People v. Marshall

• Decision Date: 19 April 1957
• Docket Number: Cr. 6002
• Citation: 48 Cal.2d 394,309 P.2d 456
• Court: California Supreme Court
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Clyde Robert MARSHALL, Defendant and Appellant.

Page 456

309 P.2d 456

48 Cal.2d 394

The PEOPLE of the State of California, Plaintiff and Respondent, v. Clyde Robert MARSHALL, Defendant and Appellant.

Cr. 6002.

Supreme Court of California, In Bank.

April 19, 1957.

Rehearing Denied May 15, 1957.

Robert W. Herrick, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., and Arthur L. Martin, Deputy Atty. Gen., for respondent.

Roy A. Gustafson, Dist. Atty., Ventura, amicus curiae on behalf of respondent.

SCHAUER, Justice.

Defendant pleaded not guilty to a charge alleged in the information in the following terms: 'Robbery, in violation of section 211, Penal Code, * * * committed as follows: That (defendant) * * * did willfully, unlawfully, feloniously and forcibly take from the person and immediate presence of Jack J. Martens * * * Seventy Dollars * * * and an automobile * * *.' Jury trial was waived. After trial, the court found defendant guilty of 'Violation of 503 Vehicle Code, a felony, a lesser but necessarily included offense,' and sentenced defendant to serve nine months in the county jail. ¹ Defendant noticed an appeal 'from the verdict and judgment of conviction.' ² Defendant contends that the offense of violation of section 503 of the Vehicle Code is not an offense necessarily included within the charge of robbery and that therefore his conviction cannot be upheld. We have concluded, for reasons hereinafter developed, that the trial court was correct in its express determination that violation of section 503 is 'a lesser offense than that (specifically) charged in the information but necessarily included therein,' and that therefore the conviction of violation of section 503 can be upheld even though violation of that statute does not come within the statutory definition of the crime of robbery.

Section 211 of the Penal Code defines robbery as 'the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.' Section 1159 of the same code provides that the defendant may be found 'guilty of any offense, the commission of which is necessarily included in that with which he is charged.' Section 503 of the Vehicle Code defines the offense of which this defendant was convicted as follows: 'Any person who drives or takes a vehicle not his own, without the consent of the owner thereof, and with intent to either permanently or temporarily deprive the owner thereof of his title to or possession of such vehicle, whether with or without intent to steal the same, * * * is guilty of a felony * * *.'

Defendant and amicus curiae urge that (quoting from People v. Kerrick (1904), 144 Cal. 46, 47, 77 P. 711 and People v. McGrath (1928), 94 Cal.App. 520, 522, 271 P. 549) 'to be 'necessarily included' in the offense charged (within the meaning of section 1159 of the Penal Code, ante), the lesser offense must not only be part of the greater in fact, but it must be embraced within the legal definition of the greater as a part thereof.' (Italics added.) The 'legal definition' of the greater offense according to defendant and amicus curiae, is the statutory definition rather than the description of the crime specifically alleged in a particular accusatory pleading. But neither the Kerrick case nor the McGrath case discusses or implicitly decides the question whether the 'legal definition' must be the statutory definition as opposed to the definition specifically selected and pleaded by the prosecutor. ³ We note also People v. Whitlow (1952), 113 Cal.App.2d 804, 806, 249 P.2d 35, and People v. Krupa (1944), 64 Cal.App.2d 592, 598, 149 P.2d 416. These last cited cases correctly hold that 'If, in the commission of acts denounced by one statute, the offender must always violate another, the one offense is necessarily included in the other'; they do not consider whether the statutory definition is the exclusive measure of included offenses.

The People argue that from analysis of such cases as In re Hess (1955), 45 Cal.2d 171, 174, 288 P.2d 5, and People v. Greer (1947), 30 Cal.2d 589, 597, 184 P.2d 512, it appears that a lesser offense is 'necessarily included' if it is within the offense specifically charged in the accusatory pleading, even though its elements are not necessarily within those of the statutory definition of the crime.

The question argued by the parties and amicus curiae in directly presented by the record in this case and the statutes applicable to such record. The offense of robbery as defined by section 211 of the Penal Code does not include all the elements of violation of section 503 of the Vehicle Code. The property taken in robbery may be any kind of personal property, whereas only the taking of 'a vehicle' is denounced by section 503 of the Vehicle Code. A person charged simply with robery 'in the words of the statute describing the offense' ⁴ would not be charged with and could not be properly convicted of the offense defined by section 503 because the accusatory pleading would not inform the defendant that he must be prepared, at the trial, to contravene evidence that he took a particular kind of personal property, a vehicle. ⁵

(See In re Hess (1955), supra, 45 Cal.2d 171, 174-175, 288 P. 5.)

