California "Carjacking" Laws
Penal Code 215 PC

Penal Code 215 PC -- California's carjacking law - makes it a serious crime to take a car from another person by means of force or fear.1 "Force or fear" means that you actually inflict physical force upon the alleged victim or that you threaten to inflict imminent physical harm.

It doesn't matter whether the person in the car is a driver or a passenger...or whether those individuals even own the car. If you use force or fear to take control of that car, you may be convicted of the charge.

Penalties

California's carjacking law is a felony, subjecting you to up to nine years in the California state prison, and to more if you

  1. injure a victim,
  2. use a gun,
  3. commit the offense for the benefit of a gang, or
  4. kidnap an individual during the carjacking.

In addition, carjacking is a "strike" under California's three strikes law, which means that you must serve at least 85% of your sentence before you will be eligible for parole.

Defenses

There are a variety of legal defenses that apply to carjacking, the most common of which include the facts that

  1. you are a victim of mistaken identity, or
  2. you didn't use "force or fear".
Related offenses

Many times carjacking is committed in connection with other crimes. Some of the more common ones include (but are not limited to):

  • robbery,
  • grand theft auto "GTA" or joyriding,
  • auto burglary,
  • kidnapping,
  • battery, and/or
  • assault with a deadly weapon.

In this article, our California criminal defense attorneys2 provide a comprehensive guide to understanding California's carjacking law by answering the following questions:

1. The Legal Definition of "Carjacking"
in California

1.1. Possession and immediate presence

1.2. You took the car against his/her will

1.3. Force or fear

1.4. The intent to deprive

2. What are the Legal Defenses
to Carjacking?

2.1. No force / fear

2.2. Consent

2.3. Mistaken Identity

2.4. No claim of right

3. What are the Penalties, Punishments and Sentencing for Carjacking?

3.1. Great bodily injury

3.2. Penal Code 186.22 PC California's criminal street gang enhancement

3.3. Penal Code 12022.53 PC California's "10-20-life 'use a gun and you're done'" law

3.4. California's three strikes law

3.5. California's felony-murder rule

3.6. Immigration / removal

4. What Crimes are Related to Carjacking?

4.1. Penal Code 211 PC robbery

4.2. Grand theft auto "GTA"

4.3. Joyriding / auto theft

4.4. Auto burglary

4.5. Kidnapping

4.6. Battery

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

In addition, you may also find helpful information in our related articles on California Theft Offenses; Wobblers; Misdemeanors; Felonies; Violent Felonies; California's Three Strikes Law; California Parole Laws; Penal Code 211 Robbery; Grand Theft Auto "GTA"; Auto Burglary; California's Kidnapping Law; Penal Code 242 PC California's Battery Law; Assault with a Deadly Weapon; Legal Defenses; Penal Code 12022.7 PC California's Great Bodily Injury Sentencing Enhancement; Pretrial Lineups; Penal Code 186.22 PC California's Criminal Street Gang Enhancement; Penal Code 12022.53 PC California's "10-20-life 'Use a Gun and You're Done'" Law; California's Felony-Murder Rule; How Convictions Can Lead to Deportation or Removal if you are a Legal Immigrant or Alien.

1. The Legal Definition of "Carjacking" in California

California Penal Code 215 PC states, in pertinent part,

"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."3

Simply put, carjacking is

  • the taking of a vehicle from someone's immediate possession
  • accomplished through force or fear.
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In order to convict you of carjacking, the prosecutor must prove the following facts (which are referred to as "elements" of the offense):

  1. a person had possession of a car,
  2. you took that car from his/her immediate presence (or from the passenger's immediate presence),
  3. against his/her will by force or fear, and
  4. with the intent to deprive that person of that car either permanently or temporarily.4

Let's take a closer look at some of these terms and phrases to gain a better understanding of their legal definitions.

1.1. Possession and immediate presence

When we think of "carjacking", we typically envision a person...armed with a gun or knife...ordering a driver out of a car. The criminal then gets in the car and drives off.

Under that type of example, the car was clearly under the driver's possession and within his immediate presence. "Immediate presence" means that the car is within the alleged victim's reach, observation or control, so that he/she could retain possession of the car if he/she weren't overcome by force or fear.5

This definition broadens the scope of California carjacking law beyond scenarios where the victim is driving the car, or even inside the car for that matter.

