In re Brandon W.
Filed 5/8/13 In re Brandon W. CA1/1
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opinion has not been certified for publication or ordered published for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
ONE
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In re BRANDON W., a Person Coming Under the Juvenile Court Law. | |
THE PEOPLE, Plaintiff and Respondent, v. BRANDON W., Defendant and Appellant. | A136656 (Alameda County Super. Ct. No. SJ-12-189211) |
In this
case, a petition was filed pursuant to Welfare and Institutions Code section
602, subdivision (a), alleging minor committed
§ 459). On September 7, 2012, at a contested jurisdictional
hearing, the juvenile court sustained the petition. On September
21, 2012, the court declared appellant a ward of the court under
the supervision of the probation department, finding that continued residing in
the home of his grandmother was not in the best interests of the minor, and
committed appellant to the care of the probation department. The appellant now challenges the sustaining
of this petition. We affirm the judgment
of the trial court.
On October 15, 2011, around 12:45 p.m. Yolanda Alexander-Maker approached
her home at 1414 Fairview, Berkeley,
California.
She is African-American. She
noticed two African-American youths pass her on the sidewalk. One was medium-brown in skin tone, the other
light, each one was “fairly
tall.†They appeared to be in their
teens or early twenties. When
Alexander-Maker said “hello†to the youths, only the medium-brown skinned male
responded. The other kept going. She then saw a third male following behind
the two. She thought the three were
together but they clearly were not walking together. This gave her a “bad feeling.†Alexander-Maker had occupied her home for
over 50 years. She knew the people in
her neighborhood and had not seen the three youths before. As she entered her home, Alexander-Maker
noticed the first two men were gone but the third person was resting on the
trunk of a red Honda, looking up and down the street.
Alexander-Maker
telephoned the police because she was suspicious. Looking out her front window, she saw the
first two men walk down a driveway of a neighbor’s home and speak with the man
at the Honda. Alexander-Maker then saw
the two go back up the neighbor’s driveway and disappear. Alexander-Maker testified the appellant
resembled the lighter-skinned male she saw on the street.
Jeanne Song
lived in the home which had the driveway the two walked back and forth from,
1422 Fairview. It was a single-family residence. On October
15, 2011, Song and her daughter had gone to Santa
Cruz around 8 a.m. Song locked her home before leaving. Around 6 p.m.,
while in the town of Santa Cruz,
she received a phone message from Berkeley
police. She returned the call and
learned her home had been burglarized.
Song
returned home on the 16th. She found a
window in her living room broken and boarded up. The driveway was adjacent to this
window. Song’s burglar alarm went off
when the intruders had exited her home.
She also learned the sensor batteries in her windows did not operate
properly.
Inside the
home, Song saw that furniture had been moved.
Her daughter’s computer, iPod dock, some jewelry, a backpack and camera
were missing. Cash was missing from
Song’s bedroom and the drawers were all open.
Her computer was also taken. Song
estimated the value of the stolen items at $10,000 to $15,000. Song testified she did not know appellant and
did not give him permission to enter her home.
Cuauhtemoc
Vargas was a crime scene technician who responded to Song’s home after the
theft. He was there on October 15, 2011, around 1:10 pm.
He dusted the window area that had been broken and was believed to be
the entry point for the theft. Vargas
found five latent prints on the exterior glass of the window. He concluded professionally the prints faced
upwards, indicating someone placed them while pushing up on the window.
Elizabeth
Troxel was a latent print analyst for the California Department of
Justice. She had eight years experience
in this field. She was a Certified
Latent Print Examiner by the International Association of Identification. When tested for her proficiency by outside
agencies, she had always passed with no errors.
Troxel examined four of the five prints, Exhibit Nos. 5A to 5D. Using the data base of the Automated Latent
Print System, she received a list of suspects based on the prints entered.
She compared the prints from Song’s window with the top candidate
identified by the System. Appellant was
the top candidate. Both sides stipulated
appellant’s prints were the prints from the Automated System. After making her comparison, Troxel concluded
the prints taken from Song’s window belonged to the appellant.
Appellant
contends there is insufficient evidence
to sustain the court’s finding that appellant was involved in the burglary
alleged in the petition. We find the
evidence supports the factual findings and legal conclusion of the
commissioner.
