PEOPLE v. STOLTZ

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Court of Appeal, Fourth District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Paul Gerard STOLTZ, Defendant and Appellant.

No. G008692.

Decided: January 29, 1992

Fred T. Uebbing, San Diego, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., Richard B. Iglehart and George Williamson, Chief Asst. Attys. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Rudolf Corona, Jr., Janelle B. Davis and Barry J.T. Carlton, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

Paul Gerard Stoltz appeals from his conviction for automobile theft in violation of Penal Code section 487, subdivision 3,1 contending:  (1) he was improperly convicted of automobile theft because the vehicle he took was not an automobile;  and (2) the court erred prejudicially in refusing to instruct on section 499b, a lesser offense included within Vehicle Code section 10851.   We reject these arguments, but find the court committed reversible error by failing to instruct properly in a related context.

On March 3, 1989, in Newport Beach, Stoltz took a Chevrolet Coachman camper belonging to another because he needed a place to sleep.   The next day, March 4, in San Diego, he surrendered to the police and led them to the camper.   It appeared to have been rummaged through and a battery charger was missing.   No evidence indicated who took the charger.

Stoltz told the officer he was not planning to look in Newport Beach for the owner and he had not planned initially to surrender.   The officer could not remember whether Stoltz said he wanted to make sure the camper was returned to the owner.

I

 Stoltz argues the vehicle he took was not an “automobile,” as alleged in the information and referred to in section 487, subdivision 3, the statute under which he was convicted.2  No other statute or case defines the term as it is used there.

The provisions of the Penal Code are to be construed “ ‘according to the fair import of their terms, with a view to effect its objects and to promote justice’ ” (Keeler v. Superior Court (1970) 2 Cal.3d 619, 632, 87 Cal.Rptr. 481, 470 P.2d 617, quoting § 4), and in accordance with the common or ordinary meaning of the language used.  (People v. Heffner (1977) 70 Cal.App.3d 643, 648, 139 Cal.Rptr. 45 [Taser qualifies as “firearm”].)  “ ‘[W]here a word of common usage has more than one meaning, the one which will best attain the purposes of the statute should be adopted, even though the ordinary meaning of the word is thereby enlarged or restricted and especially in order to avoid absurdity or to prevent injustice.’ ”  (People v. Hacker Emporium, Inc. (1971) 15 Cal.App.3d 474, 478, 93 Cal.Rptr. 132 [term “person” can apply to corporation].)   However, “[p]enal statutes will not be made to reach beyond their plain intent;  they include only those offenses coming clearly within the import of their language.  [Citation.]”  (Keeler v. Superior Court, supra, 2 Cal.3d at p. 632, 87 Cal.Rptr. 481, 470 P.2d 617.)

Section 487, subdivision 3 was amended in 1927 to add automobiles to the list of stolen items qualifying the thief for grand theft treatment.   (Historical Note, 49 West's Ann.Pen.Code, (1988 ed.) § 487, p. 178.)   The Legislature could not have used the word “automobile” with the intent to distinguish coupes and sedans from other personal motored passenger vehicles not yet evolved.

The common dictionary definition of automobile is, “A usually 4–wheeled automotive vehicle designed for passenger transportation on streets and roadways and commonly propelled by an internal-combustion engine․”  (Webster's Third New Internat. Dict. (3d ed. 1961) p. 148.)   The Chevrolet Coachman fell well within that definition.   The average citizen would have no trouble divining that theft of that vehicle would constitute what is commonly referred to as “grand theft auto.” 3  We would contravene the purpose of the statute and render it an absurdity were we to hold otherwise.

 That the Legislature recently removed automobiles from the purview of section 487, subdivision 3 and enacted section 487h to cover “motor vehicle” theft does not change the analysis.4  The Legislature has the prerogative to redefine a crime with more precision without suffering the inference that the original definition was inadequate.  (See Fuentes v. Workers' Comp. Appeals Bd. (1976) 16 Cal.3d 1, 7, 128 Cal.Rptr. 673, 547 P.2d 449 [Legislature is presumed to intend consistency in laws;  courts will interpret statutes to avoid overthrow of longstanding principles].)

