Under California Penal Code 207, moving another person for a significant distance against their will using force, fear, or fraud is an offense. You could face charges for simple kidnapping if you violate this statute. You will likely face severe punishment if you use force, fear, or fraud to move a minor under 14 through a significant distance against their will. You could also face harsher penalties if you inflict serious bodily harm on the child, cause death, or demand ransom after kidnapping. According to California's Three Strikes Law, kidnapping can attract a jail term, fines, and even a strike on your record. Consult a competent criminal defense attorney for legal counsel if you face kidnapping charges.
At Michele Ferroni Pasadena Criminal Attorney Law Firm, we have experienced attorneys who can help you create the best strategy to fight your charges.
Kidnapping Under California Law
Under California law, the crime of kidnapping is defined depending on the facts of the offense. According to Penal Code 207, the crime of simple kidnapping involves moving someone without their permission by use of fear, force, or fraud. On the other hand, this crime could be aggravated if the kidnapping involves moving someone without their consent by use of fear, force, or fraud and any of the following is true:
- The victim you moved was a child below 14 years under Penal Code 207(b).
- The victim sustained significant bodily injuries or died.
- You kidnapped a person during carjacking under Penal Code 209.5.
- You held a person for ransom under Penal Code 209(a) or Penal Code 210.
If the prosecutor accuses you of kidnapping, Penal Code 207 requires that the prosecutor prove the following elements for kidnapping charges to apply:
- You moved someone for a significant distance.
- Without the person’s permission.
- You executed the act using fear, force, or fraud.
You can only face kidnapping charges if you move someone for more than a trivial or slight distance. However, several factors could determine whether the movement was significant. The factors that the judge could consider include:
- If moving the victim reduced the possibility of you being caught.
- If the movement increased the likelihood of the victim suffering bodily harm, like taking somebody from the crowd in a club to an adjacent dark alley.
- The actual distance moved.
Movements that can qualify as significant to support kidnapping allegations include:
- You ordered someone at knifepoint to move for 40 to 50 feet from your driveway on the street to the inside of a camper in the driveway behind your house.
- You moved someone 840 feet on a major street in a vehicle when you emerged and forced them to continue driving.
- You moved someone 29 feet from the motel room to the bathroom to rape them.
On the other hand, movements that do not qualify as substantial enough to support kidnapping allegations include:
- Moving someone at gunpoint 40 feet through a parking lot towards your vehicle before you escape. Under California law, this movement is insufficient to justify kidnapping charges because the distance was within the parking, and you did not subject the victim to great bodily harm while moving them for this short distance.
- Dragging someone from the front of the laundromat to the back. In this case, you are not guilty of kidnapping because the incident occurred in a single room, and the movement was insufficient.
Generally, the judge's discretion determines whether the movement was substantial enough for you to face kidnapping charges. No set distance qualifies as significant.
Without The Person’s Permission
Under this element, the person could have put up a fight or protested before you moved them. This means the person did not volunteer to go with you. Under California law, certain people are incapable of giving consent. For example, mentally incapacitated people or children are deemed incapable of giving legal consent.
Using Force, Fear, Or Fraud
You can be guilty of kidnapping if you use violence, force, fear, or fraud. It is a crime under California law to move a person without their consent using fear or intimidation. Force or fear means you threatened to inflict bodily or physical harm on the victim. The following are examples of using physical force to execute a kidnapping act:
- Beating the victim to the point of no resistance.
- Physically dragging someone to a specified place.
- Physically restraining someone to move them later.
Using fear, on the other hand, could include:
- Issuing threats to cause harm to someone's family for refusing to meet your demands.
- Issuing threats to abuse someone for refusing to meet your demands.
- Ordering someone to comply at gunpoint or knifepoint.
Moving someone through fraud means doing so without force or fear. Fraud can be evident under several aggravated circumstances, including:
- Fraudulently kidnapping someone from one state and taking them to another state.
- Kidnapping someone from one state and taking them to another state with the intent to sell them or subject them to involuntary servitude or slavery.
- Kidnapping a minor below 14 years to commit lewd acts with a minor under Penal Code 288 PC.
Typically, fraud encompasses any intentional deception practiced for personal gain. If you mislead or make false promises to someone and the person is persuaded to move with you, you have fraudulently secured that permission. The permission secured through fraud amounts to no consent.
An individual can only freely accept doing something after understanding what that acceptance is for. You could be deemed to have acted without a person's consent if the person did not freely consent with an understanding of all the necessary facts. You could also violate kidnapping statutes if you continue to move a person through a substantial distance if the person initially agreed to move but withdrew their consent later.
Penalties for Kidnapping
If the judge finds you guilty of kidnapping, you could serve a lengthy jail term or, at times, even life imprisonment. Kidnapping is often regarded as a continuing offense. As long as you detain the alleged victim, the crime will continue. Even if you move the alleged victim from one point to another, the judge will charge you with one kidnapping case.
