California Penal Code Section 207 - Interpretation
Penal Code section 209's use of the words "kidnaps or carries away" has long been interpreted to incorporate Penal Code section 207's definition of simple kidnapping as elements of an aggravated kidnapping, as described by Penal Code section 209. (See People v. Daniels (1969) 71 Cal.2d 1119, 1131 80 Cal. Rptr. 897, 459 P.2d 225.)
"As the language of Penal Code section 207 indicates, the statute generally requires that the defendant use force or fear. '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. Hill (2000) 23 Cal.4th 853, 856 98 Cal. Rptr. 2d 254, 3 P.3d 898.)
Although Penal Code section 207 contains an explicit force or fear requirement that admits of no exceptions, the California Supreme Court has long viewed as a special situation those cases where the kidnapping victim was a small child.
The seminal case is People v. Oliver (1961) 55 Cal.2d 761 12 Cal. Rptr. 865, 361 P.2d 593. Verga Oliver, who was drunk, led a two-year-old boy by the hand down an alley. the boy apparently went willingly with Oliver.
Oliver and the boy first sat behind a fence, and Oliver talked to the boy as Oliver drank more liquor. a short time later, Oliver and the boy were found undressed from the waist down with Oliver engaged in lewd conduct with the boy. (Oliver, at p. 763.)
Oliver was charged with lewd conduct and kidnapping. the jury was instructed: " '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. ...' " (Oliver, at p. 764.)
The jury was also instructed that kidnapping was a general intent crime. (Ibid.) Oliver was convicted of both counts.
Oliver contended before the California Supreme Court that, due to the fact that kidnapping was a general intent offense and a child was incapable of giving legal consent, a person could be convicted of kidnapping for " 'merely escorting a small child from point a to point B without a wrongful or any purpose.' " (Oliver, supra, 55 Cal.2d at pp. 764-765.)
The California Supreme Court found merit to this contention. It reasoned that the Legislature did not intend to include within the crime of kidnapping the movement of a child, with or without the child's resistance, in the absence of a "malign or evil purpose." (Oliver, at p. 765.)
On the other hand, the court stated that the Legislature did intend to include the very same movement within the crime of kidnapping where the perpetrator harbored "an evil and unlawful intent." (Ibid.)
The court went on:
"Similar instances as readily suggest themselves in which the intent with which an adult person, who by reason of extreme intoxication, delirium or unconsciousness from injury or illness is unable to give his consent, is forcibly carried by another, should determine whether such forcible carrying is or is not kidnaping within the legislative purpose. 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. the rule governing the forcible carrying of conscious persons capable of giving consent, 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, 55 Cal.2d at pp. 765-766.)
The court concluded that Penal Code section 207's description of the crime of kidnapping had to be narrowed to conform to the Legislature's intent. "Penal Code, section 207, 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, should ... be construed 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. So construed the legislative purpose will be preserved and furthered, and innocent persons who cannot have been within the legislative intention in adopting section 207 will be excluded from the operation of the law." (Oliver, supra, 55 Cal.2d at p. 768.)
The court concluded that the general intent instruction was prejudicially erroneous because a jury could have reasonably concluded that Oliver formed his lewd intent after he had transported the boy behind the fence. It reversed the kidnapping count. (Oliver, at p. 768.)