 Stoltz relies on Insurance Code section 11580.06, which defines an automobile as having only four wheels.   The Chevrolet Coachman had two axles but six wheels.   But that section is contained in an article dealing specifically with “Actions on Policies Containing Liability Provisions.”   Its language connotes limitation to the article.5  There is no indication the Legislature intended the definition to apply to areas outside the highly technical area of insurance coverage.  (See Lampley v. Alvares (1975) 50 Cal.App.3d 124, 128, 123 Cal.Rptr. 181 [no rule of law exists requiring same construction of word used in different statutes on different subjects];  Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 232, 110 Cal.Rptr. 144, 514 P.2d 1224 [word susceptible to different meanings will be construed in conformity with the general purpose of the statute in question].)   The camper Stoltz took was a “automobile” within the purview of section 487, subdivision 3.

II

 Stoltz claims the court erred in refusing his proposed instruction that the jury could convict him of section 499b as a lesser offense included within the Vehicle Code section 10851 charge.   We reject that contention,6 but find the court committed reversible error by failing to instruct on section 499b and Vehicle Code section 10851 as lesser offenses included within the section 487, subdivision 3 charge.

Stoltz was tried on two counts:  auto theft pursuant to section 487, subdivision 3 on March 3, 1989, and unlawfully taking and driving a vehicle pursuant to Vehicle Code section 10851 on March 4, 1989.   After the evidence was in, Stoltz asked the court to instruct the jury that it could convict him of section 499b as a lesser offense included within Vehicle Code section 10851.   The court refused, reasoning there was no evidence Stoltz intended to return the camper.

The prosecutor told the jury it could convict Stoltz of the Vehicle Code section 10851 violation if it found he did not intend to permanently deprive the owner of the camper.   Stoltz's attorney argued he could not be convicted of that charge at all because there was no evidence he took or drove the camper on March 4, the day after the alleged theft.   The court instructed the jury that it could convict Stoltz of either or neither of the charges but not both.7  The jury convicted Stoltz of the section 487, subdivision 3 charge of March 3, and acquitted him of the Vehicle Code section 10851 charge of March 4.

These facts and the parties' original arguments raised questions which they subsequently briefed:  (1) Is section 499b a lesser offense included within section 487, subdivision 3?  (2) If so, should the trial court have given a sua sponte instruction on that point?  (3) Was the Vehicle Code section 10851 violation alleged on March 4, 1989, a lesser offense included within the section 487, subdivision 3 violation alleged on March 3, 1989?   (4) If not, should the court have given a sua sponte instruction on Vehicle Code section 10851 as a lesser offense included within section 487, subdivision 3?  (5) What effect, if any, did the giving of CALJIC No. 14.37 have on any prejudice analysis concerning the failure to instruct on Vehicle Code section 10851 and section 499b as lesser offenses included within section 487, subdivision 3?  (6) What effect, if any, did the argument of defense counsel concerning the occurrence date of the alleged Vehicle Code section 10851 violation have on any such prejudice analysis?

Section 1159 provides:  “The jury ․ may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense.” 8  “ ‘The test ․ of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.’  [Citations.]”  (People v. West (1970) 3 Cal.3d 595, 612, 91 Cal.Rptr. 385, 477 P.2d 409.)

 The test may be met in either of two ways:  (1) as the offenses are defined;  or (2) as they are set out in the accusatory pleading.   (People v. Barrick (1982) 33 Cal.3d 115, 133, 187 Cal.Rptr. 716, 654 P.2d 1243.)   In either case, the court has a sua sponte duty to instruct on all lesser included offenses unless no rational jury could find the offense to be less than that charged.  (People v. Wickersham (1982) 32 Cal.3d 307, 324–325, 185 Cal.Rptr. 436, 650 P.2d 311.)

