To sustain a carjacking conviction there must be sufficient evidence that the requisite intent to take the vehicle exists at the time of the use of force or fear, and that the vehicle was taken from the victim’s immediate presence, although he need not actually be in the vehicle at the time of the taking. Appellant and his three companions approached the victim, the maintenance man of an apartment complex. According to the victim, they made gang signs, asked him where he was from, assaulted him, and knocked him to the ground. Appellant threw a concrete block. During the assault, the victim lost possession of his truck keys. Somehow one of the assailants obtained them. The victim escaped into his apartment and the assailants drove away in their car. Ten to 20 minutes later they returned. As the victim watched through the window, two of them walked to the apartment and tried to enter. They then went to the victim’s truck, and appellant and another got in and drove away. A jury convicted appellant of carjacking and other offenses. The appellate court rejected appellant’s contention that there was insufficient evidence to support the carjacking conviction. Carjacking is the felonious taking of a vehicle in the possession of another from his immediate presence, accomplished by force or fear. The requisite intent to deprive the possessor of possession of the vehicle must exist before or during the use of force or fear. Here, the victim was fearful as he watched through the window when the assailants took his truck. He was too afraid to stop them from taking it, having been assaulted some twenty minutes earlier. Moreover, it was not necessary for the victim to be actually in the vehicle; only that it was sufficiently within his control so that he could retain possession of it if not prevented by his fear. This element was also satisfied by the evidence. The keys were taken directly from the victim during the assault. When the assailants returned, the victim was some ten feet from the vehicle and only his fear prevented him from getting any closer.
Depending on the circumstances, questions to a suspect during the booking process about his gang affiliation may fall within the booking-question exception to the Fifth Amendment. Following his arrest, appellant was booked into the jail and during the booking procedure was asked several questions, including his gang affiliation and gang moniker. Appellant’s motion to suppress the responses was denied. The appellate court found no error. A routine booking-question exception to the Fifth Amendment exists. In determining whether a question falls within the exception, the facts surrounding the encounter are to be examined to determine whether the question is a legitimate booking question or a pretext for eliciting incriminating information. Here, the booking officer testified that he asked the questions for classification purposes designed for jail security. He was not involved in the arrest or charging of appellant and had no knowledge of the crimes. Also, the interview took place the same day as the arrest, before appellant was charged. Under these circumstances, the questions were not designed to elicit incriminating evidence necessitating the giving of Miranda warnings.