Example: The victim wakes up in the middle of the night when he hears the engine of his truck start. He runs out into the driveway where his truck is parked and, as the driver (the defendant) drives off in it, the victim demands that the defendant give his car back as he jumps into the back of the truck. While the defendant drives, he and the victim argue, both screaming at the other to get out of the car. When the victim begins fearing the defendant's temper, he gets out of the car.
Although it seems like this would just be an example of grand theft auto "GTA" (discussed below in Section x, Grand theft auto), it became a carjacking when the defendant resorted to fear to retain possession of the truck.6

1.2. You took the car against his/her will

When you "take" a car from another person, it means that you (1) take possession of the car, and (2) move the car, even if only a slight distance.7 If for whatever reason you are unable to move the car, you can still be convicted of attempted carjacking, as long as the prosecutor can prove the remaining elements of the offense.8

"Against his/her will" means without the victim's consent.9 A person "consents" to something when he/she does so freely and voluntarily, not under the influence of force or fear. It requires a free will and positive cooperation.10

Unless the alleged victim willingly hands over his/her car, this element is easily satisfied.

1.3. Force or fear

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For purposes of Penal Code 215 PC California's carjacking law, the terms "force" and "fear" essentially mean the same thing. Courts have held that "the coercive effect of fear induced by threats is in itself a form of force".11

"Fear" refers to fear of harm to one's person, property, family or people/property that are present at the scene of the incident.12

"The element of fear is satisfied when there is sufficient fear to cause the victim to comply with the unlawful demand for his/her property."13 This means that, as long as you use enough force or fear to overcome the victim's resistance, the element is satisfied. A victim's attempts at resistance do not disprove or negate the claim that you used force or fear.14

What's more is that the victim doesn't even need to be consciously aware that you were using force or fear to take possession of his/her car. For example, you could still be convicted of carjacking if there were an infant in the vehicle or if there was an unconscious person in the car.15

1.4. The intent to deprive

In general, California theft offenses require an intent to deprive the owner of the stolen property for good. But California's carjacking law requires an intent to deprive the owner/passenger of his/her car either permanently or temporarily.16

It is irrelevant whether you "carjack" someone's car in order to keep it for yourself, sell it or just to "borrow" it for a short period...any taking will suffice.

2. What are the Legal Defenses to Carjacking?

Fortunately, there are legal defenses to carjacking that your California criminal defense attorney could present on your behalf. Common examples include (but are not limited to):

2.1. You didn't use force or fear

If you didn't use force or fear to take the car, you aren't guilty of violating Penal Code 215 PC California's carjacking law.

Let's say, for example, that you were admiring someone's car at the gas station. You saw that the keys were in the car and got in and drove away, leaving the owner standing outside. Under these facts, you are not guilty of carjacking. You did not resort to using force or fear to get the car...you simply took it. You would, however, be guilty of a less serious offense of grand theft auto or joyriding, both of which are discussed below in Section 4. The Crimes that are Related to Carjacking).

2.2. Consent

If you had consent to take another person's vehicle, there is no carjacking. By definition, a carjacking only takes place when the taking is "against the driver's or passenger's will".

Let's say, for example, that someone allows you to borrow his car. For whatever reason, you don't return it on the agreed upon time. He then accuses you of carjacking.

Given these facts, you would not be guilty of carjacking, since you had permission to take the vehicle. Similar to a "no force or fear" defense, this type of scenario simply doesn't meet the criteria for a carjacking. But again, you may be guilty of one of the less serious offenses of grand theft auto or joyriding, both of which are discussed below in Section 4. The Crimes that are Related to Carjacking).

2.3. Mistaken identity

Mistaken identification is the leading cause of wrongful convictions in the United States.

Carjacking is a startling and stressful event...a factor which detracts from peoples' ability correctly to remember and identify the perpetrator. Therefore many carjacking suspects get mis-identified and wrongly accused. If you were arrested merely because you matched the physical description of the actual offender, we can help!

As San Bernardino criminal defense attorney Michael Scafiddi17 explains, "In a carjacking case where we assert a misidentification defense, we may want to get the court to order a lineup. We will want to question the witness's ability to have perceived, remember and identify our client. And we may want to call an eyewitness identification expert witness at trial to explain all the reasons that such identifications are unreliable."

