People v. Ceja
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author)
Analysis
The trial court convicted the defendant of both petty theft and receiving stolen property for the same property and sentenced him to three years in prison. On appeal, the Court of Appeal reversed the petty theft conviction and affirmed the receiving stolen property conviction, reasoning that the felony conviction must stand over the misdemeanor conviction under principles analogous to greater/lesser included offenses.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Conviction for both petty theft and receiving stolen property of the same property“The People concede that Ceja was erroneously convicted of both receiving stolen property and theft of the same property.” | de novo | error | agree with court The appellate court correctly identified that Penal Code section 496, subdivision (a) prohibits a person from being convicted of both the theft and the receiving of the same property. The court applied the correct legal standard by looking to the legislative intent of the 1992 amendment and the Supreme Court's interpretation in People v. Allen. The court's conclusion that the felony conviction (receiving stolen property) should be affirmed over the misdemeanor conviction (petty theft) is a defensible application of the greater/lesser offense principles from People v. Moran and People v. Cole, even though the offenses are not strictly lesser included. The dissent argues the opposite, but the majority's reasoning is supported by the text of the statute and the cited authorities. |
Authorities
- relied: People v. Allen (1999) 21 Cal.4th 846 — The 1992 amendment to Penal Code section 496 allows a thief to be convicted of receiving stolen property, but a person cannot be convicted of both the theft and the receiving of the same property.
- relied: People v. Moran (1970) 1 Cal.3d 755 — If the evidence supports a verdict as to a greater offense, the conviction of that offense is controlling, and the conviction of the lesser offense must be reversed.
- relied: People v. Cole (1982) 31 Cal.3d 568 — Where a person has been convicted of both the greater and lesser offense, the court must sentence on the greater offense.
- relied: People v. Birks (1998) 19 Cal.4th 108 — A lesser offense is necessarily included in a greater offense if the statutory elements of the greater offense include all the elements of the lesser offense.
- relied: In re Greg F. (1984) 159 Cal.App.3d 466 — Theft is not a lesser included offense of receiving stolen property.
- relied: In re Kali D. (1995) 37 Cal.App.4th 381 — The legislative history of the 1992 amendment to section 496 showed the legislative intent to allow a thief to be convicted of receiving the same property the thief stole, only after the statute of limitation on the theft offense had expired.
- relied: People v. Reyes (1997) 52 Cal.App.4th 975 — The plain meaning of section 496 as amended in 1992 authorized conviction of receiving stolen property regardless of whether the statute of limitations on the theft offense had expired.
The appellate opinion: sound — The opinion is sound because it correctly identifies the statutory prohibition against dual convictions and applies the greater/lesser offense analogy to resolve which conviction should stand. The reasoning is supported by the text of the statute and the cited authorities, and it addresses the dissent's argument by distinguishing the common law prohibition from the statutory amendment.
The trial court entered judgment on a jury's verdicts convicting Ceja of both petty theft and receiving the same stolen property, sentencing him to the two-year middle term for receiving plus a one-year prior-prison-term enhancement and staying a 180-day term for petty theft under section 654. The Court of Appeal, over a dissent, held dual convictions were barred by section 496, subdivision (a), but reversed the misdemeanor petty theft conviction as the "lesser" offense and affirmed the felony receiving conviction.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Entry of convictions for both petty theft (§ 484) and receiving the same stolen property (§ 496, subd. (a))“The People concede that Ceja was erroneously convicted of both receiving stolen property and theft of the same property.” | de novo | error (statutory interpretation) | agree with court Section 496, subdivision (a) expressly provides that no person may be convicted both under that section and of the theft of the same property; the People conceded the point and Allen confirms that the 1992 amendment left this limitation intact. The appellate court correctly found dual convictions impermissible. |
Judgment imposing sentence on the felony receiving stolen property conviction (with petty theft stayed under § 654), which the Court of Appeal preserved by reversing the theft conviction and affirming the receiving conviction“By any definition in criminal law, a felony is the "greater" offense as compared to a misdemeanor.” | de novo | correct (statutory interpretation) | disagree with court The majority concedes theft is not a lesser included offense of receiving, yet imports the Moran/Cole greater-offense rule, which rests on the lesser-included relationship, to choose which conviction survives. The statutory text frames the bar as a limit on conviction 'pursuant to this section' when there is a theft conviction, and Allen states the receiving conviction is authorized 'provided he has not actually been convicted of the theft'; the dissent's reading that the receiving conviction must fall is more faithful to the statute and Allen, and the majority does not address Jaramillo, where the Supreme Court reversed the receiving conviction in the dual-conviction setting. |
Authorities
- misapplied: People v. Allen (1999) 21 Cal.4th 846 — After the 1992 amendment to section 496, a thief may be convicted of receiving the property he stole regardless of the theft statute of limitations, provided he has not actually been convicted of the theft; the majority read the next sentence to neutralize this proviso rather than treating it as identifying the receiving conviction as the one barred.
