Moving someone a substantial distance without the individual’s consent while using force, fear, or fraud is a crime under Penal Code 207. This act describes simple kidnapping. If you use force, fear, or fraud to move a child under 14, cause the victim to sustain a serious bodily injury or death, or demand ransom after kidnapping the victim, the offense results in harsher penalties.
Our Los Angeles Criminal Attorney team discusses kidnapping under California law, the common defenses applicable in kidnapping cases, and the likely penalties should you be convicted.
Kidnapping as Described Under California Law
Kidnapping is defined based on the circumstances of the crime.
Simple kidnapping is defined under Penal Code 207 as moving an individual across a distance against his/her will and using force, fear, or fraud.
Aggravated kidnapping, on the other hand, is defined as moving another individual without his/her consent while using force, fear, or fraud, and any of the following is true:
- The victim was a minor under 14 years — A violation of Penal Code 207(b)
- You held the victim for ransom — A violation of Penal Code 209(a), or extortion, a violation of Penal Code 210
- You kidnapped the victim during a carjacking — A violation of Penal Code 209.5
- The victim suffered grave bodily harm or died
Prosecution of Kidnapping
The law requires prosecutors to provide evidence that proves a defendant’s guilt beyond a reasonable doubt. A jury will only find you guilty if the following elements are actual:
- You took, detained, or held another individual by using fear, force.
- You moved the victim or made them move through a substantial distance by using fear or force.
- The victim did not consent to the movement.
Let us look at each element to better understand kidnapping.
Moving Another Individual
Kidnapping only occurs if the kidnapper moves the victim a significant distance beyond a distance deemed as slight. The Courts examine particular considerations for the distance to meet the substantial threshold, namely:
- The actual distance moved,
- Whether the movement decreased the possibility of detection, increased the possibility of a foreseeable escape attempt, or allowed the attacker to commit additional offenses, and
- Whether the movement increased the potential of the alleged victim suffering harm.
Therefore, you can move another individual a short distance, and the jury finds you guilty of kidnapping. However, the short distance must be coupled with an attempt to cause harm to the victim, commit another crime like carjacking, or avoid capture.
Furthermore, if prosecutors charge you with aggravated kidnapping, you are only guilty if the movement is more than incidental to the underlying offense. If not, the judge should dismiss the charges.
For example, while pointing a gun at Felicia, Damian orders her to move to his car, which is parked 40 feet away in the parking lot. Felicia escapes. Is Damian liable for kidnapping charges?
The movement is within the parking lot. The distance did not increase the possibility of Felicia suffering harm, so Damian is not guilty of kidnapping.
Thus, whether a distance is substantial enough to find the defendant guilty of kidnapping is a question of fact for the jury or judge to decide. There is no set distance in law for kidnapping cases.
Lack of the Victim’s Consent
The lack of consent means the victim did not voluntarily move through the distance. Prosecutors lean on the victim's struggles with the perpetrator or his/her protests as evidence of the lack of consent. However, using fear or force could make a case for the absence of the victim’s consent.
Further, the law deems minors (individuals under 18 years of age) and mentally incapacitated people, like people with a mental illness or significantly inebriated people, incapable of consenting.
Use of Force, Fear, or Fraud
Prosecutors need to demonstrate to the jury that you coerced the alleged victim to move through distances achievable through threats, use of force, or fraud.
Force suggests that you inflicted actual force on the alleged victim. Examples include:
- Physically restraining an individual from preventing him/her from moving.
- Beating someone to the extent he/she cannot resist.
- Physically dragging a victim from one location to another.
As for unresisting children, the only force deemed sufficient is to take and carry the minor away.
On the other hand, fear is defined as threatening the victim with imminent danger to him/her or their immediate family. Fear must be reasonable. It does not matter whether it was real, only that the victim believed it.
Examples of the use of fear include:
- Demanding the victim follow your instructions at knifepoint or gunpoint.
- Threaten the victim’s immediate family with harm if the victim fails to comply.
- Threaten the victim with physical or sexual abuse if he/she fails to comply with your demands.
Fraud means employing deception for personal gain. It includes deceiving the victim, making false promises, or using false representations to convince the victim to move or be moved a distance, thus giving the false impression that the victim consented to the move.
Note: You are not liable for kidnapping charges if you use fraud without fear or force. Fraud features in the aggravating circumstances, namely:
- Fraudulently kidnapping a minor under 14 years to engage in lewd behavior with the child,
- Fraudulently kidnapping another individual from a different state and transporting them to California, or
- Fraudulently kidnapping another to leave California, intending to sell the individual into involuntary servitude or slavery.
Fraudulent consent is no consent. The offender denies the victim the opportunity to voluntarily agree to the options presented since the information the offender gives is misleading or non-factual.
Additionally, if the victim initially consents and then withdraws it, moving the individual after withdrawing the consent violates the kidnapping laws.
Defenses You Can Assert
The ideal defense will create reasonable doubt enough to inform the court’s decision to reduce your kidnapping charges, if not dismiss them. Work with an experienced attorney to develop the appropriate defense for your case.
