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 commonly referred to as "false imprisonment." Despite its name, the crime does not necessarily involve confining someone in jail or prison.2
Engaging in any of the above acts subjects you to misdemeanor charges. But the offense can be charged as a felony if you use:
- violence (that is, using physical force that is greater than the force reasonably necessary to restrain someone),
- menace (that is, a threat of harm expressed or implied by words or actions), or
- fraud or deceit (fraud and deceit involve making false representations or concealing the truth for some type of personal gain).
Defenses
The good news is that there are a number of legal defenses 
to false imprisonment charges. Some of the most common include:
- you only imprisoned the person to protect yourself or someone else from serious bodily harm self-defense / defense of others ,
- you only imprisoned the person because you were threatened or forced into doing so duress,
- the alleged victim actually consented to the restraint / confinement,
- you were the victim of false accusations and/or wrongful arrest, OR
- as a parent, you have the right to restrict / confine your child.
Penalties
False imprisonment subjects an offender to both criminal and civil penalties.
Criminally, false imprisonment is a wobbler , which means prosecutors may charge the offense as either a misdemeanor or a felony . The misdemeanor is punishable by up to one year in a county jail. The felony is punishable by up to three years in the California state prison .3
Civil penalties are limited to fines and do not carry jail or prison sentences.
Below, our California criminal defense attorneys4 explain California's false imprisonment laws by addressing the following:
1. The Legal Definition of "False Imprisonment" under California Law
1.1. Restrained, confined, or detained
1.2. Consent
1.3. Violence
1.4. Menace
1.5. Fraud / deceit
2. Legal Defenses
2.1. Self-defense / defense of others
2.2. Duress
2.3. Consent
2.4. False allegations / wrongful arrest
2.5. Parents right to discipline
3. Penalties, Punishment, and Sentencing
3.1. Criminal penalties
3.2. Civil penalties
4. Related Offenses
4.1. Penal Code 210.5 PC California's false imprisonment of a hostage law
4.2. Penal Code 207 PC California's kidnapping law
4.3. Penal Code 215 PC California's carjacking law
4.4. Penal Code 209.5 PC California's kidnapping during the commission of a carjacking law
4.5. Penal Code 368 PC California's elder abuse law
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 California's Kidnapping Law; Penal Code 210.5 PC California's False Imprisonment of a Hostage Law; Penal Code 136.1 PC California's Law Against Intimidating a Victim or Witness; Penal Code 215 PC California's Carjacking Law; Penal Code 209.5 PC California's "Kidnapping During the Commission of a Carjacking" Law; Penal Code 273a PC Child Endangerment; Penal Code 278.5 PC California's Law Against Child Abduction in Violation of a Custody Order; California's Domestic Violence Laws; Penal Code 368 PC California's Elder Abuse Law; California's Police Misconduct Laws; California Wobblers; California Misdemeanor Charges; California Felony Charges; Legal Defenses; California's Self-Defense Laws; The California Legal Defense of Duress; and California's Parole Laws.
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
- that the other person did not consent.5
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.6
"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."7
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 , (discussed below in Section 4. Related Offenses) 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.8
Let's take a closer look at some of the above terms to gain a better understanding of their legal definitions.
1.1. 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."9
As Ventura criminal defense lawyer John Murray10 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.11 If you restrict another person's movement in any way or cause him to make any involuntary movements, you potentially violate California's false imprisonment law."
1.2. 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."12
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.13
1.3. Violence
Violence means "using physical force that is greater than the force reasonably necessary to restrain someone."14 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.15
- 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.16
- After fighting with Adam, Laurie turns to go. Adam grabs Laurie's arm and demands that she stays.17
- Similarly, after arguing with Rachel, John holds Rachel with his arms and does not let her go.18
- 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.19 ∗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.20
- After raping Bridget, Rich makes her walk through a park holding his hand and threatens to kill her if she lets go.21
- After barricading Steve in his office, Rob and Dennis tell him he'll have nothing to smile about once they're through with him. 22
- While holding the hood of a 13-year-old girl's sweatshirt, Paul demands that the child sit in the middle of the street, threatening "if you don't, then I will do something".23
- 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.24
- 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.25
- the specific facts of the case, and
- our criminal history.
- retail security officers who detain people they believe may have been shoplifting, and against
- police officers accused of violating California's police
misconduct laws for allegedly using excessive force or improper tactics when conducting a detention or investigation. - falsely imprison another person to avoid an arrest, (that is, you use that person as a hostage) and/or
- use another person as a human "shield"
- move another person,
- substantial distance,
- without that person's consent,
- by using force or fear.34
- three, five or eight years in the California state prison, and
- a maximum $10,000 fine.36
- you move the victim beyond what is merely incidental to the carjacking,
- you move the victim a substantial distance from the area of the carjacking, and
- the movement of the victim increases the risk of harm over and above that necessary to commit the carjacking.39
Examples of acts that courts do not believe qualify as violent false imprisonment:
1.4. 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:
Examples of acts that do not qualify as menace:
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."26
1.5. 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.
