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California Penal Code § [Section] 207(a) – Kidnapping

California Penal Code § [Section] 207(a) – Kidnapping

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California Penal Code [CPC] §207(a)Kidnapping – Penal Code Section 207(a) makes it illegal to take someone, by means of force or fear, into any other California county, or any other state, or country. Taking someone to a place inside the same county is also made illegal. In fact, simply detaining or arresting someone without having the right also qualifies as kidnapping under this Section.

Kidnapping under §207(a) is punishable by a term of up to eight years in a state prison, a fine of up to $10,000, or both imprisonment and a fine. In addition, since Kidnapping is considered a “serious felony,” conviction is counted as a “strike” on your criminal record. If you accrue three such “strikes,” you will be sentenced to at least twenty-five years in a state prison.

What Does California Penal Code §207(a) [Kidnapping] Prohibit?

In sum, to be guilty of Kidnapping under CPC §207(a), the prosecution must prove that:

  • You took or held someone through force or fear; AND,
  • You moved, or made the person move, a substantial distance; AND,
  • The other person didn't consent; AND,
  • You didn't actually believe the person consented.

Defining “Kidnapping” Under California Penal Code §207(a)

To convict you under CPC §207(a), the prosecution must prove the following beyond a reasonable doubt:

  • Took…/Using Force/Instilling Fear: You took, held, or detained another person by using force[1] or instilling reasonable fear; AND,
  • Moved/Made Person Move: You moved the person, or made the person move, a substantial distance;[2] AND,
  • Person Did Not Consent: The other person did not consent[3] to the movement; AND,
  • Did Not Believe/Consented: You did not actually and reasonably believe that the person consented[4] to movement.

Note: “Consent may be withdrawn. If, at first, a person agreed to go with [ ] [you], that consent ended if the person changed his or her mind and no longer freely and voluntarily agreed to go with or be moved by [ ] [you].” You are “guilty of kidnapping if after the other person withdrew consent,” you committed the act.[5]  

Example: Defendant Dario opens a residential window, creeps five feet to infant Victim Victor's crib, takes Victor and descends the ten-foot ladder he used to get into the second floor bedroom. However, realizing that Neighbor saw him, Dario stuffs Victor into a nearby bush and flees.[6] Neighbor reports Dario. Police arrest him that night. Dario is charged under CPC §207(a) but insists that he didn't take Victor far enough to constitute a “substantial distance.” Will Dario be convicted of the accusation?

Conclusion: Dario used enough force to move infant Victor from his bedroom, through a window, and down a ten-foot ladder. Then Dario stuffed Victor inside a bush. It isn't unreasonable to expect a jury to call this a “substantial distance,” especially considering Victor's age, and Dario's decision to take Victor from the safety of his crib only to leave him in a dangerous place. Victor couldn't have consented; Dario would've known this. The force required to kidnap Victor, finally, was only as much as was required to move the infant. These are elements of Kidnapping under CPC §207(a). Dario will likely be convicted.  

Penalties For “Kidnapping” Under CPC §207(a)

As noted previously, committing Kidnapping under Section 207(a) can result in a term of up to eight (8) years in a state prison,[7] a fine of up to $10,000, or both a fine and imprisonment.[8]

Kidnapping is also categorized as a ‘serious felony' for purposes of the state “Three Strikes” sentencing system.[9] If you are convicted of three “serious felonies,” you'll be required to serve at least twenty-five years in a state prison.[10]

Defenses To Kidnapping Under CPC §207(a)

Six common defenses against a charge of Kidnapping under Section 207(a) are:

You Didn't Move A Substantial Distance

Example:  Defendant Dee gets into a heated argument with Victim Valerie, her sister, while inside Dee's enclosed 12' x 12' garage. Dee backs Valerie across the floor and into a chair while shouting at Valerie. Valerie, terrified, escapes and calls police as soon as Dee turns her back. She reports Dee for Kidnapping. Dee is arrested and charged under CPC §207(a). Should Dee be convicted of the charge?

Conclusion: Dee moved Valerie across the garage floor and into a seat while expressing her anger. This could be construed by a jury or judge as using force to move Valerie. That Valerie, who was frightened while arguing with Dee, fled the room and reported a crime establishes that Valerie didn't consent to being moved. It also stands to reason that Dee knew Valerie didn't consent to being moved, since Valerie was backed into a chair. These are elements of the offense. But backing someone across the floor of an average-sized residential garage isn't likely enough movement to satisfy the “movement” element of the charge. Dee she should be freed because she didn't move Valerie a substantial distance.