2.4. "Claim of right" is not a defense

It is important to understand that even if you are the true owner of the car, you are not allowed to use force or fear in order to regain it from someone else in possession of the car. This is because California criminal law considers carjacking a crime against possession, not ownership.

Example: Defendant wanted to get back together with his ex-girlfriend. One morning, he hid in her car and when she approached and began screaming, he got out of the car, grabbed her and forced her into the car. He then drove toward the California / Mexico border where he was ultimately arrested. He claimed that he was part owner of the car and...as a result...he had a claim of right to it and therefore wasn't guilty of carjacking.
The court disagreed, stating that "the fact that carjacking does not require proof of an intent to permanently deprive the victim of a motor vehicle [strengthens the fact] that carjacking is strictly a crime against possession rather than ownership. As such, it is not subject to a claim of right defense."18
3. What are the Penalties, Punishments and Sentencing for Carjacking?

Penal Code 215 PC is a felony, punishable by

  • probation and up to one year of county jail, or
  • three, five or nine years in the California state prison and a maximum $10,000 in fine.19

You face this punishment for each victim that is present in the car at the time of the carjacking.20

But in addition to these penalties, there are a variety of sentencing enhancements that are applicable to carjacking. These sentencing enhancements do just that...enhance or increase your sentence under certain circumstances. Below are some of the most common.

3.1. Great bodily injury

If...during your carjacking...you cause another person to suffer a great bodily injury (that is, a substantial physical injury), California Penal Code 12022.7 PC California's great bodily injury enhancement imposes a three to six-year prison sentence in addition and consecutive to the penalty you receive for your carjacking conviction.21

3.2. Penal Code 186.22 PC California's criminal street gang enhancement

If the prosecutor proves that you carjacked "for the benefit of, at the direction of, or in association with any criminal street gang", California's gang enhancement kicks in.

A conviction under Penal Code 186.22 PC California's criminal street gang enhancement automatically imposes a fifteen-year-to-life prison sentence in addition and consecutive to your Penal Code 215 PC penalties.22

3.3. Penal Code 12022.53 PC California's "10-20-life 'use a gun and
you're done'" law

Penal Code 12022.53 PC California's "10-20-life 'use a gun and
you're done'" law
subjects you to 10 years in prison for "using" a gun, 20 years for firing a gun, and 25-years-to-life for killing or seriously injuring another person with a gun. And, as is the case with all of the above enhancements, this is in addition and consecutive to the sentence you receive for the underlying carjacking conviction.23

3.4. California's three strikes law

Carjacking is classified as a "violent felony".24 This means that in addition to the above penalties, a Penal Code 215 PC conviction will result in a "strike" on your criminal record pursuant to California's three strike's law.25 It also means that you must serve at least 85% of your sentence before you will be eligible for
parole.

If you are subsequently charged with any felony and have a prior "strike" on your record, you will be treated as a "second striker," and your sentence will be twice the term otherwise required by law.26

If charged with a third felony, and you have two prior strike convictions, you will be treated as a "third striker" and will serve a mandatory minimum sentence of 25 years-to-life in California state prison.27

3.5. California's felony-murder rule

If, during the commission of a carjacking, you or an accomplice accidentally or unintentionally kills another person, California's felony-murder rule automatically holds you responsible for first-degree murder.28 This is the case even when the victim isn't killed in furtherance of the carjacking, as long as the death is logically related to the crime.29

This could be the case if, for example, the victim suffered a heart attack from the stress of the event.30

3.6. Immigration / removal

Because carjacking is considered an "aggravated felony", a Penal Code 215 PC carjacking conviction could additionally lead to your deportation or removal if you are a legal immigrant or alien.31

4. What Crimes are Related to Carjacking?
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Depending on the circumstances surrounding the offense, there are a number of crimes that prosecutors may charge in addition to or in lieu of carjacking. The following are some of the most common.

4.1. Penal Code 211 PC robbery

You violate Penal Code 211 California's robbery law when you take someone else's property from the person's body or immediate possession when accomplished by force or fear.32

Carjacking is essentially robbing someone of his or her motor vehicle. But the legislature created Penal Code 215 in order to punish robbery of a car more seriously (robbery carries only a maximum sentence of 5 years per count, whereas carjacking carried 9).

