Opinion
A139700
01-22-2015
THE PEOPLE, Plaintiff and Respondent, v. RUBEN ESQUIVEL GONZALEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115 . (Alameda County Super. Ct. No. CH53987)
Sometime during the evening of February 5, 2010, a number of hard drives were stolen from a closed computer assembly plant in Fremont. Two fingerprints were found on packing material for one of the hard drives, inside the building. More specifically, the fingerprints were found on a ripped-open box that had encased a single hard drive, which was one of 20 sealed in a larger box shipped from a supplier in Southern California. The fingerprints were identified as belonging to defendant Ruben Gonzalez, a day laborer living in Southern California. Defendant's defense was alibi, provided by defendant's former girlfriend, who testified that he was with her and their children that night in Los Angeles. The defense was rejected by the jury, which convicted defendant of second degree burglary. The trial court sentenced defendant to 16 months in the county jail, following which defendant commenced this timely appeal.
Here, there is no question that a burglary was committed. The sole issue was the identity of the burglar. Defendant advances three grounds why we should overturn the jury's determination that it was he: (1) insufficiency of the evidence; (2) denial of his motion to strike the expert testimony; and (3) refusal to give his pinpoint instruction. We conclude that none of the contentions has merit, and we affirm.
Defendant first contends that the fingerprint evidence is not alone sufficient to amount to the substantial evidence constitutionally required to support a criminal conviction. He is mistaken.
Our Supreme Court has long held the opinion that fingerprint evidence constitutes "the strongest evidence of identity." (People v. Adamson (1946) 27 Cal.2d 478, 495; accord, e.g., People v. Andrews (1989) 49 Cal.3d 200, 211; People v. Riser (1956) 47 Cal.2d 566, 589-590.) In People v. Tuggle (2012) 203 Cal.App.4th 1071, a conviction for burglary was sustained against the same claim defendant now makes, because "under California law, it is established that fingerprints are strong evidence of identity and ordinarily are sufficient, without more, to identify the perpetrator of a crime." (Id. at p. 1076, italics added; accord, People v. Preciado (1991) 233 Cal.App.3d 1244, 1246 [defendant's "fingerprint on a wristwatch box found in a burgled . . . condominium" held substantial evidence for burglary conviction].)
The analysis in People v. Bailes (1982) 129 Cal.App.3d 265, 282, is still sound:
"Appellant urges that there was insufficient evidence to support a burglary conviction. This contention is unpersuasive.
"In assessing a sufficiency of evidence challenge, this 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.' (People v. Johnson (1980) 26 Cal.3d 557, 578.)
"Appellant correctly notes that the only evidence linking him to the burglary was the presence of his thumb print on a bathroom window screen of the burglarized home. Fingerprint evidence is, however, 'the strongest evidence of identity, and is ordinarily sufficient alone to identify the defendant.' (People v. Gardner (1969) 71 Cal.2d 843, 849.) Moreover, '[t]he jury is entitled to draw its own inferences as to how the defendant's prints came to be on the [object] and when . . . and to weigh the evidence and opinion of the fingerprint experts." (Ibid.)
"Several cases 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. (See People v. Bright (1967) 251 Cal.App.2d 395; People v. Corral (1964) 224 Cal.App.2d 300; People v. Rodis (1956) 145 Cal.App.2d 44; and People v. Amador (1970) 8 Cal.App.3d 788.) In the present case, appellant's print was found on a bathroom window screen that had been bent to allow access. The jury could reasonably infer appellant had left his print in the process of burglarizing the residence.
"Viewing the evidence in the light most favorable to the judgment, substantial evidence supported the burglary conviction."
In Bailes, the defendant's fingerprints were found at the point of entry. Defendant's fingerprints were found inside the burgled structure, on material used for protective wrapping of the items taken. If anything, the location of defendant's fingerprints was even more incriminating. (See People v. Preciado, supra, 233 Cal.App.3d 1244, 1246; People v. Atwood (1963) 223 Cal.App.2d 316, 326 [defendant's palm print found on safe inside burgled structure].) Thus, defendant's burglary conviction has the support of substantial evidence.
Defendant's second contention requires some background. The trial court granted defendant's in limine motion to preclude the prosecution from introducing evidence of, or referring to, "evidence of prior arrests," "any reference to the origins or derivation of such evidence" as "prior booking photographs or booking fingerprints, or evidence regarding the nature of the AFIS database." After the jury was told that the parties "stipulate that the fingerprints used for comparison . . . belong to the defendant," the prosecution's fingerprint expert was asked on direct examination: "So when you have a set of known prints and you have a computer printout, as well as the photo from the computer system that Officer Foster has uploaded, what do you do with all these things?"
The witness answered: "Well, what I do if—next would be to pull the known prints, because now only—I only have an image, each side's image of the known prints, so what I need is the original copy of the set of fingerprints belonging to that candidate. So I have—I have access to the California Department of Justice archive, and what I do is I go in through that software and enter the CII number, which the State I.D. number for that individual; and I put that into the system and I retrieve a set of known prints for that individual to do the comparison with the original latent."