The Other Person Consented To Moving

Example: Defendant Dean runs into his fifteen-year-old daughter, Victim Verna, on a day when she's in Ex-Wife's custody. Ex-Wife left Verna at the mall. Dean invites Verna to go with him to the beach. Verna accepts. Dean drives. But Ex-Wife only hears that Verna left with Dean after she goes to pick up Verna and, panicked, ends up asking mall security what happened. Ex-Wife assumes Dean somehow forced Verna to leave and reports him. Dean is arrested and charged under §207(a). Should Dean be convicted?

Conclusion: Dean, at minimum, took Verna from one place inside a California county to another place inside the same county. This is an element of Kidnapping. He also moved Verna by driving her to the beach. But Verna was Dean's daughter, a fact which suggests strongly that there might be consent to traveling with Dean - and Verna, as the facts make clear, actually freely consented to going with her father. Thus Dean should be acquitted because the other person consented to moving.    

You Weren't The Actual Kidnapper

Example: Girlfriend drives boyfriend Defendant Danny across county lines to pick up Victim Van, Girlfriend's five-year-old son, from Ex-Husband. Girlfriend has custody of Van for the day. They take Van to an amusement park and Girlfriend drives them all back to Ex-Husband's house at the end of the day. But, just as they arrive at the house, Girlfriend announces that she's “not letting Van go back with him” and drives away at top speed. Danny is horrified. He tries to convince her to turn back but Girlfriend will hear none of it. Ex-Husband witnesses the abduction and has both Girlfriend and Danny arrested for Kidnapping under CPC §207(a). Danny insists that, even though he was present, he had nothing to do with the crime. Is Danny guilty?  

Conclusion: Girlfriend took Van using force (i.e., the force necessary to take Van from Ex-Husband, who had the legal right to custody of Van at the end of the day). Van, who was only five, didn't consent to being moved. Nor could Van have stopped his adult mother from driving the car. Van's mother would've known these things. These facts establish the prima facie elements of a Kidnapping charge – but against Girlfriend, not Danny. Danny was actually as much a kidnapping victim as Van. Neither Van nor Danny consented to being moved; Girlfriend moved them because she wanted to take Van. Danny tried to get her to turn around and failed. Danny simply did not aid or abet Girlfriend or conspire to commit the crime. While Girlfriend is guilty, Danny should be acquitted because he wasn't the actual kidnapper.  

The Evidence Is Insufficient

Example: Defendant Dickie is accused by Ex-Husband of taking their daughter, fourteen-year-old Victim Vanya, to a park for the day without his permission. Ex-Husband has custody of Vanya and insists that Dickie kidnapped Vanya. But Vanya will not testify to this. Then Ex-Husband tries to find an eyewitness who can establish that Dickie and Vanya were together on the day in question. He fails in the effort. Ex-Husband finally goes as far as seeking photographic evidence that Dickie was with Vanya by paying for a copy of store camera footage recorded near Dickie's home on that day. Still he finds no proof. But Ex-Husband has Dickie arrested and charged for Kidnapping under §207(a) anyway because he feels certain that Dickie illegally took Vanya. Dickie insists that he's innocent. Should he be acquitted or convicted?

Conclusion: The principal element of the crime of Kidnapping is moving a person. Absent proof of actual movement it's impossible to be convicted, just as it's impossible to be convicted of Murder without an actual human death. Turning to the facts, Ex-Husband failed in every meaningful way to generate proof that Dickie kidnapped Vanya. Vanya would not testify that she went with Dickie. No one witnessed the pair together. The facts refer to no photographic or related evidence proving that Dickie was illegally with Vanya. Thus there's no objective means of establishing the act for which Dickie would be punished. To do this would serve as a serious violation of Dickie's constitutional rights. Therefore, since the court must find for the defendant whenever any element of a crime can't be established in any charge, Dickie must be acquitted. The evidence is insufficient that the crime was committed.    

You Had The Legal Right To Move The Person

Example:  Defendant Dominguez, who lives in a city plagued by a recent string of homicides, is washing his car one evening when he hears a shout and the pounding of feet. He looks up to find Victim Vladimir running in his direction. A small group of Neighbors appears, running, almost immediately after that. One of the Neighbors yells “That guy just murdered an old lady!” as she points at Vladimir.[11] Hearing this, Dominguez hides behind his opened car door and waits for Vladimir to pass, at which point he tackles Vladimir and holds Vladimir's hands behind Vladimir's back until he can push Vladimir into the back seat of his car. Dominguez drives the female Neighbor who made the accusation and Vladimir to the police station. The Neighbor presses Murder charges against Vladimir - while Vladimir charges Dominguez with Kidnapping under CPC §207(a). Dominguez says he had the right to arrest Vladimir; Vladimir says Dominguez, who's not police, had no right to take him anywhere. Which man is correct?

