SERIES 1200 KIDNAPPING
F 1202 Kidnapping: For Ransom, Reward, Or Extortion (PC 209(a))
TABLE OF CONTENTS
F 1202.1 Titles And Identification Of Parties
F 1202.1 Inst 1 Kidnapping: For Ransom, Reward, Or Extortion—Title
F 1202.1 Inst 2 Identification Of Prosecution And Defendant
F 1202.2 Kidnapping: For Ransom, Reward, Or Extortion—Tailoring To Facts: Persons, Places, Things And Theories
F 1202.2 Inst 1 Tailoring To Facts
F 1202.3 Kidnapping: For Ransom, Reward, Or Extortion—Language That Is Argumentative, Confusing, Etc.
F 1202.3 Inst 1 Deletion Of Argumentative Language
F 1202.3 Inst 2 (a & b) Argumentative Language Should Be Balanced To Assure Jurors Consider All Relevant Evidence
F 1202.3 Inst 3 Jurors Not Required To Decide
F 1202.4 Kidnapping: For Ransom, Reward, Or Extortion—Burden Of Proof Issues
F 1202.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 1202.4 Inst 2 Enumeration Of Extortion Elements; Must Be Proven Beyond A Reasonable Doubt; Tailoring To Facts
F 1202.4 Inst 3 Prosecution Must Prove “All Elements” OF The Sentencing Factor
F 1202.4 Inst 4 (a – b) Substantial Movement And Increased Danger Elements May Not Be Inferred Solely From Movement Of Victim To More Secluded Location
F 1202.5 Kidnapping: For Ransom, Reward, Or Extortion—Elements And Definitions
F 1202.5 Inst 1 Reasonable Person Standard
F 1202.5 Inst 2 Kidnapping: Definition Of “Distance That Is Substantial In Character” (PC 207 & PC 209)
F 1202.5 Inst 3 Kidnapping: Requirement That Victim Be Alive (PC 207 & PC 209)
F 1202.5 Inst 4 (a – b) Substantial Movement And Increased Danger Elements May Not Be Inferred Solely From Movement Of Victim To More Secluded Location
F 1202.6 Kidnapping: For Ransom, Reward, Or Extortion—Defense Theories
F 1202.6 Inst 1 Consent As Defense To Kidnapping: Consent Obtained By Fraud Or Deceit
F 1202.7 Kidnapping: For Ransom, Reward, Or Extortion—Preliminary Fact Issues [Reserved]
F 1202.8 Kidnapping: For Ransom, Reward, Or Extortion—Unanimity/Duplicity/Multiplicity
F 1202.8 Inst 1 Kidnapping: Multiple Counts Not Permissible When Based On Continuous Offense
F 1202.9 Kidnapping: For Ransom, Reward, Or Extortion—Lesser Offense Issues [Reserved]
Return to Series 1200 Table of Contents.
F 1202.1 Titles And Identification Of Parties
F 1202.1 Inst 1 Kidnapping: For Ransom, Reward, Or Extortion—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 1202.1 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 1202.2Kidnapping: For Ransom, Reward, Or Extortion—Tailoring To Facts: Persons, Places, Things And Theories
F 1202.2 Inst 1 Tailoring To Facts
*Modify CC 1202, Elements 1 & 2, as follows [added language is underlined; deleted language is stricken]:
1. The defendant (kidnapped[,]/ [or] abducted[,]/ [or] seized[,]/ [or] confined[,]/ [or] concealed[,]/ [or] carried away[,]/ [or] inveigled[,]/ [or] enticed[,]/ [or] decoyed) someone _______________ <name of alleged victim>;
<Alternative 2A—held or detained>
[2. The defendant held or detained that person _______________ <name of alleged victim>;]
<Alternative 2B—intended to hold or detain that person>
[2. When the defendant acted, (he/she) intended to hold or detain the person _______________ <name of alleged victim>;]
Points and Authorities
See FORECITE F 1200.2 Inst 1.
F 1202.3 Kidnapping: For Ransom, Reward, Or Extortion—Language That Is Argumentative, Confusing, Etc.
F 1202.3 Inst 1 Deletion Of Argumentative Language
*Modify CC 1202, paragraph 3, as follows [deleted language is stricken]:
[It is not necessary that the person be moved for any distance.]
Points and Authorities
See FORECITE F 416.3 Inst 4.
STRATEGY NOTE AND CAVEAT—Objection to specific instruction on matters which the prosecution does not have to prove may open the door, in the judge’s view, to prosecutorial objection to specific evidence instructions on matters which are not alone sufficient to prove guilt. (See listing of such instructions at FORECITE PG XI(D)(2).) Although the considerations should be different due to the presumptions of innocence (see e.g., FORECITE F 100.1 Inst 1), the judge may not see it this way. In this light, an alternative approach could be a request that the instruction be balanced and clarified to assure the jurors do consider the specified matter in determining whether the prosecution has proven all essential facts and elements of the charged offense. (See FORECITE F 1200.3 Inst 3.)
Additionally, if the judge rejects a defense request to delete or balance argumentative language that favors the prosecution, this may provide a basis for requesting argumentative language favoring the defendant in another instruction. [See generally FORECITE F 416.3 Inst 4..]
F 1202.3 Inst 2 (a & b) Argumentative Language Should Be Balanced To Assure Jurors Consider All Relevant Evidence
*Add after CC 1202, paragraph 3:
Alternative a [fact not disputed]:
However, the fact that _______________ <name of alleged victim> was not moved is a circumstance to consider in evaluating whether the prosecution has proven [all the elements of the alleged ______________] [_____________<insert specific element to which the evidence relates>].
