People v. Brandon (32 Cal. App. 4th 1033, 1995)

Opinion

HUFFMAN, Acting P. J.

Michael Dewane Brandon was convicted by a jury of kidnapping for robbery (Pen. Code, § 209, subd. (b)) and robbery (§211). In connection with each offense, the jury also found true the allegation Brandon had personally used a knife. (§ 12022, subd. (b).) In separate proceedings, the court found true allegations Brandon had suffered a prior prison term and a prior serious felony conviction. After denying his motion for a new trial, the court sentenced Brandon to prison for “the indeterminate term of life, plus nine years for the enhancements.”

Brandon appeals, contending the trial court committed prejudicial error in the admission of other crimes testimony, in the admission of the victim’s photographic and in-court identifications, in the exclusion of the results of a case-specific identification experiment, in instructing the jury under CALJIC No. 2.21.2 (witness willfully false) and in imposing both a prior prison term violent felony enhancement (§ 667.5, subd. (a)) and a prior serious felony conviction enhancement (§ 667, subd. (a)) based upon his 1987 conviction, for which he served a prison term. Having thoroughly reviewed the record, we conclude any error was harmless and affirm.

Background

A. The Instant Offense

Sometime after 11 p.m. on August 22, 1992, Inger Gonzales, who had just gotten off work and was driving her sister’s red Nissan Sentra, pulled into a Vons shopping center located on the southeast comer of College Avenue and El Cajon Boulevard in San Diego to use a telephone booth there to call her sister to tell her she would be late arriving home. At that time, the Vons store was open and other cars were parked out front. After Gonzales parked her car next to the others and had gotten out and walked to the telephone booth, she discovered she did not have enough change to place the call. She thus walked back to the car to get more money.

As she sat in the driver’s seat with the door ajar and one foot outside, she looked for some more change in her wallet which she had left in the front passenger seat. As she did so, she noticed out of the comer of her eye someone walking quickly toward her. Sitting up and looking more closely, she saw a man with a very angry look on his face coming straight towards her with his right hand tucked into the front of his loose-fitting pants. Frightened, Gonzales pulled her foot inside, shut the door and locked it. She tried to start the car and back out, but stalled the engine.

At that point, the man put his arm through the open driver’s side window, unlocked the door and jumped inside. As he did so, Gonzales moved to the passenger seat to try to get out of the car, but the man grabbed her arm and then held a large kitchen knife to her ribs. To her repeated cries of “no,” the man told her, “Shut up. Shut up, you bitch.” He then tried to start the car while holding the knife against her ribs. Unable to do so, he asked her how to start it and then asked her where the clutch was. Once he got it started, he backed up and drove slowly, jerking the car as if he did not know how to use the clutch correctly.

In the meantime Gonzales tried to stay calm so as not to anger the man. She sat on her wallet and held her hands between her knees, trying to hide her jewelry and her wallet. When the man stopped at a stop sign in the shopping center’s parking area, he asked Gonzales how much money she had. When she told him $20, he turned, looked her up and down and licked his lips. He then began driving through the shopping center parking lot slowly again. ,

As he did so, Gonzales tried to figure out a way to escape, glancing to see if the passenger door were locked. She also tried to wedge her arm between her ribs and the knife, so that if he stabbed her the blade would hit her arm instead of her body. As she sat there she made a point of looking at him so she could remember his face, being careful, however, not to be too obvious since she did not want to invoke his anger.

As they drove near a Taco Cabana restaurant, Gonzales saw a group of people get out of a car and walk towards the restaurant. They were on the left side of the man so that when she tried to make eye contact with them to signal for help she got another glance at the man’s face. The man shoved the knife closer to her ribs and threatened to kill her if she said anything. He then left the parking lot, driving onto College Avenue and then turning right onto El Cajon Boulevard, past the restaurant. At that time he suddenly sped up.

As he removed his hand from the steering wheel to shift gears, Gonzales opened the passenger door and jumped out, flipping and rolling over a few times as she landed in the street. She rolled to the gutter to get out of the way of cars coming towards her, and then got up and ran to the restaurant, screaming for help. Police officers who were at a convenience store across the street heard her screams and drove over to the restaurant to investigate. Gonzales told the officers what happened and the police put out a bulletin, giving a description of the car and man.

Shortly thereafter, the La Mesa police located the car and apprehended its driver. The policemen with Gonzales drove her to where the car was and asked if she could identify it or the suspect, who at that time was standing with some plain clothes policemen by a police car. Gonzales identified the car, but did not see the person who abducted her. Gonzales later was treated at a hospital for pulled ligaments and muscles in her right hip and leg, and also for minor scrapes and bruises.

Ten days later, when San Diego Police Detective William M. Nemec showed Gonzales a photographic lineup with five photographs placed in a loose stack, Gonzales immediately selected Brandon’s photograph, the third photograph she was shown, saying, “That’s him. That’s the one that got into the car with the knife.”

