SERIES 1200 KIDNAPPING
F 1215 NOTES
TABLE OF CONTENTS
F 1215 Note 1 Kidnapping—CALCRIM Cross-References And Research Notes
F 1215 Note 2 Kidnapping: “Substantial Distance” Requirement: Consideration Of Factors Other Than Distance Of The Asportation (PC 207)
F 1215 Note 3 Kidnapping: Victim Must Fear Harm Or Injury (PC 207)
F 1215 Note 4 “Substantial Distance” Unconstitutionally Vague
F 1215 Note 5 Ireland Merger Doctrine Inapplicable to Kidnapping
F 1215 Note 6 Is Attempted Kidnapping A Lesser Included Of Completed Kidnapping?
F 1215 Note 7 False Imprisonment (PC 236 & PC 237) As Lesser Included Of Kidnapping (PC 207)
F 1215 Note 8 Kidnapping: Error To Instruct That Asportation Of 500 Feet Is Substantial (PC 207)
F 1215 Note 9 Fraud Or False Promises As “Force or Fear”
Return to Series 1200 Table of Contents.
F 1215 Note 1Kidnapping—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 1200 [Kidnapping: For Child Molestation]
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 1215 Note 2 Kidnapping: “Substantial Distance” Requirement: Consideration Of Factors Other Than Distance Of The Asportation (PC 207)
People v. Martinez (1999) 20 C4th 225 expressly overruled People v. Caudillo (1978) 21 C3d 562, 574, and held that where the evidence permits, the jury may properly consider not only the actual distance the victim was moved, “but also such factors as whether the movement increased the risk of harm above that which existed prior to the asportation, decreased the likelihood of detection, and increased both the danger inherent in a victim’s foreseeable attempts to escape and the attacker’s enhanced opportunity to commit additional crimes.” (20 C4th at 233.)
“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.] 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.” (20 C4th at 237.)
“In addition, in a case involving an associated crime, the jury should be instructed to consider whether the distance a victim was moved was incidental to the commission of that crime in determining the movement’s substantiality.” (Ibid.)
The court, however, held that this new interpretation of the asportation requirement may not be applied retroactively to cases in which the crime was committed prior to the decision in Martinez. (20 C4th 238-40.)
The dissent noted that under current law, movement for a short distance on the same property (e.g., 40-50 feet across the small back yard of their residence) is as a matter of law insufficient to satisfy the substantial distance requirement of PC 207. Any other circumstances of the movement, including whether the victim was placed in a position of increased danger, would not change that result. (20 C4th at 242, Mosk, J., dissenting.) “It is apparent, however, that the majority’s new rule is a thinly veiled invitation to treat even movement of such a short distance as simple kidnapping depending on the ‘totality of the circumstances.’” (Ibid; see also Id. at fn 10.)
SUBSEQUENT HISTORY: In response to Martinez, CALJIC revised CJ 9.50 in the July 1999 Pocket Part. (But see FORECITE F 9.50f for criticism of this revision.)
CALJIC NOTE: See FORECITE F 9.50 n2.
F 1215 Note 3 Kidnapping: Victim Must Fear Harm Or Injury (PC 207)
CALCRIM 1215 provides the following definition of kidnapping to be used when the asportation is by force: “[u]sing that force or fear, the defendant moved the other person [or made the other person move] a substantial distance…” This definition is inadequate in that it fails to require a finding that the victim subjectively feared harm or injury from the accused. While the original statute did not expressly require such subjective fear, the 1990 amendment to the statute suggests that the force must instill fear in the victim. As amended, the opening line of the statute reads as follows: “Every person who forcibly, or by any other means of instilling fear …” The underlined portion by its use of the words “any other” in reference to the term “forcibly” suggests an intent that any force necessary to constitute kidnapping must instill fear in the victim.
Therefore, in a case where there is a question as to whether the physical force used instilled subjective fear in the victim, there may be a basis for requesting that the jury be instructed to find such fear as an element of the offense.
However, this argument has been rejected by one court of appeal. In People v. Moya (1992) 4 CA4th 912, 915-17, the Court of Appeal held that the 1990 amendment to PC 207(a) does not change simple kidnapping from a general intent to a specific intent crime by adding the phrase “by any other means of instilling fear.” The court also concluded that simple kidnapping does not require the use of force which actually instills fear in the victim.
[Research Note: See FORECITE BIBLIO 9.50.]
CALJIC NOTE: See FORECITE F 9.50 n3.
F 1215 Note 4 “Substantial Distance” Unconstitutionally Vague
See FORECITE F 1203 Note 2.
F 1215 Note 5 Ireland Merger Doctrine Inapplicable to Kidnapping
People v. Escobar (1996) 48 CA4th 999, 1012-13 held that the Ireland merger rule does not apply to kidnapping (PC 207) because even if kidnapping involves an assault, it also has an independent felonious intent.
ALERT: People v. Farley (2009) 46 C4th 1053, 1118-20 overruled People v. Wilson (1969) 1 C3d 431 which precluded the application of the felony murder rule to assaultive burglaries. However, Wilson still applies to crimes committed prior to the finality of the Farley decision.
CALJIC NOTE: See FORECITE F 9.50 n7.
F 1215 Note 6 Is Attempted Kidnapping A Lesser Included Of Completed Kidnapping?
People v. Martinez (1999) 20 C4th 225 assumed, without discussion, that attempted kidnapping is a lesser included of completed kidnapping (20 C4th at 241); however, attempted kidnapping includes a specific intent element not present in completed kidnapping which is especially significant in a case like Martinez where there is evidence of voluntary intoxication. (PC 29 permits voluntary intoxication to negate the specific intent of attempted kidnapping but not the general intent of completed kidnapping.)
Hence, under the elements test employed in California, attempted kidnapping is a lesser related, but not lesser included offense, of completed kidnapping.
STRATEGY NOTE: (See LIO III(A).)
CALJIC NOTE: See FORECITE F 9.50 n9.
F 1215 Note 7 False Imprisonment (PC 236 & PC 237) As Lesser Included Of Kidnapping (PC 207)
See People v. Magana (1991) 230 CA3d 1117, 1120-21; see also Annotation, False imprisonment as included offense within charge of kidnapping, 68 ALR3d 828 and Later Case Service.
[Research Note: See FORECITE BIBLIO 9.50.]
CALJIC NOTE: See FORECITE F 9.50 n4.
F 1215 Note 8 Kidnapping: Error To Instruct That Asportation Of 500 Feet Is Substantial (PC 207)
It is prejudicial error to instruct the jury that asportation of 500 feet is “sufficiently substantial to sustain” a kidnap conviction because it unconstitutionally directs a verdict on a material element. (People v. Reyes-Martinez (1993) 14 CA4th 1412, 1415-18; see also People v. Green (1980) 27 C3d 1, 66-68; People v. Daly (1992) 8 CA4th 47, 56-57; but see FORECITE F 9.50 n2.)
[Research Note: See FORECITE BIBLIO 9.50.]
CALJIC NOTE: See FORECITE F 9.50 n1.
F 1215 Note 9 Fraud Or False Promises As “Force Or Fear”
See FORECITE F 1203 Note 10.