People v. Farina

• Decision Date: 17 September 1963
• Docket Number: Cr. 4206
• Citation: 220 Cal.App.2d 291,33 Cal.Rptr. 794
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Patrick FARINA, Defendant and Appellant.

Page 794

33 Cal.Rptr. 794

220 Cal.App.2d 291

The PEOPLE of the State of California, Plaintiff and Respondent, v. Patrick FARINA, Defendant and Appellant.

Cr. 4206.

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

Sept. 17, 1963.

Edward L. Cragen, San Francisco, for appellant.

Stanley Mosk, Atty. Gen. of the State of Cal., Albert W. Harris, Jr., Eric Collins, Deputies Atty. Gen., San Francisco, for respondent.

SALSMAN, Justice.

Patrick Farina and Albert Gloria were charged with burglary (Penal Code § 459) and conspiracy to tamper with a motor vehicle (Penal Code § 182). After trial by jury both defendants were found guilty on both counts. The appeal of defendant Gloria has been withdrawn, and only the appeal of defendant Farina is before us.

Deputies of the San Mateo County Sheriff's office had been detailed to observe the parking lot at the San Francisco International Airport. Deputy Pipkin was stationed on the second tier of the airport building and was scanning the parking lot through ten power binoculars. Deputies Richardson and Eng were in the parking lot, and in communication with Deputy Pipkin by radio. Pipkin observed the defendants in the parking lot, and saw them attempt to gain entry to a blue Ford automobile. Pipkin also saw the driver of a Mercury station wagon park and lock his car near defendants. When the driver left the Mercury station wagon, the defendants approached it and after some effort at the doors and tailgate succeeded in gaining entry through the right front door. Officer Pipkin saw the interior light of the Mercury vehicle as the door of the car was opened, and saw defendant Farina enter the car. The officers in the parking lot were alerted by radio, and also observed both Farina and Gloria in their activities, and arrested them as they left the Mercury. Defendants first claimed the Mercury belonged to a friend. Defendants were searched and each had a set of keys capable of opening the Mercury. Both defendants explained their possession of numerous car keys on the ground they were automobile wholesalers.

Appellant Farina contends that tampering with a motor vehicle in violation of Vehicle Code section 10852 cannot be the object of a conspiracy under Penal Code section 182. This contention has merit, and requires reversal of his judgment of conviction on the conspiracy charge.

Vehicle Code section 10852 provides: '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.'

In In re Williamson, 43 Cal.2d 651, 654, 276 P.2d 593, the petitioner and four others were indicted on three counts of grand theft and one count of conspiracy to commit the crime of contracting without a license in violation of section 7028 of the Business and Professions Code. Business and Professions Code section 7030 then read: 'Any person who acts in the capacity of a contractor without a license, and any person who conspires with another person to violate any of the provisions of this chapter, is guilty of a misdemeanor.' The petitioner in In re Williamson contended that he could only be punished for a misdemeanor under the provisions of Business and Professions Code section 7030 and not the felony charge of conspiracy in violation of Penal Code section 182. The Supreme Court agreed. Quoting from People v. Breyer, 139 Cal.App.2d 547, 550, 34 P.2d 1065, 1066, the court said: 'It is the general rule that where the general statute standing alone would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exception to the general statute whether it was passed before or after such general enactment.'

There can be no doubt that Vehicle Code section 10852 is a special statute within the meaning of that term as used in In re Williamson, supra. It appears in a division of the Vehicle Code entitled 'Special Antitheft Laws', and its purpose is to prohibit the conduct therein described and to punish those who violate its terms. We must give the words 'in association with' their usual, ordinary and commonly understood meaning (45 Cal.Jur.2d, Statutes, § 139; Dupuy v. McColgan, 112 Cal.App.2d 237, 246 P.2d 155). The word 'association' is generally used to indicate a group of persons who have joined together for some common purpose. Thus, in Stampolis v. Lewis, 186 Pa.Super, 285, 142 A.2d 348, 349, it was said: '* * * the word 'association' 'is used to indicate a collection of persons who have united or joined together for some special purpose or business. * * *'' An 'association' as defined by Bouvier's Law Dictionary, page 269, is 'The act of a number of persons in uniting...