1202. Kidnapping: For Ransom, Reward, or Extortion

The defendant is charged [in Count ______] with kidnapping for the purpose of (ransom[,]/ [or] reward[,]/ [or] extortion) [that resulted in (death[,]/ [or] bodily harm[,]/ [or] exposure to a substantial likelihood of death)].

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant (kidnapped[,]/ [or] abducted[,]/ [or] seized[,]/ [or] confined[,]/ [or] concealed[,]/ [or] carried away[,]/ [or] inveigled[,]/ [or] enticed[,]/ [or] decoyed) someone;

<Alternative 2A—held or detained>

[2. The defendant held or detained that person;]

<Alternative 2B—intended to hold or detain that person>

[2. When the defendant acted, (he/she) intended to hold or detain the person;]

AND

3. The defendant did so (for ransom[,]/ [or] for reward[,]/ [or] to commit extortion[,]/ [or] to get money or something valuable).

[It is not necessary that the person be moved for any distance.]

[Someone intends to commit extortion if he or she intends to: (1) obtain a person's property with the person's consent and (2) obtain the person's consent through the use of force or fear.]

[Someone intends to commit extortion if he or she: (1) intends to get a public official to do an official act and (2) uses force or fear to make the official do the act.] [An official act is an act that a person does in his or her official capacity using the authority of his or her public office.]

<Sentencing Factor>

[If you find the defendant guilty of kidnapping for (ransom [,]/ [or] reward[,]/ [or] extortion), you must then decide whether the People have proved the additional allegation that the defendant (caused the kidnapped person to (die/suffer bodily harm)/ [or] intentionally confined the kidnapped person in a way that created a substantial risk of death).

[Bodily harm means any substantial physical injury resulting from the use of force that is more than the force necessary to commit kidnapping.]

[The defendant caused ______'s<insert name of allegedly kidnapped person> (death/bodily harm) if:

1. A reasonable person in the defendant's position would have foreseen that the defendant's use of force or fear could begin a chain of events likely to result in ______'s <insert name of allegedly kidnapped person> (death/bodily harm);

2. The defendant's use of force or fear was a direct and substantial factor in causing ______'s<insert name of allegedly kidnapped person> (death/bodily harm);

AND

3. ______'s<insert name of allegedly kidnapped person> (death/bodily harm) would not have happened if the defendant had not used force or fear to hold or detain <insert name of allegedly kidnapped person>.

A substantial factor is more than a trivial or remote factor. However, it need not have been the only factor that caused ______'s <insert name of allegedly kidnapped person> (death/ bodily harm).]

The People have the burden of proving this allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved.]

Bench Notes

Instructional Duty

The court has a sua sponte duty to give an instruction defining the elements of the crime.

If the prosecution alleges that the kidnapping resulted in death or bodily harm, or exposed the victim to a substantial likelihood of death (see Pen. Code, § 209(a)), the court has a sua sponte duty to instruct on the sentencing factor. (See People v. Schoenfeld (1980) 111 Cal.App.3d 671, 685-686 [168 Cal.Rptr. 762] [bodily harm defined]); see also People v. Ryan (1999) 76 Cal.App.4th 1304, 1318 [76 Cal.Rptr.2d 160] [court must instruct on general principles of law relevant to issues raised by the evidence].) The court must also give the jury a verdict form on which the jury can indicate whether this allegation has been proved. If causation is an issue, the court has a sua sponte duty to give the bracketed section that begins "The defendant caused." (See Pen. Code, § 209(a); People v. Monk (1961) 56 Cal.2d 288, 296 [14 Cal.Rptr. 633, 363 P.2d 865]; People v. Reed (1969) 270 Cal.App.2d 37, 48-49 [75 Cal.Rptr. 430].)

Give alternative 2A if the evidence supports the conclusion that the defendant actually held or detained the alleged victim. Otherwise, give alternative 2B. (See Pen. Code, § 209(a).)

"Extortion" is defined in Penal Code section 518. If the kidnapping was for purposes of extortion, give one of the bracketed definitions of extortion on request. Give the second definition if the defendant is charged with intending to extort an official act. (People v. Hill (1983) 141 Cal.App.3d 661, 668 [190 Cal.Rptr. 628]; see People v. Ordonez (1991) 226 Cal.App.3d 1207, 1229-1230 [277 Cal.Rptr. 382]; People v. Norris (1985) 40 Cal.3d 51, 55-56 [219 Cal.Rptr. 7, 706 P.2d 1141] [defining "official act"].) Extortion may also be committed by using "the color of official right" to make an official do an act. (Pen. Code, § 518; see Evans v. United States (1992) 504 U.S. 255, 258 [112 S.Ct. 1881, 119 L.Ed.2d 57]; McCormick v. United States (1990) 500 U.S. 257, 273 [111 S.Ct. 1807, 114 L.Ed.2d 307] [both discussing common law definition].) It appears that this type of extortion rarely occurs in the context of kidnapping, so it is excluded from this instruction.