“[T]here are three separate statutory measures which provide punishment for the taking or use of an automobile without the owner's consent.  Penal Code section 499b, commonly referred to as the ‘misdemeanor joy-riding statute,’ provides in pertinent part:  ‘Any person who shall, without the permission of the owner thereof, take any automobile ․ or other vehicle ․ for the purpose of temporarily using or operating the same, shall be deemed guilty of a misdemeanor․’  Penal Code section 487, subdivision 3, commonly referred to as ‘grand theft—auto,’ [and sections 484 and 486, when read together, provide] that every person who feloniously steals, takes, carries, or drives away the automobile of another is guilty of grand theft.  [Citation.]  Vehicle Code section 10851 might be deemed to proscribe conduct which falls between that proscribed by the Penal Code sections.   It provides in part that ‘[a]ny person who drives or takes a vehicle not his own, without the consent of the owner thereof, and with the intent either permanently or temporarily to deprive the owner thereof of his title to or possession of the vehicle, whether with or without intent to steal the same ․ is guilty of a public offense․’

 “ ‘[T]he physical conduct prohibited by the three enactments is substantially the same, but ․ there purports to be a distinction as to the intent with which the act is done in each instance.   It may be presumed that the Legislature intended by these sections to deal with problems which are properly distinguishable․  The distinction ․ is admittedly a subtle one, and would present a rather difficult problem if it were required that a court instruct a jury as to the distinction in a given situation.   It may well be that the Legislature intended to leave the decision as to which section should be invoked in a particular case to the prosecutor.’  [Citation.]”  (People v. Jaramillo (1976) 16 Cal.3d 752, 755–756, 129 Cal.Rptr. 306, 548 P.2d 706.)   Despite that observation, when prosecutors opt to charge one or more of these sections, the court must properly instruct on lesser included offenses.

 Vehicle Code section 10851 is a lesser offense included within section 487, subdivision 3.  (People v. Kehoe (1949) 33 Cal.2d 711, 713–716, 204 P.2d 321 [holding the predecessor of Veh.Code, § 10851 to be included within § 487, subd. 3];  see also People v. Marshall (1957) 48 Cal.2d 394, 400, 309 P.2d 456;  People v. Buss (1980) 102 Cal.App.3d 781, 784, 162 Cal.Rptr. 515;  People v. Pater (1968) 267 Cal.App.2d 921, 926, 73 Cal.Rptr. 823.)   The Attorney General seems to agree but argues it was instructed upon by way of the Vehicle Code section 10851 charge alleged the day after the section 487, subdivision 3 violation.   He reasons as follows:  Because the section 487, subdivision 3 violation was alleged “on or about” March 3 and the Vehicle Code section 10851 violation was alleged “on or about” March 4, and because “on or about” gives at least one day leeway, the charges were effectively alleged and instructed upon in the alternative.

True, the prosecution is not required to allege an offense on a precise date.  (§ 955.)   It may allege the violation occurred “on or about” a given date and, subject to certain limitations, have the jury instructed that it may convict even if the crime did not occur on the date named.  (See People v. Creighton (1976) 57 Cal.App.3d 314, 318–320, 129 Cal.Rptr. 249;  CALJIC No. 4.71.)

But we are aware of no authority for using this concept to conclude that offenses alleged on different dates are violations based upon the same act.   In fact, an allegation of related offenses on the same date connotes that they arose from the same transaction while allegations on different dates connote different transactions.  (Compare People v. Kehoe, supra, 33 Cal.2d at p. 715, 204 P.2d 321 and People v. Malamut (1971) 16 Cal.App.3d 237, 241–242, 93 Cal.Rptr. 782.)   No rational jury would suspect the same act was contemplated when the offenses are alleged on different dates.   To accept the Attorney General's assertion to the contrary would lend cannon fodder to the concept that courts' reasoning powers are akin to those found in Through the Looking Glass by Lewis Carroll.  (See, e.g., Dukeminier and Johanson, Family Wealth Transactions:  Wills, Trusts, Future Interests, and Estate Planning (1972) p. 359, fn. 52.) 9

 Further, although the jury was instructed pursuant to CALJIC No. 14.37, the instruction was designed to apply when both section 487, subdivision 3 and Vehicle Code section 10851 violations are charged in separate counts.  (See Use Note, CALJIC No. 14.37 (5th ed. 1988).) 10  CALJIC No. 17.10 is the instruction dealing with lesser included offenses and does so expressly.   An instruction which does not is inadequate, particularly where, as here, the lesser included offense is alleged as a separate offense on a different day.11  The jury should have been instructed pursuant to CALJIC No. 17.10 that Vehicle Code section 10851 is a lesser included offense to section 487, subdivision 3, unless no rational jury could have found the offense to be less than the greater crime.   (People v. Wickersham, supra, 32 Cal.3d at pp. 324–325, 185 Cal.Rptr. 436, 650 P.2d 311.)