B. The Trial

The jury was presented with the above evidence via Gonzales’s testimony and that of two law enforcement officers. Gonzales identified Brandon in court and stressed her opportunities to see his face. She focused on him as he came toward her and the car, again when he told her to “shut-up,” when he turned and looked her up and down for about 10 seconds and when she saw the people outside the restaurant as they drove by. Her best look was when he stopped for about 15 seconds at the stop sign in the shopping center’s lot. She instantly picked him out of the stack of photos she was shown 10 days after the event and identified him at the preliminary hearing in this matter; she was positive he was the man who attacked her.

Gonzales reiterated for the jury the description she had given the police that night: he wore baggy pants with elastic waist and ankles, a dark gray color with a short-sleeve (to the elbow) T-shirt in grey with pink and orange specks (surfer type), he had short, close-cut, dirty blond, thick, somewhat wavy hair (that night his hair was combed back and not in his face like it was in the photograph shown her by the detective), he was unshaven, somewhat scruffy, had a light complexion, medium build and was wearing Nike high-top sneakers with the turquoise Nike symbol.

Detective Nemec testified about the photographic lineup, describing how he chose the photographs and how he showed them to Gonzales with appropriate admonishments.

A man by the name of Kenneth Small testified, stating he knew both Brandon and Peyton Guiles (the man who was caught driving Gonzales’s sister’s car after Gonzales had reported the events of that night to the police). Earlier on the day of the abduction, Brandon and Guiles had visited Small, who gave Brandon $20 so he and Guiles could take some women to a movie that night. Around 4 or 5 p.m. Small saw them again at his house, where Guiles, who was temporarily staying with Small, changed clothes after going to the beach. The next morning Brandon stopped by Small’s house to do some work for Small. He told Small he and Guiles had gone to the movies as planned and that he left Guiles about 11 p.m.

Small testified he later received a telephone call from Brandon who said he hoped Small wouldn’t say anything in court to hurt him.

C. Evidence of Other Crimes

Over the objection of defense counsel, the prosecution also presented the testimony of two young women who described earlier events where each had been approached by Brandon in a parking lot with a weapon while in or near her car, forced into the passenger seat and asked for money and then abducted or left.

Michelle East testified that on February 23, 1987, when she got out of her car after having gone back to it to retrieve her license for identification to get into the Family Fitness Center in El Cajon, and turned to shut and relock her car door, she felt something in her back and heard someone tell her to get inside the car. She turned around again and saw Brandon holding a gun to the front of her ribs. He overcame her protests, holding the gun at waist level pointed at her head as she got in the driver’s side and then moved over to the passenger side. Still pointing the gun, Brandon got into the driver’s seat and asked for the keys. He put the keys in the ignition and told her they were going for a ride. East said she was not going to leave the parking lot with him and, after arguing a bit, asked him if there was something else that he wanted. After thinking a few moments, Brandon said, “I guess I really just want money.” East said, “No problem,” and reached into her purse and pulled a $50 bill and some change out of her wallet to give him. She told him she had nothing else and pleaded with him to leave. Brandon told her not to cry, that he did not want to hurt her and that he needed the money for his mother. After a few minutes and more pleading, he agreed to leave, but warned East not to get out of the car because he would have the gun pointed at her.

Claudine McLaen testified that on February 15, 1987, about 4 p.m., she left the May Company store in Parkway Plaza Shopping Center in El Cajon, walked to her car parked nearby, got in and sat in the driver’s seat for a few moments checking a receipt for an item she had just returned. As she did so, Brandon approached and pointed a gun at her head through the open part of her window and ordered her to move over. Brandon then got in the driver’s seat and continued to hold the gun to her left side. He rifled through her purse that was sitting on the floor between the seats, telling her he wanted her money as he took $27 from her purse. He then drove the car out of the parking lot, telling her he was going to a house where some people were waiting for him. At some point he made McLaen drive the car, having her stop near a bowling alley and a bank in Lemon Grove. He told her he wanted her car and that he was thinking of robbing someone else because he needed more money. McLaen was afraid as Brandon continually kept the gun near her. After almost seven hours, Brandon walked away and McLaen drove off.

D. The Defense Case

Brandon’s stepsister, Rea Chilcote, his stepfather, Monte Chilcote, his mother, and an eyewitness expert testified on his behalf.

His stepsister, who had known Brandon for over 20 years and was also a good friend, said she returned to her home in Loma Portal with her daughter around 7:30 p.m. on the August night in question after attending her nephew’s birthday party. Sometime later her father, Brandon’s stepfather, returned to the home and then still later, Brandon. At that time Brandon was not wearing surfer-type clothes as described by Gonzales and his stepsister had never seen him wear such clothing. After she gave Brandon some bedding around 11 p.m. so that he could sleep on a couch in the family room, she said good night to him and her father. On cross-examination, she conceded she had not given any of her information to either the police or the prosecutor, although she did relay it to defense counsel and his investigator.

