F 1203.1 Titles And Identification Of Parties

F 1203 Kidnapping: For Robbery, Rape, Or Other Sex Offenses (PC 209(b)) (Case Law Discussing This Instruction)

TABLE OF CONTENTS
F 1203.1 Titles And Identification Of Parties
F 1203.1 Inst 1 Kidnapping: For Robbery, Rape, Or Other Sex Offenses—Title
F 1203.1 Inst 2 Identification Of Prosecution And Defendant

F 1203.2 Kidnapping: For Robbery, Rape, Or Other Sex Offenses—Tailoring To Facts: Persons, Places, Things And Theories
F 1203.2 Inst 1 Tailoring To Facts

F 1203.3 Kidnapping: For Robbery, Rape, Or Other Sex Offenses—Language That Is Argumentative, Confusing, Etc. [Reserved]

F 1203.4 Kidnapping: For Robbery, Rape, Or Other Sex Offenses—Burden Of Proof Issues
F 1203.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 1203.4 Inst 2 Modification Of Burden Shifting Language
F 1203.4 Inst 3 (a & b) Modification Of Consent Element When Prosecution Alleges Consent Was Withdrawn During The Movement
F 1203.4 Inst 4 (a – b) Substantial Movement And Increased Danger Elements May Not Be Inferred Solely From Movement Of Victim To More Secluded Location

F 1203.5 Kidnapping: For Robbery, Rape, Or Other Sex Offenses—Elements And Definitions
F 1203.5 Inst 1 Include Definition Of “Incapable Of Giving Legal Consent” In Description Of Element
F 1203.5 Inst 2 Kidnapping: Definition Of “Distance That Is Substantial In Character” (PC 207 & PC 209)
F 1203.5 Inst 3 Kidnapping: Requirement That Victim Be Alive (PC 207 & PC 209)
F 1203.5 Inst 4 Concurrence Of Act And Intent
F 1203.5 Inst 5 Incorporation Of Increased Risk As Enumerated Element
F 1203.5 Inst 6 Kidnap For Robbery, Rape or Sex Crimes: Aider And Abettor Must Have Knowledge Of Asportation (PC 209)
F 1203.5 Inst 7 (a-b) Substantial Movement And Increased Danger Elements May Not Be Inferred Solely From Movement Of Victim To More Secluded Location

F 1203.6 Kidnapping: For Robbery, Rape, Or Other Sex Offenses—Defense Theories
F 1203.6 Inst 1 Aggravated Kidnapping: Pinpoint Instruction
F 1203.6 Inst 2 Consent As Defense To Kidnapping: Consent Obtained By Fraud Or Deceit
F 1203.6 Inst 3 Defense Theory Instruction Re: Concurrence Of Act And Intent

F 1203.7 Kidnapping: For Robbery, Rape, Or Other Sex Offenses—Preliminary Fact Issues [Reserved]

F 1203.8 Kidnapping: For Robbery, Rape, Or Other Sex Offenses—Unanimity / Duplicity / Multiplicity
F 1203.8 Inst 1 Kidnapping: Multiple Counts Not Permissible When Based On Continuous Offense

F 1203.9 Kidnapping: For Robbery, Rape, Or Other Sex Offenses—Lesser Offense Issues [Reserved]

Return to Series 1200 Table of Contents.

F 1203.1 Titles And Identification Of Parties

F 1203.1 Inst 1 Kidnapping: For Robbery, Rape, Or Other Sex Offenses—Title

See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.

