Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. Nos. CC643445, CC754577
ELIA, J.
A jury found appellant guilty of one count of residential burglary and one count of receiving stolen property. (Pen. Code, §§ 459, 460 subd. (a), 496.) The jury acquitted appellant of two counts of residential burglary. Appellant contends that the admission of evidence that he had prior arrests was prejudicial error. He further contends that he received ineffective assistance of counsel when counsel failed to move to exclude evidence concerning a fingerprint database and by conceding in opening statement that appellant was guilty of receiving stolen property. We affirm.
Evidence at Trial
Simon Mai went out to dinner with his wife the evening of September 2, 2006. Before he left, he put their Chihuahua outside. When they returned, entering through the garage, the dog was inside the house. A sofa was blocking the front door and the sliding glass door and metal security gate to the backyard were open with the lock damaged. His television, a camera, a notebook computer, a blanket, and some cash were missing and drawers and jewelry boxes were open.
San Jose Police Officer Michael Chan responded to Mai's 911 call. Checking for latent fingerprints, he could see a partial hand print on the glass top of the table that had held the television. Using fingerprint powder, a fingerprint brush, and tape he lifted a partial hand print. A fingerprint expert testified that appellant's palm print matched this print. She said that two other fingerprint examiners had come to the same conclusion. She also testified that it was impossible to determine the age of the print from the image that she had received.
Ina Wurth testified that she was gone from her home from 2:00 p.m. until about 9:00 p.m. on January 4, 2007. When she arrived home, she found that the inside chain was in place preventing her from entering her front door. She called the police and stuck her hand around the door to remove the chain. When she entered, she noticed "The blinds were askew and cold air." The window next to her sliding glass door was broken. Her laptop computer was missing, as well as a lock box, jewelry boxes, an "itty-bitty white book light," and two pillow cases. A friend's backpack containing a laptop computer, some charger cables, and wrist guard were also missing. Wurth prepared a very detailed inventory of the missing items from records that she had kept.
Kim Sheffield left home with his wife around 2:00 p.m. January 6, 2007. Returning home around 6:00 p.m., they found the back sliding door and bedroom window wide open. Missing were two laptop computers, jewelry, a digital camera, a photo printer, a cell phone, an iPod, and a pillow case.
On January 15, 2007, a San Jose police officer saw appellant leaning into the back door of his Jeep Cherokee. Knowing that there was an outstanding arrest warrant for appellant, the officer arrested him. Inside the Jeep, the police found Sheffield's cell phone and Wurth's friend's laptop computer, as well as a video camera, two more cell phones, and another laptop computer. Police officers with a search warrant came to appellant's home June 12, 2007. In the home, they found a book light, a pillow case, and a wrist guard similar to those taken from Wurth's home. A copy of the list of stolen property that Wurth had prepared was in the living room. They also found a photo printer similar to that taken from the Sheffield's home.
Appellant presented an alibi defense to the Mai burglary charge. Sixteen-year-old Jennavee Simon testified that appellant was her aunt Stacey Robinson's boyfriend. She remembered September 2, 2006, because she was a cheerleader at a football game in Morgan Hill that day. Appellant and Stacey Robinson took her to the game, arriving around 3:00 p.m. She saw appellant in the stands during the game. Simon remembered that her aunt got into an altercation with Vanessa Reyes during the game. Afterwards, appellant, Stacey Robinson, and she went to Mountain Mike's Pizza. They were at Mountain Mike's from around 7:00 p.m. until 8:45 when appellant and Stacey Robinson dropped her and her cousins off at her mother's house.
Simon testified that when an investigator called her on June 25, 2007, she remembered "right off the top of [her] head," without consulting a calendar, that she was with appellant and Stacey Robinson on the night of September 2, 2006, at the Morgan Hill game. She was unable to remember the dates of other games.
Linda Robinson testified that on September 2, 2006 she awoke with an asthma attack. She called her daughter, Stacey Robinson, to ask her to take Simon and some other cheerleaders to the game. Appellant and Stacey Robinson came and picked up the children and returned them around 9:00 p.m. that night.
