SERIES 1200 KIDNAPPING
F 1201 Kidnapping: Child Or Person Incapable of Consent (PC 207(a),(e))
TABLE OF CONTENTS
F 1201.1 Titles And Identification Of Parties
F 1201.1 Inst 1 Kidnapping: Child Or Person Incapable of Consent—Title
F 1201.1 Inst 2 Identification Of Prosecution And Defendant
F 1201.2 Kidnapping: Child Or Person Incapable of Consent—Tailoring To Facts: Persons, Places, Things And Theories
F 1201.2 Inst 1 Tailoring To Facts
F 1201.3 Kidnapping: Child Or Person Incapable of Consent—Language That Is Argumentative, Confusing, Etc.
F 1201.3 Inst 1 Jurors Must Consider Relevant Evidence; Whether Or Not Risk Was Increased
F 1201.4 Kidnapping: Child Or Person Incapable of Consent—Burden Of Proof Issues
F 1201.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 1201.4 Inst 2 (a – b) Substantial Movement And Increased Danger Elements May Not Be Inferred Solely From Movement Of Victim To More Secluded Location
F 1201.5 Kidnapping: Child Or Person Incapable of Consent—Elements And Definitions
F 1201.5 Inst 1 Include Definition Of “Incapable Of Giving Legal Consent” In Description Of Element
F 1201.5 Inst 2 Kidnapping: Requirement That Victim Be Alive (PC 207 & PC 209)
F 1201.5 Inst 3 (a – b) Substantial Movement And Increased Danger Elements May Not Be Inferred Solely From Movement Of Victim To More Secluded Location
F 1201.6 Kidnapping: Child Or Person Incapable Of Consent—Defense Theories
F 1201.6 Inst 1 Consent As Defense To Kidnapping: Consent Obtained By Fraud Or Deceit
F 1201.7 Kidnapping: Child Or Person Incapable Of Consent—Preliminary Fact Issues [Reserved]
F 1201.8 Kidnapping: Child Or Person Incapable Of Consent—Unanimity / Duplicity / Multiplicity
F 1201.8 Inst 1 Kidnapping: Multiple Counts Not Permissible When Based On Continuous Offense
F 1201.9 Kidnapping: Child Or Person Incapable Of Consent—Lesser Offense Issues [Reserved]
F 1201 Notes
F 1201 Note 1 Kidnapping: Child Or Person Incapable Of Consent—CALCRIM Cross-References And Research Notes
F 1201 Note 2 Kidnapping Of Child Too Young To Consent: Requirement Of Force Or Improper Purpose
F 1201 Note 3 Alternative Theories Of Consent Should Be Given To Jury
Return to Series 1200 Table of Contents.
F 1201.1 Titles And Identification Of Parties
F 1201.1 Inst 1 Kidnapping: Child Or Person Incapable of Consent—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 1201.1 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 1201.2Kidnapping: Child Or Person Incapable of Consent—Tailoring To Facts: Persons, Places, Things And Theories
F 1201.2 Inst 1 Tailoring To Facts
*Modify CC 1201, Elements, as follows [added language is underlined; deleted language is stricken]:
1. The defendant used enough physical force to take and carry away _______________ <name of alleged victim> an who was not unresisting (child/ [or] person with a mental impairment);
2. The defendant moved the (child/ [or] person with a mental impairment) _______________ <name of alleged victim> a substantial distance;
[AND]
3. The defendant moved the (child/ [or] mentally impaired person) _______________ <name of alleged victim> with an illegal intent or for an illegal purpose(;/.)
[AND]
<Alternative 4A—alleged victim under 14 years.>
[4. The child _______________ <name of alleged victim> was under 14 years old at the time of the movement(;/.)]
Points and Authorities
See FORECITE F 1200.2 Inst 1.
F 1201.3 Kidnapping: Child Or Person Incapable of Consent—Language That Is Argumentative, Confusing, Etc.
F 1201.3 Inst 1 Jurors Must Consider Relevant Evidence; Whether Or Not Risk Was Increased
*Modify CC 1201, paragraph 3, sentence 2 as follows [added language is underlined; deleted language is stricken]:
[Thus, in addition to considering the actual distance moved, you may also consider other factors such as whether or not the movement increased the risk of [physical or psychological] harm, increased the danger of a foreseeable escape attempt, gave the attacker a greater opportunity to commit additional crimes, or decreased the likelihood of detection.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Delete “You May”—See FORECITE F 100.7 Inst 1.
“Whether Or Not“—See FORECITE F 416.3 Inst 7.
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 6.5 [Instructions Must Be Balanced Between Defense And Prosecution]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 1201.4 Kidnapping: Child Or Person Incapable of Consent—Burden Of Proof Issues
F 1201.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 1201.4 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 1201.5 Kidnapping: Child Or Person Incapable of Consent—Elements And Definitions
F 1201.5 Inst 1 Include Definition Of “Incapable Of Giving Legal Consent” In Description Of Element
*Modify CC 1201, Alternative 4B, as follows [added language is underlined; deleted language is stricken]:
[4. ______________<Insert name of complaining witness> suffered from a mental impairment that made (him/her) incapable of giving legal consent to the movement understanding the act, its nature, and possible consequences.]
[Delete paragraph 4.]
Points and Authorities
See FORECITE F 417.5 Inst 2.
F 1201.5 Inst 2 Kidnapping: Requirement That Victim Be Alive (PC 207 & PC 209)
See FORECITE F 1200.5 Inst 1.
F 1201.5 Inst 3 (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 1201.6 Kidnapping: Child Or Person Incapable Of Consent—Defense Theories
F 1201.6 Inst 1 Consent As Defense To Kidnapping: Consent Obtained By Fraud Or Deceit
See FORECITE F 1200.6 Inst 1.
F 1201.7 Kidnapping: Child Or Person Incapable Of Consent—Preliminary Fact Issues[Reserved]
F 1201.8 Kidnapping: Child Or Person Incapable Of Consent—Unanimity / Duplicity / Multiplicity
F 1201.8 Inst 1 Kidnapping: Multiple Counts Not Permissible When Based On Continuous Offense
See FORECITE F 1200.8 Inst 1.
F 1201.9 Kidnapping: Child Or Person Incapable Of Consent—Lesser Offense Issues[Reserved]
F 1201 NOTES
F 1201 Note 1 Kidnapping: Child Or Person Incapable Of Consent—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 1200 [Kidnapping: For Child Molestation]
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 1201 Note 2 Kidnapping Of Child Too Young To Consent: Requirement Of Force Or Improper Purpose
See FORECITE F 1200 Note 2.
F 1201 Note 3 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 (1972) 6 C3d 519, 526-28.) In a normal consent situation, the jury is instructed regarding the definition of consent; 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 (1961) 55 C2d 761, 768.) 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. (See People v. Ojeda-Parra (1992) 7 CA4th 46, 50.)
CALJIC NOTE: See FORECITE F 9.56 n1.