It's possible to commit both offenses in the same incident. Suppose, for example, that you approach a driver, forcefully demand his wallet and then order him to get out of the car so you can drive away. Prosecutors can charge you with both robbery of the wallet and carjacking.33

Robbery is also a felony charges, punishable by two to five years in the state prison. However, if you are convicted of both robbery and carjacking, California law only allows you to be punished for one of these offenses. The sentence for the other must be "stayed" or set aside.34

4.2. Grand theft auto "GTA"

You violate Penal Code 487(d)(1) PC California's grand theft auto law ...more frequently referred to as "GTA"...when you steal a car. The two main differences between GTA and carjacking are

  1. GTA has no "force or fear" requirement, and
  2. in order to commit grand theft auto, you must intend to deprive the owner of the car permanently - whereas carjacking is committed with an intent to deprive the owner of the car permanently or temporarily.

Grand theft auto is a wobbler. This means that prosecutors can choose to file this charge as either a misdemeanor or a felony, depending on

  1. the circumstances of the offense, and
  2. your criminal history.

If convicted of the misdemeanor, you face up to one year in a county jail and a maximum $1,000 fine. If convicted of the felony, you face up to four years in the state prison (up to two more if the car is worth more than $65,000) and a maximum $10,000 fine.35

4.3. Joyriding / auto theft

"Joyriding"...discussed in detail in our article on Grand Theft Auto and also referred to as auto theft...takes place when you unlawfully take or drive a car that doesn't belong to you. Like carjacking, there is no intent to deprive the owner of the car permanently...all that is required is that you unlawfully take or drive a car that doesn't belong to you. And like GTA, there is no "force / fear" requirement with joyriding.

Joyriding is also a wobbler, though it is usually charged as a misdemeanor. If convicted of the misdemeanor, you face up to one year in a county jail. If convicted of the felony, you face up to three years in the state prison and a maximum $5,000 fine (or up to four years in the state prison and a maximum $10,000 fine if the vehicle is an ambulance, police car, fire truck, etc.).36

4.4. Auto burglary

If the car that you carjack, steal or joyride is locked, prosecutors could additionally charge you with the California crime of auto burglary. Auto burglary is also a wobbler, punishable by up to one year in the county jail or up to three years in the state prison.37

4.5. Kidnapping during a carjack

California Penal Code 209.5 addresses the crime of kidnapping during the commission of a carjacking.

If, during the commission of a carjacking...and in order to facilitate the commission of the carjacking...you drive away with the driver or passenger(s), prosecutors can charge you with kidnapping.

This type of "aggravated" kidnapping is specific to carjackings. It requires that

  1. the victim is moved a substantial distance beyond that which is merely incidental to the carjacking, and that
  2. the movement increases the risk of harm to the victim.

Suppose, for example, instead of ordering the driver out of the car (movement which is incidental to the carjacking), you waive a gun and demand that she moves over into the passenger seat. She complies. Then you drive off with her inside. Now you've committed kidnapping during a carjacking.

If you are convicted of violating this aggravated form of
California's kidnapping laws, under Penal Code 209.5 you face a life sentence with the possibility of parole.38

But like robbery above, you cannot be punished for both kidnapping during a carjacking, and carjacking. If you are convicted of both offenses, the judge will dismiss the carjacking conviction, and you will be sentenced on the kidnapping count.39

4.6. Battery

If you actually use force or violence upon the driver or a passenger to remove him/her from the car...or "push" him/her over into a different seat...prosecutors may additionally charge you with battery. Penal Code 242 PC California's assault & battery law is a misdemeanor, subjecting you to a maximum six-month jail sentence.40

However, if you inflict a "serious bodily injury" on the victim...or use a gun or other weapon to complete the carjacking...you could face charges for battery with serious bodily injury and/or assault with a deadly weapon, both of which are wobblers, subjecting you to an additional four-year state prison sentence.41

Call us for help...
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If you or loved one is charged with Penal Code 215 PC carjacking and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions about Nevada's carjacking laws . For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.42

Additional Online Resources:

Carjacking Prevention
Advice for how to avoid becoming a victim of robbery or carjacking

Avoiding Carjacking
Tips from the Insurance Information Institute

Nevada Carjacking Laws
Read our informational article on Nevada carjacking laws.

Legal References:

1 Penal Code 215 PC California's carjacking law. ("(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. 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.")

