California Kidnapping Laws
Penal Code 207 208 209 209.5 PC


"Kidnapping" is moving a victim a substantial distance, using force or fear to do so

You violate California's kidnapping laws, found under Penal Code 207, 208, 209 and 209.5 PC, when you

  1. move another person
  2. a substantial distance
  3. without that person's consent
  4. by using force or fear.1

"Force or fear" means

  • that you actually inflict physical force upon the alleged victim, or
  • that you threaten to inflict imminent physical harm.
Aggravated kidnapping

If you move another person and

  • use force, fear or fraud upon a victim who is a child under 14 years of age,
  • accompany the kidnapping with a demand for ransom,
  • cause the victim to suffer serious bodily harm or death,
  • kidnap another person while you are violating Penal Code 215 PC California's carjacking law, or
  • violate a number of other laws that relate to kidnapping,

the offense elevates to aggravated kidnapping.2 Aggravated kidnapping is a more serious charge, a conviction for which carries life in prison.

Examples of kidnapping
  • Tying someone up, moving her to a desolate location, then calling her family and demanding that they pay ransom to gain her release.
  • Holding a gun to someone's head, and demanding that he drives you away from the store you just robbed.
  • Ordering a woman out of a busy store, out onto the street, into a back alley and then into your car to rape her, all under the threat of killing her daughter if she doesn't go with you.
  • Telling your girlfriend's 8-year-old son that you are taking him to the movies when, in fact, you have no such intention and are simply "hiding" him from his mother after finding out that she cheated on you.
Penalties

"Simple" kidnapping is a felony, subjecting you to up to 8 years in the California state prison3. Aggravated kidnapping...also a felony...carries a sentence of five years to life, depending on the facts of the case.4 And because kidnapping is a strike under California's three strikes law, you must serve at least 85% of your sentence before you are eligible for release.

Defenses

The good news is that there are a variety of legal defenses that apply to kidnapping charges.  These include (but are not limited to) taking the position that:

  • the alleged victim consented to being moved,
  • there was insufficient movement to qualify as kidnapping,
  • there is insufficient evidence to prove the case,
  • you were "merely present" and not the individual who did the kidnapping,
  • you were falsely accused of kidnapping based on mistaken identity, and/or
  • as the parent of the victim, you have a right to travel with your child (*Note - parents who do not have legal custody of the child victim may be convicted of kidnapping and/or child abduction if they take the child or conceal the child from his/her legal custodian5).

Below, our California criminal defense attorneys6 explain the intricacies of California's kidnapping laws by addressing the following:

1. The Legal Definition of Kidnapping in
California Law

1.1. Movement

1.2. Consent

1.3. Force, fear or fraud

2. Legal Defenses

2.1. The alleged victim consented to being moved

2.2. There was insufficient movement to
constitute kidnapping

2.3. You were not the kidnapper but were merely present

2.4. Insufficient evidence / false accusations

2.5. Parents' rights to travel with their children

2.6. Statutory exceptions

3. Penalties, Punishment, and Sentencing

3.1. Simple kidnapping

3.2. Aggravated kidnapping

3.3. California's three strikes law

4. Related Offenses

4.1. Penal Code 209.5 PC Kidnapping during a carjacking

4.2. Penal Code 210 PC Kidnapping in connection
with extortion

4.3. Penal Code 236 PC California's false
imprisonment law

4.4. Penal Code 210.5 PC False imprisonment to protect
from arrest

4.5. Penal Code 278 PC California's child abduction law

4.6. Penal Code 278.5 PC Deprivation of a
child custody order

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 Kidnapping During a Carjacking; Carjacking; Kidnapping in Connection with Extortion; Extortion; False Imprisonment; False Imprisonment to Protect From Arrest; California's Child Abduction Law; Deprivation of a Child Custody Order; Robbery; California Sex Crimes; Wobblers; Misdemeanors; Felonies; Aiding and Abetting; California Legal Defenses; California's Three Strikes Law; and Nevada's Kidnapping Laws.

1. The Legal Definition of Kidnapping in
California Law
Img-kidnap2

Restraint, violence or the threat of violence is a necessary element of
a kidnapping charge

Although the exact wording of California's kidnapping laws is technical and complex, they can be summed up as follows:

"Simple" kidnapping, stated in Penal Code 207, takes place when you move another person without that person's consent by using force or fear.7

"Aggravated" kidnapping...which subjects you to greater penalties, discussed below in Section 3. Penalties, Punishment and Sentencing...takes place when you move another person without that person's consent by using force, fear or fraud and

  • the victim is a child under 14 years of age,
  • you hold the victim for ransom,
  • the victim suffers bodily harm or death, or
  • you kidnap another person during a carjacking.8

Let's take a closer look at some of these terms and phrases to gain a better understanding of their legal definitions.

1.1. The requirement that you "move" another person

In order for a kidnapping to take place, you must "move" the alleged victim more than a slight or trivial distance.  In other words, the movement must be substantial.

