Kidnaping to Facilitate Carjacking
To commit a kidnaping to facilitate carjacking, requires that a person who, during the course of a carjacking and to facilitate its commission, kidnaps someone other than the person who is the victim of the carjacking.1
Kidnaping “during the commission” of a carjacking can only happen after completing the carjacking.2 Where there is no completed act of carjacking, or kidnaping, or either, a person can be convicted of attempted carjacking or kidnaping.
The statute applies only if,
- The movement of the victim is beyond that merely incidental to commission of the carjacking,
- The victim is moved a substantial distance from the vicinity of the carjacking,
- The movement increases the victim's risk of injury over and above that necessarily to complete the carjacking.3
The increase risk of injury to the victim need not be substantial, but only greater than that of simple carjacking.4
The element of the offense in “the vicinity of the carjacking” means being close or near to the kidnapping. Anywhere around the area of the kidnapping may determine whether the victim was moved a substantial distance.5 It is unnecessary to determine the outer limits of the vicinity and then estimate whether the victim was moved a substantial distance. Instead, “once the elements of carjacking have been satisfied, there needs to be asportation only for ‘a substantial distance’ as defined in simple kidnapping.”
There is no requirement that the only purpose for the kidnapping is to facilitate the carjacking, the crime merely requires that it is one reason, even if there are other are reasons for the kidnapping.6
A defendant who intends to commit both a kidnaping and a simultaneous carjacking has as a purpose to commit each crime absent the other. Trying to do both the kidnaping and carjacking is trying to do each individually. Attempt to commit kidnaping during the commission of a carjacking cannot be done without committing an attempted kidnaping or an attempted carjacking.7
There is no necessity that the victim(s) leave the car; “taking” happens when defendant gains control over car by ordering victim to drive; asportation occurs when the defendant directs the victim to drive.8Sentence
A person convicted of kidnaping to facilitate a carjacking is sentence to prison for life with the possibility of parole.9
Where probation is granted there must be a condition that a 12 month jail be impose, unless the interests of justice would best be served by a lesser penalty.10
1 Section 209.5(a) of the California Penal Code
2People v. Contreras (1997) 55 C.A.4th 760, 64 C.R.2d 233.
3Section 209.5(b) of the California Penal Code.
4People v. Ortiz (2002) 101 C.A.4th 410, 415, 124 C.R.2d 92
5People v. Moore (1999) 75 C.A.4th 37, 43, 88 C.R.2d 914
6 People v. Ortiz (2012) 208 C.A.4th 1354, 1365, 145 C.R.3d 907.
8People v. Duran (2001) 88 C.A.4th 1371, 1375, 106 C.R.2d 812 that offense.
9Section 209.5(a) of the California Penal Code.
10Section 209.5(c) of the California Penal Code.