NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County, Super. Ct. No. F05909432-7, Franklin P. Jones, Judge.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Ruth M. Saavedra, Deputy Attorneys General, for Plaintiff and Respondent.
HARRIS, Acting P.J.
Appellant Derick Ryan Johnson was convicted of count I, unlawful taking or driving a vehicle (Veh. Code, § 10851, subd. (a)), based on his conduct of breaking into a Honda, cracking the steering column, and backing it out of a parking space behind an apartment building. He was unable to drive away in the Honda because the steering wheel was still locked, so he left it in the middle of the parking lot. He was also convicted of count II, attempted unlawful taking or driving a vehicle (Pen. Code, § 664; Veh. Code, § 10851), based on his conduct of coming back to the parking lot with the intent to use his tools, break the steering wheel lock, and drive away with the car. On appeal, he contends count II must be reversed because there is insufficient evidence of an attempt, instructional error, and count II is a lesser included offense of count I. We also requested briefing on whether the sentence imposed for count II violated Penal Code section 654.
All further statutory citations are to the Vehicle Code unless otherwise indicated.
The instant case presents a close question as to whether appellant was properly convicted of an attempt, given the specific facts and circumstances of this case. We will affirm appellant’s conviction for count II, but the sentence imposed for that count must be stayed.
STATEMENT OF THE CASE
On February 6, 2006, an information was filed in the Superior Court of Fresno County charging appellant and codefendants Gregory Ryan Adams and Ryan James Grover, with count I, unlawful taking or driving a vehicle (Veh. Code, § 10851, subd. (a)); count II, attempted unlawful taking or driving a vehicle (Pen. Code, § 664; Veh. Code, § 10851); and count III, misdemeanor possession of burglar’s tools (Pen. Code, § 466).
On April 13, 2006, appellant’s jury trial began. On April 21, 2006, appellant was convicted of all counts.
On May 25, 2006, the court denied probation and sentenced appellant to the midterm of two years for count I, a consecutive term of four months (one-third the midterm) for count II, and time served for count III, for an aggregate term of two years four months.
On the evening of December 20, 2005, appellant, 23-year-old Ryan Grover, and 25-year-old Greg Adams were at Grover’s apartment in Clovis. Appellant owned a 1980’s era Mustang and previously had it towed to Grover’s apartment, where he was staying at the time. Appellant wanted to fix the Mustang so that Grover could buy it. They spent the evening working on the Mustang and sharing a small amount of crystal methamphetamine.
Grover and Adams testified as prosecution witnesses and generally agreed to the events of that night, with a few exceptions. For example, Grover testified they all used methamphetamine, while Adams testified he never used drugs that night. Grover had prior misdemeanor convictions for misdemeanor giving a false name to a police officer in 2001, and auto theft in 1999.
Around midnight, appellant, Grover, and Adams realized they needed additional parts for the Mustang. Appellant and Grover talked about stealing a car to get the needed parts, and Adams agreed to drive them. Adams and Grover did not know how to steal a car so they decided to act as lookouts. Appellant said he would steal the car because he knew how to do it. They decided to drive around the area and look for a Honda because appellant said it was easier to steal a Honda. They planned to steal a Honda, sell the parts, and use that money to purchase parts for the Mustang. They also discussed the need to have some tools, so they brought along some screwdrivers and a slide-hammer (also known as a “dent puller”) from Grover’s apartment. There were already some screwdrivers and gloves in Adams’s car.
Adams claimed he did not know the gloves and screwdrivers were in his car but admitted they “could have been.”
Sometime around 2:30 a.m., appellant, Grover, and Adams got into Adam’s small black two-door Mazda coupe, and placed the slide-hammer and screwdrivers in the car. Adams was the driver, Grover sat in the front passenger seat, and appellant sat in the back seat. Adams testified he drove to his own apartment and they went inside for about 10 minutes, but he did not recall what they did.
Adams then drove through the parking areas of nearby apartment complexes and they looked for a car to steal. They saw a small hatchback and Adams stopped. Appellant and Grover got out of the Mazda and looked over the hatchback. Appellant decided it was not worth taking because it was being worked on, and they resumed their search.
Adams testified that no one talked about stealing a car, but he was under the impression that appellant and Grover were “going to get parts” for the Mustang. Adams conceded it was “kind of obvious” that they “weren’t going to a store,” and he believed they were going to “a parts car” to finish work on the Mustang, but admitted he realized they were stealing a car.
The First Visit to the Honda (Count I)
Adams continued driving through other apartment complexes, and they noticed a silver Honda parked in a space behind an apartment building on West Alamos, about one and one-half miles from Grover’s apartment. They drove by the Honda two or three times to “scop[e] it out,” and they decided to steal it.
Adams parked his black Mazda next to the silver Honda. Adams remained in his car, and Grover and appellant got out and walked up to the Honda. Grover and appellant stood next to the Honda, and appellant used a screwdriver to pry open the window. Appellant was wearing a pair of white gloves retrieved from Adams’s car. Appellant opened the Honda’s window wide enough so that he could put his arm into the car and unlock the door. Appellant got into the Honda and started the engine, and Grover went back to Adams’s car and continued to act as a lookout. Adams never got out of the Mazda during this incident, and they never pushed the silver Honda out of the parking space.
Grover testified he heard the Honda’s engine start and saw appellant back it out of the parking space. The Honda went straight back and slightly to the left, in an “L” shape. Adams and Grover assumed appellant was going to follow them out of the parking lot, but they realized appellant could only drive the Honda back and forth, and could not drive forward to leave the parking lot. Adams stopped and backed up to the Honda. Appellant got out of the Honda and returned to the Mazda, and reported that he broke the steering column but it was still locked, he could only steer in half circles, and he could not turn the wheel. Adams drove Grover and appellant back to Grover’s apartment. They left the Honda in the middle of the parking lot, exactly where appellant had backed it out and turned in a half-circle.
In the meantime, the activities of the trio came to the attention of Joel Cardona, who lived in the West Alamos apartment complex, adjacent to the rear parking area. Cardona had been asleep but woke up when he heard “rumaging or just noise” from his open bedroom window. Cardona looked outside and saw two cars and three individuals. Someone was in a Honda Civic, with the driver’s door open, and the car window was “fogged up with the dome light on.” Cardona saw this person “going through” the Honda and wearing lighted-colored, possibly white gloves. Another person emerged from the second car, which appeared to be a small black Toyota or Acura. Cardona believed a third person was inside the black car.
Cardona admitted he had a prior conviction for residential burglary in 1996.
Cardona testified the suspects appeared to “push the [Honda] back,” and “that’s where it ended up being. They left it there.” Cardona testified the suspects moved the Honda out of the parking stall, in reverse, it made a 90 degree turn backwards, it ended up facing the opposite direction from the parking stall, and it stopped moving. Cardona was not sure if the engine started or the suspects pushed it out. Cardona testified the person who had been inside the Honda jumped out and got back into the black car, and they left the Honda in the middle of the parking area. The black car drove away from the scene and out of Cardona’s view. Cardona called 911 and reported his observations, and said that he saw three guys “jumping out of one car and pushing it on the back trying to start it.”
