instead, the relaxed force standard in Daniels depended on the ability of the victim to legally consent. (Daniels, supra, 176 Cal.App.4th at p. 325 [” ‘A person with a mental impairment may include unconscious or intoxicated adults incapable of giving legal consent’ “].) The inability to legally consent does not require total incapacitation or unconsciousness. The instructions in Daniels went on to explain, ” ‘The person is incapable of giving legal consent if he or she is unable to understand the act, its nature, and possible consequences.’ ” (Ibid.; accord, People v. Griffin (1897) 117 Cal. 583, 585 [“legal consent presupposes an intelligence capable of understanding the act, its nature, and possible consequences“].) This focus on consent is consistent with the rule in Oliver, which applied to any person who, “because of infancy or mental condition, is incapable of giving his consent.” (Oliver, supra, 55 Cal.2d at p. 766, italics added; accord, People v. Westerfield (2019) 6 Cal.5th 632, 714 (Westerfield).) Michele D. reasoned that Oliver‘s discussion of consent led directly to a relaxed element of force “because the consent and force elements of kidnapping are clearly intertwined.” (Michele D., supra, 29 Cal.4th at p. 609.) “If a person‘s free will was not overborne by the use of force or the threat of force, there was no kidnapping.” (People v. Moya (1992) 4 Cal.App.4th 912, 916; see Michele D., at p. 609.) But a person who cannot legally consent has no true free will that can be overborne. In that situation, even though “there is no evidence the victim‘s will was overcome by force” (Michele D., at p. 609), kidnapping is established by proof that the victim was taken “for an illegal purpose or with an illegal intent” (id. at p. 610). We applied a similar principle more than a century ago in People v. Verdegreen (1895) 106 Cal. 211 (Verdegreen). The defendant in Verdegreen was convicted of an assault with intent to rape. (Id. at p. 212.) The record showed that the victim, a seven-year-old girl, went willingly with the defendant. (Ibid.) The defendant recognized that the victim could not legally consent to sexual intercourse, but he argued that assault was different because it “implies resistance on the part of the one assaulted.” (Id. at p. 213.) The court in Verdegreen was not persuaded: “It is true that an assault implies force by the assailant and resistance by the one assaulted; and that one is not, in legal contemplation, injured by a consensual act. But these principles have no application to a case where under the law there can be no consent.” (Id. at p. 215; accord, People v. Soto (2011) 51 Cal.4th 229, 248.) Verdegreen illuminates the connection between force and consent. “[T]he concepts of consent and force or fear ‘are clearly intertwined.’ ” (Majors, supra, 33 Cal.4th at p. 327.) Normally, ” ‘If a person‘s free will was not overborne by the use of force or the threat of force, there was no kidnapping.’ ” (Hill, supra, 23 Cal.4th at p. 856.) But where a victim is unable to legally consent, and has no true free will, the traditional force requirement loses its salience. “[W]here the victim by reason of youth or mental incapacity can neither give nor withhold consent,” kidnapping is established by proof that the victim was taken for an illegal purpose or with an illegal intent, even if “there is no evidence the victim‘s will was overcome by force.” (Michele D., supra, 29 Cal.4th at p. 609.) The law protects the victim, who may go willingly with the defendant because he or she is unable to appreciate the defendant‘s illegal intent. (Verdegreen, supra, 106 Cal. at p. 215.) We are confident the Legislature intended this result. ” ‘It would ill serve the law to exclude as kidnappers those who prey on persons who cannot resist.’ ” (Michele D., supra, 29 Cal.4th at p. 610, fn. 3, quoting Stancil v. Maryland (1989) 78 Md.App. 376, 386 [553 A.2d 268, 273].) As the Court of Appeal in Daniels explained, “An interpretation of . . . section 209, subdivision (b)(1) to avoid the absurd consequence of allowing a defendant to escape liability for carrying off an incapacitated person for the purpose of rape serves the legislative purpose underlying the statute, just as the California Supreme Court‘s construction of . . . section 207 did in Michele [D].” (Daniels, supra, 176 Cal.App.4th at p. 332.)6 Lewis contends the Legislature‘s codification of Michele D.‘s relaxed force requirement for children precludes its application to adults. We disagree. Lewis‘s contention rests on the incorrect premise that the Legislature chose to change the law of kidnapping as it applied to children, but not as to adults. The Legislature expressly stated that its amendment “codifies the holding in [Michele D.], and does not constitute a change in existing law.” (Stats. 