Opinion
F072692
02-23-2017
In re S.B., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. S.B., Defendant and Appellant.
Linda K. Harvie, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephanie A. Mitchell and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15CEJ600273-2)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Gary D. Hoff, Judge. Linda K. Harvie, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephanie A. Mitchell and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
Before Gomes, Acting P.J., Poochigian, J. and Peña, J.
-ooOoo-
The juvenile court found true the allegation that S.B. (the minor) committed a residential burglary. The minor argues on appeal the trial court erred by admitting testimonial hearsay in violation of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) and Crawford v. Washington (2004) 541 U.S. 36, and asserts the order is not supported by substantial evidence. We conclude neither argument has merit and affirm the juvenile court's order.
FACTUAL AND PROCEDURAL SUMMARY
The petition filed pursuant to Welfare and Institutions Code section 602 contains a single cause of action alleging the minor committed residential burglary in violation of Penal Code section 459.
The victim, Jesus Duarte, left his house early in the morning to go to work on the day in question. When he left, his two adult sons were at the house. When he returned around 2:00 p.m., he found a safe dragged halfway through the house, which was apparently too heavy for the perpetrator to carry away. A window in a bedroom in the back of the house had been broken. Locked doors to the bedrooms were also broken. The mattresses in the bedrooms had been overturned. Televisions, clothing, tennis shoes, electronics, and jewelry were stolen. The safe was intact even though it had been moved. The safe was heavy and required three to four people to move it. The floor was scratched apparently from the safe being dragged through the house. There were marks on the safe as if someone had tried to force it open. Duarte did not give anyone permission to be in his house that day, other than his sons. Specifically, he did not recognize the minor and did not give him permission to be in his house that day.
On cross-examination, Duarte testified he had purchased the safe from Costco approximately five years before the burglary.
Christopher Park is employed by the Fresno Police Department as a police cadet. He was trained by the police department on how to process a crime scene for fingerprints and has been doing so since 2013. Park responded to Duarte's house on the day in question. He observed the broken bedroom window, multiple items broken throughout the house, and the safe next to the broken window in the bedroom. Two doors were broken that had been locked. The house appeared to have been ransacked. The bedroom window appeared to be the point of entry because the glass had been smashed into the bedroom.
The safe was about five feet tall and two and a half feet wide. There were pry marks on the door as if someone had attempted to force it open.
Park processed the window frame and safe for possible prints. He located possible prints on the side of the safe. There were multiple smudges, and he was able to lift one print. He removed the print from the surface of the safe and placed it on a print card, put it into an envelope, and booked it into evidence at the police station under the case number assigned to the burglary.
Cynthia DeSoto-Cooper is a senior crime scene technician for the Fresno Police Department. She explained it is possible for someone to leave a print if he or she grasps or touches an object with his or her fingers or palms. Once a print is located, it is lifted off with tape and put on a lift card, or photographed, creating a latent print. A print from a known source is compared to the latent print to determine if the two match. Distinguishing characteristics of finger or palm prints include minutia such as ending ridges, bifurcations, short ridges, overlaps, spurs, dots, islands and ridges. Finger and palm prints are specific to each individual, i.e., no two people will have the same prints.
A latent print is a finger or palm print that needs to be lifted or photographed so it can be seen visually. A known print is a print taken from a known individual. When making a comparison, the technician first analyzes the print, then makes a comparison, and evaluates the comparison. If a positive match is made, a second technician verifies the result to ensure quality control.
DeSoto-Cooper recognized People's exhibit 2 as a fingerprint card, or latent print, to which another technician, Laura Yanovsky, performed a comparison. Yanovsky provided her analysis to DeSoto-Cooper so DeSoto-Cooper could verify Yanovsky's analysis. Yanovsky provided DeSoto-Cooper with the latent print and the known print for the minor. The case number for the latent print was Fresno Police Department case No. 15-57578. Yanovsky identified the latent print as a right palm print, so DeSoto-Cooper compared the known right palm print of the minor (People's exhibit 3) with the latent print. DeSoto-Cooper explained the comparison process, and concluded, based on 14 points of identification, that the latent print in exhibit 2 was the minor's right palm print. DeSoto-Cooper's finding was consistent with the conclusion reached by Yanovsky.