The Second Visit to the Honda (Count II)
While Cardona was calling 911, Adams drove back to Grover’s apartment so they could get some tools to break the lock on the steering column. Grover thought he had a tire iron or crowbar, but they could not find anything appropriate. Appellant, Adams, and Grover got back into the Mazda, and appellant decided he would use the slide-hammer, which he already had in the car, to break the lock on the steering column so he could turn the wheel and drive away with the Honda.
A few minutes later, Adams drove back to the apartment complex where they had left the Honda, and slowly pulled into the parking area. The Honda was in the middle of the parking area, which was the same place where they had left it.
At trial, on direct examination, Grover testified that when Adams drove into the parking lot the second time, Adams stopped the car, Grover got out of the front seat to let appellant out, appellant walked up to the Honda, and Grover got back into the car. Grover testified appellant spent a couple of minutes trying to break the lock on the steering column with the slide-hammer but he could not move the steering wheel. Grover testified “[w]e couldn’t get it to work,” and that appellant “tried to turn the wheel with it, extended it out, tried to turn the wheel with it, and it just wouldn’t work, so he left it, the car.” Grover testified that after one or two minutes, appellant gave up and got back into the Mazda, and they intended to leave the area. Grover testified that as Adams drove out of the parking lot, they realized a patrol car had entered the driveway and was following them.
On cross-examination, however, Grover testified he could not remember whether Adams stopped at the Honda during their second visit to the apartment complex’s parking lot. Upon further questioning, Grover testified that he mistakenly said they stopped at the Honda during their second visit, and he had confused their first stop to look at the small hatchback which they decided not to steal, with the first and second trips to the Honda’s location.
Grover clarified that when they returned to the parking area behind the apartment complex, they saw the Honda where they had left it, but they immediately realized they were being followed by a patrol car. Grover testified Adams drove past the Honda without stopping. Grover testified no one got out of the Mazda during their second visit to the Honda’s location behind the apartment complex. Appellant, Adams, and Grover quickly decided to tell the police that they were looking for a certain girl’s apartment. They were pulled over by the police within a few moments.
At trial, Adams testified that when he drove back to the Honda’s location, he immediately realized a patrol car was following him into the parking area. Adams testified he kept driving and did not stop at the Honda, and the trio quickly agreed to say that they were driving around to look for some girls.
In the meantime, Cardona was still in his nearby apartment and watching the parking area. Cardona testified the suspects’s black car returned to the parking area a few minutes after it left. Cardona watched as the black car headed toward the Honda. Cardona saw another pair of headlights behind the black car, and realized a police car was following the black car. Cardona testified the black car did not stop and no one got out of it, the black car continued driving through the parking area and past the Honda, and the police car followed the black car out of the parking area.
At 5:12 a.m., Clovis Police Officer Lonnie Amerjan responded to a dispatch of an automobile theft in progress at the West Alamos apartment complex, and that three suspects in a small, two-door black Acura were trying to steal a grey or silver Honda. Amerjan drove into the alley behind the apartment complex’s parking area and immediately saw a black Mazda, which fit the description of the suspects’ car. Amerjan testified there were three people inside, and the vehicle was stopped with its headlights facing a silver Honda. Amerjan followed the black car as it drove past the Honda and traveled at a quicker rate of speed. Amerjan testified the vehicle pulled out of the parking area, turned onto Villa, and then turned on Santa Ana. Amerjan activated his patrol car’s flashing lights and conducted a traffic stop of the black car.
Officer Amerjan went to the driver’s side and spoke to Adams. Grover was in the front passenger seat and appellant was in the back seat, and Amerjan had all of them stay inside the car because he did not have any backup assistance. Amerjan explained to the trio that a vehicle theft had been reported in the area, and asked whether they lived there. Adams said they did not live there but they were visiting a girl. Amerjan asked for the girl’s name, and Adams said they were going to see “Ashley.” Amerjan asked for the girl’s last name and Adams said he did not know. Amerjan asked Grover and appellant for “Ashley’s” last name and which apartment she lived in. They replied that they just knew her first name and did not know the apartment number.
As Amerjan spoke to the trio, he focused his flashlight into the back seat and noticed one white glove partially covered by appellant’s leg, and another white glove on the floorboard at appellant’s feet. He also noticed a screwdriver, a wrench, and a black glove on the backseat and floorboard.
Once the backup officers arrived, they contacted Joel Cardona, the neighbor who had called 911, who advised the officers that one of the suspects had been wearing white gloves. The officers then asked appellant, Grover, and Adams to step out of Mazda. Grover and Adams complied, but appellant refused and asked why he had to get out of the car. Amerjan explained the Mazda had been involved in a felony and appellant needed to get out of the car. Appellant again refused and Amerjan said he would be arrested for obstruction if he did not get out of the car.
Appellant finally got out of the Mazda, and Amerjan noticed he had been sitting on top of two screwdrivers. Amerjan looked around the Mazda’s interior and noticed that a slide-hammer was partially under the driver’s seat. Based on his experience investigating vehicle thefts, Amerjan recognized the slide-hammer as a device frequently used to break into cars, open the casing around steering columns, and unlock ignitions and steering wheels. The tip of the screw on the slide-hammer was broken off. He also recognized a screwdriver with a bent head as a device frequently used to open a car door. Amerjan found a blue glove on the front passenger floorboard.
Officer Amerjan testified that appellant was searched and found in possession of a GMC key with a black handle, and an “Elko” brand key with the number “Y154.” Amerjan explained the keys were known as “shaved-type” keys, commonly used “either to defeat the locking mechanism to gain entry into the vehicles or to defeat the ignition system to start vehicles,” including Honda Civics and Accords.
The officers escorted Joel Cardona to the area where the suspects and the black Mazda were detained. Cardona identified the black Mazda as the vehicle used by the suspects. At trial, Cardona testified he was positive it was the same car. Cardona had not seen the suspects’ faces, however, and could not identify anyone. He did not know appellant, Adams, or Grover.
The Honda was registered to Angela Alcorta, who had loaned the vehicle to her friend, Carrie Patton. Patton was visiting a friend in the West Alamos apartment complex, and had parked the Honda in the space behind the building earlier that night. The police contacted both Patton and Alcorta, and they arrived in the parking lot and found the Honda in the middle of the parking area. Alcorta testified the steering column had been completely broken, and the column moved around like a “joy stick.”
Officer Amerjan testified the Honda was 60 to 80 feet from the space where it had been parked. Amerjan determined the door lock had not been broken, but the driver’s side window appeared to have been pulled out of the track. He found a small piece of metal in the ignition, which appeared to be the broken screw tip from the slide-hammer, but he could not remove the piece. The ignition and casing around the steering column was damaged, consistent with some type of prying tool. There was an impression of a “crisscross” pattern on the driver’s side window, similar to the pattern on the white gloves found in Adams’ car.
Officer Drew Mosher examined the Honda’s interior, and testified the cylinder around the ignition had been damaged. He also saw a small piece of metal in the ignition, consistent with a broken screwtip and similar to the broken screw on the slide-hammer.
Officer John Willow also examined the Honda, and found “the whole round portion underneath the steering column was shattered and broken,” and the ignition had been pulled out and was hanging from the steering column. Willow testified he showed Alcorta how to use a screwdriver to start the vehicle, and Alcorta drove it a few blocks to her mother’s house.
