Ct.App. 4/1 D049566 San Diego County Super. Ct. No. SCE262242 Christine K. Goldsmith.
The opinion of the court was delivered by: Corrigan, J.
The Penal Code specifies that a defendant may not be convicted of stealing and receiving the same property. (Pen. Code, § 496, subd. (a).)*fn1 In this case, the trial court failed to instruct on this point, and the jury convicted defendant of both petty theft and receiving the property he had stolen. A divided Court of Appeal reversed the petty theft conviction. The majority reasoned that the "greater" felony offense of receiving stolen property took precedence over the "lesser" misdemeanor theft offense.
Section 496(a) itself is inconclusive as to which conviction should stand when a defendant is erroneously convicted of theft and receiving stolen property. However, the rule against dual convictions, which was in effect long before its codification in 1992, is based on the premise that a theft conviction operates as a bar to a receiving conviction. California courts have consistently reversed the conviction on the receiving charge in cases of improper dual convictions. Because the Legislature gave no indication it meant to change this established practice, we conclude that it continues to apply under section 496(a). Accordingly, we reverse the judgment of the Court of Appeal.
The facts are undisputed, and we accept the Court of Appeal's summary.*fn2 Around 3:30 a.m. on June 18, 2006, a La Mesa police officer responded to a report of suspicious behavior in an apartment complex parking lot. He saw two men matching the suspects' description. Defendant was carrying a speaker box, which he dropped as he ran away. He was found hiding under a pickup truck. The speaker box had been removed from a nearby vehicle.
After a jury trial, defendant was convicted of misdemeanor petty theft and felony receipt of stolen property.*fn3 The court sentenced defendant to two years in prison on the receiving count, with an additional year for a prior conviction. It stayed a 180-day jail term on the theft conviction. As noted above, the Court of Appeal reversed the theft conviction and allowed the receiving conviction to stand. The majority acknowledged that theft is not a necessarily included offense of receiving stolen property, but relied by analogy on the rule that when a defendant is convicted of both a greater and a lesser included offense, sentence is imposed on the greater offense. (People v. Moran (1970) 1 Cal.3d 755, 763.) The dissenting justice reasoned that the common law origins of the rule against convictions for stealing and receiving the same property establish that once a defendant has been convicted of theft, there is no basis for a receiving conviction. The dissent has the better argument.
In 1992, the Legislature amended the statutory definition of receiving stolen property to add this declaration: "A principal in the actual theft of the property may be convicted pursuant to this section. However, no person may be convicted both pursuant to this section and of the theft of the same property." (§ 496(a), as amended by Stats. 1992, ch. 1146, § 1, p. 5374; see People v. Allen (1999) 21 Cal.4th 846, 857 (Allen).) The rule against dual convictions was originally a creature of the common law, founded on the notion that it is "logically impossible for a thief who has stolen an item of property to buy or receive that property from himself." (Allen, at p. 854.)
In the case law, the rule had sometimes been applied narrowly, to prohibit only convictions of the two offenses, and sometimes more broadly, to preclude a conviction of receiving stolen property when there was evidence implicating the defendant in the theft. (Allen, supra, 21 Cal.4th at p. 853.) The broader application led to a number of problems,*fn4 and was largely abandoned by the time the Legislature addressed the rule. (Id. at pp. 853-857; see People v. Price (1991) 1 Cal.4th 324, 464 [receiving conviction is proper "even though the evidence also strongly suggests that it was the defendant who stole the property"].) The 1992 amendment of section 496(a) effectively abrogated the broad form of the common law rule, and adopted the narrow form barring only dual convictions. (Allen, at p. 857.)
The statute is silent on the question before us: when a defendant has been improperly convicted of stealing and receiving the same property, what is the appropriate remedy? On its face, section 496(a) is neutral as to which of the convictions should survive. Either is permissible, so long as the other is not allowed to stand. The Attorney General contends that because the Legislature indicated no preference for one conviction over the other, the Court of Appeal majority was properly guided by the general policy of holding defendants liable for the greatest offense they commit. Like the majority below, the Attorney General refers to the rule that conviction of a greater offense subsumes a necessarily included lesser offense, a principle we reaffirmed in People v. Medina (2007) 41 Cal.4th 685, 701 (Medina). The Attorney General also points to section 654, which provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
The Attorney General's arguments are superficially appealing, but do not withstand close examination. The rule against multiple convictions of greater and lesser included offenses is based on considerations quite distinct from those supporting the rule against dual convictions of theft and receiving stolen property. The history of the rule now found in section 496(a) shows that the theft conviction has taken precedence, regardless of which offense carries the greater penalty. Section 654 requires no different result. It does not bar multiple convictions, but applies only to sentencing. Although section 654's proscription against multiple punishment was in some cases confused with the rule against convictions for stealing and receiving the same property, decisions of this court have rejected the attempt to conflate the two doctrines.
We first address the analogy to greater and lesser included offenses, which the Court of Appeal majority found persuasive. Convictions of a greater and a lesser included offense are barred because the defendant cannot commit the greater offense without also committing the lesser. Conviction on both counts would effectively permit two convictions for the lesser offense. (Medina, supra, 41 Cal.4th at p. 702.) As the court below recognized, theft is not a lesser included offense of receiving stolen property. (In re Greg F. (1984) 159 Cal.App.3d 466, 469.) What the court failed to note is that the rationale of the rule against dual convictions of theft and receiving has nothing to do with double punishment. Rather, it evolved from the premise that "a thief cannot receive from himself." (People v. Stewart (1986) 185 Cal.App.3d 197, 204 (Stewart); see Allen, supra, 21 Cal.4th at p. 854.) By this logic, commission of the theft excludes the possibility of a receiving conviction. (Allen, at p. 851; People v. Jaramillo (1976) 16 Cal.3d 752, 759 (Jaramillo); Stewart, at p. 206.)*fn5
The narrow form of the common law rule now found in section 496(a) permits a "thief in fact" to be convicted of receiving the stolen property, so long as he or she is not also convicted of the theft. However, this bar against dual convictions includes no consideration of which offense is "greater" or "lesser." As the Stewart court explained: "[T]heft or theft-related offenses and receiving stolen property are not mutually exclusive offenses; it is the theft or theft-related offense which has the preclusive effect. Thus, if the defendant is found to be the thief he cannot be convicted of receiving the same property, and where he is so convicted it is the receiving conviction which is improper. For this reason it is always the receiving conviction which cannot stand, regardless whether it is the lesser or the greater offense." (Stewart, supra, 185 Cal.App.3d at p. 209, italics added.)
The Attorney General contends Stewart is inapposite because it applied the broad form of the common law rule, which permitted evidence of theft to operate as a bar against a receiving conviction. Not so. Stewart involved improper dual convictions, not merely evidence of theft, and its analysis accurately describes the common law rationale for upholding the theft conviction. Although that rationale grew from the idea that an actual thief could not be convicted of receiving, the same reasoning has guided the courts in determining which of the two convictions takes precedence, even after codification of ...