SERIES 1800 THEFT AND EXTORTION
F 1820 Unlawful Taking Or Driving Of Vehicle (VC 10851(a), (b))
TABLE OF CONTENTS
F 1820.1 Titles And Identification Of Parties
F 1820.1 Inst 1 Unlawful Taking Or Driving Of Vehicle—Title
F 1820.1 Inst 2 Identification Of Prosecution And Defendant
F 1820.2 Unlawful Taking Or Driving Of Vehicle—Tailoring To Facts: Persons, Places, Things And Theories
F 1820.2 Inst 1 Separate Enumeration Of Combined Elements; Tailoring To Facts
F 1820.2 Inst 2 Deletion Of Argumentative Language
F 1820.3 Unlawful Taking Or Driving Of Vehicle—Language That Is Argumentative, Confusing, Etc.
F 1820.3 Inst 1 Deletion Of Argumentative Language
F 1820.3 Inst 2 Jurors Not Required To Decide
F 1820.4 Unlawful Taking Or Driving Of Vehicle—Burden Of Proof Issues
F 1820.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 1820.5 Unlawful Taking Or Driving Of Vehicle—Elements And Definitions [Reserved]
F 1820.6 Unlawful Taking Or Driving Of Vehicle—Defense Theories
F 1820.6 Inst 1 Juror Consideration Of Prior Consent
F 1820.6 Inst 2 (a & b) Juror Consideration That Vehicle Was Only Moved A Short Distance
F 1820.7 Unlawful Taking Or Driving Of Vehicle—Preliminary Fact Issues [Reserved]
F 1820.8 Unlawful Taking Or Driving Of Vehicle—Unanimity/Duplicity/Multiplicity [Reserved]
F 1820.9 Unlawful Taking Or Driving Of Vehicle—Lesser Offense Issues [Reserved]
F 1820 Notes
F 1820 Note 1 Unlawful Taking Or Driving Of Vehicle—CALCRIM Cross-References And Research Notes
F 1820 Note 2 Auto Taking: Taking And Receiving The Same Vehicle (PC 487 & VC 10851)
F 1820 Note 3 Unlawful Vehicle Taking (VC 10851): Auto Tampering (VC 10852) As Lesser Included
F 1820 Note 4 Auto Taking: When Acts May Constitute Either Of Two Crimes (PC 487 & VC 10851)
F 1820 Note 5 Auto Taking: Accessory After The Fact Liability
F 1820 Note 6 Presumption Of Embezzlement Improper In VC 10851 Case
Return to Series 1800 Table of Contents.
F 1820.1 Titles And Identification Of Parties
F 1820.1 Inst 1 Unlawful Taking Or Driving Of Vehicle—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 1820.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 1820.2Unlawful Taking Or Driving Of Vehicle—Tailoring To Facts: Persons, Places, Things And Theories
F 1820.2 Inst 1 Separate Enumeration Of Combined Elements; Tailoring To Facts
*Modify CC 1820, Elements 1 & 2 as follows [added language is underlined; deleted language is stricken]:
1. The defendant took or drove someone else’s _______________’s <name of alleged victim> vehicle;
2. The defendant did so without the owner’s _______________’s <name of alleged victim> consent;
AND
2 3. When the defendant did so, (he/she) intended to deprive the owner _______________ <name of alleged victim> of possession or ownership of the vehicle for any period of time.
Points and Authorities
Tailor To Facts—See FORECITE F 400.2 Inst 1.
Separate Enumeration—See FORECITE F 3500.2 Inst 1.
F 1820.2 Inst 2 Deletion Of Argumentative Language
*Modify CC 1820, paragraph 4, as follows [deleted language is stricken]:
[A taking requires that the vehicle be moved for any distance, no matter how small.]
Points and Authorities
See FORECITE F 416.3 Inst 4.
F 1820.3 Unlawful Taking Or Driving Of Vehicle—Language That Is Argumentative, Confusing, Etc.
