Under Penal Code section 207, kidnapping is the act of taking, holding, or detaining another person against his or her will by using force or by instilling reasonable fear.2 While using that force or fear, the defendant has to have moved the victim a substantial distance. Importantly, the movement has to have been achieved without the victim’s consent.
Don and James decided to kidnap Mary and then to ask her husband for ransom. They waited until she got off work, grabbed and carried her away against her will into a van. While inside the van, they tied her up and taped her mouth to prevent her from running away and screaming. They drove Mary to an abandoned house 200 miles away from the city, and confined her in the house basement. Don and James can be convicted of several crimes, including “conspiracy” to commit a kidnapping; “assault penal code 240 pc;” “battery, penal code 242 pc;” and “false imprisonment.”
To prove that someone is guilty of kidnapping under Penal Code sections 207, 208, and 209, the prosecution must prove the following facts or elements:3
- The defendant took, held, or detained another person by using force or by instilling reasonable fear;
- Using that force or fear4, the defendant moved the other person, or made the other person move5, a substantial distance6;
- The other person did not consent to the movement7; AND
- The defendant did not actually and reasonably believe that the other person consented to the movement.8
Examples: Whether a victim was moved a “substantial distance” turns on factors, such as:
- the actual distance the victim was moved;
- regardless of the actual distance, whether the movement, no matter how slight, placed the victim into a higher risk of danger, such as in a situation where the defendant moved the victim from a public place to a more secluded place even though the latter location was within a short distance from the former;
- whether the movement facilitated the commission of a crime by the defendant;
- whether the movement helped the defendant avoid being caught.
Former Prosecutors, Trusted By CNN, Fox News & CBS For Criminal Defense Analysis
A defendant can only be convicted of kidnapping if he/she has moved the victim a “substantial distance.” Movement that is considered trivial will not result in a conviction. Moreover, the defendant had to have moved the victim against his/her consent. Also, the defendant had to have inflicted “force or fear” in order to move the victim. In other words, the defendant has to either inflict actual force to move the victim, or threaten to inflict physical harm to move the victim.
There are various defenses that can be asserted to fight a charge of “kidnapping.” Here are the most common ones:
- Good Faith Belief in Consent: If the defendant had a reasonable belief that the victim consented to the movement, then the defendant is not guilty of kidnapping.
- Consent: If the victim actually consented to the movement, then the defendant is not guilty of kidnapping. The defendant is not guilty of “kidnapping” if the other person “consented” to go with the defendant. The other person consented if he/she:
- Freely and voluntarily agreed to go with or be moved by the defendant
- Was aware of the movement, and
- Had sufficient maturity and understanding to choose to go with the defendant.
The prosecutor has the burden of proving beyond a reasonable doubt that the other person did not consent to go with the defendant. If the prosecutor has not met this burden, the defendant will not be guilty of this crime.
“Consent” may be withdrawn. If, at first, a person agreed to go with the defendant, the person’s consent ended if the person changed his or her mind and no longer freely and voluntarily agreed to go with or be moved by the defendant. The defendant is guilty of kidnapping if after the other person withdrew consent, the defendant committed the kidnapping.
- Insufficient movement: If the movement was slight and/or trivial, the defendant’s act will not meet the “substantial movement” requirement for kidnapping. See examples of “substantial movement” above.
- False Accusation/Insufficient Evidence: Often times, people who are going through a highly contentious divorce involving a custody battle, may let things get out of hand, and end up accusing each other of kidnapping their own child. The defendant cannot be convicted of kidnapping absent actual evidence of kidnapping, such as phone records that indicate that the victim called for help after being taken, or was taken and moved without his/her consent, and/or that the kidnapping parent has no lawful custody over the child.
Joe and Bella are going through a highly contentious divorce. Although both continue to have full lawful custody over Charlie, their two year old son, Bella accused Joe of kidnapping Charlie when Joe came to pick up Charlie at the daycare and drove him to Bella’s residence. Although Bella knew that Joe picked up Charlie from the daycare, because the teacher at the daycare told her so, Bella decided to launch kidnapping charges against Joe just to make his life difficult. At the time that Joe picked up Charlie, Charlie was happy to see his father and did not resist being put into the car seat. In this instance, because both parents continue to have lawful custody over the child, Charlie was not kidnapped. Under California law, parents who have lawful custody over their children have the right to travel with their children even without the consent of the other parent. Nonetheless, even if Joe did not have custody over Charlie, because Joe merely picked up Charlie son and was driving him home to Bella (the child’s mother), the facts are insufficient to establish a kidnapping mostly because of the requirement of “substantial movement.”
Nonetheless, in cases involving small children, there is an issue to be mindful of involving “consent” — specifically, that children are unable to form consent because they do not have the capacity to understand the situation. A person is incapable of giving “legal consent” if he or she is unable to understand the act, its nature, and possible consequences. Therefore, a parent without lawful custody over a child cannot use the defense of “consent” to fight a kidnapping charge of a child who is not capable of forming “legal consent.”
In Recognition Of Our Work, We Have Been Awarded
Kidnapping of a Child Under the Age of 14 Years Old
If the victim is a child younger than fourteen years old and the defendant is not a parent or another person with access rights granted by a court order, the term of imprisonment increases to five, eight, or eleven years.10
Aggravated Kidnapping involves kidnapping that takes place during the commission of another crime, such as robbery california penal code 211 pc, extortion, or rape california penal code 261 pc. To establish “aggravated kidnapping,” the prosecutor has to establish that defendant intended to commit the underlying crime while moving the victim. “Aggravated kidnapping” will result in a more severe punishment under California law. Specifically, the kidnapping is punishable by imprisonment in the state prison for five, eight, or eleven years. 11
Example: A man kidnapped his ex-girlfriend with the intent to rape her. The man will be charged with aggravated kidnapping as long as a prosecutor can prove that the man had specific intent to rape the victim.
