Opinion
A131526
07-11-2012
THE PEOPLE, Plaintiff and Respondent, v. TYRONE DAVIS SANDERS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Sonoma County
Super. Ct. No. SCR587877)
A jury convicted defendant Tyrone Davis Sanders of first degree burglary, possession of stolen property, and unlawfully taking a vehicle. On appeal from the judgment of conviction, defendant challenges the chain of custody for the fingerprint evidence placing him at the scene of the burglary. He also contends the trial court erred in sentencing him under the Three Strikes law and imposing a sentence enhancement, based a prior felony conviction in Nevada. Finally, he seeks to correct a clerical error in the abstract of judgment. We affirm the judgment with directions to the trial court to amend the abstract of judgment as requested.
FACTUAL AND PROCEDURAL BACKGROUND
On October 1, 2010, defendant was charged by information with six felony counts, including: first degree burglary (Pen. Code, § 459) of the home of Robert Thesman on October 17, 2008 (count I); possession of property stolen from Thesman's home (§ 496, subd. (a)) (count II); first degree burglary (§ 459) of the home of Jeff Heitman on October 15, 2008 (count III); possession of property stolen from Heitman's home (§ 496, subd. (a)) (count IV); and unlawfully taking a vehicle owned by Leah Young on October 14, 2008 (Veh. Code, § 10851, subd. (a)) (count V). The information alleged a 2006 Nevada conviction for attempted robbery as a prior strike (§ 1170.12), and a prior serious felony supporting a sentence enhancement (§ 667, subd. (a)(1)). Defendant entered a plea of not guilty to all counts and denied the sentencing allegations. A. The Trial of the Substantive Offenses
Unless otherwise stated, all further statutory references are to the Penal Code.
The following evidence was presented at a jury trial of the substantive charges, which commenced on December 3, 2010:
On Tuesday, October 14, 2008, Leah Young (Young) reported her silver 2000 Honda Civic stolen.
On Wednesday, October 15, 2008, Jeff Heitman (Heitman) returned to his home in Petaluma and noticed his Dell laptop computer was missing. The front door, which had been locked that morning, was unlocked. The window above the bathtub was open, the window screen was gone, and there was dirt in the bathtub. Heitman later determined that a ring of keys and a jewelry box were also missing.
On Friday, October 17, 2008, Robert Thesman's (Thesman) petsitter arrived at his house in Petaluma and discovered that the window next to the front door (front window) was broken and a sliding glass door inside the residence was shattered. Thesman later determined that several electronic items, a Mont Blanc pen, and a Mini Cooper were missing from the house.
Collection of Evidence at the Thesman Home
Petaluma Police Officers Tamara Shoemaker and Danny Miller responded to the Thesman home, followed by Officer Matthew Thomas, who was sent to process the crime scene. The lead investigator, Detective Shoemaker, observed pry marks on the frame of the double-paned front window and saw that one of the panes was missing a large shard of glass. She found this shard in the adjacent shrubbery and noticed fingerprints on it. Detective Shoemaker discovered another broken window on the side of the garage (garage window). One large shard of glass was hanging from the window frame, and three shards were on the ground nearby. In the garage, she found a BMW parked directly under the broken window and observed handprints and footprints in a layer of dust on the hood, "as if somebody had crawled across [it]."
Shoemaker was a patrol officer in October 2008, but she is now a detective with the Petaluma Police Department. As the parties refer to her as "Detective Shoemaker," we do as well.
Detective Shoemaker directed Officer Thomas "to process the crime scene for prints." Officer Thomas lifted fingerprints from several locations, placed them on latent lift cards, and provided a description and diagram of their source on the back of each card. He decided the shards of glass should be processed in a controlled environment and told Officer Miller to collect them. Detective Shoemaker testified that she directed Officer Miller to bag the shards of glass, while she observed. He collected five shards of glass and placed each in a separate paper bag.
