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 stop 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 (meaning one proves that force or fear was not used by defendant), however, it does not result is dismissal of the case. The case is then 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 asserted 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, although this is now up to the judge’s discretion under SB620). 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)).
Lastly, in our experience, carjacking can be the result of someone being under the influence of drugs. In one case, our client was struggling with substance abuse issues that had a mental disorder element. When this is the case, it is wise to consider the new mental disorder diversion under Penal Code § 1001.36, recently passed into law in late June 2018.
For more information about strike offenses, click on the following articles:
- Two Attacks Thirty Minutes Apart, Is It One or Two Strikes?
- Eighth Amendment Challenge to Three Strikes Law Fails
- 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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