It is a crime to move an individual through a significant distance against his/her will through force or fear. Most people understand the offense primarily as dramatized in films. Most people associate kidnapping with taking children without the authority to do so. This is true. However, kidnapping is not specific to children victims but to adults too.

Additionally, you can be accused of kidnapping even if the victim is your child, grandchild, or nephew. These cases are prevalent in custody battles. As you will see, kidnapping results in severe penalties. You, therefore, should not take kidnapping accusations lightly. It is best to seek legal aid. The California Criminal Lawyer Group offers legal assistance and representation to individuals accused of kidnapping in Santa Ana. So call our team today.

Kidnapping as Defined in Law Penal Code 207

Penal Code 207 makes it a crime for anyone to move another through a substantial distance without the latter's consent through force or fear. Kidnapping falls into two categories, namely:

  1. Simple Kidnapping

Simple kidnapping is as defined under Penal Code 207.

  1. Aggravated Kidnapping

Aggravated kidnapping occurs when in addition to using fear, force, or fraud, moving another through a substantial distance and without their consent, you:

  • Kidnap a minor below 14 years of age
  • Demand ransom
  • Inflict serious bodily harm to the victim or cause death
  • Kidnap another as part of a carjacking incident
  • Commit other crimes related to kidnapping

Aggravated kidnapping violates PC 209 and is a more weighty charge. A conviction is likely to result in a life-in-prison sentence.

Depending on the circumstances of the case, the DA could pursue the following violations for aggravated kidnapping.

Kidnapping for Child Molestation

You violate PC 207(b) and PC 288(a) when you kidnap a minor, aiming at molesting the child. However, you are only guilty if prosecutors prove:

  • You enticed or persuaded a child below 14 years of age to accompany you
  • You aimed at committing lascivious or lewd acts on the child, and
  • The child moved or was moved through a significant distance on account of your actions

Kidnapping a Child or an Individual Incapable of Giving Consent

You violate PC 207(a) and 207(e) when you kidnap a minor or an individual incapable of giving consent. Prosecutors must prove the following to secure your conviction.

  • You deceived or physically forced an unresisting minor or an individual with a mental impairment to go with you.
  • You moved the victim through a substantial distance
  • You moved the victim intending to commit an illegality

Kidnapping For a Reward, Ransom, or Extortion

You are liable under PC 209(a) if you commit the following.

  • Abducted, kidnapped, or seized another individual
  • Detained or held the victim or intended to hold the individual
  • Your actions were motivated to seek a reward or ransom, for extortion purposes, or to access the victim’s wealth, and
  • The victim did not consent to your actions

Kidnapping for Robbery, Rape, or Other Sexual Offenses

It is a crime under PC 209(b) to kidnap an individual to rob, rape, or commit other sexual offenses against the victim. Prosecutors must prove that:

  • You intended to commit robbery, rape, or other sexual offenses
  • Acting with intent, you took, held, and detained the victim by using fear or force
  • You moved the individual through a substantial distance
  • The alleged victim was moved or made to move through a distance beyond what is incidental to the commission of the robbery, rape, or other sexual offenses.
  • You intended to rob, rape, or commit sexual offenses on the alleged victim before moving the individual, and
  • The alleged victim did not consent to the movement.

Kidnapping During Carjacking

Kidnapping an individual while carjacking them or another is an offense punishable under PC 207(a), 209.5(a), and PC 215(a). It must be proven that:

  • You carjacked another an offense under PC 215(a)
  • During the carjacking incident, you took, held, or detained another individual by using force or fear
  • You moved the alleged victim or made them move through a substantial distance from the carjacking scene
  • You moved the individual or caused the individual to move through a distance with the intent to facilitate the carjacking or to aid in your escape.
  • The alleged victim was not one of the carjackers
  • The victim did not consent to your actions

A conviction of any of the forms mentioned above of aggravated kidnapping means a sentence of two offenses: kidnapping and the subsequent offense in the aggravated kidnapping charge sheet. Further, it means you have been found guilty of both crimes.

