SERIES 1200 KIDNAPPING
F 1200 Kidnapping: For Child Molestation (PC 207(b), PC 288(a))
TABLE OF CONTENTS
F 1200.1 Titles And Identification Of Parties
F 1200.1 Inst 1 Kidnapping: For Child Molestation—Title
F 1200.1 Inst 2 Identification Of Prosecution And Defendant
F 1200.2 Kidnapping: For Child Molestation—Tailoring To Facts: Persons, Places, Things And Theories
F 1200.2 Inst 1 Tailoring To Facts
F 1200.3 Kidnapping: For Child Molestation—Language That Is Argumentative, Confusing, Etc.
F 1200.3 Inst 1 Jurors Not Required To Decide
F 1200.4 Kidnapping: For Child Molestation—Burden Of Proof Issues
F 1200.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 1200.4 Inst 2 (a – b) Substantial Movement And Increased Danger Elements May Not Be Inferred Solely From Movement Of Victim To More Secluded Location
F 1200.5 Kidnapping: For Child Molestation—Elements And Definitions
F 1200.5 Inst 1 Kidnapping: Requirement That Victim Be Alive (PC 207 & PC 209)
F 1200.5 Inst 2 (a – b) Substantial Movement And Increased Danger Elements May Not Be Inferred Solely From Movement Of Victim To More Secluded Location
F 1200.6 Kidnapping: For Child Molestation—Defense Theories
F 1200.6 Inst 1 (a & b) Consent As Defense To Kidnapping: Consent Obtained By Fraud Or Deceit
F 1200.7 Kidnapping: For Child Molestation—Preliminary Fact Issues [Reserved]
F 1200.8 Kidnapping: For Child Molestation—Unanimity/Duplicity/Multiplicity
F 1200.8 Inst 1 Kidnapping: Multiple Counts Not Permissible When Based On Continuous Offense
F 1200.9 Kidnapping: For Child Molestation—Lesser Offense Issues [Reserved]
F 1200 Notes
F 1200 Note 1 Kidnapping: For Child Molestation—CALCRIM Cross-References And Research Notes
F 1200 Note 2 Kidnapping Of Child Too Young To Consent: Requirement Of Force Or Improper Purpose
Return to Series 1200 Table of Contents.
F 1200.1 Titles And Identification Of Parties
F 1200.1 Inst 1 Kidnapping: For Child Molestation—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 1200.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 1200.2Kidnapping: For Child Molestation—Tailoring To Facts: Persons, Places, Things And Theories
F 1200.2 Inst 1 Tailoring To Facts
*Modify CC 1200, Elements, as follows [added language is underlined; deleted language is stricken]:
1. The defendant (persuaded/hired/enticed/decoyed/ [or] seduced by false promises or misrepresentations) a child _______________ <name of alleged victim> who was younger than 14 years old to go somewhere;
2. When the defendant did so, (he/she) intended to commit a lewd or lascivious act on on the child _______________ <name of alleged victim>;
AND
3. As a result of the defendant’s conduct, the child _______________ <name of alleged victim> then moved or was moved a substantial distance.
Points and Authorities
See FORECITE F 400.2 Inst 1.
F 1200.3 Kidnapping: For Child Molestation—Language That Is Argumentative, Confusing, Etc.
F 1200.3 Inst 1 Jurors Not Required To Decide
*Modify CC 1200, paragraph 3, sentence 2,as follows [added language is underlined]:
In deciding, if you can, whether the movement was sufficient, consider all the circumstances relating to the movement.]
Points and Authorities
See FORECITE F 100.7 Inst 1.
F 1200.4 Kidnapping: For Child Molestation—Burden Of Proof Issues
F 1200.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 1200.4 Inst 2 (a – b) 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 (a-b).
F 1200.5 Kidnapping: For Child Molestation—Elements And Definitions
F 1200.5 Inst 1 Kidnapping: Requirement That Victim Be Alive (PC 207 & PC 209)
*Add to CC 1200:
AND
4. The person who was moved was alive prior to the commencement of the movement.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Live Victim As Element Of Kidnapping—The statutes which proscribe kidnapping of a “person” (e.g., PC 207, PC 208, PC 209 and PC 209.5) also include as an element the requirement that the victim was alive during at least some portion of the alleged kidnapping. (People v. Hillhouse (2002) 27 C4th 469, 498 [“statutory references to a ‘person’ (PC 207(a)) or an ‘individual’ (PC 209(b)), as the kidnapping victim, clearly contemplate someone alive”].)
[The briefing in People v. Tolbert DEPUBLISHED (9/12/96, E015955) 49 CA4th 275 on this issue is available to FORECITE subscribers; see Brief Bank # B-710.]
