(Generally, To Avoid an Arrest, Vs. Kidnapping)

What is False Imprisonment (Penal Code 236 PC)?

California law prohibits false imprisonment, which is governed by Penal Code 236 PC.  Penal Code 236 PC applies to false imprisonment in a general context.  Other laws govern false imprisonment in specific contexts.  For example, false imprisonment in the context of avoiding arrest or capture is governed by Penal Code 210.5 PC, which is described in detail in a section below. 

Penal Code 236 PC defines false imprisonment as the unlawful violation of the personal liberty of another.  This is a broad definition and doesn’t help you much in determining whether or not you can fight a Penal Code 236 PC charge.  It is much more helpful to look at the definition the court will use to determine whether or not a false imprisonment has occurred:

False imprisonment is the intentional restraining, detaining, or confining – through the use of violence or menace – of another person without their consent. 

  • Restraining, Detaining, or Confining – The term “false imprisonment” is confusing because it leads you to think that a Penal Code 236 PC violation can only occur if somebody is jailed or imprisoned. The truth is false imprisonment can occur in variety of different locations through a multitude of methods.  In fact, a victim does not have to be actually restrained or confined for a Penal Code 236 PC violation to occur.  They only have to think they are detained or confined.

  • Intentional – You must have acted consciously and willfully.

    • Example: Sam and Diane own a bar. They constantly argued about how to share profits.  One day, while stocking supplies, Sam storms out and slams the storeroom door – unknowingly locking Diane inside overnight.  In this situation, Sam is not guilty of a Penal Code 236 PC violation because he did not act intentionally to confine Diane.
  • Violence – Penal Code 236 PC focuses on whether or not physical force was used. And even then, the prosecutor must show that the physical force was no greater than what was reasonably necessary under the circumstances.  Naturally, the key in these cases is to present evidence that the force used was necessary and reasonable.

    • Example: Eddie is a bouncer at a bar. He observes a fight between two of the patrons, Carl and Steve.  Eddie grabs Steve by the waist and drags him to the kitchen.  Steve is angry and intoxicated so he tries to leave the kitchen but Eddie blocks the exit.  Once the other bouncers walk Carl off the premises, Eddie lets Steve go.  Here, Eddie’s lawyer can argue that it was in the interest of public safety to confine Steve in the kitchen until tensions cooled down.
  • Menace – You can falsely imprison someone with even just the threat of force.

    • Example: Brian wants to keep Stewie from leaving so he brandishes a knife. Even though Brian never tried to use the knife on Steve, the threat of a stabbing is sufficient to commit a Penal Code 236 PC violation.
  • Consent - A person needs to agree to your actions voluntarily and with an understanding of the nature of the act.

    • Example: Donald runs a brothel in Downtown. Ross makes all the girls work long hours in dark conditions and he is very strict about the brothel rules.  However, the rules are easy to enforce because most of the girls are addicted to drugs and rarely try to leave.  In this situation, Ross could be charged with a Penal Code 236 PC violation.  On some level, it can be argued that the girls agreed to work at the brothel and follow the rules.  But it can also be argued that their drug-induced state puts them in no position to consent to such harsh conditions.

Punishment for a Penal Code 236 PC Violation

Penal Code 236 PC is considered a “wobbler.”  This means you can be charged with a felony or a misdemeanor – depending on the specific circumstances of your case, whether you used physical violence, and your criminal history.

A conviction for Penal Code 236 PC does not result in a “strike” for purposes of California’s Three Strikes Law.  However, a felony may result in up to 3 years in state prison and a misdemeanor may result in up to 1 year in county jail.  In addition, a conviction under Penal Code 236 PC can result in serious social ramifications.  It may affect your immigration status, employment opportunities, professional licensing, etc. 

Defenses to Penal Code 236 PC

There are a multitude of legal defenses to Penal Code 236 PC.  An experienced and diligent attorney can review the specific facts of your case to determine which defenses are available.  They can then develop an effective legal strategy that will maximize the best possible outcome for your case.  Some common defenses include:

  • Consent: As mentioned above, if the alleged victim consented to the restraint, detention, or confinement, then it is not false imprisonment.

  • Lack of Insufficient Evidence to Prove Intent: It is difficult to prove what a person was thinking. That is why prosecutors like to use statements you tell the police or other people against you.  But barring that information, they have to get more creative and use collateral evidence against you.  A smart and zealous defense attorney can poke holes in this evidence and force a prosecutor to prove their case according to the standards of the law.  By applying this pressure, often times a defense attorney can get a Penal Code 236 PC charge dropped because of lack of sufficient evidence.

  • Intoxication: If you were under the influence of alcohol or drugs when the incident occurred, it is possible you were not acting “intentionally” according to the law.  Thus, intoxication may actually serve as a legal defense to a Penal Code 236 PC violation.  However, it is important to consult a defense attorney because this defense might subject you to other legal liabilities.

  • Self Defense/Defense of Others: When a violent situation occurs, it is not uncommon for the police and prosecutors to try and find someone to blame. You might find yourself charged with Penal Code 236 PC even though you were the good guy.  Fortunately, a defense attorney can present evidence that you used physical force in a reasonable manner and with good cause to get the charge dismissed.

What is False Imprisonment of a Hostage or to Avoid an Arrest? (Penal Code 210.5 PC)

Penal Code 210.5 PC is more narrowly applied than California’s general law against false imprisonment (Penal Code 236 PC).  It only applies two specific situations. 

