Sandoval v. People, 24368
| Citation | 490 P.2d 1298,176 Colo. 414 |
| Decision Date | 29 November 1971 |
| Docket Number | No. 24368,24368 |
| Parties | Johnny SANDOVAL, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Supreme Court of Colorado |
Rollie R. Rogers, Colo. State Public Defender, J. D. McFarlane, Chief Deputy State Public Defender, Kenneth J. Russell, Deputy State Public Defender, Denver, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., .john P. Moore, Deputy Atty. Gen., Dorothy E. Binder, Sp. Asst. Atty. Gen., George E. DeRoos, Asst. Atty. Gen., Denver, for defendant in error.
Early in the morning on August 18, 1968, two men discovered defendant Sandoval attempting to drive a car off the used car lot at the Hottman Chevrolet Company in Brighton. The defendant was unsuccessful due to a steel light pole which impeded his progress. Being thus frustrated, he jumped from the car and attempted to flee, but was tackled and forced to the ground by one of the men. The other man then summoned the police. Before the police could arrive, Sandoval was released, but was again apprehended a short time later by the police. Investigation disclosed that the office building had been entered and that three sets of keys had been removed. One of these sets of keys was for the car which the defendant attempted to take.
The defendant was charged with burglary and attempted theft. A jury found him guilty of both charges, and he was sentenced to the penitentiary.
On writ of error, the defendant specifies two grounds for reversal as follows: (1) That the trial court erred in refusing to submit his tendered instruction and verdict on joyriding as a lesser included offense of attempted theft, and (2) That the trial court erred in failing to instruct the jury that a specific intent was necessary for a conviction of attempted theft, as set forth in defendant's tendered instruction, which the trial court refused to give the jury.
Neither of the defendant's contentions for reversal have merit, and we therefore affirm the judgment of the trial court.
The crime of joyriding is not a lesser included offense of the crime of theft, nor as the defendant proposes, is attempted joyriding a lesser included offense of attempted theft.
The test of a lesser included offense was set forth by this court in People v. Futamata, 140 Colo. 233, 343 P.2d 1058 as follows:
'If the greater of two offenses includes all the legal and factual elements of the lesser, the greater includes the lesser; but if the lesser offense requires the inclusion of some necessary element not so included in the greater offense, the lesser is not necessarily included in the greater.'
In Daniels v. People, 159 Colo. 190, 411 P.2d 316, the Futamata test was reaffirmed as the rule in the state and was further clarified as follows:
'In other words, the greater offense includes a lesser offense when the establishment of the essential elements of the greater Necessarily establishes all of the elements required to prove the lesser.' (Emphasis by the court)
When the essential elements of joyriding and theft are considered in the light of the Futamata test, it must be concluded that these two crimes and attempts to commit them are basically different crimes. The greater offense of theft or attempted theft does not contain the essential and critical elements of joyriding or attempted joyriding. These conclusions are, in our view, readily demonstrated by an analysis of the statutory definitions of the crimes we are considering.
The following is a brief analysis and description of the statutes involved here: C.R.S.1963, 13--13--2 states that joyriding is committed when any person, without authority of the owner, wilfully, wantonly or maliciously takes possession of, or drives away the automobile of another for the purpose of Temporarily depriving the owner thereof of his automobile. 1967 Perm.Supp., C.R.S.1963, 40--5--2 states that theft occurs when any person obtains control of the property of another and knowingly intends to Permanently deprive that person of the use or benefit of a thing of value. The defendant was charged with Attempted theft. The attempt statute (1967 Perm.Supp., C.R.S.1963, 40--25--1(1)) states that criminal attempt requires that the defendant has the intent to perform any act, and to obtain any result which, if accomplished, would constitute such crime, plus some step toward the commission of the crime which would result in its commission, except for the extraneous intervention of another...
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Lakeysha P., In re
...188 Neb. 143, 195 N.W.2d 199, 200 (1972); Commonwealth v. Nace, 222 Pa.Super. 329, 295 A.2d 87, 89 (1972). Contra Sandoval v. People, 176 Colo. 414, 490 P.2d 1298, 1300 (1971); State v. Cobb, 2 Ariz.App. 71, 406 P.2d 421, 426 The Legislative Intent of 1880: Our Reading If we were writing on......
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Henry v. State
...Ashby v. State, 24 Ala.App. 466, 467, 136 So. 483 (1931); State v. Corrolla, 113 Conn. 103, 154 A. 152, 153 (1931); Sandoval v. People, 176 Colo. 414, 490 P.2d 1298 (1971); Leap v. State, 189 Ind. 538, 127 N.E. 274 (1920); and Slater v. Commonwealth, 179 Va. 264, 267, 18 S.E.2d (1942). See ......
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State v. Bailey, 13521
...The intent to permanently deprive cannot be said to be a progression of an intent to temporarily deprive. Sandoval v. People, 176 Colo. 414, 490 P.2d 1298 (1971). Thus the offense of 'joyriding' requires the inclusion of an element not required in the greater offense of larceny and cannot b......
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Fresquez v. People
...except to comment that we have a reviewed the instructions and find that they properly and fully instructed the jury. See Sandoval v. People, Colo., 490 P.2d 1298 and Davis v. People, 112 Colo. 452, 150 P.2d Judgment affirmed. PRINGLE, C.J., not participating. GROVES and ERICKSON, JJ., diss......