Kidnapping Law & Defense
California Penal Code 207 & 209
Information on the crime of kidnapping is found at penal code sections 207, and 209. This article is intended to serve as a an overview of the law, the punishment, and the defenses that apply to California kidnapping laws.
The most common kidnapping laws include:
PC 207(a): 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 (PC 207(a)).
PC 207(b): Every person, who for the purpose of committing any act defined in Section 288 (lewd and Lascivious acts on a minor), hires, persuades, entices, decoys, or seduces, by 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 (PC 207(b)).
PC 207(c): 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 (PC 207(c)).
PC 207(e): For purposes of kidnapping crimes 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 (PC 207(e)).
PC 209(a): Any person who seizes, confines, entices, decoys, abducts, conceals, kidnaps or carries away another person by any means whatsoever with intent to hold or detain, or who holds or detains, that person for ransom, reward or to commit extortion or to exact from another person any money or valuable thing, or any person who aids or abets any such act, is guilty of a kidnapping (PC 209(a)).
PC 209(b)(1): 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.
PC 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.
In sum, most kidnapping charges require the prosecutor must prove that:
- The defendant took, held, or detained another person by using force or by instilling reasonable fear and without the other person's consent.
- If the defendant moved the other person, the distance must be a substantial distance. If the defendant held another person in place by force or fear than greater risk of harm must have accompanied the restraint.
- When the defendant is accused of committing kidnapping to commit a further felony, such as a sex crime, the defendant is usually charged with the more serious kidnapping charges found in PC 209.
Kidnapping is a felony in the state of California and is punishable for up to 8 years in the state prison. If the person kidnapped is under the age of 14 at the time of the commission of the crime, the kidnapping is punishable by imprisonment in the state prison by up to 11 years.
In addition to any jail or prison sentencing, criminal convictions in general can lead to other severe consequences such as: Immigration issues (non-U.S. citizens), fines, lawsuits, employment loss, and a firearm prohibition for life.
Defense to Kidnapping PC 207, & 209
- Consent: Consent is an absolute defense to kidnapping crimes. Even a good faith belief that another person consented is a defense; however, minors do not have the capacity to consent to sex crimes (PC 207 & 209).
- Mistake of Fact: Mistake of fact as to another person's consent to movement or restraint is a defense to kidnapping. Also, if the defendant does not know that he or she is restraining or moving another person the defense of mistake of fact would apply.
- Statute of Limitations: There are laws that limit the time in which a prosecutor may bring a kidnapping charge. There are different statute of limitations for different kidnapping charges.
- Self-Defense and Defense of Others: A person is privileged to restrain another person or move another person without the other person's consent to protect the defendant's life or the life of his or her family.
- Necessity: In emergency situations, a defendant is privileged to use reasonable force to move or restrain a person so long as the force used does not create more risk of harm than not using the force. This is most common in cases or protecting children from imminent danger (PC 207(f)(1)).
- Coerced Confessions: In some situations, the police or private person's might obtain an involuntary confession from the defendant. Involuntary confessions may arise by use of actual threats, but more commonly, an involuntary confession comes from undue coercion.
- Insufficient Evidence: The defense of insufficient evidence to a kidnapping charge is probably the most common type of defense. It arises when, after a review of all the evidence, there is simply not enough evidence to prove the defendant guilty beyond a reasonable doubt. This mostly occurs in kidnapping cases and sex crimes cases where there is only one witness to the allegation and no further corroborating evidence such as scientific evidence or video evidence (See PC 209 Charges).
- Citizen's Arrest: If the defendant reasonably believed that the person alleging the crime of kidnapping had committed a crime and the accuser had actually committed a crime, the defense of citizen's arrest would apply (PC 834 & 837).
- Intoxication Defense: If the defendant was intoxicated by drugs or alcohol, or a combination of both, at the time of the alleged kidnapping, and the intoxication retarded the defendant's ability to form the specific intent to kidnap another person, the defense of intoxication would apply.
- Insanity: If the defendant suffered from a disease or defect of the mind such that he did not know right from wrong or was able to appreciate the nature of what he or she was doing, the defense of insanity wold be a proper defense.
Sentence & Punishment (PC 207 & 209)
The crime of kidnapping is classified as a felony. The following is a list of the most common kidnapping charges and their corresponding maximum prison sentence. Penalties beyond a possible prison sentence are also included below under collateral punishment.
PC 207(a) Kidnapping: Minimum sentence is probation (no jail or prison) and maximum sentence is 8 years in prison if found guilty.
PC 207(b) Kidnapping a minor under 14: Minimum sentence is probation (no jail or prison) and maximum sentence is 11 years in prison.
