Opinion
G052331
03-22-2017
THE PEOPLE, Plaintiff and Respondent, v. JOHNNY JAVIER DIAZ, Defendant and Appellant.
Thomas K. Macomber, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis, and Jennifer B. Truong, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). The opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14NF2644) OPINION Appeal from a judgment of the Superior Court of Orange County, David A. Hoffer, Judge. Affirmed. Thomas K. Macomber, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis, and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted Johnny Javier Diaz of residential first degree burglary (Pen. Code, §§ 459, 460, subd. (a); all statutory references are to the Penal Code). Diaz contends insufficient evidence supports his conviction. We disagree. Diaz's palm print, found on the outside of a broken window not readily accessible to the public and used to gain entry into the burgled apartment, constitutes substantial evidence he committed the burglary. We therefore affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
On March 20, 2014, around 9:30 a.m., H.T., the onsite manager of an Anaheim apartment complex, left her ground floor unit to clean the parking lot and laundry facilities, and visit with a tenant. She locked her front door and latched her patio gate. Her windows had "anti-slide" locks. When she returned approximately two hours later, someone had ransacked the apartment, stealing electronics, jewelry, and cash. The burglar apparently entered through a bedroom sliding window located off a patio, which was surrounded by a six-foot high fence. The burglar moved a patio table, and removed the window screen, laying it against a patio chair. He then broke the lower portion of the glass and removed the anti-slide device to open the window. The thief apparently departed through H.T.'s now open front door and patio gate.
A civilian employee of the Anaheim Police Department investigating the burglary lifted three latent prints from the outside of the broken window. A forensic specialist with the department testified one of the latent prints matched "the right writer's palm area" of Diaz's hand. The other two latent prints were not identifiable. H.T. did not know Diaz and he had no permission to enter her home.
Diaz spoke to a police officer in late April or early May 2014. He denied ever visiting H.T.'s apartment, and could not explain the presence of his palm print on the window. Told there might be video of two subjects around the victim's apartment, Diaz said he would like to see if he could identify them because he did not want to take the rap for somebody else. At the time of the burglary, Diaz lived about a half-mile from H.T.'s apartment.
Following trial in January 2015, a jury convicted Diaz as noted above. In June 2015, the court sentenced Diaz to a four-year midterm for the current burglary.
At the sentencing hearing in June 2015, Diaz pleaded guilty in two other cases to four additional counts of residential burglary, and one count of grand theft. (People v. Diaz (Super. Ct. Orange County, 2015 & 2015, Nos. 14WF3031 & 15 NF0745.) The court imposed consecutive one-third midterms and concurrent terms for these offenses. The total term was 6 years and 8 months. --------
II
DISCUSSION
Substantial Evidence Supports the Burglary Conviction
Section 459 provides in relevant part: "Every person who enters any . . . apartment . . . with intent to commit grand or petit larceny or any felony is guilty of burglary." (See §§ 460 [burglary of inhabited portion of any building is burglary of the first degree], 459 ["'inhabited'" means currently being used for dwelling purposes, whether or not occupied]; see People v. Thorn (2009) 176 Cal.App.4th 255, 261 [prosecution must prove the defendant entered a building intending to commit theft or a felony, and the building was inhabited].)
Diaz contends insufficient evidence connects him to the burglary. The test for sufficiency of the evidence is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 318-319; People v. Johnson (1980) 26 Cal.3d 557, 576-578 (Johnson).) The reviewing court reviews the whole record and evidence in the light most favorable to the judgment below and determines whether the record contains substantial evidence from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. (Johnson, supra, at p. 562.) The evidence must be of ponderable legal significance, reasonable in nature, credible and of solid value. (People v. Albillar (2010) 51 Cal.4th 47, 60; People v. Bassett (1968) 69 Cal.2d 122, 139 [circumstances reasonably reconcilable with a not guilty finding does not warrant a reversal if substantial evidence supports the judgment].)
Diaz argues that there was no evidence "that would put [Diaz] at the scene at the time of the burglary - there was no evidence of when the window was last cleaned before the burglary, [Diaz] was not seen in the area near the time of the burglary, and [he] was not found with property taken in the burglary. Without additional evidence, the palm print alone was insufficient upon which to base the verdict." But Diaz cannot prevail on an insufficiency of the evidence claim "by arguing about what evidence is not in the record, or by portraying the evidence that is in the record in the light most favorable to himself." (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) "Rather, he must affirmatively demonstrate that the evidence is insufficient" (ibid.; People v. Cardenas (2015) 239 Cal.App.4th 220, 227), as "[a]ll conflicts in the evidence and questions of credibility are resolved in favor of the verdict, drawing every reasonable inference the jury could draw from the evidence" (People v. Cardenas, supra, at pp. 226-227).