However, the determination of whether the movement is "substantial" depends on a variety of factors.  These may include considerations such as

  • the actual distance moved,
  • whether the movement increased the risk of harm to the alleged victim (for example, removing the victim from a crowded club into an adjacent dark alley), and
  • whether the movement decreased the likelihood of being caught (same example).9

Examples of cases involving rather slight movement that the courts upheld as being substantial enough to support kidnapping charges include (but are not limited to):

  • the defendant moved the victim 29 feet from the outside of a motel room door into the bathroom in order to rape her (the inference being that the movement was to avoid detection and/or to facilitate the rape),10
  • the defendant moved his victims 840 feet on a major street at night when he popped up from the back of a pickup truck, grabbed the driver and passenger by the shoulders and ordered them to continue driving until the driver and passenger abandoned the truck in motion,11 and
  • the defendant ordered the victim (at knife point) to move 40 to 50 feet from his driveway on the street to the inside of a camper in the driveway behind his house.12

Examples of movement that courts held were not substantial enough to justify kidnapping charges include (but are not limited to):

  • the court held that when the defendant dragged the victim from the front of the laundromat into the back of the laundromat, the entire incident took place in a single room and therefore didn't qualify as sufficient movement,13 and
  • the court held that when the defendant moved the victim at gunpoint about 40 feet through a parking lot towards his van before she escaped, this movement was insufficient to support a kidnapping conviction because the entire movement was within the parking lot and the victim was not subject to increased harm in this short distance.14

The bottom line is that whether or not the movement is substantial enough to justify a conviction is a question of fact for the judge or jury to decide.  There is no "set" distance that automatically qualifies and substantial or not.15 Consequently, this is an area that is ripe for challenge by your California criminal defense lawyer.

But as Newport Beach criminal defense attorney John Murray16 explains, "If you are being charged with aggravated kidnapping because you also committed an underlying offense, the movement must be more than what is merely incidental to the underlying crime.  If it is not, the kidnapping charge must be dismissed."17

Example:  In order to engage in carjacking, the suspect must necessarily move the driver without the driver's consent.  That movement is "incidental" to the carjacking when, for example, the suspect pulls the driver out of the car in order to allow him/herself to get behind the wheel.

The movement is not merely incidental...and will consequently support a kidnapping conviction...if instead of pulling the driver out of the car, the suspect gets into the passenger's seat and demands that the driver continue driving a substantial distance to a remote location before he is ordered to get out of the car.

1.2. Without the alleged victim's consent

"Without the alleged victim's consent" means that the alleged victim protested or put up a fight before you were able to move him/her.  It means that he/she did not voluntarily agree to go with you.

It should be noted that neither children nor those who are mentally incapacitated (either based on mental illness or extreme intoxication) are deemed incapable of giving legal consent.

But before you can truly understand the full meaning of "without the alleged victim's consent", we must define the terms "force, fear or fraud", as they are very closely related...at least with respect to California kidnapping charges.

1.3. Force, fear or fraud

Img-kidnap3

To be convicted of kidnapping, the perpetrator must have used
violence, force, threats or sometimes fraud

California's simple kidnapping laws prohibit moving the victim, without his/her consent, by way of force or fear.  "Force or fear" means that you actually inflict physical force upon the alleged victim or that you threaten to inflict imminent physical harm.

Examples of using physical force to accomplish a kidnapping include (but are not limited to):

  • physically restraining the alleged victim in order to move him/her,
  • physically dragging the alleged victim to a specified location, or
  • actually "beating" someone to the point that they are no longer able to resist.

With respect to kidnapping an unresisting infant or child, the only amount of physical force that is required is enough to take and carry the child away.18

"Fear" may include (but are not limited to):

  • demanding that the alleged victim comply while you hold him/her at gunpoint or knifepoint,
  • threats to abuse the alleged victim (physically and/or sexually) if he/she doesn't comply with your demands, or
  • threats to harm the alleged victim's immediate family if he/she doesn't comply with your demands.
Fraud

It's important to note that moving a person exclusively via fraudulent means...that is, without accompanying force or fear...does not constitute general kidnapping.19 "Fraud" only comes into play under a variety of aggravated circumstances.  These include:

  • fraudulently kidnapping a child under 14 for the purpose of committing lewd acts with a minor in violation of Penal Code 288 PC
  • fraudulently kidnapping a person in order to leave this state for the purpose of selling that person into slavery or involuntary servitude, or
  • raudulently kidnapping a person in another state and bringing him/her into this state.20

"Fraud" is generally defined as any deliberate deception practiced in order to secure a personal gain.  This means that if you make false promises or mislead the alleged victim...and those fraudulent representations convince him/her to "consent" to being moved...you fraudulently obtained that consent.

Fraudulent consent is the equivalent of no consent.  This is because a person can only freely consent to something when he/she knows exactly what that consent is for.  And if the alleged victim doesn't freely consent...with an understanding of all the necessary facts...then you act "without the alleged victim's consent".

Example: Defendant persuaded a 7-year-old child to get into his car based on the fraudulent representation that he was seeking a religious donation from the boy's parents.  Defendant told the boy he would drive him home to speak to the adults.

