2735. Holding a Hostage
The defendant is charged [in Count ______] with holding a hostage.
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant (held a person hostage/ [or] held a person against his or her will, by force or threat of force, in defiance of official orders) inside a (prison/facility under the jurisdiction of the Department of Corrections);
2. When the defendant acted, (he/she) was serving a sentence in a [California] state prison.
A person is serving a sentence in a state prison if he or she is (confined in <insert name of institution from Pen. Code, § 5003>/committed to the Department of (the Youth Authority/ Corrections)) by an order made according to law[, regardless of both the purpose of the (confinement/commitment) and the validity of the order directing the (confinement/commitment), until a judgment of a competent court setting aside the order becomes final]. [A person may be serving a sentence in a state prison even if, at the time of the offense, he or she is confined in a local correctional institution pending trial or is temporarily outside the prison walls or boundaries for any permitted purpose, including but not limited to serving on a work detail.] [However, a prisoner who has been released on parole is not serving a sentence in a state prison.]
The court has a sua sponte duty to give this instruction defining the elements of the crime.
In the definition of "serving a sentence in a state prison," give the bracketed portion that begins with "regardless of the purpose," or the bracketed second or third sentence, if requested and relevant based on the evidence.
Elements. Pen. Code, § 4503.
Confined in State Prison Defined. Pen. Code, § 4504.
Underlying Conviction Need Not Be Valid. Wells v. California (1965) 352 F.2d 439, 442.
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the Person, § 255.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91, Sentencing, §§ 91.30, 91.60[b] (Matthew Bender).
(New January 2006)