PEOPLE v. ON

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Court of Appeal, First District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. William ON, Defendant and Appellant.

Cr. 18517.

Decided: September 05, 1979

Anthony T. Topolsky, San Francisco, for defendant and appellant. Attorney General of the State of California, Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci, Herbert F. Wilkinson, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

William On appeals from a judgment of imprisonment rendered after a jury found him guilty of driving and taking a motor vehicle (Veh.Code, § 10851).

On December 11, 1977, at about 11:00 p. m., Joyce Gleeson went to a parking lot at an apartment building to retrieve an item left in her car.   She saw two people sitting in her car.   Gleeson yelled to the intruders not to take the car, but they drove off in it.

Shortly before 1:00 a. m., police officers in a patrol car observed Gleeson's car make two illegal U-turns.   The officers followed the car into the parking lot of a food shop, intending to issue a citation.   When one of the police officers tapped on a window of the car to get the driver's attention, the driver, appellant, looked surprised and drove off.   A short chase ensued, which ended when appellant crashed into a utility pole.   Appellant, injured, was taken into custody.   A passenger escaped.   Appellant told the police officer who accompanied him in the ambulance to the hospital that he had just “gone around joyriding.”

Appellant presented the following theory of the facts at trial.   Appellant testified that he had been at a pinball parlor at the time the car was stolen.   This alibi was corroborated by Lea Schrang, who testified that she was appellant's companion and passenger that night, and by a security guard who had been stationed at the pinball parlor.

Appellant and Schrang testified that they left the pinball parlor at about midnight, and that the security guard gave them a ride to a take-out shop.   Appellant planned to have something to eat and then pick up his own car parked on a street nearby.   As appellant and Schrang headed for appellant's car, they heard shots coming from the direction of a large black car.   Appellant and Schrang ran into an alley where they saw Gleeson's Mustang with the headlights on and the engine running.   Appellant pushed Schrang into the passenger's side of the car, got into the driver's side himself, and sped off.

After a chase, appellant and Schrang got away from the black car and parked where the officers found them.   Appellant testified that he surmised that the car had been stolen earlier because the car had apparently been hotwired.   He had intended to get rid of the car, but panicked and tried to flee when the officer approached.

Appellant contends that the trial court erred when it refused to give a requested instruction informing the jury that Penal Code section 499b is a lesser included offense within the charged violation of Vehicle Code section 10851.

 There are three different auto taking offenses:  grand theft (auto), a felony (Pen.Code, §§ 484, 486, 487, subd. 3, 489, 490a);  driving or taking, a felony-misdemeanor (Veh.Code, § 10851 1);  and “joyriding,” a misdemeanor (Pen.Code, § 499b 2 ).  The three offenses prohibit substantially the same acts, but involve different mental elements (People v. Jaramillo (1976) 16 Cal.3d 752, 756, 129 Cal.Rptr. 306, 548 P.2d 706.)   Grand theft (auto) requires the specific intent to steal, the specific intent permanently to deprive another person of his or her automobile.  (See People v. Kehoe (1949) 33 Cal.2d 711, 714, 204 P.2d 321, cert. den. 338 U.S. 834, 70 S.Ct. 39, 94 L.Ed. 509.)  Vehicle Code section 10851 requires the specific intent either permanently or temporarily to deprive the owner of his title to or possession of the automobile, whether with or without the intent to steal.  (People v. Johnson (1961) 191 Cal.App.2d 694, 699–703, 13 Cal.Rptr. 1;  Veh.Code, § 10851.)   Joyriding requires the “purpose of temporarily using or operating” the vehicle of another.  (Pen.Code, § 499b.   See also People v. Orona (1946) 72 Cal.App.2d 478, 484, 164 P.2d 769.)   Joyriding is not a specific intent crime.  (People v. Neal (1940) 40 Cal.App.2d 115, 116–119, 104 P.2d 555.)   This means that voluntary intoxication due to ingestion of alcohol is not a defense to joyriding.  (See People v. Hood (1969) 1 Cal.3d 444, 458, 82 Cal.Rptr. 618, 462 P.2d 370.   See also People v. McDaniel (1979) 24 Cal.3d 661, 156 Cal.Rptr. 865, 597 P.2d 124.   See generally 2 Witkin, California Crimes, §§ 657–660, pp. 598–601, (1978 Supp.) pp. 584–587.)