Kristen "Keri" Solorio testified that she coached Pop Warner cheerleading and that she knew appellant because his girlfriend was the mother of one of her cheerleaders. She remembered the game on September 2 because there was "an altercation on the field" between Stacy Robinson and Vanessa Reyes. She remembered seeing appellant "trying to get [Stacey] to back off."
Kathy Robinson testified that she was the president of Oak Grove Youth Football and head coach of two cheerleading teams. She remembered September 2, 2006, because Stacey Robinson and Vanessa Reyes "got into an altercation, verbal altercation, yelling and screaming at one another." She asked appellant to take Stacey away a little after 5:00 p.m. After the game, she went to Mountain Mike's Pizza parlor. On the way there, she witnessed a traffic accident between a white van and a green car on Blossom Hill. When she arrived at Mountain Mike's, there was much discussion of this accident. Robinson testified that she remembered seeing appellant at Mountain Mike's around 7:30 p.m. She thanked him for helping out earlier. She remembered him staying for the entire time that the group was there, which was until around 9:30 p.m. Although she testified that Linda Robinson was sick that day, she may have told an investigator that Robinson had been present at dinner.
The prosecutor called as a rebuttal witness a San Jose Police Officer who testified that he was called to investigate a traffic accident on Blossom Hill on September 24, 2006, around 6:45 p.m., between a silver Honda Civic and a white Toyota Sequoia.
Discussion
Appellant's Prior Arrests
Appellant contends, "The admission of evidence Orr had prior arrests which were part of criminal justice records was prejudicial error since it invited the jury to find him guilty based on disposition evidence."
The information filed charged appellant with three counts of residential burglary and one count of receiving stolen property. The information also alleged that appellant had two prior strike convictions, two prior serious felony convictions, and two prison prior convictions. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, 667, subd. (a), 667.5, subd. (b).) Appellant had convictions for burglary, robbery, assault on a police officer, and discharging a firearm. Defense counsel asked the court to bifurcate the trial on the prior conviction allegations. Counsel also moved before trial to exclude any evidence of prior bad acts, specific uncharged conduct, or evidence of the convictions. The trial court granted these motions, saying, "Unless it's brought to my attention first, there will be no mention of any type of character evidence...."
The prosecution called Genevieve Rodriguez to testify as a fingerprint expert. The prosecutor asked Rodriguez to describe how the Automated Fingerprint Identification System (AFIS) identified candidates as potential fingerprint matches. She explained that the latent print that the police want matched is scanned to determine points of identification. That print information is then entered into the AFIS for comparison with prints stored there. The prosecutor asked, "so then are all of the fingerprint items that the San Jose Police Department has, are they all in this machine as well, the known files?" Rodriguez answered "yes" and said that there were "Hundreds of thousands of prints in there." Rodriguez testified that when the latent print from the Mai burglary was entered into the AFIS for comparison, a list was generated. The prosecutor asked, "who was the first person listed on that list?" Rodriguez answered, "We have what we call personal file numbers. They are called PFN numbers. So the first time you are arrested in the county, you are assigned a PFN number, or personal file number. So that's what our fingerprint cards are filed under.... Also, if you are arrested, you're [given] a booking number or CEN number, which is a CJIC event number. So for whatever you're arrested for, you get a particular arrest number. [¶] So under your personal file number, you may have one arrest, two arrests, three arrests. It's just another number for every time you get arrested...." The prosecutor asked two more questions about the difference between a PFN, which is "the same for an individual, even if that individual used a different name at different times when they were arrested" and the CEN number, which "would be different for every single arrest." Asking about the result list from the entry of the latent print information into the AFIS, the prosecutor asked, "what was the PFN number that was in the number one slot?" Defense counsel objected on relevance grounds and the objection was overruled. Rodriguez went on to testify, after another overruled relevance objection and an unreported sidebar conference, that appellant's PFN number appeared twice on the list, associated with two names, Tyne Rogers and Taylon Orr.
The trial court said, "Specifically, this is relevant for foundational purposes."
