gno.law

People v. Sanders CA4/1

California Court of Appeal · D066139 · 2015-03-27 · Unpublished

Proceeding
appeal from a judgment
Trial court
Superior Court of San Diego County · No. SCD251920
Trial judge
Joan P. Weber
Outcome
affirmed — Affirmed.
Area
criminal
Panel
Patricia D. Benke (author), Alex C. McDonald, Joan K. Irion

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:20Z · confidence high

The trial court denied the defense's request for a jury instruction on the lesser included offense of attempted unlawful taking and driving a vehicle, finding that the defendant's movement of the car constituted a completed taking. The Court of Appeal affirmed the judgment, holding that the evidence of the car being moved from its stall to the exit booth established a completed taking, rendering the lesser included offense instruction unnecessary.

Ruling reviewedStandardThe courtThe model
Denial of defense request for jury instruction on lesser included offense of attempted unlawful taking and driving a vehicle.
“Because her doing so constitutes a completed taking and not an attempt, we conclude the court was correct in refusing to instruct on the lesser included offense of attempt.”
unclearcorrectagree with court
The appellate court correctly applied the standard from People v. Breverman, which requires a lesser included offense instruction only when the evidence raises a question as to whether all elements of the charged offense were present. Here, the undisputed fact that the vehicle was moved from the stall to the exit booth satisfied the element of 'taking' under CALCRIM No. 1820, which defines a taking as moving the vehicle 'for any distance, no matter how small.' Because the evidence established a completed taking, the court was not required to instruct on the lesser included offense of attempt. The court's reliance on People v. Frye and People v. Malamut further supports the conclusion that driving the car without consent constitutes a violation of section 10851, regardless of whether the car left the property.

Authorities

  • relied: People v. Breverman (1998) 19 Cal.4th 142 — A court has a sua sponte duty to instruct on lesser included offenses only when the evidence raises a question as to whether all elements of the charged offense were present.
  • relied: People v. Wickersham (1982) 32 Cal.3d 307 — The obligation to instruct on lesser included offenses does not exist when there is no evidence that the offense was less than that charged.
  • relied: People v. Flannel (1979) 25 Cal.3d 668 — Absent evidence that the offense was less than that charged, no instruction on a lesser included offense need be given.
  • relied: People v. Frye (1994) 28 Cal.App.4th 1080 — A defendant can violate section 10851 simply by the act of driving the car without the owner's consent.
  • relied: People v. Malamut (1971) 16 Cal.App.3d 237 — A defendant can violate section 10851 simply by the act of driving the car without the owner's consent.
  • relied: People v. White (1945) 71 Cal.App.2d 524 — Asportation is sufficient to constitute a taking when the vehicle is moved without the owner's consent and with the specific intent to deprive the owner of possession.

The appellate opinion: sound — The opinion is sound because it correctly applies the established legal standard for lesser included offense instructions and accurately interprets the definition of 'taking' under Vehicle Code section 10851. The court effectively addresses the defendant's argument by distinguishing between a completed taking (moving the car) and an attempt, relying on clear statutory definitions and prior case law.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence medium

A San Diego jury convicted Sylvia Sanders of unlawful taking and driving a vehicle (Veh. Code, § 10851, subd. (a)) after she drove a rental car from its stall to the agency's exit booth without having rented it, and the trial court refused her request to instruct on attempted unlawful taking, sentencing her to 32 months. The Court of Appeal affirmed, holding that moving the car any distance is a completed taking under section 10851, so there was no evidence supporting an attempt instruction.

Ruling reviewedStandardThe courtThe model
Refusal to instruct the jury on the lesser included offense of attempted unlawful taking and driving of a vehicle
“Because her doing so constitutes a completed taking and not an attempt, we conclude the court was correct in refusing to instruct on the lesser included offense of attempt.”
unclearcorrectagree with court
The opinion does not expressly name a standard, though refusal to instruct on a lesser included offense is reviewed independently. Under Breverman a lesser included instruction is required only when substantial evidence shows the offense was less than charged. Section 10851 is violated by driving a vehicle without consent, and CALCRIM No. 1820 and Frye/Malamut confirm that movement of any distance is a taking. Sanders undisputedly drove the car from the stall to the exit booth, so there was no evidence of a mere attempt; the gate bar and spikes stopping her exit go to asportation beyond the lot, which the statute does not require. The court's additional reliance on the jury's intent finding is weak because a conviction of the greater offense does not itself show the instruction was unnecessary, but the core holding that the record showed only a completed taking is correct.

Authorities

  • relied: People v. Breverman (1998) 19 Cal.4th 142 — A trial court must sua sponte instruct on lesser included offenses when the evidence raises a question whether all elements of the charged offense were present, but not when there is no evidence the offense was less than charged.
  • relied: People v. Wickersham (1982) 32 Cal.3d 307 — No lesser included offense instruction is required absent evidence that the offense was less than that charged.
  • relied: People v. Barton (1995) 12 Cal.4th 186 — Cited as disapproving Wickersham on other grounds.
  • relied: People v. Flannel (1979) 25 Cal.3d 668 — Absent evidence supporting a lesser offense, no instruction on it need be given.
  • relied: People v. Frye (1994) 28 Cal.App.4th 1080 — A defendant can violate Vehicle Code section 10851 simply by driving a vehicle without the owner's consent.
  • relied: People v. Malamut (1971) 16 Cal.App.3d 237 — Driving a vehicle without the owner's consent is itself a violation of section 10851.
  • relied: People v. White (1945) 71 Cal.App.2d 524 — Moving a vehicle without consent and with intent to deprive the owner of possession is sufficient asportation to constitute a taking.