Cases from other jurisdictions are in accord. (People v. Miles (1969) 23 NY2d 527, 536-538 [245 NE2d 688] [defendants could not be guilty of kidnapping if they believed their victim was dead]; see also Gribble v. State (Tex.Crim.App. 1990) 808 SW2d 65, 72, fn 16 [“moving [a dead body] from place to place does not under any circumstances constitute the offense of kidnapping”].)
Accordingly, the requirement that the victim be alive should be added as an element of the charge.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
NOTES: If the defendant entertains a good faith belief that the victim is dead the jury must be instructed on such belief as an affirmative defense. (See FORECITE F 9.50d.)
CALJIC NOTE: See FORECITE F 9.50c.
F 1200.5 Inst 2 (a – b) 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 (a-b).
F 1200.6 Kidnapping: For Child Molestation—Defense Theories
F 1200.6 Inst 1 (a & b) Consent As Defense To Kidnapping: Consent Obtained By Fraud Or Deceit
*Add to CC 1200 when appropriate:
Alternative a [CC 3400 adaption]:
The prosecution must prove that _______________ <name of alleged victim> did not consent to the movement which is alleged as the basis for the kidnapping charge. The defendant contends that _______________ <name of alleged victim> consented to the movement. Even if consent is obtained by [fraud] [deceit] or [ _______________ <other false approval>], the defendant may not be convicted of kidnapping; however, the defendant does not need to prove that _______________ <name of alleged victim> consented. If you have a reasonable doubt about whether the prosecution has proved that _______________ <name of alleged victim> did not consent to the asportation, you must find the defendant not guilty.
Alternative b:
Asportation which is accomplished by fraud, deceit or other false appearance is not kidnapping. In other words, even if _______________’s <name of alleged victim> 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
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Consent As Defense Theory—Kidnapping can only be accomplished by use of threat or force. (People v. Green (1980) 27 C3d 1, 64 .) 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 (1995) 10 C4th 463, 518.) 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.
CALJIC NOTE: See FORECITE F 9.56b.
F 1200.7 Kidnapping: For Child Molestation—Preliminary Fact Issues [Reserved]
F 1200.8 Kidnapping: For Child Molestation—Unanimity/Duplicity/Multiplicity
F 1200.8 Inst 1 Kidnapping: Multiple Counts Not Permissible When Based On Continuous Offense
[Do not instruct on multiple kidnapping counts based on one continuing offense.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Propriety Of Request – A kidnapping cannot be divided into discrete segments when there is a single abduction and the detention is continuous, as it was here. People v. Thomas (1994) 26 CA4th 1328, 1335 (Thomas), held that a defendant could not be convicted of two counts of kidnapping for robbery despite the People’s argument that the original kidnapping for robbery was interrupted by other criminal conduct, and that this conduct caused a termination of the continuing offense of kidnapping.
Similarly, People v. Jackson (1998) 66 CA4th 182 held that simple kidnapping was necessarily included in the kidnapping for purposes of sexual assault and robbery, and the kidnapping was continuous and could not be subdivided so as to permit multiple convictions. (Id. At p. 190.)
WARNING! Federal constitutional claims may be lost without proper federalization – To preserve federal claims counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 12.3 [Multiplicity]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 1200.9 Kidnapping: For Child Molestation—Lesser Offense Issues [Reserved]
F 1200 NOTES
F 1200 Note 1 Kidnapping: For Child Molestation—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 1201 [Kidnapping: Child or Person Incapable of Consent]
CALCRIM 1202 [Kidnapping: For Ransom, Reward, or Extortion]
CALCRIM 1203 [Kidnapping: For Robbery, Rape, or Other Sex Offenses]
CALCRIM 1204 [Kidnapping: During Carjacking]
CALCRIM 1215 [Kidnapping]
Research Notes:
See CLARAWEB Forum, Kidnapping—Series 1200.
F 1200 Note 2 Kidnapping Of Child Too Young To Consent: Requirement Of Force Or Improper Purpose
Even if the alleged kidnap victim is a child who is too young to consent to the crime, it is still required that the asportation be against the will of the child or with intent to commit a crime against the child. [See Brief Bank # B-834 for additional briefing on this issue.] (See also In re Michele D. (2002) 29 C4th 600 [amount of force required to kidnap an unresisting infant or child is simply the amount of physical force required to take and carry the child away a substantial distance for an illegal purpose or with an illegal intent].)
NOTE: Ordinarily the force element in PC 207 requires something more than the physical force which is necessary to move the victim from one location to another.
CALJIC NOTE: See FORECITE F 9.50 n10.
