California Criminal Jury Instructions (CALCRIM) (2017)

1225. Defense to Kidnapping: Protecting Child From Imminent Harm

Download PDF
B. DEFENSES
1225.Defense to Kidnapping: Protecting Child From Imminent
Harm (Pen. Code, § 207(f)(1))
The defendant is not guilty of kidnapping if (he/she) (took/stole/enticed
away/detained/concealed/harbored) a child under the age of 14 years to
protect that child from danger of imminent harm.
An imminent harm is an immediate and present threat of harm. Belief
in future harm is not sufficient, no matter how great or how likely the
harm is believed to be. The defendant must have believed that the child
was in imminent danger.
[The People have the burden of proving beyond a reasonable doubt that
the defendant did not act to protect the child from the danger of
imminent harm. If the People have not met this burden, you must find
the defendant not guilty of kidnapping.]
New January 2006; Revised April 2008
BENCH NOTES
Instructional Duty
An instruction on a defense must be given sua sponte if there is substantial
evidence supporting the defense and the defendant is relying on the defense or the
defense is not inconsistent with the defendant’s theory of the case. (People v.
Sedeno (1974) 10 Cal.3d 703, 716–717 [112 Cal.Rptr. 1, 518 P.2d 913],
disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684–685,
fn. 12 [160 Cal.Rptr. 84, 603 P.2d 1] and in People v. Breverman (1998) 19 Cal.4th
142, 163, fn. 10, 164–178 [77 Cal.Rptr.2d 870, 960 P.2d 1094]; People v. Burnham
(1986) 176 Cal.App.3d 1134, 1139, fn. 3 [222 Cal.Rptr. 630].)
The prevention of imminent harm may be asserted against the following forms of
kidnapping (Pen. Code, § 207(f)(1)):
1. Simple kidnapping by force or fear. (Pen. Code, § 207(a).)
2. Kidnapping for the purpose of committing a lewd or lascivious act with a
child. (Pen. Code, § 207(b).)
3. Kidnapping by force or fear for the purpose of selling the victim into slavery
or involuntary servitude. (Pen. Code, § 207(c).)
973
0031
4. Kidnapping by bringing a person unlawfully abducted out of state into
California. (Pen. Code, § 207(d).)
Related Instructions
CALCRIM No. 3403, Necessity.
CALCRIM No. 3402, Duress or Threats.
AUTHORITY
• Instructional Requirements. Pen. Code, § 207(f)(1).
Imminent Harm Defined. See People v. Rodriguez (1997) 53 Cal.App.4th
1250, 1269 [62 Cal.Rptr.2d 345] [defining “imminent” for purposes of imperfect
self-defense to murder charge]; In re Eichorn (1998) 69 Cal.App.4th 382, 389
[81 Cal.Rptr.2d 535] [citing with approval definition of necessity that includes
physical harm].
• Defendant’s Burden of Proof on Imminent Harm Defense. People v.
Neidinger (2006) 40 Cal.4th 67, 79 [51 Cal.Rptr.3d 45, 146 P.3d 502].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the
Person, § 248.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.14[2][a] (Matthew Bender).
RELATED ISSUES
Whether Belief Must Be Reasonable
The language of Penal Code section 207(f)(1) does explicitly require that the
defendant “reasonably” believe that the child was in danger of harm. There are no
reported cases on this issue.
CALCRIM No. 1225 KIDNAPPING
974
0032