One of the most aggressively prosecuted violent felony offenses in California is carjacking. Because it involves the taking of a vehicle through force or fear, carjacking is treated as a distinct violent felony. It is not considered a traffic offense or a minor property crime. Rather, it is a high-stakes felony. As you will learn from the information below, the effects of a conviction are devastating and life-altering and include extended mandatory prison terms, fines, and a criminal record that will limit your future opportunities.
The prosecution will use every available resource to secure a conviction. You do not want to leave your case to chance. You need a tough, knowledgeable criminal defense attorney on your side when facing the state and its case. Call CCLG: Los Angeles Criminal Attorney today to schedule a confidential meeting to develop a strong defense strategy.
The Legal Elements that Prosecutors Must Prove in a Carjacking Case
Carjacking is not merely a crime involving the theft of a vehicle. It is a violent, specialized crime with specific statutory elements outlined in the California Penal Code. The bar that the law sets for prosecution is very high due to the consequences at stake. A prosecutor cannot rely on assumptions. He/she must prove four distinct legal elements beyond a reasonable doubt.
The California Jury Instructions (CALCRIM 1650) instruct the jury to find you guilty of this crime only if the state can prove each of the following elements:
- Possession or Immediate Presence
The prosecution has to show that the car was removed from the actual possession of someone else, either the driver or a passenger. Immediate presence means the victim was close enough to the vehicle to retain control over it if force or fear had not been used. If an unattended vehicle is taken while no victim is present, the conduct may constitute vehicle theft rather than carjacking.
- Against the Victim’s Will
The state must prove the vehicle was taken without the victim’s consent. This is not met if the keys were handed over willingly, you were permitted to drive the vehicle, or the vehicle was taken with the victim’s consent.
- Force or Fear
The force-or-fear element is often the central issue in a Penal Code 215 case. A prosecutor is required to show that you had to use actual physical force or threatened immediate injury (fear) to overcome the victim’s resistance or stop the victim from keeping the vehicle. The charge should be reduced to a standard, non-violent theft if no force was used and no threat of harm was made.
- Intent to Deprive the Victim of Possession of the Vehicle
Carjacking is a specific intent crime, unlike regular robbery, where it is enough to intend to steal something forever. The prosecution must prove the defendant intended to deprive the victim of possession of the vehicle, either temporarily or permanently, even if it was intended for a short “joyride.”
The burden of proof remains entirely on the prosecution. There is no need to prove you are innocent. The prosecutor has the burden of proving all four of these exact CALCRIM 1650 elements. If your defense attorney can poke a hole in even one of them, the carjacking charge cannot stand.
The Difference Between Carjacking, Robbery, and Grand Theft Auto
For the average person, it may seem like just one offense. However, California law, which draws a clear distinction among the three, is clear about the differences between grand theft auto, robbery, and carjacking. These overlapping charges are routinely piled on in the same case to give prosecutors significant leverage during plea negotiations.
It is important to distinguish exactly how these crimes overlap, since a successful defense may require getting the state to downgrade a violent felony to a regular property crime.
Grand Theft Auto (PC 487(d)(1)) vs. Carjacking (PC 215)
The presence of a human being completely changes how the law categorizes the offense.
Penal Code 487(d)(1) is a property crime. It applies when a vehicle is stolen when no one is in it, for example, when the owner is asleep in their house while the car is on the street and is hotwired.
In contrast, carjacking is defined as a violent crime against the person. The law requires that a vehicle be taken from a driver or passenger by force or by the threat of injury.
Robbery (PC 211) vs Carjacking (PC 215)
Both charges require that the property be taken by force or fear. However, the two crimes differ on an extremely important element, specific intent.
To secure your conviction for robbery under Penal Code 211, the state must prove that you had the intent to take the property away from the owner forever.
Unlike Penal Code 215, carjacking does not distinguish between whether the intent was to take the car away or not. A carjacking charge can apply even if a vehicle was just stolen for a short joyride to get away from a circumstance. Depending on the facts, you may face both robbery and carjacking charges arising from the same incident since a vehicle is considered personal property.
The type of crime that a prosecutor labels your case determines the path of your life. These laws are structurally different, which results in mass disparities in prisons.
Grand Theft Auto is a “wobbler” offense that can be charged as a misdemeanor or a nonviolent felony. It is punishable by up to 3 years in county jail and results in no strike under California’s Three Strikes Law.
Second-degree robbery is a violent felony punishable by up to five years in state prison and a strike.
One of the most serious charges under California law, a carjacking conviction carries up to 9 years in state prison for one count, is a strikeable offense, and generally requires service of at least 85% of the sentence because it is a violent felony. An experienced criminal defense attorney will expose these technical differences and systematically dismantle an overcharged case.
