In California, the crime of Kidnapping is punished by primarily California Penal Code Sections 207-209 and Section 278.

California Penal Code § 207 states in relevant part:

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.
b) Every person, who for the purpose of committing lewd acts on a child, hires, persuades, entices, decoys, or seduces by false promises, 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.
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.
d) Every person who, being out of this state, abducts or takes by force or fraud any person contrary to the law of the place where that act is committed, and brings, sends, or conveys that person within the limits of this state, and is afterwards found within the limits thereof, is guilty of kidnapping.
e) For purposes of those types of kidnapping 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.
f) Subdivisions (a) to (d), inclusive, do not apply to any of the following:
1) To any person who steals, takes, entices away, detains, conceals, or harbors any child under the age of 14 years, if that act is taken to protect the child from danger of imminent harm.
2) To any person acting under Section 834 or 837.

California Penal Code § 208 sets forth the punishment for Kidnapping and states in relevant part:

a) Kidnapping is punishable by imprisonment in the state prison for three, five, or eight years.
b) If the person kidnapped is under 14 years of age at the time of the commission of the crime, the kidnapping is punishable by imprisonment in the state prison for 5, 8, or 11 years. This subdivision is not applicable to the taking, detaining, or concealing, of a minor child by a biological parent, a natural father, as specified in Section 7611 of the Family Code, an adoptive parent, or a person who has been granted access to the minor child by a court order.
c) In all cases in which probation is granted, the court shall, except in unusual cases where the interests of justice would best be served by a lesser penalty, require as a condition of the probation that the person be confined in the county jail for 12 months. If the court grants probation without requiring the defendant to be confined in the county jail for 12 months, it shall specify its reason or reasons for imposing a lesser penalty.

California Penal Code § 209 states in relevant part:

a) Any person who seizes, confines, inveigles, 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 felony, and upon conviction thereof, shall be punished by imprisonment in the state prison for life without possibility of parole in cases in which any person subjected to any such act suffers death or bodily harm, or is intentionally confined in a manner which exposes that person to a substantial likelihood of death, or shall be punished by imprisonment in the state prison for life with the possibility of parole in cases where no such person suffers death or bodily harm.
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.
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.
c) In all cases in which probation is granted, the court shall, except in unusual cases where the interests of justice would best be served by a lesser penalty, require as a condition of the probation that the person be confined in the county jail for 12 months. If the court grants probation without requiring the defendant to be confined in the county jail for 12 months, it shall specify its reason or reasons for imposing a lesser penalty.
d) Subdivision (b) shall not be construed to supersede or affect Section 667.61. A person may be charged with a violation of subdivision (b) and Section 667.61. However, a person may not be punished under subdivision (b) and Section 667.61 for the same act that constitutes a violation of both subdivision (b) and Section 667.61.

Penal Code Section 278 punishes instances of Parental Kidnapping and states in relevant part:

Every person, not having a right to custody, who maliciously takes, entices away, keeps, withholds, or conceals any child with the intent to detain or conceal that child from a lawful custodian shall be punished by imprisonment in a county jail not exceeding one year, a fine not exceeding one thousand dollars ($1,000), or both that fine and imprisonment, or by imprisonment in the state prison for two, three, or four years, a fine not exceeding ten thousand dollars ($10,000), or both that fine and imprisonment.

Kidnapping is extensively covered under the California Penal Code and is a very serious crime that can be committed in a number of different ways. The severity of sentencing will depend entirely on the circumstances unique to the case and the level of malice involved in the act.

In order to be convicted of kidnapping under PC § 207, the prosecution must prove each of the following elements:
1. The defendant must have used force or fear in order take or detain the victim
2. The defendant must have used force or fear in order move the victim or cause the victim to be moved a substantial distance
3. The victim did not knowingly and voluntarily consent to the detention or movement.

Broken down into its most simple elements, Kidnapping requires either force or fear by the defendant to facilitate detention and movement of the victim. If you are arrested and charged under this section, there are a number of strategies that can be implemented in your defense.

