Opinion
Cr. 5647
10-25-1956
The PEOPLE of the State of California, Plaintiff and Respondent, v. Clyde Robert MARSHALL, Defendant and Appellant.*
Robert W. Herrick, Los Angeles, for appellant. Edmund G. Brown, Atty. Gen., and Arthur L. Martin, Deputy Atty. Gen., for respondent.
The PEOPLE of the State of California, Plaintiff and Respondent,
v.
Clyde Robert MARSHALL, Defendant and Appellant.*
Oct. 25, 1956.
Rehearing Denied Nov. 9, 1956.
Hearing Granted Nov. 21, 1956.
Robert W. Herrick, Los Angeles, for appellant.
Edmund G. Brown, Atty. Gen., and Arthur L. Martin, Deputy Atty. Gen., for respondent.
VALLEE, Justice.
By information defendant was charged with robbery, Pen.Code, § 211, in that on October 3, 1955 he 'did wilfully, unlawfully, feloniously and forcibly take from the person and immediate presence of Jack J. Martens, the following described personal property, to wit, Seventy Dollars ($70.00) in money, lawful money of the United States, and an automobile of the value of Eight Hundred Dollars ($800.00), lawful money of the United States, all of the value of Eight Hundred Seventy Dollars ($870.00), lawful money of the United States, in the possession of Jack J. Martens, which said taking was then and there without the consent and against the will of the said Jack J. Martens, and was then and there accomplished as aforesaid by the defendant by means of force used by said defendant upon and against the said Jack J. Martens, and by said defendant then and there putting the said Jack J. Martens in fear.'
Defendant was convicted by the court, sitting without a jury, of a violation of section 503 of the Vehicle Code on the theory that the offense denounced by that section is an offense necessarily included in the crime of robbery.
Defendant's only assignment of error is that a violation of section 503 of the Vehicle Code is not an offense necessarily included in the crime of robbery.
On October 3, 1955, about 2:30 a. m., defendant and Jack Martens drove to a motel in Martens' automobile. They pulled up in front of the manager's office. As Martens was about to get out of the car defendant struck him on the top of the head from behind. There was no one else in the car or in the motel yard at the time. Martens was unconscious for a few seconds. When he revived, defendant had gotten out of the car and was pulling at his clothes. Martens reached for him and held onto his clothes. Defendant started pounding Martens on the back of his head, his back, and his neck. Martens called for help. The proprietor of the motel heard him and ran to the door of his apartment. Defendant broke loose from Martens' grasp, jumped in his (Martens') car, turned on the ignition, and drove away. Seventy dollars was missing from Martens' pocket. The police apprehended defendant driving the car a short time later. The $70 was not found on him.
Penal Code, section 211, reads: 'Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.'
Vehicle Code, section 503, so far as relevant, reads: 'Any person who drives or takes a vehicle not his own, without the consent of the owner thereof, and with intent to either permanently or temporarily deprive the owner thereof of his title to or possession of such vehicle, whether with or without intent to steal the same, * * * is guilty of a felony * * *.'
Penal Code, section 1159, reads: 'The jury, or the judge if a jury trial is waived, may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense.'
The positions of the respective parties are these: defendant argues that a necessarily included offense is one that of necessity 'in every case and always, must be truly a part of the offense charged'; and since a violation of section 503 is not always a part of robbery, but may be committed separate and apart from robbery, it is not necessarily included in robbery. The People argue that although a violation of section 503 may not be necessarily included in every robbery, since it may be a part of some robberies it is a necessarily included offense.
The test for determining whether one offense is necessarily included in another was restated by the Supreme Court in the recent case of In re Hess, 45 Cal.2d 171, 288 P.2d 5. The court said, 45 Cal.2d at page 174, 288 P.2d at page 7: "The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.' People v. Greer, 30 Cal.2d 589, 596, 184 P.2d 512, 516; see also People v. Kehoe, 33 Cal.2d 711, 713, 204 P.2d 321.'
