Charged with a crime in San Diego? Wondering how the case will affect your reputation, career, and freedom? Trying to figure out what comes next? Look no further! David’s book addresses common misconceptions and mistakes made by those charged with a crime in San Diego. Some of the chapters include topics such as:
Kidnapping under PC 207 is a strike offense carrying up to 8 years in state prison. Aggravated kidnapping means life. Our San Diego defense lawyers fight these charges at every stage. Call 24/7.
A kidnapping charge in San Diego changes everything overnight. The word itself carries enormous weight, and prosecutors know it. But the legal reality behind most kidnapping cases is far more nuanced than the label suggests.
Most people facing PC 207 charges never imagined being in this situation. A heated argument where someone was pulled by the arm. A parent who took their child during a custody dispute. A situation that escalated during an alleged robbery where someone was moved a short distance. An ex making accusations to gain leverage in a divorce. The circumstances that lead to kidnapping charges are rarely what people picture when they hear the word “kidnapping.”
Being arrested is not the same as being convicted. The prosecution still has to prove every element beyond a reasonable doubt, and kidnapping cases often hinge on contested facts: how far someone was moved, whether force was actually used, and whether the alleged victim consented to go. These are questions a jury has to answer, and each one creates an opening for the defense.
The fear and uncertainty you’re feeling right now are completely understandable. What matters is what you do next.
At David P. Shapiro Criminal Defense Attorneys, we’ve defended clients charged with kidnapping throughout San Diego County, from simple kidnapping under PC 207 to aggravated kidnapping charges under PC 209 carrying life sentences. We’ve challenged the prosecution’s case at preliminary hearings, taken these cases to trial, and fought for outcomes that others said weren’t possible. As experienced San Diego violent crimes defense lawyers, we understand the gravity of what you’re facing.
Time matters. Early action creates options that disappear later. Evidence fades, witnesses forget, and the prosecution is building their case right now.
Quick Reference: PC 207 Kidnapping
| Element | Details |
|---|---|
| Classification | Felony (always) |
| Simple Kidnapping (adult victim) | 3, 5, or 8 years state prison |
| Simple Kidnapping (victim under 14) | 5, 8, or 11 years state prison |
| Aggravated Kidnapping (PC 209(a)) | Life with possibility of parole |
| Aggravated Kidnapping (victim harmed/killed) | Life without possibility of parole |
| Strike Offense | Yes, serious and violent felony |
| Fines | Up to $10,000 |
| Additional | Limited (if any) custody credits; no expungement |
What Is Kidnapping Under California Law?
Penal Code Section 207 defines kidnapping as taking, holding, or detaining another person by force or fear and moving that person a substantial distance.1
Now let’s break down what that actually means, because the legal definition matters enormously for your defense.
There are three core concepts that determine whether the prosecution can prove kidnapping:
“Force or fear” means the alleged victim was moved against their will through physical force or a reasonable fear of harm. This doesn’t include situations where someone went along voluntarily, even if they were unhappy about it. There is a meaningful legal difference between being physically forced into a car and reluctantly agreeing to get in during an argument.
“Substantial distance” is often the most contested element in kidnapping cases. The movement has to be more than slight or trivial. Courts look at the totality of the circumstances, not just how many feet someone was moved. We’ll break this element down in detail below, because it’s where many kidnapping cases are won or lost.
“Without consent” means the alleged victim did not freely and voluntarily agree to the movement. Consent obtained through force, fear, or fraud is not valid consent. And for children under 14, the analysis shifts entirely: the prosecution can prove kidnapping through enticement or persuasion alone, without any force or fear at all.2
Why does all of this matter for your defense? Because each of these concepts is a battlefield. If the prosecution cannot prove force, cannot prove substantial distance, or cannot disprove consent, they cannot convict you of kidnapping. Period.
What Must the Prosecution Prove?
To convict you of kidnapping under PC 207(a), the prosecution must prove ALL of the following elements beyond a reasonable doubt:3
1. You took, held, or detained another person by using force or by instilling a reasonable fear.
The prosecution has to establish that you used actual physical force or created a reasonable fear of harm to accomplish the movement. This means more than a verbal request, more than an argument, and more than someone feeling uncomfortable. The force or fear must be what caused the person to move.
