Kidnapping charges are not nearly as rare in California as one might suppose, and many instances of kidnapping do not fit the prototypical scenario most people have in mind when they hear the word "kidnapping."
At Leah Legal, we understand that kidnapping allegations often come up in connection with other criminal charges, and that many of these allegations are trumped up or badly exaggerated.
When you hear you are being formally charged with kidnapping, it's easy to despair and fear the worst. But we at Leah Legal have defeated these types of charges time and again and won the best possible outcome for our clients.
Do not hesitate to contact Leah Legal 24/7 by calling 818-484-1100, and we will give you a free consultation on your kidnapping defense case.
How Is Kidnapping Defined in California?
California's penal code has several statutes dealing with kidnapping, specifically located at PC 207, 208, 209, and 209.5.
Basically, any form of restraint imposed on a person, any force or violence (or threat of violence) used to move a person physically from one location to another and/or to hold them there - without their consent, constitutes an act of kidnapping.
Under PC 207, this basic definition is used to define "simple kidnapping." Whereas, other statutes define and assign penalties to "aggravated kidnapping."
Aggravated kidnapping can be accomplished by fraud, as well as by force/fear. Kidnapping someone less then fourteen years old, holding a person for ransom, inflicting bodily injury (or death) on a kidnapping victim, or committing a kidnapping during a carjack operation will turn "ordinary" kidnapping into aggravated kidnapping.
What Must the Prosecutor Prove?
To gain a "guilty" verdict in a kidnapping case, the prosecution must prove the following elements of the crime beyond all reasonable doubt:
- You move a person.
- You moved that person without his/her consent.
- You used force, fear, or fraud to accomplish the moving.
Moving the Victim
Note that you don't have to move a person a great distance for it to count as kidnapping. It merely must be counted by the court as a "substantial" distance.
The measurement of "substantial" seems to vary from case to case, but factors often taken into account include: actual measured distance moved, whether the moving added risk of physical harm to the victim, and whether the moving lessened to chances of the perpetrator getting caught.
But you can't have a kidnapping charge tacked on if the other, underlying offense already covered the moving of the victim. So, moving a driver out of a car in order to steal (carjack) the vehicle is just part of carjacking. But, forcing the victim to drive the car to a remote location before forcing him/her out of the car adds a kidnapping charge to the carjacking charge.
In order for kidnapping to take place, there must be a demonstrable lack of consent on the part of the person being moved. If a verbal protest, struggle, or other action was done to try to prevent the movement, that serves to prove lack of consent.
But the fact force, fear, or fraud was used would also already involve the element of lack of consent.
Plus, in the case of children and the mentally handicapped, kidnapping can still take place even though these persons are not considered capable of giving "legal consent."
Finally, note that if consent is initially given but later withdrawn, then kidnapping begins at the point of the withdrawal of consent to be moved.
By Force, Fear, or Fraud
The application of physical force to a victim to move him or her can be accomplished by restraint (tying up or handcuffing, for example), grabbing and dragging or pushing, by beating one into submission, or numerous other ways.
The use of a threat to inflict physical harm or to use force to move the victim also makes it count as kidnapping. A firearm, knife, or other weapon may have been used OR a threat of imminent violence to that individual or his/her family member may have been issued.
Note that the only force necessary in the case of kidnapped children is that force necessary to physically take them away. And fear need not have been used since small children might easily be deceived into compliance.
If fraud (deceit) is used to kidnap someone under the age of 14, to get someone out of state so they can be sold into slavery, or to take someone into California from another state - it is an aggravated offense.
In general, fraud by itself as the only means of kidnapping is rare except in aggravated offenses such as the instances mentioned above.
Possible Penalties For a Kidnapping Conviction
Kidnapping is a felony offense under California law, but the severity of punishment still varies substantially based on the details of the incident and the defendant's past criminal record (if any).
Since kidnapping is a "continuing offense," you can only be charged with a single act of kidnapping even if you moved the victim multiple times.
Simple kidnapping (PC 207 or 208), can get you 3 to 8 years in state prison plus a fine as high as $10,000.
Aggravated kidnapping, where a child under 14 is the victim, where ransom was demanded, or where robbery or sex crimes were also involved is punishable by 5 to 11 years in state prison.
If the kidnapping took place during a carjacking OR if the victim died or was exposed to serious risk of death OR if the victim suffered bodily injury of the risk of serious bodily injury, then you can get life in prison without parole as the penalty.
Finally, note that kidnapping is a "strike" on the defendant's criminal record, if convicted, under our state's Three Strikes Law. A second strike will double your prison term, while a third strike can be punished by 25 years to life in state prison.
Common Defense Strategies
At Leah Legal, we have deep experience in defending against kidnapping charges in L.A. Area and Southern California courts. We know how to build you the best possible defense and how to argue your case effectively both pretrial and in-court.
