People v. Crocker CA2/2

California Court of Appeal Nov 24, 2014 No. B252986Unpublished

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Holding. The court affirmed the defendant's burglary conviction but reversed the true finding on his prior strike conviction because the record failed to establish that the prior battery conviction qualified as a serious or violent felony.

Issues

Whether the jury instruction on aiding and abetting was defective for omitting the intent element.
Whether the trial court erred in finding the defendant's prior battery conviction constituted a 'strike'.
Whether the trial court erred in denying the defendant's Pitchess motion.
Whether the People waived their right to challenge the trial court's failure to impose a crime prevention fine.

Disposition. Affirmed in part, reversed in part, and remanded.

Quotations verified verbatim against the opinion

“The omission of any reference to the intent element in the special instruction is of no moment because the jury was elsewhere instructed--not once, but twice--that it could not find Defendant guilty of aiding and abetting”

“In this case, the minute order packet did not provide any information as to whether Defendant’s 2007 battery conviction involved the infliction of great bodily injury to a non-accomplice or the use of a dangerous or deadly weapon.”

“The true finding on the prior strike conviction allegation is reversed and the sentence is vacated.”

Filed 11/24/14 P. v. Crocker CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B252986

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA129369) v.

KEVIN JAY CROCKER,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Raul A. Sahagun, Judge. Affirmed in part, reversed in part, and remanded with directions.

John Alan Cohan, under appointment by the Court of Appeal, for Defendant and Appellant Kevin Jay Crocker.

Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Deputy Attorney General, for Plaintiff and Respondent.

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Kevin Jay Crocker (Defendant) appeals his conviction and six-year sentence for a single count of second degree burglary (Pen. Code, § 459).1 He attacks one of the jury instructions, the sufficiency of the evidence supporting the judge’s finding that he suffered a prior “strike” conviction, and the trial court’s denial of his Pitchess2 motion following an in camera hearing. The People contend the trial court erred in not imposing a crime prevention fine. None of these arguments has merit except Defendant’s challenge to his prior strike. We accordingly affirm the conviction and remand the matter for resentencing or for retrial on the “strike” conviction. FACTUAL AND PROCEDURAL BACKGROUND Police discovered and arrested Defendant and his codefendant Cindy Rodriguez (Rodriguez) in the bedroom closet of an unoccupied house. Rodriguez was laying atop wire strippers, wire cutters, a screwdriver, pliers, and other tools. The house itself was a shambles. Although the house had been “intact” just a month before, in the month leading up to Defendant’s arrest, copper wiring had been yanked from the walls; lighting fixtures, bathroom sinks, molding and baseboards had been damaged; and “tons” of stripped and partially stripped wire had been strewn all over the house. When questioned by police following waiver of his Miranda3 rights, Defendant initially said he had entered the house to have sex with Rodriguez, but later admitted he had been in and out of the house several times in the last month to steal, strip and then sell its copper wiring. The People charged Defendant, Rodriguez and Melinda Figueroa (Figueroa), whom the police found in the house’s driveway the day of Defendant’s arrest, with a single count of burglary (§ 459). The People further alleged that Defendant’s 2007 conviction for battery causing serious bodily injury (§ 243, subd. (d)) constituted a

People v. Crocker CA2/2

AI Brief

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B252986

KEVIN JAY CROCKER,

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