The defendant was not seeking religious donations, nor did he have any intention of driving the child to his home.  The defendant took the child to a rented cabin where he disguised the child, renamed him, performed a variety of sexual acts on the child and kept him as his own for many years.21

And along these same lines, if the alleged victim initially consents to the movement, but then withdraws that consent, you violate California's kidnapping laws if you continue to move the alleged victim a substantial distance as explained above.22

2. Legal Defenses
Img-kidnap6

A good legal defense can often get a kidnapping charge reduced or even dismissed

Fortunately, there are a variety of legal defenses that are applicable to California kidnapping charges that a skilled California criminal defense lawyer can present on your behalf.  Some of these may include (but are not limited to):

2.1. The alleged victim consented to being moved

Let's say, for example, that you and Susie decide to go for a ride...let's even say a long ride with no specified destination.  Regardless of what happens once you decide to stop driving...even if she then decides she wants to return home...you haven't kidnapped her, since she consented to the movement.23

But as stated above under Subsection 1.3. Force, fear or fraud, if at some point she decides she wants to go home...and you continue to move her against her will...then consent will no longer serve as a valid legal defense.

Another way that consent comes into play is when you have a good faith (and reasonable belief) that the alleged victim consented to being moved.  This means that if, for example, the alleged victim's behavior indicates that he/she willingly accompanied you to your destination...you may be acquitted of kidnapping charges even if he/she later claims that you took him/her against his/her will.24

Example: The defendant...who was convicted of kidnapping...accompanied a woman he met on the street into a store to buy cigarettes and then back to his apartment to have sex.  The alleged victim claimed that she was forced into going with the defendant, although admittedly, she didn't physically resist.  The defendant claimed that she did not resist, that the encounter was "friendly" and that she consented to go with him.

The California Court of Appeal ruled that the trial court should have instructed the jury that if they believed that the defendant reasonably and in good faith believed that the woman consented to going to his apartment that he should be acquitted of the kidnapping charge.  This is because if the defendant truly believed that the woman consented to the movement, he didn't have the requisite criminal intent that is necessary to sustain a kidnapping conviction.25

2.2. There was insufficient movement to qualify as kidnapping

Before the prosecution can convict you of kidnapping, it must prove that you moved the victim a substantial distance.  This means that if you only moved the victim a slight or trivial distance...or a distance that does not subject the victim to any additional harm...you should not be convicted of this offense.

Refer back to one of the examples above...where the defendant moved the victim 40 feet across a parking structure to try to get her inside his van. The court held that the movement was insufficient to support a kidnapping conviction because the entire movement was within the parking lot and the victim was not subject to increased harm in this short distance.26

As a result, his conviction for kidnapping was overturned.

2.3. You were not the kidnapper but were merely present

Let's say that you and a friend stopped to get gas.  You waited in the car while he went inside to pay.  He returned to the car with a bag full of money and the clerk from the gas station.  He had robbed the store and was kidnapping the clerk so the clerk wouldn't be able to report the crime.

Your friend gets stopped by the police for speeding.  The clerk tells the cops what happened and you and your friend are both arrested for robbery and kidnapping.

Because you were unaware of your friend's plan, and were not "in on it," you should be acquitted of the charges.  You were simply in the wrong place at the wrong time. As the law puts it, you were "merely present."

However, if your friend told you ahead of time what he was planning...and you still decided to "go along for the ride"...you could be charged as an aider and abettor.  You may be convicted of aiding and abetting anytime you

  1. know the perpetrator's illegal plan,
  2. intentionally encourage and/or facilitate the plan, and
  3. either promote or instigate the crime or fail to prevent it where you have a legal duty (that is, a legally imposed duty) to do so (for example, a therapist is under a legal duty to report a crime if he/she learns one is going to take place).27

If you are convicted of being an aider and abettor to kidnapping, you face the same penalties as the actual perpetrator28 (discussed below in Section 3. Penalties, Punishment and Sentencing).

2.4. Insufficient evidence / false accusations

If you are charged with simple kidnapping without any underlying or additional offenses, it is very likely that the case will be based on he-said / she-said allegations.  If there is no proof of a crime other than the uncorroborated word of the alleged victim, it will be easier for your attorney to defend the charges.

For example, without credible eyewitnesses or records of phone calls/texts placed by the victim requesting help, your lawyer could argue that you are being falsely accused of kidnapping. The case really comes down to the credibility of the accuser.

People tend to make false accusations based on emotions such as anger, jealousy and/or revenge.  Many times, people falsely accuse others in order to gain an upper hand over the other person or to gain control during hotly contested custody proceedings...which leads to the next defense...

2.5. Parents' rights to travel with their children

If you are the parent of a child...and have lawful custody of that child...you are allowed to travel with your child.29 This means that if, for example, you decide to take your child on a trip...even without the other parent's permission...you have not kidnapped your child.

