San Jose Criminal Attorney Law Firm – (Violent Crimes) Kidnapping
Kidnapping is a severe crime in California categorized as a violent offense. This crime involves the illegal taking of a person from one place and taking them to a different place without their consent. While committing the crime, the perpetrator must instill fear and get the person by force. Most people assume kidnapping only happens when you take a child away. However, adults also do get kidnapped for various reasons.
When faced with kidnapping allegations, you will face felony charges, and a conviction will alter your life forever. Getting a criminal lawyer to fight these allegations is crucial for avoiding wrongful convictions or getting a more favorable outcome. At San Jose Criminal Attorney Law Firm, we are committed to ensuring our clients get an aggressive representation against these allegations.
Defining Kidnapping According to PEN 207
According to the law, kidnapping happens when an individual takes, detains, arrests, or holds another within California or transports them to another county, state, or country. This is against the consent of the person taken. Fear, intimidation, and force are used to achieve this.
If you are charged with this offense, your guilt is determined by establishing various elements of the crime. These are:
- You took, detained or held a person by use of force, fear or intimidation
- And while using the fear or coercion, you took the person from one place to another covering a significant distance and
- You had no consent to move them from themselves or another person.
According to the kidnapping laws of California, when you move an individual a significant distance, it means you covered a substantial range. In deciding how considerable a scale is, the court considers all the facts that relate to the move. These include:
- The real distance moved
- If the moved distance was not a mere incidental one to the commissioning of another offense
- Whether the range moved increased the victim’s risk of suffering psychological or physical harm
- If, because of movement, there was a danger for escape, which gave the perpetrator a chance to commit more crimes, or reduce the possibility of being found out.
Aside from simple kidnapping, as found under PEN 207, you can be charged with aggravated kidnapping. Aggravated kidnapping attracts even steeper penalties when convicted of the offense. If the following situations are applicable to your case, the prosecutor is likely to charge you with aggravated kidnapping. These include:
PEN 207(b) and 288(a) – Kidnapping to Molest a Child
If you are accused of abduction to carry out child molestation, proving the following elements are crucial:
- You convinced and enticed a minor below 14 years to go with you somewhere
- You did that intending to commit lascivious or lewd acts on the minor
- And because of your behavior, the minor went or was taken a significant distance.
This is a felony offense, and a felony conviction will result in extended prison sentences and hefty fines, as will be discussed later.
PEN 207(a) and 207(e) – Kidnapping a Minor or an Individual Incapable of Consenting
If the circumstances of the kidnapping crime, you are charged with taking a person or a child away that cannot give consent; you can be found guilty of aggravated kidnapping. This is also a felony charge attracting steep penalties if convicted. The prosecutor must prove the following facts of the crime to when seeking a guilty verdict:
- You applied force or deceived the victim. In so doing, you took the minor or the individual suffering mental impairment without their resistance
- You moved your victim a significant distance from where you found them
- You moved your victim with an unlawful purpose or for illegal reasons
These are serious allegations that must be fought aggressively to avoid a life-altering conviction. When faced with these allegations, engaging a criminal lawyer is crucial.
PEN 209(a) Kidnapping to get a Reward, for Extortion or Ransom
This is one of the most common reasons for kidnapping. If you get charged with kidnapping a person or a child to collect a ransom or reward, it is an aggravated crime. Equally, this offense gets prosecuted as a felony, and a conviction carries stiff penalties. A prosecutor must, however, prove the allegations against you by showing:
- You did take or abduct and detain another person
- You arrested or held the person, or you had intentions of detaining the person
- And you were doing that to get a reward, ransom or to extort money or a valuable thing
- And the kidnapped individual did not agree to the taking or movement
PEN 207(a), 209.5(a) and 215(a) – Kidnapping While Carjacking
When a person is planning to carjack a particular vehicle, he or she may end up kidnapping the occupants of the car. This is another form of aggravated kidnapping that you can get charged. For a guilty verdict against you, the prosecutor needs to prove specific facts of the crime. These are:
- You carried out a carjacking violation according to PEN 215(a)
- While carjacking, you detained, held or took a person by use of fear and force
- You moved or forced the individual to move a significant distance from where the carjacking took place
- You moved the individual or made them move to enable the carjacking offense or to assist you to escape
- The individual you moved or took was not an accomplice to the carjacking
- The individual never consented to the moving.
When charged with aggravated kidnapping, it means you face additional charges to those of simple abduction. This means the prosecutor will charge you with two crimes, that of simple seizure, and one of the above discussed aggravated kidnapping crimes. This means if found guilty of kidnapping a person while carjacking, you are guilty of two offenses. Therefore, you will face penalties for simple kidnapping, according to PEN 207(a) and PEN 215(a) Carjacking.
