Opinion
Hearing Granted May 2, 1962.
Opinion vacated 23 Cal.Rptr. 161, 373 P.
J. D. Butterwick, Los Angeles, for appellant.
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Jack K. Weber, Deputy Atty. Gen., for respondent.
GRIFFIN, Presiding Justice.
Defendant-appellant was charged with and convicted of violations of Vehicle Code, section 10851, in that he unlawfully drove and took a 1960 Chevrolet station wagon, without consent and with intent to deprive the owner of its possession. Four prior offenses are charged: grand theft (California), forgery (North Dakota), foregery (California), and fictitious check (Utah). On arraignment, after defendant refused court-appointed counsel, he entered a plea of not guilty to the charge and stood mute as to the prior convictions. A denial thereof was accordingly entered. Defendant was found guilty as charged and the first three prior convictions were found to be true. Defendant, in propria persona, appealed from the judgment which followed.
FACTS
Ben Younglove owned the Chevrolet car involved in this action. On November 18, 1960, at about 8:00 p. m., he parked it at an address near Twelfth and Cedar Streets in Riverside. The car had just been filled with gasoline. He left the keys in it. About midnight he came out of the house and discovered that the car was missing. A police officer saw the station wagon proceeding on Eighth Street and Victoria about 1:00 a. m. On Eighth and Mulberry he gave signal by siren to defendant to stop, but defendant continued on to Lemon Street and slowed down. Defendant turned on Lemon Street and again increased his speed and again the officer sounded the siren. Defendant ran two red signal lights at a possible speed of 60 to 65 miles per hour. The Chevrolet traveled faster than the officer's vehicle so the officer fired a shot as defendant was near Brockton Street in Riverside. Defendant then drove over to the curb. The officer asked him questions and in response he gave only his name. There was a bullet hole in the rear license place of the station wagon. From the place where the car was originally left to where the officer first saw it was about one to one and one-quarter miles, and when it stopped it was about five blocks from the original parking place.
DEFENSE
One Robert Pierce, testifying on behalf of defendant, said that defendant was a poor driver but was of good character. Defendant, testifying in his own behalf, testified that he was pardoned on the North Dakota offense and that the Utah conviction was reversed. He admitted the California forgery prior conviction, admitted driving the station wagon involved, but said he had no intent to deprive the owner of its possession and testified that he only drove it about seven blocks; that he took the car without permission just to give himself a chance to determine whether he could make application for a driver's license; that he had it only 20 minutes and was not aware that the police were behind him.
The only points raised on this appeal are: (1) that Vehicle Code, section 10851, was impliedly repealed by Penal Code, section 499b; that when two code provisions purport to punish the same act and prescribe different punishments, they are repugnant and the one last enacted must yield; that where each has been amended since its enactment, the one last amended controls; that the last amendment between the two is the deletion of 'aircraft' from section 499b, a misdemeanor, and hence it supersedes the Vehicle Code section, a felony; (2) that the jury should have been instructed that Penal Code, section 499b is a lesser included offense; (3) insufficiency of the evidence of specific intent to show that defendant intended to deprive the owner of possession; (4) that defendant was deprived of his right to counsel; and (5) that improper evidence was admitted.
REPEAL OF STATUTE
There is some support for defendant's argument in reference to the first claim that there is no clear demarcation between Vehicle Code, section 10851, and Penal Code, sections 499b and 487, subdivision 3, in reference to the taking of automobiles. This problem of establishing a clear line of demarcation between acts and conduct prescribed by Vehicle Code, section 10851, and Penal Code, section 499b, has occupied the minds of members of the Bar, members of the Legislature and trial and appellate court justices in this state. See Vol. 2, Reports of California Law Revision Commission, pp. E-8 to E-16 (1958-1959); 19 So.Cal.L.Rev. 446; 21 So.Cal.L.Rev. 176; 23 So.Cal.L.Rev. 107, 109.
Vehicle Code, section 10851 (formerly section 503), and Penal Code, section 499b, have been distinguished upon a difference in the degree of intent required. See People v. Neal (1940), 40 Cal.App.2d 115, 104 P.2d 382; People v. One 1951 Ford Sedan, 122 Cal.App.2d 680, 265 P.2d 176; People v. Zervas (1943), 61 Cal.App.2d 381, 142 P.2d 946; People v. Bailey, 72 Cal.App.2d Supp. 880, 883, 165 P.2d 558; People v. Orona (1946), 72 Cal.App.2d 478, 164 P.2d 769; People v. Slayden, 73 Cal.App.2d People v. Greene,
'To constitute the offense prohibited by that section, it is not necessary to prove that it was the defendant's intention to steal the machine, or to permanently deprive the owner of his title thereto. The crime may be consummated when one takes and drives a vehicle, not his own, without the consent of the owner, 'with intent to * * * temporarily deprive the owner thereof of his * * * possession of such vehicle.'' (Citing People v. Zervas, supra, 61 Cal.App.2d 381, 142 P.2d 946.)
