Carjacking under Penal Code 215 is the unlawful act of taking a vehicle from another individual’s presence against his/her will by force or fear. Vehicles are valuable property for most individuals. That is why the government is keen to see car theft offenders convicted. Carjacking is considered a grave offense since offenders use fear or force beyond illegally taking over another individual’s car, thus endangering the life of the victim.
Prosecutors are heavily invested in ensuring carjacking offenders are convicted. As a felony offense, a conviction will result in prison time and substantial fines. It is thus in your best interest to seek legal aid from experienced attorneys to fight the charges. Call the Los Angeles Criminal Attorney if you are looking for assistance.
Data from the FBI shows that motor vehicle theft accounted for an estimated $7.4 billion in losses in 2020. Eight hundred ten thousand four hundred (810,400) vehicles were reported stolen. Out of these, Los Angeles accounts for an estimated 30,000 car thefts. The NCIB (National Insurance Crime Bureau) attributes the high number of vehicle theft cases to an increase in the cost of parts required for repairs. Carjackers are willing to endanger other people’s lives by stealing the vehicle to capitalize on this growing demand.
Car theft as a business opportunity accounts for a significant portion of these cases, but it is not the only one. Offenders, in the past, committed carjacking as a crime of opportunity. For example, individuals fleeing a crime scene or a person taking a vehicle for a joyride only to realize there was a passenger later.
Courts consider all these issues to determine a defendant’s guilt and the penalties to impose for the crime if found guilty.
Prosecutors aggressively seek convictions for carjacking incidents to solve the car theft problem. Defendants will likely be found guilty without the assistance of an experienced defense attorney.
Carjacking Under California Law
Penal Code 215 defines carjacking as the taking of a car from an individual in their immediate presence or from a passenger, against their will and through force or fear, to permanently or temporarily deprive the victim of the vehicle’s possession.
The law places a significant evidentiary burden on prosecutors to prove their cases. They must establish the following facts.
- You took a car
- You took the vehicle from the immediate presence of the possessor or passenger
- You took the car against the victim’s will by using force or fear
- You intended to deprive the victim of the vehicle permanently or temporarily
Let us look at each element in detail to better understand carjacking.
a) Possession and Immediate Presence
Immediate presence means the vehicle was within the victim’s observation, control, or reach.
The immediate picture that comes to mind when carjacking is mentioned is the perpetrator drawing a gun or holding a knife to the victim and taking control of the car. Offenders then intimidate their victims into taking the vehicles from the victim’s immediate presence or possession.
Whereas there are cases where carjackers use weapons, PC 215’s definition of immediate possession includes possession even if the offender did not use a weapon. It means a jury could find you guilty if you talked in a manner that made the victim fear for his/her life.
b) You Took the Vehicle Against the Victim’s Will
Taking a car against a victim’s will is only satisfied when:
- An offender takes possession of another person’s vehicle
- Moves the car through a distance, no matter how slight, and
- Did so without the victim’s consent — Unless there is evidence showing the victim gave the car freely and willingly without coercion, it is easy for the prosecution to claim you took the vehicle against the victim’s will.
Note: An unsuccessful carjacking attempt does not mean you are free from prosecution. The D.A. could introduce attempted carjacking charges. For example, an offender fails to move a vehicle because he/she cannot drive a stick shift.
c) Use of Force or Fear
Penal Code 215 further requires proof of intimidation to establish the victim did not give up the car willingly. Thus, the statute requires that a defendant use force or fear.
Force can be any tactic that causes another individual to fear for his/her safety or that of his/her loved ones. The degree of force varies. In some cases, a carjacker could use an intimidating tone, while in others, he/she could use a weapon. Juries consider the victim’s fear to determine if the force used meets the threshold for a conviction. That is, “Was the fear enough to cause the victim to fear for his/her safety or that of his/her loved ones?”
