Kidnapping/False Imprisonment
Category > Kidnapping/False Imprisonment
Updated 2/26/2024CALCRIM No. 1201 wrongly permits a jury to find deception itself is sufficient to prove general kidnapping. CALCRIM No. 1201 explains kidnapping when the victim is incapable of consent due to age or disability. The instruction erroneously allows deception as an alternative to force. The instruction was harmless in a case where the evidence was otherwise sufficient to prove kidnapping.id: 27263
Updated 2/26/2024Aggravated kidnapping convictions were reversed where the instruction permitted a conviction on an invalid theory.The jury instruction for aggravated kidnapping to commit extortion or exact money or property from another person - a modified version of CALCRIM No. 1202 - contained a prejudicial legal error permitting the jury to find defendant guilty of the charged offenses on the legally invalid basis of kidnapping to extract money from the kidnap victim. The convictions for aggravated kidnapping were reversed, but could be retried since evidence supported the convictions.id: 26497
The trial court erred by failing to instruct the jurors that the kidnapping qualifying circumstance for the one strike law requires an increased risk of harm.The trial court failed to properly instruct the jurors regarding the increased risk of harm element for the kidnapping qualifying circumstance under Penal Code section 667.61, subd(d)(2). The instruction given (CALCRIM No. 1215) did not require that the jury find that asportation substantially increased the risk of harm over that level of risk inherent in sex offenses. However, the error was harmless where the jurors otherwise impliedly found the movement of the victim increase the risk of harm to her.id: 25924
Evidence was insufficient to support the kidnap and kidnap for robbery convictions where the movement was done to facilitate the robbery.The evidence was insufficient to support the kidnapping to commit robbery convictions. The defendants walked the victims to the rear of the store and into the break room but they did so to achieve their objective of emptying the cages of merchandise without detection by shoppers or people outside. Their objective was robbery, not harm to the employees, and the record did not show that moving the victims to the back of the store resulted in a substantially increased risk of harm from the robberies. For the same reason, the evidence was insufficient to support the simple kidnapping although the evidence supported felony false imprisonment convictions.id: 25067
Evidence did not support the aggravated kidnapping enhancement where defendant ordered the rape victim to move from one room in a private residence to another. Evidence was insufficient to support the kidnapping enhancement findings because it failed to show defendant moved the victim a substantial distance and in a manner that substantially increased the risk of harm. After sodomizing the victim in one room in the apartment he ordered her to move less than 30 feet to another room. No evidence indicated the movement increased the risk of harm. id: 24969
The trial court erred by giving the post 1999 instruction on asportation for kidnapping where the crime occurred before that time. The trial court instructed the jury that kidnapping requires movement of the victim for a substantial distance which is determined by the circumstances. The latter part was taken from People v. Martinez (1999) 20 Cal.4th 225. However, defendant’s crimes took place before that time, and the court should have instructed on the law at the time of the offense - which was exclusively dependent on the distance involved. The error required reversal of the kidnapping conviction and the special circumstance based on kidnapping. It did not require reversal of the death verdict since there were three other valid special circumstances.id: 22274
Lack of consent is an element of kidnapping for ransom, and the CALCRIM instruction was incomplete for not addressing that element. CALCRIM No. 1202 on kidnapping for ransom is flawed because it fails to inform the jurors of the prosecution’s burden to prove the victim did not consent to being confined (or another predicate act) and that the defendant did not actually and reasonably believe the victim consented. The trial court erred by failing to instruct sua sponte on that element of kidnap for ransom. Moreover, in response to jury’s request for a definition of “kidnapping” the court erred by providing a truncated version of CALCRIM No. 1215 (with defenses deleted) so that the jury was never informed that a victim’s consent or the defendant’s reasonable belief in that consent are defenses to simple kidnapping. id: 21773
The kidnapping conviction was reversed where the jury was not instructed to determine whether the movement was incidental to the evasion.Defendant was convicted of evading an officer while driving recklessly and kidnapping. The trial court erred by failing to instruct the jury regarding movement incidental to the crime of reckless evasion. In fact, CALCRIM No. 1215 does not accurately reflect the law of simple kidnapping and the court found it should be modified. The jurors should have been instructed to acquit defendant of kidnapping if they found his movement of the victim was not substantial, taking into account, as one factor, whether the movement was incidental to the evasion.id: 21265
Where there was only one kidnapping - the kidnapping for robbery which gave rise to the two kidnapping enhancements - imposition of multiple punishment for each enhancement violated section 654.Defendant was convicted of kidnapping for robbery, forcible oral copulation, and rape. Enhancement allegations that he kidnapped the victim for the purpose of forcible oral copulation and rape were found true. Once the defendant was sentenced for the kidnapping he could not be given an unstayed sentence on either of the two kidnapping enhancements.id: 9904
Trial court erred in instructing that defendant had to prove the affirmative defense of necessity by a preponderance because necessity is an element of unlawful child detention.In a prosecution for child detention without a court order (Penal Code section 277) the trial court erred in instructing the jury that the defendant has the burden of proving the defense of necessity by a preponderance of the evidence, because lack of necessity is an element of the offense as to which the defendant only had to raise a reasonable doubt.id: 9903
Kidnapping cannot be divided into separate acts which result in multiple convictions.Defendant was convicted of three counts of kidnapping. His simple kidnapping conviction was reversed because it was necessarily included within the offenses of kidnapping to commit robbery and kidnapping to commit sodomy. The prosecution had argued that the simple kidnapping was based on the act of forcing the victim from her apartment stairway to her car. However, kidnapping cannot be divided into separate acts which result in multiple convictions.id: 15350
Evidence did not support the kidnapping for robbery conviction where defendant moved the store employees to the back of the store to facilitate the robbery.Defendant robbed the jewelry store by forcing the two employees to move about 50 feet to the office at the back of the store. Confining the women in the back of the store gave defendant free access to the jewelry and allowed him to conceal the robbery from any entering customers who might have thwarted him. The movement of the two women was "merely incidental" to the robbery and did not increase the risk of harm to them. Therefore, the evidence was insufficient to support the conviction of kidnapping to commit robbery. id: 17054
Evidence did not support kidnapping-for-robbery or the kidnapping-murder special circumstance where it was not shown the victim was alive while dragged away.The evidence showed that after the stabbing, the defendant dragged the victim over 100 feet to a place that was difficult to see from the road. However, the evidence was insufficient to prove that the victim was still alive at the time of the dragging. Therefore, the court reversed the kidnapping-for robbery conviction and kidnapping-murder special circumstances. id: 16709
Separate punishment is not permitted where the sole objective of the kidnapping is to facilitate the rape.A person kidnaps his victim, drives her into a desert, then rapes her and leaves her behind. Pursuant to Penal Code section 654 he may not be punished for the kidnapping as well as the rape because the sole objective of the kidnapping was to facilitate the rape. This result was first established in <i>Neal v. State of California</i> (1960) 55 Cal.2d 11, and the instant Court questioned but refused to overrule the decision.id: 9781
Movement of a victim 40 feet across a parking structure was insufficient to support a conviction for kidnapping.Defendant moved the victim at gunpoint approximately 40 feet across a parking structure in his unsuccessful effort to get her into his van. The entire movement was within the parking structure and the risk of harm to the victim was not increased by the movement of this short distance. The evidence of asportation was legally insufficient to support a conviction for kidnapping under Penal Code section 207, subdivision (a). However, the evidence did support the crime of attempt to kidnap (section 664/207) as defendant was unsuccessful in getting the victim into his van because she broke free and ran away from him.id: 9775
Kidnapping for extortion instruction failed to clarify the concept of a defendant's demands for official acts by police officers.When instructing on the crime of kidnapping for extortion the trial court erred in failing to clarify the concept of an official act on the part of the police officers. Certain acts by the officers, such as attempting to persuade defendant to surrender or stationing themselves outside his house, were not official acts. However, the error was harmless given the overwhelming evidence of defendant's demands for the performance or nonperformance of official acts.id: 9771
Kidnapping conviction and special circumstance were reversed where the case was submitted on a legally inadequate theory suggesting movement of 37 feet would support a conviction.Defendant was convicted of murder along with a special circumstance that the killing occurred during a kidnapping. The instructions given along with the prosecutor's argument would have allowed a conviction based upon movement of the victim of a distance (37 feet) that was legally insufficient to support kidnapping at the time of the offense. While the prosecutor also argued the crime based on a separate movement that would have supported the asportation element of the kidnapping, it could not be determined whether the jury convicted defendant based on the legally inadequate theory. Therefore, the kidnapping conviction and kidnapping special circumstance were reversed.id: 19954
