Filed 6/27/13 P. v. White CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,                                                          B236536

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA364552)
         v.

NICKLAS ANTHONY WHITE,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Drew E.
Edwards, Judge. Reversed in part; affirmed in part.


         Sylvia Koryn, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Carl N.
Henry, Deputy Attorneys General, for Plaintiff and Respondent.
                                    INTRODUCTION
       A jury found defendant and appellant Nicklas Anthony White guilty of carjacking
and of receiving stolen property. Based on the victim’s surprise testimony that the
carjacker had a red mohawk like defendant, defendant contends that his discovery rights
and right to a fundamentally fair trial were violated. We disagree with that contention.
But we do agree that his conviction of receiving stolen property must be reversed,
because he cannot be convicted of stealing and receiving the same property. We
therefore reverse the judgment in part and affirm in part.
                  FACTUAL AND PROCEDURAL BACKGROUND
I.     Factual background.
       A.     Prosecution’s case.
       On November 11, 2009, around 1:00 p.m., Denise Alica Taylor and her friend,
Dylon Downer, were at Milton’s restaurant on Slauson Avenue in Los Angeles. When
Taylor returned to her car to get some fliers, she noticed defendant getting out of the
passenger side of a black Chrysler. As Taylor was closing her car door, a voice beside
her said, “ ‘Give me your mother-fucking keys.’ ” Turning, she saw defendant standing a
foot away and pointing something covered with a T-shirt at her. Defendant threw off the
shirt, revealing a gun.
       Taylor threw her keys into the air and ran into the restaurant. When she and
Downer went back outside, her car and the black Chrysler were headed westbound on
Slauson. Downer saw the drivers of Taylor’s car and the black Chrysler talking before
they drove away. Taylor had left her cell phone and $280 in the front drink compartment.
She left her purse, which contained a checkbook, credit cards, identification, bible and
journal, in the backseat.
       Taylor called 911and described the carjacker as a Black male wearing all black
clothing. Officer Brett Ehring and his partner arrived at the scene. Officer Ehring put out
an initial crime broadcast describing the suspect as a Black male, about 20 years old, with
a dark complexion and bad teeth. After Taylor calmed down, she gave a further
description of the suspect: he had a black and red mohawk and a Jamaican accent.

                                             2
Officer Ehring broadcast that information as well. When Officer Bret Banachowski
arrived at the scene, officers told him that the suspect was a Black male with a dark
complexion, bad teeth and a red mohawk.1
          Barbara Gentle was across the street from Milton’s when Taylor was carjacked.
She saw Taylor’s car leave Milton’s and head west on Slauson. She did not see the
driver.
          Within 30 minutes of the crime, Officer Banachowski found Taylor’s car,
abandoned, at 52nd Street and Ninth Avenue. No prints were lifted from the car. Based
on searches for Taylor’s cell phone, Officer Banachowski was directed to a motel, where
he found defendant in one of the rooms.2 Several women were in the room with
defendant, and Officer Orlando Diaz saw defendant pass a gun partially hidden inside a
glove to one woman. The woman told the officer that she didn’t know defendant was
going to give her the gun. Defendant had Taylor’s cell phone in his pocket.
          Later that night, Taylor was taken to a field show-up at a hotel parking lot, where
she identified defendant as the carjacker. She also identified defendant at trial as the man
who carjacked her. All of Taylor’s possessions were returned, except for the $280.
          B.     Defense case.
          Defendant’s friend, Christine Denise Jackson, testified that on the day of the
carjacking he was with her and his girlfriend all day at his girlfriend’s shop. A woman
named Meeka was also there, but Jackson became upset when she saw that Meeka had a
gun.
          Defendant also testified that he was at his girlfriend’s store all day. He did not
steal Taylor’s car. For $75, he bought Taylor’s cell phone from two crack addicts who
came into the store. They always came into the store, and defendant wanted to help them



1
          Officers did not obtain surveillance footage from the restaurant’s video camera.
2
      Officer Diaz described defendant’s hair as a “fohawk,” “where they shave the hair
down and then it’s the lowered part here and it was red.”

