People v. Moore CA1/3

Filed 6/26/14 P. v. Moore CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A140114 v. BRETT LEONARD MOORE, (Contra Costa County Super. Ct. No. 05-121668-8) Defendant and Appellant.

Brett Leonard Moore (appellant) appeals from a judgment entered after a jury convicted him of first degree burglary (Pen. Code, §§ 459/460, subd. (a)1) and the trial court sentenced him to three years in state prison. Appellant’s counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and requests that we conduct an independent review of the record. Appellant was informed of his right to file a supplemental brief and did not do so. Having independently reviewed the record, we conclude there are no issues that require further briefing, and shall affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND An information was filed October 4, 2012, charging appellant with first degree burglary (§§ 459/460, subd. (a)) while a nonparticipant was in the home, rendering the offense a violent felony (§ 667.5, subd. (c)(21)). The information also alleged he had served a prior prison term (§ 667.5, subd. (b)) and was eligible for a state prison sentence (§§ 1170, subds. (h)(3)(A), (f)).

1 All further statutory references are to the Penal Code.

1

On October 12, 2012, appellant moved to suppress evidence on the ground that the police “unreasonably detained him without possessing probable cause that [appellant] was involved in criminal activity.” At the hearing on the motion, police officer Eric Johnsen testified that at about 8 a.m. on May 1, 2012, he was dispatched to a home in Antioch to investigate a suspicious person report. When he arrived about five minutes later, he spoke with the resident, Sean McGowen, who said that just before the police were called, he heard his dogs barking in the backyard. When McGowen went to investigate, he saw an intruder walking out of his garage with some of his property. McGowen described the suspect as a scruffy looking white male adult, possibly a transient, about 5’8” tall, weighing 200 pounds, and wearing short pants and “a red bathrobe-type shirt” or “what looked like a red bathrobe.” While Johnsen was at the house investigating the burglary, he received another report of a suspicious person about two blocks away. Dispatch described that suspicious person as a scruffy looking white male “wearing what appeared to be a red bathrobe.” Johnsen testified that the second dispatch call came in approximately five to ten minutes after the first dispatch call came in. Johnsen responded to the scene of the second dispatch, where he observed a man—later identified as appellant—sitting on a hillside on the side of the intersection. When Johnsen first saw appellant, appellant was wearing dark-colored shorts and a dirty, faded, and worn red, baggy San Francisco 49ers pullover sweatshirt that came down to mid-thigh level. Appellant’s sweatshirt “[f]it like a mid-thigh length bathrobe.” Appellant was unshaven, had dirty, greasy hair, and appeared to be about 5’8” tall and about 210–220 pounds. Johnsen directed appellant to come down the hill and sit on the curb; appellant complied. Johnsen did not find a red bathrobe in the area. Another officer brought McGowen to the scene to do an in-field show-up. McGowen positively identified appellant. Defense counsel argued that Johnsen did not have reasonable suspicion to detain appellant because he was not wearing a red bathrobe and therefore did not match the description of the person McGowen had encountered in his backyard. The prosecution