Return to CALJIC Part 9-12 – Contents
F 9.54 n1 Kidnapping To Commit Robbery: Claim Of Right Defense (PC 209).
See FORECITE F 9.40a; FORECITE F 9.40b; FORECITE F 9.40 n9; and FORECITE F 9.53 n1; see also People v. Duran (2001) 88 CA4th 1371, 1374 [106 CR2d 812] [carjacking is necessarily included offense of kidnapping].
F 9.54 n2 Applicability Of Two Pronged Daniels Test To Kidnapping For Robbery (PC 209).
See People v. Smith REV DISM/DEPUB (92) 7 CA4th 58, 62 [8 CR2d 846] observing that “[s]ome have suggested that the Supreme Court’s interpretative path in section 209 cases has effectively eliminated any substantive content in the Daniels factors, substituting instead a substantial distance requirement.”
However, the grant of review in Smith was dismissed and the opinion republished at People v. Smith (92) 18 CA4th 1192 [27 CR2d 20]. And, in People v. Rayford (94) 9 C4th 1, 21 [36 CR2d 317], the applicability of Daniels to PC 209 kidnapping was reaffirmed.
F 9.54 n3 Kidnapping to Commit Robbery: Claim of Right Defense (PC 209).
The claim of right defense does not apply to extortion or kidnapping for ransom. (People v. Serrano (92) 11 CA4th 1672 [15 CR2d 305].)
F 9.54 n4 Kidnapping To Commit Robbery: Substantial vs. Incidental Movement (PC 209).
In People v. Gonzales (94) 21 CA4th 1648, 1653 [26 CR2d 773], the trial court, at the prosecutor’s request, added the following language to CJ 9.54: Brief or trivial movements to facilitate the robbery are incidental to the robbery and are insufficient to constitute the crime of kidnap for robbery. On the other hand, movements to facilitate the robbery that are for a substantial distance rather than brief [sic] are not incidental to the robbery.
The Court of Appeal rejected the defendant’s argument that this instruction directed a verdict in favor of the prosecution on the issue of whether the movement was incidental to the robbery. (Note: The July 1994 CJ Pocket Part has revised 9.54 to include the above instruction.)
However, if such an instruction is given it should also be made clear the “substantial distance” requirement is an additional necessary requirement above and beyond the Daniels factors. (People v. Smith (92) 18 CA4th 1192, 1196 [27 CR2d 20].)
(See FORECITE F 9.54d.)
CALJIC HISTORICAL NOTES
The July 1994 CALJIC pocket part added language to 9.54 informing the jury that asportation for a substantial distance cannot be considered incidental to the commission of the robbery. This language is based on People v. Gonzales (94) 21 CA4th 1648, 1652 [26 CR2d 773]. However, this instruction could confuse the jury since the listed CJ elements do not include any reference to the term “incidental movement.”
F 9.54 n5 Kidnapping To Commit Robbery: Requirement That Simple Kidnapping Be Committed (PC 208).
It is beyond question in California that simple kidnapping (PC 207) is a lesser included offense of aggravated kidnapping (PC 209). (People v. Ford (66) 65 C2d 41, 49 [52 CR 228]; People v. Mayes (88) 202 CA3d 908, 910 [248 CR 899]; Talamantez v. Superior Court (81) 122 CA3d 629, 639 [176 CR 800]; People v. Panky (78) 82 CA3d 772, 776 [147 CR 341].) This means that the basic asportation element of PC 207 is also required for PC 209. (See generally People v. Lohbauer (81) 29 C3d 364, 369 [173 CR 453]; see also U.S. v. Dinkane (9th Cir. 1994) 17 F3d 1192, 1198 [lesser included offense is “a ‘subset’ of the greater one”].) Accordingly, in California, aggravated kidnapping (e.g., for robbery) “requires at a minimum that the defendant’s acts constitute a simple kidnapping.” (Emphasis added.) (People v. Smith (92) 18 CA4th 1192, 1196 [27 CR 20]; see also Magee v. Superior Court (73) 34 CA3d 201, 215, fn 5 [109 CR 758] [difference between … aggravated and simple kidnapping is the purpose of the movement].)
It is true that aggravated kidnapping cases typically discuss factors such as the increased risk of harm to the victim. However, such factors must be found, in addition to, not instead of the basic asportation necessary for simple kidnapping. (See People v. Rayford (94) 9 C4th 1, 14 [37 CR2d 317] [asportation for aggravated kidnapping is more stringent than for simple kidnapping]; People v. Martinez (99) 20 C4th 225, 247 [83 CR2d 533] Mosk, J., dissenting [“[Daniels]…added additional requirements for kidnapping under [PC] 209…”] [Emphasis in original].) Hence, if the asportation is insufficient to sustain a conviction of the lesser included offense of simple kidnapping then, it is Black Letter Law that the greater offense cannot be upheld. (See e.g., Dowling v. U.S. (90) 493 US 342, 355 [107 LEd2d 708; 110 SCt 668]; Brown v. Ohio (77) 432 US 161, 168 [53 LEd2d 187; 97 SCt 2221].) [See Brief Bank # B-858 for additional briefing on this issue.]
F 9.54 n6 Aggravated Kidnapping: Substantially Increased Risk Of Psychological Harm Is Sufficient.
(See FORECITE F 9.51 n2.)
