California Penal Code section 210.5 is defined as defendant using force of threat or force against a victim to make the victim stay or go somewhere against the victim’s will so that the defendant can avoid arrest.
To be convicted of the offense, the defendant must have faced imminent threat of arrest and must have intended to protect himself/herself against the threat of imminent arrest by restraining the other person.1
To prove that the defendant is guilty of false imprisonment to avoid arrests under Pen. Code §210.5, the prosecution must prove the following facts or elements:2
- The defendant faced a threat or risk of imminent arrest3;
- The defendant restrained, conﬁned, or detained another person by force or by a threat to use force;
- The defendant intended to protect himself/herself against the threat of imminent arrest by restraining the other person4;
- The defendant made the other person stay or go somewhere against that person’s will5;
- The defendant either substantially increased the risk of physical or psychological harm to the victim or intended to use the victim as a shield6.
There are various defenses that can be asserted on your behalf to fight a charge of false imprisonment of a hostage to void arrest. Here are the most common ones:
- Consent: If the victim consents to staying or going somewhere to help the defendant avoid arrest, the defendant cannot be charged with this offense, because the offense requires forcing the victim to stay or go somewhere against the victim’s will.
- No Imminent Threat of Arrest: If there was no imminent threat of arrest, one cannot be charged with this offense because imminent threat of arrest is one of the elements required for this offense.
- No Increase Risk of Harm to the Victim: If the act of imprisoning the victim does not substantially increase the risk of harm to the victim, the defendant cannot be charged with the offense.
Example: A man robbed a busy liquor store and told the owner as he was getting away that if the owner called the police, he will shoot him and then go after his family (additional charges may include criminal threats penal code 422 pc).
In reality, the man was not armed and had no information about the whereabouts of the owner’s family. He was merely pretending to have a gun by keeping his hands in his pockets.
He locked the owner in the back room without a phone, but because the store was very busy, a customer who walked in shortly heard the man calling for help and let him out. In this situation, the imprisonment of the owner did not increase a risk of harm because the defendant did not actually have the ability to shoot the owner.
Moreover, when the defendant did confine the owner, the owner remained safe inside the room, and because he ran a busy liquor store, it decreased the likelihood of long-term confinement. Therefore, the defendant could use this defense to fight a charge of false imprisonment of a hostage to avoid arrest.
- Duress: If the only reason you falsely imprisoned another person is because you yourself faced the threat of serious harm or death, you are not guilty of this crime.
- Self-defense/Defense of Others: If you had a reasonable belief, that you were in imminent danger of being killed, or injured, and you reasonably believed that you needed to use force or threat of force against someone to make them stay or go somewhere to prevent yourself from being harmed, and you used no more force than was necessary to prevent harm to yourself or another, than you will not be guilty of this offense.
False imprisonment of a hostage to avoid arrest is a felony for which a defendant can face imprisonment for three, five or eight years.7
- Great Bodily Injury – which adds an additional and consecutive three to six year state prison sentence to your sentence for the false imprisonment charge if you cause the victim to suffer great bodilu injury.
- Penal Code 242 – Battery: Which is violated if you used force upon another.
- Penal Code 209 – Kidnapping: Which you violate by moving a person a significant distance against theri will.
If you would like to discuss a pending false imprisonment case, contact the Aizman law firm for a free case evaluation at 818-351-9555.
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- California Penal Code Section 210.5 – Every person who commits the offense of false imprisonment, as defined in Section 236, against a person for purposes of protection from arrest, which substantially increases the risk of harm to the victim, or for purposes of using the person as a shield is punishable by imprisonment pursuant to subdivision (h) of Section 1170 for three, five, or eight years. [↩]
- Penal Code Sections 210.5, 236. [↩]
- Imminent Arrest. People v. Gomez (1992) 2 Cal.App.4th 819, 825 [3 Cal.Rptr.2d 418] [dicta]. [↩]
- “False imprisonment” is defined as the intentional and unlawful confinement of a person against that person’s will. False Imprisonment. Pen. Code, §§ 236, 237. Unlike simple “false imprisonment,” false imprisonment of a hostage is a “speciﬁc intent” crime, meaning the defendant intends to do some further act or achieve some additional consequence. In this context, the defendant intends to falsely imprison for purposes of protecting himself from arrest. See Pen. Code, § 210.5 [falsely imprison “for purposes of protection from arrest”]; see also People v. McDaniel (1979) 24 Cal.3d 661, 669 [156 Cal.Rptr. 865, 597 P.2d 124]. [↩]
- An act is done against a person’s will if that person does not consent to the act. In order to consent, a person must act freely and voluntarily and know the nature of the act. [↩]
- Section 210.5 does not expressly require a threat of arrest when a perpetrator commits false imprisonment “for purposes of using the person as a shield.” Until the appellate courts provide more guidance, this instruction assumes that a threat of imminent arrest is required. (See People v. Gomez (1992) 2 Cal.App.4th 819, 825 [3 Cal.Rptr.2d 418] [dicta]. [↩]
- California Penal Code Section 210.5. [↩]