Kidnapping
By: Darren K

Kidnapping

The felony crime of kidnapping is generally defined as the taking of a person against their will, or from the control of a parent or guardian through violence, force, threat, or intimidation. The act of kidnapping often involves other criminal offenses, such a ransom, carjacking, or robbery. It may also include a parent taking and hiding a child in violation of a court order. If the victim is injured, the punishment for the kidnapping increases.

Kidnapping

Kidnapping is defined in California Penal Code Section 207 (a), which reads:

“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.”

The distance that a person be moved, in order to constitute kidnapping, must be substantial. The term “substantial” has not been defined, but rather is determined on a case-by-case basis. The only firm guideline that the court has given is that the distance not be slight or trivial. Ultimately, the court will leave it up to the jury to determine what a substantial distance is, based upon the facts in the case.

If convicted for kidnapping, the punishment is imprisonment in the state prison for 3, 5, or 8 years.

Kidnapping for Ransom

Kidnapping for ransom is governed by Penal Code Section 209 (a), which reads:

“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.”

This crime differs from plain kidnapping in that it is not essential that the person be carried away any distance at all. Instead, the elements that must be proved are:

1. A person was ransomed.
2. The ransom of that person was done with the specific intent to hold or detain that person for ransom. [CALJIC 9.53]

The punishment for a kidnapping for ransom varies, depending on the exposure of the victim to danger, or whether death or serious injury occurs. Where the victim does not suffer bodily harm or death, the punishment is life in prison, with the possibility of parole. However, if the victim is confined in a manner which exposes that person to a substantial likelihood of death, or where they suffer death or bodily harm, the punishment is imprisonment in the state prison for life without possibility of parole.

Kidnapping to Commit Robbery

Kidnapping to commit robbery is governed by Penal Code Section 209, and is punishable by imprisonment in the state prison for life with the possibility of parole.

In order to prove this offense, the prosecutor must prove that there was a robbery and there was a kidnapping.

Robbery is the taking of personal property in the possession of another, against the will and from the person or immediate presence of that person, accomplished by means of force or fear and with the specific intent permanently to deprive the person of his or her property. CALJIC 9.54

There are two definitions of kidnapping, in regards to robbery:

Kidnapping is the unlawful movement by physical force of a person without that person’s consent for a substantial distance where the movement is not merely incidental to the commission of the robbery and where the movement substantially increases the risk of harm to the person moved, over and above that necessary present in the crime of robbery itself. CALJIC 9.54

Kidnapping is also the unlawful compulsion of another person without that person’s consent and because of a reasonable apprehension of harm, to move for a substantial distance where such movement is not merely incidental to the commission of the robbery and where the movement substantially increases the risk of harm to the person moved, over and above that necessarily present in the crime of robbery itself. CALJIC 9.54

As discussed above, kidnapping requires taking the victim a substantial distance. Case law has not clearly defined substantial distance, but cases have shown that a distance of 10 to 13 blocks, by car, is substantial and not merely incidental to the commission of the robbery.

Kidnapping During a Carjacking

Carjacking involves the taking of another person’s car against their will, with the use of force or fear, with the intent to either permanently or temporarily deprive the person of the vehicle.

In order to qualify as a kidnapping, a carjacking must involve a kidnapping, as defined above. The carjacker must move the victim a substantial distance from the vicinity of the carjacking. The further the distance, the greater the “risk of harm” to the victim, which increases the punishment for carjacking. Risk of harm refers to the increased risk that a victim may suffer significant physical injuries, over and above that of a victim of robbery alone.

Thus, the punishment for a kidnapping during a carjacking is life in prison, with the possibility of parole.

Kidnapping, Related to Child Custody Matters

The kidnapping of a child in relation to child custody matters applies whether the person has custody of the child in question or not. What is significant is who else had custody at the time of the kidnapping. A common situation is where two parents share custody, and one parent absconds with the minor child (defined as being under the age of 18), against the wishes of the other parent, then a kidnapping has taken place. Another type of
situation occurs where someone who does not have custody, such as a relative or close friend of the family, kidnaps the child against the wishes of the custodial parent or the person who had legal custody.

California Penal Code Section 277 governs child abduction by a person with a custody right. The punishment is imprisonment in the county jail up to one year and/or a fine up to $1,000 or imprisonment in the state prison for 16 months, 2, or 3 years and/or a fine up to $10,000.

California Penal Code Section 278 governs child abduction by a person without a custody right, which reads:

“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.”

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