Opinion
B208806
7-14-2009
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JOHN LUGO et al., Defendants and Appellants.
Nicholas C. Arguimbau, under appointment by the Court of Appeal, for Defendant and Appellant Michael John Lugo. Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant Cynthia Alice Brandon. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
I. INTRODUCTION
Defendants, Cynthia Alice Brandon and Michael John Lugo, appeal from their convictions for: first degree burglary with a person present (Pen. Code §§ 459, 667.5, subd. (c)(21)); receiving stolen property (§ 496, subd. (a)); and conspiring to commit burglary. (§ 182, subd. (a)(1).) Mr. Lugo was also found guilty of an additional count of first degree burglary. Mr. Lugo was found to have served two prior prison terms. Ms. Brandon was found to have served seven prior prison terms. (§ 667.5, subd. (b).) Defendants argue there was instructional error. Mr. Lugo further argues: the trial court improperly excluded opinion testimony and committed error regarding the fingerprint evidence; he was denied effective assistance of counsel; and, the trial court failed to hold a hearing regarding jury misconduct. Ms. Brandon argues there was insufficient evidence to either support her conviction for conspiracy to commit burglary or that she aided and abetted Mr. Lugo. Both defendants join the arguments of the other where they accrue to their benefit. We asked the parties to address a minor sentencing issue.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTUAL BACKGROUND
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) At approximately 7 a.m. on September 14, 2006, Ronald Alexander and his wife left their home on Lakecrest Avenue in Santa Clarita to go on vacation. Before leaving, Mr. Alexander closed and locked the doors and windows of the house. When the Alexanders returned one and one-half weeks later, they found the front door ajar. Two living room sliding glass doors had been pried open and damaged. When Mr. Alexander entered the front door, he saw a pair of black socks on the floor. Mr. Alexander found a drill case turned upside down in the master bedroom. Mr. Alexander prepared a list of the items taken from his home, including jewelry, cash, binoculars, and a small tape recorder. Mr. Alexander did not know Mr. Lugo.
On September 22, 2006, Forensic Identification Specialist Marisela Rowles lifted three sets of latent fingerprints from the Alexander home and placed them on separate cards. One set of prints was found on the sliding glass door. The other two sets were found on the sliding screen door. Latent Print Examiner Fred Roberts later examined the fingerprint cards and compared them to the fingerprints taken from Mr. Lugo. The first and second cards matched the ring and index fingers of Mr. Lugo. These matches were later confirmed by two other latent print examiners, Ralph Quezada and Sarah Watson.
On September 29, 2006, Richard Tilton lived on North Sunset Canyon in Burbank with his wife. They lived with their youngest son, Brian. Mr. Tilton and Brian left the house at approximately 11 a.m. The front and rear doors were locked at the time. Ms. Tilton had left earlier that day.
When Mr. Tilton and Brian returned shortly after 3:30 p.m., they discovered the bathroom window was open. They noticed the towel rack was broken and some things were on the floor. Mr. Tilton then found the back door wide open. The bathroom window screen was found approximately 50 feet away from the window. Mr. Tilton called the police. Mr. Tilton reported that a pillowcase had been removed from the bed. Several items of jewelry, a digital video disk player, two digital cameras, and four credit cards were missing. At trial, Mr. Tilton identified one of his credit cards that had been stolen on September 29, 2006. Mr. Tilton did not know Ms. Brandon. Mr. Tilton knew of no legitimate reason for Ms. Brandon to be in possession of his credit card.
On September 29, 2006, Trudy Rich went to her parents home on Pearblossom Highway in Palmdale. Ms. Richs parents, Georgina and Raymond Rich, left on vacation on September 25, 2006. Trudy was watching her parents home. When Trudy arrived on September 29, 2006, she noticed a red wagon in the front yard. The wagon was usually in the front hallway of the home. Trudy also noticed that most of the lights were on in the house. Trudys parents had only a few lights on timers. Trudy found the front door unlocked. When Trudy entered the home, she noticed some things lying on the floor. As Trudy went toward the back of the house, she saw the back sliding glass door was on its side in the dining room. Trudy called the sheriffs department. When the deputies arrived, they drew their guns and inspected the remainder of the house. The deputies reported that the upstairs portion of the house had been ransacked. Trudy later walked around the house. Trudy noticed that the safe and some jewelry were missing. On October 2, 2006, sheriffs department personnel took fingerprints from the house.
For purposes of clarity, Trudy and Georgina Rich will be referred to by their first names.
Mr. Rich testified that in September 2006 he and his wife went on a three-week vacation to the United Kingdom. Mr. Rich was notified by his daughter that his home had been burglarized. When they returned from vacation, his daughter had "tidied" the house up. However, Mr. Rich saw photographs of the house taken after the burglary. Mr. Richs office had been ransacked. Two laptops and printers had been stolen. The safe, containing jewelry, coins, and records was also missing. Many of Georginas belongings had also been taken. Trudys parents owned a red wagon, which had been purchased for their grandson. Trudys parents later went to the sheriffs station in Santa Clarita where they found two of their belongings. Mr. Rich identified his Social Security card and a credit card statement from J.C. Penneys that had been in his safe. Except for family members, Mr. Rich had not given anyone permission to enter his home while he was away. Mr. Rich neither knew Ms. Brandon nor was there any reason for her to be in possession of his credit card statement or social security card.
Deborah Tate went to check on her parents home on Caprock Street in Aqua Dulce at approximately noon on October 18, 2006. Ms. Tates parents, Susan and Daniel Winthers, had left on vacation a few days earlier. As Ms. Tate walked up the walkway, she could see the front door was open and a screen from the front window was laying on the walkway. As Ms. Tate entered the front door, she could see papers on the floor and open desk drawers in the nearby computer room. An entry closet was open. Items had been pulled out of the closet. Ms. Tate did not want to be alone at the house. Ms. Tate walked across the street to a neighbors house. The neighbor returned to the house with Ms. Tate. They determined that someone had been inside the house. The computer was missing off the desk and things were "generally" a mess.
The neighbor called the sheriff on her cellular telephone. Ms. Tate gave a report to a sheriffs deputy. Ms. Tate telephoned her parents the same day to report the burglary. A few days later, Ms. Tate met someone from the crime laboratory at her parents home. The technician dusted for fingerprints.
When the Winthers left their home on October 13, 2006, all the doors and most of the windows were locked. An 18-inch window in their computer room was left open approximately 3 inches. The Winthers travelled to Seattle and Canada. They were notified by Ms. Tate that their home had been burglarized. When they returned home, Mr. Winthers noticed that a computer and printer, checks from three separate checking accounts, a piggy bank, papers related to the purchase of his house and time share property, and other items were missing. On October 24, 2006, the Winthers went to the Santa Clarita Sheriffs station, where they identified several pieces of property stolen from their home. All of the items were returned to them. Deputy Michael Konecny took a photograph of the Winthers with the property they identified. Other than family members and one neighbor, no one had been given permission to go into the Winthers home or take anything from their house while they were on vacation. Mr. Winthers did not know either Mr. Lugo or Ms. Brandon. There was no legitimate reason for either defendant to have been in possession of the Winthers property.
