People v. Arevalo CA3

DISCUSSION

I On appeal, defendant contends she cannot be convicted of “stealing and receiving the same property.” Whether defendant can be convicted of stealing and receiving the same property is irrelevant because she was convicted of burglary (§ 459) and receiving stolen property (§ 496, subd. (a)) -- not theft. In 1999, the California Supreme Court ruled the law permitted a defendant to be convicted of burglary as well as receiving the property he or she stole during those burglaries. (People v. Allen (1999) 21 Cal.4th 846.) Defendant acknowledges the Supreme Court’s ruling, but argues the ruling needs to be reconsidered. We disagree. We conclude there was no error. II Defendant also contends the trial court improperly relied on the factors set forth in rule 4.414 in finding hers was not an unusual case in order to overcome the statutory limitation on probation. We agree the trial court considered the wrong criteria in determining whether defendant’s case was unusual. We also agree this was error. We conclude, however, the error was harmless. Defendant was presumptively ineligible for probation, unless hers was an “unusual case,” because she was convicted of a serious felony.…