• Kidnapping & Movement
• Intoxication & Consent

Kidnapping for the purposes of rape applies to a victim who, because of intoxication, cannot consent to movement (209(b) P.C.). 

The victim was found unconscious and wrapped in a blanket in a Palo Alto, California, parking lot. When a responding paramedic pulled back the blanket, it was noted the victim’s underwear was partially pulled down. Officers from the Palo Alto Police Department responded. The victim had difficulty answering questions, her eyes were “glassy” and she had a dazed look. During transportation to the hospital, the victim became more coherent. She told an officer that she had been in a bar called Rudy’s the night before and had lost her cell phone. A man approached her, told her he knew someone who may have found her phone, and said that she should come with him. The stranger called someone on his cell phone, then suggested they have a drink together. The victim remembered that she drank some sort of brown liquid in a whiskey glass. Her next memory was the following day at the hospital. 

The victim told hospital personnel that she had pain in her vaginal area but “I don’t remember a single thing.” A medical exam revealed vaginal abrasions and other physical indicators consistent with intercourse. The victim’s blood-alcohol content level taken at the hospital was .18, with the presence of the drug Xanax. The victim was not prescribed Xanax and she had no memory of ever having ingested it. At trial, a forensic expert testified through BAC backtracking that the victim’s BAC at the time she left the bar was 0.35.  

Investigative follow up with the victim’s cell provider located her phone within a few yards of Rudy’s. Surveillance camera footage identified the defendant as the person who had interacted with the victim at the bar. The victim had initially gone to the bar with a date, but he left after leaving the victim with the defendant.  

Investigators interviewed the defendant. He said that he met the victim on the dance floor. He bought her two drinks. A bartender stated he would not serve her more because of her intoxication. The defendant said he offered to drive the victim home and she accompanied him in his vehicle. He initially denied having sexual intercourse with the victim. But when told that investigators had a search warrant for his DNA, the defendant changed his story and said he stopped the car and they had consensual sex. Both were intoxicated. He told investigators the victim then got “pissed off” and demanded to get out of the car. The defendant gave her a blanket and drove away. Investigative tracking of the defendant’s cell phone showed the vehicle route from Rudy’s was to the defendant’s house and not to the location of the parking lot where the victim was found. 

The defendant was convicted in Santa Clara County Superior Court and sentenced to a determinate term of eight years in prison for the rape and a consecutive indeterminate term of life imprisonment, with the possibility of parole after seven years, for the kidnapping. The defendant appealed, arguing that 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 also contended the evidence at trial did not support the required element of force or fear, thus barring a retrial on the kidnapping charge.  

In a 2-1 decision, a 4th District Court of Appeals agreed with the defendant, ruling that the use of deception to move the victim was not the use of force or fear for kidnapping for the purposes of rape (209 (b) P.C.). The ordinary force or fear element did apply even though the victim was intoxicated and unable to consent to movement. The California Supreme Court accepted the case for review. 

The California Supreme Court reversed the DCA ruling that the defendant forcibly moved or made the victim move a distance, beyond that merely incidental to the commission of rape. He used deception by claiming that someone may have found her cell phone, grasped her forearm and escorted her to his vehicle, then drove her a substantial distance from the bar. It was a reasonable inference the defendant intended to commit rape at the time he left the bar, the ruling stated. “The quantum of force is no greater than the amount of physical force required to take and carry the victim away a substantial distance.” The victim was intoxicated and unable to knowingly consent to movement or intercourse.  

In their analysis, the justices made reference to previous precedent that applied a relaxed standard of force where the victim is an infant or small child: 

• The defendant moved a one-year-old infant in a stroller with the intent to raise the child as her own (In re Michele D. (2002) 29 Cal.4th 600).  

• Where the defendant led a 2-year-old boy by the hand and took him behind a fence where a child molestation occurred (Peo. v. Oliver (1961) 55 Cal. 2nd 76).  

The court 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.” 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.”  

The court then concluded that an unresisting, intoxicated person is incapacitated in the same manner as a child, is similarly vulnerable to victimization, and thus is unable to legally consent to movement and justifies a “relaxed standard of force.”