Cases of violent crimes have been on the rise in California. Because of that, whenever you move a person a substantial distance using force or fear or against the person’s will, you risk facing kidnapping charges. The need to punish defendants of this crime has seen many people wrongfully convicted. At Orange County Criminal Defense Attorney Law Firm, we provide legal representation whenever you face allegations of kidnapping.
Legal Definition of Kidnapping
A person will face kidnapping charges under PC 207 when he or she moves another individual a substantial distance against the person’s will through the use of physical force or by inducing fear. Aiding and abetting or directing someone to commit a kidnapping offense will also subject you to PC 207 charges.
You might be surprised if you face accusations of kidnapping when you take your child without legal custody over the child or without permission from the legal custodian. Under this type of kidnapping, whether you had consent from the child or not is not essential. What matters is that you made use of force to move the child a substantial distance.
Kidnapping becomes aggravated where:
- Perpetrators demand a ransom
- Kidnapping occurs during a carjacking
- The victim of the crime sustains injuries or death
- The victim is a child under the age of 14
Elements of Kidnapping
During prosecution of a kidnapping offense, the prosecution must establish some aspects of the crime to get a conviction. The elements are:
You Took or Detained Another Person using Force or by Inducing Fear
Moving the victim of this offense isn’t enough to prove the defendant is guilty. There must be the use of physical force or threats to inflict bodily harm on the victim. Some of the things that might show there was the use of physical force include physical restraining on the victim to make them move or where the victim was physically dragged to another place or location. If you beat the victim until they agreed to move is also a sign of physical force.
The prosecutor must also show that you instilled fear in the victim by holding him or her at gun or knifepoint, demanding that they comply with your orders. Also, if you threatened to assault the victim sexually or physically or harm their immediate family, this could build a strong case for the prosecution.
Sometimes kidnappers abandon the use of fear or force and instead use fraudulent means to move the victim. Fraudulently moving a person doesn’t add up to a kidnapping offense. However, the prosecution might use fraud to convict you where there are aggravating factors. It is easy to end up with a conviction if the prosecutor can establish that you fraudulently kidnapped the victim from a different state and brought him or her to California. Also, where you make use of fraudulent means to kidnap a person to leave their country to sell them into slavery, or involuntary servitude could help prove your guilt in this offense. Fraudulently capturing a child under 14 to engage in a lewd act can also result in a conviction.
If you lie to someone or use deceit to get their consent to move to a different location, the approval is deemed to have been acquired fraudulently. The court will assume you didn’t have consent at all to move the victim because when he or she agreed to the movement, the person wasn’t aware of what he or she was agreeing to.
You Moved the Alleged Victim or Made Them Move a Substantial Distance
You cannot face kidnapping charges if the victim never moved a substantial distance. Several factors come into play when determining the length that could make up kidnapping. The prosecution can present the actual range you moved the victim. If they don’t know the exact distance covered, the prosecutor can argue that the distance you moved the victim made it impossible for you to be seen or caught in the act. Furthermore, the prosecutor can show that when you moved the victim, the possibility of inflicting harm was high because there were no potential eyewitnesses.
Note that even moving a victim a few feet from potential eyewitnesses with the intent to rape or inflict physical harm will be enough to earn you a conviction for kidnapping. Also, understand that the judge or the jury is the party that decides what distance is substantial or not. The reason being no set distance qualifies as significant. A conviction under this element will, therefore, depend on how the prosecution establishes this element.
You didn’t Have the Victim’s Consent
The prosecution will also need to establish before the court that the victim didn’t move voluntarily. If the victim put up a fight or resisted going with you, it means you didn’t have their consent. Where a child or a mentally impaired person is involved, the victim is not in a position to give consent. Therefore, even if you assert that the victim agreed to go with you, the court will still assume you had no permission.
You Didn’t Reasonably Believe you had Consent
When a person consents to movement, it means they move freely and voluntarily. You can quickly end up with a conviction if it is established to the court that based on the resistance to walk by the victim, you already knew they were not agreeing to move or ought to have known they were resisting the movement.
Remember that even if the victim had initially agreed to go with you, the consent would be considered withdrawn if he or she changes their mind later.
Penalties for Kidnapping
The punishment for kidnapping varies a lot, depending on the circumstances of the case. Also, note that kidnapping is a continuing offense since the crime continues as long as you keep holding the victim. But when it comes to conviction, you can only be sentenced for one episode of the crime.
Kidnapping is a felony punishable by 36, 60, or 96 months’ state incarceration and court fines amounting to a maximum of ten thousand dollars.
