People v. Brooks

• Decision Date: 25 May 2018
• Docket Number: A147410
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Justin BROOKS, Defendant and Appellant.

23 Cal.App.5th 932

233 Cal.Rptr.3d 606

The PEOPLE, Plaintiff and Respondent,

v.Justin BROOKS, Defendant and Appellant.

A147410

Court of Appeal, First District, Division 2, California.

Filed May 25, 2018

Certified for Partial Publication.^*

Under Appointment by the Court of Appeal, Michele Kemmerling for Appellant.

Attorneys General of California, Xavier Becerra, Kamala D. Harris, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Donna M. Provenzano, Supervising Deputy Attorney General, Christina Vom Saal, Deputy Attorney General for Respondent.

Kline, P.J.Defendant Justin Brooks appeals from his conviction for first degree burglary. He contends that the trial court erred in admitting evidence of uncharged prior burglaries to establish intent, common plan and identity; that the prosecutor engaged in prejudicial misconduct in closing argument; and that the cumulative prejudice of these errors warrants reversal. Brooks also challenges the trial court's order of restitution, to the extent it included the costs of certain home security improvements made by the victim, pursuant to Penal Code section 1202.4.¹ Specifically, he contends that the statute does not permit restitution for security improvements against a defendant not convicted of a "violent felony," as defined in section 667.5, subdivision (c).

We hold that the trial court's erroneous admission of Brooks's uncharged prior acts and the prosecutor's misconduct caused Brooks to suffer little, if any, prejudice because other evidence independently and definitively linked him to the crime. As to the restitution issue, we reject Brooks's unduly narrow reading of the restitution statute and hold that the award of restitution was not precluded as a matter of law. Accordingly, we affirm.

STATEMENT OF THE CASE

On August 21, 2015, the Contra Costa County District Attorney filed an information charging Brooks with first degree residential burglary in violation of sections 459 and 460.

Jury trial commenced on December 10, 2015. On December 11, the prosecution filed a motion in limine to admit evidence of Brooks's numerous prior uncharged burglaries. ( Evid. Code, § 1101, subd. (b).) After a hearing and over defendant's objections, the trial court admitted evidence of two prior acts from April 2 and April 6, 2012. On December 16, 2015, the jury found Brooks guilty of first degree residential burglary.

Following the sentencing hearing on January 15, 2016, the trial court sentenced Brooks to prison for the two-year low term, imposed mandatory fines and fees, and ordered him to pay $2,351.34 in direct victim restitution that included reimbursement for a burglar alarm and new door locks.

Brooks timely appealed.

STATEMENT OF FACTS

In May 2015, Mona Greathouse lived in a one-story, two bedroom bungalow on Maple Avenue in Concord. Upon returning home from work the evening of May 25, she noticed that the dead bolt on the front door was unlocked (though she had locked it when she departed that morning). Upon entering the home, she discovered that her home had been ransacked: cabinets and drawers throughout the home were open and items had been rifled through and strewn about. A window in the smaller of the two bedrooms (which she used as a home office) had been broken, and there was glass on the ground both outside and inside the window. (This window had been damaged about three months prior, and Greathouse had placed duct tape over a nine-inch crack prior to the break-in.)

At Greathouse's request, a neighbor called the police. When Concord Police Officer Danielle Cruz arrived, they walked together through the home and into the backyard. Greathouse discovered that her iPad had been taken from the living room and some checks may have been removed from her checkbook in her office.

In the backyard, the screen door latch had been "broken off completely," and several window screens were removed or damaged. The glass (which was cracked prior to the burglary) had been removed from a window in the office, and there was glass on the ground. With the glass removed, the interior window lock was accessible; the lock was open and the lower sash, pushed up. From this, Officer Cruz surmised that the perpetrator(s) had entered Greathouse's residence through the damaged rear office window and exited through the front door.

Forensic Specialist Angela Anzelone collected glass fragments from the ground under the broken office window, from which she was able to lift two fingerprints of good quality and detail.² These two prints were placed on separate cards and run through a program called the Cogent Automated Fingerprint Identification System (CFIS) used to search the Automated Fingerprint Identification System (AFIS). CFIS returned a list of 30 potential candidates, with Brooks listed as number one (the presumed closest match).

