It is a crime to restrain someone’s freedom of movement against their will under California Penal Code Section 236. This crime is a wobbler, meaning it may be charged as a misdemeanor or felony, depending on how the victim was restrained. A misdemeanor violation carries up to a year in jail; a felony is up to 3 years in county jail; if the victim is elderly or a dependent adult, the sentence increased to up to 4 years.
For Felony false imprisonment, menace or violence must be used to effect the restraint. Menace is a threat of violence and need not be communicated verbally, but may be simply implied by threatening behavior. Although the use of physical force alone does not raise the crime to a felony, any force greater than necessary to effect the restraint constitutes “violence” within the meaning of this law.
A question arises in these cases whether someone who was prevented from doing some specific act is being “restrained.” For example, not allowing someone to enter property that he or she has a legal right to enter – does that constitute false imprisonment? The answer is no, and the reason is that preventing someone from going somewhere is not the same as preventing them from moving in general. As long as someone has the option of some alternative movement, then that person is not restrained against their will. However, confinement to a certain location, however large, would qualify since it would be a restriction of their total freedom of movement. And giving the victim one option “or else” would also be a violation.
Although the defendant must restrain the victim’s freedom intentionally, this is not a “specific intent” crime. This means that only the act or words that restrain must be done intentionally, and have the effect of restraint.
False imprisonment of an elderly person (over 65 years old), or a dependent adult, is automatically a felony if done through fraud or deceit. It is also a violation of this crime to confine a child if the confinement/restraint endangers the child’s safety or well being or for an unlawful purpose. A reasonable exercise of parental control, however, is a defense to such a charge.
Criminal Defense attorney Peter Sebastian has been successful in having a felony false imprisonment arrest rejected by the D.A. by arguing a lack of evidence on each element.
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