Defendant's Arrest and Statements to Police
At around 12:30 a.m. on October 18, 2008, a Daly City police officer ran a records check on a gray Honda Civic stopped in front of him at a traffic light, and discovered that it had been reported stolen in Sonoma County. He and another officer attempted a traffic stop, but the Honda accelerated away at a high speed. The officers engaged in a high speed pursuit, and the driver, later identified as defendant, was ultimately apprehended.
The next day, Detective Shoemaker searched the trunk of the Honda and found a ring of keys and a key to a Mini Cooper, later identified as the keys taken from the Heitman and Thesman homes.
Later that day, Petaluma police interviewed defendant after reading him his Miranda rights. Defendant claimed he had borrowed the Honda from a friend of a friend and denied committing the Petaluma burglaries, indicating he did not know the area and had never been in a residential neighborhood there. Defendant admitted taking a laptop computer to a local pawn shop on the same day as the Heitman burglary, but maintained this item belonged to his fiancé. Defendant said he fled from police in fear after an officer pointed a gun at him and told him to pull over.
Shortly thereafter, Detective Shoemaker contacted the pawn shop and obtained a laptop computer identified as Heitman's, as well as the corresponding pawn slip, which contained defendant's name and a thumbprint.
The Fingerprint Evidence
At trial, the prosecution offered into evidence two of the latent lift cards prepared by Officer Thomas, containing fingerprints from the front window (exhibit 28), and the crossbar of a mechanical lift above the hood of the BMW in the garage (exhibit 29), which the suspect was believed to have used to steady himself as he crossed the hood. The prosecution also presented three latent lift cards prepared by fingerprint evidence officer LaDonna Thompson (Thompson) from the glass collected at the Thesman home (exhibits 25-27). Defendant objected to the admission of these exhibits on chain of custody grounds. The trial court overruled his objections, finding: "[T]here is [a] sufficient chain of custody as for those five [exhibits]. And any lack of chain of custody goes to the weight of the evidence, not to admissibility."
Department of Justice (DOJ) fingerprint analyst Javier Farias (Farias) testified that the impressions on these cards and on the pawn slip matched defendant's fingerprints from the DOJ database, as well as his fingerprints taken at trial.
On December 21, 2010, the jury returned guilty verdicts on counts I, II, IV, and V, and a not guilty verdict on count III. B. The Trial of the Prior Conviction
The matter proceeded to a jury trial on allegations that defendant had sustained an October 2006 felony conviction in Nevada for attempted robbery. Noting the information in the Nevada case "closely mirrors" the California statute, the trial court concluded this conviction qualified as a prior strike and a serious felony for sentence enhancement purposes. The matter was then submitted to the jury, which found the prior conviction allegations true.
Based on the prior conviction, the trial court sentenced defendant under the Three Strikes law to an eight-year prison term for count I and consecutive terms of 16 months for counts IV and V. (See § 1170.12, subd. (c)(1) [term doubled when defendant has a prior strike].) The trial court also added a five-year sentence enhancement (§ 667, subd. (a)), for an aggregate term of 15 years, 8 months.
Defendant filed a timely appeal from the judgment of conviction.
DISCUSSION
I. The Chain of Custody for the Fingerprint Evidence Is Sufficient.
Defendant contends the prosecution failed to establish a sufficient chain of custody for exhibits 25 through 29, and, therefore, the admission of this evidence and its use as a basis for Farias's opinion violated his due process rights.
We review the trial court's decision for abuse of discretion. (People v. Catlin (2001) 26 Cal.4th 81, 134.) Under the law applicable here, "the party relying on an expert analysis of demonstrative evidence must show that it is in fact the evidence found at the scene of the crime, and that between receipt and analysis there has been no substitution or tampering . . . ." (People v. Riser (1956) 47 Cal.2d 566, 580, disapproved on other grounds by People v. Chapman (1959) 52 Cal.2d 95, 98.) "The burden on the party offering the evidence is to show to the satisfaction of the trial court that, taking all the circumstances into account including the ease or difficulty with which the particular evidence could have been altered, it is reasonably certain that there was no alteration. [¶] The requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for, because then it is as likely as not that the evidence analyzed was not the evidence originally received. Left to such speculation the court must exclude the evidence. [Citations.] Conversely, when it is the barest speculation that there was tampering, it is proper to admit the evidence and let what doubt remains go to its weight. [Citations.]" (Id at pp. 580-581.)