Exhibit 2 is a photocopy of the fingerprint card created by Park at the crime scene. The original fingerprint card was marked as court exhibit 1, but returned to DeSoto-Cooper after the trial. The palm print taken by DeSoto-Cooper from the minor was marked exhibit 2.
DeSoto-Cooper also personally obtained the minor's prints prior to testifying that day. She then compared the prints she obtained from the minor with the prints in People's exhibit 3. The prints were identical, so DeSoto-Cooper concluded the known prints with which she was initially provided were actually the minor's prints. Exhibits 2 and 3 were admitted into evidence.
On cross-examination, DeSoto-Cooper testified she assumed no two people have the same set of fingerprints, although she did not know the percentage of individuals whose fingerprints had been examined. She conceded no one had compared the fingerprints for every person on the planet. She also testified the Fresno Police Department requires eight points of comparison for a positive identification, the FBI requires 14 points of comparison for a positive identification, and she found 14 points of comparison between exhibit 2 and 3.
DeSoto-Cooper also explained her role in the original evaluation identifying the minor as the person who left the print on the safe. The process began with a computer comparing the latent print (exhibit 2) with the prints in its database. The computer then provided 20 possible matches, with the most likely match being ranked number 1, and the least likely ranked number 20. The first technician then compared the latent with the possible matches and identified the individual whose print matched the latent. A second technician, in this case Yanovsky, performed a comparison to determine if the latent print (exhibit 2) matched the known print identified by the first technician (exhibit 3). Yanovsky then prepared a report. DeSoto-Cooper verified Yanovsky's analysis and initialed the report prepared by Yanovsky indicating she had verified the result. The verification is essentially a second comparison by a different technician. She estimated she spent approximately one hour on the verification.
Finally, defense counsel elicited from DeSoto-Cooper the fact there was no way of knowing the exact time at which a latent print was left on a surface, and there are numerous variables affecting how long a print will last on a surface.
Detective Omar Garcia of the Fresno Police Department testified the minor's residence is approximately four to five city blocks from the victim's residence.
The minor's sister, J.B., testified the day in question was her birthday and the family had a birthday dinner. The minor was at home when J.B. left for school at approximately 7:40 a.m. and when J.B. arrived home from school around 3:00 p.m. The minor remained home the rest of the evening. J.B. testified she would have woken up if someone had left the house during the night.
The minor's mother, L.F., testified she woke up at 5:00 a.m. on the day in question. She checked on the minor and he was home at that time. The minor woke up around 10:00 a.m. L.F. checked on the minor a few times before he woke up and he was always in his bed. She did not believe it would have been possible for the minor to leave the house without her knowledge after she was awake.
The prosecutor argued in closing that it was beyond dispute that a burglary occurred, and the only issue was who committed the burglary. He then focused on the palm print, pointing out it was undisputed the print belonged to the minor, and the position of the print was consistent with someone trying to move the safe out of the closet.
Defense counsel criticized the investigation. He characterized Park as very inexperienced and DeSoto-Cooper as overworked and inconsistent. He pointed out the safe was purchased from a warehouse store and there was no way to know when the print was left on the safe. He also asserted that other than the print, there was no evidence tying the minor to the crime, and the minor produced alibi witnesses. He argued, in essence, this was a prosecution based on circumstantial evidence and the evidence was so unreliable that it could not support a finding the minor had committed the burglary beyond a reasonable doubt.
