Opinion
A151357
09-25-2018
THE PEOPLE, Plaintiff and Respondent, v. ERLIN DAVID RODRIGUEZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. NF419649A)
Erlin David Rodriguez (defendant) appeals from a judgment entered after a jury found him guilty of residential burglary (Pen. Code, § 460, subd. (a)) and the trial court sentenced him to nine years in state prison. He contends the judgment must be reversed because: (1) there was insufficient evidence to support the conviction; and (2) the prosecutor committed misconduct during closing argument by improperly vouching for the prosecution's witnesses. We reject the contentions and affirm the judgment.
All further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On January 23, 2017, an amended information was filed charging defendant with residential burglary (§ 460, subd. (a)). The information alleged three prior residential burglary convictions as strikes and serious felonies (§§ 667, subds. (a)(1), (d), 1170.12) and further alleged that defendant had served a prior prison term (§ 667.5, subd. (b)).
The information was based on a burglary that occurred at the home of Tim Fenech, who lived in a duplex unit on Railroad Avenue in South San Francisco. Barbara Ferguson (Barbara) lived in the other unit of the duplex.
On July 2, 2010, Fenech went to work at about 7:00 a.m. At about 11:00 a.m., Barbara's son, Dennis Ferguson (Dennis), was working in his mother's garage when he heard noises coming from Fenech's unit and the side of the garage. He walked outside to investigate, and when he looked up at Fenech's unit, he saw a man, determined by a jury to be defendant, "catwalking the top of the fence." Defendant jumped over Dennis into the neighbor's driveway and ran.
Dennis chased defendant and was about 50 or 60 feet behind him when defendant turned the corner. When Dennis rounded the corner, he could no longer see defendant, but he saw an individual, later identified as Anthony Cruz, sitting in his car at a stop sign. Cruz, in reference to the fleeing burglar, asked Dennis, "Did that guy do something?" Dennis responded, "He did something near my mom's house, and, what, I don't know."
Cruz pointed to a set of gloves on the sidewalk and told Dennis that the fleeing man had taken off his gloves and thrown them to the ground as he ran. Dennis saw several "[c]rumpled, balled up," blue rubber gloves on the ground. After obtaining Cruz's contact information, Dennis picked up the gloves with his pinkie and thumb and, without allowing the gloves to touch anything, carried them back to his mother's house, sealed them in a plastic bag, and placed the bag on a desk in his mother's garage. He handled the gloves carefully because he believed, based on detective television programs he had seen, that the gloves could be valuable evidence in the future. When Barbara returned home, Dennis told her about the suspect and the gloves. Neither Dennis nor Barbara touched the gloves after they were placed in the plastic bag.
Cruz confirmed he was driving near Railroad Avenue on July 2, 2010, "[b]etween 10:00 and 11:00 [a.m.]. Maybe a little after 11:00." When he stopped at a stop sign, he saw a man jump over a fence and run up the street. He then saw another man—Dennis—chasing the first man. Cruz watched as the fleeing man "[p]eeled [his gloves] off and then just dropped them on the floor [ground] and took off running." The man then disappeared into an alley. When Dennis got to the corner, Cruz told him about the man and the gloves.
Alma Ramirez, one of Fenech's neighbors, was doing housework on the morning of the burglary. When she went outside at about 8:00 a.m., Fenech's kitchen window was not open. When she went outside again at about 11:00 or 11:30 a.m., she noticed the window was open. She saw a "shadow" walking quickly inside Fenech's house, but she was unable to see the person's face or clothing. Ramirez went back inside to call Fenech and tell him that someone had opened his window. Fenech did not answer, so she left a voicemail message.
Fenech returned home for lunch between 12:00 and 12:30 p.m. and saw that his kitchen window was open all the way and the screen had been removed. He knew the window was closed when he left, so he knew someone had broken into his home. He went inside to investigate and saw that his dresser drawers in his bedroom were open. A pocket watch, about $575 in cash, an iPod, and a backpack were missing from his home.
