IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
Ct.App. 4/1 D049566
San Diego County
Defendant and Appellant.
Super. Ct. No. SCE262242
The Penal Code specifies that a defendant may not be convicted of stealing
and receiving the same property. (Pen. Code, § 496, subd. (a).)1 In this case, the
trial court failed to instruct on this point, and the jury convicted defendant of both
petty theft and receiving the property he had stolen. A divided Court of Appeal
reversed the petty theft conviction. The majority reasoned that the “greater”
felony offense of receiving stolen property took precedence over the “lesser”
misdemeanor theft offense.
Section 496(a) itself is inconclusive as to which conviction should stand
when a defendant is erroneously convicted of theft and receiving stolen property.
However, the rule against dual convictions, which was in effect long before its
codification in 1992, is based on the premise that a theft conviction operates as a
bar to a receiving conviction. California courts have consistently reversed the
Further unspecified statutory references are to the Penal Code. Hereafter,
section 496, subdivision (a) is referred to as section 496(a).
conviction on the receiving charge in cases of improper dual convictions. Because
the Legislature gave no indication it meant to change this established practice, we
conclude that it continues to apply under section 496(a). Accordingly, we reverse
the judgment of the Court of Appeal.
The facts are undisputed, and we accept the Court of Appeal‟s summary.2
Around 3:30 a.m. on June 18, 2006, a La Mesa police officer responded to a report
of suspicious behavior in an apartment complex parking lot. He saw two men
matching the suspects‟ description. Defendant was carrying a speaker box, which
he dropped as he ran away. He was found hiding under a pickup truck. The
speaker box had been removed from a nearby vehicle.
After a jury trial, defendant was convicted of misdemeanor petty theft and
felony receipt of stolen property.3 The court sentenced defendant to two years in
prison on the receiving count, with an additional year for a prior conviction. It
stayed a 180-day jail term on the theft conviction. As noted above, the Court of
Appeal reversed the theft conviction and allowed the receiving conviction to stand.
The majority acknowledged that theft is not a necessarily included offense of
receiving stolen property, but relied by analogy on the rule that when a defendant
is convicted of both a greater and a lesser included offense, sentence is imposed on
the greater offense. (People v. Moran (1970) 1 Cal.3d 755, 763.) The dissenting
justice reasoned that the common law origins of the rule against convictions for
stealing and receiving the same property establish that once a defendant has been
California Rules of Court, rule 8.500, subdivision (c)(2).
There was no evidence of the speaker box‟s value. The court dismissed
charges of unlawful taking and receiving a stolen vehicle, due to lack of evidence
that defendant ever had possession of the vehicle from which the box was taken.
A burglary charge was also dismissed, because the vehicle was unlocked.
convicted of theft, there is no basis for a receiving conviction. The dissent has the
In 1992, the Legislature amended the statutory definition of receiving
stolen property to add this declaration: “A principal in the actual theft of the
property may be convicted pursuant to this section. However, no person may be
convicted both pursuant to this section and of the theft of the same property.”
(§ 496(a), as amended by Stats. 1992, ch. 1146, § 1, p. 5374; see People v. Allen
(1999) 21 Cal.4th 846, 857 (Allen).) The rule against dual convictions was
originally a creature of the common law, founded on the notion that it is “logically
impossible for a thief who has stolen an item of property to buy or receive that
property from himself.” (Allen, at p. 854.)
In the case law, the rule had sometimes been applied narrowly, to prohibit
only convictions of the two offenses, and sometimes more broadly, to preclude a
conviction of receiving stolen property when there was evidence implicating the
defendant in the theft. (Allen, supra, 21 Cal.4th at p. 853.) The broader
application led to a number of problems,4 and was largely abandoned by the time
the Legislature addressed the rule. (Id. at pp. 853-857; see People v. Price (1991)
1 Cal.4th 324, 464 [receiving conviction is proper “even though the evidence also
strongly suggests that it was the defendant who stole the property”].) The 1992
amendment of section 496(a) effectively abrogated the broad form of the common
law rule, and adopted the narrow form barring only dual convictions. (Allen, at p.
Among other complications, defendants found room to argue that a
conviction for receiving stolen property required proof that they did not commit
the theft. (Allen, supra, 21 Cal.4th at p. 853.)
