In this post, I will explain how California treats the crime of kidnapping during the commission of a carjacking.
This violation is prosecuted under Penal Code 209.5 PC.
What Is Kidnapping During the Commission of Carjacking Under Penal Code Section 209.5?
Under Penal Code section 209.5, kidnapping during the commission of carjacking entails the act of kidnapping a person to facilitate the commission of the carjacking1.
This act is a type of “aggravated kidnapping,” as it involves the commission of another crime – carjacking — as the target offense, and the kidnapping is merely a means to achieve that end.
As Attorney Diana Aizman explains in this example.
This man could be charged with kidnapping during the commission of carjacking because he drove off with the woman still in the car and threatened to shoot her if she got out.
How Does The Prosecutor Prove Kidnapping During the Commission of Carjacking?
To prove that the defendant is guilty of kidnapping during the commission of carjacking under Pen. Code §209.5, the prosecution must prove the following facts or elements:2
- The defendant committed a carjacking;
- During the carjacking, the defendant took, held, or detained another person by using force or by instilling reasonable fear3;
- The defendant moved the other person or made that person move a substantial distance from the vicinity of the carjacking4;
- The defendant moved or caused the other person to move with the intent to facilitate the carjacking or to help himself/herself escape/or to prevent the other person from sounding an alarm5;
- The person moved was not one of the carjackers; AND
- The other person did not consent to the movement6; AND
- The defendant did not actually and reasonably believe that the other person consented to the movement (This element is only applicable when there is an issue of reasonable belief in consent).
What is Considered Force Or Fear?
Force or fear means that the defendant either used actual physical force upon the alleged victim to move the victim or physically threatened the victim and/or the victim’s family.
What Is Considered Moving The Victim A Substantial Distance?
The movement must have been more than merely brief and incidental to the commission of the carjacking.
The movement must also have increased the risk of physical or psychological harm to the person beyond that necessarily present in the carjacking.
In deciding whether the movement was sufficient, courts consider all the circumstances relating to the movement.
Examples Of “Substantial Distance” Within This Context Include The Following:
- The actual distance the victim was moved from the point of carjacking;
- Regardless of the actual distance, whether the movement, no matter how slight, placed the victim into a higher risk of danger, such as in a situation where the defendant moved the victim from a public place to a more secluded place even though the latter location was within a short distance from the former7
- Whether the movement of the victim facilitated the commission of carjacking by the defendant;
- Whether the movement of the victim helped the defendant avoid being caught.
How Can I Fight Kidnapping During the Commission of A Carjacking Charges?
There are various defenses that can be asserted on your behalf to fight a charge of kidnapping during the commission of carjacking. \
Here are the most common ones:
Permission to Drive the Car:
If the victim allowed you to drive his/her car, you are not guilty of kidnapping during the commission of carjacking.
Good Faith Belief in Consent:
If the defendant had a reasonable belief that the victim consented to the movement, then the defendant is not guilty of the offense.
If the victim actually consented to the movement, then the defendant is not guilty of kidnapping during the commission of carjacking. The defendant is not guilty of the offense if the other person “consented” to go with the defendant. The other person consented if he/she
- Freely and voluntarily agreed to go with or be moved by the defendant,
- Was aware of the movement, and
- Had sufficient maturity and understanding to choose to go with the defendant.
The prosecutor has the burden of proving beyond a reasonable doubt that the other person did not consent to go with the defendant.
If the prosecutor has not met this burden, the defendant will not be guilty of this crime.
Can “Consent” Be Withdrawn?
If at first, a person agreed to go with the defendant, the person’s consent ended if the person changed his or her mind and no longer freely and voluntarily agreed to go with or be moved by the defendant.
The defendant is guilty of the offense if after the other person withdrew consent, the defendant committed the crime.
If the movement was slight and/or trivial, the defendant’s act will not meet the “substantial movement” requirement for the offense.
False Accusation/Victim of Mistaken Identity:
If you were falsely accused of the crime or were a victim of mistaken identity theft, you cannot be convicted of the crime.