Kidnapping During the Commission of Carjacking
If the kidnapping occurs during the commission of a “carjacking” under california penal code 209.5(a) and in order to facilitate the commission of the “carjacking,” and involves the kidnapping of a person who is not a principal in the commission of the carjacking, such kidnapping is punishable by imprisonment in the state prison for life with the possibility of parole.12
Example: While a woman was depositing coins into a meter, a man carjacked the car while it was still running and an infant was inside the vehicle in the car seat. The man can be charged with the offense of kidnapping during the commission of carjacking.
Kidnapping in Connection With Extortion:
If the kidnapping occurs in connection with extortion under the California Penal Code section 210, it is a felony and the defendant can face up to two, three or four years in the state prison. Penal Code section 210 prohibits a situation where a defendant commits the act of extortion by posing as a kidnapper. In other words, if the defendant kidnaps a victim to obtain ransom, reward or extortion money, he/she can be charged with this offense.
False imprisonment under the California Penal Code section 236 is the unlawful violation of the personal liberty of another. It could be a lesser included offense of kidnapping if there is an unlawful restraint of a child.13
Child abduction or stealing under the California Penal Code section 278, is a crime against the parents, while kidnapping is a crime against the child.14 See CALCRIM No. 1250, Child Abduction: No Right to Custody.
If the victim is incapable of consent because of immaturity or mental condition, see CALCRIM No. 1201, Kidnapping: Child or Person Incapable of Consent. A defendant may be prosecuted for both the crimes of child abduction and kidnapping.
The state of California has implemented tough laws against kidnapping, including aggravated kidnapping which can enhance the punishment for other charges against you. At the Aizman Law Firm, our experienced criminal defense attorneys can help you with questions you might have about potential or existing charges and how to succesfully defend you against them.
If you need to speak to an attorney about your kidnapping case, please call our office at: (818) 351-9555 for a free consultation.
Request A Free Consultation 818-351-9555
- California Penal Code 207, 208, 209 [↩]
- Penal Code 207 [↩]
- Penal Code Sections 207, 208, and 209 [↩]
- Force or Fear Requirement. People v. Moya (1992) 4 Cal.App.4th 912, 916-917 [6 Cal.Rptr.2d 323]; People v. Stephenson (1974) 10 Cal.3d 652, 660 [111 Cal.Rptr. 556, 517 P.2d 820]; see People v. Davis (1995) 10 Cal.4th 463, 517, fn. 13, 518 [41 Cal.Rptr.2d 826, 896 P.2d 119] [kidnapping requires use of force or fear; consent not vitiated by fraud, deceit, or dissimulation]. [↩]
- Asportation Requirement. People v. Martinez (1999) 20 Cal.4th 225, 235-237 [83 Cal.Rptr.2d 533, 973 P.2d 512] [adopting modified two-pronged asportation test from People v. Rayford (1994) 9 Cal.4th 1, 12-14 [36 Cal.Rptr.2d 317, 884 P.2d 1369], and People v. Daniels (1969) 71 Cal.2d 1119, 1139 [80 Cal.Rptr. 897, 459 P.2d 225]]. [↩]
- “Substantial distance” means more than a slight or trivial distance. In deciding whether the distance was substantial, a court looks at all the circumstances relating to the movement. Thus, in addition to considering the actual distance moved, a court will also look at factors, such as whether the movement increased the risk of physical or psychological harm, increased the danger of a foreseeable escape attempt, gave the attacker a greater opportunity to commit additional crimes, or decreased the likelihood of detection. Substantial Distance Requirement. People v. Derek Daniels (1993) 18 Cal.App.4th 1046, 1053; People v. Stanworth (1974) 11 Cal.3d 588, 600-601 [114 Cal.Rptr. 250, 522 P.2d 1058] [since movement must be more than slight or trivial, it must be substantial in character] [↩]
- Consent to Physical Movement. See People v. Davis (1995) 10 Cal.4th 463, 516-518 [41 Cal.Rptr.2d 826, 896 P.2d 119]. [↩]
- This last element is only required when the issue of “reasonable belief” in “consent” is involved. Good Faith Belief in Consent. Penal Code, 26(3) [mistake of fact]; People v. Mayberry (1975) 15 Cal.3d 143, 153-155 [125 Cal.Rptr. 745, 542 P.2d 1337]; People v. Isitt (1976) 55 Cal.App.3d 23, 28 [127 Cal.Rptr. 279]; People v. Patrick (1981) 126 Cal.App.3d 952, 968 [179 Cal.Rptr. 276]. [↩]
- Penal Code section 207 and 208. [↩]
- Pen. Code §208(b). [↩]
- See Penal Code section 208(b). [↩]
- See Penal Code section 209.5(a). [↩]
- See Penal Code sections 236, 237; People v. Magana (1991) 230 Cal.App.3d 1117, 1121 [281 Cal.Rptr. 338]. [↩]
- In re Michele D. (2002) 29 Cal.4th 600, 614 [128 Cal.Rptr.2d 92, 59 P.3d 164]; People v. Campos (1982) 131 Cal.App.3d 894, 899 [182 Cal.Rptr. 698. [↩]