Kidnapping

Kidnapping is one of the most serious and emotionally charged violent crimes in the legal landscape. Kidnapping is generally defined as the unlawful taking and confinement of a person without their consent. Most often, persons convicted of kidnapping face lengthy prison sentences, usually spanning several decades. Further, it causes an irreversible change in the life of the accused.

The legal aspects are complex, as you will see from the information below. To prove a kidnapping charge, the prosecution must be able to prove beyond a reasonable doubt that you, the defendant, had an intent to carry away, you moved the victim without consent, and you used force or fear.

Do not hesitate if you or a loved one is facing a kidnapping charge. You need a defense team that recognizes the seriousness of the situation and will vigorously fight for your rights, and CCLG: Los Angeles Criminal Attorney can help.

Legal Definition and Elements of Kidnapping

Under California Penal Code 207, kidnapping is defined as the unlawful taking of another person with the intent to deprive that person of their liberty permanently. While this is the legal definition, California PC 207 specifically refers to the movement of another person against their will. To convict, the prosecutor has to prove beyond a reasonable doubt that three essential elements occurred at the same time.

• Unlawful taking or carrying away (asportation) — In a kidnapping case, the prosecution must prove that the accused moved the victim a substantial distance. This means something further than a slight, trivial, or incidental distance. Furthermore, this must be within a single county, within the state, or outside the state.
• Against the Person’s Will (Non-Consent — The movement must have been against the victim’s free and voluntary will. Once consent is withdrawn, continued movement constitutes kidnapping. At any moment, consent can be removed. If a person continues a movement after withdrawal, he commits kidnapping. The defense must demonstrate a genuine possibility that the victim consented.
• By Force or Fear — Taking and carrying away must occur by physical force, like grabbing and dragging the victim, or by instilling reasonable fear in the victim through words, for example, threatening to shoot them, or by the victimizer displaying a weapon. The amount of force required can be minimal.

Nuances of Asportation (Substantial Movement)

The substantial distance requirement is the most often challenged one. The courts examine the qualitative nature of the movement to determine if it is significant. Courts focus on a qualitative assessment, considering whether the movement:

• The court will assess whether the movement increased the danger of harm to the victim beyond what was already present
• The victim was less likely to be detected, or it was harder for him/her to escape
• Was more than merely incidental to the commission of another crime

For instance, pulling a victim from a public and well-lit street into a dark and secluded alley may be substantial, owing to the victim’s increased vulnerability despite the short-distance move, as it had independent legal significance from the crime itself. On the other hand, if you move a cashier several feet behind the candy counter when robbing it, it is incidental.

Proving the Elements Beyond a Reasonable Doubt

The prosecutor compiles evidence for the following elements to meet the legal standard of proof beyond a reasonable doubt:

• Force or fear — This is proven mainly through victim testimony (the physical restraint, threat, or weapon you used), along with forensic evidence (injury reports) or video evidence.
• Non-consent — The lack of consent is proven through the testimony of the victim. The presence of evidence, for example, a flight or a distress call, helps to defeat your consent argument.
• Substantial movement — Your location and activities related to the crime are supported by reliable data, for example, surveillance video, cell phone tower data, GPS logs, and digital mapping information. You were in the area where the alleged crime occurred. Further, expert testimony showing that you likely committed the crime.

Aggravated Kidnapping and Sentencing Enhancements

Under Penal Code (PC) 209, aggravated kidnapping is a much more serious crime than simple kidnapping. This is mainly as a result of the malicious intention behind the offense or the extreme harm caused. A person convicted under PC 209 might be sentenced to life in prison.

If you are charged with aggravated kidnapping, your scenario likely involves one of these situations as per PC 209:

Kidnapping for Extortion, Ransom, or Reward (PC 209(a))

Kidnapping for reward, ransom, or extortion applies if you take, grab, or carry away a person with the intent to detain him.

• Ransom or reward is seeking money or anything of value from another person (usually a relative or outsider)
• Extortion is the use of a threat of harm against a person to compel that person or another person to act contrary to their will.

A violation of this law under PC §209(a) carries a penalty of life without parole if the victim died or suffered significant bodily injury. Otherwise, the penalty shall be life imprisonment with the possibility of parole.

Kidnapping to Commit Specified Felonies (PC 209(b))

This charge is applicable if you abduct a person to commit one of several specified, serious felonies, including:

• Robbery
• Rape
• Sexual assault, which includes sodomy, oral copulation, or violations of PC 288, lewd acts with minor

To secure a conviction under §209(b), prosecutors must demonstrate harsher movement and risk elements than those required for simple kidnapping.

• The movement you caused was beyond that merely incidental to the commission of the underlying felony, for example, more than just moving someone two feet to open a safe.
• The act made it more dangerous for the victim than what was already present in the perpetration of the primary offense.

When the charge is aggravated kidnapping, the prosecutor must satisfy the PC 207 elements plus the elevated intent or harm. This typically requires providing proof of your mental condition.