What does that look like in practice? Well, if two people are arguing and one says “get in the car, we’re leaving” and the other person gets in, that’s not necessarily force or fear. Context matters. The nature of the relationship, the specific words used, whether physical contact occurred, and what the alleged victim actually did in response are all critical facts.
2. Using that force or fear, you moved the other person a substantial distance.
This is the element that gets litigated most heavily. “Substantial distance” doesn’t have a fixed number. It’s not 50 feet or 100 feet or any specific measurement. Courts evaluate the totality of the circumstances, including whether the movement increased the risk of harm to the alleged victim, decreased the likelihood of detection, or gave the defendant greater opportunity to commit additional crimes.4
We’ll go deeper on this element in the next section, because it deserves its own analysis.
3. The other person did not consent to the movement.
The prosecution must prove the alleged victim did not freely and voluntarily agree to go. If there’s evidence of consent, whether through text messages, witness testimony, surveillance footage, or the circumstances themselves, the prosecution’s case has a serious problem.
4. You did not actually and reasonably believe that the other person consented to the movement.
This is a separate element that many people overlook. Even if the alleged victim did not actually consent, if you genuinely and reasonably believed they did, the prosecution cannot convict you of kidnapping. This comes up frequently in cases involving couples, family members, or friends where movement is part of normal interaction.
The burden is on them to prove all of this. Beyond a reasonable doubt. That’s a high bar, and every element is a potential avenue for defense.
The Substantial Distance Requirement
This is where kidnapping cases are often won or lost, and it’s the element that most lawyers and most legal websites fail to explain adequately. So let’s get into it.
California courts do not apply a rigid distance requirement. Instead, they use a totality-of-the-circumstances test established in People v. Martinez (1999).5 Under this test, the jury considers:
The actual distance moved. While there’s no minimum, courts have found that very short movements (a few feet within the same room, for example) are generally insufficient. Moving someone from one room to another, from inside a building to outside, or from one location to another by car is more likely to satisfy this element.
Whether the movement increased the risk of physical or psychological harm. Moving someone from a public area to a private, isolated location increases the risk of harm. Moving someone from their home to a car increases vulnerability. This factor weighs heavily in the court’s analysis.
Whether the movement decreased the likelihood of detection. Taking someone away from witnesses, away from populated areas, or away from places where they might call for help supports a finding of substantial distance, even if the physical distance was relatively short.
Whether the movement increased the defendant’s opportunity to commit additional crimes. If the movement gave the defendant greater control over the alleged victim or created opportunities for further criminal conduct, courts are more likely to find the distance was substantial.
What does this mean for your defense? It means that a kidnapping charge can potentially be defeated even when the prosecution proves some movement occurred. If the movement was incidental, if it didn’t meaningfully change the risk to the alleged victim, or if it was trivial under the totality of circumstances, it may not meet the legal standard for “substantial distance.”
Kidnapping Charged Alongside Other Crimes: The Incidental Movement Doctrine
Here’s something critical that applies to a significant number of kidnapping cases in San Diego. When kidnapping is charged alongside another crime, such as robbery, carjacking, domestic violence, or sexual assault, the movement must be more than merely incidental to the underlying offense.
What does that mean? Well, imagine a situation where someone is accused of robbery and during the robbery, the victim is moved 20 feet from one side of a parking lot to the other. The prosecution might try to stack a kidnapping charge on top of the robbery charge. But if that movement was simply part of the robbery itself, if it didn’t substantially increase the risk of harm beyond what the robbery already created, the kidnapping charge may not hold up.
This distinction matters enormously because it’s the difference between facing one set of charges and facing an additional strike offense with years of additional prison time.
Types of Kidnapping Charges in California
Not all kidnapping charges carry the same weight. California law distinguishes between simple kidnapping and several forms of aggravated kidnapping, and the differences in potential consequences are dramatic.
