Kidnapping is a severe offense in California. It attracts severe penalties and consequences, which can end up affecting the offender throughout his or her lifetime. Therefore, one should seek professional legal services to reduce or dismiss their case, if possible. The LA Criminal Defense Law Firm offers the best legal assistance when it comes to violent crime cases.
Legal Definition of Kidnapping in California
Under Penal Code 207, kidnapping is the act of moving someone from one place to the other without the consent of the person, and by the use of force or fear. Kidnapping is measured depending on the extent of the crime and the circumstances of the offense. The most severe form of abduction is aggravated kidnapping. This occurs when one moves another person from one place to the other by the use of force or fraud and:
- The kidnapping victim is below the age of fourteen.
- You have held the victim for ransom.
- The kidnapping was done through carjacking.
- The victim suffered severe bodily injuries.
There are a couple of aspects that a prosecutor should prove to the court to make your prosecution credible. These facts are considered as the elements of the crime and are as follows:
You Moved Another Person
For kidnapping to be considered, the alleged offender must move another person from one point to the other, and achieve a substantial distance as well. The decision of whether the movement is significant depends on the following:
- The distance covered
- Whether or not the movement increased the risks of harm to the alleged victim
- Whether or not the movement decreased the possibility of being caught
Some of the examples that can define a substantial movement of an alleged victim include:
- Moving an alleged victim for about 30 feet from a motel room to its bathroom to rape her. In such a case, the inference would be that the movement was meant to avoid detection from your actions.
- Moving an alleged victim for about 500 feet on a dark alley by popping out of a vehicle, grabbing the driver and passengers by their shoulders, and ordering them to drive to a distant place.
- Ordering an alleged victim to move about 50 feet from a driveway by pointing a gun or holding a knife on him or her.
Please note, the court can dismiss the case from being a kidnapping based on the extent of the movement. For instance:
- if the entire movement occurred in the same room, this does not qualify as a substantial movement.
- If the action occurred within a parking lot, this does not mean that the alleged. The offender did not move the alleged victim to the point that facilitates increased harm.
Without the Consent of the Alleged Victim
The term “without the consent of the alleged victim” defines that the alleged victim probably put on a fight to resist being moved by the alleged perpetrator. Therefore, the victim did not voluntarily agree to be moved from one point to the other.
Please note, the capacity to give consent also applies to children or those who are mentally incapacitated. The mental incapacity can be as a result of extreme intoxication or mental illness.
Used Force, Fear or Fraud
The use of force, fear, or fraud is essential in defining kidnapping. The fact that you used force or fear means that you inflicted physical force on the alleged victim or threatened to inflict physical harm.
Some of the examples that explain physical force in kidnapping are:
- Restraining the alleged victim physically so that you can move him or her
- Dragging the alleged victim to a different location
- Beating the alleged victim to the point that he or she cannot resist any longer
While assessing kidnapping, fear can include the following:
- Demanding compliance of the alleged victim by showing a knife or gun to him or her
- Threatening to abuse the alleged victim physically or sexually if he or she fails to comply
- Threatening to harm a close family member of the alleged victim if he or she fails to submit to your demands
For a kidnapping to be considered valid through fraudulent actions, the action must be accompanied by the use of force or fear. Fraud usually occurs through a couple of aggravated actions such as:
- Kidnapping a child below fourteen years old to commit obscene acts, which is a violation of the Penal Code 288
- Kidnapping a person to leave the state and sell the person into involuntary servitude or slavery
- Kidnapping someone else in another state and bringing him or her to California
Fraud can be explained as a deliberate deception of another person through fake promises or misleading the alleged victim to obtain consent towards a particular action. Therefore, fraudulent consent is similar to no consent. This is because one can only consent to something that he or she is aware of.
Penalties for Kidnapping in California
Kidnapping can attract long term imprisonment and life imprisonment. Such a criminal offense is considered as a continuing g offense. This means that the offense is on continuation as long as the alleged victim is in detention. Therefore, even if the alleged offender transfers the victim from one point to the other, this remains as one instance of kidnapping.
The penalties that apply in California kidnapping differ depending on the extent of the offense. These penalties are as follows:
Simple kidnapping is considered a felony in California and carries the following sentences:
- Three, five, or eight years of California state imprisonment
- A maximum fine of $ 10,000
If one gets convicted with aggravated kidnapping, the kind of penalties that apply are:
- Imprisonment for five, eight or eleven years in the California State prison if the alleged victim’s age was below fourteen years
- Incarceration in the California State prison with the likelihood of parole based on the following:
- You asked for a ransom.
- You asked for a reward for releasing the alleged victim.
- Blackmailed other people to release the alleged victim, which is a violation of Penal Code 518.