The juvenile court found, in essence, it was undisputed a burglary occurred with the requisite intent, and the minor did not have permission to be in the house. It also concluded the print found on the safe belonged to the minor, noting there was no evidence to dispute DeSoto-Cooper's testimony. The only real issue, as identified by the juvenile court, was whether the minor's print was placed on the safe at the time of the burglary. The juvenile court noted the conflict in testimony, but concluded the inconsistencies in the alibi testimony demonstrated at a minimum mistaken recollection. The juvenile court found the evidence established beyond a reasonable doubt the minor's print was placed on the safe at the time of the burglary. Accordingly, it sustained the petition and found the minor comes within the provisions of Welfare and Institutions Code section 602.
At the disposition hearing, the juvenile court determined the maximum period of confinement was six years eight months. Probation was reinstated on the condition the minor spend 90 days in the Juvenile Justice Center.
The maximum period of confinement included an additional consecutive eight months for a separate, earlier petition.
DISCUSSION
The minor asserts the jurisdiction and disposition orders must be reversed for two reasons. First, he asserts DeSoto-Cooper's testimony violated his Sixth Amendment right to confront witnesses. Second, he argues there is insufficient evidence to support the finding the allegations of the petition are true beyond a reasonable doubt.
Sixth Amendment Violation
The Sixth Amendment to the United States Constitution grants a criminal defendant the right to confront and cross-examine the witnesses who testify against him. In Sanchez, the California Supreme Court applied this principle in cases involving testimony about criminal street gang enhancements to severely limit the testimony that could be introduced by expert witnesses. The minor argues DeSoto-Cooper's testimony violated these principles. While the principles established in Sanchez are applicable to the expert testimony in this case, those principles were not violated.
Sanchez
We begin with the issues which led to Sanchez. Penal Code section 186.22 provides two distinct methods of increasing the sentences of defendants convicted of committing crimes related to criminal street gangs. First, the statute created a new and separate crime for active participation in a criminal street gang. (§ 186.22, subd. (a).) Second, the statute created various enhancements to be added to the sentences of defendants convicted of committing a crime for the benefit of, at the direction of, or in association with a criminal street gang. (§ 186.22, subd. (b).) While the elements of the offense and enhancement were different, generally speaking the testimony in both situations required the prosecution to prove the existence of a criminal street gang, and the defendant was a member of the gang, or associated with that gang.
To establish these two elements, prosecutors generally relied on expert testimony provided by local police officers. And in presenting the expert's testimony, prosecutors would elicit incriminating out-of-court statements and documents (hearsay) under the guise of establishing the basis for the expert's opinion. Prior Supreme Court precedent had noted that while such hearsay was generally inadmissible, a proper instruction to the jury would alleviate any potential prejudice to the defendant. (See, e.g., People v. Coleman (1985) 38 Cal.3d 69, 92 [use of limiting instruction that matters on which expert based opinion are admitted only to show the basis of the opinion and not for the truth of the matter normally cures any hearsay problem], disapproved on other grounds in People v. Riccardi (2012) 54 Cal.4th 758, 820-821.)
People v. Riccardi, supra, 54 Cal.4th 758 was overruled on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216.
In Sanchez, the Supreme Court addressed the propriety of experts relating hearsay in the context of cases involving criminal street gangs. The information charged Sanchez with various crimes when police found illegal substances and a firearm that appeared to have been in his possession. In addition, the information alleged Sanchez violated Penal Code section 186.22, subdivision (a), active participation in a criminal street gang. To prove this allegation, the prosecutor called a local gang suppression officer as an expert witness. He provided testimony about the gang in general, its primary activities, and other statutory requirements. When the questioning focused on Sanchez, the prosecutor elicited from the police officer hearsay statements allegedly made by Sanchez and others as found in various police documents, including STEP (Street Terrorism Enforcement and Prevention Act) notices, field identification cards, and other police documents. The police officer admitted on cross-examination that he had never met Sanchez and was not present for any of his contacts with the police, i.e., the information related to the jury was hearsay. (Sanchez, supra, 63 Cal.4th at pp. 670-673.)
