Penal Code 215 pc – California’s carjacking law 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.
Below our criminal defense attorneys explain the elements, defenses & penalties for this law.
Penal Code Section 215
California’s “carjacking” laws are articulated under Penal Code section 215. Below are the elements of how the law is applied with defenses and penalties for this crime.
Example Of Carjacking
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.
How Does The Prosecutor Prove 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;
- The motor vehicle was taken from another person’s possession3 and immediate presence4;
- 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
How Can You Fight Carjacking Charges?
There are various defenses that can be asserted on your behalf to fight a charge of carjacking. Here are the most common ones:
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.
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.
Example of Lack Of Force or Fear
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 with 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.”
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.
Claim of Right Is Not a Defense
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
Penalties & Sentencing Enhancements for Carjacking
|Fine||Up to $10,000|
|Prison||3, 5 or 9 years|
Carjacking Has The Following Potential Sentencing Enhancements:
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.
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 away11.
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 parole12.
Hiring An Attorney
If you would like more answers to questions you may have about carjacking or you would like to speak to an attorney confidentially contact our office at 818-351-9555 for a free consultation.
- 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].
- See People v. Jones (1999) 75Cal.App.4th 616, 628 [89 Cal.Rptr.2d 485].
- 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].
- People v. Montoya (2004) 33 Cal.4th 1031, 1035 [16 Cal.Rptr.3d 902, 94 P.3d 1098].
- Penal Code 209.5(a).