Kidnapping is the act of taking a person from one place to another without their consent, through the use of fear, intimidation, or manipulation to get them to cooperate. Generally, kidnapping is aimed at extortion or the intention to commit another crime. Taking a person against their will or that of their caregivers is a crime that is severely punished in California, especially where violence was used. If you are facing kidnapping charges, you need to get in touch with a criminal lawyer to help you fight the charges. At the Los Angeles Criminal Lawyer, we have many years of experience as criminal defense lawyers, and we will help you formulate an excellent defense against the charges of kidnapping.
Definition of Kidnapping According to the California Law
The threat to use violence or the actual use of violence and restraint are essential elements when a person is being charged with kidnapping. There are two types of kidnapping, as defined by the law; these are simple and aggravated kidnapping.
Simple kidnapping, as contained in PEN 207, is when a person takes another person against their will and moves them to another location by use of fear or force.
Aggravated kidnapping is a more severe form of kidnapping, attracting severe penalties. It involves moving a person from a place without their permission by use of fraud, fear, or force. Also, aggravated kidnapping happens when:
- The victim of the act is a minor below the age of fourteen
- The victim has been held for ransom purposes
- In the process, significant bodily injuries or death to the victim happens
- A person is kidnapped in the process of carjacking
There are various terms used in the definition of kidnapping, as we will discuss below.
Moving a Person
For kidnapping to happen, the victim must be moved for a significant distance, or substantial distance must be involved. Various factors help determine if the distance is significant enough. These include:
- The range moved
- Did the movement enhance the chances of causing injuries to the victim of the kidnapping?
- If the movement made it more difficult to be caught
Some examples of movement include:
- The accused moving a victim from a hotel entrance about 29 feet into a utility closet to molest her. The movement, in this case, was to avoid being found out and to enable the crime of rape.
- A person with a weapon and has been hiding in the back seat of a car. He comes up and forces the driver of the car to drive to a significant distance of his choice without the driver’s consent.
There are times the court states that some movement was not substantial or significant enough to warrant kidnapping allegations. Some of these include:
- When a victim is dragged from within a grocery store to its back. Because the incident happened in one room, it is not considered as a significant movement to warrant kidnapping.
- If a person moved the alleged victim about forty feet in the parking lot in the direction of their van, but the victim managed to escape, this is not sufficient for kidnapping. This is because the incident happened in one parking lot, and the alleged victim was not subjected to increased danger in that short distance.
However, this does not mean that there is a standard distance that justifies kidnapping. The decision of whether the distance was substantial enough is left to the jury or judge.
When the victim did not give consent, it means they protested and fought the defendant, who may have overpowered them and moved them anyway. In this context, the move was not voluntary. However, it is essential to note that children, those with mental issues, or individuals who are intoxicated are not deemed unable to give consent. Other elements come into play, such as fraud, force, or fear that must be understood concerning consent and kidnapping.
Fear, Force or Fraud
For a person to get a kidnapping conviction, there must be evidence that the defendant used threats, force, violence, or fraud. The laws regarding simple kidnapping prohibit the use of fear or force. This means that the defendant must use physical force or threaten to cause harm to the victim. Some ways a perpetrator may use force include:
- Restraining the victim from making it easier to move them such as tying them
- Dragging the victim physically to a certain location
- Beating the victim until they are unable to resist the movement
If the victim of the kidnapping is an infant or a child that cannot offer resistance, the only force required is what is needed to take them away. Instilling fear in a person is also another element involved in the kidnapping. A defendant can instill fear by:
- Using a deadly weapon such as a gun or knife to force the victim to comply
- Making threats to cause physical or sexual harm to the victim if they don’t comply
- Threatening to harm the family of the victim if they refuse to comply
Fraud is another element that can be used to enable kidnapping. However, fraud is only crucial under various aggravated situations, such as:
- Using deception to kidnap a minor below 14 years to commit lewd acts as prohibited in PEN 288
- Using fraud to lure an individual to move from one state to another and sell them into slavery and involuntary servitude
- Using fraud to attract a person from a different state and coming with them to your state
Fraud, according to the law, is the use of deliberate deception against another person for personal gains. For instance, one can give false promises to mislead a person. These false promises are the reason the person is convinced to give their consent. When the consent was issued under fraudulent means, the law does not accept it as voluntary consent. This means you moved the person without their consent.