The Supreme Court began its analysis by reviewing state laws related to hearsay, or out-of-court statements offered for the truth of the matter stated therein. (Sanchez, supra, 63 Cal.4th at p. 674; Evid. Code, § 1200, subd. (a).) Statements offered for a purpose other than the truth of the matter are not hearsay. (Ibid.) In other words, "a hearsay statement is one in which a person makes a factual assertion out of court and the proponent seeks to rely on the statement to prove that assertion is true." (Sanchez, at p. 674; see Evid. Code, § 1200, subd. (a).) The court reiterated the general rule that, absent an exception, hearsay is inadmissible. (Sanchez, at p. 674; Evid. Code § 1200, subd. (b).) It also acknowledged that documents are often hearsay because they are "prepared by a person outside the courtroom and are usually offered to prove the truth of the information they contain." (Sanchez, at p. 674.)
The Supreme Court continued its discussion by stating the evidentiary rules relating to expert witnesses. The court began with the statutory definition of an expert, and when expert testimony is permissible. (Sanchez, supra, 63 Cal.4th at p. 675.) "In addition to matters within their own personal knowledge, experts may relate information acquired through their training and experience, even though that information may have been derived from conversations with others, lectures, study of learned treatises, etc." (Ibid.)
One who has special knowledge, skill, experience, training or education on the subject to which his testimony relates. (Evid. Code, § 720, subd. (a).)
An expert may address an opinion on a subject that is sufficiently beyond the common experience of a jury so that the opinion would assist the trier of fact. (Evid. Code, § 801, subd. (a).)
Next, the court addressed the relationship between expert testimony and hearsay. It observed that traditionally, experts have been allowed to testify about his or her general knowledge in the expert's field of expertise even though this knowledge is acquired from hearsay because such knowledge differentiates an expert from a lay witness. (Sanchez, supra, 63 Cal.4th at p. 676.) However, an expert is normally prohibited from relating case-specific facts relating to the particular events and participants involved in the litigation about which he or she has no personal knowledge. (Ibid.) To overcome this prohibition, oftentimes experts are asked hypothetical questions incorporating the facts of the case to elicit the expert's case-specific opinion. (Ibid.) "An examiner may ask an expert to assume a certain set of case-specific facts for which there is independent competent evidence, then ask the expert what conclusions the expert would draw from those assumed facts. If no competent evidence of a case-specific fact has been, or will be, admitted, the expert cannot be asked to assume it. The expert is permitted to give his opinion because the significance of certain facts may not be clear to a lay juror lacking the expert's specialized knowledge and experience." (Id. at pp. 676-677.)
After explaining the general law related to hearsay and expert witnesses, the court addressed the problem before it.
"Accordingly, in support of his opinion, an expert is entitled to explain to the jury the 'matter' upon which he relied, even if that matter would ordinarily be inadmissible. When that matter is hearsay, there is a question as to how much substantive detail may be given by the expert and how the jury may consider the evidence in evaluating the expert's opinion. It has long been the rule that an expert may not '"under the guise of reasons [for an opinion] bring before the jury incompetent hearsay evidence."' [Citation.] Courts created a two-pronged approach to balancing 'an expert's need to consider extrajudicial matters, and a jury's need for information sufficient to evaluate an expert opinion' so as not to 'conflict with an accused's interest in avoiding substantive use of unreliable hearsay.' (People v. Montiel (1993) 5 Cal.4th 877, 919 (Montiel).) The Montiel court opined that '[m]ost often, hearsay problems will be cured by an instruction that matters admitted through an expert go only to the basis of his opinion and should not be considered for their truth. [Citation.] [¶] Sometimes a limiting instruction may not be enough. In such cases, Evidence Code section 352 authorizes the court to exclude from an expert's testimony any hearsay matter whose irrelevance, unreliability, or potential for prejudice outweighs its proper probative value. [Citation.]' [Citation.] Thus, under this paradigm, there was no longer a need to carefully distinguish between an expert's testimony regarding background information and case-specific facts. The inquiry instead turned on whether the jury could properly follow the court's limiting instruction in light of the nature and amount of the out-of-court statements admitted. For the reasons discussed below, we conclude this paradigm is no longer tenable because an expert's testimony regarding the basis for an opinion must be considered for its truth by the jury." (Sanchez, supra, 63 Cal.4th at p. 679.)
