Penal Code § 208 – Kidnapping of a Minor Under 14

Penal Code § 208 PC is the California statute that defines the crime of kidnapping a child under the age of 14. This form of aggravated kidnapping is a more serious charge than ordinary kidnapping, under Penal Code 207, and carries a harsher sentence.

The language of the code section reads that:

208. (a) Kidnapping is punishable by imprisonment in the state prison for three, five, or eight years.

(b) If the person kidnapped is under 14 years of age at the time of the commission of the crime, the kidnapping is punishable by imprisonment in the state prison for 5, 8, or 11 years. This subdivision is not applicable to the taking, detaining, or concealing, of a minor child by a biological parent, a natural father, as specified in Section 7611 of the Family Code, an adoptive parent, or a person who has been granted access to the minor child by a court order.

(c) In all cases in which probation is granted, the court shall, except in unusual cases where the interests of justice would best be served by a lesser penalty, require as a condition of the probation that the person be confined in the county jail for 12 months. If the court grants probation without requiring the defendant to be confined in the county jail for 12 months, it shall specify its reason or reasons for imposing a lesser penalty.

Examples of when this section can be charged:

• Tying up a 12-year old girl, moving her into the closet, and calling the girl’s parents demanding a ransom for her release
• Driving to a neighborhood park, forcing a 13-year old girl at the park into your car and driving off
• Kidnapping an 11-year-old girl and committing lewd acts with her, a crime under PC 288 (lewd acts with a minor child)

Defenses

Several legal defenses can be asserted if accused of kidnapping a minor under the age of 14. These include showing that an accused party was:

• not guilty of kidnapping;
• was arrested without probable cause; and/or,
• was falsely arrested.

Penalties

A violation of this section is charged as a felony (as opposed to a misdemeanor or an infraction). The crime is punishable by:

• imprisonment in the California State Prison for 5, 8, or 11 years; and,
• a possible maximum fine of $10,000.

Our California criminal defense attorneys will address the following in this article:

• 1. What is the crime of kidnapping a child under the age of 14?
• 2. What are the defenses to Penal Code 208b?
  • 2.1. Innocent of kidnapping
  • 2.2. No probable cause
  • 2.3. Falsely arrested
• 3. Penalties, punishment, and sentencing
• 4. Related offenses
  • 4.1. Kidnapping – PC 207
  • 4.2. Kidnapping during the commission of a carjacking – PC 209.5
  • 4.3. False imprisonment – PC 236

1. What is the crime of kidnapping a child under the age of 14?

California Penal Code 208b PC makes it a form of aggravated kidnapping for a person to kidnap a minor child under the age of 14.¹

Aggravated kidnapping is a more serious charge than ordinary kidnapping.

“Kidnapping,” under California law, is moving a victim a substantial distance, using force or fear to do so.²

This means a prosecutor must prove the following elements in order to convict a defendant under PC 208b:

1. he moved a minor under the age of 14
2. a substantial distance
3. without the minor’s consent
4. by using force or fear.³

“Force or fear” means that a defendant either:

• inflicted physical force upon the alleged victim, or
• threatened to inflict imminent physical harm upon the alleged victim.

Penal Code 208b does not apply to the following parties:

• a biological parent,
• a child’s adopted parents, and
• a court-appointed guardian.⁴

2. What are the defenses to Penal Code 208b?

A person accused of PC 208b can challenge the accusation by raising a legal defense. A good defense can often get a charge reduced or even dismissed. Please note, though, that it is critical for an accused to hire an attorney to get the most effective defense.

Three common defenses to PC 208b accusations are:

1. innocent of kidnapping;
2. no probable cause; and/or,
3. falsely accused.

2.1. Innocent of kidnapping

Penal Code 208b makes it a crime for a person to kidnap a minor under the age of 14. This means a person cannot get convicted under the code section if he is innocent of the underlying offense of kidnapping itself. A party can try to show that he is not guilty of kidnapping by proving that he did not do any of the following:

• move an alleged victim,
• a substantial distance,
• using force or fear to do so.

2.2. No probable cause

This line of defense tries to exclude evidence that is being used against a defendant for a PC 208b violation.

California law says that a police officer must have probable cause to detain or arrest a suspect. “Probable cause” essentially means that there is a reasonable belief that someone committed a crime (based on all of the circumstances).

If a person was stopped or arrested without probable cause, then any evidence obtained following the improper stop/arrest could get excluded from the case. This exclusion could result in the dismissal or reduction in charges.

2.3. Falsely arrested

People sometimes make false accusations or accusations with little supporting evidence. The result is that parties get falsely arrested or arrested by error.