Conclusion: While Vladimir is correct, in that Dominguez, who's not a police officer, has no formal arrest power, Dominguez is permitted as a citizen to arrest Vladimir under these circumstances. Penal Code §837,[12] an exception to §207(a),[13] permits a non-officer to arrest someone when a felony crime has in  fact been committed and the citizen performing the arrest has reasonable cause to believe that a crime occurred. (Citizens mustn't use lethal force unless it's necessary in self-defense or defense of another person.) Dominguez tackled Vladimir after observing Vladimir running from a group of people, one of whom identified Vladimir as the recent killer of an elderly woman. These facts could reasonably support believing that Vladimir had committed a felony. Dominguez also lived in a community in which a number of people had been killed recently, a fact which could reasonably suggest at the time that a homicide had actually occurred. Dominguez then took Vladimir directly to the police station, meaning that he didn't exceed the scope of his limited arrest privilege by taking a detour to satisfy his own interests or amusement; he moved Vladimir as far as was needed to submit Vladimir to police custody. Dominguez is, therefore, correct. He is not guilty because he had the legal right to move Vladimir.          

The Accusation Is False

Example: Defendant Denise is at work when law enforcement arrives and arrests her for kidnapping her daughter, Victim Veronica, an hour prior. But Denise has been at work the last several hours and her co-workers can attest to the fact. She immediately suspects that Ex-Husband lied to police in an effort to get custody of Veronica. (Denise is correct; Veronica was later found to have been in class at Elementary School the whole time, exactly as she should've been. This was surely his most desperate scheme of all.) Denise pleads innocence after being charged under §207(a). Should she be convicted on these facts?

Conclusion: Denise, as the facts make clear, was at work when the alleged crime occurred. She has witnesses who can confirm it. Her daughter was also discovered where she was expected to be – unmoved, in other words. Thus she didn't take Veronica. But, most important of all, the facts make it clear that Ex-Husband simply created a story in an effort to pry Veronica from Denise's custody. Denise, therefore, should not be convicted of Kidnapping under CPC §207(a) because the accusation is false.   

Related Offenses

Note: The crimes below are described as “related” because they're frequently charged with CPC §207(a) and/or have common elements that the prosecutor must prove beyond a reasonable doubt.

The California Penal Code contains several offenses related to Kidnapping: Kidnapping During Carjacking (CPC §209.5(a)), Kidnapping For Ransom, Reward Or Extortion (CPC §209(a)), Posing As A Kidnapper (CPC §210), Taking A Hostage [False Imprisonment ] (CPC §210.5), Felony False Imprisonment (CPC §236), Child Abduction Without Right To Custody (CPC §278), Child Abduction By Depriving Right To Custody Or Visitation (CPC §278.5(a)), and Kidnapping For Child Molestation (CPC §207(b)).

Kidnapping During Carjacking

Kidnapping During Carjacking (CPC §209.5(a)) occurs when a person committing a Carjacking kidnaps someone using force or fear as part of the offense. You must move the victim a substantial distance and the distance moved must actually increase the risk to the victim to violate this Code section.[14] The victim couldn't have consented and you could not reasonably have believed that the victim consented if you're to be convicted under CPC §209.5(a).

If you're convicted of Kidnapping During Carjacking, the penalty may be:

  • A term of life with the possibility of parole in a state prison;[15] OR,
  • A fine of up $10,000 (ten-thousand dollars); OR,
  • Both a fine and imprisonment.[16]

Note: “The person moved cannot be one of the carjackers.”[17]

More information can be found in the California Kidnapping Defense Lawyers section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer – and that's guaranteed.

California Criminal Jury Instructions – Kidnapping During Carjacking

To convict you under CPC §209.5(a), the prosecution must prove the following beyond a reasonable doubt:

You took, held, or detained another person using force or reasonable fear while committing Carjacking. You also moved the other person, or made the person move, a substantial distance from the carjacking as part of completing the carjacking, or helping yourself escape, or preventing the person from sounding an alarm. The person moved wasn't one of the carjackers, if more than one was involved, and the other person didn't consent to being moved. Finally, you didn't actually and reasonably believe that the other person consented to the movement.

Example: Defendant Devon approaches Victim Vinton's driveway while Vinton is sitting in his SUV. He brandishes a gun and instructs Vinton to get out, which Vinton does. Then he orders Vinton to go inside his house, twenty feet away, which he does. Devon takes the vehicle in the meantime. Vinton reports the crime. Devon is arrested behind the wheel and charged under §209.5(a). Should he be convicted?

Conclusion: Devon committed a Carjacking by forcing Vinton from the SUV and taking the vehicle with the intent of keeping it. This is a crime in itself. To commit the additional crime of Kidnapping During Carjacking, therefore, requires more. This is why Penal Code Section 209.5(a) requires that the victim be moved a substantial distance that increases the risk over and above the Carjacking itself. But, turning to the facts, we find that Vinton moved twenty feet into his house. This is very debatably a “substantial distance.” The true problem for prosecutors would be that Vinton was moved to the safety of his own home, which would almost certainly appear to make Vinton no less safe than the Carjacking itself. Therefore, while Devon is criminally liable for Carjacking, he should not be convicted of Kidnapping During Carjacking.   