Simple Kidnapping (PC 207(a))
This is the base kidnapping charge. It covers situations where a person is moved a substantial distance by force or fear without consent. Simple kidnapping is a felony punishable by 3, 5, or 8 years in state prison for adult victims.6
When the victim is under 14 years old, the penalties increase to 5, 8, or 11 years in state prison.7
Kidnapping a Child Under 14 by Enticement (PC 207(b))
This subdivision covers situations where a child under 14 is lured or enticed to move through false promises or misrepresentations. The prosecution does not need to prove force or fear for this charge. The intent to avoid the consent of the child’s parent or legal guardian is what matters.8
Aggravated Kidnapping for Ransom or Extortion (PC 209(a))
This is where the stakes escalate dramatically. If the prosecution alleges the kidnapping was committed for ransom, reward, or extortion, the charge becomes aggravated kidnapping under PC 209(a).9 The penalty is life in state prison with the possibility of parole.
If the victim suffers bodily harm or death during an aggravated kidnapping, the penalty becomes life without the possibility of parole.10
Kidnapping During Carjacking (PC 209(b))
When a person is kidnapped during the commission of a carjacking, the charge carries life in state prison with the possibility of parole.11
Kidnapping During Burglary (PC 209.5)
Kidnapping someone during the commission of a burglary also carries life with the possibility of parole.12
For all intents and purposes, any kidnapping charge connected to another serious felony transforms into a life offense. The distinction between simple and aggravated kidnapping is one of the most consequential in California criminal law.
Penalties and Consequences
Let’s be real about something. Kidnapping carries some of the harshest penalties in California law. Understanding what you’re actually facing is the first step toward building an effective defense.
Prison Sentences
| Charge | Sentence |
|---|---|
| Simple Kidnapping (adult victim, PC 207(a)) | 3, 5, or 8 years state prison |
| Simple Kidnapping (victim under 14, PC 208(b)) | 5, 8, or 11 years state prison |
| Aggravated Kidnapping (PC 209(a)) | Life with possibility of parole |
| Aggravated Kidnapping (victim harmed/killed) | Life without possibility of parole |
| Kidnapping During Carjacking (PC 209(b)) | Life with possibility of parole |
| Kidnapping During Burglary (PC 209.5) | Life with possibility of parole |
Sentencing Enhancements
Kidnapping sentences can be increased dramatically by enhancements served consecutively, meaning on top of the base sentence:13
Firearm use (PC 12022.53): Personally using a firearm adds 10 years. Personally discharging a firearm adds 20 years. Causing great bodily injury or death with a firearm adds 25 years to life.
Great bodily injury (PC 12022.7): If the victim suffered great bodily injury, 3 to 6 additional years may be added.14
Gang enhancement (PC 186.22): If the kidnapping was committed for the benefit of a criminal street gang, that can add 15 years to life.
One Strike Law (PC 667.61): If the kidnapping was committed in connection with certain sex offenses, the One Strike Law can impose a sentence of 25 years to life.
Strike Offense
Kidnapping is classified as both a “serious” and “violent” felony under California’s Three Strikes Law.15 Here’s what a strike actually means in practice.
A kidnapping conviction counts as a strike on your record permanently. It cannot be expunged. If you are ever convicted of another felony in the future, your sentence is presumptively doubled. A third strike can result in 25 years to life in state prison, regardless of what the third offense is.
You must be prepared to serve at least 85% of your sentence before becoming eligible for parole. There is no early release like with many other offenses.
Key Collateral Consequences
Beyond prison time, a kidnapping conviction creates lasting consequences that follow you:
Immigration: A kidnapping conviction is classified as an aggravated felony under federal immigration law.16 For non-citizens, this virtually guarantees deportation proceedings with no available relief. Given San Diego’s demographics and proximity to the border, this consequence is critically important for many of our clients.
Firearm rights: A felony kidnapping conviction permanently prohibits you from owning or possessing firearms under both California and federal law.
Future sentencing: Because kidnapping is a strike, any future felony conviction carries dramatically enhanced penalties. This single conviction reshapes your entire relationship with the criminal justice system going forward.
Defense Strategies for Kidnapping Charges
The reality of the situation is that kidnapping charges are defensible. The question is identifying the right strategy based on the specific facts of your case and then executing that strategy with precision. Let’s walk through the approaches we consider when building a defense.
