Filed 1/26/15 P. v. Moreno CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G050287

         v.                                                            (Super. Ct. No. FSB1103961)

RUDY ANTHONY MORENO,                                                   OPINION

     Defendant and Appellant.


                   Appeal from a judgment of the Superior Court of San Bernardino County,
Annemaire G. Pace, Judge. Affirmed.
                   Athena Shudde, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Andrew Mestman and
Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.


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              A jury convicted defendant Rudy Anthony Moreno of first degree burglary,
count 1 (Pen. Code, § 459; all further statutory references are to this code) and attempted
first degree burglary, count 2 (§§ 664, 459). In a bifurcated proceeding, the trial court
found defendant had two prior convictions qualifying as “strikes” (§§ 667, subds. (b)-(i),
1170.12, subds. (a)-(d)), one serious felony conviction (§ 667, subd. (a)(1)), and three
prior prison terms (§ 667.5, subd. (b)). The trial court sentenced defendant to 25 years to
life on count 1 plus seven years on the enhancements.
              In his appeal, defendant contends the court erred by excluding evidence of
alleged third party culpability and in permitting a fingerprint expert to testify about the
movement and force used in connection with a palm print. We conclude the court did not
err and affirm the judgment.


                                           FACTS


              Defendant occupied an apartment in a large apartment complex. His unit
was below the one occupied by Elena Leaich. The two encountered each other from time
to time. As Leaich was leaving for a weekend, carrying a bag, she noticed defendant,
who asked if she would be gone for the weekend. Leaich confirmed she would be.
              Before Leaich left on her trip, she closed and locked the windows and doors
of her apartment. When she returned after midnight a few days later, she found the front
door slightly ajar, her kitchen window open with its screen missing. Her apartment had
been ransacked. Her television, her stereo, and food from her freezer were missing.
              Leaich called the police; Officer Jason Betts responded. Betts noticed the
front door was damaged, the kitchen window, next to the front door, was ajar, and its
screen was missing. He noticed a palm print on the window and concluded this was
where the burglar entered the apartment.



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               April Crichton, a forensic specialist, obtained two latent prints from the
outside side of the kitchen window and a latent print from the blinds inside that window.
The Automated Fingerprint Identification System returned a positive match on one of the
prints for defendant. Fingerprint examiner Amanda Haleman testified the palm print
demonstrated that upward, forceful pressure had been applied to the window. The prints
must have been made after the screen was no longer in place.


                                       DISCUSSION


1. The trial court did not err in excluding alleged third party culpability evidence.
               There were two other burglaries at the apartment complex. Four months
before the instant burglary, and before defendant resided in the complex, a laundry room
was burglarized. Three months after the instant burglary, and after defendant’s arrest,
another apartment was entered through a broken bedroom window. Although
defendant’s counsel acknowledged the laundry room break in might not meet the criteria
for third party culpability, he urged the evidence of the second burglary be admitted to
provide evidence of third party culpability. The trial court ruled, “If there were a string
of similar burglaries at or around the same time in this complex I would agree that, that
would be relevant. But this is one separate isolated incident months after this burglary.
Neither burglary is unique in any real respect and they’re not super similar to each other
given the different methods of entry. [¶] So based on the state of the law I do not find
that this is relevant to the jury’s determination in this case. And so I’m going to exclude
any evidence by the defense regarding those other two incidents.”
               Defendant argues the court erred in denying admission of this evidence.
We disagree.




