Return to CALJIC Part 14-17 – Contents
F 14.65 n1 Thief May Be Convicted Of Receiving Stolen Property But May Not Be Convicted Of Both Theft And Receiving Stolen Property (PC 496).
Whether Thief May Be Convicted Of Both Crimes. Prior to 1992, courts relied on People v. Jaramillo (76) 16 C3d 752, 756-59 [129 CR 306] which held that, absent certain exceptions, a thief could not be convicted of both receiving the property and theft. This rule was reaffirmed by the 1992 amendment to PC 496(a) which expressly stated “…no person may be convicted both pursuant to this section and of the theft of the same property.” (See People v. Allen (99) 21 C4th 846 [89 CR2d 279].)
Whether Thief May Be Separately Convicted Of Violating PC 496(a). Prior to 1992, under the authority of Jaramillo, a thief could not be convicted of receiving or concealing the stolen property even if he or she was not prosecuted as the thief. However, there was a split of authority as to whether a thief may be separately convicted of selling the property which he or she had stolen. (People v. Jackson (78) 78 CA3d 533, 538-39 [144 CR 199] — no; People v. Tabarez (88) 206 CA3d 551, 553-56 [253 CR 658] — yes.)
In 1992, the legislature added the following language to PC 496(a): “A principal in the actual theft of the property may be convicted pursuant to this section.” The plain meaning of the statute is that a thief can be convicted of violating either PC 496(a) or theft. However, a separate statement of legislative intent provided as follows: “It is the intent of the Legislature to provide for the prosecution of principals in the actual theft of the property who continue to possess that property after the statute of limitations has run on the theft of the property.” (Stats., 192, ch. 1146, § 2. Emphasis added.) Due to this difference between the plain meaning of the statute and the stated legislative intent, there have been conflicts in interpreting the 1992 amendment.
In re Kali D. (95) 37 CA4th 381, 386 [43 CR2d 581] (First District) interpreted the statute to mean that a defendant could be convicted of PC 496(a) if he or she was a principal in the actual theft only when the statute of limitations has run on the underlying theft.
However, other cases have interpreted the statute to mean that the thief could be convicted of either theft or receiving. People v. Strong (94) 30 CA4th 366, 373 [35 CR2d 494] interpreted the language to mean “the fact that the defendant stole the property no longer bars a conviction for receiving, concealing or withholding the same property. The thief may be convicted either of the theft (upon a suitable showing) or receiving, but not both.” (See also People v. Hinks (97) 58 CA4th 1157 [68 CR2d 440] (Second District) and People v. Reyes (97) 52 CA4th 975 [61 CR2d 39] (Fourth District) same conclusion].)
In People v. Allen (99) 21 C4th 846 [89 CR2d 279] the Supreme Court resolved these conflicts. A thief may not be convicted both of theft (PC 484, PC 487) and receiving or concealing stolen property under PC 496. However, based on the 1992 amendment to PC 496, the court disapproved a line of cases that held that the thief could not be convicted of receiving even though there was no conviction for the theft. The court held that as long as the defendant is not convicted of the theft, even if the statute of limitations on that charge has not run, he or she may be convicted of receiving.
F 14.65 n2 Identity Of Thief Not Relevant When Defendant Only Charged With Receiving (PC 496).
If defendant is only charged with receiving, the prosecution doesn’t have to prove someone else was the thief. (People v. Price (91) 1 C4th 324, 464 [3 CR2d 106].)
F 14.65 n3 Taking And Receiving The Same Vehicle (PC 496).
(See FORECITE F 14.65 n1 and FORECITE F 14.37 n2.)
RESEARCH NOTES
See Annotation, Participation in larceny or theft as precluding conviction for receiving or concealing the stolen property, 29 ALR5th 59 and Later Case Service.
F 14.65 n4 Receiving Stolen Property: Applicability Of Temporary Safety Rule.
See FORECITE F 8.21.1 n5.
F 14.65 n5 Conviction For Receiving Stolen Property And/Or Burglary As To The Same Property.
