What Is Kidnapping Under California Law? Penal Code 207 Elements, Defenses, and Penalties
The short answer: kidnapping under Penal Code section 207 is moving another person a substantial distance, without consent, by force or fear. It is a felony and a strike, it is punished by three, five, or eight years in state prison under Penal Code section 208, and it is charged far more often than most people expect, usually alongside domestic violence, robbery, or carjacking counts. The most litigated question is whether the movement was substantial, and that issue decides many cases in Riverside, San Bernardino, and Los Angeles County courtrooms. Our criminal defense practice handles these cases at the Riverside Hall of Justice, the San Bernardino Justice Center, the Victorville courthouse, and the Clara Shortridge Foltz Criminal Justice Center in downtown Los Angeles, and this guide explains what the District Attorney has to prove.
How Kidnapping Charges Arise in Southern California
Most kidnapping cases are not strangers in vans. The typical kidnapping count in the Inland Empire grows out of an argument. A couple is fighting in a car and the driver refuses to stop and let the passenger out. A parent grabs a child during a custody exchange in Moreno Valley and drives off. A robbery suspect in Ontario walks a store clerk from the register to the back office. Each of those fact patterns has produced a kidnapping charge, and each turns on the same elements.
Prosecutors add kidnapping to increase leverage. Because a kidnapping conviction is a strike under Penal Code section 667, subdivision (d), and a violent felony under Penal Code section 667.5, subdivision (c), charging it alongside a domestic violence or robbery count dramatically raises the exposure and the pressure to plead. Understanding where the count is weak is the first step in negotiating it away, which we discuss generally in What Makes a Criminal Case Weak in California.
What the Prosecutor Must Prove: The Elements of Simple Kidnapping
Every element must be proved beyond a reasonable doubt. For simple kidnapping under Penal Code section 207, subdivision (a), the jury instruction, CALCRIM 1215, requires the prosecutor to prove (1) that the defendant took, held, or detained another person by using force or by instilling reasonable fear; (2) that using that force or fear, the defendant moved the other person, or made the other person move, a substantial distance; and (3) that the other person did not consent to the movement. If the defense raises the issue, the prosecutor must also prove (4) that the defendant did not actually and reasonably believe the other person consented.
Force or fear is the first battleground. The force does not have to be violent; physically restraining someone or driving away while they demand to be let out can qualify. Fear must be reasonable under the circumstances, and threats, a displayed weapon, or a prior pattern of violence can supply it. Fraud or trickery alone is generally not enough for an adult victim. The California Supreme Court explained in People v. Majors (2004) 33 Cal.4th 321 that kidnapping by fraud is limited to the specific situations the Legislature identified, and that an adult who goes willingly because of a lie has not been kidnapped under subdivision (a).
Substantial distance is where most cases are won or lost. The movement must be more than slight or trivial. In People v. Martinez (1999) 20 Cal.4th 225, the California Supreme Court held that the jury considers the totality of the circumstances, not just the number of feet. Relevant factors include the actual distance, whether the movement increased the risk of harm to the victim, whether it decreased the likelihood of detection, whether it enhanced the attacker's opportunity to commit additional crimes, and whether the movement was merely incidental to another offense. Moving someone from one room to another, or across a parking lot, is contested in nearly every trial.
Lack of consent has a special rule for children. A person who is too young or too impaired to understand cannot legally consent. For a child, Penal Code section 207, subdivision (e), provides that the force required to kidnap an unresisting infant or child is simply the force needed to take and carry the child away a substantial distance. That rule traces to People v. Oliver (1961) 55 Cal.2d 761, which also held that moving a child for an illegal purpose is kidnapping even without resistance. Parents who take their own children usually face child abduction charges under Penal Code section 278 or Penal Code section 278.5 rather than kidnapping, as we explain in Child Abduction in California.
Aggravated Kidnapping Under Penal Code 209 and 209.5
Aggravated kidnapping carries a life sentence. Penal Code section 209 covers kidnapping for ransom, reward, or extortion, which carries life in prison with or without the possibility of parole depending on whether the victim suffered death or bodily harm, and kidnapping to commit robbery or specified sex offenses, which carries life with the possibility of parole. Penal Code section 209.5 covers kidnapping during a carjacking, which also carries life with the possibility of parole.
Aggravated kidnapping requires more than incidental movement. For kidnapping to commit robbery or a sex offense under section 209, subdivision (b), the movement must be beyond that merely incidental to the underlying crime and must increase the risk of harm to the victim over and above the risk inherent in the underlying crime. That two-part test comes from People v. Daniels (1969) 71 Cal.2d 1119 and is now written into the statute. Walking a clerk a few feet to open a safe is a classic example of movement that courts have found incidental to the robbery, while driving a victim from a Santa Ana parking lot to a remote location is not.
