CARJACKING

Although it is called "carjacking," the offense actually applies to any motor vehicle. Carjacking, as defined by Penal Code section 215, is designated a violent felony under the California Penal Code. (Penal Code section 667.5.) Conviction on a violent felony will result in a sentence enhancement and will count as a strike under the three strikes law.

Carjacking is distinguished from vehicle theft in that the offense occurs in the presence of the person who possesses the vehicle or a passenger in the vehicle and is taken against the person's will through force or fear. The taking of the vehicle must be done with the intent to deprive the person of the vehicle either permanently or temporarily.

The offense of carjacking does not require that the person whose vehicle is taken own the vehicle. Furthermore, the offense transpires even if the person in possession of the vehicle (or a passenger) remains in the vehicle when it is taken. Indeed, a kidnapping charge may also be charged in such a situation. A vehicle is taken when the offender gains possession of the vehicle and moves it any distance – that distance may be slight and does not require that the vehicle be moved out of the victim's presence.

The courts have held that the person who is in possession of the vehicle need not necessarily be seated in the car or even physically present, as, for example, when the offender forcibly takes the keys to the vehicle from the victim. This may seem to contradict the "immediate presence" requirement, but the Court of Appeals held "[a] vehicle is within a person's immediate presence for purposes of carjacking if it is sufficiently within [the person's] control so that [the person] could retain possession of it if not prevented by force or fear.'" (People v. Gomez (2011) 192 Cal.App.4th 609, 623.)

Force is not defined by the statute, but the Court of Appeals have interpreted "force" as required by the carjacking statute to be force that is sufficient to overcome the victim's resistance. (People v. Lopez (2017) 8 Cal. App. 5^th 1230.) The facts in People v. Lopez are a good illustration: In that case, the victim had stepped out of her running vehicle to move a shopping cart when the defendant jumped into her running car and closed the door, The victim then ran to the car and started banging on the window while she tried to open the door, but the defendant held the door shut. The defendant then sped off in the vehicle. This constituted force in that the defendant overcame the victim's resistance to the taking of the vehicle.

Fear is defined by statute to be the fear of immediate injury to a person or property. Thus, for example, a threat with a weapon of any kind or a verbal threat of harm can be evidence of fear. As in force, fear requires only that which is sufficient to overcome the victim's resistance.

• There was no intent to deprive the person of the vehicle (example: mistaken taking).
• There was no use of force or fear.
• The vehicle was not moved.
• There was consent to take the vehicle.

Example:

Jacob, stumbling through a parking lot after his night of too much drinking, spotted a classic red Ford truck. As he was admiring it, he looked inside and saw the keys were in the ignition. He hopped inside, started it up, and started to drive it out of the parking lot. He heard someone shouting and saw a man in his rear-view mirror running after him. He realized that it must be the owner and pulled the truck into a parking spot and turned off the ignition. He profusely apologized but the owner of the truck had already called 911 and besides, the owner wasn't in the mood to forgive. The police arrived during the conversation between Jacob and the owner and Jacob was arrested and charged with carjacking.

Jacob's Orange County carjacking defense attorney succeeded in getting the charge dropped. Can you determine why? Jacob took the truck in the owner's presence and without the owner's permission. He intended to deprive the owner of the truck, even if only for a joy ride. But Jacob did not take the truck through force or fear. True, Jacob still had a theft charge hanging over him, but the carjacking charge was dropped, which substantially relieved his sentencing exposure.

A carjacking conviction carries substantial penalties. The offense may be punished by a prison sentence of three, five, or nine years AND the defendant can be punished for each person who was present in the vehicle at the time of the carjacking. The sentence can be enhanced when a firearm is used during the carjacking, if someone is injured as a result of the carjacking, and/or if the crime is committed as a gang-related crime.

Carjacking is a serious charge and carries substantial risk of a long prison term. If charged with this crime, it is important to have a strong and effective advocate on your side. Orange County criminal defense attorney William Weinberg has many years' experience defending those accused of carjacking and other crimes. He is laser focused on achieving a successful outcome for his clients and he has the results to prove it. He promises to treat every client's case as the unique case that it is and to vigorously defend his client's rights under the law.

Attorney Weinberg is available for a free consultation where he will review your case and the evidence against you. He will then advise on what he believes is the best defense strategy given the facts of your case. Contact Mr. Weinberg at his Irvine office at (949) 474-8008 or email him at bill@williamweinberg.com.