California Kidnapping Laws – Penal Code Sections 207, 208, and 209
Facing Kidnapping Charges in California?
If you are facing accusations of kidnapping in Orange County, Los Angeles, Riverside, Ventura, San Bernardino, or San Diego, you need to contact one of the criminal defense attorneys at Wallin & Klarich immediately. With over 40 years of experience defending clients charged with kidnapping in California, we have the skill and expertise to help you obtain the best result possible in your kidnapping case.
To help you prepare for the challenges associated with kidnapping charges in California, we discuss the most important kidnapping facts, such as:
- The Prosecution Process and Legal Definition of Kidnapping
- The Prosecution Process for Aggravated Kidnapping
- Punishment and Sentencing Guidelines for Kidnapping and Aggravated Kidnapping
- Sex Offender Registration Associated with Kidnapping for Rape or Another Sex Offense
- The Defense Strategy our Lawyers can Prepare for Your Kidnapping Case
- The Most Frequently Asked Questions (FAQ) Associated with Kidnapping Charges in California
Introduction: Kidnapping Cases
Kidnapping is often associated with the taking of a child from their home. One famous example of kidnapping was the Jaycee Lee Dugard case, which received a lot of media attention. Dugard was 11 years old at the time of the kidnapping and was abducted by Phillip Garrido while she was walking home from a school bus stop. Dugard was held captive in Garrido’s home for 18 years until police officers discovered her in Garrido’s home in 2009.
Although many instances of kidnapping involve a victim who is a minor, kidnapping does not only involve minor victims. You may be convicted of kidnapping if you take an adult person and move that person to another place by force or fear. For example, a kidnapping has occurred if you placed a person in your trunk against his or her will and drove him or her to another city.
Prosecution and Legal Definition of Kidnapping (PC 207(a))
Under California Penal Code section 207, a kidnapping occurs when a person takes, holds, detains, or arrests another person in the state of California and carries that person into another country, state, county, or into another part of the same county by force or fear.
In order to prove that you are guilty of kidnapping, the prosecutor must prove the following elements:
- You took, held, or detained another person by using force or instilling reasonable fear;
- Using that force or fear, you moved the other person (or made the other person move) a substantial distance; AND
- The other person did not consent to the movement.
Under California’s kidnapping laws, to move a person a “substantial distance” means that you moved the other person more than a slight or trivial distance. When deciding whether the distance was substantial, the court will consider all of the circumstances relating to the movement. This includes
- The actual distance moved;
- Whether the distance the other person was moved was more than merely incidental to the commission of another crime;
- Whether the movement increased the risk of physical or psychological harm; AND
- Whether the movement increased the danger of a foreseeable escape attempt, gave the attacker a greater opportunity to commit additional crimes, or decreased the likelihood of detection.
Prosecution for Aggravated Kidnapping (Penal Code 207(b), 209(a), 209(b), and 209.5(a))
In addition to kidnapping under California Penal Code section 207(a), you may face charges of aggravated kidnapping if certain circumstances apply to your kidnapping case. These circumstances include:
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Kidnapping for Child Molestation (Penal Code 207(b) and 288(a))
To be convicted of Kidnapping for Child Molestation, the prosecutor must prove that:
- You persuaded or enticed a child younger than 14 years old to go somewhere;
- When you did so, you intended to commit a lewd or lascivious act on the child; AND
- As a result of your conduct, the child then moved or was moved a substantial distance.
Kidnapping a Child or Person Incapable of Consent (Penal Code 207(a) and 207(e))
The elements of kidnapping a child or person incapable of consent include the following:
- You used physical force or deception to take and carry away an unresisting child or person with a mental impairment;
- You moved the child or person with a mental impairment a substantial distance; AND
- You moved the child or person with a mental impairment with an illegal intent or for an illegal purpose.
Kidnapping for Ransom, Reward, or Extortion (PC 209(a))
For the prosecutor to convict you of kidnapping for ransom, reward, or extortion, he or she must prove that:
- You kidnapped, abducted, or seized another person;
- You held or detained that person, or intended to hold or detain that person;
- You did so for ransom, reward, to commit extortion, or to get money or something valuable; AND
- The other person did not consent to being kidnapped, abducted, or seized.
Ransom is act of holding a person prisoner in order to obtain money or property in exchange for the person’s release. For example, if you kidnap someone’s child and tell that person that you will release his child from captivity in exchange for $5 million, then you have committed an act of ransom.
