Opinion
B221145
10-11-2011
THE PEOPLE, Plaintiff and Respondent, v. jaron Mcknight et al., Defendants and Appellants.
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.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.)Defendants were sentenced to state prison for the following terms: Meseao Collins -17 years; Rashawn Collins - 17 years; McKnight - 4 years; Howard - 6 years.
All further statutory references are to the Penal Code unless otherwise specified.
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. When a patrol car approached, the men went in opposite directions; one walked 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.
111th Street was a block north of 111th Place; there was an alley separating the two streets.
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 juror.
2. The prosecution committed Brady error and discovery violations which the trial court failed to properly cure by admonitory jury instructions.
3. An extra-judicial statement by Rashawn was obtained in violation of Miranda.
4. The trial court erred by giving a flight instruction (CALCRIM No. 372) that applied to Howard.
5. The trial court erred by denying Meseao's motion to strike a Three Strikes prior.
6. The trial court erred by imposing the upper term for Meseao's burglary conviction.
7. Meseao's prior prison term enhancement should have been stricken rather than stayed.
DISCUSSION
1. Batson/Wheeler.
The defendants contend the trial court erred when it ruled they failed to make out a prima facie case of discrimination regarding the prosecutor's peremptory challenges of four prospective jurors. This claim is meritless.
a. Legal principles.
"A party [commits error under Batson v. Kentucky (1986) 476 U.S. 79 , and People v. Wheeler (1978) 22 Cal.3d 258, by using] peremptory challenges to remove prospective jurors solely on the basis of group bias. Group bias is a presumption that jurors are biased merely because they are members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds." (People v. Fuentes (1991) 54 Cal.3d 707, 713.)
"The United States Supreme Court recently reiterated the applicable legal standards. 'First, the defendant must make out a prima facie case "by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." [Citations.] Second, once the defendant has made out a prima facie case, the "burden shifts to the State to explain adequately the [apparently discriminatory] exclusion" by offering permissible . . . justifications for the strikes. [Citations.] Third, "[i]f a [non-discriminatory] explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful . . . discrimination." ' [Citations.] [¶] In order to make a prima facie showing, 'a litigant must raise the issue in a timely fashion, make as complete a record as feasible, [and] establish that the persons excluded are members of a cognizable class.' [Citation.]" (People v. Gray (2005) 37 Cal.4th 168, 186.)
The analysis begins with the presumption a party exercising a peremptory challenge is doing so on a constitutionally permissible ground. (People v. Wheeler, supra, 22 Cal.3d at p. 278.) "[T]he law recognizes that a peremptory challenge may be predicated on a broad spectrum of evidence suggestive of juror partiality. The evidence may range from the obviously serious to the apparently trivial, from the virtually certain to the highly speculative. For example, a prosecutor may fear bias . . . because [a juror's] clothes or hair length suggest an unconventional lifestyle." (Id. at p. 275.)
A trial court's ruling on a Wheeler motion is reviewed for substantial evidence. (People v. Alvarez (1996) 14 Cal.4th 155, 196.) "The determination of whether a defendant has established a prima facie case 'is largely within the province of the trial court whose decision is subject only to limited review. [Citations.]' [Citation.] On appeal, we examine the entire record of voir dire for evidence to support the trial court's ruling. [Citation.] Because of the trial judge's knowledge of local conditions and local prosecutors, powers of observation, understanding of trial techniques, and judicial experience, we must give 'considerable deference' to the determination that [the defendant] failed to establish a prima facie case of improper exclusion. [Citation.]" (People v. Wimberly (1992) 5 Cal.App.4th 773, 782.) "Because Wheeler motions call upon trial judges' personal observation, we view their rulings with 'considerable deference' on appeal. [Citations.] If the record 'suggests grounds upon which the prosecutor might reasonably have challenged' the jurors in question, we affirm. [Citation.]" (People v. Howard (1992) 1 Cal.4th 1132, 1155; see, e.g., People v. Bonilla (2007) 41 Cal.4th 313, 346 [no prima facie showing where "the record discloses gender-neutral reasons for the strikes"].)
b. Background.