- misapplied: People v. Moran (1970) 1 Cal.3d 755 — Where a defendant is convicted of both a greater offense and a necessarily lesser included offense, the greater conviction controls and the lesser must be reversed; the rule is premised on the lesser-included relationship, which the majority conceded does not exist between theft and receiving.
- misapplied: People v. Cole (1982) 31 Cal.3d 568 — Grand theft is a lesser included offense of robbery and a conviction of the lesser included offense must be reversed when the defendant is also convicted of the greater; applied by analogy despite the absence of a lesser-included relationship here.
- relied: People v. Birks (1998) 19 Cal.4th 108 — A lesser offense is necessarily included in a greater offense when the statutory elements of the greater include all elements of the lesser.
- relied: In re Greg F. (1984) 159 Cal.App.3d 466 — Theft is not a lesser included offense of receiving stolen property.
- relied: In re Kali D. (1995) 37 Cal.App.4th 381 — Read the 1992 amendment's legislative history as permitting a thief's conviction for receiving only after the theft limitations period expired (disapproved in Allen).
- relied: People v. Reyes (1997) 52 Cal.App.4th 975 — The plain language of amended section 496 authorizes conviction of a thief for receiving the stolen property regardless of whether the theft limitations period has expired.
- relied: People v. Strong (1994) 30 Cal.App.4th 366 — After the 1992 amendment, the fact that the defendant stole the property no longer bars a conviction for receiving, concealing, or withholding the same property.
- missed: People v. Jaramillo (1976) 16 Cal.3d 752 — A defendant may not be convicted of both taking and receiving the same stolen property; the Supreme Court reversed the receiving stolen property conviction rather than the taking conviction.
The appellate opinion: questionable — The majority correctly identifies the dual-conviction bar but chooses which conviction survives by analogizing to lesser-included-offense cases after conceding no lesser-included relationship exists, and it reads Allen's proviso ('provided he has not actually been convicted of the theft') against its plain terms. The dissent's textual reading of section 496 and Allen is more persuasive, and the majority does not address Jaramillo, where the Supreme Court reversed the receiving conviction in this situation.
Opinion
Thea PEOPLE, Plaintiff and Respondent,
v.
Rafael CEJA, Defendant and Appellant.
Court of Appeal of California, Fourth District, Division One.
Richard De La Sota, under appointment by the Court of Appeal, Los Angeles, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lynne McGinnis and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
HUFFMAN, Acting P.J.
A jury convicted Rafael Ceja of petty theft (Pen.Code, § 484)[1] and receiving stolen property (§ 496, subd. (a)). Ceja admitted serving a prior prison term. (§ 667.5, subd. (b).) The court sentenced him to prison for three years: the two-year middle term for receiving stolen property enhanced one year for the prior prison term. It imposed, but stayed execution of, a 180-day sentence for petty theft (§ 654.) Ceja contends he cannot be convicted of theft and receiving stolen property he' obtained in the theft and his conviction of receiving stolen property must be reversed.
FACTS
At approximately 3:30 a.m. on June 18, 2006, La Mesa Police Officer Hans Warren responded to a report that two males were *698 observed acting suspiciously in a parking lot of an apartment complex. Warren saw two males who matched the description of the suspects. The male later identified as Ceja was carrying a speaker box. When Ceja saw Officer Warren, he dropped the box and ran. He was found nearby hiding under a pick-up truck. The speaker box Ceja dropped had been removed from a nearby parked vehicle.
DISCUSSION
Section 496, subdivision (a), which defines the offense commonly known as receiving stolen property, provides:
"Every person who ... receives any property that has been stolen ..., knowing the property to be so stolen ... shall be punished by imprisonment in a state prison, or in a county jail for not more than one year....
"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."
The People concede that Ceja was erroneously convicted of both receiving stolen property and theft of the same property. The People argue that because receiving stolen property is the greater offense, we should reverse the theft conviction and affirm the conviction of receiving stolen property. (See People v. Moran (1970) 1 Cal.3d 755, 763, 83 Cal.Rptr. 411, 463 P.2d 763 (Moran) ["If the evidence supports a verdict as to a greater offense, the conviction of that offense is controlling, and the conviction of the lesser offense must be reversed"]; People v. Cole (1982) 31 Cal.3d 568, 582, 183 Cal.Rptr. 350, 645 P.2d 1182 (Cole).) In Moran, possession of LSD was a lesser included offense of sale of LSD. In Cole grand theft was a lesser included offense of robbery. "Under California law, a lesser offense is necessarily included in a greater offense if ... the statutory elements of the greater offense ... include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser." (People v. Birks (1998) 19 Cal.4th 108, 117, 77 Cal.Rptr.2d 848, 960 P.2d 1073.) Although Ceja correctly points out that theft is not a lesser included offense of receiving stolen property that does not compel the result he seeks. (See In re Greg F. (1984) 159 Cal.App.3d 466, 469, 205 Cal.Rptr. 614.)
