James

A jury found defendant guilty of a violation of section 10851, Vehicle Code in that he unlawfully drove and took a 1980 Toyota, the property of Eugene Loza, without the consent of and with the intent to deprive the owner of title to and possession of said vehicle. 1 He appeals from the judgment.

I

Evidence Taken on Section 402 Evidence Code Motion

Some time prior to February 18, a 1980 Toyota truck, owned by Eugene Loza and parked in a parking lot was stolen; on February 18 while his sister Angelica Loza was on the San Diego Freeway she observed Eugene’s truck being driven by defendant and in which defendant’s brother, Douglas, was a passenger; she followed the vehicle until it came to rest on Dyer Street in *384 front of a house which the occupants entered; she called police then waited in the vicinity. When Officers Sullivan and Pardo arrived she identified the Toyota and the house; the officers went to the front door and knocked; after defendant and Douglas emerged, she identified defendant as the driver of and Douglas as the passenger in the stolen truck; police released the truck to her but the ignition had been punched out and wires were hanging loose beneath the…

A jury found defendant guilty of a violation of section 10851, Vehicle Code in that he unlawfully drove and took a 1980 Toyota, the property of Eugene Loza, without the consent of and with the intent to deprive the owner of title to and possession of said vehicle. [1] He appeals from the judgment.

Some time prior to February 18, a 1980 Toyota truck, owned by Eugene Loza and parked in a parking lot was stolen; on February 18 while his sister Angelica Loza was on the San Diego Freeway she observed Eugene's truck being driven by defendant and in which defendant's brother, Douglas, was a passenger; she followed the vehicle until it came to rest on Dyer Street in front of a house which the occupants entered; she called police then waited in the vicinity. When Officers Sullivan and Pardo arrived she identified the Toyota and the house; the officers went to the front door and knocked; after defendant and Douglas emerged, she identified defendant as the driver of and Douglas as the passenger in the stolen truck; police released the truck to her but the ignition had been punched out and wires were hanging loose beneath the ignition, and the officers had to "hot wire"…

I concur with the majority, but I feel it is necessary to add some additional comments. Much confusion has been engendered by the disparate statutes dealing with offenses relating to takings of automobiles. Currently a person who takes an automobile with the intent to permanently deprive the owner thereof can be convicted of violating either Penal Code section 487 (punished either as a felony or a misdemeanor) or Vehicle Code section 10851 (punished either as a felony or a misdemeanor). A person who unlawfully takes a car for temporary use can be convicted under either Vehicle Code section 10851 (a felony or misdemeanor) or Penal Code section 499b (a misdemeanor). The confusion among the statutes has been apparent for decades. (See, e.g., People v. Barrick (1982) 33 Cal.3d 115, 133-134 [ 187 Cal.Rptr. 716 , 654 P.2d 1243 ]; People v. Thomas (1962) 58 Cal.2d 121, 127-130 [ 23 Cal.Rptr. 161 , 373 P.2d 97 ], disapproved in part in People v. Barrick, supra, 33 Cal.3d 115 ; People v. Bailey (1946) 72 Cal.App.2d Supp. 880 , 881-884 [ 165 P.2d 558 ].)

This case demonstrates one recurring manifestation of the confusion. A determination as to whether Penal Code section 499b is a lesser…