On October 18, 2006, Samuel Boyer and his wife lived on Nearview Drive in Canyon Country. At approximately 10:30 a.m., Mr. Boyer heard a loud knock and pounding at the front door. When Mr. Boyer opened the door, a man in his late 20s or early 30s, who was dressed in mismatched camouflage clothing and a hat, asked if Tom Jones lived there. Mr. Boyer responded, "No." As the man began to leave, a Federal Express delivery man approached the door. The man walked down the steps to the driveway. A small red car had been parked in front of the house when Mr. Boyer first opened the door. Mr. Boyer spoke to the Federal Express representative. As they were walking, Mr. Boyer heard a car accelerate. When Mr. Boyer looked up, the red car was gone. Mr. Boyer reported these events to the sheriffs department on October 19, 2006.
Between 10:30 and 10:45 a.m. on October 18, 2006, Christy Stoker was alone at her home on Alder Peak Avenue in Canyon Country. Ms. Stoker was lying in bed reading at the time. Ms. Stoker heard someone pounding on the wood portion of her front door. Ms. Stoker believed the screen door must have been opened because the pounding was on wood. The pounding was much louder than a normal knock. Ms. Stoker initially ignored the pounding. However, when it continued, Ms. Stoker looked through the wood blinds of her bedroom window. Ms. Stoker saw a Latino man pounding on the door and attempting to look into the windows of the garage and bedroom.
Ms. Stoker became concerned. Ms. Stoker went to the door. After opening the door slightly, Ms. Stoker asked the man what he wanted. The man said he was looking for Tom Jones. Ms. Stoker advised the man that there was no one named Tom Jones there. Ms. Stoker closed and locked the door quickly. Ms. Stoker saw the man walk to a four-door "maroonish red Dodge Intrepid" parked at the curb. Ms. Stoker looked out again from the bedroom as she was feeling uneasy. Ms. Stoker saw the same car pulling away from the curb and driving in the direction of Canvas Street. Ms. Stoker called the sheriffs department the following day to report what had occurred.
At approximately 10:45 a.m. on October 18, 2006, Nadine Teter was alone in her house on Canvas Street near Alder Creek Avenue in Canyon Country. Ms. Teter was sitting in her den writing a letter when her doorbell rang. Ms. Teter always kept her screen door locked. Ms. Teter routinely entered her house through the garage. Ms. Teter looked through the peephole of the front door. Ms. Teter did not expect anyone to visit and did not recognize Mr. Lugo who was standing on her doorstep. Ms. Teter had lived in the house for nine years and did not recognize Mr. Lugo as a neighbor. Ms. Teter looked out of her front window and did not see a car outside.
Ms. Teter returned to the den. The doorbell rang again. Ms. Teter saw Mr. Lugo standing outside when she looked through the peephole. Mr. Lugo then began banging on the screen door. Mr. Lugo forced open her screen door. Mr. Lugo then began banging on the wooden front door and jiggling the handle. Ms. Teter became very frightened. Ms. Teter called her neighbor, Frank Santilli, who lived about six houses away. Ms. Teter asked Mr. Santilli to pull up and scare Mr. Lugo away. After attempting to look inside through the stained glass window, Mr. Lugo suddenly disappeared.
Ms. Teters home had two gates to the rear yard. Both were only accessible by key. Because he was so violent at the front door, Ms. Teter believed Mr. Lugo was coming into her house. Ms. Teter grabbed a gun from her bedroom. Because Ms. Teter did not know where Mr. Lugo would enter her house, she ran into the back yard. As Ms. Teter turned to her right, Mr. Lugo was standing in her yard. To get into the yard, he would have necessarily gone through the gate or over the fence. As Mr. Lugo walked toward Ms. Teter, she pointed her gun and shot him. Mr. Lugo fell to his knees. Mr. Lugo got back up and began yelling at Ms. Teter. Ms. Teter shot at Mr. Lugo again. Mr. Lugo fell back against a fence. Ms. Teter believed that she hit him again. Ms. Teter had fired three shots. Mr. Lugo then jumped over the fence.
Ms. Teter ran into the house and called the sheriffs department. As Ms. Teter was speaking to the sheriffs department, she saw a white truck drive by very slowly. Ms. Teter saw three Latinos inside the truck. Ms. Teter believed that Mr. Lugo may have been one of those inside the truck. Mr. Santilli arrived at Ms. Teters home while she spoke to sheriffs deputies. Ms. Teter asked Mr. Santilli to follow the truck. The sheriffs deputies arrived at Ms. Teters home at approximately the same time as Mr. Santilli returned. Shortly thereafter, the deputies took Ms. Teter to Deep Creek and Soledad Canyon. At that location, Ms. Teter saw an ambulance, fire trucks, and sheriffs cars. Ms. Teter identified Mr. Lugo as the person she had shot. A tape recording of Ms. Teters call to the sheriffs department was played for the jurors at trial.
Sheriffs Deputies Brandon Walsh and Timothy Hemphill responded to the call regarding a burglary with shots fired at Ms. Teters address. While en route, they were flagged down by Ms. Brandon, who was driving a red Dodge Intrepid on Soledad Canyon just east of Deep Creek. Ms. Brandon frantically waved her arm out the window toward the deputies. Deputy Walsh stopped his patrol car. Deputies Walsh and Hemphill believed Ms. Brandon might be a witness. Ms. Brandon got out of her car. Ms. Brandon was frantic, yelling that her son had been shot. When the deputies opened the passenger side of the car, Mr. Lugo fell out onto the curb. Mr. Lugos shorts were soaked in blood. Deputy Hemphill noticed that Mr. Lugo had a gunshot wound to his chest. Deputy Hemphill began to render aid while Deputy Walsh radioed for paramedics. Mr. Lugo was asked how he had been shot. Mr. Lugo said it was "a gang thing." Ms. Brandon told Deputy Hemphill that her son told her that the shooting occurred as a result of a gang altercation. Deputy Walsh instructed Mr. Lugo to use gauze pads on the two leg wounds. When the paramedics arrived within five minutes, they began to treat Mr. Lugo. Thereafter, Mr. Lugo was arrested. Deputy Walsh then went to Ms. Teters home to interview her. Deputy Walsh recovered two spent bullets in the back yard of Ms. Teters home.
Sergeant John Bomben also arrived to the scene where Mr. Lugo was being treated. Sergeant Bomben participated in the investigation involving the red Dodge Intrepid. Sergeant Bomben found: a cellular telephone in the glove box of the red car; a black mens wallet on the back seat; a chrome piggy bank; an oak box with a stained glass inset; and another wallet in the rear passenger area. Deputy Adam Dorman was also involved in the investigation of the red Dodge. Deputy Dorman discovered a Radio Shack scanner under the drivers seat of the car. Deputy Dorman found a wallet on the top of the drivers seat of the car. The wallet contained a temporary drivers license in Ms. Brandons name along with Department of Motor Vehicles paperwork. Also inside the wallet was: a social security card; a Mervyns credit card in the name of Richard Tilton; a J.C. Penneys credit card statement in the name of Raymond Rich; a Wells Fargo automated teller card in the name of Avis DeJean; and a proof of car registration from the Automobile Club. In the back seat of the red Dodge Intrepid, Deputy Dorman found: a computer monitor; a combination printer, copier, and scanner; a Canon Sure Shot digital camera; a blue bag containing walkie talkies and a rechargeable base; and a camouflage cap. Deputy Dorman also uncovered a pair of bolt cutters and a checkbook and a box of checks in the names of Susan and Daniel Winthers. Deputy Mark Barretto recovered: a white bracelet and a screwdriver from the storage area of the front passenger door; a checkbook and three individual checks in the name of Winthers; and a black and white camouflage shirt and a white T-shirt.