This statute also does not require the victim to be conscious that you were using an intimidation tactic. This provision enables the conviction of defendants in carjacking incidents where the defendants took a vehicle with an infant or an unconscious passenger.
d) An Intent to Deprive
Theft crimes require an intent to deprive the product owner for good. Carjacking laws require a similar intent. However, temporary deprivation will suffice. Further, it does not matter the reason a defendant took the vehicle. What matters is that he/she took the car.
Legal Defenses You Can Assert
Even though carjacking changes are grave, you can raise viable defenses that could release you from criminal liability. You have to engage a criminal defense attorney in the early stages of the investigation to formulate a winning strategy. Here are a few defenses your attorney could use.
You Did Not Use Force or Fear
Penal Code 215 requires the use of fear or force. If you did not use force or fear to take the vehicle, you are not guilty of carjacking.
For example, you were walking past a car and noticed the keys in the ignition. You then decide to drive the vehicle away. In this case, you did take the car from the owner. However, you did not use fear or force. Therefore, you are not in violation of PC 215.
You Did Not Take the Vehicle Against the Victim’s Will
The jury can only find you guilty if prosecutors prove you took the vehicle against the possessor’s will. If the owner or possessor consented, you are not guilty of carjacking. After agreeing, he/she cannot later claim that you took the vehicle against their will.
This defense is applicable, especially in cases where a vehicle’s owner consents to a defendant taking the vehicle. However, the defendant delays returning the car, and the owner files a report claiming the defendant carjacked him/her.
You Are a Victim of Mistaken Identity
Misidentification is relatively common in carjacking cases.
Carjacking is highly stressful. Furthermore, carjacking victims go through a highly emotional state following the loss of their vehicle and the fear they experience during the ordeal.
In most cases, victims lose their cars in the cover of darkness, or perpetrators attack them while wearing masks. All these issues affect a victim’s recollection of the actual culprit. The situation is further complicated if the victim or eyewitnesses give general descriptions of the offender with no unique identifiable traits.
Defense attorneys could request the court to order a lineup as one possible strategy. This approach seeks to question a witness or the victim’s recollection or ability to identify the defendant. Additionally, attorneys could introduce identification experts to explain to the court why the witness or victim’s account cannot be relied upon.
Mental State Requirement
Carjacking laws require a specific intent to take the vehicle away, temporarily or permanently, either before or while using force or fear to take the car. If a defendant formulates the intent after using fear or force, an attorney can challenge the carjacking charges using this defense.
A Claim of Right is Not a Defense
It bears emphasizing that a claim of right is not a defense. Even if you are the vehicle’s owner, the law does not allow you to use fear or force to regain control of the car. Penal Code 215 makes carjacking an offense of possession, not ownership.
Penalties Upon Conviction for Carjacking
Carjacking is a felony offense. Penal Code 215 outlines the following as the penalties upon conviction:
- 3, 5, or 9 years in prison,
- A fine not exceeding $10,000
- One year formal and up to five years of felony probation instead of a prison sentence
You face one count of carjacking for every victim in the case. Thus, the penalties increase if there are additional victims.
Furthermore, the penalties increase if the carjacking incident:
- Resulted in the victim sustaining great bodily injury
- Was in furtherance of gang activity
- Involved the use of a firearm
a) The Victim Sustained a Great Bodily Injury (GBI)
A judge would increase your sentence if the victim suffered great bodily harm, pursuant to Penal Code 12022.7. The statute imposes a three-to six-year additional prison sentence to be served consecutively.
b) Carjacking in Furtherance to Gang Activity
Penal Code 186.22, California’s gang enhancement law, kicks in when the prosecution proves that you carjacked a victim in the association of, the direction of, or for the benefit of a criminal gang. The statute imposes a 15-year-to-life prison sentence in addition to the penalties imposed.
Like in PC 12022.7, you will serve the additional sentence consecutively.
c) The Use of a Firearm
Guns pose a significant risk to human life. Using one to carjack an individual means you are subject to Penal Code 12022.53 upon conviction. The statute imposes a 10–20-life prison sentence for offenders convicted of carjacking and found to have used a gun while committing the crime.
