People v. Green

• Decision Date: 21 April 1995
• Docket Number: No. B076825,B076825
• Citation: 40 Cal.Rptr.2d 239,34 Cal.App.4th 165
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Warren Lemar GREEN, Defendant and Appellant.

Page 239

40 Cal.Rptr.2d 239

34 Cal.App.4th 165

The PEOPLE, Plaintiff and Respondent, v. Warren Lemar GREEN, Defendant and Appellant.

No. B076825.

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

April 21, 1995.

[34 Cal.App.4th 170] Jennifer Mack, under appointment by the Court of Appeal, Los Angeles, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Sr. Asst. Atty. Gen., William T. Harter, Supervising Deputy Atty. Gen., and Paul M. Roadarmel, Jr., Deputy Atty. Gen., for plaintiff and respondent.

HASTINGS, Associate Justice.

Warren Lemar Green II also known as Warren Lee Green, appeals from a judgment entered following a jury trial in which he was convicted of unlawful driving of a vehicle (Veh.Code, § 1085 1, subd. (a), hereafter section 10851(a)) and a court trial in which it was found that he had suffered six prior felony convictions for which he served separate prison terms. He was found not guilty of receiving stolen property, the vehicle. He was sentenced to prison for a total term of nine years, comprised of the three-year upper term on his conviction, plus six consecutive one-year terms for his prior prison term enhancements. He was also ordered to pay a $200 restitution fine. We conclude that appellant's conviction for violation of section 10851(a) must be set aside and the matter remanded to the trial court for a new trial.

ISSUES PRESENTED

This case presents us with a renewed opportunity to address the confusion that exists in distinguishing the crimes of unlawful driving of a vehicle (section 10851(a)) and joyriding (Penal Code section 499b, hereafter section 499b). The potential for confusion was noted in People v. Barrick (1982) 33 Cal.3d 115, 134, 187 Cal.Rptr. 716, 654 P.2d 1243: "The Legislature has enacted three statutes dealing with the taking of an automobile without the owner's consent: 'grand theft auto' (Pen.Code, § 487, subd. 3); ¹ 'driving or taking a vehicle' (Veh.Code, § 10851); and 'joyriding' (Pen.Code § 499b). As we have observed in People v. Thomas [1962] 58 Cal.2d 121, 125-126 [23 Cal.Rptr. 161, 373 P.2d 97]: 'the physical conduct prohibited by the three enactments is substantially the same, but ... there purports to be a distinction as to the intent with which the act is done in each instance. It may be presumed that the Legislature intended by these sections to deal with problems which are properly distinguishable.... The distinction ... is admittedly a subtle one, and would present a rather difficult problem if it were required that a court instruct a jury as to the distinction in a given situation.' " (Italics added.)

The recent case of People v. Frye (1994) 28 Cal.App.4th 1080, 34 Cal.Rptr.2d 180 also discusses the potential confusion between these two statutes and questions the analysis of this issue set forth in People v. Thomas, supra, 58 Cal.2d 121, 23 Cal.Rptr. 161, 373 P.2d 97, and People v. Barrick, supra, 33 Cal.3d 115, 187 Cal.Rptr. 716, 654 P.2d 1243. (28 Cal.App.4th at pp. 1086-1090, 34 Cal.Rptr.2d 180.) However, we are bound to follow the precedents of the California Supreme Court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937).

Appellant urges error in the failure of the trial court to instruct sua sponte on the lesser offense of joyriding. He also contends that there is insufficient evidence to support his conviction of violation of section 10851(a); that the trial court abused its discretion in allowing evidence of his prior convictions for auto theft; and, lastly, that the $200 restitution fine is invalid because the trial court made no finding on his ability to pay. We hold that the jury was inadequately instructed on the issues essential to an understanding of the case and find that appellant did suffer prejudice. We therefore reverse and remand the case to the trial court for further proceedings. ²

FACTUAL AND PROCEDURAL STATEMENT

Viewed in accordance with the usual rules on appeal, ³ the evidence established that Esteban Olalde owned a white 1977 Chevrolet Caprice. On the night of August 2, 1992, Olalde was in the car waiting for a friend when two Spanish-speaking males approached, entered the vehicle, and ordered Olalde to drive. After driving a few blocks, they ordered Olalde out of the vehicle and drove away. Olalde reported his vehicle stolen.