To support the above conclusion, the Supreme Court turned to the Sixth Amendment's confrontation clause and the rule established in Crawford.
"Under Crawford, if an exception was not recognized at the time of the Sixth Amendment's adoption [citation], admission of testimonial hearsay against a criminal defendant violates the confrontation clause unless (1) the declarant is unavailable to testify and (2) the defendant had a previous opportunity to cross-examine the witness or forfeited the right by his own wrongdoing. [Citation.] [¶] In light of our hearsay rules and Crawford, a court addressing the admissibility of out-of-court statements must engage in a two-step analysis. The first step is a traditional hearsay inquiry: Is the statement one made out of court; is it offered to prove the truth of the facts it asserts; and does it fall under a hearsay exception? If a hearsay statement is being offered by the prosecution in a criminal case, and the Crawford limitations of unavailability, as well as cross-examination or forfeiture, are not satisfied, a second analytical step is required. Admission of such a statement violates the right to confrontation if the statement is testimonial hearsay, as the high court defines that term." (Sanchez, supra, 63 Cal.4th at p. 680, fn. omitted.)
The Supreme Court next addressed the issue of an expert relating hearsay to explain the basis for his or her opinion and the assertion that such hearsay was not admitted for its truth by analyzing Williams v. Illinois (2012) 567 U.S. 50 . After discussing the analysis of the plurality and the two dissenting opinions, the Supreme Court reached the logical conclusion that such hearsay could only be relevant if it was offered for the truth of the matter stated.
"When an expert relies on hearsay to provide case-specific facts, considers the statements as true, and relates them to the jury as a reliable basis for the expert's opinion, it cannot logically be asserted that the hearsay content is not offered for its truth. In such a case, 'the validity of [the expert's] opinion ultimately turn[s] on the truth' [citation] of the hearsay statement. If the hearsay that the expert relies on and treats as true is not true, an important basis for the opinion is lacking. In Williams, the expert's opinion that the Cellmark profile matched the defendant's known profile could not prove that Williams was the semen donor unless the Cellmark profile was, in truth, linked to the victim and was scientifically accurate. Relevant evidence is that which has a 'tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.' (Evid. Code, § 210.) If the hearsay statements about the linkage and accuracy of the Cellmark profile were not true, the fact that the two profiles matched would have been irrelevant. That is, the fact that they matched could not have had a tendency in reason to prove the disputed fact of the rapist's identity." (Sanchez, supra, 63 Cal.4th at pp. 682-683.)
The Supreme Court concluded the limitation on the use of the hearsay in this context with jury instructions was illogical.
"When an expert is not testifying in the form of a proper hypothetical question and no other evidence of the case-specific facts presented has or will be admitted, there is no denying that such facts are being considered by the expert, and offered to the jury, as true. Indeed, the jury here was given a standard instruction that it 'must decide whether information on which the expert relied was true and accurate.' [Citation.] Without independent competent proof of those case-specific facts, the jury simply had no basis from which to draw such a conclusion. The court also confusingly instructed the jury that the gang expert's testimony concerning 'the statements by the defendant, police reports, F.I. cards, STEP notices, and speaking to other officers or gang members' should not be considered 'proof that the information contained in those statements was true.' Jurors cannot logically follow these conflicting instructions. They cannot decide whether the information relied on by the expert 'was true and accurate' without considering whether the specific evidence identified by the instruction, and upon which the expert based his opinion, was also true. 'To admit basis testimony for the nonhearsay purpose of jury evaluation of the experts is ... to ignore the reality that jury evaluation of the expert requires a direct assessment of the truth of the expert's basis.' [Citation.] [¶] Once we recognize that the jury must consider expert basis testimony for its truth in order to evaluate the expert's opinion, hearsay and confrontation problems cannot be avoided by giving a limiting instruction that such testimony should not be considered for its truth. If an expert testifies to case-specific out-of-court statements to explain the bases for his opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay. Like any other hearsay evidence, it must be properly admitted through an applicable hearsay exception. Alternatively, the evidence can be admitted through an appropriate witness and the expert may assume its truth in a properly worded hypothetical question in the traditional manner." (Sanchez, supra, 63 Cal.4th at p. 684, fn. omitted.)
