CLETIS U. WILLIAMS. Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Party in Interest, 71 Cal. 2d 1144

SULLIVAN, J. Defendant Cletis U. Williams was charged by information with one count of grand theft of an automobile (Pen: Code, § 487, subd. 3) and one count of receiving stolen property (Pen. Code, § 496). Hi's motion to set aside the information for lack of reasonable or probable cause (Pen. Code, § 995) was denied, and he here seeks a writ of prohibition to restrain further proceedings in the superior court (Pen. Code, § 999a).. At the preliminary examination James M.

Tom testified that on March 12, 1968, his “customized” 1956 Chevrolet was' stolen from a college parking lot; that the car was recovered on the next'day stripped of its customized accessories; that some eight weeks later he saw another 1956 Chevrolet automobile, parked near his place of employment, upon which there was “practically everything” that had been taken from his automobile.

This included four “special order’.’ tires, four chrome wheels manufactured to Tom’s specifications, front and rear seats designed by Tom and made to his order, custom-made front and rear rugs, a ‘ ‘ shift boot” modified by Tom himself for use in his ear, a four-speed “cross ratio” transmission, distinctive chrome window mouldings, a chrome ashtray cover and a glove compartment door which had been custom chromed and upon which the name “Gloria” had been etched.

Tom further testified that, upon observing the car in question, he immediately called the police and then accompanied them to the place where the car was parked. As they approached the car defendant entered it and began to drive away. The police stopped defendant, ■ arrested him, and seized the car. The prosecution adduced no evidence of statements or conduct on the part of defendant or other circumstances which would tend to show that he had come into possession of Tom’s accessories by criminal means or that he knew that the accessories were stolen.

Defendant argued before the magistrate that he could not be held to answer in the absence of such evidence. The magistrate disagreed: “ I am holding the Defendant to answer. . . . Maybe there were other seat covers like this; maybe there are other wheels like this • maybe there are other tires like this; maybe there are other glove [compartment] covers like this, but were they all on the same car?

There is enough to hold him, and the fact that all of the articles were in his presence, a short time after the car was stolen, two months, but it does take time to mount these things; and maybe he does have a defense, but for the purpose of this hearing it is satisfactory. ” (Italics added.)

Section 872 of the Penal Code provides in substance that if it appears from the preliminary examination that a public offense has been committed, “and there is sufficient cause to believe the defendant guilty thereof, ’ ’ the magistrate must make an order holding him to answer. “Sufficient cause” within the meaning of

section 872 is generally equivalent to that “reasonable or probable cause” required to justify an arrest. (See People v. Green (1969) 70 Cal.2d 654, 663, fn. 7 [75 Cal.Rptr. 782, 451 P.2d 422]; Perry v. Superior Court (1962) 57 Cal.2d 276, 283 [19 Cal.Rptr. 1, 368 P.2d 529]; People v. Nagle (1944) 25 Cal.2d 216, 222 [153 P.2d 344].) “ ‘Sufficient cause’ and ‘reasonable and probable cause’ means such a state of facts-as would lead a man of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused (People v.

Nagle, 25 Cal.2d 216, 222 [153 P.2d 344] . . . .” (Rogers v. Superior Court (1955) 46 Cal.2d 3, 7-8 [291 P.2d 929].) When the evidence produced at the preliminary examination does not meet this test, the order holding a defendant to answer should be set aside on motion pursuant to

section 995 of the Penal Code, and- if this is not done the trial will be prevented by a writ of prohibition issued under

section 999a of the Penal Code. It is clear, however, that evidence which will justify prosecution under the above test need not be sufficient to support a conviction. (Rideout v. Superior Court (1967) 67 Cal.2d 471, 474 [62 Cal.Rptr. 581, 432 P.2d 197]; Lorenson v. Superior Court (1950) 35 Cal.2d 49, 56 [216 P.2d 859]; see People v.

Nagle, supra, 25 Cal.2d 216, 222.) “An information will not be set aside or a prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of - it. [Citations.] [ ¶ ] A reviewing court may not substitute its judgment as to the weight of the evidence for that of the magistrate, and, if there is some evidence to support the information, the court will not inquire into its sufficiency. [Citations.] Every legitimate inference that may be drawn from the evidence must be drawn in favor of the information. [Citations.] ” (Rideout v.

