THE LEGAL DEFINITON OF “CARJACKING” IN CALIFORIA
Simply put, Carjacking is using force or fear to deprive someone of possession of a vehicle.
California Penal Code 215 states, in pertinent part,
"Carjacking is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, 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."
WHAT MUST THE PROSECUTOR PROVE
In order to prove you guilty of the offense of carjacking, the prosecutor has to establish beyond a reasonable doubt the following:
- You took a vehicle from the immediate presence of someone with possession of the vehicle (or from a passenger’s immediate presence);
- You did so against the person’s will;
- By force or fear or threat; and
- with the intent to either permanently or temporarily deprive the person of the vehicle
Here’s a more detailed explanation of the law on carjacking under California Penal Code 215:
For a carjacking to occur, the victim need be in the car or in immediate possession of the car. She need only be in the "immediate presence" of the car—i.e., the car is within her reach, observation, or control. For example, Jack parks his struck at a gas station. He runs inside the gas station store to purchase an item. As he is walking out of the store, he sees Joe attempt to drive away with the truck. Jack runs after the truck but stops when Joe brandishes a firearm at him and threatens to shoot. Although Jack temporarily left his truck, the vehicle was within his reach, observation, and control. Joe resorted to threat of force or violence to retain possession of the truck. Joe can therefore be charged with carjacking under Penal Code section 215.
Note that, for purposes of Penal Code 215 California, possession, not ownership, matters. Even the rightful owner of a vehicle cannot use force or fear to get possession of the vehicle from someone else. For example, Jack lends Jill his vehicle. Jill fails to return the vehicle to Jack on an agreed upon date. One day, Jack confronts Jill as she is about to drive away in the vehicle. He points a gun at her, and forces her to vacate the vehicle. Jack could still be charged with carjacking against Jill even though he, and not Jill, had ownership of the vehicle.
You “took” a vehicle
This means the following: 1) taking possession of the car, and (2) moving the car, even if only by a little distance. Even if the car is not moved, a conviction for attempted carjacking is still possible if the other elements of carjacking are proven.
“Against the Possessor’s will”
"Against the will" means without consent or agreement. Consent is agreeing to something freely—i.e., without the influence of force or fear.
“Force or fear”
“Fear” and “Force” have virtually the same meaning under Penal Code 215. Threats that induce fear are a form of force. "Fear" means fear of harm to someone’s person, property, family, or people or property present during the incident. Resistance by a victim does not mean that force or fear was not used or threatened. In other words, the code does not require that a victim simply succumb to the use of force or threat of force. So long as force was used or threatened, this element of the code section is met. Furthermore, it is not required that the victim be aware that you are using force or threat of force to take away his or her vehicle. For example, Jack attempts to take Joe’s car. Joe is not in the car but Jill, a passenger, is asleep in the car. Although Jill is asleep and thus unaware of Jack’s actions, Jack’s taking away of the car when Jill is unable to resist constitutes a form of force.
“Intent to deprive”
Under Penal Code 215, the intent required for carjacking is to deprive the owner or passenger of the vehicle either permanently or temporarily. Therefore, even if you intended to “joyride” or temporarily deprive the owner of the vehicle, you can still be charged with carjacking.
PENALTIES FOR CARJACKING
Violation of Penal Code 215 PC is a felony. Punishment may include:
- probation and up to one year of county jail, or
- three (3), five (5) or nine (9) years in the California state prisonand a fine of up to ten thousand dollars $10,000.
The above punishment can be imposed for every victim in the car at the time of the carjacking.
There are also various sentencing enhancements that can accompany a conviction under Penal Code 215.
- Great Bodily Injury
If the victim suffered substantial bodily injury as a result of the carjacking, you face a three (3) to six (6) -year prison sentence in addition and consecutive to the penalty ordinarily applied to a carjacking conviction.
- California’s criminal street gang enhancement under Penal Code section 186.22
A carjacking "for the benefit of, at the direction of, or in association with any criminal street gang" will result in a “gang enhancement.” A conviction under Penal Code section 186.22 will result in an automatic fifteen-year-to-life prison sentence in addition and consecutive to your Penal Code 215 penalties.
- California's "10-20-life 'use a gun and you're done'" law under code section 53 PC
California’s Penal Code section 12022.53 subjects you to additional penalties if you used a gun during the commission of the carjacking. Under code section 12022.53, you face the following:
- 10 years in prison for "using" a gun
- 20 years for firing a gun and
- 25-years-to-life for killing or seriously injuring someone with a gun.
These sentences are in addition to and consecutive to the penalties imposed on you for a Penal Code section 215 carjacking conviction.
- California's three strikes law
A Penal Code 215 carjacking conviction will result in a "strike" on your criminal record pursuant to California's three strike's law. This requires you to serve at least 85% of your sentence prior to your eligibility for parole. If a defendant with a strike is convicted of any further felony, the sentence for that felony will be twice the term otherwise required. If a defendant with two prior strike convictions is convicted of a third strike, that conviction will result in serving a mandatory minimum sentence of 25 years-to-life in California’s state prison.
- California's felony-murder rule
California's felony-murder rule makes a defendant responsible for first-degree murder if, during the carjacking, the defendant or an accomplice accidentally or unintentionally kills someone. You need not have intended to kill the victim in furtherance of the carjacking. So long as the victim was killed as a result of the carjacking, you can be charged with felony murder.
DEFENSES TO CARJACKING
- No force or fear was used in the taking away of the vehicle
There is no violation of Penal Code 215 PC California's carjacking law if no force or fear was used in the taking away of the vehicle. For example, Jack parks his unlocked car outside of his apartment. When Jack is asleep, Joe enters Jack’s car and drives away with it. Joe is not guilty of carjacking because he did not use force or fear to take away Jack’s car. Joe, however, would be guilty of the less serous offense of grand theft auto or carjacking.
- The possessor of the vehicle gave consent
If a person in possession of a vehicle willfully gives permission for the vehicle to be taken, no carjacking has occurred. For a carjacking to occur the taking must be against the will of the driver or the passenger. For example, Jack borrows Joe’s car but does not return it to Joe on the agreed upon date. Jack is not guilty of carjacking because Joe initially gave consent for Jack to take the car.
- Mistaken Identity
Fear and stress can often interfere with clear memory. Faulty memories can lead to incorrect eyewitness testimony and mistaken identity. Mistaken identity is the largest cause of wrongful convictions in our criminal justice system.
HOW CAN WE HELP
Actual Case: In People v. J.L. (Case number not disclosed at the request of client), Mr. L was charged with three counts of carjacking. On three separate occasions, Mr. L used a gun to force out the drivers of three vehicles. Because a gun was used in the commission of each of these carjackings, Mr. L faced at least 30 years of state prison. Negin thoroughly investigated Mr. L’s past and was able to show the prosecution that all three carjackings were entirely drug induced. While this fact was not a defense, it constituted a mitigating factor in that it helped the prosecution construe the crime-spree as a product of drug addiction as opposed to deliberate and malicious intent. The outcome was a sentence of 8 years for Mr. L, one significantly lower than what he prosecution had initially sought.
Mr. L was caught red-handed in all three carjacking incidents. Yet, Negin, through her thorough and artful presentation of mitigating factors, successfully defended the case. Negin will apply the same thorough and relentless advocacy to your case, no matter how “undisputed” the alleged facts or egregious the accusations against you.