Example: The defendant is entitled to visitation rights to his daughter. On one of his routine visits, he takes his one-year old daughter to Mexico to live with her cousins. He then reports her missing. Over the next four years, the father and cousins lead the child to believe that the cousins are her parents and that the defendant is 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. 27
∗Incidentally, prosecutors could also charge this type of conduct under Penal Code 278.5 PC California's law against child abduction in violation of a custody order.
2. Legal Defenses
There are a variety of California 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.
2.1. 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.28
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.
2.2. Duress
If you only falsely imprison a person because someone else has threatened you in a violent or menacing manner, the California 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, the legal defense of duress could absolve you of criminal liability.
2.3. 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 the two of 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.
2.4. 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 falsely to accuse someone else of a crime. This is most frequently seen in connection with California domestic violence law .
Some people in troubled relationships 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.
2.5. Parents right to discipline
Parents have the right reasonably to discipline their children. This often entails restricting, confining, or detaining 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, then a parent can be convicted of falsely imprisoning his/her child. And if parental discipline is asserted as an affirmative defense, the burden may lie with the accused to show that the restraint was reasonable.29
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."30
3. Penalties, Punishment, and Sentencing
California law recognizes two types of false imprisonment: criminal false imprisonment and civil false imprisonment.
3.1. Criminal penalties
False imprisonment is a "California wobbler " which means that it may be charged as either a misdemeanor or as a felony depending on
If convicted of violating Penal Code 236 PC California's false imprisonment law as a California 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 California felony, you face either
(a) probation and up to one year county jail, or
(b) 16 months, or two or three years in the
California State Prison
and up to $10,000 in fines.31
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.32 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.
3.2. 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
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.
4. Related Offenses
There are a variety of offenses that are closely related to false imprisonment either because prosecutors frequently charge them in connection with or in lieu of Penal Code 236 PC. The following are some of the most common.
4.1. Penal Code 210.5 PC California's false imprisonment of a hostage law
You violate Penal Code 210.5 PC California's false imprisonment of a
hostage law when you
when that false imprisonment substantially increases the risk of harm to that person.
This crime is a form of "aggravated" false imprisonment and...as a result...subjects you to harsher penalties. Unlike the maximum three year prison sentence you face if you are convicted of felony false imprisonment, a conviction for this offense is an automatic felony punishable by three, five or eight years in the state prison.33
4.2. Penal Code 207 PC California's kidnapping law
You violate Penal Code 207 PC California's kidnapping law when you
When you kidnap another person, you are necessarily falsely imprisoning that individual. This means that you cannot commit the crime of kidnapping without also committing the crime of false imprisonment.35
As a result, the prosecutor may charge you with kidnapping but the jury may alternatively decide that you are guilty only of the less serious offense of false imprisonment. This might be the case if, for example, the jury believes that you moved another person without that person's consent but did not necessarily use force or fear to do so.
Kidnapping is a felony , punishable by
And if you are charged with aggravated kidnapping...such as kidnapping during the commission of a carjacking (discussed in Section 4.4 below)...you face even greater penalties.
4.3. Penal Code 215 PC California's carjacking law
Penal Code 215 PC California's carjacking law prohibits taking a car from another person by means of force or fear. It doesn't matter whether the person in the car is a driver or a passenger...or whether those individuals even own the car. If you use force or fear to take control of that car, you may be convicted of the charge.
It stands to reason that if you carjack a car with a person in that car, you have confined or detained that individual without his/her consent.
Carjacking is a felony, punishable by three, five or nine years in the state prison and a maximum $10,000 in fine.37 You face this punishment for each victim that is present in the car at the time of the carjacking.38
But if there is a person in the car at the time you commit a carjacking, chances are the prosecution will charge you with kidnapping during the commission of a carjacking.
4.4. Penal Code 209.5 PC California's kidnapping during the commission of a carjacking law
You violate Penal Code 209.5 PC California's "kidnapping during the commission of a carjacking" law when
Forcing someone out of a car during a carjacking would be the type of movement that is merely incidental to the carjacking. But if you carjack a car while there are still people in the car, that movement increases their risk of harm over and above that necessary to commit the carjacking...and necessarily falsely imprisons them as well.
Penal Code 209.5 is a felony, subjecting you to life in prison with the possibility of parole in accordance with California's parole laws .
4.5. Penal Code 368 PC California's elder abuse law
Falsely imprisoning an elder...that is, a person who is 65 years or older...is a form of aggravated false imprisonment. If you are 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.40
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 laws and/or Nevada's 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.41
Legal References:
1 California Penal Code 236 PC -- California's false imprisonment law. ("False imprisonment is the unlawful violation of the personal liberty of another.")
