People v. Lewis ( 2023 )

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
RODNEY TAUREAN LEWIS,
Defendant and Appellant.
S272627
Fourth Appellate District, Division Three
G060049
Santa Clara County Superior Court
B1366626
June 22, 2023
Chief Justice Guerrero authored the opinion of the Court, in
which Justices Corrigan, Liu, Kruger, Groban, Jenkins, and
Evans concurred.
Justice Kruger filed a concurring opinion, in which Justice
Groban concurred.
PEOPLE v. LEWIS
S272627
Opinion of the Court by Guerrero, C. J.
A jury convicted defendant Rodney Taurean Lewis of
raping S.D. while she was intoxicated (Pen. Code, § 261,
subd. (a)(3))1 and kidnapping S.D. to commit rape (§ 209,
subd. (b)). The trial court sentenced Lewis to a determinate
term of eight years in prison for the rape conviction and a
consecutive indeterminate term of life imprisonment, with the
possibility of parole after seven years, for the kidnapping
conviction.
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–
1
Subsequent statutory references are to the Penal Code.
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Opinion of the Court by Guerrero, C. J.
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
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Opinion of the Court by Guerrero, C. J.
verdict, the jury found that Lewis moved or made S.D. move a
substantial distance, beyond that merely incidental to the
commission of rape, and it was undisputed at trial that Lewis
used some quantum of physical force — he admitted driving
S.D. in his car — to accomplish that movement. The jury also
found the remaining elements of the offense, including that
Lewis had the requisite illegal intent. Any rational juror who
made these findings would, based on the evidence at trial, have
likewise found Lewis guilty of kidnapping under the relaxed
force standard beyond a reasonable doubt. (In re Lopez (2023)
14 Cal.5th 562, 589 (Lopez).) In other words, “it would be
impossible, based on the evidence, for a jury to make the
findings reflected in its verdict without also making the findings
that would support a valid theory of liability.” (Id. at p. 568.)
Because the Court of Appeal found prejudicial
instructional error, it was unnecessary for it to consider Lewis’s
other appellate contentions. We therefore reverse the judgment
of the Court of Appeal but remand with directions to conduct
further proceedings, including addressing any contentions that
remain unresolved by this opinion.
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
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underwear was partly pulled down. The paramedic spoke to
S.D., and she slowly became more responsive. S.D. told the
paramedic she had been at a bar the night before and recalled
she had lost her cell phone there. She said a man had
approached her, told her he knew where the phone was, and said
she should come with him. S.D. did not remember how the night
ended or how she came to be in the parking lot. The paramedic
suspected S.D. had been sexually assaulted, and he arranged to
have her transported to a hospital where she could be examined
and treated.
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
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showed a blood-alcohol level of 0.18 percent. Her urine test,
converted to blood-alcohol equivalent, reflected a value of
0.23 percent. Testing also revealed the presence of the
prescription drug Xanax in S.D.’s urine. S.D. was not prescribed
Xanax and had no memory of ever taking it.2
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.
2
Xanax, combined with alcohol, can cause blackouts and
memory loss.
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Lewis told S.D. his friend had found a phone. Lewis said he
would call the friend, and he put his own phone to his ear.
(Lewis’s cell phone records do not reflect any calls at that time.)
Lewis suggested they have a drink while they waited for Lewis’s
friend to return. S.D. remembered walking up to the bar, but
nothing else from that evening. Her next memory was from the
following day at the hospital.
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
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talking with someone else. S.D. drinks the shot and sips her
other drink. Lewis tries to order two more shots, but the
bartender initially refuses. After Lewis talks to the bartender,
she eventually serves them. Lewis and S.D. each drink a shot.
Lewis and S.D. speak with S.D.’s date and then walk to the front
of the bar. S.D.’s date follows them but, once in the front bar,
he stops and begins to dance. At approximately 12:45 a.m., S.D.
and Lewis appear to leave Rudy’s.
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
3
A criminalist testified about S.D.’s level of intoxication
that night based on the number of drinks S.D. had consumed.
