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DE MOND v. People of the State of California, Real Party in Interest.*

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

William DE MOND, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF LOS ANGELES, Respondent. People of the State of California, Real Party in Interest.*

Civ. 25724.

Decided: September 28, 1961

Lewis Graham, Los Angeles, for petitioner. William B. McKesson, Dist. Atty., Harry Wood, Robert J. Lord, Los Angeles, and Harry B. Sondheim, Pacific Palisades, Deputies Dist. Atty., for real party in interest.

Petitioner was charged with grand theft and violation of section 10851 of the Vehicle Code (taking and driving a motor vehicle without the consent of the owner with intent to deprive him of title to and possession of said vehicle). A preliminary examination was held and petitioner was bound over to the Superior Court on the latter charge. He thereupon moved to set aside the information on the ground that he had been committed without reasonable or probable cause. (Pen.Code, § 995.) His motion was granted as to the grand theft count but denied as to count II, the violation of said section 10851. Petition is now made for a writ of prohibition to prevent further proceedings against him.

The evidence as produced at the preliminary examination showed that on February 20, 1961, petitioner rented a 1953 Pontiac automobile from Hav-A-Kar Economy Car Rental, Inc. (hereinafter referred to as ‘Hav-A-Kar’), while his Cadillac was being repaired. A printed form of agreement was signed wherein the rental period was specified from ‘2–20–1961 * * * to 2–24–1961 * * *’ and the rental at $4 per day and four cents per mile. Said agreement provided further in part: ‘In consideration of payment of the rental and performance by lessee of the provisions hereof, lessor leases to lessee and lessee hires and accepts from lessor the automobile above described, upon the following terms and conditions: Lessee Covenants and agrees: * * * 5. to return auto to lessor within the rental period at its place of business in as good condition as received, reasonable wear and use excepted; that failure to do so without written permission of lessor shall constitute unlawful possession of the auto and shall constitute probable cause to subject lessee to prosecution, lessor being released of and from all liability or damage sustained by lessee by reason thereof. Lessee agrees to pay Lessor all costs of recovering said auto and returning same to Lessor's place of business. It is understood that no insurance coverage is afforded lessee to cover such costs and expenses and that no insurance endorsement upon this contract, even as to so-called full insurance coverage, shall provide such insurance.

‘5A. Whenever any person who has leased or rented a vehicle wilfully and intentionally fails to return the vehicle to its owner within five days after the lease or rental agreement has expired, that person shall be presumed to have embezzled said vehicle; * * *

‘18. to pay to lessor its reasonable attorney's fees and court costs should lessor employ the services of an attorney to enforce force any of lessor's rights hereunder;

‘19. that lessor may terminate and cancel this agreement at any time should lessee violate or fail to perform any provision hereof, and may retake possession of said automobile without notice. Whenever, under the terms of this agreement, or for any cause, Lessor shall be entitled to re-take possession of the automobile, or whenever Lessor shall otherwise legally be entitled to possession of said automobile, Lessor is hereby authorized and empowered to enter upon the premises where the said automobile may be and take possession thereof, with or without process of law, and in so doing shall not be deemed guilty of trespass; * * *’

Bert Baer, manager of Hav-A-Kar, testified that petitioner had called on the phone, the exact date unknown, but around the first of March, and stated that the work on the Cadillac had not yet been finished so that he would need the Pontiac for another two or three days. The manager said: ‘All right, you bring it back in two or three days.’ The manager further testified that he did not see or talk with petitioner between March 1st and May 7th and that petitioner did not contact him in any way; that he tried to contact petitioner by telephone and was informed that the telephone had been disconnected; that he went to the business address given by petitioner and found that no one was there and was informed that petitioner had moved a long time ago; that he went to petitioner's residence and petitioner was not there; that he (the manager) did not know whether the petitioner lived at that address or not; that he had not given permission to keep the car beyond the two or three days after March 1st and that he had never received any payment for the use of the car. Sergeant Ellson of the Los Angeles Police Department testified that he went to 2509 Chislehurst Place (petitioner's residence) and found the Pontiac automobile there; that he notified David Shane, the owner of the Hav-A-Kar company, and Mr. Shane came with a driver and left with the Pontiac.