Kidnapping For Ransom, Reward Or Extortion

Kidnapping For Ransom, Reward Or Extortion (CPC §209(a)) occurs if a person is kidnapped for money or anything of value. Subpart (a) of Section 209 can be violated by actually being the kidnapper or by simply aiding and abetting a kidnapper.[18] But you must increase the risk to the victim and move the victim a substantial distance to violate the law.[19]

If you're convicted of Kidnapping For Ransom, Reward Or Extortion and the victim is seriously injured or killed (or confined in a way substantially increasing the likelihood of bodily harm or death), the penalty may be:

  • A term of life in a state prison without the possibility of parole;[20] OR,
  • A fine of up $10,000 (ten-thousand dollars); OR,
  • Both a fine and imprisonment.[21]

Note:  “Bodily harm means any substantial physical injury resulting from the use of force that is more than the force necessary to commit kidnapping.”[22]

More information can be found in the California Kidnapping Defense Lawyers section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer – and that's always a guarantee.

California Criminal Jury Instructions - Kidnapping For Ransom, Reward Or Extortion

To convict you under CPC §209(a), the prosecution must prove the following beyond a reasonable doubt:

You kidnapped, held, detained, or intended to hold or detain, another person. You did so in order to get money or something valuable. The other person did not consent to being kidnapped, furthermore, and you did not actually and reasonably believe that the other person consented to being kidnapped.

Example: Defendant Donny goes to the apartment of Victim Vonnie, his former girlfriend, intending on making her give him rent money that he believes he's owed from the period in which they lived together. He confronts Vonnie inside her apartment. Donnie forces her into her bedroom and locks the door. He tells Vonnie he won't allow her to leave until she gives him the money. Vonnie only consents after insisting she wants him to leave. She reports Donny for violating §209(a) after he goes. Donny is arrested and charged with extorting money from Vonnie during a kidnapping but he insists the money has to be extorted from someone other than the kidnapping victim.[23] Should Donny be convicted?

Conclusion: Donny kidnapped Vonnie by forcing Vonnie into her bedroom. Vonnie also made it clear that she didn't want Donny present in her home; thus Donny knew that Vonnie didn't consent to moving with him. The basic elements of Kidnapping are present. The next question is whether what Donny did qualifies as “Extortion.” California courts have determined that CPC §209(a) actually permits conviction for extorting money from a kidnapping victim. The movement of the victim, combined with demanding something valuable for the victim's freedom, permits charging Donny under Section 209(a) [instead of, for example, charging him with Kidnapping under §207 and Robbery under Section §211, also known as “Kidnapping For Robbery”]. “The crime of extortion (Pen. Code, § 518) does not require that the fruits of the extortion be obtained from a third party.”[24] However, to be convicted under this Section, the kidnapping must substantially increase the risk of harm to the victim, over and above the kidnapping itself. Moving Vonnie from one part of her residence to another, without more, isn't likely to be considered a “substantial distance,” nor would it increase the risk of harm to Vonnie. Therefore, even though Donny is incorrect, he still shouldn't be convicted under CPC §209(a).   

Posing As A Kidnapper

Posing As A Kidnapper (CPC §210) occurs whenever a person seeking ransom, reward, or anything else   of value, pretends to be a kidnapper, or claims to have the power to make a kidnapper release a person. Section 210 also applies to those who represent themselves as aiders and abettors in a kidnapping. The law does not, however, make it illegal to try to arrange for the release of someone you honestly believe to have been kidnapped so long as you're not involved in the kidnapping. Permissible arrangements include offering “a monetary consideration or other thing of value”[25] for the supposed victim's release.

If you're convicted of Posing As A Kidnapper, the penalty may be:

  • A term of up to four (4) years in a state prison;[26] OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both a fine and imprisonment.[27]

More information can be found in the California Kidnapping Defense Lawyers section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer. It's guaranteed.

California Criminal Jury Instructions – Posing As A Kidnapper

To convict you under CPC §210, the prosecution must prove the following beyond a reasonable doubt:

You posed as a kidnapper, represented yourself as having aided in a kidnapping, or claimed to have the power to obtain the freedom of someone who's been kidnapped in order to obtain a ransom or reward   or anything of value. You also weren't honestly trying to negotiate the release of someone you believed had been kidnapped, and you had no part in the supposed kidnapping, if you tried to negotiate the victim's release.

