People v. Pater

Citation267 Cal.App.2d 921,73 Cal.Rptr. 823
Decision Date06 December 1968
Docket NumberCr. 4712
CourtCalifornia Court of Appeals
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. Louis Burns PATER, Defendant and Appellant.

Ralph D. Drayton, Court-Appointed counsel, Sacramento, for appellant.

Thomas C. Lynch, Atty. Gen., by Nelson P. Kempsky and Michael H. Fabian, Deputy Attys. Gen., Sacramento, for respondent.

PIERCE, Presiding Justice.

Defendant was convicted by a jury of (1) grand theft--auto (Pen.Code, § 487, subd. 3), and on a separate count of (2) taking or driving a vehicle without the owner's consent (Veh.Code, § 10851). He was sentenced on both counts.

On June 12, 1967, defendant, an unemployed parolee, was arrested while driving a 1967 Ford Mustang, which had been stolen from the lot of a Sacramento Ford dealer sometime during the night of June 7--8. That automobile, when defendant was arrested, carried license plates and a registration certificate which had been removed and stolen several days earlier from another 1967 Ford Mustang. Substantial circumstantial evidence was adequate to prove that the theft of the license plates and subsequent theft of the automobile had been perpetrated by defendant: Defendant's arrest on June 12 was accomplished only after a chase. The chase had commenced when officers in a patrol car had approached the stolen car being operated by defendant and had signaled for him to stop. Defendant did not stop. Instead he sped away. When defendant was apprehended a screw-driver suitable for removing and installing license plates was found in the pocket of defendant's jacket.

A Miss Widby was a prosecution witness. She was an acquaintance of defendant. She had seen him driving the stolen Mustang in Sacramento June 11, 1967, and had conversed with him at the time. Earlier she had seen him driving a Chevrolet. When Miss Widby questioned defendant about the change of automobiles he said he had 'traded his Impala in on this car * * *.' Defendant's presence in Sacramento at the time of his arrest was in violation of a condition of his parole.

Defendant's contention of insufficient evidence to support the verdict and judgment of theft of the automobile is without merit. Possession of recently stolen property is so incriminating that to warrant a conviction of theft there need only be, in addition to possession, slight corroboration in the form of statements or conduct of the defendant tending to show guilt. (People v. McFarland (1962) 58 Cal.2d 748, 754, 26 Cal.Rptr. 473, 376 P.2d 449; People v. Gills (1966) 241 Cal.App.2d 711, 715--716, 50 Cal.Rptr. 872; People v. Hopkins (1963) 214 Cal.App.2d 487, 491--492, 29 Cal.Rptr. 636.) Flight, in addition to other corroborating evidence, is significant. (People v. Wells (1960) 187 Cal.App.2d 324, 329, 9 Cal.Rptr. 384.)

The contention that it was error to enter judgment for Both the offense of grand theft and the offense of violation of Vehicle Code section 10851 cannot be as readily answered. The offense of violation of Penal Code section 487, subdivision 3, is defined:

'Grand theft is theft committed * * *:

'* * *

'3. When the property taken is an automobile * * *.'

In California catch-all section (Pen.Code sec. 490a) has combined several crimes--larceny, embezzlement, stealing--under one name, 'theft.' Theft is defined in Penal Code section 484. The definition includes the taking or driving away of the personal property of another. When that personal property is an automobile the offense falls within the offense 'grand theft--auto' as stated in Penal Code section 487, subdivision 3. Conviction of that offense requires proof of a specific intent by the accused to deprive the owner of the automobile permanently. (People v. Renteria (1943) 60 Cal.App.2d 463, 472--473, 141 P.2d 37.) Vehicle Code section 10851 proscribes the driving or taking by a defendant of a vehicle 'not his own, without the consent of the owner thereof, and with intent either Permanently or temporarily to deprive the owner thereof of his title to or possession of the vehicle * * *.' (De Mond v. Superior Court (1962) 57 Cal.2d 340, 344, 19 Cal.Rptr. 313, 368 P.2d 865.) (Italics ours.)

The two counts of the information charging defendant did not purport to cover the same offense. The Theft (under Pen.Code sec. 487, subd. 3) was stated in the information in Count 1 to have been committed on June 8th when the Mustang was taken from the dealer's car lot. The driving 'and' taking under Count 2 in violation of Vehicle Code section 10851 was allegedly the act of defendant in driving the stolen vehicle on the day he was arrested, June 12.

