Section 1822 | CALCRIM (Jury Instructions)

Bifurcated Trial, unless the defendant stipulates to the truth of the conviction.
AUTHORITY
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Elements. Pen. Code, § 499b.
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Felony Offense If Qualifying Prior Conviction. Pen. Code, § 499.
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Vessel Defined. Harb. & Nav. Code, § 21.
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Taking Defined. People v. White (1945) 71 Cal.App.2d 524, 525 [162 P.2d 862];
People v. Frye (1994) 28 Cal.App.4th 1080, 1088 [34 Cal.Rptr.2d 180].
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Expiration of Owner’s Consent. People v. Hutchings (1966) 242 Cal.App.2d 294,
295 [51 Cal.Rptr. 415].
COMMENTARY
Prior to 1997, this statute also applied to the taking of vehicles. (See People v.
Howard (1997) 57 Cal.App.4th 323, 326, fn. 2 [66 Cal.Rptr.2d 849].) The
Legislature determined that the previous statute was duplicative of Vehicle Code
section 10851 and, therefore, restricted the scope of the statute to only bicycles and,
later, vessels. (Stats. 1996, ch. 660, § 3; see People v. Howard, supra, 57
Cal.App.4th at p. 326, fn. 2.)
Prior to this amendment, a split in authority developed over whether this is a
specific-intent crime. The statute requires that the defendant take the item “for the
purpose of temporarily using or operating” it. (Pen. Code, § 499b(a) & (b).)
Analyzing the statute when it still applied to vehicles, the majority of cases held that
this required the specific intent to use or operate the vehicle. (People v. Howard
(1997) 57 Cal.App.4th 323, 327–328 [66 Cal.Rptr.2d 849]; People v. Ivans (1992) 2
Cal.App.4th 1654, 1663–1664 [4 Cal.Rptr.2d 66]; People v. Diaz (1989) 212
Cal.App.3d 745, 749–751 [260 Cal.Rptr. 806].) One case, however, held that this
was a general-intent crime requiring only that the vehicle be taken by an act of
driving or operating. (People v. Frye (1994) 28 Cal.App.4th 1080, 1090–1091 [34
Cal.Rptr.2d 180].) The reasoning of the court in People v. Frye, supra, is based on
the premise that one “takes” a vehicle by driving or operating it. (Id. at p. 1091
[“the ‘taking’ proscribed by Penal Code section 499b is an act of taking possession
through driving . . . .”].) As discussed in People v. Howard, supra, however, one
may “take” a vehicle without driving or operating it, such as by towing it. This
distinction is even more apparent in the context of bicycles and vessels, the only
items now covered by the statute. One can “take” a bicycle without using or
operating it by simply carrying it away. Similarly, if a vessel is on land, one can
“take” it without using or operating it by towing it away. In such circumstances, it
would appear that the person has not violated Penal Code section 499b unless there
is some evidence that he or she also intends to use or operate the bicycle or vessel.
Thus, in light of the amendments to the statute, the committee believes that the
reasoning of Howard and Diaz, supra, finding this to be a specific-intent crime, is
more persuasive.
CALCRIM No. 1822
THEFT AND EXTORTION
1186

LESSER INCLUDED OFFENSES
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Attempted Unlawful Taking of Bicycle or Vessel. Pen. Code, § 664; Pen. Code,
§ 499b.
If the defendant i