California Court of Appeals, First District, Third Division
[254
Cal.Rptr.3d 874] City & County of San Francisco, Hon. Bruce
E. Chan (City & County of San Francisco Super. Ct. No.
SCN225090)
Page 176
COUNSEL
First
District Appellate Project’s Independent Case System, John L.
Staley, San Diego, 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, for
Plaintiff and Respondent.
OPINION
Fujisaki,
J.
Page 177
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
Page 178
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 [254 Cal.Rptr.3d 875] 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
Page 179
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 distance means more than a slight or
trivial distance. In deciding whether the distance was
substantial, [254 Cal.Rptr.3d 876] 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 ...