Filed 10/15/13 P. v. Morgan CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE,
Plaintiff and Respondent, E056537
v. (Super.Ct.No. RIF1100023)
DANIEL LEE MORGAN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Dennis A. McConaghy,
Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant
to art. VI, § 6 of the Cal. Const.) Affirmed as modified.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Annie
Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
1 A jury found defendant and appellant Daniel Lee Morgan guilty of first degree
burglary (Pen. Code, § 459)1 and petty theft (§ 487, subd. (a)). Defendant subsequently
admitted that he had suffered three prior prison terms within the meaning of section
667.5, subdivision (b). Defendant was sentenced to a total term of seven years in state
prison. On appeal, defendant contends that: (1) there was insufficient evidence to sustain
his convictions for burglary and petty theft; (2) his counsel was ineffective; and (3) the
trial court imposed an unauthorized sentence for the petty theft offense. We agree with
the parties that the two-year stayed sentence for petty theft was unauthorized. We reject
defendant’s remaining contentions.
I
FACTUAL BACKGROUND
In May 2010, Cheryl Brown-Coffman lived in a house in Moreno Valley with her
12-year-old daughter, 15-year-old son, and a roommate who was a community college
student. On May 28, 2010, after locking and securing the doors to her residence, Brown-
Coffman left her home at around 1:00 p.m. Her children and roommate were at school.
When her daughter returned home after school, she called her mother and reported that
the back door had been kicked in.
At approximately 2:30 p.m., Brown-Coffman returned home. She found her
television, computer, and video game systems missing. She also noticed that the door
1 All future statutory references are to the Penal Code unless otherwise stated.
2 between the backyard and the garage had been forced open, and the door had been
damaged.
Law enforcement discovered a palm print, visible to the naked eye, on the
entertainment center in the dust near where the television had been located. Crime scene
investigator Daniel Martinez photographed the print. The investigator was unable to lift
the print because the print was in dust and putting powder on the dust would not lift the
print. Therefore, the print was rendered as noncomparable. The investigator did not dust
the doors, deadbolts, or door knobs for prints, and no DNA analysis was performed on
the palm print.
Thailoi Tran, a fingerprint examiner in the CAL-ID section of the Riverside
County Sheriff’s Department, performed a comparison of the palm print photograph with
known persons from a computer database. Tran testified that she scans the photograph
and puts it into a large computer system database, and then inputs how many matches she
requests from the computer. The computer then matches similar candidates with the
scanned palm print photograph and issues a score from 0 to 9999 for each candidate.
Defendant’s palm print came back with the highest match, with a score of 4422. The
other scores ranged from 980 to 671. Tran did not compare those prints because the
score was not close, and when she looked at them, the palm print pattern did not look the
same. In comparing defendant’s palm print with the photograph of the palm print taken
at the scene of the crime, Tran determined that defendant’s palm print matched the palm
print left on the entertainment center. Tran testified that only eight matching
3 characteristics are sufficient for identification; she found more than eight matches and,
therefore, stopped counting. She explained that she stopped “counting the total number
of points that match, but [she] still do[es] the comparison.” Tran also concluded that
there were no dissimilarities between the two prints.
Tran’s findings were verified by her coworker Jayshiee Sakaria pursuant to
Riverside County Sheriff’s Department CAL-ID policy. Sakaria also concluded that the
photograph of the palm print taken at the scene of the crime matched defendant’s palm
print. Both fingerprint examiners testified that each palm print is unique to one person,
so once there is a match, the print cannot belong to another person. Sakaria explained
that no two palm prints are alike. The fingerprint experts also explained how they
evaluate the ridge characteristics, ridge flow and features on the prints.
Tran also took defendant’s left thumbprint at trial, and compared it to a
photograph of a left thumbprint that was admitted into evidence. Defendant’s thumbprint
matched the one in the photograph. Sakaria verified Tran’s conclusion.
Law enforcement showed Brown-Coffman a photograph of defendant. Brown-
Coffman did not know defendant and did not give him permission to enter her home or
take any items.
4 II
DISCUSSION
A. Sufficiency of the Evidence
Defendant contends there was insufficient evidence to sustain his conviction for
burglary and petty theft because the only evidence that defendant was the person who
committed the crimes was the photograph of a partial palm print. We find sufficient
evidence to support defendant’s convictions for burglary and petty theft.