 Where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.   In determining whether one crime is a lesser included offense of another, courts ordinarily look to the specific language of the accusatory pleading rather than to the statutory definition of the greater crime.  (People v. Anderson (1975) 15 Cal.3d 806, 809, 126 Cal.Rptr. 235, 543 P.2d 603;  Witkin, Cal.Criminal Procedure, Judgment and Attack in Trial Court, § 543, p. 554.)   In the present case, the information stated that appellant “did willfully and unlawfully drive and take a certain vehicle,  ․ ․ ․  the property of Joyce S. Gleeson, without the consent of and with intent to deprive the said owner of title to and possession of said vehicle.3  Under this language, one cannot willfully and unlawfully drive and take a vehicle of another without the consent of and with the intent to deprive the owner of title to and possession of the vehicle (Veh.Code, § 10851), without necessarily taking the vehicle without the permission of the owner for the purpose of temporarily using or operating the vehicle (Pen.Code, § 499b).   Under the language of the accusatory pleading, joyriding under Penal Code section 499b is a lesser included offense within Vehicle Code section 10851.  (Compare In re Bushman (1970) 1 Cal.3d 767, 775, 83 Cal.Rptr. 375, 463 P.2d 727, dis. on other grounds, People v. Lent (1975) 15 Cal.3d 481, 486 n. 1, 124 Cal.Rptr. 905, 541 P.2d 545, with People v. Jaramillo, supra, 16 Cal.3d 752, 759 n. 6, 129 Cal.Rptr. 306, 548 P.2d 706.)

 The second method that the courts use to determine whether one offense is a lesser included offense within another offense is to compare the statutory definitions of the two crimes.  (People v. Anderson, supra, 15 Cal.3d 806, 809–810, 126 Cal.Rptr. 235, 543 P.2d 603.)   If a person drives or takes a vehicle not his own, without the consent of the owner, and with the intent either permanently or temporarily to deprive the owner of his title to or possession of the vehicle, whether with or without the intent to steal the vehicle (Veh.Code, § 10851), then the person necessarily takes the vehicle for the purpose of using or operating the vehicle (Pen.Code § 499b).   Under the statutory definitions, joyriding under Penal Code section 499b is a lesser included offense under Vehicle Code section 10851.  (See generally Perkins, Criminal Law (2d 1969) pp. 272–273.)

 Although under the Anderson analysis joyriding appears to be a lesser included offense within the definitions of Vehicle Code section 10851 used in the charging paper in this case and in the statute, we are not free to apply this reasoning in this case.   The California Supreme Court in People v. Thomas (1962) 58 Cal.2d 121, 23 Cal.Rptr. 161, 373 P.2d 97 (app. dism. and cert. den. 371 U.S. 231, 83 S.Ct. 327, 9 L.Ed.2d 495) has held that joyriding under Penal Code section 499b was not a lesser included offense within Vehicle Code section 10851, either under the accusatory papers in that case 4 or under the statutory definition of the latter crime.   To support its decision, the Thomas court stated that “[i]t is obvious that the owner of a vehicle could be deprived of possession in many ways which would not necessarily require that the offender use or operate the vehicle.”  (58 Cal.2d at p. 128, 23 Cal.Rptr. at p. 165, 373 P.2d at p. 101.)   This very well may be.   For example, if a suspect were to tow a car away, he could deprive an owner of title or possession without using or operating the vehicle.   But the Thomas opinion appears to have misinterpreted Penal Code section 499b and misstated the issue.   Under section 499b, the issue is not whether the offender used or operated the vehicle, but whether the offender took the vehicle for the purpose of using or operating the vehicle.   In Thomas, the mens rea of the 499b offense was mistaken for the actus reus.   We recognize, however, that the decision of the California Supreme Court in Thomas is binding upon all the courts of this state.  (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)