Depending on the circumstances, you could, however, face possible charges for Penal Code 278.5 PC deprivation of a child custody order (discussed below under Section 4. Related Offenses).30

The exception to this defense applies to illegal intent / acts.  If you take / move your child in order to engage in criminal activity, this defense will not apply.31

Example: Defendant was properly convicted of kidnapping his daughter when he took her into a motel room in order to molest her.  His right to physical custody ended when he exercised it for an illegal purpose.32

2.6. Statutory exceptions

In addition to the defenses above, there are a couple of defenses that are written into California's kidnapping laws.  You are not guilty of kidnapping if

  1. you steal, take, conceal or otherwise harbor a child under 14 if you do so to protect the child from danger of imminent harm,33 or
  2. you place the alleged victim under a citizen's arrest.34

You legally place another person under a legal "citizens" arrest when you

  1. witness that person commit a felony,
  2. have reasonable cause to believe that the individual committed a felony, or
  3. know that the person actually committed a felony.35
3. Penalties, Punishment, and Sentencing
Img-kidnap4

A kidnapping conviction can lead to long prison sentences, sometimes life in prison

California's kidnapping law is considered a continuing offense.  This is because the offense "continues" as long as you detain the alleged victim.  As a result, even if you move the victim from one place to another, prosecutors can only convict and punish you for one instance of kidnapping.36

The penalties for kidnapping range quite a bit depending on the circumstances of your offense.

3.1. Simple kidnapping

Simple kidnapping is a felony, punishable by

  • three, five or eight years in the California state prison, and
  • a maximum $10,000 fine.37 (See Penal Code 207 and 208)

3.2. Aggravated kidnapping

If you are convicted of aggravated kidnapping, you face

  1. five, eight, or eleven years in the state prison if the victim was under 14 years of age at the time of the offense,38 (See Penal Code 208b)
  2. imprisonment in the state prison for life with the possibility of parole if you kidnap the alleged victim for
  3. a) ransom (that is, a payment in exchange for the alleged victim),

    b) a reward, or

    c) to commit Penal Code 518 PC extortion (more commonly referred to as blackmail),

    d) California Penal Code 211 PC robbery,

    e) a variety of California sex crimes, including

    Penal Code 261 PC rape (which includes Penal Code 262 PC spousal rape, penetration with a foreign object, and other forced acts of sexual penetration),
    Penal Code 288a oral copulation by force,
    Penal Code 286 PC illegal acts of sodomy, and
    Penal Code 288 PC lewd acts with
    a minor
    ,
    f) Penal Code 215 PC carjacking,
    or

  4. imprisonment in the state prison for life without the possibility of parole if you kidnap the alleged victim for ransom, a reward, or to commit extortion and
a) the victim suffers death or bodily harm, or

b) is placed in a situation that exposes that individual to a substantial likelihood of death.39

3.3. California's three strikes law

Simple and aggravated kidnapping qualify as both serious felonies and violent felonies.40 This means that a conviction for violating California's kidnapping law counts as a "strike" for purposes of California's three strikes law.

If you are subsequently charged with any felony...and have a prior "strike" on your record...you will be referred to as a "second striker," and your sentence will be twice the term otherwise required by law.41

If charged with a third felony...and you have two prior strikes...you will be referred to as a "third striker" and will serve a mandatory minimum sentence of 25 years-to-life in the state prison.42

4. Related Offenses

There are a number of offenses that may be charged in connection with or in lieu of Penal Code sections 207 208 and 209 PC.  The following are some of the most common:

4.1. Penal Code 209.5 PC Kidnapping during a carjacking

Penal Code 209.5 PC prohibits kidnapping a person during the commission of
a carjacking
. This offense is only applicable if

  1. you move the victim beyond what is merely incidental to the carjacking,
  2. the victim is moved a substantial distance from the area of the carjacking, and
  3. the movement of the victim increases the risk of harm over and above that necessary to commit the carjacking.

If convicted of Penal Code 209.5 PC, you face life in prison with the possibility of
parole.43

4.2. Penal Code 210 PC Kidnapping in connection with extortion

California Penal Code 210 PC prohibits committing extortion by posing as
a kidnapper
. If you, for the purpose of obtaining ransom, reward or extortion money,

  • pose as an individual who has either kidnapped an individual for this purpose or who has aided and abetted another person who has kidnapped an individual for this purpose, or
  • pose as an individual who can secure a release of an individual who has been kidnapped under these circumstances,

you face a felony, punishable by two, three or four years in the state prison.44

4.3. Penal Code 236 PC California's false imprisonment law

Img-kidnap5

If prosecutors can't prove kidnapping, they sometimes charge
the lesser crime of false imprisonment

You violate Penal Code 236 PC California's false imprisonment law when you restrain, detain, or confine another person without that person's consent.  And because you can't kidnap someone without falsely imprisoning them, false imprisonment is considered a "lesser included offense" of kidnapping.45

This means that even if the prosecutor charges you with kidnapping, the judge or jury could choose instead to convict you of the less serious offense of false imprisonment.

False imprisonment also works as a good plea bargaining tool.  If the facts supporting your kidnapping charges are simply too strong to overcome, your attorney may try to negotiate a plea bargain to this reduced charge.  This offense is what's known as a wobbler, which means that prosecutors may opt to file it as either a
misdemeanor or a felony.

And even if you are convicted of false imprisonment as a felony, you face a maximum of three years in the state prison rather than the possible life sentence that you could face for a kidnapping conviction.