As we explain, the prosecution's evidence regarding the chain of custody demonstrates to a reasonable certainty that the fingerprint evidence on which Farias relied in forming his opinion was obtained from the Thesman home. A. The Chain of Custody Evidence
The Petaluma Police Department's Evidence Control Procedures
Evidence control officer Nicole Litzie (Litzie) testified that she is charged with maintaining the integrity of the evidence control room and ensuring an uninterrupted chain of custody by documenting the location of every item of property in evidence from the time it is submitted, through the investigation and court proceedings. She stated that the room is "very secure;" only two people have keys, the room is locked at all times when these people are not present, and others entering the room must sign in at the door and be escorted by an evidence technician.
Evidence is submitted through a locker system. The locker can only be opened from the opposite side of the door by an evidence technician. An evidence technician checks the evidence in after confirming it is labeled with a case number and an evidence item number that match the booking officer's computer entry. When an item is booked, it is assigned a bar code that corresponds to an item number and description. The bar code is printed out and affixed to the evidence package, which is then placed in a documented location, where it remains until it is checked out by signature. An item's bar code is scanned every time it is moved, producing an entry into a chain of custody log showing the date, time, location, and identity of the officer moving the item. Periodic audits are conducted to ensure accuracy.
Fingerprint evidence officer La Donna Thompson (Thompson) testified that, unlike other evidence, latent lift cards are stored by case number in a locked cabinet in her office, which is also locked (latent storage). Only she and the other fingerprint technician have keys to that office. Latent lift cards are entered into the computer system but are not labeled with a bar code sticker and tracked like other evidence. When all latent lift cards for a particular item number are checked out, this is logged in the computer system; when only a few of the cards are checked out, Thompson obtains a signature on a paper property sheet.
Litzie testified further that fingerprint evidence is not vulnerable to alteration or contamination "because it's packaged at the time prior to its entering the evidence room," "[t]he packages are not opened unless necessary, and everything is documented at that time."
The Latent Lift Cards Prepared by Officer Thomas (Exhibits 28 & 29)
Officer Thomas testified that, when he completed his work at the Thesman scene, his shift was over, and he took the seven latent lift cards he had prepared back to his office and placed them in his desk drawer for the weekend. The drawer was not locked, but the office was locked and alarmed, and the only persons with access were five traffic officers, who had keys. When Officer Thomas returned to work the following Tuesday, he "took [the latent lift cards] back to the station, placed them in an envelope . . . taped it up, initialed it, placed it in [the] evidence locker [bank]." He assigned the latent lift cards an evidence item number and booked them into evidence under the case number. The chain of custody log for these cards confirms they were booked into evidence on October 21, 2008, and transferred to latent storage.
The Glass Collected by Officer Miller
Detective Shoemaker testified that she and Officer Miller folded the paper bags containing the shards of glass and placed them in the back of her patrol car, which was then closed and locked. She transported this evidence directly to the Petaluma Police Department, took it to the evidence control room, and packaged it for the evidence technicians by assigning an evidence item number to each shard, sealing the bags with tape and her initials, and marking each bag with the date, the case number, and the applicable evidence item number. Detective Shoemaker requested processing of the glass for latent fingerprints.
The prosecution produced chain of custody logs for the shards of glass showing their movement from the time they were booked into the evidence control room until the time of trial. These logs confirm that the shards were booked into evidence around 5:00 p.m. on Friday, October 17, 2008.
The Latent Lift Cards Prepared from the Shards of Glass (Exhibits 25-27)
Thompson checked out the shards of glass from the evidence control room on the afternoon of Monday, October 20, 2008, the day they were booked into evidence. She processed four of the shards and obtained latent fingerprints from each, which she placed on latent lift cards. She marked each card with the case number and a new evidence item number, but referenced the evidence item number for the shard from which each fingerprint was lifted and drew the shape of each shard on the corresponding card. She entered the evidence items into the system, placed them in latent storage, and maintained them there until August 2010.
