Kidnapping
California law defines Kidnapping as a crime under section 207 of the Penal Code (“PC 207”). A person commits the crime of Kidnapping in California when he or she
1-Unlawfully moves someone by force or fear
2-For a “substantial distance”
3-Without that person’s consent
At a trial, the prosecution has to prove all three of these elements beyond a reasonable doubt in order for the defendant to be convicted of kidnapping. So, if a jury is convinced, after hearing all of the evidence, that the defendant moved someone for a substantial distance without that person’s consent, but did not use force or fear to do so, then the defendant would be found not guilty of kidnapping. Similarly, if the jury felt that the prosecution proved beyond a reasonable doubt that the defendant tried to move someone using force or fear, but did not move that person for a “substantial distance”, or that the alleged victim consented, then that Defendant would be found not guilty of kidnapping as well (though, depending on the circumstances of the case, the defendant might be found guilty of “attempted kidnapping”-see section on “Attempted crimes”)
Explained:
A defendant has to move someone else “by force or fear” in order to be guilty of kidnapping under California law. PC 207 says that the defendant must “take, hold, steal, detain, or arrest” and “carry” that person in order to be considered a kidnapper. However, defendant does not have to physically touch the victim in order to “move” them for the purposes of the kidnapping statute. Rather, the defendant need only cause another person to move.
Furthermore, the defendant has to use force or fear to cause the victim’s movement. For example, a defendant who points a gun at his victim, tells the victim that it is loaded, and commands the victim to walk forward with his hands up might be guilty of kidnapping even if he never touches or grabs the victim, so long as he makes the victim walk a “substantial” distance; threatening the victim with a firearm would probably be considered a type of “force or fear” used to make the victim move.
A distance is “substantial” under the kidnapping statute if it is “more than slight or trivial.” For some people, the word “kidnapping” or “kidnapper” conjures up stories of abductions where people are taken out of town and held somewhere against their will. However, a defendant need not move his victim over such great distances in order to be considered a “kidnapper” under California law. In fact, PC 207 even states that causing someone to move within the same county can be considered “kidnapping”, so long as it is done without the victim’s consent, the defendant uses force or fear, and the movement is far enough to be considered “more than slight or trivial.” A defendant who forcefully pulls someone up close probably is not a “kidnapper”, but he might become one if he continues to hold and drag someone against their will, over a greater distance.
The defendant also has to move the victim without their consent. If the alleged victim agreed in advance to the defendant forcefully moving him, then there is no kidnapping. However, if the victim only “agreed” to be moved along after the defendant already started to force him, then there probably is no consent. On the issue of consent, kidnapping is often considered a “general intent” crime. The prosecution does not have to show that the defendant intended to override the victim’s power to consent. Rather, the prosecution only has to prove, beyond a reasonable doubt, that the defendant knew or should have known that the victim would not consent or was not consenting to being forcefully moved.
PC 207 also explains some defenses to a Kidnapping charge, meaning that the law does not call for any conviction or punishment in certain circumstances.
As mentioned above, the victim’s lack of consent is an element of a kidnapping charge in California. So, if the jury has any reasonable doubt as to whether the victim did not consent, then the defendant will be found not guilty. On this issue, the defense can show that the defendant reasonably believed, in good faith, that the alleged victim consented to being moved. This is true even in cases where the victim never actually consented, but may have sent signals through language or behavior indicating that he or she consented to being moved by the defendant.
A person who forcefully moves someone else without their consent, as part of a lawful arrest, is not guilty of kidnapping. This applies not just to law enforcement but also to civilians who hold someone as part of a “citizen’s arrest”, when they rightfully believe that someone else has just committed a crime.
PC 207 also states that it is not “kidnapping” when a defendant forcefully moves child under 14 years of age in order to protect him or her “from imminent harm.”
As mentioned above, Kidnapping is always considered a felony under California law, which means that it is one of the more serious crimes that a person can be charged with.
PC 208 explains the possible punishments for kidnapping. Kidnapping is punishments by imprisonment for 3, 5, or 8 years (with 8 years being the maximum), unless the victim was under 14 years of age. In those cases, the law considers the crime to be more serious and so the defendant can be imprisoned for 5, 8, or 11 years (with 11 years being the maximum).
A court can decide to sentence a defendant to probation when he is found guilty of kidnapping, but PC 208 states that even then, the defendant must be confined in the county jail for 12 months, “except in unusual cases.” If the court feels that the case is so “unusual” and decides to impose less jail time or none at all, then it must state its reasons on the record why.
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