People v. Brooks, A110351 (Cal. App. 7/18/2007)

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THE PEOPLE, Plaintiff and Respondent, v. RONALD VIRGIL BROOKS, Defendant and Appellant.

A110351

Court of Appeals of California, First Appellate District, Division Two

July 18, 2007

NOT TO BE PUBLISHED

Appeal from the San Mateo County Super. Ct. No. SC055718.

HAERLE, J.

I. INTRODUCTION

Defendant and appellant Ronald Brooks was convicted of two counts of robbery (Pen. Code, § 212.5)¹ and one count of burglary (§ 460). The jury also found true the allegation that Brooks used a gun in the commission of these crimes. (§ 12022.53, subd. (b)).

On appeal, Brooks argues that (1) the trial court erred in denying his motion to suppress evidence obtained from a stop of the van he was riding in after the robbery; (2) his counsel was ineffective because he failed to move to exclude identification evidence; (3) the trial court erred in admitting extrajudicial statements incriminating him and, in one case, statements made by a witness at a hearing when neither he nor counsel were present; (4) the People committed error during closing argument discussions of the burden of proof; and (5) the judgment must be reversed because of Griffin error. None of these arguments has merit and we affirm the judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

Angela Asoau was living with her boyfriend, Aaron Rodrigues, on Fleetwood Drive in San Bruno on January 6, 2004, where the robbery of which Brooks was convicted took place. Rodrigues's brother, mother, and sister lived in the house along with Rodrigues's daughter, Emma.

Asoau had been working at Chuck E. Cheese and had accumulated $ 500 in cash, which she kept in a safe in the closet of the bedroom she shared with Rodrigues and his daughter. The house in which they were living on Fleetwood Drive has two stories, with most of the rooms, including her own, the kitchen and a bathroom, on the second floor.

The night of January 6, 2004, she was in the kitchen baking cookies. Rodrigues was in the bedroom with his daughter, who had just been put to bed. Asoau looked over and saw a man wearing a mask, and dressed in dark colors, holding a gun. The mask covered the man's face and forehead but not the area around his eyes or his mouth. At trial, Asoau identified Brooks as the man she saw in the kitchen that night. She had never seen Brooks before she saw him that night. The gun he was holding was "dark, black, dark." His hair was "long, not very long, but it just hung off his head like little — like little dreads."

The night of the robbery, Asoau provided the police with a description of the man who was in the kitchen that night. She said "he was tall and . . . he had on a blue jacket." She also told the officer that the man had dreadlocks, was wearing a beanie, and had on a white t-shirt. The blue jacket was puffy. Asoau identified a blue jacket shown to her by the People as the jacket she saw the man wearing that night. She also stated that a pair of blue jeans and white t-shirt she was shown "resemble[d]" the jeans and t-shirt worn by the man that night.

The man grabbed Asoau and "then came on the side of me and put the gun to my chin, to my cheek." He shoved her into the bathroom. After doing so, he asked her who was in the house, and where the money was. About half a minute or a minute later, Rodrigues came out of the bedroom and the man moved him into the bathroom with his hand. Rodrigues was mad and he started crying. The man asked where the money was and Rodrigues told him it was in the room, in a safe. He told the man to get out and that his daughter was in the bedroom. The man paced back and forth in front of the bathroom, keeping the two in that room.

About a minute later, the bedroom light came on. Asoau could hear the sounds of drawers and the closet doors being opened.

Around that time, a friend of Rodrigues came to the door of the house and knocked. The man asked Asoau who was at the door and was told it was "our friend Danny." Shortly after this conversation, "the second guy from the bedroom had ran out of the bedroom towards downstairs." The man with them in the bathroom followed right after him. She as unable to see the face of the second man and saw only that "he was short and he had dreadlocks on."

Rodrigues ran after the men and Asoau went to Rebecca Rodrigues's room and asked her to call the police. Asoau went outside and saw a big, gray van in the middle of the street. The doors closed as she saw it and the van drove away.

A police officer arrived at the house shortly afterwards. He asked Asoau to accompany him to see a van that was similar to the description she had given him. When they arrived, she saw four men and the van. She identified Brooks as the man who had been with her in the house. When she identified Brooks the night of the robbery, she did so based on the blue jacket he was wearing, his height and the fact that his face was very dark skinned.

