CALCRIM No. 1215. Kidnapping (Pen. Code, § 207(a))

Judicial Council of California Criminal Jury Instructions (2024 edition)

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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(;/.)

[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, April 2020, October 2021, March 2022

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. An illegal

purpose or intent is not required for an intoxicated and resisting adult victim.

(People v. Hartland (2020) 54 Cal.App.5th 71, 80 [268 Cal.Rptr.3d 1].)

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];

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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].

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

• 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].

Attempted kidnapping is not a lesser included offense of simple kidnapping under

subdivision (a) of section 207, but the jury may be instructed on attempted

kidnapping if supported by the evidence. (People v. Fontenot (2019) 8 Cal.5th 57,

65-71 [251 Cal.Rptr.3d 341, 447 P.3d 252] [discussing Pen. Code, § 1159].)

RELATED ISSUES

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].)

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SECONDARY SOURCES

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

Person, §§ 281-291, 316.

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).

1216-1224. Reserved for Future Use

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Page last reviewed May 2024