Submission of the Latent Lift Cards to the DOJ for Analysis
On August 30, 2010, Thompson transferred five of the latent lift cards to district attorney investigator, Greg Phillips (Phillips), containing fingerprints she had lifted from shards of glass taken from the garage window of the Thesman home. Thompson had Phillips sign a property sheet acknowledging receipt. She also gave him the pawn slip, which she had obtained from the evidence control room, and two of the latent lift cards prepared by Officer Thomas.
Phillips testified that Thompson gave him three sealed manila envelopes marked with item numbers and case numbers. He placed all three envelopes into a large manila envelope, and sealed that envelope. Phillips took the envelope to the district attorney investigators' evidence property room, which requires a key to access, and secured it in an individual locker with a key padlock. When he retrieved the envelope on September 1, 2010, the seal was unbroken. Phillips transported the envelope to the DOJ's forensic lab in Sacramento, where he met with the supervisor of the latent fingerprint unit, Derek Morisawa (Morisawa). At Morisawa's request, Phillips completed a forensic work request on a form for ALPS case number 10002748, providing his name and signature, the date of delivery and agency case number, and defendant's name, date of birth, and SID number for comparison. Phillips identified the evidence submitted as: "five latent print cards," "pawn slip," and "two latent print cards." Morisawa tried to introduce Phillips to Farias, the assigned analyst, but Farias was not at his desk, so Phillips gave the envelope to Morisawa.
Farias testified that on September 1, 2010, his supervisor, Morisawa, told him that someone from the district attorney's office would be dropping off a case later that morning, which would be assigned to him. Farias saw Morisawa speaking with a man holding a submission form and a manila envelope. Morisawa later gave Farias an envelope for ALPS case number 10002748. Farias completed the chain of custody information and wrote his initials, the date of receipt, and the DOJ case number on the contents of the envelope, which consisted of three smaller envelopes containing a total of seven latent lift cards and a pawn slip.
On September 16, 2010, after comparing the fingerprint impressions on this evidence with defendant's fingerprints from the DOJ database, Farias returned all seven latent print cards and the pawn slip to Thompson.
Trial
Officer Thomas testified that Thompson handed him exhibits 28 and 29 in the hallway just before he walked into the courtroom to testify. He stated that he recognized his handwriting on each of these cards and identified them as the ones he had prepared from the Thesman scene. Thompson indicated that she recognized her handwriting on the latent lift cards marked as exhibits 25, 26, and 27, and identified these exhibits as those she prepared from fingerprints lifted from shards of glass she checked out from the evidence control room under this case number. Finally, Farias testified that he recognized his handwriting on exhibits 25 through 29, confirming that his opinions were based on the fingerprint impressions they contain. B. Defendant's Arguments
Defendant relies on People v. Jimenez (2008) 165 Cal.App.4th 75, contending that decision, in which the court found the chain of custody insufficient, "is very similar to the instant case." We disagree. In Jimenez, the evidence at issue was a DNA swab taken from the bicycle on which a bank robbery suspect was seen fleeing the scene and a subsequent DNA sample taken from the defendant for comparison. (Id. at p. 79.) The Jimenez court identified a lengthy list of questions that remained unanswered by the chain of custody evidence presented by the prosecution, noting that the record was silent as to who labeled and sealed the swabs, and who, if anyone, segregated them from other evidence and placed them in secure storage to minimize the possibility of inadvertent substitution. (Id. at p. 80.) In addition, the court noted the absence of evidence establishing that protocol was followed for the secure transfer of the evidence within the department and the DOJ. (Ibid.) The chain of custody for the fingerprint evidence in this case is not plagued by the gaps and the potential for error noted by the court in Jimenez. And, unlike Jimenez, there is no question in this case as to whether defendant's DNA may have been inadvertently switched with DNA connected to the crime. (See People v. Hall (2010) 187 Cal.App.4th 282.)
The pawn slip submitted with the latent lift cards contained a thumbprint that defendant provided when he pawned property stolen from the Heitman home. This pawn slip is visually distinguishable, however, from the latent lift cards, and the record does not demonstrate any reasonable possibility that the latent lift card fingerprints and pawn slip thumbprint were mixed up.
