Kidnapping During the Commission of a Carjacking
California Penal Code 209.5 PC

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Penal Code 209.5 applies when you commit a carjacking and take a victim away with you

California's kidnapping laws prohibit two types of kidnapping:

  1. simple kidnapping, and
  2. aggravated kidnapping.

Kidnapping during the commission of a carjacking is a form of aggravated kidnapping, which means that a conviction for this offense subjects you to more severe penalties.  You violate Penal Code 290.5 PC California's law against kidnapping during the commission of a carjacking when

  1. you move the victim beyond what is merely incidental to the carjacking,
  2. you move the victim a substantial distance from the area of the carjacking, and
  3. the movement of the victim increases the risk of harm over and above that necessary to commit the carjacking.1
Example

If you were to try to carjack someone's car...and ordered the driver to get out so that you could then take the car...you would probably be guilty of carjacking but not kidnapping.  Forcing the driver out of the car would be the type of movement that is merely incidental to the carjacking.

But let's change the facts.  Instead, you only order the driver to move over into the passenger seat and then carjack the car with that person still in the car.  You drive for awhile before you order him out of the car.

Given these facts, you would be guilty of kidnapping during the commission of a carjacking.  And you could sustain a separate conviction for this offense for every person who was in the car at the time.

Defenses

Some of the legal defenses that apply to kidnapping during the commission of a carjacking include:

  • you had permission to take the car,
  • the alleged victims consented to the ride,
  • you are the victim of mistaken identity or false allegations, and/or
  • you didn't complete the carjacking and are therefore only subject to the lesser crime of attempted kidnapping during the commission of a carjacking...or perhaps only of kidnapping or carjacking.
Penalties

A conviction for violating Penal Code 290.5 PC subjects you to life in prison with the possibility of parole.2 And because kidnapping during the commission of a carjacking is a "violent felony", you will also get a "strike" on your record under California's three strikes law.

Below, our California criminal defense attorneys3 explain Penal Code 209.5 PC by addressing the following:

1. What Constitutes a Kidnapping During the Commission of a Carjacking?
2. Legal Defenses
3. Penalties, Punishment, and Sentencing

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

1. What Constitutes a Kidnapping During the Commission of a Carjacking?

Although California's kidnapping laws prohibit a wide variety of conduct, they all center on

  1. moving another person,
  2. without that person's consent,
  3. by using "force or fear" (which means using actual physical force upon the alleged victim or threatening physical harm to the victim and/or his/her family).4

These laws encompass two different types of kidnapping: simple kidnapping and aggravated kidnapping.  The main difference between simple kidnapping and aggravated kidnapping...other than the penalties...is the distance that you move the alleged victim.

A simple kidnapping requires that you move the victim a "substantial" distance, not simply an insignificant or trivial one.5 Aggravated kidnapping requires that the movement of the victim "increase the risk of harm beyond that inherent to the underlying crime but does not require that the movement 'substantially' increase the risk of harm to the victim."6

It therefore follows that with respect to aggravated kidnapping under Penal Code 209.5 PC...California's law against kidnapping during the commission of a carjacking ...you must move the victim more than the movement that would otherwise be required to complete the carjacking.

More specifically, you violate Penal Code 209.5 PC when

  1. you move the victim beyond what is merely incidental to the carjacking,
  2. you move the victim a substantial distance from the area of the carjacking, and
  3. the movement of the victim increases the risk of harm over and above that necessary to commit the carjacking.7
Example: Defendant approached a man who had just gotten back into his car after filling his car with gas.  The defendant claimed he had a gun, ordered the man to move over into the passenger seat and threatened to kill him if he "tried anything".  The defendant...followed by a car full of his friends...drove for a while before letting the victim out of the car.8

The court held that the defendant was properly convicted of kidnapping during the commission of a carjacking.  By keeping the victim in the car...rather than simply ordering him to get out of the car...the defendant

1) moved the victim beyond what was merely incidental to the carjacking,

2) a substantial distance from the initial location of the carjacking, and

3) increased the harm to the defendant by keeping him against his/her will, driving with him in the car and having his friends follow in the car behind.

It is also important to understand that you may be charged with attempted kidnapping during the commission of a carjacking even if you do not complete the carjacking...an attempted carjacking will suffice.9

Example: The defendant was being chased by the police.  He ran into a parking lot where he saw a man asleep in the driver's seat of a van.  The defendant climbed into the van that was occupied by the driver, the driver's wife and their three kids.  The mother screamed at the defendant to get out of her van and elbowed him to push him out.  The defendant shoved her back and exclaimed "we got to go, we got to go" and tried to start the engine with the keys that were in the car.  The defendant couldn't start the van, move the steering wheel or put the van in gear.  He looked at the driver, said "Oh, damn" and left.

