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Penal Code 207 PC – California Kidnapping Laws

Penal Code 207 PC – California Kidnapping Laws

Under Penal Code 207 PC, California law defines the crime of kidnapping as moving a person a considerable distance without the person’s permission by means of force or fear. The charge of simple kidnapping is a felony punishable by up to 8 years in state prison. However, the sentence can rise to life in prison if the victim is a child, if the victim is injured or killed, if a ransom is demanded, or if the kidnapping is part of a carjacking.

The 207(a) PC states that “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.”

Force or fear is described as;

  • essentially inflicting physical force upon the alleged victim, or
  • By threatening to inflict physical harm. 
  • Aggravated kidnapping is if you move a person and;
  • Proceed to use force, fear or fraud upon a victim who is a child under 14 years of age,
  • An accomplice to the kidnapping with a demand for ransom,
  • In some way cause the victim to suffer serious bodily harm or death,
  • Impulsively kidnap another person as part of a Penal Code 215 PC carjacking, or
  • Willingly violate a number of other laws that relate to kidnapping.
  • A kidnapping offense can be elevated to aggravated kidnapping under Penal Code 209 PC. Aggravated kidnapping is a far more serious charge, a sentence for which a person will serve life in state prison.
  • Examples:
  • Binding someone so that they cannot move, transporting the person to a desolate location, then calling their family and demanding that they pay ransom to secure their release.
  • Carjacking someone after robbing a store, and demanding that they drive away by means of holding a gun to their head.
  • Ordering a woman out of a busy store, onto the street, into a secluded alley and then into your car to rape her, all under duress and the threat of killing her daughter if she doesn’t comply with you.
  • Taking your girlfriend’s 8-year-old son from the house telling him that you are taking him to the movies, when in fact, you have no intention of doing that and are simply “hiding” him from his mother after discovering out that she cheated on you.

Sentencing

 “Simple” kidnapping is a felony, punishable with up to 8 years in the California state prison. Subsequently, in a case of aggravated kidnapping, which is also a felony, the possible sentence is twenty- five years to life, reliant upon the facts of the case. Also because kidnapping is a strike under California’s three strikes law, you are obligated to serve at least 85% of your sentence before you are eligible for release.

Defenses

Not surprisingly there are a variety of legal defenses that apply to kidnapping charges.  They consist of (but are not limited to) taking the position that:

  • There was consent by the alleged victim,
  • there was an inadequate amount of movement to qualify as kidnapping,
  • not enough evidence to prove the case,
  • you were “merely present” but you were not the person doing the kidnapping,
  • falsely accused of kidnapping based on a case of mistaken identity, and/or
  • As the parent of the victim, you have a legal right to travel with your child (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 without consent from the legal guardian, or hide the child from his/her legal custodian).

Our criminal defense attorneys explain the particulars of the California kidnapping laws by addressing the following:

  • The requirement is that you “move” a person
  • Without consent
  • Definitions of Force, fear or fraud
  • A common defenses to 207 PC
  • Consent to be moved was given by the alleged victim
  • Insufficient movement to qualify as kidnapping
  • Merely present but not the kidnapper
  • Inadequate evidence / false accusations
  • Rights of a parent to travel with their children
  • The statutory exceptions
  • Sentencing for kidnapping in California
  • A charge of simple kidnapping
  • A charge of aggravated kidnapping (for ransom)
  • The three strikes law in California
  • Kidnapping during a carjacking
  • Kidnapping in connection with extortion
  • California’s false imprisonment law
  • False imprisonment to protect from arrest
  • California’s child abduction law
  • Deprivation of a child custody order

The legal definition of kidnapping in California

In a kidnapping charge there must exist evidence of restraint, violence or the threat of violence. Without these elements there is no case.

While the exact wording of California’s kidnapping laws is technical and intricate, they can be summarised as follows:

A case of “simple” kidnapping, as stated in Penal Code 207, takes place when you move a person without that person’s consent by using force or fear.

A case of “aggravated” kidnapping punishes the offender with greater penalties. These penalties, punishments and sentences become possible when you move a person without that person’s consent by using force, fear or fraud and;

  • A child victim younger than 14 years of age,
  • the victim is held for ransom,
  • when a victim suffers bodily harm or death, or
  • If you kidnap a person during a carjacking.
  • Let’s take a closer look at some of these terms and phrases to gain a better understanding of their legal definitions.

 The requirement is that you “move” a person

In any case considered to be kidnapping one major factor is required. You must “move” the alleged victim more than a small or insignificant distance.  So, in order for it be considered kidnapping the movement must be considerable. Though, the determination of whether the movement is “considerable” depends on a range of factors.  These may include factors such as;

  • actual distance moved,
  • if the movement increased the risk of harm to the alleged victim (for example, removing the victim from a packed club and taking them into a neighbouring dark alley), and
  • If the movement reduced the probability of being caught (same example).

