Sanchez v. State

• Decision Date: 04 February 1982
• Docket Number: No. 13803,13803
• Citation: 640 P.2d 1325,1982 NMSC 12,97 N.M. 445
• Parties: Manuel SANCHEZ and Arthur Sanchez, Petitioners, v. STATE of New Mexico, Respondent.
• Court: New Mexico Supreme Court

Page 1325

640 P.2d 1325

97 N.M. 445

Manuel SANCHEZ and Arthur Sanchez, Petitioners, v. STATE of New Mexico, Respondent.

No. 13803.

Supreme Court of New Mexico.

Feb. 4, 1982.

Rehearing Denied Feb. 26, 1982.

[97 NM 445] Marchiondo & Berry, William C. Marchiondo, Albuquerque, for petitioners.

Jeff Bingaman, Atty. Gen., Heidi Topp Brooks, Asst. Atty. Gen., Santa Fe, for respondent.

OPINION

RIORDAN, Justice.

Defendants were indicted for "receiving stolen property" with a value exceeding $2,500, in violation of Section 30-16-11(A) and (F), N.M.S.A.1978, and as accessories under Section 30-1-13, N.M.S.A.1978. After a pre-trial hearing on a motion to dismiss filed by the defendants, the trial court dismissed the indictment. The Court of Appeals summarily reversed the trial court. We granted certiorari; and we reverse the Court of Appeals. The indictment alleges that on July 2, 1980, the defendants "received, retained or disposed" of 72 different items that belonged to four separate parties. Under New Mexico law, it is unlawful to "receive stolen property." Section 30-16-11(A), reads:

Receiving stolen property means intentionally to receive, retain or dispose of stolen property knowing that it has been stolen or believing it has been stolen, unless the property is received, retained or disposed of with intent to restore it to the owner. (Emphasis added.)

Under Section 30-16-11(D) through (G), N.M.S.A.1978, penalties are set forth that increase as the value of the stolen property increases.

The statute contemplates that a person may commit "receiving stolen property" in one of three ways. The property may be "received", or the property may be "retained", or the property may be "disposed" of by a defendant. Proof of any one of these methods, coupled with the requisite knowledge, is sufficient to sustain a conviction. See State v. Carlton, 82 N.M. 537, 484 P.2d 757 (Ct.App.), cert. denied, 82 N.M. 534, 484 P.2d 754 (1971) (decided under § 40A-16-11, N.M.S.A.1953 (Repl.Vol.1964)).

The defendants allege that the properties belonged to four separate victims; therefore, the defendants should be charged with four separate counts. The indictment, however, cumulated the four charges for the purpose of enhancing the penalty, thereby making the crime a third degree felony.

The issue in this appeal is whether the property taken from more than one owner or at more than one time can be combined together into one count, thereby combining the values of the stolen items to increase the penalty.

"Receiving", "retaining" or "disposing" of stolen property are separate crimes requiring different considerations. If the defendant is charged with "receiving" stolen property, each "receiving" of the stolen property is a separate crime and the defendant may be charged with a separate offense for each. State v. Bell, 90 N.M. 160, 560 P.2d 951 (Ct.App.), cert. denied, 90 N.M. 254, 561 P.2d 1347 (1977).

If the defendant received the stolen (property) ... at a time different from the time that he received the (other stolen property) ..., then there were two offenses for which two sentences would be imposed even though at the time of discovery defendant possessed all the stolen property involved.

Id. at 163, 560 P.2d at 954.

In Bell, the defendant was charged with two counts of receiving stolen property. On appeal, he contended that the possession of numerous items of stolen property amounted to one crime. The Court of Appeals ruled that since there was evidence showing two separate "receivings", the defendant could be sentenced for two crimes.

The question that arises is if there is more than one "receiving" may the State combine the separate acts into one crime? The answer is that they may not. To allow the State to join or sever counts alleging "receiving" would violate the defendant's rights. It would allow the State to increase a misdemeanor to a felony by combining separate offenses to reach the statutory amount for a felony.

However, if the indictment meant to charge the defendants with "retaining" stolen items owned by different individuals, then the defendant may be charged with only one count. The simultaneous possession of stolen items owned by different individuals is a single act constituting one offense. State v. Reisig, 128 Ariz. 60, 623 P.2d 849 (Ct.App.1980); State v. Gilbert, 27 Or.App. 1, 555 P.2d 31 (1976). In People v. Harris, 71 Cal.App.3d 959, 139 Cal.Rptr. 778 (1977), the defendants were convicted of nine counts of possession of stolen property. All the stolen items were seized from Harris' residence pursuant to a search warrant. Each item seized constituted an offense, for example, two televisions that were seized made up two offenses. The appellate court reversed the trial court holding that the defendant stood convicted of only one count of possession of stolen property.

Thus, the values of all the stolen items could be added together to reach a felony rather than separating the values by ownership or item.

If the indictment meant to charge the defendants with "disposing" of stolen property, then the defendants may be charged with a separate count for each separate transaction of such disposure. See United States v. Schrenzel, 462 F.2d 765 (8th Cir.), cert. denied, 409 U.S. 984, 93 S.Ct. 325, 34 L.Ed.2d 248 (1972). In Schrenzel, the indictment charged four separate sales of drugs by the defendant on four separate days. The defendant argued that the...