Introduction

This is a fairly straightforward crime – you allegedly used force (including by using or brandishing a firearm or weapon) or the threat of force – to steal the victim’s vehicle. Carjacking is codified as a felony under California Penal Code section 215.

Without a doubt, Carjacking is one of the most serious crimes you can be charged with as far as theft-related offenses go – it’s right up there with Armed Robbery/Second-Degree Robbery (California Penal Code section 212.5(c)) and Home Invasion/First-Degree Residential Burglary (California Penal Code section 460(a)); California Penal Code section 459).

But to convict you, the prosecutor must prove that you had the specific intent to commit this crime at the time you made the threat or brandished the weapon.

In other words, if you were merely trying to frighten the driver because, for example, he was a rival gang member, and you didn’t form the intent to steal his car until much later, you wouldn’t be charged with Carjacking (but some lesser felony or felonies).

Theft Crimes – Carjacking -- “Strikes”

Carjacking is such a serious felony that it’s virtually always charged as a Strike Offense (California Penal Code section 667(a)&(b)).

Specifically, it’s classified as a “Violent Felony” pursuant to California Penal Code section 667.5(c)(17) (“Carjacking”).

In fact, your Carjacking offense will also fall under this statute if you allegedly inflicted severe physical harm on the victim, or you used a gun during the carjacking (Penal Code section 667.5(c)(8).

Further, Carjacking would be charged as a Strike because it can also be classified as a “Serious Felony” under California Penal Code section 1192.7(c) if:

  • You assaulted the victim during the robbery (Penal Code section 1192.7(c)(10));

  • You used a dangerous/deadly weapon (Penal Code section 1192.7(c)(23)); or

  • You Made a Criminal Threat during the robbery as defined in California Penal Code section 422 (Penal Code § 1192.7(c)(38)).

Theft Crimes -- California Statutes – Carjacking

California Penal Code section 215

According to this statute, “Carjacking” involves a felony that constitutes the theft of an automobile from someone who is in possession thereof or from a passenger therein – either while he/she is still in the vehicle or from his/her “immediate presence”. Penal Code section 215(a).

The taking must have been against his/her will, and you must have had the intent to either temporarily or permanently deprive him/her of the vehicle at the time you took it, and you must have used force or the threat of force in doing so. Pen. Code section 215(a).

This statute also states that you can be charged with both Carjacking and Robbery as defined in California Penal Code section 211 as a result of a single incident/crime. But if convicted of both crimes, you can only be punished for one (which would obviously be whatever conviction provides for the longest prison sentence). Pen. Code § 215(a).

In other words, along with Carjacking, you can also be charged with either First-Degree Robbery (California Penal Code section 212.5(a) & (b)) or Second-Degree Robbery (California Penal Code section 212.5(c)), depending on the circumstances.

See also Judicial Council of California Criminal Jury Instructions (“CALCRIM”) number 1650 (“Carjacking -- Pen. Code § 215”).

Theft Crimes Convictions (including Sentencing Enhancements) – Carjacking

California Penal Code section 215

A Carjacking conviction will get you a low, mid, or high prison term of 3, 5, or 9 yrs. Penal Code section 215(b).

However, because this is a Strike Offense (California Penal Code section 667(a)&(b)), you could receive significantly more prison time. For example, if you were previously convicted of a single Strike offense, you would automatically receive an extra five years on your current sentence – or a maximum of 14 years – for this Second Strike.

But if you were previously convicted of two Strike offenses, as a Third Strike conviction (California Penal Code section 667(e)(2)), you would automatically get 25-years-to-life in prison.

Even if this would be your first Strike conviction – again, as a Violent Felony as defined in California Penal Code section 667.5(c)), you would still have to complete eighty-five percent of your sentence, even with good behavior, before you would qualify for parole.

