Opinion
A147982
09-08-2017
THE PEOPLE, Plaintiff and Respondent, v. ERNESTO DOMINGUEZ CUELLAR, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SC080750A)
A jury convicted Ernesto Dominguez Cuellar of attempted murder (Pen. Code, §§ 187, subd. (a), 664) and two counts of assault with a firearm (§ 245, subd. (a)(2)), and found true various sentencing enhancement allegations. The trial court sentenced Cuellar to state prison.
Undesignated statutory references are to the Penal Code.
Cuellar appeals, contending the court violated his federal constitutional rights "to due process and [a] fair trial" by refusing to allow a third defense expert to testify regarding a palm print found on the gun. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The prosecution charged Cuellar with attempted murder (§§ 187, subd. (a), 664) and two counts of assault with a firearm (§ 245, subd. (a)(2)). The prosecution alleged various sentencing enhancement allegations, including that the attempted murder was willful, deliberate and premeditated (§ 189) and that Cuellar personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)).
Prosecution Evidence
In 2013, Michael M. lived with his family and worked at the East Palo Alto YMCA (the Y). Michael was familiar with Cuellar, who exercised at the Y. In May 2013, Michael heard Cuellar make disrespectful comments on "girls that were walking by," which made Michael uncomfortable, because the Y is "a family kind of place." Michael gave Cuellar an "uncomfortable look" and Cuellar "stared back . . . with a deep glare."
On a July 2013 afternoon, Michael exercised at the Y, where he saw Cuellar. While Michael was away, his family members heard someone outside the house, "screaming." Michael's father went outside and saw a man—later identified as Cuellar—wearing glasses and a San Francisco Giants hat. Cuellar "was just standing there." Then Cuellar "rode off on his skateboard," which seemed "odd." Michael returned home after he exercised. As he approached his house, Michael heard a "clattering" sound—like skateboard or scooter wheels—followed by several "gunshots." Michael felt a bullet hit his right shoulder. Bullets hit Michael in the leg and back. Cuellar was standing a few feet away, wearing glasses and a San Francisco Giants hat. He had facial hair. Michael ran inside the house and called the police.
Michael's grandfather was outside the house, preparing to throw out the garbage, when he saw Cuellar shooting Michael. Cuellar was wearing glasses and a hat. Cuellar pointed his gun at Michael's grandfather, who heard a "click" but "[n]o shot." Cuellar fled on his skateboard, and Michael's grandfather followed him for a half a block. A neighbor heard sounds like fireworks and saw an older gentleman yelling and running toward a man with a backpack and a skateboard. The older man accused the man on the skateboard of shooting his grandson. The neighbor followed the man, who skated away from Michael's house and into an apartment complex's parking lot. The man got off of the skateboard and left the apartment complex on foot. Footage from another neighbor's security camera showed Cuellar following Michael to his house and shooting him.
East Palo Alto Police Officer Audyama Williams and his partner, Lydia Cardoza, found Michael lying on the floor inside his house, bleeding. Michael said Cuellar "shot him" and described Cuellar. Michael was taken to the hospital and interviewed by law enforcement officers. Michael said Cuellar exercised at the Y, and he described the uncomfortable interaction when Cuellar made a "derogatory" comment toward women. Michael described the shooting in detail.
Officer Cardoza found bullet fragments and five shell casings at the entryway to Michael's house, and another police officer found a skateboard in a trash can at the apartment complex. Menlo Park Police Officer Manuel Torres saw Cuellar emerge from a house near the apartment complex. Cuellar was not wearing glasses or a hat, but he had facial hair. Cuellar "looked up and down the street in both directions and then rapidly walked right back into" the house. About 30 minutes later, Cuellar reemerged, wearing a Giants hat and glasses. His face was "cleanly shaven." Officer Torres handcuffed Cuellar, who smelled strongly "of aftershave." Then Officer Torres searched the house and the garage. In a dryer in the garage, Officer Torres found a damp backpack and shoes. In the side yard, officers found a Colt semiautomatic .380-caliber handgun (Colt, or gun). The shell casings and bullet fragments found at Michael's house were fired from the Colt. Ammunition for a .380-caliber gun, the same brand of ammunition found inside the Colt, was found in Cuellar's bedroom.