III. DISCUSSION
A. Instructions
1. Unanimity instruction
a. the trial court should have given a unanimity instruction as to the receiving stolen property charge
Defendants argue that the trial court improperly failed to instruct the jury on the unanimity requirement as to the receiving stolen property charge. Mr. Lugo argues that the property found in Ms. Brandons car at the time the sheriffs deputies stopped to assist him with his gunshot injuries "came from four different, unrelated sets of alleged victims." Additionally, the stolen property was taken on separate dates in distinct communities. Similarly, Ms. Brandon argues, "[T]he conviction on the single count of receiving stolen property could have been based on two or more discrete criminal events: it was not alleged nor was it proven that all the property was stolen at the same time, nor that [she] received all the stolen property at the same time." Ms. Brandon further argues, "The fact the police found all the stolen items on the same day does not mean only one discrete act of receiving stolen property occurred." The Attorney General argues that no unanimity instruction was required because the burglaries and related receiving stolen property charges constituted a continuous course of conduct. The Attorney General argues that because a continuous course of conduct is present, the unanimity instruction requirement is not present. As set forth below, the jury should have been instructed on unanimity. However, any error in failing to do so was harmless.
Our California Supreme Court has held: "In a criminal case, a jury verdict must be unanimous. (People v. Collins (1976) 17 Cal.3d 687, 693; see Cal. Const., art. I, § 16 . . . .) . . . Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. (People v. Diedrich (1982) 31 Cal.3d 263, 281.) Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. (People v. Castro (1901) 133 Cal. 11, 13; People v. Williams (1901) 133 Cal. 165, 168; CALJIC No. 17.01; but see People v. Jones (1990) 51 Cal.3d 294 .) [¶] This requirement of unanimity as to the criminal act `is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed. (People v. Sutherland (1993) 17 Cal.App.4th 602, 612.)" (People v. Russo (2001) 25 Cal.4th 1124, 1132; see also People v. Benavides (2005) 35 Cal.4th 69, 101; People v. Napoles (2002) 104 Cal.App.4th 108, 114; People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.)
In this case, defendants were charged with receiving stolen property. The evidence found in Ms. Brandons car shortly after Mr. Lugo burglarized Ms. Teters home suggested that defendants might have received different items of stolen property from four different burglaries. As a result, the jurors should have been instructed that they must agree that each defendant was guilty with respect to receiving one or more of the items of property produced at trial. (People v. Davis (2005) 36 Cal.4th 510, 561; People v. Deidrich, supra, 31 Cal.3d at p. 281.)
We disagree with the Attorney General that the string of burglaries constituted a continuous course of conduct and therefore no unanimity instruction was required. The continuous conduct exception is unique to those cases where a defendant is charged with committing various acts over time against the same victim pursuant to an overall plan or scheme. In People v. Daniel (1983) 145 Cal.App.3d 168, 174-175, the defendant was charged with grand theft by embezzlement from a single victim over a period of five months with a single fraudulent intent or objective. Our colleagues in Division Six of this appellate district held: "In People v. Ewing (1977) 72 Cal.App.3d 714, 717, the court was presented with the question whether the trial court should have given a sua sponte jury instruction declaring that a finding of guilt would require the jurors to agree that defendant committed the same act or acts. It concluded that where the information alleged a course of conduct in statutory terms which had occurred between two designated dates and the issue before the jury was whether the accused was guilty of the course of conduct, not whether he had committed a particular act on a particular day, such an instruction was inappropriate and its omission not error."
In People v. Parsons (1984) 156 Cal.App.3d 1165, 1173-1174, our colleagues in Division Seven of this appellate district held that the continuous conduct exception did not apply where the defendant was charged with receiving stolen property and the evidence presented at trial suggested he received four different items of stolen property at four different times. Our Division Seven colleagues held: "[T]he jury would have to have agreed on which act or acts of receiving the particular item or items of property the appellant was guilty of before convicting him of the crime [of receiving stolen property]. [Citation.] CALJIC No. 17.01, then, should have been given sua sponte." (Ibid.; see People v. Gonzalez (1983) 141 Cal.App.3d 786, 792, fn. 6.) The same is true in this case.
b. the failure to give the unanimity instruction was harmless
The Courts of Appeal have held: "The failure to provide a unanimity instruction is subject to the Chapman [v. California (1967) 386 U.S. 18] harmless error analysis on appeal. [Citations.] Under that standard the question is `"whether it can be determined, beyond a reasonable doubt, that the jury actually rested its verdict on evidence establishing the requisite [elements of the crime] independently of the force of the . . . misinstruction." [Citation.]" (People v. Curry (2007) 158 Cal.App.4th 766, 783, footnote omitted, quoting People v. Wolfe (2003) 114 Cal.App.4th 177, 188; People v. Thompson (1995) 36 Cal.App.4th 843, 853; People v. Deletto (1983) 147 Cal.App.3d 458, 472.) In this case neither defendant proffered any defense to the substance of the charges. The only evidence presented by the defense related to Mr. Lugos gunshot wounds. But the prosecution demonstrated the following. Just prior to the burglary at Ms. Teters home, Ms. Brandons red car was spotted by two Canyon Country residents after Mr. Lugo, dressed in mismatched camouflage clothing, pounded on their doors allegedly looking for "Tom Jones." The red Dodge Intrepid was registered to Ms. Brandon. Defendant was wearing camouflage pants when he was shot. The mismatched bloody camouflage shirt was in the back seat of Ms. Brandons car. When Ms. Brandon summoned help from passing sheriffs deputies for Mr. Lugos wounds, Mr. Richs social security card and bank statement along with Mr. Tiltons Mervyns credit card were found in her wallet. In addition, the Winthers property was found in various parts of Ms. Brandons car when sheriffs deputies began investigating defendants relationship to the nearby shooting which occurred during a burglary. The Winthers home was burglarized between October 13 and 18, 2006. In addition, Mr. Lugos fingerprints were matched to those lifted from the burglary scene at Mr. Alexanders home. Based on the evidence presented at trial and the lack of any meaningful defense, the failure to give a unanimity instruction was harmless under any standard of reversible error. (Chapman v. California, supra, 386 U.S. at p. 22; People v. Jones (1990) 51 Cal.3d 294, 307; People v. Watson (1956) 46 Cal.2d 818, 836; People v. Curry, supra, 158 Cal.App.4th at p. 784; People v. Parsons, supra, 156 Cal.App.3d at p.1174.)
