Penal Code § 207 PC – California Kidnapping Laws

California Penal Code § 207 PC defines the crime of kidnapping as moving another person a substantial distance, without the person’s consent, by means of force or fear.

Simple kidnapping is a felony punishable by up to 8 years in state prison. The sentence can rise to life in prison if

• the victim is a child,
• the victim is injured or killed,
• a ransom is demanded, or
• the kidnapping is part of a carjacking.

The full text of the statute reads:

207. (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.

Force or fear means

• actually inflicting physical force upon the alleged victim, or
• threatening to inflict imminent physical harm.¹

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 as part of a Penal Code 215 PC carjacking, or
• violate a number of other laws that relate to kidnapping,

the offense elevates to aggravated kidnapping under Penal Code 209 PC.² Aggravated kidnapping is a more serious charge, a conviction for which carries life in prison.

Examples

• 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.

Sentencing

“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

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 be 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 their legal custodian^{5 6}).

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

• 1. “Kidnapping” Defined
• 2. Common Defenses
• 3. Sentencing
• 4. Related Crimes

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. “Kidnapping” Defined

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.

The requirement that you “move” another person

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 a 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 knifepoint) 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 as 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 themself 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.

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 them. It means that they 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 capable of giving legal consent.

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.

Force, fear or fraud

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 their 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 them,
• 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 them at gunpoint or knifepoint,
• threats to abuse the alleged victim (physically and/or sexually) if they do not comply with your demands, or
• threats to harm the alleged victim’s immediate family if they do not 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
• fraudulently kidnapping a person in another state and bringing them into this state.²⁰

“Fraud” is generally defined as any deliberate deception practiced in order to secure personal gain. This means that if you make false promises or mislead the alleged victim – and those fraudulent representations convince them 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 they know exactly what that consent is for.

If the alleged victim does not 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

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. Common Defenses

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):

The alleged victim consented to be moved

Example: You and Susie decide to go for 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 they willingly accompanied you to your destination, you may be acquitted of kidnapping charges even if they later claim that you took them against their 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

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.

You were not the kidnapper but were merely present

Example: 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 they learn 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 perpetrator. ²⁸

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 discussed below.

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

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 the danger of imminent harm,³³ or
2. you place the alleged victim under a citizen’s arrest per Penal Code 837.³⁴

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. What is the sentence for kidnapping in California?

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.

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)

Aggravated kidnapping (for ransom)

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); or
2. imprisonment in the state prison for life with the possibility of parole if you kidnap the alleged victim for ransom (that is, a payment in exchange for the alleged victim), a reward, or to commit
   • Penal Code 518 PC extortion (more commonly referred to as blackmail),
   • California Penal Code 211 PC robbery,
   • 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 287 PC oral copulation by force,
     • Penal Code 286 PC illegal acts of sodomy, and
     • Penal Code 288 PC lewd acts with a minor, (Note that people must register for life as a tier three sex offender if they are convicted of kidnapping while attempting to commit or committing rape, sodomy, lewd acts with a child under 14, oral copulation with a minor, or forcible penetration with a foreign object. Read more about the California sex registry and SB 384.)
   • Penal Code 215 PC carjacking; or
3. 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

Kidnapping	California Felony Penalties
Simple Kidnapping – PC 207	3, 5, or 8 years in prison and up to $10,000
Aggravated Kidnapping: of a victim under 14 years old – PC 208(b)	5, 8, or 11 years in prison and up to $10,000
Aggravated Kidnapping: to commit a crime – PC 209(b)	Life with the possibility of parole
Aggravated Kidnapping: for ransom – PC 209(a)	Life with the possibility of parole
Aggravated Kidnapping: for ransom, and the victim suffers death or bodily harm – PC 209(a)	Life without the possibility of parole
Kidnapping in the Commission of a Carjacking – PC 209.5	Life with the possibility of parole

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. What other crimes are related to kidnapping?

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:

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

Penal Code 210 PC Kidnapping in connection with extortion

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

Penal Code 236 PC California’s false imprisonment law

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. Because you cannot kidnap someone without falsely imprisoning them, false imprisonment is considered a “lesser included offense” of kidnapping.⁴⁵

This means that even if the district attorney 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.

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

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 county jail.⁴⁶

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 their 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 county jail 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.

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 cannot 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 their right of visitation with the child, you could potentially be charged with

• this offense and
• kidnapping.

This offense is also a wobbler, punishable as

• a misdemeanor by up to one year in jail, or
• a felony by up to three years in jail.⁵⁰

For additional help…

If you or a 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 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 the state of California.

Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions about Nevada’s kidnapping laws. Or for cases in Colorado please visit our page on Colorado kidnapping laws.⁵¹

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