Mooney

Convicted of burgling a motor vehicle (Pen. Code, § 459), Ronald. James Mooney claims he was prejudiced by the court refusing his request to instruct the jury auto tampering (Veh. Code, § 10852) is a lesser included offense of that crime. We reverse because, on the facts of this case, ,the trial court should have given the requested instruction.

Factual Background

Caroline Sue Clark drove her Dodge van to the parking lot of the Torrey Pines Golf Course where, upon exiting, she rolled up the windows and locked all doors.

While Clark was golfing, one person in the foursome noticed the door to her van, open. When Mooney was found inside, he stated he had not taken anything and started to run. Simultaneously, a green van parked alongside Clark’s sped away. Clark found the passenger door unlocked and the contents of two purses strewn on the floorboard.

Mooney testified he drove to the golf course with a friend. While walking, he saw purses on the floorboard of Clark’s van and noticed the passenger window rolled down. Seeing no one in the vicinity, he opened the unlocked door and entered with the intent to steal. No apparent damage was done to the doors or windows of the…