Although the statutory definition of robbery does not necessarily include the offense denounced by section 503 of the Vehicle Code, the particular robbery specifically pleaded in the information here includes all the elements of a violation of section 503. It is particularly alleged that the property taken was 'an automobile.' The allegations of the information that the automobile was taken by robbery necessarily import the elements of theft, including the taking of the personal property of one other than defendant, with intent to steal (People v. Rosen (1938), 11 Cal.2d 147, 149, 78 P.2d 727, 116 A.L.R. 991; People v. Ammerman (1897), 118 Cal. 23, 25-26, 50 P. 15; People v. Sheasbey (1927), 82 Cal.App. 459, 463, 255 P. 836; see Fricke (1951), California Criminal Law, p. 238). These elements of theft include the following elements of the offense denounced by section 503 of the Vehicle Code: The property (vehicle) taken or driven must be 'not his (defendant's) own,' and it must be taken 'without the consent of the owner thereof, and with intent to either permanently or temporarily deprive the owner thereof of his title to or possession of such vehicle, whether with or without intent to steal the same.'

The cases of People v. Kehoe (1949), 33 Cal.2d 711, 713-715, 204 P.2d 321, and People v. Crawford (1953), 115 Cal.App.2d 838, 841, 252 P.2d 963, tend to support the view that the theft of an automobile (which is included in the offense of robbery by the taking of an automobile) includes the lesser offense denounced by section 503 of the Vehicle Code, although neither of those cases concerns the aspect of the problem of included offenses which is now before us. The Kehoe case disapproves the view, previously taken by some District Courts of Appeal, to the effect that violation of section 503 is entirely different from the crime of theft of an automobile. The Crawford case (at page 841 of 115 Cal.App.2d, 252 P.2d 963) says that 'The charge, being grand theft committed in the stealing of an automobile, included the offense of violation of section 503 of the Vehicle Code.' (Insofar as People v. O'Neal (1934), 2 Cal.App.2d 551, 561, 38 P.2d 430, is inconsistent with the statement last quoted from the Crawford case and with our conclusion that the intent to temporarily deprive the owner of the use of a vehicle is an element included in the intent to steal the vehicle, the O'Neal case is disapproved.

In People v. Pearson (1940), 41 Cal.App.2d 614, 618, 107 P.2d 463, it is said that 'The crime of violating section 503 of the Vehicle Code is not included in the crime of robbery * * *, the elements to be proved being different in each offense.' But this statement was made in the light of the statute as it was then worded and, of course, in respect to the problem then before the court. At that time section 503 (Stats.1939, ch. 228, p. 1481) provided that it was violated only when the vehicle was taken or driven 'in the absence of the owner.' This provision made the section necessarily incompatible with robbery in those cases where the person robbed was the owner of the property taken, for an element of robbery is that the property be taken 'from his person or immediate presence' (Pen.Code, § 211). The Pearson case is not authority for interpretation of present section 503 of the Vehicle Code. The 'absence of the owner' as an element of the offense denounced by section 503 has been delected (Stats.1947, ch. 813, p. 1926). Therefore, violation of that section is no longer incompatible with robbery.

It appears that the precise controversy here presented whether the yardstick for measuring offenses 'necessarily included' in a charge within the meaning of section 1159 of the Penal Code is the specific language of the accusatory pleading or whether such yardstick is the language of the statute defining the offense charged has not been expressly decided by an appellate court of this state. The view urged by the People, however, has been expressly or impliedly accepted by some of the reported decisions (hereinafter cited) without discussion of the possible alternative of using statutory language as the exclusive measure of included offenses.

The Hess case (1955), supra, 45 Cal.2d 171, 288 P. 5, and the Greer case (1947), supra, 30 Cal.2d 589, 184 P.2d 512, upon which the People rely, concern the question whether a charge of rape includes a charge of contributing to the delinquency of a minor (Welf. & Inst.Code, § 702). The statutory and case law concerning what crimes are 'included' in a charge of rape, as shown by the following summary, tends to support the position of the People in the present case, although such law furnishes no authority directly...