Opinion
FROEHLICH, J.
This appeal requires consideration of the proper procedure to be utilized by a jury, and accordingly the instructions which should be given a jury, when it is presented with alternative primary criminal offenses and the possibility of a lesser included offense as to one of the alternative primary offenses. We conclude that the jury should be instructed that it need reach the issue of the lesser included offense of one of the alternative primary offenses only if it concludes that the defendant is not guilty of both alternative primary offenses.
The defendant in this case was arrested after a display of erratic driving. A blood test indicated intoxication. The vehicle being driven was shown to have been stolen from an auto agency. The defendant did not testify at the trial. Rather obviously, then, the jury was presented a case in which the defendant was in possession of and driving a stolen vehicle. The specific crime of which he might be found guilty would depend upon the jury’s [4]*4resolution of circumstantial evidence pertaining to the facts of the taking of the vehicle and the defendant’s intent related thereto.1
In order to sustain the receiving stolen property charge the jury would have to find that the defendant was in possession of the vehicle with knowledge that it had been stolen (but not necessarily that he was the thief). The unlawful vehicle taking charge, on the other hand, would require a showing that the defendant himself took the vehicle intending to deprive the owner thereof, but not necessarily that he intended to steal it. The lesser included offense to vehicle taking, which is joyriding, required only a finding of taking without permission of the owner for the purpose of temporary use.
The court gave the jury definitional instructions as to each of these three potential crimes. It instructed on the elements of the crime of unlawful vehicle taking (Veh. Code, § 10851, alleged in count one); on the elements of receiving stolen property (Pen. Code, § 496, alleged in count two); and gave the definition of joyriding (Pen. Code, § 499b, stated to be a lesser offense of unlawful vehicle taking).
With respect to the two felony charges, the court instructed that they were alternative and that the jury could return a conviction of only one of the charges. Should the jury find the defendant guilty of one of these primary charges, it would have to choose which of the offenses constituted the conviction, and then should find the defendant not guilty of the other charge.
As to the lesser offense of joyriding, the court gave the standard CALJIC No. 17.10 which explains that the jury may convict of the lesser offense if it cannot reach a verdict on the greater offense but is convinced beyond a reasonable doubt of guilt of the lesser offense.
In further explanation of the relationship between greater and lesser offenses the court gave an adapted version of CALJIC No. 17.12.2 It ex[5]*5plained that the jury members would receive blank verdict forms for both the greater and lesser offense; that if they should agree on guilt of the greater offense they should sign that form and nothing further would be required; that if they unanimously agree the defendant is not guilty of the greater offense they should then consider the lesser offense. In accord with People v. Kurtzman (1988) 46 Cal.3d 322 [250 Cal.Rptr. 244, 758 P.2d 572], the court interlineated in the written instruction, and stated orally to the jury, that it could “consider the lesser offense before reaching a verdict on the greater offense.”
In sum, then, the jury was advised there were two alternative greater offenses and that if it should find guilt of one of the two it would have to decide which one. Then the jury was also advised that as to one of the greater offenses a lesser included offense existed, and was given detailed instructions as to how to approach the relationship between this greater and its lesser offense. A fair reading of the instructions would also lead, we believe, to the conclusion by the jury that it could consider and discuss all three related offenses (vehicle taking, joyriding and receiving stolen property) before arriving at conclusions as to any of them.
[6]*6The jury was not, however, advised as to the relationship, if any, between the lesser included offense of count one (joyriding) and the offense stated in count two (receiving stolen property). This being obviously one of the more prescient of juries, it asked during deliberations: “Do we have to decide guilty or not guilty on joy riding if we decide guilty on charge number 2?” After discussion with and concurrence of both counsel, the court responded “No,” after which the jury returned with a not guilty verdict as to count one, a guilty verdict as to count two, and no finding with respect to the lesser included offense of joyriding.
The court discussed these results with counsel in chambers. Defense counsel objected to the proceedings (acknowledging that he was changing the position he had previously taken), contending that the upshot of the court’s response to the jury’s question was to preclude it from considering joyriding as a lesser included or related offense to receiving stolen property. The prosecuting attorney contended that the finding as to count two made further consideration of the lesser included offense of Count One moot, and moved to dismiss count one. The court granted the motion to dismiss and hence denied defense counsel’s request for further jury deliberations as to any lesser offense. It is this ruling which is the foundation of this appeal, appellant contending that the court improperly deprived the jury of the potential of considering joyriding as a possible lesser included or related offense of receiving stolen property.
A “lesser included offense” is one all the elements of which are embraced within the elements of the greater offense. (Schmuck v. United States (1989) 489 U.S. 705, 715 [103 L.Ed.2d 734, 746, 109 S.Ct. 1443, 1450].) The court is required to give instructions on a necessarily included lesser offense, whether requested or not by counsel, if the evidence would justify a conviction of the lesser offense. (People v. Cooper (1968) 268 Cal.App.2d 34, 39 [73 Cal.Rptr. 608]; 5 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Trial, § 2926, pp. 3587-3589.) Joyriding is a necessarily included offense of unlawful vehicle taking, and hence the court’s instruction on the subject was correct. Joyriding is not a necessarily included offense of the crime of receiving stolen property,3 and hence it was proper (particularly in light of there having been no request therefor) for the court not to instruct on that subject.
[7]*7It is possibly true that in this case joyriding might have been considered a “lesser related offense” upon which, in reaction to an appropriate request from counsel, an instruction might have been appropriate. (See People v. Geiger (1984) 35 Cal.3d 510, 530-531 [190 Cal.Rptr. 45, 674 P.2d 1303, 50 A.L.R. 4th 1055].) The failure to give such instruction in this case can hardly, however, be deemed error.
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Opinion
FROEHLICH, J.
This appeal requires consideration of the proper procedure to be utilized by a jury, and accordingly the instructions which should be given a jury, when it is presented with alternative primary criminal offenses and the possibility of a lesser included offense as to one of the alternative primary offenses. We conclude that the jury should be instructed that it need reach the issue of the lesser included offense of one of the alternative primary offenses only if it concludes that the defendant is not guilty of both alternative primary offenses.
The defendant in this case was arrested after a display of erratic driving. A blood test indicated intoxication. The vehicle being driven was shown to have been stolen from an auto agency. The defendant did not testify at the trial. Rather obviously, then, the jury was presented a case in which the defendant was in possession of and driving a stolen vehicle. The specific crime of which he might be found guilty would depend upon the jury’s [4]*4resolution of circumstantial evidence pertaining to the facts of the taking of the vehicle and the defendant’s intent related thereto.1
In order to sustain the receiving stolen property charge the jury would have to find that the defendant was in possession of the vehicle with knowledge that it had been stolen (but not necessarily that he was the thief). The unlawful vehicle taking charge, on the other hand, would require a showing that the defendant himself took the vehicle intending to deprive the owner thereof, but not necessarily that he intended to steal it. The lesser included offense to vehicle taking, which is joyriding, required only a finding of taking without permission of the owner for the purpose of temporary use.
The court gave the jury definitional instructions as to each of these three potential crimes. It instructed on the elements of the crime of unlawful vehicle taking (Veh. Code, § 10851, alleged in count one); on the elements of receiving stolen property (Pen. Code, § 496, alleged in count two); and gave the definition of joyriding (Pen. Code, § 499b, stated to be a lesser offense of unlawful vehicle taking).
With respect to the two felony charges, the court instructed that they were alternative and that the jury could return a conviction of only one of the charges. Should the jury find the defendant guilty of one of these primary charges, it would have to choose which of the offenses constituted the conviction, and then should find the defendant not guilty of the other charge.
As to the lesser offense of joyriding, the court gave the standard CALJIC No. 17.10 which explains that the jury may convict of the lesser offense if it cannot reach a verdict on the greater offense but is convinced beyond a reasonable doubt of guilt of the lesser offense.
In further explanation of the relationship between greater and lesser offenses the court gave an adapted version of CALJIC No. 17.12.2 It ex[5]*5plained that the jury members would receive blank verdict forms for both the greater and lesser offense; that if they should agree on guilt of the greater offense they should sign that form and nothing further would be required; that if they unanimously agree the defendant is not guilty of the greater offense they should then consider the lesser offense. In accord with People v. Kurtzman (1988) 46 Cal.3d 322 [250 Cal.Rptr. 244, 758 P.2d 572], the court interlineated in the written instruction, and stated orally to the jury, that it could “consider the lesser offense before reaching a verdict on the greater offense.”
In sum, then, the jury was advised there were two alternative greater offenses and that if it should find guilt of one of the two it would have to decide which one. Then the jury was also advised that as to one of the greater offenses a lesser included offense existed, and was given detailed instructions as to how to approach the relationship between this greater and its lesser offense. A fair reading of the instructions would also lead, we believe, to the conclusion by the jury that it could consider and discuss all three related offenses (vehicle taking, joyriding and receiving stolen property) before arriving at conclusions as to any of them.