The trial court's error in failing to instruct that kidnapping with the intent to rape requires movement with an increased risk of harm to the victim is subject to the Chapman harmless error test.Defendant was convicted of kidnapping with intent to commit rape under Penal Code section 208, subdivision (d). The court instructed that section 208, subdivision (d) requires that the movement of the victim must be more than that which is merely incidental to the commission of the rape. After defendant filed his opening brief the California Supreme Court published People v. Rayford (1994) 9 Cal.4th 1, which held that section 208, subdivision (d) also requires the movement must substantially increase the risk of harm to the victim. Rayford applies to all cases (such as this one) that were not final when the decision was announced. The trial court therefore erred in failing to instruct on the element of increased risk of harm. However, the error was subject to the harmless error test set forth in Chapman v. California(1967) 386 U.S. 18. The error was harmless beyond a reasonable doubt where the uncontradicted evidence showed the extraordinary danger experienced by the victim was substantially greater than that present in the crime of rape.id: 9784
While the pulling of the victim towards the car supported felony false imprisonment, the trial court erred by failing to instruct on the misdemeanor.Evidence that defendant used force to pull the victim towards his car was sufficient to establish force above that required for misdemeanor false imprisonment. However, the court erred by
failing to instruct on misdemeanor false imprisonment. The error was prejudicial where the facts were sufficiently ambiguous that a conviction of the lesser fact might have been justified
depending on the amount of force used.id: 18981
Failure to obtain an admission that the kidnapping was done with the intent to commit a sex offense under section 208, subd. (d) required a remand.Penal Code section 208, subd. (d) provides for an enhanced term if the kidnapping is accomplished for the purpose of committing rape. Defendant never admitted that the kidnapping was done with the intent to commit a sexual offense, so the section 208, subd. (d) finding could not stand. The matter was remanded for further plea proceedings as to that allegation only.id: 9760
Evidence did not support felony false imprisonment where the only evidence of menace or threat of harm was the glaring of defendant at victim.Defendant was convicted of felony false imprisonment pursuant to Penal Code section 237. The evidence established that he prevented the victim from leaving by grabbing her wrist, yelling at her not to go and by thwarting her attempts to leave by glaring and approaching her every time she got up to leave. The evidence did not support a finding the false imprisonment was effected by menace. The only evidence of menace or an implied threat of harm was the earlier sexual assaults causing pain and the subsequent glaring. This was insufficient to establish an express or implied threat of harm absent evidence of a verbal threat or a weapon display. The judgement was modified to reflect a conviction of the lesser included offense of misdemeanor false imprisonment.id: 9758
Defendant was properly convicted of kidnap for ransom and kidnap for robbery involving one victim although only one sentence was proper.Contrary to defendant's contention it was proper to convict him of both kidnapping for robbery and kidnapping for ransom in a transaction involving a single victim. However, Penal Code section 654 precluded the imposition of multiple sentences where the crimes were directed toward a single goal. Therefore, sentencing on one kidnap and its enhancement was stayed.id: 9754
Court prejudicially erred in instructing that forcibly moving the victim 500 feet or more "is sufficiently substantial to sustain a kidnapping conviction".Defendant was charged with simple kidnapping under Penal Code section 207, subd. (a). The jury was instructed the People must prove the movement of the victim was for a "substantial distance". They were then instructed that movement of 500 feet or more "is sufficiently substantial to sustain a kidnapping conviction." Such a conclusive, mandatory presumption relieved the prosection of it burden of proving every element of the crime because a finding the victim was moved 500 feet or more does not compel a finding the distance was "substantial". The error was prejudicial where a reasonable juror could have determined, based on the evidence, the victim was not moved a substantial distance.id: 9748
Court erred in refusing the request to instruct on misdemeanor false imprisonment as a lesser included offense of felony false imprisonment.The trial court committed reversible error when it rejected defense counsel's request to give an instruction on misdemeanor false imprisonment, a lesser included offense of felony false imprisonment. The court reasoned that force was solely an element of felony false imprisonment and since force was present an instruction on the lesser included offense would be confusing. However, force is an element of both felony and misdemeanor false imprisonment. Because the legal basis for the court's refusal to give the requested instruction was erroneous and because there was ample evidence to warrant the giving of the instruction, the error was prejudicial.id: 9747
Court erred in failing to instruct on the lesser included offense of misdemeanor false imprisonment where there was evidence of a lack of force.False imprisonment under Penal Code section 237 is punishable as a felony if, and only if, it is effected by violence, menace, fraud or deceit. The instant victim testified that force was used and defendant testified to the contrary. The jury could reasonably have found defendant's testimony, especially since it was corroborated with the testimony of his mother and aunt, credible, while disbelieving the victim's claim that defendant held a knife to her throat and threatened her life. The court committed reversible error in failing to instruct, sua sponte, on the lesser included offense of misdemeanor false imprisonment.id: 9745
A defendant may be convicted of only one kidnapping offense where there is but one abduction and detention of a solitary victimThe evidence was insufficient to support two kidnapping for robbery charges. Defendant's act of kidnapping the victim from the Long Beach Mall with the intent of robbing her was a continuous kidnapping offense, even though defendant stopped the car to commit numerous sexual offenses and then drove on to the victim's Redondo Beach apartment. Although the defendant's plan for obtaining money from the victim may have changed in approach during the course of the kidnapping, the initial kidnapping did not end with the commission of the sex offenses, and there was only one continuous kidnapping.id: 9739
Court committed reversible error in instructing that movement of a victim 500 feet is substantial for kidnapping purposes.The trial court committed error in instructing the jury that as a matter of law, movement of a victim 500 feet is substantial for purposes of kidnapping. The error was prejudicial because it removed from the jury's determination an element of the offense and triggered a guilty verdict. The issue of substantial distance is one of fact for the jury to decide, not one of law for the court to decide.id: 9743
Attempted carjacking and attempted kidnapping are lesser included offenses of an attempt to violate section 209.5, subd.(a).Attempted carjacking and attempted kidnapping are lesser included offenses of attempted kidnapping during a carjacking under Penal Code section 209.5, subd.(a). Therefore, because defendant was convicted of violating section 209.5, subd.(a), his conviction for attempted carjacking must be reversed.id: 19743
False imprisonment conviction was stricken because it is a necessarily lesser included offense of kidnapping.Defendant's false imprisonment conviction was stricken as an improper double conviction because he was also convicted of kidnapping and false imprisonment which is a necessarily lesser included offense of kidnapping.id: 9762
Court's error in failing to define "abandonment" at defendant's child abduction trial was harmless in light of the overwhelming evidence.Defendant was convicted of child abduction under former Penal Code section 278. The state's theory was that he had abandoned the child (his natural son) thereby giving up his right to custody. The trial court erred in failing to provide the jury with the definition of "abandonment". However, the error was harmless since the evidence conclusively established that defendant abandoned the child under any definition of the term.id: 15344
Updated 6/1/2024Evidence of victim’s intoxication was sufficient to trigger the relaxed force standard and supported the conviction of kidnapping to commit rape.Defendant was convicted of kidnapping to commit rape. The trial court did not err by instructing that the force element would be met with evidence of deception. Evidence that the victim’s intoxication level impaired her judgment was sufficient to support the conviction.id: 28267
Updated 3/6/2024The trial court did not err by failing to specify defendant's illegal intent or purpose when instructing on the kidnapping of an infant charge.Defendant was convicted of kidnapping an infant. He argued that the kidnapping required an illegal intent. The court failed to define what illegal intent or purpose he may have had in taking the child. However, the defense never claimed an innocent taking and the instruction given was sufficient. The trial court also had no duty to modify the asportation element sua sponte to instruct the jury to consider whether defendant's movement of the child was incidental to child endangerment.id: 26514
Updated 2/26/2024Defendant charged with kidnapping was properly convicted of attempted kidnapping even though the latter is not a lesser included offense of the former.Attempted kidnapping is not a lesser included offense of completed kidnapping, but Penal Code section 1159 authorizes conviction for an uncharged attempt to commit a charged offense even if the attempt is not necessarily included in the charged offense. id: 26376
Updated 2/26/2024Evidence supported the kidnapping conviction where defendant moved the victim 190 feet at gunpoint.Defendant argued that he moved the victim too short a distance to count as kidnapping. However, using a gun he ordered her out of her bed and to his car that was 190 feet away. This was not a trivial distance as a matter of law.id: 26409
Updated 2/26/2024The trial court did not err by failing to instruct that if the kidnapping victim was too drunk to lack the capacity to consent that defendant could not be convicted.Defendant was convicted of kidnapping and other offenses. The trial court did not prejudicially err by failing to instruct that if the kidnapping victim was so intoxicated as to lack the capacity to consent, then defendant could not be found guilty of kidnapping unless he acted with an illegal purpose or intent.id: 27006
