How to Win a PC 207 Kidnapping in California Case — A Premier Criminal Defense Attorney Explains

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How to Win a PC 207 Case

Winning a Penal Code (PC) 207 case in California requires knowledge of the many legal definitions entwined in the law and knowing how to use evidence of what happened to your benefit. One of California’s award-winning kidnapping defense lawyers, Aaron Spolin, explains how to win a kidnapping case: “We use three strategies: (1) file legal motions to challenge the evidence or get the case dismissed; (2) use evidence to support our case and target the prosecutor’s allegations; and (3) present strong defenses to the jury to prove our client is not guilty.” Mr. Spolin and his team of California criminal defense attorneys have used these strategies many times with success. (Every case is unique, and prior success is not a “guarantee” of the same outcome on a future case.)

Mr. Spolin explains how his strategies work:

1. Filing Legal “Motions”: A “motion” is a request to the court. Some motions Spolin Law P.C. commonly uses before trial include a Motion to Exclude (or Suppress) Evidence and a Motion to Dismiss. These motions are based on information gathered during investigations and supported by law.
2. Using Evidence Effectively: Your CA kidnapping defense attorney will gather evidence independently as well as from the government through the discovery process. The facts obtained will be used to support motions and defenses. Your lawyer can also work to get the prosecution’s key evidence excluded, which may cause them to drop your charges altogether.
3. Presenting Strong Defenses: In a kidnapping trial, a jury will decide if you are guilty or not. Your defense attorney does not have to argue that you are innocent, but instead cast “reasonable doubt” in the minds of the jury. Spolin Law P.C. utilizes carefully crafted defenses to target the prosecution’s claims against clients.

To learn more about how these strategies can be used in your case, call Mr. Spolin at his law firm, Spolin Law P.C. at (310) 424-5816.

1. How to Win a PC 207 Case
2. Defining Kidnapping Under PC 207
3. Sentencing for Kidnapping
4. Defenses to Kidnapping Charges
5. Learn About the Leading PC 207 Defense Attorneys

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Defining Kidnapping Under PC 207

Kidnapping in California at its most basic is forcing someone to move a substantial distance without that person’s consent. It is a felony.

Under PC 207, kidnapping is:

• Stealing, taking, holding, detaining, or arresting any person in California forcibly or by instilling fear of force and carrying the person into another country, state, or county, or into another part of the same county;
• Taking, holding, detaining, or arresting any person forcibly or by instilling fear of force with a design to take the person out of California without having established a claim according to the laws of the United States or of California;
• Hiring, persuading, enticing, decoying, or seducing any person by false promises or misrepresentations to go out of California or to be taken or removed from California with the intent and purpose to sell that person into slavery or involuntary servitude, or otherwise to employ that person for his or her own use, or for the use of another without the free will and consent of that person; or
• Abducting or taking by force or fraud any person outside of California contrary to the law of the place where that act is committed and bringing, sending, or conveying that person within the limits of California.

The essence of kidnapping is using threats, restraint, or force to move another person to a secondary location, which must be a “substantial distance” from where the victim was taken.

What Is a Substantial Distance?

Substantial distance means a distance that is more than slight or trivial. What is considered substantial requires consideration of all the circumstances related to the movement of the person, including:

• The actual distance the person was moved
• Whether the move put the victim at a higher risk for harm
• Whether the move lowered the perpetrator’s risk of capture
• Whether the move allowed the perpetrator to commit further crimes

What Is Aggravated Kidnapping in California?

Aggravated kidnapping is not a separate statutory offense. The reference to aggravated kidnapping is used to specify one of the following:

• Kidnapping a child under the age of fourteen
• Kidnapping a person for the purpose of robbery, rape, spousal rape, oral copulation, sodomy, or other statutorily indicated sex crimes
• Kidnapping during a carjacking
• Kidnapping to demand ransom

These offenses carry greater penalties than simple kidnapping.

Motive for Kidnapping

The purpose for which a person kidnaps another person determines the specific charge against that person as well as the penalty imposed if the person is convicted. Kidnapping for the purposes described below is subject to increased penalties:

• Kidnapping for ransom or reward or to commit extortion or to exact from another person any money or valuable thing
• Kidnapping any person to commit robbery, rape, spousal rape, oral copulation, sodomy, carnal abuse of a child, or seduction
• Kidnapping to commit certain sex crimes with a child under fourteen
• Kidnapping while committing a carjacking

Extortion for the purposes of kidnapping means to obtain property or other consideration from another, even with the other person’s consent, or to obtain an official act by a public officer, by a wrongful use of force or fear of force or under color of official right. Consideration is anything of value, including sexual conduct or an image of an intimate body part.

