Carjacking is a serious offense in California, carrying some of the stiffest penalties if one is found guilty. Carjacking is described as a felonious crime. It involves the taking of a car belonging to another person without their consent. As you take the vehicle, you intend to deprive them temporarily or permanently of the vehicle, and you do so forcefully or through instilling fear. The car, according to the law, does not have to be taken from the driver only. But also from a passenger found in the vehicle. When you are accused of feloniously taking a car, it means you had no legal rights over it. When accused of carjacking, you need a defense attorney to fight these allegations against you. The lawyers at Long Beach Criminal Attorney will help you avoid a guilty conviction or fight that you receive less severe penalties.
Generally, people consider carjacking as a robbery, but it is broader than that. For one to be convicted of this offense, they must have intended to deprive the vehicle owner of its use temporarily or permanently. This means even when a person takes the car momentarily to joyride without the consent of the owner, can be found guilty of carjacking even when they returned the vehicle. However, when this is the case, the accused person may be charged with a different crime, that of theft.
When you are found guilty of this offense, you are likely to face state imprisonment for nine years or less. Additionally, if the defendant used a weapon to instill fear, the penalties will be harsher. Because of the felonious nature of this offense, the defendant, if found guilty, may also earn a strike. This is according to the Three-strikes law in California. Fortunately, having a criminal attorney fight these allegations against you may result in lesser penalties if guilty or an acquittal if not.
Elements of Carjacking Crime
Being accused of carjacking is not enough to find you guilty. The prosecution is given the burden to prove that you committed the crime by producing substantial evidence. Additionally, the prosecutor must prove certain elements of the offense for a guilty verdict. These will include showing:
- The accused took a car belonging to another person
- The vehicle
- was from the individual that had its immediate possession or was a passenger in the vehicle
- The defendant took the car against the will of the person
- In taking the car, the defendant applied force or instilled fear so that the person may not resist his or her taking of the vehicle
- By use of fear or force in taking the vehicle, the perpetrator intended to deprive the owner of its use. It does not matter if it was permanently or temporarily, according to the statute
It is essential to understand that in committing this offense, the defendant must have had a specific intent of taking the vehicle away. This intent was aimed at depriving the owner of the vehicle, and he or she applied fear or force to commit the offense. If the defendant had no such intention at the time he or she took the vehicle, they could have a legal defense against the charges.
Additionally, for one to be guilty of the offense, the prosecution must show that the vehicle was taken without permission. If there were consent from the owner or the person with the vehicle at the time, it would be impossible to determine the element. Consent is described by the law as any permission voluntarily or freely given while understanding why they have consented.
Terms Used in Carjacking
Carjacking laws in California are contained under PEN 215. In this statute, various terms are used to describe the offense and are essential in understanding the crime. Here, we discuss the different terms and what they mean concerning the crime of carjacking.
Immediate Presence and Possession
When we picture carjacking, we generally imagine an individual with either a knife or a gun ordering a motorist and sometimes passengers in a car to get out. The individual then gets into the vehicle and drives away. According to this, the vehicle was with the driver, and within their immediate presence.
According to the statute, immediate presence means the vehicle was within reach of the victim. It also means the vehicle was within the control or observation of the victim, and if fear or force was not used against them, they would retain its possession.
Taking without Consent
When a person is said to take from another, it means they gained access to the vehicle and moved it, even for a short distance. This means that even in cases where a defendant was unable to drive away with the vehicle, they can still face attempted carjacking charges. However, the prosecution must prove the other elements or facts of the crime.
Without permission means that it was against the will of the victim. When an individual consents, he or she voluntarily and freely permits something and is not influenced by fear or use of force. This means the person acted with free will.
Force and Fear
According to PEN 215, fear and force are just the same. The courts state that when the use of threats instills fear, it constitutes the use of force. Fear means the person is afraid for themselves, their family, property, or people that are in the vicinity when the incident is taking place.
In satisfying the element or fact of fear, there must be sufficient reason that caused the person to agree to the illegal demand for their property. This means, when the defendant uses a certain level of fear or force that overcomes resistance from the victim, this element is proven.
The law also states that sometimes the victim does not have to be conscious of the fear or force applied in taking the vehicle. For instance, if a person was unconscious in the vehicle or it was a baby, and you drove off with them, you will still be charged with carjacking.
The Intention to Deprive
According to the law, theft is the intention to deprive a person of their property permanently. In contrast, carjacking involves either temporary or permanent deprivation of the vehicle to its owner. It does not matter if the defendant carjacked the vehicle to keep it permanently, or it was for a short duration.
