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C.A. Upholds Conviction for Kidnapping of Inebriated Victim in Absence of Force, Fear
By Kimber Cooley, Staff Writer
Div. Three of the Fourth District Court of Appeal has found sufficient evidence supported a defendant’s rape and kidnapping-for-rape charges where the defendant drove off with the victim who was drifting in and out of consciousness and had alcohol and alprazolam in her system.
The panel took up the case against Rodney Taurean Lewis for the second time, on remand from the California Supreme Court. Presiding Justice Kathleen E. O’Leary authored the opinion, filed Thursday.
It was joined in by Justices William W. Bedsworth and Thomas M. Goethals.
The case arises from an incident in August 2011, when 22 year old S.D. went to a bar after sharing a bottle of wine at dinner. After consuming more alcohol at the bar, she left with Lewis who admitted that her head was bobbing up and down in his car and she was passing out as he drove.
She left the bar around 12:45 a.m. and was found the next morning lying on a plant median in a parking lot, wrapped in a blanket and unconscious.
Lewis admitted that the two had sexual intercourse, after first denying it to the police. S.D. does not recall what happened after they left the bar. At 11 a.m., her blood alcohol concentration was 0.18 percent and her urine was positive for alprazolam, a drug which intensifies the effects of alcohol.
A jury convicted Lewis of rape by an intoxicating substance in violation of California Penal Code §261(a)(3) and kidnapping to commit rape in violation of §209(b)(1).
In 2021, O’Leary wrote for the majority in reversing the kidnapping-to-commit-rape conviction, concluding that Santa Clara Superior Court Judge Vincent J. Chiarello erred in providing an instruction to the jury that the kidnapping could be accomplished by deception. She said that the ordinary force or fear element of kidnapping applied even to intoxicated victims such as S.D.
Justice Bedsworth dissented.
In a 2023 opinion authored by Chief Justice Patricia Guerrero, the Supreme Court disagreed with the standard applied by O’Leary. Guerrero wrote: “[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….”
The opinion acknowledges that her court had never “explicitly applied the relaxed standard of force to intoxicated adult victims before” and remanded the matter to the Fourth District to address any unresolved contentions.
The Court of Appeal took up the case again to analyze the sufficiency of evidence arguments utilizing the new standard for kidnapping set forth by the Supreme Court.
Rape Charge
Lewis argued that there was insufficient evidence presented during his trial that S.D.’s level of intoxication rendered her incapable of exercising the reasonable judgment to consent.
Under §261(a)(3), rape is committed when a defendant engages in an act of sexual intercourse where the victim “[i]s prevented from resisting by an intoxicating…substance,…and this condition was known, or reasonably should have been known by the accused.”
Noting that an expert testified that her blood alcohol content would have been approximately 0.35 percent at the time she left the bar with Lewis, she had alprazolam in her system, was observed swerving and leaning on the bar, O’Leary found there was substantial evidence to support the jury’s conclusion that her intoxication level prevented the exercise of meaningful consent.
She found that “it was reasonable for the jury to conclude that Lewis knew or reasonably should have known S.D.’s intoxication level impaired her judgment whether to consent to sexual intercourse,” noting:
“Lewis admitted he knew S.D. was intoxicated. During his interview, Lewis told Holler that after S.D. got in his car, her head was bobbing and she was passing out. At trial, Lewis admitted he thought S.D. was intoxicated when they walked to his car.”
Kidnapping Charge
Sec. 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 country, state, or county, or into another part of the same county, is guilty of kidnapping.”
Despite the general requirement in kidnapping cases that the movement be accomplished by force or fear, O’Leary found that the evidence in this case supported the finding that S.D.’s level of intoxication was sufficient to trigger the relaxed standard set forth by the Supreme Court.
Under the new standard, the jurist noted that specific intent was required. She said:
“To prove [kidnapping for rape], the prosecution had to establish, as relevant here, the following: When his movement of S.D. began, Lewis already intended to rape her.”
The jurist found that sufficient evidence was provided to the jury to support that intent, and wrote:
“Lewis admitted he knew S.D. was intoxicated. During his interview, Lewis told Holler that after S.D. got in his car, her head was bobbing and she was passing out. At trial, Lewis admitted he thought S.D. was intoxicated when they walked to his car.”
She found that “[t]his conclusion was bolstered by evidence of Lewis’s consciousness of guilt” when he lied to police about having sex with S.D., explaining:
“[U]nless Lewis knew S.D. was largely unconscious when they had sex, and thus would be incapable of refuting his story, it is hard to imagine why he would have denied having sex with her. But that is what he did. Viewing all the evidence in the light most favorable to the prosecution, as we are required to do, there was substantial evidence to support the jury’s finding Lewis intended to rape the impaired S.D. as the couple left Rudy’s and he knew or should have known S.D. was incapable of agreeing to leave Rudy’s with him.”
Jury Instruction Recommendation
O’Leary noted that this appeal arose, in part, due to a confusion over proper jury instruction in a kidnapping for rape case involving an intoxicated adult. She wrote:
“Here, in an effort to submit the issue properly to the jury, the trial court modified an existing CALCRIM instruction. Without addressing the correctness of the modification, the Supreme Court assumed, that even if the modification was error, it was harmless. To assist the trial courts and avoid instructional error in the future, CALCRIM instructions understandable to the average juror, consistent with the holdings in Lewis and relevant existing law, should be adopted.”
She by invited the Judicial Council to adopt such instructions “explaining under what circumstances a jury can apply the relaxed/constructive force standard and explaining what level of incapacitation or unconsciousness is required to trigger the relaxed force or constructive force standard would be extremely beneficial to trial courts and juries.”
The case is People v. Lewis, 2024 S.O.S. 914.
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