1201. Kidnapping: Child or Person Incapable of Consent
The defendant is charged [in Count ______] with kidnapping (a child/ [or] a person with a mental impairment who was not capable of giving legal consent to the movement).
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant used enough physical force to take and carry away an unresisting (child/ [or] person with a mental impairment);
2. The defendant moved the (child/ [or] person with a mental impairment) a substantial distance;
3. The defendant moved the (child/ [or] mentally impaired person) with an illegal intent or for an illegal purpose(;/.)
<Alternative 4A—alleged victim under 14 years.>
[4. The child was under 14 years old at the time of the movement(;/.)]
<Alternative 4B—alleged victim has mental impairment.>
[4. <Insert name of complaining witness> suffered from a mental impairment that made (him/her) incapable of giving legal consent to the movement.]
Substantial distance means 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.]
A person is incapable of giving legal consent if he or she is unable to understand the act, its nature, and possible consequences.
[Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun.]
The court has a sua sponte duty to give this instruction defining the elements of the crime.
Give alternative 4A if the defendant is charged with kidnapping a person under 14 years of age. (Pen. Code, § 208(b).) Do not use this bracketed language if a biological parent, a natural father, an adoptive parent, or someone with access to the child by a court order takes the child. (Ibid.) Give alternative 4B if the alleged victim has a mental impairment.
In the paragraph defining "substantial distance," give the bracketed sentence listing factors that the jury may consider, when evidence permits, in evaluating the totality of the circumstances. (People v. Martinez (1999) 20 Cal.4th 225, 237 [83 Cal.Rptr.2d 533, 973 P.2d 512].) However, in the case of simple kidnapping, if the movement was for a substantial distance, the jury does not need to consider any other factors. (People v. Martinez, supra, 20 Cal.4th at p. 237; see People v. Stanworth (1974) 11 Cal.3d 588, 600-601 [114 Cal.Rptr. 250, 522 P.2d 1058].)
Give this instruction when the defendant is charged under Penal Code section 207(a) with using force to kidnap an unresisting infant or child, or person with a mental impairment, who was incapable of consenting to the movement. (See, e.g., In re Michele D. (2002) 29 Cal.4th 600, 610 [128 Cal.Rptr.2d 92, 59 P.3d 164]; see also 2003 Amendments to Penal Code, § 207(e) [codifying holding of In re Michele D.].) Give CALCRIM No. 1200, Kidnapping: for Child Molestation, when the defendant is charged under Penal Code section 207(b) with kidnapping a child without the use of force for the purpose of committing a lewd or lascivious act.
Give the final bracketed paragraph about calculating age if requested. (Fam. Code, § 6500; In re Harris (1993) 5 Cal.4th 813, 849-850 [21 Cal.Rptr.2d 373, 855 P.2d 391].)
A defendant may be prosecuted for both the crimes of child abduction and kidnapping. Child abduction or stealing is a crime against the parents, while kidnapping is a crime against the child. (In re Michele D. (2002) 29 Cal.4th 600, 614 [128 Cal.Rptr.2d 92, 59 P.3d 164]; People v. Campos (1982) 131 Cal.App.3d 894, 899 [182 Cal.Rptr. 698].) See CALCRIM No. 1250, Child Abduction: No Right to Custody.
For instructions relating to defenses to kidnapping, see CALCRIM No. 1225, Defense to Kidnapping: Protecting Child From Imminent Harm.
Elements. Pen. Code, § 207(a), (e).
Punishment If Victim Under 14 Years of Age. Pen. Code, § 208(b); People v. Magpuso (1994) 23 Cal.App.4th 112, 118 [28 Cal.Rptr. 206] [ignorance of victim's age not a defense].
Asportation Requirement. See People v. Martinez (1999) 20 Cal.4th 225, 235-237 [83 Cal.Rptr.2d 533, 973 P.2d 512] [adopting modified two-pronged asportation test from People v. Rayford (1994) 9 Cal.4th 1, 12-14 [36 Cal.Rptr.2d 317, 884 P.2d 1369] and People v. Daniels (1969) 71 Cal.2d 1119, 1139 [80 Cal.Rptr. 897, 459 P.2d 225]].
Force Required to Kidnap Unresisting Infant or Child. In re Michele D. (2002) 29 Cal.4th 600, 610 [128 Cal.Rptr.2d 92, 59 P.3d 164]; Pen. Code, § 207(e).
Movement Must Be for Illegal Purpose or Intent if Victim Incapable of Consent. In re Michele D. (2002) 29 Cal.4th 600, 610-611 [128 Cal.Rptr.2d 92, 59 P.3d 164]; People v. Oliver (1961) 55 Cal.2d 761, 768 [12 Cal.Rptr. 865, 361 P.2d 593].
Substantial Distance Requirement. People v. Derek Daniels (1993) 18 Cal.App.4th 1046, 1053 [22 Cal.Rptr.2d 877]; People v. Stanworth (1974) 11 Cal.3d 588, 600-601 [114 Cal.Rptr. 250, 522 P.2d 1058] [since movement must be more than slight or trivial, it must be substantial in character].
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the Person, §§ 252, 253.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91, Sentencing, § 91.38 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person § 142.14, [a] (Matthew Bender).
Penal Code section 207(a) uses the term "steals" in defining kidnapping not in the sense of a theft, but in the sense of taking away or forcible carrying away. (People v. McCullough (1979) 100 Cal.App.3d 169, 176 [160 Cal.Rptr. 831].) The instruction uses "take and carry away" as the more inclusive terms, but the statutory terms "steal," "hold," "detain" and "arrest" may be used if any of these more closely matches the evidence.
Lesser Included Offenses
Attempted Kidnapping. Pen. Code, §§ 664, 207; People v. Fields (1976) 56 Cal.App.3d 954, 955-956 [129 Cal.Rptr. 24].
Victim Must Be Alive
A victim must be alive when kidnapped. (People v. Hillhouse (2002) 27 Cal.4th 469, 498 [117 Cal.Rptr.2d 45, 40 P.3d 754].)
(New January 2006)