(San Mateo County Super. Ct. No. SC062239) Trial court: San Mateo County Superior Court Trial judge: Hon. Barbara J. Mallach.
The opinion of the court was delivered by: Needham, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Appellant Jennifer McPike appeals from a judgment placing her on felony probation after a jury convicted her of misdemeanor petty theft and a felony count of receiving stolen property. (Pen. Code, §§ 484, 496, subd. (a).)*fn2 We agree with her contention that both counts cannot stand because a defendant cannot be convicted of stealing and receiving the same property. We reject appellant's other claims of instructional error and ineffective assistance of counsel.
I. FACTUAL AND PROCEDURAL HISTORY
On the afternoon of August 20, 2006, Suzanne Sweeney and her husband drove from their rental house to their home in Woodside, which was being remodeled. They arrived at about 3:00 p.m. and stayed inside for about 45 minutes, after which they returned to their car and discovered that mail addressed to neighboring houses had been scattered on the ground. After they delivered the mail to their neighbors, Sweeney noticed that her purse and cell phone were missing. The purse was worth about $1200. Sweeney and her husband returned quickly to their rental house, where she telephoned the sheriff to report the missing purse and cell phone and notified her credit card companies that cards inside the purse had been stolen.
On that same afternoon, appellant and her friend Jessica Quiroz Mason visited three stores in San Bruno and made various purchases using Sweeney's credit cards. Mason was driving her boyfriend's car. They first entered CompUSA, where Mason purchased a DVD player and a wireless keyboard using one of Sweeney's credit cards and signing the credit card receipt with Sweeney's name. According to the credit card receipt, the time of that purchase was 3:52 p.m. Appellant was standing a few feet away when Mason signed the receipt.
Appellant and Mason then went to a nearby Marshall's store, where they used two of Sweeney's credit cards to purchase various items in two separate transactions. The clerk recalled that each of them signed one of the two credit card receipts, although the signatures on both receipts were similar. Those transactions took place at about 4:14 p.m.
After leaving Marshall's, appellant and Mason went to the Sears Auto Center, where they spoke to a clerk about purchasing tires for a person who was not present. Appellant called someone on a cell phone to discuss the purchase and directed Mason to pay for the tires. Appellant and Mason then returned to the car and drove to the rear of the store to pick up the tires. One of the auto center technicians noticed them circling the parking lot in the car and saw appellant get out and pick up an object from the ground.
Meanwhile, Officer Johansen of the San Bruno Police Department arrived at Sears in response to a report that that someone had just made a purchase using one of Sweeney's credit cards. The clerk who had assisted appellant and Mason looked to the back of the parking lot and pointed out the car that Mason was driving. He later identified appellant and Mason as the women who had purchased the tires from him.
Officer Johansen detained appellant and Mason, who denied that they had been inside the store. He discovered Sweeney's purse on the back seat of the car with Sweeney's driver's license inside. A wallet belonging to Sweeney was discovered under the driver's seat and another wallet was found near a dumpster in the parking lot. Johansen searched appellant and discovered Sweeney's cell phone in her pants pocket; appellant claimed that she did not know who owned the phone. Keys, including one to Sweeney's car, were found on the passenger seat where appellant had been sitting. Billing records for Sweeney's cell phone later showed that it had been used to make a number of calls to numbers that Sweeney did not recognize between 2:59 p.m. and 4:20 p.m. on the day her purse was taken.
Appellant was charged by information with grand theft (§ 487), receiving stolen property (§ 496, subd. (a)), theft of an access card (§ 484e, subd. (d)), forgery (§ 470, subd. (a)) and three counts of second degree burglary (§§ 459, 460, subd. (b)). The case proceeded to trial, where both appellant and Mason testified. Mason had by that time pled guilty to the crimes with which appellant was charged.
According to Mason, she had taken Sweeney's purse after finding it at a bus stop in South San Francisco. Inside the purse were the credit cards. She picked up appellant in her boyfriend's car to go shopping, using the credit cards to pay for various items at CompUSA and Marshall's. She bought some things for appellant at Marshall's. She bought the tires for a third person that appellant knew with the understanding that appellant would pay her less than their face value. Mason did not believe appellant was guilty of any of the offenses.
Appellant testified that she had known Mason for about seven months and had asked her for a ride to Target to buy some diapers. They visited CompUSA and Marshall's, where Mason made various credit card purchases. Mason bought some sandals and shoes for appellant at Marshall's, with the understanding that appellant would repay her. They went to Sears to purchase a new tire for appellant's roommate, though the roommate's car only needed one tire and appellant was only going to pay Mason for one tire. While in the store, appellant used a cell phone handed to her by Mason to call her roommate and get information about the type of tire she needed.
Appellant recalled that after Mason purchased the tires and they left the store to pick them up in the back, Mason threw a wallet out the window. Appellant got out to pick it up and Mason asked her to get rid of it. Appellant placed it on the ground. It was only then that appellant began to suspect the credit cards did not belong to Mason. She did not know about the purse on Mason's back seat and denied that Sweeney's cell phone was discovered in her own pants pocket. Appellant also denied knowing that Sweeney's keys were on the passenger seat.
The jury convicted appellant of receiving stolen property and misdemeanor petty theft as a lesser included offense of grand theft. It returned verdicts of not guilty on the forgery count and the two second degree burglary counts naming Marshall's and CompUSA as victims. The jury was unable to reach a verdict on the charges of theft of an access card and the remaining burglary count naming Sears as a victim. Appellant was placed on three years felony probation after the trial court declined to dismiss the receiving stolen property count as incompatible with the theft conviction.
A. Dual Conviction of Petty Theft and Receiving ...