People v. Dawkins
| Citation | 179 Cal.Rptr.3d 101,230 Cal.App.4th 991 |
| Decision Date | 20 October 2014 |
| Docket Number | B245611 |
| Court | California Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Rodney Lashawn DAWKINS, Defendant and Appellant. |
Akin Gump Strauss Hauer & Feld, Los Angeles, and Katharine J. Galston, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Chung Mar and Jessica C. Owen, Deputy Attorneys General, for Plaintiff and Respondent.
Rodney Lashawn Dawkins appeals from the judgment after a jury trial in which he was convicted of first degree burglary. ( Pen.Code, § 459.) After the jury returned its verdict, appellant admitted he had a prior serious felony conviction that also constituted a strike within the meaning of the Three Strikes law ( Pen.Code, §§ 667, subds. (a) - (i), 1170.12, subds. (a) - (d) ) and he had served a prior separate prison term for a felony ( Pen.Code, § 667.5, subd. (b) ).
At sentencing, the trial court denied appellant's motion pursuant to People v. Superior Court (Romero ) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628 to sentence him as if he had no prior strike conviction. It sentenced him to an aggregate term in state prison of 14 years, consisting of a doubled middle term of four years, or eight years, enhanced by five years for the prior serious felony conviction and by one year for having served a prior separate prison term.1
Appellant contends the audio recording of the 911 call was inadmissible in evidence as it was not properly authenticated.
We view the evidence in the light most favorable to the judgment. ( People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 26 Cal.Rptr.2d 23, 864 P.2d 103.)
On June 15, 2012, Olivia Flores lived with her husband and children in an upstairs apartment, No. 7, at 1020 108th Street in Los Angeles County. About 2:00 p.m. that day, she locked her apartment and left home to go to the laundromat. She gave no one permission to break open the only door to her apartment, an interior front wooden door and an exterior security screen. Shortly after 5:00 p.m., Flores's sister, another resident of the same apartment complex, telephoned Flores and instructed her to return home. Flores did so.
In the meantime, about 5:00 p.m., an anonymous caller telephoned the local 911 operator to report a burglary in progress at the apartment house next door and to the west of her 1028 108th Street residence. Los Angeles County Deputy Sheriffs Zuniga and Dan Ramirez (Deputy Ramirez), who were in uniform, responded immediately and during the 911 call in their marked police vehicle. As the deputies approached the apartment complex, they had their flashing multicolored lights on and their siren was operating.
Deputy Ramirez testified the complex in question was a two-story apartment building. The apartment doors all faced one way. Apartment No. 7 was on the second floor. The one outside hallway for gaining access to the second floor apartments had a staircase at each end, front and rear, and the staircases were the exclusive means for reaching the second floor apartments. The deputies entered the complex using the front staircase. They found Flores's doors ajar and damage to the wooden door indicating there may have been a forced entry. There was no one inside the apartment. The deputies returned curbside, again departing from the second floor by using the front staircase. Residents started emerging from their apartments to see what was going on.
The deputies canvassed the area, looking for the anonymous 911 caller. Flores approached the deputies and identified herself as the occupant of apartment No. 7. According to Deputy Ramirez, at the same time, appellant walked out to the sidewalk from the area alongside the apartment complex and inside the fencing surrounding the complex. His demeanor was nonchalant.
Deputy Ramirez testified that the complex had a rear yard, but the only reasonable access to the rear of the complex is the walkway that runs to the back of the complex. The complex's rear yard is surrounded by tall fencing, most of which is topped with barbed wire, making an escape out the rear of the complex through its rear yard difficult at best. The front of the complex is also gated.
Appellant was wearing dark jeans and a gray shirt. He was about 40 years old and matched the description of the suspect described to the deputies by the 911 operator. In his right hand, appellant was carrying a black duffel bag.
