In re Jessie O.
Filed 1/8/14 In re Jessie
O. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
FIFTH
APPELLATE DISTRICT
In re JESSIE
O., JR., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and
Respondent,
v.
JESSIE O., JR.,
Defendant and
Appellant.
F066905
(Super. Ct. No. JW127070-04)
THE COURT
APPEAL from a judgment of the
Jyoti
Malik, 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 Stephen G. Herndon, Deputy
Attorneys General, for Plaintiff and Respondent.
-ooOoo-
On
appeal following adjudication of a Welfare
and Institutions Code section 602, subdivision (a) petition, Jessie O.,
Jr. contends there is insufficient evidence he attempted to enter a
residence. Thus, he argues the court’s
jurisdictional findings must be reversed.
We will affirm.
PROCEDURAL BACKGROUND
In
a petition filed January 29, 2013, the Kern
County District Attorney alleged
Jessie committed the following violations: count 1—willful and unlawful attempt
to enter an inhabited dwelling (Pen. Code,
count 2—violating a prior court order regarding juvenile probation (Welf. &
Inst. Code, § 777, subd. (a)).
Following
contested proceedings held March 5, 2013, the juvenile
court found all counts as alleged in the petition to be true beyond a
reasonable doubt.
At
the disposition on March 19, 2013, the court
ordered, inter alia, Jessie be committed to Camp Erwin Owen for a period not to
exceed three years four months, less 33 days’ credit for time served. This appeal followed.
FACTUAL BACKGROUND
Vicente
Sotelo and his family left their residence on Clinton Street
in Delano about 5:00
a.m. on September 5, 2012. Sotelo returned to the
house alone about noon. He noticed four window
screens had been removed from the home’s front windows. After ensuring no one had been inside the
home, Sotelo replaced three of the four screens. The fourth was broken and bent; it could not
be replaced. When Sotelo left his home
earlier that morning, the window screens were all in place. He reported the incident to the Delano police. Sotelo did not know Jessie, had never seen
him before, and had never given Jessie permission to enter his home or remove
the window screens.
Officer
Michael Kraft with the Delano police responded to a report of a possible burglary on Clinton Street
at about 4:30 p.m. on September 5,
2012.
He noted a missing window screen from a window at the northwest corner
of the home. The broken screen was lying
on the ground nearby. The officer found
no signs of forced entry into the home.
An
examination of the window with the missing screen revealed latent prints on the
windowpane. Having lifted dozens of
latent prints during his career, Kraft dusted the window and lifted two prints
from the lower left-hand corner of the window.
The latent print card was booked into evidence and forwarded to the Kern
County Sheriff’s Department for analysis.
Nicole
Townsend has been a latent print examiner with the Kern County Sheriff’s
Department since June or July 2010. She
has received approximately 200 classroom hours of training in fingerprint
comparison, and has been trained on the three systems used for the Automated
International Association of Identification.
To maintain that certification, she must complete a required training
component and recertify every five years.
Townsend’s job entails taking the latent fingerprints collected at
crimes scenes, searching the AFIS system for usable comparisons, and comparing
the exemplars identified by AFIS to determine identity.
Fingerprints
are unique to each individual and are formed prior to birth. A fingerprint may have many different characteristics
that are used in comparison, including bifurcations, ending ridges, islands, and
dots.
The
Kern County Sheriff’s Department performs the latent print comparisons for the City
of Delano Police Department. In this
case, the exemplars were obtained by scanning suitable fingerprint images into
AFIS, then searching its local database.
That local database is limited to Kern County, and
the fingerprints maintained in the system are those taken at the time of arrest
in Kern County. Typically, a suspect’s
fingerprints are rolled using the electronic LiveScan System. Each finger and thumb is scanned or rolled
separately, followed by the four fingers on each hand as a grouping, and then
finally a palm print.
After
scanning the usable latent print here—a partial right index finger—into the
AFIS system, the system provided Townsend with a candidate list. There were five candidates generated by the
system, and Jessie was listed as the first candidate on the list.
The
standard method employed by law enforcement agencies, including Townsend’s
employer, is called ACE-V (analysis, comparison, evaluation, verification). Initially, in the analysis phase, the
examiner studies the latent print or prints to learn all he or she can know
without looking at or comparing the print to an exemplar print. Doing so prevents bias by the examiner. Townsend did so here, studying the latent
prints provided before looking at the exemplar.
Thereafter, an examiner looks for characteristics in at least two of
three levels of detail. Level one
characteristics would include ridge flow to determine the way ridges are coming
into and out of a pattern area, and pattern types such as whorls, loops, and
arches. Level two characteristics
include minutiae points like bifurcations, ending ridges, islands, and dots. Level three involves poroscopy, wherein exact
pore structures, lines, or edgeoscopy are observed. Level three details are uncommon in latent
prints. Because level one similarities
are insufficient on their own to declare a fingerprint match, those
similarities must be accompanied by the detail or characteristics found in
either level two or level three.
