People v. Moss

Opinion

FILES, P. J.

We discuss here two unrelated cases which turn on the question whether the crime of attempting to receive stolen property (Pen. Code, §§ 664 and 496) may be committed if the property involved has not been stolen. In each case the superior court dismissed before trial, and the People appealed. We are of the opinion that the decisional law of California has -established that an antecedent theft is not a necessary element of the offense charged; hence the orders of dismissal must be reversed.

In

Grant,

count II of the amended information accused the defendant “of the crime of attempted receiving stolen property in violation of section 664/496, Penal Code” in that he “did willfully, unlawfully and feloniously buy and receive certain personal property, to wit, stereo equipment, believing said property to have been stolen.”

The superior court sustained defendants demurrer and gave judgment for defendant on count II.

[181]

In

Moss,

the evidence received at the preliminary examination showed these circumstances: The Ventura County sheriff’s office received information that defendant was dealing in stolen property. Eventually arrangements were made for a state officer to sell to Moss two color television sets and two leather jackets, which Moss was led to believe were stolen. The merchandise had in fact been acquired by the sheriff’s department by purchase or loan for use in this transaction.

The merchandise was delivered to Moss at his place of business and he was in the act of counting out the money for payment when surveilling officers made the arrest.

The superior court granted, defendant’s motion under Penal Code section 995 and set aside the information “on the basis that the transcript shows the property wasn’t stolen.”

The orders of dismissal are appealable under Penal Code section 1238, subdivisions (a)(2) and (a)(1), respectively.