Moving a person through a substantial distance through fear or force is an offense under PC 207. Additionally, holding and detaining another without his/her consent through force or fear will also result in PC 207 violation charges. Simple kidnapping, a felony offense, is punishable by up to eight years in prison. The penalties increase to life in prison if the victim sustained injuries, was killed, was a child, demanded a ransom or the kidnapping was part of a carjacking.
At Chula Vista Criminal Attorney, we are ready to offer legal assistance to you or your loved one who faces kidnapping charges. This article addresses kidnapping facts as detailed in California law to help you better understand and prepare for the challenges associated with kidnapping charges.
Kidnapping Under California Law
When someone mentions kidnapping, most assume kids are the victim. The assumption is founded because kids form a significant portion of kidnap victims. However, the law also encompasses adults as victims in a kidnapping case.
Kidnapping occurs in two forms, simple or aggravated kidnapping. PC 207 describes simple kidnapping, while PC 209 describes aggravated kidnapping.
PC 207 outlines that a perpetrator must use fear or force against the victim and move said victim across a substantial distance. Whereas PC 209 defines aggravated kidnapping as taking a person for a reward or ransom. Additionally, if the offender kidnaps the victim to commit another offense like raping, sodomizing, or robbing the victim, such action amounts to aggravated kidnapping.
Therefore, the following scenarios fit the above definitions and will result in prosecution for kidnapping.
- Convincing a child to accompany you to buy a meal, while your true intention is to hide the child from your spouse to get back at your spouse for cheating.
- Holding a gun to a driver’s head and ordering them to drive their car to a different location.
- Lifting an individual off the streets and driving the victim to an unknown location and holding him/her until a ransom is paid.
- Taking a passenger in your ride-share vehicle to a different location against their will
The above examples all have particular elements that a prosecutor needs to establish to secure a conviction, namely:
- The defendant took, detained, or held the victim through force or fear
- The defendant moved the victim over a substantial distance by using force or fear
- The victim did not consent to the defendant’s actions
- The defendant did not reasonably or actually believe that the other individual agreed to the movement
Let us address each element in detail.
Moving Another Person
Kidnapping only arises when the defendant moves the victim over a substantial distance. Various factors determine whether the movement fits the significant threshold, namely:
- The actual distance moved,
- Whether the distance moved is more than incidental to the crime committed, other than kidnapping,
- Whether the movement increased the risk of psychological and physical harm to the victim, and
- Whether the movement decreased the likelihood of detection or increased the possibility of the kidnaper committing additional crimes
Take note: No set distance automatically qualifies as substantial. The length is a question of fact determined by the jury or judge. Therefore, even a slight distance is considered if the prevailing circumstances convince the jury or judge the case warrants kidnapping penalties.
For example, a defendant moves a victim from the dining room to the basement 30 feet away to rape the victim. The distance, at first instance, is dismissible as short. However, the defendant aimed to avoid detection and facilitate the rape. The defendant's intention to avoid detection will convince the jury to consider the distance substantial.
Without the Alleged Victim’s Consent
The lack of consent simply describes the victim not agreeing with the movement. They must have protested or put up a fight. However, this standard is limited to adults capable of giving consent.
When a child or a mentally incapacitated adult is the victim, the threshold is lowered since both cannot give consent.
Force or Fear
You will be found guilty if the prosecution establishes you used intimidation, fraud, or force in forcing the victim to move the distance. Fear or force, in this case, points to threatening the victim to inflict physical force or threatening to inflict bodily injury if he/she fails to comply.
Here are a few examples that qualify as the use of force or fear.
- Pointing a gun and instructing the victim to get in and drive off
- Physically restraining the victim to move him/her through a distance
- Beating the victim to a point he/she no longer resists
- Drugging a victim to move them to a different location.
Note: The court will consider the threats to the victim and any danger of harm to the victim's immediate family. Further, the threats are not limited to physical injury but also include sexually charged threats.
If a child is a victim in the case, the force used to take the child away is enough to satisfy the use of fear or force.
Use of Fraud
Activities that deceive victims into participating in activities to their disadvantage while bringing personal gain to the perpetrator amount to fraud. This definition encompasses lying, falsifying facts, false promises, and any other misrepresentation to the victim to convince the victim to offer their consent to the move.
While the victim offers consent, the consent is predicated on misrepresentation. Under California law, this consent is fraudulent as the victim was denied material facts to give his/her permission freely. Further, you are liable for kidnapping if the victim offers their consent and later withdraws it, and you still move him/her through a substantial distance.
Fraud is not a stand-alone element enough to find you guilty of kidnapping. It must be coupled with the use of fear or force. However, fraud primarily features in aggravated kidnapping cases.
If the following are established as circumstances in your case, you will face aggravated kidnapping penalties upon conviction.
- Fraudulently kidnaping a minor to commit lewd acts with the child — A minor in this situation is a child below 14 years. The DA could also introduce Penal Code 288 violation charges if it is determined the defendant engaged in lewd conduct with the minor.
