Opinion
A victim enters the defendant’s vehicle under an implicit threat of arrest. Does this evidence satisfy the force or fear element of simple *324 kidnapping? (Pen. Code, § 207, subd. (a) (hereafter section 207(a)).) 1 We conclude it does, and therefore reverse the judgment of the Court of Appeal.
I. Factual and Procedural Background
On August 15, 2000, 18-year-old Alesandria M. was riding home on her bicycle. She was an employee at the Zany Brainy store at Mira Mesa Market Center. Earlier that day, Alesandria had purchased a gift at Zany Brainy for her brother’s birthday. Just prior to starting home, Alesandria returned to Zany Brainy and made a second purchase.
After Alesandria had been riding for approximately 10 to 15 minutes, defendant Gaylon Michael Majors, wearing sunglasses and standing in the street next to a white van, flashed a badge and asked her to stop. He told her he was a security guard at the Mira Mesa mall and had received a call saying someone on a bicycle was suspected of a theft at the Zany Brainy store. Alesandria got off her bike and showed defendant the items in her backpack, her payment receipts, and. her identification. Defendant told Alesandria she would have to return with him to the store and speak to the security guard to resolve the issue. He tried to put her bike in the van, but it did not fit, so he “said to go ahead and lock my bike up at the school right across the street.” While Alesandria did so, defendant took her backpack and put it in the van.
When she returned to the van, Alesandria asked to see defendant’s badge again. While defendant was not in uniform, Alesandria testified that “I felt scared that maybe if he was undercover or something like that I would get in more trouble. So I took his badge again. I was not really sure what to look for.” The badge said “security guard” on it. On the other side of the badge was an orange laminated card. Alesandria did not ride off because she “was really scared that if ... he was who he said he was, that I would be in jail, that I would have to explain to my parents why I was there, even though I knew inside that I was innocent of stealing.”
Alesandria testified she was afraid she would be arrested if she did not get into the van. She believed defendant had the authority to arrest her because he displayed a badge and identified himself as a security officer. Alesandria had never dealt with the police before, and was afraid not to get in the van. She testified, “I believed what he said about being a security guard and that we would have to go back to the . . . mall, to clear things up. And I actually worked at Zaney Brainey [sic\, so I was confident about getting the manager to clear everything up for me.” “He told me I would have to go with him.” “I requested to see his badge because I didn’t believe him. But at the same time *325 I didn’t want to not believe him if he was telling the truth. I didn’t want to make a situation worse than it had already been.” Defendant did not do anything to cause her to be afraid for her safety before she got into the van. He did not display any weapons, threaten, or touch Alesandria until they parked at the mall.
Once Alesandria and defendant were in the van, defendant appeared to make a call on his cell phone. “He made it sound like maybe he was talking to a partner or somebody, saying that the suspect was apprehended.” Alesandria asked if she could call her parents. Defendant told her “that we could once we got there.” Once they arrived at the mall, defendant said “they were going to have to check with the manager to see if they could look at their cameras.” This caused Alesandria apprehension, apparently because she knew from her employment there were no cameras at Zany Brainy.
Defendant ultimately drove to an isolated area of the mall. Alesandria started to get out of the van, but defendant grabbed her by the hair and slammed her head into the passenger side window. He then pulled back her hair so she was facing him, told her to go to the back of the van, and said he would not hurt her. Alesandria grabbed for defendant’s throat, but defendant grabbed her head again, and tried to force her head between her legs. He ultimately threw her into a bench seat in the back of the van, and told her if she cooperated he would not hurt her. He then straddled her, pinning her arms to her chest, and struck her twice on the side of her head saying, “I don’t want to be mean to you, so just do what I say.” Alesandria was screaming and crying, and kicking defendant. Defendant asked Alesandria if she wanted to die, and she said yes. Defendant said, “Okay, you are going to die.” Alesandria continued to kick defendant, and he eventually released her, saying, “Get out bitch.” Alesandria reported the matter to a security guard and the police.
Defendant’s fingerprint was found on one of Alesandria’s Zany Brainy purchase receipts. Defendant was also positively identified at trial by a woman who lived at the location where defendant initially stopped Alesandria. On the day of his arrest, defendant was seen driving a white van. When arrested, he was in possession of a canvas briefcase containing an orange laminated card, sunglasses, binoculars, a digital camera, and a dildo.
