People v. Stewart

• Decision Date: 05 September 1986
• Citation: 185 Cal.App.3d 197,229 Cal.Rptr. 445
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jimmy Lee STEWART, Defendant and Appellant. Crim. 14524.

Page 445

229 Cal.Rptr. 445

185 Cal.App.3d 197

The PEOPLE, Plaintiff and Respondent, v. Jimmy Lee STEWART, Defendant and Appellant.

Crim. 14524.

Court of Appeal, Third District, California.

Sept. 5, 1986.

Certified for Partial Publication ^*

Brian DeAmicis, Sacramento, under appointment by the Court of Appeal, for defendant and appellant

John K. Van de Kamp, Atty. Gen., Joel Carey, Supervising Deputy Atty. Gen. and Karen Ziskind, Deputy Atty. Gen., for plaintiff and respondent.

SPARKS, Associate Justice.

In this case we consider the appropriate remedy on appeal when a jury, which has not been instructed on the point, improperly convicts a thief of both the crime of burglary (Pen.Code, § 459), and the crime of receiving the property stolen in the burglary. (Pen.Code, § 496, subd. 1.) We hold that the appellate remedy in that circumstance is to reverse and vacate the receiving stolen property conviction and affirm the burglary conviction.

After a jury trial defendant Jimmy Lee Stewart was convicted of six counts of first degree residential burglary, and seven counts of receiving stolen property. In the published portion of this opinion we consider defendant's dual contentions that he cannot be convicted of the crimes of burglary and receiving stolen property arising out of the same incidents and that consequently the burglary convictions must either be reversed completely or a new trial ordered on all counts. We agree that under the circumstances of this case defendant cannot stand convicted both as a burglar and for receiving property he stole during the burglary. Defendant, however, misapprehends the remedy for the impermissible convictions. As we shall explain, he is only entitled to have six of the receiving stolen property counts reversed. In the unpublished portion we reject defendant's remaining contentions and consequently shall affirm the judgment in all other respects.

FACTS

On August 1, 1984, defendant moved into an apartment on Hurley Way near Fulton Avenue in Sacramento. In the next few months defendant burgled a number of residences in the area. Defendant's criminal spree began on August 6, 1984, when Marsha Wooten left her apartment on Hesket Way at about 6:15 a.m. When she returned that afternoon she discovered that someone had entered her apartment by removing the screen on a kitchen window and forcing the window open. Personal property was missing. The list of property missing included a television, telephone, necklace charm, earrings and a ring.

Next came the burglary of Cory Walsh's residence. He left his small house on Northrop Avenue at about 6 a.m. on August 20th. When he returned home that afternoon he discovered that his house had been burgled. Entry had apparently been made through the kitchen window. Property missing from Walsh's house included two oriental style rugs and a police scanner.

The next burglary occurred on September 7th when Michael Hansen left his home on San Ysidro Way at about 10:30 a.m. Later that afternoon his son called him to tell him that someone had broken into their home. It appeared that entry had been made through a window in the den. Property taken from the Hansen residence included Minolta binoculars, a foreign coin collection, a gold heart necklace, a veneer pen case, and an antique watch.

Then came the September 10th burglary of John Bruder's apartment. Bruder lived in a ground level apartment on Fulton Avenue. His mother also lived there, although she was away at the time. Bruder left his apartment at about 8:30 a.m. When he returned that afternoon he discovered that someone had burgled his apartment by making entry through a rear window. Included in a list of property taken from The next victims were William Reynolds and Miyake Hisataka. They lived in an apartment on Wright Street. They left their apartment by 7:30 a.m. on October 31st, and when they returned that evening they discovered their apartment had been burgled. The culprit had apparently entered by prying a screen off of a window. Among the property taken from Reynolds was a Swiss army knife which was engraved with his brother's name, Rick (Scooter) Reynolds. The property taken from Hisataka included a Kodak disc camera.

Bruder's apartment were a "Playboy" charm, an eagle charm, a sterling silver necklace with a crystal pendant, and sterling silver earrings.

On November 7th, Kevin Freymeyer and Michael Buich were living on Hesket Way. Kevin's brother, Doug, was visiting them. They were all absent from the house during the day and when Doug returned in the afternoon he discovered that a burglary had occurred. Entry had apparently been made through a bathroom window. Among the property found to be missing were the receiver and speakers from a stereo set, a kangaroo skin, a Fujika camera, a gold Cross pen and pencil set with red lead in the pencil, and a Sharp calculator.