Assuming the wine from dinner had been completely
metabolized and S.D. drank the equivalent of four or four and a
half drinks at Rudy’s, her blood-alcohol level would be
approximately 0.13 percent. However, working backward from
her blood-alcohol level of 0.18 percent the next morning, S.D.
would have had a blood-alcohol level of 0.35 percent when she
left Rudy’s. The criminalist testified it was common for people
who have been drinking to underestimate their level of
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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
intoxication and to misjudge the number of alcoholic drinks they
have consumed.
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arrived. Lewis danced with a couple of women, but he denied he
was at Rudy’s to pick someone up. Lewis eventually met S.D.
on the dance floor, and she told him she had lost her phone.
Lewis said he “thought [he] saw somebody pick something up,”
but he denied telling S.D. that his friend had found a phone or
that he would help her find it. They chatted and went over to
the bar. The surveillance video shows them leaning close
together, and Lewis believes they were kissing briefly. Lewis
bought S.D. a shot as well as another drink that consisted
almost entirely of liquor. Lewis remembered ordering two
additional shots, but he claimed they were both for himself. He
did not recall the bartender telling him that S.D. should not
drink any more. Lewis left Rudy’s with S.D. and offered her and
her date a ride home. Lewis claimed that S.D. wanted a ride
home alone. They drove a short while, stopped, and had
consensual sex. Lewis said S.D. was “drunk” (as was he) but she
was able to consent. Afterward, Lewis continued to drive S.D.
home. When Lewis was asked on direct examination which
direction, he first answered, “North,” and then, after further
prompting, he said, “South.” While they were driving, S.D. said
she wanted to get out, so Lewis let her out. S.D. seemed “happy”
or “relieved” that Lewis let her out, and Lewis gave her a
blanket from his car. Lewis got back on the freeway and went
home. He denied taking S.D. to his house or having sex with
her there.
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
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Opinion of the Court by Guerrero, C. J.
substance or a combination of both prevented the woman from
resisting,” and (4) “the defendant knew or reasonably should
have known that the effect of an intoxicating or controlled
substance prevented the woman from resisting.” The
instructions further explained, “A person is prevented from
resisting if he or she is so intoxicated that he or she cannot give
legal consent. In order to give legal consent, a person must be
able to exercise reasonable judgment. In other words, the
person must be able to understand and weigh the physical
nature of the act, its moral character, and probable
consequences. Legal consent is consent given freely and
voluntarily by someone who knows the nature of the act
involved.”
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
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Opinion of the Court by Guerrero, C. J.
is incapable of giving legal consent if he or she is unable to
understand the act, its nature, and possible consequences. [¶]
Deception includes tricking the mentally impaired person into
accompanying him or her a substantial distance for an illegal
purpose.”4
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 (§ 261,
subd. (a)(3)) and kidnapping S.D. to commit rape (§ 209,
subd. (b)). After the verdicts, the court and the parties
memorialized certain off-the-record discussions regarding jury
instructions that had occurred previously. For the offense of
kidnapping to commit rape, the court explained that its eventual
4
The court defined “substantial distance” to mean “more
than slight or trivial distance. The movement must have
increased the risk of physical or psychological harm to the
person beyond that necessarily present in the rape of a woman
while intoxicated. In deciding whether the movement was
sufficient, consider all the circumstances relating to the
movement.”
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jury instruction was a combination of CALCRIM No. 1201
(kidnapping a child or other person incapable of consent) and
CALCRIM No. 1203 (kidnapping for the purpose of rape or other
offenses). The parties largely agreed to this combination and
the language as given, including the reference to movement of a
person with a mental impairment. Defense counsel did,
however, object to the inclusion of deception as an alternative
theory of kidnapping. The trial court overruled the objection.
The court likewise denied Lewis’s motion for a new trial
premised on the same instructional error.
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
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to commit rape and barred retrial based on insufficiency of the
evidence. (Id. at p. 23.)
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
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punished by imprisonment in the state prison for life with the
possibility of parole.” (§ 209, subd. (b)(1).) Aggravated
kidnapping builds on the definition of kidnapping in section 207.
(People v. Daniels (1969) 71 Cal.2d 1119, 1131.) The statute
provides, as relevant here, “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.” (§ 207, subd. (a).) This
general offense of kidnapping includes an element of force or
fear. We have held it cannot be accomplished by fraud or
deception alone. (People v. Majors (2004) 33 Cal.4th 321, 327
(Majors).)5
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
5
Other, specialized varieties of kidnapping do not
necessarily require force or fear. (See § 207, subds. (c), (d).)
