1225. Defense to Kidnapping: Protecting Child From Imminent Harm
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.
<Alternative A—reasonable doubt standard>
[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.]
<Alternative B—preponderance standard>
[The defendant has the burden of proving by a preponderance of the evidence that (he/she) was acting to protect the child from danger of imminent harm. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.
No reported cases specifically discuss the court's duty to instruct on the prevention of imminent harm to a child. Generally, 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).)
4. Kidnapping by bringing a person unlawfully abducted out of state into California. (Pen. Code, § 207(d).)
Whether the defendant must prove this defense by a preponderance of the evidence or the prosecution must prove its absence beyond a reasonable doubt has not been finally resolved. (See In re Michele D. (2002) 29 Cal.4th 600, 611 [128 Cal.Rptr.2d 92, 59 P.3d 164] [observing in dicta that this is a "limited affirmative defense"].) The court must instruct as to which party bears the burden. (People v. Mower (2002) 28 Cal.4th 457, 478-479 [122 Cal.Rptr.2d 326, 49 P.3d 1067].) The committee has provided the court with both options. The court must select and give one of the two options. The committee recommends reviewing People v. Mower, supra, 28 Cal.4th at pp. 478-479, discussing affirmative defenses and burdens of proof generally. (See also In re Michele D., supra, 29 Cal.4th at p. 611 [the prosecution bears the burden of proving that the defendant kidnapped the minor for an illegal purpose]; People v. Oliver (1961) 55 Cal.2d 761, 768 [12 Cal.Rptr. 865, 361 P.2d 593] [same]; People v. Ojeda-Parra (1992) 7 Cal.App.4th 46, 50 [8 Cal.Rptr.2d 634] [same].)
CALCRIM No. 3403, Necessity.
CALCRIM No. 3402, Duress or Threats.
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].
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.14[a] (Matthew Bender).
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.
(New January 2006)