F 1203.1 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 1203.2Kidnapping: For Robbery, Rape, Or Other Sex Offenses—Tailoring To Facts: Persons, Places, Things And Theories

F 1203.2 Inst 1 Tailoring To Facts

*Modify CC 1203, Element 2 through 6, as follows [added language is underlined; deleted language is stricken]:

2. Acting with that intent, the defendant took, held, or detained another person _______________ <name of alleged victim> by using force or by instilling a reasonable fear;

3. Using that force or fear, the defendant moved the other person _______________ <name of alleged victim> [or made the other person _______________ <name of alleged victim> move] a substantial distance;

4. The other person _______________ <name of alleged victim> was moved or made to move a distance beyond that merely incidental to the commission of a (robbery/ [or] rape/ [or] spousal rape/ [or] oral copulation/[or] sodomy/ [or] sexual penetration);

[AND]

5. The other person _______________ <name of alleged victim> did not consent to the movement(;/.)

[AND

6. The defendant did not actually and reasonably believe that the other person _______________ <name of alleged victim> consented to the movement.]

Points and Authorities

See FORECITE F 400.2 Inst 2.

F 1203.3 Kidnapping: For Robbery, Rape, Or Other Sex Offenses—Language That Is Argumentative, Confusing, Etc.[Reserved]

F 1203.4 Kidnapping: For Robbery, Rape, Or Other Sex Offenses—Burden Of Proof Issues

F 1203.4 Inst 1 Relating Prosecution Burden To Enumerated Elements

See FORECITE F 400.4 Inst 1.

F 1203.4 Inst 2 Modification Of Burden Shifting Language

*Modify CC 1203, paragraph 8 [Defense: Good Faith Belief in Consent], as follows [added language is underlined; deleted language is stricken]:

[The defendant is not guilty of kidnapping if (he/she) reasonably and actually believed that the other person consented to the movement. The People have the burden of proving unless the prosecution has proven beyond a reasonable doubt that the defendant did not reasonably and actually believe that the other person consented to the movement. If the People have prosecution has not met this burden, you must find the defendant not guilty of this crime.]

*Modify CC 1203, paragraph 9 [Defense: Consent Given], as follows [added language is underlined; deleted language is stricken]:

[The defendant is not guilty of kidnapping if the other person consented to go with the defendant. The other person consented if (he/she) unless the prosecution has proven beyond a reasonable doubt that _______________ <name of alleged victim> did not (1) freely and voluntarily agreed to go with or be moved by the defendant, (2) was not aware of the movement, and or (3) had insufficient maturity and understanding to choose to go with the defendant. The People have the burden of proving beyond a reasonable doubt that the other person did not consent to go with the defendant. If the People have prosecution has not met this burden, you must find the defendant not guilty of this crime.]

Points and Authorities

See FORECITE F 404.2 Inst 1.

See also FORECITE F 1203.6 Inst 3.

F 1203.5 Inst 5 Incorporation Of Increased Risk As Enumerated Element

*Add to CC 1203 as 7th Element:

7. The movement substantially increased the risk of [physical or psychological] harm to the person beyond that necessarily present in the (robbery/ [or] rape/ [or] spousal rape/ [or] oral copulation/ [or] sodomy/ [or] sexual penetration).

[Delete 2nd sentence of 4th paragraph.]

Points and Authorities

See FORECITE F 417.5 Inst 2; F 103.2 Inst 1.

F 1203.5 Inst 6 Kidnap For Robbery, Rape or Sex Crimes: Aider And Abettor Must Have Knowledge Of Asportation (PC 209)

*Add to CC 1203:

To be guilty of kidnap for ransom as an aider and abettor, the defendant must knowingly intend to facilitate the abduction of the victim[s] for purposes of extortion. Evidence has been presented which may tend to show that __________ had no knowledge of the abduction and, therefore, did not intend to facilitate the abduction of the victim[s].

If, after consideration of all the evidence, you have a reasonable doubt that __________ had knowledge of the abduction, you may not find [him] [her] guilty of kidnapping for ransom.

You may find __________ guilty of false imprisonment if, without knowledge of the abduction, [he] [she] she intended to facilitate the perpetrator’s forceful confinement of the victim[s].

You may find __________ guilty of extortion if, without knowledge of the abduction, [he] [she] intended to facilitate the perpetrator’s attempt to obtain money in exchange for release for the victim[s].