Instances of cases involving a relatively small movement that the courts sustained as being considerable enough to support kidnapping charges include (but are not limited to):

  • When a defendant moved the victim 29 feet from the outside of a motel room door into the bathroom in order to rape her (the implication being that the movement was to avoid detection and/or to simplify the rape),
  • A defendant moved his victims 840 feet on a major street at night when he silently snuck up from the back of a pickup truck, seized the driver and passenger by the shoulders and ordered them to carry on driving until the driver and passenger abandoned the truck in motion, and
  • If the defendant ordered the victim (at knifepoint) to move between 40 to 50 feet from his driveway on the street to the inside of a camper behind his house.

Some examples of movement that courts held were not considerable enough to justify kidnapping charges include (but are not limited to):

  • It was substantiated in court that when the defendant dragged the victim from the front of the laundromat into the back of the laundromat, the whole incident took place in a single room and for that reason didn’t qualify as adequate movement, and
  • court also held that when the defendant moved the victim at gunpoint approximately 40 feet through a parking lot in the direction of his van before she escaped, this movement was unsatisfactory to support a kidnapping conviction because the whole movement happened in the parking lot and the victim was not subject to increased harm in this short distance.

Ultimately, it comes down to whether or not the movement is considerable enough to justify a kidnapping conviction and that is a question of fact for the judge or jury to decide. In the kidnapping law there is no “set” distance that inevitably qualifies for it to be considered a kidnapping or not. Therefore, this is an area that is suitable for challenge by your California criminal defense lawyer.

The term Without consent

As a result “without the alleged victim’s consent” means that the alleged victim protested or put up a struggle to get away before you were able to move him/her.  This means that he/she did not voluntarily agree to go with you.

We should be note that both children and those who are mentally incapacitated (either based on mental illness or extreme intoxication) are considered unable of giving legal consent.

However, before you can truly comprehend 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 in accordance with the California kidnapping charges.

Definitions of fraud, fear or force

In order to be convicted of kidnapping, the offender must have used violence, force, threats or sometimes even fraud. According to California’s simple kidnapping laws it prohibits moving the victim, without his/her consent, by way of fraud, fear or force. In the law “force or fear” means that you essentially inflict physical force upon the alleged victim or that you threaten to inflict impending physical harm.

The case of “Fraud” is generally defined as any intentional deception done in order to secure particular personal gain.  Essentially this means that if you make false promises or mislead the alleged victim by misinformation and those fraudulent explanations convince him/her to “consent” to being moved you fraudulently acquired that consent.

In a kidnapping case, fraudulent consent is the equivalent of no consent.  That is because a person can only freely and rationally consent to something when he/she knows precisely what that consent is for.  Therefore, if the alleged victim doesn’t freely and rationally consent with an understanding of all the essential facts then you act “without the alleged victim’s consent”.

In addition, if the alleged victim originally consents to the movement, but then withdraws that consent, you violate California’s kidnapping laws if you continue to move the alleged victim a considerable distance as explained above.

Common defenses to 207 PC California Kidnapping Charges

An experienced legal defense can every so often get a kidnapping charge reduced or even dismissed. Providentially, there are a range of legal defenses that are appropriate to California kidnapping charges that a skilled California criminal defense lawyer can present on your behalf.  A few of these may include (but not limited to):

Consent to be moved was given by the alleged victim

An example of this would be that you and Jessica decide to go for a ride, let’s even say a long ride with no stated destination.  Irrespective of what occurs once you decide to stop driving even if she then decides she wants to return home you haven’t kidnapped her, because she consented to the movement.

However, as stated above 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 lawful legal defense.

An additional way that consent comes into play is when you have a good faith (and reasonable belief) that the alleged victim consented to being moved. So if, for example, the alleged victim’s behavior shows that he/she freely 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.

Insufficient movement to qualify as kidnapping

In order for the prosecution to convict you of kidnapping, it must prove that you moved the victim a considerable distance. What this means is that if you only moved the victim a small or insignificant distance, or a distance that does not put the victim in any additional danger you should not be convicted of this offense.

As stipulated previously where the defendant moved the victim 40 feet across a parking structure to try to get her inside his van. In this case the court believed that the movement was inadequate to support a kidnapping conviction because the whole movement was within the parking lot and the victim was not under any increased harm across this short distance. Therefore, based on these factors the conviction for kidnapping was overturned.

Merely present but not the kidnapper

In this scenario you and a friend stopped to get gas.  Your friend goes inside to pay while you waited in the car. Upon returning to the car you realise that he has with him a bag full of money and the clerk from the gas station.  Your friend robbed the store and was kidnapping the clerk so that he wouldn’t be able to report the crime immediately.