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Kidnapping for Robbery, Rape, or Other Sex Offenses (PC 209(b))
To prove that you are guilty of kidnapping for robbery, rape, or other sex offense, the prosecutor must show that:
- You intended to commit robbery, rape, or another sex offense;
- Acting with that intent, you took, held, or detained another person by using force or by instilling a reasonable fear in that person;
- Using that force or fear, you moved the other person (or made the other person move) a substantial distance;
- The other person was moved or made to move a distance beyond that merely incidental to the commission of robbery, rape, or another sex offense;
- When the movement began, you already intended to commit the robbery, rape, or sex offense; AND
- The other person did not consent to the movement.
To convict you for kidnapping during a carjacking, the prosecutor must prove that:
- You committed a carjacking in violation of Penal Code section 215(a);
- During the carjacking, you took, held, or detained another person by using force or by instilling reasonable fear in that person;
- You moved the other person or made that person move a substantial distance from the vicinity of the carjacking;
- You moved or caused the other person to move with the intent to facilitate the carjacking or help yourself escape;
- The person moved was not one of the carjackers; AND
- The person moved did not consent to the movement.
If you are convicted of any one of the aforementioned aggravated kidnapping offenses, you will be convicted of two crimes: kidnapping and the additional offense that justified the aggravated kidnapping charge. For example, if you are convicted of kidnapping during a carjacking, you will be guilty of both kidnapping under California Penal Code section 207(a) and carjacking under California Penal Code section 215(a).
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Punishment for Kidnapping and Sentencing Guidelines
If you have been convicted of kidnapping, you face severe consequences. Under California Penal Code section 208(a), a conviction for kidnapping can result in up to 8 years in state prison. Moreover, if the victim was under the age of 14 at the time of the kidnapping, you could face up to 11 years in state prison. In addition, since kidnapping is considered a violent felony in California, a kidnapping conviction will count as a “strike” on your criminal record per California’s Three Strikes Law.
Penalties for Aggravated Kidnapping
Under the kidnapping laws in California, the penalties for aggravated kidnapping are more severe than the penalties for an ordinary kidnapping. A conviction for kidnapping for ransom, reward, or extortion and a kidnapping for robbery, rape, or other sex offense is punishable by life in prison with the possibility of parole. Further, if you are convicted of kidnapping for ransom, reward, or extortion and the victim dies or suffers bodily harm, then you will be sentenced to life in prison without the possibility of parole. If the victim does not suffer bodily harm or is not subjected to a substantial likelihood of death, then you will face life in state prison with the possibility of parole.
If you are convicted of kidnapping, the court has the discretion to place you on probation and not send you to prison. However, if the court does this, the court must sentence you to one year in county jail as one of the conditions of your probation.
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You May be Required to Register as a Sex Offender for Kidnapping in California
You may also be subject to lifetime sex offender registration because of your kidnapping conviction. Under California Penal Code section 290.006, the judge may order that you register as a sex offender if you committed an offense “as a result of sexual compulsion or for the purposes of sexual gratification.” If you committed a kidnapping for rape or another sex offense, the judge will likely order that you register as a sex offender. For more information on sex offender registration, visit our sex offender page (Click Here).
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With Over 30 Years of Experience, We Prepare the Most Effective Defense Strategy For Your Case
If you have been accused of kidnapping, you need the help of an experienced kidnapping defense attorney fighting for your freedom. At Wallin & Klarich, our kidnapping defense attorneys have over 40 years of experience successfully defending clients who were charged with kidnapping.
We are well-versed in all of the defenses to a kidnapping charge and have the knowledge to help you win your case. Your Wallin & Klarich attorney can successfully raise one of the following defenses on your behalf.
Defense to Kidnapping 1: Consent
You may not be found guilty of kidnapping if the victim consented to the movement. Your Wallin & Klarich attorney will be able to help you determine if the defense of consent applies in your case.
In order for the other person to have validly consented to the movement, the following three elements must be met:
- The victim freely and voluntarily agreed to go with or be moved by you;
- The victim was aware of the movement; AND
- The victim had sufficient maturity and understanding to choose to go with you.
For example, if your friend asked you to secretly lock him in the trunk of your car and take him to Las Vegas for a Bachelor’s party, so that his wife will not find out about the trip, then you cannot be convicted of kidnapping. Although you have taken your friend and moved him a substantial distance, you are not guilty of kidnapping because your friend consented to the movement.
Even if the alleged victim did not consent to the kidnapping, your attorney may be able to raise the defense of consent if you had a good faith belief that the alleged victim consented to the kidnapping. You must have had reasonably and actually believed that the other person consented to the movement.
Once consent is given, it may also be withdrawn. This means that the alleged victim can change his or her mind and no longer agree to go with or be moved by you. For example, if you pick up your step-daughter to take her to Disneyland and she agrees to go with you, but eventually changes her mind and wants to go home, then she has withdrawn her consent. Although you have not committed the offense of kidnapping prior to her withdrawing her consent to go with you to Disneyland, if you continue to move her against her will, then consent will no longer be a valid defense.