                                                 3
out by buying the phone. At the motel, he did not hand a gun to Meeka. The gun was
Meeka’s.
II.      Procedural background.
         On May 6, 2011, a jury found defendant guilty of: count 1, carjacking (Pen. Code,
§ 215, subd. (a))3 and found true gun-use allegations (§§ 12022.53, subd. (b), 1203.06,
subd. (a)(1)), and count 2, receiving stolen property (§ 496, subd. (a)) and found true a
gun allegation (§ 12022, subd. (a)(1)).
         On September 28, 2011, the trial court sentenced defendant on count 1, to three
years plus ten years for the gun-use enhancement. The court imposed but stayed under
section 654 a 16-month sentence on count 2.
                                       DISCUSSION
I.       Admitting evidence of defendant’s red mohawk did not lead to reversible
error.
         Defendant contends that the trial court should have instructed the jury with
CALCRIM No. 3064 regarding untimely disclosure of evidence. He alternatively
contends that admitting evidence of the red mohawk rendered his trial fundamentally
unfair. We disagree.



3
         All further undesignated statutory references are to the Penal Code.
4
        CALCRIM No. 306 provides, in part: “Both the People and the defense must
disclose their evidence to the other side before trial, within the time limits set by law.
Failure to follow this rule may deny the other side the chance to produce all relevant
evidence, to counter opposing evidence, or to receive a fair trial. [¶] An attorney for the
(People/defense) failed to disclose: [¶] _____ <describe evidence that was not
disclosed> [within the legal time period]. [¶] In evaluating the weight and significance
of that evidence, you may consider the effect, if any, of that late disclosure.” (See
generally, People v. Riggs (2008) 44 Cal.4th 248, 307-311 [discussing criticism of
instructions on untimely disclosure of evidence]; People v. Bell (2004) 118 Cal.App.4th
249, 255-257 [instructing on untimely disclosure was prejudicial error]; People v.
Saucedo (2004) 121 Cal.App.4th 937 [criticizing instruction on untimely disclosure as
speculative and offering insufficient direction, but finding that giving it was harmless
error].) 

                                              4
       A.     Additional facts.
       During his opening statement, defense counsel argued that his client was innocent,
because Taylor did not describe the carjacker as having a red mohawk, which defendant
had at the time of the events: “The evidence is going to show that when the alleged
victim spoke to police, she said that the man had black hair. The evidence will show that
[defendant] that day, he had black hair on the sides, and he has about a 3- or 4-inch
mohawk in red running down the top of his head. The victim never described that. [¶]
. . . [¶] When [defendant] was arrested, the police took a booking photo. Look, there is
barely any hair on the sides. And at the top, although this is not a great picture, you see a
red mohawk. [¶] The evidence will show that [defendant] is not the person that
committed these alleged crimes. [¶] . . . [¶] He’s not the guy. He doesn’t fit the
description. He’s not 19 years old. He has a mohawk. The robber didn’t have a
mohawk.”
       Taylor, the victim, was the People’s first witness. While cross-examining Taylor,
defense counsel asked, “When the police asked you of anything odd about the person’s
face, you told them there was nothing odd about his face; true?” Taylor answered that
she told officers the suspect had a “unique hairdo like a mohawk or something.” “He had
a little mohawk going.” She didn’t mention the mohawk in prior testimony because she
wasn’t asked.5
       Defense counsel objected and asked that evidence of the mohawk be excluded
because it had never been provided in discovery. The prosecutor represented that the
mohawk was “new to me,” and she agreed it was not mentioned in the police reports or at
the preliminary hearing. After Taylor testified, the prosecutor spoke to one of the officers
who would be testifying, and he confirmed he was told to look for somebody with a red
mohawk.


5
      Taylor also said that before she identified defendant at a field show-up, she was
shown four other men at four different field show-ups. The defense, however, had not
been given discovery about those other field show-ups.

