People v. Thomas
| Decision Date | 06 March 1962 |
| Docket Number | Cr. 1583 |
| Citation | 20 Cal.Rptr. 423 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Harvey George THOMAS, Defendant and Appellant. |
J. D. Butterwick, Los Angeles, for appellant.
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Jack K. Weber, Deputy Atty. Gen., for respondent.
Defendant-appellant was charged with and convicted of violations of Vehicle Code, section 10851, in that he unlawfully drove and took a 1960 Chevrolet station wagon, without consent and with intent to deprive the owner of its possession. Four prior offenses are charged: grand theft (California), forgery (North Dakota), foregery (California), and fictitious check (Utah). On arraignment, after defendant refused court-appointed counsel, he entered a plea of not guilty to the charge and stood mute as to the prior convictions. A denial thereof was accordingly entered. Defendant was found guilty as charged and the first three prior convictions were found to be true. Defendant, in propria persona, appealed from the judgment which followed.
Ben Younglove owned the Chevrolet car involved in this action. On November 18, 1960, at about 8:00 p. m., he parked it at an address near Twelfth and Cedar Streets in Riverside. The car had just been filled with gasoline. He left the keys in it. About midnight he came out of the house and discovered that the car was missing.
He made search for it and reported it to the police as stolen. He next saw it about 3:00 a. m. when the police notified him of the find. He identified it and found that the gas gauge showed the tank to be about two-thirds full. He said he averaged about 17 miles per gallon.
A police officer saw the station wagon proceeding on Eighth Street and Victoria about 1:00 a. m. On Eighth and Mulberry he gave signal by siren to defendant to stop, but defendant continued on to Lemon Street and slowed down. Defendant turned on Lemon Street and again increased his speed and again the officer sounded the siren. Defendant ran two red signal lights at a possible speed of 60 to 65 miles per hour. The Chevrolet traveled faster than the officer's vehicle so the officer fired a shot as defendant was near Brockton Street in Riverside. Defendant then drove over to the curb. The officer asked him questions and in response he gave only his name. There was a bullet hole in the rear license place of the station wagon. From the place where the car was originally left to where the officer first saw it was about one to one and one-quarter miles, and when it stopped it was about five blocks from the original parking place.
One Robert Pierce, testifying on behalf of defendant, said that defendant was a poor driver but was of good character. Defendant, testifying in his own behalf, testified that he was pardoned on the North Dakota offense and that the Utah conviction was reversed. He admitted the California forgery prior conviction, admitted driving the station wagon involved, but said he had no intent to deprive the owner of its possession and testified that he only drove it about seven blocks; that he took the car without permission just to give himself a chance to determine whether he could make application for a driver's license; that he had it only 20 minutes and was not aware that the police were behind him.
The only points raised on this appeal are: (1) that Vehicle Code, section 10851, was impliedly repealed by Penal Code, section 499b; that when two code provisions purport to punish the same act and prescribe different punishments, they are repugnant and the one last enacted must yield; that where each has been amended since its enactment, the one last amended controls; that the last amendment between the two is the deletion of 'aircraft' from section 499b, a misdemeanor, and hence it supersedes the Vehicle Code section, a felony; (2) that the jury should have been instructed that Penal Code, section 499b is a lesser included offense; (3) insufficiency of the evidence of specific intent to show that defendant intended to deprive the owner of possession; (4) that defendant was deprived of his right to counsel; and (5) that improper evidence was admitted.
There is some support for defendant's argument in reference to the first claim that there is no clear demarcation between Vehicle Code, section 10851, and Penal Code, sections 499b and 487, subdivision 3, in reference to the taking of automobiles. This problem of establishing a clear line of demarcation between acts and conduct prescribed by Vehicle Code, section 10851, and Penal Code, section 499b, has occupied the minds of members of the Bar, members of the Legislature and trial and appellate court justices in this state. See Vol. 2, Reports of California Law Revision Commission, pp. E-8 to E-16 (1958-1959); 19 So.Cal.L.Rev. 446; 21 So.Cal.L.Rev. 176; 23 So.Cal.L.Rev. 107, 109.