These varieties of kidnapping are not at issue here.
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adult victim like S.D. is not the same as the force required to
kidnap an unimpaired victim. Instead, the force required to
kidnap an intoxicated victim is akin to the relaxed force
requirement applicable to infants and children. Lewis responds
that the relaxed force requirement is inapplicable and contrary
to the statute where, as here, the victim is an adult. We
conclude the Attorney General is correct.
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,
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as applied to small children, might cover situations where “a
minor, unable to give his consent because of his immature years,
might be forcibly taken and transported by an adult for a good
or innocuous purpose, and in which it would be unthinkable that
the adult should be held guilty of kidnaping.” (Ibid.) By
contrast, an adult who transports a child “with an evil and
unlawful intent” would “fall within the legislative purpose” and
properly be convicted of kidnapping. (Ibid.)
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,
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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
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PEOPLE v. LEWIS
Opinion of the Court by Guerrero, C. J.
minor was found to have violated section 207 by kidnapping a
12-month-old infant. (Michele D., at p. 604.) While on a
shopping trip with a friend, the minor took the infant from her
stroller and walked away. (Id. at p. 603.) A witness saw the
minor with the infant and took them inside. (Id. at p. 604.)
Police, who were searching for the infant, arrived and arrested
the minor. (Ibid.) In appellate proceedings, the minor argued
that the evidence was insufficient to show a violation of
section 207 because she had not “forcibly seized” the infant.
(Michele D., at p. 605.)
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
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PEOPLE v. LEWIS
Opinion of the Court by Guerrero, C. J.
or child in this manner is the prime example of kidnapping and
is clearly intended to be within its scope.’ ” (Michele D., supra,
29 Cal.4th at pp. 607–608.)
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. (§ 207,
subd. (e), added by Stats. 2003, ch. 23, § 1.) The Legislature
explained, “The amendment to Section 207 of the Penal Code
made by this act codifies the holding in [Michele D.], and does
not constitute a change in existing law.” (Stats. 2003, ch. 23,
§ 2, p. 99.)
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.) At some
point, she realized a person was touching her breasts, but she
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PEOPLE v. LEWIS
Opinion of the Court by Guerrero, C. J.
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
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PEOPLE v. LEWIS
Opinion of the Court by Guerrero, C. J.
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,
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PEOPLE v. LEWIS
Opinion of the Court by Guerrero, C. J.
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).
22
PEOPLE v. LEWIS
Opinion of the Court by Guerrero, C. J.
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.)
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PEOPLE v. LEWIS
Opinion of the Court by Guerrero, C. J.
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
6
Although it should be obvious, we emphasize the
requirement that a defendant act with illegal intent or for an
illegal purpose to be liable for kidnapping an unresisting
intoxicated victim does not necessarily mean that a defendant
who kidnaps a resisting intoxicated victim must act with such a
specific intent. (See People v. Hartland (2020) 54 Cal.App.5th
71, 78–79 [a defendant who kidnaps a resisting intoxicated
victim need only act with general intent].) The latter situation
is materially different, and we need not consider it here.
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PEOPLE v. LEWIS
Opinion of the Court by Guerrero, C. J.
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
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PEOPLE v. LEWIS
Opinion of the Court by Guerrero, C. J.
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
7
We note the jury instructions here did not merely
articulate the relaxed force standard. The instructions
specifically required the prosecution to show that Lewis “knew
or reasonably should have known that [S.D.] was a person with
a mental impairment.” The parties agreed to this instruction in
the trial court, and the Attorney General concurs it was properly
given under the circumstances. It reflects the general principle
that an alleged kidnapper must harbor at least “criminal
negligence as to consent.” (People v. Fontenot (2019) 8 Cal.5th
57, 68.) Where, as here, a victim lacks the ability to consent,
this principle requires that the defendant knew or should have
known of the victim’s impaired state. A defendant is not liable
for kidnapping a mentally impaired adult if the defendant
actually and reasonably believed the victim was not a mentally
impaired person. This requirement applies to the aggravated
kidnapping of a mentally impaired adult alleged here (§ 209,
subd. (b)), as well as the simple kidnapping of a mentally
impaired adult (§ 207, subd. (a)). Jury instructions like
CALCRIM No. 1201 that do not explicitly recite this
requirement, but rely on the relaxed force concept for
kidnapping a mentally impaired adult, risk materially
misstating the law. On a separate matter, we have no occasion
here to consider the precise nature of the additional required
mental state — illegal intent or illegal purpose — that is
required in the relaxed force context. (See People v. Singh (2019)
42 Cal.App.5th 175, 181–183.) The intent to rape certainly
suffices.