Defense Evidence
Cuellar acknowledged seeing Michael at the Y, but denied exchanging looks with him. Cuellar also denied shooting Michael or knowing where he lived. The skateboard found at the apartment complex did not belong to Cuellar. The gun was not Cuellar's, and he had "no recognition that [he] had any ammunition in the house." Cuellar claimed he shaved in the morning on the day Michael was shot, not the afternoon.
San Mateo County Criminalist Helen Luu found a latent print on the "top of the gun." Frankie Franck, a latent print examiner for the San Mateo County Sheriff's Office, testified as an expert in examining and comparing latent prints. When Franck completed his report, a latent print examiner could reach one of three conclusions: (1) the print matches the suspect's print (identification made); (2) the print does not match the suspect's print (no identification made); or (3) inconclusive. "Inconclusive" means the examiner cannot match or exclude the print. Franck examined the latent print found on the Colt—a palm print—and concluded he "could not identify the palm print has having come from [Cuellar]." He checked a box on a preprinted form stating " 'compared and no identification made.' " According to Franck, he compared the print on the gun to Cuellar's fingerprints and "couldn't make an identification against . . . [Cuellar]." Frank acknowledged "no identification made" is not the same as "excluding" and that he could not determine one way or another whether Cuellar left the palm print on the gun.
No DNA was found on the Colt. The defense's DNA expert conceded the absence of DNA on an object does not mean a person did not touch the object. A person can remove DNA from an object by "wiping it with a cloth."
Sally Gustavson—the "technical reviewer" for Franck's report—also testified as an expert in latent fingerprint examination. Gustavson did not conduct her own independent investigation of the fingerprints and could not "testify to what [Franck] thought when" he completed his report. However, Gustavson interpreted the notation Franck used in his report—"no identification made"—as meaning Cuellar's print did not match the latent print.
A defense expert testified on psychology, human perception and memory. Verdict, and Sentencing
A jury convicted Cuellar of the charges (§§ 187, subd. (a), 664, 245, subd. (a)(2)) and found true various sentencing enhancement allegations, including that the attempted murder was willful, deliberate and premeditated (§ 189) and that Cuellar personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)). The court sentenced Cuellar to 37 years to life in state prison.
DISCUSSION
Cuellar claims the court violated his federal constitutional rights to due process and a fair trial by refusing to allow a third expert to testify regarding the palm print found on the Colt.
I.
Cuellar's Request to Call a Third Fingerprint Expert
On the second to last day of testimony—two days after Franck and Gustavson had testified—the court conferred with counsel regarding jury instructions. During the conference, defense counsel stated another expert—Cindy Hull—had evaluated the fingerprint and could definitively "exclude Mr. Cuellar[ ] as a source of the . . . print." Defense counsel offered to turn over Hull's report "immediately" and stated Hull was available to testify the following day.
The court observed it would be difficult to give the prosecutor "time to have his experts" review Hull's report while staying on the schedule given to the jury, and noted "that's why the reciprocal discovery stuff is supposed be all aired out before we . . . start a trial." The court expressed concern about the fairness of allowing the defense expert "at the last second." In response, defense counsel explained that he expected Franck to testify that the fingerprint analysis had excluded Cuellar rather than being inconclusive, and that it was only when Franck testified the analysis was inconclusive that counsel decided to find a third fingerprint expert. The prosecutor objected that "we're in the third week of trial" and said he would not have time to have an expert "look at the work that [had] been done" before Hull testified. According to the prosecutor, the late disclosure of the expert "would unfairly prejudice the People."
The court noted the defense had used Franck's report to show "no identification was made" and declined to permit Hull to testify. It explained: "an unfortunate thing that happens in a jury trial" is that witnesses "say something that someone doesn't expect them to say" or "change their opinion for some reason." The court acknowledged it was "not unreasonable" for defense counsel to want "another expert to look at the material" given Franck's unexpected testimony, but that it was a "problem in terms of timing, and a significant one." As the court explained, trial had started "two weeks ago" and the parties were already "in the phase of the trial going through the jury instructions." Allowing a third fingerprint expert at that "late stage" would not "give [the prosecutor] an adequate opportunity to either look at [Hull's] report and analyze it or even send it to the crime lab and have them analyze it and then potentially generate yet another report of their own if they had a different opinion about whatever the conclusion of this expert was."