It is further stated that that section specifically declares such offense to be a felony whether the vehicle is so taken 'with or without intent to steal the same'; that there is a distinction between grand theft of an automobile under Penal Code, section 487, and the offense prohibited by section 503 of the Vehicle Code as above suggested; that there is also a distinction between the offenses prohibited in section 499b of the Penal Code and section 503 of the Vehicle Code; that the former has been called the 'Joy-ride' statute and that it does not require proof of the intent to 'deprive the owner' of either the 'title to or possession of such vehicle'; that the misdemeanor designated by section 499b of the Penal Code may be accomplished by merely taking the machine for temporary use or pleasure of the accused person for a 'joy ride.' The court held that the two sections were not irreconcilably conflicting and said, even if so, the Vehicle Code must prevail since it was last adopted and amended. We see nothing in the amendment of Penal Code, section 499b (Stats.1949, ch. 625, p. 1123) [which eliminated the word 'aircraft' from the section, placing it in the provisions of Penal Code, section 499d, so as to increase the punishment for the theft of an airplane] which would indicate legislative expression or intent of a different construction of Penal Code, section 499b, as compared to Vehicle Code, section 10851, as recodified and reenacted in 1959. In People v. Seeley, 137 Cal. 13, 69 P. 693, it was held that repeals by implication are not favored and code sections must be read and construed together and full effect must be given to each section, if possible. (In re Gamo, 122 Cal.App. 725, 10 P.2d 770; Matter of Petition of Johnson (Cannon Ex parte), 167 Cal. 142, 144, 138 P. 740). To justify the presumption of an intention to repeal one statute by another, either the two statutes must be irreconcilable, or the intent to repeal must be otherwise clearly expressed. (People v. Harmon, 54 Cal.2d 9, 26, 4 Cal.Rptr. 161, 351 P.2d 329; People v. Allen, 170 Cal.App.2d 584, 588, 339 P.2d 642; People v. Derby, 177 Cal.App.2d 626, 630, 2 Cal.Rptr. 401.) It is clear that there is a distinction between the statutes persistently recognized by the authorities. (People v. Orona, supra, 72 Cal.App.2d 478, 164 P.2d 769.) The joy-ride statute, Penal Code, section 499b, does not require the specific intent to deprive the owner of title or possession, as in the felony Vehicle Code provision. (People v. Ray, 162 Cal.App.2d 308, 312, 328 P.2d 219; People v. Bailey, supra, 72 Cal.App.2d Supp. 880, 882, 165 P.2d 558.) We conclude that Penal Code, section 499b, as it now exists, does not impliedly repeal Vehicle Code, section 10851.
INSTRUCTION--INCLUDED OFFENSE
Defendant argues that the court should have instructed the jury that defendant could be convicted of a violation of Penal Code, section 499b, as a lesser included offense. (Citing Jones v. Burgermeister Brewing Corp., 198 A.C.A. 207, 213, 18 Cal.Rptr. 311.) We have not been presented with any authority directly holding that under similar facts as here presented, a violation of that section constitutes an offense included with Vehicle Code, section 10851. In People v. Ragone, 84 Cal.App.2d 476, 481, 191 P.2d 126, the trial court refused such People v. Williams,
People v. Chessman, People v. Johnson, People v. Zabel, People v. Arguilida, People v. Dunlop,Defendant claims that he did argue to the jury on several occasions the distinction between the two sections, which fact is true. But, in connection therewith, he also pointed out that he was charged in the language of Vehicle Code, section 10851. He did not suggest to the jury that it should convict him of any lesser offense. In fact, he told the jury of the distinction and then said:
'Unless you find specifically the intent to deprive the owner of the possession of his vehicle, you cannot find a verdict against the defendant of these charges.'