Under PC 12022.53, you will receive an additional
- 10 years for using a gun
- 20 years for firing a firearm
- 25-years-to-life for seriously injuring or killing another with the gun
These additional penalties are consecutive sentences.
d) Felony Murder Rule
California’s murder rule, Senate Bill 1437, seeks to punish perpetrators of felonies who kill other individuals while committing a felony. The law aims to punish individuals who:
- Kill another
- Cause the death of an on-duty police officer
- Aid and abet in the felony that resulted in the death of another
- Were crucial participants in the felony and acted with a reckless disregard for human life
If, while carjacking, you or an accomplice unintentionally kill another individual, the D.A. will charge you and the accomplice with first-degree murder.
You are also liable under the felony murder rule if another individual dies of another cause and not as a direct consequence of the carjacking. For example, a witness suffered a heart attack due to the stress of the carjacking events. You are only liable if the death is logically related to the crime.
A conviction for felony murder results in first-degree felony murder penalties as outlined in PC 189. The statute imposes a prison sentence of 25 years to life.
Further Implications of a Carjacking Conviction
A conviction on carjacking charges results in further consequences.
a) A Strike on Your Criminal Record
Carjacking is a violent felony under California’s Three Strikes Law. Convictions result in a strike on your criminal record.
First-time carjacking offenders with no prior strikeable offenses on their record will earn a strike and serve the prison sentence as ordered by a judge.
You will earn a second strike if you are convicted of carjacking charges and have a prior strike on your record. Second strikers receive double the sentence imposed on them for the current offense.
On the other hand, third strikers receive a prison sentence of 25 years to life. You become a third striker if you are convicted of carjacking and have two strikes on your criminal record.
Additionally, the statute requires convicts to serve at least 85% of their sentences before being eligible for parole.
b) Immigration Consequences
Carjacking is an aggravated felony and is considered a crime involving moral turpitude. Convictions, therefore, result in the deportation of offenders and subsequent denial of re-entry to the U.S.
c) Loss of Gun Rights
Individuals convicted on felony charges lose their second amendment right, the right to bear arms. If you possess, own, or use a firearm after serving your sentence, you will violate PC 29800. Convictions for violations of PC 29800 are punishable by a prison sentence of up to three years.
Federal Law on Carjacking
Carjacking is both a state and a federal offense.
The prosecution at the state level is under PC 215. Federal prosecutors pursue a conviction for carjacking under U.S. Code Title 18, U.S.C. § 2119.
Federal prosecutors must prove the following:
- You knowingly took a car
- You used force or fear to take the car or any other form of intimidation
- The vehicle was transported, received, or shipped interstate in pursuit of foreign commerce
- You intended to inflict severe injury or cause death when you demanded or took control of the car
Title 18 U.S.C. § 2119 imposes a 15-year federal prison sentence, a $250,000 fine, or both if found guilty.
If the victim sustained serious bodily injury, you would face up to 25 years in prison, a $250,000 maximum fine, or both.
Should the victim die, you will face life imprisonment, a maximum fine of $250,000, or both.
Offenses Related to Carjacking
In some cases, the facts do not support a carjacking charge. Prosecutors could opt for other charges as alternatives, including:
- Grand theft auto
- Auto theft or joyriding
a) Grand Theft Auto
Penal Code 487(d)(1) makes it an offense to take another person’s car worth $950 or more without his/her permission to deprive the owner of the vehicle.
Prosecutors should prove the following for you to be found guilty of grand theft auto (GTA):
- You took another person’s vehicle worth $950 or more
- You did not have permission to do so
- You took the vehicle with the intention of:
- Taking it away from the owner long enough to deprive him/her of a significant portion of the vehicle’s value or the enjoyment of it
- Permanently depriving the owner of the car
- You moved the vehicle through a distance or for some time, no matter how short the distance or brief the time.
