Filed 5/19/16 P. v. Brooks CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F069309
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F13909794)
                   v.

RENARD BROOKS, JR.,                                                                      OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Fresno County. Wayne R.
Ellison, Judge.

         Victor J. Morse, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and
Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                        INTRODUCTION
       Defendant Renard Brooks, Jr., was convicted by jury of kidnapping to commit
robbery (Pen. Code, § 209, subd. (b)(1), count 1),1 kidnapping in the commission of a
carjacking (§ 209.5, subd. (a), count 2), first degree residential robbery (§ 211, count 3),
second degree robbery (§ 211, count 4), first degree residential burglary (§§ 459, 460,
subd. (a), count 5), and possession of a firearm by a felon (§ 29800, subd. (a)(1), count
6). In addition, the jury found true an enhancement allegation that defendant personally
used a firearm in the commission of counts 1 through 4 (§ 12022.53, subd. (b)).
       Defendant also admitted one prior strike conviction (§§ 667, subds. (b)-(i),
1170.12, subds. (a)-(d)), one prior serious felony conviction (§ 667, subd. (a)(1)), and
having served prior prison terms (§ 667.5, subd. (b)). He was sentenced to a prison term
of life with the possibility of parole plus 17 years.
       Defendant contends the trial court erred by admitting out-of-court witness
identifications allegedly based on unduly suggestive procedures. He claims a detective
who conducted two photographic lineups impermissibly directed the witnesses’ attention
to defendant’s photograph during the lineup. We disagree and affirm the judgment.
                          FACTS AND PROCEDURAL HISTORY
The Crime
       On October 7, 2013,2 between 7:40 a.m. and 7:45 a.m., Allison Casagrande said
goodbye to her husband Timothy Casagrande and left her home for work.3 She left
without locking her front door.
       As she walked to her car, she noticed a Black male with short black hair,
approximately six feet tall and 200 pounds, walking down the sidewalk about 60 to 65


       1All   undefined statutory references are to the Penal Code unless otherwise indicated.
       2All   dates occurred in 2013.
       3Because   Allison Casagrande and Timothy Casagrande share the same last name, we
refer to them by their first names. No disrespect is intended.

                                                 2.
feet from her home. The man, whom she later identified as defendant, was looking down
at his phone. He was wearing dark pants, a black backpack, and a gray sweatshirt.
Although he appeared out of place, Allison thought he could be a high school student, so
she proceeded to drive to work.
       Timothy testified shortly after Allison left, he was walking toward his bedroom
when he saw a man standing at the end of the hallway. The man, he later identified as
defendant, pointed a gun at him and told him to get down. Timothy briefly saw
defendant’s face before defendant hit him, knocked him to the ground, tied Timothy’s
hands behind his back, and then blindfolded him with a shirt he pulled over his head.
Timothy described the intruder as a Black male with short hair, wearing a dark sweatshirt
over a red T-shirt, blue jeans, and black and white gloves.
       Defendant asked Timothy where his guns, money, and safe were located. Timothy
told him he had some guns and jewelry inside of a closet in the home. After trying,
unsuccessfully, to elicit the combination to the safe, defendant asked where Timothy’s
watch and wedding ring were.
       Defendant moved Timothy into the garage and positioned him face down in the
backseat of Timothy’s car. He loaded the vehicle with various items from inside the
home and drove away. Timothy was still in the backseat.
       Defendant stopped to purchase gas using Timothy’s gas card, drove to another
location, and asked Timothy for his debit card and PIN (personal identification number).
Defendant continued to drive around with Timothy blindfolded in the backseat. He made
several more stops, during which time he removed from the car the items he took from
Timothy’s home. Half an hour later, defendant stopped the car, told Timothy the keys
were under the seat, instructed him to count backwards from 100, and fled on foot.
       Timothy freed himself from his restraints and asked a pedestrian for assistance.
The pedestrian called 911 and Timothy was taken by ambulance to the hospital. He
suffered a concussion, bruised ribs, and various scratches and bruises.


