In People v. Lewis, the Supreme Court today makes it easier for prosecutors to convict a defendant of kidnapping an intoxicated person. The court is unanimous, although there is a separate two-justice concurrence.
Using force or fear in transporting a victim is a statutorily required element of kidnapping, but the court’s opinion by Chief Justice Patricia Guerrero concludes “the Legislature must have intended [a] relaxed standard of force to apply to [intoxicated persons].” That force, the court says, “is akin to the relaxed force requirement applicable to infants and children.” It comes down to whether the victim, “because of intoxication or other mental condition, is unable to consent to the movement,” and the inability to consent “does not require total incapacitation or unconsciousness.”
The court also finds harmless a possible instructional error — the jury was told it could base a kidnapping conviction on deception.
Justice Leondra Kruger issues a concurring opinion, which Justice Joshua Groban signs. She stresses that kidnapping a child or intoxicated person by deception might indeed be a legitimate basis for a conviction when no force at all is involved. The court’s opinion finds the defendant “used some quantum of physical force” because “he admitted driving [the victim] in his car.” But, Justice Kruger posits, what if the defendant “persuaded [the victim] to walk with him to a nearby apartment” or, “instead of taking the defendant’s own car, the defendant hailed a cab or escorted her onto a city bus”? She asserts, “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.”
Justice Kruger also writes about the importance of “the requirement that the defendant act with at least criminal negligence as to the victim’s capacity to consent.”
The court reverses the divided published opinion by the Fourth District, Division Three, Court of Appeal.