You could face kidnapping penalties based on the facts of your crime. Simple kidnapping is usually charged as a felony. The possible penalties you could face include the following:
- A fine that does not exceed $10,000.
- A jail term of three years, five years, or eight years in a state prison.
If the judge charges you with aggravated kidnapping, it will lead to the following penalties:
- A jail term of five years, eight years, or eleven years in state prison if the victim was a child below 14 years old when you committed the crime.
- If you kidnapped someone during a carjacking while committing a robbery or for a ransom, you face life in prison without the possibility of parole. You could also serve a life sentence without the possibility of parole if you kidnapped someone to extort them or to commit sex crimes like sodomy, rape, lewd acts with a minor, or oral copulation.
Senate Bill 384 allows a Sex Offender Registration requirement for people charged with kidnapping and found guilty of attempting to commit or committing any of the above sex offenses. You could also be required to register if you are convicted of kidnapping for life without the possibility of parole for kidnapping a person for ransom, extortion, or reward and:
- You put a person in a condition exposing them to a risk of death, or
- The person sustains bodily injury or dies.
Both simple and aggravated kidnappings are typically regarded as serious and violent felonies. You could face a strike on your record if you are found guilty of any crimes.
The judge will decide on the penalty you will face if the kidnapping crime is your first-strike crime. You will serve twice the sentence the judge imposes on you for kidnapping if the conviction results in a second strike on your record. You will serve a minimum of 25 years to life in prison if the kidnapping conviction results in a third strike.
Defenses Against Kidnapping Charges
Some of the defenses you could present to challenge your kidnapping charges include the following:
The victim’s memory could be affected by several factors, including:
- If the kidnapping happened in a dark place,
- If the victim did not see the perpetrator well because of a face mask,
- Memory loss because of the trauma the victim suffered from the incident.
- Memory loss because of alcohol or drug use.
The above factors could make the victim mistakenly identify you as a kidnapper. Your attorney could seek the services of a medical expert to explain how memory works and prove to the judge that you are innocent. Any corroborating evidence could be removed from your charges if the kidnapping victim's memory is unreliable. In this case, your charges could be dismissed or reduced.
Often, false allegations are born out of a need for revenge, jealousy, or hatred. A victim could allege that you kidnapped them or another person to satisfy any of the above emotions. False accusations are common between entangled romantic partners or in highly contested child custody hearings.
The victim could have accused you of kidnapping out of malice or anger. Your attorney could use the victim's emotions to prove to the court that the victim made the accusations with ill will or malice. For example, you could pick a colleague for lunch, yet you recently received a promotion that your colleague was eyeing. Out of jealousy, your colleague calls the police, accusing you of kidnapping them and alleging that he/she had withdrawn consent to accompany you. In this case, your colleague’s claims are an emotional reaction. The prosecutor must prove that your colleague withdrew their consent. Your attorney, on the other hand, could use the emotional response to establish the false accusation defense.
No Sufficient Movement
You can only face kidnapping charges if the judge is convinced you moved someone a distance to facilitate an offense or escape, no matter how slight. You could also face charges if the movement were more than incidental to the crime at hand. Similarly, you could face kidnapping charges if it was possible that your accuser could sustain injury because of the movement. If the prosecutor fails to prove that the distance was significant based on the above elements, your kidnapping charges could be dismissed or dropped.
You Were Only Present, But You Were Not A Kidnapper
Sometimes, without your knowledge, you could walk with friends who have kidnapped another person. Your attorney could present this defense if law enforcement arrested you and found the kidnapped person. In this situation, the prosecutor must prove you had prior knowledge of the conspiracy to kidnap the person. The prosecutor must also prove that you were in the company of your friends when they kidnapped the alleged person. However, the prosecutor could accuse you of aiding and abetting kidnapping. It means that you encouraged, facilitated, or aided the kidnapping.
Generally, the prosecutor will be required to prove the following to the court:
- You knew about the kidnapping plot.
- You purposefully encouraged or facilitated the plan.
- You promoted, instigated, or failed to prevent the kidnapping in cases where the law gives you powers to report the offense.
You will face a punishment similar to the actual kidnapper if the judge finds you guilty of aiding and abetting kidnapping.
Parental Right to Travel With the Child
The claims of kidnapping are common among partners facing a child custody trial. For example, the partner without lawful custody could have taken the child on a trip, but the other spouse accuses them of kidnapping the child. While this could violate a child custody order, it does not qualify as kidnapping. The law allows a parent to take the child on a trip.
However, this defense does not apply if you move the child to facilitate an offense. Usually, the judge will reduce your charges to a deprivation of a child custody order, depending on the facts of your case.
The Victim Agreed To Move
This defense could be permissible if you prove the following:
- The victim freely and willingly agreed to be relocated.
