Kidnapping for Ransom with Bodily Harm

My question involves criminal law for the state of: California

Defendant and three co-participants commit kidnapping for ransom early 2000's in California. Defendant and one juvenile defendant detained and sentenced in California, the other two in Tijuana, Mexico. One victim is injured with a knife (bodily harm) by a co-participant during two instances. At the start when victim attempted to flee (a cut on arm), and during a second attempt to flee, defendant and co-participant chase after victim and is detained. Co-participant cuts victim with knife. According to trial transcripts, defendant from the start said victims wouldn't be hurt; however, co-participant does so regardless (this co-participant is one of the ones detained in Mexico).

Defendant was the only one detained in USA and is sentenced with one count of kidnapping for ransom with bodily harm and given LWOP.

Jury were not given the instruction below to prove bodily harm, they were only given vague CALJIC 9.53 instructions. The issue here is of whether defendant could reasonably foresee these knife injuries (I don't believe he could have as they had agreed victims would not be harmed and defendant verbally communicated this to the victims and co-participants) and of proximate cause. Reason I don't think there was proximate cause from defendant is because chasing and detaining victim was not a cause of the injury as that could have been done without injuring victim and if he would have stayed behind (which defendant actually says he did) and only co-participant chases victim, co-participant would still have injured victim himself regardless.

Was this an erroneous sentence? Shouldn't it have been Life with Parole? The bodily harm and the burden of proof by the people (Jury) to include bodily harm on that count was not objected by defense.

Can a post conviction relief attorney fight this in the 9th circuit and supreme court for re-sentence?

Unfortunately, this was not properly fought on appeal by defendant as state issued appellate defense had no clue and did not raise this issue.

California Criminal Law 1202

[If you find the defendant guilty of kidnapping for (ransom [,]/ [or] reward[,]/ [or] extortion), you must then decide whether the People have proved the additional allegation that the defendant (caused the kidnapped person to (die/suffer bodily harm)/ [or] intentionally confined the kidnapped person in a way that created a substantial risk of death).

[Bodily harm means any substantial physical injury resulting from the use of force that is more than the force necessary to commit kidnapping.]

[The defendant caused ______'s<insert name of allegedly kidnapped person> (death/bodily harm) if:

1. A reasonable person in the defendant's position would have foreseen that the defendant's use of force or fear could begin a chain of events likely to result in ______'s <insert name of allegedly kidnapped person> (death/bodily harm);

2. The defendant's use of force or fear was a direct and substantial factor in causing ______'s<insert name of allegedly kidnapped person> (death/bodily harm);

AND

3. ______'s<insert name of allegedly kidnapped person> (death/bodily harm) would not have happened if the defendant had not used force or fear to hold or detain <insert name of allegedly kidnapped person>.
A substantial factor is more than a trivial or remote factor. However, it need not have been the only factor that caused ______'s <insert name of allegedly kidnapped person> (death/ bodily harm).]

The People have the burden of proving this allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved.]

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Quoting Germanicus

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Was this an erroneous sentence? Shouldn't it have been Life with Parole? The bodily harm and the burden of proof by the people (Jury) to include bodily harm on that count was not objected by defense.

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In order to know if the jury instruction and the sentence was proper one would need to review the actual charges brought, the trial transcript, the specific jury instructions given, and the sentencing order. That is what makes dealing with this on an internet message board difficult. We simply don’t have everything needed to answer the question.

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Quoting Germanicus

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Can a post conviction relief attorney fight this in the 9th circuit and supreme court for re-sentence?

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A direct appeal to those federal courts would not be possible. Had the defendant raised an appeal in the state courts of a federal issue in the case, i.e. an issue involving the federal constitution, federal statute, etc, then once all the state appeals had been exhausted the defendant could have sought appeal in the U.S. Supreme Court on the federal issues of law only. The U.S. Supreme Court does not rule on issues of state law. The California Supreme Court is the final arbiter of California law, and much of what you raise are issues of California law.

If the defendant believes he has a federal constitutional issue here he may still be able to challenge the sentence by bringing a habeas corpus complaint in federal district court. This is a very specialized type of proceeding and the defendant would want an attorney familiar with such actions in federal court to represent him on it. He should look for one who is also familiar with California post-conviction relief proceedings to help on the state law issues at the same time. It is too late to bring a direct appeal of the matter in state court, but there may be another avenue available to bring up the issues he has.

No, it wasn't an erroneous sentence and the CALJIC instruction proper lays out the elements. It's not just the instruction, it's also the arguments of counsel and the actual evidence presented. The aggravated kidnapping statute does not require the defendant reasonably foresee an injury occurring, it only requires that the person suffer injury. I suspect the jury was also instructed on natural and probable consequences which sinks the defendant. In your fact scenario, the jury was not going to buy a defense of "I didn't think he'd get hurt" particularly when he was forcefully recaptured twice.

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Quoting LegalWriter

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No, it wasn't an erroneous sentence and the CALJIC instruction proper lays out the elements. It's not just the instruction, it's also the arguments of counsel and the actual evidence presented. The aggravated kidnapping statute does not require the defendant reasonably foresee an injury occurring, it only requires that the person suffer injury. I suspect the jury was also instructed on natural and probable consequences which sinks the defendant. In your fact scenario, the jury was not going to buy a defense of "I didn't think he'd get hurt" particularly when he was forcefully recaptured twice.

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It DOES require reasonable foreseeability and proximate cause when the defendant DID NOT directly inflict the injury. Then the people must prove that using the instruction I provided. This is CA law. Doesn't matter what you suspect sir, I have the trial transcirpt all 1000 plus pages. The jury and the court did not go into proving bodily harm was inflicted by defendant inorder to apply the LWOP. When mentioned defense did not have any objections and the court moved forward to sentencing.

He didn't have to inflict the injury, himself. PC 209 includes aiders and abettors--ALL persons involved. There's also an underlying conspiracy involved which doesn't have to be actually charged in order to apply.

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Quoting LegalWriter

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He didn't have to inflict the injury, himself. PC 209 includes aiders and abettors--ALL persons involved. There's also an underlying conspiracy involved which doesn't have to be actually charged in order to apply.

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We're not trying to discuss whether the defendant is guilty of kidnapping for ransom. We are discussing whether LWOP was a proper sentence versus Life with Possabillity of Parole. In order to establish whether soemone who did not inflict the injury gets LWOP the instruction I shared HAS to be used, the people and the court has a DUTY to do so.

What does conspiracy have to do with the discussion? May I remind you this trial happened 14 years ago and there is no need to speculate on anything else. Conspiracy charge was stayed if you must know.

Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the crime.

If the prosecution alleges that the kidnapping resulted in death or bodily harm, or exposed the victim to a substantial likelihood of death (see Pen. Code, § 209(a)), the court has a sua sponte duty to instruct on the sentencing factor. (See People v. Schoenfeld (1980) 111 Cal.App.3d 671, 685-686 [168 Cal.Rptr. 762] [bodily harm defined]); see also People v. Ryan (1999) 76 Cal.App.4th 1304, 1318 [76 Cal.Rptr.2d 160] [court must instruct on general principles of law relevant to issues raised by the evidence].) The court must also give the jury a verdict form on which the jury can indicate whether this allegation has been proved. If causation is an issue, the court has a sua sponte duty to give the bracketed section that begins "The defendant caused." (See Pen. Code, § 209(a); People v. Monk (1961) 56 Cal.2d 288, 296 [14 Cal.Rptr. 633, 363 P.2d 865]; People v. Reed (1969) 270 Cal.App.2d 37, 48-49 [75 Cal.Rptr. 430].)

This is beyond the scope of the forum, as you have been told already.

