Justia Criminal Law Center California Criminal Jury Instructions (CALCRIM) (2023) Kidnapping CALCRIM No. 1202. Kidnapping: For Ransom, Reward, Extortion or to Exact From Another Person (Pen. Code, § 209(a))

CALCRIM No. 1202. Kidnapping: For Ransom, Reward, Extortion or to Exact From Another Person (Pen. Code, § 209(a))

Judicial Council of California Criminal Jury Instructions (2023 edition)

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1202.Kidnapping: For Ransom, Reward, Extortion or to Exact

From Another Person (Pen. Code, § 209(a))

The defendant is charged [in Count ] with kidnapping (for

ransom[,]/ [or] for reward[,]/ [or] to commit extortion[,]/ [or] to get from

a different person money or something valuable) [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) a person;

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

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

that person;]

3. The defendant did so (for ransom[,]/ [or] for reward[,]/ [or] to

commit extortion[,]/ [or] to get from a different person money or

something valuable);

[AND]

4. The person did not consent to being (kidnapped[,]/ [or]

abducted[,]/ [or] seized[,]/ [or] confined[,]/ [or] concealed[,]/ [or]

carried away[,]/ [or] inveigled[,]/ [or] enticed[,]/ [or] decoyed)(;/.)

[AND

5. The defendant did not actually and reasonably believe that the

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

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actually believed that the person consented to the movement. The People

have the burden of proving beyond a reasonable doubt that the

defendant did not reasonably and actually believe that the 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 person consented to go

with the defendant. The 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 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 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.]

[If you find the defendant guilty of kidnapping (for ransom [,]/ [or] for

reward[,]/ [or] to commit extortion[,]/ [or] to get from a different person

money or something valuable), 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

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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>.

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, September

2020, March 2021

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).)

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“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.

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

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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].

• Kidnapping To Extract From Another Person Any Money or Valuable Thing

Requires That The Other Person Not Be The Person Kidnapped. People v.

Harper (2020) 44 Cal.App.5th 172, 192-193 [257 Cal.Rptr.3d 440]; People v.

Stringer (2019) 41 Cal.App.5th 974, 983 [254 Cal.Rptr.3d 678].

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.

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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].)

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).

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Page last reviewed May 2023