Opinion Bank # O-102
NOTE: The text of the footnotes appear at the end of each document.
COURT OF APPEAL, FOURTH DISTRICT
DIVISION TWO
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent, E008083
v. (Super. Ct. No. SCR 50200)
ROBERT MORRIS,
OPINION
Defendant and Appellant.
______________________________________/
In re ROBERT MORRIS E008775
(Super. Ct. No. SCR 50200)
on HABEAS CORPUS.
______________________________________/
APPEAL from the Superior Court of San Bernardino County. Bob N. Krug, Judge. Vacated and remanded.
ORIGINAL PROCEEDING: petition for writ of habeas corpus. Petition granted.
Conrad Petermann, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Harley D. Mayfield and Gary W. Schons, Senior Assistant Attorneys General, Keith I. Motley, supervising Deputy Attorney General, and Lilia E. Garcia, Deputy Attorney General, for Plaintiff and Respondent.
EXCERPT FROM OPINION
Instructions on Lesser Included Offenses. Morris contends the jury was required to instruct the jury sua sponte on joyriding [Footnote 1] and unlawful taking [Footnote 2] as lesser included offenses of the robbery charge. “[A] defendant has a constitutional right to have the jury determine every material issue presented by the evidence; . . . (People v. Sedeno (1974) 10 Cal.3d 703, 720, overruled on another ground in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.) “‘The requirement of instructions on lesser included offenses is based on the elementary principle that the court should instruct the jury on every material question. [Citation.] The state has no interest in a defendant obtaining an acquittal where he is innocent of the primary offense charged but guilty of a necessarily included offense. Nor has the state any legitimate interest in obtaining a conviction of the offense charged where the jury entertains a reasonable doubt of quilt of the charged offense but returns a verdict of guilty of that offense solely because the jury is unwilling to acquit where it is satisfied that the defendant has been guilty of wrongful conduct constituting a necessarily included offense. Likewise, a defendant has no legitimate interest in compelling the jury to adopt an all or nothing approach to the issue of guilt. Our courts are not gambling halls but forums for the discovery of truth.”‘ (People v. Geiger (1984) 35 Cal.3d 510, 519-520.)
Two distinct tests are used to identify lesser included offenses. (People v. Barrick (1982) 33 Cal.3d 115, 133.) The first test is based on the legal definition of the offense. Certain crimes, because of their common elements, are always lesser included offenses within greater crimes. (People v. St. Martin (1970) 1 Cal.3d 524, 536.) Under the legal definition test, a lesser crime is necessarily included in the greater crime when the greater crime could not be committed without also committing the lesser. (Ibid.)
Robbery need not be of an automobile; thus, robbery can be committed without committing joyriding or unlawful taking. (People v. Marshall (1957) 48 Cal.2d 394, 399; People v. Pater (1968) 267 Cal.App.2d 921, 925.) Joyriding and unlawful taking therefore fail, under the legal definition test, to qualify as lesser included offenses of robbery.
The second test is based on the elements charged in the information. “[A] crime is a necessarily lesser included offense if it is within the offense specifically charged in the accusatory pleading. [Citations.]” (Barrick, supra, 33 Cal.3d at p. 133; see also Marshall, supra, 48 Cal.2d at p. 397.)
Here, the information neither mentioned an automobile nor the taking or driving of an automobile. [Footnote 3] (See People v. Taylor (1984) 151 Cal.App.3d 432, 435.) Thus, neither joyriding .nor unlawful taking was a specifically pleaded lesser offense. The trial court had no sua sponte duty to instruct on unlawful taking or joyriding.
Assistance of Counsel. Morris contends he was deprived of the effective assistance of counsel because his counsel failed to request instructions on the lesser offenses of joyriding and unlawful taking. Moreover, counsel failed in argument to the jury to develop the theory of joyriding or unlawful taking.
