California Jury Instructions on Kidnapping for Ransom - CALCRIM No. 1202
CALCRIM No. 1202 (on kidnapping for ransom) never mentions the word "consent" with respect to the primary victim (but rather only with respect to a secondary victim of extortion).
But, consistent with section 209(a), it does require the People to prove that the defendant "held or detained" a person, or intended to "hold or detain" the person -- words that commonly connote a nonconsensual encounter.
It further requires the People to prove that the defendant kidnapped, abducted, seized, confined, concealed, carried away, or enticed that person -- again, words (with the exception of "concealed" and "enticed") that seem to rule out the primary victim's knowing consent.
But CALCRIM No. 1202 reserves its clearest use of nonconsensual words for aggravated kidnapping for ransom, requiring the People to prove the defendant used "force or fear" in cases where the kidnapped victim suffers bodily harm or death and for which the perpetrator's penalty is life imprisonment without the possibility of parole.
CALCRIM No. 1202 provides: "The defendant is charged . . . with kidnapping for the purpose of (ransom,/ or reward,/ or extortion) . . . .To prove that the defendant is guilty of this crime, the People must prove that:1. The defendant (kidnapped,/ or abducted,/ or seized,/ or confined,/ or concealed,/ or carried away,/ or inveigled,/ or enticed,/ or decoyed) someone"; "2. The defendant held or detained that person;" or "2. When the defendant acted, (he/she) intended to hold or detain the person;AND3. The defendant did so (for ransom,/ or for reward,/ or to commit extortion,/ or to get money or something valuable).It is not necessary that the person be moved for any distance.Someone intends to commit extortion if he or she intends to: (1) obtain a person's property with the person's consent and (2) obtain the person's consent through the use of force or fear."
The next paragraphs of CALCRIM No. 1202 apply to aggravated kidnapping for ransom, entailing an additional allegation by the People "that the defendant (caused the kidnapped person to (die/suffer bodily harm)/ or intentionally confined the kidnapped person in a way that created a substantial risk of death)." As to this additional allegation, the instruction requires the People to prove that the defendant used force or fear to hold or detain the kidnapped person and to begin a foreseeable chain of events that caused the kidnapped person's death or bodily harm. The instruction clarifies that "b odily harm means any substantial physical injury resulting from the use of force that is more than the force necessary to commit kidnapping."
In contrast, the standard instructions on asportation kidnapping -- CALCRIM Nos. 1215 (simple kidnapping), 1203 (kidnapping for robbery or rape), and 1204 (kidnapping during carjacking) -- each contain more explicit nonconsensual language. Each instruction sets forth elements of the offense requiring the People to prove (1) that the "defendant took, held, or detained another person by using force or by instilling reasonable fear"; (2) that the victim "did not consent to the movement"; and, (3) where supported by the evidence, that the "defendant did not actually and reasonably believe that the other person consented to the movement."
In addition, these instructions recognize two "defenses" which must be given sua sponte by the court if supported by the evidence. (Judicial Council of Cal. Crim. Jury Instns. (2009-2010) Bench Notes to CALCRIM Nos. 1203, 1204, & 1215, "Defenses -- Instructional Duty.")
These defenses inform the jury that a defendant is not guilty of the respective asportation kidnapping if the victim consented to the movement, or if the defendant reasonably believed the victim consented. The defenses specify that the People bear the burden of proving the victim's lack of consent and the defendant's lack of reasonable belief in consent. The asportation instructions further provide that in "order to consent, a person must act freely and voluntarily and know the nature of the act," and that a person may withdraw consent. (CALCRIM No. 1215; see also CALCRIM Nos. 1203, 1204.)
Under Penal Code section 209(a), a "person who seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps or carries away another person . . . with intent to hold or detain, or who holds or detains, that person for ransom, reward or to commit extortion or to exact from another person any money or valuable thing" is guilty of kidnapping for ransom.
The penalty is either (1) life imprisonment without the possibility of parole if the victim suffers death, bodily harm, or "a substantial likelihood of death," or (2) life imprisonment with the chance of parole in all other cases. (Ibid.)
Based on this punishment, kidnapping for ransom is "the most serious form of kidnapping" in California. 6 (People v. Martinez (1984) 150 Cal.App.3d 579, 587, disapproved on another ground in People v. Hayes (1990) 52 Cal.3d 577, 628, fn. 10.)
The offense involves a primary victim (who is seized, confined, or otherwise subjected to a predicate act) and a secondary victim (who "is subjected to a ransom or extortion demand"). (Martinez, at p. 591; People v. Ibrahim (1993) 19 Cal.App.4th 1692, 1696-1698 same person may be both primary and secondary victim.) Kidnapping for ransom does not require that the defendant move the victim. (People v. Rayford (1994) 9 Cal.4th 1, 12, fn. 8.)
In contrast, California's other forms of kidnapping (simple kidnapping, aggravated kidnapping for robbery or rape, and aggravated kidnapping during carjacking -- collectively, "asportation kidnapping") all require movement of the victim. (Id. at pp. 11-12, fn. 7.)