Penalties for Simple Kidnapping
As earlier stated, a kidnapping conviction carries steep penalties when found guilty. According to PEN 208(a), a kidnapping conviction can earn you eight years of state imprisonment. Additionally, if the kidnapped victim was a minor below fourteen years when the incident occurred, you face eleven years of state incarceration.
Besides these penalties, kidnapping is a violent crime in California. This means that when convicted, you get a strike according to the Three Strikes Law of California.
Aggravated Kidnapping Consequences in California
In most cases, kidnapping offenses involve aggravated circumstances. This results in many defendants of the crime getting charged with aggravated kidnapping. If you get charged with aggravated kidnapping, the penalties faced are steeper than those of simple abduction. In almost all cases, a defendant can get convicted of both the simple kidnapping crime and the aggravated one.
When you get charged with kidnapping to rob, rape, extort, receive a ransom, or any other sexual offense, you face life imprisonment with possible parole when convicted. Additionally, if you kidnapped a victim for these reasons, and in the process, the victim suffers injuries or dies, your life imprisonment will not have a parole possibility.
Even with these likely stiff penalties, the court reserves the discretion of punishing you for the crime. When convicted of kidnapping, the judge on evaluating the offense and the circumstances may sentence the defendant to formal probation. |In this case, probation means that you escape state imprisonment, but you must serve a year of county imprisonment. The judge will, however, impose specific conditions on the punishment that the defendant must adhere to. If you violate any of the probation conditions, your probation sentence can get revoked by the judge, and a prison sentence given instead.
The Three Strikes Law of California
Both aggravated and simple kidnapping in California is serious felonies categorized as violent crimes. According to the Three Strikes Law, a conviction on any of these crimes automatically earns the defendant a strike.
When you earn a strike, it means that for any subsequent felony violation, you will be a second striker. This means that instead of being sentenced to the standard penalties, your penalties will be two times those of a person committing the offense for the first time.
Another felony offense will introduce a third striker tag. In this case, regardless of your felony crime, you will serve a mandatory state imprisonment mandatory sentence of 25 years.
Sex Offender Registration
If you committed the kidnapping for sexual gratification, such as to molest a child or for rape, a conviction would require you to register as a sex offender in California for life. This is a severe consequence that affects the rest of your life. You will continuously be monitored by law enforcement officers wherever you go, and even when you move to another area.
Because registration is a lifetime requirement, the record stays with you and is accessible by any person. This means if you require a professional license to carry out your business, it is denied. Additionally, you will find it difficult to get jobs or housing with this record. Your personal life can also be affected by a potential partner seeing your history and decreasing the relationship.
In case you fail to register as required by the law, you will get charged with a criminal offense. This crime gets prosecuted as either a felony or a misdemeanor. The prosecutor will look at the seriousness of the attack that resulted in you getting ordered to register while deciding how to pursue it.
Fighting kidnapping allegations aggressively is crucial when you consider some of the consequences of a conviction. For instance, when ordered to register as a sex offender, it can devastate your loved ones and negatively impact your life. Your community where you were previously accepted will shun you, and you will feel humiliated. Irrespective of where you move to escape the stigma, the law expects you to register as an offender even then.
Legal Defenses for Kidnapping Charges
As earlier stated, kidnapping is a serious allegation and must be defended vigorously. When faced with kidnapping allegations, sitting back and letting it play out is the worst mistake you can make. Even when you are innocent of the offense, you cannot sit and assume the truth will somehow come out. You must fight to expose the lies behind the allegations and save yourself from wrongful conviction.
Having a lawyer defend you is a smart move. Your lawyer is mandated to give you the best defense possible to avoid a conviction or get you convicted on lesser charges. Your attorney will evaluate your case, the evidence against you, and carry out independent investigations into the allegations.
After studying your case, your attorney will come up with various strategies. Some of the possible and legally acceptable defenses when charged with kidnapping include:
You had consent
You could not be convicted of the crime when you had approval from the victim or a child’s caregiver if you moved them. For this defense to work, your lawyer must show the following:
- The alleged victim willingly agreed to the move
- The alleged victim knew of the move
- The alleged victim was mature enough and able to understand their choice to move with you
- In the case of a minor, the caregiver gave you consent to be with them or go with them.
There are many instances where consent is given, but a person gets accused of kidnapping. For example, your neighbor asks you to look after their three-year-old son as she goes to work. You agree, but during the day, you get an emergency that requires you to move some distance. Because you have no one else to leave the child with and you can handle the child’s crisis, you decide to take the child with you. Because you do not have the parent’s number or simply feel you don’t need to disturb them, you neglect to inform them innocently.
You take the child in your car and go with them, hoping to get done by the time their mother gets off work. Unfortunately, you get delayed more than you expected, and they cannot find you. She panics and reports that you have kidnapped their child. Under these circumstances, your lawyer will argue that you had permission to look after the child, and you could not leave them unattended. This is an acceptable defense, and you will be found innocent of the allegations.
