P. v. Morales





















Filed 9/28/10 P. v. Morales CA4/3













NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



FOURTH APPELLATE
DISTRICT



DIVISION THREE




>

THE PEOPLE, Plaintiff and Respondent, v. ELISEO MORALES, Defendant and Appellant.

G041995 (Super. Ct. No. 08CF1420) O P I N I O N

Appeal from a judgment
of the Superior Court
of Orange
County, Carla Singer, Judge.
Affirmed.

Jennifer L. Peabody,
under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief
Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James
D. Dutton and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and
Respondent.

* * *

Defendant Eliseo Morales
appeals from his conviction for attempted robbery, arguing instructional errors
related to a rejected pinpoint instruction and two form CALCRIM
instructions. We find the jury was
properly instructed and therefore affirm.




I

FACTS

On
May 8, 2008, at about 1:15 in the morning, a man walked up to the
drive-through window at a Del Taco restaurant and pointed a gun at employee
Diana Andrada. Scared, she went into the
office with another employee and called 911.
When she returned, she saw the window was open approximately one-quarter
of the way, although it had been closed prior to the attempted robbery. Andrada provided a general description of
the man she saw to the police.

The
same morning, Officer Elizabeth Granados of the Santa Ana Police Department
pulled defendant over for a traffic
violation.[1] After he pulled over, Granados saw defendant
reach for something under the passenger seat, and Granados and her partner
quickly discovered that defendant was in possession of a gun. A box of ammunition was also discovered.

Police
were able to match the fingerprints on the restaurant's window to defendant,
who had worked at the restaurant from August to November 2007. The possibility that the fingerprints were
left from defendant's time as an employee was belied by the report that Del
Taco employees regularly cleaned the windows.
The fingerprint analysis was performed by one forensic analyst and verified
by a second analyst who worked for a different police department.

Defendant
was charged with attempted second degree
robbery. (Pen. Code, §§ 664-211,
212.5, subd. (c).) The information also
alleged that defendant had personally used a firearm.

At
trial, defendant did not testify, but Simon Cole, a professor of criminology in
the Law and Society Department at the University
of California, Irvine
testified on his behalf. Cole opined
that there was little scientific data on the accuracy of fingerprint analysis
or latent print identification. He also
testified that there was a lack of a threshold regarding how much consistent
detail was needed before declaring a match, and on other matters concerning
fingerprint identification.

At
the conclusion of trial, the jury found defendant guilty of attempted robbery
and found the personal gun use enhancement
to be true. Defendant was sentenced to
11 years and four months.



II

DISCUSSION

Defendant's Requested Pinpoint Instruction

Based
on Cole's testimony that fingerprint identification was problematic, defendant
requested the following pinpoint instruction:
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