Opinion
No. 57606-2-I.
April 30, 2007.
Appeal from a judgment of the Superior Court for King County, No. 05-1-04684-4, Michael Heavey, J., entered December 5, 2006.
Affirmed by unpublished per curiam opinion.
A specific statute is concurrent with a general statute when a person cannot violate the specific statute without also violating the general one. A person could commit attempted second degree joyriding by trying to drive away with someone else's car worth less than $1,500. That person would not have attempted a first degree theft. Thus, the trial court properly ruled that the statutes defining attempted first degree theft and attempted second degree joyriding are not concurrent. Appellant's conviction satisfied the elements of attempted first degree theft, and it will not be disturbed.
According to the testimony at trial, Jason Verwey opened the driver side door of his car one evening in February 2005. To his surprise, a man, Jason Rogers, stepped out of the car. Rogers said that he had not taken anything, though he had "messed up your ignition a little bit." He asked Verwey not to call the police. Rogers tried to run away, but police arrived and arrested him.
Report of Proceedings (June 20, 2005) at 5.
Police investigation showed that the ignition lock and ignition of Verwey's car had been severely damaged, consistent with an attempt to start the car without its key. Police also found a pair of scissors in Rogers's jacket that could have caused the damage. None of Verwey's possessions had been disturbed. Police placed the car's "Blue Book" value at $5,755.
Report of Proceedings (June 21, 2005) at 69.
The State charged Rogers with attempted first degree theft. Rogers did not testify at the trial, and a jury convicted him. The court imposed a sentence of just over 32 months in prison. Rogers appeals.
Rogers contends his conviction must be reversed because his attempt at crime was improperly charged under the general statute that prohibits first degree theft instead of the specific statute that prohibits second degree joyriding.
Where a special statute punishes conduct that is concurrently punished under a general statute, the defendant must be charged under the special statute. For the statutes to be concurrent, each violation of the special statute must result in a violation of the general statute. The special statute will supersede the general only so long as it is not possible to commit the special crime without also committing the general crime. State v. Walker, 75 Wn. App. 101, 105, 879 P.2d 957 (1994).
In Walker, the defendant took without permission a car worth $6,300 and drove it to Los Angeles, where he was found and arrested. Convicted of first degree theft, he argued on appeal that the conviction could not stand because first degree theft is concurrent with second degree joyriding (taking a motor vehicle without permission), and the latter statute is more specific. The court affirmed the conviction after holding the statutes were not concurrent. A person could commit second degree joyriding by taking a motor vehicle valued at less than $1,500 without permission, and that act would not be a first degree theft. Walker, 75 Wn. App. at 106. Furthermore, a person could commit second degree joyriding simply by taking a car for a spin around the block without any intent to deprive the owner of its use, whereas theft requires proof of intent to deprive. Walker, 75 Wn. App. at 106-107.
Notwithstanding Walker, Rogers contends that attempted second degree joyriding and attempted first degree theft are concurrent. His argument is unpersuasive. Under Walker, a person who attempts to steal a car worth less than $1,500 has not attempted a first degree theft.
Rogers contends the monetary value element of attempted first degree theft is irrelevant and that in his particular case the statutes are concurrent because the car he attempted to steal was worth more than $1,500. Rogers is incorrect. Statutes are concurrent only when "each violation of the special statute must result in a violation of the general statute." Walker, 75 Wn. App. at 105 (emphasis added). Even if Rogers might have been liable under both statutes, the same is not true of every commission of attempted second degree joyriding.
Charging a defendant with violating a general statute when a concurrent special statute is applicable can also result in an equal protection violation. State v. Karp, 69 Wn. App. 369, 372, 848 P.2d 1304 (1993). Because the elements of the two crimes here are not the same, the statutes are not concurrent, and Rogers's claim of an equal protection violation likewise fails. By choosing to charge Rogers with first degree theft, the State took on the additional burden of proving the car's value. The State's decision was therefore not "arbitrary", as Rogers describes it.