Alternative b [fact disputed]:
However, whether or not _______________ <name of alleged victim> was moved is a circumstance to consider in evaluating whether the prosecution has proven [all the elements of the alleged _______________] [________________<insert specific element to which the evidence relates>].
Points and Authorities
See FORECITE F 416.3 Inst 7.
F 1202.3 Inst 3 Jurors Not Required To Decide
*Modify CC 1202, paragraph 6 as follows [added language is underlined]:
[If you find the defendant guilty of kidnapping for (ransom [,]/[or] reward[,]/ [or] extortion), you must then decide, if you can, whether thePeople Prosecution have proved the additional allegation that the defendant (caused the kidnapped person to (die/suffer bodily harm)/ [or] intentionally confined the kidnapped person in a way that created a substantial risk of death).
Points and Authorities
See FORECITE F 100.7 Inst 1.
F 1202.4 Kidnapping: For Ransom, Reward, Or Extortion—Burden Of Proof Issues
F 1202.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 1202.4 Inst 2 Enumeration Of Extortion Elements; Must Be Proven Beyond A Reasonable Doubt; Tailoring To Facts
*Modify CC 1202, paragraph 4 as follows [added language is underlined; deleted language is stricken]
[Someone intends to commit To prove that the defendant intended to commit extortion, if he or she intends the prosecution must prove beyond a reasonable doubt that (he/she) intended to:
(1) obtain a person’s _______________’s <name of alleged victim> property with the person’s _______________’s <name of alleged victim> consent;
and
(2) obtain the person’s _______________ <name of alleged victim> consent through the use of force or fear.]
*Modify CC 1202, paragraph 5 as follows [added language is underlined; deleted language is stricken]
[Someone intends to commit To prove that the defendant intended to commit extortion, if he or she the prosecution must prove beyond a reasonable doubt that (he/she):
(1) intends intended to get a public official _______________ <name of public official> to do an official act and (2) used force or fear to make the official _______________ <name of public official> do the act.] [An official act is an act that a person does in his or her official capacity using the authority of his or her public office.]
Points and Authorities
See FORECITE F 400.4 Inst 1.
F 1202.4 Inst 3 Prosecution Must Prove “All Elements” OF The Sentencing Factor
*Modify CC 1202, paragraph 10 as follows [added language is underlined; deleted language is stricken]
The People have prosecution has the burden of proving this allegation all of the above elements beyond a reasonable doubt. If the People have prosecution has not met this burden, you must find that the allegation has not been proved.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
All Elements Of Sentencing Allegations Must Be Proved Beyond A Reasonable Doubt—See Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348]; see also Ring v. Arizona (2002) 536 US 584 [153 LEd2d 556; 122 SCt 2428]; Blakely v. Washington (2004) 542 US 296 [159 LEd2d 403; 124 SCt 2531].)
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 3.11 [Applicability Of Federal Constitutional Rights To Sentencing Decisions]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 1202.4 Inst 4 (a – b) Substantial Movement And Increased Danger Elements May Not Be Inferred Solely From Movement Of Victim To More Secluded Location
See FORECITE F 1203.5 Inst 7 (a-b).
F 1202.5 Kidnapping: For Ransom, Reward, Or Extortion—Elements And Definitions
F 1202.5 Inst 1 Reasonable Person Standard
*Modify CC 1202, paragraph 8, item 1, as follows [added language is underlined; deleted language is stricken] [CC 505 adaption]:
1. A reasonable person in the defendant’s position situation, considering all the circumstances as they were known to and appeared to the defendant, would have foreseen that the defendant’s use of force or fear could begin a chain of events likely to result in ______________’s <insert name of allegedly kidnapped person> (death/bodily harm);
Points and Authorities
See FORECITE F 820.5 Inst 3.
F 1202.5 Inst 2 Kidnapping: Definition Of “Distance That Is Substantial In Character” (PC 207 & PC 209)
*Add to CC 1202:
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
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Definition Of Substantial Distance—The above instruction was suggested by the Court of Appeal in People v. Daniels (1993) 18 CA4th 1046, 1053. The Daniels court observed that merely telling the jury that the distance must be “more than slight or trivial,” as did CJ 9.50, “scarcely helps” the jury. (Daniels, 18 CA4th at 1053, fn 5.) The same reasoning applies to CC 1202 which defines a substantial factor as “more than trivial or remote.”
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 FORECITE F 1203 Note 2 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.
CALJIC NOTE: See FORECITE F 9.50b.
F 1202.5 Inst 3 Kidnapping: Requirement That Victim Be Alive (PC 207 & PC 209)
See FORECITE F 1200.5 Inst 1.
F 1202.5 Inst 4 (a – b) Substantial Movement And Increased Danger Elements May Not Be Inferred Solely From Movement Of Victim To More Secluded Location
See FORECITE F 1203.5 Inst 7 (a-b).
F 1202.6 Kidnapping: For Ransom, Reward, Or Extortion—Defense Theories
F 1202.6 Inst 1 Consent As Defense To Kidnapping: Consent Obtained By Fraud Or Deceit
See FORECITE F 1200.6 Inst 1.
F 1202.7 Kidnapping: For Ransom, Reward, Or Extortion—Preliminary Fact Issues [Reserved]
F 1202.8 Kidnapping: For Ransom, Reward, Or Extortion—Unanimity/Duplicity/Multiplicity
F 1202.8 Inst 1 Kidnapping: Multiple Counts Not Permissible When Based On Continuous Offense
See FORECITE F 1200.8 Inst 1.
F 1202.9 Kidnapping: For Ransom, Reward, Or Extortion—Lesser Offense Issues [Reserved]