2 California Jury Instructions - Criminal - CALJIC 16.135 -- False imprisonment. ("False imprisonment does not require that there be confinement in a jail or prison.")
3 California 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.")
4 Our 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.
5 CALJIC 16.135 -- Misdemeanor false imprisonment. ("[Defendant is accused [in Count[s] ] of having violated section 236 of the Penal Code, a misdemeanor.] Every person who falsely imprisons another is guilty of a violation of Penal Code section 236, a misdemeanor. "False imprisonment" is the [unlawful] violation of the personal liberty of another. There must be an intentional [and unlawful] restraint, confinement or detention which compels a person to stay or go somewhere without [his] [her] consent. [False imprisonment does not require that there be confinement in a jail or prison.] In order to prove this crime, each of the following elements must be proved: 1 A person intentionally [and unlawfully] restrained, confined or detained another person, compelling [him] [her] to stay or go somewhere; and 2 The other person did not consent to this restraint, confinement or detention.")
6 CALJIC 9.60 -- Felony false imprisonment. ("(Penal Code § 236 or 237, subdivision (b)) [Defendant is accused [in Count[s] ] of having committed the crime of false imprisonment [by [violence, menace,] [fraud or deceit,] a violation of section 236 of the Penal Code.] [of an elder or dependent adult by [violence, menace,] [fraud, or deceit,] a violation of section[s] 236 [and 237, subdivision (b)] of the Penal Code.]] Every person who by [violence, menace,] [fraud or deceit] violates the liberty of [another person] [an elder] [a dependent adult] by intentionally and unlawfully restraining, confining, or detaining that person and compelling that person to stay or go somewhere without [his] [her] consent is guilty of the crime of false imprisonment [of [an elder] [a dependent adult]] by [violence, menace,] [fraud or deceit] in violation of Penal Code section[s] 236 [and 237, subdivision (b)]. ["Violence" means the exercise of physical force used to restrain over and above the force reasonably necessary to effect the restraint.] ["Menace" means a threat of harm express or implied by word or act.] [False imprisonment does not require that there be confinement in a jail or prison.] In order to prove this crime, each of the following elements must be proved: 1 A person intentionally [and unlawfully] restrained, confined, or detained another person, compelling [him] [her] to stay or go somewhere; 2 The other person did not consent to the restraint, confinement, or detention; [and] 3 The restraint, confinement or detention was accomplished by [violence][or, menace,] [fraud or deceit] [.] [; and 4 The victim was [an elder] [dependent adult].]")
7 People v. Dominguez (2010) 180 Cal.App.4th 1351, 1357.
8 People 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.")
9 People v. Agnew (1940) 16 Cal.2d 655, 659.
10 Ventura criminal defense lawyer John Murray represents clients 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.
11 People 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.")
12 CALCRIM 1240 -- California's false imprisonment law. ("The defendant is charged [in Count ] with false imprisonment by violence or menace [in violation of Penal Code section 237(a)]. To prove that the defendant is guilty of this crime, the People must prove that: 1 The defendant intentionally [and unlawfully] (restrained[,]/ [or] confined[,]/ [or] detained) someone [or caused that person to be (restrained[,]/ [or] confined[,]/ [or] detained)] by violence or menace; AND 2 The defendant made the other person stay or go somewhere against that person's will. Violence means using physical force that is greater than the force reasonably necessary to restrain someone. Menace means a verbal or physical threat of harm[, including use of a deadly weapon]. The threat of harm may be express or implied. [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.] [False imprisonment does not require that the person restrained be confined in jail or prison.]")
13 People 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.)"
14 See CALCRIM 1240 -- False imprisonment, endnote 12, above.
15 Loosely based on People v. Fernandez (1994) 26 Cal.App.4th 710
16 Loosely based on People v. Castro (2006) 138 Cal.App.4th 137
17 Loosely based on People v. Matian (1995) 35 Cal.App.4th 480.
18 Loosely 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).
19 Loosely based on People v. Saffle (1992) 4 Cal.App.4th 434
20 Loosely based on People v. Webber (1991) 228 Cal.App.3d 1146
21 Loosely based on People v. Magana (1991) 230 Cal.App.3d 1117
22 Loosely based on People v. Arvanites (1971) 17 Cal.App.3d 1052
23 Loosely based on People v. Aispuro (2007) 157 Cal.App.4th 1509
24 Loosely based on People v. Matian (1995) 35 Cal.App.4th 480.
25 Loosely based on People v. Moore (Not Reported in Cal.Rptr.2d, 2003 WL 257943 Cal.App. 5 Dist.,2003).
26 People v. Aispuro at 1513, endnote 23, above.
27 People v. Rios (1986) 177 Cal.App.3d 445
28 CALCRIM 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 CALCRIM 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.")
