Kidnapping

Facing Kidnapping Charges?

Kidnapping occurs when a person takes, holds, or detains another person by force or fear and moves that person to another place against his or her will. Kidnapping is one of the most serious crimes for which you or a loved one may be charged in California. It counts as a “Strike” under the California Three Strikes Law and conviction can lead to life in prison without the possibility of parole. Prosecutors take these cases very seriously and people who have been charged should take their defense just as seriously.

If you have been arrested or charged with kidnapping, you should contact Damian Siwek, an experienced Los Angeles criminal defense attorney, at DCS Defense to schedule a no-cost confidential consultation to discuss your legal options.

Kidnapping Law in California

California kidnapping laws are primarily contained in Penal Code Sections §207, §208, §209, §209.5 and §278. Each Code section refers to a different type of kidnapping. For example:

  • Simple Kidnapping (Penal Code §207) is defined as forcibly, or by any other means of instilling fear, stealing or taking or holding, detaining or arresting any person and carrying the person into another county, state or country or into another part of the same county. Simple kidnapping is a felony.
  • Aggravated Kidnapping (Penal Code §209) can refer to a number of different kidnapping situations, including kidnapping for ransom, reward or extortion, and kidnapping to commit a sex crime or robbery. Aggravated kidnapping is a felony.
  • Kidnapping During a Carjacking (Penal Code §209.5) can be charged when a person is kidnapped during the commission of a carjacking and in order to facilitate the carjacking. Kidnapping during a carjacking is a felony.
  • Extortion by Posing as a Kidnapper (Penal Code §210) can be charged when a person pretends to be a kidnapper or pretends to have some ability to obtain the release of a kidnapped person for the purpose of extorting money or something else of value. Extortion by posing as a kidnapper is a felony.
  • Parental Kidnapping (Penal Code §278) can be charged when a 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. Parental kidnappings are “wobbler” crimes, meaning they can be charged as either felonies or misdemeanors.

Under the Kidnapping law, “force” is defined as, “the actual use of physical force or threat of imminent physical harm.” Fear does not necessarily mean being afraid. It’s the state of mind where the victim “reasonably believes” that if he or she does not comply with the suspect’s demands, the victim will suffer some physical harm. Movement under the law refers to “substantial” as opposed to trivial or slight movement. There is no specific distance required for kidnapping. The movement must be under coercion.

Kidnapping Penalties

The severity of penalties associated with kidnapping convictions vary depending on the circumstances. In most cases, kidnapping is a “Strike” under California’s Three Strikes Law, as well as a serious and violent felony. Therefore, the defendant must serve at least 85% of the sentence before being eligible for release. If the defendant is subsequently charged with any felony, the sentence for that new offense will be doubled as a result of the prior kidnapping Strike conviction. After two Strikes, a third felony conviction, or Strike, could result in a sentence of 25 years to life in state prison.

Following are specific penalties for kidnapping convictions:

  • Simple Kidnapping is punishable by three (3), five (5) or eight (8) years in state prison. If the victim is under fourteen (14) years of age at the time of the crime, the kidnapping is punishable by five (5), eight (8) or eleven (11) years in state prison.
  • Aggravated Kidnapping (ransom/reward/robbery/extortion) is punishable by life in state prison with the possibility of parole. If the victim suffers bodily harm or death as a result of kidnapping, then the punishment is life in prison without the possibility of parole.
  • Extortion by Posing as a Kidnapper is punishable by two (2), three (3) or four (4) years in state prison.
  • Kidnapping During Carjacking is punishable by imprisonment in state prison for life with the possibility of parole.
  • Parental Kidnapping (child stealing) is punishable by imprisonment in a county jail not exceeding one (1) year or if charged as a felony, by imprisonment in state prison for two (2), three (3) or four (4) years.

Kidnapping Defenses

Many defenses are often possible in kidnapping cases; the most commonly used are defenses of Consent and Lack of Intent. The burden is on the prosecutor to prove that the victim did not consent and that the defendant intended to move or take the victim even though consent was not given. If the prosecution cannot prove these facts beyond a reasonable doubt, then the defendant is not guilty of kidnapping. Other defenses that can be used include:

  • Insufficient evidence
  • Mistaken identity
  • Lack of physical evidence
  • Showing that the person is legally entrusted with the custody of the kidnapped person
  • Proving that parents separated without a legal decree. If so, one may take a child from the other, even by deception or trickery, without committing kidnapping.
For aggressive and effective representation against kidnapping charges, including a free confidential consultation, contact Los Angeles criminal defense attorney Damian Siwek at DCS Defense.