IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S111662
v.
) Ct.App.
5
F039071
RICARDO MONTOYA,
Kern
County
Defendant and Appellant.
Super. Ct. No. SC082478A
California law prohibits convicting a defendant of two offenses arising
from a single criminal act when one is a lesser offense necessarily included in the
other. Here, the Court of Appeal held that unlawful taking of a vehicle (Veh.
Code, § 10851) is not a lesser included offense of carjacking (Pen. Code, § 215)1
and affirmed defendant’s convictions of both offenses. We agree.
I
Responding to a newspaper advertisement, defendant came to Amanda
Locke’s home in Kern County to see a car she was selling, a 1994 Jeep. After
inspecting the car, defendant asked Locke to take him for a ride. About one-half
mile from Locke’s house, defendant asked her to pull over so he could drive.
Locke complied. Defendant got in the driver’s seat, but as Locke was entering the
1
Further undesignated statutory references are to the Penal Code.
1
passenger side, defendant pulled a gun, ordered her out of the car, and drove off.
Locke telephoned police from a nearby house. Bakersfield police officers pursued
defendant in a high-speed chase into Los Angeles County, where they arrested
him.
A jury convicted defendant of carjacking (§ 215), unlawful taking of a
vehicle (Veh. Code, § 10851), and reckless flight from pursuing peace officers
(Veh. Code, § 2800.2), and it found true a prior prison term allegation (§ 667.5,
subd. (b)). For the conviction of unlawfully taking a vehicle, the trial court stayed
a four-year prison sentence (§ 654). On the other counts, the court sentenced
defendant to a state prison term of 10 years and 8 months.
II
In California, a single act or course of conduct by a defendant can lead to
convictions “of any number of the offenses charged.” (§ 954, italics added;
People v. Ortega (1998) 19 Cal.4th 686, 692.) But a judicially created exception
to this rule prohibits multiple convictions based on necessarily included offenses.
(People v. Ortega, supra, at p. 692; People v. Pearson (1986) 42 Cal.3d 351, 355.)
In deciding whether an offense is necessarily included in another, we apply
the elements test, asking whether “ ‘all the legal ingredients of the corpus delicti of
the lesser offense [are] included in the elements of the greater offense.’ ” (People
v. Lopez (1998) 19 Cal.4th 282, 288.) In other words, “if a crime cannot be
committed without also necessarily committing a lesser offense, the latter is a
lesser included offense within the former.” (Ibid.)
2
Here, the greater offense, that is, the offense with the most elements, is
carjacking. The lesser offense, which is the one with the fewest elements, is
unlawfully taking a vehicle.2
“ ‘Carjacking’ is the felonious taking of a motor vehicle in the possession
of another, from his or her person or immediate presence, or from the person or
immediate presence of a passenger of the motor vehicle, against his or her will and
with the intent to either permanently or temporarily deprive the person in
possession of the motor vehicle of his or her possession, accomplished by means
of force or fear.” (§ 215, subd. (a).) Unlawful taking of a vehicle, by contrast, is
committed when a person “drives or takes a vehicle not his or her own, without the
consent of the owner . . . and with intent either to permanently or temporarily
deprive the owner . . . of his or her title to or possession of the vehicle, whether
with or without intent to steal the vehicle.” (Veh. Code, § 10851, subd. (a).)
The Court of Appeal here concluded that the unlawful taking of a vehicle
was not a lesser included offense of carjacking. It explained: “Carjacking is a
crime against the possessor or passengers in a vehicle. [Unlawful taking of a
vehicle] is a crime against ownership.” We agree. Applying the elements test to
the two offenses here, the crime of unlawfully taking a vehicle is not a lesser
included offense of carjacking because a person can commit a carjacking without
necessarily committing an unlawful taking of a vehicle.
2
The offense of unlawfully taking a vehicle, defined in Vehicle Code section
10851, subdivision (a), is sometimes called “vehicle theft.” Because the crime
requires only the driving of a vehicle (not necessarily a taking) and an intent only
to temporarily deprive the owner of the vehicle, it is technically not a “theft.” (See
§ 484; CALJIC No. 14.02.)