Related Instructions

For the elements of extortion, see CALCRIM No. 1830, Extortion by Threat or Force.

Authority

Elements. Pen. Code, § 209(a).

Extortion. Pen. Code, § 518; People v. Hill (1983) 141 Cal.App.3d 661, 668 [190 Cal.Rptr. 628]; see People v. Ordonez (1991) 226 Cal.App.3d 1207, 1229-1230 [277 Cal.Rptr. 762].

Amount of Physical Force Required. People v. Chacon (1995) 37 Cal.App.4th 52, 59 [43 Cal.Rptr.2d 434]; People v. Schoenfeld (1980) 111 Cal.App.3d 671, 685-686 [168 Cal.Rptr. 762].

Bodily Injury Defined. People v. Chacon (1995) 37 Cal.App.4th 52, 59; People v. Schoenfeld (1980) 111 Cal.App.3d 671, 685-686; see People v. Reed (1969) 270 Cal.App.2d 37, 48-50 [75 Cal.Rptr. 430] [injury reasonably foreseeable from defendant's act].

Control Over Victim When Intent Formed. People v. Martinez (1984) 150 Cal.App.3d 579, 600-602 [198 Cal.Rptr. 565] [disapproved on other ground in People v. Hayes (1990) 52 Cal.3d 577, 627-628, fn. 10 [276 Cal.Rptr. 874, 802 P.2d 376].]

No Asportation Required. People v. Macinnes (1973) 30 Cal.App.3d 838, 844 [106 Cal.Rptr. 589]; see People v. Rayford (1994) 9 Cal.4th 1, 11-12, fn. 8 [36 Cal.Rptr.2d 317, 884 P.2d 1369]; People v. Ordonez (1991) 226 Cal.App.3d 1207, 1227 [277 Cal.Rptr. 382].

Official Act Defined. People v. Mayfield (1997) 14 Cal.4th 668, 769-773 [60 Cal.Rptr.2d 1, 928 P.2d 485]; People v. Norris (1985) 40 Cal.3d 51, 55-56 [219 Cal.Rptr. 7, 706 P.2d 1141].

Secondary Sources

1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the Person, §§ 266-273.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.14 (Matthew Bender).

Commentary

A trial court may refuse to define "reward." There is no need to instruct a jury on the meaning of terms in common usage. Reward means something given in return for good or evil done or received, and especially something that is offered or given for some service or attainment. (People v. Greenberger (1997) 58 Cal.App.4th 298, 367-368 [68 Cal.Rptr.2d 61].) In the absence of a request, there is also no duty to define "ransom." The word has no statutory definition and is commonly understood by those familiar with the English language. (People v. Hill (1983) 141 Cal.App.3d 661, 668 [190 Cal.Rptr. 628].)

Lesser Included Offenses

False Imprisonment. Pen. Code, §§ 236, 237; People v. Chacon (1995) 37 Cal.App.4th 52, 65 [43 Cal.Rptr.2d 434]; People v. Magana

(1991) 230 Cal.App.3d 1117, 1121 [281 Cal.Rptr. 338]; People v. Gibbs (1970) 12 Cal.App.3d 526, 547 [90 Cal.Rptr. 866].

Extortion. Pen. Code, § 518.

Attempted Extortion. Pen. Code, §§ 664, 518.

If the prosecution alleges that the kidnapping resulted in death or bodily harm, or exposed the victim to a substantial likelihood of death (see Pen. Code, § 209(a)), then kidnapping for ransom without death or bodily harm is a lesser included offense. The court must provide the jury with a verdict form on which the jury will indicate if the allegation has been proved.

Simple kidnapping under section 207 of the Penal Code is not a lesser and necessarily included offense of kidnapping for ransom, reward, or extortion. (People v. Greenberger (1997) 58 Cal.App.4th 298, 368, fn. 56 [68 Cal.Rptr.2d. 61] [kidnapping for ransom can be accomplished without asportation while simple kidnapping cannot]; see People v. Macinnes (1973) 30 Cal.App.3d 838, 843-844 [106 Cal.Rptr. 589]; People v. Bigelow (1984) 37 Cal.3d 731, 755, fn. 14 [209 Cal.Rptr. 328, 691 P.2d 994].)

Related Issues

Extortion Target

The kidnapped victim may also be the person from whom the defendant wishes to extort something. (People v. Ibrahim (1993) 19 Cal.App.4th 1692, 1696-1698 [24 Cal.Rptr.2d 269.)

No Good-Faith Exception

A good faith exception to extortion or kidnapping for ransom does not exist. Even actual debts cannot be collected by the reprehensible and dangerous means of abducting and holding a person to be ransomed by payment of the debt. (People v. Serrano (1992) 11 Cal.App.4th 1672, 1677-1678 [15 Cal.Rptr.2d 305].)

(New January 2006)