F 9.52

F 9.52 n1 Kidnapping Victim Under 14: Minor’s Lack Of Consent As Element (PC 208(b)).

In its use note to its revised instruction on kidnapping of a person under 14 (PC 208(d)), CALJIC expresses a concern as to whether the minor’s lack of consent is an element of this crime, “inasmuch as a minor has no legal capacity to consent.” However, PC 208(b) defines the crime as “kidnapping” and, hence, since lack of consent is an element of kidnapping, it should be a factual prerequisite to liability regardless of the age of the victim.

F 9.52 n2 Kidnapping: Victim Under 14 — Mistake Of Fact As To Age Not A Defense (PC 208(b)).

In People v. Magpuso (94) 23 CA4th 112, 118 [28 CR2d 206], the court held that the public policy considerations underlying PC 208(b) justify punishment for the offense actually committed even though the perpetrator may have reasonably thought that the victim was not under 14 years old and hence that the defendant was committing a less grave offense.

F 9.52 n3 Aggravated Kidnapping: Substantially Increased Risk Of Psychological Harm Is Sufficient.

(See FORECITE F 9.51 n2.)

F 9.52 n4 Kidnapping: Is PC 208(b) A Distinct Crime Or Penalty Enhancement?

People v. Martinez (99) 20 C4th 225, 231 [83 CR2d 533] recognized without resolving the question of whether PC 208(b), imposing increased punishment for kidnapping a child under the age of 14 years, is a distinct crime or a penalty enhancement. However, AB 1290 declared the Legislature’s intent that the above provision establishes a penalty enhancement for the crime of simple kidnapping, and not a separate offense. It further provides that it is not the intent of the act to change the law as interpreted by the courts regarding the asportation standard necessary to establish a violation of PC 207. (See FORECITE’s 1999 Legislative Update.) Nevertheless, in cases which predate AB 1290, the court will not be bound by the Legislature’s retroactive declaration of what a prior statute supposedly meant (though obviously the declaration is persuasive), because interpreting a statute is solely a judicial task. (E.g., California Employment Stabilization Com. v. Payne (47) 31 C2d 210, 213-214 [187 P2d 702]; Western Security Bank, N.A. v. Superior Court (97) 15 C4th 232, 244 [62 CR2d 243].

F 9.52 n5 Aggravated Kidnapping: Jury Finding On Enhancement Required By Constitutional Right To Trial By Jury.

The CALJIC use note states that instruction on the age enhancement for kidnapping (PC 208(b)) is required to meet “due process consideration.” Jones v. U.S. (99) 526 US 227 [143 LEd2d 311; 119 SCt 1215] and Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348, 2362] made it clear that the federal constitutional right to trial by jury (6th and 14th Amendments) also applies to an enhancement which increases the range of punishment eligibility. (See also Blakely v. Washington (2004) 542 US 296 [159 LEd2d 403; 124 SCt 2531].)

F 9.52 n6 Improper To Refer To The Prosecution as “The People.”

Reference to the prosecution as “The People” may implicate the defendant’s state and federal constitutional rights to due process and fair trial by jury. (See FORECITE F 0.50d.) Any reference to “The People” should be changed to “The Prosecution.”

F 9.52a

Kidnapping:

Victim Under 14 — Asportation Requirement

Of Substantial Movement For Simple Kidnapping Required

*Add to CJ 9.52:

[Insert definition of asportation requirement for simple kidnapping].

Points and Authorities

People v. Martinez (99) 20 C4th 225 [83 CR2d 533] 2593 held that PC 208(b) defines a separate kidnapping offense which requires the asportation required for simple kidnapping. However, the court further held that the substantial distance requirement of simple kidnapping may be proven by factors other than the actual distance of the asportation. (See FORECITE 9.50 n2.)

F 9.52b Substantial Movement And Increased Danger Elements May Not Be Inferred Solely From Movement Of Victim To More Secluded Location

See FORECITE F 1203.5 Inst 7.