 The Attorney General embraces that exception and urges the court had no duty to instruct because if Stoltz was guilty of anything, he was guilty of the greater offense.   He points to evidence showing Stoltz had the intent to deprive the victim of the vehicle permanently.12  But one could also conclude Stoltz took the camper with the intent to temporarily deprive the owner of it.   That he used it to sleep in one night and then led the police to it is probative of that conclusion, whether or not he intended to return it.   The important concept is that there was no irrefutable evidence he intended to keep it or otherwise deprive the owner of it permanently.   A thief can abandon an automobile after taking it, and be guilty of no more than a violation of Vehicle Code section 10851.   While the evidence did not mandate a finding of that crime, it provided the basis for doing so.

The Attorney General points to the jury's guilty verdict on the section 487, subdivision 3 charge and acquittal on the charged violation of Vehicle Code section 10851 as support for his position.   But conviction on the greater charge cannot be determinative or it would swallow the rule.   And the jury could have acquitted Stoltz on the Vehicle Code section 10851 charge for at least one reason unrelated to his intent:  because the violation was alleged on the day after the taking.

 The failure to give required lesser included offense instructions is reversible error unless the jury necessarily resolved the factual issue presented by the omitted instruction adversely to the defendant under other, properly given instructions.  (People v. Sedeno (1974) 10 Cal.3d 703, 720–721, 112 Cal.Rptr. 1, 518 P.2d 913.)   The Attorney General contends this was accomplished when the court read CALJIC No. 14.37 and the jury convicted Stoltz of the section 487, subdivision 3 charge and acquitted him on the Vehicle Code section 10851 charge.   Not so.

The trial court only told the jury it could not convict Stoltz of both crimes, and if it had “a reasonable doubt as to which of the two counts [he was] guilty,” it should convict him of the Vehicle Code section 10851 violation.   The court did not suggest the jury had to concern itself with which of the two crimes to find Stoltz guilty if it believed no Vehicle Code section 10851 violation had occurred on March 4.   Nothing in the instruction suggested the jury should worry about whether the crime committed on March 3 might be less than that alleged, a violation of section 487, subdivision 3.   Because of this, giving CALJIC No. 14.37 did not necessarily resolve the issue adversely to Stoltz, and we cannot say the failure to instruct on Vehicle Code section 10851 was harmless.13

 We answer the remaining question, whether section 499b is a lesser offense included within section 487, subdivision 3, for guidance on retrial, if any.   Logic by way of syllogism suggests it is a lesser included offense.   If one cannot violate section 487, subdivision 3 without violating Vehicle Code section 10851 (People v. Kehoe, supra, 33 Cal.2d at pp. 713–716, 204 P.2d 321), and one cannot violate Vehicle Code section 10851 without violating section 499b (when “take” and “drive” are alleged in the conjunctive) (People v. Barrick, supra, 33 Cal.3d 115, 135, 187 Cal.Rptr. 716, 654 P.2d 1243), then one cannot violate section 487, subdivision 3 without violating section 499b (when “take” and “drive” are alleged in the conjunctive).

The reasoning of Barrick supports that conclusion.   Before Barrick, cases held section 499b was not a lesser offense included within section 487, subdivision 3.  (See People v. Powell (1965) 236 Cal.App.2d 884, 886, 46 Cal.Rptr. 417;  People v. Tellez (1939) 32 Cal.App.2d 217, 219–220, 89 P.2d 451.)   But those cases used the same reasoning found in People v. Thomas (1962) 58 Cal.2d 121, 125–130, 23 Cal.Rptr. 161, 373 P.2d 97, which was overruled in Barrick.   The Barrick court reasoned that when driving is alleged in the conjunctive as part of the greater offense, it subsumes taking the vehicle with the purpose or intent to use or operate it, the elements of section 499b.  (People v. Barrick, supra, 33 Cal.3d at pp. 134–135, 187 Cal.Rptr. 716, 654 P.2d 1243.)   That logic applies where, as here, taking and driving away are alleged in the conjunctive in a section 487, subdivision 3 prosecution, making section 499b a lesser included offense.

