SERIES 1200 KIDNAPPING
F 1203 NOTES
TABLE OF CONTENTS
F 1203 Note 1 Kidnapping: For Robbery, Rape, Or Other Sex Offenses—CALCRIM Cross-References And Research Notes
F 1203 Note 2 “Substantial Distance” Unconstitutionally Vague
F 1203 Note 3 Aggravated Kidnapping: Substantially Increased Risk Of Psychological Harm Is Sufficient
F 1203 Note 4 Kidnapping To Commit Sex Offense: Substantial Distance Requirement For Simple Kidnapping Must Be Established
F 1203 Note 5 Kidnapping To Commit Sex Offense: Requirement That Simple Kidnapping Be Committed
F 1203 Note 6 Kidnapping To Commit Robbery: Claim Of Right Defense (PC 209)
F 1203 Note 7 Applicability Of Two Pronged Daniels Test To Kidnapping For Robbery (PC 209)
F 1203 Note 8 Kidnapping To Commit Robbery: Substantial Vs. Incidental Movement (PC 209)
F 1203 Note 9 Kidnapping: Convictions For Both Simple And Aggravated Kidnapping Not Permissible For The Same Course Of Conduct
F 1203 Note 10 Fraud or False Promises As “Force Or Fear”
F 1203 Note 11 False Threat May Satisfy Force Or Fear Element
Return to Series 1200 Table of Contents.
F 1203 Note 1 Kidnapping: For Robbery, Rape, Or Other Sex Offenses—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 1200 [Kidnapping: For Child Molestation]
CALCRIM 1201 [Kidnapping: Child or Person Incapable of Consent]
CALCRIM 1202 [Kidnapping: For Ransom, Reward, or Extortion]
CALCRIM 1204 [Kidnapping: During Carjacking]
CALCRIM 1215 [Kidnapping]
Research Notes:
See CLARAWEB Forum, Kidnapping—Series 1200.
F 1203 Note 2 “Substantial Distance” Unconstitutionally Vague
In People v. Rayford (1994) 9 C4th 1, 14, 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 (1939) 306 US 451, 453 [83 LEd 888; 59 SCt 618]; People v. Soto (1985) 171 CA3d 1158, 1162-64; see also, Kolender v. Lawson (1983) 461 US 352, 357-60 [75 LEd2d 903; 103 SCt 1855].)
CALJIC NOTE: See FORECITE F 9.50 n6.
F 1203 Note 3 Aggravated Kidnapping: Substantially Increased Risk Of Psychological Harm Is Sufficient
See FORECITE F 1202 Note 1.
F 1203 Note 4 Kidnapping To Commit Sex Offense: Substantial Distance Requirement For Simple Kidnapping Must Be Established
People v. Rayford (1994) 9 C4th 1, 21 held that the standard for proof of aggravated kidnapping (PC 209) also applies to kidnapping to commit a sex offense (PC 208). Under this standard, the jury must determine both whether the victim was moved a “substantial distance” and whether this movement “substantially increased” the risk of physical injury over and above the incidental movement to which such person would normally be exposed in the commission of the intended crime. (Rayford, 9 C4th at 23; see also People v. Smith (92) 18 CA4th 1192, 1196 [27 CR2d 20].) Utilizing this standard, the Rayford court concluded that movement of 105 feet is a “substantial distance,” and moving the victim out of public view substantially increased the risk of physical injury, and that such movement was not incidental to the intended sex crime.