2 Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

3 See Penal Code 215 PC California's carjacking law, endnote 1, above.

4 California Jury Instructions, Criminal "CALJIC" 9.46 - Penal Code 215 PC California's carjacking law. ("[Defendant is accused [in Count[s] ] of having committed the crime of carjacking, a violation of Section 215 of the Penal Code.] Every person who takes 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 vehicle of his or her possession, accomplished by means of force or fear, is guilty of the crime of carjacking in violation of Penal Code Section 215. "Against the will" means without consent. The words "take" or "taking" require proof of [(1)] taking possession of a motor vehicle, and (2) movement of the vehicle, slight or otherwise. ["Immediate presence" means an area within the alleged victim's reach, observation or control, so that he or she could, if not overcome by violence or prevented by fear, retain possession of the subject property.] In order to prove this crime, each of the following elements must be proved: 1 A person had possession of a motor vehicle; 2 The motor vehicle was taken from his or her person or immediate presence, or from the person or immediate presence of a passenger of such vehicle; 3 The motor vehicle was taken against the will of the person in possession; 4 The taking was accomplished by means of force or fear; and 5 The person taking the vehicle had the intent to either permanently or temporarily deprive the person in possession of the vehicle of that possession.")

5 See same.

6 People v. O'Neil (1997) 56 Cal.App.4th 1126.

7 See CALJIC 9.46 - Penal Code 215 PC California's carjacking law, endnote 4, above. ("The words "take" or "taking" require proof of [(1)] taking possession of a motor vehicle, and (2) movement of the vehicle, slight or otherwise.")

8 Wilson v. Woodford (2010) 682 F.Supp.2d 1082, 1091. ("When a defendant intends to commit a carjacking but is unable to move the vehicle, his "conduct is punishable as attempted carjacking."")

9 See CALJIC 9.46 - Penal Code 215 PC California's carjacking law, endnote 4, above. (""Against the will" means without consent...")

10 CALJIC 1.23 - Consent. ("To consent to an act or transaction, a person (1) must act freely and voluntarily and not under the influence of threats, force or duress; (2) must have knowledge of the true nature of the act or transaction involved; and (3) must possess the mental capacity to make an intelligent choice whether or not to do something proposed by another person. [Merely being passive does not amount to consent.] Consent requires a free will and positive cooperation in act or attitude.")

11 People v. Wright (1996) 52 Cal.App.4th 203, 211. ("As we have noted, "force" is not an element of robbery independent of "fear"; there is an equivalency between the two. " '[T]he coercive effect of fear induced by threats ... is in itself a form of force, so that either factor may normally be considered as attended by the other.' " ( People v. Brookins (1989) 215 Cal.App.3d 1297, 1309, 264 Cal.Rptr. 240.)"). Although this case refers to robbery, robbery and Penal Code 215 PC carjacking are related offenses that both rely on "force or fear" as one of their elements. As a result, these definition are applicable to both crimes.

12 California Penal Code 212 -- Fear defined.

13 People v. Bordelon (2008) 162 Cal.App.4th 1311, 1319.

14 People v. Magallanes (2009) 173 Cal.App.4th 529, 534. ("A victim's attempts at resistance [to a Penal Code 215 PC carjacking] do not disprove force or fear was used in the commission of the crime.")

15 See same.

See also People v. Hill (2000) 23 Cal.4th 853, 860-861. ("Unlike robbery, which requires a taking from the person or immediate presence of the possessor (§ 211), the Legislature expanded the taking element to a taking from the person or immediate presence of either the possessor or any passenger. (§ 215, subd. (a).) By extending carjacking to include a taking from a passenger, even one without a possessory interest (assuming the other elements of the crime are present), the Legislature has made carjacking more nearly a crime against the person than a crime against property. Moreover, unlike a robbery, a carjacking subjects an unconscious possessor or occupant of a vehicle to a risk of harm greater than that involved in an ordinary theft from an unconscious individual. Accordingly, if the defendant used force or fear, as we found he did here, he is guilty of carjacking whether or not the victim was aware of that force or fear.")

16 See same at 536. ("Instead, the Attorney General focuses on whether defendant had an intent to permanently, rather than temporarily, deprive the victim of possession at the time of the taking. The Attorney General is correct in noting that theft requires the intent to permanently deprive the property owner of possession of the property taken, while carjacking requires the intent to permanently or temporarily deprive the victim of possession of the vehicle.")