Updated 2/24/2024Defendant did not commit kidnapping for the purpose of robbery where he used a gun to back the victim up four steps towards an alley before taking his wallet.Defendant used a gun to back the victim up four steps towards a dark alley where the defendant took the victim’s wallet. Defendant was convicted of both robbery and kidnapping to commit robbery. However, the evidence did not support the kidnapping conviction because the movement of the victim was merely incidental to the robbery.id: 26599
Updated 2/24/2024Defendant who took a person without consent to engage in prostitution was properly convicted of kidnapping and kidnapping for extortion rather that the more “specific” offense described in section 266a. Defendant argued that his kidnapping and kidnapping for extortion convictions had to be reversed because the conduct underlying those charges could only be prosecuted under the more specific statute, Penal Code section 266a, which prohibits the taking of a person against his or her will for the purpose of prostitution. However, both kidnapping offenses contemplate more culpable conduct than section 266a, and it’s reasonable to infer that the Legislature intended to punish that conduct more severely.id: 26610
Updated 2/24/2024Defendant who kidnapped the victim in order to obtain prostitution services from her was properly convicted of kidnapping for extortion.Defendant argued there was insufficient evidence to support his conviction for kidnapping for extortion because the conduct the prosecution relied on did not qualify as extortion under Penal Code section 518. Defendant kidnapped the victim in order to obtain prostitution services from her and his conduct qualified as extortion.id: 26611
Updated 2/24/2024While the kidnapping for extortion instruction contained an incorrect statement of law it did not contribute to the jury’s verdict.The kidnapping for extortion instruction found in CALCRIM No. 120 contained an incorrect statement of law as it failed to make clear that the defendant must act for purposes of exacting something of value from a person other than the kidnap victim. However, there was no reasonable likelihood that the jurors applied the challenged instruction in an impermissible manner.id: 26612
Updated 2/4/2024Aggravated kidnaping provisions are not unconstitutionally vague.The aggravated kidnaping offense described in Penal Code section 209(b) and the One Strike Law is not void for vagueness since it requires the jury to assess whether the defendant’s movement of the victim was merely incidental to the robbery and whether the movement substantially increased the risk of harm. id: 27299
Updated 2/3/2024Defendant’s child abduction conviction was supported by substantial evidence despite the fact that the UK’s return order was not registered in California.Defendant was convicted of abducting his eight year-old daughter (Penal Code section 278) after failing to return her to her mother in the United Kingdom. The fact that the U.K. court’s return order was never registered in California was not evidence that he lacked a right to custody.id: 27855
Updated 2/2/2024There is a relaxed force requirement for the kidnap of an intoxicated adult victim.Defendant was convicted of kidnap with the intent to commit rape. The victim was an intoxicated adult. The force required to kidnap an intoxicated adult victim is not the same as the force required to kidnap an unimpaired victim. Instead, the force required is akin to the relaxed force requirement applicable to infants and children – that is, the defendant need only use the physical force needed to take the victim away a substantial distance for an illegal purpose.id: 27895
Kidnapping for extortion based on aiding and abetting was established where the crime was in progress when defendant learned of it.The evidence supported defendant’s kidnapping for extortion conviction as an aider and abettor even though he didn’t learn of the kidnapping until it was in progress. Defendant arrived at the house and participated in keeping the victims captive and that evidence supported the conviction.id: 26136
Evidence supported the modification to CALCRIM No. 1203, where moving the kidnap victim to the trunk could be considered an act intended to aid in the escape from the robbery.Defendant was convicted of kidnapping to commit robbery and other offenses. He argued the trial court erred by modifying CALCRIM No. 1203 to specify that the intent to commit robbery included the intent to aid in the escape from the robbery. He claimed there was no evidence to support a theory that asportation of the victim was done to effectuate the escape. However, evidence supported the theory that the robbers’ intent in moving the victim to the trunk, was at least in part, to aid in their escape.id: 26049
Error in instructing that asportation for simple kidnapping requires consideration of factors other than distance was harmless where defendant was convicted of aggravated kidnapping.The trial court erroneously instructed that the jury could consider factors other than distance when considering asportation for simple kidnapping, but the error was harmless where defendant was convicted of aggravated kidnapping on which the jury was properly instructed.id: 25700
Evidence supported felony false imprisonment given the extra force used in the sex acts after defendant had restrained the victim.The 240 pound restaurant manager was convicted of the felony false imprisonment of a 100 pound employee he locked in a small office while he sexually assaulted her. The evidence supported the felony version of false imprisonment given the vulnerability of the victim and the character of defendant’s acts that including grabbing her breasts and vagina, and masturbating on her. The evidence showed that he used force beyond that necessary to restrain the victim, and that established the felony.id: 24823
Asportation element of aggravated kidnapping and One Strike Law provision is not impermissibly vague.Defendant argued the aggravated kidnapping and One Strike Law aggravated kidnapping statutes (Penal Code sections 209 and 667.61) are impermissibly vague because the asportation element - movement of the victim beyond that merely incidental to the crime, and increasing the risk of harm to the victim - fail to give citizens fair warning of the crime. However, the asportation requirements in sections 209 and 667.61 are sufficiently clear and not void for vagueness.id: 25335
The trial court erred by using the enlarged definition of asportation for a kidnapping offense that occurred before the new definition.The trial court erred when instructing on the kidnapping-murder special circumstance by using a definition for asportation that didn’t exist at the time of the offense. Using the enlarged definition of asportation was harmless in light of the evidence regarding that element.id: 25178
Evidence supported the aggravated kidnapping circumstances under the One Strike Law where, after the sexual assault, defendant forced the victim into his car and drove to a liquor store.Defendant was convicted of forcible oral copulation along with an aggravated kidnapping circumstance under the One Strike Law - Penal Code section 667.61, subd.(d)(2). He argued there was insufficient evidence to support the aggravated kidnapping finding because the kidnapping did not occur until after the sex act was completed. However, evidence supported the allegation where, after the sexual assault, defendant forced the victim into his car, against her wishes, and drove her a few miles to a liquor store. Until arriving at the store her only chance to escape was to jump from the moving car.id: 24599
Evidence supported the kidnapping convictions where the defendant/police officer transported suspected prostitutes to an area where they engaged in sex instead of being taken to jail. Defendant was a police officer who induced five women to provide sexual favors to avoid being taken to jail. He was convicted of various offenses but argued the evidence did not support the kidnapping convictions and enhancements because the women consented to the movements, and were under lawful arrest at the time of the movements. However, even if the victims were initially under lawful arrest, that status changed at the time defendant offered sex as an alternative to jail. One victim was not under lawful arrest when defendant transported her after an unreasonable search of her body. id: 24668
Defendants were properly convicted of child custody deprivation by taking the children to Mexico rather than to their parental grandparents pursuant to the family law court order.Defendants were convicted of child custody deprivation in violation of Penal Code section 278.5, subd.(a). They argued the underlying order of the family court did not confer custody or visitation rights on the paternal grandparents and thus there was no violation of the statute. However defendants took the children to Mexico instead of complying with the order to take them to their grandparents for an extended visit. Section 278.5 did not require that the grandparents be a party to the family court proceedings.id: 24145
Technical defect in verdict from referring to false imprisonment by violence was harmless where the record showed menace, if not violence.Defendant argued his felony false imprisonment by violence evidence conviction should have been reduced to misdemeanor false imprisonment because there was insufficient evidence of violence. The verdict form identified the offense as false imprisonment by violence, and while the evidence may have shown menace, another way to increase the offense to a felony, it did not show violence. However, the failure to mention false imprisonment by menace in the verdict form was a mere technical defect and reversal was not required where the record showed that jury wanted to convict defendant of the felony offense. id: 24155
The trial court erred by applying section 654 to one of the false imprisonment convictions because false imprisonment by menace is a crime of violence.Defendant was convicted of false imprisonment of two people during a robbery. The trial court erred by staying imposition of one of the felony false imprisonment counts under Penal Code section 654. False imprisonment by menace, the offense defendant committed is an act of violence for purposes of section 654. Therefore, the court should have imposed consecutive sentences on both false imprisonment counts.id: 24156
Movement of the robbery victims up the front stairs and into the house increased the risk of harm to the victims and supported the aggravated kidnapping convictions. Defendants argued the evidence from the two home robberies was insufficient to support the aggravated kidnapping convictions because any movement to the victims was incidental to the robberies and didn’t increase the risk of harm to the victims. In one case, they moved the victims up the front stairs and into the house. In the other case, they moved the victim from the driveway, up the front stairs and into the house. In each case, the movement allowed defendants to engage in more dangerous crimes outside the public view.id: 23996
