Forster

Defendant, Hugo Fredrick Forster (hereafter appellant or Forster), appeals four convictions of attempted receiving stolen property (Pen. Code, 1 §§ 664/496).

The charges against appellant grew out of transactions conducted on May 19, May 21, June 10, June 25, July 22 and August 12, 1980, where appellant purchased various gold and silver items from undercover police agents who represented that the items in question were stolen. The facts leading to appellant’s conviction may be summarized as follows.

Davis Rubin, an ex-convict and old acquaintance of appellant agreed to work as a police informant in an investigation which focused on appellant’s activities. The first transaction took place on May 19, 1980. On that day Detective William Curley of the San Mateo Police Department equipped Rubin with two hidden recording devices (a small Sony minirecorder and an SK-9 transmitter) and sent him to appellant’s business with eight pieces of jewelry. The jewelry was not stolen; it had been donated to the police by a local jewelry store and had initials on it. Rubin told appellant that the jewelry was stolen in New York and indicated that he was awaiting another shipment of stolen…

In the past, I have made quite clear my view on the standard of prejudice to be applied for Beagle 1 error where the defendant does not testify. (See People v. Pickett (1985) 163 Cal.App.3d 1042, 1049-1050 [ 210 Cal.Rptr. 85 ].) Nothing in the majority opinion convinces me that I was wrong then or wrong now for holding the view that the California Supreme Court has removed the power of the appellate courts to speculate as to the effect the defendant’s testimony would have had on the jury where his refusal to testify is premised on an erroneous Beagle ruling. 2 Therefore, I would reverse the judgment of conviction.

A petition for a rehearing was denied July 16, 1985, and appellant’s petition for review by the Supreme Court was denied October 3, 1985. Bird, C. J., Broussard, J., and Reynoso, J., were of the opinion that the petition should be granted.

People v. Beagle (1972) 6 Cal.3d 441 [ 99 Cal.Rptr. 313 , 492 P.2d 1 ].

People v. Fisher (1984) 153 Cal.App.3d 826 [ 200 Cal.Rptr. 683 ], on which the majority relies, is wrong, plain and simple, for the reasons I set forth in People v. Pickett, supra, 163 Cal.App.3d at page 1050 .

[Opinion certified for partial publication. [*] ]

OPINION

ANDERSON, P.J.

Defendant, Hugo Fredrick Forster (hereafter appellant or Forster), appeals four convictions of attempted receiving stolen property (Pen. Code, [1] §§ 664/496).

The charges against appellant grew out of transactions conducted on May 19, May 21, June 10, June 25, July 22 and August 12, 1980, where appellant purchased various gold and silver items from undercover police agents who represented that the items in question were stolen. The facts leading to appellant's conviction may be summarized as follows.

Davis Rubin, an ex-convict and old acquaintance of appellant agreed to work as a police informant in an investigation which focused on appellant's activities. The first transaction took place on May 19, 1980. On that day Detective William Curley of the San Mateo Police Department equipped Rubin with two hidden recording devices (a small Sony minirecorder and an SK-9 transmitter) and sent him to appellant's business with eight pieces of jewelry. The jewelry was not stolen; it had been donated to the police by a local jewelry store and had initials on it. Rubin told appellant that the jewelry was stolen in…