People v. Stewart

Opinion

SPARKS, J.

In this case we consider the appropriate remedy on appeal when a jury, which has not been instructed on the point, improperly convicts a thief of both the crime of burglary (Pen. Code, § 459), and the crime of receiving the property stolen in the burglary. (Pen. Code, § 496, subd. 1.) We hold that the appellate remedy in that circumstance is to reverse and vacate the receiving stolen property conviction and affirm the burglary conviction.

After a jury trial defendant Jimmy Lee Stewart was convicted of six counts of first degree residential burglary, and seven counts of…