SERIES 1200 KIDNAPPING
F 1215 Kidnapping (PC 207(a))
TABLE OF CONTENTS
F 1215.1 Titles And Identification Of Parties
F 1215.1 Inst 1 Kidnapping—Title
F 1215.1 Inst 2 Identification Of Prosecution And Defendant
F 1215.2 Kidnapping—Tailoring To Facts: Persons, Places, Things And Theories
F 1215.2 Inst 1 Tailoring To Facts; Separate Enumeration Of Combined Elements
F 1215.3 Kidnapping—Language That Is Argumentative, Confusing, Etc.
F 1215.3 Inst 1 Jurors Not Required To Decide
F 1215.3 Inst 2 Jurors Should Be Instructed To Consider All Relevant Circumstances
F 1215.4 Kidnapping—Burden Of Proof Issues
F 1215.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 1215.4 Inst 2 Modification Of Burden Shifting Language
F 1215.4 Inst 3 Modification Of Consent Element When Prosecution Alleges Consent Was Withdrawn During The Movement
F 1215.5 Kidnapping—Elements And Definitions
F 1215.5 Inst 1 Include Definition Of “Consent” In Description Of Element
F 1215.5 Inst 2 Kidnapping: Explanation Of Consent (PC 207 & PC 209)
F 1215.5 Inst 3 Kidnapping: Requirement That Victim Be Alive (PC 207 & PC 209)
F 1215.5 Inst 4 Simple Kidnapping: Movement Incidental To Associated Crime Insufficient
F 1215.5 Inst 5 Jury Must Find That Movement Was For More Than A Very Short Distance Before Considering Other Factors
F 1215.5 Inst 6 Substantial Distance For Kidnapping: Juror Not Required To Consider Contextual Factors
F 1215.6 Kidnapping—Defense Theories
F 1215.6 Inst 1 Consent As Defense To Kidnapping: Consent Obtained By Fraud Or Deceit
F 1215.7 Kidnapping—Preliminary Fact Issues [Reserved]
F 1215.8 Kidnapping—Unanimity/Duplicity/Multiplicity
F 1215.8 Inst 1 Kidnapping: Multiple Counts Not Permissible When Based On Continuous Offense
F 1215.9 Kidnapping—Lesser Offense Issues [Reserved]
Return to Series 1200 Table of Contents.
F 1215.1 Titles And Identification Of Parties
F 1215.1 Inst 1 Kidnapping—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 1215.1 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 1215.2Kidnapping—Tailoring To Facts: Persons, Places, Things And Theories
F 1215.2 Inst 1 Tailoring To Facts; Separate Enumeration Of Combined Elements
*Modify CC 1215, Elements, as follows [added language is underlined; deleted language is stricken]:
1. The defendant took, held, or detained another person _______________ <name of alleged victim>;
2. (He/she) did so by using force or by instilling reasonable fear causing _______________ <name of alleged victim> to be actually and reasonably afraid;
2 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;
[AND]
3 4. The other person _______________ <name of alleged victim> did not consent to the movement(;/.)
<Give element 4 when instructing on reasonable belief in consent.>
[AND]
[4 5. The defendant did not actually and reasonably believe that the other person _______________ <name of alleged victim> consented to the movement.]
Points and Authorities
Tailor To Facts—See FORECITE F 400.2 Inst 1.
Separate Enumeration—Movement of the victim is a discrete element of kidnapping which should be separately enumerated. [See generally FORECITE F 3500.2 Inst 1.]
F 1215.3 Kidnapping—Language That Is Argumentative, Confusing, Etc.
F 1215.3 Inst 1 Jurors Not Required To Decide
*Modify CC 1215, paragraph 4, sentence 2,as follows [added language is underlined]:
In deciding, if you can, whether the distance was substantial, you must consider all the circumstances relating to the movement.
Points and Authorities
See FORECITE F 100.7 Inst 1.
F 1215.3 Inst 2 Jurors Should Be Instructed To Consider All Relevant Circumstances
*Modify CC 1215, paragraph 4, sentences 2 and 3, as follows [deleted language is stricken]:
In deciding whether the distance was substantial, you must consider all the circumstances relating to the movement. [Thus, in addition to considering the actual distance moved, you may also consider other factors . . .
