SERIES 1200 KIDNAPPING
F 1230 NON-CALCRIM DEFENSES
TABLE OF CONTENTS
F 1230.1 Titles And Identification Of Parties
F 1230.1 Inst 1 Non-CALCRIM Defenses—Title
F 1230.1 Inst 2 Identification Of Prosecution And Defendant
F 1230.2 Non-CALCRIM Defenses—Tailoring To Facts: Persons, Places, Things And Theories
F 1230.2 Inst 1 (a & b) Kidnapping: Good Faith Belief That The Victim Was Dead (PC 207 & PC 209)
Return to Series 1200 Table of Contents.
F 1230.1 Titles And Identification Of Parties
F 1230.1 Inst 1 Non-CALCRIM Defenses—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 1230.1 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 1230.2Non-CALCRIM Defenses—Tailoring To Facts: Persons, Places, Things And Theories
F 1230.2 Inst 1 (a & b) Kidnapping: Good Faith Belief That The Victim Was Dead (PC 207 & PC 209)
*Add to CC 1230 when appropriate:
Alternative a [CC 3400 adaption]:
The prosecution must prove each element of the kidnapping charge including that the defendant believed _______________ <name of alleged victim> was alive when the defendant [allegedly] moved (him/her). The defendant contends that (he/she) reasonably believed that the victim was not alive. The prosecution must prove beyond a reasonable doubt that the defendant did not hold such a belief or that the belief, if held, was not reasonable. The defendant does not need to prove that (he/she) reasonably believed the victim was alive. If you have a reasonable doubt about whether the prosecution has proven that the defendant did not reasonably believe the victim was alive, you must find (him/her) not guilty.
Alternative b:
The prosecution must prove beyond a reasonable doubt that the defendant did not honestly and reasonably believe that _________ <insert name of victim> was dead at the commencement of, and the duration of, the movement of _________ <insert name of victim>. If, from all the evidence, you have a reasonable doubt that the prosecution has proved that the defendant did not believe _________ <insert name of victim> was dead at the commencement of, and for the duration of, the movement, you must find [him] [her] not guilty of kidnapping.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Pinpoint Instruction Relating Defense Theory To Burden Of Proof—See FORECITE F 315.1.2 Inst 2.
Good Faith Belief As Defense Theory – Under the reasoning of People v. Mayberry (1975) 15 C3d 143, good faith belief that the victim was dead prior to the required asportation negates the knowledge/general criminal intent element of kidnapping. If the victim of an alleged kidnapping is dead, he or she is no longer a “person” who can be kidnapped. (See also People v. Sojka (2011) 196 CA4th 733 [reversible error to deny request for defense instruction on reasonable belief-as-to-consent in attempted rape prosecution].)
Cases from other jurisdictions are in accord. (People v. Miles (1969) 23 NY2d 527, 536-538 [245 NE2d 688] [defendants could not be guilty of kidnapping if they believed their victim was dead]; see also Gribble v. State (Tex.Crim.App. 1990) 808 SW2d 65, 72, fn 16 [“moving [a dead body] from place to place does not under any circumstances constitute the offense of kidnapping”].)
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 also People v. Tolbert DEPUBLISHED (9/12/96, E015955) 49 CA4th 275. [See Brief Bank # B-710 and B-746 for the Tolbert briefing on this issue, as well as other briefing.]
CALJIC NOTE: See FORECITE F 9.50d.