The Attorney General argues that “driving away,” as used in section 484,14 does not contemplate “using” or “operating” an automobile as required by section 499b.   He reasons that when section 484 was enacted in 1872 (see Historical Note, 49 West's Ann.Pen.Code (1988 ed.) § 484, p. 122), there were no automobiles.   Thus, he continues, the Legislature could only have envisioned the “driving away” of animals.

Even if we assume that in 1872 one's wagon, buckboard, stage coach, or railroad train would not be “driven away,” using the vernacular of that day, the Attorney General's argument ignores basic rules of statutory construction and the history of the section.   We reiterate:  The provisions of the Penal Code are to be construed “ ‘according to the fair import of their terms, with a view to effect its objects and to promote justice’ ” (Keeler v. Superior Court, supra, 2 Cal.3d at p. 632, 87 Cal.Rptr. 481, 470 P.2d 617, quoting § 4), and in accordance with the common or ordinary meaning of the language used.

The common meaning of “driving away,” when used in conjunction with an automobile, is to direct the vehicle away from a location using its own power and steering mechanism.   Although it may not have had that meaning in 1872,15 it surely did in 1927 when the section was rewritten but retained the same language.  (See Historical Note, 49 West's Ann.Pen.Code, (1988 ed.) § 484, p. 122.)   If the Legislature believed the term was restricted to the concept of “herding,” it surely would have inserted a new term to cover what the populace refers to regularly as “driving away.”

The Attorney General best exposes the fallacy in his own reasoning by asserting the same rationale also applies to the term “driving,” and therefore the Barrick court “jumped to an unwarranted conclusion.”   We cannot be so cavalier as to reject Supreme Court decisions.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)   Precedent and logic compel the conclusion that as alleged here, section 499b was a lesser included offense within section 487, subdivision 3, and should have been instructed upon.

 However, automatic retrial is not mandated.   Stoltz does not assert a lack of evidence to support a conviction for joy-riding, only that the failure to instruct on that lesser offense deprived him of an opportunity to be convicted of it.   Therefore, at most he is entitled to a reduction in the judgment to conviction for that crime.   The prosecution may want to attempt another conviction for grand theft or violation of Vehicle Code section 10851;  or, it may be satisfied with a joy-riding conviction (§ 499b).   We should preserve those options.  (See §§ 1260, 1262;  People v. Cooper (1979) 94 Cal.App.3d 672, 684, 156 Cal.Rptr. 646;  People v. Garcia (1972) 27 Cal.App.3d 639, 648, 104 Cal.Rptr. 69.)

The judgment of conviction under section 487, subdivision 3 is reversed.   Within 30 days from the issuance of the remittitur, the People may file a written demand for a new trial.   If no demand is filed, the trial court shall reduce the offense to joy-riding under section 499b and sentence Stoltz accordingly.  (See People v. Cooper, supra, 94 Cal.App.3d at p. 684, 156 Cal.Rptr. 646;  People v. Garcia, supra, 27 Cal.App.3d at p. 648, 104 Cal.Rptr. 69.)

With a feat of amazing prestidigitation, my colleagues summarily conclude that joyriding (Pen.Code, § 499b) is a lesser included offense of grand theft auto (Pen.Code, § 487).   There is absolutely no authority for this proposition and I respectfully dissent.

The majority opinion calls to mind a magician's act with two boxes and an elephant named “joyriding.”   The elephant enters one box called “unlawful taking” and then, with a wave of the magician's wand and a puff of smoke, reappears in another box called “grand theft auto.”   Like a stage illusionist, the majority accomplishes its trick by confusing the identities of the two boxes and ignoring the differences between the two.   They state, and I quote, “We answer the remaining question, whether section 499b is a lesser offense included within section 487, subdivision 3, for guidance on retrial, if any.   Logic by way of syllogism suggests it is a lesser included offense.   If one cannot violate section 487, subdivision 3 without violating Vehicle Code section 10851 [citation], and one cannot violate Vehicle Code section 10851 without violating section 499b (when “take” and “drive” are alleged in the conjunctive) [citation], then one cannot violate section 487, subdivision 3 without violating section 499b․”  (Maj. opn. p. 470.)   The wave of the magic wand occurs in the next-to-the-last clause because one can violate Vehicle Code section 10851 without violating Penal Code section 499b.   It is only when the prosecution specifically charges Vehicle Code section 10851 in the conjunctive that Penal Code section 499b can be also violated.   In all other cases, it is not.  (People v. Barrick (1982) 33 Cal.3d 115, 133–135, 187 Cal.Rptr. 716, 654 P.2d 1243, see discussion below.)

