1241. False Imprisonment: Hostage
The defendant is charged [in Count ______] with false imprisonment of a hostage.
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant faced a threat or risk of imminent arrest;
2. The defendant (restrained[,]/ [or] confined[,]/ [or] detained) another person by force or by a threat to use force;
3. The defendant intended to protect (himself/herself) against the threat of imminent arrest by restraining the other person;
4. The defendant made the other person stay or go somewhere against that person's will;
5. The defendant either substantially increased the risk of [physical or psychological] harm to the (restrained[,]/ [or] confined[,]/ [or] detained) person or intended to use that person as a shield.
[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.
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].)
Elements. Pen. Code, §§ 210.5, 236.
Imminent Arrest. People v. Gomez (1992) 2 Cal.App.4th 819, 825 [3 Cal.Rptr.2d 418] [dicta].
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the Person, § 81.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.14[c], [a], [b] (Matthew Bender).
Unlike simple false imprisonment, false imprisonment of a hostage is a specific intent crime. (See Pen. Code, § 210.5 [falsely imprison "for purposes of protection from arrest"]; see also People v. McDaniel (1979) 24 Cal.3d 661, 669 [156 Cal.Rptr. 865, 597 P.2d 124] [specific intent crime exists when defendant intends to do some further act or achieve some additional consequence].)
Section 210.5 does not expressly require a threat of arrest when a perpetrator commits false imprisonment "for purposes of using the person as a shield." Until the appellate courts provide more guidance, this instruction assumes that a threat of imminent arrest is required. (See People v. Gomez (1992) 2 Cal.App.4th 819, 825 [3 Cal.Rptr.2d 418] [dicta].)
Lesser Included Offenses
False Imprisonment. Pen. Code, §§ 236, 237.
Attempted False Imprisonment of Hostage. Pen. Code, §§ 664, 210.5, 236.
(New January 2006)