                                            3.
The Investigation
       Christopher Casagrande, Timothy’s son, came to his parents’ home after his father
failed to show up for a scheduled game of golf. After observing the condition of the
home and seeing blood on the carpet, he called 911 to report his father missing. Fresno
police responded to the residence shortly before 10:00 a.m.
       Around 11:00 a.m., Fresno police were notified Timothy had been located. Both
Allison and Timothy provided descriptions of the suspect to police. They also advised
police various items were missing from their home, including several shotguns, some
electronics, jewelry, and men’s suits.
       Timothy’s gas card showed an unauthorized transaction for gas purchased at a
Fresno service station on the day of the incident. His checking account showed an ATM
(automated teller machine) debit withdrawal of $300 on this same date. Video
surveillance from the ATM where the withdrawal occurred depicted an individual—
matching the description of the suspect provided by Allison and Timothy—withdrawing
money from the couple’s checking account.
       On October 7th, a still photograph taken from the surveillance video was sent to
the media and shown on the local news. That evening, Lacandis Judge and Janay
Maynard, friends of defendant’s, saw a picture of the suspect on the news and thought the
suspect resembled defendant. When Maynard confronted defendant, he denied
culpability. He claimed he was working at a warehouse when the incident occurred, but
he could not provide proof of his employment. Defendant later told Maynard and Judge
he spoke with his parole agent to clear up the incident and claimed his parole officer
stated the suspect had been apprehended.
       On October 8th, Detective Benjamin Barnes received a phone call from Parole
Agent Richard Cazares. Defendant had contacted Cazares and stated he wanted speak to
him and the detectives handling the case because defendant’s family members saw a




                                            4.
photograph of the suspect on the news and remarked that defendant resembled the
suspect. Barnes met with defendant and his parole officer later that day.
       Defendant told Barnes he was visiting with family, and he and his family had
stayed at the apartment of his stepsister, Tina Collier, on the night of October 6th.
Defendant stated he was at Collier’s apartment all day on October 7th, and Collier would
confirm his rendition of events.
       On October 8th, detectives interviewed Collier. She initially told detectives
defendant had slept at her house on the night of October 6th, and she saw him sleeping on
her couch the following morning when she left to take her daughter to school. Collier
stated she did not see defendant again until 3:30 p.m. later that day, when she saw him on
the bus. When she saw defendant, he was wearing a red T-shirt and jeans.
       When detectives interviewed Collier again on October 14th, she told them she was
not sure whom she saw on her couch the morning of October 7th.
       Video surveillance footage from the Fresno city bus showed defendant getting on
the bus at a stop next to Collier’s apartment at approximately 6:51 a.m. on October 7th.
The video showed defendant exiting the bus at approximately 7:35 a.m. at a location two
blocks away from the Casagrande home. At 11:03 a.m., additional video surveillance
showed defendant entering a bus near Florence and Martin Luther King Boulevard.
Defendant released Timothy in the area of Martin Luther King Boulevard and Florence
Avenue around 10:45 a.m.
       Defendant exited the bus in downtown Fresno at 11:17 a.m., where he boarded
another bus two minutes later. Around 20 or 30 minutes later, he ended his trip near his
brother’s apartment in northwest Fresno. Defendant was wearing a black hooded
sweatshirt and jeans in all of the video footage. The third video showed defendant
wearing a red T-shirt under his sweatshirt. Fingerprints found on a bus ticket in
Timothy’s car were determined to be consistent with defendant’s fingerprints.




                                             5.
       Defendant was arrested on October 14th. At the time of his arrest, he had a Seiko
watch in his left front pants pocket and a gold ring hanging from a gold chain around his
neck. Timothy identified the watch and the ring as his. That same day, police searched
Lacandis Judge’s apartment and discovered a black backpack as well as mail with
defendant’s name on it.
       During police questioning, defendant claimed he left Collier’s apartment on the
morning of the incident to apply a tattoo. When questioned why he was wearing the
victim’s ring, defendant declined to answer detectives. He claimed he had Timothy’s
watch because he had received it as payment for a tattoo he had done.
Photographic Lineups
       On October 11th, Detective Barnes conducted two separate six-pack photograph
lineups of potential suspects. Timothy and Allison were kept separate during the
procedures. Prior to displaying any photographs, Barnes admonished each witness the
photographs may or may not depict the person who committed the instant crimes, and to
indicate, after looking at all the photographs, whether the person who committed the
crimes could be identified.
       The following facts are taken from audio recordings and transcripts of the
procedures.
       Timothy Casagrande
       As Barnes laid down each photograph, Timothy made comments about the
similarities and differences between his attacker and the person depicted in each
photograph. Defendant’s photograph was second in the photo array.
       During the procedure, Barnes asked Timothy to describe defendant’s photograph.
Timothy continued to comment on the photos, without responding to Barnes. Barnes
asked Timothy several times whether defendant’s photograph resembled Timothy’s
attacker more than the other photographs. Timothy did not answer Barnes. He continued
to remark on the similarities and differences as to each photograph. Barnes told him to


