Return to CALJIC Part 9-12 – Contents
F 9.54.1 n1 Simple Carjacking As Lesser Charge Of Kidnapping For Carjacking.
The crime of carjacking (PC 215) is a necessarily lesser included offense within the crime of kidnapping to facilitate carjacking (PC 209.5). (See People v. Contreras (97) 55 CA4th 760.)
F 9.54.1 n2 Carjacking: Constitutional Challenge To “From The Vicinity” Language Of PC 209.5.
The “vicinity” language of PC 209.5 is subject to constitutional challenge on vagueness grounds. (But see People v. Moore (99) 75 CA4th 37 [88 CR2d 914] [rejecting argument that the term “vicinity” is unconstitutionally vague]; see also People v. Ervin (97) 53 CA4th 1323 [62 CR2d 231] [robbery in vicinity of ATM machine]; People v. Superior Court (Caswell) (88) 46 C3d 381, 400 [250 CR 515] [phrase “in or about”].)
CAVEAT: Even though this argument has been rejected by a intermediate state appellate court it may still be viable in other state courts or federal court.
[See Brief Bank # B-820 and ask for Brief Bank # B-747 for briefing on this issue
.]
(See also FORECITE F 9.55 n1.)
F 9.54.1 n3 Increase In Harm To Victim Must Be Substantial.
[See Brief Bank # B-821 for briefing on this issue.]
F 9.54.1 n4 Kidnapping During Carjacking (PC 209.5): Includes Kidnapping To Effect Escape Or Prevent Sounding Of Alarm.
(See FORECITE F 9.50 n11.)
F 9.54.1 n5 Kidnapping For Carjacking: No Requirement That Movement “Substantially” Increase The Risk Of Harm To The Victim.
See People v. Ortiz (2002) 101 CA4th 410 [124 CR2d 92] [statute (PC 209.5) does not require that physical movement of victim “substantially” increase risk of harm to victim].
F 9.54.1 n6 Kidnapping For Carjacking (PC 209.5): Completed Carjacking Is A Required Element.
Neither a completed kidnapping nor a completed carjacking is necessary to convict the defendant of attempted kidnapping during the commission of a carjacking. (See People v. Medina (2007) 41 C4th 685.)
F 9.54.1a
Kidnap For Carjacking: Non-Incidental Movement As Distinct Element
(PC 209.5)
*Add the following to the numerical list of elements specified in CJ 9.54.1:
[See FORECITE F 9.52.1a]