People v. Morales, Cr. 3126

• Citation: 69 Cal.Rptr. 553,263 Cal.App.2d 211
• Decision Date: 17 June 1968
• Docket Number: Cr. 3126
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Joe Garza MORALES, Defendant and Appellant.

Page 553

69 Cal.Rptr. 553

263 Cal.App.2d 211

PEOPLE of the State of California, Plaintiff and Respondent, v. Joe Garza MORALES, Defendant and Appellant.

Cr. 3126.

Court of Appeal, Fourth District, Division 2, California.

June 17, 1968.

[263 Cal.App.2d 212] Ralph I. Callen, Anaheim, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Elizabeth Miller and Gary J. Freedman, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

KERRIGAN, Associate Justice.

Convicted by jury of receiving stolen goods (Pen.Code, § 496), grand theft (Pen.Code, §§ 484--487), and second degree burglary (Pen.Code, § 459), and sentenced to state prison on each count, with the sentences ordered to run concurrently, defendant appeals.

Boys' clothing, having a retail value of $250, was stolen from a children's store in Buena Park on February 22, 1967. Shortly thereafter, defendant and a male companion were stopped by a police officer in close proximity to the shopping center where the theft had occurred. The cause for detaining defendant was totally unrelated to the theft inasmuch as the same had not yet been discovered, but was predicated on the fact that the Chevrolet station wagon being driven by defendant had no tail lights.

In the course of inspecting the car's exterior and investigating the motor vehicle violation, the officer noted a substantial quantity of clothing in the rear seat and observed that the various items were still marked with original sales tags. He surmised that the garments might have been stolen and inquired whether the suspects had a receipt. When they replied in the negative, both were advised as to their constitutional rights, indicated they clearly understood such rights, and stated they were willing to discuss the clothing with the officer.

Defendant's companion claimed that the defendant purchased the apparel from one 'Norwood' a short time earlier in the Mall. Defendant stated that he and his companion 'chipped in' and purchased the clothing from 'Norwood' for $48.00 in the parking lot of the Mall. Both men were then placed under arrest for suspicion of receiving stolen property.

Inasmuch as the clothing which was stolen from the children's store was the same merchandise that was discovered in the car in which defendant was riding at the time of his detention and arrest, the three charges arose out of the same transaction. The court instructed the jury that each count contained in the information charged a separate and distinct offense, and that the defendant could be convicted or acquitted of any or all of the offenses. (CALJIC 112.)

During deliberations, the jury requested clarification of the instructions and inquired whether an accused could be found guilty of grand theft and burglary and also be found guilty of receiving stolen property. The court advised the jury, in effect, that the jury could find the defendant guilty of each of the three offenses, or could acquit him as to each of the three counts, or find him guilty of any one or more of the three charges. The jury returned with a verdict finding the defendant guilty of all three crimes.

On the date set for pronouncement of judgment, the prosecutor suggested that the court sentence the defendant on one count only and suspend sentence on the two remaining counts. However, the court imposed sentence on all three counts and ordered the sentences to run concurrently.

While several questions are presented on appeal, the only issues which will be considered concern the trial court's error in its instructions to the jury and in sentencing the defendant on each of the three counts.

Every person who enters any shop or store with intent to commit grand or petit larceny, or any felony, is guilty of burglary. (Pen.Code, § 459.) The crime of burglary is complete when entry of the structure defined in the code has been completed with the accompanying intent to commit larceny or any felony; thereafter, the person thus entering may commit larceny, or any felony which he intended to commit when entering, or he may change his purpose and commit another felony and be amenable to prosecution for both burglary or larceny or the other felony thus committed; in such case, he has committed two crimes and may be convicted of both offenses. (People v. Devlin, 143 Cal. 128, 129--130, 76 P. 900.) However, the actual thief cannot receive from himself the fruits of his larceny and, consequently, in an information charging burglary in one count and receiving stolen property in another, there can be no lawful adjudication of guilt of the crime of receiving stolen property, where the evidence discloses that the property described in each count is the...