Here,
the right index finger from the latent print card displayed a right-slope loop
with a low ridge count, multiple different bifurcations, multiple ending ridges,
and a dot up at the very top. When
compared to the exemplar print generated by AFIS, Townsend identified similar
characteristics and found the prints to be a match. The exemplar print belonged to Jessie. Level one and level two characteristics were
used to make the match; no level three characteristics were noted. Townsend did not count the number of
characteristics matched between the two prints and explained that, in the
United States, there is no numerical standard that must be employed before a
match can be declared. Each comparison
is different, with some characteristics carrying more weight than others. She would not be comfortable however
declaring a match where only one characteristic was common between the latent
print and the exemplar.
Although
the other prints lifted from the crime scene could not be scanned into the AFIS
system as Townsend deemed them unusable or insufficient, she did later compare
those latent prints to the other prints from Jessie’s fingerprint card. The latent prints obtained were a left middle
finger and a partial left palm print. These
prints also matched Jessie’s prints when compared to the exemplar generated by
AFIS.
Townsend’s
results were verified by a second examiner.
Thereafter, a report was prepared and forwarded to the arresting or
investigating agency.
On
cross-examination, Townsend noted there was no way to date or age a latent
fingerprint. She acknowledged prints may
fade over time and could be affected by a number of environmental factors like
heat and dirt. She does not believe
pressure or the variations in technique by the person lifting the print or
prints can affect the size, shape or characteristics of a fingerprint. Townsend did testify that a glass surface
accepts prints better than a wood surface because glass does not soak up oils
from the skin.
Officer
Mario Nunez, a supervisor on patrol shift with the Delano Police Department, is
familiar with, and explained, his agency’s booking process, including the
taking of a suspect’s fingerprints using LiveScan. Nunez is familiar with Jessie as he has had
more than five contacts with Jessie and was present when Jessie was booked on a
previous occasion in 2011. When Jessie
was taken into custody on this offense, he resided on Austin Street
in Delano, or about four to five blocks from the Sotelo residence. Jessie’s prior address was on Dover Place in Delano, approximately
seven blocks from the Sotelo residence.
DISCUSSION
The Applicable Legal Standards
The
crime of burglary is defined, in pertinent part as follows: “Every person who enters any house … with
intent to commit grand or petit larceny or any felony is guilty of burglary.†(§ 459.) Burglary of an inhabited dwelling house is
burglary in the first degree. (§ 460,
subd. (a).) “Every person who attempts
to commit any crime, but fails, or is prevented or intercepted in its
perpetration, shall be punished ….†(§ 664.)
When
an appeal challenges the sufficiency of the evidence to support a juvenile court
judgment sustaining the allegations of a Welfare
and Institutions Code section 602 petition, we must apply the same
claim by a criminal defendant challenging the sufficiency of the evidence to
support a judgment of conviction on appeal.
“Under this standard, the critical
inquiry is ‘whether, after reviewing the evidence in the light most favorable
to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.’ [Citation.] An appellate court ‘must review the whole
record in the light most favorable to the judgment below to determine whether
it discloses substantial evidence—that is, evidence which is reasonable, credible,
and of solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’ [Citations.]
[¶] In reviewing the evidence adduced at trial, our perspective
must favor the judgment. [Citations.] ‘… The test on appeal is whether there is
substantial evidence to support the conclusion of the trier of fact; it is not
whether guilt is established beyond a reasonable doubt. [Citation.]’†(In re
Ryan N. (2001) 92 Cal.App.4th 1359, 1371-1372.)
“‘It
is axiomatic that an appellate court defers to the trier of fact on such
determinations, and has no power to judge the effect or value of, or to weigh
the evidence; to consider the credibility of witnesses; or to resolve conflicts
in, or make inferences or deductions from the evidence. We review a cold record and, unlike a trial
court, have no opportunity to observe the appearance and demeanor of the
witnesses. [Citation.] “Issues of fact and credibility are questions
for the trial court.†[Citations.] It is not an appellate court’s function, in
short, to redetermine the facts.’
[Citation.] Under the substantial
evidence rule, we ‘must accept the evidence most favorable to the order as true
and discard the unfavorable evidence as not having sufficient verity to be
accepted by the trier of fact.’
[Citation.]†(
“‘“[T]he
standard of review is the same in cases in which the People rely mainly on
circumstantial evidence. [Citation.] ‘Although it is the duty of the jury to acquit
a defendant if it finds that circumstantial evidence is susceptible of two
interpretations, one of which suggests guilt and the other innocence
[citations], it is the jury, not the appellate court which must be convinced of
the defendant’s guilt beyond a reasonable doubt. “‘If the circumstances reasonably justify the
trier of fact’s findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a contrary finding does
not warrant a reversal of the judgment.’â€
[Citations.]’ [Citation.] ‘“Circumstantial evidence may be sufficient
to connect a defendant with the crime and to prove his guilt beyond a
reasonable doubt.â€â€™â€ [Citation.]’ [Citation.]†(People
v. Jones (2013) 57 Cal.4th 899, 960-961.)