- Fraudulently kidnapping another for purposes of leaving California and trafficking the victim into involuntary servitude or slavery.
- Fraudulently kidnapping another from another state and bringing them to California.
Common Defenses Used in Kidnapping Cases
A good defense strategy will result in the dismissal of your charges or secure reduced charges and reduced penalties. The choice of what approach works best is one your criminal defense attorney will communicate to you and use based on the circumstances in your case.
The Movement is Insufficient to Warrant Kidnapping Charges
Recall that movement being substantial is a matter to be determined by the jury or judge when presented with the facts and the circumstances in the case. You are only guilty of kidnapping if the prosecution proves that you moved the victim over a substantial distance.
If the distance is short and the circumstances do not support the assertion that the move would increase the victim's harm or aim to avoid detection, you will not be found guilty of the crime.
For example, Jim points a gun at Charlotte when she leaves the parking lot elevator. They walk towards Jim's car, 50 feet away, and she gets in. As Jim prepares to enter and drive off, the police bust him and arrest him.
While Jim intended to kidnap Charlotte, the intent will not be considered as an element to prove guilt. Since the movement was within the parking lot, the distance is insufficient to warrant a conviction for kidnapping.
The Victim Consented to the Move
You are not guilty of kidnapping if the jury determines that the alleged victim consented to the movement.
An individual freely consents to the movement if he/she:
- Voluntarily and willingly agrees to be moved by you
- Is aware of the movement
- Is sufficiently mature and understands their choice to go with you
This defense strategy applies when the prosecutors fail to prove the lack of consent. Under the law, prosecutors bear the burden of proving beyond a reasonable doubt that the alleged victim did not consent to the movement.
Good Faith Believe You Had Consent
You are not guilty of kidnapping if you reasonably believe the victim consented to the movement. It happens in situations where the victim initially gave consent and changed their mind without communicating the withdrawal.
In other instances, you could have engaged with the alleged victim on several occasions, including traveling together. Therefore, you had no reason to believe this particular occasion was different.
You Were Present in the Vicinity, But You Were Not the Kidnapper
Consider this example. You agree to meet up with two of your friends who later come to pick you up. You notice them driving a different car to which they explain that it belongs to a relative who is visiting. After driving for a few miles, the police pull you over, and a search in the trunk reveals the vehicle’s owner, bound and gagged.
In this case, you are innocent of kidnapping because you did not know of the bound owner in the trunk, nor had you any reason to doubt your friend’s explanation that the car belonged to his relative.
If you knew beforehand that your friends planned to steal the vehicle but not kidnap the owner, you could be charged with aiding and abetting and not kidnapping. Prosecutors should establish the following to charge you with aiding and abetting.
- You knew of the planned auto theft.
- You deliberately encouraged, facilitated, or participated in planning the crime.
- You instigated, promoted, or failed to prevent the crime if you are duty-bound.
Without physical evidence proving your guilt, prosecutors rely on circumstantial evidence. In this case, they could heavily lean on the witnesses’ accounts. However, unsubstantiated claims become ‘He said She said’ allegations, which your defense attorney will easily prove as false, especially if there are no additional offenses.
Witnesses offer false testimonies driven by anger, jealousy, hatred, or a need to gain from the defendant’s conviction. It is especially true in custody proceedings.
You Custodial Rights to Travel With the Children
Parents and guardians have legal custody of their children. Therefore, traveling with the children should not be an issue. Parents or guardians can transfer this right to caretakers, babysitters, or family friends entrusted to care for the child in the parent’s absentia. Therefore, if they have permission from the parents to move around with the children, they are not guilty of kidnapping.
However, you cannot claim custodial rights in two situations:
- If you violate a custodial court order or
- You use the child to commit an offense.
Focus is on the child's best interest, and both situations violate this interest.
The law prohibits law enforcement officers from using forceful or overbearing tactics to secure a confession. All your attorney needs to do is demonstrate that the police violated this rule. Thus your confession cannot be relied upon to prove your guilt.
In this scenario, the judge has two options:
- Exclude the confession from evidence in which the trial will proceed or
- Dismiss the case if the police pressure you into confessing to a crime you did not commit.
Victims misidentify their captors due to several reasons. Some of them include:
- Impaired recollection, a situation attributable to drugs and/or alcohol
- The offender wore a mask at the time of the capture
- The kidnapping took place in a dimly-lit location
It is difficult for a victim to identify their captors in all the above scenarios positively. Additionally, most police questions directed to the victim occur when the victims are emotional. They could be in a state of shock, anger, anguish, or scared. Thus, the pressure to put the ordeal behind them and their emotional state could lead a victim to single you out as the kidnapper.
An experienced attorney is best placed to prove that you were misidentified as the culprit.
Statutory Exceptions to Kidnapping
Kidnapping laws allow for the use of certain defenses. You can use these statutory exceptions to challenge the kidnapping charges. Under the law, you are not guilty of kidnapping if:
- You take, steal, conceal, or harbor a minor below 14 years to protect the child from imminent danger.
