Opinion
D069444
05-22-2017
THE PEOPLE, Plaintiff and Respondent, v. LOUIS CHARLES BORGEN, Defendant and Appellant.
Heather L. Beugen, under appointment by the Court of Appeal, Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Randall D. Einhorn and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCE351154) APPEAL from a judgment of the Superior Court of San Diego County, Herbert J. Exarhos, Judge. Affirmed. Heather L. Beugen, under appointment by the Court of Appeal, Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Randall D. Einhorn and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Louis Charles Borgen was convicted of burglary of an inhabited dwelling while another person was present (Pen. Code, §§ 459, 460, 667.5, subd. (c)(21)). He was sentenced to a term of six years, to be served concurrently with a term imposed on a separate burglary conviction and given credit for time he was in custody.
All statutory references are to the Penal Code unless otherwise noted.
Borgen's only contention on appeal is that the evidence presented at trial was insufficient to support his conviction. In particular, Borgen argues the fingerprint examiner who concluded a fingerprint left at the scene of the burglary matched a known print provided by Borgen, did not base his opinion on objective facts but on the examiner's own subjective analysis. However, the examiner's methodology has been considered and approved by a number of courts. (See, e.g., People v. Rivas (2015) 238 Cal.App.4th 967, 975-981 (Rivas); In re O.D. (2013) 221 Cal.App.4th 1001, 1004-1008 (O.D.); United States v. Herrera (7th Cir. 2013) 704 Fed. 3d 480, 483-486 (Herrera).) Like those courts, we find no defect in the expert's methodology and conclude that an opinion based on that methodology, like expert opinions in any number of areas, is sufficient to support a conviction. Accordingly, we affirm Borgen's conviction.
FACTUAL AND PROCEDURAL BACKGROUND
Early one morning in January 2013 Kathleen Kyser awoke to her dog barking and saw a man's head and shoulders come through a doorway curtain that led to her bedroom. She then heard sounds of the man run away and the door shut. Kyser looked out the window and saw a man walking away carrying a suitcase that had been in a closet in another room in Kyser's home.
Kyser called police, and, shortly after they arrived, Kyser discovered a number of items were missing from her home, including her jewelry. Boxes in which Kyser stored both costume and precious jewelry were scattered on the floor. The boxes were collected as evidence, and six fingerprints were lifted from one of the jewelry boxes. One fingerprint lifted from the jewelry box matched a known print taken from Borgen. Kyser testified she did not know Borgen and never allowed him to enter her home.
Prosecution witnesses testified as to the process of fingerprint analysis and, in particular, the methods used in determining the fingerprint found on the jewelry box matched Borgen's known print. The prosecution witnesses testified that once the latent print was lifted from the jewelry box, it was sent to a forensic evidence technician who entered the latent print into an automated database that uses different points of minutia to search for known prints that are similar to the latent print and provides a list of individuals whose known print might match the latent print. The list of potential matches included a known fingerprint of Borgen's. The technician then confirmed the similarities and agreements with Borgen's known fingerprint and determined that further analysis of Borgen's known print by a fingerprint examiner was warranted.
A latent fingerprint is the print left behind at the scene of a crime; a known print is the print taken in a controlled environment.
The fingerprint examiner then analyzed the latent print by marking up numerous minutia points on the prints, looking at the core and target areas, and then comparing the latent print with the known print. The fingerprint examiner used the ACE-V method by which examiners compare minutia points between a latent print lifted from a crime scene and a known patent print provided by an individual and, based on their experience and training, determine if there is sufficient information to identify or exclude the person who provided the known print. The ACE-V method does not require a certain number of matching minutia points but instead requires the fingerprint examiner look at the totality of the information to determine if the latent print and the known print have enough spacial relationship to establish identity. The fingerprint examiner concluded that the print lifted from the jewelry box was Borgen's.
ACE-V stands for Analysis, Comparison, Evaluation, and Verification. --------
The jury was shown both the latent and known print, with multiple markings which indicated the similarities the examiner found in reaching his conclusion.