Consent
The alleged victim consented to the movement. This is one of the most common and most effective defenses in kidnapping cases. If the defense can demonstrate that the alleged victim voluntarily agreed to accompany the defendant, the kidnapping charge fails.
Evidence of consent can come from many sources: text messages before or after the event, witness testimony, surveillance footage showing the alleged victim walking voluntarily, or the nature of the relationship between the parties. In many cases, what the prosecution characterizes as kidnapping was actually a mutual decision to go somewhere together.
Insufficient Distance
The movement was trivial, slight, or merely incidental to another alleged offense. Under the Martinez totality-of-the-circumstances test, we can, and will, challenge whether the movement meets the legal standard for “substantial distance” if the facts support a position to do so.17
This defense is particularly powerful when kidnapping is charged alongside robbery, assault, or domestic violence. If the movement was simply part of the other alleged offense and didn’t independently increase the risk to the alleged victim, the kidnapping charge may not survive.
No Force or Fear
The prosecution must prove force or fear caused the movement. If the alleged victim moved voluntarily, even reluctantly, without actual physical force or a reasonable fear of harm, this element is not satisfied.
This defense comes up frequently in domestic situations. A disagreement where one person says “let’s go” and the other follows is not the same as being physically forced into a vehicle. The distinction matters, and we examine every detail of how the movement actually occurred.
Reasonable Belief in Consent
Even if the alleged victim did not actually consent, if you genuinely and reasonably believed they did, the prosecution cannot convict you. This is an explicit element they must disprove beyond a reasonable doubt.18
Situations involving couples, family members, or close friends where movement is part of normal daily interaction frequently support this defense. If you had every reason to believe the other person was willing to go with you, that belief is a complete defense.
Parental Rights and Custody Disputes
A significant number of kidnapping charges in San Diego arise from custody disputes. A parent takes their child to their home, to another state, or simply refuses to return the child on time, and suddenly they’re facing a felony kidnapping charge.
California law recognizes that a parent with lawful custody rights has a defense to kidnapping charges. The line between a criminal kidnapping and a civil custody violation is often blurry, and prosecutors sometimes charge the more serious offense when the facts don’t support it. We investigate the custody situation thoroughly, including court orders, informal agreements, and the history between the parties.
In many of these cases, the appropriate charge, if any, is child abduction under PC 278, not kidnapping under PC 207. The difference in consequences is enormous.
False Accusation
Kidnapping allegations sometimes arise from motives that have nothing to do with what actually happened. An ex-partner fabricating a story to gain advantage in a custody battle. A co-defendant shifting blame. Someone exaggerating what occurred during an argument to punish the other person.
We scrutinize the accuser’s motives, inconsistencies in their account, and whether the physical evidence actually supports their version of events. In our experience, thorough investigation into the accuser’s credibility is one of the most effective tools in kidnapping defense.
Mistaken Identity
In stranger kidnapping cases, identification evidence can be unreliable. Eyewitness identification made under stress, based on brief encounters, or influenced by suggestive police procedures is notoriously prone to error. Decades of research confirm this.
We examine lineup procedures, photo arrays, witness statements, surveillance footage, cell phone location data, and alibi evidence to challenge identification.
Constitutional Violations
Evidence obtained in violation of your constitutional rights may be suppressed, meaning the jury never sees it. We examine whether police conducted illegal searches, whether your Miranda rights were violated during questioning, and whether due process was followed at every stage of the investigation.
Suppressing key evidence can fundamentally change the strength of the prosecution’s case. Sometimes a case that looked overwhelming becomes much more manageable once illegally obtained evidence is excluded.
Related Charges: Understanding the Differences
Kidnapping is frequently charged alongside other offenses, and understanding how these charges relate to each other is important for building an effective defense.
False Imprisonment (PC 236)
False imprisonment is the primary lesser-included offense for kidnapping. It involves restraining or confining someone without consent but without the “substantial distance” movement element. False imprisonment can be charged as a misdemeanor (up to 1 year in county jail) or a felony (16 months, 2, or 3 years) if accomplished by violence, menace, fraud, or deceit.19
This distinction is critical in plea negotiations. Reducing a kidnapping charge to false imprisonment eliminates the strike, dramatically reduces the prison exposure, and avoids many of the devastating collateral consequences. It’s one of the most important negotiation targets in kidnapping defense.