What Counts as “Immediate Presence” and “Force or Fear”?
The prosecution must establish two legal concepts that have been highly debated: “immediate presence” and “force or fear” to secure your conviction pursuant to Penal Code 215. These terms might seem subjective, so California courts have created guidelines. Prosecutors will attempt to expand these definitions so that a typical theft charge can be presented as a violent crime. It is important to know exactly where the line is drawn.
One common misconception is that you must be driving the vehicle for the offense to qualify as carjacking. In California, “immediate presence” is defined as being in proximity to the vehicle and being able to retain physical control of it had they not been overcome by force or intimidation.
If, for example, a person is standing outside his/her car to pay for fuel at a gasoline pump or putting groceries in the trunk, the car is considered to be in the immediate vicinity. The same applies if the prosecutor claims you tricked a driver out of his/her car, for example, by staging a minor fender bender and then following up with threats to get the driver out of the vehicle after they were on the asphalt.
The immediate presence rule applies to anyone in the vehicle, not just the individual with the keys. The state can claim that you took the car from a passenger when you take a vehicle by force with someone else, like a sleeping child, in the car. This counts as carjacking. Furthermore, if a passenger is in the vehicle against his/her will when it is driven off, a kidnapping charge will be added to the carjacking charge to make it a serious, life-changing offense.
The law does not require the use of a weapon to meet the fear or force threshold. Brandishing a gun or a knife is sufficient, but much less.
If you simply shoved a driver, grabbed his/her arm or took the keys from him/her, the state can claim that you used physical force. If the state can prove that you verbally threatened to injure the driver, or you used aggressive body language that suggested you had a weapon and threatened to injure the driver, the prosecution may argue that the fear element has been satisfied and will be required to give up the car.
However, if you slipped into an unlocked car while the driver walked away to drop mail in a mailbox, no force or fear was directed at a person. In these cases, a knowledgeable defense lawyer can pursue a vigorous defense to get your violent felony charge dropped or downgraded to a non-violent property theft charge.
The Penalties for Carjacking
California takes carjacking seriously, and if you are charged with this offense, it is important that you understand the gravity of your situation. It is never prosecuted as a misdemeanor because it involves theft as well as the threat of violence against a person. The consequences are severe if you are convicted and may affect you for life.
If convicted of felony carjacking, you will have to serve time in prison. The judge will consider the facts of your case to decide between the three types of standard statutory prison sentences:
- Low-term — 3 years in state prison
- Middle-term — 5 years in state prison
- High-term — 9 years in state prison
You may be required to pay formal restitution to the victim, in addition to the sentence imposed in state prison, up to a maximum of $10,000.
The most harmful part of a carjacking conviction is that it is classified as a strikeable offense. Carjacking is a violent felony under California law. Under the state’s Three Strikes Law, this designation has immediate, harsh consequences.
When you are convicted, it will result in a strike on your record. A strike conviction can have long-term consequences under California’s Three Strikes Law. Since it is a violent offense, you will not be able to earn standard conduct credits for your time in custody. You cannot even be considered for parole until you have served at least 85% of the prison term. If you are ever convicted of any felony charge in the future for a second strikeable offense, the second strike will result in double the penalties for your second offense.
A prior strike history can substantially increase sentencing exposure under the Three Strikes Law. A new carjacking conviction will result in a minimum of 25 years to life imprisonment in state prison.
Firearm, Kidnapping, and Injury Enhancements in Carjacking Cases
The base punishment for carjacking is already extremely harsh, but prosecutors do not stop there. If your case involves certain aggravating factors, the law dictates that additional, mandatory prison terms must be added directly on top of your baseline punishment. These are called sentence enhancements. They do not begin until your main sentence is complete.
These enhancements can turn a few-year sentence into a life sentence in a carjacking case.
The “10-20-Life” Firearm Law (PC 12022.53)
The worst possible enhancement you can receive is the firearm enhancement provisions of Penal Code 12022.53. The state must prove a firearm was used in your carjacking case. The additional sentences are serious:
- An additional 10 years for simply personally using or brandishing a firearm during the crime, even if the gun was completely unloaded or inoperable
- An additional 20 years if the shooting or discharge was intentional, even if no one was injured during the incident
- 25 years to life, if you intentionally fire the gun and cause great bodily injury or death to any person who is not an accomplice.
These enhancements appear to be a foolproof process, but judges may, in some circumstances, exercise discretion to strike or dismiss certain firearm enhancements in the interest of justice. A strategic defense attorney will focus heavily on fighting for this dismissal to protect your freedom.
Kidnapping During a Carjacking (PC 209.5)
If the state claims you coerced the driver or another passenger to remain in the vehicle and drove off with them, the charges against you will increase from a regular carjacking to aggravated kidnapping under Penal Code 209.5.