The statute is silent on the question before us: when a defendant has been
improperly convicted of stealing and receiving the same property, what is the
appropriate remedy? On its face, section 496(a) is neutral as to which of the
convictions should survive. Either is permissible, so long as the other is not
allowed to stand. The Attorney General contends that because the Legislature
indicated no preference for one conviction over the other, the Court of Appeal
majority was properly guided by the general policy of holding defendants liable
for the greatest offense they commit. Like the majority below, the Attorney
General refers to the rule that conviction of a greater offense subsumes a
necessarily included lesser offense, a principle we reaffirmed in People v. Medina
(2007) 41 Cal.4th 685, 701 (Medina). The Attorney General also points to section
654, which provides: “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.”
The Attorney General‟s arguments are superficially appealing, but do not
withstand close examination. The rule against multiple convictions of greater and
lesser included offenses is based on considerations quite distinct from those
supporting the rule against dual convictions of theft and receiving stolen property.
The history of the rule now found in section 496(a) shows that the theft conviction
has taken precedence, regardless of which offense carries the greater penalty.
Section 654 requires no different result. It does not bar multiple convictions, but
applies only to sentencing. Although section 654‟s proscription against multiple
punishment was in some cases confused with the rule against convictions for
stealing and receiving the same property, decisions of this court have rejected the
attempt to conflate the two doctrines.
We first address the analogy to greater and lesser included offenses, which
the Court of Appeal majority found persuasive. Convictions of a greater and a
lesser included offense are barred because the defendant cannot commit the
greater offense without also committing the lesser. Conviction on both counts
would effectively permit two convictions for the lesser offense. (Medina, supra,
41 Cal.4th at p. 702.) As the court below recognized, theft is not a lesser included
offense of receiving stolen property. (In re Greg F. (1984) 159 Cal.App.3d 466,
469.) What the court failed to note is that the rationale of the rule against dual
convictions of theft and receiving has nothing to do with double punishment.
Rather, it evolved from the premise that “a thief cannot receive from himself.”
(People v. Stewart (1986) 185 Cal.App.3d 197, 204 (Stewart); see Allen, supra, 21
Cal.4th at p. 854.) By this logic, commission of the theft excludes the possibility
of a receiving conviction. (Allen, at p. 851; People v. Jaramillo (1976) 16 Cal.3d
752, 759 (Jaramillo); Stewart, at p. 206.)5
The narrow form of the common law rule now found in section 496(a)
permits a “thief in fact” to be convicted of receiving the stolen property, so long as
he or she is not also convicted of the theft. However, this bar against dual
convictions includes no consideration of which offense is “greater” or “lesser.”
As the Stewart court explained: “[T]heft or theft-related offenses and receiving
stolen property are not mutually exclusive offenses; it is the theft or theft-related
offense which has the preclusive effect. Thus, if the defendant is found to be the
thief he cannot be convicted of receiving the same property, and where he is so
Exceptions were recognized when there was “complete divorcement
between the theft and a subsequent receiving . . . in a transaction separate from the
original theft,” and in cases of conspiracy between thief and receiver. (Jaramillo,
supra, 16 Cal.3d at p. 759, fn. 8.)
convicted it is the receiving conviction which is improper. For this reason it is
always the receiving conviction which cannot stand, regardless whether it is the
lesser or the greater offense.” (Stewart, supra, 185 Cal.App.3d at p. 209, italics
The Attorney General contends Stewart is inapposite because it applied the
broad form of the common law rule, which permitted evidence of theft to operate
as a bar against a receiving conviction. Not so. Stewart involved improper dual
convictions, not merely evidence of theft, and its analysis accurately describes the
common law rationale for upholding the theft conviction. Although that rationale
grew from the idea that an actual thief could not be convicted of receiving, the
same reasoning has guided the courts in determining which of the two convictions
takes precedence, even after codification of the narrow form of the common law
rule. (See, e.g., People v. Recio (2007) 156 Cal.App.4th 719, 723 (Recio); People
v. DeRouen (1995) 38 Cal.App.4th 86, 93.)
