§ 215 PC – Carjacking – California Law & Penalties

Penal Code § 215 PC (California’s carjacking law) makes it a felony 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 against the driver or a passenger.

Carjacking is punishable by

• up to 9 years in state prison, and
• additional time if a weapon is used in the commission of the crime.¹

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.

This chart explains the penalties for carjacking:

PC 215 Conviction	California Sentence
Carjacking (with no enhancements)	Base penalty Felony: 3, 5, or 9 years in state prison and up to $10,000
Carjacking with great bodily injury	Base penalty plus 3 to 6 years in prison
Gang-related carjacking	Base penalty plus 15 years to life in prison
Carjacking with a gun	Base penalty plus 10 years in prison
Carjacking with firing a gun	Base penalty plus 20 years in prison
Carjacking and seriously injuring or killing another person with a gun	Base penalty plus 25 years to life in prison
Carjacking as a second strike	Twice the base penalty
Carjacking as a third strike	25 years to life in prison

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

• 1. Definition of “Carjacking”
• 2. Best Defenses
• 3. Penalties
• 4. Related Crimes
• Additional reading

1. Definition of “Carjacking”

Simply put, carjacking in California is defined as:

1. the taking of a vehicle from someone’s immediate possession
2. accomplished through force or fear.³

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 their immediate presence (or from the passenger’s immediate presence),
3. against their 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.

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 they could retain possession of the car if they were not 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”), it became a carjacking when the defendant resorted to fear to retain possession of the truck.⁶

You took the car against their 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 their will” means without the victim’s consent.⁹ A person “consents” to something when they do 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 their car, this element is easily satisfied.

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 does not even need to be consciously aware that you were using force or fear to take possession of their 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

The intent to deprive

In general, California theft offenses require an intent to deprive the owner of the stolen property for good. However, California’s carjacking law requires an intent to deprive the owner/passenger of their 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. Best Defenses

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):

You did not use force or fear

If you did not use force or fear to take the car, you are not 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.

The driver consented

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 do not 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 does not meet the criteria for carjacking. Again, you may be guilty of one of the less serious offenses of grand theft auto or joyriding.

You are the victim of 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 people’s ability to correctly:

• remember and
• identify the perpetrator.

Therefore, many carjacking suspects get

• misidentified and
• wrongly accused.

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.”

“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 was not guilty of carjacking.

The court disagreed, stating that “the fact that carjacking does not require proof of an intent to deprive the victim of a motor vehicle permanently [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. Penalties

Penal Code 215 PC is a felony, punishable by three, five or nine years in the California state prison and a maximum $10,000 in fines.¹⁹

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

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.

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

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

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

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 under 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

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 is not 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

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

Related Crimes

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.

• Assault with a deadly weapon (PC 245(a)(1)) – attacking or attempting to attack another person with a weapon capable of causing death or great bodily injury.
• Auto burglary (PC 459) – entering a locked automobile or its trunk with the intent either to steal the car, steal property in the car, or commit any other felony inside the vehicle.
• Battery (PC 242) – using force or violence upon another.
• Battery with serious bodily injury (PC 243) – using force or violence upon another, resulting in the victim sustaining substantial physical harm.
• Grand theft auto (PC 487(d)(1)) – taking someone else’s vehicle, worth $950 or more, without permission, with the intent to deprive the true owner of the vehicle.
• Joyriding (VC 10851) – unlawfully taking or driving a car that does not belong to you but with no intent to deprive the owner of the car permanently.
• Kidnapping during a carjacking (PC 209.5) – during a carjacking, moving the victim a substantial distance, and the movement increases harm to the victim.
• Robbery (PC 211) – taking someone else’s property from the person’s body or immediate possession when accomplished by force or fear.

Additional reading

For more in-depth information, refer to these scholarly articles:

• Carjacking – United States Attorneys’ Bulletin article about carjacking laws.
• Carjacking and its consequences: A situational analysis of risk factors for differential outcomes – Security Journal.
• Perceived Sanction Threats and Projective Risk Sensitivity: Auto Theft, Carjacking, and the Channeling Effect – Justice Quarterly.
  
• Carjacking: Scope, Structure, Process, and Prevention – Annual Reviews of Criminology.
• “It takes skills to take a car”: Perceptual and procedural expertise in carjacking – Aggression and Violent Behavior.

For tips on how not to become a carjacking victim, refer to the articles Carjacking Prevention by crimedoctor.com and Avoiding Carjacking by the Insurance Information Institute.

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