2. Instruction defining "entry"
a. overview
Mr. Lugo argues that the trial court improperly instructed the jury on the definition of "entry" as it relates to the burglary of Ms. Teters home. Mr. Lugo argues that the instruction mandated that the jury find an "entry" if the screen door was locked when he opened it, thereby precluding a conclusion that anyone approaching the door could have lawfully opened it. Ms. Brandons proposed instruction, "Defendants Stipulated Special Instruction No. 1," was given as follows: "If you the jury find that the front screen door on Nadine Teters house was locked and defendant Lugo opened the locked screen door, the defendant `entered into Ms. Teters residence as that term is used in the instruction given to you defining the elements of a burglary. [¶] On the other hand, if you find that the front screen door was not locked and Mr. Lugo opened the unlocked screen door, then defendant Lugo did not `enter Ms. Teters residence as that term is used in the instruction given to you defining the elements of burglary." As noted, Ms. Teter testified: she always kept her screen door at the front entrance of her home locked; she routinely entered her home through a door connecting her garage to her house; and defendant forced open the front screen door.
b. forfeiture
Preliminarily, Mr. Lugo has forfeited this contention. Mr. Lugo failed to object to the special instruction at trial. During the discussions between the trial court and counsel regarding instructions, the prosecutor questioned the propriety of Ms. Brandons proposed special instruction as set forth above. The trial court noted, "If it were way off I wouldnt worry about playing it safe, but its a legitimate well phrased defense special." Mr. Lugos attorneys silence constituted acquiescence to the instruction. The California Supreme Court has held that in the absence of a request for amplification or modification of an instruction by the defendant, "[T]he trial court is under no duty to give such an instruction sua sponte." (People v. Rodrigues (1994) 8 Cal.4th 1060, 1189; People v. Hamilton (1988) 46 Cal.3d 123, 146; see also People v. Johnson (1993) 6 Cal.4th 1, 52; People v. Lang (1989) 49 Cal.3d 991, 1024; see also People v. Estrada (1995) 11 Cal.4th 568, 574.)
c. the special instruction was properly given
Notwithstanding that forfeiture, the special instruction properly explained the holding of our Supreme Court in People v. Valencia (2002) 28 Cal.4th 1, 10: "In other instances, in which the outer boundary of a building for purposes of burglary is not self-evident, we believe that a reasonable belief test generally may be useful in defining the buildings outer boundary. Under such a test, in dealing with items such as a window screen, a buildings outer boundary includes any element that encloses an area into which a reasonable person would believe that a member of the general public could not pass without authorization. Thus, whereas decisions treat an `ordinary, unenclosed front porch of a house [citation] as not part of the buildings outer boundary, because a reasonable person usually would believe that a member of the general public did not need authorization to pass onto such a porch, they treat a screen door to an enclosed porch of a house [citations] and a locked gate covered with iron mesh in front of an enclosed and roofed front stairway of a house [citation] as part of the buildings outer boundary, because a reasonable person usually would believe that a member of the general public needed authorization to walk through such a screen door or gate." (Original italics, fn. omitted; People v. Wise (1994) 25 Cal.App.4th 339, 344-345 ["[A]n entry occurs for purposes of the burglary statute if any part of the intruders body, or a tool or instrument wielded by the intruder is `inside the premises. [Citations.] ]; People v. Brown (1992) 6 Cal.App.4th 1489, 1497; State v. Jenkins (Mo.Ct.App.1987) 741 S.W.2d 767, 769; Bowers v. State (1982) 164 Ga.App.462, 463.) In Valencia, our Supreme Court concluded, "[P]enetration into the area behind a window screen amounts to an entry of a building within the meaning of the burglary statute even when the window itself is closed and is not penetrated." (People v. Valencia, supra, 28 Cal.4th at p. 13, fn. omitted; see People v. Moore (1994) 31 Cal.App.4th 489, 492-493 [holding that penetration of a screen door of a house amounts to an entry of a building]; People v. Garcia (2004) 121 Cal.App.4th 271, 280 [insertion of a tool into a door jamb constitutes an entry within the meaning of the burglary statute].)
d. any error in giving the instruction was harmless
Any error in so instructing the jury was harmless in light of the evidence and other instructions. (People v. Ervin (2000) 22 Cal.4th 48, 91; People v. Flood (1998) 18 Cal.4th 470, 489; People v. Watson, supra, 46 Cal.2d at p. 836.) As previously explained, no defense witnesses testified as to the merits of the burglary charges. And, as noted, Ms. Teter testified she kept the front screen door always locked and defendant had forced it open. Ms. Teters testimony in this regard was uncontradicted. Thus, any purported error was harmless.
3. The overt acts of conspiracy to commit burglary
a. inclusion of overt act of entering Ms. Teters yard by jumping over a wall
Both defendants argue that the trial court improperly included the overt act involving Mr. Lugos entrance to the backyard of Ms. Teters home by jumping over the wall as part of the conspiracy instruction. Mr. Lugo argues: "If, as asserted by the People, what occurred at the front door of the Teter residence was an `entry, then, assuming for sake of argument that the purpose of the `entry to commit theft in the Teter residence had been proven, then the burglary was complete before Mr. Lugo entered the back yard." Ms. Brandon argues that if the burglary was committed when Mr. Lugo opened the screen door, his entry into the back yard did not qualify as an overt act to support conspiracy to commit burglary. Ms. Brandon further argues that as a result of the erroneous instruction she was denied her federal constitutional right to due process of law.
b. forfeiture
Neither defendant objected to or suggested modification of the conspiracy instruction as framed and given to the jury. As noted previously, their failure to object forfeits the issue on appeal. (People v. Rodrigues, supra, 8 Cal.4th at p. 1189; People v. Hamilton, supra, 46 Cal.3d at p. 146.)
c. the overt act was properly included in the instruction
Section 184 states in relevant part, "No agreement amounts to a conspiracy, unless some act, beside such agreement, be done within this state to affect the object thereof, by one or more of the parties to such agreement . . . ." (Italics added.) In People v. Jurado (2006) 38 Cal.4th 72, 121-122, our Supreme Court held: "`A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act "by one or more of the parties to such agreement" in furtherance of the conspiracy. (People v. Morante (1999) 20 Cal.4th 403, 416; accord, People v. Russo[, supra,] 25 Cal. 4th [at p.] 1131.) `Disagreement as to who the coconspirators were or who did an overt act, or exactly what that act was, does not invalidate a conspiracy conviction, as long as a unanimous jury is convinced beyond a reasonable doubt that a conspirator did commit some overt act in furtherance of the conspiracy. (People v. Russo, supra, [25 Cal.4th] at p. 1135.)" (Italics added.) In Jurado, the prosecution alleged: five overt acts were committed; two of the alleged overt acts were committed before the murder; two overt acts were committed after the murder; and the murder itself constituted an overt act. In Jurado, our Supreme Court held: "Although defendant is correct that the overt act requirement may not be satisfied by conduct occurring after the target offense is complete (People v. Zamora (1976) 18 Cal.3d 538, 560), defendant was not prejudiced by the jurys consideration of the invalid postoffense overt act allegations, and the valid finding of a single overt act is sufficient to support the conspiracy verdict. [Citation.]" (People v. Jurado, supra, 38 Cal. 4th at p. 122, italics added; People v. Padilla (1995) 11 Cal.4th 891, 965-966, overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1 [commission of the target offense in furtherance of the conspiracy satisfies the overt act requirement].)