Posing as a Kidnapper

Even posing as a kidnapper in California is illegal in the following circumstances:

• Posing as a kidnapper or representing oneself to be a kidnapper to obtain any ransom or reward or to extort or exact from any person any money or thing of value
• Posing as a person or representing oneself as a person who has the influence, power, or ability to obtain the release of a kidnapped person

Elements of Kidnapping that the Prosecutor Must Prove

In order to convict you of kidnapping, the prosecutor must prove that you are guilty of certain elements of the crime. They must prove these elements “beyond a reasonable doubt.” That is a high standard of proof that your kidnapping defense attorney can fight.

To prove simple kidnapping, the state must show that:

1. The defendant took, held, or detained another person by using force or by instilling fear of force;
2. Using that force or fear, the defendant moved the other person or made the other person move a substantial distance; and
3. The other person did not consent to the movement.

Kidnapping charges are often mistakenly made when they don’t match the facts of the case. If you’ve been charged with a PC 207 crime, contact Spolin Law P.C. at (310) 424-5816.

Special Circumstances in Kidnapping Cases

If special circumstances exist that make the crime of kidnapping subject to higher penalties, the state must also prove those circumstances.

Kidnapping for Ransom or Extortion. To prove this offense, the state must show that, in addition to the factors above (with the exception noted):

1. The defendant kidnapped, abducted, seized, confined, concealed, carried away, inveigled, enticed, or decoyed another person;
2. The defendant held or detained the other person or intended to hold or detain that person;
3. The defendant did so for ransom, reward, money, or other thing of value or to commit extortion;
4. The other person did not consent to being detained or held; and
5. The defendant did not actually and reasonably believe that the person consented to the detention.

For the offense of kidnapping a person for ransom, the person held or detained need not have been moved any distance.

Unlike simple kidnapping, the state must show that the defendant did not actually believe that the person consented or that any such belief, even if sincerely held, was unreasonable. If the state cannot prove this, the defendant’s reasonable belief that consent was given is a defense to kidnapping for ransom, even if the person kidnapped did not in fact consent.

Kidnapping a Child for Child Molestation in violation of PC 207(b). This offense requires the state to prove that:

1. The defendant persuaded, enticed, decoyed, or seduced by false promises or misrepresentations a child younger than fourteen years old to go somewhere;
2. The defendant intended to commit a lewd or lascivious act on the child; and
3. As a result of the defendant’s conduct, the child then moved or was moved a substantial distance.

Consent is not a defense to kidnapping a child for molestation.

Kidnapping for the Purpose of Robbery, Rape, or Other Sex Offenses in violation of PC 209(b). To prove this offense, the state must show that:

1. The defendant intended to commit robbery, rape, spousal rape, oral copulation, sodomy, or sexual penetration;
2. The defendant took, held, or detained another person by force or by instilling a reasonable fear of force;
3. The defendant moved the other person or made the other person move a substantial distance;
4. The other person was moved or made to move a distance beyond that merely incidental to the commission of the robbery or sexual offense;
5. The other person did not consent to the movement; and
6. The defendant did not actually and reasonably believe that the person consented to the movement.

Kidnapping During a Carjacking in violation of PC 207(a). Proving this offense requires the state to prove that:

1. The defendant committed a carjacking in violation of PC 215(a);
2. During the carjacking, the defendant took, held, or detained another person by using force or by instilling reasonable fear of force;
3. The defendant moved the other person or made that person move a substantial distance from the vicinity of the carjacking;
4. The defendant moved or caused the other person to move to facilitate the carjacking, to help himself or herself escape, or to prevent the other person from sounding an alarm;
5. The other person was not one of the carjackers;
6. The person did not consent to being moved; and
7. The defendant did not actually and reasonably believe that the person consented to the movement.

Kidnapping a Child for an Illegal Purpose in violation of PC 207(a) and (e). The elements of this offense are:

1. A person used physical force or deception to take and carry away an unresisting child;
2. The person moved the child a substantial distance;
3. The person moved the child with an illegal intent or for an illegal purpose; and
4. The child was under fourteen.

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.

Consent is not a defense to kidnapping a child under fourteen.

A person may be guilty of both kidnapping a child and child abduction (below). Kidnapping is a crime against the child, while abduction is a crime against the parent.

1. How to Win a PC 207 Case
2. Defining Kidnapping Under PC 207
3. Sentencing for Kidnapping
4. Defenses to Kidnapping Charges
5. Learn About the Leading PC 207 Defense Attorneys

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California Sentencing for Kidnapping

The penalty for kidnapping depends on the purpose of the kidnapping as well as the unique circumstances of the offense. A person who commits kidnapping may be punished as follows:

Simple Kidnapping

Imprisonment in the state prison for three, five, or eight years (PC 208(a)).

Kidnapping a Child Under Fourteen

Imprisonment in the state prison for five, eight, or eleven years (PC 208(b)).