We customize each and every defense to the exact facts and circumstances of the case. We never use a "cookie cutter" approach. Nonetheless, there are certainly major "defense types" that come up again and again, and win again and again when used in the right way at the right time, against kidnapping charges.
Here are some of our most commonly used defense strategies in kidnapping defense cases:
- Consent Was NOT Lacking
There are instances in which a person might be accused of kidnapping, but in fact, the "victim" gave consent to be moved.
Maybe two people go for a car ride without any specific destination agreed upon ("out cruising.") Even if you moved someone a great distance and he/she suddenly wants to go home when he/she realizes where he/she is at - perhaps, after sleeping in the car for hours on end - it's not kidnapping necessarily.
If you had consent, did not continue once consent was removed, and didn't use fraud to trick the person into "consenting," you are innocent.
- Not Sufficient Distance Moved
If you did not move the victim a "substantial" distance, did not move them so as to increase the risk or bodily harm to them or decrease the risk of getting caught by yourself, then, it wouldn't count as kidnapping.
Of course, some other criminal allegation may well still apply, but at least eliminating the kidnapping charge can greatly reduce your sentence, if you can't avoid conviction completely.
- You Were "Merely Present"
If a friend of yours or person you were with suddenly commits kidnapping without your prior knowledge or approval, you cannot be guilty of the crime yourself simply because you were present.
But, if you aided or abetted the kidnapping crime, you can be convicted for that. If you knew of the plan, encouraged or helped it along, or neglected a legal duty to prevent a kidnapping crime where possible, then that's assisting in kidnapping. But otherwise, it's not - you were just in the wrong place at the wrong time.
- Insufficient Evidence to Convict.
If your case comes down to a mere accusation by one person with no real evidence that the crime ever occurred or that you were its perpetrator, you will be acquitted for lack of sufficient evidence to convict.
Sometimes, a false accusation of kidnapping is made on purpose; other times, a misunderstanding results in kidnapping charges being filed. But unless the prosecution meets the high standard of "beyond all reasonable doubt" on all elements of the crime, you cannot be convicted.
- Parental Rights
A parent with legal custody over his/her child has the right to travel with that child. Failing to notify the other parent before heading out a trip with your kid may be inconsiderate, but it does not count legally as "kidnapping."
It's possible that a violation of a child custody or visitation rights court order could have occurred, but that's still not kidnapping.
However, if the child was taken along by a parent intending to commit a crime, the parental right defense against kidnapping will likely not hold up anymore.
- Statutory Exceptions
If a child under the age of 14 is taken and/or hidden in order to keep that child from an imminent danger of bodily harm, it is a statutory exception to the normal kidnapping laws, and you are not guilty.
Also, if you place someone you saw commit a felony crime, know for sure committed such a crime, or had good reason to think committed a felony - under "citizen's arrest," that's a second statutory exception to what would otherwise be kidnapping.
There are a number of other criminal charges that are frequently charged instead of or along with the charge of simple kidnapping. These include the following:
- Kidnapping while carjacking (PC 209.5). If you move a victim more than what was absolutely necessary to simply commit the carjacking, move him/her a substantial distance from the "carjack point," and increase his/her risk of bodily harm in the process, you can be charged with PC 209.5. This crime can get you life in prison with no possibility of parole.
- Kidnapping plus extortion (PC 210). When someone kidnaps and then demands ransom money, extorts money by threats of harm to the victim, or tries to collect the reward money by returning the victim as if he had rescued him, the penalty is 2 to 4 years in state prison.
- False imprisonment (PC 236). False imprisonment is a lesser included offense under kidnapping, but it can be charged separately too in place of kidnapping. PC 236 is often a plea bargain charge reduction, as it is punished much more leniently than kidnapping.
- Child abduction (PC 278). When someone without custody over a child tries to keep that child from his or her parent or legal guardian, it is child abduction. You can be charged with child abduction and kidnapping at the same time, but a child abduction charge by itself is not as severely punished as is a kidnapping charge.
- Deprivation of child-custody orders (PC 278.5). This is similar to PC 278 but can be charged against someone whether or not they have custody over a child. It is a violation of the child custody or visitation rights of a parent or other legal guardian.
Contact Us Today for Immediate Assistance!
At Leah Legal, we have a long track record of defeating kidnapping charges or of getting such charges substantially reduced in a favorable plea deal.
We consistently win the best possible outcome for our clients in Los Angeles and beyond, even in "the tough cases" that so many other law firms simply turn away.
If you are facing kidnapping charges in Los Angeles or anywhere in Southern California, do not hesitate to contact us 24/7/365 by calling 818-484-1100for a free legal consultation and immediate attention to your case!