Anderson

Defendant appeals from a conviction of tampering with a vehicle (Veh. Code, § 10852) after a jury verdict of grand theft-auto (Pen. Code, § 487, subd. 3) was modified by the trial court and judgment was entered for the lesser offense. Defendant contends that this modification was improper because the offense of tampering with an auto is not a necessarily included offense of grand theft-auto. Defendant further argues that, in the event judgment is reversed, a retrial on the grand theft-auto charge of which he was “impliedly acquitted” is barred on double jeopardy and due process grounds. (See People v. Serrato (1973) 9 Cal.3d 753 [ 109 Cal.Rptr. 65 , 512 P.2d 289 ].) Since we have concluded that tampering with a vehicle is a necessarily included offense of grand theft-auto, discussion of the latter question is rendered unnecessary, and, accordingly, we affirm the judgment of the trial court.

On February 13, 1974, defendant and two codefendants were charged with two counts of grand theft-auto (Pen. Code, § 487, subd. 3). These two counts were phrased in the language of the general theft statute (Pen. Code, § 484, subd. (a)) and contained no explanatory factual allegations.…