(1) Three Hispanic prospective jurors.
Defense counsel for Rashawn made the first Batson/Wheeler motion, arguing the prosecutor had used three out of four peremptory challenges against Hispanic prospective jurors. The three Hispanic jurors had provided the following pertinent information during voir dire:
Juror No. 5997, a single male, was a full-time student at California State University at Long Beach studying computers and electronics. He had been mugged twice when he was in high school. The police had been contacted with regard to one of those muggings and the juror was not happy about the job they did. On a third occasion, someone stole some cockatoo birds from his yard. Nobody was ever arrested and the birds were not recovered. This juror did not have any prior jury experience.
Juror No. 0102 was a single, full-time male college student, a sophomore who had "a little part-time job in the warehouse." He was studying criminal justice and he wanted to be a probation officer. Three years ago one of his friends had been arrested after the police pulled him over and found a gun in his car. This juror did not have any prior jury experience.
Juror No. 0146 was a single man with an 18-month-old son. He was a full-time student, studying computers and electronics. When he was eight years old, his father had been arrested for DUI and reckless driving, and then incarcerated. When he was told the jury might not get to see a police report in this case, this juror said he had a problem with that: "Yeah. I want to see the police report." He subsequently said he would not hold it against the prosecutor if the police report were not admitted into evidence with defense counsel's agreement.
The trial court denied Rashawn's Batson/Wheeler motion, noting there were a lot of Hispanics among the first 12 prospective jurors: "Eight of the first 12 are Hispanics. We have got an awful lot of Hispanic [sic] draw. I don't think there's a prima facie case based on four." When the motion was subsequently argued further, the trial court said: "Well, it's obvious to me why each was excused. I don't necessarily want to put that on the record because it's not my job to explain what the D.A.'s reasons were." The trial court also said, "The record is what the record is and I'm not asking you [i.e., the prosecutor] to explain." The following colloquy then occurred:
"[PROSECUTOR]: I understand. I would like to explain, though, just to keep the record clear.
"THE COURT: Then that means I'm implicitly implying there is a prima facie case, right?
"[PROSECUTOR]: Well, I believe the court said he is not finding one.
"THE COURT: But you would like to explain anyway?
"[PROSECUTOR]: I would like to explain anyway.
"THE COURT: Sure. Go ahead.
"[PROSECUTOR]: The reason I kicked those three male Hispanics is because they were students. . . . In my experience I believe students don't have enough life experiences. They all three said that either they were full-time students with part-time jobs or full-time students themselves."
(2) One African-American prospective juror.
The second Batson/Wheeler motion concerned Juror No. 4512, a retired accountant whose husband worked as a longshoreman. She had been on several juries in criminal and civil cases, and one of the criminal cases had ended in a hung jury. A cousin of hers had been arrested for murder 15 years ago. She did not have enough information to know whether her cousin's case had been handled properly.
After the trial court determined defendants had failed to make out a prima facie case of Batson/Wheeler error as to this prospective juror, the prosecutor again asked to state her reasons anyway. The trial court replied, "If you have this need to do this, why would I want to stop you?" The prosecutor then said, "I saw her closing her eyes more than once during this afternoon's voir dire, and earlier she said that on one of the [juries] that she served on she served as a hung juror."
If the prosecutor meant by this that Juror 4512 had identified herself as one of the jurors voting against conviction, it appears to have been a misstatement. Although the transcript is slightly ambiguous, it appears the juror was only saying she had been on a hung jury.
c. Discussion.
The trial court held defendants failed to make out prima facie showings of Batson/Wheeler error because "the record 'suggests [non-discriminatory] grounds upon which the prosecutor might reasonably have challenged' " these prospective jurors. (People v. Howard, supra, 1 Cal.4th at p. 1155.) The trial court was correct.