The Supreme Court of California held that the defendant's actions evidenced the fact that he intended to kidnap the family to facilitate a carjacking.  There was no indication he told the family to get out, but rather kept saying "we [italics added] got to go, we got to go."  As a result, he was appropriately convicted of attempted kidnapping during the commission of a carjacking.10

If you are convicted of attempting to violate Penal Code 209.5 PC, you face five, seven or nine years in the California state prison.11

And along these same lines, even if the prosecutor charges you with PC 209.5, the jury could alternatively find you guilty of the lesser crimes of attempted carjacking and/or attempted kidnapping.12 These offenses only subject you to half of the prison time that you would face for the completed crimes which means you would face a maximum 4 year sentence for attempted kidnapping or a maximum 4½ year sentence for attempted carjacking.13

2. Legal Defenses

Because kidnapping during the commission of a carjacking is a hybrid offense that consists of kidnapping and carjacking, it stands to reason that many of the
legal defenses that are applicable to this offense are the same as those we would present in a kidnapping or carjacking case.

Some of these include:

  • the alleged victim allowed you to drive his/her car, so there was no carjacking,
  • you didn't use force or fear to compel the other person/people to drive with you,
  • the victim consented to being moved, so there was no kidnapping,
  • you were merely present at the time of the offense (which, depending on the circumstances could alternatively result in an "aiding and abetting" or conspiracy charge), and/or
  • you were the victim of mistaken identity or were falsely accused of the crime.

And if you are guilty of violating Penal Code 290.5 PC...but there are some flaws in your case as well as the prosecution's...your California criminal defense lawyer could try to negotiate a plea bargain to one of the lesser charges of

  • kidnapping,
  • attempted kidnapping,
  • carjacking, or
  • attempted carjacking,

all of which carry less severe penalties than Penal Code 290.5 PC, which leads to the next section...

3. Penalties, Punishment, and Sentencing

Kidnapping during the commission of a carjacking is a violent felony. This means that if you are convicted of Penal Code 290.5 PC, you not only face life in prison with the possibility of parole,14 but you will also have a "strike" on your record pursuant to California's three strikes law.  As a three strikes case, a conviction also means that you must serve at least 85% of your sentence before you will be eligible for parole.

And if you are subsequently charged with any felony and have a prior "strike" on your record, you will be referred to as a "second striker," and your sentence will be twice the term otherwise required by law.15

If charged with a third felony, and you have two prior strikes, you will be referred to as a "third striker" and will serve a mandatory minimum sentence of 25 years-to-life in California state prison.16

And...depending on the circumstances of the offense...you may also face additional penalties

But as Orange County criminal defense attorney John Murray20 explains, "the good news is that our law firm...comprised of former police investigators and district attorneys...knows the most effective strategies to fight your case so that none of these additional sentencing enhancements ever come into play.  We will do everything in our power to secure your acquittal."

Call us for help...
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If you or loved one is charged with Penal Code 209.5 PC kidnapping during a 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 kidnapping laws and/or 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.21

Legal References:

1 Penal Code 209.5 PC - Kidnapping during the commission of a 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.")

2 See same.

3 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.

4 California Penal Code 207 PC - California's kidnapping law.  ("(a) Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping. (b) Every person, who for the purpose of committing any act defined in Section 288, hires, persuades, entices, decoys, or seduces by false promises, misrepresentations, or the like, any child under the age of 14 years to go out of this country, state, or county, or into another part of the same county, is guilty of kidnapping. (c) Every person who forcibly, or by any other means of instilling fear, takes or holds, detains, or arrests any person, with a design to take the person out of this state, without having established a claim, according to the laws of the United States, or of this state, or who hires, persuades, entices, decoys, or seduces by false promises, misrepresentations, or the like, any person to go out of this state, or to be taken or removed therefrom, for the purpose and with the intent to sell that person into slavery or involuntary servitude, or otherwise to employ that person for his or her own use, or to the use of another, without the free will and consent of that persuaded person, is guilty of kidnapping. (d) Every person who, being out of this state, abducts or takes by force or fraud any person contrary to the law of the place where that act is committed, and brings, sends, or conveys that person within the limits of this state, and is afterwards found within the limits thereof, is guilty of kidnapping. (e) For purposes of those types of kidnapping requiring force, the amount of force required to kidnap an unresisting infant or child is the amount of physical force required to take and carry the child away a substantial distance for an illegal purpose or with an illegal intent. (f) Subdivisions (a) to (d), inclusive, do not apply to any of the following: (1) To any person who steals, takes, entices away, detains, conceals, or harbors any child under the age of 14 years, if that act is taken to protect the child from danger of imminent harm. (2) To any person acting under Section 834 or 837.")