Where a kidnapping case involves aggravating circumstances, you will face charges of aggravated kidnapping. The penalties for a conviction are:
- 5, 8, or 11 years in a California prison where the victim of the kidnapping was a minor under 14 at the time of commissioning the offense
- Life incarceration with the possibility of parole if the perpetrators of the crime demand a ransom or a reward in exchange for the victim. If you commit blackmail, robbery, sex crimes, or carjacking, you will be subject to the same punishment
- Life imprisonment with no possibility of parole where you kidnap the victim to demand a ransom, reward, or for blackmail and in the process the victim sustains injuries, death, or he or she gets exposed to high risk of death
Kidnapping, either simple or aggravated, falls under the category of severe or violent felonies, which means whenever you get a conviction for this crime, you will get a strike on your record as per the Three-Strikes Law. If you get a subsequent conviction when you already have a “strike,” you will become a second striker. You will get a sentence term double the one required by the law. If a person is charged with a third felony and has two strikes, a conviction will make him or her a third striker. The sentence term for a third striker is a mandatory jail sentence of at least twenty-five years to life imprisonment in a California prison.
Legal Defenses to PC 207 Charges
It is possible to have a kidnapping charge reduced or dismissed. Luckily, several defense theories can apply in your case. These are:
The Victim Agreed or Consented to the Movement
An individual could not be guilty of kidnapping if the victim agreed to the movement. Even if the victim consents the movement, for instance, in a vehicle and after the car starts moving, he or she withdraws the consent, you are not guilty because the initial approval is still binding. However, the consent will be considered withdrawn if, after the victim changes his or her mind and wants to go back to the initial location, you continue moving despite their resistance. Arguing that you had consent from the victim in such circumstances is not going to hold.
You can also argue that the behavior of the victim during the movement made you reasonably and in good faith, believe that he or she had consented. Claiming that way means that you lack the necessary criminal intent to warrant a conviction.
In specific incidences of kidnapping, there are no eyewitnesses or enough evidence to support the accusation. The only proof available in such cases is the word of the victim. An excellent attorney can assert that you are a victim of false allegations, especially where there are no phone records to show the victim tried to call for help or where no one saw you kidnap the victim.
Keep in mind that for a conviction to happen, the prosecutor must prove there was substantial movement. If you moved the victim slightly, or a distance that is a risk to the safety of the victim, you are innocent.
You Were not the Actual Kidnapper
It is possible to contest the charges by asserting that although you were present at the kidnapping, you were in the wrong place at the wrong time. Note that this defense can only work if you were not aware of what the perpetrator of the kidnapping was planning.
But if you knew what the kidnapper was planning and still decided to follow the perpetrator, you will be convicted for directing, aiding, or abetting kidnapping. In most cases, you will be sentenced for aiding this crime if you were aware of the kidnapper’s illegal plan or if you knowingly smoothed or fortified the act.
If you have a legal duty to prevent the crime but fail to do so, you might be considered to have aided the kidnapping. Keep in mind a conviction as an abettor will subject you to similar penalties as those of the perpetrator.
If you are a parent or have legal custody over a child, you have the right to move the child for a substantial distance, even outside California, without consent from the other parent or lawful custodian. The majority of defendants in such instances involve ex-spouses who are sued by the other partner for kidnapping their child. These cases usually never hold in court. If you assert that you have a legal guardian, you have the right to travel with your child anywhere. Although you won’t face charges under PC 207, you will be charged as per PC 278.5, deprivation of child custody.
Note that the defense is not going to work if you took the child with criminal intent or to engage in an illegal act.
PC 207 Exceptions
Aside from the above defenses, there are instances where you are innocent of violating PC 207 kidnapping. These are if:
- The perpetrator takes or hides a child below fourteen years to protect him or her from imminent danger
- You put the claimant under citizen’s arrest
Placing another party under citizen’s arrest is only lawful if:
- You observe the person committing a felony
- You have reasonable suspicion that the person committed a felony
- You are fully aware the person was involved in a felony
Crimes that Relate to Kidnapping
There are several crimes that may be charged with or in place of kidnapping. The following are some of these offenses:
Kidnapping During Carjacking
PC 209.5 is the law that defines kidnapping during a carjacking. According to the statute, any individual who during the commission of a carjacking and to enable the carjacking kidnaps someone else who is not part of the carjackers is subject to life incarceration with parole.
PC 209.5 charge is a type of aggravated kidnapping. It means that upon conviction, you will incur severe penalties. But for you to end up with a sentence, the prosecution must prove the following facts:
- You breached PC 215a by commissioning a carjacking
- During the commission of the act, you took, detained, or held somebody else by use of physical force or by imparting fear
- You made the victim move a substantial distance from the place of carjacking
- You moved or made someone move with the resolve to enable carjacking or to support your escape
- The person kidnapped was not part of the people commissioning the carjacking
- The alleged victim didn’t agree to the movement
If you seize a person during a carjacking, you will be facing two charges, one for carjacking as per PC 215a and the other kidnapping under PC 207. The penalties for violation of PC 209.5 will attract life imprisonment but with the possibility of parole. Also, because the offense is considered a violent felony, you will get a strike on your record.