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Identifying a number of purported gaps in the chain of custody, however, defendant contends: "It is more than speculation that the prints could have been mixed up or switched." This contention has no merit. The alleged discrepancies on which defendant relies do not materially compromise the certainty that the fingerprint evidence was taken from the Thesman scene. (See Riser, supra, 47 Cal.2d at p. 580 [the prosecution is not required "to negative all possibility of tampering"]; Mendéz, Cal. Evidence (1993) § 13.05, p. 237 ["While a perfect chain of custody is desirable, gaps will not result in the exclusion of the evidence, so long as the links offered connect the evidence with the case and raise no serious questions of tampering"]; accord, Catlin, supra, 26 Cal.4th at p. 134.) Although exhibit 28 does not include Officer Thomas's name, the facts noted on that exhibit are identical to those included on exhibit 29, which identifies Officer Thomas as the officer who lifted the prints, and the two cards are written in the same handwriting, which Officer Thomas recognized at trial as his own. Likewise, any confusion regarding the manner in which the latent lift cards were packaged and organized at trial do not preclude their admissibility. The witnesses who prepared these cards and the expert who used them for fingerprint comparison identified them by recognizing handwriting he or she had placed there. (See Riser, supra, 47 Cal.2d at p. 581.)
Contrary to defendant's assertion, Officer Thomas's storage of the latent lift cards in an unlocked desk drawer in a locked office did not leave this evidence unreasonably vulnerable to alteration. There is no indication the traffic officers with keys to the office knew of the presence of the latent lift cards or had reason to tamper with them, and defendant provides no explanation of how they could have switched the cards or handled them in a way that resulted in a transfer of his fingerprints. (See Riser, supra, 47 Cal.2d at p. 581 [defendant did not point to any indication of actual tampering . . . and did not establish that anyone who might have been interested in tampering with the prints knew that the bottles and glasses were in the deputy sheriff's book case].) For the same reasons, defendant fails in his contention the evidence control room's "key and honor system" did not safeguard against switching items checked out together. (See Hall, supra, 187 Cal.App.4th at p. 296 [presumption that an official duty has been regularly performed unless there is evidence to the contrary].)
Finally, defendant relies on purported indications of evidence tampering, noting there were several other sources from which police could have obtained his fingerprints and substituted them for those found at the Thesman home, including Heitman's laptop computer and Young's Honda Civic. He goes so far as to claim that the officers "could duplicate writing on the [latent print] cards" and seeks to infer a motive to tamper with the fingerprint evidence from Detective Shoemaker's failure "to investigate any of [his] explanations as to how he obtained Young's car or where he had been when the Thesman burglary was committed." Without more, however, these allegations are not sufficient to demonstrate an intent to falsify the fingerprint evidence. At best, defendant has shown that the officers could have substituted his fingerprints from other sources. Unsupported by evidence suggesting that this occurred, however, defendant has done nothing to take his bare assertions beyond the realm of speculation. (See Riser, supra, 47 Cal.2d at p. 581.)
Defendant's remaining contentions either are not supported by the record, or have no bearing upon the issue here—whether the latent lift cards on which Farias relied contained fingerprint impressions from the Thesman home.
We therefore conclude that the trial court properly admitted the fingerprint evidence, based on a sufficient chain of custody. II. The Trial Court Properly Based Defendant's Sentence on the Nevada Conviction.
Defendant challenges the trial court's conclusion that his 2006 Nevada conviction qualifies as a serious felony for purposes of the Three Strikes law (§ 1170.12) and sentence enhancement (§ 667, subd. (a)). " 'To qualify as a serious felony, a conviction from another jurisdiction must involve conduct that would qualify as a serious felony in California. [Citations.]' " (People v. McGee (2006) 38 Cal.4th 682, 691; see § 1170.12, subd. (b)(1) [applicable to offenses defined as serious felonies by section 1192.7, subd. (c); § 667, subd. (a)(1), (4) [same].) The parties agree that the substantial evidence standard of review applies to the trial court's decision.
