Return to CALJIC Part 14-17 – Contents
F 16.305 n1 Auto Taking vs. Joyriding (PC 499b).
SUBSEQUENT HISTORY: In its July 1997 Pocket Part, CALJIC followed FORECITE’s lead and included reference to the statutory changes identified below.
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 PC 487h was repealed, and “automobile” was added to the grand theft statute (PC 487(d)), effective January 1, 1997.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].)
People v. Ivans (92) 2 CA4th 1654, 1664-65, fn 7 [4 CR2d 66], recognized the difficulty in instructing upon all three auto taking crimes (PC 487(3); VC 10851 and PC 499b) which may have been included in an auto theft charge. The Ivans court recommended that a jury instruction be fashioned from those portions of the Barrick decision (People v. Barrick (82) 33 C3d 115, 134 [187 CR 716]) which distinguished the code sections; see also People v. Stoltz DEPUBLISHED (92) 2 CA4th 1669 [4 CR2d 463] [PC 499b is LIO of VC 10851.]
NOTE: The Ivans court also suggested that the legislature revisit the auto theft statutes to reduce the confusion. (Ivans at 1624, fn 7.)
Ivans and Stoltz provide examples of facts which justified instruction on joy riding. (Ivans [defendant found asleep in car on the day after it was taken]; Stoltz [defendant drove car 100 miles]; see also Barrick 33 C3d at 135 [ignition tampering not inconsistent with joy riding].)
See FORECITE F 14.37 n3 [joyriding as LIO to auto taking].
F 16.305 n2 Joy Riding: Whether Specific Or General Intent Is Required (PC 499b).
ALERT: Legislative Changes To Auto Theft And Related Statutes: 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 PC 487h was repealed, and “automobile” was added to the grand theft statute (PC 487(d)), effective January 1, 1997.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.)
In People v. Diaz (89) 212 CA3d 745, 751 [260 CR 806], the court held that PC 499b required a “specific intent to temporarily take and use or operate” the vehicle. (See also, People v. Howard (97) 57 CA4th 323 [66 CR2d 849] [agreeing that joyriding is a specific intent crime].) In reliance upon Diaz, CJ 16.305 was modified in 1992 to require this specific intent. However, in People v. Frye (94) 28 CA4th 1080, 1091 [34 CR2d 180], the court disagreed with Diaz and held that the “taking” proscribed by PC 499b was an act of taking possession through driving and that the mental state required by the statute was no more than the general intent to perform the act. In other words, the act did not require an intent to achieve a consequence other than the act itself.
In apparent response to this conflict, CJ 16.305 (1995 revision) offers both the Diaz and Frye definitions as [alternative] definitions of the mental state. However, at least one unpublished opinion has reversed in part for using the Diaz rather than the Frye definition. [A copy of this unpublished opinion is available to FORECITE subscribers, ask for Opinion Bank # O-225.]
NOTE: When giving CJ 16.305 (joyriding) as a lesser offense to unlawful taking of a vehicle (VC 10851(a)), it may be a prejudicial error to include the more restrictive Diaz definition of the mens rea, which requires a specific intent to temporarily take and use the vehicle, whereas the Frye definition merely requires the purpose of temporarily using the vehicle. Such an improper instruction on a lesser included offense could be viewed as reversible per se. (See People v. Ramkeesoon (85) 39 C3d 346, 351-52 [216 CR 455]; People v. Ivans (92) 2 CA4th 1654, 1665 [ 4 CR2d 66].)
F 16.305 n3 Taking And Receiving The Same Vehicle (PC 499b).
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].)
(See FORECITE F 14.65 n1 and 14.37 n2.)
RESEARCH NOTES
See Annotation, Participation in larceny or theft as precluding conviction for receiving or concealing the stolen property, 29 ALR5th 59 and Later Case Service.
F 16.305a
Unlawful Vehicle Taking: Joy Rider Need Not
Have Taken The Vehicle
(PC 499b)
ALERT: Legislative Changes To Auto Theft And Related Statutes: 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: SUBSEQUENT HISTORY: FORECITE’s proposed instruction modifying CJ 16.305 in light of People v. Frye (94) 28 CA4th 1080, 1085-91 [34 CR2d 180] was subsequently incorporated in the 1995 revision to CJ 16.305. However, issues regarding the mens rea as defined in CJ 16.305 remain. (See FORECITE F 16.305 n2.)
ALERT: *Modify CJ 16.305 (pre 1995) to provide as follows [deleted language is lined out; added language is capitalized]:
Every person who takes OR DRIVES any [automobile] [__________] without its owner’s permission and with the specific intent to temporarily take and OR use or operate such [vehicle] [__________] is guilty of violating PC 499b, a misdemeanor.
Points and Authorities
PC 499b states that joy riding is committed when a person “take[s]” a vehicle without the owner’s permission for the purpose of temporarily using or operating the vehicle. However, even though the statute uses the word “take”, the statute should be construed to include taking temporary possession through an act of driving. Hence, even though the defendant was not the person who originally took the vehicle, if the defendant subsequently drove the vehicle, then PC 499b has been violated. Hence, the above clarifying modification of CJ 16.305 should be given when appropriate and the failure to do so upon request may be reversible error. (See People v. Frye (94) 28 CA4th 1080, 1085-86 [34 CR2d 180].)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
NOTES
See FORECITE F 16.305 n2 regarding whether the specific or general intent is required.