Negative encounters with the criminal justice system, experienced either by the prospective juror personally or by a relative or close friend, can make the juror unsympathetic to the prosecution and thus properly subject to peremptory challenge. (See People v. Gray, supra, 37 Cal.4th at p. 192 ["someone close" to juror arrested and sent to jail for auto theft]; People v. Panah (2005) 35 Cal.4th 395, 441-442 [arrest of juror or relative]; People v. Farnam (2002) 28 Cal.4th 107, 138 [nephew incarcerated]; People v. Buckley (1997) 53 Cal.App.4th 658, 668 [friend charged with driving under the influence]; People v. Allen (1989) 212 Cal.App.3d 306, 315-316 [close friend of prospective juror had been arrested for selling drugs].) This reasoning applies to Jurors 5997, 0102, 0146 and 4512.
Youth and lack of life experience are legitimate reasons to reject prospective jurors. (See People v. Lomax (2010) 49 Cal.4th 530, 575 ["potential juror's youth and apparent immaturity are race-neutral reasons"]; People v. Taylor (2010) 48 Cal.4th 574, 616 [prospective juror "was single and very young, and had not registered to vote"]; People v. Neuman (2009) 176 Cal.App.4th 571, 582 [prospective jurors were "young students, inexperienced at life"]; see also People v. Sims (1993) 5 Cal.4th 405, 430 [prosecutor gave legitimate race-neutral explanation by characterizing prospective jurors as "youthful college student with insufficient maturity to accept responsibility involved in serving on death-penalty case"].) This reasoning applies to Jurors 5997 and 0102, and arguably also to 0146.
Prospective jurors with certain occupations can reasonably be assumed to be more defense-oriented. (See People v. Young (2005) 34 Cal.4th 1149, 1174 [therapist]; People v. Trevino (1997) 55 Cal.App.4th 396, 411 [providers of health care or social services]; People v. Landry (1996) 49 Cal.App.4th 785, 790-791 [job in youth services agency and background in psychiatry or psychology]; People v. Perez (1996) 48 Cal.App.4th 1310, 1315 [those working in "social services or caregiving fields"].) This reasoning applies to Juror 0102, who was studying criminal justice and wanted to be a probation officer.
The prosecution is not required to accept at face value a prospective juror's assurance that, despite an answer indicating the contrary, he or she would have no problem being neutral. In such cases, the juror's apparent uncertainty is a legitimate reason for excusal. (See People v. Taylor, supra 48 Cal.4th at p. 643, fn. 19) [prosecutor legitimately could have believed prospective juror who worked as nurse would be inclined to credit defense mental health experts, despite her questionnaire statement to the contrary]; People v. Young, supra, 34 Cal.4th at p. 1174 [even though prospective juror who worked as therapist "gave assurances she harbored no biases or opinions that would affect her ability to be open-minded and fair, the prosecutor might have reasonably exercised a challenge to excuse [her] on this basis" because there might be evidence of "extreme mental disturbance" at penalty phase]; People v. Adanandus (2007) 157 Cal.App.4th 496, 505 [no inference of discriminatory purpose where challenged juror "was equivocal about the effect his views on the drug laws might have"].) This reasoning applies to Juror 0146, who initially indicated he would need to see the police report, but subsequently appeared to equivocate.
It is generally recognized that a prospective juror's "experience of sitting on a hung jury constitutes a legitimate concern for the prosecution, which seeks a jury that can reach a unanimous verdict." (People v. Turner (1994) 8 Cal.4th 137, 170, disapproved on another ground in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5; accord People v. Farnam, supra, 28 Cal.4th at p. 138.) The concern about a prospective juror having served on a hung jury is not only that the juror might be defense or prosecution-oriented, but also that the experience might have caused lasting frustration with the judicial system. (See Currin v. State (Ind. 1996) 669 N.E.2d 976, 979 [legitimate justification for challenge where prospective juror served on criminal case, voted for conviction and became frustrated because no verdict was reached].) This reasoning applies to Juror 4512.
