In re A.H.
Filed 6/14/13 In re A.H. CA1/3
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
THREE
In re A.H.,
a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
A.H.,
Defendant and Appellant.
A137155
(San Francisco
County
Super. Ct. No.
JW12-6244)
This
is an appeal from a dispositional order in a juvenile matter after the juvenile
court sustained findings that minor A.H. committed one felony count of
counts of receiving or concealing stolen property. Minor challenges this order on the ground
that only one count of receiving stolen
property should have been sustained because, although the stolen property
belonged to two separate victims, it nonetheless constituted a single
that the juvenile court erred in finding he committed two separate counts of
receiving or concealing stolen property, and thus reverse.
FACTUAL AND PROCEDURAL
BACKGROUND
On
October 17, 2012, a wardship petition was filed pursuant to Welfare and
Institutions Code section 602, subdivision (a), alleging minor committed the
following offenses: (1) second
degree burglary by the unlawful entering
of a motor vehicle (Pen. Code, § 459);
(2) willful and unlawful buying, selling, receiving, concealing,
withholding and aiding in concealing, selling or withholding personal property
belonging to Heather M. (§ 496, subd. (a)) (count two); (3) willful
and unlawful buying, selling, receiving, concealing, withholding and aiding in
concealing, selling or withholding personal property belonging to Alice J.
(§ 496, subd. (a)) (count three); and unlawful possession of burglary tools
(§ 466) (count four). On
October 30, 2012, a contested jurisdictional hearing was held at which the
following evidence was revealed.
On
August 12, 2012, at about 8:30 p.m., the victims, Heather M. and
Alice J., left Alice J.’s Subaru parked on Franklin Street in
Francisco to attend a nearby concert after carefully locking the doors and
closing the windows. About fifteen
minutes later, San Francisco Police Sergeant Matt Mason was driving an unmarked
vehicle northbound on Franklin Street in plain clothes. Sergeant Mason saw minor and another
individual, A.F., leaning against the rear portion of a vehicle, seemingly “too
close to the vehicle†with minor looking up and down the street. Sergeant Mason thus circled the block and
parked in a nearby alley to continue monitoring the situation.
Once
there, Sergeant Mason could see A.F. looking into the back of the vehicle,
which was a Subaru. Less than a minute
later, minor walked toward the alley, looked directly at Sergeant Mason’s
vehicle and then appeared to alert A.F. to its presence. A.F. stopped peering inside the vehicle and
Sergeant Mason drove northbound on Franklin Street, turning and parking on
Hayes Street before exiting his vehicle.
No more than a minute later, Sergeant Mason from about 50 to 100 feet
away saw minor and A.F. walking southbound on Franklin Street, each carrying a
bag. At no point prior to this time had
Sergeant Mason seen either male in possession of a bag. As Sergeant Mason continued to follow the
males, he walked past the Subaru and noticed its window was broken. Sergeant Mason thus alerted other police
units to the possible burglary, describing the males and their direction of
travel.
Minor
and A.F. then turned left into Hickory Alley, at which point Sergeant Mason saw
them begin to discard items from the bags they were carrying. Soon, other police units arrived and the
males, now empty-handed, were taken into custody.
Sergeant
Mason eventually returned to the Subaru and met with the victims, who returned
to the vehicle at about 11:00 or 11:30 p.m.
The victims confirmed they had left the vehicle locked with the windows
rolled up. After following Sergeant
Mason to Hickory Alley, they identified the discarded items as their
belongings.
Following
this contested hearing, the juvenile court found true the allegations in counts
one through three, and granted the prosecutor’s request to dismiss count
four. In doing so, the juvenile court
impliedly accepted the prosecutor’s theory that minor was guilty of aiding and
abetting one count of second degree burglary and two counts of possessing
stolen property, with the latter counts consisting of one count for Heather
M.’s bag and one count for Alice J.’s bag.
The juvenile court also accepted defense counsel’s argument that the
three counts “merge together for purposes of Penal Code section 654†because
they “all originated from the same act.â€
On
November 14, 2012, at the dispositional
hearing, the juvenile court redeclared wardship and placed minor on in-home
probation. The juvenile court also
ordered minor to serve 90 days in juvenile hall pursuant to Welfare and
Institutions Code section 707, subdivision (d)(5), and awarded him 30 days of
presentence custody credit. Minor filed
a timely notice of appeal on November 19, 2012.
DISCUSSION
Minor
raises a single issue on appeal. Minor
contends the juvenile court erred by sustaining two counts pursuant to section
496, subdivision (a), receiving stolen property, because his and A.F.’s receipt
or possession of both victims’ stolen property constituted a single
offense. In doing so, minor relies on
858 (People v. Smith), for the
proposition that “the simultaneous reception of several articles of stolen
goods constitutes but a single offense regardless of the fact that the articles
so received may have been previously stolen from several different owners.â€
The
People respond that, aside from the holding of People v. Smith, the dispositional order should be affirmed because
“[h]is acts of receiving stolen property and then concealing stolen property
constitute two separate offenses.†Thus,
the People reason, even if the juvenile court’s order was based upon erroneous
reasoning that minor could be found guilty of two violations of section 496,
subdivision (a), based upon his taking possession of two separate victims’
bags, affirmance is nonetheless required.
