California’s False Imprisonment Law
Penal Code 236 PC
California Penal Code 236 PC prohibits wrongfully
- restraining
- confining, or
- detaining
another person without his/her consent.1
This law is more commonly referred to as "false imprisonment." Despite its name, the crime does not necessarily involve confining someone in jail or prison.2 The offense may be charged as either a misdemeanor or a felony, and a conviction could land a person in custody for years.
We're a law firm of former cops and former prosecutors with decades of experience helping clients successfully fight false imprisonment charges.
Below, our California criminal defense attorneys3 address the following:
1. The Legal Definition of "False Imprisonment"
under California Law
2. Legal Defenses
3. Penalties, Punishment, and Sentencing
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
You may also find helpful information in our related articles on Penal Code 207 PC Kidnapping; Penal Code 136.1 PC Intimidating a Victim or Witness; Penal Code 273a PC Child Endangerment; Penal Code 368 PC Elder Abuse; California’s Self-Defense Laws; and Legal Defenses.
1. The Legal Definition of "False Imprisonment"
under California Law
Penal Code 236 PC is a "wobbler" which means that it may be charged as either a misdemeanor or as a felony.
In order to convict you of misdemeanor false imprisonment, the prosecutor must prove the following facts (otherwise known as "elements" of the crime):
- that you intentionally restrained, confined, or detained another person, compelling him/her to stay or go somewhere, and
- the other person did not consent.4
In order to convict you of felony false imprisonment, the prosecutor must additionally prove that you accomplished the restraint, confinement, or detention by means of violence, menace, fraud, or deceit.5
"Force is an element of both misdemeanor and felony false imprisonment. The offense becomes a felony only when the force used is greater than that reasonably necessary to effect the restraint."6
The violation of another’s personal liberty can consist of any type of confinement in the broadest sense of that term…examples include detaining a person in
- a room,
- on the street,
- a moving vehicle, or
- even forcing a person to move from one place to another.
And if this offense sounds similar to Penal Code 207 PC California’s kidnapping law, that’s because it is. In fact, false imprisonment is a lesser included offense of kidnapping, which means that you cannot commit the crime of kidnapping without also committing the crime of false imprisonment.7
Let’s take a closer look at some of the above terms to gain a better understanding of their legal definitions.
Restrained, confined, or detained
Courts have held that "any exercise of force, express or implied, by which the other person is deprived of his liberty or is compelled to remain where he does not wish to remain, or to go where he does not wish to go, is an imprisonment".8
As Ventura criminal defense lawyer Darrell York9 explains, "If the alleged victim’s personal freedom of movement is limited, it isn’t necessary that you actually confine him/her in an enclosed space.10 If you restrict another person’s movement in any way or cause another person to make any involuntary movements, you potentially violate California’s false imprisonment law."
Consent
If the alleged victim consents to the detention, restraint, or confinement, you are not guilty of false imprisonment. A person "consents" when he/she "acts freely and voluntary knowing the nature of the act".11
It therefore follows that a person cannot consent to detention, restraint, or confinement if he/she is induced by coercion or deception (and is therefore unaware of the nature of the act).
Likewise, if the alleged victim is incapable of consenting, either because he/she suffers from mental illness or is a minor (people under 18 are unable to give legal consent), you may still be guilty of this offense even if the alleged victim "willingly" participates in the act.12
Violence
Violence means "using physical force that is greater than the force reasonably necessary to restrain someone.13 The force doesn’t have to be what we typically think of as excessive, just more than reasonably necessary to achieve the desired result.