26
PEOPLE v. LEWIS
Opinion of the Court by Guerrero, C. J.
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
27
PEOPLE v. LEWIS
Opinion of the Court by Guerrero, C. J.
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
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PEOPLE v. LEWIS
Opinion of the Court by Guerrero, C. J.
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
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PEOPLE v. LEWIS
Opinion of the Court by Guerrero, C. J.
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. 13.) A court may examine
“the entire cause, including the evidence.” (Ibid.)
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PEOPLE v. LEWIS
Opinion of the Court by Guerrero, C. J.
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
8
Lewis takes issue with this articulation of the standard of
prejudice. He asserts that a reviewing court can only examine
what the jury actually did, rather than what a reasonable jury
would do if properly instructed. We addressed and rejected this
assertion in Aledamat. We disagreed that an alternative-theory
error “requires reversal unless there is a basis in the record to
find that ‘the jury has “actually” relied upon the valid theory.’ ”
(Aledamat, supra, 8 Cal.5th at p. 9.) Instead, we held an
alternative-theory error harmless where “ ‘[n]o reasonable
jury’ ” could have made the findings reflected in its verdict
without finding the omitted element as well. (Id. at p. 15.) We
recently confirmed and expanded on this principle. (Lopez,
supra, 14 Cal.5th at pp. 580–581.) Lewis’s reliance on the
United States Supreme Court’s opinion in Sullivan v. Louisiana
(1993) 508 U.S. 275 for a different standard is unavailing for the
reasons we explained in Lopez, at pages 583 to 584.
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PEOPLE v. LEWIS
Opinion of the Court by Guerrero, C. J.
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
9
We are aware that an argument could be made that
Michele D.’s relaxed force requirement includes “physically
escorting” the victim to a remote location for an illegal purpose
or with an illegal intent. (People v. Dalerio (2006)
32
PEOPLE v. LEWIS
Opinion of the Court by Guerrero, C. J.
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
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.
10
Lewis contends the error was not harmless beyond a
reasonable doubt because “the prosecution relied heavily” on the
theory of deception during its opening and closing arguments.
But, as we recently explained, “[t]he prosecutor’s mere reliance
on an invalid theory will not overcome a showing of
harmlessness under Neder and Aledamat.” (Lopez, supra,
14 Cal.5th at p. 590.)
33
PEOPLE v. LEWIS
Opinion of the Court by Guerrero, C. J.
that Lewis “used physical force or deception to take and carry
away an unresisting person with a mental impairment.” (Italics
added.) This requirement was repeated in the two subsequent
instructions relating to movement: “acting with [intent to rape
an intoxicated person], the defendant moved the person with a
mental impairment a substantial distance,” and “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.” (Italics added.) The jury
further found that S.D. was a mentally impaired person: she
“suffered from a mental impairment that made her incapable of
giving legal consent to the movement.” Thus, the jury found
beyond a reasonable doubt that S.D. was mentally impaired at
the relevant time, regardless of whether it thought Lewis used
force or deception to move her. As the separate opinion below
explained, “In finding [Lewis] guilty of kidnapping for rape, the
jury necessarily determined that [S.D.] was mentally
incapacitated due to intoxication and that [Lewis] intended to
rape her in that condition when they left the bar together.”
(Lewis, supra, 72 Cal.App.5th at p. 33 (conc. & dis. opn. of
Bedsworth, J.).)
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.
34
PEOPLE v. LEWIS
Opinion of the Court by Guerrero, C. J.
III. CONCLUSION
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.
35
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
1
PEOPLE v. LEWIS
Kruger, J., concurring
adult. Because the Attorney General has conceded it was error
to instruct the jury on a kidnapping-by-deception theory, the
majority opinion does not address the issue. But to be clear, this
silence is not an endorsement: Whether the kidnapping of
young or impaired victims can be accomplished by deception —
or, for that matter, by any other means not involving technical
uses of physical force — remains an open and significant
question.