Appellant, Grover, and Adams were arrested, separately transported to the police department, and separately interviewed. Officer Mosher interviewed Grover, who was visibly scared and initially said they were looking for girls at the apartment. Grover eventually said they were “out there looking to steal a car.” Grover said appellant had a Mustang, and they were either trying to get parts or make money to buy the parts for it. Grover thought they could get $2,100 for the Honda. Grover never said he was going to buy the Mustang. Adams also appeared scared during his separate interview and talked about getting parts for the Mustang.
By the time Officer Mosher interviewed appellant, he had already received extensive statements from Adams and Grover about the trio’s activities that night. Mosher advised appellant of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436, and appellant agreed to answer questions. Mosher testified appellant appeared “kind of at the opposite end of that spectrum” compared to fear shown by Grover and Adams, and he was more “street-wise.” Mosher asked appellant why he was at the apartment complex. Appellant said he was looking for girls. Mosher asked if appellant owned a Mustang and appellant said no. Mosher asked if appellant kept a vehicle at Grover’s house and appellant said no. Mosher asked why he did not find the girls. Appellant said the police pulled them over. Mosher advised appellant that his car was not pulled over, but stopped as it drove out of the apartment complex. Appellant reiterated that the police pulled him over. Mosher asked if appellant had been hanging out with Grover and he said no. Mosher asked why appellant was in Adams’s car, and he again said he was looking for girls.
Charges and Closing Arguments
Appellant was charged with count I, unlawful taking or driving a vehicle (Veh. Code, § 10851, subd. (a)); count II, attempted unlawful taking or driving a vehicle (Pen. Code, § 664; Veh. Code, § 10851); and count III, misdemeanor possession of burglar’s tools (Pen. Code, § 466).
As we will explain, post, the prosecution asserted count I was based on appellant’s first visit to the Honda, when he opened the car’s window, entered the vehicle, cracked the steering column, and backed out the vehicle from the parking space, but he was only able to turn in half-circles and left the car in the middle of the parking area. The prosecution further asserted count II was based on appellant’s second visit to the apartment complex’s parking area—after he left the Honda in the middle of the parking area, he got back into Adams’s car, they returned to Grover’s house, he tried to find a crowbar so he could break the steering wheel lock, he could not find the crowbar, he decided to return to the Honda and use the tools he already had to break the steering wheel, Adams drove back to the apartment complex, but appellant never got out of the car because the police arrived.
After the prosecution rested, appellant moved for dismissal of count II, attempt, and argued appellant’s actions during his second visit to the apartment complex did not amount to an attempt because he never got out of Adams’s car, Adams kept driving because the police arrived in the parking area, and appellant never engaged in any conduct in which he tried to return to the Honda and move the vehicle. The prosecutor argued appellant’s conduct amounted to an attempt because he returned to the parking area with the intent to use the tools in Adams’s car to break the steering wheel lock and drive away the Honda. Appellant replied that the second count should have been conspiracy rather than attempt, based on appellant’s discussion with Adams and Grover about looking for another tool to break the steering column, and their decision to return to the Honda and use the tools they already had.
The court denied appellant’s motion to dismiss count II, and found appellant returned to the Honda with the intent of stealing the car using the tools he had in Adams’s car, he was interrupted by the arrival of the police, and such acts and intent were sufficient for count II, attempt, to go to the jury.
In closing argument, the prosecutor explained to the jury that count I, unlawfully taking or driving a vehicle, was based on appellant’s first visit to the Honda, when he cracked open the car’s window, entered the driver’s seat, punched the ignition, started the car, and backed it out of the parking space. The prosecutor asserted that taking a vehicle requires movement of “any distance, no matter how small. So even the pushing on the vehicle or the movement of the vehicle, even if it had been a foot, that’s enough. They moved that vehicle, [appellant] moved that vehicle” with the requisite specific intent.
“… And I want you to be clear that once that vehicle was moved the first time, the first crime was complete, it’s done, that’s it. Count One is done. Once that vehicle’s moved it’s done.”
As for count II, the prosecutor argued the attempt charge was based on appellant’s second visit to the Honda, which started when appellant and his associates left the scene to retrieve a tool to break the steering wheel lock, with the intent to return and drive away the vehicle.
“… Why else would you leave the scene and come back to the scene unless it was for the purpose of making that vehicle move. They didn’t want to give up. Look, they had already invested the time, they almost had this thing.... Now, again, you can infer the intent, direct step was to leave, the ineffective step was to come back and try to get that vehicle. Understand a person is guilty of this offense even if their attempt was interrupted by someone or something beyond his control and that’s exactly what happened here.”
Appellant and his associates did not know that Cardona had called the police, and the officers arrived as Adams drove back into the parking area.
Defense counsel’s closing argument focused on whether the prosecution had proved appellant’s involvement beyond a reasonable doubt, whether Cardona was trustworthy, possible differences between Cardona’s description of the suspect’s car and Adams’s car, and whether Adams and Grover were lying to protect themselves. Counsel did not address the specific charges and facts of the offenses.
Appellant was convicted of count I, unlawful taking or driving a vehicle, count II, attempted unlawful taking or driving a vehicle, and count III, misdemeanor possession of burglar’s tools. He was sentenced to the midterm of two years for count I, a consecutive term of four months (one-third the midterm) for count II, and time served for count III, for an aggregate term of two years four months.
On appeal, he raises several challenges to his conviction in count II for attempt: whether there is substantial evidence of attempt, if count II was a lesser included offense of count I, and instructional error. We also requested briefing on whether the court’s imposition of sentence for count II violated Penal Code section 654.
A brief discussion of appellant’s name is required before we reach the substantive issues in this case. The appellate records in this case are correctly captioned “People v. Derick Ryan Johnson.” In reading the transcripts, however, it is noted that the court and the attorneys repeatedly called appellant “Eric Johnson” during the trial.
Appellant’s true name is “Derick Ryan Johnson.” He has a twin brother named “Eric,” and they both have criminal records. When appellant was arrested, he falsely identified himself to law enforcement as “Eric Bryan Johnson.” The information charged appellant as “Eric Bryan Johnson.” The court, the prosecutor, the defense attorney, and the witnesses referred to appellant as “Eric Johnson,” and he responded to that name throughout the trial. His former codefendants, Grover and Adams, testified for the prosecution and referred to appellant as “Eric” and by his nickname of “twin.” It is not clear from the record whether Grover and Adams actually thought appellant’s name was “Eric,” or whether they were going along with appellant’s ruse.
After appellant was convicted, the matter was referred to the probation department, which took appellant’s fingerprints and determined appellant had intentionally misidentified himself as “Eric” thoughout the trial. The probation report stated the criminal records of appellant (Derick) and his twin brother (Eric), had “become entangled.”
“… In this case, Derick, verified through fingerprints, was arrested using the name, ‘Eric.’ When [the probation officer] interviewed [appellant] at the jail, still using the name of ‘Eric,’ he provided social history information, including the names of his children that were ‘Derick’s children.’ This appears to be a direct attempt to thwart the judicial system and avert responsibility for his criminal acts.”
The probation report set forth appellant’s lengthy criminal record, which was apparently more serious than “Eric’s” record, and included prior convictions for possession of stolen property and felony burglary. The probation report stated the instant matter was exacerbated by appellant’s use of his twin brother’s identity, he continued to use that alias throughout the entire trial, and he almost “thwarted and circumvented his true criminal history.” “[N]ow that the truth of his prior criminal history and his presumptive ineligibility for probation have been brought to light, a prison recommendation is merited.”
