Grand Theft Auto
Penal Code Section 487(d)(1)
Vehicle Code Section 10851
Vehicle theft can be charged as either Grand Theft Auto under California Penal Code Section 487(d)(1) or as the Unlawful Taking of a Vehicle (joyriding) under California Vehicle Code Section 10851. These two statutes (laws) are similar in to each other but contain some subtle differences, especially with respect to the intent of the defendant. Grand Theft Auto requires the defendant intended to deprive the owner of the car for an extended time. Unlawful Taking of a Vehicle only requires that the defendant intended to take the vehicle for any amount of time.
If the defendant didn’t intend to keep, sell, or damage the vehicle, but was only “joyriding”, the District Attorney (DA) will typically charge the offense under the Unlawful Taking of a Vehicle statute (V.C. 10851) and will usually charge it as a misdemeanor. If the DA believes the defendant intended to keep, sell, or maliciously damage the vehicle, then the DA will charge it as felony Grand Theft Auto under Penal Code Section 487(d)(1).
Elements of the offense (What the DA must prove)
Grand Theft Auto
In order to convict a person of Grand Theft Auto under Penal Code Section 487(d)(1), the DA must be able to prove each of the following elements beyond a reasonable doubt:
- The defendant took possession of a vehicle owned by someone else;
- The defendant took possession of the vehicle without the owner’s consent, or gained consent through trick or fraud, or embezzled the vehicle;
- When the defendant took the vehicle he or she intended to deprive the owner of it permanently or intended to take it from the owner or the owner’s agent for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the vehicle; and
- The defendant moved the vehicle, even a small distance, and kept it for any period of time, however brief.
Unlawful Taking of a Vehicle
To convict a defendant for Unlawful Taking of a Vehicle, commonly called Joyriding, the DA must prove all of these elements:
- The defendant took or drove someone else’s vehicle without the owner’s consent; and
- When the defendant did so, he or she intended to deprive the owner of possession or ownership of the vehicle for any period of time.
Comparing the elements above, it is clear that Grand Theft Auto requires the DA to prove the defendant intended to deprive the owner of the vehicle permanently or for an extended period of time. However, the Unlawful Taking of a Vehicle (joyriding) statute has no such requirement. For joyriding, the DA need only prove that the defendant intended to take the vehicle for any amount of time. This is the major difference between the two charges.
Dan and Paul are roommates. Paul goes on vacation and leaves his car keys at home. Dan, without Paul’s permission, drives Paul’s car while Paul is gone. Dan takes good care of the car, only drives it once to the store, and even fills up the tank. Dan could be convicted of Unlawful Taking of a Vehicle but NOT of Grand Theft Auto since Dan did not intend to keep the car or deprive Paul of its value or use for an extended period of time.
Another difference between the two statutes is that Grand Theft Auto under P.C. §487(d)(1) can be committed even if the owner gives consent for the defendant to take the vehicle, if the consent was obtained by fraud, trick or embezzlement. A defendant cannot be convicted of Unlawful Taking of a Vehicle if consent is given, even through fraud or trick.
Diana is friends with Victor. Diana asks Victor if she can borrow his car to go pick up a friend at the airport. Victor gives consent and gives her the keys. Diana doesn’t really have a friend at the airport. She gives the car to a friend and tells Victor that the car was stolen. Diana could NOT be convicted of Unlawful Taking of a Vehicle under Vehicle Code §10851 because Victor gave her consent. She could, however, be convicted of Grand Theft Auto.
Punishment For Grand Theft Auto And Unlawful Taking Of A Vehicle
Both Grand Theft Auto (Penal Code §487(d)(1)) and Unlawful Taking of a Vehicle or Joyriding (Vehicle Code §10851 are “wobblers”. A wobbler is a crime that can be charged as either a misdemeanor or as a felony. The decision on whether to charge the crime as a misdemeanor or felony is made, initially, by the DA. In making the decision, the DA usually considers the defendant’s record and the circumstances of the offense.
If the DA charges either Grand Theft Auto or Unlawful Taking of a Vehicle as a felony, the defendant’s Orange County criminal defense attorney can bring a motion at the preliminary hearing, asking the judge to reduce the charge to a misdemeanor. The judge, again, will usually consider the circumstances of the offense and the defendant’s criminal history before ruling on the motion.
If either offense, Grand Theft Auto or Unlawful Taking of a Vehicle, is charged as a misdemeanor, it is punishable by up to one year in the Orange County jail and a fine of up to $5,000.00. (With penalty assessment the fine is closer to $15,000.00). If either offense is charged as a felony, it is punishable by 16 months, two years or three years in the California state prison.
If the defendant has a prior felony conviction for either Grand Theft Auto or Unlawful Taking of a Vehicle, then it is no longer a wobbler but must be charged as a felony and is punishable by two, three or four years in the California state prison. Moreover, per Penal Code Section 12022.6, if the value of the vehicle taken exceeds $65,000.00, then the defendant must be punished by an additional one year in the state prison. This year will be added to the underlying punishment. If the value of the vehicle exceeds $200,000.00, two years in the state prison must be added. And if the value of the vehicle exceeds 1.3 million dollars, three years will be added to the sentence.
Mistake of fact
Often, a defendant’s Orange County criminal defense attorney can establish a reasonable mistake of fact as to who the owner was. Perhaps the defendant reasonably thought the vehicle belonged to or was in the lawful possession of someone else who did give consent for defendant to take the vehicle.
For example, the defendant may have purchased the vehicle from someone they believed owned it or may have received consent from someone they reasonably believed was authorized to give it. Sometimes, the defendant had a reasonable belief that they had the legal right to take the vehicle. Example:
Victor and Dave are roommates. On occasion, Victor was unable to make his car payment and borrowed money from Dave to make the payment. Dave may have a reasonable belief that he is legally entitled to take the vehicle as he is “part owner” of it.
If the owner of the vehicle has given consent, this is a defense that can be raised by the defendant’s criminal defense attorney in Orange County. Although the fact that the owner has given consent in the past is no defense, it can be used to show a pattern. If the owner did or said something that could be construed as consent in this case, then the defense of consent may be available.
If the defendant’s criminal defense lawyer in Orange County can show that the defendant did not intend to deprive the owner of the vehicle for an extended period of time, this is a defense to the charge of Grand Theft Auto.
Free Consultation With An Orange County Criminal Defense Lawyer
If you are facing charges for Penal Code §487(d)(1), Grand Theft Auto, or Vehicle Code §10851, Unlawful Taking of a Vehicle, call The Law Office of EJ Stopyro today at (949) 559-5500 for a free and confidential telephonic consultation with an experienced Orange County criminal defense lawyer. For convenience to our clients we have meeting offices throughout Orange County.