Kidnapping is a serious offense punishable by law. If you are accused and charged with Kidnapping in Los Angeles, the courts will not be lenient, especially if it involves a minor. Therefore, it is imperative that you seek the help of an experienced defense attorney who is well-versed with Kidnapping laws.
At The Los Angeles Criminal Defense Attorney Firm, our attorneys are up for any challenge. For this reason, our defense attorney will take a look at the facts of the case and the prosecutor's evidence to know how well to represent you. We understand that Kidnapping cases carry hefty penalties and for this reason, we will put all our effort into defending you to have your charges dropped or help you attain a lesser sentence if convicted.
Definition of Kidnapping According to California Law
Kidnapping is the act of moving somebody without their consent from their original position to another distant place by the use of fear or force.
Kidnapping is a felony offense in violation of California Kidnapping laws. The laws fall under the following penal codes:
- Simple Kidnapping-Under penal code 207(a), Kidnapping is defined as stealing, or holding, detaining or arresting any person by the use of fear or force from one state and carrying them into another part of the country or another state.
- Penal code 207(b) defines Kidnapping as persuading, enticing and seducing a minor of the age of 14 and below by misrepresentation, to go out of the country or another part of the country or into another country to commit lewd acts on them.
- Under the penal code, 209(a) Kidnapping is seizing, confining, detaining or carrying away a person by whichever means to hold or detain them for ransom, reward or extortion for money or any other valuables.
- Aggravated Kidnapping under Penal Code 209(b): defines Kidnapping as acts of moving a person to a new place for committing rape, robbery, sodomy, spousal rape, or oral copulation.
Arrest Process in a Kidnapping Charge.
An arrest for a Kidnapping charge will happen if you are caught in the act of Kidnapping or if the police have probable cause to believe that you were involved in Kidnapping or if the court issued a warrant for your arrest. An arrest involves the police taking you into their custody.
During an arrest, the police may choose to read you the Miranda warning, which is based on the fifth amendment. The fifth amendment protects against self-incrimination.
The rights include:
- The right to stay silent
- If you choose to talk about anything you say can be used against you in a court of law
- The right to have an attorney present for any questioning
- If you cannot afford a lawyer, the government will give one for you
- If you choose to waive the right to remain silent and talk, whatever you say will be used against you in court as evidence
- However, the arresting officer doesn’t necessarily have to read the Miranda warning for you; nonetheless, he/she will tell you of your rights before interrogating you
During the arrest, the police will frisk you to check for any weapons or drugs then put you in handcuffs. The law warns against the use of excessive force when making an arrest. The arresting officer is only allowed to use the least amount of force, but if you try to resist, the police can then use more force. However, if you feel that the police used excessive force when arresting you, you can ask for an attorney’s help. Once in police custody, you will be taken to the police station for booking.
Legal Defenses in Kidnapping Charge
A good defense strategy will decide whether you get convicted or acquitted. If you are charged with Kidnapping, your defense attorney will use the following defenses to argue your case in court.
Consent
Consent as a legal defense worse when you have a reason to believe that the victim is okay with you moving from one place to the other. Your attorney will argue that you acted in good faith and that you are not guilty of Kidnapping.
Another way that consent works is when the victim agreed to move with you from one place to another distant place. Your defense attorney can argue that there was no use of force or fear to persuade the victim to move.
Not Enough Movement to Count as a Kidnapping
One of the major elements of Kidnapping is moving the victim “substantial distance.” Your defense attorney can argue that the distance you moved a victim is too short to count as a Kidnapping. For this reason, the court will not find you guilty of Kidnapping.
False Accusations
Your defense attorney may argue; you did not commit the alleged crime but are just a victim of false accusations. In trying to taint your reputation or get back at you for something, the victim may lie that you kidnapped him/her. Your defense attorney will give evidence to show that you are not guilty. The evidence includes phone records to show that the victim did not even attempt to call for help and witness testimonies to show that the victim was not kidnapped.
Parental Rights
You cannot be prosecuted for Kidnapping if you were traveling with your child to a different place. However, if the intent was to engage in criminal activities, this defense will not apply. Nevertheless, if the other parent was not aware of the move, you might be charged with depriving the other parent of custody in violation of Penal Code 278.5 PC.
You Were Present but Not the Actual Kidnapper
Your defense attorney may argue that even though you were present at the scene of the Kidnapping, you didn’t take part in it. You were not aware of the kidnapper's plans to commit the crime. However, you will be found guilty of aiding and abetting if you knew about the plans of the kidnapper but failed to tell the authorities.
Affirmative Defenses
Your defense attorney may also recommend you to consider affirmative defenses as a way of arguing your case. Affirmative defenses as a defense won’t necessarily get you an acquittal, but you will get lesser sentences or charges. By affirmative defenses, you will argue that you were justified to kidnap the victim. Your argument will be, you presumed the victim to be in danger, so to stop it, you decided to move the victim to a new place.
