Human shield

Hostage Human shield

Penal Code 210.5

Every person who commits the offense of false imprisonment, as defined in Section 236, against a person for purposes of protection from arrest, which substantially increases the risk of harm to the victim, or for purposes of using the person as a shield is punishable by imprisonment pursuant to subdivision (h) of Section 1170 for three, five, or eight years.

CALCRIM 1241 (December 2006)

The defendant is charged [in Count ] with false imprisonment of a hostage [in violation of Penal Code section 210.5].

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant faced a threat or risk of imminent arrest;

2. The defendant (restrained[,]/ [or] confined[,]/ [or] detained) another person by force or by a threat to use force;

3. The defendant intended to protect (himself/herself) against the threat of imminent arrest by restraining the other person;

4. The defendant made the other person stay or go somewhere against that person's will;

AND

5. The defendant either substantially increased the risk of [physical or psychological] harm to the (restrained[,]/ [or] confined[,]/ [or] detained) person or intended to use that person as a shield.

[An act is done against a person's will if that person does not consent to the act. In order to consent, a person must act freely and voluntarily and know the nature of the act.]

[False imprisonment does not require that the person restrained be confined in jail or prison.]

CALJIC 9.61

CALJIC 9.61 False Imprisonment—Shield/Protection From Arrest

[The defendant is accused [in Count[s] ] of having violated section 210.5 of the Penal Code, a crime.]

Every person who falsely imprisons another for purposes of protection from arrest, which substantially increases the risk of harm to the victim, or for purposes of using the person as a shield, is guilty of a violation of Penal Code section 210.5, a crime.

False imprisonment is the unlawful violation of the personal liberty of another. There must be an intentional and unlawful restraint, confinement, or detention which compels a person to stay or go somewhere without [his] [her] consent.

[False imprisonment does not require that there be confinement in a jail or prison.]

In order to prove this crime, each of the following elements must be proved:

1. [A person] [(name)] was faced with a threat or risk of imminent arrest;

2. [That person] [(name)] intentionally [and unlawfully] restrained, confined, or detained another person compelling [him] [her] to stay or go somewhere;

3. The other person did not consent to the restraint, confinement, or detention; [and]

[4a. The person restraining, confining, or detaining did so with the specific intent to protect [himself] [herself] from arrest; and

4b. As a result thereof, the risk of harm to the person restrained, confined, or detained was substantially increased.] [or]

[4. The person restraining, confining, or detaining did so with the specific intent of using the person restrained, confined, or detained as a shield].

Specific intent crime

Unlike simple false imprisonment, false imprisonment of a hostage is a specific intent crime. (See Pen. Code, § 210.5 [falsely imprison “for purposes of protection from arrest”]; see also People v. McDaniel (1979) 24 Cal.3d 661, 669 [156 Cal.Rptr. 865, 597 P.2d 124] [specific intent crime exists when defendant intends to do some further act or achieve some additional consequence].)

Section 210.5 does not expressly require a threat of arrest when a perpetrator commits false imprisonment “for purposes of using the person as a shield.” Until the appellate courts provide more guidance, this instruction assumes that a threat of imminent arrest is required. (See People v. Gomez (1992) 2 Cal.App.4th 819, 825 [3 Cal.Rptr.2d 418] [dicta].)

Lesser included offenses

• False Imprisonment. Pen. Code, §§ 236, 237. • Attempted False Imprisonment of Hostage. Pen. Code, §§ 664, 210.5, 236.

Caselaw

False imprisonment is a felony if the victim is used for protection from arrest, which substantially increases the risk of harm to the victim, or if the victim is used as a shield. The offense is punishable by imprisonment under P.C. 1170(h) (see 3 Cal. Crim. Law (4th), Punishment, § 310) for 3, 5, or 8 years. (P.C. 210.5; see CALCRIM, No. 1241 [False Imprisonment: Hostage]; CALJIC, No. 9.61 [shield/protection from arrest]; on crime of holding hostage by person confined in prison, see infra, § 291.)

In People v. Gomez (1992) 2 C.A.4th 819, 3 C.R.2d 418, defendant forced the victim into the victim's car, drove to an alley, robbed her, tied her to a fence, and left in her car. The victim was released several hours later by a passing motorist. Held, conviction for violation of P.C. 210.5 reversed. The language of the statute “is unambiguous and plainly means there must be a threat or risk of imminent arrest.” That the imprisonment substantially increases the risk of harm is not, by itself, sufficient to violate P.C. 210.5. (2 C.A.4th 825.) The legislative history of the statute, which shows the intent to make false imprisonment of a hostage a felony under certain circumstances, buttresses this conclusion. (2 C.A.4th 826.)