Stewart

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 receiving stolen property. In the published portion of this opinion we consider defendant’s dual contentions that he cannot be convicted of the crimes of burglary and receiving stolen property arising out of the same incidents and that consequently the burglary convictions must either be reversed completely or a new trial ordered on all counts. We agree that under the circumstances of this case defendant cannot stand convicted both as a burglar and for receiving property he stole during the burglary. Defendant, however, misapprehends the remedy for the impermissible convictions. As we shall explain, he is…