3
The following example illustrates that point: Joe knows that his neighbor
Mary’s car has been stolen and that she is offering a reward for its return. If Joe
spots an unfamiliar person driving Mary’s car and orders that person out at
gunpoint and then drives off, intending to return the car to Mary and secure the
reward, he would be guilty of carjacking but not of an unlawful taking of a
vehicle. Although Joe had the intent to deprive the driver of possession, as
required for carjacking (§ 215), he lacked the intent to deprive the owner of title or
possession, as required for unlawful taking of a vehicle (Veh. Code, § 10851).3
Defendant argues that even if the elements test for lesser included offenses
is not met with respect to the two offenses here, the crime of unlawfully taking a
vehicle does constitute a lesser included offense of the crime of carjacking under
the “accusatory pleading” test. That test looks to whether “the charging
allegations of the accusatory pleading include language describing the offense in
such a way that if committed as specified [some] lesser offense is necessarily
committed.” (People v. Lopez, supra, 19 Cal.4th at pp. 288-289.) Generally,
courts use that test to determine whether to instruct a jury on an uncharged lesser
offense. (See People v. Birks (1998) 19 Cal.4th 108, 117; People v. Lohbauer
(1981) 29 Cal.3d 364, 368-369; People v. Marshall (1957) 48 Cal.2d 394, 405-
407.) Some Court of Appeal decisions have concluded that the accusatory
pleading test, which “protects the defendant’s due process right to adequate notice
before being convicted of a lesser offense instead of the charged offense
3
Because this hypothetical is sufficient to dispose of defendant’s contention
that the crime of unlawfully taking a vehicle is a lesser included offense of
carjacking under the elements test, we need not consider the applicability of the
claim of right defense to the carjacking statute. (See People v. Tufunga (1999) 21
Cal.4th 935 [holding that in the robbery statute, “felonious taking” incorporated
the “claim of right” defense].)
4
[therefore] does not apply to considerations of whether multiple convictions are
proper.” (People v. Miranda (1994) 21 Cal.App.4th 1464, 1467; accord, People v.
Scheidt (1991) 231 Cal.App.3d 162, 165-171; People v. Watterson (1991) 234
Cal.App.3d 942, 947, fn. 15.) We need not decide here whether these decisions
are correct because applying the accusatory pleading test in this case does not
assist defendant.
Consistent with the primary function of the accusatory pleading test – to
determine whether a defendant is entitled to instruction on a lesser uncharged
offense – we consider only the pleading for the greater offense.4 The greater
offense here is carjacking, which alleged in count I: “On or about May 11, 2001,
Richard Montoya, did willfully and unlawfully take a motor vehicle in the
possession of another or from the person or immediate presence of a passenger of
the vehicle; namely a 1994 Jeep vehicle belonging to Amanda Locke, against their
[sic] will, by means of force or fear with the intent to permanently or temporarily
deprive the person in possession of the motor vehicle, in violation of Penal Code
section 215(A), a felony.” (Italics added.) Although the accusatory pleading
identifies Amanda Locke as the Jeep’s owner, it does not say whether Locke or
someone else had possession of the Jeep when it was unlawfully taken, and it does
not mention that the taking was without Locke’s (the owner’s) consent, saying
only that it was “against the[] will” of the unnamed person in possession. Thus the
pleading for the greater offense of carjacking in this case does not also include the
4
We disapprove People v. Rush (1993) 16 Cal.App.4th 20 to the extent it
held otherwise.
5
requisite allegations for the lesser offense of unlawfully taking a vehicle, which
requires proof that the taking of a vehicle was without its owner’s consent.5
DISPOSITION
We affirm the judgment of the Court of Appeal.
KENNARD, J.
WE CONCUR:
GEORGE, C. J.
BAXTER, J.
CHIN, J.
BROWN, J.
MORENO, J.
5
Nothing before us suggests that the prosecutor deliberately omitted
information from the allegations for carjacking so as to avoid including the facts
necessary for the unlawful taking of a vehicle and to thereby subject defendant to
conviction for both offenses.
6
CONCURRING OPINION BY WERDEGAR, J.