People v. Salazar (1995) 33 CA4th 341, 345-46 upheld a conviction for kidnap under PC 208(d) based on an asportation of only 29 feet. Salazar’s analysis is suspect because it fails to recognize that both the substantial distance and substantial increase in risk of harm requirements must be satisfied. That is, Salazar failed to recognize that, unless the asportation is for a substantial distance, then not even a simple kidnap has been committed and, a fortiori, an aggravated kidnap was not committed either. Salazar’s misunderstanding is evidenced by the following specious attempt to distinguish between the 105 feet in Rayford and the 29 feet in Salazar: “Although the total distance of movement was greater in Rayford than under the present facts, the resulting increase in isolation and risk of harm was less. The added seclusion afforded by the wall and tree was certainly less than the added seclusion Maria faced while confined in the bathroom of the motel room…the jury could reasonably have concluded Maria’s forcible movement was not merely incidental to the attempted commission of rape, and substantially increased her risk of harm.” (Salazar 33 CA4th at 349.) Hence, rather than first determining whether the distance was substantial and then determining whether the risk of harm was substantial, Salazar held that the substantial distance determination may vary depending upon the risk of harm to the victim. (See also People v. Shadden (2001) 93 CA4th 164 [concluding that movement of nine feet to back room of video store was sufficient without considering issue of whether evidence was sufficient to establish a simple kidnapping].) Such an analysis blurs the distinction between substantial distance and increased risk of harm, and more importantly, the distinction between simple kidnapping and aggravated kidnapping. [See Brief Bank # B-892 and Brief Bank # B-893. for briefing on this issue.]
As Rayford recognized, a stricter test, above and beyond that necessary to prove simple kidnapping, is required for aggravated kidnapping. Logically, the legislature has determined that simple kidnapping, for which a lesser punishment is imposed, involves kidnapping without aggravating circumstances. On the other hand, aggravated kidnapping requires a simple kidnapping to which aggravating circumstances are added. The problem with the Salazar analysis is that it lumped both simple and aggravating kidnapping into the same test and permitted conviction for aggravated kidnapping in a case where the asportation distance would have been insufficient to sustain a simple kidnapping. Instead, the correct analysis is to first determine—independent of the risk of harm question—whether the asportation was for a substantial distance. Once the substantial distance factor is satisfied, then the inquiry may turn to the question of whether the kidnapping was aggravated.
To permit conviction and punishment for aggravated kidnapping in a case which does not satisfy the asportation requirement for simple kidnapping would violate the state and federal constitutional provisions regarding due process, trial by jury and cruel/unusual punishment. (U.S. Constitution 5th, 6th, 8th and 14th Amendments; Calif. Constitution Art 1 §15 and §16.) Furthermore, lack of a meaningful standard to distinguish between simple and aggravated kidnapping frustrates the intent of the legislature and arbitrarily imposes criminal liability in violation of the constitutional principles of equal protection and substantive due process. (U.S. Constitution 5th and 14th Amendments; California Const., Art. 1, §15 and §16; see Gray v. Whitmore (1971) 17 CA3d 1, 21.)
NOTE: This distinction is recognized in CJ 9.54 and 9.52.1.
(See FORECITE F 9.54d.)
CALJIC NOTE: See FORECITE F 9.52.1 n4.
F 1203 Note 5 Kidnapping To Commit Sex Offense: Requirement That Simple Kidnapping Be Committed
It is beyond question in California that simple kidnapping (PC 207) is a lesser included offense of aggravated kidnapping (PC 209). (People v. Ford (1966) 65 C2d 41, 49; People v. Mayes (1988) 202 CA3d 908, 910; Talamantez v. Superior Court (1981) 122 CA3d 629, 639; People v. Panky (1978) 82 CA3d 772, 776.) This means that the basic asportation element of PC 207 is also required for PC 209. (See generally People v. Lohbauer (1981) 29 C3d 364, 369; 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 (1992) 18 CA4th 1192, 1196; see also Magee v. Superior Court (1973) 34 CA3d 201, 215, fn 5 [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 (1994) 9 C4th 1, 14 [asportation for aggravated kidnapping is more stringent than for simple kidnapping]; People v. Martinez (1999) 20 C4th 225, 247 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. (1990) 493 US 342, 355 [107 LEd2d 708; 110 SCt 668]; Brown v. Ohio (1977) 432 US 161, 168 [53 LEd2d 187; 97 SCt 2221].) [See Brief Bank # B-858 for additional briefing on this issue.]