Our precedent does make clear that the crime of
kidnapping typically cannot be accomplished by deception alone.
Penal Code section 207, subdivision (a) provides that a
kidnapping must be accomplished “forcibly, or by any other
means of instilling fear,” and Penal Code section 209, the
aggravated kidnapping statute, incorporates the same
requirement (People v. Daniels (1969) 71 Cal.2d 1119, 1131
(Daniels)). We have interpreted the force element of this force-
or-fear requirement to mean that kidnapping typically requires
the use of actual physical force, and we have not considered that
element satisfied by mere technical uses of force. In People v.
Stephenson (1974) 10 Cal.3d 652, for example, the defendant
tricked the victims into accepting a ride home from the airport
in his car, drove to a secluded location, and then robbed them of
their belongings. (Id. at p. 657.) We held that the victims “were
enticed to get voluntarily into defendant’s car by deceit or fraud”
and that because he “did not forcibly require any of them to
enter his car initially,” the charged offenses did not meet the
statutory definition of kidnapping. (Id. at pp. 659–660; see
People v. Majors (2004) 33 Cal.4th 321, 327.)
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
2
PEOPLE v. LEWIS
Kruger, J., concurring
victims lack the ability to understand what is happening to
them, whether because of their young age or mental condition,
the law does not insist on the same force-or-fear showing as
would be required in kidnapping cases involving victims who are
legally capable of consenting to movement. In the seminal case
of People v. Oliver (1961) 55 Cal.2d 761 (Oliver), the defendant
led a two-year-old boy away by the hand, taking him from an
alley at the back of his home behind a fence somewhere nearby.
(Id. at p. 763.) We noted that the child “went willingly with [the]
defendant,” but because the child was “too young to give his legal
consent to being taken,” we took the view that the defendant’s
conduct would be sufficient to establish the actus reus element
of kidnapping. (Id. at p. 764; see id. at pp. 764–765.) We thus
concluded, at least implicitly, that leading the willing child away
by the hand satisfied the statute’s requirement of a forcible
taking. We reversed the defendant’s kidnapping conviction,
however, because the jury had not been instructed that the
defendant must take the child for an unlawful purpose. (Id. at
p. 768.) We interpreted the statute to require this unlawful
intent in order to ensure that a defendant who moved a child
without consent but for “a good or innocuous purpose” could not
be convicted of kidnapping. (Id. at p. 765.) And we noted that
the same considerations should govern the substantive law of
kidnapping in cases involving adult victims “who by reason of
extreme intoxication, delirium or unconsciousness from injury
or illness” are similarly unable to consent to being moved.
(Ibid.)
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
3
PEOPLE v. LEWIS
Kruger, J., concurring
taken a 12-month-old child from a stroller and carried the child
away, but she argued that there was insufficient evidence to
support her kidnapping conviction because she had not taken
the child “forcibly,” as that term is used in Penal Code section
207, subdivision (a). We rejected the argument. In interpreting
the statute’s force-or-fear requirement, we sought to avoid the
“absurd consequence of allowing a defendant who carries off an
infant or small child . . . to escape liability.” (Michele D., at
p. 613.) We thus concluded that “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.” (Id. at p. 610.)
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
4
PEOPLE v. LEWIS
Kruger, J., concurring
necessary to hold a hand or push a stroller. (Cf. People v. Dalerio
(2006) 144 Cal.App.4th 775, 777–778 [holding that the evidence
of kidnapping sufficed to satisfy the corpus delicti rule where
the defendant “deceived a nine-year-old child into voluntarily
accompanying him” by telling her that her friends were nearby
“looking at a deer” and then “physically escorted” her to a remote
location]; but see People v. Nieto (2021) 62 Cal.App.5th 188, 197
[holding that deception is not an alternative to force under the
general kidnapping statute in a case involving a six-year-old
victim].) As the majority explains, in cases where the victim is
a small child or suffers from a mental impairment, it is the
victim’s inability to consent that justifies a departure from the
ordinary standard of force. (Maj. opn., ante, at p. 22.) A
defendant who moves such a victim for an unlawful purpose
would seem equally blameworthy, regardless of whether the
movement was accomplished through the use of force in a
technical sense, deception, or some other means.