It is not always easy to find an eyewitness to corroborate that a defendant committed a crime. This can lead to wrongful arrests and misidentifications of offenders. If a prosecutor cannot prove beyond a reasonable doubt that the defendant is the person who actually kidnapped a minor, then it is difficult to prove that he is guilty under PC 208b.

3. Penalties, Punishment, and Sentencing

A violation of Penal Code 208b PC is charged as a felony (as opposed to a California misdemeanor or an infraction). The crime is punishable by:

• imprisonment in the California State Prison for 5, 8, or 11 years; and,
• a possible maximum fine of $10,000.⁵

In contrast, ordinary kidnapping (one not involving a minor under the age of 14) is punishable by:

• imprisonment in the state prison for 3, 5, or 8 years; and,
• a possible maximum fine of $10,000.⁶

If a person is guilty under Penal Code 208b, and felony probation is granted, Penal Code 208(c) says that the defendant must serve 12 months in the county jail as a condition of the probation.⁷

Kidnapping	California Felony Penalties
Simple Kidnapping – PC 207	3, 5, or 8 years in prison and up to $10,000
Aggravated Kidnapping: of a victim under 14 years old – PC 208(b)	5, 8, or 11 years in prison and up to $10,000
Aggravated Kidnapping: to commit a crime – PC 209(b)	Life with the possibility of parole
Aggravated Kidnapping: for ransom – PC 209(a)	Life with the possibility of parole
Aggravated Kidnapping: for ransom, and the victim suffers death or bodily harm – PC 209(a)	Life without the possibility of parole
Kidnapping in the Commission of a Carjacking – PC 209.5	Life with the possibility of parole

4. Related Offenses

There are three crimes related to kidnapping a minor child under the age of 14. These are:

1. kidnapping – PC 207;
2. kidnapping during the commission of a carjacking – PC 209.5; and,
3. false imprisonment – PC 236.

4.1. Kidnapping – PC 207

Kidnapping is a crime in California per Penal Code 207 PC.

As stated above, “kidnapping” is moving a victim a substantial distance, using force or fear to do so.

A person violates Penal Code 207 when he:

• moves another person
• a substantial distance
• without that person’s consent
• by using force or fear.⁸

“Force or fear” means that a defendant:

• inflicted physical force upon the alleged victim, or
• threatened to inflict imminent physical harm.

“Simple” kidnapping is a felony, subjecting a person to up to 8 years in the California state prison.⁹ Aggravated kidnapping…also a felony…carries a sentence of five years to life, depending on the facts of the case.

4.2. Kidnapping during the commission of a carjacking – PC 209.5

California Penal Code 209.5 PC makes it a crime for a person to kidnap another person during the commission of a carjacking.

A party violates Penal Code 209.5 PC when he:

1. moves the victim beyond what is merely incidental to the carjacking,
2. moves the victim a substantial distance from the area of the carjacking, and
3. the movement of the victim increases the risk of harm over and above that necessary to commit the carjacking.¹⁰

A conviction for violating Penal Code 209.5 PC subjects the offender to life in prison with the possibility of parole.¹¹

4.3. False imprisonment – PC 236

False imprisonment is a crime under California Penal Code 236 PC.

A prosecutor must prove two elements to successfully convict a person per PC 236. These are:

1. The defendant intentionally and unlawfully restrained, detained, or confined another person; and,
2. The defendant made the person stay or go somewhere against that person’s will.

Penal Code 236 PC makes it a crime in California for one person to falsely imprison another person. False imprisonment, though, is also a tort that gives rise to civil lawsuits.

As to criminal false imprisonment, the crime is a type of wobbler offense, meaning it can be charged as either a misdemeanor or a felony.

Under PC 237(a), false imprisonment is charged as a misdemeanor if the commission of the offense was not affected by “violence, menace, fraud, or deceit.”¹² A person guilty of misdemeanor false imprisonment could be punished with:

• a fine not exceeding $1,000; and/or,
• imprisonment in the county jail for not more than one year.¹³

False imprisonment will be charged as a felony when the crime is “affected by violence, menace, fraud, or deceit.¹⁴

If a person is guilty of felony false imprisonment, a judge can sentence him to a county jail term of either:

• 16 months,
• two years, or
• three years.¹⁵

Call us for help…

If you or someone you know has been accused of a crime, per California Penal Code 208b, we invite you to contact us for a free consultation. We can be reached 24/7.

(For accusations or charges of kidnapping in Nevada, please see our article on Nevada “Kidnapping” Laws (NRS 200.310)). And, for accusations or charges of kidnapping in Colorado, please see our article on Colorado “Kidnapping” Laws (18-3-301 & 18-3-302 C.R.S.)).

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