Penalties for Kidnapping
As earlier discussed, the penalties for kidnapping are severe, with those convicted of the crime facing long prison time that, in some cases, can be life imprisonment.
Kidnapping is a continuing offense in California. This means that as long as the victim is detained, the offense continues. Even when the victim is moved from the current location to another, this means you are accused of one kidnapping offense, not two. Depending on the circumstances of the offense, the penalties vary.
Penalties for Simple Kidnapping
Simple kidnapping is a felony offense that carries 3 or 5 or 8 years of imprisonment in state prison. Additionally, the defendant will be required to pay a fine, not exceeding $10,000.
Penalties for Aggravated Kidnapping
The penalties for aggravated kidnapping are more severe, as earlier discussed. A conviction for this offense carries the following possible penalties:
- State imprisonment for five or eight or eleven years. This punishment occurs if the victim of the kidnapping was a minor below the age of 14 when they were kidnapped.
- Life imprisonment in state prison with possible parole if the victim was kidnapped for purposes of a ransom payment, reward, extortion, blackmail, robbery, or to commit sex crimes. Kidnapping during a carjacking also carries these penalties.
- Life imprisonment with no possibility of parole is another penalty a defendant can face if they kidnapped for the above similar reasons, but in the process, the victim died or suffered significant bodily injuries. If the victim was placed in a situation that may have resulted in death, the defendant would also face this penalty.
Three Strike’s Law of California
Whether the kidnapping was simple or aggravated, they both qualify as violent felonies or serious felonies. A violation of the kidnapping laws of California automatically becomes a strike under the three-strikes sentencing law of California.
If the defendant has a prior strike on their record, they are then referred to as a second striker, making their sentences twice as severe. If the defendant has two previous strikes, another felony conviction will be the third strike. As a result, the mandatory sentence will be twenty-five years to life imprisonment in state prison.
Legal Defenses for Kidnapping Charges
With a good criminal defense attorney, it is possible to get a reduction of your charges or a dismissal altogether. A skilled attorney can come up with various strategies to fight the allegations for you. Some of the defense strategies commonly used to fight kidnapping allegations are:
The Victim Gave Consent
If you requested someone to take a drive with you even when the destination is not specified, it is not a kidnap. However, if, along the way, the person changes his/her mind and asks you to take them back home, and you refuse, that is kidnap. This is because you would have moved them against their will, even though they originally consented.
Therefore, consent can be used if the defendant had good faith and believe that the alleged victim consented to the move. This is taken to mean that if the alleged victim behaved in a manner to suggest consent and agreed to the move willingly, the charges against you can be dropped.
The Movement was not Sufficient to Qualify for Kidnapping
Before a conviction for alleged kidnapping happens, the prosecution must show that the defendant moved the alleged victim to a significant or substantial distance. This means that a small distance or one that the victim is not exposed to danger may not be considered a sufficient one to warrant kidnapping charges. As earlier discussed, there are some distances the court does not consider substantial distances, such as moving someone to the back of the shop from the front.
You were a Spectator and not the Perpetrator
You can face charges of aiding and abetting a crime (kidnapping) instead of charges of kidnapping. For instance, if your friend enters a shop, robs, kidnaps a potential witness for fear of being reported to the authorities, and drives with you, yet you were not aware of his intentions, you should not face kidnapping charges. However, the prosecution can charge you with aiding and abetting, but the following must be true:
- You knew of the kidnapper's plan beforehand
- You encouraged and facilitated the perpetrator in carrying out the plan
- You either promoted or instigated the offense or failed in your duty to report the possible crime. For instance, a therapist is legally required to make a report of a possible crime planned to happen if they have knowledge of it.
