*1 31, No. 4921. Bank. Mar. [Crim. 1949.] PEOPLE, KEHOE, THE Respondent, v. J. JAMES
Appellant. Raymond McClure, appointment Supreme under Court, Appellant. for Howser, Attorney General, Maier,
Fred N. and Doris H. Attorney Deputy General, Respondent. for EDMONDS, jury James J.Kehoe J. was convicted grand the crimes of theft with- out the permission imposed of the owner. The sentence for imprisonment each of these prescribed offenseswas term appeal law. His judgment, and from order denying trial, his presents only motion for a new for decision sufficiency support evidence to both of the crimes. grand count in first with the information theft “wilfully, unlawfully, feloniously he did carry (Pen. ...” away one motor vehicle.
steal, take alleged that Kehoe §487.) By a count it was second “wilfully, unlawfully and day, the same did “on about” feloniously vehicle . . . not own drive take motor his thereof, and . . . without the consent of owner crime, (Veh. Code, 503.) Bach ...” absence of the owners. § *2 in Humboldt according to information was committed County. upon trial, pleas guilty and, prose entered of not
Kehoe Dale B. Kortie left an evidence that cution offered recently pur on Eureka. Kortie had automobile a in street the certifi George Nelson, R. who retained chased the car from part security payment as of ownership cate of having purchase and Nelson denied ever price. Both Kortie given having permission him drive the auto Kehoe to seen presence in The Kehoe's Eureka mobile. established at registration a local at time the car was taken his a watch on proof pawned he camera and there hotel preliminary day. story, own as related the same at His trial, although it hearing and admitted evidence on into strongly many explanations, earlier was conflicted with of his with man drinking had in a bar in Eureka that he been they whom he as When were “both two identified “Chuck.” going. wind,” to the him where he was sheets “Chuck” asked way Angeles said he was on to and “Chuck” his Los. trip. then offered him the car for the While Kehoe use of his packed belongings, his him returned in “Chuck” left got car about minutes with the automobile. Kehoe of where town, and “Chuck” drove him the to outskirts But Kehoe not “Chuck” left him to continue on alone. produ did ce identify nor he to him Chuck” as witness was able story. or otherwise his substantiate taken, Salinas, police was the automobile week after One while he was Eureka, arrested Kehoe 400 miles about as to his where- evidence There no definite is the car. testimony includes record interim, but the during the abouts at a left his watch service specified, he had not that, at a time gasoline. It was Healdsburg security for some station through Oakland, where he traveled that Kehoe also shown no again, there is evidence property, pawned personal some long how remained. time he was there or establish grounds upon three as the basis Kehoe states for his attack pursuant finding to the judgment entered verdicts charged against guilty each the offenses him. He of of asserts: (1) that the evidence does not sustain the verdicts on both counts; (2) stating its court erred instructions counts, might (3) that he be convicted that the on both judgment should reversed rather than sub- modified. stance, evidence, position Kehoe’s that the insofar as it is charges material information, to the shows but one criminal act, and that conviction both counts constitutes imposition punishment, prohibited by of double section 654 attorney general the Penal The Code. framed the has issue in offenses,” that, terms argues of “included under the authorities, section 503 of the Vehicle an Code not offense grand included within the crime theft as defined by section 487 Code. doctrine included offenses part is a the con guarantee against
stitutional jeopardy. (Cal. Const., I, 13.) art. implements Section of the Penal Code § guarantee by providing prior that a is a bar ‘‘ subsequent prosecution for the same offense or necessarily included therein.” In determining whether applicable specific situation, necessary it is first *3 to determine given crime, by whether a necessarily definition, and at all times (See is included within another one. discus sion in People Greer, v. 30 589, 512].) Cal.2d 595 [184 But although given a not “necessarily crime is included” purpose for the of jeopardy within another one the double statute, the under certain circumstances conviction of both justified. recognizes crimes cannot Penal be The Code 654, principle in “An section which declares: or omission act ways punishable by pro which is made in different different may punished visions of this code be under either of such provisions, punished but in no can case it be than under more question one. ...” This section is not concerned with the of particular crime, abstract, necessarily whether the in the and always one, rather, within is another it is di included question punish rected to spe the of whether two statutes one Accordingly, act cific of the defendant. the here whether, presented for decision is under the facts shown in being may reviewed, the record now punished both for the of section the violation 503 of Vehicle and for Code grand theft, the crime of of which was also convicted. gradual There is a differentiation substance between (the crimes section of the defined 499b so- Code “joy-ride 503 statute”), called section of the Vehicle section of the Penal Code. The first 487 of these statutes 714 temporarily using
