People v. Stevens

Opinion

KING, J. —Defendant James Stevens appeals following his conviction of one count of attempted receipt of stolen property. (Pen. Code, §§ 496, 664.) He also seeks a writ of habeas corpus based on the alleged ineffectiveness of his trial counsel. (James Leonard Stevens, on habeas corpus (A033139).)1 We affirm the judgment and deny the petition for habeas corpus.

Defendant was the owner of the “Gold Mountain Exchange,” a store located in a Concord shopping center where used merchandise was bought and sold. During the spring of 1981, the Concord Police Department embarked on an undercover operation and enlisted the services of undercover Officer Lou Montgomery of the Vallejo Police Department. It was decided Montgomery would enter the Gold Mountain Exchange and attempt to sell property to defendant, while indicating in some manner the property was stolen.

On May 12, 1981, Montgomery was outfitted with a concealed recording device and given various items of jewelry, coins and flatware for possible sale to the Gold Mountain Exchange. Defendant indicated he did not want the flatware, but agreed to purchase the other items for $102. Montgomery picked up one of the rings, pointed out it had engraving inside, and indicated [1023]defendant might not want to display the ring. Defendant nodded affirmatively. It was defendant’s practice to submit daily reports to the police identifying secondhand property purchased by the Gold Mountain Exchange. Defendant filled out the receipt form, (a copy of which would go to the police) omitting several of the items purchased and misidentifying Montgomery, a Black male, as White.

On May 14, 1981, Montgomery returned to the store with several items, including a lady’s watch, two charm bracelets and a jade ring. He was again “wired” for sound. In discussing the items with defendant, Montgomery pointed out the ring had the name “Larry” stamped in it. He went on to indicate this ring came from around the Concord area but “the rest of the stuff was ripped off from the Bay Area.” Defendant nodded affirmatively. The items were purchased for $220. Once again, Montgomery was misidentified as White on the receipt form, several items were inaccurately described, and the ring was omitted entirely.

Two counts of attempted receipt of stolen property were tried before a jury commencing November 6, 1984. The jury acquitted defendant of the count arising from the events of May 12, 1981, but convicted defendant of attempting to receive stolen property on or about May 14, 1981. Defendant received the upper term of 18 months in prison.