In People v. Greer, 30 Cal.2d 589, 184 P.2d 512, the defendant was charged with statutory rape, Pen.Code, § 261(1), and lewd and lascivious conduct, Pen.Code, § 288, arising out of the same act. In a previous trial he was charged not only with these identical offenses but also with contributing to the delinquency of a minor, the same person on whom the rape and lewd and lascivious conduct were alleged to have been committed. Welf. & Inst.Code, § 702. In that trial he was found guilty of violating section 702, but the jury disagreed as to the counts of statutory rape and lewd and lascivious conduct. In the second trial he pleaded double jeopardy and offered to prove the conviction under section 702. The offer was refused. On review he contended the refusal constituted reversible error. After stating the test of a necessarily included offense, as repeated in In re Hess, supra, 45 Cal.2d 171, 288 P.2d 5, the court stated, 30 Cal.2d at page 597, 184 P.2d at page 517: 'In the light of this rule, ['A conviction of the lesser is held to be a bar to [the] prosecution for the greater on the theory that to convict of the greater would be to convict twice of the lesser.'] the error of the trial court in this case is apparent. Statutory rape section 2621(1)) and lewd and lascivious conduct (section 288) are offenses against minors under 18 and 14 years of age respectively, whereas section 702 protects minors under 21. Consequently, the age groups covered by sections 261(1) and 288 of the Penal Code are necessarily included within the age group covered by section 702 of the Welfare and Institutions Code. It is inconceivable that the acts described in section 261(1) and 288 would not contribute to the delinquency of a minor. [Citations.] Since every violation of sections 261(1) and 288 is also a violation of section 702, the offense defined in the latter is an offense necessarily included in the offenses defined in sections 261(1) and 288. [Citation.] 'Respondent contends, however, that all three of the offenses involved herein contain different elements. It is true, that each offense is stated differently in the codes and that defendant could have contributed to the delinquency of a minor without committing statutory rape or a lewd and lascivious act. [Citation.] Nevertheless, the converse is not true. We are holding, not that these offenses are identical, but that every violation of sections 261(1) and 288 necessarily constitutes a violation of section 702 and that therefore the offense defined in section 702 is an offense necessarily included in the offenses defined in section 261(1) and 288.'
In People v. Cuevas, 18 Cal.App.2d 151, 63 P.2d 311, it was held that a violation of section 503 may be a distinct offense from theft of the vehicle, Pen.Code, § 484; that where it appears the crime of larceny had been fully completed, the subsequent act in driving the vehicle without the consent of the owner was entirely separate and disconnected from the original theft of it. Also see People v. Jeffries, 47 Cal.App.2d 801, 807, 119 P.2d 190; In re Connell, 68 Cal.App.2d 360, 364, 156 P.2d 483. People v. Crawford, 115 Cal.App.2d 838, at page 841, 252 P.2d 963, says that grand theft of an automobile, which requires an intent to steal, includes a violation of section 503 which may or may not be with an intent to steal.
People v. Pearson, 41 Cal.App.2d 614, at page 618, 107 P.2d 463, at page 465, held that, 'The crime of violating section 503 of the Vehicle Code is not included in the crime of robbery or attempted robbery, the elements necessary to be proved being different in each offense.' At the time Pearson was decided, section 503 read: 'Any person who drives or takes a vehicle not his own, without the consent of the owner thereof and in the absence of the owner,' etc. In 1947 the words 'and in the absence of the owner's were deleted.
Consideration of the foregoing points to the conclusion that a violation of section 503 of the Vehicle Code is not necessarily included in the crime of robbery. The reasoning of People v. Greer, supra, 30 Cal.2d 589, 184 P.2d 512, and In re Hess, supra, 45 Cal.2d 171, 288 P.2d 5, is that every robbery must necessarily constitute a violation of section 503 in order that the latter be included in the former.
Every violation of section 211 of the Penal Code is not also a violation of section 503 of the Vehicle Code. Robbery can be committed without necessarily violating section 503. A person may drive or take a vehicle not his own, without the consent of the owner, without doing so from his immediate presence and without doing so by means of force or fear.
Since defendant was not charged in the information with a violation of section 503 of the Vehicle Code and since it is not necessarily included in the offense charged, the court acted in excess of its jurisdiction in entering a judgment of conviction of that offense against him. In re Hess, supra, 45 Cal.2d 171, 175, 288 P.2d 5.
Defendant also appealed from a nonexistent verdict. Since trial by jury was waived, there was no verdict.
The appeal from the nonexistent verdict is dismissed. The judgment is reversed.
SHINN, P. J., and PARKER WOOD, J., concur. --------------- * Opinion vacated 309 P.2d 456.