Points and Authorities

This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]

Need For Instruction—“The critical element which must be found to establish vicarious liability for the targeted offense is the aider and abettor’s intent to facilitate and encourage that offense.” [Emphasis added.] (People v. Jones (1989) 207 CA3d 1090, 1096; see also, People v. Beeman (1984) 35 C3d 547, 560 [aider and abettor liable only for acts knowingly and intentionally facilitated].) Accordingly, aider and abettor liability may not be imposed for those target offenses about which the defendant had no knowledge. (People v. Beeman, 35 C3d at 560; see also People v. Mitchell (1986) 183 CA3d 325, 330; FORECITE F 1.20a and FORECITE F 3.30a.) For example, if the defendant “knowingly participates” in the second phase of a two-phase crime such as robbery (phase I = forceful taking; phase II = asportation), the defendant is guilty as an aider and abettor so long as he had “knowledge that a robbery [was] in progress ….” (People v. Jardine (1981) 116 CA3d 907, 920; see also People v. Mitchell, 183 CA3d at 330; People v. Cooper (1991) 53 C3d 1158, 1161.) As the Supreme Court recognized in Cooper, it is inconsistent with “reasonable concepts of culpability” to impose aider and abettor liability upon the getaway driver in a robbery if that person was unaware of the robbery until after all the acts constituting robbery had ceased. (Cooper, 53 C3d at 1168.) By a parity of reasoning, a criminal intent to aid the perpetrator in the asportation of stolen property would not give rise to aiding and abetting liability for robbery if the aider and abettor did not know that the perpetrator obtained the stolen property in a robbery. (Jardine, Mitchell and Cooper all involved situations where the aider and abettor obviously knew that a robbery had taken place.)

The same analysis applies with equal, if not greater, force to kidnapping for robbery or ransom. For example, if the perpetrator abducts the victim without the knowledge of the aider and abettor who subsequently aids the perpetrator in an attempt to rob the victim or to extort money in exchange for the victim’s release, the aider and abettor cannot be convicted of kidnapping for robbery or ransom unless he/she had knowledge that a kidnapping had occurred.

The above instruction relates the defense theory that defendant had no knowledge of the abduction to an essential element of the charge—an intent to facilitate the perpetrator’s commission of kidnapping for ransom—and therefore it is an appropriate pinpoint instruction and required by the federal constitutional principles of compulsory process, right to trial by jury and due process (6th and 14th Amendments). The defendant has a right to “‘direct attention to evidence from … which a reasonable doubt could be engendered.’ [Citation].” (People v. Hall (1980) 28 C3d 143, 159; People v. Sears (1970) 2 C3d 180, 190.) Hence, the defendant may obtain a pinpoint instruction which relates “his [evidentiary theory] to an element of the offense.” (People v. Saille (1991) 54 C3d 1103, 1120; see also, People v. Wright (1988) 45 C3d 1126, 1136-37 [pinpoint instruction proper if it is predicated upon defendant’s theory].) Because the proposed instruction is the proper subject of pinpoint instruction, and because it is patterned after the judicially approved form for such instructions, i.e., CJ 2.91, CJ 4.21, CJ 4.30 and CJ 4.50, it should be given as requested. (See FORECITE PG III(A).)

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.

CALJIC NOTE: See FORECITE F 9.54a.

F 1203.5 Inst 7 (a – b) Substantial Movement And Increased Danger Elements May Not Be Inferred Solely From Movement Of Victim To More Secluded Location

*Add to CC 1700:

Alternative a [CALCRIM 375, 852, 853 Format]:

If you conclude that the defendant _______________ <specify alleged movement>, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the movement was substantial, beyond that merely incidental to the commission of ______<insert alleged target offense> and/or that it substantially increased the risk of harm to _________<name of alleged victim>.

The prosecution must still prove these and all other elements of the charge beyond a reasonable doubt.

Alternative b [CC 420 Format]:

_______________ <specify alleged movement> is not sufficient alone to prove a kidnapping for ___________<insert alleged target offense>.]

Points and Authorities

This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]

Propriety Of Instruction On Matters Which Alone Are Not Sufficient To Convict – See FORECITE F 370 Inst 8.