Kidnapping to Commit Sex Crimes

Imprisonment in the state prison for twenty-five years to life, if a person commits rape, spousal rape, oral copulation, sodomy, a lewd or lascivious act upon a child under fourteen, or unlawful sexual penetration and kidnapping the victim of the crime substantially increased the risk of harm to the victim over and above that level of risk inherent in the underlying sex offense (PC 667.61)).

Kidnapping to commit the sex crimes of rape, spousal rape, oral copulation, sodomy, committing a lewd or lascivious act upon a child under fourteen, or unlawful sexual penetration results in imprisonment in the state prison for life with the possibility of parole (PC 209(b)(1)).

A person cannot be punished under both PC 667.61 and PC 209(b)(1).

Kidnapping to Commit Robbery

Imprisonment in the state prison for life with the possibility of parole (PC 209(b)(1)).

Kidnapping While Committing a Carjacking

If the movement of the victim increased the risk of harm to the victim over and above that necessarily present in the crime of carjacking itself, imprisonment in the state prison for life with the possibility of parole (PC 209.5(a)).

Kidnapping for Ransom or Extortion

Imprisonment in the state prison for life with the possibility of parole (PC 209(a)); or

However, if the person kidnapped suffered death or bodily harm or if the confinement exposed the person to substantial likelihood of death, imprisonment in the state prison for life without the possibility of parole (PC 209(a)).

Posing as a Kidnapper

Imprisonment for two, three or four years (PC 210).

Attempted Kidnapping

The penalty depends on the sentence imposed for the category of kidnapping attempted. Ordinarily, the punishment is one-half the penalty for a completed kidnapping. However, if the maximum sentence is life imprisonment, as it is for kidnapping for ransom or kidnapping during a carjacking, the attempted kidnapping penalty is imprisonment in the state prison for five, seven, or nine years.

Is Kidnapping a Strike Against California’s Three-Strike Rule?

Yes. A conviction for any kind of kidnapping is a strike for purposes of California’s three-strike rule.

A kidnapping conviction can result in life-altering penalties, up to life in prison. Avoid the worst by calling Spolin Law P.C. for help: (310) 424-5816.

1. How to Win a PC 207 Case
2. Defining Kidnapping Under PC 207
3. Sentencing for Kidnapping
4. Defenses to Kidnapping Charges
5. Learn About the Leading PC 207 Defense Attorneys

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Defenses to Kidnapping Charges

While kidnapping is a serious crime with serious consequences, several potent defenses to kidnapping exist.

Consent

If a person agrees to being moved a substantial distance, no kidnapping occurs.

If a person freely and voluntarily agrees to go with or be moved by another person, was aware of the movement, and had sufficient maturity and understanding to choose to go with another person, there is no kidnapping.

For certain categories of kidnapping (during a carjacking, for the purpose of committing a sex crime, and kidnapping for ransom), if a person (the alleged kidnapper) actually believes that the other person consented to the movement and the belief is reasonable under the circumstances, a charge of kidnapping fails.

Consent may be withdrawn. If a person initially consents to movement but afterwards withdraws that consent, any movement of the person after withdrawal is kidnapping.

Additionally, if the victim was suffering from a mental impairment that made him or her incapable of giving legal consent to the movement or was under fourteen, consent is not a defense.

Lack of Intent

Some of the categories of kidnapping require an element of intent, and, if that intent does not exist, no kidnapping occurs. For instance, a person who kidnaps another with the intent to extort something of value from another person may be able to defend against such a charge by establishing lack of intent to extort. Likewise, a charge of kidnapping for the purpose of committing a sex crime on a child under fourteen may be defeated by demonstrating a lack of intent to commit the sex crime.

Insubstantial or Incidental Movement

Kidnapping requires moving a person a substantial distance (except in a hostage situation). If a person moves another person against his or her will only an insubstantial or minimal distance, that person is not guilty of kidnapping. Additionally, if the movement of the person was only incidental to another crime, such as robbery, the movement may be insufficient to establish kidnapping.

Legal Justification

A police officer may, for example, transport a person to jail if the officer lawfully arrested the person. Similarly, a parent who has court-ordered custody of a child is not guilty of kidnapping or abduction for taking the child from another person.

Self-Defense or Defense of Others

If a person moves another person against his or her will to defend himself or herself or some other person from the threat of imminent bodily harm, no kidnapping occurs.

Danger of Imminent Harm to a Child

A person who “steals, takes, entices away, detains, conceals, or harbors” any child under fourteen to protect the child from danger of imminent harm is not guilty of kidnapping.

Crimes Related to Kidnapping

There are several crimes in California that are similar to kidnapping and may even be a related charge.