Under PC 209(b), the prosecution must prove that you moved the alleged victim, or the victim’s property, with the intent to commit robbery, rape, or another crime involving sexual assault. Proof of a felony, for example, proof of sexual assault or evidence of theft, is used to prove the malicious motive of the kidnapping. Furthermore, they need to show how the distance you moved him/her heightened the risk of harm. For example, you removed the person from a public place and took them to a soundproof room. Alternatively, you locked them up in a trunk.

In all cases, any statements or confessions made to law enforcement, when acquired lawfully, will be presented to link you directly to the commission of the crime and the necessary intent.

Parental Kidnapping

California law refers to what is commonly called parental kidnapping, with specific criminal laws that make it a crime to abduct children. It recognizes that a parent can commit the crime in two main ways.

• Penal Code (PC) 278 makes it a crime for anybody, including a parent, who does not have a legal right to custody of a child under age 18 but who purposely takes, withholds, or conceals the child from a person with a lawful right to exercise custody. One situation to which this applies is where one parent has no custody rights whatsoever and is actively hiding a child from the custodial parent.
• The more common situation is covered under PC 278.5, which pertains to deprivation of custody and visitation. This applies to any person, even a parent who has a legal right to custody, who maliciously takes, keeps, withholds, or conceals a child and thereby deprives another person who has a right to custody or a person who has a right to visitation. This would include a situation where one parent refuses to return a child after a scheduled visitation period or a similar violation of a court-ordered custody or visitation order simply to spite the other party.

Therefore, the primary difference between the two statutes lies in the legal status of the perpetrator. PC 278 applies to individuals without the right to custody, whereas PC 278.5 applies to those with a right to custody or visitation who violate the terms of a court order. Being charged with either crime is considered a “wobbler.” That means the prosecutor can charge you with either a misdemeanor or a felony. However, both come with a maximum sentence of four years in state prison and a maximum fine of $10,000. Furthermore, violating a child’s established custodial arrangement is a serious matter.

Penalties and Sentencing for Kidnapping

A kidnapping conviction comes with severe punishments that could bring decades-long sentences or even a life sentence. How long you go to jail for kidnapping depends on whether they charge you with simple kidnapping (PC 207) or aggravated kidnapping (PC 209).

Simple Kidnapping (PC 207) Penalties

According to Penal Code 208(a), ordinary kidnapping is a straight felony. To hold a defendant guilty of ordinary kidnapping, three elements (asportation, non-consent, and force or fear) must be proven in a court of law.

If you are found guilty of simple kidnapping as defined in PC 207, you may be:

• Sentenced for three, five, or eight years in a state prison
   Fined up to $10,000

This crime is classified as a serious felony, which is a strikeable offense

Aggravated Kidnapping (PC 209) Penalties

Aggravated kidnapping occurs when the offender does it for ransom, reward, extortion, or to commit an underlying felony like robbery or rape. This greatly increases the sentence and can result in life imprisonment:

• Taking a person against their will to commit robbery for ransom is punishable by life imprisonment
• Kidnapping for ransom or ransom for extortion (PC 209(a), without bodily harm) is punishable by life imprisonment with the possibility of parole
• If the kidnapped person dies, suffers harm, or is put in danger, the penalty is life imprisonment, and the chance of parole is zero

Other Mandatory Sentencing Enhancements

Kidnapping charges can be made worse or face mandatory sentencing enhancements based on the age of the victim or the harm done.

• Kidnapping a minor under age 14 (PC 208(b)) — If a victim under the age of fourteen is kidnapped, he/she is guilty of kidnapping a minor under section 208(b) of the penal code. This crime is punishable by a term in state prison of five, eight, or eleven years.
• Kidnapping in commission of a carjacking (PC 209.5) — If you kidnap someone during a carjacking, you can be charged with a serious crime under PC 209.5. This crime is “kidnapping in commission of a carjacking.” It will apply if the movement you caused was substantial, not merely incidental to the carjacking, and increased the risk of harm. The determination made by this statute is punishable by imprisonment for life with the possibility of parole.
• GBI enhancement for kidnapping (PC 210.2 & PC 12022.7) — If, during the kidnapping, you personally inflict great bodily injury (GBI), meaning a significant or substantial physical injury, on the victim, this is not a stand-alone crime but a sentencing enhancement under PC 12022.7. This enhancement adds a consecutive and additional term of 3 to 6 years to the base sentence. The mitigation could be even longer if the person being harmed is elderly or a child under the age of five.

Sentencing Enhancements Under The Three Strikes Law

If you are convicted of kidnapping, aggravated or simple, it is a “strike” under California’s Three Strikes law and carries significant implications for future felony convictions.

• If your prior conviction is a “strike,” the law doubles the penalty for felony offenses, even if they are non-violent and non-serious in nature.
• If you have two or more previous “strike” convictions, your sentence for the new felony (even if the new felony is non-serious) is life imprisonment with a minimum term of 25 years to life.

Kidnapping is a serious felony. Having a prior strike can mean instant second- or third-strike penalties. These penalties will add to the time you will have to serve in state prison. Also, if a person is convicted of multiple kidnappings or additional offenses like a robbery or a sexual assault, their sentences are ordered to run consecutively. This results in a significant increase in the total period of imprisonment.