The jury understood that for purposes of aggravated kidnapping it had to find the movement of the victim substantially increased the risk of harm.Defendant argued the aggravated kidnapping instruction was flawed because of the court’s failure to note the movement of the victim must “substantially” increase the risk of harm. However, other instructions and the court’s answer to a question informed the jurors they had to find the movement substantially increased the risk of harm. id: 23997
Section 209.5 requires that there be an intent that the kidnapping facilitate a carjacking even if there are other concurrent intents for kidnapping. Defendant argued that while there was sufficient evidence of both kidnapping and carjacking there was insufficient evidence that the kidnapping was committed to facilitate a carjacking for purposes of Penal Code section 209.5. However, the evidence showed defendant kidnapped the victims for the dual purpose of taking them and their BMW. The law does not require that the sole or primary intent of a section 209.5 offense be to facilitate a carjacking.id: 22882
Evidence did not support an instruction on simple kidnapping as a lesser included offense of kidnapping to facilitate a carjacking.The trial court did not err by failing to instruct on simple kidnapping as a lesser included offense of kidnapping during a carjacking because there was no evidence in the record to support a finding that defendant was guilty of simple kidnapping but not the aggravated offense.id: 22883
Aggravated kidnapping does not require proof that movement substantially increased the risk of harm to the victim. Defendant was convicted of aggravated kidnapping and sexual assault, along with a finding under the one strike law that the victim was kidnapped. He argued the prosecution failed to prove his movement of the victim substantially increased the risk of harm. However, Penal Code section 209, subd.(b)(2) requires the prosecution to prove that the movement of the victim was more than incidental and increased the risk of harm. But it does not require proof the movement substantially increased the risk of harm. Here, evidence showed moving the victim away from the back of the garage to the front near a large tub of water was more than incidental and increased the risk of physical and psychological harm.id: 22867
Evidence supported felony false imprisonment where defendants broke into the victim's apartment and told her to hide them from the police. Defendants and other gang members were congregating in front of an apartment building. When police arrived defendant ran into the building, up a ventilation shaft and entered the apartment of a woman with four children. They had gang tattoos and told the woman to hide them from the police. Defendants later argued the evidence did not support the felony false imprisonment conviction because of the lack of menace or violence and that the convictions had to be reduced to misdemeanors. However, defendants created a climate of fear and intimidation and the evidence supported the felony convictions.id: 22931
Evidence supported the kidnap for robbery conviction where the movement of the victim around her house was not necessary to facilitate the robbery. Defendant argued the evidence did not support his kidnap for robbery conviction because his movement of the victim around her own property was merely incidental to the robbery. However, defendant had already taken the victim’s phone and cash, and the movement from the kitchen to the bedroom was unnecessary to facilitate the robbery.id: 22603
Evidence supported the kidnapping conviction where defendant took a developmentally disabled woman 115 feet behind a dumpster and raped her.Evidence supported the defendant’s conviction of kidnapping where he took a developmentally challenged stranger 115 feet from the Boston Market to a secluded dumpster area where he raped her. While he walked with his arm around her shoulders, she asked about her husband, demonstrating fear, and that fear grew when defendant smoked drugs, began making sexual advances and took her to the secluded area. Evidence supported the conviction despite the lack of verbal threats. That she cried and pleaded with him to stop showed the lack of consent.id: 22073
Evidence supported asportation for kidnapping purposes where defendant pointed a gun at the victim and followed him 15 feet into the victim's apartment.Defendant was looking for TMC gang members. He pointed a gun at Luna in a public area and followed him 15 feet into Luna's apartment to look for gang members. Luna testified he was scared and just followed defendant's directions. Viewed in the light most favorable to the prosecution, the evidence supported the asportation element for kidnapping. The trial court did not err in denying defendant's motion for acquittal.id: 22124
There was sufficient evidence of (implied) force for misdemeanor false imprisonment where the six year-old victim followed defendant who was carrying away the
victim’s younger cousin.Defendant was convicted of misdemeanor false imprisonment
of a six year-old girl. He argued the evidence did not support the conviction since the victim
voluntarily followed him as he carried her four year-old cousin down the stairs using no force.
However, the force was established where the young victim followed defendant out of fear for her cousin’s safety. The continuing threat to four-year old was sufficient to constitute the implied force upon the six year-old victim.id: 21332
Defendant’s act of picking up a four year-old stranger and moving her beyond the security gate constituted force for purposes of false imprisonment. The evidence was sufficient to support defendant’s conviction for felony false imprisonment of the four year-old girl. He was a stranger who picked up the girl and carried her 70 feet beyond the security gate of the apartment building. The element of force was satisfied by moving the unresisting child. While force established misdemeanor false imprisonment there was also sufficient evidence of
menace elevating the crime to a felony where defendant hugged the girl and asked about her parents, and fraud where he said he wanted to take her to a restaurant.id: 21331
Kidnapping for rape is committed where the defendant uses only the amount of force necessary to take away an incapacitated person.Defendant argued the trial court misinstructed the jury on the elements of kidnapping for rape where the victim was incapacitated. However, Penal Code section 209, subd.(b)(1) extends to a taking and asportation of an incapacitated person to commit rape where the perpetrator uses only the amount of force necessary to effect the taking and asportation of an incapacitated person, rather than “something more” than that amount of force.id: 21078
Defendant had no consent-to-kidnapping defense under Washington or California law where she took her nine year-old daughter at gunpoint after losing custody.Defendant was convicted of murder along with a felony-murder (kidnapping) special circumstance. After losing custody, defendant forcibly took her daughter from Washington, and the nine year-old girl was killed weeks later in a California campground. Under Washington law, children under 16 cannot consent to be taken. Defendant argued that under California law the jury could have found the victim consented as she willingly ran to her mother and was not frightened. However, even under California law, a nine year-old ordered into a car at gunpoint by her mother and her mother's boyfriend, is not capable of consenting to the taking. Moreover, the defense did not become viable once defendant brought her daughter to California and remained for several weeks. Defendant had no defense of consent to the kidnapping. Moreover, the provisions allowing the use of kidnapping for felony murder or the special circumstance are not vulnerable in that California's definition of kidnapping may incorporate the laws of another state.id: 18926
The court did not err by failing to instruct that the kidnapping ended once the victim consented to the journey.Defendant, who lost custody of her daughter, took her at gunpoint in Washington state and moved her to California where they remained for several weeks before the girl was killed. Defendant argued the trial court's instructions failed to convey to the jury that a kidnapping ends when the forcible aspect of the detention ends and the victim is no longer being transported against her will. However, the instruction properly informed the jury that kidnapping continued until the victim is freed and reached a place of safety. The court's slight modification of the pattern instructions to fit the facts of the case was not improper.id: 18927
Evidence supported kidnapping during a carjacking where the kidnapping was committed to assist an escape or prevent an alarm from being sounded.Defendant argued there was insufficient evidence to support his conviction of kidnapping during the commission of a carjacking under Penal Code section 209.5. The offense requires that the kidnapping be committed to "facilitate" the carjacking. Defendant claimed that since he already had the car keys, the kidnapping did not make the removal of the car any easier. However, the conviction was proper in light of the evidence that defendant intended the kidnapping to effect an escape or prevent an alarm from being sounded.id: 14840
Evidence supported felony false imprisonment where defendant held a gun during his imprisonment of the victim.Defendant argued the evidence was insufficient to establish felony false imprisonment under Penal Code section 237. However, defendant’s act of continuously and openly holding a gun throughout his imprisonment of the victim clearly implied a threat to use the gun if the victim did not comply. The evidence therefore supported the finding of felony false imprisonment.id: 20360
CALCRIM 1203 adequately expresses that kidnapping for robbery requires an intent to rob. CALCRIM No. 1203 does not expressly state that kidnapping for robbery includes an intent to rob. However, the requirement
is adequately expressed in the language of the instruction.id: 20035
Moving the victims behind the complex where they were less visible supported the kidnapping and one strike charges. Defendant moved the victims from the courtyard in front of the apartments where they could be seen by several units to an area behind the complex that was far less visible. By doing so, he substantially increased the risk of harm for purposes of
kidnapping and the one strike allegation.id: 19538
Moving the victim to a motel room or an isolated cemetery was not incidental and increased the harm for purposes of kidnapping to commit a sex offense.Defendant ordered the victim to go to a motel or a nearby cemetery in order to have sex. If she refused he threatened to harm her family. The locations he chose decreased the risk of detection and made it easier for him to videotape the activity. This allowed him to engage in longer sessions and the filming increased the risk of psychological harm to the victim. There was sufficient evidence that the movement of the victim was more than incidental to the underlying offense and increased the risk of harm, thereby supporting the convictions of kidnapping to commit a sex offense.id: 20053