It could be that the “force” used to detain or move the alleged victim was so minimal that a reasonable person would have felt free to leave at any time. If it is alleged that “fear” was used rather than actual force, you may have a very good defense if your conduct was not sufficient to create the level of fear in a reasonable person to compel them to submit to the detention or movement. Fear from a threat made in jest that clearly could not be followed through with, given the circumstances, would not be a reasonable fear and therefore would not meet the elements of this offense.

With regards to the “detention” of the alleged victim, it may also be the case that they are not actually detained and have a reasonable method of escape. The “movement” required under this section is not so much measured in distance as it is by the totality of the circumstances in how the movement increased the level of harm to the alleged victim. For example, luring a child into a van and then driving off even as little as 15 feet will be sufficient since the increased level of potential harm to the child increased substantially from the time they were outside the van to the time they were confined within the van while it was moving. However, escorting an intoxicated friend several blocks to your home will obviously not be a kidnapping because the movement decreased the potential for harm. If there was no movement, or if the movement was negligible, a skilled and experienced defense attorney may be able to have the charges reduced to the lesser offense of false imprisonment which carries much less severe consequences. (Please See “False Imprisonment”).

Most defenses to the charge of kidnapping will be tailored around whether or not the alleged victim actually consented, or whether the defendant had a reasonable belief that they consented to the detention and movement. The prosecution will have the burden of proving beyond a reasonable that the alleged victim did not knowingly and voluntarily consent to the detention and movement. Absent a use of force, this may be a difficult burden to meet under the circumstances. The prosecution will need to rely heavily on circumstantial evidence to show that the defendant’s actions were sufficient to create fear in the alleged victim, the defendant’s actions were directed at the alleged victim to instill this fear, and that the fear was reasonable under the circumstances. Alternatively, a skilled and resourceful defense attorney will conduct extensive investigatory research into the facts of the case and history of the party’s relationship to counter with evidence of the alleged victim’s actions. It may then be apparent from an examination of the actions taken by the alleged victim that the defendant had a very reasonable belief that the alleged victim actually did consent to the detention and movement.

Ultimately any defense to a charge under this section will be heavily dependent on the facts specific to your case. Standard sentencing for kidnapping will carry 3, 5, to 8 years in state prison. However, if the victim is 14 years of age or younger, this will be punishable by up to 11 years in state prison. If the kidnapping results in great bodily injury to the victim, or is committed for purposes of rape, robbery or in the process of carjacking, the court may order a life sentence in state prison. Additionally, the crime of kidnapping is considered a violent felony and will count as a strike on your record. Thus, if you already have a strike, the sentencing for the kidnapping could be doubled, and a third strike will result in a life sentence.

A very common situation occurs when a parent, whose custodial rights have been taken away, will unlawfully remove the child from the parent whom custody was awarded. In such cases, the court will not punish the parent under PC § 207; rather the parent will be punished under PC § 278. PC § 278 is a “wobbler” which means the prosecution has the discretion to charge the offense as a misdemeanor or a felony depending on the circumstances of the case, primarily the potential harm caused to the child or legal guardian, the criminal history of the noncustodial parent, and whether they have attempted to unlawfully take the child before. A misdemeanor charge may bring up to a year in county jail and $1000 in fines, while a felony under this section may bring up to 4 years in state prison and a fine of up to $10, 000.

Given the broad range of sentencing under Penal Code § 207 and 278, if you have been arrested and charged for kidnapping, it is imperative that you contact an experienced and skilled kidnapping defense attorney in San Diego as soon as possible so that they may advise you on the best avenue to take in ensuring your liberty and rights are protected. The days following your arrest will be a crucial period which should be spent contacting the prosecution and negotiating the charges down, or possibly having the charges dismissed all together. As mentioned above, depending on how the facts are presented to the court, kidnapping can result in anywhere between 3 years and life and prison. The difference in sentencing will likely boil down to how well your attorney can articulate to the prosecution the facts specific to your case in proving your conduct does not meet the requisites necessary for kidnapping, or in the alternative that the actions you took are deserving of the maximum leniency with regards to sentencing by the court. Attorneys at the Law Office of Marc S. Kohnen have been able help many people through the difficult and delicate matters involving San Diego kidnapping charges under these sections.  If you or a loved one has been arrested and charged with kidnapping, please feel free to contact the Law Office of Marc S. Kohnen for a complimentary and confidential consultation about your options in this pressing issue.