It is well-established fingerprint evidence is the strongest evidence of identity, and is ordinarily sufficient, on its own, to identify the perpetrator of a crime, and to support a conviction. (People v. Andrews (1989) 49 Cal.3d 200, 211; People v. Johnson (1988) 47 Cal.3d 576, 601; In re O.D. (2013) 221 Cal.App.4th 1001, 1008.) Fingerprints left "at a point of unusual access is alone sufficient to support a burglary conviction." (People v. Bailes (1982) 129 Cal.App.3d 265, 282 [thumbprint on a bent bathroom window screen the point of entry]; In re O.D., supra, at p. 1010 [palm print on an open bedroom window the point of entry].) The jury "'is entitled to draw its own inferences as to how the defendant's prints came to be on the [object] and when . . . and to weigh the evidence and opinion of the fingerprint experts.' [Citation.]" (Bailes, supra, at p. 282; see People v. Preciado (1991) 233 Cal.App.3d 1244, 1247 [sole evidence against a burglary defendant was a fingerprint left on a wristwatch box; the victim testified he did not know defendant and the box had remained in his home since he acquired it 18 months earlier].)
Diaz relies on decisions in which fingerprint evidence was found insufficient to support the conviction. (See, e.g., Mikes v. Borg (9th Cir. 1991) 947 F.2d 353 (Mikes ); People v. Johnson (1984) 158 Cal.App.3d 8; Birt v. Superior Court (1973) 34 Cal.App.3d 934 (Birt).) These cases are distinguishable.
In Mikes, 947 F.2d 353, the only evidence against the defendant was his fingerprint found on a turnstyle post used as the murder weapon and found at the scene. (Id. at pp. 355-356.) Other identifiable prints on the weapon did not belong to him. The court held the evidence was insufficient to support the murder conviction because the prosecution the evidence showed the defendant may have had prior access to the movable object, particularly because the object previously had been in a public area. (Id. at pp. 356-361 [prosecution must present evidence sufficient to permit the jury to conclude the objects on which the fingerprints appear were inaccessible to the defendant before the crime was committed].) In contrast to Mikes, Diaz's print was found on a window not readily accessible to the public, located behind a six-foot high fence, and Diaz had no prior access to H.T.'s window.
In Birt, supra, 34 Cal.App.3d 934, no fingerprints were found at the burglarized home or on any objects taken from the home. The court held the defendant's fingerprint on a cigarette lighter found in a rental van containing the victim's stolen property was insufficient to hold the defendant to answer for the burglary charge: "At most, the presence of petitioner's fingerprint on the lighter found on the front seat showed that, at some unknown time and place, she had been inside the van; but there was no direct or circumstantial evidence to indicate when and where that had been. Only by guesswork, speculation, or conjecture can it be inferred that petitioner was inside the van, or in the area, at the time of the . . . burglary." (Id. at p. 938 [cigarette lighter is a readily movable object and lighter was not shown to have been taken from the victim's home].) Here, the palm print was found at the point of entry into a recently burglarized residence, and not merely in a vehicle used to transport stolen goods.
In People v. Johnson, supra, 158 Cal.App.3d 850, officers found a glass bottle containing one ounce of PCP inside a small hole that had been drilled into the ceiling of a residence. The glass bottle had multiple prints on it, including the defendant's print. There was no evidence the defendant owned the residence or had control over the bottle. Johnson held the conviction for possession of PCP could not stand because the glass bottle itself was not contraband and there was insufficient evidence that the defendant actually or constructively possessed the PCP inside the bottle. (Johnson, supra, at pp. 854-855.) Johnson is distinguishable because the question in that case was the identity of the possessor of contraband, several others were equally implicated, and the fingerprint did not resolve the issue of identity. (Id. at p. 855; see also People v. Flores (1943) 58 Cal.App.2d 764, 767-768 [fingerprint on a rear view mirror established only that the defendant had been in a stolen car, not that he was involved in stealing the car]; People v. Redmond (1969) 71 Cal.2d 745, 748 [the defendant's fingerprint found near a bedroom window, but evidence showed the defendant, a television salesperson, had been in the house the day before the burglary and the defendant had discussed the television with the homeowners in their bedroom near the window].)
Diaz's palm print was found on the outside of a broken window used to effect entry into a stranger's burgled apartment. The window where the print was found was behind a six-foot fence and not readily accessible to the public. Diaz lived near the apartment. The record contains sufficient evidence to reasonably infer Diaz left his palm print at the time of the burglary and not at an earlier date. Substantial evidence supports his conviction.
III
DISPOSITION
The judgment is affirmed.
ARONSON, ACTING P. J. WE CONCUR: FYBEL, J. THOMPSON, J.