I agree with the majority’s conclusion and with its analysis as far as it goes.
I write separately to address what the majority declines to address: defendant’s
potentially dispositive argument based on People v. Tufunga (1999) 21 Cal.4th
935 (Tufunga), made in support of his claim that an unlawful taking of a vehicle
(Veh. Code, § 10851), is a lesser included offense of carjacking (Pen. Code,
§ 215).
In
Tufunga, we held that under Penal Code section 211 (the robbery
statute), a claim of right continues, as at common law, to constitute a defense to
robbery. (Tufunga, supra, 21 Cal.4th at p. 950.) In reaching that conclusion, we
observed that, at common law, a claim of right was recognized as a defense to
both larceny and robbery: to larceny because a claim of right was deemed to
negate the felonious-intent-to-steal element of the offense, and to robbery because
that offense was viewed as simply an aggravated form of larceny. (Id. at p. 945.)
Construing the plain language of the theft and robbery statutes, we concluded that
“by adopting the identical phrase ‘felonious taking’ as used in the common law
with regard to both offenses, the Legislature in all likelihood intended to
incorporate the same meanings attached to those phrases at common law.” (Id. at
p. 946.)
Here, the carjacking statute, like the robbery statute, by its terms applies to
the “felonious taking” of a vehicle by force or fear. (Pen. Code, § 215, subd. (a).)
Defendant’s argument is that, pursuant to the reasoning in Tufunga, supra, 21
Cal.4th 935, “felonious taking” in the carjacking statute presumably means the
same as in the robbery statute. (See People v. Lopez (2003) 31 Cal.4th 1051,
1
1060-1061 [“Because the ‘felonious taking’ in the crime of robbery has an
established meaning at common law and the same ‘taking’ language appears in the
carjacking, robbery, and unlawful taking or driving of a vehicle statutes, we
presume that the Legislature intended the same meaning, unless a contrary intent
clearly appears”]; see also People v. Lopez (1891) 90 Cal. 569, 571 [“feloniously”
when not otherwise defined is construed to have its common law meaning].)
Accordingly, “the felonious taking or animus furandi element common to theft
and robbery” (Tufunga, supra, at p. 946) is an element of carjacking. That
element is the “[i]ntent to steal, or feloniously to deprive the owner permanently of
his property.” (Black’s Law Dict. (5th ed. 1979) p. 81; see also People v. Avery
(2002) 27 Cal.4th 49, 57-58 [intent to deprive temporarily “but for an
unreasonable time” satisfies intent to deprive permanently].) Since such a
felonious taking is also an element of unlawful vehicle theft or taking (Veh. Code,
§ 10851, subd. (a) [requiring “intent either to permanently or temporarily deprive
the owner”]), one cannot commit a carjacking, defendant argues, without
committing an unlawful vehicle taking; hence, the latter is a lesser included
offense of the former.
Obviously, if defendant is right, the majority is wrong. To render
defendant’s argument in terms of the hypothetical presented by the majority: “If
Joe spots an unfamiliar person driving Mary’s car and orders that person out at
gunpoint and then drives off, intending to return the car to Mary” (maj. opn., ante,
at p. 4), he would not, according to defendant and contrary to the majority, be
guilty of carjacking because, intending to return the car to its owner, he lacks the
“animus furandi—or felonious intent to steal” (Tufunga, supra, 21 Cal.4th at
p. 945) that is an element of the offense. Therefore, if defendant is correct, the
hypothetical would not illustrate that one can commit a carjacking without
necessarily committing an unlawful taking of a vehicle. (See maj. opn., ante, at
pp. 3-4.) Yet the hypothetical is all the majority offers in support of its reasoning
that “the crime of unlawfully taking a vehicle is not a lesser included offense of
2
carjacking because a person can commit a carjacking without necessarily
committing an unlawful taking of a vehicle.” (Id. at p. 3.)
