Return to CALJIC Part 9-12 – Contents
F 9.60 n1 Misdemeanor False Imprisonment Is LIO Of Felony False Imprisonment (PC 236 & PC 237).
False imprisonment becomes a felony only when the violence used is “greater than that reasonably necessary to effect the restraint.” (People v. Hendrix (92) 8 CA4th 1458, 1462 [10 CR2d 922].) Hence, misdemeanor false imprisonment is a lesser included offense of felony false imprisonment so long as the force used may be found to be only that necessary to effect the restraint. (Ibid.; see also People v. Babich (93) 14 CA4th 801, 807 [18 CR2d 60].)
F 9.60 n2 False Imprisonment: CJ 9.60 Correctly Defines Violence (PC 236 & PC 237).
People v. Babich (93) 14 CA4th 801, 806-07 [18 CR2d 60]; see also, People v. Fernandez (94) 26 CA4th 710, 716 [31 CR2d 677] (sec. 2).)
F 9.60 n3 False Imprisonment: Consent As A Defense (PC 236 & 237).
Consent is a complete defense to a charge of false imprisonment. (PC 236; People v. Haney (77) 75 CA3d 308, 313 [142 CR 186].)
F 9.60 n4 False Imprisonment By Menace: Use Of A Deadly Weapon Or Verbal Threats Required.
PC 237 makes false imprisonment a felony if it was “effected by violence, menace, fraud or deceit ….” People v. Matian (95) 35 CA4th 480 [41 CR2d 459] held that to sustain a conviction of felony false imprisonment under PC 237, the evidence must establish either that a deadly weapon was used or that the defendant verbally threatened the victim. (Matian, 35 CA4th at 485-86.)
F 9.60 n5 False Imprisonment: Requirement That Defendant Not Have Right To Custody.
It is a requirement for both kidnapping (PC 207) and child stealing (PC 278) that the defendant was acting without authority as a custodial parent. (See People v. Senior (92) 3 CA4th 765, 780 [5 CR2d 14]; see also Cline v. Superior Court (82) 135 CA3d 943, 945 [185 CR 787].) Hence, the trial court is obligated to instruct sua sponte that it is an element of the crime that the defendant had no right to custody of the child.
In child stealing cases this element is required. (See CJ 9.70.5.) The same rationale applies to false imprisonment per PC 236. Hence, when appropriate, the trial court must instruct sua sponte upon this defense in a case involving a charge of false imprisonment. The failure to do so may result in reversible error. (See People v. Wilson UNPUBLISHED (A060217) [holding that the failure to sua sponte instruct on the “custodial parent defense” was reversible error].) [A copy of the Wilson opinion is available to FORECITE subscribers. Ask for Opinion Bank #O-186.]
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 9.60 n6 False Imprisonment: Statute Not Unconstitutionally Vague Or Overbroad (PC 236).
People v. Bamba (97) 58 CA4th 1113, 1121-22 [68 CR2d 450] held that PC 236 is not unconstitutionally vague or overbroad. The court held that the term “personal liberty” relates to the right to be free from physical restraint and refers to freedom of movement. Additionally, the court found meritless the argument that PC 236 is overbroad by impermissibly limiting a person’s freedom of speech under the First Amendment.
F 9.60 n7 Felony False Imprisonment: Requirement Of Specific Intent (PC 236 and PC 237).
See Brief Bank # B-848 for briefing on this issue.
F 9.60a
False Imprisonment By Menace: Use Of A
Deadly Weapon Or Verbal Threats Required
*Modify definition of “menace” in CJ 9.60 to provide as follows [added language is capitalized; deleted language is between <<>>]:
Menace means a threat of harm express or implied by word or by <<act>> use of a deadly weapon. THAT IS, THE THREAT MUST BE MADE VERBALLY OR BY USE OF A DEADLY WEAPON.
Points and Authorities
PC 237 makes false imprisonment a felony if it was “effected by violence, menace, fraud or deceit ….” People v. Matian (95) 35 CA4th 480 [41 CR2d 459] held that to sustain a conviction of felony false imprisonment under PC 237, the evidence must establish either that a deadly weapon was used or that the defendant verbally threatened the victim. (Matian, 35 CA4th at 487.)
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).]
F 9.60b
False Imprisonment Of Child:
Parent Must Endanger Health And Safety
Or Confine Child For An Unlawful Purpose
(PC 236)
*Add to CJ 9.60:
To find the defendant guilty of false imprisonment, you must find that [he] [she] confined the child with the intent to endanger the health or safety of that child or for the purpose of committing [specify and define the target offense upon which the false imprisonment liability is predicated].
Points and Authorities
People v. Checketts (99) 71 CA4th 1190, 1195 [84 CR2d 491]. As to instruction on uncharged elements of target offense, see FORECITE F 3.02 n3. (See also FORECITE F 3.02 n5 [jury must unanimously agree upon the acts constituting the target offense].)
NOTE: There is no apparent statutory authority for the Checketts formulation of false imprisonment. False imprisonment is statutorily defined as a general intent crime. There is nothing in the statute authorizing the specific intent crime defined by Checketts. Hence, prosecution may be challenged under this theory as improper judicial legislation.
