Brief Bank # B-834 (Re: F 9.50 n10 [Kidnapping Of Child Too Young To Consent].)
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IN THE SUPREME COURT OF THE
STATE OF CALIFORNIA
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Petitioner,
vs.
JOHN DOE,
Defendant, Appellant,
and Respondent.
________________________________________/
On Appeal From the Judgment Of The Superior Court Of California,
San Diego County, No. SCD0000
Honorable Judith F. Hayes, Trial Judge
Excerpt from
APPELLANT’S OPENING AND ANSWER BRIEF ON THE MERITS
So’Hum Law Center Of
RICHARD JAY MOLLER
State Bar #95628
P.O. Box 1669
Redway, CA 95560-1669
Telephone: (707) 923-9199
Attorney for Appellant by
Appointment of the Supreme Court
III. THERE IS INSUFFICIENT EVIDENCE THAT APPELLANT KIDNAPPED THE SEVEN-MONTH OLD INFANT AGAINST HER WILL BY MEANS OF FORCE OR FEAR
A. The Relevant Facts and the Ruling Below
As noted earlier, the jury acquitted appellant of the offense specified in Count 2—kidnapping Baby M during the course of a carjacking—but found him guilty of the lesser-included offense of kidnapping her. (CT 375, 376-377, 525.)
Purportedly relying on People v. Oliver (1961) 55 Cal.2d 761, the court below upheld the kidnapping conviction. (Slip op. at 18-21.)
B. There Is Insufficient Evidence That Appellant Took The Infant Against Her Will By Means Of Force Or Fear
Kidnapping is proscribed in section 207(a), which states:
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 another part of the same county, is guilty of kidnapping. [Emphasis added.]
This provision, similar to the provisions for robbery, carjacking, and rape, embraces two distinct elements at issue here. First, the taking must be “forcibly, or by any other means of instilling fear.” (See People v. Moya (1992) 4 Cal.App.4th 912, 916-917; People v. Stephenson (1974) 10 Cal.3d 652, 659-660; CALJIC No. 9.50 [“A person was unlawfully moved by the use of physical force, or by any other means of instilling fear.”].)
Second, the state must prove that the perpetrator overcame the victim’s will. Although section 207(a) does not expressly list this element, the standard jury instruction clearly states that the prosecution must prove that “the movement of such other person was without her consent.” (CALJIC No. 9.50; see also People v. Moya, supra, 4 Cal.App.4th at 916 [the essence of kidnapping is that the defendant overcome the victim’s free will by force or threats]; People v. Martinez (1984) 150 Cal.App.3d 579, 599 [same]; People v. Stephenson (1974) 10 Cal.3d 652, 659-660.) [Footnote 1]
It is impossible to take an infant against her nonexistent will, because, as the court of appeal appreciated, a baby cannot be said to have a “free will.” (Slip op. at 18.) While there could be circumstances where it might be possible to make an inference that an infant’s will was overcome, there are no analogous circumstances in appellant’s case. For the same reasons appellant did not take the car from Baby M against her will, he did not take Baby M herself against her will, especially because appellant never separated her from her mother. [Footnote 2] (See AOB, infra, section I.C. at 12-18.)
In most cases, even those involving the taking of a young child, proof of these elements is not problematic. For example, in Parnell v. Superior Court (1981) 119 Cal.App.3d 392, the court of appeal upheld a conviction for kidnapping a seven-year old boy when the kidnappers refused the boy’s request to contact his parents.
One cannot imagine a more threatening situation: A seven-year-old youngster in a moving automobile under the control of two adult strangers who twice countermanded the child’s request to contact his parents. The substitution of wills, [the kidnappers’ for the child’s], together with the physical and psychological confinement of the moving automobile is ample force to satisfy the “forcible taking” element of section 207.
(Id. at 402; see also People v. La Salle (1980) 103 Cal.App.3d 139, 146-147 [the failure to stop the car when the victim said she had to go home was sufficient force to support a conviction for kidnapping]; People v. Kelly (1990) 51 Cal.3d 931, 959 [forcibly taking a person capable of giving consent is kidnapping, regardless of the defendant’s good or innocent motives].)
Where, however, the case involves an alleged victim too young to consent, the proper construction and application of the kidnapping statute is more difficult. This Court confronted one aspect of that issue in People v. Oliver (1961) 55 Cal.2d 761. In that case, which involved a two-year old victim, the Court recognized that in some instances a person may forcibly move a child against his or her will, but in the interests of the child’s safety. [Footnote 3]
The Court declared that in those circumstances, where the child was “unable to give his consent because of his immature years,” no kidnapping occurred. But if the defendant acted “in the same manner for an evil and unlawful purpose,” a court should uphold the kidnapping conviction. (Id. at 764-766.) Thus, the Oliver Court added a gloss to the statutory element that the taking occur “forcibly”: where the alleged victim had no capacity to consent and was moved for his or her own good, the prosecution must also prove that the defendant had an unlawful purpose against the child. In Oliver, the prosecution met that additional requirement by proof that the defendant took the child in order to commit lewd acts with him. The court of appeal, however, misread Oliver in two important respects.
