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Carjacking "use of force or fear" 

Posted by Christopher Martens | May 26, 2022 | 0 Comments

Carjacking - Penal Code 215 PC

Carjacking is defined as the unlawful removal of a motor vehicle from the possession of another individual via the use of force or terror, in accordance with California's Penal Code 215 PC. The violation would be a misdemeanor with a potential sentence of up to 9 years in the detention center; if a weapon was used during the execution of the crime, the potential penalty increases.

The term "use of force or fear" refers to either exerting physical force on the person accused of being the victim or attempting to commit immediate physical harm.

It makes no difference whether the individual in the automobile is the driver, a visitor, or even the vehicle owner, as long as they are in the vehicle. You may be found guilty of the offense if you resort to using force or terror to gain possession of that vehicle.

To commit the criminal offense of carjacking puts you at risk of spending up to nine years in a detention center in California. In addition, under California's three-strikes rule, carjacking counts as one of the "strikes," which implies that you must remain in custody 85 percent of your prison before you are eligible for release. If you have been convicted of carjacking in the past, you should be aware of this law.


Many other legal remedies may be used; the most popular so far include the evidence that you are a subject of misidentification or did not need to use "force or fear." Many different legal arguments may be used.

Similar Criminal Acts

The act of carjacking is frequently undertaken in conjunction with other illegal activities. The following are some of the most typical types of violent crimes: robberies, grand theft auto, abduction, battery, and violence with a dangerous weapon.

The following actions are considered to be carjacking according to California law:

"Carjacking" is defined as the illegal theft of a motor vehicle that is in the custody of some other person, from that person's place or immediate position, or from the individual or immediate existence of a passenger of the motor vehicle, against such a person's consent and with the purpose whether to fully or partially depriving the person in custody of the motor vehicle of his or her ownership, done via the use of violence or fear. 

To describe it in the simplest terms possible, carjacking is stealing an automobile from the immediate hands of another person by using either force or fear.

For the prosecution to successfully get you convicted of carjacking, they need to show the relevant facts, which together are known as the "elements" of the violence:

1. the person concerned was in control of a vehicle,

2. you removed that car from their actual presence (or removed the passenger's vehicle from his or her fastest way possible),

3. without his or her will via the use of fear or force, and

4. with the intention to deprive that individual of the use of that automobile in either a permanent or temporary capacity.

Let us take a more in-depth look at these terminologies and phrases to grasp better the meanings they have in the legal system.

Ownership and immediate appearance: When most of us think of the term "carjacking," we picture a person...

Equipped with a knife or a gun...

He was commanding a driver to get out of a vehicle. After that, the criminal sits in his vehicle and flees the scene.

In a scenario such as this one, it was abundantly evident that the automobile was in the driver's control and that he was near it. "Immediate presence" indicates that the automobile is well within the claimed victim's range, sight, or control. The accused person can keep ownership of the car even if they are dominated by fear or force.

This definition expands the concept of the carjacking legislation in California to include more circumstances, including those in which the victim is not even in the vehicle at the time of the robbery.

An illustration of this would be if the victim were to hear the motor of his vehicle start away amid the night. He goes out into the garage wherever his truck is parked, and as the driver of the vehicle (the accused) starts in it, the complainant leaps into the truck's back and insists that the defendant hand him his vehicle. Meanwhile, the truck driver continues to drive away. While the accused is driving, the victim and the accused quarrel to the point that they are yelling at each other to get out of the car. The victim gets out of the automobile as soon as he feels concerned about the accused's rage.

When the suspect resorted to fear to maintain ownership of the truck, the crime was elevated to the level of a carjacking, even though it may appear as though this would be an illustration of grand theft auto "GTA" (which is discussed somewhere below in Section x, Grand theft auto).

You took the automobile against his or her reservations

When you "steal" an automobile from another individual, it indicates that you 

(1) get ownership of the car and 

(2) relocate the car, even if just a short distance is involved.7 

You can still be found guilty of attempted carjacking even if you cannot drive the vehicle away from the crime scene, provided that the prosecution can show the other components of the crime.

The phrase "against his/her will" indicates that the victim did not provide permission. A person is said to have "consented" to something when they have done so in a free and willing manner, without being coerced or intimidated. It is necessary to have free will and to cooperate constructively. Unless the person accused of the crime freely turns over their vehicle, this need can be readily met.

For the sake of California's carjacking legislation, found in Penal Code 215 PC, the phrases "force" and "fear" mean roughly the same thing. This law prohibits either physical force or the threat of physical force. Several courts have concluded that "the coercive impact of fear created by threats is a type of force."

A person may have "fear" of danger coming to themselves, their family members, their belongings, or the people and objects currently present at the place of an incident.