F 9.54a Kidnap For Robbery, Rape Or Sex Crimes:
Aider And Abettor Must Have Knowledge Of Asportation
*Add to CJ 9.54:
To be guilty of kidnap for ransom as an aider and abettor the defendant must knowingly intend to facilitate the abduction of the victim[s] for purposes of extortion. Evidence has been presented which may tend to show that __________ had no knowledge of the abduction and, therefore, did not intend to facilitate the abduction of the victim[s]. [¶] If after consideration of all the evidence you have a reasonable doubt that __________ had knowledge of the abduction you may not find [him] [her] guilty of kidnapping for ransom. [¶] You may find __________ guilty of false imprisonment if, without knowledge of the abduction, [he] [she] she intended to facilitate the perpetrator’s forceful confinement of the victim[s]. [¶] You may find __________ guilty of extortion if, without knowledge of the abduction, [he] [she] intended to facilitate the perpetrator’s attempt to obtain money in exchange for release for the victim[s].
Points and Authorities
“The critical element which must be found to establish vicarious liability for the targeted offense is the aider and abettor’s intent to facilitate and encourage that offense.” [Emphasis added.] (People v. Jones (89) 207 CA3d 1090, 1096 [255 CR 464]; see also, People v. Beeman (84) 35 C3d 547, 560 [199 CR 60] [aider and abettor liable only for acts knowingly and intentionally facilitated].) Accordingly, aider and abettor liability may not be imposed for those target offenses about which the defendant had no knowledge. (People v. Beeman 35 C3d at 560; see also, People v. Mitchell (86) 183 CA3d 325, 330 [228 CR 286]; FORECITE F 1.20a and FORECITE F 3.30a.) For example, if the defendant “knowingly participates” in the second phase of a two-phase crime such as robbery (phase I = forceful taking; phase II = asportation), the defendant is guilty as an aider and abettor so long as he had “knowledge that a robbery [was] in progress ….” (People v. Jardine (81) 116 CA3d 907, 920 [172 CR 408]; see also, People v. Mitchell 183 CA3d at 330; People v. Cooper (91) 53 C3d 1158, 1161 [282 CR 450].) As the Supreme Court recognized in Cooper, it is inconsistent with “reasonable concepts of culpability” to impose aider and abettor liability upon the getaway driver in a robbery if that person was unaware of the robbery until after all the acts constituting robbery had ceased. (Cooper 53 C3d at 1168.) By a parity of reasoning, a criminal intent to aid the perpetrator in the asportation of stolen property would not give rise to aiding and abetting liability for robbery if the aider and abettor did not know that the perpetrator obtained the stolen property in a robbery. (Jardine, Mitchell and Cooper all involved situations where the aider and abettor obviously knew that a robbery had taken place.)
The same analysis applies with equal if not greater force to kidnapping for robbery or ransom. For example, if the perpetrator abducts the victim without the knowledge of the aider and abettor who subsequently aids the perpetrator in an attempt to rob the victim or to extort money in exchange for the victim’s release, the aider and abettor cannot be convicted of kidnapping for robbery or ransom unless he/she had knowledge that a kidnapping had occurred.
The above instruction relates the defense theory that defendant had no knowledge of the abduction to an essential element of the charge — an intent to facilitate the perpetrator’s commission of kidnapping for ransom — and therefore it is an appropriate pinpoint instruction and required by the federal constitutional principles of compulsory process, right to trial by jury and due process (6th and 14th Amendments). The defendant has a right to “‘direct attention to evidence from … which a reasonable doubt could be engendered.’ [Citation].” (People v. Hall (80) 28 C3d 143, 159 [167 CR 844]; People v. Sears (70) 2 C3d 180, 190 [84 CR 711].) Hence, the defendant may obtain a pinpoint instruction which relates “his [evidentiary theory] to an element of the offense.” (People v. Saille (91) 54 C3d 1103, 1120 [2 CR2d 364]; see also, People v. Wright (88) 45 C3d 1126, 1136-37 [248 CR 600] [pinpoint instruction proper if it is predicated upon defendant’s theory].) Because the proposed instruction is the proper subject of pinpoint instruction and because it is patterned after the judicially approved form for such instructions, i.e., CJ 2.91, CJ 4.21, CJ 4.30 and CJ 4.50, it should be given as requested. (See FORECITE PG III(A).)
Kidnap For Robbery: Non-Incidental Movement As Distinct Element
*Add the following to the numerical list of elements specified in CJ 9.54:
[See FORECITE F 9.52.1a]
Kidnapping: Definition Of “Substantial Distance”
(PC 207 & PC 209)
*Modify CJ 9.54 as follows:
[See FORECITE F 9.50b.]
Requirement That Movement Not Be Incidental
To The Intended Crime
*Modify CJ 9.54 by adding element 6 as follows:
6. The movement of the victim was beyond that which was merely incidental to the commission of the [robbery] [rape] [ ]. Incidental movement is that movement which serves only to facilitate commission of the crime with no other apparent purpose.
Points and Authorities
CJ 9.54 omits an element of aggravated kidnapping. Pursuant to PC 209(b)(2), an aggravated kidnapping is not committed unless “the movement of the victim is beyond that merely incidental to the commission of, . . . the intended underlying offense.” Incidental movement is that movement which serves “only to facilitate the crime with no other apparent purpose.” (People v. Hoard (2002) 103 CA4th 599, 607 [126 CR2d 855], fn. omitted.) See Brief Bank # B-967 for additional briefing on this issue.