Three days later the Freymeyers and Buich were again absent from their home. When Doug returned in the afternoon he discovered that a window pane in the kitchen was broken and the grouting had been chipped away. A number of items were missing, including the stereo turntable and cassette deck, a blue and tan comforter, and a gold Cross pen and pencil set with silver tips.

Ronald Parker lived across the street from Freymeyer and Buich. On the morning of November 10th, Parker was sitting in his house reading the newspaper when he observed defendant near Freymeyer's home. He had observed defendant walking in the neighborhood approximately a dozen times, and defendant was almost always wearing a light colored jacket which he was also wearing that morning. Parker noticed that defendant was walking away from Freymeyer's garage area and that he was carrying something which appeared blue and white. Parker identified defendant from a photographic lineup. He also identified defendant at trial as the person he had seen. Finally, he identified the jacket defendant was wearing at the time of his arrest as the jacket worn by the person he had seen.

After the second burglary of his residence Freymeyer spoke with Parker and ultimately referred investigators to him. Information provided by Parker led officers to defendant's apartment. On November 15th, Detective Ballard talked to Paul Chapman, a maintenance man at the apartment complex, who stated that he had seen defendant at the apartment the day before. Ballard went to defendant's apartment where he spoke with Mary Masters, defendant's girl friend, who said that defendant had moved the prior week and she did not expect him back. Ballard asked for and received consent to search the apartment. He made a cursory search of the apartment but did not locate defendant. During his search he noticed a blue and tan comforter and told Masters that the burglary he was investigating involved a similar comforter. Masters said they had purchased the comforter in Oregon several months before.

Ballard left the apartment and was stopped by Chapman. Chapman advised that defendant had just been at the complex and had left on foot. Ballard drove around the block and located defendant the next street over. Defendant was wearing a light colored jacket similar to the one described by Parker. Detective Ballard spoke with defendant, obtained a detailed description of the comforter stolen in the Freymeyer burglary via radio, and then placed defendant under arrest. Defendant had two gold Cross pens, later identified by the Freymeyers, on his person. Subsequent searches of defendant's apartment Information number 071033 was filed charging defendant with six counts of residential burglary and six counts of receiving stolen property. (Pen.Code, §§ 459, 496.) He was charged with one count of each offense with respect to the Wooten, Walsh, Hansen, and Bruder incidents, and with two counts of each offense arising out of the two Freymeyer incidents. The information also alleged one prior conviction for robbery, a serious felony within the meaning of Penal Code sections 667 and 1192.7, subdivision (c). Subsequently another information, this one numbered 071085, was filed charging defendant with receiving stolen property arising out of the Reynolds-Hisataka incident. That information also charged defendant with petty theft from Payless Drug Store, with a prior robbery conviction. (Pen.Code, § 666.) Defendant was further charged there with burglary of the Payless Drug Store.

yielded items from each of the burglaries we have recounted above. ¹

With respect to information number 071085, count one was severed from counts two and three and was consolidated for trial with information number 071033. A jury found defendant guilty on the 12 counts in information number 071033, and of the first count in information number 071085. On motion of the prosecutor the allegations of a prior conviction and counts two and three of information number 071085 were dismissed. Defendant was sentenced to state prison for a total unstayed term of 12 years and 8 months.

DISCUSSION

I

As we have noted, defendant was convicted of both the crime of burglary and the offense of receiving the property stolen during the burglary in each of six incidents. He contends that it is improper to permit him to be convicted of both burglary and receiving stolen property. The People concede this argument. We find ample appellate authority to support defendant's contention and the concession by the People. (See People v. Jaramillo (1976) 16 Cal.3d 752, 759, 129 Cal.Rptr. 306, 548 P.2d 706; People v. Lawrence (1980) 111 Cal.App.3d 630, 639, 169 Cal.Rptr. 245; People v. Jackson (1978) 78 Cal.App.3d 533, 539, 144 Cal.Rptr. 199; People v. Campbell (1976) 63 Cal.App.3d 599, 614, 133 Cal.Rptr. 815; People v. Perez (1974) 40 Cal.App.3d 795, 800, 115 Cal.Rptr. 405; People v. Morales (1968) 263 Cal.App.2d 211, 215, 69 Cal.Rptr. 553.) ² These cases establish the Part of the reason for the rule is found in the language of the statute. Penal Code section...