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F 9.61a
False Imprisonment: Shield/Protection
From Arrest — Threat Or Risk Of Imminent Arrest
(PC 210.5)
*Modify element 3a of CJ 9.61 to provide as follows [added language is capitalized]:
The person restraining, confining, or detaining, did so with the specific intent to protect [himself] [herself] [another] from A THREAT OR RISK OF IMMINENT arrest.
Points and Authorities
In People v. Gomez (92) 2 CA4th 819, 825 [3 CR2d 418], the court held that the language of PC 210.5, “is unambiguous and plainly means there must be a threat or risk of imminent arrest.”
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
NOTES
Element “3″ of CJ 9.61 does not include the specific intent to avoid arrest. However, in light of the discussion of the legislative objectives of the statute in Gomez, it could be argued that use of the hostage as a shield includes a specific intent to avoid arrest. As Gomez observes, “[i]n both situations the victim is being held hostage by the perpetrator in order to prevent his imminent arrest by law enforcement officers. [Footnote omitted].” (Gomez 2 CA4th at 825.)