Filed 12/29/15 P. v. Brooks CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                        (Placer)
                                                            ----



THE PEOPLE,

                   Plaintiff and Respondent,                                                 C078875

         v.                                                                      (Super. Ct. No. 62127722)

JOSEPH RAY BROOKS,

                   Defendant and Appellant.




         A jury found defendant Joseph Ray Brooks guilty of first degree residential
burglary (Pen. Code, § 459)1 and found true that a person, not his accomplice, was
present during the burglary (§ 667.5, subd. (c)(21)). Defendant admitted two prior strike
convictions. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) The trial court denied
defendant’s motion to dismiss the prior strike allegations and sentenced defendant to an
aggregate term of 35 years to life in state prison.




1   Undesignated statutory references are to the Penal Code.

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       Defendant now contends (1) the People failed to present sufficient evidence to
convict him of burglary; (2) defendant's trial counsel was ineffective in failing to object
to certain evidence; and (3) the trial court abused its discretion in refusing to dismiss his
prior strike convictions. Finding none of defendant’s claims meritorious, we will affirm
the judgment.
                                      BACKGROUND
       In January 2014, Valerie Retallack was living in a ground floor apartment in the
rear of an apartment complex in Roseville. On or about January 10, 2014, Retallack saw
an African American man, later identified as defendant, walking around the apartment
complex “like he was looking for something.” Retallack thought he might be lost. She
watched him get into “a burnt orange SUV-type vehicle” and drive away.
       A few days later, Retallack was home alone in the morning when her dog began
to bark. She looked out of the dining room window and saw defendant, wearing a blue
sweat suit with white stripes on the sleeves and pants, approximately 25 to 50 feet away
near the pool and tennis courts area. Retallack was unsure of his height, but saw that he
had a moustache and was bald. Retallack also saw the same burnt orange SUV parked
directly in front of her apartment, license plate “MEUHIM.”
       Retallack watched defendant and saw that he was “looking around like he was
looking for something.” Unconcerned, Retallack went into her bathroom to brush her
teeth. While brushing her teeth, Retallack walked out of her bathroom and saw defendant
standing in the hallway of her apartment. She knew the front door and the sliding glass
door to the living room were both locked, but she was not sure about the sliding glass
door in the master bedroom. Retallack got her cell phone from the dining room table and
called 911. When defendant saw Retallack, he went into the master bedroom, locked the
bedroom door, and left through the sliding glass door.
       Roseville Police Officer Jerry Wernli soon arrived at Retallack’s apartment.
Wernli checked the registration information for a car with the license plate “MEUHIM.”

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The car was registered to Gretchen Monique and defendant. Using that information,
Wernli created a photo lineup on his computer. The photo lineup consisted of six
individuals, one of whom was defendant. Retallack looked at the lineup and identified
defendant as the man she saw in her apartment.
       Around 10:00 a.m. that same morning, Leah Mansfield was home alone in her
apartment in Citrus Heights. Mansfield’s apartment is upstairs at the “very back” of the
complex. Mansfield looked out her kitchen window and saw a man, later identified as
defendant, standing at the door. She did not open her door; she watched defendant go
down the stairs. Then she saw defendant “hopping the fence below [her] apartment,”
giving him access to the balcony off of her dining room. She watched defendant look to
his left and his right, then put on black leather gloves. Terrified, Mansfield called the
police. She also grabbed a fake, plastic gun to intimidate defendant.
       Approximately 30 minutes later, police officers drove Mansfield to the
intersection at Sunrise Boulevard and Antelope Road. There, she saw defendant “with
multiple police officers.” Mansfield told the officers she was “very confident” that
defendant was the man she had seen on the balcony of her apartment.
       Another police officer drove Retallack to that same intersection. Retallack sat in
the patrol car while defendant got out of another patrol car and stood next to it. Retallack
again identified defendant as the man she saw in her apartment. Defendant was then
arrested and booked into county jail.
       In Placer County Superior Court case No. 62-127722, defendant was charged with
first degree residential burglary. (§§ 459, 462, subd. (a).) Retallack was identified as his
victim. The People further alleged that during the commission of the burglary, a person
not defendant’s accomplice was in the residence (§ 667.5, subd. (c)(21)), and defendant
was twice previously convicted of strike offenses (§§ 667, subds. (b)-(i), 1170.12,