Rogers also contends the court's instructions incorrectly stated the intent element of attempted first degree theft.
The instructions correctly informed the jury that to convict Rogers of attempted first degree theft, they had to find beyond a reasonable doubt that he "did an act which was a substantial step toward the commission of Theft 1st] Degree" and that "the act was done with the intent to commit Theft 1st Degree". The instructions defined first degree theft as "theft of property or services exceeding $1,500 in value." The instructions then defined "Theft": "to wrongfully obtain or exert unauthorized control over the property of another, or the value thereof, with intent to deprive that person of such property."
Clerk's Papers at 19 (Instruction 9).
Clerk's Papers at 22 (Instruction 12).
Clerk's Papers at 21 (Instruction 11) (emphasis added).
Rogers contends that Walker added a durational element to first degree theft that should have been included in his instructions. This is a misreading of Walker. Under Walker, proof that an item has been taken for a substantial period of time may help to establish the intent element of theft, but proof of duration is not required as an element. By contrast, intent to deprive is not an element of second degree joyriding; to establish that crime the State need prove only that the initial taking was unauthorized. Walker, 75 Wn. App. at 106-107, following State v. Clark, 96 Wn.2d 686, 691, 638 P.2d 572 (1982).
Rogers also contends that attempted second degree joyriding and second degree vehicle prowling are lesser included offenses of attempted first degree theft. He claims the court erred in refusing to give the lesser included offense instructions he proposed.
We apply a two part test to decide whether a lesser offense is included within the charged offense. The legal prong requires each of the elements of the lesser offense to be a necessary element of the offense charged. The factual prong requires that the evidence support an inference that the lesser crime was committed. State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978). Here, only the legal prong is at issue. Analysis of the legal prong "is applied to the offenses as charged and prosecuted, rather than to the offenses as they broadly appear in statute". State v. Berlin, 133 Wn.2d 541, 548, 947 P.2d 700 (1997).
Under the legal prong, if it is possible to commit the greater offense without having committed the lesser offense, the latter is not an included crime. The elements of the lesser offense must be necessarily and invariably included among the elements of the greater charged offense. State v. Porter, 150 Wn.2d 732, 736, 82 P.3d 234 (2004).
A person is guilty of theft in the first degree when he or she commits theft of property worth more than $1,500. RCW 9A.56.030(1)(a). Theft means to wrongfully obtain the property of another with intent to deprive him or her of such property. RCW 9A.56.020(1)(a).
A person is guilty of second degree joyriding if that person, "without permission of the owner or person entitled to possession, intentionally takes or drives away any automobile or motor vehicle . . . that is the property of another". RCW 9A.56.075(1).
A person is guilty of second degree vehicle prowling if, "with intent to commit a crime against a person or property therein, he enters or remains unlawfully in a vehicle". RCW 9A.52.100(1).
A person is guilty of an attempt to commit a crime if, with intent to commit a specific crime, he or she does any act which is a substantial step toward the commission of that crime. RCW 9A.28.020(1).
Rogers contends that because the information alleged that he took a car, the charged crime was "attempted first degree theft of a car". He argues that attempted joyriding and vehicle prowling are included in an attempted theft of a car. This argument is unfounded. There is no crime of "theft of a car." The crime charged was theft.
Reply Brief of Appellant at 4.
The legal prong requires examination of the elements of the greater offense as charged, not the evidence presented to prove those elements. For example, fourth degree assault is not a lesser included offense when the charge is attempted first degree rape because first degree rape can be attempted without a touching that amounts to an assault. State v. Aumick, 126 Wn.2d 422, 428, 894 P.2d 1325 (1995). Similarly here, a person could attempt a first degree theft without attempting joyriding or vehicle prowling, simply by attempting to steal something other than a vehicle.
We conclude the trial court properly rejected the proposed lesser included instructions.
Affirmed.
FOR THE COURT: