Unless there is statutory language to the contrary, whenever lack of consent is a necessary element of a crime, the fact that consent is obtained through misrepresentation does not supply the essential element of non-consent.
Defendant, who owned a car, allowed his friend to use his name and the car as a trade in for a new car at a car dealership. Defendant's friend also gave the dealership a spurious check for $ 300.00. Defendant was charged with violation of section 487, subdivision 3, of the Penal Code (grand theft auto) and Vehicle Code § 10851. The trial court convicted defendant for taking a vehicle without the owner's consent in violation of Cal. Veh. Code § 10851. The trial court acquitted defendant of grand theft auto under Cal. Veh. Code § 487(3). On appeal, defendant contended that the new car was taken with the consent of the car dealership. The appellate court reversed the judgment of conviction and remanded the case to the trial court with directions to dismiss.
Did defendant violate Vehicle Code § 10851 when he took the new car from the car dealership?
Because defendant was acquitted of violating § 487(3), a species of theft, which included in the definition fraud or false pretense, any contentions regarding fraud were deemed concluded. Thus, fraud could not be considered as established or as vitiating the consent that was in fact given. Consent having been given, there was not a violation of § 10851.