California Criminal Jury Instructions (CALCRIM) (2017)

1650. Carjacking

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B. CARJACKING
1650.Carjacking (Pen. Code, § 215)
The defendant is charged [in Count ] with carjacking [in
violation of Penal Code section 215].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant took a motor vehicle that was not (his/her) own;
2. The vehicle was taken from the immediate presence of a person
who possessed the vehicle or was its passenger;
3. The vehicle was taken against that person’s will;
4. The defendant used force or fear to take the vehicle or to
prevent that person from resisting;
AND
5. When the defendant used force or fear to take the vehicle, (he/
she) intended to deprive the other person of possession of the
vehicle either temporarily or permanently.
The defendant’s intent to take the vehicle must have been formed before
or during the time (he/she) used force or fear. If the defendant did not
form this required intent until after using the force or fear, then (he/she)
did not commit carjacking.
[A motor vehicle includes a (passenger vehicle/motorcycle/motor scooter/
bus/school bus/commercial vehicle/truck tractor and
trailer/ <insert other type of motor vehicle>).]
[The term motor vehicle is defined in another instruction to which you
should refer.]
A person takes something when he or she gains possession of it and
moves it some distance. The distance moved may be short.
[An act is done against a person’s will if that person does not consent to
the act. In order to consent, a person must act freely and voluntarily
and know the nature of the act.]
[Two or more people may possess something at the same time.]
[A person does not have to actually hold or touch something to possess
it. It is enough if the person has (control over it/ [or] the right to
control it), either personally or through another person.]
[Fear, as used here, means fear of (injury to the person himself or
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herself[,]/ [or] injury to the person’s family or property[,]/ [or]
immediate injury to someone else present during the incident or to that
person’s property).]
[A vehicle is within a person’s immediate presence if it is sufficiently
within his or her control so that he or she could keep possession of it if
not prevented by force or fear.]
New January 2006; Revised March 2017
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
There is no sua sponte duty to define the terms “possession,” “fear,” and
“immediate presence.” (People v. Anderson (1966) 64 Cal.2d 633, 639 [51
Cal.Rptr. 238, 414 P.2d 366] [fear]; People v. Mungia (1991) 234 Cal.App.3d 1703,
1708 [286 Cal.Rptr. 394] [fear].) These definitions are discussed in the
Commentary to CALCRIM No. 1600, Robbery.
Give the bracketed definition of “against a person’s will” on request.
AUTHORITY
• Elements. Pen. Code, § 215.
Fear Defined. Pen. Code, § 212.
• Motor Vehicle Defined. Veh. Code, § 415.
• Immediate Presence Defined. People v. Hayes (1990) 52 Cal.3d 577, 626–627
[276 Cal.Rptr. 874, 802 P.2d 376]; People v. Medina (1995) 39 Cal.App.4th
643, 650 [46 Cal.Rptr.2d 112].
• Possession Defined. People v. Bekele (1995) 33 Cal.App.4th 1457, 1461 [39
Cal.Rptr.2d 797], disapproved on other grounds in People v. Rodriguez (1999)
20 Cal.4th 1, 13–14 [82 Cal.Rptr.2d 413, 971 P.2d 618]; see People v. Hamilton
(1995) 40 Cal.App.4th 1137, 1143–1144 [47 Cal.Rptr.2d 343].
• Carjacking Crime Against Possession, not Ownership, of Vehicle. People v.
Cabrera (2007) 152 Cal.App.4th 695, 701–702 [61 Cal.Rptr.3d 373].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 116.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, §§ 142.10[2][b], 142.10A (Matthew Bender).
LESSER INCLUDED OFFENSES
• Attempted Carjacking. Pen. Code, §§ 663, 215; see People v. Jones (1999) 75
CALCRIM No. 1650 ROBBERY AND CARJACKING
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Cal.App.4th 616, 628 [89 Cal.Rptr.2d 485].
Neither theft or robbery is a necessarily included offense of carjacking. (People v.
Ortega (1998) 19 Cal.4th 686, 693 [80 Cal.Rptr.2d 489, 968 P.2d 48] [theft];
People v. Dominguez (1995) 38 Cal.App.4th 410, 419 [45 Cal.Rptr.2d 153]
[robbery].) Vehicle theft (Veh. Code, § 10851(a)) is not a lesser included offense of
carjacking. (People v. Montoya (2004) 33 Cal.4th 1031, 1035 [16 Cal.Rptr.3d 902,
94 P.3d 1098].)
Attempted grand theft auto is not a lesser included offense of attempted carjacking.
People v. Marquez (2007) 152 Cal.App.4th 1064, 1066 [62 Cal.Rptr.3d 31].
RELATED ISSUES
Force—Timing
Force or fear must be used against the victim to gain possession of the vehicle. The
timing, however, “in no way depends on whether the confrontation and use of force
or fear occurs before, while, or after the defendant initially takes possession of the
vehicle.” (People v. O’Neil (1997) 56 Cal.App.4th 1126, 1133 [66 Cal.Rptr.2d 72].)
Asportation—Felonious Taking
“Felonious taking” has the same meaning in carjacking as in robbery. (People v.
Lopez (2003) 31 Cal.4th 1051, 1062 [6 Cal.Rptr.3d 432, 79 P.3d 548].) To satisfy
the asportation requirement for robbery, no great movement is required, and it is
not necessary that the property be taken out of the physical presence of the victim.
[S]light movement is enough to satisfy the asportation requirement. (Id. at p. 1061
[internal quotation marks and citations omitted].) The taking can occur whether or
not the victim remains with the car. (People v. Duran (2001) 88 Cal.App.4th 1371,
1375–1377 [106 Cal.Rptr.2d 812].) Carjacking can also occur when a defendant
forcibly takes a victim’s car keys, not just when a defendant takes a car from the
victim’s presence. (People v. Hoard (2002) 103 Cal.App.4th 599, 608–609 [126
Cal.Rptr.2d 855] [although victim was not physically present in the parking lot
when defendant drove the car away, she had been forced to relinquish her car
keys].)
1651–1699. Reserved for Future Use
ROBBERY AND CARJACKING CALCRIM No. 1650
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