1. Oliver Did Not Eliminate The Element Of Force Or Fear For The Kidnapping Of Children
First, the court below mistakenly dispensed with the statutory requirement that the kidnapping be accomplished by means of force or fear. [Footnote 4] Oliver, of course, did no such thing. On the contrary, its discussion of the issue used the words “forcibly” or “forcible” nearly a dozen times, clearly signaling that this statutory element remained intact, and that the decision only added another element to prevent unjust convictions. [Footnote 5] (See People v. Oliver, supra, 55 Cal.2d at 764-766.)
Although force need not be physical, there must be some compulsion. (See People v. Alcala (1984) 36 Cal.3d 604, 622 [“The movement is forcible where it is accomplished through the giving of orders which the victim feels compelled to obey because he or she fears harm or injury from the accused and such apprehension is not unreasonable under the circumstances. . . . [W]here the victim expresses the desire to leave the car, or not to accompany the defendant in the direction he is going, but the defendant ignores the plea and continues to drive so fast that the victim cannot escape, force or fear is established.”].) To hold otherwise—to equate movement with force—would make the word “force” surplusage, a disfavored construction of a statute. (See City and County of San Francisco v. Farrell, supra, 32 Cal.3d at 54; Ratzlaf v. United States, supra, 510 U.S. at 140-141.)
Thus, the sole fact that Baby M was in her mother’s car does not establish the element of force. Indeed, there is no basis in the record to infer that the infant wanted to be anywhere else than with her mother.
No doubt, the degree of force need not be substantial. In construing the analogous robbery statute, the court of appeal held that “[t]he degree of force used is immaterial. All the force that is required to make the offense a robbery is such force as is actually sufficient to overcome the victim’s resistance.” (People v. Jones (1992) 2 Cal.App.4th 867, 870-871; see also People v. Garcia (1996) 45 Cal.App.4th 1242, 1246 [“for purposes of the crime of robbery, the degree of force is immaterial”].) Alternatively, the necessary force must be “physical force substantially different from or substantially greater than that necessary to accomplish the . . . act itself.” (See People v. Cardenas (1994) 21 Cal.App.4th 927, 939 [definition of force within the meaning of section 288(b), prohibiting lewd acts with children].) In the present case, however, the prosecution presented no evidence that appellant employed any force to overcome Baby M’s resistance or that he used any force beyond that necessary to accomplish the movement itself.
For the same reasons addressed at length with respect to appellant’s conviction of carjacking of Baby M, there is also insufficient evidence that she suffered fear with respect to being moved in the car with her mother. (See AOB, infra, section I.C.2 at 18-24.)
Where evidence of force or fear is lacking, as in the present case, the state may rely on the section 278, the child abduction statute. [Footnote 6] (See People v. Hyatt (1971) 18 Cal.App.3d 618, 623 [§ 278 is violated when the father took his children for visitation with the intent to detain and conceal them from the mother who had custody]; People v. Smith (1936) 17 Cal.App.2d 468, 476 [consent of child immaterial].)
There is no reason to distort the kidnapping statute. Simply because a layperson might equate kidnapping with abduction, much as he or she might equate assault with battery, does not make an abduction a kidnapping any more than it makes an assault a battery. Appellant’s conviction for kidnapping Baby M cannot stand, because, even assuming her movement was for an illegal purpose, there is no evidence she was moved “forcibly or by any other means of instilling fear.”
2. With Respect To A Child Incapable Of Giving Consent, Oliver Requires Proof Of An Intent To Commit A Crime Against The Child
The court of appeal’s second misreading of Oliver relates to what the prosecution must prove—in addition to a forcible taking—where the alleged victim is incapable of consenting. The court below mistakenly read Oliver to hold that a conviction for kidnapping an infant could be sustained if the defendant had an unlawful intent to commit any crime against anyone, not just the child. According to the court of appeal, appellant’s intent to commit crimes against Ms. R met the Oliver holding. (Slip op. at 21.)