4.4. Penal Code 210.5 PC False imprisonment to protect from arrest

Penal Code 210.5 PC prohibits

  1. falsely imprisoning another person to avoid an arrest, and/or


  2. using another person as a "shield"

when that false imprisonment substantially increases the risk of harm to that person.  A conviction for this felony offense subjects you to three, five or eight years in the state prison.46

4.5. Penal Code 278 PC California's child abduction law

Penal Code 278 PC California's child abduction law prohibits people who do not have legal custody over a child from maliciously trying to keep a child away from his/her legal parent/guardian.47 This means that you can be charged with child abduction and kidnapping if you do not have legal custody of the child victim.48

Child abduction is a wobbler. As a felony, it subjects you to a maximum four-year state prison sentence and a maximum $10,000 fine.49 If convicted of both child abduction and kidnapping, the judge could order you to serve this sentence in addition and consecutive to the time imposed for the kidnapping charge.

4.6. Penal Code 278.5 PC Deprivation of a child custody order

Penal Code 278.5 PC prohibits abducting a child in violation of a custody order or visitation right.  Sometimes referred to as "child detention", you violate this law when you take or hide a child from that child's lawful custodian or someone who has a right of visitation with the child.

Unlike child abduction above, this offense may be charged against anyone, regardless of whether they have a right to custody or not.  If you are a parent or a legal custodian of a child, you can violate this law without also violating California's kidnapping law, since parents can't legally kidnap their own children unless they "take" their children with unlawful intent.

However, if you do not enjoy a right of custody but say, for example, that you take a child in order to prevent another person from exercising his/her right of visitation with the child, you could potentially be charged with this offense and kidnapping.

This offense is also a wobbler, punishable by up to one year in jail or up to three years in the state prison.50

Call us for help...
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If you or loved one is charged with Penal Code 207 208 209 209.5 PC kidnapping and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions about 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.51

Legal References:

1 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.")

2 See same, subdivision (b).

See also California Penal Code 209 PC -- Kidnapping for ransom, reward, or extortion, or to commit robbery or rape; punishment.  ("(a) Any person who seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps or carries away another person [thereby violating California's kidnapping law] by any means whatsoever with intent to hold or detain, or who holds or detains, that person for ransom, reward or to commit extortion [under Penal Code 518 PC California's extortion law] or to exact from another person any money or valuable thing, or any person who aids or abets any such act, is guilty of a felony, and upon conviction thereof, shall be punished by imprisonment in the state prison for life without possibility of parole in cases in which any person subjected to any such act suffers death or bodily harm, or is intentionally confined in a manner which exposes that person to a substantial likelihood of death, or shall be punished by imprisonment in the state prison for life with the possibility of parole in cases where no such person suffers death or bodily harm. (b)(1) Any person who kidnaps or carries away any individual to commit robbery [under Penal Code 211 PC California's robbery law], [certain California sex crimes, including] rape [under Penal Code 261 PC California's rape law], spousal rape [under Penal Code 262 PC California's spousal rape law], oral copulation [under Penal Code 288a PC California's oral copulation by force law], sodomy [under Penal Code 286 PC California's illegal acts of sodomy law], or any violation of Section 264.1, 288 [under Penal Code 288 PC California's lewd acts with a minor law], or 289, shall be punished by imprisonment in the state prison for life with the possibility of parole. (2) This subdivision shall only apply if the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense. (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. (d) Subdivision (b) shall not be construed to supersede or affect Section 667.61. A person may be charged with a violation of subdivision (b) and Section 667.61. However, a person may not be punished under subdivision (b) and Section 667.61 for the same act that constitutes a violation of both subdivision (b) and Section 667.61.")

See also Penal Code 209.5 PC -- Kidnapping during commission of carjacking; punishment; exception; probation.  ("(a) Any person who, during the commission of a carjacking [under Penal Code 215 PC California's carjacking law] 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 [so as to constitute a separate violation of California's kidnapping law], 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.")

3 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.")

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."

4 See Penal Code 208, endnote 3, above.  See also Penal Code sections 209 and 209.5, endnote 2, above.

5 Penal Code 278 PC - California's child abduction law.  ("Every person, not having a right to custody, who maliciously takes, entices away, keeps, withholds, or conceals any child with the intent to detain or conceal that child from a lawful custodian shall be punished by imprisonment in a county jail not exceeding one year, a fine not exceeding one thousand dollars ($1,000), or both that fine and imprisonment, or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years, a fine not exceeding ten thousand dollars ($10,000), or both that fine and imprisonment.")

6 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.

7 California Penal Code 207 PC - California's kidnapping law, endnote 1, above.

8 See same, subdivision (b).  See also California Penal Code sections 209 and 209.5 PC California's aggravated kidnapping laws, endnote 2, above.

