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Car Jacking Overview – Penal Code Section 215
Under California Penal Code Section 215, carjacking is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, against his or her will and with the intent to permanently or temporarily deprive the person of the motor vehicle, accomplished by means of force or fear. Moreover, carjacking includes taking a motor vehicle within the immediate presence of a passenger of the motor vehicle.
Felonious taking is defined as the illegal taking away of something. Taking away a car that is not yours is a felonious taking.
An experienced carjacking defense attorney can help raise critical defenses to the carjacking charges. One of the defenses against a charge of a carjack is that the defendant did not specifically intend to steal the car before or during the time the fear or force was used.
Carjacking laws have serious penalties. Carjacking is a felony punishable by imprisonment in state prison for up to nine years. The penalty can be increased if a weapon was involved in the carjacking. A conviction for carjacking is also considered a strike under the California Three Strikes law because it constitutes a “serious felony.†See California Penal Code 1192.7(c).
If you or a loved one is facing a carjacking charge, it is critical that you speak with an experienced criminal defense attorney. At Wallin & Klarich, our California car jacking defense attorneys have over 30 years of experience in handling all types of criminal matters, including carjacking cases. Our attorneys will defend your rights and provide you with the quality representation that you deserve. Call us today at (888) 749-0034 or visit us on our website at www.wklaw.com. We will be there when you call.
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Car Jacking Prosecution – Penal Code Section 215
To prove that the defendant is guilty of a carjacking, the prosecution must prove that:
- The defendant took a motor vehicle that was not his or her own;
- The vehicle was taken from the immediate presence of a person who possessed the vehicle or was its passenger;
- The vehicle was taken against that person’s will;
- The defendant used force or fear to take the vehicle or to prevent that person from resisting; and
- When the defendant used force or fear to take the vehicle, he or she intended to deprive the other person of possession of the vehicle either temporarily or permanently.
The defendant’s intent to take the vehicle must have been formed before or during the time (he/she) used force or fear. 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 understand the nature of the act.
A person takes something when he or she gains possession of it and moves it some distance. The distance moved in a carjacking may be short.
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.
Two or more people may possess something at the same time.
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.
Fear 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.
A vehicle is within a person’s immediate presence if it is sufficiently within his or her control so that he or she could keep possession of it if not prevented by force or fear.
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Car Jacking Defenses – California Penal Code 215
Mental State Requirement
The crime of carjacking requires that the defendant must have had the specific intent to take away or deprive the person of the vehicle before or during the time the defendant is using the force or fear. If the defendant did not form the intent to take away or deprive the person of the vehicle until after using the force or fear, then (he/she) could not have carjacked a car.
Motor Vehicle Was Owned by the Defendant
The defendant cannot be convicted of carjacking if the defendant owned the vehicle.
The Vehicle Was Not Taken from the Immediate Presence of a Person Who Possessed the Vehicle
The defendant has a defense to carjacking if the vehicle was not taken from the immediate presence of a person who possessed the vehicle or the passenger of the vehicle.
The Vehicle Was Not Taken Against the Person’s Will
If the vehicle was not taken against the person’s will, the defendant cannot be convicted of carjacking. If the vehicle owner consented to allowing the defendant to use the vehicle, the owner cannot later claim that the defendant carjacked the vehicle.
The Defendant Did Not Use Force or Fear to Take the Vehicle or to Prevent that Person From Resisting
The defendant cannot be convicted of carjacking if the defendant did not use force or fear to take the vehicle. However, the defendant may still be charged with other crimes if the defendant stole the vehicle.
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Car Jacking Sentencing and Punishments – California Penal Code 215
Car Jacking Sentencing and Punishment “ California Penal Code Section 215
Carjacking is a felony and punishable by imprisonment in the state prison for a term of three, five, or nine years. A carjacking conviction is also a “strike” under the California Three Strikes Law. See California Penal Code Section 667, 1192.7(c)(27).
Armed with a Firearm During the Carjacking – California Penal Code Section 12022(a)(1)
Any person armed with a firearm in a carjacking or attempted carjacking shall be punished by an additional one-year term in state prison.
A firearm is any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion.
Armed with an Assault Weapon During the Carjacking – California Penal Code Section 12022(a)(2)
If the firearm is an assault weapon, machinegun, or a .50 BMG rifle, the additional term in state prison shall be three years.
Actually Using a Deadly or Dangerous Weapon During the Carjacking “ California Penal Code Section 12022(b)(2)
Any person who personally uses a deadly or dangerous weapon during a carjacking or an attempted carjacking shall be punished by an additional term in state prison for one, two, or three years.
A deadly weapon is any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.
If you or a loved one is facing a charge of carjacking, it is important that you speak with an experienced carjacking defense attorney. At Wallin & Klarich, our attorneys have over 30 years of experience in handling all types of criminal matters, including carjacking cases. Our attorneys are highly knowledgeable and will aggressively represent you to get the best possible result in your case. Call us today at 888-749-0034 or visit us at our website at
www.wklaw.com. We will be there when you call.
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Car Jacking FAQ – California Penal Code 215
What is the difference between armed with a firearm and using a deadly weapon?
The penalties for being in possession of a weapon or using a weapon during a carjacking are different. Being “armed with a firearm” means that when the carjacking was committed, the defendant had a gun in his/her possession at the time. The defendant does not have to even use the firearm to receive the sentencing enhancement. This is a penalty of an additional one year in state prison on top of the punishment the defendant receives for the carjacking. However, if the defendant is armed with an assault weapon, as defined in California Penal Code Section 12276 or Section 12276.1, the enhancement would be a punishment of an additional three years in state prison.
If any weapon was used during the carjacking, the penalty can be an additional three years in state prison.
What if I just took the person’s car keys away from them instead of taking their car?
Carjacking can also occur when a defendant forcibly takes a victims car keys, not just when a defendant takes a car from the victims presence.
Does it matter if the person leaves the car while the carjacking takes place?
The taking can occur whether or not the victim remains with the car.
How far do I have to drive to constitute a “felonious taking?”
No great movement is required, and it is not necessary that the property be taken out of the physical presence of the victim. Slight movement is enough to satisfy the requirement.
Can I get probation for carjacking?
The court has the power to place the defendant on probation. If the defendant is placed on probation, the court may impose from one day to one year in the county jail as a condition of probation.
If the defendant is placed on felony probation for an offense, this means he/she likely will have a probation officer. The defendant will have to report to the probation officer on a regular basis. The defendant also may be ordered to “test” regularly so the probation officer can be certain he/she is not using illegal drugs. In addition, the defendant likely has to give up his/her “search and seizure rights” during the probation period. This means that any member of law enforcement who knows the defendant is on felony probation can search their person or property or home without the need for a search warrant.
In addition, if you are placed on felony probation this means that if your probation officer believes you have violated any of the terms of your probation, he can arrest you without a warrant. In most cases if this happens you will sit in jail without bail until the judge decides whether you in fact did violate your probation. If the judge finds you did violate your probation, you can then be sent to state prison.
