PEOPLE
v.
HASTINGS
Docket No. 70861.
Michigan Court of Appeals.
Decided July 16, 1984.Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Edward J. Grant, Prosecuting Attorney, and Joseph A. Greenleaf, Chief Appellate Attorney, for the people.
State Appellate Defender (by Mardi Crawford), for defendant on appeal.
Before: CYNAR, P.J., and J.H. GILLIS and R.C. ANDERSON,[*] JJ.
PER CURIAM.
Defendant pleaded guilty to a charge of receiving and concealing stolen property with a value over $100, MCL 750.535; MSA 28.803, and to being an habitual offender, MCL 769.11; MSA 28.1083. He was sentenced to a prison term of seven to ten years and appeals as of right.
Defendant seeks a dismissal of the charges against him on the basis of the failure to comply *382 with the 180-day rule of MCL 780.131 et seq.; MSA 28.969(1) et seq. We decline to grant him such relief. Defendant was on parole at the time of his arrest, June 15, 1982. A parole hold was placed on defendant the following day, and again on June 29, 1982. Defendant's plea was taken on December 29, 1982, 183 days after the second parole hold was placed.
However, this Court has determined that an individual detained in a local facility, and against whom a parole hold has been filed, is not "an inmate of a penal institution of this state" to whom the protection of the 180-day rule applies. People v Rose, 132 Mich. App. 656; 347 NW2d 774 (1984); People v Wright, 128 Mich. App. 374; 340 NW2d 93 (1983).
Defendant raises four other issues, one of which requires that we reverse his plea-based conviction. In reciting a factual basis for his plea of guilty to receiving and concealing stolen property, defendant indicated that he had committed the theft.
The Michigan Supreme Court has ruled that under Michigan's statutory scheme thieves are to be punished for larceny; a thief may not be convicted of receiving and concealing property he has stolen. People v Kyllonen, 402 Mich. 135; 262 NW2d 2 (1978).
The prosecution insists that Kyllonen is no longer good law in the wake of a subsequent amendment adding "possesses" and "conceals" to the list of prohibited conduct in MCL 750.535; MSA 28.803. 1979 PA 11, effective March 27, 1980. Reliance by this Court upon the rule announced in Kyllonen has been uncritical, and it appears that the prosecution's argument has not thus far been addressed. See People v Price, 126 Mich. App. 647, 654-655; 337 NW2d 614 (1983), lv den 417 Mich *383 1100.40 (1983); People v Johnson, 110 Mich. App. 735, 738; 313 NW2d 93 (1981); People v Wolak, 110 Mich. App. 628; 313 NW2d 174 (1981), lv den 414 Mich. 940 (1982); People v Wilbert, 105 Mich. App. 631; 307 NW2d 388 (1981). However, in 3 CJI, ch 26 Commentary, Stolen Property, p 27, the author says of the 1979 amendment: "This broadening of the statute would seemingly indicate that the legislative intent is now to encompass thieves who possess or conceal property they have stolen." We disagree and reject the prosecution's assertion that the thieves may now be prosecuted for receiving or concealing property they have stolen.
The Kyllonen Court grounded its opinion not only upon the precise language of the receiving and concealing statute, but also upon its purpose as reflected in its legislative history. On this note, the Court stated:
"This early history reveals that the statutory crime of buying or receiving stolen property was originally designed and intended to proscribe conduct by persons who helped thieves dispose of thier illegal booty. It was born out of a need to change the common law which permitted these persons to escape serious criminal liability. The statutory development was marked by a series of refinements directed towards prosecution and conviction of these offenders. Nowhere is there an indication that the statute also was intended to be an alternative provision under which thieves could be convicted." 402 Mich. 144.
We do not perceive that the addition by the Legislature of the words "possesses" and "conceals" signals an intent to broaden the scope of the statute beyond that group of offenders traditionally targeted. Such a significant change in the statutory thrust would not have been made so subtly.
*384 California Penal Code, § 496(1) contains that state's counterpart to MCL 750.535; MSA 28.803. Section 496(1) is directed at one who "buys * * * receives * * * conceals, sells, withholds or aids in concealing, selling or withholding". (Emphasis supplied.) The emphasized language, similar to that found in our amended statute, could arguably reach the thief. However, the California Supreme Court has said:
"The statute proscribing receipt of stolen property `* * * is directed at those who knowingly deal with thieves and with their stolen goods after the theft has been committed. In other words, it is directed at the traditional "fence" and at those who lurk in the background of criminal ways in order to provide the thieves with a market or depository for their loot. Such offenses are essentially different from the actual theft of property prohibited by section 484 * * *. If the legislature had intended in [§ 496] to embrace concealment of stolen property by the thief, it would have been a simple matter to say "every thief or any other person * * * who conceals, etc.' * * * A defendant may, of course, be charged with both crimes, but it is for the trier of fact to determine whether he is guilty as a thief or as a non-thief of concealing and withholding.' [People v Tatum, 209 Cal App 2d 179, 183-184; 25 Cal Rptr 832, 834 (1962).]"
People v Jaramillo, 16 Cal 3d 752, 758; 129 Cal Rptr 306; 548 P2d 706 (1976). See also People v Jackson, 78 Cal App 3d 533; 144 Cal Rptr 199 (1978). We conclude that Kyllonen retains its vitality.
Recognizing that its decision could result in difficulties for the prosecution if defendant's status as the thief was uncertain, the Kyllonen Court provided some practical suggestions for addressing these difficulties. See 402 Mich. 148-150. This brief passage should be required reading at the prosecutor's *385 office. The remaining issues need not be addressed.
Reversed.
J.H. GILLIS, J. (dissenting).
I dissent. I believe that the 1979 amendment to MCL 750.535; MSA 28.803, which added the words "possesses" and "conceals", effectively overruled People v Kyllonen, 402 Mich. 135; 262 NW2d 2 (1978). Kyllonen dealt with:
"* * * a single narrow and unique question of statutory interpretation: When the Legislature enacted MCL 750.435; MSA 28.803, which proscribes, inter alia, `aid[ing] in the concealment of * * * stolen * * * property', did it intend to provide an alternate statute under which thieves could be convicted; or did it only intend to case a net of criminal liability over persons who assist thieves or others in the concealment of stolen property?" Kyllonen, supra, pp 139-140. (Footnote omitted.)
Based on the statute as worded prior to the 1979 amendment, the Supreme Court strictly construed the statute to exclude thieves who conceal property they have stolen. One year later, however, the Legislature amended the statute, thereby changing the wording relied on by the Supreme Court in Kyllonen and, in my opinion, invalidating the analysis in that case. Further, since criminal statutes are not lightly or frequently amended, we cannot ignore the proximity in time between Kyllonen and the amendment and assume that the Legislature meant nothing by adding the words "possesses" and "conceals". The commentary cited in the majority opinion, 3 CJI, Ch 26 Commentary, Stolen Property, p 27, also supports this conclusion.
The statute, as presently worded, is no longer *386 consistent with the historical development of the crime outlined in Kyllonen. The everyday understanding of the language presently employed in the statute now includes the person who committed the larceny. See Kyllonen, supra, p 145.
I would affirm.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.