Although I do not believe defendant is right, his argument deserves to be
addressed. Understanding its flaw requires us to distinguish Tufunga. In Tufunga,
as discussed, we held that in adopting the phrase “felonious taking” in the robbery
and theft statutes, the Legislature intended to incorporate into those statutes the
common law meaning of the phrase. (Tufunga, supra, 21 Cal.4th at p. 946.) To
extend that holding so as to govern carjacking, also defined as a “felonious
taking,” would run contrary to the legislative intent underlying the enactment of
the carjacking statute. The plain language of that statute, wherein the word
“possession” is thrice repeated, makes that intent evident. Carjacking is defined as
the taking of a vehicle from “the possession of another” with the intent to deprive
the person “in possession” of his or her “possession” (Pen. Code, § 215, subd. (a)).
To require for a carjacking conviction, as defendant would have it, that the
defendant have intended to deprive the vehicle owner of the vehicle or its value,
based on the statute’s introductory “felonious taking” phraseology, would
contravene the Legislature’s evident intent to create, as the Court of Appeal
recognized, “a crime against the possessor or passengers in a vehicle,” not a crime
against ownership. Contrary to our reasoning about the robbery statute in
Tufunga, the Legislature in referring to carjacking as a “felonious taking”
apparently did not intend that phrase to carry the same meaning it had at common
law.
This conclusion is consistent with the historic fact that the carjacking
statute, enacted in 1993 (Stats. 1993, ch. 611, § 6, p. 3508), responds to a
relatively modern, urban problem, whereas the robbery statute (Pen. Code, § 211)
was enacted in the mid-19th century. (See Tufunga, supra, 21 Cal.4th at p. 946.)
That the statutes are of such disparate origin further supports the conclusion that in
the carjacking statute, unlike the robbery statute in Tufunga, the Legislature did
3
not intend simply to incorporate the narrow common law understanding of
“felonious taking.”
Although I admire appropriate brevity in judicial opinions, I believe
defendant’s key arguments need to be addressed. Moreover, the majority’s
omission, if unremarked, could lead to unnecessary confusion among litigants and
trial courts who must grapple with carjacking cases.
WERDEGAR, J.
4
CONCURRING OPINION BY CHIN, J.
I agree with the majority that we need not decide whether the so-called
accusatory pleading test applies here, because even that test does not aid
defendant. (Maj. opn., ante, at pp. 4-5.) I write separately only to emphasize the
force of the argument against applying the accusatory pleading test in deciding
whether conviction of two charged offenses is proper.
The accusatory pleading test has been used to determine whether a
defendant received notice of the charges so as to permit conviction of an
uncharged lesser offense. (E.g., People v. Lopez (1998) 19 Cal.4th 282, 288-289,
293, and cases cited.) We have questioned, without deciding, whether the
accusatory pleading test should apply “in other situations.” (People v. Pearson
(1986) 42 Cal.3d 351, 356, fn. 2.) Courts of Appeal have refused to apply that test
in deciding whether multiple conviction of charged offenses is appropriate.
(People v. Miranda (1994) 21 Cal.App.4th 1464, 1467; People v. Watterson
(1991) 234 Cal.App.3d 942, 947, fn. 15; People v. Scheidt (1991) 231 Cal.App.3d
162, 165-171.)
Because a defendant is entitled to notice of the charges, it makes sense to
look to the accusatory pleading (as well as the elements of the crimes) in deciding
whether a defendant had adequate notice of an uncharged lesser offense so as to
permit conviction of that uncharged offense. “As to a lesser included offense, the
required notice is given when the specific language of the accusatory pleading
adequately warns the defendant that the People will seek to prove the elements of
1
the lesser offense.” (People v. Lohbauer (1981) 29 Cal.3d 364, 368-369.) But it
makes no sense to look to the pleading, rather than just the legal elements, in
deciding whether conviction of two charged offenses is proper. Concerns about
notice are irrelevant when both offenses are separately charged, so there “appears
little reason” to apply the pleading test to charged offenses. (People v. Pearson,
supra, 42 Cal.3d at p. 356, fn. 2.)
CHIN,
J.
I CONCUR:
BAXTER, J.
