California Court of Appeals, First District, Third Division
& 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.
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.
Sudesh Singh appeals from his conviction for kidnapping (Pen.
Code, § 207, subd. (a)). 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.
and Procedural Background
Summary of the Trial Evidence
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
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
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.
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.
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.
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.
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.
Instructions, Arguments, and the Outcome of Trial
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.)
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).
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.
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 ...