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Criminal Defense Information for Kidnapping (Cal. Penal Code s. 207)

  1. What is Kidnapping?
  2. What are the necessary elements to be found guilty of Kidnapping?
  3. What is the sentence / punishment for Kidnapping?
  4. What are possible defenses to charges of Kidnapping?
  1. What is Kidnapping?

    Woman being kidnapped

    Woman being kidnapped

    At its simplest, kidnapping (Cal. Pen. Code s. 207 Opens in New Window) is the moving of another person by fear, force, or threats. The movement does not have to be very far, sometimes taking a distance of mere yards. Over the years, additional acts have been deemed kidnapping by the legislature, including:

    • if, by misrepresentation, false promises, persuasion, or payment, a person gets a child under 14 years old to go to some location for the purpose of committing a lewd or lascivious act with that child, that person is guilty of kidnapping;
    • if a person uses fear, force, threats, misrepresentation, false promises, and the like to get another person to leave the state with the intent of selling that person into slavery or using that person as a slave, the person is guilty of kidnapping; and
    • if a person gets another person to leave one state through use of force, threats, misrepresentation, etc., and brings them to California, that person is guilty of kidnapping in California.
  2. What are the necessary elements to be found guilty of Kidnapping?

    To prove the defendant committed Kidnapping, the state must show that the defendant:

    1. Took, held, or detained another person through force or fear;
    2. Moved the other person a substantial distance;
    3. The victim did not consent to the movement; and
    4. Did not actually and reasonably believe the victim consented to the movement.
  3. What is the sentence / punishment for Kidnapping?

    Kidnapping is a felony and is punishable by imprisonment in the state prison for three, five, or eight years. 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 five, eight, or eleven years. Cal. Pen. Code s. 208 Opens in New Window

    A person who kidnaps for ransom or aids or abets such a kidnapping will be punished by imprisonment in the state prison for life without possibility of parole (LWOP) if the person does not suffer death, bodily harm, or is confined in such a way as to increase the risk of death or bodily harm. If no death or bodily harm comes to the victim, the sentence will be life with the possibility of parole.

    A kidnapping for the purpose of committing robbery, rape, spousal rape, oral sex, sodomy, or similar offenses is punishable by life with the possibility of parole. In this instance, however, the movement of the person must be more than merely incidental to the underlying sex act. The movement must have increased the risk to the person kidnapped.

    A kidnapping that happens during the commission of a carjacking is punishable by life with possibility of parole if the movement was substantial, increased the likelihood of harm coming to the victim, and was not merely incidental to the carjacking.

    Finally, if 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.

  4. What are possible defenses to charges of Kidnapping?

    To prove someone committed a crime, the state (through its prosecutors) must prove beyond a reasonable doubt that the defendant committed each element of the crime. Therefore, defenses to any crime start with negating one or more of the elements of the crime. Additionally, some crimes allow for “affirmative” defenses which, if the defendant can prove the defense applies, will result in a verdict of “not guilty” even if the prosecutor proves the defendant met each of the elements of the crime.

    For Kidnapping, convincing the jury that the prosecutor failed to prove beyond a reasonable doubt that the defendant moved the victim, that the victim failed to consent,, had the present ability to apply force to the victim, knew that his action could result in force being applied to another, etc. would be enough to get a not guilty verdict.

    If the prosecutor can prove all the elements of Kidnapping, however, the defendant must prove that one or more justifications for his actions existed (i.e., it is the defendant’s burden to prove an affirmative defense). For Kidnapping, some of these justifications include:

    • Self-defense;
    • Defense of another;
    • Alibi;
    • Duress / Threats;
    • Necessity;
    • Accident;
    • Entrapment; and
    • Statute of Limitations.
See also, False Imprisonment.