In this case, it may be argued, as defendants suggest, that Mr. Lugos entrance to Ms. Teters back yard followed the completion of the "burglary" he had already completed when he forced open the locked screen door. However, an inference may be drawn that Mr. Lugo intended to commit another burglary, i.e. entry, by entering the locked yard to procure property from Ms. Teters home. Ms. Teter testified she was afraid Mr. Lugo might enter the house through another means after he was denied entrance via the front door. (See People v. Deidrich, supra, 31 Cal.3d at p. 284 [where defendant was charged with bribery based on various acts, jury could infer that a payment of $20,000 was for future favors rather than a late payment for a previous election vote].) In any event, as was the case in Jurado, it was of no consequence that the burglary may have been complete before the alleged overt act of scaling the gate or fence. As in Jurado, in this case, the amended information alleged and the jury found true six overt acts in furtherance of the conspiracy. The jury need only have found one overt act to support defendants conspiracy conviction. (§ 184; People v. Jurado, supra, 38 Cal. 4th at p. 122; People v. Morante, supra, 20 Cal.4th at p. 416; accord, People v. Russo, supra, 25 Cal.4th at p.1131; see also People v. Godinez (1993) 17 Cal.App.4th 1363, 1367.) As a result any error in including the back yard entry as an overt act furthering the conspiracy was harmless under any standard of reversible error analysis. (Chapman v. California, supra, 386 U.S. at p. 22; People v. Watson, supra, 46 Cal.2d at p. 836.)
B. Sufficiency Of The Evidence
1. Sufficient Evidence Supported Ms. Brandons and Mr. Lugos Conspiracy Convictions
Ms. Brandon argues that there was insufficient evidence of a conspiracy to commit burglary at Ms. Teters home. Mr. Lugo has joined Ms. Brandons arguments that accrue to his benefit. Ms. Brandon further argues that her federal constitutional due process right was violated as a result of her conviction on count 5. In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: "[We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." (People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted; see also People v. Whisenhunt (2008) 44 Cal. 4th 174, 200; People v. Guerra (2006) 37 Cal.4th 1067, 1129, overruled on another point in People v. Rundle (2008) 43 Cal.4th 76, 151.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia, supra, 443 U.S. at p. 319; People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Marshall (1997) 15 Cal.4th 1, 34; People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes (1986) 42 Cal.3d 284, 303; Taylor v. Stainer, supra, 31 F.3d at pp. 908-909.) The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. (People v. Whisenhunt, supra, 44 Cal.4th at p. 200; People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Stanley (1995) 10 Cal.4th 764, 792; People v. Bloom (1989) 48 Cal.3d 1194, 1208; People v. Bean (1988) 46 Cal.3d 919, 932.) Our Supreme Court has held, "Reversal on this ground is unwarranted unless it appears `that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." (People v. Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)
The elements of the crime of conspiracy include an agreement to commit a crime and an overt act in furtherance of that understanding. (§§ 182, 184.) As discussed previously in Jurado, our Supreme Court explained: "`A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act "by one or more of the parties to such agreement" in furtherance of the conspiracy. [Citation.]" (People v. Russo, supra, 25 Cal.4th at p. 1131; People v. Morante, supra, 20 Cal.4th at p. 416, fn. 4; People v. Bratis (1977) 73 Cal.App.3d 751, 765.) As Ms. Brandon readily acknowledges, a conspiracy may be proven by circumstantial evidence. (People v. Zamora, supra, 18 Cal.3d at p. 559; People v. Prevost (1998) 60 Cal.App.4th 1382, 1399; People v. Superior Court (Quinteros) (1993) 13 Cal.App.4th 12, 20-21.) In Quinteros, we held: "The circumstances from which a conspirational agreement may be inferred include `the conduct of defendants in mutually carrying out a common illegal purpose, the nature of the act done, the relationship of the parties [and] the interests of the alleged conspirators . . . . [Citation.]" (Id. at pp. 20-21, quoting People v. Remiro (1979) 89 Cal.App.3d 809, 843.)
In People v. Prevost, supra, 60 Cal.App.4th at page 1399, our colleagues in Division Seven of this appellate district held: "In proving a conspiracy [] it is not necessary to demonstrate that the parties met and actually agreed to undertake the unlawful act or that they had previously arranged a detailed plan. The evidence is sufficient if it supports an inference that the parties positively or tacitly came to a mutual understanding to commit a crime. Therefore, conspiracy may be proved through circumstantial evidence inferred from the conduct, relationship, interests and activities of the alleged conspirators before and during the alleged conspiracy. [Citation.]" (Ibid.; People v. Cooks (1983) 141 Cal.App.3d 224, 311.) In Prevost, the court continued: "While `mere association cannot establish a conspiracy, `[w]here there is some evidence of participation or interest in the commission of the offense, it, when taken with evidence of association, may support an inference of a conspiracy to commit the offense. [Citation.]" (People v. Prevost, supra, 60 Cal.App.4th at p. 1400; accord, People v. Hardeman (1966) 244 Cal.App.2d 1, 41.)
Here, there was substantial evidence that both defendants were coconspirators who intended to commit a burglary. The burglaries of the Richs, Winthers, and Tiltons were all in the general vicinity of Ms. Teters residence. In addition, Mr. Lugo pounded on the doors of Mr. Boyer and Ms. Stoker. Within one-half hour later, he began pounding on the door at Ms. Teters nearby residence. Both Mr. Boyer and Ms. Stoker saw a red car resembling the one registered to Ms. Brandon nearby when Mr. Lugo was allegedly inquiring about "Tom Jones." Mr. Lugos efforts to burglarize Ms. Teters home were not deterred when he was unable to gain entry by breaking the front screen door. Mr. Lugo then jumped over a locked gate into the rear yard, where he was shot by Ms. Teter. Moreover, when Ms. Brandon flagged down sheriffs deputies to assist with Mr. Lugos gunshot injuries, the majority of the stolen property from the Rich, Winther, and Tilton residences was found in her red Dodge Intrepid automobile. Ms. Brandons wallet contained a social security card and Mervyns credit card in the name of Richard Tilton. Ms. Brandons wallet also contained a J.C. Penneys credit card statement in the name of Raymond Rich. A pair of bolt cutters and a flat head screwdriver were also found in Ms. Brandons car. At the time sheriffs deputies tended to Mr. Lugos wounds, he was wearing the distinctive camouflage clothing. This was similar to the camouflage clothing as described by Mr. Boyer. In addition, Ms. Teter positively identified Mr. Lugo when she was brought to where he was being treated by paramedics. When the evidence is viewed in its entirety, a reasonable juror could conclude that Ms. Brandon and Mr. Lugo committed the offense of conspiracy to commit burglary.
2. There was substantial evidence to demonstrate that Ms. Brandon aided and abetted the Teter burglary
Ms. Brandon further argues that there was insufficient evidence to show that she aided and abetted Mr. Lugo in committing the burglary at Ms. Teters home. In People v. Prettyman (1996) 14 Cal.4th 248, 259, the California Supreme Court held: "Under California law, a person who aids and abets the commission of a crime is a `principal in the crime, and thus shares the guilt of the actual perpetrator. (§ 31.)" In Prettyman, our Supreme Court explained: "In People v. Beeman (1984) 35 Cal.3d 547, we discussed the mental state necessary for liability as an aider and abettor. To prove that a defendant is an accomplice, we said, the prosecution must show that the defendant acted `with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. (Id. at p. 560, italics in original.) When the offense charged is a specific intent crime, the accomplice must `share the specific intent of the perpetrator; this occurs when the accomplice `knows the full extent of the perpetrators criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrators commission of the crime. (Ibid.) Thus, we held, an aider and abettor is a person who, `acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime. (Id at p. 561.)" (People v. Prettyman, supra, 14 Cal.4th at p. 259; see also People v. Croy (1985) 41 Cal.3d 1, 12 [It is the intent to encourage and bring about criminal conduct, not the specific intent that is an element of the target offense, which the jury must find]; People v. Hickles (1997) 56 Cal.App.4th 1183, 1193-1194.)