Contrary to popular misconception, joyriding has never been a lesser included offense in grand theft auto.  (People v. Tellez (1939) 32 Cal.App.2d 217, 219–220, 89 P.2d 451.)   Grand theft auto requires the specific intent to permanently deprive the owner of the possession of a vehicle.  (See CALJIC No. 14.35.)   Joyriding, on the other hand, involves the intent to only temporarily deprive the owner of the use of the vehicle.  (See CALJIC No. 16.305.)   The facts of this very case illustrate why joyriding is not necessarily included 1 in grand theft auto.

Stoltz took a camper from Newport Beach to San Diego, about 100 miles, and that night slept in it.   When he turned himself in the next day, he told the officer he had not intended to return the vehicle or turn himself in when he originally stole it.2  Based on this statement, the trial court concluded there was no evidence of joyriding, and, if convicted of it, such a conviction could not be sustained on appeal.   If Stolz had truly intended only to temporarily use the camper to sleep in it, he could have done so in Newport Beach.   There was no need to drive to San Diego and keep it for a day.   Most pertinently, his statement to the officer showed that he intended, at the time of the taking, to deprive the owner of it without any thought of returning it.3

The trial court's analysis makes eminent sense.   Stoltz's testimony that he originally did not plan to look for the owner or turn himself in was undisputed.   No rational jury could conclude Stoltz had an intent to only temporarily deprive the owner of the camper of possession when he took it.   Moreover, even if the trial court should have given a joyriding instruction because of the unlawful taking charge, any error was harmless, as my colleagues acknowledge, in light of Stoltz's acquittal on that charge.

The majority confuses the elements of unlawful taking with the elements of grand theft auto.   Unlawful taking is a crime which one can commit by intending to permanently or temporarily deprive an owner of his or her possession of the vehicle.  (See CALJIC No. 14.36.)   Grand theft auto, by contrast, is a crime which requires one to take a vehicle with the “specific intent to deprive [the owner] permanently” of his or her property.  (CALJIC No. 14.35.)   The two intents are mutually exclusive.   The intent to just temporarily deprive an owner of the use of a vehicle is actually a defense to a grand theft auto charge, because such intent shows a lack of intent to permanently deprive.

The majority's reliance on People v. Barrick, supra, 33 Cal.3d 115, 187 Cal.Rptr. 716, 654 P.2d 1243 is misplaced.  Barrick merely held that joyriding was included within unlawful taking where the defendant was accused of driving a vehicle, because “to drive an automobile is to operate it,” and joyriding is to temporarily operate a vehicle without the owner's permission.   (See Barrick, supra, 33 Cal.3d at p. 135, 187 Cal.Rptr. 716, 654 P.2d 1243, and compare with Pen.Code, § 499b.)

Under Barrick, there are two ways a lesser crime may be considered as included within a greater one.   One way is to determine whether all the elements of the lesser crime are within the legal definition of the greater crime.   The second way is to determine whether all the elements of the lesser crime are necessarily stated within the greater offense as charged by the prosecutor.  (Barrick, supra, 33 Cal.3d at p. 133, 187 Cal.Rptr. 716, 654 P.2d 1243.)

The facts in Barrick illustrate the difference between the two tests.   In Barrick, the prosecution charged unlawful taking, a crime which requires the defendant either drive or take a vehicle without the consent of the owner (Veh.Code, § 10851), but alleged that defendant both drove and took the vehicle.  (See Barrick, supra, 33 Cal.3d at p. 133, 187 Cal.Rptr. 716, 654 P.2d 1243.)   The court ruled that joyriding was within the unlawful taking as alleged by the prosecutor, even though it is not within the statutory definition of unlawful taking.  (Id. at p. 135, 187 Cal.Rptr. 716, 654 P.2d 1243.)