Carjacking cases frequently include a 209.5 count. When a driver or passenger is still in the vehicle as it is taken, the District Attorney will often file kidnapping during carjacking in addition to the carjacking itself. The defense focuses on whether the movement of the victim was more than incidental to taking the car and whether it substantially increased the risk of harm. The same analysis applies to robbery, which we cover in Robbery in California: Penal Code 211.
Common Defenses to Kidnapping Charges
The movement was not substantial. This is the most frequent and most effective defense in simple kidnapping cases. If the alleged victim was moved only a short distance, in the same room or along the same block, in public view, and the movement did not increase any danger or enable another crime, the Martinez factors point toward acquittal on the kidnapping count. In domestic cases where the couple argued in a moving vehicle, the defense examines where the car went, how long the drive lasted, and whether the passenger ever asked to get out.
The alleged victim consented. Consent means the person freely and voluntarily agreed to go, had the capacity to agree, and was not acting under force or fear. A passenger who got into the car willingly and only later asked to be let out presents a different case from one who was pulled in. Consent can also be withdrawn, so the timing matters. Text messages and location data often show who agreed to what and when, as we discuss in Can the Police Use Your Text Messages Against You?.
The defendant reasonably believed there was consent. Even where the alleged victim later says they did not agree, a good faith and reasonable belief in consent is a complete defense under CALCRIM 1215. The question is what the defendant knew and reasonably understood at the time.
No force or fear was used. If the person went along because of a lie, a promise, or persuasion rather than force or a reasonable fear, the conduct may be a different crime or no crime at all, as Majors holds for adult victims. The separate rule for a child under 14 who is enticed away for a lewd purpose is written into Penal Code section 207, subdivision (b), and is strictly construed.
The movement was incidental to another offense. In aggravated kidnapping cases, the defense argues that any movement was part of the robbery or other crime and did not increase the risk of harm. If successful, the kidnapping count is reduced or dismissed even if the underlying charge stands.
The protective or citizen's arrest exception applies. Penal Code section 207, subdivision (f), excludes from the statute a person who takes a child under 14 to protect the child from imminent harm, and a person who makes a lawful citizen's arrest. Those situations are rare but real.
False accusation. Kidnapping allegations arise in custody disputes and in the aftermath of breakups, where one party has a motive to exaggerate. Cross-examination on prior statements, inconsistent accounts to the 911 operator and the responding officers, and the surrounding family law litigation can be decisive, as discussed in Falsely Accused of Domestic Violence in California.
Penalties for Kidnapping in California
Simple kidnapping is a straight felony. Under Penal Code section 208, subdivision (a), kidnapping is punished by three, five, or eight years in state prison. Under subdivision (b), if the victim is under 14 years old at the time of the offense, the range is five, eight, or eleven years. Probation is available in some simple kidnapping cases, but judges in Riverside and San Bernardino County treat the charge seriously and the District Attorney typically seeks prison.
Kidnapping is a strike and a violent felony. Because kidnapping appears in Penal Code section 667.5, subdivision (c), and Penal Code section 1192.7, subdivision (c), a conviction counts as a strike for future sentencing and limits conduct credits while serving the sentence under Penal Code section 2933.1. A defendant with a prior strike faces a doubled term, as we explain in California's Three Strikes Law, and a motion to dismiss a prior strike under Penal Code section 1385 may be the most important filing in the case, as discussed in What Is a Romero Motion?.
Enhancements add years. Personal use of a firearm under Penal Code section 12022.53 and infliction of great bodily injury under Penal Code section 12022.7 are frequently alleged in kidnapping cases. Each adds a consecutive term on top of the base sentence.
Reduction to false imprisonment is a common resolution. False imprisonment under Penal Code section 236 is the unlawful violation of another person's liberty without the movement element. It is a misdemeanor unless accomplished by violence, menace, fraud, or deceit, in which case it is a felony under Penal Code section 237, and even the felony version is not a strike. Negotiating a kidnapping count down to false imprisonment removes the strike and the life or triad exposure, which is why the substantial distance argument matters so much before trial. See False Imprisonment in California: Penal Code 236.
Collateral Consequences
Immigration. Kidnapping is generally treated as a crime of violence and an aggravated felony for immigration purposes, with deportation consequences for non-citizens, as discussed in Immigration Consequences of a California Criminal Conviction. Any non-citizen charged with kidnapping should have immigration counsel involved before any plea.