Examples of violent false imprisonment:
- Tony holds Bill down while others kick and beat him.14
- While trying to get Rose into his car, Bob grabs Rose’s wrist, turns her around, and pulls her towards him. The court noted that if he had only grabbed her wrist and turned her around, the act wouldn’t have been violent. It was the subsequent act of "pulling her towards him" that elevated the offense to felony false imprisonment.15
Examples of acts that courts do not believe qualify as violent false imprisonment:
- After fighting with Adam, Laurie turns to go. Adam grabs Laurie’s arm and demands that she stays.16
- Similarly, after arguing with Rachel, John held Rachel with his arms and would not let her go.17
Menace
Menace means a threat of harm expressed or implied by words or actions. False imprisonment charges that involve menace typically fall into two categories. The first is where the defendant uses a weapon to enforce the detention. The second is where the defendant uses verbal threats to complete the crime.
Examples of acts that constitute menace for false imprisonment:
- After John sodomizes Susie, there is a knock at her door. John threatens Susie with a knife, preventing her from opening the door. While still holding the knife, he threatens to kill Susie and her children if she ever reports the incident.18 *On a separate note, this type of conduct could also trigger a related charge for Penal Code 136.1 PC intimidating or dissuading a victim or witness.
- Mike orders Larry to drive him around by pointing a gun at his head. While in the car, Mike instructs Larry where to drive, how fast to drive, and where and when to stop.19
- After raping Bridget, Rich makes her walk through a park holding his hand and threatens to kill her if she lets go.20
- After barricading Steve in his office, Rob and Dennis tell him he’ll have nothing to smile about once they’re through with him.21
- While holding the hood of a 13-year-old girl’s sweatshirt, Paul demanded that the child sit in the middle of the street, threatening "if you don’t, then I will do something".22
Examples of acts that do not qualify as menace:
- After molesting Sara, Tim tells her to sit in a corner and instructs her not to leave. Despite his command, Sara tries to leave several times. Each time she tries, Tim glares at her and stands in her way. Tim has no weapon, makes no verbal threats of harm, and does not engage in any physical gestures.23
- Similarly, Jason, while running from the cops, breaks into Mandy’s house. He immediately tells her to "shut up, that she’d better not call the police, that she should sit down, and that she’d better remain seated". He does not touch Mandy, threaten her, or claim to have a weapon.24
In both these cases, the court ruled that there was insufficient evidence to support a menace allegation. That said, courts have since disagreed with these holdings (though they haven’t overruled them) stating that "An express or implied threat of harm does not require the use of a deadly weapon or an express verbal threat to do physical harm."25
Fraud / deceit
Fraud and deceit involve making false representations or concealing the truth for some type of personal gain. False imprisonment cases involving fraud and deceit are much less common than those alleging violence or menace.
In People v. Rios, the defendant had visitation rights to his daughter. On one of his routine visits, he took his then one-year old daughter to Mexico to live with her cousins and then reported her missing. Over the next four years, the father and cousins led the child to believe that the cousins were her parents and that the defendant was her god-father.
The court held that the defendant was guilty of felony false imprisonment based on fraud and deceit. The acts were not only against the child, but against the police and child’s mother as well. The court pointed out that nowhere in Penal Code 236 PC does it state that the fraud or deceit can only be against the alleged victim.26
2. Legal Defenses
There are a variety of legal defenses to a Penal Code 236 PC allegation that your California criminal defense attorney can present on your behalf. The following are examples of some of the most common.
Self-defense / defense of others
California’s self-defense laws allow you to use reasonable force to defend yourself or another person if you reasonably believe that you or that other person is about to suffer imminent bodily harm.27
This means that even if you violate California’s false imprisonment law…regardless of whether you engage in the act using menace, violence, fraud, or deceit…but you only do so because you or another person is about to suffer harm, California law excuses your otherwise criminal conduct.
Duress
If you only falsely imprison someone because someone else has threatened you in a violent or menacing manner, the legal defense of duress may excuse your conduct.
This might be the case if, for example, "Chris" threatens to shoot you if you don’t restrain "Julie" while he robs her apartment. Under this type of scenario, you would be relieved of your criminal culpability.
Consent
It bears repeating that if the alleged victim consents to the detention, restraint, or confinement, you are not guilty of violating Penal Code 236 PC California’s false imprisonment law.
