People v. Marshall

sarily import the elements of theft, including the taking of the personal property of one other than defendant, with intent to steal (People v. Rosen (1938), 11 Cal.2d 147 , 149 [ 78 P.2d 727 , 116 A.L.R. 991 ] ; People v. Ammerman (1897), 118 Cal. 23 , 25-26 [ 50 P. 15 ] ; People v. Sheasbey (1927), 82 Cal.App. 459 , 463 [ 255 P. 836 ] ; see Fricke (1951), California Criminal Law, p. 238). These elements of theft include the following elements of the offense denounced by section 503 of the Vehicle Code: The property (vehicle) taken or driven must be “not his [defendant’s] own,” and it must be taken “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. ’ ’

The eases of People v. Kehoe (1949), 33 Cal.2d 711 , 713-715 [ 204 P.2d 321 ], and People v. Crawford (1953), 115 Cal.App.2d 838 , 841 [ 252 P.2d 963 ], tend to support the view that the theft of an automobile (which is included in the offense of robbery by the taking of an automobile) includes the lesser offense denounced by section 503 of the Vehicle Code, although neither of those cases concerns the aspect of the problem of included offenses which is now before us. The Kehoe case disapproves the view, previously taken by some District Courts of Appeal, to the effect that violation of section 503 is entirely different from the crime of theft of an automobile. The Crawford case (p. 841 of 115 Cal.App.2d) says that “The charge, being grand theft committed in the stealing of an automobile, included the offense of violation of section 503 of the Vehicle Code.” Insofar as People v. O’Neal (1934), 2 Cal.App.2d 551 , 561 [ 38 P.2d 430 ], is inconsistent with the statement last quoted from the Crawford case and with our conclusion that the intent to temporarily deprive the owner of the use of a vehicle is an element included in the intent to steal the vehicle, the O ’Neal case is disapproved.

In People v. Pearson (1940), 41 Cal.App.2d 614 , 618 [ 107 P.2d 463 ], it is said that “The crime of violating section 503 of the Vehicle Code is not included in the crime of robbery . . ., the elements to be proved being different in each offense. ’ ’ But this statement was made in the light of the statute as it was then worded and, of course, in respect to the problem then before the court. At that time section 503 (Stats. 1939, ch. 228, p. 1481) provided that it was violated only when the vehicle was taken .or driven “in the absence of the owner.” This provision made the section necessarily incompatible with

robbery in those cases where the person robbed was the owner of the property taken, for an element of robbery is that the property be taken “from his person or immediate presence” (Pen. Code, § 211). The Pearson case is not authority for interpretation of present section 503 of the Vehicle Code. The “absence of the owner” as an element of the offense denounced by section 503 has been deleted (Stats. 1947, eh. 813, p. 1926). Therefore, violation of that section is no longer incompatible with robbery.

It appears that the precise controversy here presented— whether the yardstick for measuring offenses “necessarily included” in a charge within the meaning of section 1159 of the Penal Code is the specific language of the accusatory pleading or whether such yardstick is the language of the statute defining the offense charged—has not been expressly decided by an appellate court of this state. The view urged by the People, however, has been expressly or impliedly accepted by some of the reported decisions (hereinafter cited) without discussion of the possible alternative of using statutory language as the exclusive measure of included offenses.

The Hess case (1955), supra, 45 Cal.2d 171 , and the Greer case (1947), supra, 30 Cal.2d 589 , upon which the People rely, concern the question whether a charge of rape includes a charge of contributing to the delinquency of a minor (Welf. & Inst. Code, § 702). The statutory and case law concerning what crimes are “included” in a charge of rape, as shown by the following' summary, tends to support the position of the People in the present case, although such law furnishes no authority directly in point:

Rape, according to its statutory definition (Pen. Code, § 261), is “an act of sexual intercourse, accomplished with a female not the wife of the perpetrator, under either of the following circumstances: 1. Where the female is under the age of eighteen years”; 2. Where she is mentally incapable of consent; 3. Where her resistance is overcome by force; 4. Where she is prevented from resisting by threats of great and immediate bodily harm, or by drugs; 5. Where she is unconscious of the nature of the act and this is known to defendant; 6. Where she submits under the belief, intentionally induced by defendant’s “artifice, pretense, or concealment,” that the person committing the act is her husband.

Where a single act of intercourse is committed in such circumstances that more than one subdivision of section 261 is violated, there is but one offense of rape, “for the proof,

30 Cal.2d) “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.”

The significance of the Greer decision here is that, for the purpose of determining what lesser offenses were included within the rape there charged, this court looked to the specific allegations of the pleading, not merely to the general statutory definition of rape.