- You committed a robbery, which is a violation of California Penal Code 211.
- You committed a variety of sex crimes such as rape, oral copulation by force, sodomy, and lewd actions with a minor.
- You were involved in a carjacking incident.
- Imprisonment for life without the likelihood of parole in the California State prison if you asked for ransom, committed extortion, or asked for a reward and:
- The victim incurred bodily injuries or died.
- You placed the alleged victim in a substantial possibility of death.
Possibility of Inclusion of “Strike” under California’s Three Strikes Law
Simple and aggravated kidnapping qualify as violent felonies or severe felonies in California, and therefore, such violations count as a possible strike under the California Three Strike Law.
Therefore, a kidnapping convict with a previous strike(s) gets a second or third strike, depending on the number of prior charges. If one has two former strikes, the offender is referred to as a third striker and ends up serving a mandatory sentence of 25 years imprisonment in California prison.
California Parole Laws
Anyone sentenced to kidnapping in California can be eligible for parole based on specific conditions, as stated above. It is vital to learn about parole to determine what you are expected to do. Here is a brief overview of California Parole laws.
For one to be eligible for parole, two factors play in place. These factors include the type of sentence that one is getting and the kind of time credit that will apply in the sentence. These factors are as follows.
A determinate sentence is a sentence that has been specified to a particular number of years. For instance, if one gets convicted to six years of imprisonment, the determinate numbers, in this case, is six.
An indeterminate sentence in California is a type of sentence that has no specific years of imprisonment. For instance, if one has been imprisoned for twenty-five years (applies in the Three Strike Law), the number of years is indeterminate.
Also, an indeterminate sentence applies if the judge orders imprisonment with the possibility of parole. In such a case, there is no definite period of incarceration, although, in most circumstances, the period that typically applies is seven years during the sentence.
Work Time Credit or Good Times
Inmates have the opportunity to earn good time credit in prison based on how they behave during their imprisonment. Initially, the credits that inmates accumulate would relieve them half their sentence until it was changed to a mandatory service of two-thirds of the sentence to decide on whether to parole or not.
Currently, the state has allowed a “day for day” credit that allows parole after one has served half the sentence. In that case, felony convicts must serve 85% of their sentence to be eligible for parole. Some of the violent felonies include kidnapping, rape, lewd actions with a minor below fourteen years, and first-degree burglary.
Although some convicts can get parole through their earning of good times or time credit, two categories of crimes do not fall eligible for such consideration. This includes murder convicts and those who have previous convictions of two or more felonies. Such convicts must serve their entire determinate sentence to be eligible for parole.
The period as to which a convict will be subjective to parole depends on the type of crime that one committed. The average parole years take three years, although others might take five or ten years. For those who are convicted of murder, their timeline is usually a lifetime.
Please note, the timeline is subjective to changes, just like anything else related to parole.
Terms and Condition for California Parole
There are certain things that one should abide by, once he or she gets placed under parole. These requirements are as follows:
- Consent to a search warrant without any particular cause
- Agreeing to specific limits provided within the county
- Register with the local authorities as a sex offender, or after being convicted with arson or drug crimes
- Compliance with certain conditions provided due to the case that one has committed. These include restrictions such as being around certain designated firearms, access to the internet, and association with gang members.
Legal Defenses for California Kidnapping Lawsuits
The fact that you have hired an attorney means that he or she must represent you in court. The success of your case is not achievable without the application of relevant legal defenses. Here are a couple of defenses that your attorney can apply in your kidnapping lawsuit.
For a kidnapping conviction to be credible, the alleged victim must be moved from one point to the other without his or her permission. However, if you can approve that the movement was made out of approval, then, in the real sense, kidnapping did not occur. It can be tricky to prove that the action was not done against the alleged victim, but if one succeeds in doing so, then the case can get dismissed.
Another vital aspect of kidnapping is the movement in a substantial distance that allows the offender to inflict harm to the alleged victim. The range should also be enough to deprive reasonable safety to the alleged victim. However, if the movement was within a short distance, possibly within the same room, that does not constitute kidnapping. In such an argument, the court might decide to dismiss the kidnapping charges and convict you with other charges that attract lesser charges.
You Were Not The Kidnapper
Sometimes a kidnapping can take place within your presence, and the blame ends up on you. This usually happens when someone gets kidnapped within your vicinity, and you end up fleeing the scene of the crime as a result of fear of any association with the criminal offense.
Please note, if the court comes into the knowledge that you were indirectly involved in the crime hence your presence in the scene of the crime, you can still be convicted with kidnapping and face the same charges as a kidnapper.