While escaping your friend gets stopped by the police for speeding.  Consequently due to the stop your friend gets caught and the clerk tells the cops what happened. Immediately you and your friend are both arrested for robbery and kidnapping. Since you were uninformed of your friend’s plan, and were not “in on it,” you should be acquitted of the charges.  This is because you were simply in the wrong place at the wrong time. As stated in the law, you were “merely present.”

Conversely, if your friend informed you ahead of time of what he was planning and you still decided to “go along for the ride” you could and most probably will be charged as an aider and abettor. You can be convicted of aiding and abetting anytime you;

  • are aware of the perpetrator’s illegal plan,
  • with intent encourage and/or facilitate the plan, and
  • if you endorse or initiate the crime or fail to stop 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).

Accordingly, if you are convicted of being an aider and abettor to kidnapping, you face the exact same penalties as the actual perpetrator.

Inadequate evidence/false accusations

In a case where you are charged with simple kidnapping without any primary or additional offenses, it is very likely that the case will be based on he-said/she-said accusations.  Without proof of a crime other than the unsubstantiated word of the alleged victim, it will be easier for your attorney to defend the charges.

An example would be that, without reliable eyewitnesses or records of phone calls/texts placed by the victim requesting help, your lawyer could contend that you are being falsely accused of kidnapping. In such a case it really comes down to the reliability of the accuser.

Most people tend to make false allegations based on emotions such as anger, jealousy and/or revenge.  A lot of the time, people falsely accuse others in order to gain some sort of advantage over the other person or to gain control during a hotly contested custody proceedings which leads to the next defense.

Rights of a parent to travel with their children

As the parent of a child and because you have lawful custody of that child you are allowed to travel with your child. What this means is that, for example, if you decide to take your child on a trip even without the other parent’s consent you have not kidnapped your child.

Dependent on the conditions, you could, however, face potential charges for Penal Code 278.5 PC deprivation of a child custody order. There is an exception to this defense and it applies to illegal intent/acts.  So if you take/move your child in order to participate in illegal activity, this defense will not apply or be considered.

The statutory exceptions

Additionally, to the defenses above, there are varied amount of defenses that are written into California’s kidnapping laws. For example, you are not guilty of kidnapping:

  • if you steal, take, conceal or otherwise harbor a child under 14 if you do so to protect the child from the danger of impending harm, or
  • if you place the alleged victim under a citizen’s arrest per Penal Code 837.
  • If you legally place another person under a legal “citizens” arrest when you witness that person commit a felony,
  • If you have reasonable cause to believe that the individual committed a felony, or
  • If you know that the person actually committed a felony.

Sentencing for kidnapping in California

Unbeknown to most, California’s kidnapping law is considered a continuing offense.  The reason for this is because the offense “continues” as long as you detain the alleged victim. Therefore, even if you move the victim from one place to another, prosecutors can only convict and punish you for one incident of kidnapping.

A charge of simple kidnapping

Simple kidnapping is a felony offense that carries:

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

A charge of aggravated kidnapping (for ransom)

On a conviction of aggravated kidnapping, you face:

  • A sentence of five, eight, or eleven years in the state prison if the victim was under 14 years of age at the time of the offense (See Penal Code 208b).
  • incarceration in the state prison for life with the possibility of parole if you kidnapped the alleged victim for:
    • a ransom (that is, a payment in exchange for the alleged victim),
    • for a reward, or
    • in order 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:
    • the 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),
    • the Penal Code 287 PC oral copulation by force,
    • the Penal Code 286 PC illegal acts of sodomy, and
    • the 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.).
  • the Penal Code 215 PC carjacking, or
  • incarceration a 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
    • if the victim suffers death or bodily harm, or
    • if you place the victim in a situation of where the possibility of death is considerable.

The three strikes law in California

It is important to note that simple and aggravated kidnapping qualify as both serious felonies and violent felonies. Subsequently, that means that a conviction for violating California’s kidnapping law counts as a “strike” for the purposes of California’s three strikes law.

Other crimes related to kidnapping

There is a variety of offenses that may be charged in association of Penal Code sections 207 208 and 209 PC.  The following offences are some of the most common:

  • Kidnapping during a carjacking
  • Kidnapping in connection with extortion
  • False imprisonment law
  • False imprisonment to protect from arrest
  • California’s child abduction law
  • Violation of a child custody order

If you or a loved one has been charged with the very serious offense of Kidnapping under California Penal Code 207 PC, we urge you to contact the experienced criminal defense attorneys at Spodek Law Group right away so you can learn what your options are.  

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