After hearing the testimony from Kyser, the fingerprint examiner and a forensic evidence technician, and seeing the latent print and known print side by side with the matching minutia points marked, a jury convicted Borgen of burglary of an inhabited dwelling while another person was present (§§ 459, 460, 667.5, subd. (c)(21)).
DISCUSSION
I
Borgen contends that the record lacks sufficient evidence to support his conviction because the only evidence connecting him to the scene was the subjective opinion of a fingerprint examiner, using the ACE-V method, that the fingerprint left at the scene matched his known print. Borgen asserts that because the fingerprint examiner did not rely on an objective number of matching minutia points between the latent print and the known print, the single fingerprint match was not sufficient to support his conviction.
The unstated premise of Borgen's argument is faulty. It is axiomatic that the testimony of one witness, if credible and reasonably reliable in light of the entire record, is sufficient to support a judgment of conviction. (People v. Barnwell (2007) 41 Cal.4th 1038, 1052.) This deference to the record developed in the trial court is required under the familiar substantial evidence test. " 'The test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. [Citation.] The appellate court must determine whether a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt.' " (People v. Johnson (1980) 26 Cal.3d 557, 576.) "Evidence, to be 'substantial' must be 'of ponderable legal significance . . . reasonable in nature, credible, and of solid value.' " (Ibid.) Importantly, "[c]ircumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt." (People v. Pierce (1979) 24 Cal.3d 199, 210.) Thus, if as is the case, we find that the testimony of the fingerprint examiner was admissible, probative and reasonably reliable, our analysis is complete and we must affirm Borgen's conviction.
II
As we indicated at the outset, use of the ACE-V method has been repeatedly approved by courts that have considered it. The court in United States v. Plaza (E.D. Pa. 2002) 188 F.Supp.2d 549 described the methodology: " 'To determine whether or not a crime scene mark and a fingerprint impression have been made by the same person, the fingerprint examiner must carry out a process of analysis, comparison and evaluation by determining whether in each impression friction ridge features are of a compatible type; they are in the same relative positions to each other in the ridge structure; they are in the same sequence; there is sufficient quantitative and qualitative detail in each in agreement; and there are any areas of apparent or real discrepancy. The examiner must address all these issues before declaring that both mark and impression have been made by the same person.' " (Id. at p. 571.)
Importantly, as the courts in both Rivas and O.D. determined, this methodology is not a scientific technique subject to the requirement set forth in People v. Kelly (1976) 17 Cal.3d 24, 30 (Kelly) that it be generally accepted in the relevant scientific community. (Rivas, supra, 238 Cal.App.4th at p. 977; O.D., supra, 221 Cal.App.4th at p. 1007.) "[T]he Kelly rule is inapplicable to the ACE-V method of fingerprint comparison because, regardless whether it is generally accepted, fingerprint comparison is not the type of scientific technique Kelly governs since it can easily be understood by nonexperts and is unlikely to convey a misleading aura of certainty." (O.D., at p. 1007; accord, Rivas, at p. 977; see People v. Venegas (1998) 18 Cal.4th 47, 81.)
III
Moreover, the ACE-V method is sufficiently reliable that a jury may use it in determining guilt or innocence. With respect to the overall reliability of the ACE-V method and the admissibility of conclusions reached by fingerprint examiners who have used it, like the court Rivas, we too are persuaded by the reasoning of the court in Herrera, which we too quote at length. "The . . . issue relating to the fingerprint evidence is whether [the fingerprints found on the evidence] were the defendant's. They were latent rather than patent fingerprints. Patent fingerprints are made by pressing a fingertip covered with ink on a white card or similar white surface, and are visible. Latent fingerprints are prints, usually invisible, left on a smooth surface when a person touches it with a finger or fingers. Laboratory techniques are employed to make a latent fingerprint visible so that it can be compared with other fingerprints. The latent prints on the [evidence] in this case were found by a fingerprint examiner to match the defendant's patent prints made in the course of the criminal investigation, and the government therefore offered the match as evidence of the defendant's participation in the [crimes]. The defendant argues that methods of matching latent prints with other latent prints or with patent prints have not been shown to be reliable enough to be admissible as evidence under the standard for reliability set forth in [federal rules and decisions]." (Herrera, supra, 704 F.3d at pp. 483-484.)