The conclusion reached by the Supreme Court from its analysis is, "When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay. It cannot logically be maintained that the statements are not being admitted for their truth. If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing." (Sanchez, supra, 63 Cal.4th at p. 686, fn. omitted.) Application of Sanchez to DeSoto-Cooper's Testimony
To summarize, an expert may form an opinion based on matter "perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates." (Evid. Code, § 801, subd. (b).) Hearsay information may be a proper basis for an opinion. However, Sanchez establishes that if an expert does not have personal knowledge of the fact, he or she may not testify to case-specific testimonial hearsay, even if such facts are necessary to form his or her opinion. Those facts must be established through other forms of admissible evidence.
Appellate counsel attempts to apply the holding and reasoning of Sanchez to the entirely different circumstances of this case. DeSoto-Cooper testified she was presented with the latent print obtained from the safe by Yanovsky to verify the latent print was the minor's print. DeSoto-Cooper then performed her independent analysis of the latent print to the minor's known print. Based on her independent analysis, DeSoto-Cooper concluded the latent print was identical to the minor's known print. Proceeding under the assumption that no two individuals have identical prints, DeSoto-Cooper concluded the minor touched the safe, leaving his palm print.
This testimony was not hearsay. DeSoto-Cooper testified based on her own personal knowledge; the minor's known print matched the latent print left on the safe. The Sanchez analysis has no application to these facts.
Appellate counsel ignores these facts and focuses on the process leading to the identification of the minor as the likely source of the latent print. As we understand DeSoto-Cooper's testimony, after Park retrieved the latent print, it ended up in the laboratory where DeSoto-Cooper, Yanovsky, and other technicians work. An unidentified technician ran the latent print through the computer system. This process resulted in the computer identifying 20 individuals whose known prints might match the latent print. The unidentified technician provided Yanovsky the latent print as well as the computer-generated list. Yanovsky compared the latent print to the prints of one or more individuals on the computer-generated list until she concluded the minor's known print matched the latent print. Yanovsky then provided the minor's known print and the latent print to DeSoto-Cooper to permit DeSoto-Cooper to verify the latent print matched the minor's known print. DeSoto-Cooper then performed the independent analysis described above, resulting in her verifying (i.e., reached the same conclusion) Yanovsky's conclusion.
The minor argues this process violated Sanchez. He argues that because DeSoto-Cooper relied, in part, on Yanovsky's conclusion and the computer-generated results, her testimony was based on hearsay and violated Sanchez. This argument misperceives the impact of Sanchez. Sanchez prohibits DeSoto-Cooper from relaying testimonial hearsay to the trier of fact. It does not preclude DeSoto-Cooper from relying on hearsay to form her opinion so long as it is the type of material on which an expert in her position would rely. There was no evidence that any hearsay on which DeSoto-Cooper relied was not the type generally relied upon by experts in her field. Therefore, the fact DeSoto-Cooper relied on the hearsay product of Yanovsky and the unidentified technician in forming her opinion is irrelevant.
Our analysis assumes, without deciding, that DeSoto-Cooper relied on hearsay in forming her opinion. Whether she did or did not rely on hearsay is not relevant to this argument.
Appellate counsel next identifies each individual who was involved in the process that resulted in DeSoto-Cooper being provided with the latent print from the safe and the minor's known print. She argues each of these steps were hearsay and violated Sanchez. Appellate counsel is wrong. What she has described in her brief was the chain of custody of the latent print. There was no dispute about this chain of custody at the hearing. Both parties assumed a proper chain of custody had been established. Moreover, to the extent DeSoto-Cooper testified about these steps, it was defense counsel who elicited the information. As the Attorney General points out, the minor cannot complain about information his attorney introduced into evidence. (People v. Harrison (2005) 35 Cal.4th 208, 237 [defendant cannot complain about hearsay statements when he elicited those statements from the witness]; People v. Riel (2000) 22 Cal.4th 1153, 1214 [defendant cannot complain of hearsay where he requested information be admitted].)