McKnight argues the trial court erred by failing to evaluate the prosecutor's explanations for these peremptory challenges. Citing People v. Welch (1999) 20 Cal.4th 701, and People v. Cardenas (2007) 155 Cal.App.4th 1468, he asserts that when "the prosecutor offers explanations where the court has not made a prima facie ruling of purposeful discrimination, the trial court is nevertheless required to make a sincere and reasoned attempt to evaluate the prosecutor's reasons for exercising its peremptories." But the cited cases are inapposite. In Cardenas, the prosecutor jumped in and offered reasons without waiting for the trial court to rule on whether a prima facie case had been made out. (See People v. Cardenas, supra, 155 Cal.App.4th at pp. 1473-1474.) Welch actually contradicts McKnight's argument: "But when, as here, the trial court states that it does not believe a prima facie case has been made, and then invites the prosecution to justify its challenges for purposes of completing the record on appeal, the question whether a prima facie case has been made is not mooted, nor is a finding of a prima facie showing implied. [Citation.] When the trial court under these circumstances rules that no prima facie case has been made, 'the reviewing court considers the entire record of voir dire. [Citation.] "If the record 'suggests grounds upon which the prosecutor might reasonably have challenged' the jurors in question," ' we reject the challenge." (People v. Welch, supra, 20 Cal.4th at p. 746.)
As indicated, ante, the record here suggests ample grounds upon which the prosecutor might have reasonably challenged all four of these prospective jurors. The Batson/Wheeler motions were properly denied.
2. Discovery violations.
Rashawn contends his conviction must be reversed because the prosecution failed to timely disclose material impeachment evidence. This claim is meritless.
a. Background.
Prior to opening statements, Rashawn's defense counsel advised the trial court that, after the start of jury selection, she received a report and some additional photographs from Officer O'Hara, the K-9 officer. Defense counsel asked the trial court to instruct the jury with CALCRIM No. 306 (untimely disclosure of evidence). When the trial court asked how the defense had been prejudiced, counsel replied, "Well, . . . there's some information in here that would have been nice to have known before." The trial court said it would address this request, along with another discovery issue raised by the prosecution, at a subsequent time. When O'Hara testified he was cross-examined about the contents of his report.
Before Officer Schwedler testified, Rashawn's attorney told the trial court she had just received a CD containing the radio communications between Schwedler and the officers on the ground, and that she had not had an opportunity to listen to it. Counsel argued that, because the prosecutor had indicated the same information was contained on a 911 tape, the tape should be used at trial and the CD should be excluded "because of late discovery." The prosecutor replied she had only received the CD on the previous day and was still preparing a transcript of it. She agreed the CD contained the same statements Schwedler had made on the 911 tape, but said the CD did not include the 911 operator's comments and its sound was much clearer.
The trial court ruled the CD could not be played then, but that the issue would be revisited after defense counsel had a chance to listen to it. On the next trial day, however, defense counsel indicated she now believed the CD should be played and the jury instructed it was exculpatory material under Brady v. Maryland (1963) 373 U.S. 83 (10 L.Ed.2d 215), that should have been turned over to the defense earlier. The trial court ruled the CD could be played. When defense counsel asked about "the late discovery issue," the trial court replied, "We are going to do that at the end with [the prosecutor's] late discovery issue. We'll argue it all at once."
The CD of Schwedler's radio transmissions from the helicopter was played for the jury. Rashawn's defense counsel cross-examined Schwedler about discrepancies between this recording and his prior testimony.
On the fifth day of trial, the prosecutor informed the court she was going to put Detective Simpson on the stand to testify Rashawn had told him Meseao was his brother. An evidentiary hearing was held to determine if this statement had been obtained in violation of Rashawn's Miranda rights. The trial court ruled there had been no Miranda violation and Simpson testified.
When the trial court subsequently considered the defense request for a late-discovery instruction, the only discovery item mentioned was the CD of Schwedler's radio transmissions. When the trial court asked how Rashawn had been prejudiced, the following colloquy occurred:
"[Defense counsel]: "It would have been nice to have it earlier to do the investigation.
"The Court: What kind of investigation would that have been?
"[Defense counsel]: The police officer made several representations on the stand that were not reflected in the tape. Maybe I could have contacted other people."
The trial court refused to give a late discovery instruction.
b. Legal principles.
"There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." (Strickler v. Greene (1999) 527 U.S. 263, 281-282 .) "Materiality . . . requires more than a showing that the suppressed evidence would have been admissible [citation], that the absence of the suppressed evidence made conviction 'more likely' [citation], or that using the suppressed evidence to discredit a witness's testimony 'might have changed the outcome of the trial' [citation]. A defendant instead 'must show a "reasonable probability of a different result." ' [Citation.]" (People v. Salazar (2005) 35 Cal.4th 1031, 1043.)
