CALCRIM No. 731

Felony—Kidnapping With Intent to Kill After March 8, 2000 (Pen.

Code, § 190.2(a)(17))

The defendant is charged with the special circumstance of intentional

murder while engaged in the commission of kidnapping [in violation of

Penal Code section 190.2(a)(17)].

To prove that this special circumstance is true, the People must prove

that:

1. The defendant (committed [or attempted to commit][,]/ [or] aided

and abetted[,]/ [or] was a member of a conspiracy to commit)

kidnapping;

2. The defendant (intended to commit[,]/ [or] intended to aid and

abet the perpetrator in committing[,]/ [or] intended that one or

more of the members of the conspiracy commit) kidnapping;

<Give element 3 if defendant did not personally commit or attempt

kidnapping.>

[3. If the defendant did not personally commit [or attempt to

commit] kidnapping, then another perpetrator, (whom the

defendant was aiding and abetting/ [or] with whom the defendant

conspired), personally committed [or attempted to commit]

kidnapping;]

(3/4). (The defendant/ <insert name or description of person

causing death if not defendant>) did an act that was a substantial

factor in causing the death of another person;

AND

(4/5). The defendant intended that the other person be killed.

To decide whether (the defendant/ [and] the perpetrator) committed [or

attempted to commit] kidnapping, please refer to the separate

instructions that I (will give/have given) you on that crime. [To decide

whether the defendant aided and abetted the crime, please refer to the

separate instructions that I (will give/have given) you on aiding and

abetting.] [To decide whether the defendant was a member of a

conspiracy to commit the crime, please refer to the separate instructions

that I (will give/have given) you on conspiracy.] Y ou must apply those

instructions when you decide whether the People have proved this

special circumstance.

<Make certain that all appropriate instructions on underlying kidnapping,

aiding and abetting, and conspiracy are given.>

An act causes death if the death is the direct, natural, and probable

consequence of the act and the death would not have happened without

the act. A natural and probable consequence is one that a reasonable

person would know is likely to happen if nothing unusual intervenes. In

deciding whether a consequence is natural and probable, consider all the

circumstances established by the evidence.

There may be more than one cause of death. An act causes death only if

it is a substantial factor in causing the death. A substantial factor is more

than a trivial or remote factor. However, it does not need to be the only

factor that causes the death.

[If all the listed elements are proved, you may find this special

circumstance true even if the defendant intended solely to commit

murder and the commission of kidnapping was merely part of or

incidental to the commission of that murder.]

New January 2006; Revised August 2013, August 2016