People v. Landis (96) 51 CA4th 1247 [59 CR2d 641] held that dual conviction for burglary and receiving stolen property is permissible. In so doing, Landis disagreed with People v. Lawrence (80) 111 CA3d 630, 639 [169 CR 245] and People v. Perez (74) 40 CA3d 795, 800 [115 CR 405] which interpreted People v. Jaramillo (76) 16 C3d 752 [129 CR 306] to preclude conviction for both burglary and receiving stolen goods. Landis concluded that it would be inconsistent to permit dual convictions for burglary and theft but bar dual convictions for burglary and receiving stolen goods. (Landis, 51 CA4th at 1255.)
People v. Carr (98) 66 CA4th 109 [77 CR2d 639] held that a defendant may be convicted both of burglary and receiving property stolen in the burglary.
(See FORECITE F 14.65 n1.)
F 14.65 n6 Receiving Stolen Property: Negation Of Knowledge Element By Intoxication Or Mental Impairment.
(See People v. Reyes (97) 52 CA4th 975 [61 CR2d 39]; see also FORECITE F 4.21 n4.)
F 14.65 n7 Possession Of Stolen Property.
RESEARCH NOTE: See annotation, Possession Of Stolen Property As Continuing Offense, 24 ALR 5th 132, and Later Case Service.
F 14.65a
Concealing Stolen Property: When Thief May Be Convicted
(PC 496)
*To be added at end of CJ 14.65:
If you conclude that the defendant wrongfully retained property which was innocently received, [he] [she] may be convicted of theft. However, [he] [she] may not also be convicted of concealing stolen property unless [he] [she] committed subsequent acts of concealment so completely divorced from the original misappropriation as to constitute an independent course of conduct.
Points and Authorities
The rule that a defendant cannot be convicted of stealing and receiving the same property (People v. Jaramillo (76) 16 C3d 752, 757 [129 CR 306]) is also applicable to circumstances where the only evidence of theft is misappropriation of property otherwise innocently received. (People v. Moses (90) 217 CA3d 1245, 1256 [266 CR 538].) The Moses court observed that where the wrongful retention of property makes the property “stolen,” the record must demonstrate some other wrongful detention before the retainer is further guilty of “concealing” that which had been wrongfully retained in the first place. The subsequent acts of concealment must be so “completely divorced” from the original misappropriation as to “constitute an independent course of conduct.” (Moses 217 CA3d at 1256.) Otherwise, the retainer cannot be convicted of concealing stolen property pursuant to PC 496 and the jury should be so instructed. (See also, FORECITE F 14.65 n1; FORECITE F 17.02 n7.)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
(See FORECITE F 14.65 n1.)
RESEARCH NOTES
See Annotation, Participation in larceny or theft as precluding conviction for receiving or concealing the stolen property, 29 ALR5th 59 and Later Case Service.
F 14.65b
No Legal Duty To Report Crime
(PC 496)
*Add to CJ 14.65:
There is no legal duty to report to the authorities that another person is guilty of the crime of receiving stolen property. It is not a crime to be present or live at a location where there is stolen property knowing that such property is stolen unless once commits an affirmative act to conceal the fact.
The act of touching or moving stolen property with the knowledge that the property is stolen is not itself an offense unless the acts are done for the purpose of buying, selling, receiving, withholding, or concealing stolen property or assisting someone else in buying, selling, receiving, withholding, or concealing stolen property.
Points and Authorities
Mere Presence: People v. Villa (57) 156 CA2d 128, 134 [318 P2d 828] [Mere presence doesn’t establish aider or abettor liability.]
Failure To Act: People v. Luna (56) 140 CA2d 662, 664 [295 P2d 457] [a person who stands by and watches an assault, and even approves of it, is a mere bystander, and not an accessory to the assault.”]
Mere Silence: People v. Garnett (1900) 129 C 364, 366 [61 P 1114] [Under PC 32, mere silence, after knowledge of the commission of a felony, is not sufficient to constitute one an accessory, without some affirmative act looking towards the concealment of the crime.]
See also 54 Harv.L.Rev. 506 [Common-Law Offense of Misprision of Felony Held Not Part of Modern Criminal Law] and cases cited therein.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
Touching Or Moving Of Stolen Property Not Sufficient: See FORECITE F 4.025a.
NOTES
[See also FORECITE F 3.01d for instruction relating this principle to aiding and abetting in general.]
F 14.65c
Receiving Stolen Property: Innocent Intent Defense
*Modify CJ 14.65 as follows:
[See FORECITE F 4.025a.]