"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." ' [Citation.] Evidence subject to disclosure includes '[s]tatements of all defendants' (§ 1054.1, subd. (b)), '[a]ll relevant real evidence seized or obtained as a part of the investigation of the offenses charged' (id., subd. (c)), 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, including any reports or statements of experts' (id., subd. (f)), and '[a]ny exculpatory evidence' (id., subd. (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. (§ 1054.7.)' [Citation.]
"Upon a showing both that the defense complied with the informal discovery procedures provided by the statute, and that the prosecutor has not complied with section 1054.1, a trial court 'may make any order necessary to enforce the provisions' of the statute, 'including, but not limited to, immediate disclosure, . . . continuance of the matter, or any other lawful order' (§ 1054.5, subd. (b).) The court may also 'advise the jury of any failure or refusal to disclose and of any untimely disclosure.' (Ibid.) A violation of section 1054.1 is subject to the harmless-error standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836 . . . ." (People v. Verdugo (2010) 50 Cal.4th 263, 279-280.)
c. Discussion.
Rashawn contends he was denied a fair trial because the prosecution failed, in a timely manner, to turn over discovery in violation of Brady. Alternatively, Rashawn contends that even if the prosecution did not violate Brady, it violated California's discovery statute. We disagree with both claims. There were no Brady violations because all the evidence Rashawn is complaining about was ultimately produced at trial. And even if there had been discovery violations, there was no showing of prejudice.
All of the evidence Rashawn is complaining about was available at trial. There cannot be a Brady violation if the disputed evidence was not suppressed, but was available for use at trial. (See People v. Morrison (2004) 34 Cal.4th 698, 715 ["evidence that is presented at trial is not considered suppressed, regardless of whether or not it had previously been disclosed during discovery"].)
Even assuming arguendo the prosecution was guilty of not providing timely discovery of this material, Rashawn has failed to demonstrate there was any resulting prejudice. Indeed, Rashawn never even makes a specific allegation about how he was prejudiced. Rather, he resorts to such generalizations as claiming the late discovery "interfered with the defense's ability to effectively defend its case," "misled [him] as to the strength and weaknesses of the prosecutor's case," and deprived him of "information critical to his counsel's rational strategic choices." These amount to mere speculative claims about various ways Rashawn might have been prejudiced, without showing that he actually was prejudiced in any particular way.
3. Miranda claim.
Rashawn contends his conviction must be reversed because a statement he made to Detective Simpson was obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 (86 S.Ct. 1602). We conclude any possible error was necessarily harmless.
a. Background.
The prosecutor wanted to put on evidence Rashawn had told Detective Simpson that Meseao was his brother. Rashawn objected on Miranda grounds and an evidentiary hearing was held. Simpson testified he interviewed Rashawn several days after he had been booked. Before giving the Miranda warning, he asked Rashawn some questions in order to prepare an Investigator's Final Report. Simpson explained this report gathers an arrestee's personal identification information for use in case the police have to search for the person later. While Simpson was filling out this report, Rashawn said Meseao was his brother. Then, after hearing the Miranda warning, Rashawn chose to remain silent. Simpson testified that when he solicited this sibling information, he did not know it would be incriminating and he had not been intending to elicit inculpatory statements.
Simpson testified he did not initially provide a copy of this report to the prosecutor, but brought along a copy when he came to testify at trial because McKnight's attorney had asked for it.
--------
The trial court admitted the statement on the ground it was a booking-type question, even though it had not been asked at the time Rashawn was booked.
b. Legal principles.
