1822. Unlawful Taking of Bicycle or Vessel
The defendant is charged [in Count ______] with unlawfully taking a (bicycle/vessel).
To prove that the defendant is guilty of this charge, the People must prove that:
1. The defendant took someone else's (bicycle/vessel) without the owner's consent;
2. When the defendant acted, (he/she) intended to use [or operate] the (bicycle/vessel) for any period of time.
[A taking requires that the (bicycle/vessel) be moved for any distance, no matter how slight.]
[A vessel includes ships of all kinds, steamboats, steamships, canal boats, barges, sailing vessels, and any structure intended to transport people or merchandise over water.]
The court has a sua sponte duty to give this instruction defining the elements of the crime.
The defendant cannot be convicted of both unlawfully taking a bicycle or vessel and receiving the same item as stolen property where there is evidence of only one act or transaction. (See 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].) Similarly, a defendant cannot be convicted of both an unlawful taking and theft of the same item in the absence of evidence showing a substantial break between the theft and the use of the property. (See People v. Kehoe (1949) 33 Cal.2d 711, 715 [204 P.2d 321]; People v. Malamut (1971) 16 Cal.App.3d 237, 242 [93 Cal.Rptr. 782].) In such cases, the court has a sua sponte duty to instruct the jury that the defendant cannot be convicted of both offenses. Give CALCRIM No. 3516, Multiple Counts: Alternative Charges for One Event.
On request, give the bracketed definition of "taking." (People v. White (1945) 71 Cal.App.2d 524, 525 [162 P.2d 862].)
If the defendant is charged with a felony based on a qualifying prior conviction under Penal Code section 499, the court must give either CALCRIM No. 3100, Prior Conviction: Nonbifurcated Trial or CALCRIM No. 3101, Prior Conviction: Bifurcated Trial, unless the defendant stipulates to the truth of the conviction.
Elements. Pen. Code, § 499b.
Felony Offense If Qualifying Prior Conviction. Pen. Code, § 499.
Vessel Defined. Harb. & Nav. Code, § 21.
Taking Defined. People v. White (1945) 71 Cal.App.2d 524, 525 [162 P.2d 862]; People v. Frye (1994) 28 Cal.App.4th 1080, 1088 [34 Cal.Rptr.2d 180].
Expiration of Owner's Consent. People v. Hutchings (1966) 242 Cal.App.2d 294, 295 [51 Cal.Rptr. 415].
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Property, § 71.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes Against Property § 143.01[j], [e] (Matthew Bender).
Prior to 1997, this statute also applied to the taking of vehicles. (See People v. Howard (1997) 57 Cal.App.4th 323, 326, fn. 2 [66 Cal.Rptr.2d 849].) The Legislature determined that the previous statute was duplicative of Vehicle Code section 10851 and, therefore, restricted the scope of the statute to only bicycles and, later, vessels. (Stats. 1996, ch. 660, § 3; see People v. Howard, supra, 57 Cal.App.4th at p. 326, fn. 2.)
Prior to this amendment, a split in authority developed over whether this is a specific-intent crime. The statute requires that the defendant take the item "for the purpose of temporarily using or operating" it. (Pen. Code, § 499b(a) & (b).) Analyzing the statute when it still applied to vehicles, the majority of cases held that this required the specific intent to use or operate the vehicle. (People v. Howard (1997) 57 Cal.App.4th 323, 327- 328 [66 Cal.Rptr.2d 849]; People v. Ivans (1992) 2 Cal.App.4th 1654, 1663-1664 [4 Cal.Rptr.2d 66]; People v. Diaz (1989) 212 Cal.App.3d 745, 749-751 [260 Cal.Rptr. 806].) One case, however, held that this was a general-intent crime requiring only that the vehicle be taken by an act of driving or operating. (People v. Frye (1994) 28 Cal.App.4th 1080, 1090- 1091 [34 Cal.Rptr.2d 180].) The reasoning of the court in People v. Frye, supra, is based on the premise that one "takes" a vehicle by driving or operating it. (Id. at p. 1091 ["the 'taking' proscribed by Penal Code section 499b is an act of taking possession through driving . . . ."].) As discussed in People v. Howard, supra, however, one may "take" a vehicle without driving or operating it, such as by towing it. This distinction is even more apparent in the context of bicycles and vessels, the only items now covered by the statute. One can "take" a bicycle without using or operating it by simply carrying it away. Similarly, if a vessel is on land, one can "take" it without using or operating it by towing it away. In such circumstances, it would appear that the person has not violated Penal Code section 499b unless there is some evidence that he or she also intends to use or operate the bicycle or vessel. Thus, in light of the amendments to the statute, the committee believes that the reasoning of Howard and Diaz, supra, finding this to be a specific-intent crime, is more persuasive.
Lesser Included Offenses
Attempted Unlawful Taking of Bicycle or Vessel. Pen. Code, § 664; Pen. Code, § 499b.
If the defendant is charged with a felony based on a prior conviction, then the misdemeanor offense is a lesser included offense. The court must provide the jury with a verdict form on which the jury will indicate if the prior conviction has been proved. If the jury finds that the prior conviction has not been proved, then the offense should be set at a misdemeanor.
(New January 2006)