55 Cal.2d 252, 358 P.2d



In a trial by the court, after proper waiver of jury, defendants Rojas and Hidalgo were found guilty of a charge of receiving stolen property. Defendants' motions for new trial were denied. Rojas was granted probation without imposition of sentence and Hidalgo was sentenced to state prison. They appeal, respectively, from the order granting probation, the judgment, and the orders denying the motions for new trial.


Defendants urge that they were guilty of no crime (or, at most, of an attempt to receive stolen property) because when they received the property it had been recovered by the police and was no longer in a stolen condition. The attorney general argues that because the thief stole the property pursuant to prearrangement with defendants he took it as their agent, and the crime of receiving stolen property was complete when the thief began its asportation toward defendants and before the police intercepted him and recovered the property. We have concluded that defendants are guilty of attempting to receive stolen goods.


The offense with which defendants were charged and convicted was receiving "property which has been stolen . . . , knowing the same to be so stolen." Pen. Code, 5496, subd. I; italics added. Defendants urge that they neither received stolen goods nor criminally attempted to do so because the conduit, when defendants received it, was not in a stolen condition but had been recovered by the police. In the Jaffe case the stolen property was recovered by the owner while it was en route to the would-be receiver and, by arrangement with the police, was delivered to such receiver as a decoy, not as property in a stolen condition. The New York Court of Appeals held that there was no attempt to receive stolen goods "because neither [defendant] nor anyone else in the world could know that the property was stolen property inasmuch as it was not in fact stolen property. . . . If all which an accused person intends to do would if done constitute no crime it cannot be a crime to attempt to do with the same purpose a part of the thing intended."


In the case at bench the criminality of the attempt is not destroyed by the fact that the goods, having been recovered by the commendably alert and efficient action of the Los Angeles police, had, unknown to defendants, lost their "stolen" status, any more than the criminality of the attempt in the case of In re Magidson (1917), 32 Cal.App. 566, 568, 163 P. 689, was destroyed by impossibility caused by the fact that the police had recovered the goods and taken them from the place where the would-be receiver went to get them. In our opinion the consequences of intent and acts such as those of defendants here should be more serious than pleased amazement that because of the timeliness of the police the projected criminality was not merely detected but also wiped out.

The orders denying defendants' motions for new trial are affirmed. The trial court's finding that defendants are guilty as charged is modified to find them guilty of the offense of attempting to receive stolen property.