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People v. Cook

    Brief Fact Summary.

    Defendant appealed a conviction of violating a California statute that provides that “[a]ny person who drives or takes a vehicle not his own, without the consent of the owner . . . and with intent either permanently or temporarily to deprive the owner thereof of this title to or possession of the vehicle . . . is guilty of a felony,” after he tool a Mercury vehicle from the Frahm Pontiac dealership under questionable circumstances related to its purchase.

     

    Synopsis of Rule of Law.

    In California, a defendant does not violate § 10851 of the state’s Vehicle Code if he obtains consent from an owner to take a vehicle by misrepresentation, trick, or deceit.

     

    Facts.

    After Frank Billy Ray Cook (Defendant) took a Mercury vehicle from the Frahm Pontiac dealership under questionable circumstances related to its purchase, he was charged with grand theft auto and violating § 10851 of the Vehicle Code. Section 10851 provides that “[a]ny person who drives or takes a vehicle not his own, without the consent of the owner . . . and with intent either permanently or temporarily to deprive the owner thereof of this title to or possession of the vehicle . . . is guilty of a felony.” Defendant was acquitted by a jury on the grand theft auto count but convicted of violating section 10851. After Defendant’s motion for a new trial was denied and he was sentenced to a term of imprisonment, he appealed.

     

    Issue.

    Whether a defendant violates § 10851 of the state’s Vehicle Code if he obtains consent from an owner to take a vehicle by misrepresentation, trick, or deceit.

     

     

    Held.

    No. Defendant’s conviction is reversed and the case is remanded to the trial court for further proceedings. In California, a defendant does not violate § 10851 of the state’s Vehicle Code if he obtains consent from an owner to take a vehicle by misrepresentation, trick, or deceit.

     

    Discussion.

    Defendant argues that he took the Mercury with the valid consent of Frahm Pontiac, albeit by trick and by false pretenses. Thus, Defendant claims, having acquired the Mercury with Frahm’s consent, his possession of it could not have violated § 10851. Although the argument is novel to California, other jurisdictions have encountered the issue. In State v. Boggs, 164 N.W. 759 (Iowa 1917), the court held that fraudulently induced consent is consent nonetheless and that such consent prevents a violation of the state’s “joy ride” statute. There, the court noted that the “statute was not designed to punish one who [by misrepresentation or for a fraudulent purpose], obtains consent of the owner to take and operate his motor vehicle…” In United States v. One 1941 Chrysler, 74 F.Supp. 970 (E.D.Mich.1947), the court interpreted a section of Michigan’s Vehicle Code very similar California’s § 10851. There, the court held similarly to the court in Boggs and noted that the Michigan statute was “not designed to punish one who obtains consent of the owner to take and operate his motor vehicle by misrepresentation or for a fraudulent purpose. [It] is directed against one who takes possession of such a vehicle without the consent of the owner.” The various courts in the above-mentioned cases applied the basic common law rule that consent obtained through misrepresentation will not supply the essential element of non-consent in those offenses where lack of consent is a necessary element of the offense. The prosecution cites People v. Perez, 21 Cal.Rptr. 422 (Cal.Ct.App.1962) as supporting Defendant’s conviction. In Perez, the court upheld Perez’s conviction after he acquired possession of a vehicle under the false representation that he had a buyer for it, but kept the car longer than the time agreed to by the owner. However, in that case, the defendant not only kept the vehicle longer than the allotted three days, but drove the car to Arizona, and exhibited other acts that could not be construed any other way than intentionally taking and depriving the owner of possession of the vehicle. Perez is an example of fraud in the factum, which gives rise to no consent at all. Here, there was fraud in the inducement, where the Frahm intended to sell Defendant a vehicle and consented to the taking of possession of it by him. The possible fraud committed by Defendant does not spoil the consent given by Frahm.

     


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