As noted, the circumstantial evidence that Ms. Brandon was involved in the Teter burglary conspiracy was overwhelming. Ms. Brandons car was present when Mr. Lugo approached the doors of two neighboring residences. Mr. Lugo claimed to be looking for "Tom Jones" once the occupant came to the door. These acts occurred within minutes of Mr. Lugos pounding on Ms. Teters door. When no one responded to his repeated pounding, Mr. Lugo broke open the locked screen door. When he was unable to gain access by way of the front door, Mr. Lugo jumped over the fence into the back yard. After he was shot, Mr. Lugo obviously made his escape by way of Ms. Brandons car, where he was found minutes later when she flagged down sheriffs deputies. The bounty of previous burglaries was found not only in Ms. Brandons car, but also in her wallet. Based on the evidence presented, the jury could reasonably find that Ms. Brandon: acted with the knowledge of Mr. Lugos unlawful purpose; facilitated the commission of the burglary; and either aided or encouraged the commission of the offense.
C. Fingerprint Evidence
1. Admissibility of fingerprint evidence
With respect to the fingerprint identification related to the Alexander burglary, Mr. Lugo argues that the fingerprint identification procedure utilized in the United States known as "ACE-V" (Analyze, Compare, Evaluate, Verify) has never been the subject of scientific controlled reliability testing and the authentication process is not a blind procedure. Mr. Lugo argues the trial court improperly: overruled defense counsels objection to the testimony concerning a Federal Bureau of Investigation database; denied defense counsels request to call Dr. Samuel Cole to present opinion-based testimony on fingerprint evidence collection and analysis; and refused to conduct a hearing pursuant to Evidence Code section 402, subdivision (b). As a result, defendant argues he was denied the right to present a defense.
2. Factual and procedural background
Prior to trial, Nancy Pogue, Mr. Lugos counsel, made an oral motion to "exclude the governments latent fingerprint identification evidence pursuant to Evidence Code section 402" based on the holding in Daubert v. Merrell Dow Pharmaceuticals (1993) 509 U.S. 579, 589-594. Ms. Pogue argued: "There is an absence of scientific testing. There has been no testing to determine the probability of two different people having a number of fingerprint ridge characteristics in common." In denying the motion, the trial court noted: "[F]ingerprint identification testimony has been accepted in the United States for about a century. The Kelly Fry[e] standard for admitting the results of new scientific techniques remains the California standard and Daubert still has not been accepted by the California Supreme Court. [¶] The California Supreme Court has also rejected challenges to the admissibility of expert testimony on fingerprint identification on the ground that it fails to meet the appropriate standards. See People versus Farham, 28 Cal.4th at 107. And I must follow the California Supreme Court decisions under Auto Equity Sales Inc. versus the Superior Court. [¶] . . . I further cite you the record to the one Witkin on Evidence at Opinion Evidence, [sic] thats section 68, which discusses the fact that the techniques and admissibility of fingerprint identification has been long established. . . . [¶] There [are] California cases saying fingerprint evidence is the strongest evidence of identity and is ordinarily sufficient alone to identify the defendant. [¶] The one thing that defense can do is call its own expert regarding the reliability of the subject matter, speaking as a criminalist. Two, it can call its own expert after it has a fingerprint match examination by its own expert who could testify as a contradictory expert that there is no match and the person testifying for the prosecution doesnt know what he is talking about. [¶] And then finally, you have the ability to cross-examine the expert based upon the premises that you have discussed as in your motion to keep this evidence out. You can ask questions along those lines and establish for whatever purpose you wish to employ in final argument that these are critical factors and that the answers of the Peoples expert doesnt make sense or cant be answered." The trial court also denied Ms. Pogues Evidence Code section 352 objection to the fingerprint evidence.
Thereafter, Ms. Pogue requested under seal that the trial court appoint Simon Cole, Ph.D. as an expert witness "as to the scientific validity of latent fingerprint evidence" with a supporting declaration. Ms. Pogue argued, "[I]ts the defense position that the purpose of having Dr. Simon Cole appointed is to point out the flaws involved in latent fingerprint identification evidence and also how the current state of obtaining that evidence and presenting it in trial at this time does not meet the requirements of the [Daubert] case." In denying the request, the trial court stated: "Ive read the declaration at this time and Im familiar with Dr. Cole. I permitted him to testify in a previous case where fingerprints were in issue. [¶] The prosecution has not seen this declaration. It was filed under seal; but the subject matter is now being brought up on the record. [¶] Heres the courts position. [¶] On that case I played with the idea — and he did testify about what he felt about fingerprints and their unreliability. [¶] I did not consider the fact that — and he did testify to this in a 402 hearing and at that trial in this building that he was an expert on prints. That is to say that he lifts prints, that he compares prints, that he knows the subject matter as an expert would know, a latent print examiner would know. [¶] He simply says that hes a criminalist. I think hes with the University of California, Irvine. [¶] I read his curriculum vitae about two years ago; and he just assails the reliability of prints. [¶] And what he does is he goes to studies, and all he does is serve as a repository for hearsay based on articles that are written in various books. He does not have any hands-on knowledge of the subject matter. [¶] And, number two, I played with the issue in that case and decided there on the side of allowing the evidence in. [¶] I was very cautious because it was a very long trial, the nature of the trial which generated a 43 page decision, non-published; and I thought in that case I should have at least required the prosecution to establish through an expert that there was a print comparison and that it was a no make, but I decided to play it cautious and let him testify. [¶] Thinking about the matter over the last couple of years and talking to judges at seminars, I am of the opinion that unless the prosecution shows they have an expert that can testify that the latent prints made by the Peoples expert in a particular case is a no make, there should be no reason to put Dr. Cole on; and even if I dont have that as a requirement, Dr. Cole shouldnt be permitted to testify because hes not an expert. Hes a general criminalist and really has never made a print comparison in his entire life. [¶] So on both those grounds Im denying the request to let him testify at this time." The trial court continued that it would be a waste of public resources to appoint Dr. Cole. The trial court then refused to conduct an Evidence Code section 402 hearing on the matter and declined to appoint Dr. Cole based on Ms. Pogues declaration.