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
Consider Instead OF “Must” Or “May” Consider – See FORECITE F 105.2 Inst 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 7.1 [Right To Jury Consideration Of The Evidence]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 1215.4 Kidnapping—Burden Of Proof Issues
F 1215.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 1215.4 Inst 2 Modification Of Burden Shifting Language
*Modify CC 1215, paragraph 7 [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 1215, paragraph 8 [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
Burden Shifting—See FORECITE F 404.2 Inst 1.
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.]
F 1215.4 Inst 3 Modification Of Consent Element When Prosecution Alleges Consent Was Withdrawn During The Movement
See FORECITE F 1203.4 Inst 3.
F 1215.5 Kidnapping—Elements And Definitions
F 1215.5 Inst 1 Include Definition Of “Consent” In Description Of Element
*Modify CC 1215, Element 3, as follows [added language is underlined; deleted language is stricken]:
3. The other person _______________ <name of alleged victim> did not freely and voluntarily consent to the movement(;/.)
[Delete paragraph 3.]
Points and Authorities
See FORECITE F 417.5 Inst 2.
F 1215.5 Inst 2 Kidnapping: Explanation Of Consent (PC 207 & PC 209)
*Add to CC 1215:
When one, in the exercise of [his] [her] own free will, and with knowledge of what is taking place with respect to [his] [her] person, voluntarily and willingly consents to accompany another, the latter cannot be guilty of kidnaping the former so long as such condition of consent exists; however, where one assents to accompany another due to duress, fear or threats of bodily harm, the person so assenting is not considered to be exercising [his] [her] own free will, and the crime of kidnaping may lie.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction—This instruction was approved in People v. Morrison (1964) 228 CA2d 707, 715. The Morrison court rejected the defendant’s claim that the term “accompany” provides a lesser standard of conduct. (Ibid.)
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.
CALJIC NOTE: See FORECITE F 9.50a.
F 1215.5 Inst 3 Kidnapping: Requirement That Victim Be Alive (PC 207 & PC 209)
See FORECITE F 1200.5 Inst 1.
F 1215.5 Inst 4 Simple Kidnapping: Movement Incidental To Associated Crime Insufficient
*Add to CC 1215:
It is the prosecution’s theory that ______<name of alleged victim> was moved for the purpose of committing the crime of ______ <insert alleged associated crime>. To prove the crime of kidnapping based upon such movement, the prosecution must establish that the movement was more than incidental to the commission of _____<associated crime>.
If you have a reasonable doubt whether the movement was more than incidental to the commission of ______<associated crime>, you must resolve that doubt in favor of the defendant and return a verdict of not guilty as to the kidnapping charge.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction—“When an ‘associated crime’ is involved there can be no violation of [PC 207] unless the asportation is more than incidental to the commission of that crime.” (In re Earley (1975) 14 C3d 122, 122 fn 9; see also People v. Martinez (1999) 20 C4th 225, 237.)
When such incidental movement is a defense theory, the defendant should have the right, on request, to relate that theory to the asportation requirement of the kidnapping charge.
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.
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.
CALJIC NOTE: See FORECITE F 9.50e.
F 1215.5 Inst 5 Jury Must Find That Movement Was For More Than A Very Short Distance Before Considering Other Factors
*Add to CC 1215 as follows:
In determining whether the movement was substantial in character, you must first decide whether or not the movement was for a very short distance. If, considering only the amount of movement, you have a reasonable doubt whether the movement was for more than a very short distance you must resolve that doubt in favor of the defendant and find [him] [her] not guilty.
If all twelve jurors find beyond a reasonable doubt that the movement was for more than a very short distance, thenyou must decide whether the movement was substantial in character in light of all the circumstances before you may find the defendant guilty of kidnapping.
The circumstances to consider include, but are not limited to, the actual distance moved, whether the movement increased the risk of harm above that which existed prior to the movement or decreased the likelihood of detection, or increased both the danger inherent in a victim’s foreseeable attempt to escape and the attackers’ enhanced opportunity to commit additional crimes. If an associated crime was involved, the movement also must be more than that which was incidental to the commission of the other crime.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction—People v. Martinez (1999) 20 C4th 225, 237 expressly held that “contextual factors (e.g., increased danger to victim, etc.), whether singly, or in combination, will not suffice to establish asportation if the movement is only a very short distance.” Accordingly, Martinez requires a 2-step process by which the jury must first decide whether the movement was for more than a very short distance before considering other factors relating to the movement.