                                              5
       The trial court accepted the prosecutor’s representation she had no knowledge of
the evidence, and therefore the court refused to exclude it, finding that a discovery
violation had not occurred under section 1054.1. The court also denied the defense’s
request for an instruction that the evidence had not been turned over and should be
viewed with skepticism. The court did, however, order the prosecutor to make the
officers having knowledge of the evidence available to defense counsel before testifying.
       Thereafter, Officer Banachowski testified that when he arrived at Milton’s
restaurant he was advised the suspect was a Black male with a dark complexion, bad
teeth and a red mohawk.
       Defense counsel then renewed his objection, because he had learned that the
prosecutor was trying to obtain radio calls referencing the red mohawk. Counsel argued
that there had been a plea offer before trial, and based on the evidence then known to
him, defense counsel advised his client. “And now they bring in all of this new evidence
which was––which we were not privy to. I mean, I think––I think to proceed in this
fashion interferes with the attorney-client relationship and, again, it fundamentally
deprives [defendant] of a fair trial.” Defense counsel therefore asked for a mistrial. The
trial court again found that there had been no discovery violation and denied the mistrial
motion.
       Officer Ehring then testified that after the victim calmed down, she added that the
carjacker had a black and red mohawk and a Jamaican accent.
       B.     Admitting evidence of the red mohawk did not require a limiting
instruction, and it did not render the trial fundamentally unfair.
       The trial court neither abused its discretion by refusing to give an instruction to
address any discovery violation nor were defendant’s due process rights violated.
       Section 1054.1, the reciprocal discovery statute, “ ‘independently requires the
prosecution to disclose to the defense . . . certain categories of evidence “in the
possession of the prosecuting attorney or [known by] the prosecuting attorney . . . to be in
the possession of the investigating agencies.” ’ ” (People v. Verdugo (2010) 50 Cal.4th
263, 279-280; see also People v. Zambrano (2007) 41 Cal.4th 1082, 1133, overruled on

                                              6
another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; In re Littlefield
(1993) 5 Cal.4th 122, 135 [prosecutorial obligation to disclose relevant materials includes
information within the prosecution’s possession and control and information reasonably
accessible to the prosecution].) Evidence subject to disclosure includes “any ‘[r]elevant
written or recorded statements of witnesses or reports of the statements of witnesses
whom the prosecutor intends to call at the trial’ ” and any exculpatory evidence.
(Verdugo, at p. 280; § 1054.1, subds. (f) & (e).) “ ‘Absent good cause, such evidence
must be disclosed at least 30 days before trial, or immediately if discovered or obtained
within 30 days of trial.’ ” (Verdugo, at p. 280; § 1054.7; Zambrano, at p. 1133.) If any
party fails to comply with the statutory disclosure requirements, the trial court “may
make any order necessary” to enforce these provisions, “including, but not limited to,
[ordering] immediate disclosure, [initiating] contempt proceedings, delaying or
prohibiting the testimony of a witness or the presentation of real evidence, continu[ing]
. . . the matter, or any other lawful order. Further, the court may advise the jury of any
failure or refusal to disclose and of any untimely disclosure.” (§ 1054.5, subd. (b); see
also Verdugo, at p. 280.)
       We review a trial court’s decision whether to give an instruction concerning a
discovery violation for an abuse of discretion. (People v. Ayala (2000) 23 Cal.4th 225,
299.) A violation of the discovery statutes is subject to the harmless-error standard in
People v. Watson (1956) 46 Cal.2d 818, 836, and therefore reversal is required only
where it is reasonably probable that the omission affected the outcome at trial. (People v.
Zambrano, supra, 41 Cal.4th at p. 1135, fn. 13.)
       Here, evidence the carjacker had a red mohawk was not disclosed to the defense.
It was not mentioned in Taylor’s 911 call, in the police reports or at the preliminary
hearing. The first time it was mentioned during trial was in defense counsel’s opening
statement. He said that Taylor’s failure to describe her assailant as having a red mohawk
showed that defendant did not commit the carjacking. Taylor undercut that defense




                                              7
when, on cross-examination, she testified that the carjacker had a red mohawk and that
she told police officers about it.6
       Section 1054.1 requires disclosure of information the prosecutor possesses or
knows to be in the possession of investigating agencies. The prosecutor here represented
that she did not possess this information before Taylor testified and that she did not know
the investigating officers had any knowledge of it. It was “new” information to her. The
trial court accepted her representation, and the record supports it. The police reports, the
911 call, and Taylor had not previously mentioned a red mohawk. Officer Banachowski
testified that the day of his trial testimony was when he first mentioned the mohawk to
the prosecutor. Given this record and the standard of review—an abuse of discretion—
we cannot disregard the court’s finding that the prosecutor did not know of the evidence;
hence, she did not violate the criminal discovery statutes. If there was no discovery
violation, then there was no duty to instruct the jury on untimely discovery.
       Nor can we find that the surprise disclosure of that evidence and its admission,
even if erroneous, violated defendant’s due process rights under the Sixth and Fourteenth
Amendments and rendered the trial fundamentally unfair. “ ‘Ordinarily, even erroneous
admission of evidence does not offend due process unless it is so prejudicial as to render
the proceeding fundamentally unfair.’ . . . [¶] ‘To prove a deprivation of federal due
process rights, [a defendant] must satisfy a high constitutional standard to show that the

