The defendant is charged [in Count ______] with kidnapping.
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant took, held, or detained another person by using force or by instilling reasonable fear;
2. Using that force or fear, the defendant moved the other person [or made the other person move] a substantial distance;
3. The other person did not consent to the movement(;/.)
<Give element 4 when instructing on reasonable belief in consent.>
[4. 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.]
[Substantial distance means more than a slight or trivial distance. In deciding whether the distance was substantial, you must consider all the circumstances relating to the movement. Thus, in addition to considering the actual distance moved, you may also consider other factors such as whether the movement increased the risk of [physical or psychological] harm, increased the danger of a foreseeable escape attempt, gave the attacker a greater opportunity to commit additional crimes, or decreased the likelihood of detection.]
[The defendant is also charged in Count with <insert crime>. In order for the defendant to be guilty of kidnapping, the other person must be moved or made to move a distance beyond that merely incidental to the commission of <insert crime>.]
[Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun.]
<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.]]
The court has a sua sponte duty to give an instruction defining the elements of the crime.
In the paragraph defining "substantial distance," give the bracketed sentence listing factors that the jury may consider, when evidence permits, in evaluating the totality of the circumstances. (People v. Martinez (1999) 20 Cal.4th 225, 237 [83 Cal.Rptr.2d 533, 973 P.2d 512].) However, in the case of simple kidnapping, if the movement was for a substantial distance, the jury does not need to consider any other factors. (People v. Martinez, supra, 20 Cal.4th at p. 237; see People v. Stanworth (1974) 11 Cal.3d 588, 600-601 [114 Cal.Rptr. 250, 522 P.2d 1058].)
The bracketed paragraph that begins with "The defendant is also charged" must be given on request when an associated crime is charged. (See People v. Martinez, supra, 20 Cal.4th at pp. 237-238.) See also Commentary to CALCRIM No. 1203, Kidnapping: for Robbery, Rape, or Other Sex Offenses.
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."
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 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 4 and the bracketed paragraph on the defense.
If the victim is incapable of consent because of immaturity or mental condition, see CALCRIM No. 1201, Kidnapping: Child or Person Incapable of Consent.
A defendant may be prosecuted for both the crimes of child abduction and kidnapping. Child abduction or stealing is a crime against the parents, while kidnapping is a crime against the child. (In re Michele D. (2002) 29 Cal.4th 600, 614 [128 Cal.Rptr.2d 92, 59 P.3d 164]; People v. Campos (1982) 131 Cal.App.3d 894, 899 [182 Cal.Rptr. 698.) See CALCRIM No. 1250, Child Abduction: No Right to Custody.
For instructions relating to other defenses to kidnapping, see CALCRIM No. 1225, Defense to Kidnapping: Protecting Child From Imminent Harm, and CALCRIM No. 1226, Defense to Kidnapping: Citizen's Arrest
Elements. Pen. Code, § 207(a).
Punishment If Victim Under 14 Years of Age. Pen. Code, § 208(b); People v. Magpuso (1994) 23 Cal.App.4th 112, 118 [28 Cal.Rptr.2d 206] [ignorance of victim's age not a defense].
Asportation Requirement. People v. Martinez (1999) 20 Cal.4th 225, 235-237 [83 Cal.Rptr.2d 533, 973 P.2d 512] [adopting modified two-pronged asportation test from People v. Rayford (1994) 9 Cal.4th 1, 12-14 [36 Cal.Rptr.2d 317, 884 P.2d 1369], and People v. Daniels (1969) 71 Cal.2d 1119, 1139 [80 Cal.Rptr. 897, 459 P.2d 225]].
Consent to Physical Movement. See People v. Davis (1995) 10 Cal.4th 463, 516-518 [41 Cal.Rptr.2d 826, 896 P.2d 119].
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]; see People v. Davis (1995) 10 Cal.4th 463, 517, fn. 13, 518 [41 Cal.Rptr.2d 826, 896 P.2d 119] [kidnapping requires use of force or fear; consent not vitiated by fraud, deceit, or dissimulation].
Good Faith Belief in Consent. Pen. Code, § 26(3) [mistake of fact]; People v. Mayberry (1975) 15 Cal.3d 143, 153-155 [125 Cal.Rptr. 745, 542 P.2d 1337]; People v. Isitt (1976) 55 Cal.App.3d 23, 28 [127 Cal.Rptr. 279]; People v. Patrick (1981) 126 Cal.App.3d 952, 968 [179 Cal.Rptr. 276].
Incidental Movement Test. People v. Martinez (1999) 20 Cal.4th 225, 237-238 [83 Cal.Rptr.2d 533, 973 P.2d 512].
Intent Requirement. People v. Thornton (1974) 11 Cal.3d 738, 765 [114 Cal.Rptr. 467, 523 P.2d 267], disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668 [160 Cal.Rptr. 84, 603 P.2d 1]; People v. Davis (1995) 10 Cal.4th 463, 519 [41 Cal.Rptr.2d 826, 896 P.2d 119]; People v. Moya (1992) 4 Cal.App.4th 912, 916 [6 Cal.Rptr.2d 323].
Substantial Distance Requirement. People v. Derek Daniels (1993) 18 Cal.App.4th 1046, 1053; People v. Stanworth (1974) 11 Cal.3d 588, 600-601 [114 Cal.Rptr. 250, 522 P.2d 1058] [since movement must be more than slight or trivial, it must be substantial in character].
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the Person, §§ 246-255, 277.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91, Sentencing, § 91.38 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.14 (Matthew Bender).
Penal Code section 207(a) uses the term "steals" in defining kidnapping not in the sense of a theft, but in the sense of taking away or forcible carrying away. (People v. McCullough (1979) 100 Cal.App.3d 169, 176 [160 Cal.Rptr. 831].) The instruction uses "take," "hold," or "detain" as the more inclusive terms, but includes in brackets the statutory terms "steal" and "arrest" if either one more closely matches the evidence.
Lesser Included Offenses
Attempted Kidnapping. Pen. Code, §§ 664, 207; People v. Fields (1976) 56 Cal.App.3d 954, 955-956 [129 Cal.Rptr. 24].
False Imprisonment. Pen. Code, §§ 236, 237; People v. Magana (1991) 230 Cal.App.3d 1117, 1120-1121 [281 Cal.Rptr. 338]; People v. Gibbs (1970) 12 Cal.App.3d 526, 547 [90 Cal.Rptr. 866].
Victim Must Be Alive
A victim must be alive when kidnapped. (People v. Hillhouse (2002) 27 Cal.4th 469, 498 [117 Cal.Rptr.2d 45, 40 P.3d 754].)
Threat of Arrest
"[A]n implicit threat of arrest satisfies the force or fear element of section 207(a) kidnapping if the defendant's conduct or statements cause the victim to believe that unless the victim accompanies the defendant the victim will be forced to do so, and the victim's belief is objectively reasonable." (People v. Majors (2004) 33 Cal.4th 321, 331 [14 Cal.Rptr.3d 870, 92 P.3d 360].)
(New January 2006)