CALCRIM No. 1201. Kidnapping: Child or Person Incapable of Consent (Pen. Code, § 207(a), (e))
Judicial Council of California Criminal Jury Instructions (2025 edition)
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1201.Kidnapping: Child or Person Incapable of Consent (Pen.
Code, § 207(a), (e))
The defendant is charged [in Count ] with kidnapping a (child/
person with a mental impairment) who was incapable of giving legal
consent to the movement [in violation of Penal Code section 207].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant used (physical force/fear) to take and carry away
an unresisting (child/person with a mental impairment);
2. The defendant moved the (child/person with a mental
impairment) a substantial distance;
3. When the defendant moved the (child/person with a mental
impairment), the defendant had an illegal intent or an illegal
purpose;
4. <insert name of alleged victim>was a (child/person
with a mental impairment) who was incapable of giving legal
consent to the movement;
[AND]
5. The defendant knew or reasonably should have known that
<insert name of alleged victim> was a (child/person
with a mental impairment) who was incapable of giving legal
consent to the movement.
[A mental impairment includes impairment due to intoxication.]
The amount of force required to move an unresisting (child/person with
a mental impairment) who is incapable of giving legal consent is the
amount of physical force sufficient to take and carry that (child/person)
a substantial distance.
Substantial distance means more than a slight or trivial distance. In
deciding whether the distance was substantial, consider all the
circumstances relating to the movement. [Thus, in addition to
considering the actual distance moved, you may also consider other
factors such as whether the movement increased the risk of [physical or
psychological] harm, increased the danger of a foreseeable escape
attempt, gave the attacker a greater opportunity to commit additional
crimes, or decreased the likelihood of detection.]
A person is incapable of giving legal consent if he or she is unable to
understand the act, its nature, and possible consequences.
<Sentencing factor for child under 14 years old (Pen. Code, § 208(b)).>
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[If you find the defendant guilty of kidnapping <insert
name of alleged victim>, you must then decide whether
<insert name of alleged victim>was under 14 years old at the time of the
kidnapping.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
New January 2006; Revised April 2008, April 2020, September 2020, October 2021,
March 2022, March 2024,* February 2025
* Denotes changes only to bench notes and other commentaries.
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
If the defendant is charged with the enhancement of kidnapping a person under 14
years of age (Pen. Code, § 208(b) and there is evidence that the defendant is a
biological parent, a natural father, an adoptive parent, or someone with access to the
child by a court order, the court may need to instruct on that issue.
In the paragraph defining “substantial distance,” give the bracketed sentence listing
factors that the jury may consider, when evidence permits, in evaluating the totality
of the circumstances. (People v. Martinez (1999) 20 Cal.4th 225, 237 [83
Cal.Rptr.2d 533, 973 P.2d 512], overruled on other grounds in People v. Fontenot
(2019) 8 Cal.5th 57, 70 [251 Cal.Rptr.3d 341, 447 P.3d 252].)
Give this instruction 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. (See, e.g., In re
Michele D. (2002) 29 Cal.4th 600, 610 [128 Cal.Rptr.2d 92, 59 P.3d 164]; see also
2003 Amendments to Pen. Code, § 207(e) [codifying holding of In re Michele D.].)
Give CALCRIM No. 1200, Kidnapping: For Child Molestation, 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 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].)
There is no sua sponte duty to define “illegal intent” or “illegal purpose.” (People v.
Singh (2019) 42 Cal.App.5th 175, 181-183 [254 Cal.Rptr.3d 871].)
Related Instructions
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. (In re Michele D., supra, 29 Cal.4th at p.
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614; 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 relating to defenses to kidnapping, see CALCRIM No. 1225,
Defense to Kidnapping: Protecting Child From Imminent Harm.
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, supra, 20 Cal.4th at pp.
235-237 [adopting modified two-pronged asportation test from People v. Rayford
(1994) 9 Cal.4th 1, 12-14 [36 Cal.Rptr.2d 317, 884 P.2d 1369] and People v.
Daniels (1969) 71 Cal.2d 1119, 1139 [80 Cal.Rptr. 897, 459 P.2d 225]].
• Force Required to Kidnap Unresisting Infant or Child. In re Michele D., supra,
29 Cal.4th at p. 610; Pen. Code, § 207(e).
• Force Required to Kidnap Adult Incapable of Giving Legal Consent Due to
Intoxication or Other Mental Condition. People v. Lewis (2023) 14 Cal.5th 876,
899 [309 Cal.Rptr.3d 699, 530 P.3d 1107].
• Movement Must Be for Illegal Purpose or Intent if Victim Incapable of Giving
Legal Consent. In re Michele D., supra, 29 Cal.4th at pp. 610-611; People v.
Oliver (1961) 55 Cal.2d 761, 768 [12 Cal.Rptr. 865, 361 P.2d 593]; but see
People v. Hartland (2020) 54 Cal.App.5th 71, 80 [268 Cal.Rptr.3d 1] [an illegal
purpose or intent is not required for an intoxicated and resisting adult victim].
• Substantial Distance Requirement. People v. Daniels (1993) 18 Cal.App.4th
1046, 1053 [22 Cal.Rptr.2d 877]; People v. Stanworth (1974) 11 Cal.3d 588,
600-601 [114 Cal.Rptr. 250, 522 P.2d 1058] [since movement must be more than
slight or trivial, it must be substantial in character].
• Deceit Alone Does Not Substitute for Force. People v. Nieto (2021) 62
Cal.App.5th 188, 195 [276 Cal.Rptr.3d 379].
COMMENTARY
Penal Code section 207(a) uses the term “steals” in defining kidnapping not in the
sense of a theft, but in the sense of taking away or forcible carrying away. (People
v. McCullough (1979) 100 Cal.App.3d 169, 176 [160 Cal.Rptr. 831].) The
instruction uses “take and carry away” as the more inclusive terms, but the statutory
terms “steal,” “hold,” “detain” and “arrest” may be used if any of these more
closely matches the evidence.
LESSER INCLUDED OFFENSES
Attempted kidnapping is not a lesser included offense of simple kidnapping under
subdivision (a) of section 207, but the jury may be instructed on attempted
kidnapping if supported by the evidence. (People v. Fontenot (2019) 8 Cal.5th 57,
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65-71 [251 Cal.Rptr.3d 341, 447 P.3d 252] [discussing Pen. Code, § 1159].)
RELATED ISSUES
Victim Must Be Alive
A victim must be alive when kidnapped. (People v. Hillhouse (2002) 27 Cal.4th
469, 498 [117 Cal.Rptr.2d 45, 40 P.3d 754].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 286-289.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, § 91.38[1] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person § 142.14[1], [2][a] (Matthew Bender).
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© Judicial Council of California.
