How Is "Kidnapping" Defined Under California Law?
Under California Penal Code Sections 207, 208, 209, and 209.5, the crime of kidnapping is defined and criminalized. It is defined as moving another person any "substantial distance" absent that person's consent, and by means of force/fear.
Note that use of force/fear here means that the perpetrator actually inflicts physical force/harm on the victim OR that he threatens the imminent infliction of such physical force/harm.
And also note that if the kidnapping victim is 14 years old or younger, involves a ransom-demand, results in infliction of severe bodily harm, is kidnapped during a carjacking, or meets certain other specific criteria, it is "aggravated kidnapping" and will receive a more severe punishment (in fact, a sentence of life imprisonment.)
As to the requirement that the victim be "moved," it must be a "substantial" rather than a "trivial" distance. But note that more than the mere measurement of the distance moved in linear feet is involved in the determination of "substantial:" if the moving resulted in greater risk to the victim but lessened the chances of the perpetrator being detected, those factors will also be taken into consideration.
In fact, the meaning of "substantial" is somewhat fluid, decided almost on a case-by-case basis, which underscores the importance of having solid legal representation in these types of cases.
However, note that in the case of aggravated kidnapping based upon committing some other offense, such as carjacking, the movement cannot be incidental to the other offense. You cannot have aggravated tacked onto kidnapping just because the victim was in the car which in fact moved during a carjacking. But once you move the victim around by force or make him/her drive under duress, it can be aggravated kidnapping.
"Without consent" in kidnapping cases indicates the victim did not willingly agree to go with the perpetrator. The victim must have protested, resisted, silently complied due to fear of harm, or have been a child or mentally handicapped person or otherwise incapable of (legally) giving consent.
Finally, the victim must have been moved without his/her consent by means of physical force, fear, or fraud. Physical force being applied or the threat of it being used must be actual or imminent. But what about "fraud?" Fraud here would be the use of any form of deceit in order to get the victim to comply. Lying about where you are taking someone, using false promises, or using fanciful stories with a minor are fraud. Fraudulent consent is no consent at all since the victim is not even aware of what he/she is supposedly consenting to.
Possible Penalties for Kidnapping
First of all, note that kidnapping is a "continuing offense," so that as long as the victim is still being held against his/her will, it is the same act of kidnapping. Thus, you cannot be charged with multiple violations of California's kidnapping laws because you moved the same victim multiple times as part of the same overall incident.
However, the penalties for a single kidnapping conviction are very steep. And this is a felony level crime.
"Simple" kidnapping can get you 3 to 8 years in state prison and a fine as high as $10,000.
Aggravated kidnapping can get you 5 to 11 years in prison, but life imprisonment (with or without the possibility of parole) if a ransom was demanded, if any of various sex crimes were involved, if the kidnapping was related to a carjacking, if the victim is killed or suffers serious bodily injury, or if the victim was put in a situation where he/she likely could have been killed or seriously injured.
Also note that kidnapping is a violent crime and "serious felony" that counts as a "strike" under California's Three Strike Law. That means any future felony convictions can have doubled sentences or can result in 25 years to life in prison.
Common Defense Strategies
At Long Beach Criminal Defense Attorneys, we have successfully gotten many California kidnapping charges dismissed, acquitted, reduced to a lesser charge, or at least gained a less severe sentence. In fact, it is often possible to win kidnapping cases by using any of the following legal defenses:
- Consent to being moved: If the alleged victim consented to be moved, say in a car ride where no particular destination was stated or asked for, it is not kidnapping. But force/fear/fraud cannot have been used, and if one continues to move someone against his/her will after he/she had previously consented, it then becomes kidnapping. It could also be, however, that the plaintiff gave you good reason to believe that he/she consented to being moved, even if that was never the case.
- Unsubstantial movement: It may be that the victim was moved only a very slight distance, a matter of feet. And if the victim was not put in greater harm or the defendant made less likely to get caught, during a short move, it will not be considered a "substantial" distance.
- Present but not the kidnapper: In some situations, it might be possible that a friend of yours or someone else in your car, apartment, or home committed a kidnapping but you were not aware of that fact. You may have been given a story about why the kidnapped person was present and believed it, and the victim may have been too scared to tell you the truth. You are not guilty of kidnapping merely because you were present, but if you knew of it ahead of time or later "went along with it," then you would be guilty.
