P. v. Johnson
Appellant Derick Ryan Johnson was convicted of count I, unlawful taking or driving a vehicle (Veh. Code,[1] 10851, subd. (a)), based on his conduct of breaking into a Honda, cracking the steering column, and backing it out of a parking space behind an apartment building. He was unable to drive away in the Honda because the steering wheel was still locked, so he left it in the middle of the parking lot. He was also convicted of count II, attempted unlawful taking or driving a vehicle (Pen. Code, 664; Veh. Code, 10851), based on his conduct of coming back to the parking lot with the intent to use his tools, break the steering wheel lock, and drive away with the car. On appeal, he contends count II must be reversed because there is insufficient evidence of an attempt, instructional error, and count II is a lesser included offense of count I. We also requested briefing on whether the sentence imposed for count II violated Penal Code section 654. The instant case presents a close question as to whether appellant was properly convicted of an attempt, given the specific facts and circumstances of this case. Court affirm appellants conviction for count II, but the sentence imposed for that count must be stayed.
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