- You place the child under a citizen’s arrest according to Penal Code 837 — PC 837 allows private citizens to arrest an offender who commits a misdemeanor in their presence or a felony if they have reason to believe the offender committed it.
Penalties for Kidnapping
It is worth pointing out that you are only guilty of one instance of kidnapping per victim. Thus, you will only receive penalties upon conviction for the single victim you are accused of kidnapping. This principle holds even if you switched locations and thus moved over an extended distance. Of importance to the case is the time you detained the victim. This consideration could be the difference between receiving a prison sentence for simple kidnapping to receiving a life imprisonment sentence.
Additionally, penalties vary depending on whether the judge convicts you for simple or aggravated kidnapping.
Simple kidnapping is a felony punishable by 3, 5, or 8 years in prison and a fine not exceeding $10,000.
If convicted of aggravated kidnapping, you will receive prison sentences depending on the circumstances of your case.
- 5, 8, or 11 years in prison if the victim was a minor below 14 years of age, at the time of the offense
- Life without the possibility of parole if you kidnapped another:
- For ransom or a reward
- To commit robbery, a crime under PC 211
- For extortion, an offense under PC 518
- To commit a sex-related offense, including:
- Rape, a PC 261 violation
- Spousal rape, a PC 262 violation
- Sodomy, a PC 286 violation
- Oral copulation by force, a PC 287 violation
- Lewd acts with a minor, a PC 288 violation
- After carjacking the victim — Carjacking is a violation of PC 215.
According to California's Three Strikes Law, simple and aggravated kidnapping qualify as serious and violent felonies. Thus a conviction results in a strike on your criminal record.
First-time kidnapping offenses without a prior strikeable offense in your record will result in a first strike. The penalties remain as issued by the judge.
Second strikers receive double the penalties issued for kidnapping, while third strikers will be required to serve a mandatory minimum prison sentence of 25 years to life.
Further, a conviction results in you losing gun rights. It is illegal for felons to own or possess a gun in California.
As for non-citizens, a kidnapping charge will adversely impact your citizenship status. You will be deported to your country of origin and be denied re-entry to the US.
Offenses Related to Kidnapping
If the DA establishes that you kidnapped another and you committed any of the offenses listed under the penalties that warrant life imprisonment, he/she will add the particular crime to your charge sheet. The offenses include:
Kidnapping During a Carjacking
Kidnapping another after carjacking said individual is an offense punishable under PC 209.5. A conviction results in life in prison without the possibility of parole.
Kidnapping in Connection With Extortion
If you kidnap another aiming to obtain a reward, ransom or extort the victim or his/her family, you violate PC 210. This offense extends to individuals who pose as persons who could secure the release of the victim and persons who aid and abet the crime.
The offense is punishable by 2, 3, or 4 years in prison.
False Imprisonment to Protect From Arrest
When you use another as a shield to avoid an arrest, or you falsely imprison another to evade an arrest, the DA will pursue charges under PC 210.5
If convicted, you risk facing 3, 5, or 8 years in jail.
False imprisonment, a PC 236 violation, is a go-to charge when prosecutors cannot prove you kidnapped another. They, however, must prove that you detained or estranged another without their consent.
Should the prosecutors fail to prove you kidnapped another in court, the judge or jury could convict you on false imprisonment charges instead of kidnapping.
Defense attorneys also use this defense in plea bargains. An attorney will negotiate for this charge on behalf of the client to avoid a conviction on kidnapping charges.
False imprisonment is a wobbler. This means prosecutors could pursue a conviction on misdemeanor or felony charges. Misdemeanor offenders receive a jail sentence of up to one year and/or a fine not exceeding $1,000. Felony offenders, on the other hand, are punished by a prison term of up to three years.
It is a crime for anyone without legal custody over a child to maliciously try to keep a child away from his/he parents or legal guardians. Therefore, without express permission from the parents or legal guardian to spend and move around with the child, you are liable for prosecution under PC 278.
The DA can pursue misdemeanor or felony charges, punishable by three years in jail and a fine capped at $10,000.
Violation of a Child Custody Order
It is a criminal offense to deny another adult custodial or visitation rights over their children. You are liable for prosecution under PC 278.5 if accused of violating a custodial order.
PC 278.5 violations are wobblettes, meaning the DA could charge you with a misdemeanor or felony violation. If convicted on misdemeanor charges, you face jail time not exceeding one year and a fine of up to $1,000. If convicted on felony charges, you will face up to three years in jail and a fine not exceeding $10,000.
Contact a Chula Vista Criminal Defense Attorney Near Me
It is in your best interest to hire a criminal defense attorney when you or a loved one faces kidnapping charges. At Chula Vista Criminal Attorney, our commitment is to provide clients with the best legal advice and representation. Contact our team today at 619-877-6894 for a free case evaluation.