Forensic Specialist Nicole Mendenhall, who testified in the area of fingerprint examination and comparison, compared one of the fingerprints Anzelone had collected (the latent print) with the number 9 finger on a set of appellant's fingerprints that had been taken on or about April 19, 2012, which were contained in AFIS.³ She utilized the ACE-V method—which stands for Analyze, Compare, Evaluate and Verify—a procedure for comparing a known print to a latent print, which she described in some detail. She found 17 points of comparison, nine more than necessary for a match, and thus concluded that the latent print matched Brooks's known exemplar.

Based upon Mendenhall's identification, Detective Erika Reed, a Concord police officer, obtained and dialed a telephone number for Brooks. A male answered the phone, said he was not Brooks, and offered to find him. Then a different male came to the phone and identified himself as Brooks. Detective Reed (who had apparently never spoken with Brooks before) did not recognize his voice. However, the speaker provided Brooks's date of birth (which Reed confirmed) and stated that his "stepdad" had informed him that the detective wished to speak with him.

Reed testified that she told Brooks about the burglary and the fact that Brooks's print had been found on the broken window, and asked if Brooks could tell him where Greathouse's iPad was. Brooks initially claimed ignorance, then said he was uncomfortable talking about the iPad, and then admitted that he had the iPad earlier but had left it (in a backpack) with an unidentified male in San Francisco. He also admitted to entering Greathouse's home, because he "was lost and didn't know what to do." He said he recalled pulling glass from a window and possibly crawling through the window. He claimed he was "high on meth" when he "did it" and could not recall whether or not he used the iPad because his memory was "a blur." Brooks initially said he could not recall taking anything in addition to the iPad, but then acknowledged that he "might have" taken Greathouse's personal checks and "might have thrown them away."

At trial, the court admitted evidence that Brooks had previously committed two uncharged crimes, specifically, burglary. First, on April 2, 2012, Brooks broke into an in-law bungalow inhabited by other members of his family, on the same property where Brooks lived.⁴ The bungalow was locked and Brooks did not have permission to enter. Several windows at the back of the unit had been broken. Brooks took a portable gaming system and used a computer. Brooks's stepfather found the gaming system in Brooks's room and called the police. The officer dispatched to the scene spoke to Brooks. Brooks, while holding the portable gaming system, admitted that he had taken it but said he was planning to return it.

Second, on April 6, 2012, there was a residential burglary at a home on Euclid Avenue in Concord. One of the home's inhabitants testified that when he returned home from work, he found the rear doors of the home had been "kicked in or pulled" open. The bedsheets had been moved and the victim's laptop taken from the bed, where he had left it; the dresser drawers were open and looked as if someone had rifled through them; and the closet door was open. In addition to the laptop computer, an iPad and video games were missing. His roommate also found his laptop to be missing.

One of the victims suggested their former roommate, who had recently moved out and with whom they had a dispute, as a potential suspect; this led the investigating officer to suspect Brooks, who had previously visited the roommate at the residence. The officer contacted Brooks's stepfather and then spoke with Brooks in the presence of his mother and stepfather. Brooks admitted to having met up with another male, who claimed to have a dispute with one of the residents at the Euclid Avenue residence and suggested they should "break into the house and steal stuff to get even." Brooks admitted that his companion pried open the back doors and took a laptop from one of the bedrooms and that Brooks had taken a laptop, an iPad, and several video games from another bedroom.

In closing argument, the prosecutor argued that Brooks's prior offenses were relevant to show intent, common plan, and identity. Focusing on identity, defense counsel challenged the reliability of both Brooks's confession and the qualifications and methodology of expert Mendenhall. On rebuttal, the prosecutor repeatedly suggested, over defense counsel's objection, that more than one fingerprint expert had verified that the latent print belonged to Brooks. Defense counsel's objections were overruled.

The jury found Brooks guilty of first degree burglary. Defendant's sentencing statement sought probation. The prosecution's memorandum opposed probation in favor of incarceration. The probation officer's report recommended $973.14 in restitution, based upon the victim's impact statement requesting reimbursement for her lost iPad, for glass repair, eight hours of lost wages, and the City of Concord's permit fee for residential security...