The above punishment can be easily avoided by contesting the charges. Some of the defenses that you can use include:
- You had consent from the owner to take the vehicle
- The victim consented to ride
- You are a victim of false allegations
- You didn’t complete the carjacking. The defense can help have the charges reduced to attempted kidnapping during a carjacking, which has lesser consequences. The assertion that you didn’t complete the crime can also lead to the filing of one charge instead of both carjacking and kidnapping
Kidnapping in Connection with Extortion
According to PC 210, it is unlawful to extort another person by posing as a kidnapper. Under the law, if you claim or represent as the person who has kidnapped a person or aided and abetted in the commission of the kidnapping to acquire ransom, extortion money or reward, you are guilty of a violation of PC 210. The same statute is violated when you pose as a person who can secure the release of a kidnapped person all for extortion money or ransom.
Keep in mind that you can end up with a sentence of this crime just because of claiming to be a kidnapper, while in the real sense, you are not. Note that if you kidnap someone for purposes of extortion, you might face prosecution under PC 209, which is aggravated kidnapping. Under the statute, kidnapping someone for a ransom or extortion money can result in life incarceration.
A conviction under PC 210 will attract a sentence term of two, three, or four years in state prison. You can, however, prevent the sentence using some of the following defenses.
- You are a victim of mistaken identity
- False allegations
- You had a reasonable belief that you could rescue the alleged victim of the kidnapping even if you request payment for the services.
Where the prosecutor has insufficient evidence to prove you are guilty of kidnapping, they might opt for a lesser charge like false imprisonment under PC 236. According to this statute, it is unlawful to confine, restrain, or hold another person without their consent. For kidnapping to happen, you must falsely imprison the victim first, which makes it easy for the prosecution to convict you with false imprisonment where kidnapping is a more severe offense.
PC 236 charge can also be useful during a plea bargain. It happens where you have solid facts to support your argument, and the prosecution realizes they have no guarantee of winning. Your attorney must, however, negotiate to get you the deal.
False imprisonment is a wobbler. A sentence for violation of a misdemeanor PC 236 has the following penalties:
- Up to one thousand dollars’ court fines
- A maximum of twelve months in jail
A felony conviction for false imprisonment is 16 months, 2, or 3 years’ jail sentence. Fortunately, despite the penalties of a conviction for this offense being severe, there are legal defenses you can use to contest the charges. The defenses include:
- You had the legal authority to restrain the victim
- You had consent from the victim
- You were acting in self-protection
- You have parental rights
Also, you can argue that you have shopkeeper privileges.
False Imprisonment to Protect from Arrest
PC 210.5 forbids individuals from falsely imprisoning a hostage. As per this statute, it is unlawful for a person to commit false imprisonment against a person with the intent to protect them from arrest or to use the person as a shield.
A conviction for this crime will incur you 3, 5, or 8 years in Orange County jail. The penalties can, however, be prevented by arguing that you had consent, there was no imminent threat of arrest, no increased risk of injury, and you were acting in self-defense or defense of others.
PC 278 is the California statute that prohibits people who are not the lawful custodian of a child from maliciously taking a child with the plans of keeping him or her away from the legal guardians or parents. You can easily be charged with kidnapping and child abduction if you don’t have parental rights over the child who is the victim.
The prosecutor could prefer a misdemeanor or a felony charge. A misdemeanor sentence can result in up to 4 years in county jail and court fines, not beyond $10,000. If you are sentenced to both child abduction and kidnapping, the judge can have you serve a sentence on top of or consecutive to the jail time imposed for kidnapping.
Deprivation of a Child Custody Order
The offense is also known as child detention under PC 278.5. As per the law, it is unlawful for a person to take or conceal a child from the legal custodian or somebody with visitation rights. The offense is different from child abduction because it can be filed against anybody, even the legal custodians. The crime can be committed without necessarily violating PC 207.
The penalties for a conviction for violating PC 278.5 are a maximum of 12 months for a misdemeanor charge while a felony conviction incurs a maximum jail time of thirty-six months.
Find a Criminal Defense Attorney Near Me
When facing a kidnapping charge or allegation, reach out to Orange County Criminal Defense Attorney Law Firm at 714-740-7848. Our attorneys will answer all your questions and give the guidance you need to prevent a conviction.