Petitioner took the stand and testified that he had lived in Los Angeles since 1930; that his residence address had been 2509 Chislehurst Place for the last 11 years; that he owned his own home and had owned an electronic flocking company and Hollicraft Hosiery Mills, operated under the name of Willie's of Hollywood; that his business address was 1016 North Highland Avenue for some three years; that on March 3, 1961, he had moved his business address to 3707 West Third Street and that his telephone number had never been disconnected; that the home address of 2509 Chislehurst Place and telephone number had been given to Hav-A-Kar. He testified further that the transmission of his Cadillac had gone out several times and that he had been trying to get an adjustment from the Cadillac people and for this reason had delayed the return of the rental car; that he had called the owner of Hav-A-Kar, one Shane, and informed him of the cause of the delay, and that Shane had never requested him to bring back the car; that he had called Shane some four or five times at intervals of 12 or 15 days and that when he called that they had said ‘keep it.’ He testified that Shane had told him to continue to drive the car—‘to just keep it until you are through with it’; that about a week before the car had been repossessed, he found David Shane's card in his mail box with a notation on the back as follows: ‘Our car will be reported embezzled if not returned in next 24 hours. Your contract has expired and car will be reported to police as being stolen, resulting in your arrest if not returned’; that this card had been left in his mail box the day after someone, presumably the representative of Hav-A-Kar, disconnected the ignition coil on the Pontiac so that it could not be driven; that he then called David Shane and told him that as long as they took out the ignition coil to come up and get the car, that the car is in my garage; that no one came until 10 days later.

It is incumbent upon the prosecution at a preliminary examination to show both that a public offense has been committed and that there is sufficient cause to believe the defendant guilty thereof. (Pen.Code, §§ 871, 872.) The term ‘sufficient cause’ has been held synonymous with the words ‘reasonable and probable cause’ as used in section 995 of the Penal Code. People v. Nagle, 25 Cal.2d 216, 153 P.2d 344. Responable and probable cause has been defined many times as such a state of facts as would lead a man of ordinary caution and prudence to believe and conscientiously entertain a strong suspicion that the person accused is guilty. Ex parte Vice, 5 Cal.App. 153, 89 P. 983; Lorenson v. Superior Court, 35 Cal.2d 49, 216 P.2d 859; Bompensiero v. Superior Court, 44 Cal.2d 178, 281 P.2d 250; In re McCarty, 140 Cal.App. 473, 35 P.2d 568; People v. Nagle, supra; People v. Thomas, 90 Cal.App.2d 491, 203 P.2d 567; Malleck v. Superior Court, 142 Cal.App.2d 396, 298 P.2d 115. Implicit in the definition is the requirement that the commission of the crime charged, i. e., ‘the corpus delicti’ be proved by sufficient evidence. People v. Watters, 202 Cal. 154, 259 P. 442, 443; People v. Simonsen, 107 Cal. 345, 40 P. 440; People v. Mehaffey, 32 Cal.2d 535, 197 P.2d 12; People v. Cullen, 37 Cal.2d 614, 234 P.2d 1; People v. Amaya, 40 Cal.2d 70, 251 P.2d 324; People v. Cobb, 45 Cal.2d 158, 287 P.2d 752. We therefore hold that the ‘strong suspicion’ element of the definition of reasonable and probable cause, applies only to the identity and guilt of the person accused and not to the commission of the crime itself, the corpus delicti. Prima facie proof of the corpus delicti must cover all the essential elements of the crime charged sufficiently to support a reasonable belief that the offense had been committed. Rogers v. Superior Court, 46 Cal.2d 3, 291 P.2d 929; Murphy v. Superior Court, 188 Cal.App.2d 185, 10 Cal.Rptr. 176; In re Flodstrom, 134 Cal.App.2d 871, 277 P.2d 101.

Section 10851 of the Vehicle Code of this state provides: ‘Any person who drives or takes a vehicle not his own, without the consent of the owner thereof, and with 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 felony, * * * The consent of the owner of a vehicle to its taking or driving shall not in any case be presumed or implied because of such owner's consent on a previous occasion to the taking or driving of the vehicle by the same or a different person.’ The gist of the offense then is the taking or driving of the vehicle without the owner's consent and with the specific intent permanently or temporarily to deprive the owner of title to or possession of the vehicle. People v. Mullinax, 165 Cal.App.2d 449, 331 P.2d 1010; People v. Gibson, 63 Cal.App.2d 632, 146 P.2d 971. The specific intent is an essential element of the crime (People v. Warren, 175 Cal.App.2d 233, 346 P.2d 64; People v. Sanchez, 35 Cal.2d 522, 219 P.2d 9), and it must be proven as a fact. People v. Zervas, 61 Cal.App.2d 381, 142 P.2d 946; People v. Neal, 40 Cal.App.2d 115, 104 P.2d 555.

