Opinion
D057717 Super. Ct. No. SCD223406
12-05-2011
THE PEOPLE, Plaintiff and Respondent, v. ANTOINE P. TATE, JR., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Joseph P. Brannigan, Judge. Affirmed.
A jury convicted Antoine P. Tate, Jr., of residential burglary (Pen. Code, §§ 459 & 460). The trial court denied his request for probation and sentenced him to a four-year prison term.
All further statutory references are to the Penal Code unless otherwise specified.
Tate appeals contending the trial court committed prejudicial error in failing, sua sponte, to instruct on evaluation of expert testimony and that it abused its discretion in denying his request for probation. We will reject both contentions and affirm the judgment.
STATEMENT OF FACTS
Tate does not challenge either the admissibility or the sufficiency of the evidence to support his conviction. Accordingly, we will set forth a brief summary of the facts of the offense in order to provide context for the discussion that follows.
On June 10, 2009, Mr. and Mrs. Roberts, the owners of a home in the Clairemont area of San Diego, left home for a trip to Las Vegas. They returned home on June 13, 2009, and discovered their home had been burglarized and a number of items of personal property were missing.
The investigating officer discovered two palm prints on a kitchen window, which the officer believed was the burglar's point of entry. Subsequent examination of the palm prints disclosed that they were those of Tate.
Tate did not call any witnesses in his defense.
DISCUSSION
I
INSTRUCTIONAL ERROR
Tate contends the trial court had a sua sponte duty to instruct the jury, pursuant to section 1127b, on the factors the jurors should consider in evaluating expert witness testimony. Specifically he argues the court had a duty to give CALCRIM No. 332 which addresses this subject. Tate argues that the failure to give the instruction was prejudicial error requiring reversal of his conviction. The People respond contending even if the trial court erred, the error was harmless.
Section 1127b provides: "When, in any criminal trial or proceeding, the opinion of any expert witness is received in evidence, the court shall instruct the jury substantially as follows: [¶] Duly qualified experts may give their opinions on questions in controversy at a trial. To assist the jury in deciding such questions, the jury may consider the opinion with the reasons stated therefor, if any, by the expert who gives the opinion. The jury is not bound to accept the opinion of any expert as conclusive, but should give to it the weight to which they shall find it to be entitled. The jury may, however, disregard any such opinion, if it shall be found by them to be unreasonable. [¶] No further instruction on the subject of opinion evidence need be given."
On the record before us we will conclude the failure to give CALCRIM No. 332 was clearly harmless and reject Tate's contentions on this issue.
CALCRIM No. 332 provides: "(A witness was/Witnesses were) allowed to testify as [an] expert[s] and to give [an] opinion[s]. You must consider the opinion[s], but you are not required to accept (it/them) as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert's knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence. [¶] [An expert witness may be asked a hypothetical question. A hypothetical question asks the witness to assume certain facts are true and to give an opinion based on the assumed facts. It is up to you to decide whether an assumed fact has been proved. If you conclude that an assumed fact is not true, consider the effect of the expert's reliance on that fact in evaluating the expert's opinion.] [¶] [If the expert witnesses disagreed with one another, you should weigh each opinion against the others. You should examine the reasons given for each opinion and the facts or other matters on which each witness relied. You may also compare the experts' qualifications.]"
A. Standard of Review
In People v. Reeder (1976) 65 Cal.App.3d 235, 241 (Reeder), the court held that section 1127b requires trial courts to instruct juries on the evaluation of expert witness testimony even without request. The court reasoned that the statute requires particular instruction on the topic and that giving the general instructions on credibility did not discharge the trial court's statutory duty.
Since Reeder, supra, 65 Cal.App.3d 235, courts have held that failure to comply with section 1127b does not require reversal of convictions unless upon examination of the entire record it appears that a different result might have occurred if the instruction had been given. (People v. Haynes (1984) 160 Cal.App.3d 1122, 1137.) A reviewing court is not required to reverse a conviction for failure to instruct as required by section 1127b unless there is a reasonable probability that the jury did not understand its responsibility in evaluating the meaning and importance of the expert's testimony. (See People v. Williams (1988) 45 Cal.3d 1268, 1320; People v. Watson (1956) 46 Cal.2d 818, 836.)
B. Analysis
The palm print evidence was the only evidence to connect Tate with the burglary. As such it was an important part of the case for both sides. Counsel each examined the expert extensively and argued the weight of the evidence to the jury. Although the jury was not specifically instructed on expert witness evaluation, it was instructed on witness credibility in CALCRIM No. 226.