29 People 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.")
30 See same
31 California 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.")
32 1 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.)")
33 Penal Code 210.5 PC - False imprisonment for purposes of avoiding arrest or use as a shield. ("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.")
34 California Penal Code 207 PC - California's kidnapping law. ("(a) Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping. (b) Every person, who for the purpose of committing any act defined in Section 288, hires, persuades, entices, decoys, or seduces by false promises, misrepresentations, or the like, any child under the age of 14 years to go out of this country, state, or county, or into another part of the same county, is guilty of kidnapping. (c) Every person who forcibly, or by any other means of instilling fear, takes or holds, detains, or arrests any person, with a design to take the person out of this state, without having established a claim, according to the laws of the United States, or of this state, or who hires, persuades, entices, decoys, or seduces by false promises, misrepresentations, or the like, any person to go out of this state, or to be taken or removed therefrom, for the purpose and with the intent to sell that person into slavery or involuntary servitude, or otherwise to employ that person for his or her own use, or to the use of another, without the free will and consent of that persuaded person, is guilty of kidnapping. (d) Every person who, being out of this state, abducts or takes by force or fraud any person contrary to the law of the place where that act is committed, and brings, sends, or conveys that person within the limits of this state, and is afterwards found within the limits thereof, is guilty of kidnapping. (e) For purposes of those types of kidnapping requiring force, the amount of force required to kidnap an unresisting infant or child is the amount of physical force required to take and carry the child away a substantial distance for an illegal purpose or with an illegal intent. (f) Subdivisions (a) to (d), inclusive, do not apply to any of the following: (1) To any person who steals, takes, entices away, detains, conceals, or harbors any child under the age of 14 years, if that act is taken to protect the child from danger of imminent harm. (2) To any person acting under Section 834 or 837.")
35 People 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.")
36 California Penal Code 208 PC -- Punishment for kidnapping; victim under 14 years of age; probation. ("(a) Kidnapping is punishable by imprisonment in the state prison for three, five, or eight years. (b) If the person kidnapped is under 14 years of age at the time of the commission of the crime, the kidnapping is punishable by imprisonment in the state prison for 5, 8, or 11 years. This subdivision is not applicable to the taking, detaining, or concealing, of a minor child by a biological parent, a natural father, as specified in Section 7611 of the Family Code, an adoptive parent, or a person who has been granted access to the minor child by a court order. (c) In all cases in which probation is granted, the court shall, except in unusual cases where the interests of justice would best be served by a lesser penalty, require as a condition of the probation that the person be confined in the county jail for 12 months. If the court grants probation without requiring the defendant to be confined in the county jail for 12 months, it shall specify its reason or reasons for imposing a lesser penalty.")
37 Penal Code 215 PC California's carjacking law. ("(a) "Carjacking" is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear. (b) Carjacking is punishable by imprisonment in the state prison for a term of three, five, or nine years. (c) This section shall not be construed to supersede or affect Section 211. A person may be charged with a violation of this section and Section 211. However, no defendant may be punished under this section and Section 211 for the same act which constitutes a violation of both this section and Section 211.")
See also 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.")
38 People v. Hamilton (1995) 40 Cal.App.4th 1137, 1142 and 1144. ("As a general rule, multiple convictions and punishments are proper for each act of violence committed against a separate victim....[and at 1144] This construction is reasonable. In the usual case of carjacking involving multiple occupants, all are subjected to a threat of violence, all are exposed to the high level of risk which concerned the Legislature, and all are compelled to surrender their places in the vehicle and suffer a loss of transportation.FN7 All are properly deemed victims of the carjacking. Defendant's two convictions were proper.")
39 Penal Code 209.5 PC - Kidnapping during the commission of a carjacking. ("(a) Any person who, during the commission of a carjacking and in order to facilitate the commission of the carjacking, kidnaps another person who is not a principal in the commission of the carjacking shall be punished by imprisonment in the state prison for life with the possibility of parole. (b) This section shall only apply if the movement of the victim is beyond that merely incidental to the commission of the carjacking, the victim is moved a substantial distance from the vicinity of the carjacking, and the movement of the victim increases the risk of harm to the victim over and above that necessarily present in the crime of carjacking itself. (c) In all cases in which probation is granted, the court shall, except in unusual cases where the interests of justice would best be served by a lesser penalty, require as a condition of the probation that the person be confined in the county jail for 12 months. If the court grants probation without requiring the defendant to be confined in the county jail for 12 months, it shall specify its reason or reasons for imposing a lesser penalty.")
40 California 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.")
41 Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Mike Castillo for any questions relating to Nevada's false imprisonment laws and/or Nevada's kidnapping laws. Their Nevada law offices are located in Reno and Las Vegas.
