Moses

Defendant Susan Charlene Moses, appeals from a conviction of one count of receiving stolen property in violation of Penal Code section 496. (Further undesignated statutory citations refer to the Penal Code.) A jury convicted defendant of receiving or concealing a 14-month-old heifer belonging to Cecilia Murray. On appeal, defendant makes numerous challenges to the proceedings below. We need only address her claim that the record lacks substantial evidence that anyone stole the heifer.

The prosecution charged and tried the case on a theory of a larcenous taking and requested instructions only on theft by larceny. We agree with defendant that the record contains no evidence of theft by larceny. On appeal, the People now argue that the heifer became stolen once defendants misappropriated it under section 485. We hold that defendants cannot be convicted on a theory neither advanced at trial nor factually determined by the jury. Moreover, we conclude that the acts of alleged misappropriation under section 485 formed one uninterrupted course of conduct with the acts alleged as concealment under section 496. As such, as a matter of law, defendants cannot be convicted of…