Firearms. Any felony conviction results in a lifetime California firearm prohibition under Penal Code section 29800 and a federal prohibition. See Felon in Possession of a Firearm.
Custody and protective orders. When the alleged victim is a partner or co-parent, the criminal court issues a protective order under Penal Code section 136.2, and the family court will treat the arrest as domestic violence for custody purposes under Family Code section 3044. Our child custody practice and domestic violence restraining order practice coordinate with the criminal defense when both cases are pending.
Record relief. A kidnapping conviction that resulted in a prison sentence is not eligible for dismissal under Penal Code section 1203.4, and the certificate of rehabilitation and pardon process is the remaining path, as we explain in What Is a Certificate of Rehabilitation in California?.
How a Kidnapping Case Moves Through Court
Arraignment and bail. Kidnapping is listed in Penal Code section 1270.1, so the court must hold a hearing before releasing a defendant on their own recognizance or reducing bail below the schedule. Bail arguments focus on ties to the community, the relationship between the parties, and the strength of the substantial distance element. See What Happens at Arraignment in Riverside County.
The preliminary hearing is critical. At the preliminary hearing, the magistrate decides whether there is probable cause for each count. A kidnapping count with weak evidence of movement is frequently dismissed or reduced to false imprisonment at this stage, and a motion under Penal Code section 995 can challenge a holding order that lacks support. See What Actually Happens at a Preliminary Hearing and What Is a 995 Motion?.
Trial. Kidnapping trials turn on the alleged victim's testimony, surveillance and vehicle data, and the jury's view of whether the movement was substantial. Because the strike consequence is so severe, more kidnapping counts go to trial than most felonies. Our guide to the criminal jury trial process explains what to expect.
Frequently Asked Questions
How far do you have to move someone for it to be kidnapping in California?
There is no fixed number of feet. Under People v. Martinez (1999) 20 Cal.4th 225, the jury weighs the totality of the circumstances, including the actual distance, whether the movement increased the risk of harm, whether it reduced the chance of detection, and whether it was incidental to another crime. Very short movements in public view are often found not substantial.
Can you be charged with kidnapping for not letting someone out of your car?
Yes. Refusing to stop and let a passenger out after they demand to leave can satisfy the force or fear element if the passenger was held against their will, and driving a substantial distance satisfies the movement element. These domestic situations are among the most common kidnapping filings in Riverside and San Bernardino County, and they frequently resolve as false imprisonment under Penal Code section 236.
Is kidnapping a strike in California?
Yes. Kidnapping is a violent felony under Penal Code section 667.5, subdivision (c), and a serious felony under Penal Code section 1192.7, subdivision (c). A conviction counts as a strike under the Three Strikes law and limits credits while in custody.
What is the difference between kidnapping and false imprisonment?
Movement. Both crimes involve restraining a person against their will, but kidnapping under Penal Code section 207 requires moving the person a substantial distance by force or fear. False imprisonment under Penal Code section 236 does not, and it is not a strike even when charged as a felony.
Can a parent be charged with kidnapping their own child?
Usually the charge is child abduction, not kidnapping. A parent who takes or keeps a child in violation of a custody order is typically charged under Penal Code section 278.5, and a person without custody rights under Penal Code section 278. Kidnapping can still be charged where force or fear is used against the child or another person.
What is the sentence for kidnapping in California?
Three, five, or eight years for simple kidnapping. Under Penal Code section 208, the range is five, eight, or eleven years if the victim was under 14. Aggravated kidnapping for ransom, robbery, sex offenses, or during a carjacking carries a life sentence under Penal Code section 209 or Penal Code section 209.5.
Talk to a Criminal Defense Lawyer About a Kidnapping Charge
Gramling Law Group defends felony charges at the Riverside Hall of Justice, the San Bernardino Justice Center, the Victorville courthouse, the Southwest Justice Center in Murrieta, the Clara Shortridge Foltz Criminal Justice Center, the Central Justice Center in Santa Ana, and courthouses throughout the Inland Empire, Los Angeles County, Orange County, and Southern California. Daniel Gramling, Esq. offers flat-fee criminal defense and limited-scope options for clients in Riverside, San Bernardino, Victorville, Hesperia, Barstow, Ontario, Moreno Valley, and Los Angeles. Call (909) 654-4575 or contact us through this website for a consultation.
This article is educational and is not legal advice. Reading it does not create an attorney-client relationship. It addresses California law only.
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