PC 209.5 Kidnap During Commission of Carjacking. Criminal Defense Lawyers Explain CA Penal Code 209.5 Law, Sentence & Criminal Defense.
- Criminal Defense Lawyers
- May 5
- 6 min read
California penal code section 209.5 makes it a crime to kidnap a person during the commission of a carjacking (PC 209.5). Kidnapping during the commission of a carjacking is considered both a serious offense (PC 1192.7) and violent offense (PC 667.5) in California.
The following is a summary of the law and penalties related to penal code 209.5 criminal charges. We included information on common defenses used against PC 209.5 allegations. For further information, please contact our California criminal defense lawyers for a free consultation.
PC 209.5 Law
Per penal code 209.5(a) ‘Any person who, during the commission of a carjacking and in order to facilitate the commission of the carjacking, kidnaps another person who is not a principal in the commission of the carjacking, is… guilty of PC 209.5(a)’ [Abbrev.].
Note: PC 209.5 only applies if the movement of the victim is beyond that merely incidental to the commission of the carjacking (i.e., substantial distance from the vicinity of the carjacking), and the movement of the victim increases the risk of harm to the victim over and above that necessarily present in the crime of carjacking itself.
To be found guilty of penal code 209.5, the district attorney must prove the following:
Defendant committed a carjacking,
While carjacking, the defendant moved or detained victim by physical force, or by threats of great bodily injury (GBI) against victim (kidnapping).
Defendant moved or detained victim for a substantial distance from the vicinity of the carjacking,
Defendant moved or detained the victim with the intent to facilitate the carjacking
The movement or detention of victim (kidnapping) increased the danger to victim above the danger presented in the carjacking itself
Victim was not one of the carjackers, and
Victim did not consent to the movement or detention (Calcrim 1204 Abbrev.).
Kidnapping Defined: Kidnapping is defined as taking and carrying away a victim without the victim’s consent, either by force, or by threat of force, or the keeping of a victim in place by force, or threat of force (PC 207 Abbrev.).
Carjacking Defined: Carjacking is the forceable theft of a vehicle against a victim. The force can be accomplished by physical force, of the fear of great bodily injury or death against the victim (PC 215(a) Abbrev.).
Carjacking Example: David forcefully pulls Jessica out of her car at a gas station so that David can steal Jessica’s car. Jessica remains at the scene where David stole her car by force. When David is caught by the police, he will be charged with the crime of carjacking (PC 215), among other possible criminal charges.
Compare: From the above example, if David forcefully jumps in Jessica’s car at the gas station, and then he drives off with Jessica still in the car, then David may be charged with kidnapping in the commission of a carjacking (PC 209.5).
PC 209.5 Penalties
Prison Sentence: Kidnapping during the commission of a carjacking is charged as a felony. If found guilty, the defendant may face either a probation sentence, or a life sentence with the possibility of parole in a California state prison.
Probation Sentence: A probation sentence is period of supervision, as opposed to a jail or prison sentence. A probation sentence is allowed in PC 209.5 cases, but a probation sentence is not guaranteed.
Whether a defendant in a PC 209.5 case is granted a probation sentence depends on many factors, including the defendant’s criminal history, the circumstances of the defendant’s case, the terms of any negotiated plea bargain between the district attorney the defendant, the level of sophistication used in the commission of the crime, the level of remorse, if any, shown by the defendant, and more.
Note: A probation sentence after a conviction for the crime of kidnapping during the commission of a carjacking will carry no less than a twelve-month county jail sentence as a condition of probation, unless the court finds good reasons not to impose the twelve-month county jail sentence probation condition. This is mandated by law in PC 209.5 cases (PC 209.5(c)).
No Suspended Sentence: If the defendant is convicted of kidnapping during the commission of a carjacking, and he or she is not granted a probation sentence, then the defendant must serve his life sentence in a California state prison, as opposed to a local county jail, and no portion of that prison sentence may be suspended (Aka “joint suspended prison sentence) [PC 1170(H)].
Three Strike Law: PC 209.5 violations are considered serious offenses (PC 1192.7) and violent offenses (PC 667.5). As such, the crime is considered a “strike” offense under California’s Three Strikes Sentencing Law. The crime of kidnapping during a carjacking is also considered a “super strike” under California law.
