Penal Code § 210.5 PC sets forth the crime commonly known as taking a human shield. This means falsely imprisoning a hostage as a means of avoiding capture or arrest. A conviction is a felony punishable by up to 8 years in state prison.
The language of the code section states that:
210.5. Every person who commits the offense of false imprisonment, as defined in Section 236, against a person for purposes of protection from arrest, which substantially increases the risk of harm to the victim, or for purposes of using the person as a shield is punishable by imprisonment pursuant to subdivision (h) of Section 1170 for three, five, or eight years. 1
Here is an example of a situation where 210.5 PC would be charged:
The defendant went on a “shooting spree” at a hospital. During this time, he grabbed two women who were at the hospital by their necks and handcuffed them together and held them hostage. When the security guards came, he pointed his gun at the two women’s heads, and the security left. He then barricaded the three of them in a room before ultimately turning himself in.2
Defenses
There are several legal defenses to fight a “false imprisonment to avoid arrest” charge. Some of these include:
- consent,
- no imminent threat of arrest,
- no increased risk of harm, or
- duress
Penalties
Penal Code 210.5 PC is a felony. If you are convicted of this offense, you face three, five or eight years in county jail.3 Depending on the circumstances, you may face additional charges and penalties for a variety of related offenses such as
- battery,
- kidnapping, and
- possibly even murder if a hostage is killed.
In this article, our California criminal defense attorneys 4 explain will discuss the following:
- 1. What is the crime of “false imprisonment of a hostage to avoid arrest”?
- 2. How can a defense attorney fight this charge?
- 3. What are the penalties for a Penal Code 210.5 PC conviction?
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
California Penal Code 210.5 PC makes it a crime to take or imprison a hostage as a means of avoiding capture or arrest.
1. What is the crime of “false imprisonment of a hostage to avoid arrest”?
Before we can present an overview of false imprisonment of a hostage, we need to define false imprisonment.
Penal Code 236 PC defines California false imprisonment as “the unlawful violation of the personal liberty of another”.5 In other words, you violate this law when you wrongfully
- restrain,
- confine, or
- detain
another person without their consent. This is the “generic” crime of false imprisonment. Penal Code 210.5 PC is much more specific.
You violate PC 210.5 California’s “false imprisonment to protect from arrest” law if you are facing the threat or risk of imminent arrest, and you falsely imprison another person to
- protect yourself from the arrest, or
- use them as a human shield,
if that imprisonment substantially increases the risk of harm to the victim.6
Essentially, this law is designed to protect against “hostage” type situations, where the victim is used as a bargaining tool for you to avoid arrest either because
- you threaten to harm/kill the hostage if the police do not let you go, or
- you believe the police will not harm the hostage if you use them as a shield to escape.
Example: Defendants – who had been juvenile hall inmates – ran into the library, grabbed the librarian and put a metal “shank” to her neck, telling the California Youth Authority staff that they needed to provide a truck for them to escape the facility. They actually stabbed her in the stomach to show that they were serious about their threat to kill her if the staff didn’t comply.7
Compare this case to the following:
Example: Defendant carjacked the victim’s car and tied her to a fence so she could not report the crime. The prosecutor charged him with false imprisonment but not false imprisonment of a hostage. The court reasoned that there was no “reasonable inference that defendant falsely imprisoned [the victim] ‘for purposes of protection from arrest’ within the meaning of [Penal Code] section 210.5.”8
2. How can a defense attorney fight this charge?
There are a number of legal defenses to fight a PC 210.5 charge that your California criminal defense lawyer could present on your behalf. The following are some of the most common:
- there was no imminent threat of arrest (as was the case in the second example above);
- there was no increased risk of harm to the victim (although you claimed you were going to harm the victim, you actually had no ability to do so);
- consent (if the alleged victim actually consented to be confined, restrained or detained, then there was no false imprisonment); and
- duress (if you only falsely imprisoned the alleged victim because someone else threatened to harm or kill you if you did not, you would not be guilty of this crime).
3. What are the penalties for a Penal Code 210.5 PC conviction?
When the California Legislature enacted this law in 1987, it did so to create a harsher penalty for the false imprisonment of a hostage than for the general law prohibiting false imprisonment.9
The “generic” type of false imprisonment prohibited under Penal Code 237 PC is a wobbler, which means that prosecutors may charge the crime as a misdemeanor or a felony, depending on
- the facts of the case, and
- your criminal history.