When the
claim is made on appeal of insufficient evidence in a delinquency proceeding,
the standard of review is the same as in an adult criminal prosecution. (In re
Roderick P. (1972) 7 Cal.3d 801, 809.)
The test is whether the record contains any substantial evidence which
supports the finding of the trier of fact, and we view this evidence in the
light most favorable to that finding. (
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.†(Jackson v. Virginia (1979) 443 U.S. 307, 319; In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1328.)
In this
case, there is no contention the home of Ms. Song was burglarized. The appellant’s challenge here
offense. He argues the identification by
Alexander-Maker in court was not reliable. He also claims there is insufficient
evidence he entered the residence. Both
contentions are without merit.
Critical to
appellant’s guilt is the physical evidence in the case. His fingerprints were found on the broken
living room window, the acknowledged entry point used by the suspects in
entering Song’s home. Officer Vargas
testified the prints were found facing upwards, a fact consistent with pushing
the window upwards. Also, Song testified
she did not know appellant and did not give him permission to be on her
property.
Our Supreme
Court has “repeatedly emphasized that fingerprints are the strongest evidence
of identity and ordinarily are sufficient
by themselves to identify the perpetrator of the crime.†(People
v. Figueroa (1992) 2 Cal.App.4th 1584, 1588, emphasis added, citing
211. See also, People v. Johnson (1988) 47 Cal.3d 576, 601; People v. Gardner (1969) 71 Cal.2d 843, 849.) In People
v. Bailes (1982) 129 Cal.App.3d 265, the only evidence linking defendant to
the charge was the discovery of his fingerprint on a bathroom window
screen. That was sufficient to sustain
his burglary conviction against a challenge based on insufficiency of the
evidence. “[C]ases have held that
evidence of a fingerprint, palm print, or footprint left inside a structure or
at a point of unusual access is alone sufficient to support a burglary
conviction.†(Id. at p. 282, and cases
cited therein.) In Bailes, defendant’s print was found on the screen that had been
bent to allow access. (
on the broken window pane which was the clear point of entry.
The
presence of appellant’s prints at the illegal entry point, along with his lack
of any valid nexus with the victim’s home and Ms. Song’s unfamiliarity with
him, provide sufficient evidence to support the finding of the trier of fact.
Additionally,
Alexander-Maker testified at the hearing appellant resembled one of the three
men she saw moments before the commission of the crime. She passed appellant at approximately 12:45
p.m. on the day of the crime. Vargas,
the police technician, arrived and found the latents at 1:10 p.m. In between, Alexander-Maker saw the lookout
in front of the home and appellant and his ally going back and forth along the
victim’s driveway. This tight time
period is significant support of the trial court’s factual determination. Also, the suspects’ conduct was so suspicious
Alexander-Maker was compelled to call the police.
We know the testimony of one witness is
sufficient to prove identity. We defer
to the trier of fact in assessing the weakness of such identification,
especially in light of cross-examination.
(People v. Elwood (1988) 199
Cal.App.3d 1365, 1372–1373.) Testimony
the defendant “resembles†the suspect is enough on appeal. (People
v. Wiest (1962) 205 Cal.App.2d 43, 45–46.)
An eyewitness need not be “positive†in her identification. (People
v. Midkiff (1968) 262 Cal.App.2d 734, 740.)
It is true
Alexander-Maker testified she had a glance at appellant as he passed her on the
street. However, it was at a time when
she was not under stress from any criminal assault. The men she saw triggered a curiosity on her
part. She had lived in the neighborhood
for more than 50 years. She knew her
neighbors. She felt the young men’s
behavior unusual enough to call police quickly.
When she passed appellant he was only six to eight feet away from her. Alexander-Maker also testified, “[Appellant
was] about the same height [as the suspect].
I consider him light skinned in my book.
He looks like the gentleman as far as I know.â€
During the
hearing, the court did question Alexander-Maker regarding her in-court
identification. Also, the judicial
officer noted there were no cross-racial identification issues because the
witness was also African-American.
In summary,
the evidence of the fingerprints is substantial evidence in this case. There is no challenge presented to the
procedures used by the police in obtaining the evidence and the analysis
performed by witness Troxel. The trier
of fact apparently found the eyewitness identification by Alexander-Maker
sufficient to support the finding sustaining the petition.
We affirm
the judgment.
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__________________________________ Dondero, J. | |
We concur: __________________________________ Margulies, Acting P. J. __________________________________ Sepulveda, J. |