Defense to Kidnapping 2: No Movement over a Substantial Distance
Under California’s kidnapping laws, another element of kidnapping is that you must have moved the victim a substantial distance. In the prosecution section, the circumstances the court considers when determining whether a person has been moved a substantial distance were discussed.
It is important to note that there is no exact distance that constitutes a substantial distance. A substantial distance depends on the facts and circumstances of the case. Although the actual distance that the other person was moved does not determine whether the movement was over a substantial distance, it is one factor that the court will use to determine whether the element of movement over a substantial distance has been met. If the jury finds that you did not move the alleged victim a substantial distance, then you will likely be found not guilty of kidnapping.
Defense to Kidnapping 3: Mistaken Identity
In some cases, the alleged victim may claim that you were the person who kidnapped him or her when you did not actually do so. There are many reasons why the victim would mistake your identity for his or her kidnapper’s identity. Several common reasons are listed below:
- The victim did not see your face or what you looked like;
- The incident took place at night under dim lighting; OR
- The victim’s memory was impaired by drugs or alcohol.
Defense to Kidnapping 4: Alibi as a Defense
You may also have an alibi that confirms that you could not have committed the kidnapping because you were somewhere else at the time of the alleged offense. Your attorney can help you use your alibi in order to prove your innocence.
Defense to Kidnapping 5: Insufficient Evidence
The prosecutor must prove every element of the crime of kidnapping beyond a reasonable doubt in order to convict you of kidnapping. If the prosecutor is unable to meet this high burden, then you will be found not guilty of kidnapping.
Your Wallin & Klarich attorney will help you scrutinize every piece of evidence that the prosecutor uses against you to argue that there is a reasonable doubt that you committed the offense. With over 40 years of experience successfully defending clients facing kidnapping charges, we have the skill and knowledge to help you challenge the prosecutor’s case.
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Frequently Asked Questions (FAQ) Pertaining to Kidnapping Laws in California
At Wallin & Klarich, we know that you may have many questions after you have been accused of kidnapping. Our experienced kidnapping defense attorneys have provide some answers to some of the most frequently asked questions relating to kidnapping under California Penal Code section 207.
1. The alleged victim agreed to go with me to another state, but changed her mind multiple times while we were in the car. Can I use her consent as a defense to kidnapping?
If you had a good faith belief that the alleged victim consented to go with you to another state, then you will likely have a defense to kidnapping. This depends on whether you reasonably and actually believed that the alleged victim consented to the movement.
If the victim withdraws her consent and changes her mind multiple times, consent may remain a valid defense in your case if you reasonably believed that she still consented to your actions. In such a case, your Wallin & Klarich kidnapping defense attorney can argue that since the alleged victim initially consented, and her constant change of mind was ambiguous, you reasonably and actually believed that the victim still consented to your actions.
2. I moved the alleged victim a couple blocks away from where I found her. Does this qualify as a substantial distance?
Accordingly to California’s kidnapping laws, there are multiple factors to consider when determining whether you have moved a person a substantial distance. These factors may include the actual distance that the victim was moved, whether the movement was done in furtherance of the commission of another crime, and whether the movement increased the risk of harm to the victim.
The fact that you only moved the victim a couple blocks away from where you found her does not automatically determine if that was a substantial distance. If you moved the victim a short distance to your home, with the intention of torturing her and extorting money from her, then a jury will likely find that the victim was moved a substantial distance because it was done in furtherance of committing additional crimes. The experienced attorneys at Wallin & Klarich can help you determine if your case involved a substantial distance.
3. Will I have to go to state prison if I am convicted of kidnapping?
Not necessarily. Although California Penal Code section 208(a) stated that a conviction for kidnapping is punishable by up to 8 years in state prison, our Wallin & Klarich kidnapping defense lawyers have been able to obtain a probationary sentence for many of our clients.
The skilled kidnapping defense attorneys can help you negotiate a plea agreement with the District Attorney. When you are facing the very real possibility of an 8 year prison sentence, you need a Wallin & Klarich attorney to fight for your freedom.
4. Where can I find an attorney experienced in kidnapping charges to represent me in my case?
If you have been accused of kidnapping in violation of California Penal Code section 207, it is important for you to contact Wallin & Klarich immediately. We have been successfully defending clients who have been charged with kidnapping for over 40 years. We know that facing a kidnapping charge is stressful for both you and your family. That is why our attorneys are available to help you at all times – 24 hours a day, 7 days a week, and 365 days a year.
Our offices are conveniently located in Orange County, Los Angeles, San Diego, Riverside, San Bernardino, Ventura, West Covina, Victorville, Torrance, and Sherman Oaks. Call us today at (877) 4-NO-JAIL or (877) 466-5245.
We will get through this together.