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People v. Pittman1/28/2003
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
OPINION ON RECALL OF REMITTITUR
Defendant Kathy Pittman was convicted by jury of receiving stolen property (§ 496, subd. (a)). The court found true allegations that she had six prior prison terms (§ 667.5, subd. (b)). She was sentenced to nine years in prison.
Defendant Julius Humphrey was convicted by jury of second degree burglary (Pen. Code, § 459; all further unspecified section references are to the Penal Code), receiving stolen property (§ 496, subd. (a)), and petty theft with a prior (§ 666), and the jury found true that he had two strike priors (§667, subds. (b)-(i); § 1170.12) and three prior prison terms (§ 667.5, subd. (b)). He was sentenced to 25 years to life in prison.
Both defendants appeal. Humphrey contends there is insufficient evidence to support the convictions; he was denied due process when he was not allowed to refer to the three strike sentencing; he was denied effective assistance of counsel; the trial court should have granted his motion for new counsel (People v. Marsden (1970) 2 Cal.3d 118) or his motion for a new trial; the trial court abused its discretion in denying his motion to strike a prior serious felony conviction; and the 25-year- to-life sentence is cruel and unusual punishment. Pittman contends the trial court abused its discretion in refusing to reduce her conviction to a misdemeanor under section 17, subdivision (b). We find no merit in any of the contentions raised. However, since a defendant cannot be convicted of stealing and receiving the same stolen property, Humphrey's conviction for petty theft with a prior is reversed.
FACTS
John Avila went to the California State Fair. He parked his pickup truck with the doors locked and the windows rolled up. When he returned four hours later, the wing window was open and the driver's window was down three or four inches. He tried to start the truck but it would not start. He opened the hood and discovered his battery was missing. He reported the theft.Bruce Brabec and Julie Jeffs were working as State Fair Police. They heard the radio report of the stolen battery. Brabec saw an individual working on a vehicle on Exposition Boulevard. The hood was up and the trunk was open. Humphrey was under the hood and Pittman was on the sidewalk. With Jeffs following, Brabec made a U-turn and approached the vehicle. When he arrived the trunk was closed. Under the hood was a disconnected battery.
Jeffs recognized Humphrey as someone she had seen in a State Fair parking lot earlier. She recognized the distinctive color of his shirt. She asked him if she had seen him and he said no. Jeffs was 80 percent sure she had seen Humphrey earlier.
Pittman reported the car was her cousin's and she did not have a key to the trunk. A tow truck arrived and the trunk was opened. Inside was Avila's battery. Avila identified it by the brand and date stamp.
Jeffs advised Pittman she was being arrested for receiving stolen property and Pittman responded, "`But I told you there was a battery, which battery are you talking about.'" The key to the trunk was later found in Pittman's underwear.
Humphrey's right palm print was found on the hood of Avila's truck.
Humphrey testified he had been friends with Pittman for 15 to 20 years. Pittman was driving when the car began sputtering. She pulled off th
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