Defense Strategies to Challenge Kidnapping Charges

Depending on the kidnapping charges you will face, defense attorneys focus on taking apart the statutory requirements in both charges. Therefore, the whole defense strategy begins with a challenge to the act.

Challenging the Actus Reus (Substantial Distance and Force/Fear (PC 207))

The most basic defense against a charge of PC 207 is to deny that the accused committed the actus reus, or the criminal act. In other words, the basic defense directly targets the elements of distance, force, or fear. Your defense team could argue that there was no ‘substantial distance’ as the movement was merely ‘slight, trivial, or inconsequential’ (in other words, minimal). Thus, it was not a separate act of kidnapping, like false imprisonment, they argue. In the same manner, the defense must dispute the element of force or fear.

Because the victim’s consenting act or any incidental harm or force as a result of some other action, which is not kidnapping, will ultimately cause this element to fail. If you can successfully undermine either the “substantial distance” requirement or the “force/fear” requirement, you probably can avoid a kidnapping charge. However, you might still face lesser charges, like false imprisonment (PC 236).

Consent of the Victim or Mistaken Belief in Consent

Aside from contesting the deed physically, a second primary defense strategy changes the focus to the mental state of the victim by advocating consent of the victim or mistaken belief in consent. California law clearly states that the movement must take place without the victim’s consent. Thus, to the extent that the victim freely and voluntarily agreed to the movement, the defendant has a complete defense.

The defense comes with a high burden, however, as genuine consent is required, meaning it must not be induced by fraud, misrepresentation, or coercion, and the victim must have the legal capacity to consent (especially pertinent when dealing with minors under 14).

Even if the victim did not actually consent, you win if you had a reasonable belief that the victim consented to the movement. Thus, the prosecution has to prove beyond a reasonable doubt that you did not actually hold this reasonable belief.

Movement Was Merely Incidental

The third and most specific legal defense for aggravated kidnapping under PC 209(b) (kidnapping to commit robbery or other felonies) is the merger doctrine. This doctrine was established in a landmark California Supreme Court case, People v. Daniels (1969). This case is used in defenses related to simple kidnapping.

The Daniels rule stops prosecutors from being able to turn a robbery or other felony that just involves some minor movement into a life sentence for aggravated kidnapping. The defense contends that the victim’s movements do not meet the requirements of a two-prong test to disprove the PC 209 (b) charge:

• Moving a store clerk three feet so we can access a cash register was only “merely incidental” to the underlying offense
• It did not meaningfully increase the danger of harm to the victim beyond the harm that was already inherent in the felony. If the move is only temporary and a short distance away to commit the primary crime, the charge for kidnapping runs with the primary offense. Thus, they must be dismissed.

Lack of Specific Intent (Mens Rea – PC 209)

Another strong defense to aggravated kidnapping charges, Penal Code 209(a) (kidnapping for ransom) and Penal Code 209(b) (kidnapping to commit another felony), is a lack of specific intent, or mens rea. This defense raises questions about whether the prosecutor can prove that the defendant had the guilty mind necessary to commit these serious offenses. Unlike simple kidnapping, which is a general intent crime, aggravated kidnapping must be proven by the prosecution to require the individual to have had a specific criminal intent that precisely corresponds to the prohibited purpose contained within the statute.

For the crime of kidnapping for ransom (PC 209(a)), the prosecution must prove, beyond a reasonable doubt, that when you moved the victim, you specifically intended to hold him/her for ransom or some other valuable consideration. The defense may argue the victim moved for a different reason altogether, perhaps to facilitate an escape, to conceal the victim, or to execute a spur-of-the-moment, ill-conceived plan that did not require money to be demanded.

If the intention to procure ransom was conceived only after the initial movement and detention, then the charge under PC 209(a) cannot be sustained. It is a necessary distinction because it removes the aggravating factor of the intent to extort.

In the same way, the prosecution must prove that you formed the intent to commit the other felony, which is usually robbery or one of the sexual offenses, when the charge of kidnapping to commit another felony is proven, usually robbery, but at least at the moment the movement began. This timing is paramount. If the evidence shows that the victim was moved from one room to another first (the movement), but the specific intent to commit the felony (the decision to take the victim’s wallet) occurred later, the charge fails. The defense can argue that the following felony was an afterthought or reaction rather than the intent required by the statute and was not pre-existing.

In either case, proving the absence of specific intent will almost always reduce the charge from the life-sentence aggravated kidnapping charge (PC 209) to non-aggravated simple kidnapping (PC 207). Making it sound simple when the evidence in these cases is complex, removal of the aggravating conduct makes it a basic defense strategy.

Find a Criminal Lawyer Near Me

A kidnapping charge can have devastating effects on your freedom and future. Being accused of these serious charges, a crime of violence with impactful mandatory minimum consequences, requires immediate, aggressive, and expert defense.

If you or someone you know is facing the serious charge of kidnapping, contact CCLG: Los Angeles Criminal Attorney. We are prepared to fight vigorously to protect your rights. We offer experienced, skilled representation that will protect your rights while expertly managing the legal process. Secure the seasoned advocacy you need today. Contact us at 323-922-3418.