6
         We reject the Attorney General’s suggestion that defense counsel “opened the
door” to the admission of evidence of the red mohawk simply because the evidence was
first elicited during his cross-examination of Taylor. Defense counsel stated in his
opening that defendant was not the carjacker, and he would establish this by evidence the
victim never described her assailant as having a red mohawk. To establish that defense,
defense counsel asked Taylor, “When the police asked you of anything odd about the
person’s face, you told them there was nothing odd about his face; true?” Taylor then
answered that she remembered telling police officers that the carjacker had a “unique
hairdo like a mohawk or something.” Based on Taylor’s prior testimony, the 911 call,
and the police report, none of which referenced a red mohawk, it is clear that defense
counsel was trying to establish that Taylor did not mention a red mohawk when
describing her assailant. Under these circumstances, defense counsel did not “open the
door” to the evidence in a way that excused any alleged prosecutorial error.

                                             8
erroneous admission of evidence resulted in an unfair trial.’ [Citation.] ‘ “The
dispositive issue is . . . whether the trial court committed an error which rendered the trial
‘so “arbitrary and fundamentally unfair” that it violated federal due process.’
[Citations.]” [Citation.]’ ” (People v. Covarrubias (2011) 202 Cal.App.4th 1, 20; see
also People v. Partida (2005) 37 Cal.4th 428, 439.)
       Defendant analogizes the disclosure of the red mohawk evidence during trial to
what happened in Sheppard v. Rees (9th Cir. 1989) 909 F.2d 1234 and in U.S. v. Gaskins
(9th Cir. 1988) 849 F.2d 454 (Gaskins). The defendant in Sheppard was tried for murder
on a theory the murder was premeditated and deliberate. (Sheppard, at p. 1235.) After
the parties rested and the instructions were settled, the prosecutor, for the first time,
requested instructions on felony murder on a theory that the murder occurred during a
robbery, a crime with which the defendant was not charged. Over the defendant’s
objection, the trial court gave the instructions. Sheppard held that the right to counsel
was “directly implicated.” (Id. at p. 1237.) “That right is next to meaningless unless
counsel knows and has a satisfactory opportunity to respond to the charges against which
he or she must defend. Sheppard’s counsel had no occasion to defend against the felony-
murder theory during the evidentiary phase of the trial. This error affected the
composition of the record.” (Ibid.)
       In Gaskins, the trial court and the parties agreed that the jury should not be
instructed on aiding and abetting at the defendant’s trial for possessing and
manufacturing methamphetamine. (Gaskins, supra, 849 F.2d at p. 456.) But when the
jury asked a question about aiding and abetting during deliberations, the court instructed
the jury on aiding and abetting. (Id. at pp. 456-457.) Gaskins found that the trial court
violated rule 30 of the Federal Rules of Criminal Procedure regarding instructions and
that giving the aiding and abetting instruction during jury deliberations unfairly prevented
the defendant’s counsel from arguing against an aiding and abetting theory to the jury.
(Id. at p. 460.)