2
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Montoya
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 103 Cal.App.4th 25
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S111662Date Filed: August 9, 2004
__________________________________________________________________________________
Court:
SuperiorCounty: Kern
Judge: Richard J. Oberholzer
__________________________________________________________________________________
Attorneys for Appellant:
Athena Shudde, under appointment by the Supreme Court, for Defendant and Appellant.__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves,Assistant Attorney General, Leahann Alcazar, Brian G. Smiley, Robert P. Whitlock and William K. Kim,
Deputy Attorneys General, for Plaintiff and Respondent.
1
Counsel who argued in Supreme Court (not intended for publication with opinion):
Athena Shudde1762 Columbia Street
San Diego, CA 92101
(619) 234-2266
William K. Kim
Deputy Attorney General
2550 Mariposa Mall, Room 5090
Fresno, CA 93721
(559) 444-2411
2
1
| Date: | Docket Number: |
| Mon, 08/09/2004 | S111662 |
| 1 | The People (Plaintiff and Respondent) Represented by William K. Kim Attorney General's Office 2550 Mariposa Mall, Room 509 Fresno, CA |
| 2 | Montoya, Ricardo Elizalde (Defendant and Appellant) California Men's Colony Represented by Athena Shudde Attorney At Law 1762 Columbia Street San Diego, CA |
| Disposition | |
| Aug 9 2004 | Opinion: Affirmed |
| Dockets | |
| Nov 26 2002 | Petition for review filed by counsel for appellant (Ricardo Elizalde Montoya) |
| Nov 26 2002 | Record requested |
| Nov 27 2002 | Received Court of Appeal record One doghouse. |
| Jan 15 2003 | Petition for Review Granted (criminal case) Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ. |
| Jan 16 2003 | Note: |
| Jan 24 2003 | Counsel appointment order filed Upon request of appellant for appointment of counsel, Athena Shudde is hereby appointed to represent appellant on his appeal now pending in this court. Appellant's brief on the merits shall be served and filed on or before thirty (30) days from the date of this order. |
| Feb 19 2003 | Request for extension of time filed Appellant's Opening Brief on the Merits to 3/24/2003 |
| Feb 24 2003 | Extension of time granted On application of appellant and good cause appearing, it is ordered that the time to serve and file the Opening Brief on the Merits is extended to and including March 24, 2003. |
| Mar 25 2003 | Opening brief on the merits filed Appellant's [Montoya] CRC 40k/Cert.Mail |
| Apr 16 2003 | Request for extension of time filed (in Fresno) by counsel for respondent (People) for a 30-day extention of time until 5/23/2003, to file the answer brief on the merits. |
| Apr 22 2003 | Extension of time granted On application of respondent and good cause appearing, it is ordered that the time to erve and file the Answer Brief on the Merits is extended to and including May 23, 2003. |
| May 8 2003 | Answer brief on the merits filed in Fresno by respondent (the People). |
| May 13 2003 | Received document entitled: Certificate of Compliance (Word count) for Respondent's Brief on the Merits |
| Jun 2 2003 | Reply brief filed (case fully briefed) Appellant's (CRC 40k) |
| Jan 7 2004 | Supplemental letter briefs requested addressing the effect of People v. Lopez (2003) 31 Cal.4th 1051, on the issue in this case. Letter briefs shall be no more than three pages and are to be filed on or before January 15, 2004. |
| Jan 13 2004 | Supplemental brief filed in Sacramento by respondent |
| Jan 14 2004 | Supplemental brief filed Appellant's |
| May 3 2004 | Case ordered on calendar 5-24-04, 1:30pm, SF. |
| May 24 2004 | Cause argued and submitted |
| Aug 9 2004 | Opinion filed: Judgment affirmed in full Opinion by Kennard, J. -- joined by George, C. J., Baxter, Chin, Brown, and Moreno, JJ. Concurring Opinion by Werdegar, J. Concurring Opinion by Chin, J. -- joined by Baxter, J. [Court of Appeal judgment] |
| Aug 25 2004 | Compensation awarded counsel Atty Shudde |
| Sep 23 2004 | Remittitur issued (criminal case) |
| Sep 30 2004 | Received: receipt for remittitur CA /5, |
| Briefs | |
| Mar 25 2003 | Opening brief on the merits filed |
| May 8 2003 | Answer brief on the merits filed |
| Jun 2 2003 | Reply brief filed (case fully briefed) |
