California Penal Code § 209 defines the offenses in California which constitute aggravated kidnapping. While the California code section related to kidnapping, California Penal Code § 207, has gone relatively unchanged through its history, § 209 has been substantially amended. Included in § 209 is the act of kidnapping or carrying someone away to commit robbery. When is robbery also kidnapping?

The penalties under § 207 for kidnapping are three (3), five (5) or eight (8) years in state prison. The penalties under § 209 for aggravated kidnapping – kidnapping or carrying away any individual to commit robbery – are even more severe. Anyone convicted of this offense faces punishment by imprisonment in the California state prison for life with the possibility of parole.

After the Lindbergh kidnapping, federal and state kidnapping laws were amended and severely harshened in the depression-era 1930s. California raised the minimum penalty to life imprisonment in § 209. However, California did not include federal law’s asportation requirement, most likely, because the legislature was concerned with ransom abductions, which may occur without asportation.

Under the wording of the amendment, any of the specified acts constituted a violation of § 209 when accompanied by the requisite, specified intents. Thus, merely holding an individual to commit robbery constituted an offense under § 209. This was a dramatic departure from the prior version of the statute where an act of robbery included an asportation of the victim.

California Penal Code § 207 PC, California’s kidnapping law, punishes the use of force or fear to move another person a substantial distance. Any defendant accused of robbery where the victim was moved any substantial distance may be charged with both robbery under California Penal Code § 211 and kidnapping under California Penal Code § 207.

If the defendant, voluntarily acting in concert with two or more other persons, commits the robbery within an inhabited dwelling house, the act may be charged as an offense under California Penal Code § 213. Forcing a victim into a car and then driving to a remote location to commit robbery could also be charged as an offense under California Penal Code § 209.

However, §209 was eventually amended so that robbery is also aggravated kidnapping only 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 offense.

Thus, only where the victim’s safety is compromised beyond the danger inherent in the underlying offense and the movement is more than simply ancillary to the robbery, will a defendant be charged under § 209.

As a California Criminal Trial Lawyer with over 40 years of courtroom experience, John Patrick Dolan has handled everything from traffic tickets to death penalty murder cases. Mr. Dolan is a recognized California State Bar Certified Specialist in Criminal Law and a true courtroom veteran of domestic violence defense cases. Call us today at (760) 775-3739 or find out more online here.

When Is Robbery Also Kidnapping?