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District Court of Appeal, Third District, California.


Cr. 2045.

Decided: May 19, 1948

James J. Kehoe, in pro. per. Fred N. Howser, Atty. Gen., and Doris Maier, Deputy Atty. Gen., for respondent.

By the first count of an amended information defendant was charged with a violation of section 487 of the Penal Code (grand theft), and by the second count thereof he was charged with a violation of section 503 of the Vehicle Code (driving a car without the owner's consent). Counts 3, 4, and 5 charged certain prior convictions, all felonies, for which defendant was alleged to have served terms of imprisonment. He pleaded not guilty to all counts but at the time of trial admitted the priors charged in counts 3, 4, and 5. His motion to strike count 2 of the amended information was denied as were his motions to dismiss and quash the amended information and for a directed verdict. The jury returned a verdict of conviction on the first two counts. At the time set for imposition of sentence he moved for an arrest of judgment and to set aside the verdict as to count 2 and for a new trial, all of which motions were denied. Appearing personally, he now appeals from the judgment and from the order denying his motion for a new trial.

The numerous questions raised by defendant, each of which are wholly without merit, are in fact but three general contentions: (1) That the evidence is insufficient to support the verdict of the jury, which resulted solely from alleged misconduct of the district attorney, (2) that the alleged violation of sections 503 of the Vehicle Code and 487 of the Penal Code constituted but one offense in that a violation of said Vehicle Code section is necessarily included within a violation of the Penal Code section, and (3) that he was entitled to a trial under an indictment by the grand jury rather than pursuant to an information filed against him by the district attorney.

The undisputed testimony as disclosed by the record is that on the evening of April 26, 1947, a 1941 Ford sedan owned by one Dale Kortie was stolen from the place where it was parked on a street in the city of Eureka. Neither Kortie nor one Nelson, from whom Kortie was purchasing the car, knew defendant or had given any one, including defendant, permission to drive the same. Several days later the defendant was apprehended in the city of Salinas at which time he was driving the Kortie car. In response to questioning by Salinas police officers defendant gave various and conflicting versions concerning his ownership and possession of the automobile. He was thereafter returned to Eureka by the sheriff of Humboldt county and trial ensued, resulting in his conviction as previously mentioned. The only evidence offered by defendant related to certain immaterial facts concerning his whereabouts on the evening the car disappeared and his conduct while being returned from Salinas to Eureka. He did not testify in his own behalf.

Our examination of the entire record, and in particular the remarks of the district attorney in his argument to the jury, has disclosed no ‘flagrantly prejudiced misconduct’ as charged by defendant, or in fact any misconduct. Nor does the record disclose that it was only because of such alleged misconduct that the defendant was convicted. The uncontradicted fact of defendant's presence in Eureka at the time the car was stolen, his possession of the car when apprehended, together with the numerous conflicting and contradictory statements made by him to police officers were sufficient to support a conviction of grand theft as charged in the first count of the information. People v. Wiley, 8 Cal.App.2d 135, 46 P.2d 817. Likewise the testimony of both Kortie and Nelson that defendant was driving the car without their consent together with the subsequent acts of defendant in utilizing the car as he did were sufficient to bring the crime within section 503 of the Vehicle Code and support a conviction on the second count as charged in the information. People v. White, 71 Cal.App.2d 524, 162 P.2d 862; People v. Neal, 40 Cal.App.2d 115, 104 P.2d 555.

Defendant's next contention that a violation of section 503 of the Vehicle Code is an included offense within the charge of grand theft as set forth in Penal Code section 487, is not well taken. ‘Both in substance and in form the offenses charged are distinctly different.’ People v. Jeffries, 47 Cal.App.2d 801, 807, 119 P.2d 190, 194. Under section 503 of the Vehicle Code a person may be guilty of the crime therein denounced even though he intends only to deprive the owner of its possession either with or without intent to steal the car. However, grand theft requires the felonious taking of property of another.

The final contention made by defendant, that he was deprived of due process of law in that the district attorney chose to proceed under an information rather than by an indictment brought by the grand jury, also must be determined against him.

The identical question was presented in Hurtado v. People of the State of California, 110 U.S. 516, 4 S.Ct. 111, 122, 28 L.Ed. 232. There the court in approving the substitution of the proceeding by information for the grand jury indictment as adopted by the legislature of this state, stated that:

‘* * * as authorized by the statute of California, it carefully considers and guards the substantial interest of the prisoner. It is merely a preliminary proceeding, and can result in no final judgment, except as the consequence of a regular judicial trial, conducted precisely as in cases of indictments.’

The judgment and order appealed from are affirmed.

PEEK, Justice.

ADAMS, P. J., and THOMPSON, J., concur.

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