During closing argument, the prosecutor downplayed the importance of the palm print, explaining that even if "the palm print belong[ed] to someone else," it did not mean Cuellar "wasn't the shooter." The prosecutor claimed the absence of Cuellar's fingerprints on the gun was "not decisive" because a person "can handle a gun and not leave a palm print" or wipe away the print. In his closing, defense counsel argued the palm print on the gun was "not Mr. Cuellar's" and highlighted the absence of "forensic evidence connecting Mr. Cuellar to that gun. You can't point to any forensic evidence and say that gun belongs to him or that he touched it. There's nothing there."
II.
The Court Did Not Abuse Its Discretion by Precluding Hull from Testifying
and Any Assumed Error Was Harmless
Cuellar claims the exclusion of Hull's testimony violated his federal constitutional rights. According to Cuellar, the court based its ruling on the mistaken "belief that the defense had violated the reciprocal discovery rules." We are not persuaded by Cuellar's characterization of the court's ruling—we do not read the court's passing reference to "reciprocal discovery" as providing the basis for the court's exclusion of Hull's testimony. When the court denied defense counsel's request, the court noted the request was made "at the last second," which posed a "significant" problem because it would not allow the prosecutor sufficient time to respond to Hull's report and stay on the schedule given to the jury. Taken as a whole, the court's remarks suggest the court declined to permit Hull to testify pursuant to section 1044, which requires the court "to control all proceedings during the trial, and to limit the introduction of evidence . . . to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved." " 'A trial court has inherent as well as statutory discretion to control the proceedings to ensure the efficacious administration of justice.' " (People v. Gonzalez (2006) 38 Cal.4th 932, 951.)
Accordingly, we reject Cuellar's reliance on People v. Gonzales (1994) 22 Cal.App.4th 1744, where the trial court erroneously excluded a witness's testimony as a sanction for failing to comply with the reciprocal discovery scheme in section 1054 et seq. (Gonzales at p. 1753-1754.) In any event, " 'we review the ruling, not the court's reasoning, and, if the ruling was correct on any ground, we affirm.' " (People v. Chism (2014) 58 Cal.4th 1266, 1295, fn. 12.) --------
Here, the ruling was well within the court's discretion. (People v. Griffin (2004) 33 Cal.4th 536, 574, disapproved on another point as stated in People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32.) "The rule is well settled that the number of witnesses who may be called upon a single question rests in the discretion of the court." (People v. Casselman (1909) 10 Cal.App. 234, 241.) As stated above, two defense experts testified about the palm print: Franck testified he could not identify the palm print on the gun as having come from Cuellar, and Gustavson testified "no identification made" meant Cuellar's print did not match the print found on the gun. Defense counsel used this testimony to argue the palm print on the gun was "not Mr. Cuellar's" and that there was no evidence Cuellar "touched" the gun. The court did not abuse its discretion by declining to allow a third expert to testify on the same subject, particularly where allowing the testimony would delay the conclusion of trial.
Even if we assume for the sake of argument the court erred by precluding Hull from testifying, "there was no prejudice under any standard." (People v. Edwards (2013) 57 Cal.4th 658, 724-725.) Evidence of Cuellar's culpability was overwhelming: multiple eyewitnesses identified Cueller as the shooter, video footage showed Cuellar shooting Michael, and the gun and ammunition were found at Cuellar's house. Additionally, Cuellar's behavior after the shooting—discarding his skateboard, washing his backpack, and altering his appearance—suggested consciousness of guilt. (People v. Watson (2008) 43 Cal.4th 652, 686.) Against this strong evidence, Cuellar offered his incredible version of the events, disbelieved by the jury. The addition of testimony that the palm print was not Cuellar's would have done little to bolster the defense, because the defense's DNA expert conceded a person can remove DNA from an object by "wiping it with a cloth." Under the circumstances, and for the reasons discussed above, Cuellar cannot establish prejudice from the exclusion of Hull's testimony. (People v. Wright (2005) 35 Cal.4th 964, 974-975 [any error in excluding testimony supporting the claimed defense was harmless beyond a reasonable doubt]; People v. Brady (2010) 50 Cal.4th 547, 559 [assumed error in excluding evidence was not prejudicial where witnesses identified the defendant as the shooter and ballistics indicated his gun was used to shoot the victim].)
DISPOSITION
The judgment is affirmed.
/s/_________
Jones, P. J. We concur: /s/_________
Simons, J. /s/_________
Bruiniers, J.