When the adequacy of the distance is a defense theory, the instruction should relate this theory to the asportation element of the charge. (EC 502; People v. Simon (1995) 9 C4th 493, 500-01 [as to defense theories, the trial court is required to instruct on who has the burden and the nature of that burden]; People v. Adrian (1982) 135 CA3d 335, 342; see e.g., CJ 2.92, CJ 4.30, CJ 4.50, CJ 5.15; see also FORECITE PG III(D) & PG III(E).)
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
See FORECITE F 1203 Note 2 for argument that substantial distance is unconstitutionally vague. See FORECITE F 9.50 n2 for argument that any distance less than 90 feet is not a substantial distance as a matter of law.
CALJIC NOTE: See FORECITE F 9.50f.
F 1215.5 Inst 6 Substantial Distance For Kidnapping: Juror Not Required To Consider Contextual Factors
*Modify CC 1215, ¶ 4, sentence 1, as follows [added language is underlined; deleted language is stricken]:
Alternative A:
[Substantial distance means more than a slight or trivial distance. In deciding, if you can, whether the distance was substantial, you must consider all the circumstances relating to the movement. Thus, in addition to considering the actual distance moved,. You may also consider other factors such as whether 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.]
Alternative B:
[Substantial distance means more than a slight or trivial distance. In deciding whether the distance was substantial, you must should consider all the circumstances relating to the movement. Thus, in addition to considering the actual distance moved, you may also consider other factors such as whether 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.]
If You Can – See FORECITE F 100.7 Inst 1.
Whether Jurors “Must Consider” Contextual Factors – Nothing in People v. Martinez (1999) 20 C4th 225 justifies CALCRIM’s instruction that the jurors “must consider” contextual factors other than the distance of the asportation. Martinez did state that “it would . . . be proper for the court to instruct that, in determining whether the movement is “‘substantial in character’ [citation], the jury should consider the totality of the circumstances.” However, the term “should” allows the jurors discretion which the term “must” does not. (See FORECITE F 105.2 Inst 1) Moreover, elsewhere in Martinez the Court makes it clear that consideration of contextual factors is permissive not mandatory:
“While the jury may consider a victim’s increased risk of harm, it may convict of simple kidnapping without finding an increase in harm, or any other contextual factors. Instead, as before, the jury need only find that the victim was moved a distance that was “substantial in character.” [Citations] To permit consideration of “the totality of the circumstances” is intended simply to direct attention to the evidence presented in the case, rather than to abstract concepts of distance. At the same time, we emphasize that contextual factors, whether singly or in combination, will not suffice to establish asportation if the movement is only a very short distance. [Emphasis added.]
(People v. Martinez, supra, 20 C4th 225, 237; see also U.S. v. Moreno-Florean (5th Cir. 2008) 542 F3d 445; FORECITE F 1215.5 Inst 5 Jury Must Find That Movement Was For More Than A Very Short Distance Before Considering Other Factors.)
Accordingly, CC 1215 should be modified with one of the above alternatives.]
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
See FORECITE F 1203 Note 2 for argument that substantial distance is unconstitutionally vague. See FORECITE F 9.50 n2 for argument that any distance less than 90 feet is not a substantial distance as a matter of law.
F 1215.6 Kidnapping—Defense Theories
F 1215.6 Inst 1 Consent As Defense To Kidnapping: Consent Obtained By Fraud Or Deceit
See FORECITE F 1200.6 Inst 1.
F 1215.7 Kidnapping—Preliminary Fact Issues [Reserved]
F 1215.8 Kidnapping—Unanimity/Duplicity/Multiplicity
F 1215.8 Inst 1 Kidnapping: Multiple Counts Not Permissible When Based On Continuous Offense
See FORECITE F 1200.8 Inst 1.
F 1215.9 Kidnapping—Lesser Offense Issues [Reserved]