2003, ch. 23, § 2, p. 99, italics added.) The Legislature‘s decision to codify the specific holding of Michele D. does not imply its disapproval of other developments in the law of kidnapping, and it does not dictate how the force requirement should be interpreted in situations not covered by the amendment. Indeed, the Legislature‘s action was prompted by Michele D., and not the later opinion in Daniels or any other similarly direct authority considering the specific circumstance of a mentally impaired adult. It is therefore unremarkable the Legislature did not address that circumstance. “The fact that the Legislature may not have considered every factual permutation of kidnapping . . . does not mean the Legislature did not intend for the statute to reach that conduct.” (Michele D., supra, 29 Cal.4th at p. 606.) Lewis also contends application of the relaxed force requirement here would constitute an improper judicial expansion of criminal liability in contravention of the Legislature‘s exclusive power to define crimes in California. (Cf. Keeler v. Superior Court (1970) 2 Cal.3d 619, 631-632.) Lewis is incorrect. Our decision today falls well within the proper role of the judiciary. Section 207 requires “force,” but the Legislature has not defined the term. Michele D. explored its meaning with respect to infants and children who, by virtue of their youth, are legally unable to consent; we do the same here for intoxicated adults who, by virtue of their impaired mental state, are similarly unable to consent. Our purpose is to effectuate the intent of the Legislature, not thwart it. Our opinions in Oliver and Michele D., and that of the Court of Appeal in Daniels, lead directly to the conclusion that the Legislature intended to criminalize the kidnapping of an intoxicated adult victim, who is unable to legally consent, where the kidnapper has an illegal purpose or intent. This conclusion does not expand the scope of the statute. It interprets the statute as it already exists.7 For similar reasons, we disagree that the application of the relaxed force requirement here is unforeseeable and would violate due process. “[A]n unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law . . . .” (Bouie v. City of Columbia (1964) 378 U.S. 347, 353.) “The fundamental principle that ‘the required criminal law must have existed when the conduct in issue occurred,’ [citation], must apply to bar retroactive criminal prohibitions emanating from courts as well as from legislatures. If a judicial construction of a criminal statute is ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue,’ it must not be given retroactive effect.” (Id. at p. 354.) Our interpretation of the kidnapping statute is neither unexpected nor indefensible. It is based on the principles of Verdegreen, Oliver, and Michele D. Verdegreen established the connection between force and consent. (Verdegreen, supra, 106 Cal. at p. 215.) Oliver identified a kidnapping as “forcibl[e]” even though the child went willingly with the defendant. (Oliver, supra, 55 Cal.2d at p. 765.) It drew an explicit connection between that situation and a mentally impaired victim unable to consent; its holding applied to any victim “who by reason of immaturity or mental condition is unable to give his legal consent.” (Id. at p. 768, italics added.) Even before Michele D., we recognized that Oliver indicated ” ‘the requirement of force may be relaxed’ ” where the victim is a child and unable to consent. (Hill, supra, 23 Cal.4th at p. 857.) Michele D. confirmed this relaxed standard of force for infants and small children. (Michele D., supra, 29 Cal.4th at p. 610.) Given the principles of Verdegreen and Oliver, it was foreseeable that Michele D.‘s holding would be applied to mentally impaired adults. Indeed, the Court of Appeal in Daniels had no trouble doing so: “[U]nder the rationale of Michele [D.], it is our ‘duty’ to construe . . . section 209, subdivision (b)(1) to proscribe the kidnapping for rape of an incapacitated person, as to find otherwise would be absurd. . . . ‘[O]rdinarily the force element in section 207 requires something more than the quantum of physical force necessary to effect movement of the victim from one location to another.’ [Citation.] Since an incapacitated person, like an infant, has no ability to resist being taken and carried away, the ‘something more’ that is ‘ordinarily’ required is not necessary, and ‘the amount of force required to kidnap an [incapacitated person] is simply the amount of physical force required to take and carry the [incapacitated person] away . . . with an illegal intent.’ ” (Daniels, supra, 176 Cal.App.4th at p. 332.) While we have never explicitly applied the relaxed standard of force to intoxicated adult victims before today, we also have never indicated to the contrary. (Cf. Martinez, supra, 20 Cal.4th at p. 241.) Instead, the clear import of Verdegreen, Oliver, and Michele D. is that the relaxed standard of force would apply. We have consistently treated children and mentally impaired adults differently from unimpaired adults for purposes of the kidnapping statute, and specifically its force requirement, and our case law provides more than sufficient warning that Lewis‘s conduct here was criminal. In sum, 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, and there is no constitutional prohibition on applying that standard here. B. Instructional Error and Prejudice The jury was instructed that Lewis was guilty of kidnapping if he “used physical force or deception” to take and carry away S.D. (Italics added.) As noted, we assume without deciding that the trial court erred by including deception as an alternate theory of kidnapping. Under this assumption, a valid theory of kidnapping in this context requires force, albeit the relaxed standard we have discussed: physical force sufficient to take and carry away the victim a substantial distance for an illegal purpose or with an illegal intent. (See Michele D., supra, 29 Cal.4th at p. 610; Daniels, supra, 176 Cal.App.4th at pp. 324-325.) The Attorney General contends that the instructions as a whole were not erroneous because they adequately conveyed the relaxed force requirement, notwithstanding the inclusion of deception as an alternative. “A claim of instructional error is reviewed de novo. [Citation.] An appellate court reviews the wording of a jury instruction de novo and assesses whether the instruction accurately states the law. [Citation.] In reviewing a claim of instructional error, the court must consider whether there is a reasonable likelihood that the trial court‘s instructions caused the jury to misapply the law in violation of the Constitution. [Citations.] The challenged instruction is viewed ‘in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner.’ ” (People v. Mitchell (2019) 7 Cal.5th 561, 579.) To support his claim that the jury instructions as a whole were not misleading, the Attorney General points to a different requirement in the instructions that Lewis must have “moved” S.D. “a substantial distance.” The Attorney General asserts, “The instruction on the third element expressly conditioned guilt on a finding that [Lewis] ‘moved’ [S.D.] — which could only happen through the application of force.” Lewis responds that the term “move” could include a situation where a person caused another to move by instilling fear or deceiving the victim. In Lewis‘s view, the jury could have understood the term to include indirect movement without any application of physical force. We need not definitively resolve whether a jury would have viewed the instructions as the Attorney General suggests. Even assuming the instructions did not adequately convey the force requirement to the jury, any error was harmless beyond a reasonable doubt. The assumed error here is a form of alternative-theory error because it is premised on the idea that the jury may have found Lewis guilty based on an invalid theory of deception rather than a valid theory of force. An alternative-theory error is a federal constitutional error, subject to review for harmlessness under Chapman v. California (1967) 386 U.S. 18, 24. Under this standard, “The reviewing court must reverse the conviction unless, after examining the entire cause, including the evidence, and considering all relevant circumstances, it determines the error was harmless beyond a reasonable doubt.” (Aledamat, supra, 8 Cal.5th at p. 13.) We have confirmed that “no higher standard of review applies to alternative-theory error than applies to other misdescriptions of the elements. The same beyond a reasonable doubt standard applies to all such misdescriptions, including alternative-theory error.” (Aledamat, supra, 8 Cal.5th at p. 9.) The fundamental question is whether “it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error.” (People v. Merritt (2017) 2 Cal.5th 819, 831; accord, Neder v. United States (1999) 527 U.S. 1, 18 (Neder).) “In determining . . . whether the error was harmless, the reviewing court is not limited to a review of the verdict itself.” (Aledamat, at p. 13Ibid.) We recently explained, “To determine harmlessness under Aledamat, a reviewing court essentially asks whether any rational juror who made the findings reflected in the verdict and heard the evidence at trial could have had reasonable doubt regarding the findings necessary to convict the defendant on a valid theory. ‘The reviewing court examines what the jury necessarily did find and asks whether it would be impossible, on the evidence, for the jury to find that without also finding the missing fact as well.’ ” (Lopez, supra, 14 Cal.5th at p. 591.)8 Here, under the trial court‘s instructions, the jury was required to find that Lewis intended to commit the offense of rape of an intoxicated woman, he moved S.D. a substantial distance, and S.D. was moved (or was “made to move“) a distance beyond that merely incidental to the commission of the intended offense. By its guilty verdict, we know the jury did so. The jury also found this movement involved “more than slight or trivial distance.” It “increased the risk of physical or psychological harm to [S.D.] beyond that necessarily present in the rape of a woman while intoxicated.” Additionally, it was undisputed at trial that Lewis used some quantum of physical force to move S.D. The record does not support a contrary finding. (See Neder, supra, 527 U.S. at p. 19.) Lewis admitted driving S.D. away from Rudy‘s, and the act of driving necessarily involved the application of physical force to S.D. under the relaxed force standard in Michele D. (See Lewis, supra, 72 Cal.App.5th at p. 33 (conc. & dis. opn. of Bedsworth, J.) [“By driving [S.D.] away from the bar, [Lewis] clearly and indisputably used enough force to move her a substantial distance while the kidnapping was in progress“].) S.D. did not move herself; she was moved by the car driven by Lewis. Lewis used the car to apply physical force to S.D. and carry her away. Just as a person might kidnap an infant by pushing the child away in her stroller, so too did Lewis kidnap S.D. by driving her away in his car. (See Westerfield, supra, 6 Cal.5th at pp. 714-715; see also Hill, supra, 23 Cal.4th at pp. 857-858 [“The baby certainly did not move herself“].) The relaxed force requirement does not demand that the kidnapper touch his or her victim directly. Thus, even if Lewis used deception to persuade S.D. to accompany him, he still indisputably used physical force as well — i.e., his act of driving S.D. — to accomplish the kidnapping under the relaxed force standard.9 Based on this evidence, any rational juror who made the findings reflected in the verdict would necessarily have found that Lewis used some quantum of physical force to move S.D. as well. (See Lopez, supra, 14 Cal.5th at p. 580.) Because “any rational juror would have made the additional findings, based on the jury‘s actual verdict and the evidence at trial, the error is harmless because the presentation of the invalid theory to the jury made no difference. The error did not contribute to the verdict.” (Id. at p. 589.)10 Lewis claims this showing is insufficient because “there is no evidence that [S.D.] was incapacitated when she and [Lewis] drove away from the bar.” (Fn. omitted.) As an initial matter, the standard is not “incapacitat[ion],” but the inability to give legal consent due to mental condition or impairment, as we have discussed. Moreover, although we may assume the jury instructions allowed the jury to rely on deception rather than force, the instructions did not eliminate the requirement of mental impairment. The instructions required the jury to find .) Because we conclude Lewis used physical force to move S.D., we need not consider whether “physically escorting” S.D. would be sufficient as well. (Dalerio, at p. 782.) We express no opinion on this theory or its potential applications. We also express no opinion about whether the phrase “relaxed force” fully captures the relevant showing, or whether a broader term would be more appropriate.“>144 Cal.App.4th 775, 782; see also Oliver, supra, 55 Cal.2d at pp. 764-765.) Because we conclude Lewis used physical force to move S.D., we need not consider whether “physically escorting” S.D. would be sufficient as well. (Dalerio, at p. 782.) We express no opinion on this theory or its potential applications. We also express no opinion about whether the phrase “relaxed force” fully captures the relevant showing, or whether a broader term would be more appropriate.
Given the jury‘s findings, Lewis‘s claim amounts to a challenge to the sufficiency of the evidence supporting the jury‘s verdict. Lewis raised at least two sufficiency of the evidence challenges in the Court of Appeal, including this one, but the majority found it unnecessary to address them because it found prejudicial instructional error. (See Lewis, supra, 72 Cal.App.5th at p. 18.) We need not address them in the first instance here. We therefore reverse the judgment of the Court of Appeal and remand for further proceedings, including any appellate contentions that remain unresolved.