In the ease of In re Hess (1955), supra, 45 Cal.2d 171 , 175, it is held that the offense of contributing to the delinquency of a minor is not included within a specific charge of forcible rape, because the charge of forcible rape does not inform the accused that he should be prepared to meet evidence that he did an act which would tend “to cause or encourage any person under the age of 21 years” to become delinquent (Welf. & Inst. Code, § 702). In Hess, therefore, as in Greer, this court considered, as the yardstick for measuring the offenses included within the rape charged, the specific allegations of the accusatory pleading rather than the general code definition of rape as a crime which can be committed in various ways. In accord is People v. Chester (1956), 138 Cal.App.2d 829 , 830 [ 292 P.2d 573 ].

It is not unusual for a prosecutor to charge in one count the elements of two kinds of aggravated assault defined by two separate sections of the Penal Code, assault with intent to commit murder (Pen. Code, § 217) and assault with a deadly weapon (Pen. Code, §245). In this situation, the appellate courts have expressly recognized that the yardstick for determining “included” offenses is the language of the accusatory pleading. (People v. Gordon (1893), 99 Cal. 227 , 229 [ 33 P. 901 ] [an earlier opinion in this case, People v. Gordon (1891), 88 Cal. 422 [ 26 P. 502 ], shows that the defendant was specifically charged with an assault with a deadly weapon with intent to commit murder] ; People v. Lightner (1874), 49 Cal. 226 , 228; People v. Casserio (1936), 16 Cal.App.2d 223 , 226 [ 60 P.2d 505 ] ; see People v. Arnett (1899), 126 Cal. 680 , 681 [ 59 P. 204 ].) If a defendant were charged in statutory language with assault “with intent to commit murder” (Pen. Code, § 217) and, separately, with assault “with a deadly weapon” (Pen. Code, § 245), the essential legal elements of neither offense charged would be “necessarily included” in the elements of the other (although both offenses charged might in fact be committed by the same act and,

Some opinions which deal with the question whether an offense is “necessarily included” do not disclose whether their determination in that regard is based upon the elements specifically alleged in the accusatory pleading or upon the statutorily defined elements of the crime or, perhaps, upon some other factor. (People v. Watson (1899), 125 Cal. 342 , 344 [ 57 P. 1071 ]; People v. Bentley (1888), 75 Cal. 407 , 410 [ 17 P. 436 ] ; People v. Crawford (1953), supra, 115 Cal.App.2d 838 , 841.) Some cases suggest mistaken views that an offense may be “necessarily included” in another offense because it would be within the charge if the charge were stated in accord with common law rules of pleading (People v. De Foor (1893), 100 Cal. 150 , 153-154 [ 34 P. 642 ]) or because the two offenses have a “common root” or “common basis” (People v. Gossman (1949), 95 Cal.App.2d 293 , 295, 296 [ 212 P.2d 585 ] ; People v. Babb (1951), 103 Cal. App. 2d 326 , 330 [ 229 P.2d 843 ]) or because the evidence proves a “lesser” offense which insofar as the opinion discloses may or may not have been charged (People v. Duncan (1945), 72 Cal.App.2d 423 , 426 [ 164 P.2d 510 ]).

Since the decisions as to included offenses, so far as they relate to choice of a standard to measure what offenses are “necessarily included” within the meaning of section 1159 of the Penal Code, have not expressly considered or decided the question of selection as between the language of the accusatory pleading and the statutory definition, we base our choice of the specific language of the accusatory pleading upon considerations of fairness to both parties.

The present situation well illustrates the fairness to both the defendant and the People of using the specific accusatory pleading as a yardstick. Because the information charged defendant with taking “an automobile,” he was put on notice that he should be prepared to defend against a showing that he took that particular kind of personal property. Because the information charged that the automobile was taken by robbery, defendant was put on notice that he should be prepared to defend against evidence showing the elements of that crime.

At the trial the prosecutor was able to produce ample evidence that the automobile was taken without the victim’s consent, but the evidence concerning the precise circumstances of its taking was somewhat uncertain. It appears that the prosecutor in the diligent and enlightened performance of his trust anticipated that the evidence at the trial might develop

in this fashion, and that he was well advised to draw the information in the manner in which it is worded.