She also recognized two of the other men at the scene. One of them was Michael G., her 16-year old cousin, a man she saw about three times every other week. The other was a man named Melvin, who was her cousin's husband. She knew Melvin quite well, seeing him about every day. She also recognized the fourth person at the show up, Melvin's brother, Nathan Seastrunk. She didn't know Nathan as well, seeing him about two or three times in the past year.

After she identified the men, she went back to her house to see if anything that belonged to her had been taken. She testified that Rodrigues's wallet, his jewelry, $500 in cash of her money and some of his money and coins had been taken, along with marijuana. Asoau identified some jewelry as belonging to her and Aaron.

Rodrigues testified that on January 6, 2004, he was in his bedroom when a man pushed open the door and put a gun to his chin. Rodrigues could not see the man's face, but observed that he had dreadlocks and was wearing dark clothing. The man asked Rodrigues where the safe was and, when Rodrigues opened the safe for him, he took jewelry and about $3,000 from the safe. Rodrigues had acquired some of the money in the safe from selling marijuana. He also had been smoking marijuana the day of the robbery, and smoked every day.

The man ordered Rodrigues out of the room and into the bathroom, where a second man was waiting. The man outside the bathroom was Black and tall. He was carrying a gun and had dreadlocks. Rodrigues did not get a good look at either man's face. When a friend came to the front door of the house and knocked, both intruders fled.

Rodrigues saw the men run out of the front door and also saw a van drive by. He unsuccessfully followed the cars. When he returned home, he told the police officers who were there that he had not gotten a good look at the intruders. He did give the police descriptions of the men, however. He described the man inside the bedroom as about five feet nine inches and stocky, wearing a dark ski jacket, gloves and with dreadlocks. He described the man who stood outside the bathroom as between 18 and 20 years old, skinny, wearing a dark beanie and tall — about six feet one inch. Rodrigues checked the safe. Money and jewelry were missing, along with some marijuana, bongs, and a wallet. Rodrigues admitted that he lied to the police when he said he did not sell marijuana.

San Bruno Police Officer Tim Mahon testified that he arrived at the house on Fleetwood Drive at 8:34 on January 6, 2004. Asoau described the robbery to him and told him that a Black male with dreadlocks and a "puffy blue jacket" pointed a black gun at her. Asoau described the man in the bedroom as a Black man, with dreadlocks, wearing a dark jacket and with a beanie on his head.

After Mahon learned that the van described by Asoau had been stopped, and the four men riding in the van had been taken into custody, he drove Asoau to the location of the van to view and possibly identify the men in the van. Of the four men standing in front of the van in handcuffs, Asoau identified Brooks as the man who held her at gunpoint in the bathroom.

The following day, Asoau told the police that she had recognized two other men in the van — her cousin's husband Melvin Dandridge and her cousin Michael G. She had been so shocked and hurt to discover that people she considered part of her family were involved in the robbery that she had been unable to tell the police about it until the next day. Asoau also told the police, though at some later time, that she knew and was related to Nathan Seastrunk, who was Brooks's co-defendant before their trials were severed.

Asoau told the police that she could not eliminate Michael G. or Dandridge as one of the intruders. She also told the police just before trial that she initially suspected the robber holding her in the bathroom might have been Melvin Dandridge because she never trusted him, but that it could not have been him because he did not have dreadlocks like the actual robber. Asoau and Rodrigues testified that the voice of the man who held them in the bathroom was not the same as Michael G. or Melvin Dandridge. Rodrigues testified that he did not tell the police that he smoked or sold marijuana until the day after the crime.

Melvin Dandridge, Brooks, Seastrunk and Michael G. were in the gray van when it was stopped by the police. Inside the van, officers located over $4,000 in cash, gold coins and jewelry from Rodrigues's safe, Rodrigues's wallet, a bag containing over an ounce of marijuana, a jar containing a small additional amount of marijuana and two of Rodrigues's pipes from his bedroom. The police also found a loaded handgun and a dreadlock wig similar in appearance to the hair of the man who ransacked Rodrigues's bedroom. The next morning, officers checking the area in which the van had been stopped quickly located a loaded black handgun along the side of the road.

Michael G. testified that he did not recall the details of what he said to a probation officer shortly after the trial about the...