THE PEOPLE, Plaintiff and Respondent, v. RICARDO MONTOYA, Defendant and Appellant, 33 Cal. 4th 1031

Opinion KENNARD, J. California law prohibits convicting a defendant of two offenses arising from a single criminal act when one is a lesser offense necessarily included in the other. Here, the Court of Appeal held that unlawful taking of a vehicle (Veh. Code, § 10851) is not a lesser included offense of carjacking (Pen. Code, § 215) and affirmed defendant’s convictions of both offenses. We agree. I Responding to a newspaper advertisement, defendant came to Amanda Locke’s home in Kern County to see a car she was selling, a 1994 Jeep. After inspecting the car, defendant asked Locke to take him for a ride.

About one-half mile from Locke’s house, defendant asked her to pull over so he could drive. Locke complied. Defendant got in the driver’s seat, but as Locke was entering the passenger side, defendant pulled a gun, ordered her out of the car, and drove off. Locke telephoned police from a nearby house. Bakersfield police officers pursued defendant in a high-speed chase into Los Angeles County, where they arrested him. A jury convicted defendant of carjacking (§ 215), unlawful taking of a vehicle (Veh. Code, § 10851), and reckless flight from pursuing peace officers (Veh.

Code, § 2800.2), and it found true a prior prison term allegation (§ 667.5, subd. (b)). For the conviction of unlawfully taking a vehicle, the trial court stayed a four-year prison sentence (§ 654). On the other counts, the court sentenced defendant to a state prison term of 10 years eight months. n In California, a single act or course of conduct by a defendant can lead to convictions “of any number of the offenses charged.” (§ 954, italics added; People v.

Ortega (1998) 19 Cal.4th 686, 692 [80 Cal.Rptr.2d 489, 968 P.2d 48].) But a judicially created exception to this rule prohibits multiple convictions based on necessarily included offenses. (People v. Ortega, supra, at p. 692; People v. Pearson (1986) 42 Cal.3d 351, 355 [228 Cal.Rptr. 509, 721 P.2d 595].) In deciding whether an offense is necessarily included in another, we apply the elements test, asking whether “ ‘ “all the legal ingredients of the corpus delicti of the lesser offense [are] included in the elements of the greater offense.” [Citation.]’ ” (People v.

Lopez (1998) 19 Cal.4th 282, 288 [79 Cal.Rptr.2d 195, 965 P.2d 713].) In other words, “if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.” (Ibid.) Here, the greater offense, that is, the offense with the most elements, is carjacking.

The lesser offense, which is the one with the fewest elements, is unlawfully taking a vehicle. “ ‘Carjacking’ is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear.” (§ 215, subd. (a).) Unlawful taking of a vehicle, by contrast, is committed when a person “drives or takes a vehicle not his or her own, without the consent of the owner . . . and with intent either to permanently or temporarily deprive the owner ... of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle.” (Veh.

Code, § 10851, subd. (a).) The Court of Appeal here concluded that the unlawful taking of a vehicle was not a lesser included offense of carjacking. It explained: “Carjacking is a crime against the possessor or passengers in a vehicle. [Unlawful taking of a vehicle] is a crime against ownership.” We agree. Applying the elements test to the two offenses here, the crime of unlawfully taking a vehicle is not a lesser included offense of carjacking because a person can commit a carjacking without necessarily committing an unlawful taking of a vehicle.

The following example illustrates that point: Joe knows that his neighbor Mary’s car has been stolen and that she is offering a reward for its return. If Joe spots an unfamiliar person driving Mary’s car and orders that person out at gunpoint and then drives off, intending to return the car to Mary and secure the reward, he would be guilty of carjacking but not of an unlawful taking of a vehicle. Although Joe had the intent to deprive the driver of possession, as required for carjacking (§ 215), he lacked the intent to deprive the owner of title or possession, as required for unlawful taking of a vehicle (Veh.

