Thursday, April 21, 2016
Court Upholds Lengthy Sentence for Theft of Remains
By KENNETH OFGANG, Staff Writer
A defendant who stole nine urns containing the cremated remains of 11 people from a cemetery was properly convicted of multiple counts of grand theft and removal of human remains from a place of interment, the Fifth District Court of Appeal ruled yesterday.
The justices rejected Marc Reid II’s argument that because there was only one incident, he should only have been convicted of one count of grand theft and one count of violating Penal Code §7052(a), rather than 11 counts of each. A Merced Superior Court judge sentenced him to 24 years, eight months in prison, but more than 13 years would have been sliced from the aggregate if the “one-plan, one-offense” argument had prevailed.
The panel did find, however, that Judge Mark Bacciarini abused his discretion by denying the defendant’s Pitchess motion without reviewing the lead detective’s personnel records in chambers. The justices conditionally reversed Reid’s conviction, but said the trial judge may reinstate it on remand if there is nothing in the file that should have been disclosed, or if the lack of disclosure wasn’t prejudicial.
News accounts said Reid, then 55, and David Madsen, 68, were arrested following the May 8, 2013, theft from Evergreen Funeral Home and Memorial Park in Merced.
Investigators said the urns were cut up or ground up and sold as scrap metal to a recycling plant, and that Reid, who had at least four prior felony convictions, used the money to buy drugs.
Madsen testified against Reid, then pled guilty to violating §7502(a) and was sentenced to five years in prison. He said he was the “getaway driver” during the theft, that Reid promised him a gram of speed for helping him pick up some “recycles,” and that he only realized later that the “recycles” were urns containing human remains, the Merced Sun-Star reported.
Justice Stephen Kane, in his opinion for the court, distinguished People v. Bailey (1961) 55 Cal.2d 514, which held that a defendant who received unauthorized welfare benefits over a period of 17 months was guilty of one grand theft, rather than 17 petty thefts, because there were not “separate and distinct” thefts with separate planning and impulses.
Bailey doesn’t apply to stealing remains, Kane said, because “human remains have not been treated as property under the law” and because stealing remains is not “morally akin” to stealing money or receiving stolen chattels.
“In this case, the cremated remains of 11 people are irretrievably gone, willfully removed from their places of interment, and then discarded by defendant so he could recycle the metal urns in which they were laid to rest for scrap value. The crime proscribed by section 7052—abuse of the dead—is not analogous to larceny. Moreover, crimes against remains of the dead have attendant public health and moral concerns not presented by crimes of larceny. We therefore reject defendant’s argument that the Bailey rule is subject to extension as matter of law to the removal of human remains from their place of interment.”
In a footnote, Kane emphasized that there was no claim by Reid that he didn’t know that human remains were in the urns.
In an unpublished portion of the opinion, Kane said that it was error for Reid to be convicted of 11 counts of grand theft, rather than nine, since there were only nine urns. But because sentencing on the grand theft counts was stayed, the aggregate sentence was unaffected.
The court did, however, hold that the defendant could not be punished for both vandalism and removal of remains, pursuant to Penal Code §654, so a 16-month term for vandalism was stricken.
The case is People v. Reid, 16 S.O.S. 1943.
Copyright 2016, Metropolitan News Company