Opinion
C088601
03-19-2020
THE PEOPLE, Plaintiff and Respondent, v. AARON LAMONT FREEMAN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF184293)
Defendant Aaron Lamont Freeman appeals from a judgment entered after a jury convicted him of second degree burglary (Pen. Code, § 459) and grand theft of property worth more than $950 (§ 487, subd. (a)). The trial court accepted defendant's admission to suffering two prior strike convictions. (§ 667, subd. (e).) The court imposed the minimum required statutory fees and fines, and defendant received a total aggregate prison sentence of six years.
Undesignated statutory references are to the Penal Code.
Defendant argues the trial court prejudicially erred in failing to hold a Kelly-Frye hearing in response to his motion in limine seeking to exclude any fingerprint evidence the People might offer to link him to the charged crimes. We disagree and will affirm the judgment.
People v. Kelly (1976) 17 Cal.3d 24 (Kelly); Frye v. United States (D.C. Cir. 1923) 293 F. 1013 (Frye).
BACKGROUND
We limit our description to that necessary for the disposition of defendant's arguments on appeal. Defendant filed a motion in limine arguing for the exclusion of various items of evidence at his upcoming jury trial. Included within this submission was a request for a Kelly-Frye hearing concerning the admissibility of any fingerprint evidence that the People intended to introduce. Defendant argued in this written submission that part of Kelly was a defendant's ability to "confront previously accepted science with new evidence." Defendant requested a hearing concerning the "admissibility and reliability" of the anticipated fingerprint evidence. However, this submission did not attach, nor describe any new science that allegedly undermined the long-established admissibility of fingerprint comparison evidence.
At the hearing on the motion in limine, defendant's counsel argued that there had been criticisms following the National Academy of Sciences report issued 10 years before and that in particular, one survey had shown "cases that ended up being reversed because DNA evidence was presented later on that exonerated a defendant who was convicted on the basis of a fingerprint alone." In response, the People argued that what defendant was describing was not "new scientific evidence." The trial court agreed, denying defendant's request for the Kelly-Frye hearing and noting that if defendant wished to challenge this evidence, he could present a competing expert of his own.
Thereafter at defendant's trial, the People presented eyewitness testimony that a Black man wearing a hoodie had been seen in the area of the charged crimes. The man was first seen walking without anything and then later seen with two large items that could have been boxes or bags. When the man observed the people noticing him, he quickened his pace, stowed the items, and quickly drove away in a small minivan or SUV that was silver or white and had dealer plates. Thereafter, it was discovered that the victim's van had been burgled and was missing several thousand dollars' worth of tools.
Defendant was cited for using his cell phone while driving a silver Nissan Quest with paper plates a few months after the crime.
The People also presented expert testimony of Spring Langston, a print analyst with the Department of Justice. Ms. Langston matched palm prints recovered from a tool box within the victim's van to defendant's known palm prints. Ms. Langston and her verifier utilized the ACE-V (analysis, comparison, evaluation, verification) method to analyze the prints. Eight points of similarity are required for a match, and Ms. Langston reviewed 10 different candidates identified through the Automated Latent Print System. Her results were verified by two individuals, one within the Department of Justice and one externally. One print shared 55 points of similarity with defendant's palm. The other three prints analyzed shared between 12 and 25 points of similarity. There were no points of dissimilarity, but Ms. Langston conceded that because her work involved "human interpretation" of the patterns there was a "potential for error." She also acknowledged that analysts did not always agree, and if there was not a consensus, then there would not be a match.
Finally, the People also presented evidence of defendant's alleged prior bad acts. (Evid. Code, § 1101, subd. (b).) The first was that he was found to be in possession of multiple tools owned by an unrelated construction company and the second was that an officer suspected she had interrupted him during an attempted burglary of a commercial van.
At the close of the People's case, defendant made a section 1118 motion to dismiss for insufficiency of evidence, which the court denied. As was his constitutional right, defendant rested without presenting a separate defense case. Ultimately, the jury found defendant guilty of second degree burglary (§ 459) and grand theft of property worth more than $950 (§ 487, subd. (a)). He timely appealed.
DISCUSSION
Defendant argues the trial court prejudicially erred in failing to hold a Kelly-Frye hearing in response to his motion in limine seeking to exclude any fingerprint evidence the People might offer to link him to the charged crimes. We disagree.
We generally review a trial court's decision to admit expert testimony for an abuse of discretion but review de novo any conclusions of law upon which that decision rests. (In re O.D. (2013) 221 Cal.App.4th 1001, 1005-1006.) Of note, at least two courts, including our own, have held that expert testimony concerning fingerprint analysis performed pursuant to the ACE-V method is not subject to scrutiny under Kelly as a matter of law. (People v. Rivas (2015) 238 Cal.App.4th 967, 974-975 (Rivas); In re O.D., at p. 1006.) Given this conclusion, the decision to hold a Kelly hearing is not undermined by subsequent reports that may question the reliability of fingerprint analysis. (Rivas, at p. 978; In re O.D., at pp. 1007-1008.) Rather, "the comparison of fingerprints is not the type of 'scientific technique' that Kelly governs." (In re O.D., at p. 1007.) We concur and find that defendant was not entitled to a Kelly hearing on the admissibility of fingerprint analysis evidence as a matter of law.
Our conclusion does not violate defendant's constitutional rights (People v. Prince (2007) 40 Cal.4th 1179, 1229 [the ordinary application of the rules of evidence does not violate a defendant's constitutional rights]), nor leave him without recourse in seeking to challenge the reliability of fingerprint analysis. Rather, as recognized in Rivas, a defendant may respond to fingerprint evidence by challenging the opposing fingerprint expert's training and methodology, as well as by offering competing expert testimony that the fingerprints do not actually match. (Rivas, supra, 238 Cal.App.4th at p. 978.) The trial court's ruling in this case recognized as much in stating that defendant was free to offer his own expert on the matter.
Finally, assuming arguendo that there might be an argument that newly issued reports questioning the reliability of fingerprint evidence could be relevant to whether fingerprint evidence should be generally admissible, here, defendant's mere reference at oral argument to a case survey following an unspecified National Academy of Sciences report failed to make the requisite showing that might justify such an inquiry. (See People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 832 [the defendants' reliance on a newspaper article concerning a federal district court's ruling on fingerprint evidence was "manifestly insufficient to warrant reconsideration of a form of evidence that has for many years been universally accepted"].)
Defendant's present reliance on a 2016 report of the President's Council of Advisors on Science and Technology is misplaced as this report was neither referenced in an offer of proof at oral argument on the motion, nor submitted to the trial court below for its consideration prior to the ruling on defendant's in limine request. It is therefore not part of the record on appeal and cannot be considered by this court. (See People v. Benavides (2005) 35 Cal.4th 69, 94-95 [review on direct appeal is limited to record, including any offers of proof].) --------
DISPOSITION
The judgment is affirmed.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Robie, J. /s/_________
Hoch, J.