9 California Jury Instructions, Criminal. CALJIC 9.50 Kidnapping --No Other Underlying Crime.  ("(Penal Code § 207, subdivision (a)) Defendant is accused [in Count[s] ] of having committed the crime of kidnapping, a violation of section 207, subdivision (a) of the Penal Code....California's kidnapping law].  Every person who unlawfully [and with physical force [or] [by any [other] means of instilling fear], steals or takes, or holds, detains, or arrests another person and carries that person without [his] [her] consent] [compels any other person without [his] [her] consent and because of a reasonable apprehension of harm, to move] for a distance that is substantial in character, is guilty of the crime of kidnapping in violation of Penal Code section 207, subdivision (a). A movement that is only for a slight or trivial distance is not substantial in character. In determining whether a distance that is more than slight or trivial is substantial in character, you should consider the totality of the circumstances attending the movement [, including, but not limited to, [the actual distance moved] [,] [, or] whether the movement [increased the risk of harm above that which existed prior to the movement] [,] [, or] [decreased the likelihood of detection] [,] [, or] [increased both the danger inherent in a victim's foreseeable attempt to escape and the attacker's enhanced opportunity to commit additional crimes]]. [If an associated crime is involved, the movement also must be more than that which is incidental to the commission of the other crime.] An associated crime is any criminal act, whether charged or not, the defendant intends to commit where, in the course of its commission, the defendant also moves a victim by force or fear against his or her will.] [An implicit threat of arrest satisfies the force or fear element if the perpetrator's conduct or statements caused the person threatened with arrest to believe that unless [he] [she] accompanied the perpetrator, the person would be forced to do so, and that person's belief was objectively reasonable.] In order to prove this crime, each of the following elements must be proved: [1 A person was [unlawfully] moved by the use of physical force [, or by any other means of instilling fear];] [1 A person was [unlawfully] compelled by another person to move because of a reasonable apprehension of harm;] 2 The movement of the other person was without [his] [her] consent; and 3 The movement of the other person in distance was substantial in character.")

10 People v. Salazar (1995) 33 Cal.App.4th 341.

11 People v. Williams (1990) 220 Cal.App.3d 1165.

12 People v. Smith (1995) 33 C.A.4th 1586.

13 People v. Thornton (1974) 11 C.3d 738, 767. (disapproved on other grounds).  ("The People have conceded that reversal is required as to count VII, charging violation of section 207 in the Suzanne P. incident. Because the sexual assault there took place wholly within the confines of a single room in a laundromat, any asportation involved was not "into another part of the same county" within the meaning of section 207.")

14 People v. Daly (1992) 8 C.A.4th 47.

15 People v. Reyes Martinez (1993) 14 Cal.App.4th 1412.

16 Newport Beach criminal defense attorney John Murray defends clients accused of violating California's kidnapping laws throughout Orange County, including Fullerton, Anaheim, Newport Beach, Santa Ana, Irvine and Westminster.

17 People v. Bell (2009) 179 Cal.App.4th 428, 435-436.  ("Both simple kidnapping and aggravated kidnapping (except kidnapping for ransom or extortion) have an asportation element. ( People v. Rayford, supra, 9 Cal.4th at p. 14, 36 Cal.Rptr.2d 317, 884 P.2d 1369.) But the standard for proving the asportation element of simple kidnapping is not the same as that for aggravated kidnapping. The statutes for aggravated kidnapping for robbery, sexual crimes or carjacking set forth the standard for asportation for those offenses. (§§ 209, subd. (b), 209.5.) The asportation element for aggravated kidnapping has two prongs: "[A]ggravated kidnapping requires movement of the victim [ (1) ] that is not merely incidental to the commission of the underlying crime and [ (2) ] that increases the risk of harm to the victim over and above that necessarily present in the underlying crime itself." ( Martinez, supra, 20 Cal.4th at p. 232, 83 Cal.Rptr.2d 533, 973 P.2d 512; §§ 209, subd. (b), 209.5.) "The two prongs of aggravated kidnapping are not distinct, but interrelated, because a trier of fact cannot consider the significance of the victim's changed environment without also considering whether that change resulted in an increase in the risk of harm to the victim." ( Martinez, at p. 236, 83 Cal.Rptr.2d 533, 973 P.2d 512.).")

18 CALJIC 9.57 Kidnapping of Infant or Child -- Amount of Force Required.  ("The amount of force required to kidnap an unresisting infant or child [in violation of California's kidnapping laws] is the amount of force required to take and carry the child away a substantial distance for an illegal purpose or with an illegal intent. The People have the burden to prove that an infant or child incapable of consenting was taken or moved by force as defined above. If you have a reasonable doubt as to whether the taking or movement was by force, you must find in favor of the defendant on that issue.")

19 People v. Majors (2004) 33 Cal.4th 321, 327. ("In contrast to the use of force or fear to compel asportation, "asportation by fraud alone does not constitute general kidnapping in California."")

20 Penal Code 207 PC California's kidnapping law, sections (b) - (d), endnote 1, above.

21 Facts taken from Parnell v. Superior Court (1981) 119 Cal.App.3d 392

22 People v. Camden (1976) 16 Cal.3d 808, 814.  "[W]here the victim has at first willingly accompanied the accused, the latter may nevertheless be guilty of kidnapping [under Penal Code 207 PC California's kidnapping law] if he subsequently restrains his victim's liberty by force and compels the victim to accompany him further." ( People v. Gallagher (1958) 164 Cal.App.2d 414, 420 [330 P.2d 464]; accord, People v. Trawick (1947) 78 Cal.App.2d 604, 606 [178 P.2d 45]; People v. Flores (1944) 62 Cal.App.2d 700, 702-703 [145 P.2d 318]; People v. Ogden (1940) 41 Cal.App.2d 447, 450, 456 [107 P.2d 50].) We now confirm the continued vitality of the stated rule.")

