1240. Felony False Imprisonment
The defendant is charged [in Count ______] with false imprisonment by violence or menace.
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant intentionally [and unlawfully] (restrained[,]/ [or] confined[,]/ [or] detained) someone [or caused that person to be (restrained[,]/ [or] confined[,]/ [or] detained)] by violence or menace;
2. The defendant made the other person stay or go somewhere against that person's will.
Violence means using physical force that is greater than the force reasonably necessary to restrain someone.
Menace means a verbal or physical threat of harm[, including use of a deadly weapon]. The threat of harm may be express or implied.
[An act is done against a person's will if that person does not consent to the act. In order to consent, a person must act freely and voluntarily and know the nature of the act.]
[False imprisonment does not require that the person restrained be confined in jail or prison.]
The court has a sua sponte duty to give an instruction defining the elements of the crime. (People v. Haney (1977) 75 Cal.App.3d 308, 312-313 [142 Cal.Rptr. 186] [failure to instruct on elements of violence, menace, fraud, or deceit necessary to establish felony false imprisonment requires reversal].)
Give the bracketed words "and unlawfully" in element 1 on request if there is evidence that the defendant acted lawfully. The court will need to further define for the jury when a restraint, detention, or confinement is legal.
Give the bracketed definition of "against a person's will" on request.
Give the final paragraph on request to inform jurors that false "imprisonment" is not limited to confinement in jail or prison. (People v. Agnew (1940) 16 Cal.2d 655, 659 [107 P.2d 601]; People v. Haney (1977) 75 Cal.App.3d 308, 313 [142 Cal.Rptr. 186].)
CALCRIM No. 1242, Misdemeanor False Imprisonment.
If the defendant is charged with false imprisonment for purposes of protection from arrest or use as a shield (Pen. Code, § 210.5), see CALCRIM No. 1241, False Imprisonment: Hostage.
Elements. Pen. Code, §§ 236, 237; People v. Agnew (1940) 16 Cal.2d 655, 659-660 [107 P.2d 601].
Confinement in Jail or Prison Not Required. People v. Agnew (1940) 16 Cal.2d 655, 659 [107 P.2d 601]; People v. Haney (1977) 75 Cal.App.3d 308, 313 [142 Cal.Rptr. 186].
General-Intent Crime. People v. Fernandez (1994) 26 Cal.App.4th 710, 717-718 [31 Cal.Rptr.2d 677]; People v. Olivencia (1988) 204 Cal.App.3d 1391, 1399-1400 [251 Cal.Rptr. 880]; People v. Swanson (1983) 142 Cal.App.3d 104, 109 [190 Cal.Rptr. 768].
Menace Defined. People v. Matian (1995) 35 Cal.App.4th 480, 484-486 [41 Cal.Rptr.2d 459].
Violence Defined. People v. Babich (1993) 14 Cal.App.4th 801, 806 [18 Cal.Rptr.2d 60].
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the Person, §§ 77-80.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.14[a], [b] (Matthew Bender).
The instruction includes a definition of "violence" because it has a specific meaning in the context of felony false imprisonment. In addition, force and violence are separate elements with different meanings that must be made clear to the jury. (People v. Babich (1993) 14 Cal.App.4th 801, 806-807 [18 Cal.Rptr.2d 60].) Force is required for a finding of both misdemeanor and felony false imprisonment, while violence is only required for the felony. "Violence" is a force greater than that reasonably necessary to effect the restraint. (People v. Hendrix (1992) 8 Cal.App.4th 1458, 1462 [10 Cal.Rptr.2d 922].)
A definition of "menace" is also included. Menace has a specific meaning in the context of felony false imprisonment. (People v. Babich, supra, 14 Cal.App.4th at p. 806.) Two categories of menace include a threat involving either the use of a deadly weapon or verbal threats of harm. (People v. Matian (1995) 35 Cal.App.4th 480, 485-486 [41 Cal.Rptr.2d 459].) "Menace" is not a mere modifier of "violence." (People v. Arvanites (1971) 17 Cal.App.3d 1052, 1060 [95 Cal.Rptr. 493].)
The committee found only one case that involved fraud and deceit. (People v. Rios (1986) 177 Cal.App.3d 445, 450-451 [222 Cal.Rptr. 913]; see also Parnell v. Superior Court (1981) 119 Cal.App.3d 392, 409-410 [173 Cal.Rptr. 906].) Thus, this instruction focuses on the use of violence or menace to restrain the victim. If there is evidence of the use of fraud or deceit, the court must modify the instruction.
Lesser Included Offenses
Attempted False Imprisonment. Pen. Code, §§ 664, 236, 237; People v. Ross (1988) 205 Cal.App.3d 1548, 1554-1555 [253 Cal.Rptr. 178] [present ability not prerequisite to attempted false imprisonment].
Misdemeanor False Imprisonment. Pen. Code, § 236; People v. Matian (1995) 35 Cal.App.4th 480, 484, fn. 4, 487 [41 Cal.Rptr.2d 459]; People v. Babich (1993) 14 Cal.App.4th 801, 807 [18 Cal.Rptr.2d 60].
Elder or Dependent Adult Victim
False imprisonment of an elder or dependent adult by use of violence, menace, fraud, or deceit is punishable by imprisonment for two, three, or four years. (Pen. Code, §§ 237(b), 368(f).) An elder is any person who is 65 years of age or older. (Pen. Code, § 368(g).) A dependent adult is any person between the ages of 18 and 64 with specified physical or mental limitations. (Pen. Code, § 368(h).)
Parent Confining Child
A parent who confines his or her child with the intent to endanger the health and safety of the child or for an unlawful purpose can be prosecuted for false imprisonment. (People v. Checketts (1999) 71 Cal.App.4th 1190, 1195 [84 Cal.Rptr.2d 491] [unlawful purpose of avoiding prosecution].) A parent asserting the defense of parental authority may introduce evidence of his or her intent in confining or restraining the child and of the reasonableness of the restraint or confinement. (Id. at p. 1196.) There is no sua sponte duty to instruct on the defense absent substantial evidence supporting the defense or reliance on it during the trial. (Id. at p. 1197.)
(New January 2006)