Return to CALJIC Part 9-12 – Contents
F 9.50 n1 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 (93) 14 CA4th 1412, 1415-18 [18 CR2d 300]; see also People v. Green (80) 27 C3d 1, 66-68 [164 CR 1]; People v. Daly (92) 8 CA4th 47, 56-57 [10 CR2d 21]; but see FORECITE F 9.50 n2.)
[Research Note: See FORECITE BIBLIO 9.50]
F 9.50 n2 Kidnapping: “Substantial Distance” Requirement: Consideration Of Factors Other Than Distance Of The Asportation (PC 207).
People v. Martinez (99) 20 C4th 225 [83 CR2d 533] expressly overruled People v. Caudillo (78) 21 C3d 562, 574 [146 CR 859], 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.] 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.” (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.)
F 9.50 n3 Kidnapping: Victim Must Fear Harm Or Injury (PC 207).
CALJIC provides the following definition of kidnapping to be used when the asportation is by force: “Every person who unlawfully and with physical force moves any other person without his/her consent …” 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 (92) 4 CA4th 912, 915-17 [6 CR2d 323], 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]
F 9.50 n4 False Imprisonment (PC 236 & PC 237) As Lesser Included Of Kidnapping (PC 207).
See People v. Magana (91) 230 CA3d 1117, 1120-21 [281 CR 338]; 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]
F 9.50 n5 Kidnapping During Carjacking (PC 209.5).
See CJ 9.54.1 and FORECITE F 9.54.1, et seq.
[Research Note: See FORECITE BIBLIO 9.50]
F 9.50 n6 “Substantial Distance” Unconstitutionally Vague.
In People v. Rayford (94) 9 C4th 1, 14 [36 CR2d 317], the Supreme Court recognized that the requirement that the movement to support a kidnapping conviction be “substantial in character” contributes to jury confusion because it “‘has little or no meaning.’ [Citation.]” To predicate conviction for simple kidnapping (PC 207), or aggravated kidnapping (PC 209, PC 209.5, PC 208, etc.) upon such a vague element, violates the state (Art. I, § 15) and federal (6th and 14th Amendments) constitutional rights to due process. (See Lanzetta v. New Jersey (39) 306 US 451, 453 [83 LEd 888; 59 SCt 618]; People v. Soto (85) 171 CA3d 1158, 1162-64 [217 CR 795]; see also, Kolender v. Lawson (83) 461 US 352, 357-60 [75 LEd2d 903; 103 SCt 1855].)
F 9.50 n7 Ireland Merger Doctrine Inapplicable to Kidnapping.
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.
People v. Escobar (96) 48 CA4th 999, 1012-13 [55 CR2d 883] 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.
F 9.50 n8 Kidnapping: Convictions For Both Simple And Aggravated Kidnapping Not Permissible For The Same Course Of Conduct.
(See FORECITE F 17.02 n13.)
F 9.50 n9 Is Attempted Kidnapping A Lesser Included Of Completed Kidnapping?
People v. Martinez (99) 20 C4th 225 [83 CR2d 533] 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).)
F 9.50 n10 Kidnapping Of Child Too Young To Consent: Requirement Of Force Or Improper Purpose.
Even if the alleged kidnap victim is a child who is too young to consent to the crime, it is still required that the asportation be against the will of the child or with intent to commit a crime against the child. [See Brief Bank # B-834 for additional briefing on this issue.] (See also In re Michele D. (2002) 29 C4th 600 [128 CR2d 92] [amount of force required to kidnap an unresisting infant or child is simply the amount of physical force required to take and carry the child away a substantial distance for an illegal purpose or with an illegal intent].)
NOTE: Ordinarily the force element in PC 207 requires something more than the physical force which is necessary to move the victim from one location to another.
F 9.50 n11 Kidnapping During Carjacking (PC 209.5): Includes Kidnapping To Effect Escape Or Prevent Sounding Of Alarm.
In People v. Perez (2000) 84 CA4th 856 [101 CR2d 376] the court analogized kidnapping during the commission of a carjacking to kidnapping during the commission of a robbery. “[I]f there is substantial evidence that appellant intended the kidnapping to effect an escape or prevent an alarm from being sounded, his conviction for kidnapping during the commission of a carjacking must stand.” (Perez, 84 CA4th at 861.)
F 9.50a
Kidnapping: Explanation Of Consent
(PC 207 & PC 209)
*Add to CJ 9.50:
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 instruction was approved in People v. Morrison (64) 228 CA2d 707, 715 [39 CR 874]. The Morrison court rejected the defendant’s claim that the term “accompany” provides a lesser standard of conduct. (Ibid.)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII(C).]