Defenses to PEN 215 Violations - Carjacking Offense
As earlier stated, carjacking is a serious offense in California, where a conviction will lead to severe penalties. When faced with these allegations, your best move would be to get the services of a criminal attorney. Your lawyer will study the case, the evidence against you, and conduct private investigations into the circumstances of the offense.
Your lawyer will then be able to come up with various defenses that may lead to your being acquitted of the offense of being charged with a lesser crime. Some of the legally acceptable arguments include:
You did not Apply Force, Neither Instill Fear
One of the elements the prosecution must prove with regard to this offense is that you used fear or force in taking the car. If there is no evidence of this, you cannot be found guilty of PEN 215 violation. For instance, if you saw a car you admired and the keys were in the ignition, you may take it for a spin without telling the owner and returning it within a short time.
In this case, you never intimidated the owner or used force to obtain the car. In such a case, the charges of carjacking will not apply, but you will be charged with a lesser offense, such as grand theft.
You had Consent
If the owner or the person with the car permitted you to take it, you could not be convicted of carjacking. For instance, if you borrowed a car from a person with an agreement of returning it within a day, unfortunately, you take two days; you are not guilty of this offense.
The vehicle owner may accuse you of carjacking, but because of the element of consent, you can only be guilty of a lesser crime. Your lawyer will, however, argue that you had been given the car voluntarily by the owner, and you are only guilty of not returning it at the time you agreed.
Most criminal convictions are out of mistaken identity. A carjacking incident can be traumatizing and stressful for the victim. This usually makes victims not focus on the identity of the perpetrator. But instead on how to come out of the incident safe. This has resulted in many people getting mistaken for carjacking.
A victim, while reporting the incident to the police, may describe the way the perpetrator was dressed, how he looked or talked. The police may find someone that fits the description near where the incident occurred and arrests them. When a lineup is put, the defendant may be wrongly identified as the perpetrator of the crime.
This is one of the reasons having a criminal defense lawyer is beneficial. Your lawyer will investigate the circumstances of the offense as well as produce evidence that you were not the one that committed the crime. Sometimes, a person without a lawyer can get convicted of the offense wrongly because no one is available to challenge the evidence against them.
If your lawyer can prove that you are a victim of mistaken identity, the charges against you will be dismissed.
A person with a vendetta against you can falsely accuse you of the crime. For instance, if you live with your partner and you use one car registered in her name, your using it can land you in trouble. Suppose you argue with your girlfriend and you drive off with her car as you have always done, out of anger, she may accuse you of carjacking.
Your lawyer can argue that this is a regular practice and prove you are in a relationship or live in the same house. Your lawyer can also verify if you used the car to visit a person or work. When all this is proven, you will be found innocent of carjacking.
Penalties for Violating PEN 215 – Carjacking
As stated, the offense of carjacking is considered a felony in California carrying severe penalties. If you are found guilty of this offense, the penalties you are likely to face are:
- Being sentenced to formal probation as well as a county jail time or a year or less or
- Incarceration in the state prison for three or five or nine years.
- Additionally, you will be ordered to pay fines amounting to $10,000 or less
If there were several victims in the vehicle when you committed the offense, the penalties are repeated for each one of them.
Aside from these penalties, the presence of some aggravating factors during the incidence can lead to enhanced penalties. Some of these factors include:
Great Bodily Harm
Sometimes during a carjacking incident, a defendant can cause injuries to the victim. When the injury is significant, according to PEN 12022.7, you will receive additional sentencing. This will involve serving a prison sentence of between three and six years consecutively with your standard penalties.
Street Gang Enhancement according to PEN 186.22
A carjacking can also be for benefiting a gang or under the instructions of a gang. If the prosecutor determines this, you will receive an enhancement of your sentence. According to PEN 186.22, enhancement due to street gang will result in a sentence of fifteen years to life imprisonment alongside your penalties for PEN 215 violations.
Violating PEN 12022.53
When you breach this statute while committing a carjacking offense, you enhance your penalties. If you used a gun while carjacking, in addition to the standard carjacking penalties, you will receive another ten years imprisonment. If you fire the weapon, you receive an additional sentence of twenty years. If a victim is injured because of the gun use, the defendant will be sentenced to twenty-five years more.
These enhanced penalties are, however, served consecutively and in addition to the penalties received for the carjacking offense.
Earning a Strike
Carjacking is considered a violent crime or felony in California. For this reason, when convicted of the offense, you will receive a strike based on the three-strikes law. When you earn a strike, it means you cannot qualify for parole until you have served your sentence up to 85%. If you have a previous strike, then you will earn a second strike. This means that your penalties will be two times more severe.