Fenech called the police and Sergeant Christy Wesselius responded. Wesselius examined the inside of Fenech's house and noticed that the dresser drawers in the bedroom were open, and that there were "shoe smudges" in the sink below the kitchen window. Wesselius did not find any fingerprints at the scene, which was consistent with a burglar using gloves.
When Fenech told Barbara and Dennis about the burglary several days later, they told Fenech about the fleeing burglar's gloves, and Barbara gave a sealed plastic bag containing the gloves to Fenech. Fenech gave the plastic bag to Wesselius, who booked it into evidence.
Cindy Fung Anzelone, a criminalist with the San Mateo County Sheriff's Office, testified that the plastic bag was transported to the crime lab on July 20, 2010. She opened the bag and identified three blue latex gloves, which she labeled A, B, and C. She swabbed each glove for genetic material, running "two swabs over each glove[.]" She found a DNA profile for one individual on gloves B and C. Glove A did not contain enough genetic material to conduct an analysis, possibly because the burglar wore it over one of the other gloves.
The burglary remained an unsolved crime until a "hit" from the Combined DNA Index System identified defendant as a suspect. Thereafter, on March 15, 2013, Wesselius collected two buccal swabs from defendant's mouth.
When Anzelone received a reference sample of defendant's DNA, she compared it to the DNA profile on gloves B and C. Defendant was a match for the DNA profile on glove B, with the chance of a random match being 1 in 4.1 million people, or 1 in 5.6 million Hispanic people. Anzelone testified as to glove C: "In my opinion, Mr. Erlin Rodriguez is the source of the DNA developed on the swab of Glove C." Anzelone's findings were reviewed by two other DNA analysts—a technical reviewer and an administrative reviewer—as well as by the laboratory director. All three individuals approved Anzelone's findings.
Wesselius testified that according to defendant's DMV records, his residence for the years 2007 to 2016 was on Lux Avenue in South San Francisco, about a half-mile walking distance from Fenech's home, in the direction that the burglar ran when chased by Dennis.
The defense presented the testimony of two witnesses to show that defendant was at work around the time the burglary took place. Sasha Soofi, owner of a San Francisco restaurant and a friend of defendant, testified that in July 2010, defendant was working for a valet company that provided valet parking services for Soofi's restaurant. Soofi did not supervise defendant and was not in charge of his schedule, but he remembered that defendant almost always started work at about 11:00 a.m. Soofi could not say for sure what hours defendant worked on July 2, 2010, but was "99" or "95" percent sure he began work at 11:00 a.m. that day.
William Cartagena, owner of the valet company that provided valet parking services to Soofi, testified he was defendant's employer in July 2010. Cartagena testified that the company schedule sheet showed that defendant, listed as "David" on the schedule sheet, was scheduled to work from 11:30 a.m. to 11:00 p.m. on July 2, 2010, the day of the burglary. A worker scheduled for the 11:30 a.m. shift would have arrived at work at about 11:00 a.m.
Cartagena admitted he was convicted of assault with great bodily injury for punching his wife in 2014.
On cross-examination, Cartagena acknowledged there was another employee, David Portillo, who also worked for him in July 2010 and shared defendant's name. Although Cartagena initially testified that defendant was listed as "David" on the company schedule sheet and Portillo was listed as "Dave," the timecards—in which the actual number of hours worked are recorded—showed that during the week of the burglary, including the day of the burglary, defendant worked the hours listed for "Dave" and Portillo worked the hours listed for "David."
Specifically, for July 2, 2010, Portillo's timecard showed he worked 12 hours, which matched the 11:30 a.m. to 11:00 p.m. shift that was listed for "David" on the company schedule sheet. On the same day, defendant's timecard showed he worked five hours, which matched the hours of 6:00 p.m. to 11:00 p.m. that were listed for "Dave" on the company schedule sheet.
A jury found defendant guilty of residential burglary, and defendant admitted all of his prior convictions. The trial court sentenced defendant to the lower term of two years for the burglary, doubled due to his prior strike conviction, and a consecutive term of five years for the prior serious felony conviction, for a total term of nine years.
DISCUSSION
Substantial Evidence
Defendant contends the judgment must be reversed because there was insufficient evidence to support the conviction. We reject the contention.