The Attorney General argues that permitting the court to impose the longest
available sentence for theft or receiving would serve the same policies as the rule
governing greater and lesser included offenses: providing the jury with “a choice
from the full range of crimes established by the evidence” and “assur[ing] that the
defendant is convicted of the greatest crime a jury believes he committed.” The
Attorney General reasons that a different rule would discourage prosecutors from
charging theft and receiving in the alternative, and instead motivate them to
charge only the most serious offense. However, it is section 496(a) itself that
limits the jury‟s choice to a single conviction. And whether theft or receiving is
the “greater” or “lesser” crime is a matter that the Legislature has generally
committed to the discretion of the prosecutor. Receiving stolen property may
ordinarily be charged either as a misdemeanor or a felony, at the prosecutor‟s
election.6 In any case, the prosecutor has the discretion to decide which offenses
to charge. The courts do not generally supervise these “purely prosecutorial
function[s].” (People v. Adams (1974) 43 Cal.App.3d 697, 707; see People v.
Birks (1998) 19 Cal.4th 108, 134.)
To find additional support for a rule favoring whichever conviction carries
the greater punishment, the Attorney General turns to the provision of section 654
calling for imposition of the longest potential sentence when an act or omission is
punishable in different ways. Again, however, the analogy is faulty and the case
law contrary. Section 654 presumes multiple convictions but precludes multiple
punishment. Section 496(a), on the other hand, precludes multiple convictions,
making multiple punishment impossible. The provision of section 654 requiring
the longest available term of imprisonment was added by the Legislature in
response to a judicial decision permitting trial courts to choose a lesser sentence.
(See People v. Kramer (2002) 29 Cal.4th 720, 722-723; Stats. 1997, ch. 410, § 1,
p. 2753.) The amendment was intended to require punishment commensurate with
culpability, and avoid the anomaly of a lesser sentence being imposed because the
defendant had been convicted of two crimes instead of one. (Kramer, at pp. 723-
The Attorney General asserts that it is similarly anomalous to allow a
defendant to escape liability for a felony offense of receiving stolen property
simply because he was also convicted of a misdemeanor petty theft. But that
Section 496(a); but see section 496d. Similarly, most grand thefts are
“wobblers.” (§ 489.) We note that when theft and receiving offenses are both
felonies, the punishment is the same. The issue of which is “greater” assumes
practical significance only when, as here, the prosecutor decides to charge one
offense as a misdemeanor and the other as a felony.
scenario of dual convictions is prohibited by section 496(a). Unlike section 654,
section 496(a) does not contemplate a choice of sentences. The statutory
proscription against convictions for stealing and receiving the same property was
driven not by sentencing concerns, but by practical problems with the prosecution
of receiving offenses. (See Allen, supra, 21 Cal.4th at pp. 853-858.) Furthermore,
the Legislature was aware of the common law rule that a theft conviction
precludes a further conviction for receiving the stolen property.7
The Attorney General relies on People v. Black (1990) 222 Cal.App.3d
523, in which the defendant was convicted of stealing and receiving the same
truck. The court stated: “[F]or the sake of judicial economy reviewing courts
faced with the problem raised here have reversed the conviction of a lesser offense
and let the conviction of the greater offense stand. (E.g., People v. Lawrence
(1980) 111 Cal.App.3d 630, 640.)” (Black, at p. 525.) However, the only
authority for this dictum was based on the erroneous notion that “[t]he rule against
A legislative committee analysis of the 1992 amendment to section 496(a)
discusses and agrees with the holding in People v. Price, supra, 1 Cal.4th 324,
then notes: “the bill permits a person who steals property to be convicted of
receiving or concealing the same property only in those cases where there is no
conviction for the theft of the property.” (Assem. Com. on Public Safety, Analysis
of Assem. Bill No. 3326 (1991-1992 Reg. Sess.) for hearing March 24, 1992, p. 2,
The legislative history reflects a preoccupation with making sure that a
prosecution for receiving stolen property can be pursued after the statute of
limitations for theft has expired. In Allen, we held that section 496(a) is not
limited to that circumstance, but also permits prosecutions for either offense
within the period of the statute of limitations for theft. (Allen, supra, 21 Cal.4th at
twin-convictions announced in Jaramillo, supra, is based upon Penal Code section
654.” (Lawrence, at p. 640.)8
To the contrary, “we clarified in Jaramillo . . . that the common law rule at
issue here is wholly distinct from the double punishment prohibition” of
section 654. (Allen, supra, 21 Cal.4th at p. 855, fn. 6.) Jaramillo held that the
trial court erred in an apparent attempt to comply with section 654 by staying
sentence on a Vehicle Code section 10851 conviction, which could have been
based either on vehicle theft or mere driving, and sentencing the defendant on the
“greater” conviction of receiving stolen property. (Jaramillo, supra, 16 Cal.3d at
p. 757.) “This treatment overlooks . . . the basic problem of whether defendant
may properly be convicted of both charges, it being a fundamental principle that
one may not be convicted of stealing and of receiving the same property.
