People v. Thomas

• Decision Date: 17 July 1962
• Docket Number: Cr. 7135
• Citation: 58 Cal.2d 121,23 Cal.Rptr. 161,373 P.2d 97
• Parties: , 373 P.2d 97 The PEOPLE, Plaintiff and Respondent, v. Harvey George THOMAS, Defendant and Appellant.
• Court: California Supreme Court

Page 161

23 Cal.Rptr. 161

58 Cal.2d 121, 373 P.2d 97

The PEOPLE, Plaintiff and Respondent, v. Harvey George THOMAS, Defendant and Appellant.

Cr. 7135.

Supreme Court of California, In Bank.

July 17, 1962.

J. D. Butterwick, under appointment by the Supreme Court, Los Angeles, Hennigan, Ryneal & Nixen and Robert A. Knox, Riverside, for defendant and appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Jack K. Weber, Deputy Atty. Gen., for plaintiff and respondent.

WHITE, Justice.

This is an appeal by defendant from a judgment of conviction of violation section 10851 of the Vehicle Code, which prohibits the taking of a vehicle without the owner's consent and with intent to deprive the latter of title to or possession thereof. Defendant's motion for a new trial was denied, and from such order of denial defendant also appeals.

It is conceded that defendant took the vehicle in question without the owner's consent, and that he was apprehended while in the act of driving it. The automobile was taken from a parked position on a city street, after having been left there by the owner. Defendant and the owner were strangers, and on no occasion had communicated in any manner whatsoever with each other. The automobile was sighted by a police officer within an hour after the owner reported its loss and within a mile and a quarter from the place from which it was taken. Defendant sought to elude the officer who pursued in a marked police vehicle, flashing red light and sounding a siren. Defendant surrendered after the officer fired a bullet into the stolen vehicle.

Defendant was charged by information in the following language: 'violation of Section 10851 of the Vehicle Code, in that on or about November 18, 1960, in the County of Riverside, State of California, he did wilfully and unlawfully drive and take a vehicle, to wit: a 1960 Chevrolet Station Wagon, California License No. TKA 957, belonging to Ben Younglove, without the consent of the owner and with the intent to deprive the owner of his possession of said vehicle.' The information also charged that defendant had suffered four prior felony convictions. A jury found him guilty of the offense as charged against him and further found that three of the four prior convictions were true.

The only serious question presented on this appeal relates to the claimed overlapping of section 10851 of the Vehicle Code and sections 487 and 499b of the Penal Code. Section 10851 provides in part: 'Any person who drives or takes 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, whether with or without intent to steal the same * * * is guilty of a felony * * *.' (Emphasis added.) Section 499b of the Penal Code provides in relevant part: 'Any person who shall, without the permission of the owner thereof, take any automobile, bicycle, motorcycle, or other vechicle, for the purpose of temporarily using or operating the same, shall be deemed guilty of a misdemeanor * * *.' (Emphasis added.) Section 487 provides in substance that grand theft includes the theft of an automobile, and theft is committed by 'Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another * * *.' (Pen.Code, § 484.) It is to be noted that the physical conduct prohibited by the three enactments is substantially the same, but that 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. In People v. Kehoe, 33 Cal.2d 711, at pages 713-714, 204 P.2d 321, at p. 322, this court in distinguishing these sections stated: 'There is a grandual differentiation in substance between the crimes defined in section 499b of the Penal Code (the so-called 'joy-riding statute'), section 503 of the Vehicle Code (currently section 10851), and section 487 of the Penal Code. The first of these statutes defines as a crime the act of driving or temporarily using an automobile without the consent of the owner. Section 503 makes such conduct an offense if done in the absence of the owner with the intent to temporarily or permanently deprive him of title or possession. Section 487 declares that the theft of an automobile, which requires an intent to deprive the owner permanently of its value and to appropriate the property to the use and benefit of the person taking it, is a crime. * * * Obviously the three statutes are a part of a general legislative plan of potection and punishment conceived to prevent the taking or use of an automobile without the owners' consent. Different punishment is fixed to correspond with the intent with which each offense is committed, but the legislation is directed against one evil.' The distinction between the foregoing offenses is admittedly a subtle one, and would present a rather difficult problem if it were required that a court instruct a jry as to the distinction in a given situation. It may well be that the Legislature intended to leave the decision as to which section should be invoked in a particular case to the prosecutor.