At the sentencing hearing, the prosecutor requested the court issue a true name finding. Defense counsel stipulated appellant’s name was “Derick Ryan Johnson.” The court asked appellant if he identified himself as “Eric” when he was arrested, and appellant said yes. According to defense counsel, appellant claimed that after he was arrested, he told the sheriff’s department his true name, but a deputy said “they had already processed him as Eric Johnson and they didn’t want to go back and reprocess him [and] they said don’t worry about it, we’ll put it down as an AKA and it will get straightened out when you go to court ....” Defense counsel denied appellant was trying to perpetrate a fraud upon the court and said appellant had tried but had been “rebuffed” in clarifying his name.
The prosecutor replied appellant had interfered with the judicial system “every single day” of the trial, when he appeared in court and allowed the court to call him by a known false name. Appellant’s attempt to blame law enforcement for the alias was indicative of his character. Appellant’s use of his brother’s name was a direct attempt to conceal his criminal record and prior convictions, and prevented the prosecutor from alleging prior prison term enhancements. Defense counsel disputed whether appellant had received prison commitments.
The court admonished defense counsel that, contrary to appellant’s claim, he never tried to correct the alleged misunderstanding throughout the trial and, as a result, the prosecution was denied the opportunity to charge appellant with enhancements based on his prior record.
The instant record is silent as to whether appellant faced any criminal charges for intentionally concealing his identity from the court.
SUBSTANTIAL EVIDENCE OF ATTEMPT
Appellant’s primary issue is that there is insufficient evidence of an attempt to support count II, and that his return to the apartment complex’s parking area, without getting out of Adams’s car, was insufficient to constitute an attempted taking or driving of the Honda.
In determining the sufficiency of the evidence, we review the entire record to determine whether the evidence was reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Catlin (2001) 26 Cal.4th 81, 139; People v. Bolin (1998) 18 Cal.4th 297, 331.) The trier of fact may reasonably rely on the testimony of a single witness, unless the testimony is physically impossible or patently false. (Evid. Code, § 411; People v. Cudjo (1993) 6 Cal.4th 585, 608-609.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) Reversal on this ground is unwarranted unless “‘upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin, supra, 18 Cal.4th at p. 331.)
A. Section 10851, subdivision (a)
While appellant challenges the evidence as to count II, attempt, we will begin with the evidence in support of count I, the completed offense of unlawfully taking or driving the Honda, to determine where count I ends and count II begins.
Section 10851, subdivision (a) “‘proscribes a wide range of conduct.’ [Citation.]” (People v. Garza (2005) 35 Cal.4th 866, 876 (Garza).) It provides in pertinent part:
“(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 deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense ....” (§ 10851, subd. (a).)
“The elements necessary to establish a violation of section 10851 of the Vehicle Code are the defendant’s driving or taking of a vehicle belonging to another person, without the owner’s consent, and with specific intent to permanently or temporarily deprive the owner of title or possession. [Citations.]” (People v. Windham (1987) 194 Cal.App.3d 1580, 1590.) The prosecution may prove the offense by direct or circumstantial evidence. (People v. Clifton (1985) 171 Cal.App.3d 195, 199-201.)
A violation of this section requires proof of a specific intent to deprive the owner of the car of possession or title for either a temporary or permanent period. (People v. Clifton, supra, 171 Cal.App.3d at p. 199.) “Specific intent to deprive the owner of possession of his car may be inferred from all the facts and circumstances of the particular case. Once the unlawful taking of the vehicle has been established, possession of the recently taken vehicle by the defendant with slight corroboration through statements or conduct tending to show guilt is sufficient to sustain a conviction of Vehicle Code section 10851. [Citation.]” (Id. at p. 200; see also People v. Green (1995) 34 Cal.App.4th 165, 181.)
“A person can violate section 10851(a) ‘either by taking a vehicle with the intent to steal it or by driving it with the intent only to temporarily deprive its owner of possession (i.e., joyriding).’ [Citations.]” (Garza, supra, 35 Cal.4th at p. 876.) Section 10851, subdivision (a) “separately prohibits the acts of driving a vehicle and taking a vehicle. [Citations.] Thus, a defendant who steals a vehicle and then continues to drive it after the theft is complete commits separate and distinct violations of section 10851(a).” (Garza, supra, 35 Cal.4th at p. 880, italics added.)
“Subdivision (a) of Vehicle Code section 10851 (hereafter section 10851(a)), defines the crime of unlawful driving or taking of a vehicle. Unlawfully taking a vehicle with the intent to permanently deprive the owner of possession is a form of theft, and the taking may be accomplished by driving the vehicle away. For this reason, a defendant convicted under section 10851(a) of unlawfully taking a vehicle with the intent to permanently deprive the owner of possession has suffered a theft conviction and may not also be convicted under section 496(a) of receiving the same vehicle as stolen property. On the other hand, unlawful driving of a vehicle is not a form of theft when the driving occurs or continues after the theft is complete (for convenience, we will refer to this as posttheft driving).” (Garza, supra, 35 Cal.4th at p. 871.)
Based on this distinction, “[a] person who violates section 10851(a) by taking a car with the intent to permanently deprive the owner of possession, and who is convicted of that offense on that basis, cannot also be convicted of receiving the same vehicle as stolen property. [Citations.] If, on the other hand, a section 10851(a) conviction is based on posttheft driving, a separate conviction under [Penal Code] section 496(a) for receiving the same vehicle as stolen property is not precluded. [Citations.]” (Garza, supra, 35 Cal.4th at p. 876.)
Based on this distinction, “[a] person who violates section 10851(a) by taking a car with the intent to permanently deprive the owner of possession, and who is convicted of that offense on that basis, cannot also be convicted of receiving the same vehicle as stolen property. [Citations.] If, on the other hand, a section 10851(a) conviction is based on posttheft driving, a separate conviction under [Penal Code] section 496(a) for receiving the same vehicle as stolen property is not precluded. [Citations.]” (Garza, supra, 35 Cal.4th at p. 876.)
Within the statutory context, “taking has been construed to mean the act of appropriating the automobile, distinct from the act of driving the car.” (People v. Frye (1994) 28 Cal.App.4th 1080, 1088.) “Taking” a vehicle means “the act of removing the vehicle from the owner’s possession.” (Ibid.) “Driving” a vehicle occurs “simply by the act of driving a car without the owner’s consent; the defendant need not have committed the original act of taking the car from the owner.” (Id. at p. 1086.) “Consistent with the common law on takings of larceny and robbery, California courts have long construed the unlawful taking or driving of a vehicle to also require asportation—‘“[a]ny removal, however slight.”’ [Citations.]” (People v. Lopez (2003) 31 Cal.4th 1051, 1060.)
A taking may be complete “when the driving is no longer part of a ‘“continuous journey away from the locus of the theft.”’ [Citation.] One might also suggest that the taking is complete when the taker reaches a place of temporary safety. [Citation.] Whatever the precise demarcation point may be ..., once a person who has stolen a car has passed that point, further driving of the vehicle is a separate violation of section 10851(a) that is properly regarded as a nontheft offense for purposes of the dual conviction prohibition of section 496(a).” (Garza, supra, 35 Cal.4th at pp. 880-881.)
