PEOPLE v. ON (1979)

William On appeals from a judgment of imprisonment which was rendered after a jury found him guilty of driving and taking a motor vehicle (Veh.Code, s 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. As she approached the car she saw two people sitting in it. Gleeson yelled to the intruders not to take her car, but they drove off in it.

Shortly before 1:00 a. m., police officers in a patrol car observed appellant make two illegal U-turns in Gleeson's car. 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 tried to drive off. A short chase ensued; it ended when appellant crashed the car into a utility pole. Appellant, who was injured, was taken into custody. The passenger, Lea Schrang, escaped. Appellant told the police officer who accompanied him in the ambulance to the hospital that he had just “gone around joyriding.”

Appellant testified that he had been at a pinball parlor at the time the car was stolen. This alibi was corroborated by his companion, Lea Schrang, 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 that came from the direction of a large black car. Appellant and Schrang ran into an alley where Gleeson's Mustang was seen with its headlights on and 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 a requested instruction should have been given, that Penal Code section 499b is a lesser offense included within the charged violation of Vehicle Code section 10851.

Three statutes provide punishment for the unauthorized taking and using of an automobile. The most serious offense is defined in Penal Code section 487.3 (grand theft auto) which, in combination with Penal Code section 484, prohibits a person from stealing the automobile of another. Less heavily punishable is the charged offense, Vehicle Code section 10851, which makes it a public offense to “drive or take” a vehicle not one's own, “without the consent of the owner . . . and with intent either permanently or temporarily to deprive the owner . . . of his title to or possession of the vehicle, whether with or without intent to steal the same . . . .” Finally, Penal Code section 499b, commonly referred to as the “joyriding” statute, makes it a misdemeanor to “temporarily use or operate” any automobile without the permission of the owner.

Courts have noted that the “physical conduct prohibited by the three enactments is substantially the same.” (People v. Thomas (1962) 58 Cal.2d 121, 125, 23 Cal.Rptr. 161, 162-3, 373 P.2d 97, 98-99, cert. den. 371 U.S. 231, 83 S.Ct. 327, 9 L.Ed.2d 495.) But all three enactments operate, despite contentions that they are irreconcilable. (See, e. g., People v. Thomas, supra, at p. 127, 23 Cal.Rptr. 161, 373 P.2d 97; People v. Orona (1946) 72 Cal.App.2d 478, 484, 164 P.2d 769.) The three statutes do differ in the requisite intent. (People v. Jaramillo (1976) 16 Cal.3d 752, 756, 129 Cal.Rptr. 306, 548 P.2d 706.) Penal Code section 487.3 requires a specific intent permanently to deprive the owner of his vehicle. (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 proof of intent to permanently or temporarily deprive the owner of his title to or possession of the automobile. (People v. Orona, supra, 72 Cal.App.2d at p. 484, 164 P.2d 769.) In Penal Code section 499b, no specific intent is required. (People v. Orona, supra, at p. 484, 164 P.2d 769.)

It has been suggested that the Legislature may have intended to leave the decision as to which section should be invoked in a particular case to the prosecutor because the distinction between the sections “is admittedly a subtle one” that makes it difficult for “a court (to) instruct a jury as to the distinction in a given situation.” (People v. Thomas, supra, 58 Cal.2d at p. 126, 23 Cal.Rptr. 161, 163, 373 P.2d 97, 99.)

California courts have recognized lesser included offenses in two different ways. (1) Where one offense can never be committed without committing a lesser offense, the latter offense is a necessarily included offense. (People v. St. Martin (1970) 1 Cal.3d 524, 536, 83 Cal.Rptr. 166, 463 P.2d 890.) An offender must always violate the latter statute in violating the former, if “all the legal ingredients of the corpus delicti of the lesser offense must be included in the elements of the greater offense.” (People v. Thomas, supra, 58 Cal.2d at p. 128, 23 Cal.Rptr. 161, 164, 373 P.2d 97, 100; People v. Greer (1947) 30 Cal.2d 589, 596, 184 P.2d 512; In re Stanley E. (1978) 81 Cal.App.3d 415, 420, 146 Cal.Rptr. 457.) Under this test Penal Code section 499b is not a lesser offense necessarily included in Vehicle Code section 10851. Comparing the statutory language of Vehicle Code section 10851, “drive or take,” with the language of Penal Code section 499b, “use or operate,” it “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.” (People v. Thomas, supra, 58 Cal.2d at p. 128, 23 Cal.Rptr. at p. 165, 373 P.2d at p. 101.) For example, if the offender were to tow the car away, he would be in violation of Vehicle Code section 10851 by taking the car, but not in violation of Penal Code section 499b because he had not used or operated the car. Thus, “using and operating” will not always be an ingredient of “driving or taking,” and Penal Code section 499b is not a necessarily lesser included offense of Vehicle Code section 10851 as far as their statutory definitions are concerned. (2) The specific language of the accusatory pleading (as distinguished from the statutory definition of the crime) may show that there is a lesser offense within that specifically charged. (People v. Anderson (1975) 15 Cal.3d 806, 809, 126 Cal.Rptr. 235, 543 P.2d 603; People v. Thomas, supra, 58 Cal.2d at p. 128, 23 Cal.Rptr. 161, 373 P.2d 97; In re Stanley E., supra, 81 Cal.App.3d 415, 421, 146 Cal.Rptr. 457.) Appellant asserts that the charging language of “drive and take,” as opposed to the statutory language of “drive or take,” means that the offense prohibited could not have been accomplished without necessarily violating Penal Code section 499b.

In People v. Thomas, supra, 58 Cal.2d 121, 23 Cal.Rptr. 161, 373 P.2d 97, the court held that the charge of violating Vehicle Code section 10851 did not include a violation of Penal Code section 499b. The court framed the question before it to be “whether in committing the act ‘with the intent to deprive the owner of his possession’ of the vehicle, as charged, it would necessarily and always follow that the act was ‘for the purpose of temporarily using or operating’ the vehicle.” (58 Cal.2d at p. 128, 23 Cal.Rptr. at pp. 164-165, 373 P.2d at pp. 101-102.) The court decided that “as charged it might well have been committed in a manner which did not involve a commission of the misdemeanor.” (Id. at p. 129, 23 Cal.Rptr. at p. 165, 373 P.2d at p. 101.) The Thomas court acknowledged that, in circumstances similar to the facts of that case, a charge under Vehicle Code section 10851 could be drawn in terms which would necessarily include a violation of Penal Code section 499b.

Penal Code section 499b does not require a specific intent as must be alleged to charge a violation of Vehicle Code section 10851. Thus, the question is whether the expression to “drive and take” the vehicle includes to “use and operate” the vehicle. It does not appear how one could drive and take a vehicle without using and operating it. We conclude that the present information charged a violation of Penal Code section 499b as an offense included within the specified offense of violation of Vehicle Code section 10851. There was evidence, in the testimony of appellant, Schrang, and the security guard, that the taking amounted only to the lesser offense of joyriding. However dubious that testimony may be, appellant was entitled to have the issue resolved by the jury.

As the jury might conceivably have concluded from the testimony of appellant and his associates that appellant was merely temporarily using the vehicle or “joyriding,” the failure to give the instruction on Penal Code section 499b as a lesser offense included in the offense charged was prejudicial error. (People v. Carmen (1951) 36 Cal.2d 768, 773, 228 P.2d 281.)

The judgment is reversed.

CHRISTIAN, Associate Justice.

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