PC 207(c) Kidnapping with the intent to take a person out of the state: Minimum sentence is probation (no jail or prison) and maximum sentence is 8 years in prison.
PC 209(a) Kidnapping for ransom or reward: Minimum sentence is probation (no jail or prison) and the maximum sentence is life in prison.
PC 209(b)(1) Kidnapping for robbery or a sex offense: Minimum sentence if probation (no jail or prison) and the maximum sentence is life in prison. Also, remember that the kidnapping charge is in addition to the robbery or sex crimes offense and those charges will likely carry additional sentences.
PC 209.5(a) Kidnapping in the commission of a carjacking: Minimum sentence is probation (no jail or prison) and maximum sentence is life in prison.
Collateral punishment for PC 207 & 209:
Strike crimes: Kidnapping crimes charged under PC 207 and 209 are considered strike offenses under California Three Strikes Sentencing Law. Therefore, a criminal conviction for any kidnapping charge will lead to harsher penalties for subsequent convictions of any felony.
Reduced custody credits: In addition, PC 207 and 209 are considered violent offenses as that term is defined in California law under PC 667.5. This means that the defendant will not earn as much good time credit in prison for good behavior and the defendant will not be eligible for early release under Prop 57 (early release for rehabilitated inmates).
Immigration consequences: Kidnapping crimes charged under PC 207 and 209 are considered crimes of violence. They are also sometimes considered crimes of moral turpitude and/or aggravated felonies, as those terms are defined in United States immigration law. This means that a non-U.S. citizen defendant will likely be deported back to his or her home county after serving any prison time in the United States for kidnapping.
Professional and Occupational License: Title 16 of the California Code of Regulations gives authority to professional licensing agencies to suspend or revoke the defendant's privilege to practice in a profession upon a conviction for the crime of kidnapping. This applies to Bar, Board, and Commission members, such as doctors, dentist, lawyers, barbers, etc.
Additional penalties that accompany kidnapping criminal convictions may also include: restitution to the victim/s, loss of family law rights to children, restraining orders, fines, loss of driver's license (if the kidnapping was committed by use of a vehicle), and more.
To learn more about the crime of kidnapping, or penal codes 207 and 209, contact our criminal defense lawyers today for a free consultation. We are experienced, aggressive in defense, and have successfully defended hundreds of criminal charges, including charges of kidnapping under PC 207 and 209. Call today!
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Penal Code 207, & 209: Kidnapping Defense
- Kidnapping to Commit a Felony
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Crimes related to kidnapping: PC 207, 208, & 209
- False Imprisonment PC 236
- Kidnapping for child molestation PC 207(b), 288(a)
- Kidnapping a person incapable of consent PC 207(a)
- Kidnapping for ransom PC 209(a)
- Kidnapping for reward PC 209(a)
- Kidnapping for extortion PC 209(a)
- Kidnapping for robbery PC 209(b)(1)
- Kidnapping for rape PC 209(b)(1)
- Kidnapping for sex offense PC 209(b)(1)
- Carjacking PC 207(a), 209.5(a), 209.5(b), & 215(a)
- Human Trafficking PC 236.1
- Kidnapping PC 208(a) (alternate charge)
- Kidnapping a minor PC 208(b) (alternate charge)
Recent Kidnapping Defense Cases
- E.C. Defendant was charged with PC 209(b)(1) kidnapping in the commission of a sex offense. Defendant was also charged with various sex offenses, including sexual battery, attempted rape of a minor, false imprisonment, and more (7 charges total). Defendant faced approximately 70 years in prison and would not be eligible for parole until 40 years had been served. At trial, the prosecution introduced evidence of defendant's confession to police, along with physical evidence of bruising on alleged victim and circumstantial evidence of other physical evidence, including evidence of a struggle between the defendant and the alleged victim. Verdict, NOT GUILTY of PC 209(b)(1) and other charges after defense demonstrated the confession was coerced and the remaining evidence was insufficient evidence to prove a PC 209(b)(1) conviction. All special allegations (criminal enhancements) were found NOT TRUE by the jury. The jury returned a verdict that found the defendant guilty on much lesser crimes and the defendant was immediately released from jail.
- F.F. Defendant was charged with PC 209(b)(1) and face life in prison. At trial the defendant testified as to his earlier statements to police. The alleged victim and her mother testified that victim was held in place and molested during a visit to the defendant's home. Verdict: Jury hung on all count and district attorney offered a no-prison time probation offer that defendant accepted to avoid another trial.
- Hundreds of non-trial sex crimes successfully defended through negotiated settlements for low term or no prison (probation), including kidnapping charges of PC 207(a) and 209(b)(1).