17 San Bernardino criminal defense attorney Michael Scafiddi uses his former experience as an Ontario Police Officer to represent clients throughout the Inland Empire including San Bernardino, Riverside, Rancho Cucamonga, Hemet, Banning, Fontana, Joshua Tree, Barstow, Palm Springs and Victorville.

18 People v. Cabrera (2007) 152 Cal.App.4th 695, 703. ("In addition to Justice Werdegar's views, we also note that under the express terms of the statute carjacking can be committed when the perpetrator intends to temporarily deprive the victim of possession. (§ 215, subd. (a). [Penal Code 215 PC carjacking]) The fact that carjacking does not require proof of an intent to permanently deprive the victim of a motor vehicle buttresses Justice Werdegar's conclusion that carjacking is strictly a crime against possession rather than ownership. As such it is not subject to a claim of right defense.")

19 Penal Code 215 PC California's carjacking law, endnote 1, above. ("(b) Carjacking is punishable by imprisonment in the state prison for a term of three, five, or nine years.")

See also Penal Code 672 PC -- Offenses for which no fine prescribed; fine authorized in addition to imprisonment. ("Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.")

20 People v. Hamilton (1995) 40 Cal.App.4th 1137, 1142 and 1144. ("As a general rule, multiple convictions and punishments are proper for each act of violence committed against a separate victim....[and at 1144] This construction is reasonable. In the usual case of carjacking involving multiple occupants, all are subjected to a threat of violence, all are exposed to the high level of risk which concerned the Legislature, and all are compelled to surrender their places in the vehicle and suffer a loss of transportation.FN7 All are properly deemed victims of the carjacking. Defendant's two convictions were proper.")

21 Penal Code 12022.7 PC -- California's great bodily injury sentencing enhancement. ("(a) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years. (b) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony [such as Penal Code 215 PC carjacking] which causes the victim to become comatose due to brain injury or to suffer paralysis of a permanent nature, shall be punished by an additional and consecutive term of imprisonment in the state prison for five years. As used in this subdivision, "paralysis" means a major or complete loss of motor function resulting from injury to the nervous system or to a muscular mechanism. (c) Any person who personally inflicts great bodily injury on a person who is 70 years of age or older, other than an accomplice, in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for five years. (d) Any person who personally inflicts great bodily injury on a child under the age of five years in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for four, five, or six years. (e) Any person who personally inflicts great bodily injury under circumstances involving domestic violence in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five years. As used in this subdivision, "domestic violence" has the meaning provided in subdivision (b) of Section 13700. (f) As used in this section, "great bodily injury" means a significant or substantial physical injury.")

22Penal Code 186.22 PC -- California's criminal street gang sentencing enhancement. ("(4) Any person who is convicted of a felony enumerated in this paragraph committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, be sentenced to an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of: (A) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 3046, if the felony is any of the offenses enumerated in subparagraph (B) or (C) of this paragraph. (B) Imprisonment in the state prison for 15 years, if the felony is a home invasion robbery, in violation of subparagraph (A) of paragraph (1) of subdivision (a) of Section 213; carjacking, as defined in Section 215; a felony violation of Section 246; or a violation of Section 12022.55.")

23Penal Code 12022.53 PC -- California's 10-20-life "use a gun and you're done" law. ("(a) This section applies to the following felonies...(5) Section 215 (carjacking)...(b) Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years. The firearm need not be operable or loaded for this enhancement to apply. (c) Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally and intentionally discharges a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 20 years. (d) Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section 26100, personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.")

24California Penal Code 667.5 PC. ("(c) For the purpose of this section, "violent felony" shall mean any of the following:...(17) Carjacking, as defined in subdivision (a) of Section 215.")

25California Penal Code 667 PC -- Habitual criminals; enhancement of sentence; amendment of section (otherwise known as California's Three Strikes Law). ("(b) It is the intent of the Legislature in enacting subdivisions (b) to (i), inclusive, to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.")

26 bCalifornia Penal Code 667 -- Habitual criminals; enhancement of sentence; amendment of section -- California Three Strikes law . ("(e) For purposes of subdivisions (b) to (i), inclusive, and in addition to any other enhancement or punishment provisions which may apply, the following shall apply where a defendant has a prior felony conviction: (1) If a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction. (2)(A) If a defendant has two or more prior felony convictions as defined in subdivision (d) that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of: (i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions. (ii) Imprisonment in the [California] state prison for 25 years...")

