California Criminal Jury Instructions (CALCRIM) (2017)

1203. Kidnapping: For Robbery, Rape, or Other Sex Offenses

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1203.Kidnapping: For Robbery, Rape, or Other Sex Offenses
(Pen. Code, § 209(b))
The defendant is charged [in Count ] with kidnapping for the
purpose of (robbery/rape/spousal rape/oral copulation/sodomy/sexual
penetration) [in violation of Penal Code section 209(b)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant intended to commit (robbery/ [or] rape/ [or]
spousal rape/ [or] oral copulation/ [or] sodomy/ [or] sexual
penetration/ [or] <insert other offense specified in
statute>);
2. Acting with that intent, the defendant took, held, or detained
another person by using force or by instilling a reasonable fear;
3. Using that force or fear, the defendant moved the other person
[or made the other person move] a substantial distance;
4. The other person was moved or made to move a distance beyond
that merely incidental to the commission of a (robbery/ [or]
rape/ [or] spousal rape/ [or] oral copulation/ [or] sodomy/ [or]
sexual penetration/ [or] <insert other offense
specified in statute>);
5. When that movement began, the defendant already intended to
commit (robbery/ [or] rape/ [or] spousal rape/ [or] oral
copulation/ [or] sodomy/ [or] sexual penetration/ [or]
<insert other offense specified in statute>);
[AND]
6. The other person did not consent to the movement(;/.)
<Give element 7 if instructing on reasonable belief in consent.>
[AND
7. The defendant did not actually and reasonably believe that the
other person consented to the movement.]
As used here, substantial distance means more than a slight or trivial
distance. The movement must have increased the risk of [physical or
psychological] harm to the person beyond that necessarily present in the
(robbery/ [or] rape/ [or] spousal rape/ [or] oral copulation/ [or] sodomy/
[or] sexual penetration/ [or] <insert other offense specified
in statute>). In deciding whether the movement was sufficient, consider
all the circumstances relating to the movement.
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[In order to consent, a person must act freely and voluntarily and know
the nature of the act.]
[To be guilty of kidnapping for the purpose of (robbery/ [or] rape/ [or]
spousal rape/ [or] oral copulation/ [or] sodomy/ [or] sexual penetration),
the defendant does not actually have to commit the (robbery/ [or] rape/
[or] spousal rape/ [or] oral copulation/ [or] sodomy/ [or] sexual
penetration/ [or] <insert other offense specified in statute>).]
To decide whether the defendant intended to commit (robbery/ [or]
rape/ [or] spousal rape/ [or] oral copulation/ [or] sodomy/ [or] sexual
penetration/ [or] <insert other offense specified in statute>),
please refer to the separate instructions that I (will give/have given) you
on that crime.
<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
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.]
New January 2006; Revised June 2007, April 2008, February 2013, August 2013
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
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In addition, the court has a sua sponte duty to instruct on the elements of the
alleged underlying crime.
Give the bracketed definition of “consent” on request.
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].)
Timing of Necessary Intent
No court has specifically stated whether the necessary intent must precede all
movement of the victim, or only one phase of it involving an independently
adequate asportation.
Related Instructions
Kidnapping a child for the purpose of committing a lewd or lascivious act is a
separate crime under Penal Code section 207(b). See CALCRIM No. 1200,
Kidnapping: For Child Molestation.
AUTHORITY
• Elements. Pen. Code, § 209(b)(1); People v. Robertson (2012) 208 Cal. App.
4th 965, 982 [146 Cal.Rptr.3d 66]; People v. Vines (2011) 51 Cal.4th 830,
869–870 & fn. 20 [124 Cal.Rptr.3d 830, 251 P.3d 943]; People v. Martinez
(1999) 20 Cal.4th 225, 232 & fn. 4 [83 Cal.Rptr.2d 533, 973 P.2d 512]; People
v. Rayford (1994) 9 Cal.4th 1 [36 Cal.Rptr.2d 317]; People v. Daniels (1969) 71
Cal.2d. 1119 [80 Cal.Rptr. 897, 459 P.2d 225].
• Robbery Defined. Pen. Code, § 211.
• Rape Defined. Pen. Code, § 261.
• Other Sex Offenses Defined. Pen. Code, §§ 262 [spousal rape], 264.1 [acting
in concert], 286 [sodomy], 288a [oral copulation], 289 [sexual penetration].
• Intent to Commit Robbery Must Exist at Time of Original Taking. People v.
Tribble (1971) 4 Cal.3d 826, 830–832 [94 Cal.Rptr. 613, 484 P.2d 589]; People
v. Bailey (1974) 38 Cal.App.3d 693, 699 [113 Cal.Rptr. 514]; see People v.
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Thornton (1974) 11 Cal.3d 738, 769–770 [114 Cal.Rptr. 467], overruled on
other grounds in People v. Flannel (1979) 25 Cal.3d 668 [160 Cal.Rptr. 84, 603
P.2d 1].
• Kidnapping to Effect Escape From Robbery. People v. Laursen (1972) 8
Cal.3d 192, 199–200 [104 Cal.Rptr. 425, 501 P.2d 1145] [violation of section
209 even though intent to kidnap formed after robbery commenced].
• Kidnapping Victim Need Not Be Robbery Victim. People v. Laursen (1972) 8
Cal.3d 192, 200, fn. 7 [104 Cal.Rptr. 425, 501 P.2d 1145].
• Use of Force or Fear. See People v. Martinez (1984) 150 Cal.App.3d 579,
599–600 [198 Cal.Rptr. 565], disapproved on other grounds in People v. Hayes
(1990) 52 Cal.3d 577, 627–628, fn. 10 [276 Cal.Rptr. 874, 802 P.2d 376];
People v. Jones (1997) 58 Cal.App.4th 693, 713–714 [68 Cal.Rptr.2d 506].
• Movement of Victim Need Not Substantially Increase Risk of Harm to
Victim. People v. Robertson (2012) 208 Cal.App.4th 965, 982 [146
Cal.Rptr.3d 66]; People v. Vines (2011) 51 Cal.4th 830, 870 fn. 20 [124
Cal.Rptr.3d 830, 251 P.3d 943]; People v. Martinez (1999) 20 Cal.4th 225, 232
fn. 4 [83 Cal.Rptr.2d 533, 973 P.2d 512].
• 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].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 293–300, 310, 311–313.
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 (Matthew Bender).
LESSER INCLUDED OFFENSES
• Kidnapping. Pen. Code, § 207; People v. Bailey (1974) 38 Cal.App.3d 693,
699 [113 Cal.Rptr. 514]; see People v. Jackson (1998) 66 Cal.App.4th 182, 189
[77 Cal.Rptr.2d 564].
• Attempted Kidnapping. Pen. Code, §§ 664, 207.
• False Imprisonment. Pen. Code, §§ 236, 237; 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]; People v. Shadden (2001) 93
Cal.App.4th 164, 171 [112 Cal.Rptr.2d 826].
RELATED ISSUES
Psychological Harm
Psychological harm may be sufficient to support conviction for aggravated
kidnapping under Penal Code section 209(b). An increased risk of harm is not
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limited to a risk of bodily harm. (People v. Nguyen (2000) 22 Cal.4th 872, 885–886
[95 Cal.Rptr.2d 178, 997 P.2d 493] [substantial movement of robbery victim that
posed substantial increase in risk of psychological trauma beyond that expected
from stationary robbery].)
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