People v. Dorsey

Opinion

STEPHENS, J.

Defendants were charged in consolidated informations with committing the crime of attempted grand theft, a violation of Penal Code sections 487, subdivision 3, and 664, a felony. Defendants entered pleas of not guilty, and after motions under Penal Code sections 1538.5 and 995, the trial was had, with the evidence being submitted as recorded in the transcript of the preliminary hearing. Each defendant was found guilty of a violation of Vehicle Code section 10852, which was termed by the court as a lesser included offense. Probation was denied and sentence imposed. This appeal followed.

The facts most favorable to the prosecution are that one Meador was the owner of a vehicle with wire wheels. He parked his car in a parking space near his apartment, and affixed it with a lock and chain drawn

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through the spokes of the wheels to a trash can. At approximately 5 a.m. on August 28, 1969, Meador heard what sounded to him toi be a chain being removed from the wheels of his car and the chain being placed upon the hood of the vehicle. He looked outside, but could not see what had happened. After dressing, he went to the car and saw that what he had concluded was in fact what had happened. He called the police. The police arrived promptly, and after hearing the facts recited by Meador, drove around the area to ascertain if any suspects were in the vicinity. They observed defendants driving slowly along the road, not far from Meador’s parked car. Defendants’ car was going from side to side in the road, slowing as it came alongside of parked vehicles, in a manner suggestive of casing for purposes of theft. Defendants sought to avoid the police by changing direction several times, but were eventually stopped by them. In defendants’ car was seen a tool customarily used in car thefts, and after defendants’ arrest, the car was searched, producing what appeared to the trial judge to be a sophisticated car-thief’s supply of working tools. After proper

Miranda

warnings, two of the three persons in defendants’ car, including one of the defendants, made highly incriminating statements approaching the status of confessions.

The principal contention on appeal is that the code section under which defendants were convicted is not a lesser included offense. Technically, this may be true; however, the rule expressed in