In California, the crime of “Carjacking” is punished by California Penal Code § 215, which states in relevant part:

a) “Carjacking” is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, 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.

b) Carjacking is punishable by imprisonment in the state prison for a term of three, five, or nine years.

c) This section shall not be construed to supersede or affect Section 211 (Robbery). A person may be charged with a violation of this section and Section 211. However, no defendant may be punished under this section and Section 211 for the same act which constitutes a violation of both this section and Section 211.

Carjacking is essentially robbery involving the theft of a vehicle. It will always be charged as a felony and may be charged together with Robbery under PC § 211. However, as stated above, one may not be receive double sentencing for both robbery and carjacking if the charges arose out of the same occurrence. To receive punishment for both a robbery and carjacking taking place in the same instance, there would need to be a robbery independent of the carjacking; taking someone’s wallet as they exited the vehicle for example.

Because an individual may be charged under PC § 211 and PC § 215 simultaneously for the same conduct, sentencing will vary depending on the prosecutions recommendations to the court based on circumstances specific to the case. If an instance of carjacking is charged as a robbery as well, provided the vehicle is not one used for public transportation, it will likely be charged as second degree robbery, rather than first degree. If the court decides to sentence the individual under PC § 211, the sentencing range without priors will be between 2 and 5 years in state prison. However, if the court decides to sentence under in PC § 215, the sentencing range could be anywhere from 3 to 9 years in state prison. Additionally, because robbery of any kind is counted as a strike on your record, if an individual with prior strikes commits an offense under PC § 211 or PC § 215, this could double the maximum sentencing allowable under the statutes. If the carjacking is committed with the use of a firearm or if the victims are harmed in the course of the carjacking, this could add an additional 10 to 20 years to the sentence.

The prosecution must show a taking and moving of a vehicle not belonging to the defendant, from the presence of the alleged victim, by use of force or fear. Therefore, as in robbery, there are some key elements under this section the prosecution must prove which will be left entirely up to the subjective interpretation of the court. Namely, the prosecution must show that the alleged victim was actually and reasonably in fear of a legitimate harm to themselves, a loved one, or their property because of the perceived conduct by the defendant. It could be the case that the alleged victim had no legitimate reason to believe a threat of harm existed at the time the defendant took possession of the vehicle. Consider a situation in which the keys are voluntarily given to a parking attendant or valet, or someone posing as such. The requisite force or fear under PC § 211 or PC § 215 will not be present in this situation. The prosecution must also show that the vehicle was taken from the presence of the individual. This distinguishes Carjacking from Grand Theft Auto (GTA), under PC § 487, which carries a less severe punishment. GTA does not require the alleged victim to be present at all at the taking of the vehicle. Finally, the prosecution must show that the defendant had the intent to deprive the alleged victim of the vehicle temporarily or permanently. If the defendant had a genuine, yet mistaken, belief that they had a legal right or claim to the vehicle, and were merely taking back possession of the vehicle, this will negate the requisite mental state necessary to successfully bring a claim against the defendant under PC § 215 or PC § 211.

The aforementioned elements under this section are all issues that will be left up the court in determining whether carjacking is the proper offense to hold the defendant accountable for, if any. If you are arrested and charged under PC § 215, the sooner you contact an experience and skillful criminal defense attorney, the better your chances will be in either reducing the charges, minimizing sentencing, or even having the charges dropped altogether. Because you may be charged for Robbery under PC § 211, GTA under PC § 487, as well as Carjacking under PC § 211, even with no prior criminal history, you may be facing anywhere from 16 months to 9 years in state prison. Given the discrepancies in sentencing parameters available to the court, preliminary negotiations with the prosecution considering the unique circumstance of your case will be critical. Often times, when the court is given such broad discretion in charging and sentencing an individual, the court will also consider various forms of collateral evidence concerning the character and otherwise good will of the defendant as a contributing member of society. Therefore, with regards to vehicle theft, it pays dividends to retain an experience defense that is willing to fight on your behalf to provide the court with any and all pertinent pieces of information that will persuade the court to exercise its discretion on the side of leniency towards your unique circumstances.

Whatever the facts specific to your case may be, it is imperative that you consult with an experienced and aggressive San Diego carjacking lawyer so that may consult with you on the best avenue to take in ensuring your liberty and rights are protected. Attorneys at the Law Office of Marc S. Kohnen have been able help many people through these difficult and delicate matters involving charges under PC § 215. If you or a loved one has been arrested and charged with Carjacking, please feel free to contact the Law Office of Marc S. Kohnen for a free and confidential consultation about your options in this pressing issue.