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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 This opinion has not been certified for publication 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, 

 Plaintiff and Respondent, 

 v. 

NICKLAS ANTHONY WHITE, 

 Defendant and Appellant. 

 B236536 

 (Los Angeles County 

 Super. Ct. No. BA364552) 

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. 
2

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. 
3

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.” 
4

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].)
5

 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. 
6

 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 
7

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 
8

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. 
9

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 felonymurder 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.) 
10

 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.
11

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-
12

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.) 
13

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.
14

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. 
15

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.