[Citations.]” (Ibid.) The same error occurred in this case. After defendant was
improperly convicted on both charges, the trial court stayed sentence on the lesser
offense in an attempt to comply with section 654.
The Court of Appeal here broke new ground when it reversed defendant‟s
theft conviction in order to preserve a longer sentence on the receiving conviction.
The predominant practice in California courts, both before and after codification
of the common law rule, has been to reverse the receiving conviction and allow
the theft conviction to stand, without regard to penalty, often without discussion,
and sometimes on the People‟s stipulation.9 This practice was well established
In both Black and Lawrence, the receiving conviction carried the lesser
penalty, and the theft conviction was allowed to stand. (People v. Black, supra,
222 Cal.App.3d at p. 525; People v. Lawrence, supra, 111 Cal.App.3d at p. 640.)
E.g., People v. Smith (2007) 40 Cal.4th 483, 522; People v. Love (2008)
166 Cal.App.4th 1292, 1300; Recio, supra, 156 Cal.App.4th 719, 726; People v.
DeRouen, supra, 38 Cal.App.4th at page 93; People v. Stephens (1990) 218
Cal.App.3d 575, 586; Stewart, supra, 185 Cal.App.3d at page 209; People v.
(footnote continued on next page)
when section 496(a) was amended in 1992, and the Legislature gave no indication
that a change was intended.
“As a general rule, „[u]nless expressly provided, statutes should not be
interpreted to alter the common law, and should be construed to avoid conflict
with common law rules. [Citation.] “A statute will be construed in light of
common law decisions, unless its language „ “clearly and unequivocally discloses
an intention to depart from, alter, or abrogate the common-law rule concerning the
particular subject matter . . . .” [Citations.]‟ [Citation.]” ‟ [Citation.]
Accordingly, „[t]here is a presumption that a statute does not, by implication,
(footnote continued from previous page)
Jackson (1978) 78 Cal.App.3d 533, 539; People v. Taylor (1935) 4 Cal.App.2d
214, 219. The opinions in a number of the older Court of Appeal cases were
disapproved in Allen, supra, 21 Cal.4th at page 866, to the extent they held that a
burglary conviction bars conviction of receiving stolen property. Burglary does
not require a theft. However, the courts‟ rulings on the remedial issue before us
are unaffected by the disapproval in Allen.
For a time some courts, following Milanovich v. United States (1961) 365
U.S. 551, held that both convictions were subject to reversal. (E.g., People v.
Morales (1968) 263 Cal.App.2d 211, 214; but see, e.g., People v. Perez (1974) 40
Cal.App.3d 795, 800-801.) However, in United States v. Gaddis (1976) 424 U.S.
544, 549, the United States Supreme Court distinguished Milanovich and held that
a theft conviction supported by substantial evidence may be affirmed and the
receiving conviction reversed. (See Jaramillo, supra, 16 Cal.3d at p. 760, fn. 11.)
In cases where there was a question whether the theft conviction was
actually based on theft, as opposed to merely driving a vehicle, courts sometimes
reversed both convictions, gave the People the option of retrying the defendant on
both charges, and specified that otherwise the theft/driving conviction was to be
reinstated. (Jaramillo, supra, 16 Cal.3d at p. 760; People v. Briggs (1971) 19
Cal.App.3d 1034, 1037.) In People v. Garza (2005) 35 Cal.4th 866, 882, we
reached a different disposition on facts similar to those of Jaramillo, reasoning
that Jaramillo‟s harmless error analysis “may have been influenced by the then-
prevailing uncertainty about the scope of the common law prohibition.” However,
nothing in Garza casts doubt on Jaramillo‟s reasoning as to which of the improper
convictions would be allowed to stand.
repeal the common law. [Citation.] Repeal by implication is recognized only
where there is no rational basis for harmonizing two potentially conflicting laws.‟
[Citation.]” (California Assn. of Health Facilities v. Department of Health
Services (1997) 16 Cal.4th 284, 297; see also, e.g., People v. Chun (2009) 45
Cal.4th 1172, 1184; People v. Jackson, supra, 78 Cal.App.3d at p. 539.)