[6]*6The jury was not, however, advised as to the relationship, if any, between the lesser included offense of count one (joyriding) and the offense stated in count two (receiving stolen property). This being obviously one of the more prescient of juries, it asked during deliberations: “Do we have to decide guilty or not guilty on joy riding if we decide guilty on charge number 2?” After discussion with and concurrence of both counsel, the court responded “No,” after which the jury returned with a not guilty verdict as to count one, a guilty verdict as to count two, and no finding with respect to the lesser included offense of joyriding.
The court discussed these results with counsel in chambers. Defense counsel objected to the proceedings (acknowledging that he was changing the position he had previously taken), contending that the upshot of the court’s response to the jury’s question was to preclude it from considering joyriding as a lesser included or related offense to receiving stolen property. The prosecuting attorney contended that the finding as to count two made further consideration of the lesser included offense of Count One moot, and moved to dismiss count one. The court granted the motion to dismiss and hence denied defense counsel’s request for further jury deliberations as to any lesser offense. It is this ruling which is the foundation of this appeal, appellant contending that the court improperly deprived the jury of the potential of considering joyriding as a possible lesser included or related offense of receiving stolen property.
A “lesser included offense” is one all the elements of which are embraced within the elements of the greater offense. (Schmuck v. United States (1989) 489 U.S. 705, 715 [103 L.Ed.2d 734, 746, 109 S.Ct. 1443, 1450].) The court is required to give instructions on a necessarily included lesser offense, whether requested or not by counsel, if the evidence would justify a conviction of the lesser offense. (People v. Cooper (1968) 268 Cal.App.2d 34, 39 [73 Cal.Rptr. 608]; 5 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Trial, § 2926, pp. 3587-3589.) Joyriding is a necessarily included offense of unlawful vehicle taking, and hence the court’s instruction on the subject was correct. Joyriding is not a necessarily included offense of the crime of receiving stolen property,3 and hence it was proper (particularly in light of there having been no request therefor) for the court not to instruct on that subject.
[7]*7It is possibly true that in this case joyriding might have been considered a “lesser related offense” upon which, in reaction to an appropriate request from counsel, an instruction might have been appropriate. (See People v. Geiger (1984) 35 Cal.3d 510, 530-531 [190 Cal.Rptr. 45, 674 P.2d 1303, 50 A.L.R. 4th 1055].) The failure to give such instruction in this case can hardly, however, be deemed error. Initially we must note that instructions on lesser related offenses are not to be given sua sponte, but only upon request of counsel. (Id., at p. 530.) More importantly, the appropriate order of consideration by the jury in this case of the several charges made reconsideration of joyriding, as a lesser offense of vehicle taking, moot.
Where, as here, alternative primary offenses are charged, it is the obligation of the jury first to decide guilt or innocence as to those offenses. The jury here was instructed that if it found the defendant not guilty of unlawful vehicle taking it should then consider the lesser offense of joyriding. However, although not explicitly stated in the instructions, the jury should embark upon a determination of guilt or innocence of joyriding only if it should reject guilt on both the primary charges. This in fact was the question posed by the jury to the judge: “Do we have to decide [about joyriding] if we decide guilty on [receiving stolen property]?” The answer given by the court—“No”—was absolutely correct. Having found guilt as to a primary offense there was no occasion to consider guilt or innocence as to a lesser offense.4
It is true that, in accord with People v. Kurtzman, supra, 46 Cal.3d at pp. 330-331, the jury is entitled to consider and discuss the lesser offense along with its deliberations concerning the greater. Counsel’s failure to request a specific lesser related offense instruction as to receiving stolen property did not in this case, however, preclude this consideration. The jury was advised [8]*8as to the elements of joyriding. This is not a case in which it was precluded from viewing “the full range of possible verdicts.” (See People v. Wickersham (1982) 32 Cal.3d 307, 324 [185 Cal.Rptr. 436, 650 P.2d 311].) Once having determined guilt of receiving stolen property, further consideration of joyriding, as was requested by defense counsel, would indeed, as determined by the trial court, have been confusing and inconsistent with prior instructions.
Disposition
Judgment affirmed.
Wiener, Acting P. J., and Benke, J., concurred.