Vehicle Code, section 10851 (formerly section 503), and Penal Code, section 499b, have been distinguished upon a difference in the degree of intent required. See People v. Neal (1940), 40 Cal.App.2d 115, 104 P.2d 382; People v. One 1951 Ford Sedan, 122 Cal.App.2d 680, 265 P.2d 176; People v. Zervas (1943), 61 Cal.App.2d 381, 142 P.2d 946; People v. Bailey, 72 Cal.App.2d Supp. 880, 883, 165 P.2d 558; People v. Orona (1946), 72 Cal.App.2d 478, 164 P.2d 769; People v. Slayden, 73 Cal.App.2d 'To constitute the offense prohibited by that section, it is not necessary to prove that it was the defendant's intention to steal the machine, or to permanently deprive the owner of his title thereto. The crime may be consummated when one takes and drives a vehicle, not his own, without the consent of the owner, 'with intent to * * * temporarily deprive the owner thereof of his * * * possession of such vehicle.'' (Citing People v. Zervas, supra, 61 Cal.App.2d 381, 142 P.2d 946.)
345, 166 P.2d 304; People v. Greene, 80 Cal.App.2d 745, 182 P.2d 576. In People v. Orona, supra, speaking of Vehicle Code former section 503 (now section 10851) it was said, 72 Cal.App.2d at page 484, 164 P.2d at page 772:
It is further stated that that section specifically declares such offense to be a felony whether the vehicle is so taken 'with or without intent to steal the same'; that there is a distinction between grand theft of an automobile under Penal Code, section 487, and the offense prohibited by section 503 of the Vehicle Code as above suggested; that there is also a distinction between the offenses prohibited in section 499b of the Penal Code and section 503 of the Vehicle Code; that the former has been called the 'Joy-ride' statute and that it does not require proof of the intent to 'deprive the owner' of either the 'title to or possession of such vehicle'; that the misdemeanor designated by section 499b of the Penal Code may be accomplished by merely taking the machine for temporary use or pleasure of the accused person for a 'joy ride.' The court held that the two sections were not irreconcilably conflicting and said, even if so, the Vehicle Code must prevail since it was last adopted and amended. We see nothing in the amendment of Penal Code, section 499b (Stats.1949, ch. 625, p. 1123) [which eliminated the word 'aircraft' from the section, placing it in the provisions of Penal Code, section 499d, so as to increase the punishment for the theft of an airplane] which would indicate legislative expression or intent of a different construction of Penal Code, section 499b, as compared to Vehicle Code, section 10851, as recodified and reenacted in 1959. In People v. Seeley, 137 Cal. 13, 69 P. 693, it was held that repeals by implication are not favored and code sections must be read and construed together and full effect must be given to each section, if possible. (In re Gamo, 122 Cal.App. 725, 10 P.2d 770; Matter of Petition of Johnson (Cannon Ex parte), 167 Cal. 142, 144, 138 P. 740). To justify the presumption of an intention to repeal one statute by another, either the two statutes must be irreconcilable, or the intent to repeal must be otherwise clearly expressed. (People v. Harmon, 54 Cal.2d 9, 26, 4 Cal.Rptr. 161, 351 P.2d 329; People v. Allen, 170 Cal.App.2d 584, 588, 339 P.2d 642; People v. Derby, 177 Cal.App.2d 626, 630, 2 Cal.Rptr. 401.) It is clear that there is a distinction between the statutes persistently recognized by the authorities. (People v. Orona, supra, 72 Cal.App.2d 478, 164 P.2d 769.) The joy-ride statute, Penal Code, section 499b, does not require the specific intent to deprive the owner of title or possession, as in the felony Vehicle Code provision. (People v. Ray, 162 Cal.App.2d 308, 312, 328 P.2d 219; People v. Bailey, supra, 72 Cal.App.2d Supp. 880, 882, 165 P.2d 558.) We conclude that Penal Code, section 499b, as it now exists, does not impliedly repeal Vehicle Code, section 10851.
Defendant argues that the court should have instructed the jury that defendant could be convicted of a violation of Penal Code, section 499b, as a lesser included offense. (Citing Jones v. Burgermeister Brewing Corp., 198 A.C.A. 207, 213, 18 Cal.Rptr. 311.) We have not been presented with any authority directly holding that under similar facts as here presented, a violation of that section constitutes an offense included with Vehicle Code, section 10851. In People v. Ragone, 84 Cal.App.2d 476, 481, 191 P.2d 126, the trial court refused such Defendant claims that he did argue to the jury on several occasions the distinction between the two sections, which fact is true. But, in connection therewith, he also pointed out that he was charged in the language of Vehicle Code, section 10851. He did not suggest to the jury that it should convict him of any lesser offense. In fact, he told the jury of the distinction and then said:...
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