                                               9
         What happened in Sheppard and in Gaskins, namely, failing to notify the
defendant of the charges against him and precluding the defense from arguing against a
theory of liability, is far different than what happened here. Here, defendant was
surprised by previously undisclosed evidence at trial.7 A defendant, however, is entitled
to a fair trial, not a perfect one. (See generally People v. Cunningham (2001) 25 Cal.4th
926, 1009; Darden v. Wainwright (1986) 477 U.S. 168, 183 [“ ‘Darden’s trial was not
perfect—few are—but neither was it fundamentally unfair’ ”].) Taylor’s and the officers’
testimony that she described her carjacker as having a red mohawk, a fact not mentioned
by Taylor in her prior testimony or in her 911 call or in the police reports, was certainly a
surprise. But surprises often occur at trials: witnesses fail to appear, recant prior
testimony, and recall forgotten details. Where, as here, such surprises are unaccompanied
by a discovery violation or other misconduct or error, they rarely render a trial
fundamentally unfair.
         Although he was surprised by the evidence, defense counsel was able to
aggressively cross-examine witnesses about it and, through cross-examination, suggest
that the evidence was fabricated. He had Taylor, for example, review the police report to
refresh her recollection whether she mentioned the mohawk to the police, and she agreed
that the report did not mention a mohawk. He asked if the first time she mentioned a red
mohawk was when she saw defendant at the field show-up, which Taylor denied. Officer
Banachowski, during cross-examination, denied that the first time a red mohawk was
mentioned was when the district attorney and detective called him. Defense counsel also
asked the officer why he didn’t mention the mohawk in his “daily . . . D.F.A.R. report.”
Counsel asked, “Isn’t it true then it wasn’t that you were looking for a person with a red
mohawk but that you found a person with a red mohawk?” The officer testified that he
remembered he was looking for a person with a red mohawk, but he admitted he never


7
        As we have said, the trial court found that the prosecutor also had no notice of this
evidence, and therefore there was no discovery violation. Nothing in this record shows
that the court abused its discretion in making that finding. 

                                             10
produced a report mentioning that detail and no report was updated with that detail, even
though defendant’s hairstyle stood out.
       Defense counsel similarly cross-examined Officer Ehring about his failure to
mention the red mohawk in the police report. The officer explained that he did not
mention it because the report was prepared before Taylor described the red mohawk and
he did not update the report once she gave the additional information. When asked if the
officer considered his failure to include information about the red mohawk an oversight,
the officer said he wouldn’t call it a failure.
       Defense counsel was also given substantial leeway during his closing argument.
He argued that the police had “fumble[d] this case” and “tried to walk in here and bring
you new evidence.” “This isn’t a case where [defendant] fit the description of the
suspect. This is a case where they’re trying to make [defendant] fit the description of the
suspect. And although the trial court did not instruct on untimely discovery, counsel
essentially made that argument: “Now, what happens next in this whole process is very
concerning to me and it ought to be to you. In fact, it’s scary. Because you remember
my opening statement and one of the issues I raised is that he couldn’t be the guy because
he had a red mohawk that day. And now after I say that, all of the sudden everybody
wants to run in here and say, yeah, that’s right, he did, the suspect had a red mohawk.”
“Now, in the middle of trial, we call this sandbagging, that’s where you go to trial in the
case and somebody tries to bring in evidence at the last minute to try to save themselves.”
       Counsel also cast doubt on Taylor’s assertion that the carjacker had a red mohawk.
Only Taylor claimed to have seen it; neither Downer nor Gentle could describe the
carjacker. Taylor also didn’t mention it during her 911 call, although “that would be the
most distinctive thing about him.” And although it would have been easy to do, Officer
Ehring never updated the police report to include the red mohawk. “So why would he do
that? Why wouldn’t he do that? It’s because it never happened.”
       Therefore, even though the jury was not instructed with CALCRIM No. 306 and
evidence of the red mohawk was admitted, defense counsel was permitted to argue that
the evidence was fabricated and not produced in a timely manner. Through cross-