- Lack of evidence: In many cases, it may be that there is a serious lack of solid evidence that a kidnapping ever took place. It may be nothing more than two conflicting testimonies with little to nothing else to corroborate them. The standard of "beyond a reasonable doubt" still applies to serious crimes like kidnapping.
- False accusation: In some cases, it may be possible for the defense attorney to demonstrate that the allegations were fabricated. Some invent such accusations out of anger, jealously, or especially to try to win a child custody battle.
- Parental rights: The parent of a child who has custody over his/her child can legally travel with the child, even absent the other parent's permission. But, if the moving of the child was done to commit molestation or any illegal act, then custody becomes void and the parental rights defense won't work.
- Child protection: In some instances, a defendant may have taken and hid a child (under 14) to protect him/her from imminent danger of physical harm. That is not true kidnapping.
- Citizen's arrest: If someone was seen committing a felony crime or you have good reason to believe that person committed a felony, and you place them under citizen's arrest, that is different from kidnapping (even if you were mistaken about the criminal activity.)
Besides simple and aggravated kidnapping, here are other similar and related offenses that may come up in a kidnapping defense case:
- Kidnapping while carjacking (PC 209.5): If you commit not only a carjacking but also kidnapping, and if the victim is moved in a way more than "incidental" to the carjacking and puts the victim at greater risk than even just the carjacking would, it violates PC 209.5 and is punishable by life in prison (with parole possible.)
- Kidnapping and extortion (PC 210): When kidnapping includes the demand for a ransom, extortion, or the attempt to collect a reward for the return of the kidnapped person, it violates PC 210 and can get you 2 to 4 years in state prison.
- False imprisonment (PC 236): If kidnapping can't be proved, the prosecution may charge PC 236, false imprisonment, instead. This is merely detaining/confining/restraining someone against his/her will and against the law, but not necessarily moving them by force/fear/fraud. False imprisonment, then is always included in kidnapping, but kidnapping is not included in false imprisonment. PC 236 can be a misdemeanor or a felony, but even as a felony it carries up to 3 years in prison (not life in prison). Thus, it is often used by defense attorneys as a favorable plea deal when a dismissal or acquittal is not realistic.
- False imprisonment to protect from arrest (PC 210.5): If a false imprisonment (as defined above in relation to PC 236) is committed to help the perpetrator avoid getting arrested for some other crime, it is a more serious offense than mere false imprisonment. This crime is punishable by 3 to 8 years in prison. (But that is still a big step down from life in prison.)
- Child abduction (PC 278): If the defendant had no custody over a child but he/she acted to prevent that child from being with his/her parent(s) or guardian(s), it is child abduction, which can be charged on top of kidnapping, resulting in a heavy total sentence. This charge can be a misdemeanor or felony, and as a felony, it can get you up to 4 years behind bars and a fine as high as $10,000, besides the kidnapping conviction penalties.
- Child detention (PC 278.5): This crime is similar to child abduction in some ways, but it involves the violation of a child custody order and the violation of another parent's visitation rights. If the perpetrator had legal custody himself, it would not be kidnapping, but it would be the denial of the other parent's custody rights. But someone without custody can also violate PC 278.5, in which case, it is both child detention and kidnapping. PC 278.5 can be a misdemeanor or a felony. It is punishable by 12-months in county jail as a misdemeanor and by a maximum of 3 years in state prison as a felony.
As you can see, there are many detailed points and variations involved in any kidnapping defense case, and only a skilled defense attorney with substantial knowledge of these legal ins and outs can adequately defend you against such charges.
At Long Beach Criminal Defense Attorneys, we know what it takes to defeat kidnapping and related charges pre-trial or in-trial. And we understand when and how to negotiate for a favorable plea deal, always with our client's full knowledge and consent, when that is the best available option.
Contact Us Today For Help
At Long Beach Criminal Defense Attorneys, we stand ready to assist you 24/7/365 with top-tier criminal defense on a wide range of charges, including that of kidnapping.
We will know how to build you a solid defense and will waste no time in getting started on your case.
Call us anytime at (562) 308-7807 for a free consultation on the details of your case, or stop by at our local office located in Long Beach, CA, for an in-person consultation.