(See People v. Zapien (1993) 4
Cal.4th 929, 976 [“[i]f right upon any theory of the law applicable to the
case, [a ruling or decision] must be sustained regardless of the considerations
which may have moved the trial court to its conclusionâ€].) Based upon our independent review of this
purely legal issue (People
v. Hinks (1997) 58 Cal.App.4th 1157, 1160), and for
the reasons set forth below, we reject the People’s argument.
The People are indeed
correct that concealing stolen property and receiving stolen property are
distinct and separate offenses.
Well-established California case law holds that “[c]oncealing stolen
property is a distinct and separate offense from receiving stolen property
precisely because receiving congeals and is completed upon taking possession
with guilty knowledge, whereas concealing, by definition, continues.†(Williams
v. Superior Court (1978) 81 Cal.App.3d 330, 343. See also People v. Grant (2003) 113 Cal.App.4th 579, 594 [“receiving
stolen property and concealing stolen property are separate offensesâ€].)
Moreover, “the acts of receiving, withholding and concealing
stolen property as well as theft are consistently treated as separate and
distinct criminal offenses whether for
the purpose of applying the statute of limitations, the rules of pleading, or
the determination of an accomplice.â€
(People v. Boyce (1980)
110 Cal.App.3d 726, 734 [italics added].)
However,
the fact that receiving stolen property and concealing stolen property are
separate offenses for the above-identified purposes does not speak to the issue
raised in this case – to wit, whether minor can be found to have committed both
the offense of receiving stolen property and the offense of concealing stolen
property, where the stolen property is the same (albeit from two separate
victims), and the alleged criminal acts with respect to the stolen property are
committed during the course of one continuous criminal event. As to this issue, we must consider equally
well-established principles governing dual convictions.
Under
California law, a single act or course of conduct by a defendant can lead to
convictions for any number of charged offenses.
However, a judicially created exception to this rule prohibits multiple
convictions based on so-called “necessarily included offenses.†(People
v. Montoya (2004) 33 Cal.4th 1031, 1034.)
As the California Supreme Court has explained, “multiple convictions may
not be based on necessarily included offenses. [Citation.]
‘[T]he test in this state of a necessarily included offense is simply
that where an offense cannot be committed without necessarily committing
another offense, the latter is a necessarily included offense.’ †(People
v. Ortega (1998) 19 Cal.4th 686, 692 [holding that, because theft is a
necessarily included offense of robbery, defendants’ dual conviction for
robbery and theft based upon the same conduct was improper].) “In deciding whether an offense is
necessarily included in another, we apply the elements test, asking ‘whether
all the legal ingredients of the corpus delicti of the lesser offense are
included in the elements of the greater offense.’ †(People v. Montoya, supra, 33 Cal.4th at p. 1034.)
Thus,
for example, the California Supreme Court has determined that dual convictions
for theft and receiving stolen property are barred, and yet dual convictions
for burglary and receiving stolen property are permissible, reasoning that,
while as a matter of logic a defendant cannot receive the same property he or
she stole in the first place, a
defendant who commits burglary does not necessarily commit theft.
v. Allen (1999) 21 Cal.4th 846, 866; People
v. Jaramillo (1976) 16 Cal.3d 752, 757.)
Applying
this reasoning here, we thus must examine the two offenses sustained against
minor to identify the elements of each and determine whether one offense is
necessarily included in the other. The
first of these steps is straightforward.
As a general matter, with respect to both
the offense of receiving stolen property and the offense of concealing stolen
property, the prosecution must prove these elements: (1) the property was stolen;
(2) the defendant knew the property was stolen; and (3) the defendant
had possession of the stolen property. (
220, 223; Williams v. Superior Court,
supra, 81 Cal.App.3d at pp. 343-344; see also People v. Barnes (1962) 210 Cal.App.2d 740, 746.) The only difference in proving these elements
for each of the two offenses pertains to the quality of the defendant’s
possession. While the receiving offense
is complete upon the defendant’s taking possession of stolen property, the
concealing offense extends beyond taking possession to the act of intentionally
secreting the property in violation of the taker’s affirmative duty to return
it or to at least disclose its whereabouts to the rightful owner. (Williams
v. Superior Court, supra, 81 Cal.App.3d at pp. 343-344 [“Concealing stolen
property is a distinct and separate offense from receiving stolen property
precisely because receiving congeals and is completed upon taking possession
with guilty knowledge, whereas concealing, by definition, continuesâ€].) Given these predominant commonalities, we
conclude the elements test referred to above has indeed been met under the
circumstances of this case: to wit, “all the legal ingredients of the corpus
delicti of the lesser offense are included in the elements of the greater
offense.†(People v. Montoya, supra,
33 Cal.4th at p. 1034.) Or,
alternatively stated, the receiving offense, which is complete upon the
defendant’s taking possession of the stolen property, is necessarily included
in the concealing offense under the same provision, which extends to any act of
concealment by the defendant after taking possession. (People
v. Ortega, supra, 19 Cal.4th at p. 692.)