What Are The Penalties For Penal Code 209.5 PC
The following related offenses are all considered to be lesser included offenses:
California Kidnapping Laws (Penal Code section 207) defines kidnapping as moving another person a substantial distance by using “force or fear,” and doing so without the person’s consent9.
Even if you did not complete the offense of kidnapping, you can still be charged with the lesser offense of attempted kidnapping during the commission of a kidnapping.
Carjacking – Penal Code section 215, California’s carjacking law, makes it a crime to take a car from another person by means of force or fear. “Force or fear” means that a defendant actually inflicts physical force upon the alleged victim or that threatens to inflict imminent physical harm10.
However, carjacking can also occur when a defendant forcibly takes a victim’s car keys, not just when a defendant takes a car from the victim’s presence.11.
Even if you did not complete the offense of carjacking, you may be charged with the lesser crime of attempted carjacking12.
Penal Code section 236 is California’s False imprisonment Law 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 child13.
If you have been arrested and would like to learn more about what attorneys charge.
If you want to understand why its important to have an attorney represent you.
If you are ready to discuss a pending case with an attorney contact the Aizman Law Firm at 818-938-1274 for a free confidential consultation.
Request A Free Consultation 818-351-9555
- California Penal Code Section 209.5. [↩]
- Elements. Penal Code Sections 207(a), 209.5(a), (b), 215(a). [↩]
- Fear, as used here, means fear of injury to the person or injury to the person’s family or property. It also means fear of immediate injury to another person present during the incident or to that person’s property. Force or Fear Requirement. People v. Moya (1992) 4 Cal.App.4th 912, 916–917 [6 Cal.Rptr.2d 323]; People v. Stephenson (1974) 10 Cal.3d 652, 660 [111 Cal.Rptr. 556, 517 P.2d 820] [fear must be reasonable]. [↩]
- As used here, substantial distance means more than a slight or trivial distance. The movement must have been more than merely brief and incidental to the commission of the carjacking. The movement must also have increased the risk of physical or psychological harm to the person beyond that necessarily present in the carjacking. In deciding whether the movement was sufficient, the court will consider all the circumstances relating to the movement. Incidental Movement. See People v. Martinez (1999) 20 Cal.4th 225, 237–238 [83 Cal.Rptr.2d 533, 973 P.2d 512]; Increased Risk of Harm. People v. Ortiz (2002) 101 Cal.App.4th 410, 415 [124 Cal.Rptr.2d 92]. Vicinity of Carjacking. People v. Moore (1999) 75 Cal.App.4th 37, 43–46 [88 Cal.Rptr.2d 914]. [↩]
- Intent to Facilitate Commission of Carjacking. People v. Perez (2000) 84 Cal.App.4th 856, 860–861 [101 Cal.Rptr.2d 376]. [↩]
- In order to consent, a person must act freely and voluntarily and know the nature of the act. [↩]
- However, note that the movement need not substantially increase the risk of harm to qualify as “substantial.” Movement Need Not Substantially Increase Risk of Harm. People v. Robertson (2012) 208 Cal.App.4th 965, 982 [146 Cal.Rptr.3d 66]; People v. Ortiz (2002) 101 Cal.App.4th 410 [124 Cal.Rptr.2d 92]; Penal Code Section 209.5(a); [↩]
- Penal Code Section 209.5. [↩]
- California Penal Code, section 207. [↩]
- Carjacking. Penal Code 215(a); People v. Jones (1999) 75 Cal.App.4th 616, 624–626 [89 Cal.Rptr.2d 485]; People v. Contreras (1997) 55 Cal.App.4th 760, 765 [64 Cal.Rptr.2d 233] [Penal Code Section 209.5 requires completed offense of carjacking]. [↩]
- People v. Hoard (2002) 103 Cal.App.4th 599, 608–609 [126 Cal.Rptr.2d 855] [victim was not physically present when defendant drove car away]. [↩]
- Attempted Carjacking. Penal Code Sections 664, 215(a); People v. Jones (1999) 75 Cal.App.4th 616, 626 [89 Cal.Rptr.2d 485]. [↩]
- See Penal Code Sections 236, 237; People v. Magana (1991) 230 Cal.App.3d 1117, 1121 [281 Cal.Rptr. 338]. [↩]