People v. Ray, Cr. 1370
| Decision Date | 22 July 1958 |
| Docket Number | Cr. 1370 |
| Citation | 328 P.2d 219,162 Cal.App.2d 308 |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent. v. William M. RAY, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Buttermore & Lightner, San Diego, for appellant.
Edmund G. Brown, Atty. Gen., William E. James and Arthur C. DeGoede, Deputy Attys. Gen., for respondent.
The information filed against the defendant herein contained two counts. In the first count defendant was accused of the crime of unlawful taking and driving of a vehicle (Veh.Code, Sec. 503) in that on or about October 11, 1957, he did drive a vehicle, to wit, a 1949 Ford sedan, belonging to Leon V. Thompson, without the consent of the owner and with the intent to deprive the owner of his possession of said vehicle. The second count charging the defendant with burglary (Pen.Code, Sec. 459) was dismissed by the trial court and a jury returned a verdict finding the defendant guilty of the offense charged in count one of the information. His motion for a new trial was denied, imposition of sentence was suspended, and defendant was granted three years probation, one of the conditions of which was that he be confined in the county jail for the first six months of said probation period. Defendant appeals from the judgment and from the order denying his motion for new trial, contending that the trial court erred in 'refusing to instruct on 'joy riding', the lesser included offense.'
On the afternoon of October 11, 1957, the appellant, a young sailor stationed at the Naval Training Center in San Diego, and an acquaintance (Buckingham), left the said training center intending to go to Provo, Utah. They walked a short distance from the entrance gate and broke into a parked and locked 1949 green four-door Ford. Buckingham 'hot wired' the car by crossing two terminals of the ignition switch with tinfoil. Appellant and Buckingham then proceeded to highway 101 and north thereon until they approached a 'check point' established by the United States Border Patrol, approximately 18 miles north of Oceanside. Appellant and Buckingham then turned left up a steep incline which divides the northbound and southbound lanes of traffic on highway 101 and stopped the car, waiting to get into the southbound traffic lane and thus avoid going through the checking point. The border patrol officers, who were stopping all northbound traffic, approached the Ford and directed the driver to come back and go through the check point. When questioned by the officers, appellant stated he broke the vent glass on the right side of the car to gain entrance and Buckingham, who was driving, stated he had 'hot wired' the car; that they had taken it from the Naval Training Center and that they thought it belonged to a friend of theirs, whose name was Ruhs.
Leon V. Thompson, the owner of the Ford car involved, testified that he was in the Navy and stationed at the Naval Training Center and had parked his 1949 Ford near the gate to the center on the afternoon of October 11, 1957; that he turned off the ignition and locked all four doors of the car and that when he returned the following morning, his car was gone; that he next saw it in a garage in Oceanside; that he did not know the appellant or Buckingham and had never given them or either of them permission to use his car.
On October 14, appellant was questioned by a police officer and signed a written statement that on October 11, 1957, he and Buckingham were planning to go to Provo Utah; that they left the base about 3:15, went down town, got some clothes and went to the junction of highway 101 and Rosecrans where he (Ray) was 'written up' by the shore patrol for hitchhiking and was taken back to the base; that Buckingham was then at the barracks and they later In this connection the officer testified that Ray did not state when questioned that he had been given permission to take the car involved or any other car of similar description.
At the trial appellant testified that on October 11 he started out for Provo, Utah, to see his fiancee; that he looked for William Ruhs to get permission to use his car, a 1949 green Ford, which Ruhs generally parked near gate three; that he was unable to locate Ruhs and that he and Buckingham then went out gate three and saw a 1949 Ford, which they thought belonged to Ruhs; that he tried to pry the window open and it broke; that they looked for the key and it wasn't there and Buckingham then hot wired the car and they left in it, traveling north on highway 101; that about five miles before they were stopped by the border patrol, he found the registration slip to the car and saw that it was registered to Leon V. Thompson; that 'we threw the registration away'; that when he discovered that he had taken the wrong car, he and Buckingham decided that they would drive the car to Los Angeles and leave it there until they returned from Utah and then bring it back.
Appellant contends that the court erred in refusing to instruct the jury as to the provisions of Section 499b of the Penal Code, 'joy riding', being a lesser included offense. We are not in accord with this contention. Section 499b of the Penal Code provides that 'Any person who shall, without the permission of the owner thereof, take any automobile, bicycle, motorcycle, or other vehicle, for the purpose of temporarily using or operating the same, shall be deemed guilty of a misdemeanor,...
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