P. v. Risk

Filed 2/24/06 P. v. Risk CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Appellant contends he was improperly convicted of both petty theft and receiving stolen property, which was the same property that was taken in the theft. Respondent concedes the issue and we reverse.

BACKGROUND

We will summarize the facts of the case only briefly:

Vallejo Police Department Sergeant Larry Rogers had been appellant's supervisor when appellant was previously employed as a police officer. Appellant had been helping Rogers refurbish a house owned by Rogers's son and was expected at the house on the day of the theft. He called to say that he would be arriving late. Rogers had left his wallet and cell phone on a desk in the garage while he worked inside the house. When he later returned to the garage to call appellant, the wallet, containing about $300 in cash, and his cell phone were missing. A few minutes after Rogers discovered the theft, appellant arrived and assisted Rogers in searching for the wallet and phone. They failed to find anything and returned to the house to continue working.

Approximately three months later, appellant was arrested on drug-related charges and a search of his pickup truck revealed Rogers's wallet (empty of the cash) and cell phone inside a plastic bag on the floor behind the passenger seat. Rogers identified the recovered wallet, credit card, checkbook, and cell phone at trial.

Appellant denied having stolen the wallet and cell phone and testified that he never saw them in his truck. He said that he first knew they had been found in his truck when he was interviewed by officers of the Vallejo Police Department.

Appellant was charged with two counts of obtaining a controlled substance by falsely representing himself as an authorized person (Health & Saf. Code, § 11173, subd. (c)); with four counts of obtaining a controlled substance by fraud (Health & Saf. Code, § 11173, subd. (a)); and with one count each of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a), grand theft (Pen. Code, § 487, subd. (a), and receiving stolen property (Pen. Code, § 496, subd. (a)). At trial, the grand theft charge was amended to petty theft (Pen. Code, § 484). A jury acquitted appellant of the two counts of obtaining a controlled substance by falsely representing himself as an authorized person, but returned verdicts convicting appellant of all the other counts.

Imposition of sentence was suspended and appellant was placed on probation for a period of three years with standard conditions. This timely appeal followed. Only the theft and receiving stolen property convictions are at issue.

DISCUSSION

Appellant argues that he could not have been convicted of stealing and receiving the same property, and respondent agrees.

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