Kidnapping

California’s kidnapping laws can be found under Penal Code 207, 208, 209, and 209.5. Kidnapping is defined as the act of taking, holding, or detaining another person against his/her will by using force or by instilling reasonable fear. While using that force or fear, the defendant must move the victim a substantial distance. The movement, or carrying away, has to have been achieved without the victim’s consent.

To decide whether or not a victim was moved a “substantial distance,” the prosecution will consider the actual distance the victim was moved, whether or not the movement placed the victim into greater danger, whether or not the movement facilitated the commission of a crime by the defendant, or whether or not the movement helped the defendant evade being caught.

Kidnapping is a felony, and if convicted, you face up to eight years in California state prison, a $10,000 fine, or both. However, depending on the facts of the case, the charge can be enhanced to aggravated kidnapping, which is also a felony and carries a sentence of five years to life. Kidnapping is also a strike under California’s three strikes law, which means that you must serve at least 80% of your sentence before you are eligible for release.

Kidnapping becomes aggravated kidnapping when the victim is a child under 14 years of age, held for ransom, harmed or killed, or kidnapped while committing a carjacking.

Examples of Defenses Against Kidnapping

The most fundamental way to beat a kidnapping charge is to prove that you had a reasonable belief that the victim consented to the movement. If that can be proven, you will not be found guilty of kidnapping.

Be aware that consent to being moved can be withdrawn, and if the victim does withdraw consent and you continue to move him/her, you may be charged with kidnapping.

Many accusations of kidnapping arise before or during divorce proceedings. Under California law, parents have the right to travel with their children. Therefore, if you are the parent of a child and have lawful custody of that child, it is your right to travel with your child, and you do not need the other parent’s permission. However, even under these circumstances, we encourage you to contact us because you may still face charges for Penal Code 278.5 — deprivation of a child custody order.

An exception to kidnapping charges is when you are carrying out a citizen’s arrest. If you see someone committing a felony or you know or have a reasonable belief that someone has committed a felony, you may carry out a citizen’s arrest and be immune to prosecution for kidnapping.