In Neal, supra, the court stated in reference to section 503 of the Vehicle Code (antecedent number to section 10851) at pages 117–118 of 40 Cal.App.2d, at page 557 of 104 P.2d: ‘The proof of intent as a fact was incumbent upon the prosecution and the taking and abandoning of the car by appellant did not necessarily furnish sufficient evidence from which the presence of a specific intent may have been inferred by the jury.’ Quoting from People v. Gibson, supra, 63 Cal.App.2d 632, at page 635, 146 P.2d 971, at page 973: ‘We are of the opinion the evidence in this case does not affirmatively show that the defendant intended to deprive the owners of possession of their automobile. * * * Under section 503 of the Vehicle Code it is essential for the prosecution to prove as a necessary element of the offense charged that the defendant intended to deprive the owner of the possession of the machine. People v. Zervas, 61 Cal.App.2d 381, 142 P.2d 946; People v. Neal, 40 Cal.App.2d 115, 104 P.2d 555. While it is true that the intent may be inferred from the facts and circumstances of a particular case, there must be substantial evidence from which the intent may reasonably be determined. People v. Zervas, supra. In the present case the evidence is undisputed that the defendant took the car with the express consent of the owners.’ (Emphasis added.) We also quote from page 637 of 63 Cal.App.2d, page 974 of 146 P.2d: ‘Section 503 of the Vehicle Code does not make it an offense to retain a machine specifically entrusted to one by the consent of the owner beyond the time reasonably required to perform a designated mission.’

In the instant case, petitioner had acquired possession of the Pontiac legally by a written agreement of lease. It is acknowledged he kept the automobile beyond the 4-day rental period with the express consent of the manager of the company. The inference that he thereafter secreted the car from the owner was not substantiated by the evidence which disclosed that he had resided continuously for 11 years at the same address, 2509 Chislehurst Place, which was the address he had given to Hav-A-Kar, and the place where the car was when repossessed. It is true that on a motion to set aside the information under section 995 of the Penal Code, the trial court has no power to pass on conflicts in the evidence. People v. Soto, 144 Cal.App.2d 294, 301 P.2d 45; Badillo v. Superior Court, 46 Cal.2d 269, 294 P.2d 23. However, in the record before us, there are facts pertinent to petitioner's intent which stand uncontroverted. For example, there was no refutation of his testimony that he had called David Shane, the owner of Hav-A-Kar, at intervals of 12 to 15 days, and had been instructed by Shane to keep the rented vehicle until he was through with it. Nor was there any denial of his testimony that the first demand made to him for the return of the Pontiac was the deposit of Shane's card in petitioner's mail box which was received by petitioner on the day following the removal of the ignition coil; nor that petitioner had then called and told Shane to come get the car.

We reach the conclusion that the evidence at the preliminary examination was insufficient to show either the commission of the offense charged or probable cause of petitioner's guilt, unless provisions of the written contract be held to supply deficiencies in the proof. We are of the opinion that they cannot. A crime or public offense is one defined by law, not by private agreement. It is an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed upon conviction, a punishment. (Pen.Code, § 15.) The prerogative of defining what acts shall be criminal and subject to prosecution in the name of the People is exclusively that of the political entity acting by and through its duly constituted and authorized legislative body. Pen.Code, § 6; In re Harder, 9 Cal.App.2d 153, 49 P.2d 304; 14 Cal.Jur.2d, Crim.Law, § 13, p. 192. It would be against public policy to permit individuals to agree among themselves and to determine by contract in advance, that certain behavior would be criminal and cause for public prosecution. It appears even more cogent that there are certain fundamental rights which no person should be permitted to barter away, such as the right to life and personal freedom. Pope Mfg. Co. v. Gormully, 144 U.S. 224, 234, 12 S.Ct. 632, 36 L.Ed. 414, 418. The provisions of the rental agreement that failure to return the automobile within the rental period ‘shall constitute probable cause to subject lessee to prosecution’ and the further provision concerning ‘presumptions of embezzlement,’ could not absolve the prosecution from the necessary elements of proof at the preliminary examination. The only presumptions cognizable in a court of law as evidence are those defined by statute. (See Code Civ.Proc. § 1959.)

Furthermore, the existence of the specific intent to deprive the owner of his title to or possession of the vehicle cannot be presumed but must be proven as a fact. People v. Flores, 86 Cal.App. 235, 260 P. 822; People v. Henry, 23 Cal.App.2d 155, 72 P.2d 915; People v. Brown, 27 Cal.App.2d 612, 81 P.2d 463; People v. Snyder, 15 Cal.2d 706, 104 P.2d 639.

The evidence introduced at the preliminary examination was insufficient to hold petitioner to answer on the charge of violation of said section 10851 of the Vehicle Code. It is therefore ordered that a peremptory writ of prohibition issue restraining respondent court from taking any further proceedings, other than dismissal, in the said case against petitioner.

SPARKS, Justice pro tem.

SHINN, P. J., and FORD, J., concur.

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