Some of the defenses used include, but are not limited to, the following:
a) The Alleged Victim Gave Consent
An individual consents to a movement if the following elements are proven:
- The individual voluntarily and freely agreed to be moved,
- The person was conscious of the movement, and
- The individual had sufficient understanding and maturity to choose the movement.
Your attorney will raise this defense if your case meets the above elements.
This defense also applies when you have a good faith belief that the alleged victim did consent to the movement. Your attorney will assert that you reasonably and, in actuality, believed the victim consented to being moved, even though he/she did not.
Note: When an individual initially consents to accompany you for a distance and later changes his/her mind, you do not have their consent to proceed. As a result, moving the individual after his/her withdrawal of consent will result in kidnapping charges.
b) Parental Right to Travel With the Child
Kidnapping allegations are common among couples going through a child custody proceeding. A parent with lawful custody could have taken the child on a trip. Although this could violate a custody order, it is not a kidnapping. The parent with custody rights is legally allowed to travel with the child.
Intent matters. If you intend to move the child to facilitate a crime, this defense does not apply.
Depending on the circumstances of your case, it is likely that your charges will be reduced to a deprivation of a child custody order.
c) You Were Merely Present and Not the Kidnapper
In some situations, you can be in the company of friends who, without your knowledge, have kidnapped another individual. Your attorney will assert this defense if police officers arrest you and discover the kidnapped victim.
The prosecution bears the burden of proving you had prior knowledge of the plan to kidnap the victim and that you accompanied your colleagues as they kidnapped the victim. Prosecutors will then charge you with aiding and abetting. It implies that you facilitated, encouraged, or aided the kidnapping. Prosecutors will have to demonstrate to the jury that:
- You knew of the kidnapping plan,
- You deliberately facilitated or encouraged the plan, and
- You instigated, promoted, or failed to prevent the kidnapping in situations where the law imposes on you a duty to report the crime.
Should the jury find you guilty of aiding and abetting, you will face penalties similar to those the actual perpetrator will face.
d) Insufficient Movement to Constitute Kidnapping
A jury will only find you guilty of kidnapping if it is satisfied that you moved the victim a distance, no matter how slight, to facilitate a crime, escape, or avoid detection. Further, the movement must be more than incidental to the underlying offense, or there is a possibility the victim could suffer physical harm due to the movement.
If the jury is not satisfied that the distance was substantial based on the above-outlined elements, they will not find you guilty.
e) False Accusations
False accusations are born of hate, jealousy, or a need for revenge. Your accuser could claim that you kidnapped him/her or someone else to satisfy any of these emotions. This situation primarily arises in hotly contested child custody proceedings or between entangled romantic partners.
Your defense attorney will raise this defense if it is a he-said/she-said case. By emphasizing the victim's emotions, he/she will demonstrate to the jury that the accuser made the allegations with malice or ill will.
For example, Jim and Penny agree to go out on a date. Jim picks up Penny. Along the way, Jim picks up a phone call from his ex, and this call upsets Penny. Enraged, she calls the police and accuses Jim of kidnapping her, claiming she withdrew her consent.
Penny’s allegations were an emotional reaction. It is up to the prosecution to prove that she did withdraw her consent. On the other hand, the defense will point to the phone call and Penny’s emotional reaction to the call to establish the false allegation defense.
f) Mistaken Identity
Several factors could affect a victim’s memory of the kidnapping and, by extension, the perpetrator's. These factors include:
- An impaired memory owing to the use of drugs or alcohol.
- Memory lapses due to the trauma the victim suffered as a result of the kidnapping incident.
- The victim did not see the perpetrator since he/she had a mask.
- The kidnapping occurred in a dimly lit area.
All these factors could cause the victim to misidentify you as the kidnapper. Defense attorneys rely on medical experts who will testify on how memory works to demonstrate to the jury that, absent any corroborating evidence, the victim’s memory cannot be relied upon.
Kidnapping laws provide exceptions. That is, some cases could bear the hallmarks of kidnapping while, in actuality, they are not. A jury will not find you guilty of kidnapping if:
- You make a citizen’s arrest and place the victim under custody — PC 837 allows private persons to effect a citizen’s arrest. However, the arrest is only legal if:
- The arrestee committed or attempted to commit an offense in your presence
- You have a reasonable belief that the individual perpetrated a felony, or
- A felony occurred, and you have reasonable cause to believe the arrestee committed it
- You conceal, take, steal, or harbor a minor below 14 years of age to protect the child from imminent danger.
Penalties Upon Conviction for Kidnapping
Kidnapping laws impose significant penalties for individuals found guilty of the crime. The penalties depend on the circumstances of your case.
