Neither the “one-plan one-offense” rule set forth in People v. Bailey (1961) 55 Cal.3d 514, nor the “one-occasion one-offense” rule set forth in People v. Smith (1945) 26 Cal.2d 854, apply to the offense of removing human remains (Health & Saf. Code, § 7052, subd. (a)). One night, Reid stole 9 metal urns from a cemetery, discarded the 11 sets of cremated remains inside them, and recycled the urns for cash. He was convicted of a number of offenses, including 11 counts of removing human remains. On appeal, he argued that multiple convictions were improper under the one-plan one-offense and one-occasion one-offense rules articulated in Bailey and Smith. Held: Multiple convictions affirmed. Smith held that a defendant who received several stolen items on the same occasion could only be convicted of a single count of receiving stolen property. Bailey held that a defendant who committed a series of thefts pursuant to a common plan could only be convicted of a single count of grand theft. Reid argued that his multiple convictions for removing human remains were improper under both cases because removing human remains was essentially the larceny of a particular type of property—human remains—and he removed all the remains on the same occasion pursuant to a common plan. The Court of Appeal rejected Reid’s argument and refused to apply the Bailey or Smith rules, reasoning that those rules only apply to property crimes and removal of human remains is not “morally akin” to property crimes. “The crime proscribed by section 7052—abuse of the dead—is not analogous to larceny.”

Rule of lenity does not prohibit multiple convictions for removing human remains. Reid also argued on appeal that all but one of his convictions for removing human remains should be reversed. Section 7052 makes it a felony to remove “any” human remains and Reid argued that “any” is ambiguous because it can be singular or plural—it can mean removal of each separate set of remains is a felony or removal of many sets at the same time is a single felony. The Court of Appeal disagreed that “any” was ambiguous. “Any” modifies “human remains” and “human remains” is defined in section 7001 as “the body of a deceased person.” Thus, it is a felony to remove the cremated remains of a human body from its place of interment. The Court of Appeal distinguished People v. Rowland (1999) 75 Cal.App.4th 61 and People v. Kirk (1989) 211 Cal.App.3d 58, which involved possession statutes.

The double jeopardy clause does not prohibit punishing defendant for each set of remains that he removed. Among other things, the double jeopardy clause protects against multiple punishments for the same offense. (Brown v. Ohio (1977) 432 U.S. 161, 165.) Because the Court of Appeal rejected Reid’s argument that removal of 11 sets of human remains should only result in a single felony conviction, the Court of Appeal also rejected his argument that he was punished multiple times for the same offense.

Two convictions for grand theft reversed for insufficient evidence. On appeal, Reid also argued that two of his 11 convictions should be reversed for insufficient evidence because only 9 urns were stolen, worth between $1,500 and $2,000 apiece, and the People did not introduce any evidence that the human remains had any value. The People conceded and the Court of Appeal agreed.

Bailey rule does not apply to defendant’s multiple grand theft convictions. Reid argued that 8 of his remaining 9 convictions for grand theft should be reversed under the one-plan one-offense rule set forth in Bailey. Initially, the Court of Appeal agreed that its decision must be based on law prior to People v. Whitmer (2014) 59 Cal.4th 733, which clarified the Baily rule but has not been applied retroactively. The Court of Appeal disagreed, however, that the Bailey rule applied here. The facts of this case are analogous to the facts of In re David D. (1997) 52 Cal.App.4th 304 and People v. Church (1989) 215 Cal.App.3d 1151, which involved crimes against multiple victims that occurred during a single crime spree and held that the Bailey rule did not apply. Here, each urn was contained in a separate niche with a metal identification plaque, covered by its own pane of glass. The theft required that Reid break each pane of glass and remove each urn individually. The theft of the 9 urns was a crime against 9 separate interests and therefore represented 9 separate offenses. The court distinguished In re Arthur V. (2008) 166 Cal.App.4th 61, 67, and People v. Carrasco (2012) 209 Cal.App.4th 715, 719.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/F069533.PDF