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subds. (a)-(d)). (CT 1-3) Defendant pleaded not guilty to the charge and denied the
sentencing enhancements.2
       At trial, defendant presented the expert testimony of Dr. Robert Shomer, a forensic
psychologist, who testified about the unreliability of eyewitness identification,
particularly “cross-racial identification.” Dr. Shomer explained how stress, lighting, and
proximity to the perpetrator can decrease the reliability of an eyewitness identification.
He opined that in-court identifications are tainted by prior lineup identifications, physical
lineups are more reliable than photographic ones, and a lineup should be administered by
a neutral party, not the investigating officer.
       Dr. Shomer also opined that the photo lineup shown to Retallack was particularly
problematic. He noted two of the men in the lineup were obviously older than the others
and the variation in hairstyles, including the lack of hair on some of the men in the
lineup, was “another factor to look at.” Dr. Shomer also said it was “unfortunate” that
the photo lineup included a label at the top that said, “Sacramento Sheriff’s Known
Person Finder.” The lineup should be “balanced,” he said, and this label could
“communicate the notion that these are all bad guys, . . . people who have come to the
attention of [the] Sacramento Sheriff’s Department.”
       In addition, Dr. Shomer said displaying all six photographs at once results in a
“compounding" of errors. He said "if the witness was only able to look at one
photograph at a time to test the appearance of that photograph against their memory, you
get far more accurate results.”
       In closing argument, defense counsel argued that Retallack’s identification of
defendant as the man she saw in her apartment was unreliable. He also argued that even



2 In a separate case, Sacramento County Superior Court case No. 14F00822, defendant
was also charged with first degree burglary. (§ 459) Mansfield was identified as his
victim in that case.

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if it was defendant, there was no evidence he entered the apartment with the intent
to steal anything. The jury was not persuaded and found defendant guilty as charged.
They also found true the allegation that a person not defendant’s accomplice was present
during the burglary.
       Defendant later admitted the prior strike allegations were true but moved to
dismiss one or both of the prior convictions. The People opposed defendant’s motion
and, following a hearing, the trial court denied the motion. Additional facts relating
to defendant’s motion to dismiss the prior strike allegations are included in the relevant
discussion portion of this opinion. The trial court sentenced defendant to an aggregate
term of 35 years to life, awarded him 503 days of presentence credit, and ordered him
to pay various fines and fees.
                                      DISCUSSION
                                              I
       Defendant contends the People failed to present sufficient evidence to convict him
of burglary. Specifically, he claims the evidence was insufficient to establish his intent
to commit a theft when entering Retallack’s apartment.
       We review claims concerning the sufficiency of the evidence “in the light most
favorable to [the People] and presume in support of the judgment the existence of every
fact the trier could reasonably deduce from the evidence.” (People v. Lewis (1990)
50 Cal.3d 262, 277.) On appeal, we must affirm the conviction as long as a rational trier
of fact could have found guilt based on the evidence and the inferences reasonably drawn
therefrom. (People v. Millwee (1998) 18 Cal.4th 96, 132.)
       To sustain a burglary conviction, we ask whether the jury could reasonably
determine that the defendant possessed the intent to commit a felony at the time of
entering the dwelling. (See People v. Gbadebo-Soda (1995) 38 Cal.App.4th 160, 166;
§ 459 [burglary elements include “intent to commit grand or petit larceny or any
felony”].) A defendant’s intent, however, is rarely susceptible of direct proof and must