The appellate opinion: sound with gaps — The court correctly applied Breverman and the settled rule that any movement of a vehicle without consent completes a section 10851 taking or driving, which disposes of the attempt argument. It did not state the standard of review and leaned on the jury's intent finding and the defendant's failure to challenge CALCRIM No. 1820, reasoning that is circular on whether an instruction should have been given, though the result does not depend on it.

How this analysis was made · dispute it

Opinion

Filed 3/27/15 P. v. Sanders CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D066139

Plaintiff and Respondent, v. (Super. Ct. No. SCD251920)

SYLVIA SANDERS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Joan P.

Weber, Judge. Affirmed.

Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Collette C.

Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant and appellant Sylvia Sanders of unlawful taking and driving a vehicle (Veh. Code,1 § 10851, subd. (a)). Sanders appeals, contending the court committed prejudicial error by failing to instruct the jury on the lesser included offense of attempted unlawful taking and driving a vehicle. As we explain, we reject this contention and affirm the judgment of conviction.

FACTUAL BACKGROUND

In mid-October 2013, Sanders entered a rental car agency (agency) at approximately 5:00 a.m., approached an agency employee and stated she had a car reservation. When the agency employee was unable to find Sanders's reservation, the employee asked Sanders for her driver's license. In response, Sanders provided a California identification card. Because Sanders had neither a valid driver's license nor a credit card, the employee declined to rent Sanders a car.

An agency employee testified that when a person rents a car, the customer is directed to a "stall" in the car lot to retrieve the rental, which is left unlocked with the keys in the ignition. The customer must then exit the lot through an exit booth, where an agency employee scans a barcode on the car and confirms the customer rental information. The employee also cross-references the customer's driver's license and rental contract to ensure the customer is renting the correct car. Once confirmed, the employee pushes a button that operates a gate bar and tire spikes, allowing the customer to safely exit the lot.

An agency employee was working the exit booth when Sanders approached in an 1 All statutory references are to the Vehicle Code. 2 agency rental car. When the employee scanned the rental car's bar code, no information appeared. When asked by the employee, Sanders was unable to provide either a rental contract or a driver's license, and was also not a "Gold Customer," a category of customers who have their contract printed at the exit booth instead of in the lobby.

Believing Sanders had left her license in the lobby, the employee called and spoke to the agency employee who confirmed she had declined to rent Sanders a car. The agency employee called the police. When officers arrived, they ordered Sanders out of the rental car and placed her under arrest.

PROCEDURAL BACKGROUND

At the conclusion of trial, the defense requested a jury instruction on the lesser included offense of "attempted car theft." Because the rental car never left the agency parking lot, the defense argued a taking did not occur but rather only an attempt. The People responded by citing to CALCRIM No. 1820 (discussed post) and arguing that, because Sanders moved the car, a taking occured. The court agreed with the People, found the vehicle had been "moved a distance" but that the "issue in the case is more what was her intent[.]" As noted, the jury subsequently found Sanders guilty of an unlawful taking in violation of section 10851, subdivision (a). The court sentenced Sanders to 32 months in state prison.

DISCUSSION

A court has the sua sponte duty to instruct the jury "'"on the general principles of law relevant to the issues raised by the evidence. . . ." [Citation.] That obligation has 3 been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.'"

(People v. Breverman (1998) 19 Cal.4th 142, 154; see People v. Wickersham (1982) 32 Cal.3d 307, 323 (Wickersham), disapproved on other grounds in People v. Barton (1995)

12 Cal.4th 186, 200-201.) Absent such evidence, no instruction on a lesser included offense need be given. (People v. Flannel (1979) 25 Cal.3d 668, 684; Wickersham, at pp.

324-325.)

Section 10851, subdivision (a) prohibits taking or driving a vehicle without its owner's consent with the intent to permanently or temporarily deprive the owner of the possession of the vehicle. A "taking" merely requires that "the vehicle be moved for any distance, no matter how small." (CALCRIM No. 1820.) Thus, a defendant can violate section 10851 simply by the act of driving the car without the owner's consent. (People v. Frye (1994) 28 Cal.App.4th 1080, 1086; People v. Malamut (1971) 16 Cal.App.3d 237, 241-242.)

Here, Sanders argues that because she never left the agency rental lot, she merely attempted an unlawful taking, as the agency never lost possession of the vehicle.

However, the record shows that she moved the rental car when she drove it from the "stall" it was parked in to the exit booth. Because her doing so constitutes a completed taking and not an attempt, we conclude the court was correct in refusing to instruct on the lesser included offense of attempt. Moreover, the court was correct in finding that the 4 issue of whether there was an unlawful taking or driving hinged on Sanders's intent, which the record shows the jury resolved against Sanders.

Indeed, the fact that Sanders did not leave the agency parking lot is a red herring because the jury found that Sanders had the specific intent to deprive the agency of the possession and ownership of its vehicle. The record shows Sanders also did not rebut this finding or challenge the instruction given to the jury defining a "taking" (CALCRIM No.

1820). Finally, the record supports the finding that Sanders would have left the agency's lot if she had not been stopped at the exit booth by the gate bar and ground spikes.

Because Sanders moved the vehicle without renting it and because she did so with the specific intent to deprive the owner of possession, the asportation was sufficient to constitute a taking. (People v. White (1945) 71 Cal.App.2d 524, 525.)

DISPOSITION

The judgment of conviction is affirmed.

BENKE, Acting P. J.

WE CONCUR:

McDONALD, J.

IRION, J.

Cites, in this corpus