- The victim was conscious of the movement.
- The victim had sufficient knowledge and maturity to consent to the movement.
Your attorney could present this defense if your charges meet the above threshold. This defense could also be valid if you reasonably believed the victim agreed to be moved. Your attorney could claim that you thought the victim agreed to be moved, even though this was false.
If a person initially agrees to go with you for a distance and later changes their decision, you do not have permission to proceed. You could face kidnapping charges if you move a person after their withdrawal of consent.
There are several exemptions under the California kidnapping laws where some cases could bear the hallmarks of kidnapping while others do not. You will likely not face kidnapping charges if:
- You make a citizen’s arrest and put them behind bars. Penal Code 837 permits private individuals to carry out the arrest. However, an arrest can only be lawful if the victim attempted or committed a crime in your presence or if you believe the victim committed a felony. The arrest could also be legal if a felony happened and you reasonably thought the victim committed the crime.
- You harbor, steal, take, or conceal a minor under the age of 14 to protect the child from imminent danger.
The crimes that could be charged alongside kidnapping include the following:
Kidnapping in the Course of Committing a Carjacking — Penal Code 209.5
It is a crime under Penal Code 209.5 for any person to kidnap someone as part of the commission of a carjacking. If the prosecutor accuses you of violating PC 209.5, the prosecutor must prove the following elements:
- You committed a carjacking.
- You took, detained, or held another person during the carjacking by using force or instilling reasonable fear.
- You made the person move or moved the person a significant distance from the carjacking area.
- You moved or made the other person move to facilitate the carjacking.
- The person who moved was not a participant in the carjacking.
- You forced the person to move against their will.
Penal Code 209.5 is usually charged as a violent felony. You could face a jail term in a state prison instead of a county jail for life with the possibility of parole. A charge for this crime could also earn you a strike on your record under the three-strike statutes.
Unfortunately, you cannot apply for an expungement if you are guilty of this crime. Under California law, you cannot obtain an expungement if a conviction leads to confinement in a state prison.
Some of the defenses you could use to fight your Penal Code 209.5 charges include the following:
- You were falsely accused.
- The alleged victim consented.
- You had permission to take the vehicle.
Extortion By Pretending To Be A Kidnapper — Penal Code 210 PC
It is a crime under PC 210 to seek reward money or ransom by pretending to be a kidnapper. You could be guilty under this statute if you aim to secure the ransom, a reward, or extort money for the release of an alleged kidnapped individual by posing as:
- The kidnapper.
- A person with the capacity to secure the victim’s release.
- Someone who has aided and abetted the kidnapper.
- Someone who has detained the victim.
You could typically face the following penalties if the judge finds you guilty of violating Penal Code 210:
- A jail term of two years, three years, or four years in a state prison.
- Probation with up to one year in a county jail.
However, several defenses are available that you can use to fight your PC 210 charges. They include:
- You are a victim of mistaken identity.
- You had good faith to believe that you could secure the release of the kidnapped person and that you did not play any role in the kidnapping.
- You have been falsely accused.
False Imprisonment of a Hostage to Avoid Arrest — Penal Code 210.5
Penal Code 210.5 offense is also known as taking a human shield. You could violate this crime if you are facing the risk or threat of imminent arrest and you falsely imprison someone else to:
- Use the individual as a human shield.
- Protect yourself from arrest.
This statute is essentially meant to protect against hostage situations where you use the victim as a bargaining tool to avoid arrest, either because:
- You believe law enforcement will not injure the victim if you use them as a shield to escape.
- You threaten to kill or cause injury to the victim if law enforcement does not let you go.
This Legislature passed this law in 1987 to impose severe punishment for the false imprisonment of a hostage instead of the general statute prohibiting false imprisonment. Penal Code 237 PC prohibits the ''generic'' kind of false imprisonment charged as a wobbler crime. You could face misdemeanor or felony charges, depending on your criminal history and the facts of your case.
Felony charges under PC 237 attract a jail term that does not exceed three years in county jail. The Legislature, however, made violation of PC 210.5 an automatic felony. In this case, you could face a jail term of three, five, or eight years in a county jail.
Some of the defenses you could present to challenge your charges include:
- The victim consented.
- There was no increased danger to the victim.
- There was no imminent threat of arrest.
Find a Criminal Defense Attorney Near Me
Kidnapping is a serious crime under California law. If the court convicts you of this crime, you could face lengthy imprisonment in state prison, hefty fines, and paying restitution to the victim. Contacting an attorney immediately after you learn you are being investigated for kidnapping is essential. If you need legal representation that you can rely on in Pasadena, we invite you to contact the Michele Ferroni Pasadena Criminal Attorney Law Firm. We have highly experienced attorneys who can help you create a convincing legal defense to fight your charges. Contact us at 626-628-0564 to speak to one of our attorneys.