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usually be inferred from all of the facts and circumstances disclosed by the evidence.
When the evidence justifies a reasonable inference of felonious intent, the verdict will not
be disturbed on appeal. (People v. Holt (1997) 15 Cal.4th 619, 669-670; People v. Cain
(1995) 10 Cal.4th 1, 47.)
       The facts here justify the jury’s inference that defendant entered Retallack’s
apartment with the intent to steal from her. A few days before he broke into Retallack’s
home, and again the morning of the break in, Retallack saw defendant wandering near her
apartment building “looking for something.” The jury could reasonably infer from that
evidence that defendant was “casing” Retallack’s apartment. Furthermore, defendant
entered Retallack’s apartment through a back door, did not announce his presence, and
offered no explanation for being there. Then, when defendant saw Retallack coming out
of the bathroom, he fled through the sliding glass door in the master bedroom. The facts
thus support the jury’s conclusion that defendant intended to steal from Retallack.
       That there was no evidence defendant actually removed anything from Retallack’s
apartment does not alter this conclusion. “Burglarious intent can reasonably be inferred
from an unlawful entry alone. [Citation.] Even if no crime be committed after the entry,
circumstances such as flight after being hailed by an occupant of the building . . . without
reasonable explanation of the entry, will warrant the conclusion by a jury that the entry
was made with the intention to commit theft.” (People v. Jordan (1962) 204 Cal.App.2d
782, 786-787; People v. Martin (1969) 275 Cal.App.2d 334, 339 [same]; see People v.
Jones (1962) 211 Cal.App.2d 63, 71-72 [“Burglarious entry may be inferred from the fact
that appellant unlawfully and forcibly entered the home of another”]; People v. Fitch
(1946) 73 Cal.App.2d 825, 827 [intent to commit theft “could be inferred from the
forcible and unlawful entry alone”].)
       Nor is the conclusion altered because, as defendant argues, the facts might also
suggest defendant actually intended to sexually assault Retallack when he broke into her
apartment, not steal from her. As an initial matter, if he intended to sexually assault

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Retallack, it is unlikely he would have fled when he saw her.3 Additionally, we must
affirm the judgment if the circumstances reasonably justify the jury’s finding of guilt
regardless of whether we believe the circumstances might also reasonably be reconciled
with a contrary finding. (People v. Thomas (1992) 2 Cal.4th 489, 514.)
       Accordingly, defendant’s unlawful entry here warranted a conclusion that he
intended to steal from Retallack. There is sufficient evidence to support the burglary
conviction.
                                               II
       Defendant next contends his trial counsel was ineffective in failing to object
to certain evidence.
       Defendant begins his argument by asserting that the trial court erred in admitting
an unredacted copy of the photo lineup shown to Retallack, as well as testimony related
to how the lineup was created. According to defendant, because the photo lineup
included a notation that it was created using a computer program called “Sacramento
County Known Persons Finder,” the lineup itself suggested he had a criminal past.
He further claims the testimony of Officer Wernli describing how the lineup was created
from a database that included arrest records and records from the Department of Motor
Vehicles served only to further suggest defendant was a known criminal. Because
defendant forfeited these claims of error by failing to object to the evidence at trial
(Evid. Code, § 353; People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1214), he contends
trial counsel was ineffective for failing to raise the objection.
       “ ‘In order to establish a claim of ineffective assistance of counsel, defendant bears
the burden of demonstrating, first, that counsel’s performance was deficient because it



3 If simply “peeping” were his goal, as defendant suggests in his reply brief, it is also
unlikely he would have entered the apartment at all. He could “peep” on Retallack from
outside the apartment.