In the instant case, there is clearly substantial evidence to support the violation of section 10851, subdivision (a), as alleged in count I, based on appellant’s first encounter with the Honda. Indeed, appellant has not challenged the sufficiency of the evidence as to count I. Appellant, Adams, and Grover decided to steal a car, purportedly to pay for parts for the Mustang. Adams agreed to drive, Grover would be the lookout, and appellant said he would perform the car theft. Appellant and his associates procured tools from Grovers’s garage and placed them in Adams’s car, along with the gloves which Adams already had in the car. Appellant and his associates drove around the parking lots of various apartment complexes to look for the right car to steal, and decided upon the Honda. Such evidence is overwhelming as to appellant’s specific intent to permanently deprive the owner of possession of the car.
There is also overwhelming evidence of the “taking” element of count I. Appellant got out of Adams’s car, pushed down the Honda’s window, unlocked the car door, and entered the vehicle. He cracked the steering column, punched the ignition, and started the engine. He either backed out the car out of the parking space or, as Cardona thought, appellant and his associates pushed the Honda out of the parking space. Adams and Grover assumed appellant was ready to go, and Adams headed out of the parking area. However, appellant could only turn the Honda in half-circles because the steering wheel was still locked. He managed to back up the Honda approximately 60 to 80 feet from its original location, but he could not straighten it out and left the Honda in the middle of the parking area. The fact that appellant was not able to drive away from the parking area is irrelevant since the asportation element of the offense simply requires “‘“[a]ny removal, however slight.”’ [Citations.]” (People v. Lopez, supra, 31 Cal.4th at p. 1060.) The taking ended when appellant abandoned the Honda in the middle of the parking area because he was unable to turn the steering wheel.
As explained ante, appellant was convicted of count II, attempted unlawful taking or driving a vehicle, based on his second encounter with the Honda in the parking lot. We thus turn to the elements of a criminal attempt. An attempt to commit a crime consists of a specific intent to commit the crime, and a direct but ineffectual act done towards its commission, i.e., an overt ineffectual act which is beyond mere preparation yet short of actual commission of the crime. (People v. Jones (1999) 75 Cal.App.4th 616, 627; People v. Imler (1992) 9 Cal.App.4th 1178, 1181.)
“An attempt connotes the intent to accomplish its object, both in law (§ 21a) and in ordinary language.” (People v. Lyons (1991) 235 Cal.App.3d 1456, 1461; People v. Smith (1997) 57 Cal.App.4th 1470, 1481.) Since intent is inherently difficult to prove by direct evidence, intent may properly be inferred from “‘the act itself, together with its surrounding circumstances ....’” (People v. Edwards (1992) 8 Cal.App.4th 1092, 1099.) When the intent to commit the crime is clearly shown, an act done toward the commission of the crime may be sufficient for an attempt even though that same act would be insufficient if the intent is not as clearly shown. (People v. Bonner (2000) 80 Cal.App.4th 759, 764 (Bonner).)
The overt act necessary to supply the second element of an attempt need not be the last proximate act prior to the commission of the crime itself. (People v. Parrish (1948) 87 Cal.App.2d 853, 856.) Thus, other than forming the requisite criminal intent, a defendant need not commit an element of the underlying offense. (People v. Medina (2007) 41 Cal.4th 685, 694.)
“… Commission of an element of the underlying crime other than formation of intent to do it is not necessary. [Citation.] Although mere preparation such as planning or mere intention to commit a crime is insufficient to constitute an attempt, acts which indicate a certain, unambiguous intent to commit that specific crime, and, in themselves, are an immediate step in the present execution of the criminal design will be sufficient. [Citations.]’” (People v. Jones, supra, 75 Cal.App.4th at p. 627; see also People v. Herman (2002) 97 Cal.App.4th 1369, 1385-1386.)
“The act required must be more than mere preparation, it must show that the perpetrator is putting his or her plan into action. That act need not, however, be the last proximate or ultimate step toward commission of the crime. Citation.” (Bonner, supra, 80 Cal.App.4th at p. 764; People v. Post (2001) 94 Cal.App.4th 467, 480-481.) “An innocuous fact cannot propel one’s conduct into the circle of an attempt, which requires a direct, unequivocal action essential to complete the intended crime, short of the ultimate criminal act itself. Passive acquiescence of an ambiguous nature and intent is not unequivocal action.” (People v. York (1998) 60 Cal.App.4th 1499, 1506 (York).)
Thus, whenever the person’s design to commit a crime is clearly shown, “‘slight acts done in furtherance of that design will constitute an attempt, and the courts should not destroy the practical and common-sense administration of the law with subtleties as to what constitutes preparation and what constitutes an act done toward the commission of a crime.’ [Citations.]” (People v. Memro (1985) 38 Cal.3d 658, 698 (Memro).) “[W]hen the acts are such that any rational person would believe a crime is about to be consummated absent an intervening force, the attempt is underway ....” (People v. Dillon (1983) 34 Cal.3d 441, 455 (Dillon), italics added.) If the defendant commits all the acts necessary to commit a crime but is unsuccessful merely because of an extraneous or fortuitous circumstance, the defendant is criminally liable for the attempted offense. (People v. Staples (1970) 6 Cal.App.3d 61, 66.) It is not necessary that the overt act should have been the ultimate step toward the consummation of the attempted offense. It is sufficient if it was the first or some subsequent step in a direct movement toward the commission of the offense after the preparations are made. (Id. at p. 67.)
“‘[T]here is a material difference between the preparation antecedent to an offense and the actual attempt to commit it. The preparation consists of devising or arranging the means or measures necessary for the commission of the offense, while the attempt is the direct movement toward its commission after the preparations are made. In other words, to constitute an attempt the acts of the defendant must go so far that they would result in the accomplishment of the crime unless frustrated by extraneous circumstances. [Citations.]’ [Citations.]” (Memro, supra, 38 Cal.3d at p. 698; see also People v. Carpenter (1997) 15 Cal.4th 312, 387.)
Thus, an attempt, as distinguished from acts preparatory to the offense, “requires ‘some appreciable fragment of the crime . . . accomplished.’ [Citations.] However, ‘[a]n overt act need not be the ultimate step toward the consummation of the design; it is sufficient if it is the first or some subsequent act directed towards that end after the preparations are made.’ [Citations.]” (Memro, supra, 38 Cal.3d at p. 698.) “‘Preparation alone is not enough, there must be some appreciable fragment of the crime committed [and] it must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter ....’” (People v. Morales (1992) 5 Cal.App.4th 917, 925.)
In the instant case, the key dispute is whether appellant’s second encounter with the Honda constituted an attempted violation of section 10851, subdivision (a). As in count I, there is overwhelming evidence of appellant’s specific intent to permanently deprive the owner of possession of the Honda. He left the car in the middle of the parking area because he could not turn the steering wheel. Instead of giving up on the plan, appellant rejoined his associates and they decided to return to Grover’s residence and retrieve another tool, possibly a crowbar, to break the steering wheel lock. When they reached Grover’s place, they could not find the desired tool and appellant decided to return to the parking area and use the tools he already had in Adams’s car to break the steering wheel lock. The trio got back into Adams’s car, and Adams drove back to the apartment complex, turned into the parking area, and headed for the Honda.