“In reviewing a criminal conviction challenged as lacking evidentiary support, ‘the
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. Hillhouse (2002) 27 Cal.4th
469, 496, quoting People v. Johnson (1980) 26 Cal.3d 557, 578; see also Jackson v.
Virginia (1979) 443 U.S. 307, 319.) We “presume[ ] in support of the judgment the
existence of every fact the trier could reasonably deduce from the evidence.” (People v.
Kraft (2000) 23 Cal.4th 978, 1053.) “Although it is the jury’s duty to acquit a defendant
if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of
which suggests guilt and the other innocence, it is the jury, not the appellate court that
must be convinced of the defendant’s guilt beyond a reasonable doubt.” (Id. at pp. 1053-
1054.)
5 In this case, there is no contention the home of Brown-Coffman was burglarized.
Defendant’s challenge here addresses his responsibility for the offense.
Critical to defendant’s guilt is the physical evidence in the case. Defendant’s palm
print, visible to the naked eye, was found at the scene of the crime on the entertainment
center in the dust near where the television had been located.
Our 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, 1588, citing People v.
Andrews (1989) 49 Cal.3d 200, 211; accord, People v. Johnson (1988) 47 Cal.3d 576,
601, overruled on another ground by People v. Reyes (1998) 19 Cal.4th 743, 752-754;
People v. Gardner (1969) 71 Cal.2d 843, 849; see also People v. Nguyen (1994) 23
Cal.App.4th 32, 39-40; People v. Preciado (1991) 233 Cal.App.3d 1244, 1246.) Palm
print evidence “is of equal force and sufficiency” with fingerprint evidence. (People v.
Atwood (1963) 223 Cal.App.2d 316, 326, disapproved on another ground by People v.
Carter (2003) 30 Cal.4th 1166, 1197.)
In People v. Preciado, supra, 233 Cal.App.3d 1244, the sole evidence against a
burglary defendant was a fingerprint left on a wristwatch box. (Id. at p. 1246.) The
victim testified that he did not know defendant, and that the box had remained in the
victim’s home since the victim acquired it 18 months before. (Ibid.) The Court of
Appeal held that the fingerprint alone was sufficient to prove defendant’s identity.
“Preciado either touched the item during an uninvited foray [into the victim’s home] or—
6 miracle of miracles—he did so some 18 months earlier, before the victim received the
gift, and the fingerprints endured. . . . The determination was for the jury and was,
presumably, not a very difficult one.” (Id. at p. 1247.)
Moreover, “[s]everal 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.” (People v. Bailes (1982) 129 Cal.App.3d 265, 282, and
cases cited therein.) In People v. Bailes, the Court of Appeal upheld the defendant’s
conviction when “the only evidence linking him to the burglary was the presence of his
thumb print on a bathroom window screen of the burglarized home.” (Ibid.)
In this case, the evidence established that defendant’s palm print was found on the
entertainment center in the dust near where the television had been located. Brown-
Coffman testified that she did not know defendant and did not give him permission to be
in her home. The fingerprint experts testified that each palm print is unique to one
person, so once there is a match, the print cannot belong to another person, and that no
two palm prints are alike. They explained how they evaluate the ridge characteristics,
ridge flow, and features on the palm prints. The experts also explained how the crime
scene photograph of the palm print was inputted into a computer database and that
defendant’s palm print had a high matching score. The experts concluded that it was a
match and that there were no dissimilarities in the two prints.
Defendant argues that there was no corroborating evidence to show he was the
perpetrator of the crime and that the conclusory opinions of the fingerprint experts was
7 “neither substantial nor of sufficient solid value” to prove he was guilty beyond a
reasonable doubt. Initially, we note that it is well settled that fingerprint evidence alone
may support a conviction. (People v. Figueroa, supra, 2 Cal.App.4th at p. 1588.) As
such, no corroborating evidence was required.
Second, it appears defendant’s argument amounts to nothing more than an attempt
to attack the credibility of the fingerprint experts. However, it is the exclusive function
of the trier of fact to assess the credibility of witnesses. (People v. Alcala (1984) 36
Cal.3d 604, 623, superseded by statute on other grounds as stated in People v. Falsetta
(1999) 21 Cal.4th 903, 911.) We cannot substitute our evaluation of a witness’
credibility for that of the fact finder. (People v. Koontz (2002) 27 Cal.4th 1041, 1078.)