In Pennsylvania v. Muniz (1990) 496 U.S. 582 (110 S.Ct. 2638), a plurality of the Supreme Court acknowledged a so-called "booking exception" to the Miranda rule. "Although the recognition of a routine booking question exception to Miranda and the 'design' exception to the booking question exception are expressed by a mere plurality in Muniz, these principles are now considered settled. (See, e.g., U.S. v. Brown (8th Cir. 1996) 101 F.3d 1272, 1274 ['It is well-settled that routine biographical data is exempted from Miranda's coverage.']; Presley v. City of Benbrook (5th Cir. 1993) 4 F.3d 405, 408, fn. 2 ['In the wake of Muniz, it has been universally accepted by courts, both federal and state, that a routine booking question exception to the Fifth Amendment exists.'].) Indeed, California and federal courts applied a booking question exception long before it was recognized in Muniz. [Citations.]" (People v. Gomez (2011) 192 Cal.App.4th 609, 630, fn. omitted.)
"In determining whether a question is within the booking question exception, courts should carefully scrutinize the facts surrounding the encounter to determine whether the questions are legitimate booking questions or a pretext for eliciting incriminating information. [Citation.] Courts have considered several factors, including the nature of the questions, such as whether they seek merely identifying data necessary for booking [citations]; the context of the interrogation, such as whether the questions were asked during a noninvestigative, clerical booking process and pursuant to a standard booking form or questionnaire [citations]; the knowledge and intent of the government agent asking the questions [citations]; the relationship between the question asked and the crime the defendant was suspected of committing [citations]; the administrative need for the information sought [citations]; and any other indications that the questions were designed, at least in part, to elicit incriminating evidence and merely asked under the guise or pretext of seeking routine biographical information [citations]." (People v. Gomez, supra, 192 Cal.App.4th at pp. 630-631.)
"Significantly, the Muniz plurality noted an exception to the booking question exception: ' "[R]ecognizing a 'booking exception' to Miranda does not mean, of course, that any question asked during the booking process falls within that exception. Without obtaining a waiver of the suspect's Miranda rights, the police may not ask questions, even during booking, that are designed to elicit incriminatory admissions." ' [Citation.] The use of the phrase 'designed to elicit incriminatory admissions,' instead of the more objective 'reasonably likely to elicit an incriminating response' language . . . suggests that the intent of the interrogating officer is more important in evaluating the applicability of the booking question exception than in establishing interrogation generally." (People v. Gomez, supra, 192 Cal.App.4th at p. 629, fn. omitted.)
c. Discussion.
Gomez pointed out "the booking question issue requires careful scrutiny of the facts and circumstances in each case" because "[w]hether the administrative purpose is a mere guise or pretext for questions actually designed to elicit incriminating responses is a close question." (People v. Gomez, supra, 192 Cal.App.4th at pp. 635, 634.) Although Detective Simpson testified he gathered this information merely as a routine part of filling out the Investigator's Final Report, the information was incriminating because Meseao had been positively identified by an eyewitness who was acquainted with him. Indeed, Simpson made a notation in the report characterizing Maseao as a "brother/accomplice."
However, even assuming arguendo this evidence should not have been admitted, we agree with the Attorney General's argument any error was necessarily harmless. (See Arizona v. Fulminante (1991) 499 U.S. 279, 310 [improper admission of a confession is subject to harmless error analysis]; People v. Thomas (2011) 51 Cal.4th 449, 498 [Miranda error subject to "harmless beyond a reasonable doubt" prejudice standard].) Rashawn asserts he was prejudiced because there was no testimony identifying him as the person seen leaving Ashe's backyard. Hence, Rashawn argues, "[t]he only evidence linking [him] to the robbery was the fact that he was found with five . . . $20 bills in his pocket that he could have gotten from any ATM and that he was Meseao's brother."
But the assertion - that nobody identified him as one of the men seen leaving Ashe's property - is accurate only to the extent there were no witnesses who testified they saw a person they knew to be Rashawn leave Ashe's backyard. In fact, the evidence Rashawn had been at Ashe's house was overwhelming. Schwedler testified he saw two men in Ashe's backyard and watched them jump over some fences and proceed onto 111th Street. Schwedler then saw one of these two men enter the area of the New Green Day recycling center. Ultimately, Rashawn was found hiding in a car inside a shipping container at the recycling center. Schwedler then specifically identified Rashawn as one of the two men he had seen leaving Ashe's backyard.
