What is the test for a defense of lack of consent in a kidnapping case?

Although defendant is correct that "consent" does not appear in the statutory definition of kidnapping, consent is "inextricably intertwined" with the elements of force and fear, in that the gravamen of the offense is asportation against the victim's will. (People v. Majors, supra, 33 Cal.4th at pp. 326-327, 331.) Consequently, although lack of consent is not explicitly an element of the offense as defined by statute, it is nevertheless part of the prosecution's burden to prove that the asportation was against the victim's will, i.e., without consent. Moreover, consent is a defense to kidnapping, and a

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trial court has a sua sponte duty to instruct on that defense if the evidence warrants it and it appears that the defendant is relying on it. (People v. Davis (1995) 10 Cal.4th 463, 516-518.) Here, defendant contends that the evidence did not show that Torres unwillingly accompanied him from the laundry room but rather showed that he went voluntarily. Consequently, the instruction on consent was mandatory.

Defendant also contends that the kidnapping instruction erroneously allowed the jury to conclude that "anything that the jury perceives as interfering with the person acting freely and voluntarily may constitute lack of consent." He does not elaborate on this contention, and we may accordingly deem it forfeited. (People v. Weaver (2001) 26 Cal.4th 876, 986-987 [court need not consider contentions of error unaccompanied by legal argument].) Nevertheless, we note that the instruction correctly stated the general principles of law applicable to a defense of consent.¹⁴ Again, if defendant had wished for clarification or for a pinpoint instruction relating the general principles to the facts of this

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