Rodriguez then went on to testify that she compared the latent print from the Mai burglary to the prints on appellant's cards and that "Tyne Rogers/Taylon Orr [was] the person who left that print." She said that two other fingerprint examiners had reached the same conclusion. She also testified that she compared the prints taken of appellant when he was arrested in this case to the "print cards that [she] used to identify the person who left the latent print" and that they matched.
In closing argument, the prosecutor compared the AFIS to the search engine Google. She said that AFIS does not keep the records by name because "somebody who is being arrested could give any name." She said, "In this case, the first two entries on that list were for CEN number CNL989, person with the date of birth 8/15/70. There were two names that had been used by this person in prior arrests; Tyne Roger [sic] and Taylon Orr."
Appellant contends that the trial court erred in admitting evidence over counsel's relevance objections. He argues that, "In this manner, the prosecutor successfully disclosed to the jury that Orr had prior criminal arrests, even though the court had excluded such evidence."
Respondent contends that "the present claim is barred by trial counsel's failure to interpose a timely objection to the disputed testimony." However, trial counsel moved before trial to exclude such evidence and the court ruled that such evidence could not be admitted without first bringing it to the court's attention. When the prosecutor elicited this testimony, defense counsel objected that evidence about appellant's PFN numbers based on prior arrests was irrelevant. We will therefore address this issue on the merits.
"Evidence that involves crimes other than those for which a defendant is being tried is admitted only with caution, as there is the serious danger that the jury will conclude that defendant has a criminal disposition and thus probably committed the presently charged offense. [Citations.]" (People v. Thompson (1988) 45 Cal.3d 86, 109.) In People v. Stinson (1963) 214 Cal.App.2d 476, the defendant was convicted of second degree burglary. The defendant and another individual had been stopped driving a vehicle which contained items stolen from the room of a motel. During cross-examination, a police officer gave a non-responsive answer to a question which referred to the defendant's status as a parolee. The defense counsel requested that the answer be stricken and moved for a mistrial. The motion for a mistrial was denied. The appellate court first noted that the reference to the defendant's status as a parolee carried "the inevitable implication of a prior criminal record." (Id. at p. 481.) It further noted "the possible tendency on the part of some jurors to convict a defendant not on proof that he committed the offense but because he has a criminal past." (Id. at p. 480.) The court concluded that the reference to the defendant's parole status was reversible error. The court also noted that its conclusions were the same regardless of whether the witness's reference to the defendant's parole status was an accident or intentional. Other references to a defendant's criminal past have also been found to be prejudicial. In People v. Ozuna (1963) 213 Cal.App.2d 338, 342, the court found reversible error when the defendant was referred to as an "ex-convict." In People v. Figuieredo (1955) 130 Cal.App.2d 498, 505-506, the court found reversible error when a witness stated that the defendant "did time."
Respondent argues that "the fingerprint expert merely described the process by which the Automated Fingerprint Identification System identified appellant. This was not improper evidence of criminal disposition." Respondent relies on People v. Farnam (2002) 28 Cal.4th 107. In Farnum, the defendant argued that the fingerprint expert's testimony "that felons convicted of homicide, rape, robbery, and burglary were among those included in the database in effect disclosed his prior felon status to the jury and implied he had been previously convicted of those particular crimes." (Id. at p. 161.) The Supreme Court upheld the admission of this testimony, because the expert "made no mention of past crimes defendant committed or was alleged to have committed." (Ibid.) Farnum is distinguishable from this case because here the expert testified that the database was composed entirely of arrestees' fingerprints, where in Farnum, the expert made clear "that the database also included nonfelons such as job applicants who required background clearance." (Ibid.)
The original source of appellant's fingerprints which were compared to the latent palm print from the Mai burglary, and the fact that appellant had used a different name in one of the prior arrests, were irrelevant to the issues in this trial and should have been excluded. Ultimately, here, the question is whether it is reasonably probable that the jury would have reached a result more favorable to appellant had it not heard evidence of appellant's prior arrests. (People v. Watson (1956) 46 Cal.2d 818, 836.) "There is a reasonable probability of a more favorable result within the meaning of Watson when there exists 'at least such an equal balance of reasonable probabilities as to leave the court in serious doubt as to whether the error affected the result.' [Citation.]" (People v. Mower (2002) 28 Cal.4th 457, 484.)
