Garcia

Pursuant to a certificate of probable cause (Pen. Code, § 1237.5), defendant appeals from a judgment of conviction entered on his guilty plea to two counts of burglary (Pen. Code, § 459), one count of possession of stolen property (Pen. Code, § 496) and one count of robbery (Pen. Code, § 211). He contends that: 1) The court erred by denying his motion to suppress (Pen. Code, § 1538.5) the incriminating evidence against him, as it was obtained either during his unlawful detention by the officers or after his arrest without probable cause; and 2) the Penal Code section 496 conviction must be reversed, as he cannot be convicted of stealing and possessing or receiving the same property. For the reasons set forth below, we have concluded that the judgment should be reversed.

The record reveals the following pertinent facts:

About 7:10 p.m. on November 8, 1979, San Jose Police Officers Smith and Buckhout were on routine patrol in an unmarked police car on 6th Street, an area “plagued with burglaries.” The area is primarily commercial with a few restaurants and bars but no television rental or repair shops. When Smith and Buckhout saw two men (subsequently identified as…