What makes a kidnapping charge Penal Code 209 instead of Penal Code 207 in California?

Kidnapping is aggravated under California Penal Code section 209 when done for ransom or extortion, or to commit robbery, rape, or certain other sex offenses. The punishment is life in prison, not the 3, 5, or 8 years for simple kidnapping. Parole is possible unless, in a ransom case, the victim suffered death or bodily harm or was intentionally confined in a way posing a substantial likelihood of death.

The two ways a kidnapping becomes aggravated

Penal Code section 209 reaches kidnapping in two separate situations. Subdivision (a) covers seizing, confining, or carrying away another person "for ransom, reward, or to commit extortion," including holding or detaining someone for those purposes, and it also reaches anyone who aids or abets that act. Subdivision (b)(1) covers kidnapping or carrying away a person specifically to commit robbery, rape, oral copulation, sodomy, or certain other listed sex offenses. Both are separate from simple kidnapping under Penal Code section 207, which applies without any ransom motive and without intent to commit one of those listed crimes.

Subdivision (b) adds an important limit that keeps an ordinary robbery from automatically becoming an aggravated kidnapping just because the victim was pushed or moved a few feet during it. Under subdivision (b)(2), the kidnapping-for-robbery or kidnapping-for-sex-offense theory "shall only apply if the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense." This tracks a limit the California Supreme Court first set in People v. Daniels (1969) 71 Cal.2d 1119, which held that section 209 does not reach movements that are "merely incidental" to a robbery and do not substantially increase the risk of harm. As the statute now reads, the added risk no longer has to be substantial, but the movement still has to go beyond what the robbery or sex offense itself involves, and the added risk can be physical or psychological.

Sentencing under section 209

Subdivision (a) has two possible outcomes. If no one subjected to the act "suffers death or bodily harm," and is not intentionally confined in a manner exposing that person to a substantial likelihood of death, the sentence is life in state prison with the possibility of parole. If the victim does suffer death or bodily harm, or is confined under that substantial-likelihood-of-death standard, the sentence becomes life in state prison without the possibility of parole, among the harshest sentences in California law short of the death penalty. Subdivision (b)(1), kidnapping to commit robbery or a listed sex offense, carries life with the possibility of parole; it does not carry the same life-without-parole tier that subdivision (a) does. In a kidnapping to commit a sex offense, prosecutors can also charge California's One Strike law, Penal Code section 667.61, though the same act cannot be punished under both (section 209(d)).

How this differs from simple kidnapping

Simple kidnapping under section 207(a) requires only using force or reasonable fear to move another person a substantial distance without their consent (CALCRIM No. 1215); no ransom motive or intent to commit another crime is needed. It is punished by 3, 5, or 8 years in state prison under Penal Code section 208(a), or 5, 8, or 11 years if the person taken was under 14. The jump from that range to a life sentence under section 209 depends entirely on proving the additional motive, ransom, reward, or extortion, or the additional intended crime, robbery or a listed sex offense, and, for the subdivision (b)(1) theory, the extra movement-and-risk showing described above. The firm's page on kidnapping charges in California covers section 207 and related kidnapping statutes in more detail.

What prosecutors must prove

For the robbery or sex-offense theory in subdivision (b), the standard jury instruction, CALCRIM No. 1203, requires the prosecution to prove that you intended to commit the robbery or sex offense; that, acting with that intent, you took, held, or detained another person by force or by instilling reasonable fear; that you moved the person a substantial distance, beyond what was merely incidental to the underlying crime and in a way that increased the risk of harm beyond what that crime already carried; that you already had that intent when the movement began; and that the person did not consent to the movement. If the evidence raises it, the prosecution must also prove you did not actually and reasonably believe the person consented. If the prosecution cannot prove any one of those elements, including the timing of your intent, the aggravated charge fails, even if a lesser offense such as simple kidnapping remains.

Kidnapping is listed as both a serious felony and a violent felony under California's sentencing laws (Penal Code section 1192.7(c)(20) and section 667.5(c)(14)), so a conviction counts as a strike, and the case proceeds like any other felony toward a preliminary hearing before trial. Prosecutors sometimes file a section 209 count alongside the underlying robbery, rape, or other offense as separate counts arising from the same conduct; under Penal Code section 654, the same act cannot be punished under more than one provision, which can matter at sentencing.

Common defenses

Common defenses include:

• The movement was merely incidental to the robbery or sex offense, or did not increase the victim's risk of harm beyond what that crime already carried, so section 209(b)(2)'s own limit applies.
• No intent to rob, commit a sex offense, or hold for ransom existed at the time of the alleged taking; see the firm's answer on whether a claim of right can defeat a California robbery charge, since defeating the underlying robbery intent can defeat a kidnapping-for-robbery theory built on it.
• Consent to the movement, or an actual and reasonable belief that the person consented.
• Mistaken identity or insufficient evidence of the taking itself.

If a firearm was used, Penal Code section 12022.53, which lists sections 207 and 209 among the felonies it covers, can add a separate, consecutive enhancement; see the firm's answer on California's robbery firearm enhancement when the gun is not recovered for how that works even without the weapon in evidence. Because a section 209 charge depends on exact movement, timing, and intent, bring the police report to the Law Offices of David S. Chesley for review; reach the firm at (800) 755-5174.