The jury was instructed that both kidnapping for rape and simple kidnapping required proof beyond a reasonable doubt that Alesandria “was unlawfully moved by the use of physical force or by any other means of instilling fear,” and that her movement was “without her consent.” “Consent” was defined as “act[ing] freely and voluntarily and not under the influence of threat, force, or duress. . . . Consent requires a free will and positive *326 cooperation in act or attitude.” With respect to the crimes against Alesandria, 2 defendant was convicted of kidnapping for rape (§ 209, subd. (b)(1)), simple kidnapping (§ 207(a)), 3 4 assault with the intent to commit rape (§ 220), and false imprisonment by violence and menace (§§ 236, 237, subd. (a)).
A divided Court of Appeal reversed defendant’s convictions for kidnapping and kidnapping for rape for insufficiency of the evidence regarding the element of force or fear. The majority stated, “This case appears to be a classic case of asportation by fraud, not by force or fear.” In all other respects as to the crimes against Alesandria, the judgment was affirmed.
We granted the Attorney General’s petition for review to consider whether evidence that a victim entered a defendant’s vehicle under threat of arrest is sufficient to satisfy the force or fear element of section 207(a) kidnapping.
II. Discussion
Section 207(a) provides, “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 . . . county, or into another part of the same county, is guilty of kidnapping.” The language “any other means of instilling fear” was added in 1990. (Stats. 1990, ch. 55, § 1, p. 393.) Section 207(a) expressly “do[esj not apply to ... : [(J[] ... [][].. . any person acting under Section 834[ 4 ] or 837.” 5 (§ 207, subd. (f)(2).)
As can be seen by this language, in order to constitute section 207(a) kidnapping, the victim’s movement must be accomplished by force or any other means of instilling fear. We have observed that even prior to the 1990 amendment adding the language “any other means of instilling fear,” our cases held “that a taking is forcible if accomplished through fear.”
(People v. Hill
(2000)
These alternative bases for committing kidnapping, i.e., “forcibly, or by any other means of instilling fear,” while stated in the disjunctive, are not mutually exclusive. As noted, prior to the 1990 addition of the language “any other means of instilling fear,” we had held that threats of force satisfy the force element of section 207(a). Given the similarity between a “threat of force” and “any other means of instilling fear,” there are inevitably now circumstances that constitute both force and fear within the meaning of this statute. As the Attorney General notes, “the mechanism by which a threat of force produces the movement of the victim necessary for a kidnapping is fear, specifically, the fear that the threat of force will be carried out.”
In contrast to the use of force or fear to compel asportation, “asportation by fraud alone does not constitute general kidnapping in California.”
(People v. Davis
(1995)
*328
Thus, in
Stephenson, supra,
By contrast, in
People v. La Salle
(1980)
Of course, it goes without saying that asportation may be accomplished by means that are both fraudulent and involve force or fear. For example, a defendant who claims to have a gun but who in fact does not could not successfully argue he induced the movement of the victims who credited his statement solely by fraud.
The question in this case is whether movement accomplished by the implicit but false threat of arrest satisfies the elements of force or fear in section 207(a), or whether such movement is simply asportation by fraud. While not addressing the precise factual scenario presented here, kidnapping cases involving fraudulent arrest date back over a century.
In
People
v.
Pick
(1891)
In
People
v.
Broyles
(1957)
In
People v. Harris
(1944)
The Court of Appeal in
Harris
observed that while the defendant “makes no argument and cites no authority in support of the claim that his conviction of the crime of kidnaping is unsupported by the evidence, we feel that such claim is effectually refuted by the recent case of
People v. Brazil
(1942)
As can be seen, none of these cases directly hold that an implicit threat of arrest satisfies the force element of the kidnapping statute. In Pick, the force used to effectuate the arrest was not described. However, nothing in that case suggests that in order to constitute kidnapping, the arrest had to involve anything other than an assertion the victim was required to accompany the officer. In Broyles, it is unclear whether the Court of Appeal concluded the totality of the evidence was sufficient to demonstrate kidnapping, or whether it had alternative bases for its holding, i.e., that the evidence demonstrated kidnapping both when the victim entered the car because of orders from apparent police officers she felt compelled to obey, and when force was later applied during the asportation. In Brazil, a gun was used in effectuating the “arrest.” And in Harris, prior to the victim’s entry into the defendant’s vehicle, the defendant threatened to break the leg of the victim’s companion if he ran away.