Penalties of Grand Theft Auto
GTA is a wobbler offense. Prosecutors can charge you with misdemeanor or felony violations. However, the Los Angeles County District Attorney pursues felony charges.
Convictions result in:
- 16 months, 2, or 3 years in jail
- A maximum fine of $10,000 or both
- An additional year if the vehicle’s value exceeds $65,000
- A further two years if the vehicle’s value exceeds $200,000
It is an offense under Vehicle Code 10851 to take or drive another person’s vehicle without his/her consent. This act is referred to as joyriding or auto theft.
Prosecutors must establish the following as accurate:
- You took or drove another person’s vehicle
- You lacked the owner’s consent to take or drive the car
- You acted with an intent to deny the car’s owner possession of the vehicle, either permanently or temporarily
Penalties for Joyriding
Joyriding is a wobbler offense. You can face misdemeanor or felony charges.
Convictions on misdemeanor violation charges result in:
- Up to one year in jail
- A fine not exceeding $5,000, or both
Convictions of felony violations, on the other hand, result in:
- 16 months, 2, or 3 years in prison, or
- 2, 3, or 4 years in prison if you have a prior conviction for GTA or joyriding or if the vehicle in the case was an emergency response vehicle (police car, ambulance, or fire truck)
- A fine of $10,000
- Both prison time and a fine
In other situations, the D.A. could prefer additional charges depending on the circumstances he/she can prove. They include:
a) Kidnapping During a Carjacking
It is a violation of PC 209.5 to kidnap a person during the commission of a carjacking.
Prosecutors must prove that:
- You committed carjacking
- You held or detained another individual by instilling reasonable fear or using force
- You moved the victim or made the victim move a substantial distance from the carjacking scene
- You moved or caused the victim to move with the intent to facilitate the carjacking, assist yourself in escaping, or prevent the kidnapped individual from sounding an alarm
- The victim was not one of the carjackers
- The victim did not consent to the movement
Penalties Upon Conviction for a PC 209.5 Violation
PC 209.5 is a form of aggravated kidnapping and a felony offense. You will receive life imprisonment without the possibility of parole upon conviction.
b) Auto Burglary
If the vehicle were locked when you carjacked the driver, prosecutors would add auto burglary to your charge sheet. Auto burglary is a crime under Penal Code 459.
The crime is defined as entering a locked car or its trunk with the intention of,
- stealing the vehicle
- the property in the vehicle or
- to commit another felony when inside the car, for example, kidnapping an infant.
Auto burglary is also referred to as second-degree burglary, a wobbler offense.
Misdemeanors attract a jail sentence of up to one year, while felonies attract a 16-month, two-year, or three-year jail sentence.
If you break into an inhabited trailer coach, the violation is burglary in the first degree, and the penalties upon conviction increase to 2, 4, or 6 years in prison.
Prosecutors will add battery charges if you use violence or force to remove the driver or passenger from the vehicle or push them to a different seat. Prosecutors will charge you under PC 242.
However, if you use a weapon or a firearm and inflict serious bodily injury on the victim, you will be charged with battery with serious bodily injury and/or assault with a deadly weapon, a violation of PC 243d and 245, respectively.
PC 242 violations, which are misdemeanors, are punishable by up to 6 months in jail, a fine of $2,000, or both.
PC 243 violations are wobblers. Misdemeanors are punishable by up to one year in jail, a fine of $1,000, or both. Felonies are punishable by a jail time of up to four years and a fine not exceeding $10,000.
PC 245 offenders receive a one-year jail sentence and a maximum fine of $1,000 for convictions on misdemeanor charges. Felony offenders face up to twelve years in prison and a fine of up to $10,000.
Contact an Experienced Criminal Defense Attorney
If you or a loved one is under investigation or faces carjacking charges, call an experienced attorney immediately. Timely intervention is critical. Contact the Los Angeles Criminal Attorney at 424-333-0943 to schedule a free case evaluation today.