27 See same.

28 California Penal Code 189 PC Murder. ("All murder which is...committed in the perpetration of, or attempt to perpetrate...[Penal Code 215 PC] carjacking... is murder of the first degree.")

29 People v. Cavitt (2004) 33 Cal.4th 187, 197. ("The purpose of the felony-murder rule is to deter those who commit the enumerated felonies from killing by holding them strictly responsible for any killing committed by a cofelon, whether intentional, negligent, or accidental, during the perpetration or attempted perpetration of the felony.")

30 People v. Stamp (1969) 2 Cal.App.3d 203, 209. ("A review of the facts as outlined above shows that there was substantial evidence of the robbery itself, that appellants were the robbers, and that but for the robbery the victim would not have experienced the fright which brought on the fatal heart attack.") Although this case refers to robbery, it is a general principle which would hold true for any felony-murder crime, including a Penal Code 215 PC carjacking.

318 U.S. Code Section 1227 -- Deportable aliens. ("(a) Classes of deportable aliens. Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens...(2) Criminal offenses. (A) General crimes...(iii) Aggravated felony. Any alien who is convicted of an aggravated felony at any time after admission is deportable.") Carjacking qualifies as an aggravated felony.

32 California Penal Code 211 -- California's robbery law. ("Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.")

33 People v. Dominguez (1995) 38 Cal.App.4th 410, 417. ("Penal Code section 215, subdivision (c), expressly permits the People to allege both carjacking and robbery in the accusatory pleading and to prosecute these offenses in the same proceeding.")

See also Penal Code 215 PC California's Carjacking Law, endnote 1, above. ("(c) This section shall not be construed to supersede or affect Section 211. 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.")

34 See same.

35 Penal Code 487(d)(1) - Grand theft, defined. ("Grand theft is theft committed in any of the following cases... (d) When the property taken is any of the following: (1) An automobile, horse, mare, gelding, any bovine animal, any caprine animal, mule, jack, jenny, sheep, lamb, hog, sow, boar, gilt, barrow, or pig.")

See also California Penal Code 489 PC - Grand theft, punishment. ("Grand theft is punishable as follows: (a) When the grand theft involves the theft of a firearm, by imprisonment in the state prison for 16 months, 2, or 3 years. (b) In all other cases, by imprisonment in a county jail not exceeding one year or in the state prison.")

See also Penal Code 18 PC -- Punishment for felony not otherwise prescribed; alternate sentence to county jail. ("Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a felony, or to be punishable by imprisonment in a state prison, is punishable by imprisonment in any of the state prisons for 16 months, or two or three years; provided, however, every offense which is prescribed by any law of the state to be a felony punishable by imprisonment in any of the state prisons or by a fine, but without an alternate sentence to the county jail, may be punishable by imprisonment in the county jail not exceeding one year or by a fine, or by both.")

36California Vehicle Code 10851 - Joyriding. ("(a) Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense and, upon conviction thereof, shall be punished by imprisonment in a county jail for not more than one year or in the state prison or by a fine of not more than five thousand dollars ($5,000), or by both the fine and imprisonment. (b) If the vehicle is (1) an ambulance, as defined in subdivision (a) of Section 165, (2) a distinctively marked vehicle of a law enforcement agency or fire department, taken while the ambulance or vehicle is on an emergency call and this fact is known to the person driving or taking, or any person who is party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, or (3) a vehicle which has been modified for the use of a disabled veteran or any other disabled person and which displays a distinguishing license plate or placard issued pursuant to Section 22511.5 or 22511.9 and this fact is known or should reasonably have been known to the person driving or taking, or any person who is party or an accessory in the driving or unauthorized taking or stealing, the offense is a felony punishable by imprisonment in the state prison for two, three, or four years or by a fine of not more than ten thousand dollars ($10,000), or by both the fine and imprisonment...")

37 California Penal Code 459 PC - Burglary, defined. ("Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, as defined in Section 21 of the Harbors and Navigation Code, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach, as defined in Section 635 of the Vehicle Code, any house car, as defined in Section 362 of the Vehicle Code, inhabited camper, as defined in Section 243 of the Vehicle Code, vehicle as defined by the Vehicle Code, when the doors are locked, aircraft as defined by Section 21012 of the Public Utilities Code, or mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary. As used in this chapter, "inhabited" means currently being used for dwelling purposes, whether occupied or not. A house, trailer, vessel designed for habitation, or portion of a building is currently being used for dwelling purposes if, at the time of the burglary, it was not occupied solely because a natural or other disaster caused the occupants to leave the premises.")