At trial, Grover initially testified that they stopped at the Honda on their second visit to the apartment complex, that appellant entered the Honda, he cracked the steering wheel, and then the police arrived. On further examination, however, Grover clarified he was confused based on their numerous activities that night, and explained that during their second visit to the parking lot, Adams never stopped his car and appellant never got out of Adams’s car and went toward the Honda, because the police car immediately pulled into the driveway behind them. Adams similarly testified that he never stopped during the second visit to the parking area, appellant never got out of his car, and appellant never got back into the Honda. Cardona, who was still watching from his apartment window, confirmed the suspects’ black car pulled into the parking area, it continued past the Honda, none of the suspects got out of the black car or got into the Honda, and a police car was directly behind the black car as it continued through the parking area. Indeed, the prosecutor’s closing argument about count II, attempt, was based on the account that Adams’s car never stopped during the second visit to the parking area, he drove past the Honda, appellant never entered the Honda, and such conduct was sufficient for an attempt. Thus, the parties agreed that Grover’s initial description of the second visit to the parking area was erroneous, and that Adams never stopped his car and appellant never returned to the Honda.
We are thus presented with the question of whether appellant’s return to the parking area, with the clear intent to break the Honda’s steering wheel and drive away in the stolen car, was sufficient to constitute a criminal attempt, even though he did not approach or get into the Honda. There are a few attempt cases with similar scenarios.
In People v. Parrish, supra, 87 Cal.App.2d 853, the court found substantial evidence to support the defendant’s conviction of attempted murder of his wife. The defendant engaged an associate to help kill his wife, and they went to the wife’s house. The defendant had a loaded gun and listened outside a window to make sure she was home. The defendant sent his associate into the house with instructions to choke his wife, and then let the defendant into the house so he could kill her. The associate was a police informant, and officers arrived before the defendant could get into the house. Parrish found the defendant’s conduct outside the house, along with his clear intent, was sufficient to constitute an attempt. (Id. at pp. 855-856.)
In People v. Vizcarra (1980) 110 Cal.App.3d 858 (Vizcarra), the defendant approached a liquor store at night wearing a poncho and carrying a rifle. He was standing on a small walkway in front of the liquor store when a customer approached. The defendant immediately turned away and faced the wall, and the customer saw the rifle butt from under the poncho. The defendant never entered the liquor store, but instead returned to his car, which was parked across the street from the liquor store. (Id. at pp. 861-862.) Vizcarra held there was substantial evidence of attempted robbery because the defendant’s conduct in approaching the liquor store with a rifle and trying to hide on the adjacent path was “a sufficient direct act toward the accomplishment of the robbery,” even though he never entered the store. (Id. at p 862.)
“... [T]he acts of proximity need not include the last proximate act for the completion of the crime. It is sufficient that the overt acts reach far enough for the accomplishment of the offense to amount to the ‘commencement of its consummation.’ [Citations.]” (Vizcarra, supra, 110 Cal.App.3d at p. 862.)
In People v. Bishop (1988) 202 Cal.App.3d 273 (Bishop), the defendant was convicted of violating Penal Code section 4534, willful assistance of a prisoner to escape or attempt to escape from custody. The defendant’s son was in custody and transported to the courthouse for a hearing. The escorting deputies parked their squad car in front of the courthouse and escorted the defendant’s son into the building. The defendant entered the courthouse, approached her son and the deputies, kept her left hand inside her coat, and walked so close to her son that she touched him. The deputies ordered the defendant to step away, and she retreated but kept her left hand inside her coat. The defendant returned to her nearby car and drove away, but she was apprehended and found in possession of loaded weapons, survival supplies, and a letter from her son, directing her to take specific steps to effectuate his escape as he was escorted into the courthouse. (Bishop, supra, at pp. 276-278.)
Bishop found substantial evidence to support the conviction for willful assistance of an attempted escape. There was obvious preparation based on the loaded weapons and survival supplies found in the defendant’s car, which had been parked near the courthouse. The defendant’s actions were consistent with the directions contained in her son’s letter, including the manner in which she approached him and the way in which she held a gun under her coat, as the deputies escorted him into the courthouse. The defendant’s efforts ended only because the deputies ordered her to step away. (Bishop, supra, 202 Cal.App.3d at pp. 284-285.) “The only steps undone were [the defendant’s son] getting his hands on the weapon and making good his escape.” (Id. at p. 285.)
“Is the requisite overt act discernible? There is no point to undertaking an independent analysis of each of defendant’s actions because just about anything she did once she arrived at the courthouse will satisfy the requirement. Her simple entry into the courthouse with a concealed weapon would probably suffice. [Citations.] By any standard, the totality of defendant’s actions in the courthouse shows the implementation of a train of events that advanced to the very brink of success. Those actions ‘“amount to the commencement of the consummation”’ [citation] of the plan to free [her son]. The scheme was derailed only because of [the deputy’s] command to defendant. [Her son’s] intended escape was thus frustrated by the extraneous circumstance of the deputy’s intervention. [Citations.]” (Bishop, supra, 202 Cal.App.3d at p. 285, italics added.)
The fact that the defendant did not pass a weapon to her son did not undermine the evidence in support of the attempt because the defendant’s actions “had passed beyond the preparatory stage.” (Bishop, supra, 202 Cal.App.3d at p 285.)
In Dillon, supra, 34 Cal.3d 441, the California Supreme Court held the evidence was sufficient to support the defendant’s conviction for attempted robbery of a marijuana farm. The defendant and his companions, “[h]aving armed and disguised themselves, ... set off for the farm, made their way past barricades posted with ‘no trespassing’ signs, arrived on the scene carrying the means of forcibly subduing any opposition, divided themselves into small groups, encircled the field and watched for their opportunity.” (Id. at p. 456.) The defendant never tried to enter the premises or take any property, because the owner approached with a firearm and the defendant shot him and fled. (Id. at p. 452.)
Dillon held the defendant’s acts toward commission of the robbery “went beyond mere preparation” and therefore were enough to constitute an attempt. (Dillon, supra, 34 Cal.3d p. 456.) Dillon specifically held that the fact that the defendant “did not actually encroach on the marijuana field before he fled” was immaterial. (Ibid.) As the court noted, “[i]n a variety of contexts convictions of attempt have been upheld even though the defendant did not actually go onto the premises where the crime was to be committed. [Citations.]” (Id. at p. 456, fn. 4.)
In Bonner, supra, 80 Cal.App.4th 759, the defendant was convicted of two counts of attempted robbery, with the victims being a hotel manager and his assistant. The defendant had formerly worked at the hotel, and knew that the manager and assistant routinely took a large deposit of hotel receipts to the bank on Monday at the beginning of each month, using an elevator to get to the manager’s car in the hotel garage. The defendant went to a laundry room on the garage level on the first Monday of the month, wearing a mask and carrying a pistol. However, he was discovered by other employees and fled from the scene before coming into contact with the intended victims. (Id. at pp. 761-762.)
In Bonner, the court rejected the defendant’s argument that there was insufficient evidence of attempted robbery since he never came into actual contact with the victims. (Bonner, supra, 80 Cal.App.4th at p. 764, fn. 3.) “It was [the defendant’s] clear intention to rob [the manager and assistant manager]. He made detailed preparations for the crime, went armed to the scene, placed a mask over his face, waited in hiding moments before his victim’s approach, and gave up the enterprise only when discovered by other hotel employees. The evidence was sufficient to convict appellant of attempted robbery. [Citations.]” (Id. at p. 764, fn. 3.)