Go back and re-read Taxing's answer. The defendant needs a heck of a lawyer if they expect to do anything about this. 99% of the responders here are simply well-educated lay people and not attorneys. The attorneys who are here, one of whom has responded to you, can only give general information and point someone in the right direction as they don't have access to what an attorney needs access to to properly deal with this situation.

After reading the first half of the post, I couldn't shake the feeling that the OP is wanting some help with homework.

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Quoting souperdave

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After reading the first half of the post, I couldn't shake the feeling that the OP is wanting some help with homework.

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No, actually, I want to assess whether this case is worth hiring an attorney for thousands of dollars 12k plus and then after that I was hoping to get recommendations on post conviction/appellate attorneys.

Thank you for those who answered professionally and without opinionated garbage. I leave this forum with the following review that I had read before creating an account and I can now attest to it's validity.

"As others have pointed out, this web forum is full of condescending troll like creatures who will essentially attack you like a swarm of flies. Every few years, long enough for me to forget I used them in the past, I'll have a legal question and post it there. I have done this on 3 occasions over the last 10 years with different accounts, as I said, enough time passed I had forgotten I'd been there before initially. Now that I've thought about it, every time the result has been the same. The culture of the "senior members" as I said is absolutely toxic, no real useful information to be gleaned, their only purpose is their own perverted sense of satisfaction by putting other's down. And as you might expect, most of them are not actual lawyers."

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Quoting Germanicus

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No, actually, I want to assess whether this case is worth hiring an attorney for thousands of dollars 12k plus and then after that I was hoping to get recommendations on post conviction/appellate attorneys.

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No one here can provide such an assessment given the small amount of information available. We do not provide recommendations either. Your local bar should be able to assist you there.

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Quoting Germanicus

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"As others have pointed out, this web forum is full of condescending troll like creatures who will essentially attack you like a swarm of flies. Every few years, long enough for me to forget I used them in the past, I'll have a legal question and post it there. I have done this on 3 occasions over the last 10 years with different accounts, as I said, enough time passed I had forgotten I'd been there before initially. Now that I've thought about it, every time the result has been the same. The culture of the "senior members" as I said is absolutely toxic, no real useful information to be gleaned, their only purpose is their own perverted sense of satisfaction by putting other's down. And as you might expect, most of them are not actual lawyers."

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The review sites almost overwhelmingly contain responses from people who didn't like when they were told something legally correct, got pissy about it and then got pissed off as a result. The vast majority of the information given on this forum is factually and legally correct. Do things sometimes get a little catty? Yes, often incited by someone not liking what they are told.

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Quoting Germanicus

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No, actually, I want to assess whether this case is worth hiring an attorney for thousands of dollars 12k plus and then after that I was hoping to get recommendations on post conviction/appellate attorneys.

Thank you for those who answered professionally and without opinionated garbage. I leave this forum with the following review that I had read before creating an account and I can now attest to it's validity.

"As others have pointed out, this web forum is full of condescending troll like creatures who will essentially attack you like a swarm of flies. Every few years, long enough for me to forget I used them in the past, I'll have a legal question and post it there. I have done this on 3 occasions over the last 10 years with different accounts, as I said, enough time passed I had forgotten I'd been there before initially. Now that I've thought about it, every time the result has been the same. The culture of the "senior members" as I said is absolutely toxic, no real useful information to be gleaned, their only purpose is their own perverted sense of satisfaction by putting other's down. And as you might expect, most of them are not actual lawyers."

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Do you have any idea how utterly foolish that makes you look?

I suppose not.

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Quoting Dogmatique

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Do you have any idea how utterly foolish that makes you look?

I suppose not.

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No, thanks for letting me know; awesome help! You're a bright one!

The defendant had a right, following conviction to a direct appeal. Any collateral appeal after that has to be timely or it will be procedurally barred. 10+ years after the fact is way too late besides the fact that the issue you want to challenge is the application of the facts to the law, which is a state-law matter, not a federal issue.