California Criminal Jury Instructions (CALCRIM) (2017)

1201. Kidnapping: Child or Person Incapable of Consent

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1201.Kidnapping: Child or Person Incapable of Consent (Pen.
Code, § 207(a), (e))
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) [in violation of Penal Code section 207].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant used (physical force/deception) 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;
[AND]
3. The defendant moved the (child/ [or] mentally impaired person)
with an illegal intent or for an illegal purpose(;/.)
[AND]
<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.
[Deception includes tricking the (child/mentally impaired person) into
accompanying him or her a substantial distance for an illegal purpose.]
[Under the law, a person becomes one year older as soon as the first
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minute of his or her birthday has begun.]
New January 2006; Revised April 2008
BENCH NOTES
Instructional Duty
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 Pen. 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].)
Related Instructions
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.
KIDNAPPING CALCRIM No. 1201
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AUTHORITY
• 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.2d 206] [ignorance of
victim’s age not 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).
• Force Required to Kidnap Unconscious and Intoxicated Adult. People v.
Daniels (2009) 176 Cal.App.4th 304, 333 [97 Cal.Rptr.3d 659].
• 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. 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].
• Deceit May Substitute for Force. People v. Dalerio (2006) 144 Cal.App.4th
775, 783 [50 Cal.Rptr.3d 724] [taking requirement satisfied when defendant
relies on deception to obtain child’s consent and through verbal directions and
his constant physical presence takes the child substantial distance].
Secondary Sources
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[1] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person § 142.14[1], [2][a] (Matthew Bender).
COMMENTARY
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.
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LESSER INCLUDED OFFENSES
• Attempted Kidnapping. Pen. Code, §§ 664, 207; People v. Fields (1976) 56
Cal.App.3d 954, 955–956 [129 Cal.Rptr. 24].
RELATED ISSUES
Victim Must Be Alive
Avictim must be alive when kidnapped. (People v. Hillhouse (2002) 27 Cal.4th
469, 498 [117 Cal.Rptr.2d 45, 40 P.3d 754].)
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