In California, kidnapping is a serious crime and a conviction could lead to some some heavy penalties.
California’s kidnapping laws are found under Penal Code 207, 208, 209 and 209 PC. You are in violations of these laws if you are guilty of all of the following:
- Moving another person a substantial distance
- Without his or her consent
- By using using force (inflicting physical force upon them) or fear (threatening to physically harm them)
Moving the alleged victim
In order to be guilty of kidnapping, you need to move the victim a substantial distance. In order to determine whether the distance is substantial enough to be considered kidnapping, several factors are taken into account, including:
- The actual distance that the victim was moved
- Whether moving the victim that distance made the kidnapper less likely to be caught
- Whether moving the victim that distance increased the risk of ham to the victim (such as moving the victim out of view of potential witnesses)
It is possible for kidnapping charges to be supported by movement of a very short distance under certain circumstances. For example, if the defendant were to move the victim only 30 feet out of the view of potential witnesses in order to rape or otherwise physically harm them.
This short distance is considered substantial enough because the intention of the movement is to make it easier to inflict harm upon the victim.
Lack of consent
In order for kidnapping charges to be supported, the victim must be moved without their consent.
This means that the victim either put up a fight, or did not voluntarily agree to go with the defendant. Children and people who are intoxicated or otherwise mentally incapacitated are considered able to give consent.
Force, fear or fraud
In order to be convicted of kidnapping, it is not enough to simply move the victim, you must use physical force, threats of physical harm, or fraud in order to do so. This could include restraining or dragging the victim (force) or threatening the victim with a knife or a gun (fear).
When it comes to fraud, it is not enough to be convicted of kidnapping to use fraud as a means to move someone without also using force or feat. Fraud only enters the equation in various “aggravated” kidnapping circumstance, for example, fraudulently kidnapping someone in order to sell them into slavery.
“Simple” and “aggravated” kidnapping laws
In California, there are two main types of kidnapping offenses: “simple” and “aggravated” kidnapping. “Simple” kidnapping is when you move another person a substantial distance without his or her consent using force or fear, as stated above.
“Aggravated” kidnapping, which results in greater penalties than “simple” kidnapping, includes using force, fear, or fraud in order to move another person a substantial distance without their consent.
Additionally, “aggravated” kidnapping must include at least one of the following factors:
- You hold the victim for ransom
- The victim suffers bodily harm or death as a result of the kidnapping
- The victim is under 14 years of age
- The victim is kidnapped during a carjacking
Penalties for “simple” and “aggravated” kidnapping are explained below.
There are several offenses that are related to kidnapping or that are special circumstances of kidnapping that fall under specific penal codes. Additionally, penalties for some of these offenses may vary from the penalties given for other charges of “simple” or “aggravated” kidnapping.
California’s child abductions law, Penal Code 278 PC, makes it illegal to maliciously try to keep a child you do not have legal custody over from the child’s legal parent or guardian. It is possible to be charged with child abduction in addition to kidnapping if the victim is a child who you do not have legal custody over.
Child abduction is what is known as a “wobbler” offense, which means that it can be charged as either a misdemeanor or a felony. If charged as a felony, the penalties for child abduction include up to 4 years in county jail and a fine of up to $10,000. If you are convicted of child abduction in addition to kidnapping, you may be ordered to serve the sentences for the two violations consecutively.
Deprivation of a child custody order
According to Penal Code 278.5 PC, also known as “child detention,” it is illegal to abduct a child in violation of a child custody order or visitation right. This offense is different from child abduction in that you can still violate this law even if you are a parent or guardian with legal custody of the child. It is also possible to be charged with violating Penal Code 278.5 PC without also being charged with kidnapping.
Like child abduction, deprivation of a child custody order is a wobbler offense and penalties could include up to 1 year in jail if charged as a misdemeanor and up to 3 years in jail if charged as a felony.
Kidnapping in connection with extortion
According to California Penal Code 210 PC, it is illegal to commit extortion by posing as a kidnapper. For example, if you pose as someone who has kidnapped a person in order to obtain ransom money, you would be guilty of violating Penal Code 210 PC.
Kidnapping during a carjacking
It is illegal to kidnap a person during a carjacking under California Penal Code 209.5 PC. This offense applies if the victim is moved a substantial distance from the area where the carjacking took place and if the movement of the victim increased the risk of harm beyond the risks of the carjacking itself. If convicted of violating Penal Code 209.5 PC, you may be sentenced with life in prison with the possibility of parole.
