The opinion
WERDEGAR, J., Concurring.
I agree with the majority’s conclusion and with its analysis as far as it goes. I write separately to address what the majority declines to address: defendant’s potentially dispositive argument based on People v. Tufunga (1999) 21 Cal.4th 935 [ 90 Cal.Rptr.2d 143 , 987 P.2d 168 ] (Tufunga), made in support of his claim that an unlawful taking of a vehicle (Veh. Code, § 10851) is a lesser included offense of carjacking (Pen. Code, § 215).
In Tufunga , we held that under Penal Code section 211 (the robbery statute), a claim of right continues, as at common law, to constitute a defense *1037 to robbery. (Tufunga, supra, 21 Cal.4th at p. 950 .) In reaching that conclusion, we observed that, at common law, a claim of right was recognized as a defense to both larceny and robbery: to larceny because a claim of right was deemed to negate the felonious-intent-to-steal element of the offense, and to robbery because that offense was viewed as simply an aggravated form of larceny. (Id. at p. 945.) Construing the plain language of the theft and robbery statutes, we concluded that “by adopting the identical phrase ‘felonious taking’ as used in the common law with regard to both offenses, the Legislature in all likelihood intended to incorporate the same meanings attached to those phrases at common law.” (Id. at p. 946.)
Here, the carjacking statute, like the robbery statute, by its terms applies to the “felonious taking” of a vehicle by force or fear. (Pen. Code, § 215, subd. (a).) Defendant’s argument is that, pursuant to the reasoning in Tufunga, supra, 21 Cal.4th 935 , “felonious taking” in the carjacking statute presumably means the same as in the robbery statute. (See People v. Lopez (2003) 31 Cal.4th 1051, 1060-1061 [ 6 Cal.Rptr.3d 432 , 79 P.3d 548 ] [“Because the ‘felonious taking’ in the crime of robbery has an established meaning at common law and the same ‘taking’ language appears in the carjacking, robbery, and unlawful taking or driving of a vehicle statutes, we presume that the Legislature intended the same meaning, unless a contrary intent clearly appears”]; see also People v. Lopez (1891) 90 Cal. 569, 571 [ 27 P. 427 ] [“feloniously” when not otherwise defined is construed to have its common law meaning].) Accordingly, “the felonious taking or animus furandi element common to theft and robbery” (Tufunga, supra, at p. 946 ) is an element of carjacking. That element is the “[ijntent to steal, or feloniously to deprive the owner permanently of his property.” (Black’s Law Diet. (5th ed. 1979) p. 81; see also People v. Avery (2002) 27 Cal.4th 49, 57-58 [ 115 Cal.Rptr.2d 403 , 38 P.3d 1 ] [intent to deprive temporarily “but for an unreasonable time” satisfies intent to deprive permanently].) Since such a felonious taking is also an element of unlawful vehicle theft or taking (Veh. Code, § 10851, subd. (a) [requiring “intent either to permanently or temporarily deprive the owner”]), one cannot commit a carjacking, defendant argues, without committing an unlawful vehicle taking; hence, the latter is a lesser included offense of the former.
Obviously, if defendant is right, the majority is wrong. To render defendant’s argument in terms of the hypothetical presented by the majority: “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” (maj. opn., ante, at p. 1035), he would not, according to defendant and contrary to the majority, be guilty of carjacking because, intending to return the car to its owner, he lacks the “animus furandi—or felonious intent to steal” (Tufunga, supra, 21 Cal.4th at p. 945 ) that is an element of the offense. Therefore, if defendant is correct, the hypothetical would not illustrate that one can commit *1038 a carjacking without necessarily committing an unlawful taking of a vehicle. (See maj. opn., ante, at p. 1035.) Yet the hypothetical is all the majority offers in support of its reasoning that “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.” (Ibid.)
Although I do not believe defendant is right, his argument deserves to be addressed. Understanding its flaw requires us to distinguish Tufunga . In Tufunga , as discussed, we held that in adopting the phrase “felonious taking” in the robbery and theft statutes, the Legislature intended to incorporate into those statutes the common law meaning of the phrase. (Tufunga, supra, 21 Cal.4th at p. 946 .) To extend that holding so as to govern carjacking, also defined as a “felonious taking,” would run contrary to the legislative intent underlying the enactment of the carjacking statute. The plain language of that statute, wherein the word “possession” is thrice repeated, makes that intent evident. Carjacking is defined as the taking of a vehicle from “the possession of another” with the intent to deprive the person “in possession” of his or her “possession” (Pen. Code, § 215, subd. (a)). To require for a carjacking conviction, as defendant would have it, that the defendant have intended to deprive the vehicle owner of the vehicle or its value, based on the statute’s introductory “felonious taking” phraseology, would contravene the Legislature’s evident intent to create, as the Court of Appeal recognized, “a crime against the possessor or passengers in a vehicle,” not a crime against ownership. Contrary to our reasoning about the robbery statute in Tufunga , the Legislature in referring to carjacking as a “felonious taking” apparently did not intend that phrase to carry the same meaning it had at common law.
This conclusion is consistent with the historic fact that the carjacking statute, enacted in 1993 (Stats. 1993, ch. 611, § 6, p. 3508), responds to a relatively modem, urban problem, whereas the robbery statute (Pen. Code, § 211) was enacted in the mid-19th century. (See Tufunga, supra, 21 Cal.4th at p. 946 .) That the statutes are of such disparate origin further supports the conclusion that in the carjacking statute, unlike the robbery statute in Tufunga , the Legislature did not intend simply to incorporate the narrow common law understanding of “felonious taking.”
Although I admire appropriate brevity in judicial opinions, I believe defendant’s key arguments need to be addressed. Moreover, the majority’s omission, if unremarked, could lead to unnecessary confusion among litigants and trial courts who must grapple with carjacking cases.