Section 1650 | CALCRIM (Jury Instructions)

must find the defendant not guilty of this crime.]
<Defense: Consent Given>
[The defendant is not guilty of kidnapping if the other person consented
to go with the defendant. The other person consented if (he/she) (1)
freely and voluntarily agreed to go with or be moved by the defendant,
(2) was aware of the movement, and (3) had sufficient maturity and
understanding to choose to go with the defendant. The People have the
burden of proving beyond a reasonable doubt that the other person did
not consent to go with the defendant. If the People have not met this
burden, you must find the defendant not guilty of this crime.]
[Consent may be withdrawn. If, at first, a person agreed to go with the
defendant, that consent ended if the person changed his or her mind and
no longer freely and voluntarily agreed to go with or be moved by the
defendant. The defendant is guilty of kidnapping if after the other
person withdrew consent, the defendant committed the crime as I have
defined it.]
To decide whether the defendant committed carjacking, please refer to
the separate instructions that I (will give/have given) you on that crime.
[Fear, as used in this instruction, means fear of injury to the person or
injury to the person’s family or property.] [It also means fear of
immediate injury to another person present during the incident or to
that person’s property.]
New January 2006; Revised February 2013, August 2013
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime. The court also has a sua sponte duty to instruct on the elements of
carjacking. Give CALCRIM No. 1650, Carjacking.
Give the bracketed definition of “consent” on request.
Defenses—Instructional Duty
The court has a sua sponte duty to instruct on the defense of consent if there is
sufficient evidence to support the defense. (See People v. Davis (1995) 10 Cal.4th
463, 516–518 [41 Cal.Rptr.2d 826, 896 P.2d 119] [approving consent instruction as
given]; see also People v. Sedeno (1974) 10 Cal.3d 703, 717, fn. 7 [112 Cal.Rptr. 1,
518 P.2d 913], overruled on other grounds in People v. Breverman (1998) 19 Cal.4th
142, 165 [77 Cal.Rptr.2d 870, 960 P.2d 1094] [when court must instruct on
defenses].) An optional paragraph is provided for this purpose, “Defense: Consent
Given.”
The court has a sua sponte duty to instruct on the defendant’s reasonable and actual
CALCRIM No. 1204
KIDNAPPING
980

Ortega (1998) 19 Cal.4th 686, 693 [80 Cal.Rptr.2d 489, 968 P.2d 48] [theft]; People
v. Dominguez (1995) 38 Cal.App.4th 410, 419 [45 Cal.Rptr.2d 153] [robbery].)
Vehicle theft (Veh. Code, § 10851(a)) is not a lesser included offense of carjacking.
(People v. Montoya (2004) 33 Cal.4th 1031, 1035 [16 Cal.Rptr.3d 902, 94 P.3d
1098].)
Attempted grand theft auto is not a lesser included offense of attempted carjacking.
People v. Marquez (2007) 152 Cal.App.4th 1064, 1066 [62 Cal.Rptr.3d 31].
RELATED ISSUES
Force—Timing
Force or fear must be used against the victim