"The [ACE-V] methodology requires recognizing and categorizing scores of distinctive features in the prints [citations], and it is the distinctiveness of these features, rather than the ACE-V method itself, that enables expert fingerprint examiners to match fingerprints with a high degree of confidence. That's not to say that fingerprint matching (especially when it involves latent fingerprints, as in this case) is as reliable as DNA evidence, for example. Forensic DNA analysis involves comparing a strand of DNA (the genetic code) from the suspect with a strand of DNA found at the crime scene. The comparison is done with scientific instruments and determines whether the segments are chemically identical. Errors are vanishingly rare provided that the strands of code are reasonably intact." (Herrera, supra, 704 F.3d at p. 485.)
"Chemical [DNA] tests can determine whether two alleles are identical, but a fingerprint analyst must visually recognize and classify the relevant details in the latent print-which is difficult if the print is incomplete or smudged. '[T]he assessment of latent prints from crime scenes is based largely on human interpretation. . . . [T]he process does not allow one to stipulate specific measurements in advance, as is done for a DNA analysis. Moreover, a small stretching of distance between two fingerprint features, or a twisting of angles, can result from either a difference between the fingers that left the prints or from distortions from the impression process.' [Citation.]
"Matching latent fingerprints is thus a bit like an opinion offered by an art expert asked whether an unsigned painting was painted by the known painter of another painting; he makes or rejects a match on the basis of visual evidence. Eyewitness evidence is similar. The eyewitness saw the perpetrator of a crime. His recollection of the perpetrator's appearance is analogous to a latent fingerprint. He sees the defendant at the trial—that sighting is analogous to a patent fingerprint. He is asked to match his recollection against the courtroom sighting—and he is allowed to testify that the defendant is the perpetrator, not just that there is a close resemblance. A lineup, whether photo or in-person, is a related method of adducing matching evidence, as is handwriting evidence.
"Matching evidence of the kinds that we've just described, including fingerprint evidence, is less rigorous than the kind of scientific matching involved in DNA evidence; eyewitness evidence is not scientific at all. But no one thinks that only scientific evidence may be used to convict or acquit a defendant. The increasingly well documented fallibility of eyewitness testimony, [citations], has not banished it from criminal trials. [Citation.]
"Evidence doesn't have to be infallible to be probative. Probability of guilt is a function of all the evidence in a case, and if items of evidence are independent of one another in the sense that the truth of any one item is not influenced by the truth of any other, the probability of guilt may be much higher if there is evidence from many independent sources (several eyewitnesses, an eyewitness plus fingerprints, etc.) than it would be were there only the evidence of one eyewitness, say." (Herrera, supra, 704 F.3d at pp. 485-486, italics omitted.)
"The probability of two people in the world having identical fingerprints is not known, but it appears to be extremely low. [Citations.] The great statistician Francis Galton estimated the probability as 1 in 64 billion. [Citations.] That was not an estimate of the probability of a mistaken matching of a latent to a patent or another latent fingerprint. Yet errors in such matching appear to be very rare, though the matching process is judgmental rather than scientifically rigorous because it depends on how readable the latent fingerprint is and also on how distorted a version of the person's patent fingerprint it is. Examiners' training includes instruction on how to determine whether a latent print contains enough detail to enable a reliable matching to another print. Ultimately the matching depends on 'subjective judgments by the examiner,' [citation], but responsible fingerprint matching is admissible evidence, in general and in this case." (Herrera, supra, 704 F.3d at p. 487.)
In sum, like the courts in Rivas, O.D. and Herrera, we agree that testimony from a fingerprint expert who has employed the ACE-V method, although not a scientific technique that must meet Kelly standards, is admissible. Moreover, given its overall reliability, it was sufficient here to establish Borgen's identity and, in turn, his guilt.
DISPOSITION
The judgment of conviction is affirmed.
BENKE, Acting P. J. WE CONCUR: HALLER, J. DATO, J.