The Sixth Amendment entitles a defendant to “‘the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.’ (Citations.]” (People v. Ledesma (1987) 43 Cal.3d 171, 215.) When a defendant challenges the representation of counsel “based on acts or omissions not amounting to withdrawal of a defense, a defendant may prove such ineffectiveness if he establishes that his counsel failed to perform with reasonable competence and that it is reasonably probable a determination more favorable to the defendant would have resulted in the absence of counsels failings. (Citations.]” (People v. Fosselman (1983) 33 Cal.3d 572, 584.) In addition, the record must affirmatively show that counsel had no rational tactical purpose for the allegedly incompetent omission. (People v.Milner (1988) 45 Cal.3d 227, 238.)
Lesser Related Offenses. As discussed above, joyriding and unlawful taking are not lesser included offenses of robbery. However, if certain conditions are met, the court is required on request to instruct on lesser related offenses. (Geiger, supra, 35 Cal.3d at p. 531.) We thus examine whether joyriding and unlawful taking are lesser related offenses of robbery and whether reasonably diligent counsel would have requested instructions on those offenses.
The three-part test for whether instructions are required on request for lesser related offenses is set forth in Geiger, supra, 35 Cal.3d 510. First, substantial evidence must be present to support a finding that the offense was less than that charged; second, the offense must be closely related to the charged offense; and finally, the offense must be consistent with the theory of the defense. (Id., at p. 531.)
Applying this test, we first consider whether the evidence was sufficient to support instructions on unlawful taking and joyriding. To do this, we must first determine the elements of those offenses. Given the current state of the law, this is no easy task. Courts have struggled for many decades to discern the subtle distinctions between the three closely related offenses of grand theft auto, unlawful taking, and joyriding. [Footnote 4] (See Barrick, supra, 33 Cal.3d at p. 134; People v. Thomas (1962) 58 Cal.2d 121, 125-130, overruled on another ground in Barrick, supra, at p. 135; People v. James (1984) 157 Cal.App.3d 381, 388, Dalsimer, J., concurring, and cases collected.) [Footnote 5]
The Barrick court stated, “The Legislature has enacted three statues dealing with the taking of an automobile without the owner’s consent: ‘grand theft-auto’ (Pen. Code, § 487, subd. 3); ‘driving or taking a vehicle’ (Veh. Code, § 10851); and ‘joyriding’ (Pen. Code, § 499b) . . . . ‘(T]he physical conduct prohibited by the three enactments is substantially the same, but 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. . . . The distinction . . . is admittedly a subtle one, and would present a rather difficult problem if it were required that a court instruct a jury as to the distinction in a given situation.”‘ (Barrick, supra, 33 Cal.3d at p. 134, citing Thomas, supra, 58 Cal.2d at pp. 125-126.) [Footnote 6]
In the original passage, the Thomas court added, “It may well be that the Legislature intended to leave the decision as to which section should be involved in a particular case to the prosecutor.” (Thomas, supra, 58 Cal.2d at p. 126.) Even if this was the Legislature’s intentional, [Footnote 7] however, Geiger requires us to determine whether instructions on any or all of the offenses are required on request when the elements of the Geiger test are satisfied. (Geiger, supra, 35 Cal.3d at p. 531.)
The Barrick court concluded that the offenses differ in the intent of the defendant: “The principal difference between [unlawful taking and joyriding] is that section 10851 requires a permanently or temporarily of title or possession of the automobile [citation]. Penal Code section 499b, the joyriding statute, does not require a specific intent to deprive the owner of title or possession of a vehicle [citations]. However, the section does require a “purpose,’ or “intent’ of “temporarily using or operating the same.’ [Citation.]” (Barrick, supra, 33 Cal.3d at p. 134, fns. omitted.) In comparison, grand theft automobile requires an intent to deprive an owner permanently of the automobile. (§ 487, subd. (3).).
With these definitions of the offenses in mind, we next consider whether the evidence presented at trial was sufficient to establish the elements of unlawful taking and joyriding.