The Trial Court’s Ruling
After
considering the arguments of counsel, the juvenile court found as follows:
“The Court: Okay.
Well, I have to say the testimony regarding the fingerprint evidence was
certainly interesting. And a bit
different than from what I’m used to having heard, but it’s been awhile since I
have heard a fingerprint case.
“And
I have to say, generally, there is more information regarding points of
comparison, and, certainly, it would have been perhaps good to know from
Ms. Townsend exactly how many points she found that did in fact match.
“And
while there were certain questions regarding if she knew how many matched, there
was no—certainly no request to have her re-compare those to see what those
totals would be.
“So
what I do know is that it was sufficient, in her opinion, to convince her that
those prints did, in fact, match.
“Listening
to the testimony of Mr. Sotelo, it was clear that at 5:00 a.m. he left the house. That the
screens were on his home when he left.
And that when he came back, he noticed that they were off. And that he replaced three of the
screens. The one that was bent, he did
not replace. And that is probably why, logically,
that Officer Kraft went to that window to look since that was the screen
remaining on the ground.
“Whether
or not there might have been other prints on the other windows, we certainly
don’t know.
“Whether
they would have indicated that this young man had been at those windows, we don’t
know. Had it meant that others had been
at those windows, we don’t know. But
certainly what it does show us is that this young man was at that window. And interestingly enough, while we have been
bringing this case to its conclusion, I have stumbled across the case of
Page 1, 2002, case which held that an entry sufficient for burglary
occurred when there was a removal of an exterior window screen and a
penetration into the area enclosed by the window screen, even though the window
immediately covered by the screen was locked and not open. A window screen is part of the outer boundary
of the building for purposes of a burglary.
“So
based on the evidence presented, the Court finds that Count 1 and 2 of the
Petition to be true beyond a reasonable doubt.â€
Our Analysis
Jessie
argues the juvenile court’s findings are not supported by substantial evidence
because fingerprint evidence is unreliable generally, and because examiner
Townsend’s testimony was vague and so lacking in detail as to “render her
opinion insubstantial.†Jessie also
contends the victim unwittingly tampered with the evidence, the investigating
officer did not bother to look for other prints, and the prosecution did not
rule out the possibility there was an innocent explanation for Jessie’s prints
on the windowpane.
Initially,
we note Jessie essentially asks us to find and declare that fingerprint
evidence is fallible and unreliable. We
decline his invitation. In California, it is
established that fingerprints are strong evidence of identity and ordinarily
are sufficient, without more, to identify the perpetrator of a crime. (People
v. Johnson (1988) 47 Cal.3d 576, 601; see also People v. Tuggle (2012) 203 Cal.App.4th 1071, 1076;
265, 282 [defendant’s thumbprint on bathroom window screen identified as point
of entry into burglarized home sufficient for jury reasonably to infer
defendant committed the burglary].) Palm
print evidence is likewise sufficient alone to identify a defendant. (People
v. Figueroa (1992) 2 Cal.App.4th 1584, 1588.) The California Supreme Court continues to
recognize the validity of fingerprint evidence.
(E.g., People v. Farnam (2002)
28 Cal.4th 107, 160 [“the prosecution relied on a long-established technique—fingerprint
comparison performed by fingerprint expertsâ€]; People v. Webb (1993) 6 Cal.4th 494, 524.)
Jessie’s
challenges to the sufficiency of examiner Townsend’s testimony are not
persuasive. Jessie contends Townsend was
unable to explain how she declared a match between the latent print and
exemplar print. However, a review of Townsend’s
testimony reveals otherwise. While it is
true Townsend did not count or otherwise total the number of characteristics
she matched between the latent print obtained at the Sotelo residence and the
exemplar prints belonging to Jessie that were generated by AFIS, she testified
as follows:
“[Defense Counsel:] And so in this case, did you look at the
latent print prior to looking at the exemplar print?
“A. Yes.
“Q. And what characteristics of note did you find
on that latent print? [¶] … [¶]
“A. It is a right-slope loop and it has a low, uhm,
ridge count. And then, I mean, there’s
different bifurcations. There’s a dot up
at the very top. There is multiple
bifurcations, multiple ending ridges.
Uhm, it’s mostly the center of the print all the way up to the top.
“Q. And then when you were done analyzing the
latent, you looked at the exemplar?
“A. Yes.
“Q. And did you find all of those characteristics
from the latent print in the exemplar print?
