Tiebout

Richard Lee Tiebout appeals the judgment entered upon a jury conviction of unlawfully driving and taking a vehicle (Veh. Code, § 10851) and resisting, delaying and obstructing an officer (Pen. Code, § 148), contending the trial court prejudicially erred in refusing to give a requested instruction stating Penal Code section 499b is a necessarily included offense under Vehicle Code section 10851. We hold that under the charging allegations of this case and the facts presented at trial, the court prejudicially erred. We therefore reverse the judgment.

Factual and Procedural Background

On Saturday night, February 28, 1981, Robert C. Walker, Sharon Parks, Richard Lee Tiebout and a man named Jackson met at La Cresta Motel for an evening of drinking and sex. The next day Walker awoke alone in the motel room and noticed his 1980 Ford Courier pickup truck was gone. Walker telephoned Parks who said the truck was in front of her house. Not finding the truck in the specified location, Walker reported his truck stolen.

At trial Tiebout contended that around midnight Saturday night, Parks asked Walker for the keys to his truck. Walker refused, saying he did not think Parks was…