Return to CALJIC Part 14-17 – Contents
F 14.37 n1 Auto Taking: When Acts May Constitute Either Of Two Crimes (PC 487 & VC 10851).
The CALJIC July 1991 pocket part revision to CJ 14.37 purports to distinguish between the crimes of grand theft auto (PC 487(3), PC 487(h)) and unlawful vehicle taking (VC 10851). However, the CALJIC revision failed to recognize that an additional distinction between the two crimes is that to violate VC 10851 the auto must be taken without the owner’s consent while grand theft auto does not include such an element. (See People v. Cook (64) 228 CA2d 716 [39 CR 802].)
NOTE: See FORECITE F 14.37 n4 [ALERT: Legislative Changes To Auto Theft And Related Statutes].
F 14.37 n2 Auto Taking: Taking And Receiving The Same Vehicle (PC 487 & VC 10851).
When the defendant is charged with vehicle taking in violation of PC 487 or VC 10851, the judge is required to instruct, sua sponte that the defendant may not be convicted of both unlawfully taking and of receiving the same vehicle. (People v. Strong (94) 30 CA4th 366, 376 [35 CR2d 494]; see also People v. Cratty (99) 77 CA4th 98 [91 CR2d 370].) In such a situation, the trial court should instruct the jury that if the defendant is convicted of unlawfully taking the vehicle, or of unlawfully driving the vehicle as part of the original taking, it may not also convict him of receiving or withholding the vehicle. (Strong 30 CA4th at 376].)
(See FORECITE F 14.65 n1.)
F 14.37 n3 Joyriding as LIO to Auto Taking As Charged.
ALERT: Effective January 1, 1997, PC 499b was amended, deleting reference to “any automobile, motorcycle, or other vehicle.” The new statute only pertains to bicycles, motorboats or vessels. PC 487h was repealed, and “automobile” was added to the grand theft statute (PC 487(d)), effective January 1, 1997. (See FORECITE F 14.37 n4 [ALERT: Legislative Changes To Auto Theft And Related Statutes].)
Prior to January 1, 1997, joyriding (PC 499b) was not a necessarily included lesser offense of unlawful taking of a vehicle (VC 10851(a)) because the latter offense could be committed without satisfying the elements of the former offense. (People v. Green (95) 34 CA4th 165, 174 [40 CR2d 239].) However, where the accusatory pleading charged the VC 10851 offense in the conjunctive, that is, “driving and taking”, it “necessarily charges that [the defendant] took the automobile ‘for the purpose of temporarily using or operating the same’ and thus violated Section 499b.” (People v. Barrick (82) 33 C3d 115, 135 [187 CR 716]; People v. Green (95) 34 CA4th 165, 175 [40 CR2d 239]; see also, People v. Ivans (92) 2 CA4th 1654, 1664-65 [4 CR2d 66].)
F 14.37 n4 ALERT: Legislative Changes To Auto Theft And Related Statutes.
SUBSEQUENT HISTORY: In its July 1997 Pocket Part, CALJIC followed FORECITE’s lead and included reference to the statutory changes identified in this note.
The 1993 Stats., ch. 1125 (AB 1630) which affected the grand theft auto statutes, removed grand theft auto from PC 487(3) (grand theft defined) and created a new 487h (grand theft; vehicles, trailers, construction equipment or vessels). The 1993 Stats also made changes to other statutes (PC 499, PC 666.5, PC 666.7 and VC 10851) and set the then-new laws to sunset on December 31, 1996. After that date, there would be a partial return to the old statutes, putting grand theft auto in PC 487(d) and repealing PC 487h and PC 666.7. The new statutes (PC 487, PC 499, PC 666.5 and VC 10851) became effective January 1, 1997.
A copy of the pre- and post-January 1, 1997 version of these statutes is available to FORECITE subscribers. Ask for Legislative Bank # L-2006.
F 14.37 n5 Unlawful Vehicle Taking (VC 10851): Auto Tampering (VC 10852) As Lesser Included.
[See Brief Bank # B-863 for briefing on this issue.]
F 14.37a
Auto Taking: Intent To Deprive Of Main Or Major Value
(PC 487(d) Or VC 10851)
*Modify CJ 14.37, 2nd and 4th paragraphs and Elements 1 and 2, as follows [added language is capitalized]:
Every person who steals, takes, or drives away the automobile of another with the specific intent to [deprive the owner permanently of [his] [her] property] [DEPRIVE [HIM] [HER] OF THE [MAIN] [MAJOR] VALUE OF [HIS] [HER] PROPERTY] is guilty of grand theft in violation of Penal Code section 487(d) regardless of the value of the automobile.
Every person who drives or takes a vehicle not [his] [her] own without the consent of the owner and with the specific intent to [either permanently or temporarily deprive the owner of [his] [her] title to or possession of such vehicle] [DEPRIVE THE OWNER OF THE [MAIN] [MAJOR] VALUE OF THE VEHICLE] is guilty of a violation of Vehicle Code section 10851.
1. To constitute the crime of grand theft, there must be a specific intent to [permanently deprive the owner of [his] [her] vehicle] [DEPRIVE THE OWNER OF THE [MAIN] [MAJOR] VALUE OF [HIS] [HER] VEHICLE];
2. To constitute a violation of Vehicle Code Section 10851, there must be a specific intent to [either permanently or temporarily deprive the owner of [his] [her] title to or possession of the vehicle] [DEPRIVE THE OWNER OF THE [MAIN] [MAJOR] VALUE OF THE VEHICLE].
Points and Authorities
See FORECITE F 9.40p.
