Section 1201 | CALCRIM (Jury Instructions)

BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Give this instruction when the defendant is charged under Penal Code section
207(b) with kidnapping a child without the use of force for the purpose of
committing a lewd or lascivious act. Give CALCRIM No. 1201, Kidnapping: Child
or Person Incapable of Consent, when the defendant is charged under Penal Code
section 207(a) with using force to kidnap an unresisting infant or child, or person
with a mental impairment, who was incapable of consenting to the movement.
Give the final bracketed paragraph about calculating age if requested. (Fam. Code,
§ 6500; In re Harris (1993) 5 Cal.4th 813, 849–850 [21 Cal.Rptr.2d 373, 855 P.2d
391].)
Related Instructions
Kidnapping with intent to commit a rape or other specified sex crimes is a separate
offense under Penal Code section 209(b). (People v. Rayford (1994) 9 Cal.4th 1,
8–11 [36 Cal.Rptr.2d 317, 884 P.2d 1369].) See CALCRIM No. 1203, Kidnapping:
For Robbery, Rape, or Other Sex Offenses.
A defendant may be prosecuted for both the crimes of child abduction and
kidnapping. Child abduction or stealing is a crime against the parents, while
kidnapping is a crime against the child. (People v. Campos (1982) 131 Cal.App.3d
894, 899 [182 Cal.Rptr. 698].) See CALCRIM No. 1250, Child Abduction: No Right
to Custody.
For instructions based on violations of Penal Code section 288, see CALCRIM No.
1110, Lewd or Lascivious Acts: Child Under 14, and the following instructions in
that series.
AUTHORITY
•
Elements. Pen. Code, §§ 207(b), 288(a).
•
Increased Prison Term If Victim Under 14 Years of Age. Pen. Code, § 208(b).
•
Asportation Requirement. See People v. Robertson (2012) 208 Cal. App. 4th
965, 982 [146 Cal.Rptr.3d 66]; People v. Vines (2011) 51 Cal.4th 830, 870 & fn.
20 [124 Cal.Rptr.3d 830, 251 P.3d 943]; People v. Martinez (1999) 20 Cal.4th
225, 232 & fn. 4 [83 Cal.Rptr.2d 533, 973 P.2d 512]; People v. Rayford (1994) 9
Cal.4th 1, 11–14, 20 [36 Cal.Rptr.2d 317, 884 P.2d 1369]; People v. Daniels
(1969) 71 Cal.2d 1119, 1139 [80 Cal.Rptr. 897, 459 P.2d 225].
•
Lewd or Lascivious Acts Defined. People v. Martinez (1995) 11 Cal.4th 434, 452
[45 Cal.Rptr.2d 905, 903 P.2d 1037] [disapproving People v. Wallace (1992) 11
Cal.App.4th 568, 574–580 [14 Cal.Rptr.2d 67] and its progeny]; People v.
Levesque (1995) 35 Cal.App.4th 530, 538–542 [41 Cal.Rptr.2d 439]; People v.
Marquez (1994) 28 Cal.App.4th 1315, 1321–1326 [33 Cal.Rptr.2d 821].
•
Movement of Victim Need Not Substantially Increase Risk of Harm to Victim.
CALCRIM No. 1200
KIDNAPPING
962

AUTHORITY
•
Elements. Pen. Code, § 207(a), (e).
•
Punishment If Victim Under 14 Years of Age. Pen. Code, § 208(b); People v.
Magpuso (1994) 23 Cal.App.4th 112, 118 [28 Cal.Rptr.2d 206] [ignorance of
victim’s age not defense].
•
Asportation Requirement. See People v. Martinez (1999) 20 Cal.4th 225,
235–237 [83 Cal.Rptr.2d 533, 973 P.2d 512] [adopting modified two-pronged
asp