Had the trial been by jury, both parties could and should have been prepared to request instructions concerning the lesser offense of violating section 503 of the Vehicle Code, because violation of that section, even though it was not included in the statutory definition of robbery, was, by the language of the information, a specifically pleaded but not separately stated lesser offense. Such instructions would be given if the evidence were such (as it was here) that the instructions would be applicable (see People v. Carmen (1951), 36 Cal.2d 768 , 772-774 [1-6] [ 228 P.2d 281 ]); they would be refused if there were no evidence of the lesser offense (see People v. McCoy (1944), 25 Cal.2d 177 , 187 [8a] [ 153 P.2d 315 ]).

Amicus curiae argues that, although in this particular case defendant would benefit by our declaring a rule that the language “offense . . . with which he is charged,” as used in section 1159 of the Penal Code, relates exclusively to and is limited by the basic statutory definition of robbery, and cannot be otherwise related to the crime as actually charged in the information, it would usually be unfair to the prosecutor to assume that by a pleading such as the present one (which is entitled “Robbery (See. 211 P. C.) ”) the prosecutor intended to charge any offense other than robbery as defined by statute and the offenses necessarily included in the basic statutory definition of robbery. Rather, it appears, fairness to the prosecutor requires that we recognize that he may wisely anticipate the very situation which developed at the trial here and may frame his pleading in specific terms to obviate such possibilities as a variance between pleading and proof and the running of the statute of limitations against the lesser offense of violating section 503 of the Vehicle Code. (Conceivably, the prosecutor in the present case could have been even more precise than he was; he could have pleaded, in separate counts, robbery and grand theft by the taking of an automobile and violation of section 503 of the Vehicle Code (see Pen. Code, § 954), in anticipation that the evidence would show one or another of those offenses, although defendant could be convicted of only one of them. In making such observation, however, we do not mean to suggest that a pleading drawn with the care shown in the present case should have been even more carefully drawn.)

Amicus curiae asserts that the view which we adopt will result in harmful consequences to the prosecution in situ

ations where the defendant pleads once in jeopardy or a prior conviction or acquittal of an offense “necessarily included” in a former charge (Pen. Code, § 1023). Amicus curiae suggests a hypothetical situation in which a defendant is accused of murder by a pleading which specifically alleges that the murder was committed in the perpetration of rape, is tried under such accusation, and is acquitted of murder. In this situation, amicus curiae complains, “If rape is an included offense, he [defendant] cannot thereafter be charged with rape even though no instructions were given on rape and no discussion was had on this crime by the jury at the murder trial. ’ ’ Underlying this argument of amicus curiae appear to be assumptions that prosecuting attorneys often make mistakes in pleading and presenting cases and that trial courts are not diligent in giving instructions covering the issues, and the implied request that this court should recognize that such mistakes are common and should protect the People from the consequences of such mistakes. We prefer to assume, as we believe is the ease, that the great majority of prosecuting attorneys are diligent and careful in their preparation and presentation of cases, and that trial judges are at least equally diligent and careful in the discharge of their duties.

Amicus curiae further argues that it is unfair to the defendant to require that he study the accusatory pleading to determine whether he is charged with offenses other than the greatest (most inclusive) crime alleged and offenses ncessarily included in the statutory definition of such greatest crime. Manifestly, in onr view, it does not appear unfair to give the accused notice of the general facts which the prosecution expects to prove by pleading details of the greatest offense charged. Rather, a pleading which forthrightly alleges not only the statutory language of the greatest offense charged but also known details as to the manner of its commission is more helpful to a defendant, particularly if he is innocent, and is more fair and, hence, more worthy of the proper stature of the state’s attorney than a pleading which alleges the general statutory language and no more.

In connection with his argument concerning asserted unfairness to those accused of crime, amicus curiae refers to eases which hold that a defendant cannot by demurrer obtain a separate statement, in separate counts, of “lesser” offenses which are alleged not as distinct crimes but by specific description of the manner in which the “greatest” offense was committed. (People v. Casserio (1936), supra, 16 Cal.App.2d 223 ,

226; People v. Izlar (1908), 8 Cal.App. 600 , 604 [ 97 P. 685 ].) A defendant is not put at any peculiar disadvantage in this respect by permitting the use of the accusatory pleading as the measure of included offenses, rather than limiting such measure solely to the statutory definition of the “greatest” offense charged. We know of no rule or practice which would permit a defendant charged in the language of the statute defining a crime to obtain a separate statement of all offenses necessarily included in the statutory definition.

Defendant’s motion to strike from the notice of appeal the reference to a purported appeal from the “verdict” is granted. For the reasons above stated the judgment is affirmed.

Gibson, C. J., Carter, J., Traynor, J., Spence, J., and McComb, J., concurred.

The petitions of appellant and of respondent for a rehearing were denied May 15, 1957. Shenk, J., was of the opinion that the petitions should be granted.