The question is whether, under the circumstances of this case, the prosecution could or did actually prove two separate crimes. The problem may be stated with greater particularity: When the prosecution relies on the same evidence--no more, no less--to prove the original theft as is used to prove the Vehicle Code section 10851 violation, may the defendant be convicted of both offenses? We hold that he may not.


The term 'necessarily included' offense derives from Penal Code section 1159. It provides that the trier of fact may find the defendant guilty of any offense 'the commission of which is necessarily included in that with which he is charged * * *.' There is no statutory definition of what a 'necessarily included offense' is. (Witkin, Cal.Criminal Procedure, sec. 541, p. 552.) The traditional case law test is: 'Where the offense charged cannot be accomplished without in the process committing the lesser offense, that lesser offense is a necessarily included offense.' (Witkin, id., p. 553; In re Hess (1955) 45 Cal.2d 171, 174, 288 P.2d 5.) The existence of a necessarily included offense implies the perpetration of one act or omission--as one act or omission has been construed by our Supreme Court. (People v. Greer (1947) 30 Cal.2d 589, 600, 184 P.2d 512.) Where a defendant has been convicted of the greater offense he cannot thereafter be convicted for the necessarily included offense by a second prosecution (Pen.Code sec. 1023; People v. Greer, supra.) Also he cannot be punished Or convicted for both the greater and lesser included offenses in a single prosecution. (Pen.Code sec. 654; People v. Tideman (1962) 57 Cal.2d 574, 582, 21 Cal.Rptr. 207, 370 P.2d 1007.) Prior to People v. Marshall (1957) 48 Cal.2d 394, 309 P.2d 456, the traditional test based upon the elements of the crimes involved was the sole test to determine whether an offense was 'necessarily included.' (Witkin, id., p. 553.) People v. Marshall, incidentally, involved the status of a violation of Vehicle Code section 503 (now sec. 10851), as a lesser included offense within robbery (Pen.Code sec. 211). Because robbery need not be of an automobile, violation of Vehicle Code section 10851 is not necessarily included under the 'statutory elements of crime' test. There the accusatory pleading, however, was not in the statutory language. An automobile was alleged to have been one of the items stolen. Marshall affirmed a conviction of the lesser offense (Veh.Code sec. 10851) under the 'necessarily included offense' doctrine. Since Marshall, 'necessarily included' offenses have been tested by comparing the two charges as specified in the accusatory pleadings. We apply these rules to the facts of the case before us.

By definition--even under the earlier test--all of the elements of Vehicle Code section 10851, as now framed, are necessarily included within grand theft--auto (Pen.Code sec. 487). (People v. Marshall, supra, 48 Cal.2d 394, 400, 309 P.2d 456; People v. Crawford (1953) 115 Cal.App.2d 838, 840, 252 P.2d 963.) Under the Marshall test it is also correct to say that the two counts in the accusatory pleading relate To the same act.

Our California Supreme Court, commencing with Neal v. State of California (1960) 55 Cal.2d 11, 9 Cal.Rptr. 607, 337 P.2d 839, has by a series of opinions defined and construed 'act or omission' as applied to California's 'multiple punishment' statute. (Pen.Code sec. 654). That section provides that an 'act or omission which is made punishable in different ways by different provisions of this Code 1 may be punished under either of such provisions, but in no case can it be punished under more than one; and acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.' People v. Quinn (1964) 61 Cal.2d 551, holds at pages 555--556, 39 Cal.Rptr. 393, at page 396, 393 P.2d 705, at page 708: 'The section applies not only where there is one act in the ordinary sense, but when there is a course of conduct that constitutes an indivisible transaction punishable under more than one statute. (Citations.)' Neal v. State of California, supra, 55 Cal.2d at page 18, 9 Cal.Rptr. at page 611, 357 P.2d at page 843, pointed out that '(t)he proscription of section 654 against multiple punishment of a single act * * * is not limited to necessarily included offenses.'

We explain why we commenced this dissertation with the principles involved in necessarily included offenses rather than with the 'multiple punishment' rules. When a multiple punishment is involved under facts which Do not encompass necessarily included offenses a Conviction may stand although the Punishment must be expunged. (People v. Smith (1950) 36 Cal.2d 444, 448, 224 P.2d 719.) But, as we have shown, when a necessarily included offense is involved, The conviction also must be reversed.

The Attorney General points to the fact that in the accusatory pleading the grand theft--auto charge (count 1) is alleged to have occurred on June 8, 1967, while the violation of Vehicle Code section 10851 (count 2) is alleged to have occurred on June 12, 1967, when defendant was apprehended. Respondent recognizes the 'indivisible course of conduct' rule...

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