Example: Defendant Damian receives an email telling him that Wife has been kidnapped while abroad visiting her relatives. Fearful that Wife will be hurt because there have been several violent abductions involving Americans in the country she was visiting, he obeys the instruction in the message and refuses to inform police about the situation. Then Damian contacts the kidnappers and begins to negotiate a cash payment for Wife's release. But, unbeknownst to Damian, the message originated with police as part of a ‘sting' meant to catch people who falsely represent themselves as arranging for kidnapping victims to be released. Damian is arrested and charged under CPC §210. Should he be convicted?  

Conclusion: The police ruse in this fact pattern could be meant to ensnare someone who would claim, untruthfully, to be a kidnapper in order to take advantage of an actual kidnapping. Though a pretense, this would be a proper application of the statute. But police have instead scared an innocent man, Damian, into believing that Wife is in jeopardy. Damian's natural response was to try to protect her in any way possible – including paying a ransom to the alleged kidnappers. Luckily, CPC §210 contemplates this happening. The law permits people like Damian to negotiate honestly to secure the release of their loved ones, even if the negotiation involves paying for their freedom. Damian also wasn't involved in Wife's kidnapping (which otherwise would disqualify him from negotiating legally for her release). Therefore, since Damian wasn't involved in a kidnapping and didn't claim to have the power to release Wife if he was compensated, Damian is not responsible for Posing As A Kidnapper.

Taking A Hostage (False Imprisonment)

Penal Code Section 210.5 applies whenever a person who's been taken hostage is used as a ‘human shield' to permit another person to avoid arrest. Moving the person in a way that “substantially increases the risk of harm”[28] to him or her also qualifies as a crime under this statute.

The victim must be falsely imprisoned as defined under CPC §236. The victim must've been moved against that person's will. The crime is related to Kidnapping because CPC §210.5 can be violated while committing an offense that's also punishable under Section 207(a).      

If you're convicted of Taking A Hostage (False Imprisonment), the penalty may be:

  • A term of up to eight (8) years in a state prison;[29] OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both a fine and imprisonment.[30]

Note: Section 210.5 is punished under California's “Three Strikes” law.[31]

More information can be found in the False Imprisonment Lawyers section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call goes directly to a lawyer. It's guaranteed.

California Criminal Jury Instructions – Taking A Hostage (False Imprisonment)

To convict you under CPC §210.5, the prosecution must prove the following beyond a reasonable doubt:  

You faced imminent arrest[32] and restrained or held another person using force or threats to use force. You intended to protect yourself against arrest by restraining the person. You also made the other person stay or go somewhere against that person's will and, finally, substantially increased the risk of physical or psychological harm to the person or intended on using that person as a shield.

Example: Defendant Dee robs a liquor store. She shoots and kills Victim Vicente in the process. Police respond to an alarm call and catch Dee as she's about to escape from the store. The police shoot at Dee; she fires back. Soon she concludes that she has no means of getting to her car without using Vincente as a shield. Dee does precisely this and escapes but is apprehended a few miles from the scene. Dee is charged with crimes including violation of §210.5. She insists that she must be acquitted of False Imprisonment Of A Hostage. Is Dee correct?

Conclusion: Dee, facing imminent apprehension for committing a number of extremely serious crimes, used Vincente as a shield. This allowed her to get to her car, which she then used to escape from police. Vincente couldn't have consented; thus Dee used force to move Vincente by definition. But CPC §210.5 always requires a living victim because making the victim stay or go somewhere has to occur against the victim's will. The dead, obviously, have no will to overcome in any conventional sense. (This also means that Dee couldn't have restrained or held Vincente after his death.) Thus, while she is guilty of several crimes, Dee is correct. She should be acquitted of violating CPC §210.5.  

Felony False Imprisonment

Felony False Imprisonment (CPC §236) involves unlawfully violating “the personal liberty of another”[33] through violence or menace. “'Violence' means using physical force that is greater than the force reasonably necessary to restrain someone[ ]”; “[m]enace means a verbal or physical threat of harm.”[34] Felony False Imprisonment is essentially a form of Kidnapping that always involves using force or threat.

If you're convicted of Felony False Imprisonment, the penalty may be:

  • A term of up to three (3) years in a state prison;[35] OR;
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both a fine and imprisonment.[36]

Note: “Force is required for a finding of both misdemeanor and felony false imprisonment, while violence is only required for the felony.” Additionally, courts have identified “[t]wo categories of menace”:  threats “involving either the use of a deadly weapon,” and “verbal threats of harm.”[37]

More information can be found in the False Imprisonment Lawyers section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer. It is guaranteed.

California Criminal Jury Instructions – Felony False Imprisonment

To convict you under CPC §236, the prosecution must prove the following beyond a reasonable doubt: 

You intentionally and unlawfully confined someone, or caused that person to be confined, by violence

or through menace. You also made the other person stay or go somewhere against that person's will.

