Penal Code § 209.5 PC – Kidnapping During a Carjacking

Penal Code § 209.5 PC is the crime prosecutors charge when someone kidnaps a victim during the commission of a carjacking. This form of aggravated kidnapping is a felony that carries life in California State Prison but with the possibility of parole.

Under Penal Code 215 PC, California law defines carjacking as taking a motor vehicle from another person by means of force or fear.

The language of the statute reads that:

209.5. (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.

Examples

• ordering the driver of a car to move over to the passenger seat and then stealing the vehicle.
• pointing a gun at a car owner and forcing him/her into the auto while an accomplice drives away.
• forcing a truck’s passenger to move over as a partner in crime slams on the gas and speeds off.

Legal Defenses

Our defense lawyers advise clients that there are three effective defenses to allegations under this statute. These include the defendant showing that:

• he/she had permission to take the vehicle,
• the alleged victim consented to the ride, and/or
• he/she was falsely accused.

Penalties

A violation of California Penal Code Section 209.5 is a felony offense (as opposed to a misdemeanor or an infraction).

The crime is punishable by a state prison sentence for life with the possibility of parole.

Our California criminal defense attorneys will address the following in this article:

• 1. What is kidnapping during a carjacking?
• 2. What are the best defenses
• 3. What is the sentencing?
• 4. Can I get an expungement?
• 5. Are there related offenses?

1. What is kidnapping during a carjacking?

California Jury Instruction CALCRIM 1204 sets forth the elements of a 209.5 PC charge:

1. the defendant committed a carjacking,¹
2. during the carjacking, the defendant took, held, or detained another person by using force or by instilling reasonable fear,²
3. the defendant moved the other person or made that person move a substantial distance from the vicinity of the carjacking,³
4. the defendant moved or caused the other person to move with the intent to facilitate the carjacking, or to help himself/herself escape or to prevent the other person from sounding an alarm,⁴
5. the person moved was not one of the carjackers, and
6. the other person did not consent to the movement.⁵

For purposes of this statute, “substantial distance” means more than a slight or trivial distance.

Further, the movement involved must have increased the risk of physical harm to the person beyond that necessarily present in the carjacking.⁶

Note that kidnapping and carjacking must take place within the same course of conduct for a person to be guilty under this statute.⁷

2. What are the best defenses?

Here at Shouse Law Group, we have handled hundreds of cases involving this charge. We draw upon several defense strategies to raise a reasonable doubt as to the defendant’s guilt. Three effective strategies, or defenses, include the defendant showing that:

1. he/she had a car owner’s permission to take a vehicle.
2. the “victim” consented to go along with the accused.
3. he/she was falsely accused.

Permission to take the vehicle

A person is only guilty of kidnapping during a carjacking if there was an underlying carjacking (which means taking of a car without someone’s permission). Therefore, it is a good defense is for an accused to show that he/she did not commit carjacking. This means the accused would have to show he took a car with the permission of the car’s owner.

Person’s consent

Recall that, for a conviction, a prosecutor must show that a defendant “moved” a person without that person’s consent. A defense, then, is for the defendant to show that, while he may have moved a person, he did so with his/her consent.

Falsely accused

Unfortunately, people get falsely accused of kidnapping someone during the commission of a carjacking. People may falsely accuse someone due to:

• revenge,
• jealously,
• false identification, or
• mistake.

This means it is always a defense for an accused to say that he/she was unjustly blamed.

3. What is the sentencing?

A violation of these criminal laws is a violent felony.

The crime is punishable by imprisonment in state prison (as opposed to county jail) for life with the possibility of parole.

Also, a conviction counts as a “strike” on the offender’s record pursuant to California’s three-strikes law.

Kidnapping	California Felony Penalties
Simple Kidnapping- PC 207	3, 5, or 8 years in prison and up to $10,000
Aggravated Kidnapping: of a victim under 14 years old – PC 208(b)	5, 8, or 11 years in prison and up to $10,000
Aggravated Kidnapping: to commit a crime – PC 209(b)	Life with the possibility of parole
Aggravated Kidnapping: for ransom – PC 209(a)	Life with the possibility of parole
Aggravated Kidnapping: for ransom, and the victim suffers death or bodily harm – PC 209(a)	Life without the possibility of parole
Kidnapping in the Commission of a Carjacking – PC 209.5	Life with the possibility of parole

4. Can I get an expungement?

It is unlikely that a person guilty of this offense can get his/her conviction expunged.

This is because California law says that a convict cannot get an expungement if guilty of a crime that leads to a prison term.

5. Are there related offenses?

There are three crimes related to criminal charges under Penal Code 209.5. These are:

1. kidnapping laws – PC 207,
2. aggravated kidnapping charges – PC 209, and
3. extortion by posing as a kidnapper – PC 210.

Kidnapping – PC 207

Under Penal Code 207 PC, California law defines kidnapping as moving another person a substantial distance, without the person’s consent, by means of using force or fear.

With PC 209.5, a prosecutor has to prove the same elements under this statute, along with the elements for carjacking charges.

Aggravated kidnapping – PC 209

Under California Penal Code 209 PC, aggravated kidnapping entails kidnaping a person, and doing so either:

1. for ransom or a reward, or
2. to commit another crime such as robbery or rape.

As with PC 209.5, a conviction under this statute results in a life sentence in state prison.

Extortion by posing as a kidnapper – PC 210

Penal Code 210 PC is the California statute that makes it a crime to seek ransom or reward money by:

• posing as a kidnapper, or
• posing as someone who can secure the release of a kidnapped victim.

Unlike with PC 209.5, there is no requirement under this statute that a person committed a carjacking offense.

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Legal References:

1. See People v. Montes (2014), 58 Cal.4th 809.
2. See People v. Moya (1992) 4 Cal.App.4th 912.
3. See People v. Moore (1999) 75 Cal.App.4th 37.
4. See People v. Perez (2000) 84Cal.App.4th 856.
5. CALCRIM No. 1204 – Kidnapping During Carjacking. Judicial Council of California Criminal Jury Instructions (2020 edition).
6. People v. Robertson (2012) 208 Cal.App.4th 965.
7. People v. Ortiz (2012) 208 Cal.App.4th 1354. See also In re B.J. (2020) 49 Cal.App.5th 646.