Carjacking is considered a violent felony offense that qualifies as a “strike” under California’s three strikes law, meaning that you must serve at least 85% of your sentence if you have a second strike. You are also subject to other enhancements if you use a gun or someone suffers serious bodily injury during the commission of the crime among other aggravating factors.
As the name implies, the crime involves the taking of someone’s car by force or by instilling the fear of physical violence in the owner, driver or occupant.
Elements of Carjacking
To commit the crime of carjacking, the state must prove the following:
- That you took possession of another person’s vehicle
- In the immediate presence of the driver or occupant
- Against that person’s will by physical force or fear
- And with the intent to permanently or temporarily deprive that person of the car
Immediate presence includes being in control of the car or within the person’s reach or even observation.
You must also move the car some distance and do so without the driver or occupant’s consent by fear or force. Fear is instilling the threat of coercion so that the person relinquishes possession or control. By law, you can commit carjacking if an unconscious person or someone who is too young to resist is in the car when you drive it away. Generally, anytime someone steals an occupied car, there is the element of force or fear involved.
Finally, there is no threshold on how long you intended to take the car as in the distinction between joyriding and grand theft auto. Even driving the car one block is enough to satisfy this element.
Penalties for Carjacking
Although a violent felony, you could still be placed on probation along with one year in county jail depending on the circumstances of the case and your lack of a criminal record. Otherwise, carjacking carries from 3, 5 or 9 years in state prison and a fine up to $10,000.
Carjacking is also unusual for the numerous factors that can substantially increase your prison sentence. For example, you face a separate carjacking count for each person in the vehicle at the time you committed the offense.
Other sentence enhancements include:
- Gang activity
If you committed the offense for the benefit, at the direction of, or in association with a gang, your sentence could be enhanced by a 15-year to life sentence that runs consecutively with your carjacking sentence.
- Use of a firearm
Use of a firearm in the commission of carjacking will subject you to an additional sentence of 10 years. If you fired the gun, the added sentence is 20 years. Seriously harming or killing someone with a firearm carries a 25-year to life sentence, which must be served consecutively with your carjacking sentence.
- 3 strikes law
If you have a previous strike on your criminal record, a second strike means that you must serve 85% of your sentence before being eligible for parole. A third strike automatically carries a mandatory sentence of 25-years to life.
Possible Defenses to Carjacking
- Lack of fear or force
Merely taking a vehicle without the owner’s knowledge or consent negates the element of fear or force.
If the owner consented to your taking the car, even if it was by misrepresentation or trick, there is no taking against the person’s will though you could be charged with auto theft.
- Mistaken identity
People who commit violent crimes often disguise their identities by using masks or hoods. Also, it is difficult for a frightened victim to accurately recall or describe the person or persons who carjacked the vehicle.
Robbery is also a violent felony but carries a penalty of 5 years instead of 9 for carjacking. It is also the unlawful taking of property from someone’s immediate presence by fear or force. You could be charged with both robbery and carjacking if you robbed or forcefully took property from an occupant of the car that you carjacked.
- Grand theft auto
The difference between this offense and carjacking is the lack of the element of fear or force and you must have intended to permanently deprive the owner of the car. This could be charged as a misdemeanor or felony.
- Auto burglary
If you carjack a locked car, you could be charged with auto burglary along with carjacking. This may be charged as either a felony or a misdemeanor.
- Kidnapping during a carjacking
You can commit the serious offense of kidnapping during a carjacking if you carjack or steal a vehicle and drive it with an occupant inside. This is a separate crime from kidnapping and requires that the kidnapping not be incidental to the offense, that the occupant be driven for a substantial distance and that the driving increased the risk of harm to the occupant. A conviction subjects you to life imprisonment with the possibility of parole.
Battery can be a misdemeanor and you face this as an additional charge if you harm someone during the carjacking. But if you seriously injury someone while carjacking the vehicle, you could face an additional 4 years in state prison.
Under federal immigration law, if you are an alien or permanent resident and you commit a crime of moral turpitude such as carjacking, you may have serious immigration consequences. In some cases, you could face potential deportation and not be eligible for cancellation of removal relief.
Call the Law Offices of Ramiro J. Lluis
Facing a charge of carjacking or a related offense can result in serious prison time and have long range or permanent adverse consequences on your life. If you have been charged with carjacking, call the Law Offices of Ramiro J. Lluis today for a free, confidential initial consultation at (213) 687-4412.