Further, you could also get multi-year enhancements if any of the following circumstances were present (and, of course, if they were proven beyond a reasonable doubt):

Personal Discharging of a Firearm During the Commission of a Serious Felony (California Penal Code section 12022.53(c))

Personal Use of a Firearm During a Felony (California Penal Code section 12022.5)

Personal Use of a Dangerous Weapon During the Commission of a Felony (California Penal Code section 12022)

Inflicting Great Bodily Injury (GBI) (California Penal Code section 12022.7), which defines “great bodily injury” 

Gang Enhancement (California Penal Code section 186.22)

Injuring an Elderly Person (California Penal Code section 368(b)(2)).

Defenses to Theft Crimes -- Carjacking Charges

CALCRIM jury instructions set forth the following defenses to a Carjacking charge:

  • You never actually took anyone’s automobile;

  • You did take it but no one was inside it at the time (mitigation – you could still be charged with Grand Theft Auto (“GTA”) under California Penal Code section 487(d)(1));

  • You didn’t take the automobile against anyone’s will (e.g., you had the owner’s consent to take it);

  • You didn’t use violence or threats to take the automobile or to prevent the purported victim from resisting;

  • You did use violence or threats to take it but you didn’t intend to permanently or even briefly deprive him/her of the automobile;

  • You only formed the intent to take the vehicle after you used violence or made threats;

  • At the time of the incident, you didn’t intend to temporarily/permanently deprive the owner of the vehicle;

  • You believed the subject vehicle had actually been wrongfully taken from you originally (i.e., you believed you lawfully owned or had the right to possess it). Note that even if you were mistaken, and even if your belief was somewhat unreasonable, you nevertheless didn’t have the requisite intent to commit Carjacking because you thought the automobile was your own.

See CALCRIM number 1650 (“Carjacking -- Pen. Code § 215”).

See also CALCRIM number 1863 (“Defense to Theft or Robbery: Claim of Right”).

Examples of a Theft Crime – Carjacking

Buena Park Man is Finally Exonerated after DNA Evidence Proves He Wasn’t the Carjacker

On or about May 24th, 2005, local resident James Ochoa (age twenty) allegedly robbed several individuals in Buena Park with an air-rifle/pistol that resembled an authentic firearm and stole their vehicle. The VW was discovered several days later near Ochoa’s residence.

Unfortunately for him, when police towed the vehicle, the air pistol Ochoa had allegedly used fell from the inside of the rear bumper where he had supposedly stashed it. Inside the VW, police discovered a black sports cap and a grey hoodie that the carjacker had worn at the time of the robbery.

To make matters worse, Ochoa had just completed a six-month stint in a state penitentiary for Possession of Methamphetamine (California Health and Safety Code section 11377), and was therefore on parole at the time.

Ochoa’s luck continued to worsen from then on. One of the men who was robbed picked Ochoa’s mugshot out of a photo line-up out of several other mugshots of teenage suspects (i.e., who were clearly much younger than him).

Later, Buena Park PD detectives drove both victims to Ochoa’s residence to watch them bring him out in handcuffs. (Needless to say, this was both highly prejudicial and completely unlawful.) At that time, the first victim confirmed his mugshot identification of Ochoa as the carjacker, but the second victim merely said that Ochoa was “probably” the culprit.

In late June 2005, the Orange County Sheriff’s Department’s forensic lab completed its testing of the cap and hoodie but were unable to match the DNA found therein to Ochoa. (Ochoa voluntarily provided his DNA to prove his innocence.) Nor did any fingerprints lifted from the VW match Ochoa’s.

Ochoa had even offered to take a lie detector test, but the lead detective turned him down. (Polygraphs are inadmissible as evidence in a criminal case but are sometimes useful in convincing a prosecutor to drop a particular case if the suspect “passes”.) Further, numerous members of Ochoa’s family told detectives that he had been home with them all night on the time of the robbery.

Notwithstanding, and not surprisingly, the O.C. D.A.’s Office tried Ochoa on the “strength” of their two victims’ allegations and “identifications” for the following crimes:

Carjacking (California Penal Code section 215); and

Second-Degree Robbery (California Penal Code section 212.5(c); California Penal Code section 211).

Just before trial commenced at the end of October 2005, Ochoa turned down the prosecutor’s offer of a two-year prison sentence, insisting he was innocent.

