People v. McKnight

THE PEOPLE, Plaintiff and Respondent,

v.jaron Mcknight et al., Defendants and Appellants.

B221145

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

Filed: October 11, 2011

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. TA105651)

APPEAL from judgments of the Superior Court of Los Angeles County, Gary E. Daigh, Judge. Affirmed as modified.

Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant Jaron McKnight.

Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant Paul Howard.

Tara K. Hoveland, under appointment by the Court of Appeal, for Defendant and Appellant Rashawn Collins.

Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant Meseao Collins.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.

Defendants and appellants, Jaron McKnight, Paul Howard, Rashawn Collins and Meseao T. Collins, appeal the judgments entered following their convictions for residential burglary, with prior serious felony conviction and prior prison term findings (Rashawn and Meseao only). (Penal Code, §§ 459, 667, subd. (a)-(i), 667.5.)¹ Defendants were sentenced to state prison for the following terms: Meseao Collins -17 years; Rashawn Collins - 17 years; McKnight - 4 years; Howard - 6 years.

The judgments are affirmed as modified.

BACKGROUND

Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.

1. Prosecution evidence.

At 7:30 a.m. on March 13, 2009, Irma Ashe left her house on East 111th Place in Los Angeles to go to work. She locked the door when she left.

Later that morning Ashe's neighbor, Davet Williams, heard first one loud boom and then another. Looking out her window toward Ashe's house, Williams saw defendant Meseao Collins (hereafter, Meseao) going into Ashe's house through the back door. She recognized him from the neighborhood and also because she knew Ashe's daughter used to babysit for him when he was a child. Williams called 911 and made a report.

A few minutes later, Williams heard a helicopter and she saw two other men leaving Ashe's yard. The men were moving at what Williams described as "[a] light run, little skip, fast walk," and a "[b]risk pace." They quickly walked across Ashe's front yard, then crossed the street and headed east on 111th Place. After they had proceeded only about one and a half houses east of Williams's house, the police arrived and stopped them.

Los Angeles Police Officer James Schwedler, who was on duty in a police helicopter at the time, received a call around noon to respond to Ashe's house. Schwedler testified a helicopter unit consisted of two members, the pilot and a tactical flight officer, and that he was working at the latter. His job was to communicate with officers on the ground, navigate and direct the pilot where to go. Schwedler arrived at the scene within four minutes, before any patrol cars got there. From the air, Schwedler saw two men "exiting from under the porch area at the front of [Ashe's] house." The two men walked through the yard and out onto 111th Place. They crossed the street to the south side of 111th Place and began walking east. One of them was carrying a white bag. The two men "were walking together," just a "couple feet from each other."

Schwedler saw a patrol car near Graham and 111th Place. At that time, the suspects were two houses east of Ashe's house and on the other side of the street. Schwedler reported on their location. The man who was not carrying the bag, later identified as defendant Howard, was detained by Officer Kraft, one of the officers who had arrived by patrol car. Schwedler watched Howard being apprehended and testified he was certain Howard was one of the two men he had seen leaving the front of Ashe's house. Kraft, who testified he and his partner were the first patrol officers to arrive at the scene, arrested Howard. The man who had been carrying the white bag, later identified as defendant McKnight, dropped the bag and fled. Schwedler advised the patrol officers of McKnight's location and watched as he was taken into custody in an alley just south of 111th Place.

Schwedler testified that, about 30 seconds after initially seeing the first two suspects leave Ashe's front porch area, the helicopter returned to Ashe's house and Schwedler saw two other men in Ashe's backyard running northward. The men jumped a fence in the backyard and entered an alley. They jumped a second fence and went out to 111th Street.² When a patrol car approached, the men went in opposite directions; onewalked west on 111th Street toward Maie Street, and the other ran east on 111th Street toward Graham. The man running east was wearing a white shirt and gray pants. Schwedler watched this suspect through his binoculars. The man running west was wearing a black shirt and tan shorts. Schwedler gave a description of the suspects' clothing and direction of travel over the police radio.

The suspect who had run eastward went all the way to an industrial area on Graham and ran into a warehouse where the New Green Day recycling center was located. Schwedler advised officers on the ground to set up a perimeter around the warehouse. It took about five or ten minutes to establish the perimeter.

Meanwhile, Schwedler saw the other suspect walking south on Maie Street. He radioed the suspect's location and description, and then watched as he was apprehended by a patrol unit. This suspect, who turned out to be Meseao, was one of the men Schwedler had seen running from Ashe's house. Apart from the men who had been detained, the only other pedestrians on Maie were either women or children. There was no other foot traffic on Graham, 111th Place or 111th Street.

Schwedler then turned his attention back to the suspect who had run into the warehouse. He requested a K-9 unit to respond to the scene. The K-9 unit arrived in about 20 minutes and the warehouse was evacuated.

Los Angeles Police Officer Brian O'Hara and a police dog named Chico arrived at the scene between 1:00 and 1:15 p.m. They went into the recycling center to carry out a search. Chico had been trained to bark if he discovered someone hiding. As long as the person did not attack him, Chico would only bark, not bite. Schwedler directed O'Hara to a tented area north of the main warehouse. At the back of one of the tents was an opening to a large shipping container, and Chico walked up the ramp into the container. There was a car inside the container. Chico got on top of the car, went in through the driver's side window, and started barking.

O'Hara called for Chico to return, but the dog did not respond. O'Hara got on top of the car and looked in. Defendant Rashawn Collins (hereafter, Rashawn) was inside the car, holding Chico by the collar. Chico was lunging forward and Rashawn tried to hit the dog a few times. O'Hara told Rashawn he couldn't call off the dog until Rashawn turned him loose. When Rashawn did not let the dog go, Chico overpowered and bit him, and Rashawn surrendered.

Hearing that a suspect was in custody, Schwedler looked through his binoculars and determined it was the same man he had seen run from Ashe's house, go east on 111th Street, and then run into the warehouse building. The only difference was that the man was now wearing a green shirt over the white shirt. This green shirt turned out to be the same one worn by the workers at the recycling center. The warehouse manager at New Green Day recycling center testified Rashawn used to work there, but that he was no longer employed on the day of the burglary.

When Ashe arrived home at 12:30 p.m., there were scratches on her back door and the security door had been kicked in. The mattress in her bedroom had been moved, and the five $20 bills she kept between the mattress and the box spring were missing. A gun usually kept under her bed was found on the back porch, as was a television set usually kept in her granddaughter's room.

When Rashawn was searched, he had five $20 bills neatly folded together in his pants pocket. This money was "separate from the other [paper] money that he had," which was not neatly folded.

A cream-colored pillowcase found on the south sidewalk of 111th Place contained property taken from Ashe's house. The pillowcase was found one house away from where Howard had been detained.

When Detective Douglas Simpson spoke to Rashawn a few days after the burglary, Rashawn said Meseao was his brother.

2. Defense evidence.

Meseao called an eyewitness identification expert who explained that memory does not operate like a camera: people fill in memory gaps with inferences that are not always accurate, and once an inaccurate memory is formed it is likely to remain. The expert described "source-monitoring error," which involves remembering a piece of information but forgetting where that information came from, and "unconscious transference," in which a familiar face associated with an event is confused with the perpetrator's face. It is dangerous to show an eyewitness only a single photograph to identify, and a "carry-over effect" occurs because that face will look familiar in future identifications. A witness's certainty about an identification has little correlation with accuracy.

CONTENTIONS

1. There was Batson/Wheeler error in the peremptory challenge of three Hispanic prospective jurors and one African-American prospective...