Justia Criminal Law Center California Criminal Jury Instructions (CALCRIM) (2023) Kidnapping CALCRIM No. 1204. Kidnapping: During Carjacking (Pen. Code, §§ 207(a), 209.5(a), (b), 215(a))

CALCRIM No. 1204. Kidnapping: During Carjacking (Pen. Code, §§ 207(a), 209.5(a), (b), 215(a))

Judicial Council of California Criminal Jury Instructions (2023 edition)

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1204.Kidnapping: During Carjacking (Pen. Code, §§ 207(a),

209.5(a), (b), 215(a))

The defendant is charged [in Count ] with kidnapping during a

carjacking [in violation of Penal Code section 209.5].

To prove that the defendant is guilty of this crime, the People must

prove that:

1. The defendant committed a carjacking;

2. During the carjacking, the defendant took, held, or detained

another person by using force or by instilling reasonable fear;

3. The defendant moved the other person or made that person move

a substantial distance from the vicinity of the carjacking;

4. The defendant moved or caused the other person to move with

the intent to facilitate the carjacking [or to help (himself/herself)

escape/or to prevent the other person from sounding an alarm];

5. The person moved was not one of the carjackers;

[AND]

6. The other person did not consent to the movement(;/)

[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 been more than merely brief and

incidental to the commission of the carjacking. The movement must also

have increased the risk of [physical or psychological] harm to the person

beyond that necessarily present in the carjacking. In deciding whether

the movement was sufficient, consider all the circumstances relating to

the movement.

[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

defendant did not reasonably and actually believe that the other person

consented to the movement. If the People have not met this burden, you

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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 maturity and

understanding 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.]

To decide whether the defendant committed carjacking, please refer to

the separate instructions that I (will give/have given) you on that crime.

[Fear, as used in this instruction, means fear of injury to the person or

injury to the person’s family or property.] [It also means fear of

immediate injury to another person present during the incident or to

that person’s property.]

New January 2006; Revised February 2013, August 2013

BENCH NOTES

Instructional Duty

The court has a sua sponte duty to give an instruction defining the elements of the

crime. The court also has a sua sponte duty to instruct on the elements of

carjacking. Give CALCRIM No. 1650, Carjacking.

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].) An optional paragraph is provided for this purpose, “Defense: Consent

Given.”

The court has a sua sponte duty to instruct on the defendant’s reasonable and actual

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belief in the victim’s consent to go with the defendant, if supported by the evidence.

(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].) Give

bracketed element 7 and the paragraph “Defense: Good Faith Belief in Consent.”

AUTHORITY

• Elements. Pen. Code, §§ 207(a), 209.5(a), (b), 215(a).

• Force or Fear Requirement. People v. Moya (1992) 4 Cal.App.4th 912, 916-917

[6 Cal.Rptr.2d 323]; People v. Stephenson (1974) 10 Cal.3d 652, 660 [111

Cal.Rptr. 556, 517 P.2d 820] [fear must be reasonable].

• Incidental Movement. See People v. Martinez (1999) 20 Cal.4th 225, 237-238

[83 Cal.Rptr.2d 533, 973 P.2d 512].

• Increased Risk of Harm. People v. Ortiz (2002) 101 Cal.App.4th 410, 415 [124

Cal.Rptr.2d 92].

• Intent to Facilitate Commission of Carjacking. People v. Perez (2000) 84

Cal.App.4th 856, 860-861 [101 Cal.Rptr.2d 376].

• Movement Need Not Substantially Increase Risk of Harm. People v. Robertson

(2012) 208 Cal.App.4th 965, 982 [146 Cal.Rptr.3d 66]; People v. Ortiz (2002)

101 Cal.App.4th 410 [124 Cal.Rptr.2d 92]; Pen. Code, § 209.5(a).

• Vicinity of Carjacking. People v. Moore (1999) 75 Cal.App.4th 37, 43-46 [88

Cal.Rptr.2d 914].

LESSER INCLUDED OFFENSES

• Carjacking. Pen. Code, § 215(a); People v. Jones (1999) 75 Cal.App.4th 616,

624-626 [89 Cal.Rptr.2d 485]; People v. Contreras (1997) 55 Cal.App.4th 760,

765 [64 Cal.Rptr.2d 233] [Pen. Code, § 209.5 requires completed offense of

carjacking].

• Attempted Carjacking. Pen. Code, §§ 664, 215(a); People v. Jones (1999) 75

Cal.App.4th 616, 626 [89 Cal.Rptr.2d 485].

• False Imprisonment. Pen. Code, §§ 236, 237; see People v. Russell (1996) 45

Cal.App.4th 1083, 1088-1089 [53 Cal.Rptr.2d 241]; People v. Gibbs (1970) 12

Cal.App.3d 526, 547 [90 Cal.Rptr. 866].

An unlawful taking or driving of a vehicle with an intent to temporarily deprive the

owner of possession (Veh. Code, § 10851(a)) is not a necessarily included lesser

offense or a lesser related offense of kidnapping during a carjacking. (People v.

Russell (1996) 45 Cal.App.4th 1083, 1088-1091 [53 Cal.Rptr.2d 241] [evidence

only supported finding of kidnapping by force or fear; automobile joyriding

formerly governed by Pen. Code, § 499b].)

Grand theft is not a necessarily included offense of carjacking. (People v. Ortega

(1998) 19 Cal.4th 686, 693 [80 Cal.Rptr.2d 489, 968 P.2d 48].)

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RELATED ISSUES

Dominion and Control

Carjacking can occur when a defendant forcibly takes a victim’s car keys, not just

when a defendant takes a car from the victim’s presence. (People v. Hoard (2002)

103 Cal.App.4th 599, 608-609 [126 Cal.Rptr.2d 855] [victim was not physically

present when defendant drove car away].)

SECONDARY SOURCES

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

Person, §§ 314-315.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes

Against the Person, §§ 142.10A, 142.14 (Matthew Bender).

1205-1214. Reserved for Future Use

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Page last reviewed May 2023