Unlawful taking of a vehicle is often a misunderstanding among two parties, such as using a rental a car for a longer period than initially contracted.
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Vehicle Code 10851 is defined as driving or taking a vehicle without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner of his or her title to or possession of the vehicle. 1
Example: A valet driver who works for a fancy hotel decided to take one of the sports cars he parked for a spin. When the car owner returned for his car, the other valet personnel told him that the car keys were missing and the car could not be located. Twenty minutes after the owner called the police, the valet driver returned with the owner’s car, stating that he was merely trying to re-park the car to create more parking space in the lot. The valet driver can be charged with this offense, because although the valet company had permission from the owner to park and keep the car for temporary safekeeping, taking a 20-minute ride in the car after it was parked, went beyond the scope of the permission. If the valet driver never came back with the car, he could be charged with Grand Theft Auto under Penal Code section 487(d)(1), which requires that defendant has intent to permanently deprive the owner of his car.
To prove that you are guilty of this offense, the prosecutor has to prove the following facts or elements2
- The defendant took or drove someone else’s vehicle without the owner’s consent;
- When the defendant did so, he/she intended to deprive the owner of possession or ownership of the vehicle for any period of time.
The main difference is defendant’s intent. If you intended to permanently keep another’s car or to keep it for a long enough time that would deprive the owner of substantial value of the car, then you have committed Grand Theft Auto under Penal Code section 487(d)(1). If, on the other hand your intent was only to take the car for a quick ride and bring it right back, you will be guilty of Unlawful Taking or Driving a Vehicle under Vehicle Code section 10851.
Example of Grand Theft Auto: After defendant held up a liquor store, he hotwired and drove away a car that was parked nearby to help him get away quickly. The defendant can be charged with grand theft auto under Penal Code 487(d)(1) ; and possibly the following offenses: Assault-Penal Code Section 240 PC; Battery -Penal Code 242 PC; Robbery -Penal Code 211 PC.
Example of Unlawful Taking or Taking a Vehicle: Defendant was house-sitting his neighbor’s house and had access to the neighbor’s new Mercedes Benz. He really wanted to impress his friends, so he took the Benz for a quick ride and brought it right back. Defendant may be charged with Vehicle Code 10851, because he had no permission to take or drive the neighbor’s car. However, since his intent was to keep the car only for a short period of time, he is not guilty of grand theft auto.
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No Intent to Deprive the Owner of Vehicle for Any Time:
- If a defendant can show that he/she had no intent to deprive the owner of the car for any time, the defendant will not be guilty of the offense.
Taking/Driving a Car that (You Believe) Belongs to You:
- If you had a good faith belief that the car you were taking/driving actually belongs to you, you are not be guilty of the offense.
- If the owner of the car consented to your use of the car and/or gave you permission to drive the car, you are not guilty of the offense.
Carjacking: Under Penal Code 215 California’s “carjacking” law anyone who uses force or fear to take a car away from the owner’s possession against the owner’s will can be found guilty of carjacking.
Kidnapping During the Commission of Carjacking: If a defendant carjacks a vehicle and kidnaps someone to facilitate the commission of the “carjacking,” the defendant may also be guilty of penal code 209.5 California’s” kidnapping during the commission of a carjacking” law.
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- Vehicle Code 10851; (1)Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense and, upon conviction thereof, shall be punished by imprisonment in a county jail for not more than one year or pursuant to subdivision (h) of Section 1170 of the Penal Code or by a fine of not more than five thousand dollars ($5,000), or by both the fine and imprisonment. (2) If the vehicle is (1) an ambulance, as defined in subdivision (a) of Section 165, (2) a distinctively marked vehicle of a law enforcement agency or fire department, taken while the ambulance or vehicle is on an emergency call and this fact is known to the person driving or taking, or any person who is party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, or (3) a vehicle which has been modified for the use of a disabled veteran or any other disabled person and which displays a distinguishing license plate or placard issued pursuant to Section 22511.5 or 22511.9 and this fact is known or should reasonably have been known to the person driving or taking, or any person who is party or an accessory in the driving or unauthorized taking or stealing, the offense is a felony punishable by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for two, three, or four years or by a fine of not more than ten thousand dollars ($10,000), or by both the fine and imprisonment. (3) In any prosecution for a violation of subdivision (a) or (b), the consent of the owner of a vehicle to its taking or driving shall not in any case be presumed or implied because of the owner’s consent on a previous occasion to the taking or driving of the vehicle by the same or a different person. (4) The existence of any fact which makes subdivision (b) applicable shall be alleged in the accusatory pleading, and either admitted by the defendant in open court, or found to be true by the jury trying the issue of guilt or by the court where guilt is established by plea of guilty or nolo contendere or by trial by the court sitting without a jury.(5) Any person who has been convicted of one or more previous felony violations of this section, or felony grand theft of a vehicle in violation of subdivision (d) of Section 487 of the Penal Code, former subdivision (3) of Section 487 of the Penal Code, as that section read prior to being amended by Section 4 of Chapter 1125 of the Statutes of 1993, or Section 487h of the Penal Code, is punishable as set forth in Section 666.5 of the Penal Code. The existence of any fact that would bring a person under Section 666.5 of the Penal Code shall be alleged in the information or indictment and either admitted by the defendant in open court, or found to be true by the jury trying the issue of guilt or by the court where guilt is established by plea of guilty or nolo contendere, or by trial by the court sitting without a jury [↩]
- California Vehicle Code 10851: Theft and unlawful taking or driving of a vehicle [↩]
- California Penal Code 459 PC – Burglary and auto burglary [may be charged along with grand theft auto]. (“Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, as defined in Section 21 of the Harbors and Navigation Code, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach, as defined in Section 635 of the Vehicle Code, any house car, as defined in Section 362 of the Vehicle Code, inhabited camper, as defined in Section 243 of the Vehicle Code, vehicle as defined by the Vehicle Code, when the doors are locked, aircraft as defined by Section 21012 of the Public Utilities Code, or mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary. As used in this chapter, “inhabited” means currently being used for dwelling purposes, whether occupied or not. A house, trailer, vessel designed for habitation, or portion of a building is currently being used for dwelling purposes if, at the time of the burglary, it was not occupied solely because a natural or other disaster caused the occupants to leave the premises.” [↩]