California Penal Code section 215 is defined as the felonious taking of a motor vehicle in the possession of another, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear.
Example: A man walked up to a car that was temporarily parked in the loading zone. A female driver was in the driver seat, waiting for her husband to come back from the post office. The man got into the front passenger seat and held up a gun, pointing it at the driver. He told her to get out of the car or he will shoot her. The man has committed a carjacking.
To prove that the defendant is guilty of carjacking under Pen. Code section 215, the prosecution must prove the following facts or elements:1
- The defendant took2; a motor vehicle that was not his/her own;
Example: Mary went inside a 7-Eleven store and parked her car upfront. While she was inside the store, a man broke into her car and tried to drive it away. Mary ran out of the store and started screaming to the man to get out of the car. The man rolled down the window and told her to go back inside the store or he will be forced to use his gun. Mary went back inside to call the police while the man drove away her car. In this situation, although Mary was not actually inside the car, the car was within her “immediate presence” because it was sufficiently within her physical control because she had the car keys and was close enough to the car that she could immediately stop the carjacking if it was not for the force or fear used by the defendant to prevent her from doing so.
- The vehicle was taken against that person’s will5;
- The defendant used force or fear to take the vehicle or to prevent the person from resisting; AND
- When the defendant used force or fear6 to take the vehicle, he/she intended to deprive the owner of possession of the vehicle either temporarily or permanently. 7
Example: Jason was watching TV at home when he heard the familiar sound of his car engine starting. He looked out the window and saw another man driving away his car. He immediately called the police. This situation does not describe a carjacking, because although the man who stole Jason’s car presumably did so against Jason’s will, he did not use force or fear to do so. Therefore, he will not be guilty of carjacking. He will, nonetheless, be guilty of a less serious offense of “grand theft auto.”
The defendant’s intent to take the vehicle must have been formed before or during the time he/she used force or fear to take away the car. If the defendant did not form this required intent until after using the force or fear, then he/she did not commit carjacking.
Example: John, a homeless man, who has not eaten for days, was looking for someone to give him either food or money to buy food. When he saw a woman pull up in her car, he asked her for food or money, but she refused to offer him either one. When she opened the car door and got out of the car, he noticed a grocery bag full of food in the passenger side. He decided that he was going to grab the bag from the car. He pushed her out of the way and got in the driver seat so he could grab the bag and run. However after noticing that the woman’s keys were still in the ignition, the man closed the door and drove off in the woman’s car. In this situation, because the man’s intent to take the car was formed after he used force against the woman to take possession of the car, he will not be charged with carjacking.
There are various defenses that can be asserted on your behalf to fight a charge of carjacking. Here are the most common ones:
- Consent: If you did not take another person’s car against their will – you had consent to take it – you did not commit a carjacking.
- Lack of Force or Fear: If you did not use force or fear to take away a car from another person, you cannot be charged with this offense.
- Falsely Accused/Mistaken Identity: If you were falsely accused of committing a carjacking, you need a good attorney who can find any inconsistencies in the evidence to show that you were not the perpetrator of the crime. The Aizman Law Firm is ran by a former prosecutor who knows how to investigate such cases and to provide the best defense possible. If you were falsely accused and need help getting out of the situation, do not hesitate to give us a call.
- Claim of Right – Claim of right is not a defense to carjacking. In other words, you cannot use force or fear to reclaim a car that is currently in someone else’s possession, because carjacking is a crime against possession, not ownership. 8
Attempted Carjacking: Attempted Carjacking under Pen. Code, §§ 663, 215 involves a situation where a defendant fails to complete the carjacking, but had the intent to do so. See People v. Jones (1999) 75Cal.App.4th 616, 628 [89 Cal.Rptr.2d 485].
Grand Theft Automobile: Grand Theft Automobile under Penal Code 487(d) involves the taking away of another person’s automobile. People v. Gamble (1994) 22 Cal.App.4th 446, 450 [27 Cal.Rptr.2d 451] [construing former Pen. Code, § 487h]; People v. Escobar (1996) 45 Cal.App.4th 477, 482 [53 Cal.Rptr.2d 9] [same].
Vehicle Code 10851 California’s Unlawful taking or driving of a vehicle law is when a defendant unlawfully takes a car that does not belong to him/her. It is different from carjacking because it does not require that the defendant use force or fear to take the car away. (People v. Montoya (2004) 33 Cal.4th 1031, 1035 [16 Cal.Rptr.3d 902, 94 P.3d 1098].)
Kidnapping During the Commission of Carjacking: Kidnapping During the Commission of Carjacking applies when the kidnapping occurs during the commission of a “carjacking” and in order to facilitate the commission of the “carjacking,” and involves the kidnapping of a person who is not a principal in the commission of the carjacking, such kidnapping is punishable by imprisonment in the state prison for life with the possibility of parole. 10
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.
Three Strikes Law: Because a carjacking conviction is a serious felony offense, it will result in a “strike” on the defendant’s criminal record under California’s Three Strikes law. If charged with a third felony, and the defendant already has two prior strikes on the record, the defendant will be treated as a third striker and will serve a minimum sentence of 25 years-to-life in state prison.
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- California Penal Code 215 [↩]
- A person takes something when he or she gains possession of it and moves it some distance. The distance moved may be short. [↩]
- A person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control it, either personally or through another person. Possession Deﬁned. People v. Bekele (1995) 33 Cal.App.4th 1457, 1461 [39 Cal.Rptr.2d 797], disapproved on other grounds in People v. Rodriguez (1999) 20 Cal.4th 1, 13–14 [82 Cal.Rptr.2d 413, 971 P.2d 618]. [↩]
- A motor vehicle is within a person’s “immediate presence” if it is sufficiently within his or her physical control that he or she could keep possession of it if not prevented by force or fear. Immediate Presence Deﬁned. People v. Hayes (1990) 52 Cal.3d 577, 626–627 [276 Cal.Rptr. 874, 802 P.2d 376] [↩]
- 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. [↩]
- “Fear,” as used here, means fear of injury to the person himself or herself, or injury to the person’s family or property, or immediate injury to someone else present during the incident or to that person’s property. Fear Deﬁned. Pen. Code, § ; see People v. Cuevas (2001) 89 Cal.App.4th 689, 698 [107 Cal.Rptr.2d 529] [victim must actually be afraid]. [↩]
- The defendant’s intent to take the vehicle must have been formed before or during the time he/she used force or fear. If the defendant did not form this required intent until after using the force or fear, then he/she did not commit carjacking. Intent. People v. Green (1980) 27 Cal.3d 1, 52–53 [164 Cal.Rptr. 1, 609 P.2d 468], overruled on other grounds in People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3 [226 Cal.Rptr. 112, 718 P.2d 99]; see Rodriguez v. Superior Court (1984) 159 Cal.App.3d 821, 826 [205 Cal.Rptr. 750] [same intent as theft]. Intent to Deprive Owner of Main Value. See People v. Avery (2002) 27 Cal.4th 49, 57–58 [115 Cal.Rptr.2d 403, 38 P.3d 1] [in context of theft]; People v. Zangari (2001) 89 Cal.App.4th 1436, 1447 [108 Cal.Rptr.2d 250] [same]. [↩]
- Crime Against Possession, not Ownership, of Vehicle. People v. Cabrera (2007) 152 Cal.App.4th 695, 701–702 [61 Cal.Rptr.3d 373]. [↩]
- Penal Code 215. [↩]
- Penal Code 209.5(a). [↩]