P. v. McClellan

Filed 9/28/07 P. v. McClellan CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

APPEALS from judgments of the Superior Court of Los Angeles County, William R. Hollingsworth, Jr. (retired judge of the L.A. Sup. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.), and Eric C. Taylor, Judges. Affirmed.

Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant Antonio Lamont McClellan.

Randi Covin, under appointment by the Court of Appeal, for Defendant and Appellant Corey Antionne Toles.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.

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Antonio Lamont McClellan and Corey Antionne Toles appeal from the judgments entered following their pleas of no contest to felony offenses and associated enhancements. They contend that the trial court erred in denying their motions to dismiss based on outrageous government misconduct. We affirm.

BACKGROUND

Defendants were each charged by information with six counts of robbery, with further allegations that each personally used a firearm and that a principal was armed with a firearm during the commission of the offenses, and that the offenses were committed for the benefit of a criminal street gang. It was further alleged that each defendant had suffered a prior serious felony conviction and a prior conviction under the Three Strikes law. McClellan was also alleged to have unlawfully possessed ammunition and to have suffered a prior felony conviction for which he served a prison term.

The robberies were crimes committed at the same Big 5 Store in Torrance. The first, on December 2, 2004, involved two victims. The second, on January 25, 2005, involved four victims. (The store manager, Carl Board, was a victim of both robberies.)

At trial, Lynette Brown testified that around 7:30 p.m. on December 2, 2004, McClellan, with a bandana wrapped around his face from the nose down, entered the store with another man. McClellan held a gun to Browns forehead, announced a holdup, and told Brown to get on the floor. Browns purse was taken. Brown identified McClellan from a photo array, stating that his appearance was similar to one of the perpetrators. In court, Brown was positive regarding her identification of McClellan. Big 5 employee Siltilez Ramos testified at the preliminary hearing that she was 95 percent certain that Toles was the other of the December 2 robbers. At trial, she was not sure of her identification.

Board testified that on December 2 he saw two men enter the store wearing bandanas on their faces. One, whom Board identified as McClellan, had a gun. Board identified Toles as the other. Board opened the cash register at McClellans request and Toles took money from the register. Toles then told Board to take him to the store safe. Board did so, but once there, Board ran to his office and called 911. McClellan and Toles fled.

Board was also at the store when McClellan and Toles entered around 7:00 p.m. on January 25, 2005. This time, they were accompanied by a third man. One of the men had a gun. Although Board was not sure who had the gun, he was certain that two of the men  McClellan and Toles  were the same ones who previously robbed the store. Toles again accompanied Board to the safe. This time Board opened the safe. Toles took the contents. Board looked at three different six-pack photo arrays the day after the robbery. He identified McClellan and Toles from the first and second photo arrays, respectively, but could not make an identification from the third.

Officers who responded to the January 25 robbery found a wallet that belonged to McClellan in the parking lot. McClellans home was placed under surveillance and later on the evening of the 25th officers detained a car associated with that address. McClellan and Toles were in the car. A search of the car yielded $1,160.25 in cash. A search of a dumpster at the apartment complex where Toles lived yielded wallets and other identification taken from two of the January 25 robbery victims. Included was one of the victims Costco card, from which Toless fingerprints were lifted.

After several days of testimony on the prosecutions case-in-chief, police reports were turned over to the defense that identified Travion Pollard as the third suspect in the January 25 robbery. The prosecutor told the court that he had not known of the reports until that day. Defendants moved for a dismissal based on governmental misconduct in withholding the reports or in the alternative for a mistrial. The prosecutor agreed that a mistrial should be granted and the court so ordered.

At further proceedings regarding dismissal, Torrance Police Detective Todd Kranke, who was the investigating officer on the case, testified that Pollards photograph was in the third six-pack shown to the victims of the January 25 robbery. Pollard had been identified by at least one of the victims as the robber who was holding the gun. Kranke, who stated that this was his first jury trial as an investigating officer, explained it was his understanding that Pollard had been exonerated. He considered the investigation of Pollard to be a separate case from the one brought against defendants. Through oversight, he had neglected to inform the prosecutor or defendants about the identifications.

Defendants argued that Krankes explanation was not credible. The trial court noted this was not the first time there had been a problem with the Torrance Police Department providing required discovery. The court ruled there had been no outrageous government misconduct requiring dismissal, but that lesser sanctions were appropriate, including the possibility of striking some of the firearm use allegations as to McClellan. The court further ruled that final determinations on sanctions would be deferred to a later date, including possible sanctions of dismissing gang and firearm use allegations against Toles.

At sanctions proceedings conducted in October 2005, McClellans retained counsel asked to be relieved. The request was granted. Thereafter, the matter was continued several times. Minute orders reflect that the continuances through March 8, 2006, were granted by the Honorable William R. Hollingsworth, Jr., who had presided over all of the proceedings to that point. Starting on March 14, continuances were granted by the Honorable Eric C. Taylor, who appears to have then taken over the case, except for a hearing on March 30, 2006, about which the minute order (there is no reporters transcript) reflects the following ruling by Judge Hollingsworth on Toless case: Defendants motion . . . for further sanctions is denied. [] This court declines to make any evidentiary rulings for another court. But we perceive nothing regarding Pollards existence as a suspect that was exculpatory on the robbery charges as to either defendant, against whom (contrary to their protestations) the evidence was strong. In addition, we note that after the mistrial declaration, additional sanctions including dismissal of enhancement allegations were discussed, followed by defendants being allowed to enter pleas with indicated sentences that were far less than the sentences to which they would have been exposed at trial.

Based on the foregoing, defendants arguments of abuse of discretion in failing to order dismissal must be rejected.

DISPOSITION

The judgments are affirmed.

NOT TO BE PUBLISHED.

MALLANO, Acting P. J.

We concur:

VOGEL, J.

ROTHSCHILD, J.

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