Penal Code § 215 PC – Carjacking – California Law

Penal Code § 215, California’s carjacking law, makes it illegal to take a vehicle from another person through the use of force or fear. The term “force or fear” means physical violence or threats of harm.

Carjacking is a felony punishable by up to 9 years in state prison, and additional time if a weapon is used in the commission of the crime.

The language of the code section reads that:

215. (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.

The use of force or fear means actually inflicting physical force on the alleged victim or threatening 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. ¹

Penalties

The crime of carjacking is a felony, subjecting you to up to nine years in 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 fact 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 criminal defense attorneys provide a comprehensive guide to understanding California’s carjacking law by answering the following questions:

• 1. How does California law define the crime of carjacking?
  • 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 best legal defenses to carjacking?
  • 2.1. No force / fear
  • 2.2. Consent
  • 2.3. Mistaken Identity
  • 2.4. No claim of right
• 3. What is the sentencing under 215 PC?
  • 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. Are there other crimes that tend to get charged together with 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

1. How does California law define the crime of carjacking?

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.

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

1. under the driver’s possession and
2. 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

• 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

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 a 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 best legal defenses to carjacking?

Fortunately, there are legal defenses to a 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 at 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 carjacking. But again, you may be guilty of one of the less serious offenses of grand theft auto or joyriding.

2.3. Mistaken identity

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

Carjacking is a startling and stressful event. This is a factor that detracts from peoples’ ability correctly to

• remember and
• identify the perpetrator.

Therefore many carjacking suspects get

• misidentified 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 is the sentencing under 215 PC?

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

1. 10 years in prison for “using” a gun,
2. 20 years for firing a gun, and
3. 25-years-to-life for killing or seriously injuring another person with a gun.

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 strikes 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. Are there other crimes that tend to get charged together with carjacking?

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 PC 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 charge, punishable by two to five years in 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 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 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 carjacking

Penal Code 209.5 PC 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 (a movement that is incidental to the carjacking), you wave 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 as with 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…

If you or a 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 the office or by phone.

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.

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Legal References: