Justia Criminal Law Center California Criminal Jury Instructions (CALCRIM) (2024) Kidnapping CALCRIM No. 1201. Kidnapping: Child or Person Incapable of Consent (Pen. Code, § 207(a), (e))

CALCRIM No. 1201. Kidnapping: Child or Person Incapable of Consent (Pen. Code, § 207(a), (e))

Judicial Council of California Criminal Jury Instructions (2024 edition)

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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/fear) 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 with an illegal intent or for an

illegal purpose(;/.)]

[AND]

[4. The child was under 14 years old at the time of the movement(;/

.)]

[(3/4). <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.]

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New January 2006; Revised April 2008, April 2020, September 2020, October 2021,

March 2022, March 2024*

* Denotes changes only to bench notes and other commentaries.

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].)

There is no sua sponte duty to define “illegal intent” or “illegal purpose.” (People v.

Singh (2019) 42 Cal.App.5th 175, 181-183 [254 Cal.Rptr.3d 871].)

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

965

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 Adult Unable to Consent Due to Intoxication or Other

Mental Condition. People v. Lewis (2023) 14 Cal.5th 876, 899 [309 Cal.Rptr.3d

699, 530 P.3d 1107].

• 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]; but see People v. Hartland (2020) 54 Cal.App.5th 71, 80 [268 Cal.Rptr.3d

1] [an illegal purpose or intent is not required for an intoxicated and resisting

adult victim].

• 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 Alone Does Not Substitute for Force. People v. Nieto (2021) 62

Cal.App.5th 188, 195 [276 Cal.Rptr.3d 379].

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.

LESSER INCLUDED OFFENSES

Attempted kidnapping is not a lesser included offense of simple kidnapping under

subdivision (a) of section 207, but the jury may be instructed on attempted

kidnapping if supported by the evidence. (People v. Fontenot (2019) 8 Cal.5th 57,

65-71 [251 Cal.Rptr.3d 341, 447 P.3d 252] [discussing Pen. Code, § 1159].)

CALCRIM No. 1201 KIDNAPPING

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RELATED ISSUES

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].)

SECONDARY SOURCES

1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the

Person, §§ 286-289.

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).

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Page last reviewed May 2024