CALJIC NOTE: See FORECITE F 9.52.1 n6/9.54 n5.
F 1203 Note 6 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 [carjacking is necessarily included offense of kidnapping].
CALJIC NOTE: See FORECITE F 9.54 n1.
F 1203 Note 7 Applicability Of Two Pronged Daniels Test To Kidnapping For Robbery (PC 209)
See People v. Smith REV DISM/DEPUB (1992) 7 CA4th 58, 62 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 (1992) 18 CA4th 1192. And, in People v. Rayford (1994) 9 C4th 1, 21, the applicability of Daniels to PC 209 kidnapping was reaffirmed.
CALJIC NOTE: See FORECITE F 9.54 n2.
F 1203 Note 8 Kidnapping To Commit Robbery: Substantial Vs. Incidental Movement (PC 209)
In People v. Gonzales (1994) 21 CA4th 1648, 1653, 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 (1992) 18 CA4th 1192, 1196.)
(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 (1994) 21 CA4th 1648, 1652; however, this instruction could confuse the jury since the listed CJ elements do not include any reference to the term “incidental movement.”
CALJIC NOTE: See FORECITE F 9.54 n4.
F 1203 Note 9 Kidnapping: Convictions For Both Simple And Aggravated Kidnapping Not Permissible For The Same Course Of Conduct
(See FORECITE F 17.02 n13.)
CALJIC NOTE: See FORECITE F 9.50 n8.
F 1203 Note 10 Fraud Or False Promises As “Force Or Fear”
Voluntary movement by the victim accomplished solely through fraudulent representations, unaccompanied by an express or implied threat of force or harm to the victim, does not satisfy the “force or fear” element of kidnapping. As the California Supreme Court has stated, “In contrast to the use of force or fear to compel asportation, ‘asportation by fraud alone does not constitute general kidnapping in California.’ (See People v. Bell (2009) 179 CA4th 428, 440.) (People v. Davis (1995) 10 C4th 463, 517, fn. 13; People v. Green (1980) 27 C3d 1, 64, 63 [‘defendant tricked [victim] into believing she was simply being taken on a quick trip to her sister’s house and back’], . . . and People v. Hall (1986) 41 C3d 826, 834, fn. 3.) This long-standing rule is premised on the language of PC 207, which for general kidnapping, at issue here, requires asportation by force or fear, but for other forms of kidnapping proscribes movement procured only by ‘fraud,’ ‘entice[ment],’ or ‘false promises.’ (PC 207(a)–(d).)” (People v. Majors (2004) 33 C4th 321, 327 (Majors); see also People v. Stephenson (1974) 10 C3d 652, 657-660 [kidnapping convictions reversed where victims were deceived into thinking they were getting into a taxi].)
In Majors the defendant, posing as a security guard, accused the victim of shoplifting and ordered her into his van. He then transported her to a remote area, where he attempted to rape her. The victim testified she was afraid she would be arrested if she did not go with him. (Majors, supra, 33 C4th at pp. 324-325.) Although the defendant clearly used false pretenses, the court upheld the conviction because the defendant also induced fear of forcible asportation by the implied threat of arrest. Said the court: “[I]n those cases in which the movement was found to be by fraud alone, and not force or fear, the circumstances suggest the victim exercised free will in accompanying the perpetrator. By contrast, the threat of arrest carries with it the threat that one’s compliance, if not otherwise forthcoming, will be physically forced. Thus, the use of force is implicit when arrest is threatened.” (Id. at p. 331.) The court also rejected the Attorney General’s argument that the crime of kidnapping would be accomplished if the victim’s movement was compelled by fear of any type. Rather, after analyzing the legislative history of the statute (PC 207), the court concluded that the movement may be considered forcible only “‘where it is accomplished through the giving of orders which the victim feels compelled to obey because he or she fears harm or injury from the accused.'” (Id. at p. 327, italics added.)
F 1203 Note 11 False Threat May Satisfy Force Or Fear Element
See People v. Majors (2004) 33 C4th 321, 366-67.