At the close of evidence, defendant moved to dismiss the burglary charge on the ground that there was insufficient corroboration to support a conviction based on DNA evidence alone. The prosecutor opposed the motion, noting the gloves were tied to the burglary because a witness saw the fleeing burglar take off the gloves that contained defendant's DNA.
The trial court denied the motion, noting that the connection between the DNA on the gloves and the burglary was not "conjecture or speculation. There's a reasonable conclusion that the jury could make that, in fact, [defendant] is the person responsible for the burglary." The court further explained: "We have eyewitness testimony. Now, it is true that he was not identified, but the gloves were picked up near the scene of the event."
In reviewing the sufficiency of the evidence, an appellate court must determine whether substantial evidence supports the jury's verdict. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) The court must make that determination " ' "viewing the evidence in the light most favorable to the prosecution . . . ." ' " (People v. Bonin (1989) 47 Cal.3d 808, 850.) To be substantial, evidence must be " ' "of ponderable legal significance . . . reasonable in nature, credible, and of solid value." ' " (People v. Clay (1984) 153 Cal.App.3d 433, 457.) For a judgment to be set aside for insufficiency of the evidence, " 'it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it.' " (Id. at p. 458.)
Defendant argues that "the only evidence in the record connecting [defendant] with the burglary is the DNA evidence taken from the gloves dropped by the perpetrator as he fled. No witness identified [defendant] as the suspect . . . [and] two of [defendant's] employers testified that [defendant] was at work at the time of the burglary." Viewing the evidence in the light most favorable to the verdict, we conclude there was substantial evidence to support the conviction.
It was undisputed in this case that someone opened the window to Fenech's home, removed the screen, broke into the home, and stole some cash and belongings. A neighbor, Ramirez, saw that Fenech's window—which was closed at 8:00 a.m.—was open at about 11:00 a.m. or 11:30 a.m., and she saw a "shadow" of a person moving quickly inside Fenech's home. Another neighbor, Dennis, saw the suspect "catwalking the top of the fence" before jumping off and running away. Within seconds, and as Dennis chased the fleeing suspect, a passerby, Cruz, saw the suspect take off his gloves and throw them to the ground. Moments later, Cruz pointed out the gloves to Dennis, who carefully collected the gloves and stored them in a sealed plastic bag. The gloves, which remained in the plastic bag until they were turned over to police, contained only one DNA profile—defendant's—and the chance of a random person matching that profile was as low as 1 in 4.1 million people, or 1 in 5.6 million Hispanic people. (People v. Johnson (2006) 139 Cal.App.4th 1135, 1147 ["astronomical numbers, such as were presented in this case, are powerfully incriminating evidence"].)
Moreover, there was evidence tying defendant to the area in which the burglary occurred, i.e., testimony that at the time of the burglary, defendant's home was within walking distance to Fenech's home, in the direction the suspect ran when he fled. Defendant asserts that two employers provided an alibi defense. Soofi, however, did not set defendant's schedule, was not his supervisor or direct employer, and had no records showing the hours defendant worked on the day of the burglary. He testified he was almost certain that defendant started work at 11:00 a.m. on the day of the burglary, but Cartagena's testimony on cross-examination, as well as the company schedule sheets and timecards, supported a finding that defendant worked in the evening on July 2, 2010, many hours after the burglary took place. In light of the strong DNA match and the corroborating testimony tying the gloves to the burglary and linking defendant to the neighborhood, there was substantial evidence to support the conviction.
