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Name: People v. Montoya
Case #: S111662
Court: CA Supreme Court
District CalSup
Opinion Date: 08/09/2004

Unlawful taking of a vehicle is not a lesser-included offense of carjacking. Here, the defendant was convicted of both unlawfully taking a vehicle and carjacking. The Court of Appeal upheld both convictions, and the Supreme Court unanimously affirmed. Applying the “elements test” to determine whether the unlawful taking offense was necessarily included in the carjacking offense, the court held that it was not, because carjacking is a crime against the possessor and passengers of a car, while a violation of Vehicle Code section 10851 is a crime against the owner. To illustrate the distinction, the court noted that if the defendant had discovered a stranger driving a friend’s stolen car, and ordered the stranger out of the car at gunpoint with the intention of returning the car to its rightful owner, he would be guilty of carjacking but not of a violation of section 10851. The court declined to apply the alternate “accusatory pleading” test in this context, noting that under the circumstances of this case it would not have worked to the defendant’s benefit in any case.