Note that you will face similar penalties that the kidnapper faces if you are guilty of aiding and abetting the crime.
False Accusation or Insufficient Evidence
A charge of simple kidnapping with no other offenses may turn into “she said, he said case.” If the only evidence the prosecution has is the statement of the supposed victim and it is uncorroborated, a conviction may be hard. People often make false allegations out of anger, revenge, or jealousy. A parent can accuse the other of kidnapping their child to gain an advantage in a custody hearing. The reasons a person can make false allegations are varied, and an excellent criminal defense attorney can unmask the lies and get you acquitted of the offense.
The Right of a Parent to Travel while Accompanied by their Child
When a parent has legal custody of a child, they are permitted to move with them without the need to inform the other parent. However, this does not excuse one from following the custody order because when you do, you could be charged with PEN 278.5 violations. If you took the child without any criminal intentions and you are allowed by the law, this defense works.
However, a defendant that takes their daughter away into a place to molest her will be accused of kidnapping, alongside other sexual crimes.
Apart from the above-discussed defenses, there are other defenses as stipulated under the laws of kidnapping in California. A person cannot be found guilty of this offense if:
- They take and hide a minor below the age of 14 to protect them from possible harm
- The alleged kidnapping victim was actually under citizen’s arrest according to PEN 837
The law allows a person to place another under citizen’s arrest if they:
- Bear witness that the victim committed a crime
- Have a reason to believe the person committed a crime
- Are sure that the person did indeed commit the crime
Other Kidnapping Related Offenses
Various offenses that can be charged instead of or alongside kidnapping charges exist. Some of these are:
PEN 209.5 – Kidnap While Carjacking
It is a criminal offense to kidnap a person while you are carjacking at the same time. This offense has the following elements:
- The defendant moved the victim over a distance that is not considered incidental to the offense of carjacking
- The defendant moved the victim a significant distance from where the carjacking happened
- The defendant’s movement of the victim increased the possibility of additional harm
If one is convicted of this crime, they face life imprisonment with a probability of getting parole.
PEN 210 – Kidnapping for Extortion
Kidnapping a person to get a ransom or a reward is a criminal offense that is severely punished. You can be found guilty of this offense if:
- You posed as the person that kidnapped or one that aided in the offense to get paid
- You posed as a person that can help get the victim released that was abducted under the circumstances.
PEN 278 – Child Abduction
This law makes it a crime for a person that has no legal custody to maliciously take a child and keep him or her away from their legal caregiver. If you feel a child is in danger, you should report it to the authorities, but you cannot take the minor away as a means of protection. Doing so will lead to kidnapping and abduction charges against you.
This offense is a wobbler in California. If convicted as a felony, the defendant can be jailed for not more than four years in addition to a cash fine of not more than $10,000.
PEN 278.5 – Violation of a Child Custody Order
Most kidnapping charges where a parent is a defendant are found under this statute. A parent can violate this law even when they are legal custodians of the child. For instance, parents may be sharing custody of their children; however, one takes the child intentionally to keep them away from the other parent for no reason.
The offense, in this case, is a wobbler, and the defendant can be prosecuted for misdemeanor or felony charges.
Find a Los Angeles Criminal Attorney Near Me
Kidnapping allegations can lead to severe penalties when a person is found guilty. Facing these allegations and defending them well will require the services of an experienced lawyer. At the Los Angeles Criminal Lawyer, we have a team of attorneys with vast experience in criminal defense. We will take up your case and analyze each evidence produced to give you the best legal representation possible. Call us today at 310-502-1314, and we will make an appointment to discuss your case.
If you are arrested in Orange County we recommend this criminal defense attorney: Orange County Criminal Lawyer