People v. Hicks

[426]Opinion

WIENER, J. Hicks appeals the judgment entered on jury verdicts convicting him of violating Vehicle Code section 108511 and attempting to violate that same section. He asserts the trial court prejudicially erred by not instructing sua sponte on the lesser included offense of Penal Code section 499b as now required by People v. Barrick (1982) 33 Cal.3d 115 [187 Cal.Rptr. 716, 654 P.2d 1243]. We conclude that since Barrick represents a sharp break with precedent it should not be given pipeline retroactivity and therefore affirm the judgment.

Hicks is an inept auto thief apprehended in each car he was trying to take. The jury convicted him of violating section 10851 when he drove that car about six inches before the engine died. His conviction of attempting to violate section 10851 was based upon his abortive efforts to hotwire the ignition in another car which rather than starting the motor only started a fire.

At the time of Hicks’ trial, People v. Thomas (1962) 58 Cal.2d 121 [23 Cal.Rptr. 161, 373 P.2d 97] (overruled in People v. Barrick, supra, 33 Cal.3d 115) was the leading case holding joyriding under Penal Code section 499b is not a necessarily included offense within section 10851. (Id., at pp. 127-129.) The established rule for two decades, embodied in CALJIC No. 14.36, was that a court was not required to instruct on joyriding in section 10851 cases.2

Four months after Hicks’ trial the Supreme Court reiterated joyriding is not intrinsically a necessarily included offense within section 10851 but stated charging allegations which accuse a defendant of driving and taking a vehicle necessarily charge the defendant with joyriding. (People v. Barrick, supra, 33 Cal.3d 115.) Since Hicks was charged with driving and taking a vehicle, the issue here is whether we should apply Barrick retroactively in determining whether the court erred by not instructing sua sponte on joyriding as a lesser included offense.3

[427]Whether a decision should be prospective only may well be determined by “ ‘considerations of convenience, of utility and of the deepest sentiments of justice.’” (Cardozo, The Nature of the Judicial Process (1921) 146-149, quoted by Mosk, J., conc. & dis. opn. in Westbrook v. Mihaly (1970) 2 Cal.3d 765, 803 [87 Cal.Rptr. 839, 471 P.2d 487], vacated on another ground in Mihaly v. Westbrook (1971) 403 U.S. 915 [29 L.Ed.2d 692, 91 S.Ct. 2224].) As a practical matter the process probably involves weighing “ ‘the comparative benefits and evils of retroactivity.’” (Hanover Shoe, Inc. v. United Shoe Machinery Corp. (3d Cir. 1967) 377 F.2d 776, 789, quoted by Mosk, J., conc. & dis. opn. in Westbrook v. Mihaly, supra, 2 Cal.3d at p. 803.) Regardless of the difficulty of resolving questions of retroactivity in certain cases the question has been answered consistently and categorically when a new rule is “‘a clear break with the past.’” (United States v. Johnson (1982) 457 U.S. 537, 549 [73 L.Ed.2d 202, 213, 102 S.Ct. 2579, 2587, quoting Desist v. United States (1969) 394 U.S. 244, 248 [22 L.Ed.2d 248, 259, 89 S.Ct. 1030].) In such cases the court “almost invariably has gone on to find such a newly minted principle nonretroactive. (See United States v. Peltier, 422 U.S. 531, 547, n. 5 (1975) (Brennan, J., dissenting) (collecting cases).” (United States v. Johnson, supra, 457 U.S. at p. 549 [73 L.Ed.2d at p. 213, 102 S.Ct. at p. 2587.)