Because there was overwhelming evidence Rashawn had been one of the burglars, completely apart from the evidence he was Meseao's brother, Rashawn could not have been prejudiced by the alleged Miranda violation.
4. Flight instruction.
Defendant Howard contends the trial court erred by failing to direct the jury that the standard flight instruction (CALCRIM No. 372), although properly given with regard to the other three defendants, did not apply to him. This claim is meritless.
"In general, a flight instruction 'is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.' [Citation.] ' "[F]light requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested." ' [Citation.]" (People v. Bradford (1997) 14 Cal.4th 1005, 1055.) "A flight instruction is proper whenever evidence of the circumstances of defendant's departure from the crime scene . . . logically permits an inference that his movement was motivated by guilty knowledge. [Citations.]" (People v. Turner (1990) 50 Cal.3d 668, 694.)
Here, the jury was instructed: "If a defendant fled or tried to flee immediately after a crime was committed or after he was accused of committing a crime, that conduct may show that he was aware of his guilt. [¶] If you conclude that a defendant fled or tried to flee, it's up to you to decide the meaning and importance of that conduct; however, evidence that a defendant fled or tried to flee cannot prove guilt by itself."
There were grounds for giving a flight instruction with regard to Howard because there was evidence he left the crime scene to avoid capture when the helicopter arrived.
Howard acknowledges Williams testified she saw two men leave from the front porch area of Ashe's house and walk away at a brisk pace, but he argues this evidence was inconsistent with Officer Schwedler's description of their pace as normal. However, the instruction properly left it to the jury to determine whether there was sufficient evidence of flight. (See People v. Visciotti (1992) 2 Cal.4th 1, 61 [flight instruction does not assume flight was established, but leaves that factual determination and its significance to the jury].)
Schwedler testified that "[a]s soon as we arrived at the location" he saw two men "exiting from under the porch area at the front of the house." When Williams was asked, "And after you heard the helicopter, what did you notice next happen?", she testified that she saw two people leaving Ashe's property. (Italics added.) Hence, there was evidence showing Howard fled from Ashe's house because he heard the helicopter overhead and he was trying to avoid being seen or arrested. As the Attorney General argues, Howard "was not merely walking down the street. He was leaving the property where a burglary had just been committed, at the time a police helicopter was hovering above. Under these circumstances, the flight instruction was applicable." We agree.
5. Refusing to strike prior serious felony conviction.
Meseao contends the trial court abused its discretion by refusing to dismiss, under the authority of People v. Superior Court (Romero) (1996) 13 Cal.4th 497, his prior serious felony conviction for Three Strikes purposes. This claim is meritless.
"In [People v. Williams (1998) 17 Cal.4th 148], we considered the scope of review applicable to abuse-of-discretion claims of this sort. We described the factors that a trial court should consider when exercising its section 1385 discretion in a Three Strikes case, and we stated that a reviewing court should consider those same factors. [Citation.] Specifically, 'the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part . . . .' [Citation.] We noted, however, that appellate review of a trial court's section 1385 decision is not de novo. We said, '[T]he superior court's order [i]s subject to review for abuse of discretion. This standard is deferential. [Citations.] But it is not empty. Although variously phrased in various decisions [citation], it asks in substance whether the ruling in question "falls outside the bounds of reason" under the applicable law and the relevant facts [citations].' [Citation.]" (People v. Garcia (1999) 20 Cal.4th 490, 503.)
"[A] trial court's refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion." (People v. Carmony (2004) 33 Cal.4th 367, 375.) "In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ' "[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." ' [Citations.] Second, a ' "decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.' " ' [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at p. 376-377.)
Meseao does not point to anything showing the trial court was unaware of its discretion to strike the prior, or that it decided not to do so for some improper or capricious reason. Indeed, he acknowledges the trial court explicitly made the point that a person previously convicted of residential burglary who commits the same offense again is within the spirit of the Three Strikes law.
The trial court did not err by denying Meseao's Romero motion.
6. Imposition of upper burglary term on Meseao.
Meseao contends the trial court abused its discretion by imposing the upper term for his burglary conviction. This claim is meritless.
