Hicks

*426 Opinion

Hicks appeals the judgment entered on jury verdicts convicting him of violating Vehicle Code section 10851 1 and attempting to violate that same section. He asserts the trial court prejudicially erred by not instructing sua sponte on the lesser included offense of Penal Code section 499b as now required by People v. Barrick (1982) 33 Cal.3d 115 [ 187 Cal.Rptr. 716 , 654 P.2d 1243 ]. We conclude that since Barrick represents a sharp break with precedent it should not be given pipeline retroactivity and therefore affirm the judgment.

Hicks is an inept auto thief apprehended in each car he was trying to take. The jury convicted him of violating section 10851 when he drove that car about six inches before the engine died. His conviction of attempting to violate section 10851 was based upon his abortive efforts to hotwire the ignition in another car which rather than starting the motor only started a fire.

At the time of Hicks’ trial, People v. Thomas (1962) 58 Cal.2d 121 [ 23 Cal.Rptr. 161 , 373 P.2d 97 ] (overruled in People v. Barrick, supra, 33 Cal.3d 115 ) was the leading case holding joyriding under Penal Code section 499b is not a necessarily included offense…