Maintaining the practice of reversing a receiving stolen property conviction
when the defendant is also convicted of stealing the property harmonizes the terms
of section 496(a) with the common law origins of the rule against dual
Defendant notes that the Recio court stated: “Where a defendant is charged
with stealing and receiving the same property, the court should instruct the jury to
determine the defendant‟s guilt on the theft count first, and if it finds the defendant
guilty of the theft, to return the receiving verdict unsigned.” (Recio, supra, 156
Cal.App.4th at p. 726; see also Stewart, supra, 185 Cal.App.3d at p. 207, fn. 6.)
This is the prescribed practice in the federal courts. (United States v. Gaddis,
supra, 424 U.S. 544, 550.) As defendant correctly observes, the instructional issue
is not before us in this case. However, we briefly address it to provide guidance to
the trial courts.
We agree with the Recio and Stewart courts that juries should be instructed
to reach a verdict on the theft charge first when the defendant is also charged with
receiving the stolen property. A guilty verdict on the theft charge makes it
unnecessary to consider the receiving charge. This practice is consistent with our
analysis in this case, promotes efficiency in the jury‟s deliberations, and will
ensure that the statutory ban against dual convictions is applied.
We reverse the judgment of the Court of Appeal.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Ceja
Review Granted XXX 155 Cal.App.4th 1246
Date Filed: May 17, 2010
County: San Diego
Judge: Christine K. Goldsmith
Attorneys for Appellant:Richard De La Sota, under appointment by the Supreme Court, for Defendant and Appellant.
Attorneys for Respondent:Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W.
Schons, Assistant Attorney General, Lynne McGinnis, Teresa Torreblanca, Barry Carlton and Donald W.
Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):Richard De La Sota
P.O. Box 77757
Corona, CA 92877
Donald W. Ostertag
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
Petition for review after the Court of Appeal affirmed in part and reversed in part a judgment of conviction of criminal offenses. This case presents the following issue: If a defendant is improperly convicted of both stealing property and receiving the same stolen property (see Pen. Code, section 496, subd. (a)), should the theft conviction or the receiving conviction be reversed?
|Mon, 05/17/2010||49 Cal. 4th 1, 229 P.3d 995, 108 Cal. Rptr. 3d 568||S157932||Review - Criminal Appeal||submitted/opinion due|
|1||The People (Plaintiff and Respondent)|
Represented by Donald William Ostertag
Office of the Attorney General
P.O. Box 85266
San Diego, CA
|2||The People (Plaintiff and Respondent)|
Represented by Teresa G. Torreblanca
Office of the Attorney General
110 West "A" Street, Suite 1100
San Diego, CA
|3||Ceja, Rafael (Defendant and Appellant)|
Correctional Training Facility
P.O. Box 580
Delano, CA 93216
Represented by Richard DeLaSota
Attorney at Law
P.O. Box 77757
|Opinion||Justice Carol A. Corrigan|
|Nov 5 2007||Petition for review filed|
Rafael Ceja, Appellant Richard de la Sota, Attorney
|Nov 6 2007||Record requested|
|Nov 9 2007||Received Court of Appeal record|
|Dec 31 2007||Time extended to grant or deny review|
The time for granting or denying review in the above-entitled matter is hereby extended to and including February 1, 2008 or the date upon which review is either granted or denied.
|Jan 16 2008||Petition for review granted (criminal case)|
Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
|Feb 13 2008||Received:|
Letter from Attorney Richard De La Sota, counsel for appellantj CEJA letter dated Feb. 8, 2008.
|Feb 21 2008||Counsel appointment order filed|
Upon request of appellant for appointment of counsel, Richard De La Sota is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must served and filed on or before thirty days (30) from the date of this order.
|Mar 21 2008||Opening brief on the merits filed|
Appellant's Attorney Richard De La Sota
|Apr 7 2008||Request for extension of time filed|
to and including May 20, 2008, to file Respondent's Opening Brief on the Merits by Teresa Torreblanca, Deputy A.G. (Filed in San Diego)
|Apr 16 2008||Extension of time granted|
On application of respondent and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including May 20, 2008.