“A. Yes—uhm, I don’t look at every single
characteristic available, but I find enough characteristics to satisfy me that
it is a match.
“Q. And how many characteristics were similar in
this case?
“A. I didn’t count.â€
After a lunch break, when cross-examination
resumed, Townsend was asked, “And did you, then, find those same
characteristics in the exemplar?†She
answered “yes.†She went on to testify
that, within the ACE-V system, the points of similarity she identified between
the latent print and the exemplar print fell into the level one and level two
categories. Townsend further testified
there were no unexplainable
name="_ftnref4" title="">[2] differences between the two
prints.
While
we are inclined to agree with the juvenile court that a number or count
regarding the similarities identified between the two prints would have been
helpful, no national standard exists regarding a minimum required number of
similarities before a match can be declared.
Townsend did testify that all
of the characteristics she identified in the latent print during her analysis
were present when she compared the latent print to the exemplar print. Those characteristics included level one
characteristics of a right slope loop and low ridge counts, as well as level
two characteristics of a dot and “multiple bifurcations†and “multiple ending
ridges.†Townsend also testified there
were no unexplainable dissimilarities. A
single dissimilarity would have meant no match.
Further, while Townsend did not count the number of similarities here, she
did indicate a single similarity would not be enough to declare a match and
explained each case is different. We
find Townsend’s opinion as evidence is reasonable, credible and of solid value.
Additionally,
while two other latent prints taken from the Sotelo residence were insufficient
for purposes of an AFIS scan, those additional prints were compared to Jessie’s
prints. More specifically, prints of a
left middle finger and a partial left palm were compared to the exemplar
generated by AFIS of Jessie’s prints; both of these additional prints matched
as well.
We
note a recent opinion of the First Appellate District, Division Four, wherein a
juvenile challenged the sufficiency of a palm print left on a window to support
a burglary allegation. In that case, the
victim left her home at 7:30
a.m., ensuring the doors and windows were
locked. She returned home at 3:30 p.m. to find her home had been burglarized. An investigating officer determined a bedroom
window was the likely point of entry and several prints were lifted from the
window, including a palm print on the outside of the glass. (In re
O.D. (2013) 221 Cal.App.4th 1001, 1003.) A fingerprint examiner with the Contra Costa
Sheriff’s Department submitted the latent print to a computerized search on the
state’s database. She then compared the
latent print to O.D.’s prints, those prints having been generated as a possible
match. She concluded the prints matched.
(Id.
at pp. 1003-1004.) The examiner employed
the ACE-V fingerprint examination method.
She identified 11 points of similarity and explained her laboratory
required at least eight points of similarity and no unexplainable
discrepancies. (Id. at pp. 1004-1005.)
On
appeal, the defendant argued that because fingerprint evidence was not
infallible, it could not be said the palm print recovered from the window
definitively belonged to him. (
“[P]roof beyond a reasonable doubt does
not require proof beyond any possible doubt, ‘“ because everything relating to
human affairs is open to some possible or imaginary doubt.â€â€™ [Citation.] [The examiner] testified that she followed
established procedures in making the palm print comparison. Her conclusion that the palm print on [the
victim]’s window was O.D.’s was substantial evidence that O.D. was the burglar.
[Citations.]†(Ibid.)
Here, Townsend testified she followed the
ACE-V method, the established procedure for making fingerprint
identifications. Further, she identified
the specific characteristics on the latent print and testified each of those
similarities was present in the exemplar identified as belonging to
Jessie. Townsend also testified there
were no unexplained discrepancies between the two prints. While it is true, unlike the examiner in
record the number of those similarities, we do not find this omission fatal
here. There is no national standard
regarding the number of similarities required, and the record does not
establish any minimum required by the agency employing Townsend. Moreover, the juvenile court found Townsend’s
testimony credible overall, and, hence, we defer to those findings. (In re
S.A., supra, 182 Cal.App.4th at
p. 1140.)
In
conclusion, viewing the evidence in the light most favorable to the prosecution,
the presence of Jessie’s fingerprint on the windowpane, along with a lack of
any valid nexus for his presence at the victim’s home and Sotelo’s unfamiliarity
with him, provide sufficient evidence to support the finding of the trier of
fact. Therefore, a rational trier of
fact could have found the evidence was sufficient to sustain a true finding of
attempted burglary. (
support the juvenile court’s true finding as to the crime of attempted burglary,
we decline to address Jessie’s contentions that the victim tampered with
evidence, that the investigating officer should have looked for other prints, and
that the prosecution failed to rule out the possibility of an innocent
explanation.
DISPOSITION
The
judgment is affirmed.
name="_ftn1" title="">*Before Gomes, Acting P.J., Detjen, J. and Peña, J.
name="_ftn2" title="">†Pursuant to California Constitution, article VI, section 21.
