California law penalizes the act of moving someone from one location to another without that person’s consent by force, fear or fraud. People who are charged with this offense should understand the seriousness of the crime and the potential penalties that can result if they are convicted of kidnapping.
Under California law, kidnapping is committed when someone does any of the following:
- Uses force or otherwise threatens to steal, take, hold, detain or arrest another person to take the person to another county, state or country
- Hires, persuades, entices or uses false promises to get a child under 14 years old to go out of his or her country, state or country for sexual purposes force or threatens to use force to compel a public officer to perform an official act
- Uses force or otherwise threatens to steal, take, hold, detain or arrest another person to take the person to another county, state or country without establishing a legal claim or with the intent to traffic the person
- Abducts or takes a person by force or fraud when that person is in another state and brings the person to California1
The key elements that the prosecution must prove by proof beyond a reasonable doubt include:
The prosecution must prove that the defendant “moved” the victim more than a trivial distance and increases the potential risk of harm to the victim.2 Substantial movement must take place. However, substantial movement can be found even if the victim was moved from one place in the county to another place in the same county. Whether such movement is substantial is a question for the trier of fact.
Lack of Consent
Kidnapping charges are based on the premise that the victim did not consent to the movement. The prosecution must prove that the victim did not consent to the defendant moving him or her by showing that the victim:
- Fought back
- Was a child
- Was intoxicated by mental defect or intoxication
Force, Fear or Fraud
Perhaps the most contested element of a California kidnapping charge is whether the defendant used “force,” “fear” or “fraud” to commit the crime. If force is an element of the crime, the force must be to the level necessary to take the victim a substantial distance away.3
Kidnapping can also occur if the defendant acts with the intent to instill fear in the victim, which means that the defendant threatens to inflict physical harm that is imminent and capable of being committed. Fear can include such actions as:
- Holding the victim at gunpoint
- Threatening to harm the victim
- Threatening to harm the victim’s immediate family
When fraud is alleged, there must be an accompanying criminal intent, such as kidnapping the victim for the purpose of:
- Selling the person for human trafficking, slavery or involuntary servitude
- Committing lewd acts with a minor
- Bringing a person from another state into California4
To establish fraud, the prosecutor must show that there was deliberate deception that was used to secure a personal gain. Showing fraud was present will show that consent was not provided because if consent was only obtained through deceit, the victim did not really provide their consent through it was achieved through false means.
Penalties for Kidnapping
A conviction of kidnapping can result in a prison sentence of three, five or eight years.5 except if the person kidnapped is a child 13 or younger, the potential penalties are imprisonment of five, eight or eleven years.6
Individuals charged with this offense must usually be imprisoned in the county jail for at least 12 months unless the judge specifies reasons for a lesser sentence.7
Legal Defenses to Kidnapping
There a number of possible legal defenses that may apply to charges of kidnapping. The availability of a defense depends on the defendant’s particular situation. Some possible defenses to kidnapping include:
- The victim consented to be moved
- Movement was only trivial in nature
- The defendant was falsely accused
- The defendant is a parent with the legal right to travel with the child
- The victim was a child 13 or younger and the defendant took the child to protect him or her from imminent harm8
A more serious offense of aggravated kidnapping can be charged if kidnapping was committed for any of the following reasons:
- Receive a ransom or reward
- Commit robbery
- Commit rape or other specified sex crimes9
Aggravated kidnapping has a maximum penalty of life imprisonment with the possibility of parole.
1 Penal Code 207 PC – Explains that the following individuals are guilty of kidnapping: 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. Every person, who for the purpose of committing any act defined in Section 288, hires, persuades, entices, decoys, or seduces by false promises, misrepresentations, or the like, any child under the age of 14 years to go out of this country, state, or county, or into another part of the same county, is guilty of kidnapping. Every person who forcibly, or by any other means of instilling fear, takes or holds, detains, or arrests any person, with a design to take the person out of this state, without having established a claim, according to the laws of the United States, or of this state, or who hires, persuades, entices, decoys, or seduces by false promises, misrepresentations, or the like, any person to go out of this state, or to be taken or removed therefrom, for the purpose and with the intent to sell that person into slavery or involuntary servitude, or otherwise to employ that person for his or her own use, or to the use of another, without the free will and consent of that persuaded person, is guilty of kidnapping. Every person who, being out of this state, abducts or takes by force or fraud any person contrary to the law of the place where that act is committed, and brings, sends, or conveys that person within the limits of this state, and is afterwards found within the limits thereof, is guilty of kidnapping.
2 Penal Code 209(b)(2) – “This subdivision shall only apply if the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense.”
3 Penal Code 207(e) PC – “The amount of force required to kidnap an unresisting infant or child is the amount of physical force required to take and carry the child away a substantial distance for an illegal purpose or with an illegal intent.”
4 See Penal Code 207(c), 207(d) and 209.
5 Penal Code 208(a) PC – “Kidnapping is punishable by imprisonment in the state prison for three, five, or eight years.”
6 Penal Code 208(b) PC – “If the person kidnapped is under 14 years of age at the time of the commission of the crime, the kidnapping is punishable by imprisonment in the state prison for 5, 8, or 11 years.”
7 Penal Code 209(c) PC – “In all cases in which probation is granted, the court shall, except in unusual cases where the interests of justice would best be served by a lesser penalty, require as a condition of the probation that the person be confined in the county jail for 12 months. If the court grants probation without requiring the defendant to be confined in the county jail for 12 months, it shall specify its reason or reasons for imposing a lesser penalty.”
8 Penal Code 207(f)1 – States that the kidnapping statute does not apply to “any person who steals, takes, entices away, detains, conceals, or harbors any child under the age of 14 years, if that act is taken to protect the child from danger of imminent harm.”
9 Penal Code 209(b)(1) PC – “Any person who kidnaps or carries away any individual to commit robbery, rape, spousal rape, oral copulation, sodomy, or any violation of Section 264.1, 288, or 289, shall be punished by imprisonment in the state prison for life with the possibility of parole.”