California Penal Code section 210.5 is defined as defendant using force of threat of force against a victim to make the victim stay or go somewhere against the victim’s will so that the defendant can avoid arrest. To be convicted of the offense, the defendant must have faced imminent threat of arrest and must have intended to protect himself/herself against the threat of imminent arrest by restraining the other person. 1
A man robbed a bank, but as he was getting away, he realized he was surrounded by the police. He then used a hostage to negotiate for a way for him to flee the crime scene. He threatened to shoot the victim if he does not get his way. The man can be convicted of robbery, assault, and false imprisonment of the hostage to avoid arrest. If the hostage gets killed, he can be charged with felony murder.
To prove that the defendant is guilty of extortion by posing as a kidnapper under Pen. Code §210.5, the prosecution must prove the following facts or elements:2
- The defendant faced a threat or risk of imminent arrest3;
- The defendant restrained, conﬁned, or detained another person by force or by a threat to use force;
- The defendant intended to protect himself/herself against the threat of imminent arrest by restraining the other person4;
- The defendant made the other person stay or go somewhere against that person’s will5;
- The defendant either substantially increased the risk of physical or psychological harm to the victim or intended to use the victim as a shield.
A store clerk took all the money from the cash register and held her manager at gun point, telling him that she will blow out his brains if he calls the cops. She tied up his legs and hands and locked him inside a walk-in refrigerator. The store clerk can be convicted of false imprisonment of a hostage to avoid arrest and her punishment may be enhanced by up to 6 years if the manager sustains great bodily injury.
Usually a defendant who takes another person as a hostage can be charged with the offense. More specifically, a defendant who takes the following actions can be charged with the offense:
- Acting with specific intent to falsely imprison another person to avoid arrest;
- Using the victim to protect himself/herself from arrest;
- Using the victim as a human shield to avoid arrest;
- Substantially increasing the risk of harm to the victim by falsely imprisoning the victim;
- Forcing the victim to stay or to go somewhere against the victim’s will.
There are various defenses that can be asserted on your behalf to fight a charge of false imprisonment of a hostage to void arrest. Here are the most common ones:
- Consent: If the victim consents to staying or going somewhere to help the defendant avoid arrest, the defendant cannot be charged with this offense, because the offense requires forcing the victim to stay or go somewhere against the victim’s will.
- No Imminent Threat of Arrest: If there was no imminent threat of arrest, one cannot be charged with this offense because imminent threat of arrest is one of the elements required for this offense.
- No Increase Risk of Harm to the Victim: If the act of imprisoning the victim does not substantially increase the risk of harm to the victim, the defendant cannot be charged with the offense.
Example: A man robbed a busy liquor store and told the owner as he was getting away that if the owner called the police, he will shoot him and then go after his family (additional charges may include criminal threats penal code 422 pc). In reality, the man was not armed and had no information about the whereabouts of the owner’s family. He was merely pretending to have a gun by keeping his hands in his pockets. He locked the owner in the back room without a phone, but because the store was very busy, a customer who walked in shortly heard the man calling for help and let him out. In this situation, the imprisonment of the owner did not increase a risk of harm because the defendant did not actually have the ability to shoot the owner. Moreover, when the defendant did confine the owner, the owner remained safe inside the room, and because he ran a busy liquor store, it decreased the likelihood of long-term confinement. Therefore, the defendant could use this defense to fight a charge of false imprisonment of a hostage to avoid arrest.
- Duress: If the only reason you falsely imprisoned another person is because you yourself faced the threat of serious harm or death, you are not guilty of this crime.
- Self-defense/Defense of Others: If you had a reasonable belief, that you were in imminent danger of being killed, or injured, and you reasonably believed that you needed to use force or threat of force against someone to make them stay or go somewhere to prevent yourself from being harmed, and you used no more force than was necessary to prevent harm to yourself or another, than you will not be guilty of this offense.
False Imprisonment: False imprisonment under the California Penal Code section 236 is the unlawful violation of the personal liberty of another. It could be a lesser included offense of kidnapping if there is an unlawful restraint of a child. 7
Attempted False Imprisonment of Hostage to Avoid Arrest: Attempted False Imprisonment of Hostage under Pen. Code §664 applies if the defendant tries to commit the crime but fails to do so, he will not be found guilty of the offense. 8
Great Bodily Injury Enhancement: Under California Penal Code §12022.7, California’s great bodily injury enhancement, if a false imprisonment of a hostage results in a great bodily injury to the hostage, the defendant’s sentence may be enhanced by up to three to six years.
If you would like to discuss a pending false imprisonment case, contact the Aizman law firm for a free case evaluation at 818-351-9555.
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- California Penal Code Section 210.5 [↩]
- Penal Code Sections 210.5, 236. [↩]
- Imminent Arrest. People v. Gomez (1992) 2 Cal.App.4th 819, 825 [3 Cal.Rptr.2d 418] [dicta]. [↩]
- “False imprisonment” is defined as the intentional and unlawful confinement of a person against that person’s will. False Imprisonment. Pen. Code, §§ 236, 237. Unlike simple “false imprisonment,” false imprisonment of a hostage is a “speciﬁc intent” crime, meaning the defendant intends to do some further act or achieve some additional consequence. In this context, the defendant intends to falsely imprison for purposes of protecting himself from arrest. See Pen. Code, § 210.5 [falsely imprison “for purposes of protection from arrest”]; see also People v. McDaniel (1979) 24 Cal.3d 661, 669 [156 Cal.Rptr. 865, 597 P.2d 124]. [↩]
- An act is done against a person’s will if that person does not consent to the act. In order to consent, a person must act freely and voluntarily and know the nature of the act. [↩]
- California Penal Code Section 210.5. [↩]
- See Penal Code Sections 236, 237; People v. Magana (1991) 230 Cal.App.3d 1117, 1121 [281 Cal.Rptr. 338]. [↩]
- Penal Code Sections 664, 210.5, 236. [↩]