23 CALJIC 9.56 -- No Kidnapping When Free Consent.  ("When one consents to accompany another, there is no kidnapping [under California's kidnapping laws] so long as the condition of consent exists. To consent, a person must: 1 Act freely and voluntarily and not under the influence of threats, force, or duress; 2 Have knowledge that [he] [she] was being physically moved; and 3 Possess sufficient mental capacity to make an intelligent choice whether to be physically moved by the other person [or persons].")

24 CALJIC 9.58 Kidnapping -- Belief as to Consent.  ("It is a defense to the crime of [simple] kidnapping that a defendant lacked general criminal intent. There is no general criminal intent if a defendant entertained a reasonable and good faith belief that the person alleged to have been kidnapped voluntarily consented to accompany the defendant and to the movement involved in the purported kidnapping. If from all the evidence you have a reasonable doubt that the defendant had general criminal intent at or during the time of the movement, you must find [him] [her] not guilty of kidnapping [under California's kidnapping laws].")

25 Facts taken from People v. Mayberry (1975) 15 Cal.3d 143,

26 People v. Daly (1992) 8 C.A.4th 47.

27 CALJIC 3.01 -- Aiding and Abetting.  ("A person aids and abets the [commission] [or] [attempted commission] of a crime when he or she: (1) With knowledge of the unlawful purpose of the perpetrator, and (2) With the intent or purpose of committing or encouraging or facilitating the commission of the crime, and (3) By act or advice, [or, by failing to act in a situation where a person has a legal duty to act,] aids, promotes, encourages or instigates the commission of the crime. [A person who aids and abets the [commission] [or] [attempted commission] of a crime need not be present at the scene of the crime.] [Mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting.] [Mere knowledge that a crime is being committed and [in the absence of a legal duty to take every step reasonably possible to prevent the crime,] the failure to prevent it does not amount to aiding and abetting.]")

28 California Penal Code 31 - Principals, defined.  ("All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, and all persons counseling, advising, or encouraging children under the age of fourteen years, or persons who are mentally incapacitated, to commit any crime, or who, by fraud, contrivance, or force, occasion the drunkenness of another for the purpose of causing him to commit any crime, or who, by threats, menaces, command, or coercion, compel another to commit any crime, are principals in any crime so committed.")

29 Cline v. Superior Court (1982) 135 Cal.App.3d 943, 948.  ("As stated by People v. Oliver (1961) 55 Cal.2d 761, 768, 12 Cal.Rptr. 865, 361 P.2d 593: "Penal Code, section 207, as applied to a person forcibly taking and carrying away another, who by reason of immaturity or mental condition is unable to give his legal consent thereto, should, ... be construed as making the one so acting guilty of kidnapping only if the taking and carrying away is done for an illegal purpose or with an illegal intent." So construed, petitioner's co-equal right to custody defeats any allegation of kidnapping by providing a legal purpose and intent.")

30 California Penal Code 278 PC -- Noncustodial persons; detainment or concealment of child from legal custodian; punishment.  ("Every person, not having a right to custody, who maliciously takes, entices away, keeps, withholds, or conceals any child with the intent to detain or conceal that child from a lawful custodian shall be punished by imprisonment in a county jail not exceeding one year, a fine not exceeding one thousand dollars ($1,000), or both that fine and imprisonment, or by imprisonment in the state prison for two, three, or four years, a fine not exceeding ten thousand dollars ($10,000), or both that fine and imprisonment.")

31 People v. Senior (1992) 3 Cal.App.4th 765, 781.  ("We recognize the general rule is that a parent entitled to custody cannot be liable for kidnapping his or her own child [under California's kidnapping laws]. (Annot., (1983) 20 A.L.R.4th 823, § 3, pp. 828-830.) However, we are persuaded that such a parent is liable for kidnapping if he or she exercises custodial rights for an illegal purpose. (Cf. State v. Tuitasi (1986) 46 Wash.App. 206, 729 P.2d 75, 77.) Thus, defendant became liable for kidnapping his own daughter when he took her into a motel room in order to molest her.")

32 See same.

33 See Penal Code 207 PC California's kidnapping law, subdivision (f)(1), endnote 1, above.  ("(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.")

34 See same.

35 Judicial Council Of California Criminal Jury Instruction (CALCRIM 1226) -- Defense to Kidnapping: Citizen's Arrest.  ("The defendant is not guilty of kidnapping if (he/she) was making a lawful citizen's arrest. The defendant was making a lawful citizen's arrest if (he/she) acted because: <Alternative Aperson actually committed felony> [The person arrested committed <insert specific felony> (;/.)] [OR] <Alternative Breasonable cause to believe person committed felony> [<Insert specific felony> had been committed, and the defendant had reasonable cause to believe the person arrested committed it(;/.)] [OR] <Alternative Cperson committed misdemeanor in defendant's presence> [The person arrested committed or attempted to commit <insert specific misdemeanor or infraction> in the defendant's presence.] [Someone has reasonable cause if he or she knows facts that would persuade someone of reasonable caution that the person to be arrested has committed a crime.] The People have the burden of proving beyond a reasonable doubt that the defendant was not making a lawful citizen's arrest. If the People have not met this burden, you must find the defendant not guilty of kidnapping [under California's kidnapping laws].")