Defendant did submit a proposed instruction to the effect that if the jury found defendant was guilty of an offense included within the charge, it was its duty to find the defendant not guilty, and a verdict of guilty cannot be found on the included element of the offense charged. The instruction was refused as covered. In another, he stated that if the jury found that defendant did in fact take and drive the vehicle without the permission of the owner and did so without the specific intent to deprive the owner of the vehicle of his possession thereof or title thereto, either temporarily or permanently, then it must find defendant not guilty of the offense charged. This proposed instruction was refused. It contained objectionable features. As indicated, defendant was, throughout the trial, seeking a notguilty verdict predicated on the theory that if the evidence fell short of establishing a violation of Vehicle Code, section 10851, then he should be found not guilty of the charge. There is no indication that he was interested in a verdict of guilty of a lesser charge. In fact, had the trial judge, in view of defendant's defense, instructed the jury, on his own motion, that defendant could be convicted on a lesser offense, defendant would, no doubt, now have been objecting to such an instruction, since his plea to the jury was to be found not guilty on the charge made. (People v. Wright, 167 Cal. 1, 138 P. 349.) Under the circumstances related, there was no duty on the part of the trial judge to further instruct, on his own accord or otherwise, on a claimed lesser included offense. (People v. Ray, supra, 162 Cal.App.2d 308, 328 P.2d 219.)
SPECIFIC INTENT
As to evidence of specific intent of defendant, he relies upon People v. Gibson, 63 Cal.App.2d 632, 146 P.2d 971, involving a bailment of a car. In the instant case, no bailment is involved. Defendant never had any color of right to take the car. He had it over one hour, and possibly longer. The consumption of gasoline would support such an inference. Where defendant takes and uses a car illegally, it does not seem unreasonable to measure his use of the car by the amount of gasoline consumed. There is no evidence that defendant People v. Jeffries,
RIGHT TO COUNSEL
On the issue of defendant's claim that he was deprived of the right to counsel, the record shows that defendant acquired considerable legal knowledge and experience of his own, and that he was well versed in criminal procedure. Through the generosity of the trial judge, he was allowed to spend many hours in the law library, under guard, in the preparation of his defense. He filed many motions during the proceedings, such as, motion to withdraw plea and file demurrer, motion to dismiss the information under Penal Code, section 995, motion for change of venue, motion to compel attendance of witnesses from the county jail in Los Angeles, motion for reduction of bail, motion to order the district attorney to divulge evidence against him, motion to continue the trial date, motion for a new trial, and motion to modify the judgment. All proceedings were prepared and argued by defendant with some considerable understanding of legal procedure and of his legal rights. He also, at his own suggestion, represented himself at the preliminary hearing. When arraigned for plea in the superior court, defendant indicated that he did not care for the services of the public defender but would employ his own attorney. Time was allowed for this purpose. On arraignment of defendant on an amended complaint charging other prior convictions, the judge asked defendant if he was represented by counsel and he said 'No.' He was told he had the right to be represented by counsel and he said he was aware of that fact. The court offered to appoint counsel for him and he said he did not want court-appointed counsel, saying, 'I wish to proceed in propria persona.' He said he clearly understood the nature of the offense with which he was charged. He then moved for a 30-day continuance to plead. After checking the date, the court said, 'You are not trying to get us beyond the statutory time for trial by any chance, are you?' The defendant answered, 'No.' The court allowed one week to plead, at which time defendant moved to be allowed to study in the law library. The court offered to appoint an attorney for defendant, to advise him and to take to defendant any law books he might desire. Defendant refused this offer. Defendant expressed a desire to have the California Reports, the California Appellate Reports, Shepard's Citations, and many other law books, brought to him in jail. The court again warned defendant of the passage of time in reference to trial. A continuance for one week was granted and defendant was taken to the law library, under guard, for the purpose of searching the law. Defendant wanted 50 hours for this purpose. The court granted five days. The court pointed out that defendant had been first arraigned on December 6, 1960, and it was then December 30, 1960, and, after ruling on the motion to dismiss the information, it ordered defendant to plead. Defendant pleaded not guilty to the offense charged and stood mute as to the priors. The case was set for trial for January 30, 1961, in another department. On January 6, 1961, defendant was before the new judge on another motion proposed by him. That judge then offered to appoint an attorney for defendant and he replied that he wished to represent himself. The judge granted defendant two weeks more in the law library. The court then asked if defendant wanted legal assistance at the time of trial and offered to appoint an attorney for him. The court said it could not appoint counsel at the last minute. Defendant promised to notify the court in ample time if he desired the aid of counsel. In the