Note: Kidnapping is a continuing offense. Therefore, if you move the victim to different locations, prosecutors can only charge you with one instance of kidnapping.
a) Simple Kidnapping Penalties
Simple kidnapping is a felony. A conviction results in:
- A three, five, or eight-year prison sentence, and
- A fine not exceeding $10,000
b) Aggravated Kidnapping
A conviction for aggravated kidnapping results in the following penalties:
- A five, eight, or eleven-year prison sentence if the victim was a minor under 14 years of age when you committed the offense
- Life without the possibility of parole if you kidnapped the victim:
- For ransom or reward
- While committing a robbery — A crime under Penal Code 211
- To carjack the victim — Carjacking is an offense under Penal Code 215
- To extort the victim or his/her family members — A crime under Penal Code 518
- To commit any of the sex crimes below:
- Rape, an offense under Penal Code 261 — Also includes penetration with a foreign object, other forced deeds of sexual penetration, and spousal rape addressed under Penal Code 262
- Illegal acts of sodomy — An offense under Penal Code 286
- Oral copulation by force — A violation of Penal Code 287
- Lewd conduct with a minor — A crime under Penal Code 288
Senate Bill 384 imposes a sex offender registration requirement for individuals convicted of kidnapping and found to have committed or attempted to commit any of the sex offenses mentioned above.
- Life without the possibility of parole for kidnapping an individual for reward, ransom, or extortion and:
- The victim suffers bodily injury or dies, or
- You place the victim in a situation exposing them to a significant risk of death
c) A Strike Under California’s Three Strikes Law
Simple and aggravated kidnapping both meet the serious and violent felony thresholds. Thus, a conviction will result in a strike on your record.
If the kidnapping offense is your first strikeable offense, you will serve the penalties issued by the judge. If a conviction for kidnapping results in a second strike on your record, you will serve twice the sentence given by the judge for the kidnapping offense. If the kidnapping conviction results in a third strike, you will serve a minimum of 25 years to life in prison.
Offenses Related to Kidnapping
Prosecutors can charge you with the following offenses related to kidnapping:
- Kidnapping during a carjacking
- Extortion-linked kidnapping
- False imprisonment for purposes of protecting another from an arrest
- False Imprisonment
- Child abduction
a) Kidnapping During a Carjacking
Penal Code 209.5 makes it a crime to kidnap another individual while carjacking that person or another.
A jury will find you guilty if:
- You moved the victim a distance greater than that which is merely incidental to the crime
- You moved the victim a significant distance from the carjacking scene
- The movement increased the risk of bodily harm beyond what is necessary to carjack another
You risk life in prison without the possibility of parole if convicted.
b) Extortion-linked Kidnapping
Prosecutors will pursue charges under Penal Code 210 for posing as a kidnapper to extort another.
A jury will find you guilty of a felony offense if the prosecution demonstrates that, for purposes of securing a reward, ransom, or extortion, you:
- Posed as a kidnapper or aided and abetted another individual who kidnapped another for ransom, compensation, or extortion
- Posed as a person who can secure the victim’s release under the circumstances
A conviction results in two, three, or four years in prison.
c) False Imprisonment as a Means of Protecting Another Against an Arrest
You will face charges under PC 210.5 for:
- Falsely imprisoning another individual to avoid an arrest, or
- Using another individual as a shield, or both
The offense is a felony punishable by up to eight years in prison.
d) False Imprisonment
Prosecutors could pursue false imprisonment charges under PC 236 should they lack sufficient evidence to secure a conviction for kidnapping. However, they must prove that:
- You intentionally and illegally restrained, confined, and detained an individual, and
- Your actions prevented the victim from going elsewhere or made the victim stay at the location against his/her will.
You risk facing misdemeanor penalties upon conviction for these actions. Prosecutors will secure a conviction on felony charges if they prove the following:
- You intentionally and illegally restrained, confined, and detained an individual by menace or violence, and
- Your actions prevented the victim from going somewhere else or made the victim stay at the location against their will
Misdemeanor penalties include:
- A maximum fine of $1,000, or
- A jail sentence not exceeding one year, or both.
Convictions on felony charges are punishable by:
- Up to three years in jail, and
- Sentence enhancements if the victim is a dependent adult or an elderly individual
e) Child Abduction
You violate Penal Code 278 when you maliciously keep or attempt to keep a minor from his/her legal parent or guardian while lacking legal custody over the child. You will likely face kidnapping and child abduction charges if you lack legal custody of the minor.
Prosecutors must prove that:
- You maliciously took or withheld a minor from his/her legal custodians — Maliciously referring to disturbing, annoying, injuring, or defrauding another
- The minor was less than 18 years at the time of the abduction
- You did not have a right to custody of the minor at the time of the abduction, and
- You intended to conceal or detain the minor from the child’s legal custodian
The law considers children incapable of giving consent. Therefore, a jury will find you guilty of child abduction even if the minor consented to accompany you.
If convicted of misdemeanor charges, you risk facing:
- Up to one year in jail, or
- A fine of up to $1,000 or both
If convicted of felony charges, you risk facing:
- Up to four years in prison, or
- A fine of up to $10,000 or both
Contact an Experienced Criminal Defense Attorney Near Me
Kidnapping is a grave offense, and a conviction is consequential. You need proper legal assistance to improve your chances of securing a favorable outcome. If you or a loved one is under investigation, has been arrested, or faces charges for kidnapping, contact the Los Angeles Criminal Attorney at 424-333-0943 for assistance. Our attorneys have the experience you need to secure a favorable legal outcome in your case. We use pre-filing and trial strategies to reduce or dismiss the charges.