Defendant relies on several cases in support of his position that DNA evidence alone is insufficient to support a conviction. The cases, however, are distinguishable. In People v. Trevino (1985) 39 Cal.3d 667, 697, for example, the court held that a fingerprint on a dresser was insufficient to sustain the defendant's conviction for murder because the defendant had previously been a social guest in the house and the fingerprint could have been placed on the dresser before the day of the murder. Similarly, in Birt v. Superior Court (1973) 34 Cal.App.3d 934, 937, the court reversed a conviction where the defendant's fingerprints were on a cigarette lighter found inside a rental van used to transport stolen items. Because the lighter was easily movable and not an instrumentality of the crime, and the rental van was available to the public, there was nothing establishing the perpetrator's identity and there were alternative explanations for the presence of the defendant's fingerprints. (Id. at p. 938; see also Mikes v. Borg (9th Cir. 1991) 947 F.2d 353 [fingerprint on murder weapon, alone, was insufficient absent any evidence the fingerprint was placed on turnstile post at the time of the crime].) In contrast, in this case, there was strong evidence connecting the gloves containing defendant's DNA to the time, place, and perpetrator of the crime.
Disapproved on another ground in People v. Johnson (1989) 47 Cal.3d 1194, 1216-1221.
We note that California cases have declined to follow Mikes v. Borg, supra, 947 F.2d 353. In People v. Figueroa (1992) 2 Cal.App.4th 1584, for example, the Court of Appeal noted that decisions of intermediate federal appellate courts are not binding on California courts, and that in any event, Mikes is inconsistent with the California Supreme Court's holding in People v. Gardner (1969) 71 Cal.2d 843 that fingerprint evidence alone is sufficient to identify a defendant.
Defendant argues the judgment must nevertheless be reversed because there were "problems" with the DNA test results. First, he asserts the test results were questionable because Dennis's DNA was not found on the gloves even though he said he touched them. Dennis, however, testified that he handled the gloves with care. He picked them up with his pinkie and thumb, and did not clench them or grab them with his fist at any time. Moreover, Anzelone explained that it is possible for DNA that is deposited onto an item to disappear after time, depending on the surface of the item or the storage conditions. Given Dennis's efforts to minimize his contact with the gloves, it was not surprising that his DNA was not found on the gloves in any registrable amount.
Second, defendant asserts that Wesselius's testimony shows the gloves were "possibl[y] contaminat[ed]" while they were in Barbara's possession. He references a statement Wesselius made after the prosecutor asked her, "When was the first time you heard that Barbara had possibly handled the gloves?" Wesselius responded: "The first time I heard that she might have touched the gloves was actually when I was talking to the victim, Mr. Fenech." Defendant argues this statement shows that Barbara may have opened the plastic bag, taken the gloves out of the bag, and touched them.
The testimony, however, read in context, shows that Barbara handled or touched the plastic bag containing the gloves—not the gloves themselves—when she handed the plastic bag to Fenech. Earlier in the trial, Fenech had testified that Barbara was the one who handed the plastic bag to him. Barbara, who was 92 years old at the time of trial, and whose memory was failing, provided conflicting testimony, stating she did not "remember anything about [the gloves]" and that she never saw them or gave them to Fenech. Therefore, during direct examination, the prosecutor elicited testimony from Wesselius that corroborated Fenech's testimony, i.e., that Fenech had previously told her that Barbara was the one who had handed the gloves to him. Drawing all inferences in favor of the judgment, we conclude there was no reason to question the reliability of the DNA test results.
Prosecutorial Misconduct
Defendant contends the prosecutor committed misconduct during closing argument by improperly vouching for the prosecution's witnesses. Specifically, he takes issue with the following statement: "All of my witnesses were straightforward. They answered the questions honestly. They never got defensive on cross-examination, and they appeared as though they had nothing to hide. . . ."
Preliminarily, we note that defendant did not object to the particular statement of which he complains on appeal. Later, as the prosecutor discussed Anzelone's credentials, defense counsel stated, "Objection. Improper witness vouching," and the trial court sustained the objection, but counsel did not request an admonition. To preserve a claim of prosecutorial error, the defendant must make a timely objection at trial and request an admonition to the jury. (People v. Najera (2006) 138 Cal.App.4th 212, 224.) A defendant is excused from the necessity of objecting and requesting an admonition only if either would have been futile. (Ibid.) Here, there is nothing in the record indicating that an objection or admonition would have been futile. Defendant therefore forfeited the issue by failing to adequately raise it below.