This might be the case if, for example, you and another person go somewhere to engage in sexual activity. Perhaps once there, the other person changes his/her mind about being there. If he/she doesn’t communicate that desire to you…and you remain there even though the other person doesn’t wish to be there…you haven’t falsely imprisoned that individual.
Of course, people are allowed to change their minds if they regret a decision. However, when someone withdraws consent, it must be effectively communicated to any people affected by the decision.
If the other person has unequivocally withdrawn consent yet you continue to detain, restrain, or confine the individual, his/her original consent will not relieve you of your criminal liability.
False allegations / wrongful arrest
There are a number of reasons why someone would falsely accuse another person of committing a crime. Sometimes people point the finger at an innocent individual in order to escape their own criminal liability.
Other times feelings of jealousy, anger, or revenge may motivate an individual to falsely accuse someone else of an offense. This is most frequently seen in connection with California domestic violence law cases.
People involved in relationships characterized by domestic violence often do whatever they can to gain an advantage over their partner. And because a false imprisonment allegation can be based on little or no physical evidence, an individual can falsely accuse his/her partner of this offense simply by lying to the police.
Parents right to discipline
Parents have the right reasonably to discipline their children. This means that they are free to restrict, confine, or detain a child’s movement. In fact, confining children to their rooms and sending children to a "time out" spot are common methods of punishment.
But if that restriction is unreasonable or for an unlawful purpose, than a parent can be convicted of falsely imprisoning his/her child. And it is up to the defendant to prove that his/her actions were justified and/or reasonable.28
Falsely imprisoning a child is a charge that is closely connected to Penal Code 273a PC California’s child endangerment law. As the court explained, "…we hold that a parent, who confines his child with the intent to endanger the health and safety of the child or for an unlawful purpose, can be prosecuted for false imprisonment."29
3. Penalties, Punishment, and Sentencing
If convicted of violating Penal Code 236 PC California’s false imprisonment law as a misdemeanor, you face up to one year in a county jail and a maximum $1,000 fine.
If convicted of Penal Code 236 PC as a felony, you face 16 months, or two or three years in the California State Prison and up to $10,000 in fines.30
The good news is that even if the prosecution charges you with the felony, a jury could return a verdict for the misdemeanor. This is because misdemeanor false imprisonment is a necessarily included lesser offense of the felony.31 Just because the prosecutor believes you are guilty of using "violence, menace, fraud, or deceit" doesn’t necessarily mean that the jury will see it the same way.
Elder abuse
If convicted of felony false imprisonment against an elder or dependent adult (which qualifies as a violation of Penal Code 368 PC California’s elder abuse law), you face two, three, or four years in the state prison.32
Hostages
If you are guilty of violating California’s false imprisonment law against an individual who you either
- falsely imprisoned in order to escape an arrest (which substantially increased the risk of harm to that individual), or
- used as a "shield" (more commonly referred to as a hostage),
you face three, five, or eight years in the state prison.33
Civil penalties
In addition to criminal charges, you could face a civil suit for allegedly falsely imprisoning another person. Civil suits regarding false imprisonment are typically filed against
- retail security officers who detain people they believe may have been shoplifting, and against
- police officers accused of police misconduct for allegedly using excessive force or improper tactics when conducting a detention or investigation.
Civil penalties include substantial fines and could possibly even result in the loss of your job. It is important to understand that even though false imprisonment can lead to both criminal and civil charges, the laws regarding each are quite different.
But don’t despair; we can help you defend against any criminal or civil charges you face related to this area of the law.
Call us for help…
For more information about California’s false imprisonment law, or to discuss your case confidentially with one of our attorneys, please don’t hesitate to contact us at Shouse Law Group.
Our California criminal law offices are located in and around Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions relating to Nevada’s false imprisonment and kidnapping laws. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.34
Legal References:
1California Penal Code 236 PC -- California’s false imprisonment law. ("False imprisonment is the unlawful violation of the personal liberty of another.")