Elements of Kidnapping
In a Kidnapping case, the burden of proof rests with the prosecutor. The prosecutor must give evidence beyond a reasonable doubt that the defendant is guilty of the charges brought against them.
Lack of Consent
For you to be convicted for Kidnapping, the prosecutor must prove that you took the victim without his/her permission. The prosecutor will give evidence that the victim attempted to put a fight or scream. The evidence can include a phone call to the 911 emergency contact or any available witness testimony.
Force
For the jury to find you guilty, the prosecutor must give proof that you used physical force to kidnap the victim/victims. The evidence includes threatening to harm the victim or someone close to her if she does not comply. The prosecutor may also give evidence to show that you restrained the victim before Kidnapping.
Moving the Victim, a significant Distance
The prosecutor will give evidence to show that you moved the victim from one scene to a different further scene.
The following factors are considered when determining whether the distance was substantial:
- The distance between the departure point and the final destination
- Whether moving the victim at that distance increased the chances of them getting injured or harmed by the defendant
- Whether there was a likelihood of the defendant not getting caught because of the distance moved
Penalties for Kidnapping
If convicted for Kidnapping in California, you will get severe penalties. A conviction can get you at least 8 years in state prison. Nevertheless, if the victim is a minor, the consequences are dire. Simple Kidnapping in violation of penal code 207 and 208, is a felony in California.
The penalties are:
- Up to eight years in state prison and a $10000 fine
- For aggravated Kidnapping, you will get a jail term of up to 11 years if the child is a minor or a life imprisonment
If you are guilty of Kidnapping the victim for the purpose of committing rape, reward/ransom, or extortion, you will get life imprisonment with the possibility of parole. However, if the victim suffered any bodily injuries or death, you will be imprisoned for life without parole.
Criminal Court Process
The criminal court process begins when the suspect is arraigned in court for the Kidnapping charge.
Arraignment
Arraignment is the first court appearance for the accused. The following things take places during an arraignment:
- The judge informs you of the charges brought against you by the prosecutor. The judge will read aloud the charges before the court.
- The judge informs you of your constitutional rights. The rights which fall under the sixth amendment include:
- The right to a speedy trial
- The right to confront al the witnesses giving out testimonies against you
- The right to know the nature of the charges brought against you
- The right to have an attorney
- The right to be tried by a jury of your peers
- The judge will also ask you to enter a plea. There are three types of pleas to which a defendant can take: A guilty plea, a not guilty plea and the no contest.
Discovery
Discovery involves the prosecution team disclosing any relevant facts concerning the case to the defense team to prevent any surprises in court.
There are three types of discovery:
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Written discovery/ Interrogatories
Interrogatories are written questions that require written answers under oath. The questions are about the witnesses and their intended testimonies.
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Depositions
Depositions allow for either defense or prosecution team to ask the witnesses questions under oath.
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Document Production
Document production involves providing any relevant documents related to the case. The documents asked are usually voluminous, and they include emails, medical report, financial statements, etc.
Plea Bargaining
Plea bargaining involves the defendant and the prosecutor. For a shorter sentence or reduction in the charges, a defendant may plead guilty for crimes brought against them. However, a defendant can only plead guilty of he/she is guilty of the crimes.
Preliminary Hearing
If the defendant chooses to enter a guilty plea, the court will hold a preliminary hearing. The prosecutor will show the court that there is enough evidence beyond a reasonable doubt to take the case to trial.
The preliminary hearing is a small trial because there are witness testimonies, and the prosecutor will introduce new evidence. The defense attorney can cross-examine the witness if need be but cannot oppose the use of certain evidence in a trial.
The judge will finally decide if there is enough evidence to show that the defendant is guilty of the crimes before proceeding to court. If the evidence is not enough to show the defendant’s guilt, the judge will dismiss the charges.
Pre-Trial Motions
Both the prosecutor and the defense team can file a motion requesting the judge to decide on a particular issue. There are here types of motions in pre-trial motions:
- A Motion to Dismiss the Charges - This is requested by the defense team if there is not enough evidence to prove the defendant’s guilt.
- Motion to Suppress the evidence - If there was evidence that was illegally obtained, this motion will not allow it to prevent its use in a trial.
- Motion for change of venue - This motion requests the court to hold the trial in a different place from where the charges were filed.
Trial
A trial is a series of process which involves hearing of both the prosecutors and the defense team before finally, the jury can come up with a verdict. Jury selection is held to decide the right jury for the case. Opening statements are given by both the defense and the prosecution team to give an overview of the case to the court. When presenting the case, the defense team will begin by introducing evidence and witness testimony. The defendant’s attorney will cross-examine the witnesses about his/her testimony. Closing arguments are held by both the defense and the prosecution team to ask the jury to consider the testimonies and the facts of the case before coming up with a verdict. The judge will tell the jury about the law and the process they should follow in coming up with a verdict. The last step on a trial process is jury deliberations and the announcement of the verdict. Depending on the evidence and witness testimony, the jury may find the defendant guilty or not guilty.