Note: If the defendant is granted a probation sentence after a felony PC 209.5 conviction, then any subsequent felony “strike” conviction will be considered the defendant’s third strike, and subject him or her to a life sentence under CA Three Strikes Law.
CIMT: The crime of kidnapping during the commission of a carjacking is considered a “crime involving moral turpitude.” (CIMT). A crime involving moral turpitude is any crime that demonstrate moral depravity or otherwise involves deceit, fraud, or theft.
A CIMT carries additional consequences for non-United States citizens (deportation from the U.S.), licensed professional (revocation or denial of professional license), and military personnel (discharge or denial of entry into the armed forces).
Firearm Prohibition: Any person convicted of kidnapping during a carjacking will be lose all firearm rights for life. This includes the loss of the right to own or possess firearms, firearm ammunition and body armor.
Parole & Probation: If the defendant is granted a probation sentence after a penal code 209.5 conviction, his probation sentence will be supervised by a county probation officer (i.e., felony probation officer), and the probationer (defendant) may be placed on felony probation for life.
Compare: If the defendant is paroled from prison after a PC 209.5 conviction, then his parole length will be for life and his parole will be monitored by a California state parole officer.
Note: There is no “Post-Release Community Supervision” (PRCS) for defendant’s convicted of kidnapping during a carjacking. The only post-incarceration options for a defendant after a PC 209.5 conviction are either a life probation sentence supervised by a county probation officer, or a life parole supervised by a CA state parole officer.
Bail: Most California counties will require a million dollars surety bond (Bail) for pretrial release of the defendant in PC 209.5 cases. This includes Los Angeles, Orange, San Bernardino & Riverside Counties. This million-dollar bail amount may be increased or decreased depending on the facts and circumstances of the case and the defendant’s personal circumstances.
Additional Crimes: PC 209.5 is commonly charged alongside other felony crimes and penalty enhancements, including criminal street gang allegations (PC 186.22), great bodily injury allegations (PC 12022.7), grand theft auto (PC 487(d), criminal threats (PC 422), attempted murder (PC 664/187), branding a firearm (PC 417), armed criminal action, and more.
PC 209.5 Common Defenses
Every kidnapping during the commission of a carjacking case is different. Therefore, every PC 209.5 defense will be structured differently from one case to the next. With this caveat in mind, the most common defenses utilized by criminal defense lawyers in PC 209.5 cases include the following:
Presentation of false allegations against the defendant (i.e., revenge accusations, embellishment of facts by victim or witnesses, etc.).
Consent, whether implied or express, by the victim, to take either the vehicle (no carjacking) or the victim (no kidnapping).
Police misconduct (i.e., coerced confession, illegal search and seizure, violation of Miranda Rights, etc.).
Technical and procedural defenses (i.e. lack of jurisdiction, double jeopardy, misjoinder of defendants, insufficient evidence to prove the identity of defendant, or the elements of the PC 209.5 crime, lost evidence or failure of the district attorney to provide exculpatory evidence, etc.).
Additional Defenses: Less common, but viable defenses to a kidnapping to commit a carjacking allegation can include insanity, serve intoxication, reasonable mistake, necessity to avoid a greater crime, and more.
Note: There is no statute of limitations in penal code 209.5 crimes. These means that the district attorney may bring charges of kidnapping to commit a carjacking case at any time after the day of the alleged crime. However, unreasonable delay in bringing formal charges against the defendant, which leads to the loss of favorable evidence for defense, can lead to a forced dismissal of the criminal allegations (Serna Defense).
Post-Conviction Options: After a conviction for kidnap during commission of carjacking, the defendant might have several post-conviction options, depending on the circumstance, including a commutation or governor’s pardon of the defendant’s sentence, withdraw of a guilty plea, petition for writ of habeas corpus, and appeal of the felony conviction without habeas corpus petition.
For more information on kidnapping during the commission of a carjacking (PC 209.5), contact our criminal defense lawyers for a free consultation. Our team of highly experienced criminal defense lawyers have defended every level or misdemeanor and felony allegations in Orange, Los Angeles, San Bernardino and Riverside County. We can help you too.
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