Elements Prosecutors Must Prove

The legal definition of kidnapping presents elements of the crime prosecutors must prove for you to be found guilty. It should be established that:

  • You moved another through a substantial distance
  • The victim did not consent to your actions
  • You achieved your actions through fear or force

Let us look at each element in detail to understand the crime better.

Moving Another Person

Kidnapping only occurs when you move another person over a substantial distance. Substantial, in this case, refers to a distance beyond a trivial or slight stretch. The substantial threshold is determined upon considering several issues, including:

  • The actual distance covered.
  • Regardless of the distance, whether the movement increased the alleged victim’s risk of harm — For example, when an individual is moved from a street to a dark alley, away from the public
  • Whether the movement enabled the defendant to commit a crime
  • Whether the distance decreased the likelihood of being caught

It is worth pointing out that the actual distance covered becomes immaterial if a defendant aimed to commit a crime or avoid detection.

For example, a defendant moving a victim from the bed to the bathroom inside the bedroom to rape the victim. Whereas the distance could pass for a short one, for purposes of kidnapping laws, the distance is substantial. The defendant moved the victim to the bathroom to commit another crime, rape.

Consider a situation where a defendant points a gun and orders the victim to walk from the elevator in the car parking lot and get into the victim’s car. The distance from the elevator to the car is 30 feet. The victim manages to escape. In this case, the defendant is not liable for kidnapping. The incident occurred within the parking lot, and the victim did not suffer a potential risk to their life within the short distance.

If you are charged with aggravated kidnapping for committing another offense, the movement should be more than what is incidental to the underlying crime.

Lack of the Victim’s Consent

Lack of consent by the victim is provable in two ways: either he/she protested the move, or they did not agree to the movement in cases where they are too scared to protest.

In the case of children and mentally incapacitated individuals, both are incapable of giving consent, with mental incapacitation extending to individuals who were highly intoxicated or drugged at the time of the incident.

As mentioned above, a victim can be scared not to protest the move. This brings forth the third element of the case, force or fear.

Use of Force, Fear, or Fraud

Force and fear are used to coerce individuals to submit to an act involving the use of physical force or a threat to inflict injury.

A defendant uses physical force when they restrain, drag, or beat the alleged victim. For child victims, the only force required is a defendant carrying or taking away the child.

The following examples are common scenarios where fear features.

  • Threatening to physically or sexually assault the alleged victim should they fail to comply with your demands.
  • Holding another at knifepoint or gunpoint, demanding they comply with your demands.
  • Threatening to inflict injury on the victim's family members should they fail to comply with your demands.

Fraud, on the other hand, refers to manipulating a situation or deceiving an individual to carry on the desired action, in this case, movement. Therefore, you will be liable for using fraud to kidnap another when you mislead an alleged victim or make false promises, and the fraudulent misrepresentations convince the victim to consent to being moved.

Fraudulent consent is no consent. You can only freely consent when presented with all facts and agree to act as suggested by another. Fraud denies the victim specific facts to convince the victim to agree to the suspect’s suggestions.

Note: Moving another exclusively through fraudulent means without fear or force does not generally constitute simple kidnapping. Fraud features in aggravated circumstances. They include:

  • Fraudulently kidnapping another from a different state and bringing him/her into California
  • Fraudulently kidnapping a minor below 14 years of age aiming at committing lewd acts with the minor. This act violates PC 288
  • Fraudulently kidnapping another to leave California and selling the individual into involuntary servitude or slavery

It is equally important to point out situations where an individual initially consents and withdraws the consent. You are liable for kidnapping if you move the individual after they withdraw consent.

The jury will only find you guilty if satisfied you used force, fear, or fraud to kidnap the alleged victim.

Defenses You Can Assert

Several defenses are applicable in kidnapping charges, with the reasonably common ones detailed below.