Generally, one convicted of receiving stolen property is acting as a "fence." (People v. Allen (1999) 21 Cal.4th 846, 854, 89 Cal.Rptr.2d 279, 984 P.2d 486 (Allen).) A thief could not normally be convicted of receiving the same property the thief stole. (Ibid.) In 1992, section 496 was amended for the purpose of preventing a defendant who stole property from avoiding criminal conviction for the theft by hiding the property until after the statute of limitations expired on the theft offense and thereafter retaining the property he stole without threat of criminal prosecution because a thief who continued to possess the stolen property could not be convicted of receiving the same stolen property. (Assem. Com. on Public Safety, Analysis of Assem. Bill 3326 (1991-1992 Reg. Sess.) pp. 1-2; Sen. Judiciary Com., Analysis of Assem. Bill 3326 (1991-1992 Reg. Sess.) pp. 2-3; Cal. Dept. of Finance, Analysis of Assem. Bill 3326 (April 30, 1992) p. 1; Assem. Ways & Means Com., Republican Analysis of Assem. Bill 3326 (May 6, 1992) p. 1; Cal. Youth & Adult Correctional Agency, Analysis of Assem. Bill 3326 (Aug. 19, 1992) p. 2.)
In In re Kali D. (1995) 37 Cal.App.4th 381, 386, 43 Cal.Rptr.2d 581, the court held that the legislative history of the 1992 amendment to section 496 showed the legislative *699 intent to allow a thief to be convicted of receiving the same property the thief stole, only after the statute of limitation on the theft offense had expired. People v. Reyes (1997) 52 Cal.App.4th 975, 987, 61 Cal.Rptr.2d 39 held to the contrary because it concluded the plain meaning of section 496 as amended in 1992 authorized conviction of receiving stolen property regardless of whether the statute of limitations on the theft offense had expired. In Allen, supra, 21 Cal.4th 846, 857, 89 Cal. Rptr.2d 279, 984 P.2d 486, the Supreme Court approved the Reyes conclusion.
Ceja contends the holding in Allen, supra, 21 Cal.4th 846, 89 Cal.Rptr.2d 279, 984 P.2d 486, compels the conclusion that the receiving stolen property conviction must be reversed because he has also been convicted of theft of the same property. Ceja refers to a sentence in the Allen opinion at page 857 in which the court says, in part, "The sentence thus authorizes a conviction for receiving stolen property even though the defendant also stole the property, provided he has not actually been convicted of the theft." Respectfully, that sentence cannot be read out of context to compel reversal of the receiving count instead of the theft count.
The court in Allen continued with the next sentence, "After the 1992 amendment, `the fact that the defendant stole the property no longer bars a conviction for receiving, concealing, or withholding the same property'. [Citation.]" (Allen, supra, 21 Cal.4th at p. 857, 89 Cal.Rptr.2d 279, 984 P.2d 486.)
We interpret the decision in Allen, supra, 21 Cal.4th 846, 89 Cal.Rptr.2d 279, 984 P.2d 486, to recognize the fundamental change in the common law brought about by the 1992 amendment. Plainly that amendment permits a person who is the thief to be convicted of receiving the same stolen property. The limitation recognized by the amendment and the court's opinion in Allen is that the person cannot be convicted of both offenses. The Allen decision does not compel a dismissal of the receiving stolen property conviction in favor of the petty theft conviction. It only recognizes the defendant can be convicted of only one charge arising from the theft and unlawful possession of the same property.
We believe that we can find guidance in resolving this issue by analogy to the principles in Moran, supra, 1 Cal.3d at pages 762-763, 83 Cal.Rptr. 411, 463 P.2d 763 and Cole, supra, 31 Cal.3d at page 582, 183 Cal.Rptr. 350, 645 P.2d 1182. In both cases the court held that where a person has been convicted of both the greater and lesser offense, the court must sentence on the greater offense. Both cases dealt with offenses, which involved convictions for both the greater and the lesser included offenses. From that difference Ceja argues we should not apply the principles of those cases because neither offense here is the lesser included offense of the other. Ceja continues that somehow the misdemeanor theft conviction must stand and the felony receiving conviction must fall. We disagree.