Evidence showed an intent to rob for purposes of aggravated kidnapping where defendants knew the victim was carrying $700 before they put her in the car.Defendant argued the evidence did not support the conviction for aggravated kidnapping because the evidence of an intent to rob was not formed until after they put the victim in the car. However, the evidence showed defendants lured the victim to the park so that should could be ambushed and assaulted knowing that she was carrying $700 they could take.id: 20038
Defendant's threats to the victim's family if she refused to comply with his requests for sex constituted fear to support kidnapping for purposes of a sex offense.There was sufficient evidence that the victim's movement was induced by force or fear to support the conviction of kidnapping to commit a sex offense where the defendant had written the victim letters threatening the safety of her family if she failed to comply with his requests.id: 20052
Evidence showed defendant imprisoned the young girls by menace where he laid his hands on one of the crying girls and threatened to "do something" if they did not comply with his order.Defendant argued there was insufficient evidence of menace and violence to support his conviction for felony false imprisonment. However, defendant accosted two young girls, and laid his hands on them causing them to cry, and told them if they did not sit in the middle of the street he would "do something." These words alone constituted evidence of an implied, if not express, threat of harm.id: 20012
Asportation element of simple kidnapping was not impermissibly vague.The asportation element of simple kidnapping under Penal Code section 207, requiring movement of a "substantial distance" was not impermissibly vague under the statutory construction that existed at the time of defendant's offense.id: 19953
Attempted kidnapping during the commission of a carjacking does not require a completed carjacking.Kidnapping during the commission of a carjacking under Penal Code section 209.5, subd.(a) requires a completed carjacking. However, a completed carjacking is not a prerequisite for an attempt to violate section 209.5, subd.(a).id: 19742
The movement at gunpoint of a club employee from outdoors to indoors was not merely incidental and increased the risk of harm thereby supporting the aggravated kidnapping conviction. Defendant committed robbery of the managers of the Bingo
club. He and his associates gained entry to the club by bringing a maintenance worker, at gunpoint, to the door. Defendant committed robbery by means of kidnapping and was therefore properly convicted of aggravated kidnapping.id: 19487
Evidence of menace supported the false imprisonment conviction as defendant, seeking to get a prostitute into his car, placed his arms around her trapping her between him and the fence. Defendant was convicted of several offenses including pimping and
the false imprisonment of a girl he wanted to work for him. Evidence of menace supported the latter conviction as the girl attempted to walk away from the defendant who surrounded her with
his arms as his hands clenched the chain link fence, and told her he wanted her in his "starting line up."id: 19374
Nine year-old was a young child for purposes of the kidnapping law which requires less force when the victim is an unresisting infant or young child.The degree of force necessary to establish the kidnapping of an unresisting infant or young child is simply the amount
of force required to take and carry the child away a substantial distance for an illegal purpose or with an illegal intent. Defendant deceived a nine year-old child into voluntarily accompanying him and then moved her a substantial distance before trying to kill her. This was sufficient force to support the kidnapping conviction.id: 19329
Asportation element of kidnapping was established after defendant moved the victims to the back office under threat of death after abandoning the planned robbery. Evidence supported the finding that the movement of four victims was not incidental to the commission of the attempted robbery for kidnapping purposes. The movement of the victims had nothing to do with facilitating taking cash from the bingo hall. Defendant and his companion had aborted the plan and their seclusion of the victims in the back office under threat
of death was clearly excess and gratuitous.id: 19287
Movement of the victim off the road and down a 12 foot embankment supported the aggravated kidnapping conviction.Defendant forced the victim in the middle of the night from the side of the road to a spot in a orchard 25 feet away and 10 to 12 feet below the level of the road. The evidence of asportation was sufficient to support the conviction of
aggravated kidnapping.id: 19240
Movement of the victims 25 feet from the public area of the bank to the vault was incidental to the robbery, and evidence did not support kidnap for robbery.Defendant was convicted of kidnapping for the purpose of robbery. However, the evidence was insufficient to support the conviction since the brief movement of the manager and teller from the public area of the bank to the vault room was incidental to the robbery.id: 18398
That defendant continually detained the victim from the time of the initial carjacking to the time of the shooting did not prevent conviction for both kidnapping for robbery and kidnapping for carjacking.Defendant argued there was only one kidnapping so the evidence did not support convictions for both kidnapping for robbery and kidnapping for carjacking. The jury could reasonably have concluded that defendant initially kidnapped the victim as part of the carjacking and only later formed an intent to rob him of his possessions. However, while defendant could be convicted of both offenses, punishing him for both was improper since there was a single act and objective - escape to a place of temporary safety.id: 18337
Evidence supported the kidnapping for robbery charge where defendant forced the victim into the garage and then to drive away although they only drove a few feet.Defendant forced the robbery victim into the garage and to drive away from the residence, which was surrounded by a SWAT team. While the distance traveled was not great - the car was about five yards from the garage when stopped - the movement was not incidental to the robbery.id: 18338
Evidence supported the two kidnapping for carjacking convictions where the movement of the victims was not merely incidental to the carjacking.Evidence supported defendant's two convictions of kidnapping for carjacking. The first victim was moved several miles from the location of the carjacking to an isolated area. The second victim was only moved out of his driveway (before being apprehended) but the movement was not merely incidental to the carjacking.id: 18339
Evidence supported aggravated kidnapping conviction where defendant dragged the victim 133 feet into an unlit area to avoid detection.Defendant argued there was insufficient evidence to support the aggravated kidnapping conviction. He forcibly moved the intended rape victim 133 feet at night into an unlit area where he was less likely to be detected. Such movement was not merely incidental to the crime of kidnapping to commit rape. It also increases the risk of harm to the victim and supports a conviction of aggravated kidnapping.id: 18004
Evidence that a victim entered a defendant's vehicle under threat of arrest was sufficient to satisfy the force or fear element of section 207(a) kidnapping.An implicit threat of arrest satisfies the force or fear element of Penal Code section 207, subd.(a) kidnapping if the defendant's conduct or statements cause the victim to believe that unless the victim accompanies the defendant the victim will be forced to do so, and the victim's belief is objectively reasonable.id: 17966
The kidnapping statute was not preempted by the child abduction law.Defendant was convicted of kidnapping (and murdering) his infant son. He argued the kidnapping conviction under Penal Code section 207, subd.(a) had to be reversed because the crime was preempted by the more specific child abduction law under section 278. However, in light of the different purposes of the two statutes, it is clear the Legislature did not intend the child abduction law would preclude application of the kidnapping statute. Moreover, the preemption doctrine prohibiting prosecution under a general statute did not apply since the crimes have different elements even when an infant is involved, and a violation of the child abduction statute by a noncustodial parent will not necessarily result in a violation of the kidnapping statute.id: 17327
A noncustodial parent may be convicted of kidnapping if the intent and purpose of the movement is to illegally separate the child from the parent who has lawful custody.Defendant was convicted of kidnapping his infant son. He argued the trial court erred in instructing the jury on the "illegal intent or purpose" element of kidnapping. However, contrary to defendant's claim, there is no legal impediment to holding that a noncustodial parent may be convicted of kidnapping if the intent and purpose of the movement is to illegally separate the child from the parent who has lawful custody.id: 17328
Instructing on the illegal purpose element in the kidnap of an infant did not negate the earlier instruction regarding the requirement that felony murder during a kidnapping requires proof of a specific intent to kidnap.The trial court properly instructed the jury that to find defendant guilty of first degree felony murder during a kidnapping, the prosecutor was required to prove beyond a reasonable doubt that defendant had the specific intent to commit kidnapping. Defendant argued the jury may have disregarded the instruction because of the additional instruction involving the kidnapping of an infant. However, reviewing the entire charge, a reasonable juror would not have read the latter instruction as negating the earlier specific instruction.id: 17329
Kidnap of an unresisting infant or child requires only the force necessary to move the child for an illegal purpose or with an illegal intent.Defendant argued the term "force" as used in Penal Code section 207, means a forcible seizure, which in turn requires more than the mere force necessary to effect movement. However, the 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.id: 17113
Defendant who had "visitation" rather than "custody" rights to his children, and absconded with the children, could not assert a necessity defense under section 278.5.Defendant was charged with withholding his two young children from their lawful custodian, their mother, in violation of Penal Code section 278.5. Defendant argued the court erred by excluding evidence and argument supporting the necessity defense under section 278.8, as the children were in danger with their mother. However, contrary to defendant's claim, his right to "visitation" was not the equivalent of a "right to custody" under the statute. In any event, he absconded with the children after his visitation period ended, not during the period. Finally, he failed to notify the authorities immediately after attaining a position of safety. Defendant was not entitled to assert the necessity defense.id: 17000