If you are a parent, you have the legal custody of your child. Therefore, you have the freedom to travel with your kid wherever you want. Therefore, if you decide to travel with your child without the consent of your spouse, you are not guilty of kidnapping if he or she tries to sue you with kidnapping.
Such circumstances do not entirely dismiss you from any charges but can reduce your kidnapping charges to charges for deprivation of the child’s custody order.
Please note, the only exception that comes along with this argument would be the intent to engage in criminal activity via employing your custody rights.
If you were accused of simple kidnapping because of hearsay allegations and without further allegations, your attorney could easily manage to defend you against such offenses. Your attorney will check whether there is any credible evidence presented against you and claim that the accusations were falsely made if there is no relevant evidence.
Your false accusation might hail from anger, jealousy, or revenge from a person such as your spouse or someone who wants to gain control over you.
Mistake of Facts
A mistake of facts is quite close to parental rights and being falsely accused as a kidnapper. However, this relies much on aspects such as your location and similarity with the actual kidnapper.
In this kind of defense, you must prove to the court that you were in a different location if you resemble the kidnapper or you are accused of being at the crime of the scene. You can achieve this by showing your credit bills, camera footage, and GPS locations.
Duress or Coercion
You probably were forced to kidnap someone else as a result of coercion or duress from another person. For instance, threats to your family or a close friend can coerce you into complying with a kidnapping.
For such an argument to be credible, you must prove to the court that you were forced to kidnap someone else as per the allegations.
Violation of Miranda Rights
During an arrest, the police officer should give the Miranda rights statements as part of your rights. If the officer does not provide these statements, this becomes a violation of your rights. This can help in the dismissal of your case.
Other than the defenses provided above, certain aspects or situations can relieve you from kidnapping charges. These aspects are written in the California kidnapping laws and make one innocent from such offenses. These aspects are as follows:
- Stealing, concealing or taking away a minor below the age of 14 to protect him or her from harm
- Placing an alleged victim under citizen’s arrest
Placing another person under citizen’s arrest happen when you:
- Prove that the other person committed a felony
- Knew that the respective person committed a crime
- Have a reasonable belief that the other person committed a felony
Crimes Related to Kidnapping in California
There are a few offenses that can be charged in connection with a kidnapping in California. These crimes are as follows:
Kidnapping During Carjacking - Penal Code 209.5
Under Penal Code 209.5, it is unlawful to kidnap a person while commissioning a carjacking. Therefore, the offense applies when:
- When there is a movement of the victim beyond a carjacking incident
- When there is a substantial movement of the alleged victim from the scene of carjacking and
- There was a risk of harm to the alleged victim due to the movement
If one gets convicted of kidnapping during a carjacking, the respective offender faces life imprisonment with chances of parole.
Kidnapping in Connection with Extortion – Penal Code 210
Under Penal Code 210, it is unlawful to blackmail or extort someone else during a kidnapping. Therefore, if one wants to get a reward, ransom or extorting money,
- One should pose as the kidnapper or someone who has aided the kidnapping of another person for this intention, or
- One should pose as an individual who will guarantee the release of the kidnapped person for this intention
If the above two aspects are satisfied, the alleged offender faces state imprisonment for two, three, or four years.
California’s False Imprisonment Law – Penal Code 236
When the prosecutor cannot prove that there was kidnapping, they can sometimes charge the offender with a lesser crime, known as false imprisonment.
Under Penal Code 236, one violates the code when he or she forcefully restrains, detains, or confines an individual without his or her consent. Since the offender does not falsely imprison the alleged victim, this situation is considered as a lesser kidnapping offense.
This kind of offense works well through a plea bargain since it attracts lesser charges compared with kidnapping. California’s false imprisonment is a wobbler, meaning that it can be charged as a wobbler or felony. A felony offense attracts a maximum of three years of imprisonment, which is lesser than life imprisonment in a kidnapping.
False Imprisonment to Protect an Individual from Arrest – Penal Code 210.5
Under Penal Code 210.5, it is unlawful to:
- Imprison an individual falsely to avoid his or her arrest
- Using another person as your “shield”
You must increase the risks of harm to the person who you are falsely imprisoning to make this crime credible. If found guilty, you will be subjected to county jail imprisonment for three, five, or eight years.
Find a Criminal Defense Law Firm Near Me
It is not easy to deal with kidnapping allegations. You should seek help from a professional criminal defense attorney to have your case dismissed or reduced. Not all attorneys within your reach can manage to offer the kind of services you need. You should find an attorney who has the experience and has established a remarkable reputation in the legal field. The LA Criminal Defense Law Firm can guarantee an excellent attorney and ensure that you get the best legal services. If you are in Los Angeles, contact us today at 310-935-1675 and talk to one of our attorneys regarding your case.