Nevertheless, defendant fails to cite a single case in which asportation accomplished by the threat of arrest was found to be movement motivated solely by fraud. Indeed, implicit in the language of section 207, subdivision (f)(2), which creates an exception to the kidnapping statute for
*331
lawful arrest by a peace officer or a private person, is the Legislature’s understanding that
unlawful
arrest may, under certain circumstances, be a form of kidnapping. As we have observed in a somewhat different context, “[p]olice officers occupy a unique position of trust in our society. . . . They are given the authority to detain and to arrest .... Those who challenge an officer’s actions do so at their peril . . . .”
(Mary M. v. City of Los Angeles
(1991)
As observed above, the concepts of consent and force or fear with regard to kidnapping are inextricably intertwined. (See
Michele D., supra,
We therefore conclude an implicit threat of arrest satisfies the force or fear element of section 207(a) kidnapping if the defendant’s conduct or statements cause the victim to believe that unless the victim accompanies the defendant the victim will be forced to do so, and the victim’s belief is objectively reasonable.
We further conclude there was substantial evidence here of force or fear, i.e., that Alesandria entered defendant’s van under such implicit threat of arrest. In making this determination, we do not resolve evidentiary conflicts, but “ ‘view the evidence in a light most favorable to’ ” the People, “ ‘and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ ”
(People v. Johnson
(1980)
First, there was substantial evidence Alesandria subjectively feared arrest. Alesandria testified she was afraid she would be arrested if she did not get into the van. She believed defendant had the authority to arrest her because he displayed a badge and identified himself as a security officer. Alesandria *332 had never dealt with the police before, and was afraid to not get into the van. “I requested to see his badge because I didn’t believe him. But at the same time I didn’t want to not believe him if he was telling the truth. I didn’t want to make a situation worse than it had already been.”
Moreover, Alesandria’s belief that she would be arrested if she did not accompany defendant back to the mall was objectively reasonable. Defendant approached the victim, who had been riding her bike, and stopped her by holding up a badge. He identified himself as a security guard, and indicated he stopped her for a law enforcement purpose. Specifically, he told the victim he had received a call about a suspected theft from a store Alesandria had just visited twice, and that the suspected thief was someone on a bicycle. Defendant told Alesandria she “would have to go with him.” He then exerted control over the victim’s belongings, at first trying to put her bike into his van. When he saw that the bike would not fit, he told her to lock it up, thus depriving her of transportation. He then took her backpack and put it in the van. Once the victim was in the van, defendant continued the ruse in a manner that reinforced the notion that he had law enforcement authority and that the victim might be in criminal trouble: He made a phone call to tell his partner or some other interested person that “the suspect was apprehended” and refused the victim’s request to call her parents, telling her she had to wait until they returned to the mall to do so.
As the Attorney General notes, when defendant “implicitly threatened Alesandria with arrest if she did not get in the van and return with him to the mall to face the theft allegations, he necessarily threatened her with the possibility of force if she did not comply.” This kind of compulsion is qualitatively different than if defendant had offered to give Alesandria a ride, or sought her assistance in locating a lost puppy, or any other circumstance suggesting voluntariness on the part of the victim. While defendant contends this is no more than a classic case of asportation by fraud, we disagree. As the Attorney General observes, defendant’s “misidentification of himself and his implicit threats of false arrest were simply the vehicle for his conveyance of threats of force and fear that compelled Alesandria to get in his van.” Thus, the evidence was sufficient to demonstrate a threat of force, and alternatively, that such a threat instilled fear in Alesandria that such force would actually be applied. Under either the force or the fear prong of the kidnapping statute, therefore, we conclude the evidence was sufficient.