Barrick never held an intent to permanently deprive an owner of possession of a vehicle necessarily includes an intent to only temporarily use that same vehicle.   In fact, Barrick itself distinguished between the “mere use” of a vehicle and the specific intent to deprive the owner of permanent possession in this passage:  “The Attorney General argues that because the evidence in this case showed that the ignition switch in the victim's car had been substantially altered, a more serious offense than joyriding was shown.   In our view, the evidence relating to the tampered ignition does not reflect on whether the defendant had the specific intent to deprive the owner of the possession of her car or a mere intent to use or operate the vehicle, but merely shows the method by which the automobile was taken.”  (Barrick, supra, 33 Cal.3d at p. 135, 187 Cal.Rptr. 716, 654 P.2d 1243, italics added.)

The intent to deprive of permanent possession is not the same as the intent to only temporarily use.   That is why joyriding is not as serious a crime as grand theft auto.   As the present case illustrates, one can intend to steal a camper with no intention of ever returning it.   Such an intent removes any possibility of being convicted of joyriding.   I would affirm the judgment.

FOOTNOTES

1.   All statutory references are to the Penal Code unless otherwise specified.*   *   *

2.   At the time of the offense, the section read in relevant part:  “Grand theft is theft in any of the following cases:  ․ [¶] 3.   When the property taken is an automobile․”  (Ibid.)

3.   Although not controlling on the issue or Stoltz's ability to raise it, we note the question of the statute's application to the vehicle was not mentioned in the trial court.

4.   That section provides in relevant part:  “Every person who feloniously steals or takes any motor vehicle, as defined in Section 415 of the Vehicle Code ․ is guilty of grand theft․”  (§ 487h, subd. (a).)  Vehicle Code section 415 states, “A ‘motor vehicle’ is a vehicle which is self-propelled.”  Vehicle Code section 670 defines a vehicle as “a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks.”   Section 487h will remain in effect only until January 1, 1993, unless the Legislature acts to extend it.  (§§ 487, subd. 3, 487h.)   At that time, absent action by the Legislature, automobiles will again be listed in section 487, subdivision 3.

5.   “Except as may be otherwise provided in this article․”  (Ibid.)

6.   The issue is moot.   Because Stoltz was acquitted of the latter charge, failure to instruct on any lesser included offense is harmless.

7.   The court instructed using CALJIC No. 14.37.   After giving the definition of each offense, the court told the jury:  “The unauthorized taking or depriving by one person of the automobile of another may, depending upon the facts, constitute either of two crimes.   The distinction between the offenses is in the type of specific intent required.  [¶] To constitute the crime of grand theft, there must be a specific intent to permanently deprive the owner of his vehicle.  [¶] To constitute a violation of Vehicle Code section 10851, there must be a specific intent to either permanently or temporarily deprive the owner of his title to or possession of the vehicle.  [¶] The defendant may be found either not guilty of both counts or guilty of one count.   If you find him guilty as charged in either of the two counts, you must find him not guilty of the other.  [¶] If you are convinced reasonable doubt [sic ] that the defendant is guilty of one of the two counts, but you have a reasonable doubt as to which of the two counts defendant is guilty, you must find him guilty of a violation of section 10851 of the Vehicle Code as charged in Count II.”

8.   The section and some cases (see, e.g., People v. Alva (1979) 90 Cal.App.3d 418, 428, 153 Cal.Rptr. 644) refer to such offenses as “necessarily included,” while other cases (see, e.g., People v. Toro (1989) 47 Cal.3d 966, 972, 254 Cal.Rptr. 811, 766 P.2d 577), CALJIC, and the court and parties here use the term “lesser included.”   Some cases use the terms interchangeably.  (See, e.g., People v. Pearson (1986) 42 Cal.3d 351, 355, 228 Cal.Rptr. 509, 721 P.2d 595.)   Because CALJIC uses it, and People v. Geiger (1984) 35 Cal.3d 510, 199 Cal.Rptr. 45, 674 P.2d 1303 created the concept of the “lesser related” offense, we shall use “lesser included offense” except when quoting.