2California Jury Instructions – Criminal – CALJIC 16.135 -- False imprisonment. ("False imprisonment does not require that there be confinement in a jail or prison.")
3Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
4CALJIC 16.135 -- Misdemeanor false imprisonment.
5CALJIC 9.60 -- Felony false imprisonment.
6People v. Dominguez (2010) 180 Cal.App.4th 1351, 1357.
7People v. Magana (1991) 230 Cal.App.3d 1117, 1121. ("Respondent concedes that false imprisonment is a necessarily lesser included offense of kidnapping and the conviction must be vacated.")
8People v. Agnew (1940) 16 Cal.2d 655, 659.
9Ventura criminal defense lawyer Darrell York uses his former experience as a Glendale Police Officer to represents clients accused of child endangerment at the Ventura Hall of Justice, the Van Nuys courthouse, the Pasadena courthouse, the Burbank courthouse, the Glendale courthouse, the Lancaster courthouse, the San Fernando courthouse, and the Criminal Courts Building.
10People v. Fernandez (1994) 26 Cal.App.4th 710, 718. ("Appellant asserts that the statutory definition of the offense envisions and presupposes some physical parameters to the restraint, i.e., confinement in some type of enclosed space. We disagree.")
11CALCRIM 1240 -- California’s false imprisonment law.
12People v. Dominguez (2010) 180 Cal.App.4th 1351, 1360. (""Consent of the victim is no defense where the consent is induced by coercion or deception or where the victim is incapable of consenting due to unsoundness of mind or tenderness of years. (See Perkins, Criminal Law (1957) p. 131.)"
13CALCRIM 1240 -- False imprisonment.
14Loosely based on People v. Fernandez (1994) 26 Cal.App.4th 710
15Loosely based on People v. Castro (2006) 138 Cal.App.4th 137
16Loosely based on People v. Matian (1995) 35 Cal.App.4th 480.
17Loosely based on People v. Babich (1993) 14 Cal.App.4th 801. The defendant was convicted of felony false imprisonment based on violence, however, the court of appeals overruled that finding, noting that the trial court should have sua sponte instructed the jury on the lesser included offense of misdemeanor false imprisonment. Based on the jury’s original findings, the court of appeals believes it may have believed the version of events as reported in this article (as opposed to the alleged victim’s version that the defendant held a knife to her throat).
18Loosely based on People v. Saffle (1992) 4 Cal.App.4th 434
19Loosely based on People v. Webber (1991) 228 Cal.App.3d 1146
20Loosely based on People v. Magana (1991) 230 Cal.App.3d 1117
21Loosely based on People v. Arvanites (1971) 17 Cal.App.3d 1052
22Loosely based on People v. Aispuro (2007) 157 Cal.App.4th 1509
23Loosely based on People v. Matian (1995) 35 Cal.App.4th 480.
24Loosely based on People v. Moore (Not Reported in Cal.Rptr.2d, 2003 WL 257943 Cal.App. 5 Dist.,2003).
25People v. Aispuro at 1513, endnote 21, above.
26People v. Rios (1986) 177 Cal.App.3d 445
27Judicial Council Of California Criminal Jury Instruction 505 -- Justifiable Homicide: Self-Defense or Defense of Another. ("The defendant acted in lawful (self-defense/ [or] defense of another) if: [1] The defendant reasonably believed that (he/she/ [or] someone else/ [or] <insert name or description of third party<) was in imminent danger of being killed or suffering great bodily injury [or was in imminent danger of being (raped/maimed/robbed/ <insert other forcible and atrocious crime<)]; [2] The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger; AND [3] The defendant used no more force than was reasonably necessary to defend against that danger.")
