1204. Kidnapping: During Carjacking
The defendant is charged [in Count ______] with kidnapping during a carjacking.
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;
6. The other person did not consent to the movement(;/)
<Give element 7 when instructing on reasonable belief in consent.>
7. The defendant did not actually and reasonably believe that the other person consented 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 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[Consent may be withdrawn.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.
[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 substantially 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.]
[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.]
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.
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 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."
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].
Substantial Distance Requirement. People v. Derek Daniels (1993) 18 Cal.App.4th 1046, 1053 [22 Cal.Rptr.2d 877].
Vicinity of Carjacking. People v. Moore (1999) 75 Cal.App.4th 37, 43-46 [88 Cal.Rptr.2d 914].
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the Person, § 276.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, §§ 142.10A, 142.14 (Matthew Bender).
See the Commentary to CALCRIM No. 1203, Kidnapping: for Robbery, Rape, or Other Sex Offenses.
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 849, 968 P.2d 48].)
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].)
(New January 2006)