However, in early November 2005 (less than one week into the trial), the judge told Ochoa he would give him life (with possible parole) if he was convicted. As a result, Ochoa eventually buckled, pled guilty to Carjacking in the middle of the trial, and received his two-year sentence.

In October 2006, Ochoa’s original claims of innocence were proven correct when the California Department of Justice’s crime lab linked DNA from the cap and hoodie to 20-year-old James McCollum, who was then incarcerated in the LA Co. Twin Towers jail facility on another Carjacking case. Fortunately, Ochoa was immediately released from prison and his conviction rescinded.

See: latimes.com.

A Sampling of Theft Crimes – Robbery Cases Handled by the Los Angeles Defense Attorney Law Firm (LADALF)

Although Facing Likely Life in Prison for Third-Strike Armed Robbery, LADALF Worked Out a Plea that Would Get “Johnny” Released on Parole in Only 32 Months

People v. J.B. (DTLA courthouse – 07/2021):

“Johnny” was arrested and charged with Armed Robbery/Second-Degree Robbery under California Penal Code section 211 & California Penal Code section 212.5(c)).

As a result, he was facing down a very likely 5-yr. stretch in a Calif. prison, not accounting for the fact that he was also being charged with a Strike Offense (California Penal Code section 667(a)&(b)) since this crime is considered to be both a “Violent Felony” under California Penal Code section 667.5(c), as well as a “Serious Felony” under California Penal Code section 1192.7(c).

In addition, it appeared he would receive an additional four years – for a total of 9 – if a jury found true the special allegation of him Using a Dangerous Weapon During the Commission of a Felony (California Penal Code section 12022).

Even worse, Johnny had previously served time for two separate Armed Robbery convictions, which would make the current conviction a Third Strike (California Penal Code section 667(e)(2)). As a result, he was looking at an all-but-certain twenty-five-years-to-life in a maximum-security penitentiary if convicted of the new charge.

Even far worse, while awaiting trial on this potential Third Strike offense, Johnny was arrested again and charged with several additional counts of 2nd-Degree Robbery, but this time with the special allegation of Personal Use of a Firearm During a Felony (California Penal Code section 12022.5).

If convicted of the Third Strike plus the two new Armed Robbery counts, he would almost certainly be serving a life sentence.

Fortunately, Ninaz Saffari, founding attorney of the Los Angeles Defense Attorney Law Firm (LADALF), consolidated these last two Armed Robbery charges into one case.

Result: Ninaz moved heaven and earth to get Johnny a plea that resulted in a 60-month sentence. But since he had already spent 12 months in jail awaiting trial, and based on the fact that those convicted of Strike offenses are now being released early from prison with good behavior – specifically, after 2/3 of their sentence instead of the typical eighty-five percent for Strike terms (because of overcrowding and Covid concerns) – Johnny will be eligible for early release in thirty-two months.

Despite Having No Viable Defense Against Armed Robbery Charge w/ a Potential 9-Yr. Sentence, LADALF was Able to Get Mental Health Diversion with Dismissal

People v. V.J. (Criminal Courts Bldg., DTLA – 01/2020):

This unfortunate client of LADALF entered a liquor store not far from MacArthur Park in DTLA with the intent to swipe some beer, which he did. However, the loss-prevention specialist working there spotted him in the act and tried to block his exit at the front door.

In desperation, V.J. broke one of the bottles of beer, then waved its jagged neck at the specialist, essentially threatening to use it on him unless he let him pass.

Notably, if V.J. had actually vocalized this threat, he could have been hit with an additional felony charge for Making a Criminal Threat (California Penal Code section 422).

In any event, the specialist was able to disarm and subdue V.J. until LAPD arrived minutes later. As a result, he was arrested for, charged with, and prosecuted for an Estes Robbery” (California Penal Code section 211).

See People v. Estes (1983) 147 Cal.App.3d 23, 28.

If V.J. had simply surrendered to the specialist, he would only have been charged with a simple misdemeanor for Shoplifting (California Penal Code section 459.5) or Petty Theft (California Penal Code section 486; California Penal Code section 490.2).