Appellant argues that because the trial court bifurcated the trial on the prior conviction allegations, granted defense counsel's pre-trial motion to exclude any evidence of prior bad acts, specific uncharged conduct, or evidence of the convictions, and said that "any type of character evidence" should be brought to the court's attention before being mentioned, "the circumstances suggest the disclosure of this evidence was calculated."
Such an equal balance of reasonable probabilities is not present here. The evidence which should have been excluded was concerning prior arrests. It did not inform the jury that appellant had been convicted of any offense, was on probation or parole, or had served a sentence. Appellant was convicted of the burglary count for which there was fingerprint evidence. The California 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, 1587-1588.) Considerable doubt was cast on the accuracy of appellant's alibi witnesses' recall of the date of the event about which they testified. The evidence on the receiving stolen property count was very strong. However, despite appellant's possession of numerous items of stolen property, some of which had been taken in burglaries that had occurred within days of his arrest, the jury acquitted him of two residential burglary counts. This was a great success for the defense and indicates that the admission of the evidence of appellant's prior arrests did not prejudice the jury against appellant. It is not reasonably probable that the jury would have reached a result more favorable to appellant had it not heard evidence of appellant's prior arrests.
But see Koehler, Fingerprint Error Rates and Proficiency Tests: What They Are and Why They Matter (2008) 59 Hastings L.J. 1077.
Ineffective Assistance
Appellant contends, "The admission of evidence that a search of a computer database identified appellant as the likely source of the palm print found at the Mai residence should have been excluded since it was irrelevant, and counsel provided ineffective assistance in failing to move to exclude that evidence on relevance grounds prior to the fingerprint expert's testimony."
Before the fingerprint examiner testified, defense counsel asked the trial court to hold an Evidence Code section 402 hearing concerning the reliability of the "AFIS machine." Counsel observed that the AFIS listed 15 possible matches. He said, "we need to know if there are misattributed identities in the AFIS system potentially among the 15 possible candidates that were not – that were not investigated, to know if there possibly could have been other close matches that could have resulted in a second layer of analysis from a supervising latent print examiner to rule out other people." Counsel had asked the prosecutor to produce logs concerning the maintenance of the machine. He said that his investigation had "recently turned up to issues relative to the AFIS machine that were striking to us" and argued, "If this machine is not in proper working order the time it was being used in the examination, then... that would be exculpatory." The prosecutor said that there were no maintenance records available because "any sort of maintenance or anything to this system" is performed by "Motorola engineers who have remote access to this system."
The trial court denied appellant's request for an Evidence Code section 402 hearing saying, "I get the impression that proper foundation will be able to be laid" by Rodriguez in her testimony. When Rodriguez testified, defense counsel cross-examined her extensively on the AFIS system, causing her to acknowledge that she did not know the "error rate at which it turns up incorrect lists of possible identification matches" and that she was not familiar with a case counsel mentioned by name in which "the AFIS machine mistakenly matched a California man['s] print to a three-time felon."
"In order to demonstrate ineffective assistance, a defendant must first show counsel's performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-688....) Second, he must show prejudice flowing from counsel's performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (In re Avena (1996) 12 Cal.4th 694, 721....)" (People v. Williams (1997) 16 Cal.4th 153, 215.)
"If 'counsel's omissions resulted from an informed tactical choice within the range of reasonable competence, the conviction must be affirmed.' [Citation.] When, however, the record sheds no light on why counsel acted or failed to act in the manner challenged, the reviewing court should not speculate as to counsel's reasons. To engage in such speculations would involve the reviewing court ' "in the perilous process of second-guessing." ' [Citation.] Because the appellate record ordinarily does not show the reasons for defense counsel's actions or omissions, a claim of ineffective assistance of counsel should generally be made in a petition for writ of habeas corpus, rather than on appeal. [Citation.]" (People v. Diaz (1992) 3 Cal.4th 495, 557-558.) If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267; People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.)
