Thursday, November 01, 2007

People v. Recio (Cal. Ct. App. - Oct. 31, 2007)

The California Supreme Court should grant review in this one.

Not because it's a critical issue. Though it happens more times than you might imagine. The question is what happens when a jury improperly convicts a defendant (because it's not told not to) of both theft as well as of receiving stolen property. Which conviction should be reversed? Whichever offense is the lesser offense? Or the receiving offense, since the theft offense is necessarily preclusive.

Division Three of the Fourth District, in this opinion by Justice Ikola, holds that the latter is the proper remedy. But Division One of the Fourth District went the other way, in an opinion by Justice Huffman (over the dissent of Justice McDonald), less than a month ago.

Sometimes intradistrict splits are okay. But not here. The California Supremes should take both cases up.