People v. Hastings, Docket No. 70861

• Decision Date: 19 October 1984
• Docket Number: Docket No. 70861
• Citation: 356 N.W.2d 645,136 Mich.App. 380
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Douglas Charles HASTINGS, Defendant-Appellant. 136 Mich.App. 380, 356 N.W.2d 645
• Court: Court of Appeal of Michigan — District of US

Page 645

356 N.W.2d 645

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Douglas Charles HASTINGS, Defendant-Appellant.

Docket No. 70861.

136 Mich.App. 380, 356 N.W.2d 645

Court of Appeals of Michigan.

Submitted Feb. 9, 1984.

Decided July 16, 1984.

Rehearing Denied Sept. 12, 1984.

Released for Publication Oct. 19, 1984.

[136 MICHAPP 381] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Edward J. Grant, Pros. Atty., and Joseph A. Greenleaf, Chief Asst. Pros. Atty., for the People.

James R. Neuhard, State Appellate Defender by Mardi Crawford, Detroit, for defendant-appellant.

Before CYNAR, P.J., and J.H. GILLIS and ANDERSON, ^* JJ.

PER CURIAM.

Defendant pleaded guilty to a charge of receiving and concealing stolen property with a value over $100, M.C.L. Sec. 750.535; M.S.A. Sec. 28.803, and to being an habitual offender, M.C.L. Sec. 769.11; M.S.A. Sec. 28.1083. He was sentenced to a prison term of seven to ten years and appeals as of right.

Defendant seeks a dismissal of the charges against him on the basis of the failure to comply [136 MICHAPP 382] with the 180-day rule of M.C.L. Sec. 780.131 et seq.; M.S.A. Sec. 28.969(1) et seq. We decline to grant him such relief. Defendant was on parole at the time of his arrest, June 15, 1982. A parole hold was placed on defendant the following day, and again on June 29, 1982. Defendant's plea was taken on December 29, 1982, 183 days after the second parole hold was placed.

However, this Court has determined that an individual detained in a local facility, and against whom a parole hold has been filed, is not "an inmate of a penal institution of this state" to whom the protection of the 180-day rule applies. People v. Rose, 132 Mich.App. 656, 347 N.W.2d 774 (1984); People v. Wright, 128 Mich.App. 374, 340 N.W.2d 93 (1983).

Defendant raises four other issues, one of which requires that we reverse his plea-based conviction. In reciting a factual basis for his plea of guilty to receiving and concealing stolen property, defendant indicated that he had committed the theft.

The Michigan Supreme Court has ruled that under Michigan's statutory scheme thieves are to be punished for larceny; a thief may not be convicted of receiving and concealing property he has stolen. People v. Kyllonen, 402 Mich. 135, 262 N.W.2d 2 (1978).

The prosecution insists that Kyllonen is no longer good law in the wake of a subsequent amendment adding "possesses" and "conceals" to the list of prohibited conduct in M.C.L. Sec. 750.535; M.S.A. Sec. 28.803. 1979 P.A. 11, effective March 27, 1980. Reliance by this Court upon the rule announced in Kyllonen has been uncritical, and it appears that the prosecution's argument has not thus far been addressed. See People v. Price, 126 Mich.App. 647, 654-655, 337 N.W.2d 614 (1983), lv. den. 417 Mich. [136 MICHAPP 383] 1100.40 (1983); People v. Johnson, 110 Mich.App. 735, 738, 313 N.W.2d 93 (1981); People v. Wolak, 110 Mich.App. 628, 313 N.W.2d 174 (1981), lv. den. 414 Mich. 940 (1982); People v. Wilbert, 105 Mich.App. 631, 307 N.W.2d 388 (1981). However, in CJI 3, ch. 26 Commentary, Stolen Property, p. 27, the author says of the 1979 amendment: "This broadening of the statute would seemingly indicate that the legislative intent is now to encompass thieves who possess or conceal property they have stolen." We disagree and reject the prosecution's assertion that the thieves may now be prosecuted for receiving or concealing property they have stolen.

The Kyllonen Court grounded its opinion not only upon the precise language of the receiving and concealing statute, but also upon its purpose as reflected in its legislative history. On this note, the Court stated:

"This early history reveals that the statutory crime of buying or receiving stolen property was originally designed and intended to proscribe conduct by persons who helped thieves dispose of their illegal booty. It was born out of a need to change the common law which permitted these persons to escape serious criminal liability. The statutory development was marked by a series of refinements directed towards prosecution and conviction of these offenders. Nowhere is there an indication that the statute also was intended to be an alternative provision under which thieves could be convicted." 402 Mich. at 144, 262 N.W.2d 2.

We do not perceive that the addition by the Legislature of the words "possesses" and "conceals" signals an intent to broaden the scope of the statute beyond that group of offenders traditionally targeted. Such a significant change in the statutory thrust would not have been made so subtly.

[136 MICHAPP 384] California Penal Code, Sec. 496(1) contains that state's counterpart to M.C.L. Sec. 750.535; M.S.A. Sec. 28.803. Section 496(1) is directed at one who "buys * * * receives * * * conceals, sells, withholds or aids in concealing, selling or withholding". (Emphasis supplied.) The emphasized language, similar to that found in our amended statute, could arguably reach the thief. However, the California Supreme Court has said:

"The statute proscribing receipt of stolen property ' * * * is directed at those who knowingly deal with thieves and with their stolen goods after the theft has been committed. In other words, it is directed at the traditional "fence" and at those who lurk in the background of criminal ways in order to provide the thieves with a market or depository for their loot. Such offenses are essentially different from the actual theft of property prohibited by section 484. * * * If the legislature had intended in [section 496] to embrace concealment of stolen property by the thief, it would have been a simple matter to say "every thief or any other person * * * who conceals, etc." * * * [p] A defendant may, of course, be charged with both crimes, but it is for the trier of fact to determine whether he is guilty as a thief or as a non-thief of concealing and withholding.' (People v. Tatum (1962) 209 Cal App 2d 179, 183-184 [25 Cal Rptr 832, 834.)"

People v. Jaramillo, 16 Cal.3d 752, 758, 129 Cal.Rptr. 306, 548 P.2d 706 (1976). See also People v. Jackson, 78 Cal.App.3d 533, 144 Cal.Rptr. 199 (1978). We conclude that Kyllonen retains its vitality.

Recognizing that its decision could result in difficulties for the prosecution if defendant's status as the thief was uncertain, the Kyllonen Court provided some practical suggestions for addressing these difficulties. See 402 Mich. at 148-150, 262 N.W.2d 2. This brief passage should be required reading at the prosecutor's[136 MICHAPP 385] office. The remaining issues need not be addressed.

Reversed.

J.H. GILLIS, Judge (dissenting).

I dissent. I believe that the 1979 amendment to M.C.L. Sec. 750.535; ...