People v. Majors

• Decision Date: 01 July 2004
• Docket Number: No. S113086.,S113086.
• Citation: 33 Cal.4th 321,14 Cal.Rptr.3d 870,92 P.3d 360
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Gaylon Michael MAJORS, Defendant and Appellant.

14 Cal.Rptr.3d 870

92 P.3d 360

33 Cal.4th 321

The PEOPLE, Plaintiff and Respondent, v. Gaylon Michael MAJORS, Defendant and Appellant.

No. S113086.

Supreme Court of California.

July 1, 2004.

Rehearing Denied August 11, 2004.

Patricia J. Ulibarri, San Diego, under appointment by the Supreme Court, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry J.T. Carlton, Steven T. Oetting and Daniel Rogers, Deputy Attorneys General, for Plaintiff and Respondent.

BROWN, J.

A victim enters the defendant's vehicle under an implicit threat of arrest. Does this evidence satisfy the force or fear element of simple kidnapping? (Pen.Code, § 207, subd. (a) (hereafter section 207(a)).)¹ We conclude it does, and therefore reverse the judgment of the Court of Appeal.

I. FACTUAL AND PROCEDURAL BACKGROUND

On August 15, 2000, 18-year-old Alesandria M. was riding home on her bicycle. She was an employee at the Zany Brainy store at Mira Mesa Market Center. Earlier that day, Alesandria had purchased a gift at Zany Brainy for her brother's birthday. Just prior to starting home, Alesandria returned to Zany Brainy and made a second purchase.

After Alesandria had been riding for approximately 10 to 15 minutes, defendant Gaylon Michael Majors, wearing sunglasses and standing in the street next to a white van, flashed a badge and asked her to stop. He told her he was a security guard at the Mira Mesa mall and had received a call saying someone on a bicycle was suspected of a theft at the Zany Brainy store. Alesandria got off her bike and showed defendant the items in her backpack, her payment receipts, and her identification. Defendant told Alesandria she would have to return with him to the store and speak to the security guard to resolve the issue. He tried to put her bike in the van, but it did not fit, so he "said to go ahead and lock my bike up at the school right across the street." While Alesandria did so, defendant took her backpack and put it in the van.

When she returned to the van, Alesandria asked to see defendant's badge again. While defendant was not in uniform, Alesandria testified that "I felt scared that maybe if he was undercover or something like that that I would get in more trouble. So I took his badge again. I was not really sure what to look for." The badge said "security guard" on it. On the other side of the badge was an orange laminated card. Alesandria did not ride off because she "was really scared that if . . . he was who he said he was, that I would be in jail, that I would have to explain to my parents why I was there, even though I knew inside that I was innocent of stealing."

Alesandria testified she was afraid she would be arrested if she did not get into the van. She believed defendant had the authority to arrest her because he displayed a badge and identified himself as a security officer. Alesandria had never dealt with the police before, and was afraid not to get in the van. She testified, "I believed what he said about being a security guard and that we would have to go back to the . . . mall, to clear things up. And I actually worked at Zaney Brainey [sic], so I was confident about getting the manager to clear everything up for me." "He told me I would have to go with him." "I requested to see his badge because I didn't believe him. But at the same time I didn't want to not believe him if he was telling the truth. I didn't want to make a situation worse than it had already been." Defendant did not do anything to cause her to be afraid for her safety before she got into the van. He did not display any weapons, threaten, or touch Alesandria until they parked at the mall.

Once Alesandria and defendant were in the van, defendant appeared to make a call on his cell phone. "He made it sound like maybe he was talking to a partner or somebody, saying that the suspect was apprehended." Alesandria asked if she could call her parents. Defendant told her "that we could once we got there." Once they arrived at the mall, defendant said "they were going to have to check with the manager to see if they could look at their cameras." This caused Alesandria apprehension apparently because she knew from her employment there were no cameras at Zany Brainy.

Defendant ultimately drove to an isolated area of the mall. Alesandria started to get out of the van, but defendant grabbed her by the hair and slammed her head into the passenger side window. He then pulled back her hair so she was facing him, told her to go to the back of the van, and said he would not hurt her. Alesandria grabbed for defendant's throat, but defendant grabbed her head again, and tried to force her head between her legs. He ultimately threw her into a bench seat in the back of the van, and told her if she cooperated he would not hurt her. He then straddled her, pinning her arms to her chest, and struck her twice on the side of her head saying, "I don't want to be mean to you, so just do what I say." Alesandria was screaming and crying, and kicking defendant. Defendant asked Alesandria if she wanted to die, and she said yes. Defendant said, "Okay, you are going to die." Alesandria continued to kick defendant, and he eventually released her, saying, "Get out bitch." Alesandria reported the matter to a security guard and the police.