On August 6, 1992, around 4:15 a.m., Los Angeles Police Officers Michael Flynn and Mike Richardson observed a Chevrolet Caprice exit Tam's Burgers at the corner of 51st Street and Central Avenue. The car attracted Flynn's attention because it had a cracked front windshield, a Vehicle Code violation. Richardson ran a computer check on the license and learned that the vehicle had been taken in a robbery a few days before and that the occupants should be considered armed and dangerous.

The officers followed the car as it turned northbound onto Central Avenue and proceeded half a block before turning into the parking lot of the East West Motel, immediately adjacent to the Tam's Burgers parking lot. The officers detained appellant, the only occupant of the car. When Flynn looked inside, he noted the car, which was still running, had a cracked steering column, and there was no key in the ignition. The officers found no car keys in appellant's possession or in the car. A Stanley eight-inch flat-nose screwdriver lay on the front seat. Officer Flynn testified at trial that a common method of starting a car when stealing it is to crack the housing on the steering column and push the ignition lever with the screwdriver, bypassing the ignition.

At trial, Olalde testified appellant was not one of the men who had taken the car from him. He had not seen appellant before trial and had not given him permission to drive his car. Olalde testified the ignition switch had not been broken at the time his car was taken from him.

Appellant, in propria persona, presented a defense based on his claim that he had "hot-wired" and driven the car at the behest of a person named Michael Johnson who, appellant believed, owned the car. He testified that on August 5, 1992, he paid Johnson to drive him to pick up his general relief check, and at that time Johnson had keys to the car. He had also seen Johnson driving the car two or three days before August 5. On the way to pick up the check, Johnson gave appellant's friend, Eric Pullins, a ride home from the liquor store.

With regard to the incident when he was stopped by police, appellant testified that around 3 a.m. on August 6, 1992, he saw Johnson at Tam's Burgers. Johnson told him he had mislaid his car keys and paid appellant $3 to open the car. After appellant opened the car, Johnson could not find the keys inside; he then paid appellant $6 to "hot-wire" the car. Johnson left Tam's Burgers to walk to his room at the East West Motel, telling appellant to drive the car there once he got it running. After starting the car, appellant drove across the parking lot to an exit. As he made a left turn, he pulled in front of an approaching black and white police car. He then drove the car into the parking lot of the motel. Johnson was standing on the second-floor balcony. When he was detained, appellant tried to point out Johnson to the police, but they ignored him. Appellant admitted to the officers that he had previously served time for driving a stolen car, but told the officers he had no idea the car Johnson had been driving was stolen.

Appellant was impeached with evidence of six prior convictions, four of them for the unlawful driving or taking of a vehicle.

Pullins also testified he had seen Johnson driving the car in the neighborhood for a couple days and, confirmed that on August 5, 1992, he was given a ride and saw Johnson with the car keys. He believed Johnson owned the car. Deaino Waller and Carrie White each testified they had seen Johnson driving a white car on August 4 or August 5, back and forth to the Tam's Burgers parking lot.

Officer Richardson was recalled to the stand on rebuttal to testify to the statement given to him by appellant just after appellant's arrest. He testified that appellant told him appellant had been driving around in the car all day with a Black male whose name he did not know. The Black male had been buying him "dope" and liquor all day and at some point in time during the day the Black male left the keys in the car after locking it. Appellant indicated that he pried open the door to the car with a coat hanger, cracked open the steering column and started the car with a screwdriver. He drove the car over to 50th and Central because the Black male had asked him to buy him $10 worth of cocaine.

Additional facts are included in the discussion.

DISCUSSION

1. The instructions given and the court's sua sponte duty

A. Sections 10851(a) and 499b

Section 10851(a) provides: "(a) Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense...." (Italics added.) Violation of this section is a felony offense.

Section 499b provides: "Any person who shall, without the permission of the owner thereof, take any automobile, ... for the purpose of temporarily using or operating the same, shall be deemed guilty of a misdemeanor...." (Italics added.) ⁴

As a general rule, joyriding (section 499b) is not a necessarily included lesser offense of unlawful taking or driving a vehicle (section 10851(a)) for the reason that the latter offense can be committed without satisfying the elements of the former offense. (People v. Thomas, supra, 58 Cal.2d...