To secure a conviction for this enhancement, prosecutors must show that you moved the victim “a substantial distance” from the original scene and that the movement was not just a part of obtaining the car but that the movement was an actual increase in the victim’s risk for physical harm.
If the state meets these components, the penalty is automatically life imprisonment with the possibility of parole, subject to statutory minimum parole eligibility requirements.
Great Bodily Injury (GBI) Enhancement (PC 12022.7)
Penal Code 12022.7 will be added to the offense if the alleged victim is injured by significant or substantial physical injury during the encounter. This adds 3 to 6 years of imprisonment in state prison, in addition to the minimum prison term.
A GBI enhancement significantly increases sentencing exposure, thereby eliminating the possibility of early release and giving you the maximum pushback from the parole board. Your defense needs to be able to contradict the medical evidence used to support a GBI claim.
Defenses You Can Use in a Carjacking Case
A carjacking charge under Penal Code 215 can feel insurmountable, but you are not without options. Because the prosecution faces a strict burden of proof to establish every technical element of the crime, a targeted defense strategy can reveal important weaknesses in the prosecution’s case. A criminal defense attorney will review the specific circumstances of your arrest to identify the best legal defense for you, whether it is a dismissed case or reduced charges, to preserve your rights.
Your attorney could use any of the following defenses for your case:
The Alleged Victim Consented
You cannot be found guilty of carjacking if the driver permitted you to take the car. The ‘against the victim’s will’ element cannot be established if a valid consent existed. The requirement goes out the window if the alleged victim voluntarily gave you the car keys or entrusted you with the driving.
Many of these situations occur due to volatile domestic relationships, high demands and disputes within the business, or strong misunderstandings with the individual who initially gave you the car, only to call the police again because they were angry or retaliating.
If your attorney can prove you had a reasonable, good-faith belief that you were allowed to take the car, the carjacking charge should be dismissed.
You Were Mistakenly Identified as the Carjacker
There is a lot of chaos, speed, and fear involved with carjacking. They often take place in dark parking lots, at night, or in high-stress situations, making eyewitness identifications unreliable.
Where the state’s case is heavily dependent on the victim’s identification in a lineup, that identification can be aggressively challenged. Your lawyer may be able to reveal circumstances that hindered the witness’s ability to see, including lighting, the short duration of the situation, or the natural “weapon focus” phenomenon, in which the victim focuses solely on an alleged weapon instead of the face of the person holding it. A confirmed alibi, cell phone location data, or surveillance video can show you were nowhere near the scene.
Furthermore, the emotional trauma of an unexpected attack can have devastating effects on the ability to remember. A person may not remember a sequence of events or may be unable to recall its entire context, making it possible for them to infer events that did not actually happen. Identifying these mental shortcomings and the lack of physical evidence can destroy the prosecution’s case and establish the doubt required to secure an acquittal.
Lack of Force or Fear
The difference between a regular property crime and a violent felony is the use of intimidation or physical violence. Carjacking does not occur when someone moves the car by stealth or trickery without confronting, threatening, or touching any person.
For example, if you observed someone idling a car outside a convenience store, entered the store, and drove off while the person was inside the store, the facts may support a vehicle-theft charge rather than carjacking (PC 487(d)(1)).
When a prosecution admits that there was no forced or threatened use of force, it is a very powerful way to get your charges downgraded to a non-violent theft and remove the lifetime strike designation from the record. This is a key part of a strong defense argument. Your attorney can show that there was no violence or force involved, and that will help dismantle the violent felony charge, so that you will not face harsh penalties for future strikes.
You Believed You Owned The Car
If you truly believe that the vehicle is yours, for example, if you sold a car to someone who never made the payments, then you believe that you have the right to take it back. Criminal cases for theft and robbery include an exception for ownership known as the “claim of right,” provided the claimant is an honest and good-faith claimant.
Because Penal Code 215 is legally classified as a crime against possession rather than ownership, the law strictly prohibits you from using force or fear to reclaim a vehicle, even if your name is the only one printed on the legal title. Where force was used, your defense is likely to focus primarily on breaking down the charges of intimidation or establishing identity, rather than just on who owns the car.
Contact a Criminal Defense Attorney Near Me
The carjacking charge can change your life forever, with required prison time and an impact that could last a lifetime on your record. The state will do its best to convict you, but you do not have to do everything by yourself. The elements of the prosecution’s case must be established beyond a reasonable doubt, and an expert defense can raise a reasonable doubt. If your freedom and future are at stake, call CCLG: Los Angeles Criminal Attorney today to schedule a confidential consultation, and let us put together an aggressive strategy to protect your rights. Contact us at 323-922-3418.
