What Is Carjacking, Its Defenses and Punishment?

Carjacking is the theft of a car by means of force or fear (Penal Code § 215).  Force or fear requires that the defendant actually inflicts physical force upon the victim or that the defendant threatens to inflict imminent physical harm upon a driver or passenger, or even someone outside the car.  The key is that the threat be made or physical force be used to gain control of the car.  For such reasons, carjacking is a strike offense.

It is common during the carjacking for the defendant to use a gun or injure the victim.  It is also not uncommon for the theft to be for the benefit of a gang or to kidnap someone during the carjacking.  When any one of these exacerbating circumstances exist, defendant faces a maximum nine year sentence plus enhancements that can lead to a life sentence.

Carjacking can take many forms.  On television, carjacking is often portrayed as someone holding a gun and forcing a driver out of a car.  The gun-toting individual then jumps into the car and speeds away.  This is not the only scenario fitting the crime.  It could be that one notices his car being stolen, runs out to the car and bangs on the window for the theft to stop and the thief yells back to “get out of my way or I’ll run you over!”  The owner, fearful of being run over, stops trying to prevent the theft.  This can also be carjacking.

Defenses to carjacking usually start with whether force or fear was used by defendant.  If one “wins” on this issue, however, it does not result is dismissal of the case.  The case is thus grand theft auto, not carjacking.  This can save defendant many years in prison.

Consent is the second most common defense, but this is difficult to prove if the owner is threatened or is injured during the theft.  However, when there are no visible injuries and no valid party witnesses, this is often assorted as a defense.

Penalties for carjacking alone, without enhancements, are a three, five or nine year sentence and restitution to each victim, plus fines of up to $10,000.  In addition, if someone is injured, three to six more years can be added.  If the theft was for the benefit of a criminal street gang, a fifteen year to life enhancement can be added under Penal Code § 186.22.  If a gun is used, ten years can be added (Penal Code § 12022.53).  If the gun is fired, twenty years can be added.  If someone is killed or seriously injured by the gun, twenty-five years to life can be added.

Separately, carjacking is a strike offense under California’s “Three Strikes” law (California Penal Code §§ 667.6(b) to (j) and 1170.12).  If the defendant already has a strike or two strikes on his or her criminal record, the sentence is further enhanced.  If defendant has one strike, his sentence is usually doubled (§ 667.6(e)(1)) and if the defendant has two strikes, the sentence is usually an indeterminate term of twenty five years to life (§ 667.6(e)(2)(A)(i) – (iii)).

For more information about strike offenses, click on the following articles:
  1. Two Attacks Thirty Minutes Apart, is it One or Two Strikes?
  2. Eighth Amendment Challenge to Three Strikes Law Fails
  3. Appeals Court Holds, in Ruling on a Romero Motion, that There is No Automatic Dismissal For Strikes Arising From Same Act
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