See also Penal Code 460 - Burglary, degrees. ("(a) Every burglary of an inhabited dwelling house, vessel, as defined in the Harbors and Navigation Code, which is inhabited and designed for habitation, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, or trailer coach, as defined by the Vehicle Code, or the inhabited portion of any other building, is burglary of the first degree. (b) All other kinds of burglary are of the second degree. (c) This section shall not be construed to supersede or affect Section 464 of the Penal Code.")

See also Penal Code 461 - Burglary, punishment. ("Burglary is punishable as follows: (a) Burglary in the first degree: by imprisonment in the state prison for two, four, or six years. (b) Burglary in the second degree: by imprisonment in the county jail not exceeding one year or in the state prison.")

See also Penal Code 18 PC -- Punishment for felony not otherwise prescribed; alternate sentence to county jail. ("Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a felony, or to be punishable by imprisonment in a state prison, is punishable by imprisonment in any of the state prisons for 16 months, or two or three years; provided, however, every offense which is prescribed by any law of the state to be a felony punishable by imprisonment in any of the state prisons or by a fine, but without an alternate sentence to the county jail, may be punishable by imprisonment in the county jail not exceeding one year or by a fine, or by both.")

38 California Penal Code 209.5 PC - Kidnapping for carjacking. ("(a) Any person who, during the commission of a carjacking and in order to facilitate the commission of the carjacking, kidnaps another person who is not a principal in the commission of the carjacking shall be punished by imprisonment in the state prison for life with the possibility of parole. (b) This section shall only apply if the movement of the victim is beyond that merely incidental to the commission of the carjacking, the victim is moved a substantial distance from the vicinity of the carjacking, and the movement of the victim increases the risk of harm to the victim over and above that necessarily present in the crime of carjacking itself. (c) In all cases in which probation is granted, the court shall, except in unusual cases where the interests of justice would best be served by a lesser penalty, require as a condition of the probation that the person be confined in the county jail for 12 months. If the court grants probation without requiring the defendant to be confined in the county jail for 12 months, it shall specify its reason or reasons for imposing a lesser penalty.")

39 People v. Ortiz (2002) 101 Cal.App.4th 410, 415. ("Appellant was convicted of both carjacking and kidnapping for carjacking (§§ 213, subd. (a), 209.5, subd. (a).) The court sentenced him for both offenses, but stayed the carjacking sentence under section 654, which provides that the same criminal conduct, even if constituting more than one offense, may be punished only once. Appellant observes, and respondent concedes, carjacking is a necessarily included offense of kidnapping for carjacking. ( People v. Jones (1999) 75 Cal.App.4th 616, 624-625, 89 Cal.Rptr.2d 485; People v. Contreras (1997) 55 Cal.App.4th 760, 765, 64 Cal.Rptr.2d 233.) Appellant further notes, and respondent further concedes, a court must dismiss, instead of stay the sentence for, a necessarily included offense. ( People v. Pearson (1986) 42 Cal.3d 351, 355, 228 Cal.Rptr. 509, 721 P.2d 595; People v. Contreras, supra, 55 Cal.App.4th at p. 765, 64 Cal.Rptr.2d 233.) The court thus erred in merely staying the carjacking sentence. Accordingly, we will correct the court's mistake by ordering dismissal of appellant's carjacking conviction.")

40 California Penal Code 242 PC battery. ("Battery defined. A battery is any willful and unlawful use of force or violence upon the person of another.")

See also Penal Code 243 PC - Battery, punishment. ("(a) A battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment.")

41 Penal Code 243(d) - Aggravated battery. ("(d) When a battery is committed against any person and serious bodily injury is inflicted on the person, the battery is punishable by imprisonment in a county jail not exceeding one year or imprisonment in the state prison for two, three, or four years.")

See also Penal Code 245(a)(1) - Assault with a deadly weapon. ("(a)(1) Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.")

42 Please feel free to contact our Las Vegas Nevada criminal defense attorneys Michael Becker and Mike Castillo for any questions relating to Nevada's carjacking laws. Our Nevada law offices are located in Reno and Las Vegas.

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