## Facts

- Cecilia Murray retained a 14-month-old heifer after selling the rest of her cattle to a neighbor.
- The heifer wandered repeatedly; after neighbors briefly captured and penned it, it disappeared again.
- Murray initially assumed the heifer had rejoined the neighbor’s herd and did not search immediately.
- About two weeks later, Murray learned Susan and Thomas Moses had acquired a young cow around the time of the disappearance; Murray went to their property and identified the animal as her heifer.
- The Moseses claimed the heifer was theirs.
- A sheriff’s officer later stopped the Moseses hauling the heifer in a trailer; Susan Moses gave shifting explanations about taking it to be dehorned.
- The prosecution charged and tried the case on a theory that the heifer had been stolen by larceny and that defendants then received or concealed it as stolen property.
- The jury acquitted defendants of grand theft by larceny but convicted them of receiving or concealing stolen property.

## Issues

1. Whether substantial evidence supported that the heifer was “stolen” by larceny, the only theft theory charged, tried, and instructed, as a predicate to receiving stolen property.
2. Whether the prosecution could sustain the conviction on appeal by asserting a new predicate theft theory—misappropriation of lost property—never presented to or decided by the jury.
3. Whether receiving or concealing stolen property is legally available when the alleged theft and the alleged concealment are the same continuous conduct by the same defendants.

## Decision

- The Court of Appeal reversed the receiving-stolen-property conviction.
- The record contained no evidence of a larcenous taking because there was no showing defendants took the heifer from the owner’s actual possession.
- The conviction could not be affirmed on a new theory of theft (misappropriation of lost property) that was not advanced at trial and was not factually determined by the jury.
- Even if misappropriation could be inferred, the same uninterrupted course of conduct would supply both the “theft” and the “concealment,” which cannot support a conviction for receiving or concealing stolen property.

## Legal Principles

- A conviction for receiving or concealing stolen property requires proof that the property was “stolen” under a legally and factually supported theft theory.
- Larceny requires a taking from the victim’s possession; proof of ownership alone does not establish a larcenous taking.
- An appellate court may not uphold a criminal conviction on a theory of guilt neither presented to the jury nor resolved by the jury’s verdict.
- A defendant cannot be convicted of receiving, concealing, or withholding property where the acts that first make the property “stolen” are the same continuous acts alleged to constitute the receiving or concealment.

## Conclusion

The receiving-stolen-property conviction was reversed because the prosecution proved no larceny, could not substitute a different theft theory for the first time on appeal, and in any event could not base receiving or concealment liability on the same continuous conduct that would have constituted the initial theft.


People v. Moses, 217 Cal. App. 3d 1245, 266 Cal. Rptr. 538 (Cal. Ct. App. 1990)