Kidnapping for carjacking does not require that movement of the victim substantially increase the risk of harm to the victim.he kidnapping for carjacking statute (Penal Code section 209.5) does not require that the movement of the victim "substantially" increase the risk of harm to the victim. It requires only that the movement create a risk of harm greater than that inherent in carjacking.id: 16990
A PIN code constitutes "property" for purposes of kidnapping for extortion.Defendants argued they were unlawfully convicted of kidnapping for extortion because a personal identification number (PIN) code is not property that may be extorted. However, a PIN code constitutes property for purposes of extortion.id: 16722
One may lawfully be convicted of kidnapping for extortion even if the kidnap victim and the extortion victim are the same person.Defendants were convicted of kidnapping for extortion where they kidnapped the victim and compelled her to provide her PIN code. They argued the evidence did not support the conviction of kidnapping for extortion where there was only a single victim. They argued that kidnapping for extortion under Penal Code section 209 requires two victims - one who is kidnapped and another from whom the accused extorted property. However, one may lawfully be convicted of kidnapping for extortion even if the kidnap victim and the extortion victim are the same person. The statute is not ambiguous on this point.id: 16723
Double jeopardy did not protect defendant against California prosecution for kidnapping his own children where he detained them from 1989 to 1995 in Yugoslavia and was prosecuted in that country for the offense in 1991.Defendant's ex-wife was granted custody of their two children following the divorce. One day in 1989, he took the children and fled to his home country of Yugoslavia. In 1991 he was prosecuted by Serbian authorities for taking and detaining the children from the lawful custody of their mother. The children were thereafter concealed in Serbia until 1995. Defendant was thereafter charged in California with taking and detaining the children under Penal Code section 278.5. The trial court concluded it lacked jurisdiction to proceed and dismissed the case for "once in jeopardy." However, defendant's original kidnapping offense was completed when he was convicted in Serbia in 1991. Defendant's subsequent detention of the children from 1992 through 1995 was not embraced in the original Serbian prosecution. The trial court erred by dismissing the information to the extent that it charged post-1992 conduct.id: 16631
Movement of a victim nine feet is sufficient to support a conviction for kidnapping to rape.Kidnapping to commit rape under Penal Code section 209, subd.(b)(1), requires that the movement of the victim not be incidental and that it increase the risk of harm over and above that necessarily present in rape. Defendant's movement of the victim was not incidental to the attempted rape as he moved her nine feet from the front of the video store into a room and shut the door. Moreover, he increased the risk of harm by moving her from a public area to the back room.id: 16533
A parent may be convicted of false imprisonment of a child where the act of confinement exceeds the scope of parental authority.Defendant argued that, as a matter of law, he could not be convicted of false imprisonment of his child because, as a parent he has a right to detain his child at a particular location for any reason. However, a parent is not immune from criminal prosecution for false imprisonment of his child where the act of confinement is done with an intent to endanger the health and safety of the child, or to achieve an unlawful purpose, because such an act exceeds the scope of parental authority.id: 15342
Corpus delicti of kidnapping was established where the victim was found a substantial distance from her home without shoes and with socks thick with leaves and burrs.Evidence sufficed to satisfy the corpus delicti of kidnapping. The victim was found some distance from her home in a schoolyard with evidence of trauma. She was shoeless and her socks were thick with leaves and burrs. This would suggest she did not leave willingly. Moreover, a bag of sugar was found unopened beside her locked car. The evidence could suggest she dropped the sugar as she left the car and unwillingly left with defendant.id: 15343
Defendant who pointed a loaded gun at the victim while transporting him and threatened to shoot him under various circumstances exposed the victim to a substandard likelihood of death under section 209, subdivision (a).Defendant kept a fully loaded gun pointed at the victim, first in the house, then on the walk to the car. While driving around, defendant continued to point the gun at the victim. Defendant threatened to shoot the victim if he could not come up with the money, if he did anything "funny," or if he called the police. This was sufficient evidence that defendant intentionally confined the victim in a manner which exposed him to a substantial likelihood of death, so as to support a sentence of life without the possibility of parole under Penal Code section 209, subdivision (a). The court stressed it did not hold the use of a gun, standing alone, necessarily exposes the victim to a substantial likelihood of death as a matter of law.id: 15345
Evidence supported child abduction conviction of the father who abandoned the child in his early years.Defendant argued the evidence failed to prove his lack of "a right to custody of his son," as required to support a conviction of child abduction under former Penal Code section 278. However, for the first year of the child's life defendant denied paternity. Moreover, defendant moved out-of-state with providing the child's mother without his new address. He sent no support payments and visited the child three times in the first four years of his life. Evidence established that defendant abandoned the child. His subsequent unlawful detention and concealment of the child constituted a violation of section 278.id: 15346
Evidence supported false imprisonment conviction where victim jumped on defendant's van to avoid being hit, he proceeded to drive recklessly and would not let her off.Defendant argued the evidence was insufficient to support his conviction for felony false imprisonment because there was no evidence he used violence or menace. The victim jumped on the back of defendant's van as he attempted to run her over. He then proceeded to drive at high speeds as she had climbed onto the roof of the van in an effort to hang on. He would not let her off when he stopped the van. Under these facts, there was substantial evidence of both violence and menace.id: 15347
False imprisonment statute is not vague or overbroad for failing to define personal liberty.Defendant argued the false imprisonment statute, Penal Code section 236, is unconstitutionally vague and overbroad. However, the term personal liberty is not vague and the cases have consistently required restraint of a person's freedom of movement. Moreover, the provision is not overbroad and defendant failed to show how restraining another's freedom of movement could impermissibly limit a person's free speech.id: 15348
Forcible movement of the victim from the sidewalk to the park and behind a building was more than incidental to the sex offense for purposes of the one strike law.Kidnapping within the meaning of the one strike sex offender statute (Penal Code section 667.61, subd.(d)(a)) requires movement of the victim that is more than incidental to the underlying sex offense. The forcible movement of the victim from the sidewalk to the darkened park and behind a large building was properly found to be more than incidental to the sexual assault.id: 15349
Movement of aggravated kidnap victim within the parking lot increased the risk of harm to her as defendant committed additional violent acts after forcing her into the car out of public view.Defendant was convicted of kidnapping for robbery under Penal Code section 209, subdivision (b). He argued the evidence was insufficient to support a finding that his movement of the victim in the parking lot substantially increased the risk of harm to her or was more than incidental to the commission of the robbery. However, an increased risk of harm was manifested by defendant's demonstrated willingness to be violent, having knocked her to the ground, gripped her mouth so tightly as to leave a burn mark on her face, and grabbed for her as she fled the car.id: 15351
Penal Code section 208, subdivision (b) which prescribes a higher sentence for kidnapping a child, has the same asportation requirement as simple kidnapping.Penal Code section 208, subdivision (b) prescribes a higher sentence for kidnapping a person under the age of 14. Regardless of whether section 208, subdivision (b) is a separate crime or a punishment provision, the applicable standard for asportation is that required for simple kidnapping. While the asportation standard for simple kidnapping traditionally focused on distance the victim was moved, the Court held that in future cases, the trier of fact may consider other factors in determining whether such movement was substantial.id: 15352
Substantial movement requirement for simple kidnapping does not apply to false imprisonment.Defendant argued there was insufficient evidence to convict her of both robbery and felony false imprisonment where the only force employed in the commission of the false imprisonment was incidental to the robbery. However, the rationale of the substantial movement requirement for simple kidnapping does not apply to false imprisonment which can be committed with any movement or no movement at all.id: 15353
The risk of harm required to elevate kidnapping to aggravated kidnapping may be a risk of psychological harm.A substantially increased risk of psychological harm may establish the asportation requirement for a defendant's conviction of aggravated kidnapping under Penal Code section 209, subd.(b).id: 15354
The term "vicinity of the carjacking" in kidnapping in commission of a carjacking statute was not unconstitutionally vague.Defendant argued that Penal Code section 209.5 (kidnapping during the commission of a carjacking) is unconstitutionally vague. However, the phrase "the vicinity of the carjacking" is sufficiently definite that no reasonable person would misunderstand its meaning. In the present case, the "vicinity" of the carjacking logically included the garage where all of the elements of the carjacking were completed. Moreover, the phrase "a substantial distance from the vicinity of the carjacking did not require the jury to determine the outside boundary of the "vicinity of the carjacking" and then calculate whether or not the victim had been moved a substantial distance from that point. Instead, any point within the "vicinity" of the carjacking was a sufficient starting point for the calculation of whether the victim was moved a "substantial distance."id: 15355