See also Judicial Council Of California Criminal Jury Instruction 3470 -- Right to Self-Defense or Defense of Another (Non-Homicide). ("The defendant acted in lawful (self-defense/ [or] defense of another) if: [1] The defendant reasonably believed that (he/she/ [or] someone else/ [or] <insert name of third party<) was in imminent danger of suffering bodily injury [or was in imminent danger of being touched unlawfully]; [2] The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; AND [3] The defendant used no more force than was reasonably necessary to defend against that danger.")
28People v. Checketts (1999) 71 Cal.App.4th 1190, 1194. ("Since it is well-established that parents have a right to reasonably discipline their children by punishing them ( Whitehurst, supra, 9 Cal.App.4th at p. 1050, 12 Cal.Rptr.2d 33; In re Edward C. (1981) 126 Cal.App.3d 193, 202, 178 Cal.Rptr. 694), reasonable acts of discipline, including confinement to a particular location for disciplinary purposes such as sending a child to his or her room, would not be false imprisonment, as they would constitute lawful exercise of parental authority. (PenalCode, § 236.) However, not all parental acts of discipline against their children are lawful…In our view, parental actions done with the intent to endanger or injure the child are patently in excess of parental authority and are not entitled to immunity from prosecution. Therefore, we hold that a parent, who confines his child with the intent to endanger the health and safety of the child or for an unlawful purpose, can be prosecuted for false imprisonment.")
29See same
30California Penal Code 237 PC -- California’s false imprisonment law; punishment. ("(a) False imprisonment is punishable by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail for not more than one year, or by both that fine and imprisonment. If the false imprisonment be effected by violence, menace, fraud, or deceit, it shall be punishable by imprisonment in the state prison.
See also California Penal Code 18 PC -- Punishment for felony not otherwise prescribed; alternate sentence to county jail. ("Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a felony, or to be punishable by imprisonment in a state prison, is punishable by imprisonment in any of the state prisons for 16 months, or two or three years; provided, however, every offense which is prescribed by any law of the state to be a felony punishable by imprisonment in any of the state prisons or by a fine, but without an alternate sentence to the county jail, may be punishable by imprisonment in the county jail not exceeding one year or by a fine, or by both.")
See also California Penal Code 672 PC -- Offenses for which no fine prescribed; fine authorized in addition to imprisonment. ("Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.")
311 Witkin, Cal. Crim. Law 3d (2000) Crimes--Person, § 77, p. 693. ("Relationship Between Misdemeanor and Felony. Both misdemeanor and felony false imprisonment involve the use of force. The difference is that the force used in the felony offense is greater than that reasonably necessary to effect the restraint, and in that situation is defined as "violence." Consequently, misdemeanor false imprisonment is a necessarily included offense of felony false imprisonment. (See People v. Hendrix (1992) 8 C.A.4th 1458, 1462, 10 C.R.2d 922; People v. Bamba, supra, 58 C.A.4th 1123.)")
32California Penal Code 237 PC -- False imprisonment; punishment. ("(b) False imprisonment of an elder or dependent adult by use of violence, menace, fraud, or deceit shall be punishable as described in subdivision (f) of Section 368.")
See also Penal Code 368 PC California’s elder abuse law, subdivision "f". ("(f) Any person who commits the false imprisonment of an elder or a dependent adult by the use of violence, menace, fraud, or deceit is punishable by imprisonment in the state prison for two, three, or four years. (g) As used in this section, "elder" means any person who is 65 years of age or older. (h) As used in this section, "dependent adult" means any person who is between the ages of 18 and 64, who has physical or mental limitations which restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities or whose physical or mental abilities have diminished because of age. "Dependent adult" includes any person between the ages of 18 and 64 who is admitted as an inpatient to a 24-hour health facility, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.")
33California Penal Code 210.5 PC -- False imprisonment for purposes of protection from arrest or use as shield.
34Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Daria A. Snadowsky for any questions relating to Nevada’s false imprisonment and kidnapping laws. Their Nevada law offices are located in Reno and Las Vegas.