Defendant asserts that Alesandria was not “afraid of some implicit threat of forcible arrest,” but rather “got into the van to prove her innocence,” and was “simply afraid of the possibility of going to jail.” It is not obvious how these concepts of fear of “implicit threat of forcible arrest” and fear of “the possibility of going to jail” substantially differ. In any event, contrary to *333 defendant’s assertions, we read the record as containing sufficient evidence from which a jury could reasonably conclude that Alesandria’s movement was compelled by an implicit threat of arrest.
Defendant also asserts that the Attorney General has waived the argument that the asportation was accomplished by the threat of force because the prosecutor did not make this argument below. Rather, he contends the “prosecution’s case-in-chief was built entirely on arguing the show of authority vitiated consent and instilled fear in Alesandria M. that compelled her to move.” As noted earlier, there is little meaningful distinction and considerable overlap between the concepts of threat of force and instilled fear. Moreover, whether characterized as any other means of instilling fear or threat of force by the prosecution below, the prosecutor argued at length that the only reason Alesandria got into the van was because of defendant’s show of authority and her fear she would be arrested, and hence her movement was not voluntary. Such argument focused the jury’s attention on the evidence demonstrating both a threat of force and a threat that instilled fear in Alesandria. The jury was instructed that the victim’s movement must be compelled by either force or fear, and was free to rely on either prong in reaching its verdict.
The Attorney General also asserts that the Legislature’s 1990 addition of the language “any other means of instilling fear” “increase^] the scope of liability for kidnapping to those who use fear of any type in order to compel the movement of their victims.” He asserts this would include, for example, threatening to report a coworker to a supervisor for sexual harassment unless the coworker accompanies the defendant. He further asserts, “[a] kidnapper could threaten the property, reputation, or livelihood of the victim in order to compel the victim to comply with the kidnapper’s demands.”
Here, it is apparent that defendant’s actions creating a threat of force would have constituted kidnapping even prior to the 1990 amendment to section 207(a), and that such a threat would also “instill[] fear” of the potential use of such force in the victim under the current wording of the statute. Because we conclude there was sufficient evidence Alesandria’s movement was accomplished by threatened force and fear of that threatened force, we need not decide in this case what other forms of fear would also satisfy the amended statute. We note, however, in response to the Attorney General’s suggested broad definition, that section 207(a) refers to “any other means of instilling fear,” not to “any fear.”
Moreover, our review of the legislative history of the 1990 amendment does not conclusively demonstrate that
any
fear would now satisfy section 207(a). For example, that history notes, “Although most kidnappings may be accomplished by the use of force, there are instances where the kidnapper
*334
may accomplish the same by instilling fear in the victim. For example, the kidnapper may threaten to kill a family member. Thus, by expanding the definition of the crime to include such situations, the bill would close a potential loophole in the law.” (Assem. Com. on Pub. Safety, Analysis of Sen. Bill No. 1564 (1989-1990 Reg. Sess.) as amended Jan. 16, 1990, p. 3.) This example of violence towards one close to the victim, rather than the victim herself, is categorically different from fear the perpetrator will not attend a high school prom with the victim, or other fears substantially removed from the use of force. Indeed, when we observed in
Hill, supra,
Disposition
The judgment of the Court of Appeal is reversed, and the case remanded to that court for proceedings consistent with this opinion.
George, C. J., Kennard, J., Baxter, J., Werdegar, J., Chin, J., and Moreno, J., concurred.
Appellant’s petition for a rehearing was denied August 11, 2004.
Notes
All further statutory references are to the Penal Code.
Defendant was also charged with crimes unrelated to this victim or the issue before us. Hence, we do not discuss them further.
Section 207 provides in relevant part: “(a) 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, [fj .. . [!] (f) Subdivisions (a) to (d), inclusive, do not apply to any of the following: [][]... HI (2) To any person acting under Section 834 or 837.”
Section 834 provides: “An arrest is taking a person into custody, in a case and in the manner authorized by law. An arrest may be made by a peace officer or by a private person.”
Section 837 provides: “A private person may arrest another: [][] 1. For a public offense committed or attempted in his presence, [f] 2. When the person arrested has committed a felony, although not in his presence. [J[] 3. When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it.”
In 1891, section 207 provided in relevant part: “Every person who forcibly steals, takes, or arrests any person in this State, and carries him into another . . . county, ... is guilty of kidnaping.” (1872 Pen. Code, § 207.)