Code, § 10851). Defendant argues that even if the elements test for lesser included offenses is not met with respect to the two offenses here, the crime of unlawfully taking a vehicle does constitute a lesser included offense of the crime of carjacking under the “accusatory pleading” test. That test looks to whether “ ‘ “the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified [some] lesser offense is necessarily committed.”[citation.]’ ”(People v.

Lopez, supra, 19 Cal.4th at pp. 288-289.) Generally, courts use that test to determine whether to instruct a jury on an uncharged lesser offense. (See People v. Birks (1998) 19 Cal.4th 108, 117 [77 Cal.Rptr.2d 848, 960 P.2d 1073]; People v. Lohbauer (1981) 29 Cal.3d 364, 368-369 [173 Cal.Rptr. 453, 627 P.2d 183]; People v.

Marshall (1957) 48 Cal.2d 394, 405-407 [309 P.2d 456].) Some Court of Appeal decisions have concluded that the accusatory pleading test, which “protects the defendant’s due process right to adequate notice before being convicted of a lesser offense instead of the charged offense [therefore] does not apply to considerations of whether multiple convictions are proper.” (People v. Miranda (1994) 21 Cal.App.4th 1464, 1467 [26 Cal.Rptr.2d 610]; accord, People v. Scheidt (1991) 231 Cal.App.3d 162, 165-171 [282 Cal.Rptr. 228]; People v.

Watterson (1991) 234 Cal.App.3d 942, 947, fn. 15 [286 Cal.Rptr. 13].) We need not decide here whether these decisions are correct because applying the accusatory pleading test in this case does not assist defendant. Consistent with the primary function of the accusatory pleading test—to determine whether a defendant is entitled to instruction on a lesser uncharged offense—we consider only the pleading for the greater offense.

The greater offense here is carjacking, which alleged in count I: “On or about May 11, 2001, Richard Montoya, did willfully and unlawfully take a motor vehicle in the possession of another or from the person or immediate presence of a passenger of the vehicle; namely a 1994 Jeep vehicle belonging to Amanda Locke, against their [sic] will, by means of force or fear with the intent to permanently or temporarily deprive the person in possession of the motor vehicle, in violation of Penal Code

section 215(a), a felony.” (Italics added.) Although the accusatory pleading identifies Amanda Locke as the Jeep’s owner, it does not say whether Locke or someone else had possession of the Jeep when it was unlawfully taken, and it does not mention that the taking was without Locke’s (the owner’

s) consent, saying only that it was “against the[] will” of the unnamed person in possession. Thus the pleading for the greater offense of carjacking in this case does not also include the requisite allegations for the lesser offense of unlawfully taking a vehicle, which requires proof that the taking of a vehicle was without its owner’s consent. Disposition We affirm the judgment of the Court of Appeal. George, C. J., Baxter, J., Chin, J., Brown, J., and Moreno, J., concurred. Further undesignated statutory references are to the Penal Code. The offense of unlawfully taking a vehicle, defined in Vehicle Code

section 10851, subdivision (a), is sometimes called “vehicle theft.” Because the crime requires only the driving of a vehicle (not necessarily a taking) and an intent only to temporarily deprive the owner of the vehicle, it is technically not a “theft.” (See § 484; CALJIC No. 14.02.) Because this hypothetical is sufficient to dispose of defendant’s contention that the crime of unlawfully taking a vehicle is a lesser included offense of carjacking under the elements test, we need not consider the applicability of the claim of right defense to the carjacking statute. (See People v.

Tufunga (1999) 21 Cal.4th 935 [90 Cal.Rptr.2d 143, 987 P.2d 168] [holding that in the robbery statute, “felonious taking” incorporated the “claim of right” defense].) We disapprove People v. Rush (1993) 16 Cal.App.4th 20 [20 Cal.Rptr.2d 15] to the extent it held otherwise. Nothing before us suggests that the prosecutor deliberately omitted information from the allegations for carjacking so as to avoid including the facts necessary for the unlawful taking of a vehicle and to thereby subject defendant to conviction for both offenses.