Child Abduction

Although not listed as a kidnapping offense, the elements of child abduction are similar to those of kidnapping. To “abduct” is to take, entice away, keep, withhold, or conceal. Proving child abduction requires showing that:

1. A person maliciously took, enticed away, kept, withheld, or concealed a child from his or her lawful custodian;
2. The child was under the age of eighteen;
3. The person did not have a right to custody of that child; and
4. The person intended to detain or conceal the child from the child’s lawful custodian.

Definitions unique to this crime include:

• Maliciously — Doing a wrongful act intentionally or with the unlawful intent to disturb, defraud, annoy, or injure someone else.
• Detain — To delay or hinder with or without force.
• Entice — To lure away by creating hope or desire.

Consent is not a defense to abduction of a child.

Child abduction is a wobbler offense and, depending on the circumstances, may be charged as a misdemeanor or a felony. The penalties are as follows:

• Misdemeanor — Imprisonment in a county jail not exceeding one year, a fine not exceeding $1,000, or both the fine and imprisonment (PC 278).
• Felony — Imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years, a fine not exceeding $10,000, or both the fine and imprisonment (PC 278).

False Imprisonment

Kidnapping requires moving a person a substantial distance without that person’s consent. If a person moves another person against their will only a slight or insubstantial distance, that person may be guilty of false imprisonment, which is a lesser included offense of kidnapping.

False imprisonment is the “unlawful violation of the personal liberty of another.” It is characterized by the intentional and unlawful restraint, detention, or confinement of a person that makes that person stay or go somewhere against that person’s will for however short a period of time or for however short a distance.

The penalty for false imprisonment depends on whether it is charged as a misdemeanor or a felony. For misdemeanor false imprisonment, the penalty is one year in the county jail, a fine of up to $1,000, or both. Felony false imprisonment, where deprivation of liberty was accomplished by violence, menace, fraud, or deceit, is punishable by imprisonment in the county jail for sixteen months, two years, or three years.

Taking a Hostage

A person who moves another person against their will may be guilty of the false-imprisonment crime of taking a hostage if the following elements are proven beyond a reasonable doubt:

1. The person faced a threat or risk of imminent arrest;
2. The person restrained, confined, or detained another person or made him or her go somewhere by force or by a threat of force;
3. The person restrained, confined, or detained another person or made him or her go somewhere for the purpose of protecting himself or herself against the threat of imminent arrest;
4. The person made another person stay or go somewhere against the person’s will; and
5. The person either substantially increased the risk of physical or psychological harm to another person or intended to use the person as a shield.

False imprisonment for the purpose of making a person a hostage includes detaining a person and making him or her stay somewhere without the person’s consent. It does not require showing that the person moved or was moved, as required in kidnapping.

If convicted of taking a hostage, a defendant faces three, five, or eight years in county jail.

Human Trafficking

The definition of kidnapping in California includes hiring, persuading, enticing, decoying, or seducing any person by false promises or misrepresentations to go out of California or to be taken or removed from California with the intent and purpose to sell that person into slavery or involuntary servitude, or otherwise to employ that person for their own use, or for the use of another without the free will and consent of that person.

Selling a person into slavery or involuntary servitude may also violate California’s false imprisonment human trafficking laws. PC 236.1 makes it unlawful to deprive someone “of their personal liberty with the intent to obtain forced labor or services from them.” Depriving someone of their personal liberty is the essence of false imprisonment. Thus, kidnapping for the purpose of forcing someone into servitude may also constitute false imprisonment human trafficking.

California law does not set a special penalty for kidnapping for the purpose of forcing involuntary servitude, so the punishment would be that for simple kidnapping: imprisonment in the state prison for three, five, or eight years. The penalty for false imprisonment human trafficking is imprisonment in the state prison for five, eight, or twelve years and a fine of not more than $500,000.

1. How to Win a PC 207 Case
2. Defining Kidnapping Under PC 207
3. Sentencing for Kidnapping
4. Defenses to Kidnapping Charges
5. Learn About the Leading PC 207 Defense Attorneys

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Learn About the Leading PC 207 Defense Attorneys

Kidnapping charges under Penal Code 207 are extremely serious and can result in devastating penalties, which could include life in prison.

Spolin P.C.’s award-winning kidnapping defense attorneys have a record of successful outcomes. We win cases because:

• We have a record of success. We get to know our clients and understand their goals. Spolin Law P.C. has developed strategies to achieve those targets and win cases.
• We know the law. We know PC 207 inside and out. We know how to use evidence to disprove the elements and motions to get the case dismissed.
• We fight for our clients. We are dedicated to doing what is best for our clients in every situation. We will negotiate with the prosecutor for one of the lesser charges to kidnapping or fight to win at trial.

If you have questions about your case, contact Mr. Spolin at his law firm, Spolin Law P.C. at (310) 424-5816.