3. The trial court could properly deny Mr. Lugos motions
In Daubert v. Merrell Dow Pharmaceuticals, supra, 509 U.S. at pages 589-594, the United States Supreme Court rejected the test governing the admissibility of scientific testimony set forth in Frye v. United States (D.C. Cir. 1923) 293 F. 1013. The test articulated in Frye allowed the admission of testimony about a scientific technique if it had achieved general acceptance in the relevant scientific community. (Ibid.; People v. Kelly (1976) 17 Cal.3d 24, 30.) In Kelly, our Supreme Court adopted the Frye test for the admissibility of opinion testimony deduced from a scientific principle or discovery. (People v. Leahy (1994) 8 Cal.4th 587, 594-595; People v. Kelly, supra, 17 Cal.3d at p. 30.) In Daubert, the United States Supreme Court held that under rule 702 of the Federal Rules of Evidence (28 U.S.C.) a district court judge must evaluate the reliability of scientific evidence utilizing various factors. (Daubert v. Merrell Dow Pharmaceuticals, supra, 509 U.S. at p. 589; see People v. Leahy, supra, 8 Cal.4th at pp. 596-597.) However, Daubert did not interpret the federal Constitution. Moreover, as the trial court in this case noted, our Supreme Court has rejected the Daubert test. In People v. Leahy, supra, 8 Cal.4th at page 594, our Supreme Court held the test set forth in People v. Kelly, supra, 17 Cal.3d at page 30 rather than that articulated in Daubert applies in California. (See People v. Wilkinson (2004) 33 Cal.4th 821, 843.)
Under the test first articulated in California in People v. Kelly, supra, 17 Cal.3d at page 30, fingerprint evidence of the type involved in this case is not subject to challenge. Quoting People v. Pride (1992) 3 Cal.4th 195, 238, in People v. Farnam (2002) 28 Cal.4th 107, 160, our Supreme Court held: "Under Kelly, `the proponent of evidence based on a "new" scientific technique must `establish its general acceptance within the relevant scientific community. [Citations.]" (See People v. Ayala (2000) 24 Cal.4th 243, 281.) In Farnam, our Supreme Court held the admission of a witnesss testimony concerning the Los Angeles Police Departments use of a computerized database for fingerprint matching did not implicate the concerns addressed in Kelly: "The reliability of the computerized system in comparing latent prints to fingerprints in its database was apparent at trial. The jury could make its own comparisons between the latent prints found at the [] crime scene and defendants fingerprints, and there was no dispute that the system made its comparisons `without tampering or alteration of any kind. [Citation.]" (People v. Farnam, supra, 28 Cal.4th at p. 160; see People v. Webb (1993) 6 Cal.4th 494, 524; see also People v. Andrews (1989) 49 Cal.3d 200, 211 ["`"[f]ingerprint evidence is the strongest evidence of identity, and is ordinarily sufficient alone to identify the defendant""].) Thus, there is no merit to the Daubert based claims asserted by defendants including the issues relating to the: appointment of Dr. Cole; admission of fingerprint evidence; and refusal to hold a hearing.
Mr. Lugo made several augmentation and judicial notice requests to add transcripts from September 19, 24, and 29, 2003, in an entirely unrelated case and other matters. Also, several documents have been attached to Mr. Lugos reply brief. In the September 2003 case, the same judge who tried this case received testimony concerning the admissibility of fingerprint testimony. While ruling in the present case on Ms. Pogues requests, the trial court adverted to a prior unspecified hearing and conversations with other judges. The augmentation requests are denied as there is insufficient evidence the trial court was relying on the specific transcripts proffered by Mr. Lugos counsel. (Cal. Rules of Court, rule 8.155(a); People v. Brooks (1980) 26 Cal.3d 471, 484.) Further, the issue sought to be litigated in the trial court was the admissibility of fingerprint evidence in light of Daubert v. Merrell Dow Pharmaceuticals, supra, 509 U.S. at pages 589-594. No challenge was made to the admissibility of fingerprint evidence under People v. Kelly, supra, 17 Cal.3d at page 30 and its extensive progeny. Thus, all of the proposed augmentation materials including those attached to the reply brief are irrelevant to the law in California and cannot be helpful to defendants. (See In re Jasmine S. (2007) 153 Cal.App.4th 835, 841, fn. 4; Best Buy Stores, L.P. v. Superior Court (2006) 137 Cal.App.4th 772, 779.) Moreover, the irrelevant nature of the materials warrants denial of the judicial notice requests. (People v. Curl (2009) 46 Cal.4th 339, 360, fn. 16; Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on another point in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.) Finally, the materials were not before the trial court and, hence, should not be judicially noticed. (People v. Peevy (1998) 17 Cal.4th 1184, 1208; Brosterhous v. State Bar (1995) 12 Cal.4th 315, 325-326.)
D. Effectiveness of Mr. Lugos Trial Counsel
1. Factual and procedural background
Mr. Lugo argues that Ms. Pogues closing argument deprived him of his rights to effective assistance of counsel, a jury determination of all of the factual issues, and to have the prosecution held to its burden of proof. Ms. Pogue argued: "Now the problem with my case is that my client Mr. Michael Lugo was a passenger in the red Intrepid driven by his mother Cynthia Brandon; and you heard testimony that there was property in that car that was identified by people as having been taken from their homes in burglaries. [¶] And I told you during the opening statement that that property ended up being proven by the [District Attorney] as having been taken from a burglary; but what I want you to do is I want you to look at all the evidence independently and for purposes of the receiving stolen property count find Mr. Lugo guilty of that. Im not disputing that count." Ms. Pogue then questioned Ms. Teters truthfulness regarding the shooting incident. Ms. Pogue also argued that Mr. Lugos presence in Ms. Teters back yard was to find a friend named "Tom Jones."
2. Ms. Pogue was not ineffective
Our standard of review in determining whether Mr. Lugo was denied effective assistance of counsel was specified by the Supreme Court as follows: `"In order to demonstrate ineffective assistance, a defendant must first show counsels performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Second, he must show prejudice flowing from counsels performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (In re Avena (1996) 12 Cal.4th 694, 721.) (People v. Williams (1997) 16 Cal.4th 153, 215.) [¶] . . . `. . . "In order to prevail on [an ineffective assistance of counsel] claim on direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission." (People v. Ray (1996) 13 Cal.4th 313, 349.) (People v. Williams, supra, 16 Cal.4th at p. 215.)" (People v. Majors (1998) 18 Cal.4th 385, 403.) Our Supreme Court has also held: "Moreover, `[i]f the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal. [Citation.]" (People v. Huggins (2006) 38 Cal.4th 175, 206, quoting People v. Kraft (2000) 23 Cal.4th 978, 1068-1069; People v. Anderson (2001) 25 Cal.4th 543, 569.) Counsel need not pursue futile or meritless objections or argument. (People v. Prieto (2003) 30 Cal.4th 226, 261; People v. Ochoa (1998) 19 Cal.4th 353, 432; People v. Lewis (1990) 50 Cal.3d 262, 289.) Our Supreme Court has determined that in ruling on the effectiveness of counsel, the reviewing court must also consider the record of what counsel did do at trial. (In re Ross (1995) 10 Cal.4th 184, 209; People v. Miranda (1987) 44 Cal.3d 57, 121.)