defines as a crime the act of or an of 503 automobile without the consent the owner. Section if the makes such conduct an offense done in the absence of deprive temporarily perma- owner with intent the or nently possession. of or Section declares that the theft title requires deprive automobile, of an which an intent to the owner permanently property to appropriate of its value and to the taking it, use a person the and benefit of the is crime. Section misdemeanor; 499b classifies the defines as the other crime it two crimes are made The violation of section is felonies. punishable by years in the imprisonment for from one to five county by state prison, year imprisonment one the by jail, exceeding a fine not both such fine $5,000, or imprisonment. punishment theft of an automo- The bile, 487, is imprisonment defined section state prison for years. from one to ten part general legislative three are
Obviously the statutes prevent conceived to protection punishment plan of without the owners’ consent. taking or use of correspond with the fixed to intent punishment Different committed, legislation but the each offense with which they single Insofar as relate against one evil. directed permission automobile without act and section 487 Vehicle Code owner, 503 of the subject punishment. but one offender to Penal Code attorney general squarely not does meet position of claiming by Kehoe, protection who is points relied against punishment Penal Code of the of section 654 justify dual endeavoring to The State is the same act. specified in section 503 that the offense grand theft, and is not included within Vehicle Code question. People v. upon that cases several discusses Jef it was said Cal.App.2d 801, 807-8 fries, “ form offenses in substance [b]oth neces but this conclusion was not distinctly different,” are People analysis is found in A sary opinion. sounder (approved in Stovall, Cal.App. 635 P. 576] *4 268]), P.2d where the court Smith, Cal.App. 530 117 [4 was separate included offenses as that no issue to observed only was by but, contrary, the there appeal on raised the support sufficiency concerning the evidence to the question the conviction. People Smith, supra, People decisions, aside from v. Two authority general attorney Jeffries, supra, are cited the v.
715 503 proposition for the that the violation of 487 of included within section Vehicle Code not an offense Connell, Cal.App.2d them, One'of In re 68 Code. 483], 360 the determination that P.2d concerned [156 criminal, language and the relied defendant was habitual most, was, Bean, one, People on v. at dictum. The other Cal.App.2d 379], upon was decided facts substantially present the same as those of the case and the punishment rejected contention was as to double after a refer ence to the doctrine of included offenses and the citation People Jeffries, supra. v. it Insofar as considers the contrary punishment, opinion in Bean ease is to the disapproved. rule here stated and is Cuevas, Cal.App.2d also attorney general, quite cited was decided evidence different from in present There, case. the defendant was convicted of a violation of section 503 committed more years than three after the theft of the automobile which he charged was operating with illegally. rejected The court contention that the bar of the statute of limitations as to a prosecution equally for theft applicable charge was the violation of section 503 of noting the Vehicle Code after larceny that “the crime of of the automobile had been com- pleted, subsequent act driving the defendant in [and] the automobile without the consent entirely of its owner was separate and disconnected original from the theft of it.”
The record here under review shows a completed theft in Eureka and Kehoe’s arrest one week driving later while evidence, in Upon automobile Salinas. might also have prosecuted been Monterey County without permission. the owner’s (People Cuevas, supra.) attorney general attempts justify to the dual convictions “ by stating ppellant apprehended was not with [a] car until many he was away hundred miles from the scene original taking days and several later,” and he also refers “appellant’s subsequent utilizing acts of the car as he did.” But information that each was committed on day about the same County, Humboldt and, in any the absence of evidence a substantial break between Kehoe’s and his use of the automobile county, only the conviction for one offense sustained.
Accordingly, although proper it was charge Kehoe with both crimes the information and the support record would *5 error for the court to them, it was
his conviction of either of finding guilty both offenses. Since he judgment enter a grand theft, lesser crime of violation guilty of was found merged into that conviction. be said to have of section concurrently, to run Although were ordered the sentences court here- “preclude judgments of the trial the dual any disadvantage detriment to the working possible or after fixing term of the of his definite defendant later [Adult 453, 458 Authority]” (People Craig, 17 Cal.2d a vio- guilty it finds Kehoe 403]), judgment, insofar as reversed with di- 503 of the Vehicle lation of section two informa- trial court to dismiss count of the rections respects, judgment is affirmed as is also tion. all other denying a new trial. the order J., Spence, J., Gibson, J., Traynor, Schauer, J., and C. concurred. my opin- it is
CARTER,. judgment, I concurin the J. Cuevas, Cal.App.2d that ion majority opinion, unsound and should be dis- cited in the day approved. effect, that each a car is driven holds, It offense, is, without the owner’s consent constitutes a new section 503 of the Vehicle Code creates a continuous offense. provides any person who “drives” That section guilty the owner is “takes” a vehicle without the consent of implies complete of a violation thereof. That that the crime is once the car has been driven. Where there is a continuous driving vehicle, transaction from the first there should day not be a new each car driven. To so hold greater would susceptible penalty render such an offender plainly than the theft of a car which was not the intent of the Legislature. provides It will be noted that the section Certainly either is a violation. there is not taking every day a new possession the vehicle remains in the of the defendant.