The facts and reasoning in Oliver, however, demonstrate that the additional proof concerns the defendant’s unlawful intent toward the child. The Oliver Court upheld the kidnapping conviction because the defendant intended to commit lewd acts on the child. (People v. Oliver, supra, 55 Cal.2d at 764-766.) Thus, because appellant had no unlawful intent regarding Baby M—such as the lewd acts in Oliver—she was not kidnapped. Baby M was, quite literally, along for the ride. It may have been child abduction—where no proof of “force or fear” or “unlawful purpose” is required—but it was not kidnapping. (See People v. Ojeda-Parra (1992) 7 Cal.App.4th 46, 51 [a kidnapping conviction involving a three-year old victim requires proof that the defendant “acted with . . . the same unlawful purpose or intent that would make the kidnapping an aggravated one under section 209.”].) Hence, appellant’s conviction for kidnapping Baby M must be reversed, because there was insufficient evidence that appellant intended to commit a crime against her, and insufficient evidence that appellant moved her “forcibly or by any other means of instilling fear.” [Footnote 7]
CONCLUSION
For the foregoing reasons, appellant respectfully requests this Court to reverse both his convictions of carjacking and kidnapping Baby M, and remand for resentencing.
Dated: September 9, 1999 Respectfully submitted,
____________________
RICHARD JAY MOLLER
Attorney for
Defendant/Appellant*
* Appointed counsel wishes to thank Professor John P. Dwyer of Boalt Hall, University of California at Berkeley, and Appellate Defenders for their assistance on this brief.
FOOTNOTES:
Footnote 1: Of course, just as there is a grand theft correlate for robbery and a car theft correlate for carjacking—in cases where there is no evidence of “force or fear” or “against the will”—so too there is a child abduction correlate for kidnapping. (§ 278.) Thus, these elements, which are designed for circumstances involving additional risk of injury, distinguish kidnapping from the lesser offense of child abduction, where the danger is reduced.
Footnote 2: Even if the infant’s age and lack of awareness may satisfy the lack-of-consent element of kidnapping, it does not obviate the need for the state to prove the movement was accomplished by means of force or fear.
Footnote 3: At the time of the Oliver decision, the kidnapping statute covered every “person who forcibly steals, takes, or arrests any person . . . “, and did not include the language – “or by any other means of instilling fear” – that now follows the word “forcibly.” In light of the statutory amendment, “force or fear” has been substituted for simple “force.” (People v. Moya, supra, 4 Cal.App.4th at 916-917.)
Footnote 4: Some other courts have made the same mistake. (See, e.g., People v. Campos (1982) 131 Cal.App.3d 894, 898-899 [affirming a conviction for kidnapping an 11-month old baby, in the absence of any evidence of a forcible taking, on the ground that any movement of a child unable to give legal consent is kidnapping, unless done for a “good or innocent reason”]; see also People v. Rios (1986) 177 Cal.App.3d 445, 451 [requirement of force may be relaxed when the victim is a minor]; People v. Senior (1992) 3 Cal.App.4th 765, 780-781 [“a parent is liable for kidnapping if he or she exercises custodial rights for an illegal purpose.”].)
Footnote 5: The trial court instructed the jury under CALJIC No. 9.57, which stated:
If the person moved away is incapable of consenting thereto by reason of immaturity or mental condition, then the person moving such person is guilty of kidnapping only if such act was done with the specific intent to Carjack or Rob after moving. (CT 310.)
The above instruction, based on Oliver, does not say anything about eliminating the distinct element of the crime that the movement must be “accomplished by force or fear” or the other element of simple kidnapping: movement for a substantial distance. (See People v. Stanworth (1974) 11 Cal.3d 588, 600-604.) It is appellant’s position that these two elements still need to be proven, even if the child’s inability to consent requires the state to prove, instead, that the movement was done with the specific intent to commit another crime against the child. Of course, appellant makes no claim that there was insufficient evidence of movement for a substantial distance. (See People v. Martinez (1999) 20 Cal.4th 225, 233-238.)
Footnote 6: Section 278 provides:
Every person, not having a right to custody, who maliciously takes, entices away, keeps, withholds, or conceals any child with the intent to detain or conceal that child from a lawful custodian shall be punished by imprisonment . . . .
The child abduction provision “is designed to protect parents against the anxiety and grief which necessarily follow from the taking of their children.” (People v. Campos (1982) 131 Cal.App.3d 894, 899.)
Footnote 7: Carried to its logical conclusion, the court of appeal’s holding would mean that anyone who moves a child (presumably even teenagers), without the use of physical force or any other means of instilling fear, is still guilty of kidnapping, so long as he or she has an evil or unlawful intent directed at anyone. (But see United States v. Macklin, supra, 671 F.2d at 64-65 [court reverses convictions for kidnapping two children, ages 11 and 13, because the children voluntarily went with the defendant, and the federal kidnapping law does not apply to “Pied Piper characters who do no more than attract runaway children”].)
