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F 9.56 n1 Alternative Theories Of Consent Should Be Given To Jury.
Consent to the asportation is a defense to kidnapping rendering the asportation non-forcible (People v. Rhoden (72) 6 C3d 519, 526-28 [99 CR 751]; CJ 9.50.) In a normal consent situation, the jury is instructed regarding the definition of consent using CJ 9.56 and 9.58. However, where the victim is in such a condition that he or she is unable to consent to the movement at issue, the defendant is “guilty of kidnapping only if the taking and carrying away is done with an illegal purpose or with an illegal intent.” (People v. Oliver (61) 55 C2d 761, 768 [12 CR 865].) Oliver requires a specific intent as an element of the offense which must be proved beyond a reasonable doubt where the victim is incapable of consenting. Accordingly, where justified by substantial evidence, the jury must be informed of this principle which is set forth in CJ 9.57. (See People v. Ojeda-Parra (92) 7 CA4th 46, 50 [8 CR2d 634].)
The use note following the standard consent instruction (CJ 9.56) acknowledges the Oliver consent instruction but treats it only as an alternative to the basic consent defense: “If the person kidnapped was incapable of giving consent by reason of immaturity or mental condition, do not give this instruction. In such case, give CALJIC 9.57.” [Emphasis added.] It is true that the two defense theories are mutually exclusive in the sense that they cannot both be found simultaneously true: under one theory, the victim consented in fact; in the other, the victim was unable to consent. But the use note fails to take into account the situation where there are issues of fact as to both theories. Where, for example, the defendant asserts the victim’s consent, but the prosecution’s evidence suggests an inability to consent, the trier of fact may rely on either or both theories. In such situations CJ 9.56 and 9.57 should both be given. Otherwise, the prosecutor could point to CJ 9.56 and CJ 3.30 to argue: If you believe that the victim was unable to consent, then the defendant is guilty of kidnapping as a general intent crime. Such a conviction would violate the defendant’s federal constitutional rights to due process and trial by jury since the jury would not have been required to find the essential element of specific intent required by Oliver and contained in CJ 9.57. Accordingly, when the jury is faced with both an issue of actual consent and an issue of capacity to consent, both CJ 9.56 and 9.57 should be given. [Additional briefing on this issue is available to FORECITE subscribers, ask for Brief Bank # B-721.]
Consent As Defense To Kidnapping: Clarification
Of Elements And Specification Of Burden
*Modify CJ 9.56 to provide as follows [added language is capitalized; deleted language is between <<>>]:
When one consents to accompany another, there is no kidnapping so long as such condition of consent exists.
To consent to an <<act or transaction>> ASPORTATION, a person must
1. act freely and voluntarily and not under the influence of threats, force or duress;
2. have knowledge of the <<true nature of the act or transaction involved>> ASPORTATION; and
3. possess sufficient mental capacity to make an intelligent choice whether or not to do something proposed by another person.
<<[Mere passivity does not amount to consent.] Consent requires a free will and positive cooperation in act or attitude.>>
IF AFTER CONSIDERATION OF ALL THE EVIDENCE YOU HAVE A REASONABLE DOUBT AS TO WHETHER __________ CONSENTED TO THE ASPORTATION, YOU MUST GIVE THE DEFENDANT THE BENEFIT OF THAT DOUBT AND FIND [HIM] [HER] NOT GUILTY.
Points and Authorities
In People v. Davis (95) 10 C4th 463, 517 [41 CR2d 826], the Supreme Court recognized that CJ 9.56 — though a correct statement of the law — “is not well worded.” Among the modifications to CJ 9.56 which should, at a minimum, be made upon request are the following:
1. Clarification that the asportation is the act to which the victim must consent.
2. Deletion of the confusing language defining consent as something more than “mere passivity” requiring “a free will and positive cooperation in act or attitude.” (See FORECITE F 1.23.1 n2 and F 1.23.1 n3.) The term “consent” has been recognized to be a “concrete and commonly understood” word (People v. Acevedo (85) 166 CA3d 196, 204 [212 CR 328]) and, therefore, specific definition of the term is not necessary. Moreover, the definition employed by CJ 9.56 raises the term to a “higher level of abstraction” and could “only cause … confusion ….” (Acevedo, 166 CA3d at 204.) If specific instruction on the term is to be given, that instruction should be based on the common dictionary definition such as “voluntary agreement to or concurrence in” the asportation. (See Kiseskey v. Carpenter’s Trust (83) 144 CA3d 222, 235 [192 CR 492].)
3. EC 502 requires the court to “instruct the jury as to which party bears the burden of proof on each issue ….” (See People v. Simon (95) 9 C4th 493, 500-01 [37 CR2d 278]; see also, CJ 10.65, CJ 2.91, CJ 4.30, CJ 4.50, CJ 5.15, CJ 9.58.)
Consent As Defense To Kidnapping: Consent Obtained
By Fraud Or Deceit
*Add to CJ 9.56 when appropriate:
Asportation which is accomplished by fraud, deceit or other false appearance is not kidnapping. In other words, even if the defendant’s consent was obtained by fraud, deceit or other false appearance, the existence of such consent precludes a finding of kidnapping. If after consideration of all the evidence you have a reasonable doubt whether the asportation was accomplished by fraud, deceit or other false appearance, you must give the defendant the benefit of that doubt and find [him] [her] not guilty.
Points and Authorities
Kidnapping can only be accomplished by use of threat or force. (People v. Green (80) 27 C3d 1, 64 [164 CR 1].) Hence, consent by the victim precludes a finding of kidnapping even if that consent was obtained by fraud, deceit or dissimulation (hiding under false appearance). (People v. Davis (95) 10 C4th 463, 518 [41 CR2d 826].) In Davis, the court recognized that CJ 9.56 is not well worded even though it correctly states the law. (Ibid.) However, even though the instruction does not affirmatively mislead the jury regarding fraud, deceit or dissimulation, the instruction does not affirmatively address this question either. Therefore, at a minimum, when the defense relies upon such a theory, there should be a right to an instruction on the theory upon request.
Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII(C).]
Consent As Defense To Kidnapping: Reasonable Belief
Versus Actual Consent
*Add to CJ 9.56 when appropriate:
Even if consent was never given [or was given and terminated during the asportation], there still is no kidnapping if the defendant entertained a reasonable and good faith belief that consent was given.
CJ 9.58 should be given with this instruction.]
Points and Authorities
By focusing only on the question of actual consent, CJ 9.56 could confuse the jury into assuming that actual consent is necessary. The above instruction is intended to assure that the jury considered the defendant’s good faith subjective intent (CJ 9.58) as well as actual consent.
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).]