In this case petty theft was charged and convicted as a misdemeanor. The receiving charge, while a wobbler offense, was charged, convicted and sentenced as a felony. By any definition in criminal law, a felony is the "greater" offense as compared to a misdemeanor. We believe the reasoning of Moran, supra, 1 Cal.3d 755, 83 Cal.Rptr. 411, 463 P.2d 763 and Cole, supra, 31 Cal.3d 568, 183 Cal.Rptr. 350, 645 P.2d 1182, dictate the conviction of the felony offense, receiving stolen property, is the greater offense and must stand, and that the lesser offense, the misdemeanor of petty theft, must fall.
*700 DISPOSITION
The conviction of petty theft is reversed. The conviction of receiving stolen property is affirmed. The trial court is directed to modify the abstract of judgment accordingly, and forward an amended abstract of judgment to the Department of Corrections and Rehabilitation.
I CONCUR: BENKE, J.
McDONALD, J., dissenting.
I agree with the majority's concise opinion except its conclusion that Ceja's petty theft conviction rather than his receiving stolen property conviction should be reversed. The history of the issue of the defendant's conviction for receiving stolen property that the defendant stole, including the 1992 amendment to Penal Code section 496,[2] leads to the conclusion that if, as here, the defendant is convicted of the theft, he or she cannot be convicted of receiving the property stolen. I would therefore reverse Ceja's conviction of receiving stolen property.
The majority opinion recites the judicial history of the crime of receiving stolen property by the thief of the property following the 1992 amendment to section 496 and includes the relevant quotation from People v. Allen (1999) 21 Cal.4th.846 at page 857, 89 Cal.Rptr.2d 279, 984 P.2d 486 that section 496 "authorizes a conviction for receiving stolen property even though the defendant also stole the property, provided he has not actually been convicted of the theft." The plain meaning of this quotation is that because Ceja was convicted of stealing the property he possessed when apprehended, he cannot be convicted of receiving the same stolen property. However, the majority opinion posits that the following sentence in Allen at page 857[, 89 Cal.Rptr.2d 279, 984 P.2d 486] alters the meaning of the previous statement that conviction of the theft precludes conviction of receiving the stolen property: "After the 1992 amendment, `the fact that the defendant stole the property no longer bars a conviction for receiving, concealing or withholding the same property.' (People v. Strong (1994) 30 Cal.App.4th 366, 373[, 35 Cal.Rptr.2d 494].)" Unlike the majority, I do not conclude this sentence modifies or is inconsistent with the previous statement in Allen that permits conviction of receiving stolen property "`provided [the defendant] has not actually been convicted of the theft.'" (Allen, at p. 857, 89 Cal.Rptr.2d 279, 984 P.2d 486.)
The majority opinion analogizes the convictions of theft and receiving stolen property issue to the convictions of an offense and a lesser included offense, in which event the greater offense is upheld and the lesser offense dismissed. Although acknowledging that theft is not a lesser included offense of receiving stolen property, the majority opinion uses that analogy to conclude Ceja's theft, as the offense with the lesser penalty rather than receiving stolen property conviction, should be dismissed.
The lesser included offense analogy is not persuasive because its genesis is not the same as the theft-receiving stolen property issue. At common law one could not be convicted of receiving the same property stolen, not because of any prohibition of dual convictions for the same conduct, but because of the definition and nature of the receiving stolen property offense. In the lesser included offense context, there was no prohibition against conviction of the greater offense. For the reasons set forth in the majority opinion, in the 1992 amendment to section 496, the Legislature decided that the blanket unconditional *701 prohibition of a conviction of receiving the same property stolen should be conditioned to prevent the defendant from avoiding any criminal conviction by secreting the stolen property beyond the statute of limitations for theft. In Allen, the California Supreme Court interpreted section 496 to permit conviction of receiving stolen property even if the statute of limitations for the theft offense had not expired but retained a common law attribute by permitting conviction of receiving the property stolen only if there is no conviction for the theft; if there is a conviction for the theft, then there is no basis for a conviction of receiving the property stolen.
NOTES
[1] All statutory references are to the Penal Code.
[2] All statutory references are to the Penal Code.
Cites, in this corpus
- People v. Allen S070028 · 1999-10-07
- People v. Birks S057191 · 1998-08-31
- People v. Reyes D024260 · 1997-02-11
- People v. Kali D. A068051 · 1995-07-31
- People v. Strong E013024 · 1994-11-15
- People v. Greg F. B003628 · 1984-08-23
- People v. Cole Crim. 22200 · 1982-06-03
- People v. Moran Crim. No. 13525 · 1970-01-27
Cited by
- People v. Recio G038054 · 2007-10-31