Kidnapping and kidnapping-for-carjacking of an infant were committed where the taking was accomplished without lawful consent.Defendant argued the kidnapping and kidnapping-for-carjacking convictions were improper because the victim was an infant incapable of exercising free will. However, the taking occurred when the family was abducted at gunpoint. It was against the will of the infant since there was no lawful consent. There was no requirement of an additional illegal intent directed at the child.id: 14841
There was sufficient movement to support the kidnap for rape enhancement where the victim was moved 40-50 feet from an open street to the interior of a camper.Movement of the victim was not merely incidental to the rape in that it was not necessary to move her in order to perpetrate the rape. At a late hour she was forced 40 to 50 feet from a driveway, which was open to street view, to the interior of a camper located at the bottom of a driveway behind a house. This movement was sufficient to support a Penal Code section 667.8, subdivision (a) enhancement for simple kidnapping.id: 9901
Trial court did not err in rejecting evidence of a good faith claim of right to the ransom demanded.Defendant was charged with aggravated kidnapping. He argued that he should have been permitted to present evidence of a good faith claim of right to the $50,000 ransom as the kidnap victim had participated in a robbery of defendant's house where $50,000 worth of money and jewelry had been taken. However, there is no good faith exception to extortion or kidnapping for ransom.id: 9902
Kidnapping with intent to commit rape is an offense separate from and not an enhancement to simple kidnapping.Kidnapping with the intent to commit rape, oral copulation, sodomy, or rape by instrument (Penal Code section 208, subdivision (d) is an offense separate from simple kidnapping (section 270, subdivision (a).) The crime requires a forced movement of the victim which is not merely incidental to the sex act and which substantially increases the risk of harm over and above that necessarily present in the sex crime itself. Evidence supported the section 208, subdivision (d) conviction in the instant case where the victim was moved 105 feet at night from a parking lot of a closed store to the other side of a wall which blocked the view to any passerby.id: 9773
Law which requires substantial movement for aggravated kidnapping does not apply to felony false imprisonment.Defendant was convicted of felony false imprisonment. He argued his conviction was invalid under <i>People v. Daniels</i>, (1969) 71 Cal.2d 1119, which held that Penal Code section 209 (aggravated kidnapping) does not apply to offenses where the movement of the victim was merely incidental to the robbery and did not substantially increase the risk of harm to the victim. However, the <i>Daniels</i> rule applies only to aggravated kidnapping and the court refused to extend the rule to felony false imprisonment.id: 9774
Movement of rape victim 40-50 feet from an open driveway to a camper located behind the house was sufficient to support the section 667.8, subdivision (a) enhancement.Defendant argued there was insufficient evidence to support a Penal Code section 667.8, subdivision (a) enhancement for simple kidnapping. However, the victim was taken 40 to 50 feet from a driveway open to public view, to the interior of a camper located at the bottom of a driveway behind a house. Given the change in surroundings from the point of capture and destination the victim was moved a substantial distance as a matter of law for purposes of the enhancement.id: 9776
Movement of two women for more than an 849 foot block was not trivial for kidnapping purposes.Evidence was sufficient to establish movement for a substantial distance for kidnapping purposes where the victims were moved more than 840 feet down a major street in a large town.id: 9777
Movement of victim 50 to 60 feet from a pay phone area to a secluded dumpster area was sufficient to support a conviction of kidnapping with the intent to commit rape.Defendant was convicted of kidnapping with the intent to commit rape under Penal Code section 208, subd. (d). For the purpose of determining sufficient movement, kidnapping with the intent to commit rape should be equated with simple kidnapping rather than aggravated kidnapping. The instant victim was moved 50 to 60 feet from the open street to a secluded dumpster area. The danger of sexual attack was considerably more than the public phone area. The movement was sufficiently substantial to support a conviction for simple kidnapping and kidnapping with the intent to commit rape.id: 9778
One-half mile walk to the park with a lengthy walk into the park was sufficient evidence of asportation to support the rape conviction.Defendant argued there was insufficient evidence of asportation, apart from that incidental to the rape, to sustain a kidnapping conviction. However, the asportation covered at least a half a mile to the park, with a lengthy walk into the park thereafter. The distances involved were not trivial or incidental to the rape.id: 9779
Reasonable mistake of age defense is not available in a prosecution for kidnapping a person under the age of 14.A defendant charged with kidnapping a person under the age of 14 years (Penal Code sections 207, subdivision (a) and 208, subdivision (b)) may not rely on the defense of reasonable mistake as to the victim's age.id: 9780
The crime of false imprisonment is not a lesser necessarily included offense of robbery.Defendant argued that a defendant may not lawfully be convicted of false imprisonment when he is convicted of a robbery that arose during the same criminal occurrence. However, there is simply nothing inherent in robbery which necessarily requires the offense of false imprisonment to also be accomplished. Because a robbery can occur without a violation of the freedom to stand still or be mobile, defendant was lawfully convicted of felony false imprisonment in the challenged counts.id: 9782
The jury may consider the nature and purpose of the victim's asportation, in addition to the actual measured distance, in determining whether the movement was substantial for purposes of kidnapping.Defendant argued the trial court improperly instructed the jury as to the legal standard for the asportation element of the crime of kidnapping. However, contrary to the defendant's claim, the jury could properly consider the nature, character and purpose of the victim's asportation, in addition to the actual measured distance, when determining whether the movement was substantial for purpose of kidnapping.id: 9783
Court properly instructed on asportation standard for simple kidnapping for purposes of kidnap enhancement.Defendant argued the trial court erred in instructing the jury on the asportation standard for the kidnapping enhancement because Penal Code section 667.8 requires the asportation associated with aggravated kidnapping, i.e., that the movement substantially increases the risk of harm over and above that necessarily present in the commission of the charged sex offense. However, because the Legislature has expressly defined the type of kidnapping for purposes of section 667.8 as simple kidnapping, the trial court did not err in instructing the jury on the asportation standard for simple kidnapping.id: 9749
Court's modified kidnap-for-robbery instruction correctly stated that forced movement for a substantial distance cannot be incidental to the robbery.Defendant was convicted of kidnap for robbery (Penal Code section 209, subdivision (b)). He argued the trial court erred in instructing the jury by using a modified version of CALJIC 9.54 pertaining to kidnap for robbery, claiming the modification amounted to a directed verdict on one element of the offense depriving him of his right to a jury determination. However, the modified language correctly advised jurors that as a matter of law forced movement for a substantial distance cannot be incidental to the robbery.id: 9750
Defendant achieved control of the kidnap victims where he grabbed the victim from behind while victim was making a U-turn.Defendant argued his threats were ineffectual to seize or control his victims, thus failing to establish kidnapping under <i>People v. Martinez</i> (1984) 150 Cal.App.3d 579. However, control was actually achieved when defendant grabbed the driver while making a U-turn and continued until the driver found an opportunity to abandon her vehicle. Defendant's control was sufficient to avoid being ejected from the truck by the victims and to require the victims to remain with the vehicle despite an obvious desire to escape the man with the gun.id: 9751
Defendant became liable for kidnapping his own daughter when he took her into a motel room in order to molest her.The jury found true enhancements that defendant kidnapped his daughter for the purpose of committing oral copulation against her. (Penal Code section 667.8, subdivision (a)). He argued that as a parent entitled to custody he could not have kidnapped his own daughter. While this is generally true, a parent is liable for kidnapping if he or she exercises custodial rights for an illegal purpose such as child molest.id: 9752
Defendant invited the court's error in failing to fully instruct on the elements of simple kidnapping.Defendant was charged with kidnapping for purposes of extortion or to obtain money or something of value. He requested an instruction for simple kidnapping under section 207, subdivision (a), and was convicted of that offense. He argued the court erred in failing to instruct that for purposes of simple kidnapping under section 207, if the person forcibly moved is incapable of giving consent (i.e., a three year old child) then the People must prove the movement was done for an illegal purpose or with an illegal intent. However, counsel never mentioned this element and may have had a tactical reason for failing to mention it. Moreover, the evidence did not even warrant the instruction on simple kidnapping. The invited error doctrine precluded defendant from complaining about giving the instruction he requested.id: 9753
Defendant's absconding with his children supported three counts of violating a child custody order.Defendant's absconding with the three children violated three separate court orders, mainly two custody orders as to his daughters and a visitation order as to his son. Notwithstanding his claim of a single criminal act, evidence supported three convictions of violating a child custody order pursuant to Penal Code section 278.5.id: 9755
