Boo-Tay! Part Two

A while back, I successfully argued that a client convicted of petty theft (of medical marijuana plants--not a "farm crop," but that's a another story) could not also be convicted of felony receiving stolen property. That argument was based on the 1962 case of People v. Tatum, which held quite clearly that a thief cannot be convicted of receiving his own booty; in other words, felony receiving was a greater included offense of petty theft.

In 1992, the receiving statute was revised, such that "no person may be convicted [of receiving stolen property] and of the theft of the same property."

Notwithstanding the logic of Tatum---i.e., anyone who steals property is necessarily in receipt of that property, and thus the "greater" inclusive offense of theft is actually less severely punished than the included offense of receiving, the Fourth District held last week, in People v. Ceja, that the 1992 amendment "permits a person who is the thief to be convicted of receiving the same stolen property."

So it's official: A thief can be convicted of concealing his own booty.

Update: Marijuana Not a "Farm Crop" After All!

In a recent post I talked about a case where a juvenile defendant was found to have committed "grand theft marijuana" on the basis that the stolen marijuana was worth less than $400 (the statutory minimum for felony grand theft) but fell within an exception for "farm crops" of a value exceeding one hundred dollars.

This morning the judge heard further argument on the "farm crop" issue. I started out by citing Heydon's Case, a vintage precedential gem from Sixteenth Century Olde Englande. Heydon's Case announced the "Rule of Mischief," a maxim of statutory construction which invites the court to determine statutory intent from an examination of the "mischief" sought to be remedied by the legislation. The prosecutor immediately demanded to know if I had Shepardized that case. The judge expressed some doubt as to whether Heydon's Case was good law in "this country." After fending off those objections by bragging that "we" brought the English common law with us to America two hundred years ago, and have been citing it ever since, I then proceeded to the particular mischief of the latter part of the twentieth century which prompted the addition of the "farm crop" exception to the grand theft statute.

According to the Agricultural Council of California---the proponent of the "farm crops" exception in 1982---raids of commercial farmlands by produce pilferers posed such a threat to the state's farming industry that deterrent legislative action was urgently needed. Clearly that kind of "mischief" was entirely different to my client's mischief---nabbing pot plants from the back yard of a medicinal marijuana "patient."

Okay, said the judge (after I threw in a little lenity and ejusdem generis for good measure.) Theft of homegrown marijuana was not intended to be covered by the statute. Great, I thought, so now the kid gets a misdemeanor petty theft instead of a felony?

Nope. Not that simple. The judge dismissed the grand theft charge and found the kid guilty of felony receiving stolen property. Hold on, I cried. Isn't the defendant entitled to a conviction of misdemeanor petty theft as a lesser included offense of grand theft? And doesn't People v. Tatum stand for the proposition that a thief cannot be convicted of receiving his own booty? (Apparently "booty" is a legal term of art. I had to struggle not to pronounce it "boo-TAY.")

Well maybe, said the judge.

Back again next week, so the judge can figure that one out over the weekend. I'm hoping this case will one day get resolved once and for all, so I can finally take a murder case or two off the back-burner.

Boo-TAY!

A thief cannot be convicted of concealing his booty. People v. Tatum (1962) 209 Cal.App.2d 179. So my "Grand Theft Marijuana" client finally dodged a felony receiving and got a mere misdemeanor petty theft, after the judge decided that backyard homegrown marijuana is not a farm crop, and that there was insufficient "divorcement" between the theft and the concealment to permit a felony conviction for receiving stolen property.

The sad part is that my client got 180 days---the same amount of time that the probation department had recommended prior to the judge's ruling today when they thought he had committed two felonies (grand theft and receiving). This happens a lot in juvenile cases when felonies are reduced to misdemeanors. The reasoning is that in the juvenile system, the primary goal is rehabilitation, and that the length of "rehabilitation" in juvenile hall depends only on the minor's conduct and not how that conduct is classified (i.e., as a misdemeanor or as a felony). Whatever.