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SERIES 1200 KIDNAPPING

F 1225 Defense To Kidnapping: Protecting Child From Imminent Harm (PC 207(f)(1))

TABLE OF CONTENTS
F 1225.1 Titles And Identification Of Parties
F 1225.1 Inst 1 Defense To Kidnapping: Protecting Child From Imminent Harm—Title
F 1225.1 Inst 2 Identification Of Prosecution And Defendant

F 1225.2 Defense To Kidnapping: Protecting Child From Imminent Harm —Tailoring To Facts: Persons, Places, Things And Theories
F 1225.2 Inst 1 Tailoring To Facts

F 1225.3 Defense To Kidnapping: Protecting Child From Imminent Harm—Burden Of Proof Issues
F 1225.3 Inst 1
Revision Of Conflicting And Confusing Language Regarding Burden Of Proof
F 1225.3 Inst 2 Defense To Kidnapping: Who Has Burden Of Proof?

Return to Series 1200 Table of Contents.


F 1225.1 Titles And Identification Of Parties

F 1225.1 Inst 1 Defense To Kidnapping: Protecting Child From Imminent Harm—Title

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


F 1225.1 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 1225.2Defense To Kidnapping: Protecting Child From Imminent Harm —Tailoring To Facts: Persons, Places, Things And Theories

F 1225.2 Inst 1 Tailoring To Facts

*Modify CC 1225, as follows [added language is underlined; deleted language is stricken]:

The defendant is not guilty of kidnapping if (he/she) (took/stole/enticed away/detained/concealed/harbored) a child under the age of 14 years _______________ <name of alleged victim> to protect that child (him/her) from danger of imminent harm.

An imminent harm is an immediate and present threat of harm. Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed that the child _______________ <name of alleged victim> was in imminent danger.

<Alternative A—reasonable doubt standard>

[The People have the burden of proving beyond a reasonable doubt that the defendant did not act (take/steal/entice away/detain/conceal/harbor) _______________ <name of alleged victim> to protect the child (him/her) from the danger of imminent harm. If the People have not met this burden, you must find the defendant not guilty of kidnapping.]

<Alternative B—preponderance standard>

[The defendant has the burden of proving by a preponderance of the evidence that (he/she) was acting to protect the child _______________ <name of alleged victim> from danger of imminent harm. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.

Points and Authorities

See FORECITE F 400.2 Inst 1.


F 1225.3 Defense To Kidnapping: Protecting Child From Imminent Harm—Burden Of Proof Issues

F 1225.3 Inst 1 Revision Of Conflicting And Confusing Language Regarding Burden Of Proof

*Modify CC 1225, paragraph 1 and 2, as follows [added language is underlined; deleted language is stricken]:

The defendant A person is not guilty of kidnapping if, believing a child under the age of 14 years to be in danger of imminent harm, (he/she) (took/stole/enticed away/detained/concealed/harbored) a that child under the age of 14 years to protect that child (him/her) from danger of imminent such harm.

An imminent harm is an immediate and present threat of harm. Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed that the child was in imminent danger.

Points and Authorities

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

The CALCRIM Deficiency – CC 1225 may be confusing to jurors because it gives them two conflicting rules: In Paragraph 2 it states that: “The defendant must have believed that the child was in imminent danger.” [Emphasis added.] On the other hand in Paragraph 3 it tells the jurors that the prosecution has the burden of proving that the defendant did not act to protect the child from imminent harm. Lay persons not schooled in the law could be mislead by this conflicting language. (See People v. Danks (2004) 32 C4th 269, 307 [recognizing that jurors make unwarranted assumptions about instructions which are not specifically spelled out].) The above modification to CC 1225 reduces the danger of confusion by conveying the elements in generic terms that avoid stating what the defendant “must have” believed. [This “must have” language may have originated from the former iteration of CC 1225 which included an option for allocating the burden of proof to the defendant. See Spring 2008 CALCRIM Revisions And FORECITE Commentary.]

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

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 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.


F 1225.3 Inst 2 Defense To Kidnapping: Who Has Burden Of Proof?

ALERT: CALCRIM HISTORY – The Committee’s 2008 deletion of the preponderance alternative addressed the deficiency previously identified by FORECITE F 1225.3 Inst 2.

ALERT: [Do not use Alternative B, which puts burden of proof on defendant.]

Points and Authorities

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

The Prosecution Should Be Required To Prove That The Defendant Did Not Withdraw Because It Bears On The Legality Of The Defendant’s Conduct—See FORECITE F 3403 Inst 4.

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]

In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

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