Example: Defendant Danica, a college student, wants to reunite with ex-boyfriend, Victim Vic. She goes to his dorm room late one night, enters, seizes both Vic's phone and a chair, places the chair behind the door, sits in the chair and threatens to yell loud enough to wake up the whole dorm if Vic moves her. Vic, realizing that he won't get her to leave if he doesn't humor Danica, spends two hours talking with her. He eventually convinces her that he wants to reunite. Danica lets Vic go and returns his phone. Vic immediately reports Danica for Felony False Imprisonment and has her arrested. Is Danica innocent?

Conclusion: While Danica used the force necessary to keep the door closed by placing the chair before the door and sitting in the chair, this is not “violence,” meaning force greater than that required to hold the door closed. Furthermore, while Danica's yelling late at night is something Vic wants to avoid, the threat to yell doesn't involve actual harm to Vic; thus the statement doesn't qualify as “menace” either. Thus, while Danica is liable for Misdemeanor False Imprisonment because she held Vic in his room for hours, Danica is not guilty of a Felony violation.   

Child Abduction Without Right To Custody

Child Abduction Without Right To Custody (CPC §278) occurs whenever any “person[ ] not having a right to custody” maliciously “takes, entices away, keeps, withholds, or conceals any child with the intent to detain or conceal that child from a lawful custodian[.]”[38] A “malicious” act involves intentionally doing “a wrongful act” or wrongfully doing something to “disturb, defraud, annoy, or injure someone else.” A “lawful custodian” is anyone who has the right to custody based on a provision of “the law or because of a court order.”

You “can be guilty of child abduction whether or not the child resisted or objected, and even if the child consented to go with” you. However, you can't violate this Section if you take an abandoned child. “A parent abandons a child by actually deserting the child with the intent to cut off the relationship with the child and end all parental obligations.”[39]

Since you can be prosecuted for either a Misdemeanor or a Felony, depending on the facts of your case, CPC §278 is a “wobbler”[40] offense. The crime is related to Kidnapping because Child Abduction Without Right To Custody is a form of unlawful transportation of human beings, as with Kidnapping.

If you're convicted of Child Abduction Without Right To Custody, the penalty may be:

  • A term of up to four (4) years in a state prison; OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both imprisonment and a fine.[41]

Note: “A parent has no right to physical custody if his or her parental rights were terminated by court order.”[42] Section 278 is punished under California's “Three Strikes” system.[43]

More information can be found in the California Kidnapping Defense Lawyers section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call always goes directly to a lawyer. That's guaranteed.

California Criminal Jury Instructions – Child Abduction Without Right To Custody

To convict you under CPC §278, the prosecution must prove the following beyond a reasonable doubt: 

You maliciously took or withheld a child from his or her lawful custodian. The child was under eighteen. You didn't have a right to custody of that child at the time. Finally, when you acted, you intended on detaining the child or concealing the child from the child's lawful custodian.

Example: Defendant Denton, who has been busy at work, becomes confused about which weekend he has custody of his son, Victim Vick. Denton goes to Vick's School and picks up Vick from kindergarten class on a Friday afternoon when it isn't his weekend. He takes Vick home. Ex-Wife, arriving at School, finds that Denton has taken Vick and assumes that Denton has abducted the boy. She reports Denton and has him arrested for violating CPC §278. Should Denton be convicted?    

Conclusion: Denton took Vick to his house, thereby denying Ex-Wife custody of Vick for a time. He did not have the legal right to take Vick when he acted. Vick, an elementary school student, was presumably younger than eighteen. Denton, it could be argued, intended on “detaining” Vick for purposes of the statute. However, even if the other elements are present, there's no reason to charge Denton with a “malicious” act. He didn't intend on doing something wrongful. He also didn't intend on annoying, disturbing, defrauding or injuring anyone. Denton was simply confused regarding the date. Therefore, though the other elements of the offense might be present, Denton should be acquitted of the charge.    

Child Abduction By Depriving Right To Custody Or Visitation

Child Abduction By Depriving Right To Custody Or Visitation (CPC §278.5(a)) involves taking, keeping, or concealing a child and maliciously depriving a lawful custodian of a right to custody or someone's right to visitation. A “malicious” act involves intentionally doing “a wrongful act” or wrongfully doing something to “disturb, defraud, annoy, or injure someone else.” A “lawful custodian” is anyone who has the right to custody based on a provision of “the law or because of a court order.” You “can be guilty of child abduction whether or not the child resisted or objected, and even if the child consented to go with” you.

Since you can be prosecuted for either a Misdemeanor or a Felony, depending on the facts of your case, §278.5(a) is a “wobbler”[44] offense. The crime is related to Kidnapping because both Child Abduction By Depriving Right To Custody Or Visitation and Kidnapping involve unlawful transportation of humans.

