People v. Crockett CA2/8

Filed 1/7/15 P. v. Crockett CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B252976
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA392378)
v.
ROTHELL CROCKETT,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Anne H. Egerton, Judge. Affirmed as modified.
Thomas K. Macomber, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, Victoria B. Wilson and Jessica C. Owen, Deputy Attorneys General, for
Plaintiff and Respondent.
_____________________________________
A jury convicted Rothell Crockett of carjacking (count 1; Pen. Code, § 215, subd.
(a)),1 robbery (count 2; § 211), and receiving stolen property (count 3; § 496, subd. (a)).2
The trial court thereafter found Crockett had suffered five prior convictions with a prison
term (§ 667.5, subs. (b)), two prior convictions which qualified as strikes (§§ 667, subds.
(b)-(i); 1170.12, subds. (a)-(d)), and two prior convictions which qualified as serious
felonies (§ 667, subd. (a)(1)). The court sentenced Crockett to a third strike term of
25 years to life on count 1, plus 10 years for the prior serious felony convictions.
Further, the court imposed a third strike term of 25 years to life on count 2, plus 10 years
for the prior serious felony convictions, but stayed the sentence pursuant to section 654.
The court also stayed the sentence on count 3. We modify the judgment by vacating the
conviction on count 3, and as modified, affirm the judgment.
FACTS
At about 10:20 p.m. one New Year’s Eve, Ray Pickens was withdrawing money
from an ATM at a gas station when Crockett approached. Crockett brandished a
handgun,3 and demanded the keys to Pickens’s Infinity, and the cash. Pickens said his
four-year-old daughter was with him, and asked to get her out of the car. After
unbuckling his daughter and taking her out of the car, Pickens handed his car keys and
the cash to Crockett, who then drove away in Pickens’s car. Pickens called 911 and
reported the incident. About two hours later, now early on New Year’s Day, Los Angeles
Police Department Officer Matthew Casalicchio attempted to stop Crockett in the course
of investigating another incident. Crockett failed to comply with the officer’s directions
and went behind a box that housed electrical equipment. As Officer Casalicchio
watched, Crockett put what the officer believed to be handgun on the ground. Crockett
1
All further statutory references are to the Penal Code.
2
The jury acquitted Crockett of two additional counts. Those counts are irrelevant
to Crockett’s current appeal, so they are not discussed in this opinion.
3
Crockett was later found with a BB handgun.
2
then walked over to the officer, and a struggle ensued. Officer Casalicchio was able to
subdue Crockett. Upon searching Crockett, Officer Casalicchio found Pickens’ car keys
in Crockett’s pants pockets. The item that Crockett put on the ground was recovered; as
noted above, it turned out to be a BB handgun, “like a replica firearm.”
The People filed an information charging the offenses noted above. The charges
were tried to a jury in July 2013. Pickens identified Crockett as the carjacker/robber; the
officer who found Crockett in possession of Pickens’s car keys testified regarding the
events surrounding the discovery of the keys. Crockett presented testimony from an
expert on the subject of the problems associated with eyewitness identifications. The jury
convicted Crockett as noted at the outset of this opinion. The trial court thereafter found
prior conviction allegations true as noted at the outset of this opinion, and sentenced
Crockett as described above.
DISCUSSION
I. Receiving Stolen Property
Crockett contends, the People concede, and we agree that his count 3 conviction
for receiving stolen property must be reversed because the property involved in that count
was property taken in the course of the count 1 carjacking and count 2 robbery. Under
the receiving stolen property statute (§ 496, subd. (a)), a defendant “cannot be convicted
of both carjacking and receipt of stolen property, when the property in question is the
vehicle taken during the carjacking.” (People v. Magallanes (2009) 173 Cal. App. 4th
529, 536.) At trial, the prosecutor argued to the jury that there was a distinct nuance to
this rule in Crockett’s case because the property for the section 496 count was stolen car
keys, not a stolen car. On appeal, the People concede that such a theory is unsustainable
because the car keys were property taken in the course of the carjacking and robbery.
We agree. The proper remedy here, as recognized by both Crockett and the People, is to
reverse his conviction for receiving stolen property, and let his convictions for carjacking
and robbery stand. (See, e.g., People v. Stephens (1990) 218 Cal. App. 3d 575, 586-587.)
3
II. Pitchess
Crockett filed a Pitchess motion4 seeking information relating to several Los
Angeles Police Department officers, including Officer Casalicchio. Crockett sought
evidence relevant to “acts of excessive force, bias, dishonesty or other acts of misconduct
which [were] in any way relevant to the development of the defense in []his matter.”
The trial court granted the motion and conducted an in camera review. On appeal,
Crockett has asked that our court review the record independently to determine if the trial
court conducted a proper Pitchess hearing. The People acknowledge, and we agree, that
such review on appeal is proper under the procedures set forth in People v. Mooc (2001)
26 Cal. 4th 1216.
We have reviewed the transcript of the in camera hearing and find the trial court
conducted the hearing properly, describing the nature of all complaints, if any, against the
officer. Further, we find the trial court did not abuse its discretion in ruling that certain
material was discoverable.
DISPOSITION
The judgment is modified by vacating Crockett’s count 3 conviction for receiving
stolen property. As modified, the judgment is affirmed. The trial court is directed to
prepare a corrected abstract of judgment and forward to the Department of Corrections
and Rehabilitation center.
BIGELOW, P.J.
We concur:
FLIER, J.
GRIMES, J.
4
Pitchess v. Superior Court (1974) 11 Cal. 3d 531.
4