Post-trial Motions
If the jury finds the defendant guilty, the defense attorney may ask for a new trial, or an acquittal or to vacate the sentence by filing motions before the court.
Sentencing
After the defendant has been found guilty of the crimes, the judge will tell the defendant of the sentence. The judge will pronounce the sentence of the crimes he committed.
Appeal
The defendant may decide to appeal if he/she believes there was an error in the verdict given or if he believes the sentence is severe.
Crimes Related to Kidnapping
Deprivation of Child Custody Under Penal Code 278.5 PC
Deprivation of child custody is a wobble offense meaning it is charged as either a misdemeanor or a felony.
It is unlawful to deny a parent the right to child custody. If you take the child and hide them from the other parent, the law will find you guilty of deprivation of child custody.
If you are a parent without the right to custody but choose to take the child away from its legal guardian, you will also be prosecuted for Kidnapping and the deprivation of child custody.
Child Abduction Under Penal Code 278 PC
In California, child abduction is a wobbler offense which is charged as either a misdemeanor or a felony. It is illegal to maliciously take a child for keeping them away from the legal guardian. If caught, you will be charged with both child abduction and Kidnapping. A conviction will get you a jail term of both Kidnapping and child abduction.
False Imprisonment Under Penal Code 236
Alongside Kidnapping, the prosecutor may charge you with false imprisonment, which is the unlawful detaining a person without their consent. False imprisonment is a wobbler offense in California. It’s also regarded as a lesser offense if charged alongside Kidnapping.
If the prosecuting officer is unable to find enough evidence to prove that you are guilty of Kidnapping, he may charge you with false imprisonment. Therefore, you get a lesser sentence which includes a jail term of up to 3 years.
Kidnapping During Carjacking
It is unlawful to kidnap someone during the commissioning of carjacking under the California penal code 209.5 PC. The prosecutor will prove that the elements of the crime Kidnapping were present in the act of carjacking.
If you moved a substantial distance, which caused the victim to fear for his/her safety, the prosecutor will charge you with Kidnapping alongside carjacking.
Sentence Enhancements
Prior Convictions
A person’s criminal history can worsen his/her present sentences. California has a Three Strike Law that requires the defendant to be sentenced for twice the term in state prison when he/she has prior felony convictions.
Use of Weapons
Using a weapon in the commission of a crime can increase the penalties of a crime. A prosecutor may argue that the weapons used put the victim and the public in danger.
Gang Crime
California gang enhancement laws make it a crime for individuals to participate in gang activities, particularly street gang. Gang enhancement increases the penalties for offenses committed in relation to street gangs.
Hate Crime
When a criminal targets a specific group of people because of race, sexual orientation, or political affiliation, etc. the law permits a sentence enhancement for that particular crime.
Frequently Asked Questions for a Kidnapping Crime
What is a Three Strike Law?
The Three Strike Laws in California increases the punishment for people convicted of other felony crimes.
What is Aggravated Kidnapping?
Aggravated Kidnapping involves moving/detaining/taking a victim from an original place to a different state or part of the country for the purpose of committing another crime. The prosecutor must show evidence that the suspect had intentions of committing other crimes during the Kidnapping.
Will I Be Convicted if I Was Not Aware That I Was Kidnapping?
Yes. Ignorance is not a defense in criminal court. The crime of Kidnapping is obviously a crime that the law expects you to know.
What is a Sentence Enhancement?
Sentence enhancement is factors that increase a defendant’s sentence beyond the norm. Some of the factors include weapons, prior convictions, etc.
When Should I Call an Attorney for Kidnapping Charge?
Immediately. It is never too early to have an attorney when you have been charged or arrested for a crime. A defense attorney will protect you from unauthorized searches or interrogations which can incriminate you.
Can a Parent Be Charged with Kidnapping?
Yes. A parent is charged with Kidnapping if he/she has no legal custody over a child but chooses to take the kid away from the other parent. In violation of Penal Code 278.5 PC which warns against depriving the other parent of custody, you will be prosecuted for Kidnapping if the other parent was not aware of the move.
Find a Defense Attorney Near Me
Getting arrested or charged with a serious crime like Kidnapping is devastating, especially when you don’t know what to do. Kidnapping carries hefty penalties, mainly if you have prior convictions. For this reason, it is critical that your defense attorney is well versed with the law on Kidnapping.
If you are in California, you can call The Los Angeles Criminal Defense Attorney at 310-564-2605. Our attorneys will give you the best defense team that will expertly represent you to make sure that you don’t face hefty penalties.