|May 19 2008||Answer brief on the merits filed|
The People, respondent by Teresa Torreblanca, counsel
|Jun 9 2008||Reply brief filed (case fully briefed)|
|Mar 3 2010||Case ordered on calendar|
to be argued Tuesday, April 6, 2010, at 2:00 p.m., in Los Angeles
|Mar 8 2010||Received:|
Letter from deputy Attorney General Donald W. Ostertag indicating that he will present oral argument.
|Mar 16 2010||Supplemental brief filed|
Defendant and Appellant: Ceja, RafaelAttorney: Richard DeLaSota CRC 8.25(b)
|Apr 6 2010||Cause argued and submitted|
|May 14 2010||Notice of forthcoming opinion posted|
To be filed Monday, May 17, 2010 at 10 a.m.
|Mar 21 2008||Opening brief on the merits filed|
|May 19 2008||Answer brief on the merits filed|
|Jun 9 2008||Reply brief filed (case fully briefed)|
appellants_petition_for_review.pdf (1091746 bytes) - Appellant's Petition for Review
appellants_opening_brief_on_the_merits.pdf (1032820 bytes) - Appellant's Opening Brief on the Merits
respondents_answer_brief_on_the_merits.pdf (1020018 bytes) - Respondent's Answer Brief on the Merits
appellants_reply_brief_on_the_merits.pdf (850200 bytes) - Appellant's Reply Brief on the Merits
|May 28, 2010|
Annotated by rphill
|OPINION BY: Corrigan, J. (unanimous)
----------SEARCH TAGS: dual convictions, theft, receiving stolen property, Section 496, Section 654.
When a defendant has been convicted of both stealing and receiving the same stolen property, which conviction must stand and which must be reversed?
On June 18, 2006, the defendant was arrested by La Mesa police who spotted him fleeing with a radio speaker box that had been taken from a nearby vehicle. A trial jury convicted defendant of both misdemeanor petty theft and felony receiving of stolen property. It sentenced defendant to two years in prison on the receiving count (plus an additional year for a prior conviction), and 180-days in prison on the theft count (which it stayed).
California Penal Code § 496(a) specifies that a defendant may not be convicted of stealing and receiving the same stolen property, but says nothing as to which conviction should be upheld and which dismissed where both are improperly rendered. The trial jury failed to instruct on this point. A divided majority in the Court of Appeals thus reversed the theft conviction, allowing the receiving conviction to stand. It reasoned that, since Section 496(a) indicated no preference as to which conviction must be reversed where both are rendered, the common law rule of upholding the conviction of the greater offense over a lesser included offense should apply.
The decision of the Court of Appeals is reversed.
Once a defendant has been convicted of theft, there is no basis for a receiving conviction concerning the same stolen property. Thus, where a defendant has been improperly convicted of both offenses, the theft conviction must stand, the receiving conviction reversed.
1. Conflicting common law rules applied:
A. Prosecution/Attorney General, Court of Appeals(majority): Where a defendant is convicted of a greater and lesser included offense, the greater offense should stand. People v. Moran, 1 Cal.3d 755, 763 (1970). This is based on Cal. Penal Code §654, which provides that “an act or omission punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment.” However, this is inapposite to the instant case, because Section 654 only applies to sentencing not convictions.
B. Defendant, Court of Appeals (dissent), Supreme Court: It is logically impossible for a defendant to be convicted of receiving stolen property “from himself”. Thus, conviction for theft is a bar to conviction for receiving the same stolen property.
2. Legislative history of Section 496(a), amended in 1992 to bar dual convictions for theft and receiving of same stolen property, suggests that the theft conviction should take precedence.
3. Predominant practice of California courts was to uphold the receiving conviction, regardless of which offense carried the greater penalty. This common law rule was well established when the Legislature amended Section 496(a), and it made no indication that it intended to alter it.
4. GENERAL RULE: Unless expressly provided, statutes should not be interpreted to alter the common law and should be construed to avoid conflict with established common law rules. There is a presumption that a statute does not repeal the common law unless there is no rational basis for harmonizing two potentially conflicting laws. This decision will harmonize the terms of 496(a) with the common law origins of rule against dual convictions.
Where a defendant has been convicted of both theft and receiving the same stolen property, juries should be instructed first to return a verdict on the theft count. If the defendant is found guilty, the court is instructed to dispose of the receiving charge without consideration.ANNOTATION BY: Raymond P. Hill