The evidence shows that Tate was first identified as a suspect when police employee, Stacie Hoag, conducted a computer search of the California Department of Justice database, which identified Tate's known prints as a likely match to the latent prints found at the crime scene. She then prepared a packet for review by a fingerprint examiner and placed it in a drawer for pick up by an examiner. The packet was reviewed by fingerprint examiner Roger Worthington.
Worthington explained his process at length and gave his opinion he was 100 percent sure that the palm prints belonged to Tate. Worthington then gave the packet to fingerprint examiners Bruce O'Donnell and Eduardo Palma, each of whom verified Worthington's findings.
Defense counsel was critical of the police process because the two other experts only "verified" Worthington's analysis and findings and did not do a "blind" review. Worthington explained the police department did not do blind reviews because it would require the reviewers to completely duplicate the work of the previous examiners, for which the department lacked staff. He also disagreed with the necessity for such form of review. When asked about the error rate experienced by the department during his tenure, Worthington testified he was unaware of any inaccurate fingerprint analysis done by him or the department.
On redirect examination, Worthington testified that his file was turned over to a defense retained expert for examination prior to trial. As we have noted, the defense did not present any witnesses.
In this case the jury was aware of its duty to examine the credibility of all witnesses. Worthington's testimony was not rebutted. It revealed that not only did he and two other examiners reach the same conclusion, but that the computer database search also selected Tate's prints as likely matches. The fact that the police department did not use blind reviews was certainly something the jury could consider and counsel for both sides presented the jury with their views of the weight and validity of Worthington's testimony.
A review of the entire record leads us to the conclusion there is no reasonable likelihood that the jury would have reached a different result if CALCRIM No. 332 had been given in addition to the other instructions on witness credibility. Nor is there any basis to find the jury may have been confused as to their ability to accept or reject the fingerprint evidence based upon the jury's own assessment of credibility. Accordingly, we find any error in failing to comply with section 1127b was harmless. (People v. Williams, supra, 45 Cal.3d 1268, 1320.)
II
DENIAL OF PROBATION
Tate contends the trial court abused its discretion in failing to find unusual circumstances that would have allowed the trial court to grant probation notwithstanding section 462, subdivision (a). Tate argues his age, limited mental capacity and lack of adult criminal record not only justified a finding of unusual circumstances, but that the trial court abused its discretion in failing to grant probation. We are satisfied the trial court acted well within its broad sentencing discretion in denying Tate's request for probation.
Section 462, subdivision (a), provides: "(a) Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any person who is convicted of a burglary of an inhabited dwelling house or trailer coach as defined in Section 635 of the Vehicle Code, an inhabited floating home as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, or the inhabited portion of any other building."
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A. Standard of Review
Section 462, subdivision (a), establishes a presumption that persons convicted of residential burglary are not eligible for probation, "except in unusual cases where the interests of justice would be best served . . . ." The decision to grant or deny probation in such cases is an exercise of discretion by the sentencing court and will not be overturned on appeal in the absence of a clear showing the trial court abused its discretion. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 825; People v. Downey (2000) 82 Cal.App.4th 899, 909-910.) The burden is on the appellant to show that the trial court's decision was so unreasonable as to amount to an abuse of discretion. (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.)
B. Analysis
Tate relies primarily on his lack of adult criminal record, his age and his limited mental skills. He contends those factors are so dominant that first, this is an "unusual case" and second that no reasonable judge could have denied his request for probation.
It is clear on this record that the trial court was aware of its discretion and aware of Tate's background. The probation officer recommended that probation be denied, as did the administrative review by the Department of Corrections. Tate points out that a correctional counselor thought Tate was a suitable candidate for probation, however the prison psychologist and the associate warden found that Tate was not a suitable candidate for probation.
Further, the probation report indicated that Tate had a significant juvenile record and had done poorly on probation in the past. Finally, while a defense retained psychologist recommended probation and commented on the defendant's "mental retardation," there is no evidence in the record that Tate was significantly mentally retarded. Tate was found to be alert and displayed no evidence of thought disorder, although the psychologist suggested Tate was moderately mentally retarded.
The trial court could reasonably accept the findings of the Department of Corrections, the recommendation of the probation officer and consider Tate's poor performance on probation as a juvenile. There is nothing in the record to indicate Tate has such mental disability that probation should be granted notwithstanding the other factors presented by this record. Accordingly, we are satisfied the trial court did not abuse its discretion in denying Tate's request for probation.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR:
O'ROURKE, J.
AARON, J.