"The component of fear is met when there is significant fear to force the victim to accept the unlawful demand for his or her property," Fear is considered to be satisfied when there is sufficient fear to cause the victim to comply. This indicates that the condition can be considered satisfied so long as sufficient force or terror is used to overcoming the resistance presented by the victim. The assertion that you used force or terror is not invalidated because the victim attempted to fight back against it.

To add insult to injury, the victim does not even have to be obvious that you were employing force or terror to gain custody of his or her vehicle for you to do so. For instance, even if there was a child in the vehicle or a person asleep, you may still be guilty of carjacking even if the circumstances had changed.

With the intention to deprive. 

The intent to permanently deprive the owner of the lost item is often required to be convicted of a theft violation in California. However, to be charged with carjacking in California, one must have the purpose to either permanently or temporarily deprive the owner or passenger of their vehicle.

It makes no difference whether you "carjack" somebody else's vehicle so that you may retain it for yourself, sell it, or merely "borrow" it for a shorter time...

Any taking will do for this purpose.

Mistaken Identification - A common carjacking cases defense

Carjacking is a crime in California, but there are legal arguments that your criminal defense attorney in California may raise on your side if you are charged with this crime. Typical instances include the following:

No use of fear or force: If you stole the automobile without resorting to force or fear, you are not guilty of breaching Section 215 of the Penal Code PC. The legislation applies to carjacking in California.

Take, for instance, the fact that you were drooling over somebody else's automobile when you were at the gas station. You looked inside the vehicle and found the keys, so you got in the vehicle and kept driving, leaving the vehicle owner waiting outside. You cannot be found guilty of carjacking in light of these circumstances. Rather than resorting to coercion or intimidation, you just seized it to obtain the vehicle. On the other hand, you would be guilty of the less serious joyriding or grand theft auto offenses.

Carjacking does not occur if the person taking the vehicle has the other person's permission to do so. According to the definition, a carjacking may only be said to have occurred when the vehicle was taken "against the will of the driver or passenger," according to the definition.

Take, for instance, the scenario in which someone offers you the use of their automobile. You cannot return it at the time that was previously agreed upon for any reason. After that, he accuses you of robbing an automobile.

If these things are true, then you are not guilty of carjacking since you got the authority to steal the vehicle in the first place. This particular event does not fulfill the requirements for being considered a carjacking in any way, shape, or form. This defense is analogous to the "no force or terror" defense. However, there is a chance that you are responsible for one of the less serious charges, such as grand theft auto or joyriding.

In the United States, the most common reason that innocent people are wrongfully convicted is a mistake in their identification.

A carjacking is a shocking and frightening incident, which is a factor that reduces people's capacity to remember the details of the crime and properly identify the person who committed it. As a result, many people suspected of carjacking end up being incorrectly identified and accused. If the only reason you were detained was that your physical appearance fit the description of the real criminal, we could assist you.

As Santa Barbara criminal defense attorneys, we will wish to doubt the witness's capacity to have noticed, recalled, and recognized our customer. And we may bring an eyewitness testimony expert witness to the courtroom with us so that they can explain all the different reasons why such identifications are dubious.

The "claim of right" is not an acceptable form of defense: You must be aware that it is against the law to employ force or intimidation toward the person who is currently in possession of the vehicle, even if you are the rightful owner of the vehicle. Under California law, stealing an automobile is considered a crime of possession rather than one of ownership.

The defendant, in this case, expressed interest in reconciling with his previous lover. He hid in her vehicle one morning, and then when she came up behind him and started yelling, he jumped out of the car, snatched her, and dragged her into the vehicle without her will. After that, he started driving toward the California–Mexico border, which is where he was eventually taken into custody. He alleged that he was a joint owner of the vehicle, and as a consequence, he had a claim of rights to it. As a result, he was not convicted of carjacking since he had a claim of right to the vehicle.

The court did not agree with this interpretation. Instead, it said that "the reality that carjacking does not need proof of a purpose to completely deprive the petitioner of a motor vehicle [reinforces the fact] that carjacking is essentially an offense against custody rather than ownership." As a result, a defense based on a claim of right cannot be raised against it.

In the state of California, carjacking is considered a crime. The violation of Penal Code 215 PC is a misdemeanor that can result in a sentence of detention and up to one year in the detention center, three, five, or nine years in the California county jail, and a heavy penalty of $10,000.

You will be subject to this penalty for each of the victims in the vehicle when you committed the carjacking.

However, a carjacking conviction can result in several other sentence modifications in addition to these repercussions. These sentencing enhancements accomplish exactly what they say they will do: enhance or raise your penalty under specific conditions. The examples that follow are among the most typical.