Appellate counsel also complains because DeSoto-Cooper did not testify in response to a hypothetical question. Apparently, appellate counsel is suggesting this failure violated the holding in Sanchez. Once again, appellate counsel misunderstands Sanchez. DeSoto-Cooper testified to the results of her examination when she compared the latent print to the minor's known print. Because she had personal knowledge of these facts, hypothetical questions were unnecessary.
Appellate counsel's attempt to analogize this case to Williams v. Illinois, supra, 567 U.S. 50 is misplaced. There was not a majority opinion in Williams, and therefore it does not provide a useful analytical framework. More importantly for our purposes, Williams is factually distinct and thus does not support appellate counsel's arguments. We take the following factual summary of Williams from Sanchez.
"Williams was a rape prosecution in which the identity of the attacker was disputed. Semen samples were collected from the rape victim and sent to a Cellmark laboratory for DNA analysis. [Citation.] Cellmark produced a DNA profile purporting to be an accurate profile of the unknown semen donor. Independent of the rape investigation, a sample of Williams's DNA had been acquired and entered in the state's database. That 'known' sample from Williams was tested and a profile produced. [Citation.] At trial, a prosecution expert testified that she compared Williams's known profile to the Cellmark profile and, in her opinion, they matched. Williams objected that the Cellmark results, related to the factfinder by the expert, constituted hearsay because they were out-of-court statements by the report writer and were offered to prove their truth: that the profile was, indeed, an accurate
profile of the man who committed the rape for which Williams was being tried." (Sanchez, supra, 63 Cal.4th at p. 681, fn. omitted.)
The United States Supreme Court found no error occurred, but without a consensus as to why there was no error. The four-justice minority concluded the testifying witness impermissibly included hearsay by relating the results of the Cellmark analysis without personal knowledge of what occurred at the Cellmark laboratory, e.g., without knowing if the sample was properly tested, or if the sample tested was actually the sample obtained from the vaginal swab of the victim.
In this case, the conclusion that the latent matched the known print from the minor was strictly the work of DeSoto-Cooper. Her opinion did not rely on the accuracy of the computer-generated list, nor of Yanovsky's analysis. DeSoto-Cooper performed an independent analysis of the two prints and concluded they matched based on at least 14 points of identification. This is a critical distinguishing fact. The analyst in Williams had to rely on Cellmark's analysis to render an opinion, while DeSoto-Cooper did not rely on Yanovsky's analysis or the computer-generated matches to form an opinion. All that the computer-generated matches and Yanovsky's work accomplished was to limit the number of comparisons DeSoto-Cooper had to perform to reach her opinion, and possibly help DeSoto-Cooper focus more quickly on the part of the palm which matched the latent print. If either the computer or Yanovsky had incorrectly identified the minor's print as a match to the latent print, DeSoto-Cooper would not have found a match when she performed her independent analysis. The analyst in Williams had no way of knowing whether the Cellmark analysis was correctly performed or performed on the correct sample. That problem did not exist in this case since DeSoto-Cooper based her opinion only on her independent analysis, and because it was an independent analysis, DeSoto-Cooper would have identified any error occurring earlier in the process.
Appellate counsel attempts to distort the issue and analysis in Sanchez to make it fit this case. A careful examination of Sanchez establishes the minor's Sixth Amendment right to confront witnesses was not violated in this case.