"[T]he trial court enjoys broad discretion in making its sentencing choices, and these choices will be affirmed unless there is a clear showing that the trial court's actions were arbitrary or irrational." (People v. Golliver (1990) 219 Cal.App.3d 1612, 1616.) Pursuant to California Rules of Court, rule 4.421(b)(2), one of the "[f]actors relating to the defendant" upon which the trial court can rely to impose an upper term is: "The defendant's prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness[.]" (Italics added.)
It appears from the record the trial court took into account Meseao's rough childhood and his relative youth, but determined these factors were outweighed by his record of multiple theft-related offenses. Meseao's prior criminal history includes the following: a 2003 sustained juvenile petition for unlawful driving or taking a vehicle (Veh. Code, § 10851), which resulted in a camp community placement; a 2004 conviction for first degree burglary (§ 459), which resulted in probation conditioned on a year in jail; and, a 2005 conviction for unlawful driving or taking a vehicle (Veh. Code, § 10851), which resulted in a 32-month prison term.
At sentencing, the trial court relied on Meseao's numerous theft-related prior offenses when it imposed the upper term: "Well, this is not an unusual case. It's a presumptive state-prison case because of the first degree burglary, and as I said he's done that before and has another, if you will, theft-related 10851 kind of case and as a juvenile he had a sustained petition, so he is not suitable for probation. . . . [¶] I have considered [defense counsel's] fine arguments and thorough arguments and the paperwork was well done as to his tough upbringing and his youth. The trouble is those are clearly outweighed by a couple of things. I'm not considering the strike in my analysis, but I am considering the fact that he was placed in camp for a 10851 in 2003 and was convicted of the 10851 in 2005 and went to prison on that. Those are all factors in aggravation which I'm going to use in determining that he does deserve six years which is the high term."
" 'Sentencing courts have wide discretion in weighing aggravating and mitigating factors [citations], and may balance them against each other in "qualitative as well as quantitative terms" . . . We must therefore affirm unless there is a clear showing the sentence choice was arbitrary or irrational.' [Citation.]" (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) "[T]he finding of even one factor in aggravation is sufficient to justify the upper term." (People v. Steele (2000) 83 Cal.App.4th 212, 226.) "A fact is aggravating if it makes defendant's conduct distinctively worse than it would otherwise have been." (People v. Zamarron (1994) 30 Cal.App.4th 865, 872.)
The trial court did not abuse its discretion by imposing an upper term sentence on Meseao.
7. Incorrect sentencing on prior prison term findings.
Meseao contends the trial court impermissibly imposed and stayed a one-year sentence on the prior prison term enhancement finding (§ 667.5, subd. (b)). The Attorney General properly concedes the error.
Trial courts must either impose sentence enhancements or strike them, but cannot simply stay them. "The failure to impose or strike an enhancement is a legally unauthorized sentence subject to correction for the first time on appeal. [Citations.]" (People v. Bradley (1998) 64 Cal.App.4th 386, 391 [regarding prior prison term enhancement]; accord People v. Flores (2005) 129 Cal.App.4th 174, 187-188 [§ 186.22, subd. (b)(1), gang enhancement must be either stricken or imposed; it cannot simply be stayed].) "Once the prior prison term is found true within the meaning of section 667.5(b), the trial court may not stay the one-year enhancement, which is mandatory unless stricken." (People v. Langston (2004) 33 Cal.4th 1237, 1241.)
Here, the trial court said punishment on the section 667.5 enhancement would be "stayed and not imposed because I've used that as an aggravating factor in addition to the other aggravating factor that outweighed your youth and tough upbringing." The Attorney General asserts the judgment "should be modified to strike the section 667.5, subdivision (b) enhancement, as the trial court expressed its intent that no additional time be added to his sentence under this enhancement." We agree.
DISPOSITION
Meseao Collins's sentence is modified by striking the prior prison term enhancement finding (§ 667.5, subd. (b)). In all other respects, the judgments as to all four defendants in this case are affirmed. The clerk of the superior court is directed to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment for Meseao Collins.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P.J
We concur:
CROSKEY, J.
KITCHING, J.