36 People v. Thomas (1994) 26 Cal.App.4th 1328, 1334.  ("[T]he forcible detention of a victim is an element of kidnapping and as long as the detention continues, the crime continues.")

37 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.")

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 See Penal Code 208 PC, endnote 33, above.

39 See Penal Code 209 PC - California's aggravated kidnapping law, endnote 3, above.

See also California Penal Code 209.5 PC, endnote 3, above.

40 California Penal Code 1192.7 PC -- Legislative intent regarding prosecution of violent sex crimes; plea bargaining; limitation; definitions; amendment of section.  ("...(c) As used in this section, "serious felony" means any of the following:...(20) kidnapping...")

See also Penal Code 667.5 PC -- Prior prison terms; enhancement of prison terms for new offenses.  ("...(c) For the purpose of this section, "violent felony" shall mean any of the following:...(14) Kidnapping...")

41 California Penal Code 667 -- Habitual criminals; enhancement of sentence; amendment of section -- California Three Strikes law.  ("(e) For purposes of subdivisions (b) to (i), inclusive, and in addition to any other enhancement or punishment provisions which may apply, the following shall apply where a defendant has a prior felony conviction: (1) If a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction. (2)(A) If a defendant has two or more prior felony convictions as defined in subdivision (d) that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of: (i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions. (ii) Imprisonment in the [California] state prison for 25 years...")

42 See same.

43 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.")

44 Penal Code 210 PC -- Extortion by posing as kidnapper or by claiming ability to obtain release of victim; punishment; exception.  ("Every person who for the purpose of obtaining any ransom or reward, or to extort or exact from any person any money or thing of value, poses as, or in any manner represents himself to be a person who has seized, confined, inveigled, enticed, decoyed, abducted, concealed, kidnapped or carried away any person, or who poses as, or in any manner represents himself to be a person who holds or detains such person, or who poses as, or in any manner represents himself to be a person who has aided or abetted any such act, or who poses as or in any manner represents himself to be a person who has the influence, power, or ability, to obtain the release of such person so seized, confined, inveigled, enticed, decoyed, abducted, concealed, kidnapped or carried away, is guilty of a felony and upon conviction thereof shall be punished by imprisonment for two, three or four years. Nothing in this section prohibits any person who, in good faith believes that he can rescue any person who has been seized, confined, inveigled, enticed, decoyed, abducted, concealed, kidnapped or carried away, and who has had no part in, or connection with, such confinement, inveigling, decoying, abducting, concealing, kidnapping, or carrying away, from offering to rescue or obtain the release of such person for a monetary consideration or other thing of value.")

45 People v. Magana (1991) 230 Cal.App.3d 1117, 1121. ("Respondent concedes that false imprisonment is a necessarily lesser included offense of kidnapping [under California's kidnapping laws] and the conviction must be vacated.")

46 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.")

47 California Penal Code 278 PC -- Noncustodial persons; detainment or concealment of child from legal custodian; punishment.  ("Every person, not having a right to custody, who maliciously takes, entices away, keeps, withholds, or conceals any child with the intent to detain or conceal that child from a lawful custodian shall be punished by imprisonment in a county jail not exceeding one year, a fine not exceeding one thousand dollars ($1,000), or both that fine and imprisonment, or by imprisonment in the state prison for two, three, or four years, a fine not exceeding ten thousand dollars ($10,000), or both that fine and imprisonment.")

48 In re Michele D. (2002) 29 Cal.4th 600, 614.  ("There is a fundamental difference between kidnapping [under California's kidnapping laws] and child abduction in terms of the person targeted by the offense; the first is a crime against the person being kidnapped, the second against the parents of the child abducted. If there is evidence that a defendant's conduct is aimed at both, there is no reason why he or she should not be prosecuted under both statutes.")

49 See same.

50 Penal Code 278.5 PC -- Deprivation of custody of child or right to visitation; punishment.  ("(a) Every person who takes, entices away, keeps, withholds, or conceals a child and maliciously deprives a lawful custodian of a right to custody, or a person of a right to visitation, shall be punished by imprisonment in a county jail not exceeding one year, a fine not exceeding one thousand dollars ($1,000), or both that fine and imprisonment, or by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years, a fine not exceeding ten thousand dollars ($10, 000), or both that fine and imprisonment. (b) Nothing contained in this section limits the court's contempt power. (c) A custody order obtained after the taking, enticing away, keeping, withholding, or concealing of a child does not constitute a defense to a crime charged under this section.")

51 Please feel free to contact our Las Vegas Nevada criminal defense attorneys Michael Becker and Mike Castillo for any questions relating to Nevada's kidnapping laws. Our Nevada law offices are located in Reno and Las Vegas.

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