The fingerprint experts’ opinions and procedures used were thoroughly cross-examined
by defense counsel. The trier of fact was entitled to weigh the credibility of the
procedures used by the fingerprint experts and the analysis performed by them. Here, the
palm print was lifted from the entertainment center at the crime scene and compared to
defendant’s prints. The fingerprint examiners found various characteristics of similarity
between defendant’s known prints and the palm print recovered from the scene. The
evidence was not based on a new scientific experiment or technique, but rather on the
examination and analysis of physical evidence by the fingerprint examiners.
Defendant also challenges the palm print evidence on the ground, among others,
that only eight characteristics of his prints matched the partial palm print on the
entertainment center, whereas, a palm print may include more than 150 distinct
8 characteristics. Tran testified as an expert that only eight matching characteristics are
sufficient for identification; she found more than eight matches and stopped counting,
and another expert had verified her results. Again, the credibility and weight of her
expert opinion were solely matters for the jury to determine. (E.g., People v. Flores
(2006) 144 Cal.App.4th 625, 633.)
Based on the palm print evidence and the testimonies of the fingerprint experts,
“[t]he jury could reasonably infer [defendant] had left his print in the process of
burglarizing the [television].” (People v. Bailes, supra, 129 Cal.App.3d at p. 282.) “The
jury is entitled to draw its own inferences as to how the defendant’s prints came to be on
the [entertainment center] and when [citation] and to weigh the evidence and opinion of
the fingerprint experts.” (People v. Gardner, supra, 71 Cal.2d at p. 849.) In summary,
the evidence of the palm print is substantial evidence in this case.
B. Ineffective Assistance of Counsel
Defendant also contends that his attorney was ineffective for failing to fully object
to and cross-examine the fingerprint experts, or to move to suppress the identification
testimony, or to present an expert witness to refute the validity of the fingerprint experts’
opinions. We disagree.
A defendant claiming ineffective assistance of counsel in violation of his Sixth
Amendment right to counsel must show not only that his or her counsel’s performance
fell below an objective standard of reasonableness under prevailing professional norms,
but also that it is reasonably probable, but for counsel’s failings, the result would have
9 been more favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 668,
687, 694; In re Jones (1996) 13 Cal.4th 552, 561.) “‘The burden of sustaining a charge
of inadequate or ineffective representation is upon the defendant. The proof . . . must be
a demonstrable reality and not a speculative matter.’ [Citation.]” (People v. Karis (1988)
46 Cal.3d 612, 656.) There is a presumption the challenged action “‘might be considered
sound trial strategy’” under the circumstances. (Strickland, at p. 689; accord, People v.
Dennis (1998) 17 Cal.4th 468, 541.) On a direct appeal a conviction will be reversed for
ineffective assistance of counsel only when the record demonstrates there could have
been no rational tactical purpose for counsel’s challenged act or omission. (People v.
Lucas (1995) 12 Cal.4th 415, 442.) In other words, if the record sheds no light on why
trial counsel acted or failed to act in the manner challenged, unless counsel was asked for
an explanation and failed to provide one, or unless there could be no satisfactory
explanation, the case is to be affirmed on appeal. (People v. Mendoza Tello (1997) 15
Cal.4th 264, 266.)
Defendant argues that, because the sole evidence connecting him to the crimes
was the photograph of a partial palm print and the opinions of the fingerprint examiners,
his counsel should have moved to exclude the palm print evidence and should have more
thoroughly cross-examined the fingerprint experts. He further maintains that trial counsel
should have called a defense expert to explain or refute the deficiencies in the fingerprint
experts’ conclusions and opinions. He believes that a defense expert was necessary to
attack the reliability of fingerprint evidence, such as the methods used by the People’s
10 fingerprint examiners, and to question the accuracy and findings of the People’s
fingerprint examiners.
The reliability of fingerprint identification has been accepted in California for over
50 years. (See, e.g., People v. Adamson (1946) 27 Cal.2d 478, 495, overruled on another
point as stated in In re Gaines (1965) 63 Cal.2d 234, 238 [“Fingerprints are the strongest
evidence of identity of a person”].) We cannot fault trial counsel for failing to challenge
the reliability of fingerprint evidence. “Trial counsel is not required to make futile
objections, advance meritless arguments or undertake useless procedural challenges
merely to create a record impregnable to assault for claimed inadequacy of counsel.”