Defendant's counsel did not immediately object, but waited until direct examination concluded. Then, out of the jury's presence, defense counsel objected that the answer violated the ruling on his in limine motion. Defense counsel asked that the witness's testimony be stricken in its entirety because "[s]triking the individual sentence is just going to draw attention to it." After hearing the prosecutor explain that the violation of the in limine ruling was inadvertent but "innocuous," the court denied the motion to strike. Defense counsel then stated: "I think I'd be ineffective if I didn't ask for a mistrial under the circumstances." That motion was also denied. Doing so, the court characterized the witness's reference to "the California Department of Justice database" as "very cursory" which, though "it may have great significance to those of us who work in this system and are familiar with it[,] I doubt that it has very much significance to the jurors."
Defendant challenges both of these rulings.
Striking the entirety of a witness's testimony is a drastic remedy that is usually evoked by a drastic cause, usually the refusal to answer questions on cross-examination. (E.g., People v. Price (1991) 1 Cal.4th 324, 421; Fost v. Superior Court (2000) 80 Cal.App.4th 724, 736; People v. Reynolds (1984) 152 Cal.App.3d 42, 47-48.) The trial court's ruling is reviewed for abuse of discretion. (People v. Price, supra, at p. 421; People v. Reynolds, supra, at p. 47)
And so is the denial of the mistrial motion. "A trial court should grant a motion for mistrial 'only when " 'a party's chances of receiving a fair trial have been irreparably damaged' " '[citation], that is, if it is 'apprised of prejudice that it judges incurable by admonition or instruction' [citation]. 'Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.' [Citation.] Accordingly, we review a trial court's ruling on a motion for mistrial for abuse of discretion. [Citation.]" (People v. Avila (2006) 38 Cal.4th 491, 573.)
In considering a motion to strike all of a witness's testimony, a trial court is to look at both the motive of the witness and the materiality of the testimony. (See People v. Sanders (2010) 189 Cal.App.4th 543, 555; People v. Seminoff (2008) 159 Cal.App.4th 518, 525-526.) Like the prosecutor at trial, the Attorney General on appeal does not dispute that the in limine ruling was violated, but only that the violation did not require a corrective as draconian as striking every word of the witness's testimony. We agree.
To begin with, it is significant that defense counsel at trial accepted the prosecutor's representation that the expert had been advised of the in limine ruling, and thus did not treat the violation as one involving prosecutorial misconduct. Thus, the expert's blunder should be treated as inadvertent, and not intentional. On the other hand, the expert's testimony was crucial, for without it there was no connection between defendant and the crime.
Prior to the incident, the court had already acceded to the defense request that the jury be instructed—as indeed it was—in these terms: "The fingerprint databases used in this case include fingerprints that come from many sources. The fact that a person has fingerprints in a database does not necessarily mean that he or she has a criminal record." The court thus must be deemed to have concluded that the violation of its ruling could be cured. As the court noted, the offending reference was fleeting and not inherently prejudicial. In these circumstances, no unmistakable abuse of discretion is shown in denial of either the motion to strike (People v. Price, supra, 1 Cal.4th 324, 421) or the motion for mistrial. (People v. Avila, supra, 38 Cal.4th 491, 573.) Defendant's second contention fails to establish reversible error.
Defendant's last argument attacks the absence of another instruction, the trial court's refusal to give this requested special instruction: "Fingerprint evidence has been presented in this case. [¶] Fingerprints by themselves do not establish that the defendant committed the crime charged. Rather, fingerprint evidence is circumstantial evidence of the identity of the person who touched the item in question. [¶] A guilty verdict may not be based on fingerprint evidence alone unless the prosecution has proven beyond a reasonable doubt that the fingerprints could only have been impressed during the commission of the crime." The court refused to give the instruction because "I don't believe that there's some point of law that is unclear that I need to further clarify with a pinpoint. I do think this is a very concise statement of the Defense's case . . . but I don't think it's appropriate for the court to essentially state the defense in this case." Defendant sees the refusal of his pinpoint instruction as error that prejudiced his case to the jury. Again, we disagree.
"Upon request, a trial court must give jury instructions 'that "pinpoint[] the theory of the defense," ' but it can refuse instructions that highlight " 'specific evidence as such.' " [Citations.] Because the latter type of instruction 'invite[s] the jury to draw inferences favorable to one of the parties from specified items of evidence,' it is considered 'argumentative' and therefore should not be given." (People v. Earp (1999) 20 Cal.4th 826, 886; accord, People v. Hughes (2002) 27 Cal.4th 287, 361.)
It would be hard to conceive an instruction that was so exclusively and argumentatively devoted to " ' "highlight[ing] specific evidence." ' " Thus, the trial court's refusal to give what it correctly perceived as an argumentative instruction was not error. (See People v. Hughes, supra, 27 Cal.4th 827, 361.) Moreover, as already discussed, a burglary conviction can be based solely on fingerprint evidence. Because the proposed instruction was legally erroneous, it was properly refused for this additional reason. (People v. Edwards (2013) 57 Cal.4th 658, 745; People v. Moon (2005) 37 Cal.4th 1, 30.)
The judgment of conviction is affirmed.
/s/_________
Richman, J.
We concur: /s/_________
Kline, P.J.
/s/_________
Stewart, J.