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.
1

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.

2

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 
PEOPLE v. LEWIS

Opinion of the Court by Guerrero, C. J.

3

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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Opinion of the Court by Guerrero, C. J.

4

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 
PEOPLE v. LEWIS

Opinion of the Court by Guerrero, C. J.

5

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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Opinion of the Court by Guerrero, C. J.

6

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 
PEOPLE v. LEWIS

Opinion of the Court by Guerrero, C. J.

7

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 
PEOPLE v. LEWIS

Opinion of the Court by Guerrero, C. J.

8

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. 
PEOPLE v. LEWIS

Opinion of the Court by Guerrero, C. J.

9

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 
PEOPLE v. LEWIS

Opinion of the Court by Guerrero, C. J.

10

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 
PEOPLE v. LEWIS

Opinion of the Court by Guerrero, C. J.

11

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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Opinion of the Court by Guerrero, C. J.

12

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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Opinion of the Court by Guerrero, C. J.

13

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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Opinion of the Court by Guerrero, C. J.

14

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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Opinion of the Court by Guerrero, C. J.

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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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16

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 
PEOPLE v. LEWIS

Opinion of the Court by Guerrero, C. J.

18

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 
PEOPLE v. LEWIS

Opinion of the Court by Guerrero, C. J.

19

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 
PEOPLE v. LEWIS

Opinion of the Court by Guerrero, C. J.

20

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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Opinion of the Court by Guerrero, C. J.

21

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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Opinion of the Court by Guerrero, C. J.

22

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).
PEOPLE v. LEWIS

Opinion of the Court by Guerrero, C. J.

23

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.)
PEOPLE v. LEWIS

Opinion of the Court by Guerrero, C. J.

24

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.
PEOPLE v. LEWIS

Opinion of the Court by Guerrero, C. J.

25

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 
PEOPLE v. LEWIS

Opinion of the Court by Guerrero, C. J.

26

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.
PEOPLE v. LEWIS

Opinion of the Court by Guerrero, C. J.

27

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 
PEOPLE v. LEWIS

Opinion of the Court by Guerrero, C. J.

28

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 
PEOPLE v. LEWIS

Opinion of the Court by Guerrero, C. J.

29

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 
PEOPLE v. LEWIS

Opinion of the Court by Guerrero, C. J.

30

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 alternativetheory 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.)
PEOPLE v. LEWIS

Opinion of the Court by Guerrero, C. J.

31

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. 
PEOPLE v. LEWIS

Opinion of the Court by Guerrero, C. J.

32

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) 
PEOPLE v. LEWIS

Opinion of the Court by Guerrero, C. J.

33

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.) 
PEOPLE v. LEWIS

Opinion of the Court by Guerrero, C. J.

34

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.
PEOPLE v. LEWIS

Opinion of the Court by Guerrero, C. J.

35

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.
1

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 
PEOPLE v. LEWIS

Kruger, J., concurring

2

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 forceor-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
PEOPLE v. LEWIS

Kruger, J., concurring

3

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 
PEOPLE v. LEWIS

Kruger, J., concurring

4

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 
PEOPLE v. LEWIS

Kruger, J., concurring

5

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 632

that 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.) 
PEOPLE v. LEWIS

Kruger, J., concurring

6

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
PEOPLE v. LEWIS

Kruger, J., concurring

7

(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.
PEOPLE v. LEWIS

Kruger, J., concurring

8

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-bydeception 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 
PEOPLE v. LEWIS

Kruger, J., concurring

9

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 
PEOPLE v. LEWIS

Kruger, J., concurring

10

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.
PEOPLE v. LEWIS

Kruger, J., concurring

11

With these observations, I join the majority’s opinion. 

 KRUGER, J.

I Concur:

GROBAN, J.
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 1

Review 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