“… It was [the defendant’s] admitted intent to stop the two [victims] at gunpoint and take the money from their possession. Since [the defendant] intended to rob two victims, and since he undertook acts beyond mere preparation directed at robbing the two hotel managers, he could properly be convicted of two counts of attempted robbery.” (Bonner, supra, 80 Cal.App.4th at p. 765.)
Bonner also rejected the defendant’s argument that his intentions or the numbers of victims might have changed before he actually confronted them:
“… [The defendant] was guilty of attempted robbery at the moment his acts in the furtherance of his intent went beyond mere preparation, i.e., when [the defendant] performed acts placing his plan in operation.
“It is clear at the moment [the defendant] entered the garage, he intended to rob both the manager and assistant manager. Any later event that interrupted those crimes was irrelevant to [his] liability for two counts of attempted robbery. The possibility that only one of the intended victims would go to the bank that day is as irrelevant to determining the proper number of counts as the possibility no one would go to the bank that day is irrelevant to determining whether an attempt occurred at all.
“The evidence clearly showed [the defendant’s] intent to rob both the manager and assistant manager. [He] did not merely prepare to rob the two, he engaged in acts that would ordinarily result in the commission of the crime but for an interruption.” (Bonner, supra, 80 Cal.App.4th at p. 765, fn. omitted.)
The instant case presents the question as to whether appellant’s second visit to the parking area constituted an attempt. Appellant already violated section 10851, subdivision (a) during his first visit to the parking lot, when he backed the Honda out of the parking space with the specific intent to permanently deprive the owner of possession, and such slight asportation was sufficient to complete the offense.
At the point of appellant’s second visit to the parking area, there is overwhelming evidence of his intent to drive the vehicle away and permanently deprive the owner of possession of the Honda. He only left the Honda in the parking lot because he could not turn the steering wheel, and he went back to Grover’s house to look for another tool to perform the job. When he could not find the right tool, he decided to go back to the Honda and again tried to break the steering wheel with the tools he already had in Adams’s car. Thus, when Adams drove back to the parking area, appellant had the specific intent to perform the necessary acts with his tools and break the steering wheel lock and drive away with the Honda. If appellant had been successful and driven away in the Honda, he would have committed the posttheft driving aspect of section 10851, subdivision (a). (Garza, supra, 35 Cal.4th at pp. 871, 880.)
As explained in Bonner, when the intent to commit the crime is clearly shown, an act done toward the commission of the crime may be sufficient for an attempt even though that same act would be insufficient if the intent is not as clearly shown. (Bonner, supra, 80 Cal.App.4th at p. 764.) The mere act of being a passenger in a car as it drives into a certain area certainly seems an innocuous fact that would not propel the passenger’s conduct “into the circle of an attempt.” (York, supra, 60 Cal.App.4th at p. 1506.) But where the person’s design to commit the crime is clearly shown, “‘slight acts done in furtherance of that design will constitute an attempt.’” (Memro, supra, 38 Cal.3d at p. 698.) The only reason appellant was in Adams’s car, and Adams drove the car back to the parking area, was because appellant intended to use his existing tools to break the steering wheel lock and drive away with the Honda. “[W]hen the acts are such that any rational person would believe a crime is about to be consummated absent an intervening force, the attempt is underway ....” (Dillon, supra, 34 Cal.3d at p. 455, italics added.) As in Bonner, appellant’s actions indicated the crime was about to be consummated but for the arrival of the police car behind Adams’s vehicle. Adams and Grover testified that they immediately decided to abort the mission, and they created the fictional story that they were driving around and looking for a girl.
The contrary argument, of course, is based on the fact that appellant never got out of Adams’s car and never approached the Honda. In Bonner, Bishop, Vizcarra, and Dillon, the defendants took steps to obtain physical proximity to their intended victims and were about to commit their intended offenses but for the intervening circumstances that occurred in those cases—the arrival of other employees in the garage, the customer who approached the liquor store, the deputy’s order to step away from the prisoner, and the armed resistance at the marijuana field. While appellant may not have seemed to be in the same type of physical proximity as in the other attempt cases, discussed ante, he took all possible steps to travel back to the Honda and drive away with the vehicle, and was thwarted only by police intervention. Moreover, the evidence of intent was extremely strong, such as the act done toward the commission of the offense would be sufficient for an attempt, “even though that same act would be insufficient if the intent is not as clearly shown.” (Bonner, supra, 80 Cal.App.4th at p. 764.)
Appellant relies on two cases in support of his attack upon the sufficiency of the evidence of attempt, but they deal with the limitation of attempt offenses when the target offense is committed in another jurisdiction, and both cases have been overruled. In People v. MacDonald (1938) 24 Cal.App.2d 702 (MacDonald), the defendant married his daughter in Arizona, lived with her in California, and was convicted in California for incest, which could be committed either by marriage between those of prohibited degrees or by intercourse. The court reversed the incest conviction because it was based on the marriage in Arizona, and held the defendant “did not commit any element of that offense or do any overt act in connection therewith in California.” (Id. at p. 711.) In People v. Buffum (1953) 40 Cal.2d 709 (Buffum), the defendant was convicted of conspiracy to use certain means to induce miscarriages contrary to then Penal Code section 274. The defendant met with women in California, transported them to Mexico to receive abortions, and then drove them back to California. (Id. at pp. 714-715.) Buffum reversed the conviction and held a defendant can be convicted of conspiracy to commit a crime in another state only if the commission of the underlying offense, or an attempt to commit the underlying offense, occurred within California. (Id. at pp. 715-718.)
Buffum and MacDonald were extensively criticized and overruled in People v. Morante (1999) 20 Cal.4th 403 (Morante), where the defendant entered into a conspiracy in California to commit specific drug offenses, but the drug offenses were committed in another state. (Id. at pp. 409-415) Morante held Buffum’s attempt rule was inconsistent with the rationale of punishing the commission of conspiracy and the principles that define the crime of conspiracy. Morante further held that a conspiracy to commit an offense in another jurisdiction may be prosecuted in California even if there is no attempt to commit the underlying offense in this state. (Id. at pp. 422-423.) Appellant’s reliance on Buffum and MacDonald is misplaced both factually and legally.
Given the overwhelming evidence of appellant’s specific intent, his actions in this case were sufficient to constitute an attempt even though he did not get out of Adams’s car or approach the Honda on his second visit to the parking lot. If appellant had merely stayed at Grover’s house and thought about what tools he needed, or whether he wanted to go back and get the Honda, such acts would have constituted the type of “mere preparation” that would have been insufficient to constitute an attempt. However, appellant decided to go back to the parking lot, he had the tools, and he was ready to perform the crime but was interrupted by the police car’s arrival behind Adams’s car. As in Bonner, appellant was guilty of an attempted violation of section 10851, subdivision (a) “at the moment his acts in the furtherance of his intent went beyond mere preparation, i.e., when [the defendant] performed acts placing his plan in operation.” (Bonner, supra, 80 Cal.App.4th at p. 765.) Appellant did not merely prepare to commit the offense, but “engaged in acts that would ordinarily result in the commission of the crime but for an interruption.” (Ibid.)
