People v. Perez

California Court of Appeal May 8, 1962 No. Crim. 1708Published

Before: Shepard

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Holding. The court affirmed the defendant's conviction for vehicle theft, finding sufficient evidence of intent to deprive the owner of possession, no prejudicial prosecutorial misconduct, and no error in jury instructions or the denial of probation. The court further held that the defendant failed to properly move for a new trial, rendering the appeal from the denial of such motion moot.

Issues

Whether the evidence was sufficient to support a conviction for vehicle theft under Vehicle Code section 503.
Whether the prosecutor committed prejudicial misconduct during opening argument.
Whether the trial court erred in its jury instructions regarding specific intent.
Whether the trial court failed to rule on a motion for a new trial in violation of Penal Code section 1202.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“There is more than sufficient evidence to support the judgment of conviction.”

“Moreover, under the circumstances in this ease failure to object and failure to request admonishment of the jury to disregard this statement waived any right to objection for the first time on appeal.”

“Thus, no motion for a new trial was ever made.”

[399]

SHEPARD, J.

Defendant appeals from a judgment of conviction of a violation of Vehicle Code section 503 (now § 10851; Theft and Unlawful Driving or Taking of a Vehicle), and from an alleged order denying an alleged motion for a new trial.

Facts

The record before us, read in the light of the familiar rule set forth in

People

Newland,

15 Cal.2d 678, 681 [104 P.2d 778], shows the facts to be substantially as follows: Defendant, on March 12, 1958, secured possession of a model 1957 black Corvette automobile being purchased under contract by Harlan Riley on defendant’s representation that he had a buyer named Stevenson ready to buy the car. Defendant came back to Riley in about one hour and reported that Stevenson wanted some work done on the car. Riley gave permission to defendant to keep the car for three days to accomplish this purpose and make the sale to Stevenson. In truth and fact Stevenson never saw or discussed purchase of the car with defendant or anyone else.

Details of defendant’s peregrinations with the car thereafter, his bilking a Robert Thompson of $100 on false representations that defendant owned the car, the sending by defendant of $105 in money orders from Arizona and Riley’s ultimate tracing and repossession of the car in El Paso, Texas, some three months later, need not here be recited. Suffice it to say that defendant never returned the car to Riley. All conflicts in the evidence were resolved by the jury against defendant.

Sufficiency of the Evidence

Defendant contends that the evidence is insufficient to support the judgment of conviction. We find no merit in this contention. Defendant attained possession of the car in the first place under false representations. Even though his original possession had been lawful, he had no authority to keep it more than three days and then only for the purpose of consummating a sale to Stevenson. Actually, his original possession, his keeping the car beyond three days, his driving the car to Arizona and finally to Texas, were all unlawful and, under the evidence of the prosecution, if believed, could not be construed in any other way than intentionally taking and depriving the owner of possession, to say the least. Intent to deprive the owner may be established from the circumstances of the case,

People v. Perez

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SHEPARD, J.

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