We reverse the judgment of the Court of Appeal and remand the matter for further proceedings consistent with this opinion.
GUERRERO, C. J.
We Concur:
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
EVANS, J.
PEOPLE v. LEWIS
S272627
Concurring Opinion by Justice Kruger
At the trial of defendant Rodney Taurean Lewis, the court instructed the jury it could convict Lewis of aggravated kidnapping if it determined that Lewis used “physical force or deception” to take and carry away S.D., an adult woman impaired by intoxication, with the intent to rape her. The parties agree, at least for the purposes of this case, that the trial court erred by instructing the jury it could convict Lewis if it was convinced that he had tricked S.D. into accompanying him. The majority concludes that the purported error in instructing on a kidnapping-by-deception theory was harmless: Any reasonable juror that found Lewis guilty of kidnapping S.D. under the instructions that were given necessarily would have found that he technically used “some quantum of physical force” inasmuch as he took and carried her away by driving her in his car. (Maj. opn., ante, at p. 3; see id. at pp. 2-3.)
I agree with the majority that any instructional error was harmless, and I join its opinion in full. I write separately to make two points about what the majority opinion says — and, importantly, what it does not say — about the substantive law governing the kidnapping of young children and intoxicated or otherwise impaired adults.
I.
The first point concerns the criminal act, or actus reus, constituting the kidnapping of a young child or an impaired
Our precedent does make clear that the crime of kidnapping typically cannot be accomplished by deception alone.
That is the rule that governs the typical kidnapping case. But our precedent also makes clear that cases involving young children and impaired adults are not typical cases. When
We again considered the law governing the kidnapping of small children in In re Michele D. (2002) 29 Cal.4th 600 (Michele D.), where we more directly addressed the force-or-fear requirement. In that case, the defendant conceded that she had
This holding is what the majority opinion refers to as Michele D.‘s “relaxed” or “reduced” force standard. (Maj. opn., ante, at pp. 27, 19.) In conceding the jury was wrongly instructed here, the Attorney General appears to assume this “relaxed” force standard requires the use of actual physical force, if only in a technical sense. This is understandable: Michele D. does seem to suggest that some “amount of physical force” is required (Michele D., supra, 29 Cal.4th at p. 610) — if only the amount of force necessary to lift an unresisting small child from a stroller. But there are also reasons to doubt whether the law draws a firm line between technical uses of force and other ways of moving a victim. After all, Michele D. sought to avoid an absurd construction of the statute that would have permitted a defendant who picks up an unresisting small child and carries the child away to avoid liability. But it would also seem odd to interpret the statute in a way that fails to reach the defendant who lures a young child away with false promises of ice cream or puppies, without ever exerting the physical force
Perhaps for that reason, although Michele D. contains language suggesting that some amount of physical force is required, it also suggests that “kidnapping is established by proof that the victim was taken for an improper purpose or improper intent” even where “there is no evidence the victim‘s will was overcome by force.” (Michele D., supra, 29 Cal.4th at p. 609; see id. at p. 612, fn. 5 [noting that this holding “affects only a narrow class of cases in which an unresisting infant or small child is taken away without any force or fear“].) We similarly suggested in People v. Westerfield (2019) 6 Cal.5th 632, 713 that physical force is not necessarily required, holding that a kidnapping conviction for the taking of a seven-year-old child could stand “even assuming [the victim] had been moved by a ruse and not through force or fear.” (Id. at p. 713.)
It is true that, as a matter of Newtonian physics, Lewis applied force to S.D.‘s person by moving her in his car. But the question remains whether kidnapping liability in fact turns on this sort of technicality. One can easily conceive of ways that a person could accomplish the movement of an intoxicated or impaired person without any use of force at all. Imagine, for example, that instead of tricking an intoxicated victim into entering his car, the defendant persuaded her to walk with him to a nearby apartment. Or imagine that instead of taking the defendant‘s own car, the defendant hailed a cab or escorted her onto a city bus. In those scenarios, the defendant might not have deployed physical force to move his victim, but he would have caused her to move all the same. In all of these scenarios, the defendant has taken advantage of his victim‘s impairment to move her — by whatever means — to a location that ” ‘substantially increase[d] the risk of harm [to her] over and above that necessarily present in the crime’ ” of rape itself. (People v. Dominguez (2006) 39 Cal.4th 1141, 1150, quoting Daniels, supra, 71 Cal.2d at p. 1139; cf. People v. Martinez (1999) 20 Cal.4th 225, 236 [“a primary reason forcible asportation is proscribed by the kidnapping statutes is the increase in the risk of harm to the victim because of the diminished likelihood of discovery, the opportunity for the commission of additional crimes, and the possibility of injury from foreseeable attempts to escape“].)