But for the decision in Thomas, we would conclude that joyriding under Penal Code section 499b is a lesser included offense within the definitions of Vehicle Code section 10851 used in the charging paper in this case and in the statute and that the trial court erred when it did not instruct the jury on the lesser included joyriding offense.   There was evidence, in the testimony of appellant, Schrang, and the security guard, that appellant took the car without permission of the owner for the purpose of temporarily using or operating the vehicle, in violation of Penal Code section 499b.   However dubious that testimony might have been, appellant was entitled to have the issue resolved by the jury.  (People v. Carmen (1951) 36 Cal.2d 768, 773, 228 P.2d 281.)   The court's instructions forced the jury to choose between finding appellant guilty of violating Vehicle Code section 10851, or not guilty of any auto taking offense.   The jury here could have entertained a reasonable doubt as to the charged violation of Vehicle Code section 10851.   The jury nonetheless could have been unwilling to acquit, and could have returned a verdict of guilty of that offense, because the jury was satisfied that appellant was guilty of wrongful conduct constituting the lesser included joyriding offense.  (See People v. St. Martin (1970) 1 Cal.3d 524, 533, 83 Cal.Rptr. 166, 463 P.2d 390.)   Under these circumstances, there is a reasonable possibility that the failure to instruct on the lesser included offense might have contributed to the conviction.   But for the Thomas decision we would hold that there was error and that the error was not harmless beyond a reasonable doubt.  (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705;  Fahy v. Connecticut (1963) 375 U.S. 85, 86–87, 84 S.Ct. 229, 11 L.Ed.2d 171;  People v. Bolton (1979) 23 Cal.3d 208, 214, 152 Cal.Rptr. 141, 589 P.2d 396;  People v. Sedeno (1974) 10 Cal.3d 703, 720–721, 112 Cal.Rptr. 1, 518 P.2d 913.)

Under compulsion of the Thomas decision, the judgment is affirmed.

FOOTNOTES

FN1. Vehicle Code section 10851 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, or any person who is a party or accessory to or an accomplice in the driving or unauthorized taking or stealing is guilty of a public offense, and upon conviction thereof shall be punished by imprisonment in the state prison  * * *, or in the county jail for not more than one year or by a fine of not more than five thousand dollars ($5,000) or by both such fine and imprisonment.   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.”.  FN1. Vehicle Code section 10851 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, or any person who is a party or accessory to or an accomplice in the driving or unauthorized taking or stealing is guilty of a public offense, and upon conviction thereof shall be punished by imprisonment in the state prison  * * *, or in the county jail for not more than one year or by a fine of not more than five thousand dollars ($5,000) or by both such fine and imprisonment.   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.”

FN2. Penal Code section 499b provides:“Any person who shall, without the permission of the owner thereof, take any automobile, bicycle, motorcycle, or other vehicle or motorboat or vessel, for the purpose of temporarily using or operating the same, shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine not exceeding two hundred dollars ($200), or by imprisonment not exceeding three months, or by both such fine and imprisonment.”.  FN2. Penal Code section 499b provides:“Any person who shall, without the permission of the owner thereof, take any automobile, bicycle, motorcycle, or other vehicle or motorboat or vessel, for the purpose of temporarily using or operating the same, shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine not exceeding two hundred dollars ($200), or by imprisonment not exceeding three months, or by both such fine and imprisonment.”

3.   The information states:  “COUNT I:  WILLIAM ON is accused by the District Attorney of the City and County of San Francisco, State of California by this information, of the crime of felony, to wit:  VIOLATION OF SECTION 10851 OF THE CALIFORNIA VEHICLE CODE, committed as follows:  The said defendant, on or about the 12th day of December, 1977, at the City and County of San Francisco, State of California, did willfully and unlawfully drive and take a certain vehicle, to wit:  A 1968 FORD MUSTANG AUTOMOBILE, California License WCZ 436, then and there the property of JOYCE S. GLEESON, without the consent of and with intent to deprive the said owner of title to and possession of said vehicle.”

4.   The information in the Thomas case charged the defendant in the following language:  “ ‘violation of Section 10851 of the Vehicle Code, in that on or about November 18, 1960, in the County of Riverside, State of California, he did wilfully and unlawfully drive and take a vehicle, to wit:  a 1960 Chevrolet Station Wagon, California License No. TKA957, belonging to Ben Younglove, without the consent of the owner and with the intent to deprive the owner of his possession of said vehicle.’ ”  (58 Cal.2d 121, 124–125, 23 Cal.Rptr. 161, 162, 373 P.2d 97, 98.)   For purposes of this appeal, there are no significant differences between the language of the Thomas information and the language of the present information (quoted supra at note 3).

CHRISTIAN, Associate Justice.

CALDECOTT, P. J., and POCHE, J., concur.

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