Defendant's fingerprint was found on one of Alesandria's Zany Brainy purchase receipts. Defendant was also positively identified at trial by a woman who lived at the location where defendant initially stopped Alesandria. On the day of his arrest, defendant was seen driving a white van. When arrested, he was in possession of a canvas briefcase containing an orange laminated card, sunglasses, binoculars, a digital camera, and a dildo.

The jury was instructed that both kidnapping for rape and simple kidnapping required proof beyond a reasonable doubt that Alesandria "was unlawfully moved by the use of physical force or by any other means of instilling fear," and that her movement was "without her consent." "Consent" was defined as "act[ing] freely and voluntarily and not under the influence of threat, force, or duress. . . . Consent requires a free will and positive cooperation in act or attitude." With respect to the crimes against Alesandria,² defendant was convicted of kidnapping for rape (§ 209, subd. (b)(1)), simple kidnapping (§ 207(a)),³ assault with the intent to commit rape (§ 220), and false imprisonment by violence and menace (§§ 236, 237, subd. (a)).

A divided Court of Appeal reversed defendant's convictions for kidnapping and kidnapping for rape for insufficiency of the evidence regarding the element of force or fear. The majority stated, "This case appears to be a classic case of asportation by fraud, not by force or fear." In all other respects as to the crimes against Alesandria, the judgment was affirmed.

We granted the Attorney General's petition for review to consider whether evidence that a victim entered a defendant's vehicle under threat of arrest is sufficient to satisfy the force or fear element of section 207(a) kidnapping.

II. DISCUSSION

Section 207(a) provides, "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 . . . county, or into another part of the same county, is guilty of kidnapping." The language "any other means of instilling fear" was added in 1990. (Stats.1990, ch. 55, § 1, p. 393.) Section 207(a) expressly "do[es] not apply to . . .:[¶] . . . [¶] . . . any person acting under Section 834[⁴] or 837."⁵ (§ 207, subd. (f)(2).)

As can be seen by this language, in order to constitute section 207(a) kidnapping, the victim's movement must be accomplished by force or any other means of instilling fear. We have observed that even prior to the 1990 amendment adding the language "any other means of instilling fear," our cases held "that a taking is forcible if accomplished through fear." (People v. Hill (2000) 23 Cal.4th 853, 856, 98 Cal.Rptr.2d 254, 3 P.3d 898 & fn. 2 (Hill).) As these earlier cases explain, the force used against the victim "need not be physical. The movement is forcible where it is accomplished through the giving of orders which the victim feels compelled to obey because he or she fears harm or injury from the accused and such apprehension is not unreasonable under the circumstances." (People v. Stephenson (1974) 10 Cal.3d 652, 660, 111 Cal.Rptr. 556, 517 P.2d 820 (Stephenson); People v. Camden (1976) 16 Cal.3d 808, 814, 129 Cal.Rptr. 438, 548 P.2d 1110 [section 207(a) "encompasses any movement of a victim which is substantial in character [citation], and accomplished by means of force or threat of force"]; People v. Guerrero (1943) 22 Cal.2d 183, 189, 137 P.2d 21 [the gravamen of the offense of kidnapping is "some form of compulsion"]; People v. Dagampat (1959) 167 Cal.App.2d 492, 495, 334 P.2d 581 (Dagampat) ["The requisite force or compulsion need not consist of the use of actual physical force or of express threats"].) We have also observed that the concepts of consent and force or fear "are clearly intertwined." (In re Michele D. (2002) 29 Cal.4th 600, 609, 128 Cal.Rptr.2d 92, 59 P.3d 164 (Michele D.) [addressing force]; Hill, at p. 855, 98 Cal.Rptr.2d 254, 3 P.3d 898 [kidnapping generally must be "against the will of the victim, i.e., without the victim's consent"].)

These alternative bases for committing kidnapping, i.e., "forcibly, or by any other means of instilling fear," while stated in the disjunctive, are not mutually exclusive. As noted, prior to the 1990 addition of the language "any other means of instilling fear," we had held that threats of force satisfy the force element of section 207(a). Given the similarity between a "threat of force" and "any other means of instilling fear," there are inevitably now...