As appellant walked out of the rear yard, Flores spontaneously identified the black duffel bag in appellant's hand as hers. Appellant was detained, and the deputies opened the duffel bag. Flores identified its contents as belonging to her. Inside the duffel bag were about 10 items of miscellaneous women's clothing, two electronic hand-held gaming sticks and a framed photograph of a graduation certificate for Flores's daughter. There were no other African American men in the area of the apartment complex.
The deputies arrested appellant. They advised him of his Miranda rights, and he waived those rights. ( Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.) When asked whether he had entered apartment No. 7, appellant claimed he had done so to get a few things. He added, "Who gives a sh–– if I push the door open; the lady knows me." Flores denied knowing or ever having seen appellant previously.
The deputies knocked on a few doors again in an attempt to find the anonymous 911 caller but were unsuccessful.
Appellant's booking photograph, which was taken in the clothing he was wearing when arrested, was displayed to the jury. The photograph depicted him wearing a gray shirt and blue jeans. Appellant claimed his residence was located on 107th Street.
At trial, photographs of the complex and surrounding buildings, the fencing around the yard, and the front door were shown to the jury. Deputy Ramirez opined the photographs of Flores's front doors appeared to indicate that her front doors were forced open by use of a burglary tool.
Several hours after deputies had departed, Flores telephoned the sheriff's station. She reported she had found a crowbar lying on the floor of her bedroom. Deputy Ramirez opined the marks on Flores's front door were consistent with the use of that crowbar.
Deputy Ramirez testified Flores's identification of her duffel bag was spontaneous as soon as Flores saw it in appellant's hand. In Flores's testimony, she said appellant was already inside the police car and the duffel bag was sitting on the police vehicle when she saw it and identified it as hers.
At trial, the prosecution played a computer disk (CD) for the jury. It contained an audio recording of a 911 telephone call received by a sheriff's department operator at 4:45 p.m. on June 15, 2012. The call was made by a female who refused to identify herself. The caller told the operator that she was observing a suspicious man who was trying to break into an apartment in the building next door. The burglar had a knife. Then the caller reported the burglar had actually entered the apartment and had achieved entry during the last two minutes. The operator inquired about the address of the building the caller was describing, but the caller was unsure. She told the operator her address was 1028 West 108th Street. The apartment complex she was referring to was on 108th Street. It was a yellow-colored apartment complex. The particular apartment being burglarized was on its second floor. She could see the male burglar using a knife on the door then kicking the door open. The caller could not presently see the burglar. However, the burglar was an African American man wearing a gray shirt. He had a knife and a tool. The tool may have been a large kitchen knife.
At that point, the 911 operator asked the caller to stay on the line while the operator told another party the informant was calling from 1028 108th Street. The dispatcher/ 911 operator said the 911 caller had observed an ongoing burglary in apartment No. 7 of the yellow apartment complex to the west of her residence. The burglar was a "male, black, 30-40 years old, wearing gray clothing." The caller, who apparently could overhear the operator's conversation with the other party, corrected the operator, telling the operator she had seen a person wearing light gray and "also blue jeans ... I'm not sure."
The 911 caller then told the operator, she had just observed the burglar leaving apartment No. 7 with a "black bag." She could also see the lights of the arriving police vehicle.
The 911 caller indicated she was located in the rear house on the property next door to the apartment complex in question. The burglarized unit was to her west on the second floor, and the apartment complex was yellow in color.
The operator at that point was apparently speaking to who had arrived at the scene. The operator advised the deputy at the scene the 911 caller had observed the burglar enter the apartment. The operator told the caller the deputies had arrived and were entering the complex. The caller told the operator the burglar was already outside. At this juncture, the caller apparently could not see the burglar's location. She was inside her residence and did not want to go outside. The caller said she could presently see the deputies checking the apartment building.
The operator told the deputies the caller did not want to be contacted.
Before trial, the prosecutor raised the issue of the admissibility of the contents of an audio recording of the 911 call. The prosecutor anticipated defense objections of hearsay and a denial of...
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