Penal Code 236 PC, California’s false imprisonment law, is a lesser crime than kidnapping that prosecutors will sometimes charge a defendant with if they can’t prove kidnapping. It is also possible for the prosecutor to charge the defendant with kidnapping but for the judge or jury to instead find him or her guilty of the lesser charge of false imprisonment instead. A defense attorney may also make a plea to have the defendant’s kidnapping charges reduced to false imprisonment. Penal Code 236 PC is another wobbler charge and penalties for a felony conviction include up to 3 years in county jail, a lighter sentence than is given for kidnapping charges.
Penalties for kidnapping
If convicted of kidnapping, you may be facing some very tough penalties, including the possibility of life in prison. Penalties for kidnapping depend on whether you are charged with “simple” or “aggravated” kidnapping as well as other specific circumstances of your case. Additionally, because both “simple” and “aggravated” kidnapping are considered serious and violent felonies, they are subject to California’s three strikes law.
“Simple” kidnapping is a felony that results in the following penalties:
- 3, 5, or 8 years in state prison and
- A fine of up to $10,000
“Aggravated” kidnapping is also a felony that results in the following penalties related to particular aggravating factors:
- If the victim was under 14 years of age at the time of the kidnapping you may be sentenced to 5, 8, or 11 years in state prison.
- If you kidnapped the alleged victim for ransom, reward, or extortion or for any of a number of California sex crimes, you may be sentenced to life in state prison with the possibility of parole.
- If the victim suffers death (or is placed in a situation that is likely to result in death) or bodily harm, you may be sentenced to life in state prison without the possibility of parole.
The three strikes law
A conviction of “simple” or “aggravated” kidnapping counts as a “strike” under California’s three strikes law. This means that, if the kidnapping conviction is your first strike, you will receive a second strike on your record for any subsequent felony charges you receive.
If you receive three strikes on your record, either as a result of your kidnapping charges or following your kidnapping conviction, you will be sentences to a mandatory minimum sentence of 25 years-to-life in a California state prison.
Legal defenses to kidnapping charges
There are a number of possible defenses that a California criminal defense attorney may use to defend you against kidnapping charges including:
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Without credible eyewitnesses, charges of “simple” kidnapping are difficult to prove. If the only evidence is the word of the alleged victim, your attorney may be able to claim that you have been falsely accused. Without credible eyewitnesses or evidence such as records of phone calls placed by the victim seeking help, the evidence against you may be insufficient.
You are not guilty of kidnapping if the alleged victim consented to be moved. Even if the alleged victim consents to be moved and later changes his or her mind (for example, if he gets in the car with you and after moving toward another location, changes his mind and wants to be returned to the original location) the consent to be moved is still valid and you are not guilty of kidnapping.
However, if the alleged victim changes his mind and wants to be returned to his original location but you continue to move him against his will, you have begun to violate the “force, fear, or fraud” element of California’s kidnapping laws and consent cannot be used as a valid defense against kidnapping charges.
In order to be convicted of kidnapping, the prosecution must prove that you moved the alleged victim a substantial distance or a distance that allowed you to inflict additional harm upon the victim. If you moved the alleged victim an insignificant distance or a short distance that did not enhance the ability to inflict harm upon the victim, then you may be able to claim that the movement was insufficient to constitute kidnapping.
You were present but not the kidnapper
If you were not aware of a kidnapping taking place or were simply in the wrong place at the wrong time, you may be able to have the kidnapping charges against you dropped.
However, if you aware of the plans of the actual kidnapper and decided to remain present while the kidnapping took place, or if you encouraged or facilitated the kidnapping, you may still be charged with aiding and abetting a kidnapping and will face the same penalties as the kidnapper.
If you have legal custody of a child, you cannot be convicted of kidnapping that child. If you move the child a substantial distance (out of state, for instance) without the permission of the child’s other parent(s) or legal guardian(s), it is possible that you may be charged with deprivation of a child custody order under Penal Code 278.5 PC.
In the state of California, the laws against kidnapping are tough and carry harsh penalties. As an experienced criminal defense attorney, I can help to answer questions you may have about any kidnapping charges you may have against you and find the best possible strategy to defend you against those charges. Contact my firm today to set up a free case review.