Even assuming the issue was preserved for appeal, we would conclude the contention fails on the merits. Prosecutors have "a wide-ranging right to discuss the case in closing argument." (People v. Lewis (1990) 50 Cal.3d 262, 283; People v. Smith (2003) 30 Cal.4th 581, 617 [" 'Prosecutors have wide latitude to discuss and draw inferences from the evidence at trial' "].) They have the right to fully state their views "as to what the evidence shows and to urge whatever conclusions [they deem] proper. Opposing counsel may not complain on appeal if the reasoning is faulty or the deductions are illogical because these are matters for the jury to determine." (People v. Lewis, supra, 50 Cal.3d at p. 283.)
"It is settled that '[a] prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record. [Citations.] Nor is a prosecutor permitted to place the prestige of [his or her] office behind a witness by offering the impression that [he or she] has taken steps to assure a witness's truthfulness at trial. [Citation.] However, so long as a prosecutor's assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the "facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief," [his or her] comments cannot be characterized as improper vouching.' " (People v. Caldwell (2013) 212 Cal.App.4th 1262, 1269-1270.)
Here, the prosecutor's remarks were proper comment on the evidence. She discussed the credibility of her witnesses based on evidence in the record and the instructions provided by the court, without referring to personal beliefs, facts outside of the record, or the prestige of her office. She did not assert that the government's witnesses were entitled to any greater deference than any other witness. (Cf. People v. Turner (2004) 34 Cal.4th 406, 433 [prosecutor improperly vouched for the credibility of expert witness by referring to the prosecutor's personal knowledge of the witness and his prior use of the witness].) Instead, she referred the jury to the instructions given by the court and argued based on the facts in the record that her witnesses had testified truthfully.
The prosecutor acknowledged the jury had heard "conflicting evidence and conflicting testimony," and said it was up to the jury to "determine what the facts are on your own . . . [to] resolve the conflicts." She explained the court's instruction on resolving credibility issues and discrepancies in witness testimony, stating that in determining the veracity of the witness, the jury is to consider the witness's perception, memory, behavior while testifying, directness, attitude, inconsistencies, reasonableness, and bias. She argued: "Now, you can go through my witnesses one by one. Every witness had a great perception, and they admitted to you when they didn't. They admitted when they didn't remember something. [¶] All of my witnesses were straightforward. They answered the questions honestly. They never got defensive on cross-examination, and they appeared as though they had nothing to hide. Do they have a bias? A personal interest in the outcome? No."
The prosecutor also analyzed the credibility factors as they related to the defense witnesses and argued that the company schedule sheet and timecards showed their testimony was not reliable. The prosecutor asked the jury to consider the relative credibility of the witnesses in light of other evidence presented, e.g., the DNA on the gloves. Because the prosecutor did not draw on the credibility of her office or introduce facts outside the record to bolster her witnesses' credibility, she did not engage in improper vouching of witnesses. (People v. Medina (1995) 11 Cal.4th 694, 757 ["Prosecutorial assurances, based on the record, regarding the apparent honesty or reliability of prosecution witnesses, cannot be characterized as improper 'vouching' "].)
Moreover, even if the prosecutor's comments constituted misconduct, we conclude that any error was harmless under any standard. The strongest piece of evidence against defendant—the 1-in-4.1-million DNA match on the gloves used in the burglary—was not affected by the prosecutor's comments. Anzelone's credibility was not at issue, and there was no plausible explanation for how defendant's DNA could have ended up as the sole DNA profile on the gloves other than by him committing the burglary. The comments at issue were also brief and made up a de minimis portion of an otherwise unchallenged closing argument. (People v. O'Malley (2016) 62 Cal.4th 944, 1012 [prosecutorial error in closing argument harmless because "it 'was brief and transitory' "]; People v. Ochoa (1999) 19 Cal.4th 353, 466 [no prejudice where improper reference by prosecutor in closing argument was "trivial"].) Given the significant DNA evidence and the insignificant nature of the prosecutor's challenged comments, there is no likelihood the comments changed the outcome of the case.
DISPOSITION
The judgment is affirmed.
/s/_________
Jenkins, J. We concur: /s/_________
Siggins, P. J. /s/_________
Pollak, J.