First, Penal Code 210.5 PC applies to situations where you restrain, confine, or detain another person as a tactic to avoid an arrest.  Secondly, it applies to situations where you use another person as a human shield and that action results in a substantially increased risk of harm to them. 

Example: Luke is robbing a convenience store when the police arrive on the scene.  The police order Luke to come out with his hands up.  Instead, Luke grabs the cashier, Leia, and holds a knife to her throat as he walks out – keeping her in front of him and the police.  The police put their guns down because they don’t want Leia to get hurt.  Luke gets into his car and drives away, eventually leaving Leia at a nearby bus stop.  Again, the police do not follow for fear Luke might hurt Leia. In this example, Luke could be convicted of Penal Code 210.5 PC.  He “falsely imprisoned” Leia in two ways.  First, he used her as a human shield.  Second, he held her hostage in order to avoid getting arrested.

Example: Lisa drives a fancy, red BMW.  One day, while stopped at a red light, her door suddenly opens and Bart hops into the car pointing a gun at her. He tells her to drive out of the city.  Eventually, Bart tells Lisa to get out of the car.  He ties her up to a street pole before driving away.  In this situation, Bart probably did not commit a Penal Code 210.5 PC violation.  Yes, it can be argued that he detained Lisa for the purpose of avoiding arrest.  But that arrest was a byproduct of the original carjacking rather than a tactic to avoid arrest.

Punishment for a Penal Code 210.5 PC Violation

The punishment for false imprisonment of a hostage (Penal Code 210.5 PC) is harsher than the punishment for a general false imprisonment conviction.  First of all, it is automatically a felony.  Secondly, a Penal Code 210.5 PC conviction may result in anywhere from 3 to 8 years in county jail.  Additionally, the specific circumstances of your crime may further exacerbate charges and penalties.  For example, you may also face charges for battery, kidnapping, and even murder if the victim is killed during the false imprisonment.  If the victim is significantly injured, then the Penal Code 210.5 PC conviction might be subject to California’s great bodily injury enhancement.  This enhancement tacks an additional 3-6 years state prison on top of the sentence received for the base Penal Code 210.5 PC violation.

Defenses Penal Code 210.5 PC

There is a wide range of legal defenses available to combat a Penal Code 210.5 PC charge.  However, the applicability of a particular defense depends greatly on the specific circumstances of the crime.  Thus, it is important to have an experienced and diligent attorney review the specific facts of your case.  They can then present an effective legal strategy that includes all possible defenses.  Some common defenses to Penal Code 210.5 PC include: 

  • Consent: You cannot be found guilty of False Imprisonment of a Hostage if the victim consented to the detainment, confinement, or restraint.

    • Example: The police have Romeo’s house surrounded.  They want to arrest Romeo for a string of robberies in the neighborhood.  Juliet, who is madly in love with Romeo, offers to pretend to be a hostage so Romeo can escape.  She agrees to sit gagged and bound in his car so the police don’t shoot at him while he tries to get away.  In this example, Juliet consented to be restrained and confined.  Thus, Romeo’s attorney can present a defense of Consent against a Penal Code 210.5 PC charge.
  • Lack of Imminent Threat of Arrest: Penal Code 210.5 PC only applies to situations where there is an imminent threat of arrest. Thus, if there is no immediate chance of arrest, you cannot be convicted of Penal Code 210.5 PC.

    • Example: Luigi accidentally stumbles into Mario’s room. In the room, he finds all sorts of drugs including highly illegal mushrooms.  Mario is upset that Luigi found his drug stache and locks him up in the closet.  In this example, Mario cannot be found guilty of Penal Code 210.5 PC.  Even though he confined Luigi to a closet, there was no immediate risk of arrest.  
  • Lack of an Increased Risk of Harm to the Victim: This is a good defense when you threaten to hurt another person but you didn’t actually have the ability to carry it out. 

    • Example: Mickey tells the police he will shoot Goofy in the head if they come inside the bank to arrest him. In reality, Goofy was safely tucked away inside the bank’s vault.  Thus, Mickey’s inability to actually harm Goofy might serve as a legal defense to a Penal Code 210.5 PC charge.
  • Duress: If someone else forces you, by the threat of death or great bodily injury, to falsely imprison someone so that they can escape capture, then you might have a legal defense of Duress to Penal Code 210.5 PC.

    • Example: Uncle Phil and Carlton are in the midst of a jewelry store robbery when the police arrive.  Uncle Phil tells Carlton to grab a hostage and walk out the front door so that he can escape from the back door.  Carlton is hesitant but he does so because Uncle Phil threatens to kill him if he doesn’t follow orders.  In this example, Carlton can show that he falsely imprisoned the hostage only out of duress and thus may have a legal defense to a Penal Code 210.5 PC charge.

Kidnapping and False Imprisonment

California’s false imprisonment and kidnapping laws are interrelated.  False imprisonment involves the detention, restraint, or confinement of another person without their consent.  All three of these methods can be accomplished through force or fear.  Meanwhile, kidnapping involves the use of force or fear to move another person a substantial distance.  Thus, kidnapping inherently involves false imprisonment.  You cannot commit a kidnapping without also committing false imprisonment.  Thus, if you are facing a kidnapping charge, it is important to understand that you might also be charged with false imprisonment. Call our Los Angeles criminal defense attorney for a FREE CONSULTATION.