People v. Zervas

California Court of Appeal Nov 17, 1943 No. Crim. 2270Published

Before: Peters

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Holding. The evidence was insufficient as a matter of law to sustain the defendants' convictions for violating Vehicle Code section 503 because the prosecution failed to prove the required specific intent to deprive the owner of possession of the vehicle.

Issues

Whether the evidence was sufficient to support a conviction under Vehicle Code section 503 for defendants who were passengers in a stolen vehicle.
Whether the specific intent to deprive an owner of possession of a vehicle can be inferred solely from being a passenger in a stolen car.

Disposition. reversed

Quotations verified verbatim against the opinion

“The intent is made an affirmative element of the crime and consequently must be proved as a fact.”

“Certainly it cannot be reasonably inferred that because Zervas and Rosales were riding as passengers in a stolen car that they knew it was stolen and intended to deprive the owner unlawfully of his right to the possession of the car.”

[382]

PETERS, P. J.

Lawrence Zervas, Joseph Rosales and Theodore Evilsisor were charged, by information, with a violation of section 503 of the Vehicle Code. That section provides in part that: “Any person who drives or takes.a vehicle not his own, without the consent of the owner thereof and in the absence of the owner, and with intent to either permanently of temporarily deprive the owner thereof of his title to or possession of such vehicle, whether with or without intent to steal the same, or any person who is a party or accessory to or an accomplice in any such driving or unauthorized taking or stealing is guilty of a felony . . Zervas was also charged with a prior grand theft conviction, and Rosales was charged with two prior robbery convictions. Evilsisor pleaded guilty to the offense charged. Zervas and Rosales were tried by the court without a jury and found guilty. Prom the judgment of conviction, and from the order denying their motion for a new trial, Zervas and Rosales appeal.

The prosecution called but two witnesses. The first of these was Bert Rosenberg, owner of the car in question. He testified that at about 4:00 p. m. on March 17, 1943, he left his ear in a parking lot on Ellis Street in San Francisco; that he left the ignition keys in the ear; that- when he returned to the lot at 10:00 p. m. the car was gone; that he had given no one his consent to take the car; that the police returned the car to him at about 4:20 a. m., March 18, 1943; that the car had not been damaged in any way.

The second witness was William Osterloh, the arresting officer. He testified that he was on duty in a radio car during the early morning of March 18, 1943; that he observed the car at about 3:50 a. m. and discovered it was a car that had been reported stolen; that Evilsisor was driving and Zervas and Rosales were riding in the back seat; that he and officer Hallman followed the car two blocks when it stalled; that he and his associate arrested the three occupants; that when he took the three men to the police station he questioned them as to their past records, but had no conversation with them about the possession of the car. The prosecution rested on this evidence.

Zervas testified that he lives in Marin City and works for Marinship; that he knew Rosales and Evilsisor; that on March 17, 1943, he came to San Francisco with Rosales; that they arrived at 7th and Mission Streets at about 10:00 p. m.; that they visited two penny arcades and a bowling alley; that they

People v. Zervas

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PETERS, P. J.

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