You may have been asked by a person that knows you are going away for a weekend to take them along. You agree to that, but unknown to you, the person has not informed their family, and when unable to reach him or her, they report them missing. The person is found with you, and you get charged with kidnapping. This will be defended based on the fact that the alleged victim consented to the move.
Consent can get withdrawn just as it is given. If the alleged victim gave you permission and mid-journey decides not to go, you must let them get back. If you refuse to release them, you can get accused of kidnapping.
The Distance You Moved the Alleged Victim was not Significant
One of the primary elements in proving kidnap is showing the victim was moved over a significant distance. No exact measurement that determines a substantial range exists. In deciding if the victim moved significantly, the court will look at the circumstances of the offense. For instance, if you got into a store to rob and lock everyone in the bathroom, you cannot be charged with kidnapping, although you detained the victims.
Additionally, if you carjack a vehicle and force the driver out, you may notice a child at the back is less than a block from where the carjacking incident happened. You decide to get the child out and drive off. In such a case, you will get charged with carjacking and not kidnapping.
Mistaken identity
A kidnapping victim can mistakenly identify you as their kidnapper. Many reasons exist as to why a person can pick you by mistake. Some of the reasons for mistaken identity include:
- The victim never saw the kidnapper’s face but made out their outline and physical appearance. If you resemble the perpetrator, the victim can identify you as the person that kidnapped them
- The kidnapping incident happened in a poorly lit area, or a sack was put over the victim’s head or
- The alleged victim was intoxicated by alcohol or drugs and could not make out the kidnapper’s face.
When the victim cannot identify their assailant, they may depend on other features that make them pick the wrong person. They may say they remembered the perpetrator’s voice, their clothes, or height, among other things. These are not sure ways to identify a perpetrator, and in a police lineup, they would easily pick the wrong person.
Having an Alibi
Having an alibi is a legally acceptable defense when faced with kidnapping charges. An alibi is a person that testifies where you were during the incident. For instance, if you were at work while the kidnapping victim was taken, your boss or colleagues can be your alibi. They will testify that you were with them at work, making it impossible to have seized the alleged victim.
False Accusations
This may seem unrealistic, but a person that wants to put you in trouble can accuse you of the offense falsely. For instance, if a lady wants to punish her ex-boyfriend that left you for another woman, she can accuse them of kidnapping. With the help of a friend, she can plan her abduction and tip the police of the possible suspect. She would go ahead and plant evidence that will paint the ex-boyfriend as the kidnapper.
Your lawyer will investigate these allegations and help expose the lies by the ex-girlfriend. If this evidence is convincing, the charges against you for kidnapping will be dismissed.
Insufficient Evidence
When accused of kidnapping, the prosecutor has the burden of proof. This means the elements regarding the crime must get established beyond doubt for a conviction to be arrived at. If, for any reason, the prosecutor cannot determine the factors, it will mean he or she lacks sufficient evidence for your conviction. In this case, then, the charges against you get dropped.
To show insufficient evidence; however, your lawyer will have evaluated the allegations against you and found inconsistencies in the case.
Related Offenses to Kidnapping
When a crime is similar to kidnapping, it means it can get charged along with the kidnapping offense or instead of it. In California, several crimes get charged alongside or instead of abduction. One of these is:
PEN 236 – False Imprisonment
This is a lesser crime than kidnapping. When the prosecution lacks sufficient evidence to charge you with the crime, he or she may opt to charge you with the lesser charge of false imprisonment.
You will be found in violation of PE 236 if you detain, confide or restrain an individual without permission. You cannot be charged with kidnapping when you did not imprison or detain the supposed victim. This means that false imprisonment can be accused instead of kidnapping, depending on the circumstances of the offense.
This charge can also be arrived at by the jury or the judge if they feel the prosecutor’s case against you lacks sufficient evidence. Your lawyer can also use this offense as a plea bargain. Most of the time, when the evidence against you is secure, your lawyer can try to negotiate for a plea bargain with the prosecutor. This means you get charged with a lesser offense that carries less severe penalties compared to kidnapping.
False imprisonment is prosecuted as either a felony or a misdemeanor offense. Even when convicted on felony charges under this offense, the penalties are less than those of simple kidnapping.
Find a Criminal Lawyer Near Me
Kidnapping is one of the most severe violent crimes in California. The laws against any form of abduction are stringent and the repercussions of a conviction far-reaching. This makes it crucial when faced with kidnapping allegations to fight against a sentence or seek a lesser charge. Finding an experienced criminal lawyer is imperative when you want an aggressive defense. At San Jose Criminal Attorney Law Firm, the freedom of a defendant is at stake, and we passionately defend them against these claims. Call us at 408-622-0204 and let us fight for your freedom together.