If you're convicted of Child Abduction By Depriving Right To Custody Or Visitation, the penalty may be:

  • A term of up to three (3) years in a state prison;[45] OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both imprisonment and a fine.[46]

Note: “'Visitation' means the time ordered by a court granting someone access to the child.”[47] Section 278.5(a) is punished under California's “Three Strikes” system.[48] If you get a custody order after taking someone covered by this Code Section, finally, the custody order is not a defense.[49]

More information can be found in the California Kidnapping Defense Lawyers section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer. That's guaranteed.

California Criminal Jury Instructions – Child Abduction By Depriving Right To Custody Or Visitation

To convict you under CPC §278.5(a), the prosecution must prove the following beyond a reasonable doubt: 

You took or withheld a child under the age of eighteen. You also maliciously deprived a lawful custodian of the right to custody of that child or deprived a person of a lawful right to visitation when you acted.

Example: A grandfather, Defendant Donald, is concerned about the wellbeing of Victim Vincent, his eleven-year-old grandson, whose parents recently obtained a divorce. Vincent is depressed that he now lives without Father. Donald asks Mother to allow him to take Vincent to an amusement park; Mother refuses. Then she tells him that she won't let him see Vincent anymore. Donald insists he has the right to visit Vincent. They fight until Donald, ignoring Mother once and for all, convinces Vincent to go with him. They depart for the amusement park, where they're accosted by police, and Donald is arrested and charged under CPC §278.5(a). Donald says grandfathers have visitation rights and, therefore, he has been deprived of his right to see Vincent. Should Donald be convicted or acquitted?    

Conclusion: The critical fact for resolution of Donald's problem is that California law doesn't award visitation rights to grandparents. If Donald gets to visit his grandson, it will be by agreement of Vincent's parents. But the issue hasn't been resolved in Donald's favor; he doesn't get to take Vincent because Mother withheld her consent. Donald, in response, maliciously took Vincent from Mother's rightful custody. Vincent was under eighteen at the time. These are elements of the crime. Thus, since Donald doesn't have a legal right to visitation of his grandson in this state, he should be convicted of the crime.      

Kidnapping For Child Molestation

Kidnapping For Child Molestation (CPC 207(b)) occurs whenever a person “hires, persuades, entices, decoys, or seduces” a minor under fourteen using “false promises, misrepresentations, or the like”[50] to commit any act punishable under CPC §288 [lewd or lascivious acts]. Violation of the statute requires getting the minor to leave his or her county or getting the minor to move somewhere inside the county.

If you're convicted of Kidnapping For Child Molestation, the penalty may be:

  • A term of up to eleven (11) years in state prison;[51] OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both imprisonment and a fine;[52] AND,
  • The duty to register as a Sex Offender.[53]

Note:  “[A] lewd or lascivious act is any touching of a child with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of either the perpetrator or the child. Contact with the child's bare skin or private parts is not required. Any part of the child's body or the clothes the child is wearing may be touched.”[54]

More information can be found in the California Kidnapping Defense Lawyers section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call goes directly to a lawyer. That's our guarantee.

California Criminal Jury Instructions – Kidnapping For Child Molestation

To convict you under CPC §207(b), the prosecution must prove the following beyond a reasonable doubt: 

You persuaded, hired, or seduced a child younger than fourteen to go somewhere. You intended to commit a lewd or lascivious act on the child when you did so. Finally, as a result of your conduct, the child moved, or was moved, a substantial distance.

Example: Defendant Darrell, aged twenty, gets to know thirteen-year-old Victim Velma in an Internet chatroom. Darrell convinces Velma to meet with him in person after several weeks of sexually explicit message exchange. He packs up his car and drives almost 300 miles north, inside California all the while, and arrives at Velma's house with the expectation that he'll take her to a local motel for sex. But police, who've been notified of the messages by Velma's Parents, are waiting instead. Darrell is charged with a range of crimes including §207(b) but insists he didn't kidnap for molestation purposes. Is he correct?  

Conclusion: Darrell persuaded a minor under the age of fourteen to go with him to a place inside the minor's own county. He intended on committing acts that would assuredly constitute lewd conduct when he arranged the meeting (which we can reasonably assume from the prolonged nature of the explicit message exchange and the fact that he drove such a long distance to see her). But Velma actually never moved any distance with, or for, Darrell; he was stopped by police before they could meet. Thus an element is missing from the charge. The defendant must be acquitted in the criminal courts of the United States when even a single element of a charge can't be demonstrated beyond a reasonable doubt. Darrell, it follows, is correct. He didn't commit Kidnapping For Child Molestation.[55]

What Can I Do If I'm Charged With Kidnapping?

The State of California regards Kidnapping as a serious offense. If you're charged with Kidnapping, it's essential that you retain a skilled, dedicated criminal defense attorney as soon as possible. Your rights, freedom, and livelihood are at stake.