The failure to object is considered a matter of trial tactics "as to which we will not exercise judicial hindsight. [Citation.]" (People v. Kelly (1992) 1 Cal.4th 495, 520.) We defer to counsel's tactical decisions in examining ineffective assistance claims and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' [Citation]." (Strickland v. Washington, supra, 466 U.S. 668, 689; People v. Lucas (1995) 12 Cal.4th 415, 436-437.)
The admission of evidence that a search of the AFIS database identified appellant as the likely source of the palm print permitted counsel to challenge, through cross examination, the reliability of that database and the examiner's comparison of only one set from the matches produced by the AFIS. This line of questioning was designed to cast doubt on the value of the examiner's determination that appellant's prints matched the latent palm print found at the scene of the Mai burglary. Counsel clearly made a decision to do this, and we cannot say that this was an unreasonable tactical choice.
Appellant contends, "Trial counsel provided ineffective assistance of counsel... by admitting in opening statement Orr was guilty of receiving stolen property." In his opening statement, defense counsel said that the police "found some stolen property on Mr. Orr when they searched his car: laptop, some cell phones. We admit that. This is a receiving stolen property case. Mr. Orr doesn't necessarily keep the best company, but the burglary cases, the charges of burglary in this case are a not guilty. That's what you're going to find."
In closing argument, the prosecutor noted that "in opening statement, the defense indicated that they were conceding that count that the defendant did possess stolen property, and they weren't going to deny that. Now, attorney statements are not evidence, but that's what you were told, so this is an undisputed fact."
In defense counsel's closing argument, he discussed some of the property that was found in appellant's car. He mentioned the laptop computer and challenged the prosecution's view that the serial number on it had been obliterated. He noted that the owner's business card was still attached to the laptop. He said that the prosecution "wants you to believe that Mr. Orr knew that this was stolen because.... If he had possessed it, that means he stole it.... " He said, "Now, I know -- I know I said this, and I honestly, I don't feel too good about it, you know. I said at the beginning of this case this is a... receiving stolen property case. I wish I hadn't of said that because I heard testimony that changes my opinion."
As appellant sees it, "When [defense counsel] attempted to retract his concession, counsel admitted his performance fell below the standard of reasonable conduct by a defense attorney."
It is not ineffective assistance of counsel to admit obvious weaknesses in a defense case. (People v. Mayfield (1993) 5 Cal.4th 142, 177.) While "a defense attorney's concession of his client's guilt... can constitute ineffectiveness of counsel," there may be times when it would be a reasonable trial tactic to " 'adopt[ ] a more realistic approach' " and concede some facts. (People v. Gurule (2002) 28 Cal.4th 557, 611, 612; People v. Diggs (1986) 177 Cal.App.3d 958, 970.) There is a strong presumption that counsel's actions were based on sound trial strategy, even when counsel concedes some degree of guilt. (People v. Freeman (1994) 8 Cal.4th 450, 498.) Where evidence of guilt is quite strong, it is understandable that trial counsel, given the weight of incriminating evidence, would not make sweeping declarations of the defendant's innocence but instead would adopt a more realistic approach. Good trial tactics may depend on complete candor with the jury. (People v. Gurule, supra, 28 Cal.4th at p. 612.)
Appellant argues, "Since counsel confessed he should not have conceded Orr's guilt in opening statement, the record indicates counsel did not make a reasonable tactical decision." We disagree. Under the circumstances, it was a reasonable tactical decision to admit that appellant had received stolen property in that so much of it was found with him in his car and in his home. In this way, counsel could hope to achieve some credibility with the jury. We view counsel's remark in closing argument that he wished he had not made the concession as a rhetorical device, rather than an admission of ineffective assistance. Counsel was making the point that the prosecutor had failed to convincingly prove even that count in order to argue that the rest of the prosecution's case contained even greater weaknesses. This was a reasonable tactical choice and appellant was acquitted of two counts of residential burglary as a result.
Disposition
The judgment is affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.