Robbery (PC 211)
Robbery is frequently charged alongside kidnapping when the prosecution alleges someone was moved during a theft. The incidental movement doctrine discussed above is central to defending these combined charges.
Carjacking (PC 215)
Carjacking charges often accompany kidnapping when the prosecution alleges a vehicle was taken with a person inside. PC 209(b) specifically addresses kidnapping during carjacking, which carries life in prison.
Domestic Violence (PC 273.5)
Domestic violence situations frequently give rise to kidnapping charges when the prosecution alleges the accused moved the alleged victim during an altercation. Dragging someone by the arm, pushing someone into a car during an argument, or preventing someone from leaving and then moving them to another location can all lead to kidnapping charges on top of DV charges.
Criminal Threats (PC 422)
Criminal threats charges are often filed alongside kidnapping when the prosecution alleges threats were used to instill the fear that accomplished the movement.
Child Abduction (PC 278/278.5)
Child abduction is a separate offense from kidnapping and typically applies to custody-related situations. In many cases, what the prosecution charges as kidnapping is more appropriately charged, if at all, as child abduction. The penalties are significantly less severe.
Facing Kidnapping Charges in San Diego?
Kidnapping cases in San Diego often turn on highly contested facts: how far someone was moved, whether force was actually used, and whether the alleged victim’s account holds up under scrutiny. We’ve defended clients facing PC 207 charges arising from domestic disputes, custody battles, allegations tied to robberies and carjackings, and outright false accusations. We know how to challenge the “substantial distance” element at preliminary hearings, how to expose weaknesses in the prosecution’s narrative, and how to fight for reductions to lesser offenses when that serves our client’s interests. David P. Shapiro Criminal Defense Attorneys has continuously been recognized for its excellence by organizations including the Better Business Bureau, SuperLawyers, and the San Diego Business Journal.
Every day without representation is a day the prosecution works unopposed. The stakes are too high to wait.
Call us 24/7 for a consultation. We’ll review your case, explain what you’re actually facing, and start building your defense immediately. Contact our team today to get started. The bottom line is this: you need attorneys who will actually take these cases to a jury if that’s what it takes. That’s what we do.
References
- 1. Penal Code, § 207, subd. (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.”]↑
- 2. See CALCRIM No. 1215 [Kidnapping].↑
- 3. See CALCRIM No. 1215 [Kidnapping].↑
- 4. <em>People v. Martinez</em> (1999) 20 Cal.4th 225.↑
- 5. <em>People v. Martinez</em> (1999) 20 Cal.4th 225.↑
- 6. Penal Code, § 207, subd. (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.”]↑
- 7. Penal Code, § 208, subd. (b).↑
- 8. See CALCRIM No. 1215 [Kidnapping].↑
- 9. Penal Code, § 209, subd. (a).↑
- 10. Penal Code, § 209, subd. (a).↑
- 11. Penal Code, § 209, subd. (b)(1).↑
- 12. Penal Code, § 209.5, subd. (a).↑
- 13. Penal Code, § 12022.53 [Enhancement for personal use of firearm during commission of specified felonies].↑
- 14. Penal Code, § 12022.7 [Enhancement for infliction of great bodily injury].↑
- 15. Penal Code, § 667.5, subd. (c) [Definition of violent felony]; Penal Code, § 1192.7, subd. (c) [Definition of serious felony].↑
- 16. 8 U.S.C. § 1101(a)(43).↑
- 17. <em>People v. Martinez</em> (1999) 20 Cal.4th 225.↑
- 18. See CALCRIM No. 1215 [Kidnapping].↑
- 19. Penal Code, § 236 [False imprisonment].↑
"*" indicates required fields
200+
Google Reviews
Our appearances in the media.
PRACTICE AREAS
Down Town Office
El Cajon Office
- San Diego
- El Cajon
- La Jolla
- Chula Vista
- La Mesa
- National City
- Coronado
- Del Mar
- Encinitas
- Carlsbad
- Oceanside
- Vista
- San Marcos
- Poway
- Santee
- Rancho Peñasquitos
- University City
- Clairemont / Bay Park
