California Criminal Jury Instructions (CALCRIM) (2017)

1204. Kidnapping: During Carjacking

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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(;/)
<Give element 7 when 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 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
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actual 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].
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).
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.
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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].)
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].)
1205–1214. Reserved for Future Use
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