meantime, defendant was before the court on other motions. Defendant stated that he would be ready for trial on January 30, but if the court would set a later date he 'would be willing to waive any rights for a speedy trial.' The court renewed its It does not appear to us that defendant was deprived of representation by counsel or that any error or miscarriage of justice resulted. It is well established that the trial court is not obligated to appoint any particular private attorney suggested by the defendant. Where a defendant charged with a crime is unable to employ counsel, he is not statutorily required to have counsel, particularly if he is competent to decide whether he desires counsel. He has but two choices in the matter of a court-appointed attorney: He can accept representation by counsel or he can elect to represent himself. The accused, in order to waive his right to counsel, need not demonstrate to the court that he possesses the acumen or learning of a skilled lawyer. All that is required is that defendant have an intelligent conception of the consequences of his act in refusing the aid of counsel. (People v. Williams, 174 Cal.App.2d 364, 378, 345 P.2d 47.) The mere fact that defendant does not desire the appointment of the public defender, for personal reasons, is not sufficient grounds to disqualify him and to require the court to appoint private counsel. To hold that a defendant charged with crime has an absolute right to counsel of his own selection, with unlimited right to insist upon continuances of his trial, would be subversive of the prompt administration and execution of the laws. (People v. Shaw, 46 Cal.App.2d 768, 772, 117 P.2d 34; People v. Gonzales, 151 Cal.App.2d 112, 115, 311 P.2d 53; People v. Sylvia, 54 Cal.2d 115, 123, 4 Cal.Rptr. 509, 351 P.2d 781; People v. Akers, 143 Cal.App.2d 224, 228, 299 P.2d 398; People v. Hanz, 190 Cal.App.2d 793, 12 Cal.Rptr. 282; People v. Rogers, 150 Cal.App.2d 403, 416, 309 P.2d 949; People v. Mitchell, 197 A.C.A. 527, 535, 17 Cal.Rptr. 410.) Jones v. Burgermeister Brewing Corp., supra, 198 A.C.A. 207, 213, 18 Cal.Rptr. 311, upon which defendant relies, is factually distinguishable. No abuse of discretion here appears.
IMPROPER CROSS-EXAMINATION
Finally, defendant argues that the district attorney was guilty of prejudicial misconduct in reference to cross-examination of defendant's witness pertaining to defendant's honesty and integrity. The witness was residing in the county jail in Los Angeles Defendant assigned this cross-examination as prejudicial and sought a mistrial, which was denied. It is claimed that the court erred in allowing the prosecution to cross-examine the witness as to knowledge of violation of law rather than to inquire into hearsay reports or rumors of his requtation in the community. (Citing Witkin, California Evidence, sec. 640, p. 685.)
The questions as presented asked if the witness had heard of certain convictions. This might well justify itself as a rumor or report. When a defendant desires to put his character in issue and to show that he is honest, and his integrity is good, he can only secure from a witness the reputation the defendant enjoys in the community. He may not inquire as to specific acts. Until the defendant puts his character in issue, the prosecution may not show that he enjoys a bad reputation. However, when a defendant does put his character in issue by showing a good reputation in the community for truth, honesty or integrity, the prosecution is permitted to rebut that picture by showing that the reputation is bad by other witnesses or by asking the witnesses if they have heard of specific instances that would affect defendant's reputation. Of course the questions propounded must bear upon the traits involved. (People v. Tucker, 164 Cal.App.2d 624, 331 P.2d 160; People v. Workman, 136 Cal.App.2d 898, 901, 289 P.2d 514.) Witkin, California Evidence, at page 682, discusses this subject and cites considerable authority to the effect that:
'The witnesses may be asked, in good faith on the basis of information in the hands of the prosecution whether they had heard reports or rumors of wrongful acts or misconduct committed by the defendant and inconsistent with the traits of good character attributed to him.' (Citing People v. Burke, 18 Cal.App. 72, 88, 122 P. 435.)
In People v. Stennett, 51 Cal.App. 370, 382, 197 P. 372, questions were asked as to whether the witness had ever heard that defendant had been previously convicted of patty larceny; in People v. Gin Shue, 58 Cal.App.2d 625, 137 P.2d 742, witnesses were asked whether they had neard that defendant had been arrested or charged with possession of still, manufacture of whisky, visiting or conducting gambling place, vagrancy. These were held to be proper questions under the circumstances.
'A deliberate attempt by the prosecutor to introduce evidence of specific wrongful acts by inquiries as to knowledge of such acts is misconduct and is often held reversible error.' (Citing People v. McDaniel, 59 Cal.App.2d 672, 677, 140 P.2d 88.) (Witkin, California Evidence, sec. 638, p. 683.)
We see no prejudicial error in the questions as propounded pertaining to reputation. People v. Caldaralla,
The question propounded to the witness asking him if he was then serving time was extraneous and beyond the scope of inquiry permitted by the rule. (People v. Hollander, 194 A.C.A. 395, 405, 14 Cal.Rptr. 917.) However, we believe it produced no prejudicial information that could have had a material bearing on the outcome of the case.
We have examined the entire record, including the evidence, and believe that defendant had a fair and impartial trial. We perceive no error justifying a reversal. (People v. Watson, 46 Cal.2d 818, 299 P.2d 243.)
Judgment affirmed.
SHEPARD and COUGHLIN, JJ., concur.