(People v. Jones (1979) 96 Cal.App.3d 820, 827.) “Vigorous cross-examination,
presentation of contrary evidence, and careful instruction on the burden of proof are the
traditional and appropriate means of attacking shaky but admissible evidence.” (Daubert
v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, 596.)
Assuming, however, that counsel could be faulted, defendant fails to persuade us
that it is reasonably probable a motion to exclude the evidence as unreliable would have
been granted. Indeed, counsel made a motion to set aside the information pursuant to
section 995 based in part on the unreliability of the palm print evidence prior to, and after
trial. Those motions were denied. As a result, defendant fails to establish his counsel
was ineffective for failing to move to exclude or continuing to object to the palm print
evidence. Since the reliability of fingerprint evidence has received the imprimatur of the
California Supreme Court, any discretionary decision to address the merits of an
11 objection never raised in the trial court should be made by that court. Further, 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 also reject defendant’s claim that his counsel was ineffective for failing to
more fully cross-examine the fingerprint experts. An examination of the record reveals
that counsel thoroughly cross-examined the fingerprint experts. Moreover, defendant
does not explain how further cross-examination would have assisted in his defense.
We further reject defendant’s assertion that counsel was deficient in failing to call
a defense expert to refute the conclusory opinions of the People’s fingerprint experts. We
assume that trial counsel, a deputy public defender, was well aware of the usefulness of
such testimony and evaluated whether defense expert testimony would assist or hurt
defendant. The record is silent as to the reasons that trial counsel decided that expert
testimony would be of no assistance to defendant in securing an acquittal. The expert
testimony can be a sword, as well as a shield. On a silent record, we must assume that
trial counsel contacted an expert witness and was told that expert testimony might hurt
the defense. Or, counsel personally evaluated the usefulness of the expert testimony in
the particular case and decided that, in balance, an expert’s testimony would be of more
assistance to the People than to the defense.
Furthermore, defendant has failed to show prejudice. Counsel cross-examined the
People’s fingerprint expert witnesses extensively as to possible errors, the reliability of
using a photograph of the palm print, and the examiners’ comparison of only one set from
12 the matches produced by the computer database. Counsel also argued at length to the
jury on the reliability of such evidence and the lack of corroborating evidence.
On this record, there is no evidence that trial counsel was constitutionally
ineffective.
C. Sentencing on Petty Theft
Defendant also contends, and the People correctly concede, that the trial court
erred in sentencing him to a two-year stayed sentence for petty theft. We also agree.
Defendant was charged in count 2 with grand theft for taking a flat screen
television. The victim testified that she bought the television for $1299 in 2006. The
jury was instructed that if it found defendant committed theft, it needed to determine
whether it was grand theft (property worth more than $950) or petty theft. Petty theft is a
lesser and necessarily included offense of grand theft. (People v. Shoaff (1993) 16
Cal.App.4th 1112.) The jury found defendant guilty of the lesser included offense of
petty theft.
Petty theft is punishable as a misdemeanor with a maximum penalty of six months
in the county jail and/or a fine not exceeding $1,000. (§ 490.) The trial court, however,
imposed a midterm sentence of two years, but stayed it pursuant to section 654. This was
in error. We will therefore modify defendant’s sentence for petty theft to six months,
stayed pursuant to section 654. This modification does not require resentencing because
the punishment for petty theft is less than the punishment for grand theft. (See §§ 489,
subd. (b); 490.) Accordingly, because there is nothing in the record to suggest that the
13 trial court would not have imposed the six month term and for the sake of judicial
economy, it is unnecessary for the trial court to resentence defendant.
We also note that the abstract of judgment incorrectly reflects that defendant was
convicted of grand theft. The trial court shall amend the abstract of judgment to reflect
the correct conviction.
III
DISPOSITION
The judgment is modified to reflect that the sentence on count 2, petty theft, is six
months, stayed pursuant to section 654. As so modified, the judgment is affirmed. The
trial court is directed to amend the June 15, 2012, sentencing minute order and abstract of
judgment consistent with this opinion and to send a copy of the abstract of judgment to
the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
We concur:
HOLLENHORST J.
KING J.