                                                  11
examination and closing argument, he was able to put that possibility in front of the jury.
The jury, however, may not have found the issue to be compelling, in light of the strong
evidence that defendant was the carjacker; namely, defendant had Taylor’s cell phone in
his pocket, a fact he did not dispute at trial. That fact alone was sufficient to tie
defendant to the carjacking, and therefore any error in allowing evidence that the
carjacker had a red mohawk was harmless, even when measured by the federal
constitutional standard of Chapman v. California (1967) 386 U.S. 18, 24. (See People v.
Gonzalez (2012) 54 Cal.4th 643, 663 [Chapman harmless-error inquiry asks whether it is
clear beyond a reasonable doubt a rational jury would have found the defendant guilty
absent the error]; Neder v. United States (1999) 527 U.S. 1, 15 [same].)
       Defendant, however, suggests that the admission of the evidence adversely
impacted his constitutional rights in one additional way: had his counsel known of this
evidence against him, he might have taken the seven-year-plea deal offered before trial.
That may be, but, as we have said, surprises occur at trial that might make a previously
rejected deal look more attractive. We therefore conclude that evidence of the red
mohawk did not render defendant’s trial fundamentally unfair.
II.    Defendant could not be convicted of carjacking and of receiving stolen
property.
       Defendant was convicted in count 1 of carjacking and in count 2 of receiving
stolen property, namely, Taylor’s cell phone. He correctly contends he cannot be
convicted of both. His conviction of count 2 must therefore be reversed.
       Former section 496, subdivision (a), provides: “Every person who buys or
receives any property that has been stolen or that has been obtained in any manner
constituting theft or extortion, knowing the property to be so stolen or obtained, or who
conceals, sells, withholds, or aids in concealing, selling, or withholding any property
from the owner, knowing the property to be so stolen or obtained, shall be punished by
imprisonment in a state prison, or in a county jail for not more than one year.” But “no
person may be convicted both pursuant to this section and of the theft of the same
property.” (See also People v. Garza (2005) 35 Cal.4th 866, 874.)

                                              12
       Section 496 therefore follows the general rule that a person may not be separately
convicted of stealing and receiving the same property. (People v. Garza, supra,
35 Cal.4th at pp. 871, 874; People v. Jaramillo (1976) 16 Cal.3d 752, 757; People v.
Magallanes (2009) 173 Cal.App.4th 529 [a defendant cannot be convicted of carjacking
and of receiving stolen property where the property is the car stolen in the carjacking].)
One thus cannot be both the thief and the receiver of the same stolen property. (Garza, at
p. 875; People v. Allen (1999) 21 Cal.4th 846, 852.)
       This general rule applies here. The jury found defendant guilty of count 1,
carjacking. He stole Taylor’s car. The cell phone was in that car. Therefore, when
defendant stole the car, he also stole everything in it, including the cell phone. (See
People v. Ortega (1998) 19 Cal.4th 686, 699 [a defendant who steals multiple items
during the course of an indivisible transaction involving a single victim commits only one
robbery or theft, regardless of how many items he or she steals], overruled on another
ground in People v. Reed (2006) 38 Cal.4th 1224, 1228-1229.)
       The Attorney General, however, points out that the general rule “does not apply in
the uncommon situation ‘when there is evidence of complete divorcement between the
theft and a subsequent receiving, such as when the thief has disposed of the property and
subsequently receives it back in a transaction separate from the original theft.’ ” (People
v. Garza, supra, 35 Cal.4th at pp. 874-875.) To establish a complete divorcement, there
must be a significant break in the defendant’s possession and control over the stolen
property. (Id. at p. 879.)
       The Attorney General argues that the evidence here could be interpreted to show a
complete divorcement between the carjacking and defendant’s receipt of the cell phone
based on defendant’s testimony he bought the cell phone from two addict friends. The
Attorney General thus posits this scenario: after carjacking Taylor, defendant left the cell
phone and other items in the car and then just so happened later that day to buy the phone
he left in Taylor’s car from his friends. That scenario, however, was entirely speculative.




                                             13
       The Attorney General suggests a second way defendant’s conviction of receiving
stolen property can stand: if the jury believed that defendant did not drive Taylor’s car
away or had been inside her car, then “[u]nder that reasonable scenario, [he] could be
convicted of carjacking and the receipt of the cell phone.” The Attorney General’s
argument is unclear and no authority is cited for any specific proposition. But if the
Attorney General is suggesting that defendant could be guilty of both crimes if he didn’t
drive Taylor’s car from the crime scene and merely later met his accomplice, who then
gave him the cell phone, then we would reject that argument. Based on evidence at trial,
defendant and his accomplice in the black Chrysler both participated in the carjacking
and therefore were equally guilty of carjacking. There was no evidence that defendant,
after he and his accomplice stole Taylor’s car, received the cell phone during some
transaction completely separate from the carjacking.




                                            14
                                   DISPOSITION
      Defendant’s conviction of count 2, receiving stolen property is reversed. The
judgment is otherwise affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                               ALDRICH, J.


We concur:


             CROSKEY, Acting P. J.




             KITCHING, J.




                                          15