Even worse, because the particulars of this crime amount to what’s categorized as a “Violent Felony” under California Penal Code section 667.5(c), V.J. was also charged with a Strike Offense under California Penal Code section 667(a)&(b).

In addition, this was hardly V.J.’s first offense, having been convicted of several felony robberies as a juvenile. In total, therefore, upon conviction he would possibly receive a prison sentence of almost one decade.

Ms. Saffari, therefore worked even harder than she usually does to get V.J. an unbelievable deal.

First, with the help of her favorite substance-abuse placement specialist, she was able to locate an in-patient rehab facility that specialized in dual-diagnosis patients like V.J. (i.e., individuals who suffer from mental-health problems, as well as drug addiction).

Second, after presenting her mitigation package to the prosecutor and judge, she was able to convince both to give V.J. the opportunity for a fresh start.

Result: V.J. received Mental Health Diversion (California Penal Code section 1001.36), which upon successful completion would result in the entire case being dismissed. And, of course, V.J. would not have to spend a single day behind bars.

“Joey” was Facing 3 Decades b/c of a 2nd Robbery/Second Strike Charge; Reduced to Receiving Stolen Property, No Jail, No Probation, No Second Strike

People v. J.C. (Van Nuys Courthouse West – 09/2018):

“Joey” retained us after he was arrested and prosecuted for Second-Degree Robbery (California Penal Code section 212.5(c)). The typical max on this crime is nine years. See Punishments for Robbery (California Penal Code section 213).

However, Joey was facing more than two-and-a-half decades because:

  • he had a prior Robbery conviction for which he received more than seven years in prison;

  • he was on parole for that conviction at the time of his arrest;

  • any degree of Robbery is usually charged as a Strike Offense (Calif. Pen. Code § 667(a)&(b)), because it’s considered under California law to be a “Violent Felony” per Calif. Pen. Code § 667.5(c); and

  • if convicted of the new charge, he would be sentenced on a Second Strike.

As always, and as with every one of our clients, LADALF embarked on a scorched-earth campaign to defend Joey.

Throughout the prosecution, including at the preliminary hearing, we dissected all the purported evidence against him, and were able to convince the prosecutor that there were numerous inconsistencies between the purported victim’s statements to police, to the lead detective, and on the witness stand, and that the victim was untrustworthy.

We also convinced the prosecutor that other witnesses’ statements didn’t match up to the police report or the cops’ BWV (body-worn video).

And, of course, as we always do, we kept pushing for trial, thereby always keeping the prosecution on the defensive, forcing the Deputy DA to counter-punch against our constant onslaught.

Result: The Deputy DA dropped the Robbery charge and gave Joey a fantastic deal: a drastically reduced plea to Receiving Stolen Property (Cal. Pen. Code § 496(a)) with zero jail, zero probation, and no 2nd Strike.

Current Client “Lazlo” Facing 25 Years’ Max for Armed Robbery of Marijuana Dispensary

People v. L.W. (Compton Superior Courthouse -- Charged 01/2020, Ongoing):

“Lazlo” was allegedly captured on CCTV security footage holding up a cannabis dispensary with a semi-automatic weapon with an accomplice while a getaway driver kept the engine running outside – or so say the police and prosecutors.

This eventually led to his arrest and prosecution in late Jan. ’20 for these felonies and special allegations:

Robbery under P.C. § 211;

Gang Enhancement (P.C. § 186.22);

Personally Discharging a Firearm During the Commission of a Serious Felony (P.C. §  12022.53(c));

Personal Use of a Firearm During a Felony (P.C. § 12022.5); and

Strike Offense (P.C. § 667(a)&(b)).

Maximum sentence if convicted: twenty-five yrs. in a Calif. penitentiary.

Status: Pending (we will update this Case Summary upon final disposition).

The Los Angeles Defense Attorney Law Firm (LADALF)

As of March 2022, LADALF’s criminal defense attorney founder Ninaz Saffari will have been practicing criminal law for seventeen years, including the first 4 at the LA Co. PD’s Office. Since 2005, she has successful defended hundreds of individuals (both adults and juveniles) against almost every imaginable type of Robbery charge.