Defendant contends substantial evidence does not support the trial court's conclusion because it does not establish that he acted with the specific intent of permanently depriving the victim of her property, an essential element of robbery under California law. (See McGee, supra, 38 Cal.4th at p. 688; CALCRIM No. 1600 [the prosecution must show "[w]hen the defendant used force or fear to take the property, [he] intended (to deprive the owner of it permanently/ [or] to remove it from the owner's possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property"].) The predicate statutes for the Nevada conviction do not specifically require that the defendant act with a specific intent to permanently deprive the victim of her property, and the court indicated in McGee that, in Nevada, the prosecution must show only general criminal intent to establish robbery. (McGee, supra, at p. 688, citing Litteral v. State (Nev. 1981) 97 Nev. 503 [634 P.2d 1226, 1227-1229] disapproved on other grounds in Talancon v. State (1986) 102 Nev. 294 [721 P.2d 764, 769] [noting common law robbery requires specific intent, i.e., an intent to steal, as opposed to a general intent that may be inferred from the actus reus, but the statutory definition is more limited, and the only intent that is necessary is the intention of doing the act denounced by the statute]; see Nev. Rev. Stat., §§ 200.380, 193.330.)
When comparison of the elements of the offense does not resolve the issue, the court must examine the record of the earlier proceeding to determine the nature or basis of the crime of which the defendant was convicted, specifically, "whether the conviction realistically may have been based on conduct that would not constitute a serious felony under California law." (McGee, supra, 38 Cal.4th at pp. 691, 706; see id. at p. 688 [because it was theoretically possible the defendant's convictions involved conduct that would not constitute robbery under California law, inquiry into the record was required].) In his plea agreement for the Nevada conviction, defendant acknowledged: "I understand that by pleading guilty I admit the facts which support all the elements of the offense(s) to which I now plead as set forth in [the information]." The information in the Nevada case alleges: "[Defendant], having committed the crime of ATTEMPT ROBBERY (Category B Felony - NRS 200.380, 193.330), . . . contrary to the form, force and effect of statutes in such cases made and provided, . . . did . . . wilfully, unlawfully, and feloniously attempt to take personal property, to-wit: lawful money of the United States, from the person of Lynn Nixon, or in her presence, by means of force or violence, or fear of injury to, and without [her] consent and against [her] will . . . by pointing a toy gun at [her] . . . and demanding money."
We conclude that defendant's admissions in this regard are sufficient to satisfy the specific intent required under California law. Defendant did more than admit the elements of the Nevada criminal statute; he specifically admitted that he pointed a toy gun at Nixon, willfully using her fear of injury to take her money. No reasonable jury considering these admissions could find that he did not act with the specific intent to permanently deprive Nixon of her property.
We conclude, accordingly, that the trial court properly concluded the prior Nevada conviction qualifies as a serious felony for sentencing purposes. III. The Abstract of Judgment
For the first time in this court, defendant seeks to amend the abstract of judgment to correct a clerical error misidentifying count IV as a conviction for burglary, instead of the offense of which he was convicted on that count, possession of stolen property (§ 496, subd. (a).) (In re Candelario (1970) 3 Cal.3d 702, 705 ["The distinction between clerical error and judicial error is 'whether the error was made in rendering the judgment, or in recording the judgment rendered' "].) In the interests of justice and judicial economy, we grant the relief requested, notwithstanding its availability in the trial court, as defendant's request does not require the resolution of any issues of fact, and the Attorney General agrees that such relief is appropriate. (See ibid. [court's inherent power to correct clerical errors to make its records reflect the true facts may be exercised in criminal as well as civil cases and "is unaffected by the pendency of an appeal . . ."].)
DISPOSITION
The judgment is affirmed, with directions to the trial court to prepare and deliver to the California Department of Corrections an amended abstract of judgment striking the burglary conviction and correctly identifying the conviction on count IV as possession of stolen property (§ 496, subd. (a)).
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Jones, P.J.
We concur:
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Needham, J.
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Bruiniers, J.