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Name: People v. Jones
Case #: D039146
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 05/01/2003
Subsequent History: None

After visiting with his four-month-old son and the child’s mother, appellant put the child in his car and drove away, refusing to let mother into the car. He subsequently murdered the child and buried him, in order to get revenge over the mother and her father, who he believed was responsible for the mother’s refusal to marry him. He was convicted of first degree murder, and a special circumstance alleging murder during a kidnap was found true. On appeal, Jones argued that the kidnap conviction should be reversed because this crime was preempted by the child abduction law, where a parent abducts his own child. (Pen. Code, sec. 278.) The appellate court rejected that argument, finding that neither preemption test was met. First, the two crimes had different elements, even when the victim is an infant. (Kidnap involves asportation and abduction does not; abduction requires an intent to conceal the child, and kidnap does not.) Second, the Legislature did not intend the child abduction law to preclude application of the kidnap law under the circumstances of this case. Further, the jury was not improperly instructed on the “illegal intent or purpose” element of kidnap. There is no legal impediment to holding that a noncustodial parent may be convicted of kidnap if the intent and purpose of the movement is to illegally separate the child from the parent who has lawful custody. Nor was it error for the court to have instructed the jury that it could find Jones guilty on a felony-murder theory. Although the jury was instructed that they had to find that Jones had a specific intent to kidnap in order to find him guilty on that theory, appellant argued that the jury could have disregarded that instruction because of the “illegal purpose or intent” instruction. However, that instruction was given because of the additional element that must be proved because the minor was an infant. A reasonable jury would not have read it to negate the earlier specific intent instruction.