F 1820.3 Inst 1 Deletion Of Argumentative Language
*Delete CC 1820, paragraph 3 which provides:
[Even if you conclude that the owner had allowed the defendant or someone else to take or drive the vehicle before, you may not conclude that the owner consented to the driving or taking on ____________<insert date of alleged crime> based on that previous consent alone.]
Points and Authorities
See FORECITE F 416.3 Inst 4.
STRATEGY NOTE—Alternatively, CALCRIM 1820, paragraph 3, should be balanced. (See FORECITE F 1820.6 Inst 1.)
F 1820.3 Inst 2 Jurors Not Required To Decide
*Modify CC 1820, paragraph 6, sentence 1, as follows [added language is underlined]:
[If you find the defendant guilty of unlawfully taking or driving a vehicle, you must then decide, if you can, whether the People Prosecution have proved the additional allegation that the defendant took or drove an emergency vehicle on call.
*Modify CC 1820, paragraph 8, sentence 1, as follows [added language is underlined]:
[If you find the defendant guilty of unlawfully taking or driving a vehicle, you must then decide, if you can, whether the People Prosecution have proved the additional allegation that the defendant took or drove a vehicle modified for a disabled person.
Points and Authorities
See FORECITE F 100.7 Inst 1.
F 1820.4 Unlawful Taking Or Driving Of Vehicle—Burden Of Proof Issues
F 1820.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 1820.5 Unlawful Taking Or Driving Of Vehicle—Elements And Definitions[Reserved]
F 1820.6 Unlawful Taking Or Driving Of Vehicle—Defense Theories
F 1820.6 Inst 1 Juror Consideration Of Prior Consent
Option a [CC 3400 format (1)] add:
However, such prior consent may be alone sufficient to leave you with a reasonable doubt that the prosecution has proved Element 1 of the charge. If after consideration of all the evidence, including any evidence of the owner’s previous consent, you have a reasonable doubt that the prosecution has proved any element of the charged offense beyond a reasonable doubt, you must find the defendant not guilty.
Option b [CC 3400 format (2)] add:
The prosecution must prove that the defendant took someone else’s vehicle without the owner’s consent. The defendant contends (he/she) did not commit (this crime/these crimes) and that the owner consented to the [alleged] taking or driving of the vehicle. The prosecution must prove that the defendant did not have the owner’s consent when the vehicle was taken or driven. The defendant does not need to prove that the owner actually consented.
If you have a reasonable doubt that the defendant [took] [drove] the vehicle without the owner’s consent you must find (him/her) not guilty.
Option c [CC 3400 format (3)] add:
*Replace CC 1820, paragraph 3, with the following:
Evidence that the owner previously allowed the defendant or someone else to drive (his/her) vehicle does not create a presumption that the owner consented to the driving or taking on ________ <insert date of alleged crime>.
However, the defendant does not need to prove that the owner consented to (his/her) taking or driving on ________ <insert date of alleged crime>. Rather, the prosecution must prove beyond a reasonable doubt that the owner did not consent to such taking or driving. If, after consideration of all the evidence – including any evidence of the owner’s previous consent to the taking or driving of (his/her) vehicle by the defendant or someone else – you have a reasonable doubt that the prosecution has met its burden as to consent, you must find the defendant not guilty.
Option d:
*Add to CC 1820, paragraph 3:
However, any such prior consent is a factor for you to evaluate in considering whether the prosecution has proven that _______________ <name of alleged victim> did not consent to the driving alleged by the prosecution.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency – First, the CALCRIM language is confusing and misleading because it suggests that the jurors will need to decide whether or not “the owner consented to the driving or taking. . . .” This is not a question which the jurors should be told to answer. Instead, under the presumption of innocence, the only question regarding consent which the jurors should address is whether or not the prosecution has proved that the owner did not consent.
Second, the CALCRIM language inaccurately describes the statutory rule upon which it is based. VC 10851(c) states that consent “shall not be presumed or implied” because of a previous consent. Hence, at most, any instruction based on this statute should simply state that previous consent does not create a presumption of consent. Instead, the CALCRIM language absolutely precludes the jurors from relying on the prior consent “alone.” This is an unconstitutional restriction upon the jurors’ consideration of relevant and material evidence.
