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People v. Rand2/25/2003
THE COURT:
Harry Rand, Jr. was convicted of auto theft as a felony and driving under the influence and being under the influence of a controlled substance as misdemeanors. He contends there is insufficient evidence to support his conviction for auto theft and the court failed to instruct the jury sua sponte on the lesser included offense of joyriding. We disagree and affirm the judgment.
At approximately 1:30 a.m., Rand passed a California Highway Patrol officer while speeding and weaving in a stolen Toyota Camry. The officer turned on his emergency lights and siren but Rand failed to respond. Rand eventually moved onto the right shoulder of the freeway, but returned to traffic, and then back to the shoulder where the car skidded to a stop. When the officer approached the passenger side of the car, he saw Rand seated behind the steering wheel, staring straight ahead with his hands on his lap. The officer knocked on the passenger window and ordered Rand to raise his hands four times before he complied. In response to a series of questions, Rand's responses were either slow or delayed. Based on the officer's observations which included Rand's "bugged out eyes," profuse sweating, spasmodic movements, delayed reactions, rigidity, and agitation, the officer was of the opinion that Rand may have been under the influence of PCP. When the officer told Rand to turn off the engine, he noticed there was no key in the ignition and also noticed some wires hanging down under the dashboard near the steering column. Dispatch informed the officer that the Camry was stolen and Rand was arrested. When placed in the back seat of the patrol car, Rand appeared to be agitated and rambled incoherently. While in custody, Rand stated he had taken the antidepressant Zoloft and smoked a "sherm," a common reference to a cigarette dipped in PCP. According to the results of the blood test, Rand tested positive for PCP.
Appellant contends the trial court had a sua sponte duty to instruct the jury that joyriding is a lesser included offense of auto theft. "`The trial court has a sua sponte duty to instruct on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present and there is evidence that would justify a conviction of such a lesser offense.' [Citation.]" (People v. Bradford (1997) 14 Cal.4th 1005, 1055.) "An offense is necessarily included in another if [ ] the greater statutory offense cannot be committed without committing the lesser because all of the elements of the lesser offense are included in the elements of the greater." (People v. Clark (1990) 50 Cal.3d 583, 636.)
A violation of Vehicle Code section 10851, subdivision (a) occurs when, " ny person [ ] 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 . . . ." At times, and depending on the facts, joyriding was a lesser related offense to auto theft. However in 1996, the joyriding statute, Penal Code section 499b, was amended and the words "automobile, motorcycle or other vehicle" were deleted. The statute now states that " ny person who shall, without the permission of the owner thereof, take any bicycle or motorboat or vessel, for the purpose of temporarily using or operating the same, shall be deemed guilty of a misdemeanor . . . ." By eliminating the words "automobile, motorcycle or other vehicle" from the statute, joyriding no longer contains all of the elements of auto theft.
Instead of conceding the obvious, Rand argue
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