The Importance of Preliminary Hearings in Carjacking Cases

One of the most important hearings in any felony case, particularly a carjacking case, is the preliminary hearing. A preliminary hearing is a major hearing in a felony case, as it is the major hearing prior to a jury trial. The prosecution, at the preliminary hearing, has the burden of proof, and must present sufficient evidence amounting to probable cause, that the defendant committed the felony or felonies for which they are charged. The preliminary hearing is an important part of any defense, and it is the time to challenge the prosecution’s case and highlight any weaknesses. This is particularly true when it comes to carjacking cases, where there is a specific set of elements that the prosecution must prove, otherwise, the case could get dismissed, or the defendant may be held to answer on a lesser charge, improving their position as the case goes forward.

What is Carjacking?

California Penal Code section 215(a) defines car jacking as “the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear.”

The model jury instruction, CALCRIM No. 1650, Carjacking, Pen. Code § 215, reads as follows.

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;

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 the person from resisting;


5. All 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 model instruction goes on to state that “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.” Further, the model instruction states that “A person takes something when he or she gains possession of it and moves it some distance. The distance moved may be short.” (Emphasis added). “Felonious taking” has the same meaning in carjacking as in robbery. People v. Lopez (2003) 31 Cal.4th 1051, 1062. In People v. Lopez, the Supreme Court of California looked at the specific issue of whether the felonious taking element of the crime of carjacking, like robbery, requires asportation or movement of the motor vehicle. The Supreme Court of California “conclude[d] that it does.Id. “Section 215, subdivision (a), requires ‘the felonious taking of a motor vehicle…from…[the] person or immediate presence’ of the possessor or passenger.” Id.

So, What Can Be Done at Preliminary Hearing to Refute a Carjacking Allegation?

The preliminary hearing is the perfect time to challenge the prosecution’s evidence. It is also an opportunity to lock in witness statements. The way in which the incident is written in the police reports may not be exactly what happened.

For instance, if it can be shown through cross-examination of the prosecution’s witnesses that the vehicle did not move any distance, then the prosecution has not met all the elements necessary to constitute carjacking. If it can be shown that the defendant did not use force or that the complaining witness(es) were not in fear, then the prosecution has not met all the elements necessary to constitute carjacking.

If you or a family member has been charged with or is being investigated for carjacking or any crime in Los Angeles, Orange County, Riverside County, San Bernardino County, or Ventura County, it is imperative that you hire the best attorney that you can to handle these matters. As a former Deputy District Attorney with over 14 years of prosecutorial experience, Los Angeles Criminal Defense Attorney Michael Kraut knows how to effectively defend clients who have been accused of felony and misdemeanor theft offenses.

For more information about preliminary hearings in carjacking and all types felonies and to schedule your free consultation, contact attorney Michael Kraut at the Kraut Criminal & DUI Lawyers located at 6255 Sunset Boulevard, Suite 1520, Los Angeles, CA 90028. Mr. Kraut can be reached 24/7 at 888-334-6344 or 323-464-6453.

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