Mr. Lugo relies on United States v. Cronic (1984) 466 U.S. 648, 657, which held: "Of course, the Sixth Amendment does not require that counsel do what is impossible or unethical. If there is no bona fide defense to the charge, counsel cannot create one and may disserve the interests of his client by attempting a useless charade." Mr. Lugo argues: "The `Tom Jones story may have had merit, but a claim that [Mr.] Lugo arrived at the Teter residence in a continuing search for a `Tom Jones on a street whose name began with `M. was a seemingly `useless charade. If the concession of receiving stolen property was, as it appears from the face of the record, a tactical decision to garner credibility for Ms. Pogue in arguing the `Tom Jones story in the manner she did, then it was a miscalculation worthy of a finding of the `incompetence and `prejudice prongs of Strickland v. Washington [, supra,] 466 U.S. [at p.] 686." However, the United States Supreme Court further held, "[T]here is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt." (United States v. Cronic, supra, 466 U.S. at p. 659; see In re Avena, supra, 12 Cal.4th at p. 727.) In a similar vein, the California Supreme Court has held: "[A]s we explained in In re Avena . . ., notwithstanding the broad language in the Cronic opinion [citation] to the effect that when `counsel entirely fails to subject the prosecutions case to meaningful adversarial testing, the right to competent counsel has been denied and the result of the trial is presumptively unreliable, the actual application of Cronic has been much more limited. Defendants have been relieved of the obligation to show prejudice only where counsel was either totally absent or was prevented from assisting the defendant at a critical stage." (In re Visciotti (1996) 14 Cal.4th 325, 353; see also Bell v. Cone (2002) 535 U.S. 685, 697; People v. Prieto, supra, 30 Cal.4th at p. 261.)
Here, Ms. Pogues decision to acknowledge defendants culpability in certain counts was most assuredly a tactical choice in an effort to refute the remaining charges. (See People v. Welch (1999) 20 Cal.4th 701, 729; People v. Hart (1999) 20 Cal.4th 546, 631-632; People v. Bolin (1998) 18 Cal.4th 297, 335; People v. Cox (1991) 53 Cal.3d 618, 661-662, overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) The California Supreme Court has held: "[W]here counsels trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsels acts or omissions." (People v. Weaver (2001) 26 Cal.4th 876, 926; People v. Earp (1999) 20 Cal.4th 826, 896.) This is a case of overwhelming evidence as to Mr. Lugo. Ms. Pogue was confronted with an impossible task of explaining away a tsunami of incriminating evidence.
E. Alleged Jury Misconduct
1. Factual and procedural background
Mr. Lugo argues that the trial court improperly failed to hold an evidentiary hearing as to jury misconduct with several jurors rather than just juror No. 4. During the trial, Mr. Fountain, Ms. Brandons counsel, reported to the court that an apparent impropriety had occurred involving a court observer and two jurors. Ms. Brandons brother, identified only as Roger, spoke to Mr. Fountains investigator. The person identified only as Roger saw a man, who had been present in the courtroom throughout the trial, in the presence of two of the jurors at lunch. The man identified only as Roger took a photograph of the three on his cellular telephone. The trial court questioned the man in the courtroom. The man was in fact the father of juror No. 4. The man indicated he sat in on the trial because he had an interest in the legal system. The man stated that he had not discussed anything with his daughter or anyone else about the case. The man was excused from the courtroom. Mr. Fountain indicated that he would probably ask the trial court to excuse juror No. 4. The trial court then questioned juror No. 4. Juror No. 4 denied having discussed the case with anyone, including her father. Although juror No. 4 acknowledged that she had been in her fathers presence at lunch, he had not discussed anything about the case with her or any other juror in their presence. Juror No. 4 indicated another juror had been close to her and her father when they came through courthouse security. Mr. Fountain again moved to excuse juror No. 4. Ms. Pogue joined in Mr. Fountains motion. The prosecutor argued that no impropriety had been demonstrated. In denying the motion to excuse juror No. 4 the trial court concluded: "I agree with you. There is no scintilla of evidence indicating an impropriety, although it causes one to make their eyebrows rise; but after questioning it seems that the juror has scrupulously followed the courts instruction."
2. Forfeiture
The California Supreme Court has held that a failure to object to jury misconduct or request a mistrial constitutes a waiver of the issue on appeal. (People v. Stanley (2006) 39 Cal.4th 913, 950; People v. Billings (1981) 124 Cal.App.3d 422, 433, overruled on other grounds in People v. Karis (1988) 46 Cal.3d 612, 642.) Here Mr. Lugo did not request further inquiry or a "full-blown evidentiary hearing, with inquiry of all the jurors" as he now argues was required. Rather, Mr. Lugo merely joined Ms. Brandons motion to exclude juror No. 4. Defendants failure to request further proceedings forfeits the issue here.
3. The trial courts inquiry adequately resolved the issue of misconduct
In People v. Farnam, supra, 28 Cal.4th at pages 140-141, our Supreme Court held: "[S]ection 1089 authorizes a trial court to discharge a juror if, among other reasons, `good cause is shown that the juror is `unable to perform [her] duty. When a trial court is put on notice that good cause to discharge a juror may exist, `it is the courts duty to make whatever inquiry is reasonably necessary to determine if the juror should be discharged and failure to make this inquiry must be regarded as error. (People v. Burgener (1986) 41 Cal.3d 505, 520, overruled on another point in People v. Reyes (1998) 19 Cal.4th 743, see also [People v. Danks (2004) 32 Cal.4th 269, 302]; People v. Williams [, supra,] 16 Cal.4th [at p.] 231.)" (Fn. omitted.) In this case, the trial court heard the father of juror No. 4 and her statements regarding the nature of their relationship and time spent together during the trial. The trial court was convinced that the two had neither discussed the case nor influenced anybody regarding its outcome. Rather, the father-daughter relationship and his interest in legal proceedings accounted for both his presence in the courtroom and their having been seen together outside the courtroom. Our Supreme Court has noted, "Because it is impossible to shield jurors from every contact that may influence their vote, courts tolerate some imperfection short of actual bias." (People v. Ramos (2004) 34 Cal.4th 494, 519.) No juror bias was demonstrated. As a result, defendants were not prejudiced. (Evid. Code § 1150, subd. (a); People v. Ramos, supra, 34 Cal.4th at p. 519; accord, Smith v. Phillips (1982) 455 U.S. 209, 217.)
F. Deoxyribonucleic Acid Penalties
The trial court orally imposed a $20 deoxyribonucleic acid penalty as to both defendants. However, Government Code section 76104.6, subdivision (a)(1) only allows the levy of $1 of every $10 of another fine. Government Code section 76104.6, subdivision (a)(3)(A) states that $1 of every $10 of another fine may not be imposed on any restitution fine. The same is true as to the state-only deoxyribonucleic acid penalty. (Gov. Code, § 76104.7, subd. (c)(1).) The only fines imposed on defendants were restitution fines. There were multiple Penal Code section 1465.8, court security fees imposed on defendants. But Penal Code section 1465.8, subdivision (b) expressly states, "The penalties authorized by Chapter 12 (commencing with Section 76000) of Title 8 of the Government Code, and the state surcharge authorized by Section 1465.7, do not apply to this fee." Hence, the $20 deoxyribonucleic acid penalties imposed on both defendants must be reversed. The trial court is to personally insure that the clerk prepares a corrected abstract of judgment which reflects the reversal of the deoxyribonucleic acid penalties. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)
IV. DISPOSITION
The judgments are modified to delete the deoxyribonucleic acid penalties. The superior court clerk is to prepare amended abstracts of judgment which delete the deoxyribonucleic acid penalties and forward them to the Department of Corrections and Rehabilitation. The judgments are affirmed in all other respects.
We concur:
ARMSTRONG, J.
KRIEGLER, J.