The stepfather testified that Brandon had come by the home to visit and discuss who would pick up Brandon’s mother from the airport the next morning. At that time, Brandon was not wearing “surfer-type” clothes and he had never seen him wear anything other than Levis, or a pair of baggy shorts. When he fell asleep in a chair in the family room around 11:30 p.m., Brandon was asleep on the couch there. When he awoke around 2 or 3 a.m. the next morning, Brandon was still lying on the couch. He denied telling the district attorney’s investigator that Brandon was gone from the house at 11 p.m. on the night in question.

Brandon’s mother testified Brandon never wore the type of clothing described by Gonzales and that he had a very obvious tattoo of a tiger on his right arm, which extended from above his elbow all the way up to his shoulder. She had been in Montana the night of the crime and flew in to San Diego the next morning. Both Brandon’s mother and stepfather testified Brandon knew how to drive a stick-shift car with a clutch and did so without any problems.

Dr. Scott Fraser, a psychologist, testified about the factors that affect eyewitness identification. He stated that research shows the accuracy of a person’s identification decreases when the person is frightened or when a weapon is present. Factors such as the duration of a person’s opportunity to observe the suspect, the time between the event and the identification, and stress also affect the accuracy of such.

Fraser also discussed the accuracy of various types of lineups, i.e., photographic versus live, opining live lineups produce more accurate results. He noted the chances that an earlier photographic lineup identification might influence a person’s memory of the actual suspect and how such could affect in-court identification, regardless of whether a correct choice had been made. Fraser further noted that people who are positive in their identifications are just as likely to be mistaken as those who express ambivalence.

E. Rebuttal and Surrebuttal

On rebuttal, Small stated he did not remember what Brandon wore on the afternoon of August 22, 1992. Brandon’s mother testified she knew the extent of Brandon’s wardrobe for only the three weeks before his arrest. Gonzales testified the T-shirt Brandon wore that night covered his upper arms and she did not see anything above the forearm. She recalled his eyes as being very deep set and angry looking.

Also in rebuttal, District Attorney Investigator Richard Johnsen testified Brandon’s stepfather told him in an interview on January 6,1993, that he did not recall what time he returned home on the night in question, that he fell asleep and when he awoke between 11 and 11:30 p.m. Brandon was gone, and that when he awoke again in the early morning he thought Brandon was there, but he was not sure. Later, after Johnsen prepared a written report of these statements, Brandon’s stepfather called Johnsen to tell him there were inaccuracies and gave him times that were consistent with his trial testimony. Johnsen had not given the report to the stepfather.

In surrebuttal, the defense investigator testified she interviewed Brandon’s stepfather on November 3, 1992, and at that time he gave an account of the pertinent times and events consistent with his trial testimony.

Discussion

I

Prior Crimes Evidence

Brandon first contends the trial court committed prejudicial error when it admitted evidence of his crimes against East and McLaen on the grounds such was relevant to the issue of intent. Because his defense in this case was mistaken identity, he specifically argues intent was not at issue in his crimes against Gonzales and thus the evidence of his earlier crimes was not relevant other than to show he had the propensity to commit such crimes and was highly prejudicial. On this record, there was no error in the admission of such evidence.

In limine, the prosecutor moved to admit evidence of prior offenses committed by Brandon, arguing the 1987 crimes against Michelle East, Claudine McLaen and Paul Hilgeman were sufficiently similar to the crimes alleged in this case to warrant their admission on the issues of identity and intent, both of which the prosecutor needed to prove for Brandon’s conviction of the crimes against Gonzales. Defense counsel strenuously argued there were not sufficient similarities between the past and present crimes and that to admit such evidence would be violative of Evidence Code section 1101, subdivision (a) and unduly prejudicial under Evidence Code section 352.

The trial court ruled, stating: “The similarities that have been set forth both by counsel in their arguments and by the People’s pleadings at page 13 and 14 of their trial memorandum, re: admissibility of prior acts, are not so distinctive as to allow their use to prove identity. But I’m satisfied that there are sufficient distinctions to show intent. [U In other words, if we had these prior acts and didn’t know the identity of the defendant, we could not conclude from the facts these prior acts were committed in such a fashion that it was the defendant who committed the present offense. They don’t have that type of signature to them. But when you have the present incident and you have the other evidence of identity and you are attempting to prove what his intent was, then I’m satisfied that there is sufficient distinctiveness in those prior acts to allow them to be used to show that intent. HO ... [U The distinctive features as I see them are the fact that all the abductions were initiated in a parking lot. The common elements as to a couple of them, shopping centers, ... [¶] In virtually all of them, he requires the victim to move to the passenger seat or passenger side of the vehicle. [*]fl In each he uses a weapon, although most recently, it’s a knife instead of a firearm. [H The handling of the weapon in each case is similar both in the location and the manner in which it’s displayed and the directing it at the area of the victim’s ribs. [<¡0 There is a certain similarity in the way the defendant expresses an interest in the vehicle, the way he delays his inquiry about money, ... his motive is not immediately apparent and that is because of . . . the way he works up to the subject of money. [