California Criminal Jury Instructions (CALCRIM) (2017)

1215. Kidnapping

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(ii) Simple Kidnapping
1215.Kidnapping (Pen. Code, § 207(a))
The defendant is charged [in Count ] with kidnapping [in
violation of Penal Code section 207(a)].
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;
[AND]
3. The other person did not consent to the movement(;/.)
<Give element 4 when instructing on reasonable belief in consent.>
[AND]
[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 distance the other person was moved was
beyond that merely incidental to the commission of <insert
associated crime>], whether the movement increased the risk of
[physical or psychological] harm, increased the danger of a foreseeable
escape attempt, or gave the attacker a greater opportunity to commit
additional crimes, or decreased the likelihood of detection.]
<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
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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.]]
New January 2006; Revised October 2010
BENCH NOTES
Instructional Duty
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 court must give the bracketed language on movement incidental to an
associated crime when it is supported by the evidence. (People v. Martinez,supra,
20 Cal.4th at p. 237; People v. Bell (2009) 179 Cal.App.4th 428, 439 [102
Cal.Rptr.3d 300].)
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.”
On request, if supported by the evidence, also give the bracketed paragraph that
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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.
Related Instructions
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.
AUTHORITY
• 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.
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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].
Secondary Sources
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).
COMMENTARY
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].
RELATED ISSUES
Victim Must Be Alive
Avictim 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
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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].)
1216–1224. Reserved for Future Use
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