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Court of Appeal, Second District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Lamont ANDERSON, Defendant and Appellant.

Cr. 25513.

Decided: February 26, 1975

Stanley Clark, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Alan S. Meth, Jay M. Bloom, Deputy Attys. Gen., for plaintiff and respondent.

Defendant was charged with the crime of grand theft of an automobile. (Pen.Code, §§ 484, 487, subd. 3.) The information was couched in the language of the statute and contained no additional factual allegations. (Cf. People v. Marshall, 48 Cal.2d 394, 309 P.2d 456.)

A jury found defendant guilty as charged but on a motion for a new trial the trial judge, while denying the motion, purported to modify the verdict pursuant to Penal Code section 1181, subdivision 6, and entered a judgment of conviction for the offense of violating Vehicle Code section 10852 (tampering or removing parts of a vehicle) a misdemeanor. Defendant objected to the modification (compare People v. Francis, 71 Cal.2d 66, 75 Cal.Rptr. 199, 450 P.2d 591) and now appeals from the judgment.

The authority of a trial judge to modify a verdict, finding or judgment in lieu of granting a new trial is limited to reducing the degree of the crime of which defendant was convicted or to reducing the crime to one which was necessarily included in the crime of which defendant was convicted.

When the greater offense charged, whether according to the statutory elements or the specifics of the accusatory pleading, cannot be committed without engaging in conduct which is embraced by the statutory elements of another offense, the latter is a necessarily included offense. (In re Hess, 45 Cal.2d 171, 288 P.2d 5; People v. Marshall, suprai.)

Theft according to the statute (and here, as noted, the pleading was not more expansive) is committed simply by ‘Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, . . .’ (Pen.Code, § 484.)

Vehicle Code section 10852 reads: ‘No person shall either individually or in association with one or more other persons, wilfully injure or tamper with any vehicle or the contents thereof or break or remove any part of a vehicle without the consent of the owner.’

The latter section comprehends damage to an automobile or the removal of parts therefrom, neither of which is necessarily attendant to the stealing of an automobile. Since Vehicle Code section 10852 is not a necessarily included offense in the crime of grand theft of an automobile (People v. Dorsey, 25 Cal.App.3d 366, 101 Cal.Rptr. 826) and was not an included offense under the language of the information, the judgment purporting to convict defendant of that offense was in excess of the jurisdiction of the court and a nullity. (People v. Serrato, 9 Cal.3d 753, 109 Cal.Rptr. 65, 512 P.2d 289.)

‘When the trial court, ruling on a motion made under [Pen.Code, § 1181] subdivision 6, modifies the verdict to guilty of an uncharged offense, there may be an implied finding that the court has found that the evidence does not support the conviction of the offense charged. Such a finding by a court calls for an order granting a new trial, not an acquittal. The function of a trial court acting under section 1181 is in this respect distinct from the function of the trier of the facts in the main trial.’ (Emphasis added.) (People v. Serrato, supra, at p. 762, 109 Cal.Rptr. at p. 71, 512 P.2d at p. 295.)

It is this latter distinction which militates against defendant's claim that for us to return this case to the trial court for further proceedings on the charge of grand theft would constitute double jeopardy, a claim based on the notion that the purported modification of the verdict constituted an acquittal of the original charge.

The trier of fact found defendant guilty of grand theft. The subsequent ineffectual and void act of the trial judge did not work an acquittal of that charge. Penal Code section 1118.1 (judgment of acquittal) is applicable only before the case is submitted to the jury. As of now and on remand there is and will be still standing a viable verdict finding defendant guilty of grand theft. From that point the trial court should proceed to rehear the motion for a new trial within the proper confines of Penal Code section 1181. (People v. Serrato, suprai.)

Our reversal of the judgment simply restores the status quo, ante. The trial court on rehearing has three options: (1) modify the verdict to conviction for an included offense, (2) grant the motion and reset the matter for trial, or (3) deny the motion and enter judgment on the verdict.

The judgment is reversed.

COMPTON, Associate Justice.

FLEMING, Acting P. J., and BEACH, J., concur.

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Docket No: Cr. 25513.

Decided: February 26, 1975

Court: Court of Appeal, Second District, Division 2, California.

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