To
illustrate we return to the record at hand, which makes clear both of minor’s
section 496 offenses stemmed from his unlawful possession of Heather
M.’s and Alice J.’s property. Indeed, the wardship
petition draws no distinction between the two charged offenses. Nonetheless, the People would have us
parse minor’s initial taking of possession of this stolen property from Alice’s Subaru from his later
concealment of the property by discarding it in a darkened alley. We decline this request. As both the wardship petition and the
evidence reflect, minor’s acts of receiving and concealing stolen property
involved one uninterrupted course of conduct for purposes of section 496,
subdivision (a), such that his initial act of misappropriation must be deemed
necessarily included in his subsequent act of concealment. (People v. Moses (1990) 217 Cal.App.3d 1245, 1257
[where defendants’ acts “formed a single, undivorced course of concealment,â€
defendants “cannot be liable for concealing the property they misappropriated,
since the acts of concealment were part and parcel of the acts of
misappropriation itselfâ€].) This
conclusion makes sense. As a matter of
logic, a person who receives stolen property from a thief necessarily
withholds or conceals it, however briefly, before disposing of it – whether by
sale or resale, by personal consumption, or by throwing it away. At the same time, no person can conceal or
withhold stolen property until after he or she has received it from the thief.
While
there may be circumstances where a total divorcement occurs between the initial
act of receiving stolen property and the subsequent act of concealing the
property such that a defendant’s course of conduct cannot be deemed continuous
and indivisible for purposes of triggering the dual conviction bar, there are
no such circumstances in this case. A recent California Supreme
Court case, People v. Garza (2005) 35 Cal.4th 866, is instructive. There, the court held a defendant could be
convicted of two offenses involving, as here, misappropriation of property – to
wit, receiving a car as stolen property under section 496, subdivision (a), and
taking a car with intent to permanently deprive the owner of possession under
Vehicle Code section 10851, subdivision (a) – only if the latter offense was based on the defendant’s post-theft
driving, i.e., driving the stolen car after the car’s theft was complete. (People
v. Garza, supra, 35 Cal.4th at pp.
876, 880-881.) In drawing this
distinction, the court pointed to language in California case law
suggesting that a
theft, or taking of another’s property, is complete when the taker’s actions
are no longer part of a “ ‘continuous journey away from the locus of the
theft,’ ([People v. Strong (1994) 30
Cal.App.4th 366,] 375),†or “when the
taker reaches a place of temporary safety. (Cf. People v. Barnett (1998) 17 Cal.4th 1044, 1153 [74 Cal.Rptr.2d 121,
954 P.2d 384] [discussing duration of crime of robbery].)†(People
v. Garza, supra, 35 Cal.4th at
p. 880.) Applying this
reasoning here, we simply cannot conclude on these facts that the taker’s (to
wit, minor’s) actions in concealing the victims’ property by discarding it in
the alley were no longer part of his continuous journey away from Alice J.’s
Subaru (to wit, the locus of the theft), much less that minor had yet reached a
place of temporary safety. To the
contrary, he and A.F. were still being following by Sergeant Mason, with whom
A.F. appeared to have made eye contact just before their retreat from the
Subaru towards the alley where they discarded the stolen property while
en-route to an unknown destination. As
such, the criminal acts of minor and his accomplice formed a single, undivorced
course of conduct for purposes of section 496.
(Cf. People v. Garza, supra, 35 Cal.4th at p. 879 [“To
establish a divorcement between the acts of theft and receiving (or concealing
or withholding), there must be a significant break in the defendant’s
possession and control over the stolen propertyâ€].) Accordingly, the juvenile court’s
dispositional order sustaining findings that minor committed two separate
offenses pursuant to section 496, subdivision (a), was erroneous and must be
reversed.
DISPOSITION
The
dispositional order is reversed and the matter remanded to the juvenile court
for further consideration in light of this court’s conclusions reached herein.
_________________________
Jenkins,
J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Siggins, J.
name="_ftn1" title="">[1] Unless otherwise stated, all statutory
citations herein are to the Penal Code.
Section 654 provides in relevant
part: “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. An acquittal or conviction and sentence under any one bars
a prosecution for the same act or omission under any other.†(§ 654, subd.
(a).)