                                            6.
sign the back of defendant’s photograph, agreeing his photograph most resembled the
suspect.
       Allison Casagrande
       Barnes laid out only two of the six photographs before Allison paused. Barnes
asked her whether the man depicted in the second photograph was the man she saw
outside of her home on the morning of the incident. Allison replied affirmatively.
Barnes laid out the remaining four photographs, describing each photograph as he did.
Once all of the photographs were displayed, Allison stated the second photograph looked
like the suspect. Barnes asked Allison to sign the back of defendant’s photograph.
Motion in Limine
       Defense counsel filed a motion in limine, seeking to exclude Timothy’s and
Allison’s out-of-court identifications of defendant from the six-pack photograph array.
Counsel argued the identification procedure used was unduly suggestive and the
identifications were unreliable.4 He claimed Barnes repeatedly directed the witnesses’
attention to defendant’s photograph by asking Allison whether defendant was the man
she saw outside of her home on the day of the incident and by asking Timothy specific
questions about defendant’s photograph, repeatedly directing his attention to defendant’s
photograph.
       At the hearing on defendant’s in limine motion, Barnes testified he prepared a
lineup consisting of six photographs depicting individuals of the same age, who had the
same skin coloring and facial features. In preparing the lineup, Barnes selected subjects
based on Timothy and Allison’s description of the suspect, as well as the ATM and bus
video surveillance footage taken of the suspect.



       4Defense counsel   also argued the admonition given pursuant to the lineup was improper,
and the photographs chosen were not sufficiently neutral because they did not contain an array of
people of a similar complexion, physical features, and build. On appeal, defendant concedes the
admonition was, in fact, proper. He also raises no challenge to the array of photographs selected.

                                                7.
      When Barnes showed the photographs to Timothy, he remarked on the similarities
and differences of each man in the photos compared to his memory of the attacker.
When all of the photographs were displayed, Timothy picked up defendant’s photograph
and kept focusing on it. Defendant’s photograph was the only one Barnes asked Timothy
to describe because Timothy was focusing on it.
      When Barnes showed the first two photographs to Allison, she became visibly
upset and began to cry. She pointed at defendant’s photograph, and in response Barnes
asked her whether the man in the photograph was the man she saw outside her home.
She responded that it was. After Barnes showed Allison the rest of the photographs, she
identified defendant again.
      The trial court denied defendant’s motion, holding Barnes was reacting to the
witnesses’ behavior rather than emphasizing defendant’s photograph. With respect to
Allison, the court explained she had stopped Barnes when she saw defendant’s
photograph, before looking at the rest of the photographs. This behavior did not imply a
suggestive lineup. With respect to Timothy, although the audio recordings alone could
suggest Barnes was directing Timothy’s attention to defendant’s photograph, Barnes’s
testimony made clear he was responding to Timothy’s behavior. Moreover, Timothy
never identified defendant as the person who committed the crime, he merely identified
defendant as the person who most resembled the suspect within the lineup.
      At trial, Timothy identified defendant as the intruder, and Allison identified
defendant as the man she observed outside her home.
                                     DISCUSSION
      Defendant contends the witnesses’ identification of him pursuant to the
photographic lineups were the result of unduly suggestive procedures and the
identifications were unreliable. He alleges Barnes repeatedly directed Timothy’s
attention to defendant’s photograph, and Barnes asked Allison whether defendant was the
suspect after she had the opportunity to view only two of the six photographs in the


                                            8.
lineup array. We conclude the lineup procedures were not unduly suggestive and, in any
event, we find no prejudice.
       A defendant challenging the reliability of a lineup procedure bears the burden of
demonstrating the procedure employed was (1) unduly suggestive and unnecessary; and
(2) the identification was unreliable, taking into account the witness’s opportunity to
observe the criminal during the crime; the witness’s degree of attention; the accuracy of
the witness’s prior description of the criminal; the level of certainty demonstrated at the
time of the identification, and the time between the crime and the identification. (People
v. Ochoa (1998) 19 Cal.4th 353, 412.) “‘If, and only if, the answer to the first question is
yes and the answer to the second is no, is the identification constitutionally unreliable.’”
(Ibid.) However, if the procedure is not impermissibly suggestive, our inquiry ends
because there has been no due process violation. (Ibid.)
       We review de novo a trial court’s ruling on whether an identification is
constitutionally unreliable. (People v. Kennedy (2005) 36 Cal.4th 595, 609, disapproved
on other grounds in People v. Williams (2010) 49 Cal.4th 405, 459.) Upon independent
review of the record, we conclude the photographic lineup procedures challenged here
were not unduly suggestive.
Timothy
       We initially note the audio recording of Timothy’s lineup fails to resolve what
occurred during the photographic lineup because it is difficult to reference which
photographs he is referring to based only on his statements. From the recordings alone, it
would be permissible to infer Barnes either repeatedly directed Timothy’s attention to
defendant’s photograph, as defendant suggests, or that Barnes was asking questions about
defendant’s photograph in response to Timothy’s behavior, as the Attorney General
suggests.
       Barnes’s testimony, however, supplies us with a “first person vantage.” Barnes
testified he asked Timothy about defendant’s photograph because Timothy kept focusing