Sufficiency of the Evidence
Appellate counsel argues the evidence was insufficient to support the juvenile court's true finding. Our review of the sufficiency of the evidence is deferential. We "' review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.]" (People v. Hillhouse (2002) 27 Cal.4th 469, 496; see People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681.) We focus on the whole record, not isolated bits of evidence. (People v. Slaughter (2002) 27 Cal.4th 1187, 1203, disapproved on other grounds in People v. Diaz (2015) 60 Cal.4th 1176, 1189-1190.) We presume the existence of every fact the trier of fact reasonably could deduce from the evidence supporting the judgment. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We will not substitute our evaluations of a witness's credibility for that of the trier of fact. (People v. Koontz (2002) 27 Cal.4th 1041, 1078.)
"The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] 'Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. "'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.'" [Citations.]' [Citation.] '"Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt."' [Citations.]" (People v. Stanley (1995) 10 Cal.4th 764, 792-793.)
Appellate counsel argues the fact the minor's print was found on the safe was not proof he had committed the burglary since the minor could have touched the safe at some time other than during the burglary. The evidence established that five years before the burglary, the victim purchased the safe at Costco. There was no evidence the victim ever cleaned all sides of the safe at any point before the burglary. Therefore, theoretically, the minor could have touched the safe while it was in stock at Costco and his print remained on the safe the entire time the victim possessed it. The evidence does not suggest the minor could have touched the safe once it left Costco other than during the burglary. The victim testified he had never seen the minor before.
As we understand appellate counsel's argument, she asserts since the minor's print could have been left on the safe while it was at Costco, and there was no other evidence tying the minor to the burglary, the evidence was insufficient to support the judgment. She also notes the only possible corroborative evidence was that the minor lived in the same general neighborhood as the victim, but asserts this evidence was essentially meaningless.
This is the same argument as made by defense counsel to the juvenile court during his closing argument. While it was an appropriate argument to make at trial, the limitations on our review mandate we reject it. Locating the minor's print on the safe is circumstantial evidence of his guilt. (People v. Acuff (1949) 94 Cal.App.2d 551, 559 [fingerprints are circumstantial evidence].) However, it was the duty of the trier of fact, in this case the juvenile court, to find the petition not true if the circumstantial evidence was susceptible of two interpretations, one of which suggests innocence. (People v. Stanley, supra, 10 Cal.4th at pp. 792-793.) We are limited to determining if the circumstances reasonably justify the trier of fact's findings. (Ibid.) In this case, the circumstances clearly justify the juvenile court's findings.
While it is possible the minor touched the safe while it was at Costco, thus leaving prints that lasted for five years, there is no evidence to support this argument. There was no evidence the minor ever visited any Costco, no evidence he had been at any Costco around the time the victim purchased the safe, no evidence the safe was displayed at any Costco, and no evidence the minor was at the exact Costco location at which the safe was purchased. In other words, the juvenile court properly rejected the inference that the minor touched the safe at Costco because it was based on speculation.
The minor's print was found on the safe in a location it would have to have been touched to move the safe through the victim's house. This is compelling evidence the minor committed the burglary and reasonably justified the juvenile court's findings. "Fingerprint evidence is the strongest evidence of identity, and is ordinarily sufficient alone to identify the defendant. [Citation.]" (People v. Gardner (1969) 71 Cal.2d 843, 849.) The juvenile court was entitled to draw its own inferences as to how the print came to be on the safe and to weigh the opinion of the expert witness. (Ibid.) Accordingly, we conclude substantial evidence supported the juvenile court's order that the allegations of the petition were true.
Request for Judicial Notice
Finally, appellate counsel requests we take judicial notice of two items. The first is "Class Specification" for "Crime Scene Technician" apparently utilized by the Fresno Police Department. The second is the number of work days between August 27, 2015, and October 1, 2015. The Attorney General filed an informal opposition to this request.
We agree with the Attorney General that appellate counsel's requests are not relevant to any issue in this proceeding, and therefore deny the request for judicial notice. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063 [a court may only take judicial notice of relevant material], overruled on other grounds in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1273-1276.) The minor's request for judicial notice is denied.
DISPOSITION
The juvenile court's order finding the allegations of the petition true is affirmed.