Superior Court, supra, 67 Cal.2d 471, 474.) Finally, although there must be some showing as to the existence of each element of the charged crime (see Garabedian v. Superior Court (1963) 59 Cal.2d 124, 127 [28 Cal.Rptr. 318, 378 P.2d 590]) such a showing may be made by means of circumstantial evidence supportive of reasonable inferences on the part of the magistrate. (Rideout v. Superior Court, supra, 67 Cal.2d 471, 474-475.) In the instant petition for a writ of prohibition defendant contends (1) that he was committed without reasonable or probable cause as to the charge of grand theft of an automobile (Pen.

Code, §487, subd. 3), because there was no testimony that he had been seen taking the Tom ear, and there was no testimony as to defendant’s intent at the time of the alleged taking; and (2) that he was committed without reasonable or probable cause as to the charge of receiving stolen property (Pen. Code, § 496) because there was no testimony indicating that the circumstances warranted an inference that he had knowledge that the property was stolen. However, the

summary of applicable law which we have set forth above, makes it clear that an information will not be set aside merely because each element of the charged crime is not established by direct testimony. Rather, the inquiry is whether the evidence presented at the preliminary examination discloses circumstances from which the magistrate might reasonably have inferred the existence of each element of the charged crime.

The evidence produced at the preliminary examination clearly shows that on March 12, 1968, Tom’s car was stolen from him by someone — i.e. that some person took his car from him without his consent or under a claim of right and with the specific intent to deprive him of it wholly and permanently. (See People v.

Walther (1968) 263 Cal.App.2d 310, 316 [69 Cal.Rptr. 434].) The narrow question before us is whether that evidence also discloses circumstances from which the magistrate could reasonably have inferred that defendant was the thief or, in the alternative, that he received portions of the subject property knowing that the same were stolen.

The resolution of this question depends upon the legal significance to be given that evidence presented before the magistrate to- the effect that defendant, some eight weeks after the theft, possessed “practically everything” that had been stripped from the Tom car subsequent to the theft. It has long been settled in this state that evidence of mere possession of stolen property is not sufficient in and of itself to sustain a conviction for grand theft (People v. Wissenfeld (1951) 36 Cal.2d 758, 763 [227 P.2d 833]; see People v. McFarland (1962) 58 Cal.2d 748, 754 [26 Cal.Rptr. 473, 376 P.2d 449]; cf. People v.

Citrino (1956) 46 Cal.2d 284, 288 [294 P.2d 32]; People v. Boxer (1902) 137 Cal. 562, 563-564 [70 P. 671]), or for receiving stolen property (People v. Lyons (1958) 50 Cal.2d 245, 258 [324 P.2d 556]), and that the conviction will not be sustained unless there is, in addition to evidence of possession, some evidence worthy of consideration tending to show that such possession was obtained by unlawful means. Defendant, relying on this proposition, contends that there is no such additional evidence— circumstantial or otherwise — in the instant case, and that therefore there was no “sufficient cause” under

section 872 of the'Penal Code to hold him to answer. We do not agree. The evidence to support an indictment or information need not be sufficient to support a conviction (People v. Castiel (1957) 153 Cal.App.2d 653, 659 [315 P.2d 79]) and accordingly to “warrant the denial of a motion under

section 995 of the Penal Code, it is not necessary that the proof be so complete as to justify a conviction of the accused.” (People v. Rissman (1956) 143 Cal.App.2d 488, 494 [299 P.2d 944].) Assuming for the sake of argument that the evidence here presented before the magistrate would not support a conviction for either of the charged crimes, we conclude that such evidence was nevertheless sufficient to hold defendant to answer.

In reaching this conclusion we consider it highly significant that defendant was found in possession of all or practically all of the accessories which were stripped from Tom’s car after it was stolen. This factor distinguishes this case from one in which, for instance, the stolen property was a single object.

Wheareas it might perhaps be argued in the latter case that the mere fact of possession affords less'than significant support for an inference that the possessor was the thief or had received it with guilty knowledge, the situation is otherwise in a ease such as that at bench where substantially all of several items stolen at the same time and place are found in possession of the defendant.

