Friday, September 28, 2001
No Threat Needed for Finding of Child Kidnapping, Appeals Court Rules
By ROBERT GREENE, Staff Writer
A person who takes a child without permission of the parent has committed a kidnapping, even if the child went along without objection, this district’s Court of Appeal has ruled.
Although use of “force or fear” is an element of kidnapping, Justice Candace Cooper wrote for Div. Two, the trial court need not find that any physical strength, violence, compulsion or constraint was applied to get the child away from its parent.
The ruling upholds a decision by Los Angeles Juvenile Court Judge Armando Moreno, who found that a troubled youth named Michele D. kidnapped one-year-old Cameron S. by taking him out of a West Covina Pic ’N Save with the intention of taking the little girl to a friend’s home in Fullerton and raising her herself.
Cameron’s mother, a friend of Michele’s, had left the two together in the store while she did her shopping.
Michele had just suffered a miscarriage. Experts have cited many instances in which young bereaved mothers, or women who have been unable to get pregnant, took the children of others.
After the allegations against Michele were found true she was committed to up to 13 years at a juvenile facility with special expertise in counseling troubled adolescents.
She argued that she should have been tried instead on the lesser charge of child stealing, an offense against the parent but not by itself an assault on the child.
But Cooper noted that Michele, who pushed Cameron in a stroller, told the mother she was going outside for a smoke, took the child from the stroller, boarded a bus, got off a mile and a half away and began looking for a ride to Fullerton.
That was enough, she said, to satisfy Penal Code Sec. 207(a)’s definition of kidnapping by moving someone by force or fear.
“Ultimately, in reliance upon common sense, the promotion of justice and the presumed intent of the legislature, we find it to be inconceivable that the Legislature intended the physical taking of an infant in the manner described in these facts not to be the crime of kidnapping,” Cooper said. “In fact, we believe the taking of an infant or child in this manner is the prime example of kidnapping and is clearly intended to be within its scope.”
Even if there was no “force” involved in the abduction, the justice said, there was compulsion, since the child did not move herself. To prove a kidnapping of an infant or child, she said, overcoming resistance is not required and the element of the use of force is satisfied “simply by the application of sufficient physical force by the perpetrator to accomplish the unlawful act.”
“An evaluation of the force requirement would therefore include a review of all relevant circumstances of the taking, including the relative ages and sizes of the defendant and the victim,” Cooper said. “Based on this standard, the amount of force required to kidnap an unresisting infant or child would be simply be the amount of physical force required to take and remove the child from the location where she was found.”
The case is People v. Michele D., 01 S.O.S. 4789.
Copyright 2001, Metropolitan News Company