  1. The Alleged Victim Gave Consent

You are not guilty of kidnapping if the alleged victim gave consent. Your attorney will demonstrate the following to the court to prove the individual's consent.

  • The alleged victim voluntarily and freely consented to the movement
  • The alleged victim was aware of the movement
  • The victim was mature enough to comprehend their choice to accompany you

In situations where consent was not given, your attorney will assert that you had good faith belief that the alleged victim consented to the movement. Good faith belief of permission is evidenced in the alleged victim's actions. He/she could have acted in a manner indicating they were willing to accompany you. If so, you will be acquitted of kidnapping charges even if they claim you took them without consent.

It bears emphasizing that should the victim withdraw consent and communicate unwillingness to accompany you, you do not have consent. Therefore, consent is no longer a viable legal defense.

  1. The Distance Was Not Substantial

The law does not provide an actual distance as the benchmark to determine what is substantial. The final decision of whether the distance is substantial is a determination to be made upon considering the facts of the case.

Note: The distance alone is not conclusive in determining guilt for kidnapping. The jury considers the facts presented in the case to determine whether the movement meets the substantial threshold. That is, it should subject the victim to additional harm.

Prosecutors bear the burden of proof. They should prove beyond a reasonable doubt that the movement potentially exposed the victim to harm. Failure to prove this, your attorney will challenge the kidnapping charges on the grounds that the distance was not substantial.

  1. You Have a Legal Right to Move the Individual

Parents have legal custody of their children. A parent can pick up a child and travel with the child without necessarily seeking permission from the other parent. This act does not constitute kidnapping.

However, you could find yourself facing deprivation of a child custody order. This crime violates PC 278.5. The DA will assert that you deprived the other parent of their legal right to custody or visitation access with the child.

Note: If you move the child to commit an illegal act or engage in criminal activity, you cannot use this defense.

  1. Insufficient Evidence

Prosecutors should prove the above mentioned elements beyond a reasonable doubt. This is a high standard. Should the DA fail to meet this standard, you can be acquitted for lack of sufficient evidence to prove your guilt.

Most cases dismissed for lack of sufficient evidence are based on he-said/she-said statements without corroborating evidence to support the eyewitnesses or the victim’s claim. The situation is further complicated to your advantage if there is no evidence of another crime committed to support the kidnapping charges.

False accusations are common. Most eyewitnesses or alleged victims are willing to falsely accuse defendants aiming to settle a score, get revenge, or gain an advantage in custody battles. Experienced attorneys will unearth the truth and expose the false testimony to the jury.

You Were Merely Present But Not The Kidnapper

In some situations, you could be roped into a kidnapping incident that you did not plan or were not part of its execution. In this instance, you were factually not a participant but merely present.

Consider the following example: James is waiting for his friend Peter to pick him up to head out to a ball game. Unknown to James, Peter pulled off a robbery, carjacked Elaina, gagged her, and put her in the car’s trunk. Peter pulls up, picks Peter, and a few blocks down, they are pulled over. The officer discovers Elaina in the trunk, and Peter and James are arrested.

Is James guilty of kidnapping?

No. James did not know Peter planned to or committed the robbery and carjacked Elaina. However, if he had known that Peter intended to commit a robbery, James would likely have been charged with aiding and abetting.

Prosecutors should prove that you had prior knowledge and were a participant in the kidnapping incident for you to be found guilty.

Statutory Exceptions

The law provides scenarios where a defendant is not guilty of kidnapping. These scenarios can be considered as defenses incorporated in kidnapping laws.

You will be found not guilty when:

  1. You take, steal, conceal, or otherwise harbor a minor below 14 years of age to protect them from imminent danger, or
  1. Pursuant to Penal Code 837, you placed the alleged victim under arrest — You legally arrest someone when you:
  • Have reasonable reason to believe the individual committed a felony
  • Witness the individual committing a felony
  • Know the individual perpetrated a felony

Penalties Upon Conviction For Kidnapping

Kidnapping is considered a continuing offense. Under the law, the offense continues long after detaining an individual. It follows that even if you move the alleged victim from one point to another, you can only be convicted of one count of kidnapping.