GREATER AND LESSER INCLUDED OFFENSES
Appellant raises a separate challenge to count II, attempt, and asserts it is a lesser included offense of count I, the completed violation of section 10851, subdivision (a), and that he cannot be convicted of both a greater and lesser offense.
“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.)” (People v. Montoya (2004) 33 Cal.4th 1031, 1034.)
Appellant is thus correct that multiple convictions may not be based on necessarily included offenses. (People v. Pearson, supra, 42 Cal.3d at p. 355.) While an attempted violation of section 10851, subdivision (a) could be a lesser included offense of a completed violation of the statute, appellant was not convicted of necessarily included offenses because counts I and II were based on two separate incidents. In count I, appellant violated section 10851, subdivision (a) during his first encounter with the Honda—when he broke into the vehicle, punched the ignition, and backed it out of the parking space with the specific intent to permanently deprive the owner of possession. As explained ante, count II was based on appellant’s second visit to the parking area. While the second visit occurred shortly after the first visit, count II was clearly based on an entirely separate incident and factual situation than count I, such that appellant was not convicted of necessarily included offenses based on the same conduct. (See, e.g., People v. Bright (1991) 227 Cal.App.3d 105, 109-110.)
As explained in section II.A., ante, section 10851, subdivision (a) proscribes a wide range of conduct, such that “[a] person who violates section 10851(a) by taking a car with the intent to permanently deprive the owner of possession, and who is convicted of that offense on that basis, cannot also be convicted of receiving the same vehicle as stolen property. [Citations.] If, on the other hand, a section 10851(a) conviction is based on posttheft driving, a separate conviction under [Penal Code] section 496(a) for receiving the same vehicle as stolen property is not precluded. [Citations.]” (Garza, supra, 35 Cal.4th at p. 876.) Thus, appellant could have been convicted of two offenses based on one act under the appropriate circumstances.
Appellant contends the jury was not properly instructed as to the elements of count II, the attempted violation of section 10851, subdivision (a). Appellant’s argument is based on a portion of the standard instruction which defined attempt, CALCRIM No. 460. The instruction defined the elements of attempt—that the defendant took a direct but ineffective step toward committing the offense, and the defendant intended to commit the offense. The instruction further defined a “direct step” as going beyond planning or preparation. Appellant objects to the following sentence in the pattern instruction:
“The defendant may be guilty of attempt even if you conclude that unlawful driving or taking of a vehicle was actually completed.”
This portion of the instruction is based upon Penal Code section 663, which states:
“Any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was perpetrated by such person in pursuance of such attempt, unless the Court, in its discretion, discharges the jury and directs such person to be tried for such crime.”
Penal Code section 663 “specifically permits a defendant to be convicted of the crime of attempt even if it is proved he succeeded. Obviously designed to address the dilemma created when a defendant is charged only with an attempt but the evidence at trial shows his attempt succeeded rather than failed, this section also offers the trial court the option of not convicting for the attempt but instead allowing a new trial on the completed crime.” (In re Sylvester C. (2006) 137 Cal.App.4th 601, 610.)
“Section 663 remedied a problem in the common law which seemed to flow logically from the fact ‘failure’ was an element of an attempt. As one commentator explains: [‘]The crime of attempt is often defined as if failure were an essential element, and on this basis it has sometimes been held that proof of the completed crime requires reversal of an attempt to commit it.’ The effect of section 663 is to treat failure as no longer an essential element when it comes to the practical question of whether a conviction of that offense can be sustained despite a lack of affirmative evidence proving failure, in fact when the evidence proves the opposite. Success or failure is the same, at least if the defendant was charged with an attempt. Prove either one, and the defendant can be convicted of an attempt.” (In re Sylvester C., supra, 137 Cal.App.4th at p. 610, fns. omitted.)
Thus, “the state is not barred from imposing punishment for an attempt merely because the crime has been completed.” (People v. Parrish (1985) 170 Cal.App.3d 336, 342-343.)
Appellant contends this phrase was confusing given the unique circumstances of this case, in that appellant’s conduct included the complete offense of violating section 10851, subdivision (a). We note appellant did not object to this language. We also note that counts I and II were based on separate factual incidents. In any event, the inclusion of this phrase in the instruction for count II, attempt, was appropriate because of the unique facts of this case. As explained ante, the prosecutor used closing argument to clarify which facts formed the basis for counts I and II. The two counts were based on separate incidents and appellant was not subject to multiple convictions based on included offenses. The jury was clearly advised that count I, the completed offense, was based on appellant’s first encounter with the Honda, and count II, the attempt, was based on appellant’s second visit to the parking lot, when he remained in Adams’s car. While the particular phrase might seem confusing out of context, it was entirely appropriate since the jury was advised that the two counts were based on two separate incidents, and that count I, the completed offense, did not affect count II, the attempt.
There remains the separate issue as to whether the court could impose a sentence for count II. We requested supplemental briefing from the parties on this issue.
At the sentencing hearing, the trial court found several aggravating circumstances and no mitigating circumstances, but decided not to impose the upper term for count I.
“… I’m not using [the aggravating factors] to raise the sentence from the midterm to the aggravated term, I am instead going to use those aggravating factors to run the sentence on Count Two consecutive to Count One, which is authorized by [California Rules of Court,] rule 4.425. I agree with you ... that Count 1 and Count 2 were so closely connected in time. There’s a very small interval of time between the two offenses that the different time basis for consecutive sentence is not present in this case ... but the court is authorized to consider any circumstances in aggravation or mitigation in deciding whether to impose consecutive rather than concurrent sentences and I’m not using the aggravating factors to impose the upper term or to enhance his sentence and the aggravating factors are not elements of the crime so it is the court’s intent to impose consecutive sentences on Counts One and Two.”
The court imposed the midterm of two years for count I, and the consecutive term of four months (one-third the midterm) for count II.
While Penal Code section 954 permits a defendant to be convicted “of any number of the offenses charged,” Penal Code section 654 prohibits multiple punishment. (People v. Medina, supra, 41 Cal.4th at p. 701.) “When [Penal Code] section 954 permits multiple conviction, but [Penal Code] section 654 prohibits multiple punishment, the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited. [Citations.]” (People v. Reed (2006) 38 Cal.4th 1224, 1227 ;see also People v. Medina, supra, 41 Cal.4th at p. 701.) A defendant may be punished for only one of multiple offenses “[i]f all the offenses were incident to one objective.” (People v. Perez (1979) 23 Cal.3d 545, 551.) Penal Code section 654 thus bars punishment for two offenses arising out of the same course of conduct for which the actor entertained the same intent and objective. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.)
In the instant case, appellant committed counts I and II with the same intent—to permanently deprive the owner of possession of the Honda. While the court correctly noted that it could rely upon the aggravating circumstances to impose consecutive terms instead of an upper term, it failed to account for appellant’s identical intents in committing counts I and II. While appellant did not object to the consecutive sentences under Penal Code section 654, the imposition of any sentence for count II constituted an unauthorized sentence which this court may address on its own motion. (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.) Given the court’s statements at the sentencing hearing, the matter must be remanded for resentencing.
The judgment of conviction is affirmed. The sentence is reversed and the matter remanded for resentencing.
WE CONCUR: LEVY, J., CORNELL, J.