Defendants' conduct in removing the minor from the state did not violate section 278.5 because Child Protective Services was granted supervision and not physical custody or visitation.Defendant was charged with violating Penal Code section 278.5 regarding the removal of children from the state with the intent to deprive another person of that right to custody or visitation. The minor had been placed under the supervision of the Child Protective Services (CPS) in the home of her mother. Defendants (parents) were forbidden from removing the minor from the state absent authorization from CPS. They then went to Florida without notifying CPS. Defendants' conduct in taking the minor from the state did not violate section 278.5 because CPS was granted supervision and not physical custody or visitation.id: 9756
Dragging the victim inside the motel room was sufficient evidence of asportation to support the conviction of kidnap with the intent to rape.Defendant argued the evidence of asportation was insufficient to support a conviction for kidnapping with intent to rape. He claimed that dragging the victim from outside the motel room door to the motel bathroom was trivial or insignificant as a matter of law. However, the movement was not incidental to the crime as defendant could have raped the victim without moving her. Moreover, dragging the victim into the privacy and seclusion of a motel room substantially increased the danger to the victim. There was sufficient evidence to support the conviction.id: 9757
Evidence supported the aggravated kidnap conviction where the victim was choked unconscious, stabbed in the stomach and exposed to a substantial risk of death.Defendants were convicted of aggravated kidnap for ransom (Penal Code section 209, subdivision (a)) which provides for life without parole if the victim suffers bodily harm or is exposed to a substantial likelihood of death. Bodily harm was established where the victim was hit in the face, choked unconscious, stabbed in the stomach and cut on her eyelid. Broken bones or injuries necessitating surgery were not required. Moreover, the method of confinement and defendant's use of the victim as a hostage exposed her to a substantial risk of death for purposes of the statute.id: 9759
Fake imprisonment for purposes of protection from arrest provision applies to perpetrators who hold hostages to prevent arrest or for use as a shield.Defendant was convicted of false imprisonment for purposes of protection from arrest pursuant to Penal Code section 210.5. This provision was meant for perpetrators who hold a victim hostage to prevent arrest or for use as a shield. The provision did not apply to defendant who tied his auto theft victim to a fence so that she could not get away even though she was exposed to the weather for a length of time which increased the risk of harm.id: 9761
False imprisonment instruction was not required where the evidence showed defendant was guilty of aggravated kidnapping or not at all.False imprisonment is a lesser included offense of aggravated kidnapping. However, a lesser included offense instruction on false imprisonment is not required where the evidence establishes that defendant was either guilty of kidnapping or not at all. There was no error in failing to give the instruction here where defendant's conduct either went beyond the mere violation of victim's personal liberty, or it was not culpable.id: 9763
False imprisonment instructions were not required even though the victims voluntarily entered defendant's van.Defendant argued the court should have instructed on false imprisonment as a lesser included offense of kidnapping. However, there was no evidence that any victim went voluntarily to the place of her death, and only then was restrained against her will.id: 9764
False imprisonment is a general intent crime and evidence supported the conviction as the victim was restrained while being kicked.Defendant argued the evidence was insufficient to support the conviction of false imprisonment by violence and that the court should have instructed on specific intent. However, false imprisonment is a general intent crime. Moreover, the evidence supported the conviction. Although the restraint was short in time and distance it was real. Defendant restrained the victim long enough for the victim to receive over 20 kicks. The restraint was not part of the battery as defendant and the others could have hit the victim without holding him down.id: 9765
False imprisonment occurred after completion of the sex offenses as defendant attempted to dissuade the victim from reporting the crimes and separate sentences were proper.Defendant argued that the false imprisonment of the victim was committed for the purpose of committing the sex offenses and the court violated Penal Code section 654 by imposing punishment for that conviction. However, the false imprisonment took place after the sex offenses were completed and the victim was restrained while being threatened with future violence to herself and her children if she reported the crimes. The offenses were divisible and the separate sentences were proper.id: 9766
Joyriding and unlawful taking of a vehicle are not necessarily included offenses of kidnapping during a carjacking.Defendant argued the trial court erred in refusing to instruct on unlawful taking of a vehicle (Vehicle Code section 10851, subdivision (a)) and joyriding (Penal Code section 499b) as lesser included offenses of kidnapping during the commission of a carjacking (Penal Code section 209.5). However, the latter offense can be committed without committing the former offenses and therefore those offenses are not necessarily included. Moreover, since the evidence, if believed, supported a finding of an offense including kidnapping and force and fear, it was not error for the court to refuse instructions on the lesser theft offenses. The offenses were likewise not lesser related offenses given the disparate societal interests protected by the charged offense and claimed lesser related offenses.id: 9767
Kidnap enhancement is proper despite the fact that the underlying kidnapping was never charged or proved.Defendant argued the finding he kidnapped the victim to commit sex offenses under Penal Code section 667.8, subdivision (a) was improper because he was neither charged with nor convicted of the underlying offense of kidnapping. However, the jury was not required to convict defendant of kidnapping in violation of section 207 before finding he violated the kidnap enhancement provision.id: 9768
Kidnapping conviction was sustained notwithstanding that the victim directed her own asportation.Appellant argued that kidnapping under Penal Code section 207 is not violated where the victim controls hew own asportation by telling her abductor where to drive her. However, the argument is incorrect as it makes no difference what the victim had in mind or where he or she intended to go if all the other elements of the crime are present.id: 9769
Kidnapping for extortion does not require the person extorted be someone other than the kidnapped victim.Appellants were convicted of kidnapping for extortion resulting in death (Penal Code section 209, subd. (a)). They argued they did not commit the offense because it requires that the person from whom property is obtained be someone other than the kidnapped victim. However, kidnapping for extortion does not require the person extorted be someone other than the kidnapped victim.id: 9770
Kidnapping for ransom supports a second degree murder conviction based on a felony-murder theory.The crime of kidnapping for ransom, extortion or reward (Penal Code section 209, subdivision (a)) involves a substantial risk of death to the victim and therefore supports a conviction of second degree murder on a felony-murder theory.id: 9772
A defendant may be convicted of an attempt to kidnap for the purpose of robbery.Defendant argued that his conviction of an attempt to violate Penal Code section 209, subdivision (b) (kidnapping for purpose of robbery), was erroneous because a completed kidnapping is a necessary element of that offense. However, a defendant may be convicted of an attempt to violate section 209, subdivision (b), where the kidnapping is thwarted by the victim's escape.id: 9738
Acquittal of the simple kidnapping charge did not require reversal of the conviction for attempting to kidnap for the purpose of robbery.Appellant argued that because simple kidnapping is a necessarily included offense of kidnapping to commit robbery, his acquittal of that charge precluded any finding that he could be guilty of the greater offense. However, his argument overlooked the fact that he was convicted of attempted kidnapping to commit robbery, not the completed crime, and that he was not acquitted of attempted simple kidnapping.id: 9740
Aggravated kidnapping statute is not preempted by the death penalty statute.Appellant argued the kidnapping felony murder special circumstance is a special law that preempts aggravated kidnapping under Penal Code section 209 subdivision (a), preventing imposition of life imprisonment without possibility of parole on an aider and abettor theory unless there is a finding of intent to kill. However, there is nothing in the 1978 initiative that suggests an intention of the electorate to change the historic separate and distinct treatment of murder with special circumstances and aggravated kidnapping. Section 209, subdivision (a) is not preempted by the death penalty statute.id: 9741
Any error in failing to define extortion in aggravated kidnap case was harmless where the prosection's theory was based on kidnap for ransom.Appellant argued the trial court erred in instructing the jury on aggravated kidnapping because it did not define extortion. However, the prosecutor's entire summation was based on kidnapping for ransom; extortion was never mentioned. The failure to define extortion in this context was harmless.id: 9742
Court did not err in failing to instruct on all elements of simple kidnapping as a lesser included offense of kidnapping for ransom.Defendant argued that because simple kidnapping is a lesser included crime of kidnapping for ransom the court erred in failing to instruct the jury on all elements of simple kidnapping. His contention was premised on an incorrect reading of Penal Code section 207, subdivision (a) as amended in 1990. The court was unwilling to presume the Legislature intended to change simple kidnapping from a general intent crime to a specific intent crime by adding the phrase by any other means of instilling fear. Rather than being an additional element for the crime of kidnapping, the new language provides an alternative basis for kidnapping.id: 9744
Court erred in imposing sentence on the conviction of kidnapping for sexual purposes and staying punishment on the enhancement for kidnapping for sexual purposes.Defendant was convicted of numerous sex offenses, kidnapping for sexual purposes (Penal Code section 208), and the jury found true an enhancement for kidnapping for sexual purposes (section 667.8). The trial court erred in imposing sentence on the count for kidnapping for sexual purposes and in staying the enhancement. The enhancement is mandatory and was enacted to avoid the limitations of section 654. The Court of Appeal therefore stayed execution of sentence on the substantive count and ordered the stay dissolved on the section 667.8 mandatory enhancement.id: 9746
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245