9.   “Compare the reasoning of the White Knight in Carroll, Through the Looking Glass:  [¶] ‘Well, just then I was inventing a new way of getting over a gate—would you like to hear it?’  [¶] ‘Very much indeed,’ Alice said politely.  [¶] ‘I'll tell you how I came to think of it,’ said the Knight.  ‘You see, I said to myself “The only difficulty is with the feet:  the head is high enough already.”   Now first I put my head on the top of the gate—then the head's high enough—then I stand on my head—then the feet are high enough, you see—then I'm over, you see.’  [¶] ‘Yes, I suppose you'd be over when that was done,’ Alice said thoughtfully:  ‘but don't you think it would be rather hard?’․”  (Ibid.)

10.   The 1991 Revision to CALJIC No. 14.37 provides an optional paragraph expressly dealing with lesser offenses included within those crimes.  (CALJIC No. 14.37 (5th ed. 1991 pocket pt.) p. 52.)

11.   It escapes us why the district attorney chose to allege a separate violation of Vehicle Code section 10851 the day after the taking.   Given the leeway provided by “on or about” pleading and the availability of the charge as a lesser included offense within section 487, subdivision 3, he could have accomplished the same goal by charging only the section 487, subdivision 3 violation, avoiding the confusion engendered by pleading two charges on different dates.

12.   Most of the facts cited are unworthy of mention.   The strongest points are that Stoltz drove the vehicle over 100 miles from where it was taken and told the arresting officer he originally had not planned to look for the owner or turn himself in to the police.

13.   Neither Stoltz's trial counsel's final argument nor that of the prosecutor changes the result.   Stoltz's attorney argued that the jury should acquit on the March 3 Vehicle Code section 10851 charge because no crime occurred on that day.   As we discussed, that reasoning was permissible, given the disparity of dates in the information.   The prosecutor's argument that the Vehicle Code section 10851 charge was alleged in conjunction with the section 487, subdivision 3 charge, had it been correct, was just that:  argument.   There is no showing the jury adopted it.

14.   Section 484 defines theft, section 486 divides it into grand theft and petty theft, and section 487, subdivision 3 makes theft of an automobile grand theft.

15.   Then again, it may have.   In 1872 trains could be driven away under their own power.

1.   In a less grandiose manner, the majority performs a disappearing act of minor proportions when it summarily merges the concepts of necessarily included offenses, with those which are lesser included offenses.   Necessarily included offenses are a subset of lesser included offenses, but their members are not identical.  (See People v. Pater (1968) 267 Cal.App.2d 921, 924–927, 73 Cal.Rptr. 823;  6 Witkin & Epstein, Cal.Crim.Law (2d ed. 1989) §§ 3037–3039, pp. 3754–3760.)

2.   Stoltz never testified, but the arresting officer, Gutierrez, testified, “As I drove up, he walked up to my police car and told me that he wanted to turn himself in because he had stolen a vehicle, a motor home.”   Later, when the officer asked Stoltz, “ ‘When you stole the vehicle, were you planning on returning it to the owner?’ ”   Stoltz had responded, “․ [I] wasn't planning on looking in Newport Beach [the location of the theft] for the owner, but ․ [I] had not planned on turning [myself] in either.”On cross-examination, the officer was asked, “Did Mr. Stoltz tell you that he wanted to make sure that the owner got the motor home back?”   To this, Officer Gutierrez began to say, “I don't recall him—”at which point he was interrupted.   However, his partial response indicates he was not saying he did not remember;  his answer is more consistent with his not recalling Stoltz's use of those exact words.

3.   Contrary to the majority's extrapolation, a “thief” cannot take a car and later abandon it, thereby reducing his “theft” to an unlawful taking.   Theft, any kind of theft, requires a taking of property with the intent to permanently deprive the owner of it.  (See Pen.Code, §§ 484, 487a–487h;  People v. Jaso (1970) 4 Cal.App.3d 767, 771–772, 84 Cal.Rptr. 567;  CALJIC Nos. 14.00, 14.02.)   Once the item is taken with that intent, the thief's later intention is absolutely irrelevant.   Later remorse or abandonment does not, and cannot, negate or reduce the crime.  (People v. Holmes (1970) 5 Cal.App.3d 21, 25, 84 Cal.Rptr. 889.)

WALLIN, Associate Justice.

CROSBY, J., concurs.

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