Return to CALJIC Part 9-12 – Contents
F 9.46 n1 Carjacking: “Immediate Presence” Element Is The Same As For Robbery.
SUBSEQUENT HISTORY: CJ Instruction Modified To Comport With FORECITE. In the CALJIC Sixth Edition, CJ 9.46 was amended to adopt FORECITE’s recommendation to include a definition of “immediate presence.”
People v. Medina (95) 39 CA4th 643 held that the same definition of immediate presence, which is applicable to robbery per PC 211, is also applicable to carjacking per PC 215.
The immediate presence element is satisfied even if the victim is forced to occupy his or her own vehicle during the carjacking. (See People v. Gray (98) 66 CA4th 973, 984-85.)
F 9.46 n2 Carjacking: Constitutional Challenge.
People v. Antoine (96) 48 CA4th 489, 494-498 [56 CR2d 530] rejected a challenge to the carjacking statute (PC 215) based on overbreadth, vagueness, equal protection and unconstitutional application. (See also People v. Gray (98) 66 CA4th 973 [78 CR2d 191] [carjacking statute (PC 215) is not unconstitutionally vague by permitting liability based both upon an intent to temporarily deprive and to permanently deprive].) However, these issues have not been resolved by the federal courts.
F 9.46 n3 Carjacking: Force Or Fear Element Can Occur Before, During Or After The Taking.
People v. O’Neil (97) 56 CA4th 1126 [66 CR2d 72] held that the “force or fear” element of carjacking is similar to robbery in that it need not be contemporaneous with the taking. It is sufficient if the force or fear occurs before, during or after the taking. (See also People v. Coryell (2003) 110 CA4th 1299 [substantial evidence supported carjacking conviction where driver and passenger fled from car due to fear prior to taking].)
F 9.46 n4 Carjacking: Force Requires More Than That Which Is Necessary To Accomplish The Mere Seizing Of The Property.
The force element of the crime of robbery, under PC 211, requires “something more… than just that quantum of force which is necessary to accomplish the mere seizing of the property.” (People v. Morales (75) 49 CA3d 134, 139 [122 CR 157]; see also FORECITE F 9.40k.)
Carjacking (PC 215) is a crime that is close to robbery. The two statutes have nearly identical wording that differ only as to intent, and they are identical as to the “force or fear” element. A fortiori, the Morales standard, requiring something more than merely the force necessary to commit the underlying theft, applies as well to carjacking.
Moreover, the formulation of “force” as requiring something more than the force necessary to commit the underlying act, is a technical definition peculiar to the law which requires sua sponte definition. (See FORECITE F 9.40k.) [See Brief Bank # B-728 for additional briefing concerning the required amount of force in carjacking.]
F 9.46 n5 Appellate Issue Alert: Pre-1997 Version.
The pre-1997 version of CJ 9.46 failed to define “immediate presence.” (See CALJIC History CJ 9.46.)
F 9.46 n6 Carjacking: Victim Must Be Aware Of The Taking.
In People v. Hill DEPUBLISHED/SUPERCEDED (99) 70 CA4th 376, 383 [82 CR2d 696] the court applied the “well-developed law” applicable to the compulsion element of robbery (i.e., taking of property in the possession of another against the victim’s will, by means of force or fear) to the crime of carjacking. The court concluded that a baby in a car could not be the victim of a carjacking, if the child was unaware of the vehicle being taken and had, in no meaningful sense, a will which was overcome. “She was essentially unconscious and we conclude she could not be the victim of a robbery or carjacking.” (Hill, 70 CA4th at 383.) (See also FORECITE F 9.40g [Taking From Intoxicated Victim].) [See Brief Bank # B-833 for additional briefing on this issue.]
However, the Supreme Court reversed the judgment of the Court of Appeal in People v. Hill (2000) 23 C4th 853, 860-61 [98 CR2d 254] holding that the against-the-will requirement is satisfied if the criminal act “is done for an illegal purpose or with an illegal intent.” (Hill, 23 C4th at 855.)
Carjacking: Victim’s Fear Must Be Objectively Reasonable
*Add to CJ 9.46:
The fear or intimidation element of robbery requires proof of the following:
1. The victim was induced to part with his property without [his] [her] consent as a result of actual fear caused by the defendant’s conduct;
2. The victim’s fear was genuine and reasonable under the circumstances [, or if unreasonable, the perpetrator must have known of the victim’s subjective fear and taken advantage of it].
Points and Authorities
[See FORECITE F 9.40n]
Carjacking: Asportation Requirement
*Add at the end of CJ 9:46:
Such vehicle was moved for at least a slight distance.
Points and Authorities
The crime of carjacking, like robbery, requires asportation or movement of the motor vehicle. (People v. Lopez (2003) 31 C4th 1051; see also People v. Vargas (2002) 96 CA4th 456, 463 [116 CR2d 867] [PC 215 conviction improper where defendant unable to move car after gaining possession; “there must be a felonious taking of the … vehicle”]; People v. Alvarado (99) 76 CA4th 156, 160 [90 CR2d 129].)