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“fell below an objective standard of reasonableness [¶] . . . under prevailing professional
norms.” [Citations.] Unless a defendant establishes the contrary, we shall presume that
“counsel’s performance fell within the wide range of professional competence and that
counsel’s actions and inactions can be explained as a matter of sound trial strategy.”
[Citation.] If the record “sheds no light on why counsel acted or failed to act in the
manner challenged,” an appellate claim of ineffective assistance of counsel must be
rejected “unless counsel was asked for an explanation and failed to provide one, or unless
there simply could be no satisfactory explanation.” [Citations.] If a defendant meets the
burden of establishing that counsel’s performance was deficient, he or she also must
show that counsel’s deficiencies resulted in prejudice, that is, a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” [Citation.]’ [Citation.]” (People v. Lopez (2008) 42 Cal.4th 960, 966.)
       Here, we can discern a strategic reason for trial counsel’s decision not to object to
the unredacted photo lineup or Wernli’s testimony. One of the defenses asserted by trial
counsel was that defendant was not the man Retallack saw in her apartment. In support
of that defense, defendant presented expert testimony regarding the unreliability of
identifications, particularly those made by looking at a photo lineup. The unredacted
photo lineup and Wernli’s testimony explaining its creation supported defendant’s theory
that the lineup was flawed and, therefore, Retallack’s identification of defendant was
unreliable.
       Defendant has not established that trial counsel’s performance was deficient.
Accordingly, we need not address whether defendant was prejudiced by counsel’s failure
to object.
                                             III
       In addition, defendant contends the trial court abused its discretion in refusing
to dismiss his prior strike convictions. Defendant’s request in the trial court was made
pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

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       “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.’ ” ’
[Citations.] 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.” (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
       A prior serious felony conviction can be dismissed only if the defendant falls
“outside the . . . spirit” of the three strikes law. (People v. Williams (1998) 17 Cal.4th
148, 161.) In making that decision, a court “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, and hence
should be treated as though he had not previously been convicted of one or more serious
and/or violent felonies.” (Ibid.)
       In the trial court, the People opposed defendant’s request to dismiss one or both
of the prior strike allegations, pointing out his extensive criminal record. Beginning
in the 1970’s, defendant’s criminal history spanned over 40 years and resulted in 16
convictions. The People pointed out that, in addition to the prior 16 convictions, he
committed a strike offense in this case and was charged with yet another strike offense in
Sacramento County Superior Court for his conduct at Mansfield’s home. The People
pointed out that when defendant ran from Retallack’s apartment, he went to break into



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another woman’s apartment. According to the People, despite his age and professed
remorse, defendant continued to break the law.
       In support of his request, defendant argued that he committed the strike offenses
long ago, he had no recent parole violations, and he was nine years out of prison before
committing the crime for which he was convicted here. Defendant told the trial court he
was a good man; he cared about people, raised his son and stepdaughter, and was
remorseful for the crime he committed. He also argued he was not a violent person, that
he had “no violence in his record” despite his background and training in martial arts.
Many letters were sent to the trial court on defendant’s behalf, lauding his good qualities
and asking for leniency.
       The trial court acknowledged that defendant’s strike offenses were old, but
explained that the series of subsequent arrests and convictions for theft-related offenses
diminished the argument that his strike convictions were remote. The trial court also said
defendant served multiple prison terms and his crimes were primarily theft-related; and
the trial court noted the emotional impact defendant’s crime had on his victim. The trial
court determined that defendant’s current crime showed not only sophistication and
planning, but an increase in seriousness and severity. The trial court found no
justification or excuse for defendant’s crime, noting that defendant had neither a drug nor
an alcohol problem. The trial court also found defendant’s prospects were uncertain,
given that after 12 years of living crime free out of state, defendant returned to California
and resumed his criminal activity.
       The trial court weighed the foregoing factors against those it considered
mitigating. The court noted the lack of violence in defendant’s criminal history,
defendant’s family relationships (which were strong), his age (defendant was 61), and the
fact that Retallack was not physically injured and nothing was taken from her home. On
balance, the trial court found defendant was not a person who fell outside the spirit of the
three strikes law.

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       Defendant's arguments on appeal are nearly the same as those he asserted in the
trial court, but he also argues that a term of 12, 14, or 16 years, which he would have
served without the strike allegations, would have been sufficient given the nature of his
crime and his age. We do not comment on whether a shorter term would have been
sufficient. Instead, we conclude the trial court’s decision was not irrational or arbitrary.
On the contrary, the trial court took great care to consider both sides of the argument
before reaching its decision, and its decision is supported by the record. The trial court
did not abuse its discretion.
                                       DISPOSITION
       The judgment is affirmed.



                                                       /S/
                                                  Mauro, J.



We concur:



      /S/
Raye, P. J.



     /S/
Nicholson, J.




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