Movement To A Secluded Location Not Alone Sufficient – In re Crumpton (1973) 9 C3d 463 [service station attendant was forced to lie down behind a truck on the station premises]; People v. Killean (1971) 4 C3d 423, 424 [victims caused “to move across the threshold and through various rooms in search of valuables”]; People v. Williams (1970) 2 C3d 894 [service station attendant moved inside service station area, including areas that were outdoors]; see also People v. James (2007)148 CA4th 446, 458 [“We do not quarrel with the proposition that moving a victim from an outside location to a less open one does not in and of itself establish the movement was not merely incidental and substantially increased the risk of harm.”].)

Limitation Of Conviction Based On Speculative Inference Alone Required By Federal Constitution – See FORECITE F 370 Inst 8.

No Reference To “The People” – The defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]

Use Of The Term “Defendant” – The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.

FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 2.3 [Prosecution’s Burden of Proof: Irrational Permissive Inference]
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.

CALJIC NOTE: See FORECITE F 14.52d.

F 1203.6 Kidnapping: For Robbery, Rape, Or Other Sex Offenses—Defense Theories

F 1203.6 Inst 1 Aggravated Kidnapping: Pinpoint Instruction

The prosecution must prove all elements of the kidnapping for the _______________ < e.g., robbery> charge, including that the defendant did not reasonably and actually believe, that _______________ <name of alleged victim> consented to the movement. The defendant contends (he/she) actually and reasonably believed that _______________ <name of alleged victim> consented; however, the defendant does not need to prove this, the prosecution must prove (he/she) did not have such a belief. If you have a reasonable doubt about whether the prosecution has met this burden, you must find the defendant not guilty.

Points and Authorities

See FORECITE F 315.1.2 Inst 2.

F 1203.6 Inst 2 Consent As Defense To Kidnapping: Consent Obtained By Fraud Or Deceit

See FORECITE F 1200.6 Inst 1.

F 1203.6 Inst 3 Defense Theory Instruction Re: Concurrence Of Act And Intent

*Add to CC 1203 [CALCRIM 3400 format]:

Among the elements the prosecution must prove is that when the movement of ____________ <insert name of alleged victim> commenced the defendant had an intent to_____________ <insert alleged intent, e.g., to commit robbery>. The defendant contends (he/she) did not intend to _____________ <insert alleged intent, e.g., to commit robbery> when the movement of____________ <insert name of alleged victim> commenced. However, the defendant does not need to prove this defense theory. Rather, the prosecution must disprove it by proving beyond a reasonable doubt that the defendant had the required intent when the movement commenced.

If you have a reasonable doubt about whether the prosecution has met this burden you must find the defendant not guilty.

Points and Authorities

This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]

Right To Instruction Relating Defense Theory To Burden Of Proof – See FORECITE F 315.1.2 Inst 2.

Defense Theory That Evidence Fails To Prove Concurrence Of Intent And Movement – See People v. Curry (2007) 158 CA4th 766, 782 [“Although CALCRIM No. 1203 does not expressly state that the intent to rob must exist at the time the movement commences, we conclude that the first three points of the instruction…adequately express that requirement.”].)

See also FORECITE F 251 Inst 3; F 1203.5 Inst 4.

Identification Of Parties – See FORECITE F 100.2 Note 1.

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 3.8 [Concurrence Of Act And Intent Or Mental State]
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.

F 1203.7 Kidnapping: For Robbery, Rape, Or Other Sex Offenses—Preliminary Fact Issues[Reserved]

F 1203.8 Kidnapping: For Robbery, Rape, Or Other Sex Offenses—Unanimity / Duplicity / Multiplicity

F 1203.8 Inst 1 Kidnapping: Multiple Counts Not Permissible When Based On Continuous Offense

See FORECITE F 1200.8 Inst 1.

F 1203.9 Kidnapping: For Robbery, Rape, Or Other Sex Offenses—Lesser Offense Issues [Reserved]