F 9.50b
Kidnapping: Definition Of
“Distance That Is Substantial In Character”
(PC 207 & PC 209)
*Add to CJ 9.50:
The law does not provide an exact measure of whether a distance is “substantial in character.” The issue is one of fact for you to decide, not one of law for the court to decide. Based upon the facts you determine from the evidence, you may decide the distance was substantial or that it was not substantial. If you have a reasonable doubt as to whether the distance was substantial, you must give the defendant the benefit of that doubt and find it not substantial.
Points and Authorities
The above instruction was suggested by the Court of Appeal in People v. Daniels (93) 18 CA4th 1046, 1053 [22 CR2d 877]. The Daniels court observed that merely telling the jury that the distance must be “more than slight or trivial,” as does CJ 9.50, “scarcely helps” the jury. (Daniels, 18 CA4th at 1053, fn 5.)
This instruction is still appropriate even though CJ 9.50 now includes the non-distance factors authorized by People v. Martinez (99) 20 C4th 225, 237 [83 CR2d 533].
Because this instruction may relate a theory of the defense to an element of the charge, it should also relate the burden of proof to the issues addressed. (EC 502; People v. Simon (95) 9 C4th 493, 500-01 [37 CR2d 278] [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 (82) 135 CA3d 335, 342 [185 CR 506]; see e.g., CJ 2.92, CJ 4.30, CJ 4.50, CJ 5.15; see also FORECITE PG III(D)&(E).)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
NOTES
See FORECITE F 9.50 n6 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 9.50c
Kidnapping: Requirement that Victim be Alive
(PC 207 & PC 209)
*Add to CJ 9.50:
4. The person who was moved was alive prior to the commencement of the movement.
Points and Authorities
If the defendant believed that the victim was alive then there could be liability for attempted kidnapping. (See Notes to FORECITE F 10.00a.) In the context of sex offenses, it is well established that an element of the crime is that the victim was alive when the sex act was committed. (See e.g., FORECITE F 10.00a.) This is so because a dead body is not a “person” within the meaning of the applicable statutes. By a parity of reasoning, the statutes which proscribe kidnapping of a “person” (e.g., PC 207, PC 208, PC 209 and PC 209.5) also include as an element the requirement that the victim was alive during at least some portion of the alleged kidnapping. (People v. Hillhouse (2002) 27 C4th 469, 498 [117 CR2d 45] [statutory references to a `person’ (PC 207(a)) or an `individual’ (PC 209(b)), as the kidnapping victim, clearly contemplate someone alive”].)
[See Brief Bank # B-710 for the briefing in People v. Tolbert DEPUBLISHED (9/12/96, E015955) 49 CA4th 275 [56 CR2d 604] on this issue.]
Cases from other jurisdictions are in accord. (People v. Miles (69) 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”].)
Accordingly, the requirement that the victim be alive should be added as an element of the charge.
Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII(C).] NOTES: If the defendant entertains a good faith belief that the victim is dead the jury must be instructed on such belief as an affirmative defense. (See FORECITE F 9.50d.)
F 9.50d
Kidnapping: Good Faith Belief That The Victim Was Dead
(PC 207 & PC 209)
*Add to CJ 9.50 when appropriate:
It is a defense to the charge of kidnapping that a defendant lacked general criminal intent. There is no general criminal intent if a defendant entertained a reasonable and good faith belief 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 whether the defendant believed _____ [insert name of victim] to be dead at the commencement of, and for the duration of, the movement, you must find [him] [her] not guilty of kidnapping.
Points and Authorities
Under the reasoning of People v. Mayberry (75) 15 C3d 143 [125 CR 745], 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 FORECITE F 9.50c.)
Cases from other jurisdictions are in accord. (People v. Miles (69) 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”].)
Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII(C).]
NOTES
See also People v. Tolbert DEPUBLISHED (9/12/96, E015955) 49 CA4th 275 [56 CR2d 604] [See Brief Bank # B-710 and Brief Bank # B-746 for the Tolbert briefing on this issue.]
F 9.50e
Simple Kidnapping:
Movement Incidental To Associated Crime Insufficient
*Add to CJ 9.50:
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
“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 (75) 14 C3d 122, 122 fn 9 [120 CR 881]; see also People v. Martinez (99) 20 C4th 225, 237 [83 CR2d 533].)
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.
F 9.50f
Jury Must Find That Movement Was For More Than A Very Short Distance
Before Considering Other Factors
*Add to CJ 9.50 as follows:
In deciding 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, then you 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
People v. Martinez (99) 20 C4th 225, 237 [83 CR2d 533] 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 two-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 (95) 9 C4th 493, 500-01 [37 CR2d 278] [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 (82) 135 CA3d 335, 342 [185 CR 506]; see e.g., CJ 2.92, CJ 4.30, CJ 4.50, CJ 5.15; see also FORECITE PG III(D)&(E).)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
NOTES
See FORECITE F 9.50 n6 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.