If, while committing your carjacking, you force another person suffers a serious physical injury (that seems to be a significant physical injury), you will be subject to the penalties outlined in California Penal Code 12022.7 PC. Following California's great physical injury enhancements, you will get an additional three to six years of jail time that will parallel the term you are already serving for your carjacking offense.

Penal Code 186.22 PC 

According to California's criminal street gang accusations, the carjacking was committed "for the profit of, at the supervision of, or in conjunction with any criminal street gang," according to California's criminal street gang accusations. If the prosecution can show this, then California's gang enhancement will be the effect. A conviction under section 186.22 of the Penal Code Following California's criminal street gang enhancement, you will automatically be sentenced to an additional fifteen years to life in prison, which will run consecutively to the penalty you received for violating Penal Code 215 PC. 22

Using a gun: Penal Code 12022.53 PC According to California's "10-20-life 'use a gun and you are done" statute, the minimum sentence for "using" a gun is 10 years in prison, and the minimum sentence for shooting a gun is 20 years, and the minimum sentence for murdering or badly wounding another person with a gun is 25 years in jail. In addition, as is the situation with each of the enhancements described above, this term will be served in addition to and consecutively with the penalty you receive for the prior conviction of carjacking.

You are out of the game if you get three strikes: Taking someone else's vehicle by force is a "violent crime." 24 This indicates that along with the penalties described above, a conviction under Penal Code 215 PC will lead to a "strike" on your criminal record following California's rule regarding three strikes. In addition to this, it indicates that you must have served at least 85 percent of your prison before being eligible for parole consideration. Suppose you have got a "strike" on your record from a previous conviction for a crime and are increased with another felony. In that case, you will be considered a "second striker," and your sentencing will be twice as long as the period that would otherwise be legally required. If you are accused of a third felony and have already been convicted of two strikes in the past, you will be considered a "third striker." You will be required to serve a minimum sentence of anywhere between 25 years and a lifetime in a California state prison.

Felony-murder rule: According to California's felony-murder rule, if another person is killed during the conduct of a carjacking, either you or an accomplice are immediately held liable for first-degree murder. It is true even if the death was unintended or occurred accidentally. Even if the deceased is not murdered pursuance of the carjacking, this is still the case as long as the death is rationally tied to the crime. Even though the victim is not murdered in the advancement of carjacking, it is the case.

By California Penal Code section 211, robbery is considered a felony and can result in between two and five years in state prison. However, under California law, you can only be penalized for one of these crimes if you are found guilty of robbery and carjacking. If you are found guilty of both, you will only serve a sentence for the more serious charge. The other person's punishment must be "stayed," often known as put on hold.

You have violated Section 487(d)(1) of the Penal Code. Grand theft auto, or "GTA" as it is more often known, is a crime punishable by law in California. When you burglarize a motor vehicle, the two most important distinctions between grand theft auto and carjacking are that grand theft auto does not have a "force or fear" requirement. To commit grand theft auto, you must feel inclined to deprive the car owner permanently. In contrast, carjacking can be engaged with the intent to steal the owner of the car either temporarily or permanently.

The game Grand Theft Auto is a rollercoaster. This indicates that the prosecution has the option of filing this case as either a misdemeanor or a felony, depending on their preference. If you are found guilty of the misdemeanor, the maximum sentence you might receive is one year in county prison and a fine of up to $1,000. You might be sentenced to as much as four years in state prison if you are found guilty of the crime.

Kidnapping is a crime addressed in Penal Code 209.5 PC, which covers kidnapping during the commission of a carjacking.

 Kidnapping is a charge that can be brought against you if, while committing a carjacking...and to assist the conduct of the drive away with the driver or passenger(s)...prosecutors can bring this accusation against you. Carjackings are the only situations that can qualify as "aggravated" kidnappings. The victim must move a significant distance beyond what is completely incidental to the carjacking. The motion enhances the danger of damage being inflicted upon the victim due to the movement.

Suppose, for example, that instead of ordering the driver out of the car (which would be an incidental action to the carjacking), you flash a pistol in front of her face and demand that she slides over into the passenger seat. She consents to your request. Then you leave while she is inside the vehicle. During the carjacking, you had just committed the crime of abduction.

If you are found guilty of committing an aggravated form of the crime of abduction in California, you risk a penalty of life in prison with the chance of being paroled, as outlined in Penal Code 209.5. However, much like robbery, it is impossible to receive a sentence for both carjacking and abduction in the course of a carjacking. If you are found guilty of both counts, the court will throw out the conviction for carjacking, and you will be punished based on the kidnapping count instead.

About the Author

Christopher Martens

Bio Visalia and Bakersfield criminal defense attorney who has dedicated his life to helping those who have been accused of crimes or injured due to the negligence of others.


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