We are particularly concerned in the instant case with the distinction between section 10851 of the Vehicle Code and 499b of the Penal Code. These sections have been consistently distinguished upon a difference in the degree of intent required. (See People v. Orona, 72 Cal.App.2d 478, 484, 164 P.2d 769; People v. Zervas, 61 Cal.App.2d 381, 384, 142 P92d 946; People v. Neal, 40 Cal.App.2d 115, 117-118, 104 P.2d 555.) In People v. Orona, supra, it was stated at page 484 of 72 Cal.App.2d, at page 772 of 164 P.2d: 'There is also a distinction between the offenses prohibited in Section 499b of the Penal Code and Section 503 (currently section 10851) of the Vehicle Code. The former has been called the 'Joy-ride' statute. It does not require proof of the intent to 'deprive the owner' of either the 'title to or possession of such vehicle.' People v. Neal, 40 Cal.App.2d 115, 118 104 P.2d 555. The misdemeanor designated by Section 499b of the Penal Code may be accomplished by merely taking the machine for the temporary use or pleasure of the accused person for a 'joy-ride. " The distinction has not been drawn without some criticism, however. (See 23 So.Cal. L.Rev. 107, 109.)

Defendant first contends that section 10851 has been repealed by section 499b. Such a result would follow if there were either a manifested legislative intent to repeal section 10851, or if the sections are determined to be irreconcilable in which event ehe enactment given the latest legislative approval may be deemed, by implication, to have repealed the other. (People v. Dobbins, 73 Cal. 257, 259, 14 P. 860.) A similar contention was advanced in People v. Orona, supra, 72 Cal.App.2d 478, 194 P.2d 769. The court there held at page 484, 164 P.2d 769 that the Vehicle Code section, being last amended in 1939 (Stats. 1939, p. 1481) prevailed over section 499b of the Penal Code, its last amendment being in 1935. (Stats.1935, p. 1337.) It is contended, however, that a later amendment in 1949 to section 499b changes this result. The amendment in that year merely removed aircraft from the list of those vehicles enumerated in section 499b, and enacted section 499d which provided more severe penalties for the wrongful taking of an aircraft. We cannot perceive in such an amendment a manifested legislative intent implied or otherwise, to repeal section 10851 of the Vehicle Code. And even if it be conceded that the sections are in fact irreconcilable, then the reenactment of the Vehicle Code and the redesignation of then section 503 to section 10851 therein in 1959 (Stats.1959, ch. 3, p. 1597) must be deemed to be the latest legislative expression of intent applicable in the instant case and, according to the rule asserted by defendant, controlling over section 499b of the Penal Code.

The contention that the sections are irreconcilable is reiterated by defendant in another form. It is claimed that the trial court should have instructed on its own motion that the jury could return a verdict of a violation of section 499b of the Penal Code in lieu of a violation of section 10851 of the Vehicle Code, as charged. No charge of a violation of section 499b was made but, it is contended, a violation of that section is a lesser included offense and one on which the jury was entitled to make a finding. (Pen.Code, § 1159.) A like contention was made under similar circumstances in People v. Ray, 162 Cal.App.2d 308, 328 P.2d 219. The court disposed of the contention in the following language at page 311, 328 P.2d at page 221: '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. * * *' The court then quoted from People v. Ragone, 84 Cal.App.2d 476, 191 P.2d 126, 129, to the following effect: 'If the jury found, as it did, that appellants took the automobile, their intent to deprive the owner of his possession is so clear as to leave no room, under the facts, for an instruction on Penal Code, section 499b. * * * The general rule is that it is not error to omit or refuse to instruct the jury of their right to convict of lesser offenses included in that charged when the evidence shows, or tends to show, that the defendant, if guilty at all, is guilty of the offense charged.' And in People v. Tellez, 32 Cal.App.2d 217, at pages 219-220, 89 P.2d 451, at page 452, in a prosecution for grand theft of an automobile under section 487 of the Penal Code the court said: 'The trial judge did not err in refusing to read section 499b of the Penal Code or to give a summary of it to the jury. * * * It defines a...