Although it is arguable that the accused innocently came into possession of all of the items at one time as a “package,” so to speak, clearly the simultaneous possession by one person of the functionally unrelated items here involved, all of which were stolen at the same time, gives rise to a reasonable inference that the possessor is either the thief or one who received the property from the thief “knowing the’same to be '. . . stolen.” (Pen.

Code, §496.) The simultaneous presence of all or substantially all items taken in a single larcenous act tends to indicate that they have not yet been diffused within the stream of commerce; thus, it can be reasonably inferred that the possessor is either identical with or knowingly stands in close proximity with the thief. In short, absent such close involvement of the possessor one finds it difficult to infer that “practically everything” stolen from one Chevrolet would normally be found incorporated in another Chevrolet of the same year within a relatively short time thereafter.

We have quoted above the magistrate’s ruling upon holding defendant to answer. It is there made clear that the magistrate, in making reference to the fact that all or practically all of the accessories taken from Tom’s car were found in defendant’s possession, concluded that that fact permitted the inference that defendant either was the thief of Tom’s car or had received the accessories therefrom with knowledge that they had been stolen.

Moreover, the magistrate observed that the period of time which elapsed between the theft and the discovery of the accessories was not so long, in view of all of the circumstances, that the inference was weakened. (See fn. 6, ante.) These determinations were sound. It therefore appears that there was sufficient cause within the meaning of

section 872 of the Penal Code to hold defendant for trial, and the information must therefore be sustained. The petition for a writ of prohibition is denied. The alternative writ is discharged. I dissent. The writ of prohibition should issue. Traynor, C. J., McComb, J., Tobriner, J., Mosk, J., and Burke, J., concurred. -Section 995 provides in relevant substance that an information must be set aside by tbe arraigning court upon defendant’s motion if it appears "[tjhat tbe defendant had been committed -without reasonable or probable cause. ’ ’

Section 999a sets forth procedural requirements relative to “A petition for a writ of prohibition predicated upon the ground . . . that the defendant had been committed on an information without reasonable or probable cause, ...” The petition alleges: “There was not sufficient probable cause to hold the petitioner to answer a count of grand theft in that there was no testimony presented by anyone that petitioner had been seen taking the said automobile, carrying or driving the automobile away, or, that the defendant had taken Tom’s automobile with the intent to take it permanently, said elements being part of the corpus delicti of the crime of grand theft of an automobile.” The petition alleges: “There was not sufficient probable cause to require petitioner to answer a count of receiving stolen property, in that the most that could be said was that defendant was in possession of allegedly stolen property, without any effort to offer testimony that the circumstances demonstrated an inference of guilt, or knowledge, that the alleged property was stolen within the elements necessary to establish a corpus delicti for receiving stolen property. ’ ’ In the absence of a conspiracy between the thief and the receiver of stolen goods (see People v.

Lima (1944) 25 Cal.2d 573, 576-577 [154 R.2d 698]), a defendant cannot normally be convicted for both stealing and receiving the same goods. (See People v. Tatum (1962) 209 Cal.App.2d 179, 183-184 [25 Cal.Rptr. 832]; cf. People v. Marquee (1965) 237 Cal.App.2d 627, 634, 637 [47 Cal.Rptr. 166]; People v. Williams (1967) 253 Cal.App.2d 952, 958-959 [61 Cal.Rptr. 238].) He may, however, be charged with both crimes if there is ‘ ‘ sufficient cause ’ ’ to believe him guilty of each. (People v. Tatum, supra, 209 Cal.App.2d 179, 184.) The matter of time is always relevant to the magistrate’s decision.

An inference of guilt, otherwise reasonable, may be weakened beyond the point of reasonableness if it appears that the period between theft and discovered possession was inordinately long under the circumstances.

In drawing this inference of guilty knowledge the magistrate would have been warranted in reasoning on the basis of his knowledge of practical realities that one wliO' receives from another individual a collection of diverse automotive accessories such as those here involved (which included items ranging from a transmission and tires to window mould-ings and an etched glove compartment cover) does so with an awareness that they, might well have been obtained by stripping a stolen car.