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 632that 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.)
5
PEOPLE v. LEWIS
Kruger, J., concurring
The majority opinion takes no sides on this issue, instead
concluding any instructional error was harmless because “it was
undisputed at trial that Lewis used some quantum of physical
force to move S.D.” (Maj. opn., ante, at p. 32.) The majority
explains: “Lewis admitted driving S.D. away from [the bar], and
the act of driving necessarily involved the application of physical
force to S.D. under the relaxed force standard in Michele D.
[Citation.] 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.” (Ibid.)
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
6
PEOPLE v. LEWIS
Kruger, J., concurring
(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.
7
PEOPLE v. LEWIS
Kruger, J., concurring
Again, it is unnecessary to decide the issue in this case, so
the majority does not decide it. But the majority’s willingness
to assume, for the sake of argument, that the kidnapping-by-
deception instruction was invalid should not be mistaken for a
judicial determination of invalidity. The question whether
kidnapping liability exists only if the defendant can be shown to
have used physical force to move the victim — even if only in a
technical sense — is one that warrants further attention in an
appropriate case.
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
8
PEOPLE v. LEWIS
Kruger, J., concurring
explanation in People v. Fontenot (2019) 8 Cal.5th 57 of the
mental state required for kidnapping: “Conviction under [Penal
Code] section 207, subdivision (a) requires the defendant to
intentionally perform the physical acts constituting the crime.
And because any criminal conviction in California (with a few
exceptions not applicable here) requires, as a threshold matter,
‘ “a union of act and wrongful intent” ’ (People v. Mayberry (1975)
15 Cal.3d 143, 154 [125 Cal.Rptr. 745, 542 P.2d 1337]
(Mayberry)) under [Penal Code] section 20, we have further
concluded that someone with an honest and reasonable belief
that the victim ‘voluntarily consented to accompany him’
(Mayberry, at p. 155) is not guilty of completed kidnapping. (See
also [Pen. Code,] § 26, class Three [providing that someone is not
guilty of a crime if they ‘committed the act or made the omission
charged under an ignorance or mistake of fact, which disproves
any criminal intent’].) So to satisfy a basic requirement for
criminality — that a defendant’s mental state be culpable in
some minimal way — completed kidnaping under [Penal Code]
section 207, subdivision (a) requires not just the intentional
commission of physical acts, but also — at least — criminal
negligence as to consent. (Mayberry, at p. 154, citing People v.
Vogel (1956) 46 Cal.2d 798, 801, fn. 2 [299 P.2d 850].)” (Id. at
p. 68.)
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
9
PEOPLE v. LEWIS
Kruger, J., concurring
crimes. (Pen. Code, § 209, subd. (b).) There is thus no danger of
penalizing a defendant with entirely innocent intentions. But
the actual or constructive knowledge requirement serves an
important purpose, in that it ensures that the defendant
harbored a culpable mental state specifically with respect to the
act of taking and carrying away a victim who was unable either
to consent or resist.
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 Penal Code section 209, subdivision (b), there is
likewise a danger the defendant could be liable for aggravated
kidnapping for the same conduct, despite having no intention of
moving the victim somewhere the victim had not agreed to go.
As all parties here agree, the jury was properly instructed that
they had to find more — that Lewis knew or should have known
S.D. was intoxicated to a degree that rendered her unable to
legally give consent — in order to return a conviction.
10
PEOPLE v. LEWIS
Kruger, J., concurring
With these observations, I join the majority’s opinion.
KRUGER, J.
I Concur:
GROBAN, J.
11
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Lewis
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 72 Cal.App.5th 1Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S272627
Date Filed: June 22, 2023
__________________________________________________________
Court: Superior
County: Santa Clara
Judge: Vincent J. Chiarello
__________________________________________________________
Counsel:
Swanson & McNamara, Edward W. Swanson and August Gugelmann
for Defendant and Appellant.
Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters,
Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant
Attorney General, Alice B. Lustre, Seth K. Schalit and Arthur P.
Beever, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
August Gugelmann
Swanson & McNamara LLP
300 Montgomery Street, Suite 1100
San Francisco, CA 94104
(415) 477-3800
Arthur P. Beever
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102
(415) 510-3761