People v. Brooks CA5

Filed 10/25/13 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, F062598 Plaintiff and Respondent, (Super. Ct. No. 1417600) v.

ANDRE JOSEPH BROOKS, JR., OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Stanislaus County. John D. Freeland, Judge. M. Bradley Wishek, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jamie A. Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Kane, Acting P.J., Detjen, J. and Franson, J.

Following a jury trial, appellant Andre Joseph Brooks, Jr. was found guilty of robbery (Pen. Code, § 2111) and the jury found true the firearm enhancement (§ 12022.53, subd. (b)). The court sentenced appellant to state prison for 12 years. Appellant appeals, contending that the trial court committed Marsden2 error, committed prejudicial error when it failed to direct rereading of testimony requested by the jury, and that defense counsel provided ineffective assistance of counsel. We find none of these contentions meritorious and affirm.3 STATEMENT OF THE FACTS Penny Ott, a cashier at a 7-Eleven store in the city of Oakdale was robbed at gunpoint at 4:55 a.m. on Sunday, April 25, 2010. The assailant had a mask and a baseball cap on and carried a revolver. She could not see his face. After he acquired the money contained in the cash registers, he left the store running. Ms. Ott called 911. As the assailant ran out of the store, Ms. Ott was able to see the back of his hair, which was curly, black and very short. The police responded and found appellant running through a nearby park. Within an hour after the robbery, an officer took Ms. Ott to a location three or four blocks from the store, where she saw a man who was under arrest and handcuffed. She was able to identify him as the robber “[b]y the hair.” She identified him at trial as the same person. She had previously described the robber to police by indicating he was wearing a baseball cap, a brightly colored orange or red bandanna on his face and a black shirt. She described him as very thin, Hispanic and that he had “dark[,] curly, bushy, short hair.” Prior to the in-field identification, appellant told police that he had not robbed anybody. This statement was made before anyone had told him that he was a suspect in a