The severity of the penalties depends on the circumstances of the case.

  1. Simple Kidnapping

Simple kidnapping is a felony punishable by three, five, or eight years in prison and a fine not exceeding $10,000.

  1. Aggravated Kidnapping

Aggravated kidnapping is also a felony. Convictions result in the following penalties:

  • Five, eight, or eleven years in prison if the victim is a minor under 14 years of age at the time the offense was committed
  • Life imprisonment with the possibility of parole if you kidnapped the alleged victim for a reward or ransom, for extortion, committed carjacking, a robbery, or committed a sex crime, including:
  1. Rape
  2. Oral copulation by force
  3. Illegal acts of sodomy
  4. Lascivious acts with a minor
  • Life imprisonment without the possibility of parole if you kidnapped the victim for a reward, ransom, or to extort the family and:
  1. The victim suffers bodily harm or dies, or
  2. Is exposed to a situation with a substantial likelihood of causing death to the victim

California’s Three Strikes Law

Simple and aggravated kidnapping offenses are considered serious and violent felonies. This means a conviction will result in a strike on your record.

A first-time conviction without prior strikes will not affect your penalties. However, the strike will affect subsequent convictions of strikeable offenses.

Second strikers face double the punishment of the penalties outlined by the judge.

If charged and convicted of a strikeable offense and results in a third strike, according to the law, you will serve a mandatory minimum prison sentence of 25 years to life.

Crimes Related to Kidnapping

Prosecutors could pursue additional charges. The crimes include:

  1. False Imprisonment

It is a crime to falsely imprison another under Penal Code 236. Prosecutors will pursue false imprisonment charges if they cannot prove kidnapping charges.

False imprisonment under the law means detaining, restraining, or confining another without consent.

Note: You cannot kidnap another without falsely imprisoning them. Therefore, false imprisonment becomes an alternative the jury or judge could find you guilty of even if the prosecution charges you with kidnapping.

Your attorney can also opt for false imprisonment charges in a plea bargain agreement, meaning you will plead guilty to false imprisonment, a lesser crime to kidnapping. Thus you will avoid the harsh penalties of a kidnapping conviction.

False imprisonment is a wobbler. You can be charged with a misdemeanor or a felony. A misdemeanor is punishable by a fine of up to $1,000 and one year in jail. If convicted of a felony, you could spend up to three years in jail. Further, sentence enhancements are possible if the victim is an elderly individual or a dependent adult.

  1. False Imprisonment

When you unlawfully detain, confine, detain, or imprison another individual against their will, you commit an offense under PC 236.

You risk facing misdemeanor or felony penalties if convicted. PC 236 outlines a punishment of a three-year maximum jail time.

  1. Deprivation of a Custody Order

PC 278.5 prohibits abducting a child in violation of custody or visitation rights. The offense is also referred to as child detention.

You violate PC 278. When you take or hide a child from the legal guardian, parent, or someone with visitation rights with the child. There is no limit to potential defendants in a PC 278 charge. Anyone who violates this law is likely to face prosecution.

A conviction could lead to misdemeanor or felony penalties. If convicted on misdemeanor charges, you could spend up to one year in jail and part with $1,000 in fines. A felony conviction, on the other hand, will result in a jail sentence of 16 months, two or three years, and a fine not exceeding $10,000.

Contact an Experienced Santa Ana Criminal Defense Attorney Near Me

Are you facing prosecution for kidnapping in Santa Ana?

The California Criminal Lawyer Group can help address any questions you could have on kidnapping charges, the likely penalties, and available defenses we can use to fight off the charges. Contact our team today at 714-844-4151 for a free consultation.