5 California Jury Instructions, Criminal. CALJIC 9.50 Kidnapping --No Other Underlying Crime.  ("(Penal Code § 207, subdivision (a)) Defendant is accused [in Count[s] ] of having committed the crime of kidnapping, a violation of section 207, subdivision (a) of the Penal Code....California's kidnapping law].  Every person who unlawfully [and with physical force [or] [by any [other] means of instilling fear], steals or takes, or holds, detains, or arrests another person and carries that person without [his] [her] consent] [compels any other person without [his] [her] consent and because of a reasonable apprehension of harm, to move] for a distance that is substantial in character, is guilty of the crime of kidnapping in violation of Penal Code section 207, subdivision (a). A movement that is only for a slight or trivial distance is not substantial in character. In determining whether a distance that is more than slight or trivial is substantial in character, you should consider the totality of the circumstances attending the movement [, including, but not limited to, [the actual distance moved] [,] [, or] whether the movement [increased the risk of harm above that which existed prior to the movement] [,] [, or] [decreased the likelihood of detection] [,] [, or] [increased both the danger inherent in a victim's foreseeable attempt to escape and the attacker's enhanced opportunity to commit additional crimes]]. [If an associated crime is involved, the movement also must be more than that which is incidental to the commission of the other crime.] An associated crime is any criminal act, whether charged or not, the defendant intends to commit where, in the course of its commission, the defendant also moves a victim by force or fear against his or her will.] [An implicit threat of arrest satisfies the force or fear element if the perpetrator's conduct or statements caused the person threatened with arrest to believe that unless [he] [she] accompanied the perpetrator, the person would be forced to do so, and that person's belief was objectively reasonable.] In order to prove this crime, each of the following elements must be proved: [1 A person was [unlawfully] moved by the use of physical force [, or by any other means of instilling fear];] [1 A person was [unlawfully] compelled by another person to move because of a reasonable apprehension of harm;] 2 The movement of the other person was without [his] [her] consent; and 3 The movement of the other person in distance was substantial in character.")

6 People v. Ortiz (2002) 101 Cal.App.4th 410, 415.

7 See Penal Code 209.5 PC, California's law against kidnapping during the commission of a carjacking, endnote 1, above.

8 See People v. Ortiz, endnote 6, above.

9 California Jury Instructions, Criminal "CALJIC" 1204 Kidnapping: During Carjacking.  ("A completed carjacking is not a prerequisite for the crime of attempt to commit a violation of Penal code § 209.5, subdivision (a). It is sufficient if the perpetrator attempts to carjack a vehicle. People v. Medina (2007) 41 Cal.4th 685, 61 Cal.Rptr.3d 677, 161 P.3d 203.")

10 People v. Medina (2007) 41 Cal.4th 685.

11California Penal Code 664 PC -- Attempts; punishment.  ("Every person who attempts to commit any crime, but fails, or is prevented or intercepted in its perpetration, shall be punished where no provision is made by law for the punishment of those attempts, as follows: (a) If the crime attempted is punishable by imprisonment in the state prison, the person guilty of the attempt shall be punished by imprisonment in the state prison for one-half the term of imprisonment prescribed upon a conviction of the offense attempted. However, if the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole. If the crime attempted is any other one in which the maximum sentence is life imprisonment [such as Penal Code 209.5 PC kidnapping during the commission of a carjacking] or death, the person guilty of the attempt shall be punished by imprisonment in the state prison for five, seven, or nine years....")

12 People v. Medina (2007) 41 Cal.4th 685, 690.  ("For reasons that follow, we conclude that a completed carjacking is not a prerequisite for an attempt to violate section 209.5(a) [California's law against kidnapping during the commission of a carjacking], and that attempted carjacking and attempted kidnapping are lesser included offenses of an attempt to violate section 209.5(a).")

13 See Penal Code 644, attempts, endnote 11, above.

See also California Penal Code 208 PC - Kidnapping, punishment.  ("(a) Kidnapping is punishable by imprisonment in the state prison for three, five, or eight years. (b) If the person kidnapped is under 14 years of age at the time of the commission of the crime, the kidnapping is punishable by imprisonment in the state prison for 5, 8, or 11 years. This subdivision is not applicable to the taking, detaining, or concealing, of a minor child by a biological parent, a natural father, as specified in Section 7611 of the Family Code, an adoptive parent, or a person who has been granted access to the minor child by a court order. (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.")

See also 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.")

14 See Penal Code 209.5 PC - Kidnapping during the commission of a carjacking, endnote 1, above.

15 California 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...")

16 See same.

17 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.")

18Penal 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.")

19Penal 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.")

20 Orange county criminal defense lawyer John Murray represents clients throughout Orange County, including Newport Beach, Santa Ana, Fullerton, Laguna Beach, Irvine, Anaheim and Westminster, as well as in the South Bay (including Long Beach and Torrance).

21 Please feel free to contact our Las Vegas Nevada criminal defense attorneys Michael Becker and Neil Shouse for any questions relating to Nevada's kidnapping or carjacking laws. Our Nevada law offices are located in Reno and Las Vegas.

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