California Criminal Jury Instructions (CALCRIM) (2017)

1202. Kidnapping: For Ransom, Reward, or Extortion

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1202.Kidnapping: For Ransom, Reward, or Extortion (Pen. Code,
§ 209(a))
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)] [in violation of Penal Code section 209(a)].
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) another person;
<Alternative 2A—held or detained>
[2. The defendant held or detained the other person;]
<Alternative 2B—intended to hold or detain that person>
[2. When the defendant acted, (he/she) intended to hold or detain
the other person;]
3. The defendant did so (for ransom[,]/ [or] for reward[,]/ [or] to
commit extortion[,]/ [or] to get money or something valuable);
[AND]
4. The other person did not consent to being (kidnapped[,]/ [or]
abducted[,]/ [or] seized[,]/ [or] confined[,]/ [or] concealed[,]/ [or]
carried away[,]/ [or] inveigled[,]/ [or] enticed[,]/ [or] decoyed)(;/.)
<Give element 5 if instructing on reasonable belief in consent>
[AND
5. The defendant did not actually and reasonably believe that the
other person consented to being (kidnapped[,]/ [or] abducted[,]/
[or] seized[,]/ [or] confined[,]/ [or] concealed[,]/ [or] carried
away[,]/ [or] inveigled[,]/ [or] enticed[,]/ [or] decoyed).]
[It is not necessary that the person be moved for any distance.]
[In order to consent, a person must act freely and voluntarily and know
the nature of the act.]
<Defense: Good Faith Belief in Consent>
[The defendant is not guilty of kidnapping if (he/she) reasonably and
actually believed that the other person consented to the movement. The
People have the burden of proving beyond a reasonable doubt that the
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defendant did not reasonably and actually believe that the other person
consented to the movement. If the People have not met this burden, you
must find the defendant not guilty of this crime.]
<Defense: Consent Given>
[The defendant is not guilty of kidnapping if the other person consented
to go with the defendant. The other person consented if (he/she) (1)
freely and voluntarily agreed to go with or be moved by the defendant,
(2) was aware of the movement, and (3) had sufficient mental capacity
to choose to go with the defendant. The People have the burden of
proving beyond a reasonable doubt that the other person did not
consent to go with the defendant. If the People have not met this
burden, you must find the defendant not guilty of this crime.]
[Consent may be withdrawn. If, at first, a person agreed to go with the
defendant, that consent ended if the person changed his or her mind
and no longer freely and voluntarily agreed to go with or be moved by
the defendant. The defendant is guilty of kidnapping if after the other
person withdrew consent, the defendant committed the crime as I have
defined it.]
[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 likelihood 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
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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>.
Asubstantial 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.]
New January 2006; Revised April 2011, February 2015, March 2017
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 the bracketed definition of “consent” on request.
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
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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.
Defenses—Instructional Duty
The court has a sua sponte duty to instruct on the defense of consent if there is
sufficient evidence to support the defense. (See People v. Davis (1995) 10 Cal.4th
463, 516–518 [41 Cal.Rptr.2d 826, 896 P.2d 119] [approving consent instruction as
given]; see also People v. Sedeno (1974) 10 Cal.3d 703, 717, fn. 7 [112 Cal.Rptr. 1,
518 P.2d 913], overruled on other grounds in People v. Breverman (1998) 19
Cal.4th 142, 165 [77 Cal.Rptr.2d 870, 960 P.2d 1094] [when court must instruct on
defenses].) Give the bracketed paragraph on the defense of consent. On request, if
supported by the evidence, also give the bracketed paragraph that begins with
“Consent may be withdrawn.” (See People v. Camden (1976) 16 Cal.3d 808, 814
[129 Cal.Rptr. 438, 548 P.2d 1110].)
The defendant’s reasonable and actual belief in the victim’s consent to go with the
defendant may be a defense. (See People v. Greenberger (1997) 58 Cal.App.4th
298, 375 [68 Cal.Rptr.2d 61]; People v. Isitt (1976) 55 Cal.App.3d 23, 28 [127
Cal.Rptr. 279] [reasonable, good faith belief that victim consented to movement is
a defense to kidnapping].)
Related Instructions
For the elements of extortion, see CALCRIM No. 1830, Extortion by Threat or
Force.
AUTHORITY
• Elements. Pen. Code, § 209(a).
Requirement of Lack of Consent. People v. Eid (2010) 187 Cal.App.4th 859,
878 [114 Cal.Rptr.3d 520].
• 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. 382].
• 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].
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• 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 (4th ed. 2012) Crimes Against the
Person, §§ 301–302.
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.
• Multiple Convictions of Lesser Included Offenses of Pen. Code, § 209(a)
Possible. People v. Eid (2014) 59 Cal.4th 650, 655–658 [174 Cal.Rptr.3d 82,
328 P.3d 69].
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
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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].)
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