People v. Singh

          City & County of San Francisco Super. Ct. No. SCN225090 Hon. Bruce E. Chan Judge

          Attorneys: First District Appellate Project's Independent Case System, John L. Staley for Defendant and Appellant.

          Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Eric D. Share, Supervising Deputy Attorney General, Ashley Harlan, Deputy Attorney General.

          Fujisaki, J.

         Defendant Sudesh Singh appeals from his conviction for kidnapping (Pen. Code, § 207, subd. (a)^[1]). He seeks reversal on the grounds that: (1) the trial court improperly instructed on the illegal intent or purpose element for kidnapping; (2) the court erroneously failed to instruct on whether his moving the victim was incidental to the crime of child endangerment in determining the asportation element for kidnapping; and (3) there was insufficient evidence of asportation and an illegal intent or purpose. We affirm.

         Factual and Procedural Background

         A. Summary of the Trial Evidence

         Defendant was charged by information with felony kidnapping a one-year-old child (§ 207, subd. (a)) and misdemeanor abusing or endangering the health of a child (§ 273a, subd. (b)). The following is a summary of the relevant trial evidence.

         The mother of the victim (Mother) testified that one morning in November 2015, she and her son waited for a bus outside of the U.S. Citizenship and Immigration building on Sansome Street in San Francisco. At the time, her son was nearly two years old.

         Defendant approached and spoke to the child, whom Mother was carrying. Mother speaks only Spanish and could not understand him. Defendant touched her son's hand and made gestures trying to coax him off her. Defendant eventually stopped touching the child but kept talking to him for several minutes while laughing. During this interaction, the child was calm, not crying, and not laughing at defendant's conduct. Mother told her son not to pay attention to defendant, and believed he did not. She assigned no importance to defendant or his actions, did not speak to him, and did not tell him to go away because she thought he was also waiting for the bus.

         Mother stepped into the bus when it arrived, and she put her son down to pay the fare. The child did not cry as Mother put him down, and she did not notice anything that would put him in danger. At this point, defendant picked the child up and walked away from the bus.

         Upon hearing her son either crying or saying something, Mother turned around and ran after him. Defendant got about five steps away from the bus before Mother yanked her son out of defendant's arms. Mother had not given defendant permission to touch her son or take him from the bus. After returning to the bus, Mother called her brother and asked him to call the police. Defendant was arrested three days later trying to enter San Francisco International Airport from the airport BART station.

         Videos from the bus and from the U.S. Citizenship and Immigration building were played and admitted into evidence. The videos showed defendant's pre-taking contact with Mother and her son, his taking the child off the bus, and Mother reclaiming her child. The bus footage reflected that the child began crying moments after defendant picked him up and that he continued to cry for a short time after he and his mother got back on the bus.

         Defendant testified on his own behalf. He said he went to the U.S. Citizenship and Immigration building that day to report to his immigration officer, though he had no appointment. He noticed the line into the building was long, so he decided to hang around until it got shorter. His attention was drawn to Mother and her son because the child was crying. Mother did not object when he made contact with the child to cheer him up. He did not know the child's age, just that he was fairly young. After the bus arrived, defendant noticed the child had taken several steps behind Mother as she was paying the fare. While Mother's back was turned, defendant reflexively picked up the child. He did so without saying anything to Mother or checking to see if the bus driver was looking at him, because it appeared the child was about to step off the bus and might fall and hurt himself. After picking up the child, he reflexively took a few steps back while trying to make sure the child was okay, at which point he noticed Mother reaching for her child. He handed the child back to her and said nothing because everything happened quickly. Defendant denied ever intending to take the child away from Mother and claimed his only intention was to protect the child. He explained he went to the airport three days later because he wanted to take a trip to Las Vegas. Defendant admitted he had been convicted of three prior felonies involving moral turpitude.

         B. Instructions, Arguments, and the Outcome of Trial

         For the kidnapping count, the trial court instructed the jury with CALCRIM No. 1201, which required the People to prove that defendant used physical force to take and carry away an unresisting child, that he moved the child a substantial distance, that he moved the child with an illegal intent or for an illegal purpose, and that the child was under 14 years old at the time of the movement. As given, the instruction defined “substantial distance” as follows: “Substantial distancemeans more than a slight or trivial distance. In deciding whether the distance was substantial, consider all the circumstances relating to the movement. Thus, in addition to considering the actual distance moved, you may also consider other factors such as whether the movement increased the risk of physical or psychological harm, increased the danger of a foreseeable escape attempt, gave the attacker a greater opportunity to commit additional crimes, or decreased the likelihood of detection.” (Italics omitted.)

         With regard to the child endangerment count, the trial court instructed with CALCRIM No. 823 that the People had to prove that “defendant willfully inflicted unjustifiable physical pain or mental suffering on a child.” In addition, and as relevant here, the court also instructed that “[w]ords and phrases not specifically defined in these instructions are to be applied using their ordinary, everyday meanings.” (CALCRIM No. 200.) The court also gave instructions concerning attempted kidnapping, false imprisonment, and the defense to kidnapping of protecting a child from imminent harm (CALCRIM No. 1225).

         During closing argument, the prosecutor contended defendant was guilty of kidnapping because he took and moved the child away from Mother a substantial distance with no right or reason to do so. He explained the requirement that a defendant move a child with an illegal intent or purpose was in place to ensure that people engaging in harmless conduct-such as a babysitter who picks up the wrong child from school, or a sibling who takes a child to a park-are not penalized. The prosecutor asserted he could not prove defendant's motivations, but regardless, defendant had no right or reason to take the victim from his mother. Defense counsel argued during closing that the only possible illegal intent or purpose that could be conjured in this case was that defendant intended to take or steal the child away. She urged the jury to reject that theory and to find defendant was trying to protect the child.

         The jury found defendant guilty of kidnapping but was unable to reach a verdict on the child endangerment count. The trial court declared a mistrial as to the child endangerment count and ultimately dismissed it. The court sentenced ...