Under PC 236, the felony charge is punishable by a maximum three-year county jail sentence.10 However, the legislature made Penal Code 210.5 an automatic felony, punishable by three, five or eight years in county jail.11
In addition, there are a variety of charges and/or sentencing enhancements that may also come into play in Penal Code 210.5 cases:
- California Penal Code 12022.7 PC California’s great bodily injury enhancement which adds an additional and consecutive three to six-year state prison sentence to your sentence for the false imprisonment charge if you cause the victim to suffer a substantial or significant injury,12
- Penal Code 242 PC California’s battery law which you violate anytime you unlawfully use force or violence upon another person,13 and
- Penal Code 209 PC California’s kidnapping law which you violate by moving a person a substantial distance (against their will) by using force or fear,14 and
- Penal Code 187 PC murder if the victim is killed during the commission of this offense.15
But as San Bernardino criminal defense attorney John Murray16 explains,
“Our team of outstanding lawyers will devise the most comprehensive defense strategy to help fight your case. Our goal is to secure an acquittal, but when that’s not possible, we will do our best to negotiate a plea bargain for less serious charges with less serious consequences.”
Legal References:
- Code 210.5 PC – False imprisonment for purposes of avoiding arrest or use as a shield.
- Facts are taken from People v. Torres (2005) 127 Cal.App.4th 1391
- See Penal Code 210.5 PC – False imprisonment for purposes of avoiding arrest or use as a shield, endnote 1, above.
- Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
- Penal Code 236 PC, California’s false imprisonment law. (“False imprisonment is the unlawful violation of the personal liberty of another.”)
- See Penal Code 210.5 PC – False imprisonment for purposes of avoiding arrest or use as a shield, endnote 1, above.
- People v. Chacon (1995) 37 Cal.App.4th 52
- People v. Gomez (1992) 2 Cal.App.4th 819.
- People v. Gomez, supra at 826 (overruled on other grounds). (“Our holding is also buttressed by the legislative history of section 210.5 [California’s law against false imprisonment for purposes of avoiding arrest or use as a shield], which was enacted in 1987.FN4 Prior to the enactment of that section the Penal Code did not provide punishment tailored to fit the situation where the perpetrator holds the victim hostage to prevent arrest or for use as a shield. The purpose of Senate Bill 713, the source of section 210.5, was to make the offense of false imprisonment of a hostage under certain circumstances punishable as a felony. The Los Angeles District Attorney’s office, the source of the bill, urged that there be harsher punishment for false imprisonment of a hostage, which would be in line with the offense of kidnapping, a felony, to which this offense was analogous, instead of the lesser punishment applicable to false imprisonment, known as a “wobbler,” which can be either a misdemeanor or a felony.”). See also Barragan-Lopez v. Holder (9th Cir. Jan. 29, 2013), 705 F.3d 1112.
- Penal Code 237 PC, California’s false imprisonment law, punishment. (“(a) False imprisonment is punishable by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail for not more than one year, or by both that fine and imprisonment. If the false imprisonment be effected by violence, menace, fraud, or deceit, it shall be punishable by imprisonment pursuant to subdivision (h) of Section 1170. (b) False imprisonment of an elder or dependent adult by use of violence, menace, fraud, or deceit shall be punishable as described in subdivision (f) of Section 368.”). See also California Penal Code 18 PC — Punishment for felony not otherwise prescribed; alternate sentence to county jail. (“(a) Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a felony is punishable by imprisonment for 16 months, or two or three years in the state prison unless the offense is punishable pursuant to subdivision (h) of Section 1170. (b) Every offense which is prescribed by any law of the state to be a felony punishable by imprisonment or by a fine, but without an alternate sentence to the county jail for a period not exceeding one year, may be punishable by imprisonment in the county jail not exceeding one year or by a fine, or by both.”). See also California Penal Code 672 PC — Offenses for which no fine prescribed; fine authorized in addition to imprisonment. (“Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.”)
- See Penal Code 210.5 PC – False imprisonment for purposes of avoiding arrest or use as a shield, endnote 1, above.
- Penal Code 12022.7 PC — California’s great bodily injury sentencing enhancement.
- California Penal Code 242 — Battery. (“Battery defined. A battery is any willful and unlawful use of force or violence upon the person of another.”)
- California Penal Code 207 PC – California’s kidnapping law.
- California Penal Code 187 PC.
- San Bernardino criminal defense attorney John Murray defends clients throughout the Inland Empire including Hemet, Palm Springs, Rancho Cucamonga, Riverside and San Bernardino.