Unlawful taking. As noted, the crime of unlawful taking is committed when the defendant drives or takes a vehicle with the specific intent to deprive the owner of title or possession of the vehicle permanently or temporarily. (Veh. Code, § 10851; Barrick, supra, 33 Cal.3d at p. 134.
The trial court did instruct the jury on grand theft automobile (Pen. Code, § 487, subd. (3); [Footnote 8] see People v. Irvin (1991) 230 Cal.App.3d 180, 184) as a lesser included offense to the robbery charge. The trial court necessarily concluded, therefore, that had it believed Morris’s testimony, the jury could reasonably have found that the taking was accomplished without force. The principal difference between robbery andtheft is that “‘, . . . robbery is simply an aggravated form of theft with the additional element of force or fear, . . . .'” (Irvin, supra, 230 Cal.App.3d at p. 184.)
Unlawful taking may be committed if the defendant’s intent is to deprive an owner of a vehicle either permanently or temporarily. Because of the overlapping intent requirement of unlawful taking and grand theft automobile, evidence sufficient to support giving grand theft instructions also suffices to support giving instructions on unlawful taking.
Joyriding. Joyriding, a misdemeanor offense, is committed when the defendant takes a vehicle intending to use or operate it temporarily. (Barrick, supra, 33 Cal.3d at p. 134.) The People point out that several times in cross-examination of Morris, the prosecutors questions referred to stealing and Morris’s intent to steal. No objections were raised to the form of the questions. In his testimony, Morris did not himself use the word “steal,” but incorporated the prosecutor’s questions into his responses. The People equate the word steal with theft. (See Butler, supra, 65 Cal.2d at p. 573.) They argue that by impliedly incorporating the language of the prosecutor’s questions into his responses, Morris admitted an intent to take Austin’s car permanently.
We disagree. Courts have recognized in other contexts that the term “steal” has a variety of meanings, one of which is merely “‘taking away.'” (See People v. McCullouqh (1979) 100 Cal.App.3d 169, 176.) We decline to conclude that a lay witness necessarily incorporates a particular legal definition of a term into his answer when he responds to a question which uses that term. Morris’s answers to the prosecutor’s questions constituted evidence which the jury could use to determine his intent; however, those answers were not a confession to or admission of the legal elements of a crime.
Morris also testified that he took Austin’s car for joyriding. The People argue, inconsistently with their position on the use of the word “steal”, that Morris’s use of the word “joyriding” in his testimony was insufficient, without an explanation of what he meant, to justify an instruction on the lesser related offense. Using the same standard as we applied above, we conclude that Morris’s use of the word “joyriding” in his testimony was merely evidence relating to his intent. Morris also argues that circumstantial evidence, including the presence of his own car nearby and his earlier efforts to buy a tire repair kit, suggested that his intention was to use Austin’s car temporarily to obtain parts to fix a flat tire. This evidence, if believed by the jury, could have supported a finding that the offense was unlawfu1 taking or joyriding rather than robbery. Thus, the first part of the Geiger test was met for both unlawful taking and joyriding.
The second part of the Geiger test is that the lesser offense must be closely related to the charged offense. (Geiger, supra, 35 Cal.3d at p. 531.) Without citing authority, the People argue that the offenses of unlawful taking and joyriding are not inherently closely related to the charged crime of robbery. They assert that robbery is a crime against a person, whereas unlawful taking is a crime against property.
Grand theft of an automobile is a necessarily lesser included offense of robbery (Irvin, Supra, 230 Cal.App.3d at pp. 184-186; see also People v. Melton (1988) 44 Cal.3d 713, 745-746; People v. Covington (1934) 1 Cal.2d 316, 320), but is not always a crime against a person. In Marshall, supra, 48 Cal.2d 394, the court held that unlawful taking was necessarily included within “the particular robbery specifically pleaded in the information here . . . . ” (Id., at p. 399.) Although in the present case, the lesser offenses were not necessarily included in the robbery, Marshall supports the proposition that they were closely related offenses. Given the overlapping between grand theft automobile, unlawful taking and joyriding (Barrick, supra, 33 Cal.3d at p. 134), we conclude that unlawful taking and joyriding are closely related to robbery so as to satisfy the second part of the Geiger test.
