People v. Hinkley

COUGHLIN, J. In July 1961, the defendant was charged with, tried by a jury for, and convicted of the offense of receiving stolen property, a violation of section 496 of the Penal Code. He applied for and obtained probation by an order dated August 22, 1961. The term of probation was five years. Imposing of sentence was suspended accordingly. The conditions of probation, among others, were confinement in a county detention facility for six months, and payment of a $500 fine. He did not move for a new trial, nor appeal from [473]the order placing him on probation (Pen. Code, §1237), by which, if desired, he could have obtained both trial and appellate review of the proceedings which culminated in his conviction. The time to do so has expired. As a consequence, his conviction and the order granting probation have become final.

Nevertheless, on March 27, 1963, the defendant moved the trial court “to vacate the conviction and judgment ... of August 23, 1961,” apparently referring to the order of August 22, 1961 granting probation, and also moved “to dismiss the complaint” against him, apparently referring to the information in the case, upon the ground that the court had erred in giving an instruction upon a statutory presumption which the Supreme Court of this state, since the trial, has declared unconstitutional. The instruction in question set forth in haec verba the provisions of section 496 of the Penal Code; advised the jury, in substance, that any person who “buys or receives” stolen property from a minor under 18 years of age is presumed to know that it has been stolen; and was the same as that considered by the court in People v. Stevenson, 58 Cal.2d 794, 798 [26 Cal.Rptr. 297, 376 P.2d 297], decided November 20, 1962, which held that: “Section 496 of the Penal Code is unconstitutional insofar as it provides for a presumption of guilty knowledge on the part of one who ‘receives’ stolen property from a minor under the age of 18, and the instruction based on that presumption was erroneous. ’ ’ The motion to vacate and dismiss was denied.

The defendant appeals, and contends that the motion as made was a proper method by which to obtain a reversal of the “judgment and conviction” predicated upon the allegedly erroneous instruction to which he now objects, even though he did not move for a new trial or appeal from the order granting him probation because, during the time within which he might have done so, he did not know that the provisions of section 496 of the Penal Code which were the basis for that instruction were or would be declared unconstitutional by the Supreme Court; that, during the time aforesaid, in determining the propriety of the instruction as given, he relied upon the law as stated in section 496 of the Penal Code; that the decision of the Supreme Court in People v. Stevenson, supra, 58 Cal.2d 794 changed the law; and that he should not be deprived of an opportunity to urge an error which he claims resulted in his conviction because he failed to prophesy the action of the Supreme Court in the premises.