California Criminal Jury Instructions (CALCRIM) (2017)

1820. Unlawful Taking or Driving of Vehicle

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B. TAKING OR TAMPERING WITH VEHICLE
1820.Unlawful Taking or Driving of Vehicle (Veh. Code,
§10851(a), (b))
The defendant is charged [in Count ] with unlawfully taking or
driving a vehicle [in violation of Vehicle Code section 10851].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant took or drove someone else’s vehicle without the
owner’s consent;
AND
2. When the defendant did so, (he/she) intended to deprive the
owner of possession or ownership of the vehicle for any period of
time.
[Even if you conclude that the owner had allowed the defendant or
someone else to take or drive the vehicle before, you may not conclude
that the owner consented to the driving or taking on
<insert date of alleged crime> based on that previous consent alone.]
[A taking requires that the vehicle be moved for any distance, no matter
how small.]
[A vehicle includes a (passenger vehicle/motorcycle/motor scooter/bus/
schoolbus/commercial vehicle/truck tractor/ [and] trailer/ [and]
semitrailer/ <insert other type of vehicle>).]
<Sentencing Factor: Ambulance, Police Vehicle, Fire Dept. Vehicle>
[If you find the defendant guilty of unlawfully taking or driving a
vehicle, you must then decide whether the People have proved the
additional allegation that the defendant took or drove an emergency
vehicle on call. To prove this allegation, the People must prove that:
1. The vehicle was (an ambulance/a distinctively marked law
enforcement vehicle/a distinctively marked fire department
vehicle);
2. The vehicle was on an emergency call when it was taken;
AND
3. The defendant knew that the vehicle was on an emergency call.
The People have the burden of proving this allegation beyond a
reasonable doubt. If the People have not met this burden, you must find
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that the allegation has not been proved.]
<Sentencing Factor: Modified for Disabled Person>
[If you find the defendant guilty of unlawfully taking or driving a
vehicle, you must then decide whether the People have proved the
additional allegation that the defendant took or drove a vehicle modified
for a disabled person. To prove this allegation, the People must prove
that:
1. The vehicle was modified for the use of a disabled person;
2. The vehicle displayed a distinguishing license plate or placard
issued to disabled persons;
AND
3. The defendant knew or reasonably should have known that the
vehicle was so modified and displayed the distinguishing plate or
placard.
The People have the burden of proving this allegation beyond a
reasonable doubt. If the People have not met this burden, you must find
that the allegation has not been proved.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
If the prosecution alleges that the vehicle was an emergency vehicle or was
modified for a disabled person, the court has a sua sponte duty to instruct on the
sentencing factor. (Veh. Code, § 10851(b); see Veh. Code, § 10851(d) [fact issues
for jury].)
If the defendant is charged with unlawfully driving or taking an automobile and
with receiving the vehicle as stolen property, and there is evidence of only one act
or transaction, the trial court has a sua sponte duty to instruct the jury that the
defendant cannot be convicted of both stealing the vehicle and receiving a stolen
vehicle. (People v. Black (1990) 222 Cal.App.3d 523, 525 [271 Cal.Rptr. 771];
People v. Strong (1994) 30 Cal.App.4th 366, 376 [35 Cal.Rptr.2d 494].) In such
cases, give CALCRIM No. 3516, Multiple Counts: Alternative Charges for One
Event—Dual Conviction Prohibited.
Similarly, a defendant cannot be convicted of grand theft of a vehicle and
unlawfully taking the vehicle in the absence of any evidence showing a substantial
break between the taking and the use of the vehicle. (People v. Kehoe (1949) 33
Cal.2d 711, 715 [204 P.2d 321]; see People v. Malamut (1971) 16 Cal.App.3d 237,
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242 [93 Cal.Rptr. 782] [finding substantial lapse between theft and driving].) In
such cases, give CALCRIM No. 3516, Multiple Counts: Alternative Charges for
One Event—Dual Conviction Prohibited.
The bracketed paragraph that begins with “Even if you conclude that” may be
given on request if there is evidence that the owner of the vehicle previously
agreed to let the defendant or another person drive or take the vehicle. (Veh. Code,
§ 10851(c).)
The bracketed sentence defining “taking” may be given on request if there is a
question whether a vehicle that was taken was moved any distance. (People v.
White (1945) 71 Cal.App.2d 524, 525 [162 P.2d 862].)
The definition of “vehicle” may be given on request. (See Veh. Code, § 670
[“vehicle” defined].)
AUTHORITY
• Elements. Veh. Code, § 10851(a), (b); De Mond v. Superior Court (1962) 57
Cal.2d 340, 344 [368 P.2d 865].
• Ambulance Defined. Veh. Code, § 165(a).
• Owner Defined. Veh. Code, § 460.
• Application to Trolley Coaches. Veh. Code, § 21051.
• Expiration of Owner’s Consent to Drive. People v. Hutchings (1966) 242
Cal.App.2d 294, 295 [51 Cal.Rptr. 415].
• Taking Defined. People v. White (1945) 71 Cal.App.2d 524, 525 [162 P.2d
862] [any removal, however slight, constitutes taking]; People v. Frye (1994) 28
Cal.App.4th 1080, 1088 [34 Cal.Rptr.2d 180] [taking is limited to removing
vehicle from owner’s possession].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against
Property, §§ 66–71.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.10A, Ch. 143, Crimes Against Property,
§ 143.01[1][j], [2][c], [4][c] (Matthew Bender).
LESSER INCLUDED OFFENSES
• Attempted Unlawful Driving or Taking of Vehicle. Pen. Code, § 664; Veh.
Code, § 10851(a), (b).
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RELATED ISSUES
Other Modes of Transportation
The “joyriding” statute, Penal Code section 499b, now only prohibits the unlawful
taking of bicycles, motorboats, or vessels. The unlawful taking or operation of an
aircraft is a felony, as prohibited by Penal Code section 499d.
Community Property
A spouse who takes a community property vehicle with the intent to temporarily,
not permanently, deprive the other spouse of its use is not guilty of violating
Vehicle Code section 10851. (People v. Llamas (1997) 51 Cal.App.4th 1729,
1739–1740 [60 Cal.Rptr.2d 357].)
Consent Not Vitiated by Fraud
The fact that an owner’s consent was obtained by fraud or misrepresentation does
not supply the element of nonconsent. (People v. Cook (1964) 228 Cal.App.2d 716,
719 [39 Cal.Rptr. 802].)
Theft-Related Convictions
A person cannot be convicted of taking a vehicle and receiving it as stolen property
unless the jury finds that the defendant unlawfully drove the vehicle, as opposed to
unlawfully taking it, and there is other evidence that establishes the elements of
receiving stolen property. (People v. Jaramillo (1976) 16 Cal.3d 752, 757–759 [129
Cal.Rptr. 306, 548 P.2d 706]; People v. Cratty (1999) 77 Cal.App.4th 98, 102–103
[91 Cal.Rptr.2d 370]; People v. Strong (1994) 30 Cal.App.4th 366, 372–374 [35
Cal.Rptr.2d 494].)
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