The third part of the Geiger test requires us to consider whether instructions on the lesser related offenses would have been consistent with Morrists theory of the case. (Geiger, supra, 35 Cal.3d at p. 531.) At trial, Morris admitted that he took the Buick. Defense counsels primary argument was that the taking was accomplished without force or fear, and the offense should have been considered grand theft rather than robbery. It would certainly not have been inconsistent with this theory to argue that Morris intended to use Austin’s car only temporarily.
All three conditions for an instruction on lesser related offenses were met as to the offenses of unlawful taking and joyriding. Substantial evidence could have supported a finding that the offense was unlawful taking or joyriding, those offenses are closely related to robbery, and those offenses are not inconsistent with the theory of the defense. (Geiger, supra, 35 Cal.3d at p. 531.)
(Deleted Text)
We conclude effective assistance of counsel would have included a request for-instructions on lesser related offenses, unless counsel had a reasonable tactical purpose for failing to do so. (Milner, supra, 45 Cal.3d at p. 238.) Because the appellate record contains no showing of counsels purpose, we are unable to resolve the issue in Morris’ appeal.
FOOTNOTES:
The offense commonly known as misdemeanor joyriding is defined in Penal Code section 499b: “Any person who shall, without the permission of the owner thereof, take any automobile, . . . shall for the purpose of temporarily using or operating the same, be deemed guilty of a misdemeanor, . . .”
Vehicle Code section 10851 provides, “(a) Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily to deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, . . . is guilty of a public offense . . . .”
The information charged in Count 2, “On or about September 7, 1989. . . . the crime of SECOND DEGREE ROBBERY, in violation of PENAL CODE SECTION 211, a Felony, was committed by ROBERT L. MORRIS, who did willfully, unlawfully, and by means of force and fear take personal property from the person, possession, and immediate presence of PATRICIA LOU AUSTIN. . ..
In fact, a violation of Vehicle Code section 10851 is often referred to as joyriding or felony joyriding. (See, e.g., People v. Capetillo (1990) 220 Cal.App.3d 211, 217; In re Lunceford (1987) 191 Cal.App.3d 180, 181; People v. Barrero (1985) 163 Cal.App.3d 1080, 1081.)
In 1959, the Law Revision Commission recommended resolving the confusion by eliminating the offense of grand theft auto under section 487, subdivision (3), repealing former Vehicle Code section 503 (see now Vehicle Code section 10851), and amending section 499b to make taking or driving an automobile without the permission of the owner a misdemeanor if the intent is to deprive the owner of possession temporarily and a felony if the intent is to deprive the owner of possession or title permanently. (2 Law Revision Comm. Rep. (1959) p. E-6.) The Commission noted, “Notwithstanding judicial effort to differentiate them, these provisions continue to overlap each other causing unnecessary confusion and difficulty.” (Id., at p. E-8.)
This case presents the “difficult situation” anticipated by the Barrick court. The difficulty is further exacerbated because in this felony murder case, robbery was the predicate offense for the first degree murder conviction. The distinction between lesser related offenses thus takes on even greater consequences.
The Legislature should revisit the auto theft statutes and consider repealing, amending or enacting corrective legislation. Conceivably, one auto theft statute would suffice for California.
The jury was instructed: “Every person who steals, takes or drives away the automobile of another with the specific intent to deprive [her] permanently of [her] property, is guilty of the crime of grand theft of an automobile in violation of Penal Code, Section 487(3). [¶] In order to prove such crime, each of the following elements must be proved: [¶] 1. A person took or drove away the automobile belonging to another person, and [¶] 2. When such person took or drove away the automobile [he] had the specific intent to deprive the owner permanently of [her] property.”