Remember, a professional criminal defense attorney may be able to:

  • Negotiate a lesser charge in a plea bargain;
  • Reduce your sentence;
  • Or even get charges dismissed completely.

The attorneys at the Kann California Defense Group have an excellent understanding of the local courts and an extensive knowledge of California's criminal justice system. We can represent you in Ventura, Santa Clarita, Los Angeles, Encino, Pasadena and many other Southern California cities. If you or someone you know has been arrested or charged with Kidnapping, our attorneys will analyze the facts of your case and plan a defense strategy that will help you obtain the very best possible outcome.

Contact the Kann California Defense Group today to schedule your free and confidential consultation.     

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References

[1] “For purposes of those types of kidnapping requiring force, 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.” See CPC §207 (e).

[2] “Substantial distance means more than a slight or trivial distance. In deciding whether the distance was substantial, [jurors] must consider all the circumstances relating to the movement.” See California Criminal Jury Instruction 1215 (CALCRIM) (2017).  

[3] “In order to consent, a person must act freely and voluntarily and know the nature of the act.” See California Criminal Jury Instruction 1215 (CALCRIM) (2017).  

[4] “The defendant is not guilty of kidnapping if the other person consented to go with the defendant. The other person consented if he or she (1) freely and voluntarily agreed to go with or be moved by the defendant, (2) was aware of the movement, and (3) had sufficient maturity and understanding to choose to go with the defendant. The People have the burden of proving beyond a reasonable doubt that the other person did not consent to go with the defendant.” See California Criminal Jury Instruction 1215 (CALCRIM) (2017).   

[5] See California Criminal Jury Instruction 1215 (CALCRIM) (2017).

[6] Fact pattern inspired by Bruno Hauptmann's 1932 abduction of twenty-month-old Charles Lindbergh, Jr. See “Lindbergh Kidnapping” at FBI History.  

[7] See CPC §208 (a).

[8] See CPC §672.

[9] See CPC §1192.7 (c) (20).

[10] See CPC §667 (e) (2) (A) (ii).

[11] Fact pattern inspired by the arrest of serial murderer Richard Ramirez. See “Richard Ramirez: Capture” at Wikipedia.org.

[12] See CPC §837 (3).

[13] See CPC §207 (f) (2).

[14] See CPC §209.5 (b).

[15] See CPC §209.5 (a).

[16] See Endnote 8.

[17] See California Criminal Jury Instructions 1204 (CALCRIM) (2017).

[18] See CPC §209 (a).

[19] See CPC §209 (c).

[20] See Endnote 18.

[21] See Endnote 8.

[22] See California Criminal Jury Instructions 1202 (CALCRIM) (2017).

[23] Fact pattern inspired by People v. Ibrahim, 19 Cal.App.4th 1692, 24 Cal. Rptr.2d 269 (Cal.Ct.App.4th (1993)).

[24] See above at 1696.

[25] See CPC §210.

[26] See above.

[27] See Endnote 8.

[28] See CPC §210.5.

[29] See above.

[30] See Endnote 8.

[31] See CPC §1170 (h).

[32] “Section 210.5 does not expressly require a threat of arrest when a perpetrator commits false imprisonment for purposes of using the person as a shield. Until the appellate courts provide more guidance, [the] instruction[s] [assume] that a threat of imminent arrest is required.” See ‘Commentary,' California Criminal Jury Instructions 1241 (CALCRIM) (2017).

[33] See CPC §236.

[34] See California Criminal Jury Instructions 1240 (CALCRIM) (2017).

[35] See CPC §18 (a).

[36] See Endnote 8.

[37] See ‘Commentary,' California Criminal Jury Instructions 1240 (CALCRIM) (2017).

[38] See CPC §278.

[39] See California Criminal Jury Instructions 1250 (CALCRIM) (2017).

[40] See “Wobbler” definition at USLegal.com.

[41] See Endnote 38.

[42] See Endnote 39.

[43] See Endnote 31.

[44] See Endnote 40.

[45] See Endnote 35.

[46] See Endnote 8.

[47] See California Criminal Jury Instructions 1251 (CALCRIM) (2017).

[48] See Endnote 31.

[49] See CPC §278.5 (c).

[50] See CPC §207 (b).

[51] See CPC §208 (b).

[52] See Endnote 8.

[53] See CPC §290 (c). [Amended (as amended by Stats. 2017, Ch. 541, Sec. 1.5) by Stats. 2018, Ch. 423, Sec. 51. (SB 1494) Effective January 1, 2019.]

[54] See California Criminal Jury Instructions 1200 (CALCRIM) (2017).

[55] This is not to say that Donnie couldn't be charged with attempting the offense. See CPC §21a.

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