Given the rationale underlying Michele D., it could be argued that the operative standard under our precedent is best described not as a “relaxed” or “reduced” force standard, but as a constructive force standard — a standard that is satisfied so long as the defendant can be said to have caused the movement of a victim who, because of the victim‘s young age, state of intoxication, or other mental impairment, can neither effectively resist nor consent to the movement. (Cf. maj. opn., ante, at p. 23, quoting People v. Verdegreen (1895) 106 Cal. 211, 215 [” ‘It is true that an assault implies force by the assailant and resistance by the one assaulted; and that one is not, in legal contemplation, injured by a consensual act. But these principles have no application to a case where under the law there can be no consent.’ “].) As Justice Bedsworth explained in his opinion in the Court of Appeal, such an approach would mean there was no error in the jury instruction at issue here: In his view, the instruction properly “allowed the jury to find [the asportation] requirement satisfied upon proof that defendant took advantage of [S.D.]‘s mental impairment by luring her out [of] the bar under false pretenses for the purpose of raping her.” (People v. Lewis (2021) 72 Cal.App.5th 1, 32 (conc. & dis. opn. of Bedsworth, J.).) And if that is so, then it does not matter whether Lewis happened to accomplish the movement through the technical use of force.
II.
The second point about the majority‘s treatment of the substantive law of kidnapping concerns the required mental state, or mens rea, in cases involving very young or impaired victims. As we have repeatedly recognized, with any reduced force requirement comes a danger of inadvertently criminalizing innocent — or even beneficial — behavior. To avoid that danger, our cases have made clear that, to establish kidnapping liability in the case of a young child or other person incapable of consenting to movement, the prosecution must prove the defendant‘s wrongful intent. (Oliver, supra, 55 Cal.2d at p. 768.)
In this case, the jury was told that, to convict, it must make another finding about Lewis‘s mental state: that he was actually or constructively aware of the impairment that rendered his victim incapable of consent. So instructed, the jury found that Lewis “knew or reasonably should have known” that S.D. “suffered from a mental impairment that made her incapable of giving legal consent to the movement.”
As the majority notes, all agree that the instruction was appropriate, including the Attorney General. (Maj. opn., ante, at p. 26, fn. 7.) The instruction is consistent with our
This principle holds in cases involving the kidnapping of young children or mentally impaired adults. To be sure, as noted above, Oliver and Michele D. require the prosecution to prove that the defendant moved the young or impaired victim with an unlawful intent. (Oliver, supra, 55 Cal.2d at p. 768; Michele D., supra, 29 Cal.4th at p. 612.) And in an aggravated kidnapping case, the prosecution must prove that the defendant harbored a specific intent to commit one of a list of enumerated
This mens rea requirement has particular salience in a case like this one, involving application of Michele D.‘s modified force standard due to an adult victim‘s state of intoxication. Whereas children who are young enough to be taken without force, as conventionally understood, are always legally incapable of consent, the same is not true of adults. And it may sometimes be difficult to determine whether another adult has reached a level of impairment that would preclude giving legal consent to being moved. Without the requirement that the defendant act with at least criminal negligence as to the victim‘s capacity to consent, there is a danger the defendant could be liable for simple kidnapping merely for transporting an adult the defendant reasonably believed was coming along voluntarily, with any illegal intent or unlawful purpose (see Michele D., supra, 29 Cal.4th at p. 612). And if the defendant harbored a specific intent to commit one of the additional crimes enumerated in
KRUGER, J.
I Concur:
GROBAN, J.