However, even assuming arguendo that the CALCRIM interpretation is correct the instruction is still confusing and inaccurate because it addresses an irrelevant question: whether the owner consented. When applied to the correct question – whether the prosecution has proved that the owner did not consent – the previous consent alone would undeniably be sufficient to leave the jurors with a reasonable doubt that the prosecution had met its burden.
Improper To Present The Jurors With A False Issue – See FORECITE F 416.3 Inst 4.
Correction Of Burden Shifting Language – See FORECITE F 404.2 Inst 1; see also F 105.1 Inst 5.
Presumption Of Innocence: No Duty Of Defendant To Prove Or Disprove Anything – See FORECITE F 100.1 Inst 1.
Relating Defense Theory To Prosecution’s Burden Of Proof – See FORECITE F 400.4 Inst 1.
Identification Of Parties – See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization – To preserve federal claims counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 1820.6 Inst 2 (a & b) Juror Consideration That Vehicle Was Only Moved A Short Distance
*Add after CC 1820, paragraph 3:
Alternative a [fact not disputed]:
However, the fact that the vehicle was only moved a short distance is a circumstance to consider in evaluating whether the prosecution has proven [all the elements of the conspiracy] [_________________<insert specific allegation or element to which the evidence relates; e.g., ___________________>.
Alternative b [fact disputed]:
However, whether or not the vehicle was only moved a short distance is a circumstance to consider in evaluating whether the prosecution has proven [all the elements of the conspiracy] [________________ <insert specific element to which the evidence relates; e.g., ___________________>].
Points and Authorities
See FORECITE F 416.3 Inst 7.
F 1820.7 Unlawful Taking Or Driving Of Vehicle—Preliminary Fact Issues[Reserved]
F 1820.8 Unlawful Taking Or Driving Of Vehicle—Unanimity/Duplicity/Multiplicity[Reserved]
F 1820.9 Unlawful Taking Or Driving Of Vehicle—Lesser Offense Issues [Reserved]
F 1820 NOTES
F 1820 Note 1 Unlawful Taking Or Driving Of Vehicle—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 1821 [Tampering With a Vehicle]
Research Notes:
See CLARAWEB Forum, Theft And Extortion—Series 1800.
F 1820 Note 2 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 (1994) 30 CA4th 366, 376; see also People v. Cratty (1999) 77 CA4th 98.) 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 1750 Note 1.)
CALJIC NOTE: See FORECITE F 14.37 n2.
F 1820 Note 3 Unlawful Vehicle Taking (VC 10851): Auto Tampering (VC 10852) As Lesser Included
[See Brief Bank # B-863forbriefing on this issue.]
CALJIC NOTE: See FORECITE F 14.37 n5.
F 1820 Note 4 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 (1964) 228 CA2d 716.)
NOTE: See FORECITE F 14.37 n4 [ALERT: Legislative Changes To Auto Theft And Related Statutes].
CALJIC NOTE: See FORECITE F 14.37 n1.
F 1820 Note 5 Auto Taking: Accessory After The Fact Liability
See U.S. v. Vidal (9th Cir. 2007) 504 F3d 1072, 1084 [enumeration of principal liability per CC 1820 “in no way impedes a prosecution under [VC] 10851(a) as an accessory after the fact, with an appropriately modified jury instruction].
F 1820 Note 6 Presumption Of Embezzlement Improper In VC 10851 Case
Embezzlement is a form of theft. (PC 490a [“Wherever any law or statute of this state refers to or mentions larceny, embezzlement, or stealing, said law or statute shall hereafter be read and interpreted as if the word ‘theft’ were substituted therefor”]; People v. Love (2008) 166 CA4th 1292, 1300; People v. Stanfill (1999) 76 CA4th 1137, 1143.) The court therefore should not instruct the jury with a presumption embezzlement when the only charge is a violation of VC 10851. (Cf. People v. Starkey (1965) 234 CA2d 822, 827-829.)