                                              9.
on defendant’s photograph. After Timothy picked up defendant’s photograph, Barnes
asked him whether it matched the suspect more than the other photographs. From his
testimony, it is clear Barnes was responding to Timothy’s behavior rather than directing
Timothy’s attention to or otherwise emphasizing defendant’s photograph. In holding the
lineup procedures used by Barnes were not unduly suggestive, the trial court credited
Barnes’s testimony. We defer to the trial court’s determination of the credibility of
witnesses (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1463) and independently
observe Barnes’s testimony is, indeed, consistent with the audio recordings.
         Because we conclude the lineup procedure was not unduly suggestive, we need
not reach defendant’s argument that Timothy’s identification of defendant was unreliable
based on the totality of the circumstances. “If we find that a challenged procedure is not
impermissibly suggestive, our inquiry into the due process claim ends.” (United States v.
Bagley (9th Cir. 1985) 772 F.2d 482, 492.) We reject defendant’s argument that
Timothy’s lineup procedure was unduly suggestive.
Allison
         Barnes testified Allison began to cry after he showed her the first two photographs
in the lineup. When she pointed to the second photograph, defendant’s photograph,
Barnes asked her, “is that him?” She responded affirmatively. Barnes proceeded to show
her the rest of the photographs and once they were laid out, Allison identified defendant
again.
         Even without Barnes’s testimony, it is readily apparent from the audio recording
Allison almost immediately recognized defendant as the man she saw outside of her
home on the morning of the incident, and Barnes had only responded to her reaction.
Barnes’s testimony bolsters this conclusion because, as he stated, Allison pointed at
defendant’s photograph before he finished displaying the remaining four photographs in
the lineup array. There is simply no evidence Barnes used impermissibly suggestive
procedures in conducting her photographic lineup.


                                             10.
       Although we find no due process violation, we note even if we were to find the
lineup procedures were unfairly conducted, defendant cannot show prejudice from the
trial court’s failure to exclude the witnesses’ identifications. Under Chapman v.
California (1967) 386 U.S. 18, 24, the People must prove beyond a reasonable doubt the
error complained of did not contribute to the guilty verdict. “[T]he appropriate inquiry is
‘not whether, in a trial that occurred without the error, a guilty verdict would surely have
been rendered, but whether the guilty verdict actually rendered in this trial was surely
unattributable to the error.’” (People v. Quartermain (1997) 16 Cal.4th 600, 621.)
       Even under Chapman review, defendant would not be entitled to reversal.
Defendant’s fingerprints were consistent with fingerprints on a bus ticket found inside
Timothy’s vehicle, Timothy’s stolen wedding ring and watch were found on defendant’s
person when defendant was arrested, and a man resembling defendant was depicted on
ATM surveillance video withdrawing money from Timothy’s checking account on the
morning of the incident. A man identified as defendant was also depicted on bus
surveillance footage traveling to a location only blocks away from the Casagrande home,
just prior to when the incident began, and he was depicted traveling from the location
Timothy was eventually dropped off at, shortly after the incident concluded. Further,
Tina Collier, defendant’s alibi witness, recanted her claim defendant was asleep on her
couch when she left to take her daughter to school the morning of the incident.
       In light of the strong evidence presented against defendant, reversal of his
conviction would not be warranted even if the identifications were suggestive. Defendant
has failed to meet his burden of establishing unduly suggestive lineup procedures
occurred. We conclude the lineup procedures employed by Barnes were not “‘“‘so
impermissibly suggestive as to give rise to a very substantial likelihood of irreparable
misidentification.’”’” (People v. Brandon (1995) 32 Cal.App.4th 1033, 1051.) We,
therefore, reject defendant’s claims.




                                             11.
                                 DISPOSITION
     The judgment is affirmed.

                                               ___________________________
                                                                   PEÑA, J.
WE CONCUR:


 __________________________
GOMES, Acting P.J.


 __________________________
POOCHIGIAN, J.




                                     12.