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              Although defendant argues, in part, that the denial of admission was error
under Evidence Code section 352, the trial court did not exclude the evidence under the
weighing process required by that section. The court excluded the evidence because it
found the evidence to be irrelevant. We review such a denial for abuse of discretion.
(People v. Brady (2010) 50 Cal.4th 547, 558; People v. Prince (2007) 40 Cal.4th 1179,
1242.)
              No attempt was made to identify the burglars involved in the two other
burglaries and the details provided by defense counsel were sparse. Counsel stated,
“There are two unrelated burglaries that occurred in the apartment complex in question.
One before. The one before was from the apartment complex laundry room. And then
after the burglary in question there was another burglary in the complex where
[defendant] lived after [defendant] was in custody on this case.”
              The court interrupted: “And my understanding is that the laundry room he
was not living there at that time?”
              Counsel continued: “That is correct. It was my hope and request to seek to
admit both of those. However, as an officer of the court I think I am required to be
candid and in all [due] candor I am aware of the case[]law and the rules regarding third
party culpability. And I cannot say that the incident regarding the laundry room, of
course I would like to have it in, but I cannot credibly argue to the court that, that would
necessary come within the purview of the third party culpability in terms of my
understanding of the law. Regarding the incident after, I think there is a stronger nexus
because it was an apartment and I believe the mode of entry was a door - - window - -
which makes it even more similar.”
              At this point in the discussion, defense counsel acknowledged having
received a police report from the prosecutor. Presumably this report pertained to either
one or both of the burglaries being discussed. But the record does not contain such a
report.

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              In response, the prosecutor referred to the second burglary and stated “[i]t
was a broken bedroom window entry. It was not through a kitchen window. There was
no - - the window was actually broken and that’s how the burglary entry was
accomplished.”
              With respect to the laundry room burglary, we do not even know if the
room was locked or whether entry was forced. It bears no resemblance to the subject
burglary and we appreciate defense counsel’s candor in acknowledging the court should
not even consider this burglary. We therefore reject defendant’s argument in this appeal
that counsel’s concession constitutes ineffective assistance of counsel.
              The mere fact there was another burglary in a complex containing 328 units
some months after the subject burglary is too remote and too uncertain to be relevant. As
pointed out by the prosecutor, even the mode of entry differed. In the instant burglary,
the entry was achieved by sliding a kitchen window open; in the later burglary, a
bedroom window was broken to gain entry. There is nothing in the record to indicate the
identity of the person who committed the later burglary. In People v. Sandoval (1992) 4
Cal.4th 155, 176, our Supreme Court stated “[a] criminal defendant has a right to present
evidence of third party culpability if it is capable of raising a reasonable doubt about his
own guilt. This rule does ‘not require that any evidence, however remote, must be
admitted to show a third party’s possible culpability.’” (Ibid.) In an apartment complex
of this size, it is unfortunately not unusual that two burglaries took place within several
months of each other. But without further specific similarity between the methods used,
we cannot conclude the trial court abused its discretion in deciding evidence of the later
burglary was not relevant.


2. The court did not err in admitting evidence of the fingerprint expert.
              Haleman testified about the procedure she used to match one latent palm
print to defendant’s known palm print. She then testified to the pressure applied and the

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upward movement of defendant’s palm. She based this on “large white marks going in
an upward direction.” This, in turn, explained how the window was opened.
              Defendant objected on grounds of speculation and lack of foundation. He
now argues to the same effect that “Haleman lacked qualification as an expert on
movement and force underlying fingerprint impressions, and admission of [this] evidence
constituted an abuse of discretion.”
              Haleman had been employed as a fingerprint examiner for seven years. She
had received 400 hours of formal training in fingerprint analysis, classification, and
identification. She had received approximately 10 months of on-the-job training in these
same areas. In addition, she received training from the Department of Justice and San
Bernardino Valley College. She had testified as an expert in approximately 15 prior
cases. To argue she could testify about fingerprints but not about palm prints draws too
narrow a line around the expert’s area of expertise. Similarly, testimony of force left by a
fingerprint or palm impression or movement demonstrated by the impression would seem
to be well within the area of her expertise.
              “Where a witness has disclosed sufficient knowledge of the subject to
entitle his opinion to go to the jury, the question of the degree of his knowledge goes
more to the weight of the evidence than its admissibility.” (Seneris v. Haas (1955) 45
Cal.2d 811, 833.) And, as noted by the Attorney General, People v. Bolin (1998) 18
Cal.4th 297 held “[t]he trial court’s determination of whether a witness qualifies as an
expert is a matter of discretion and will not be disturbed absent a showing of manifest
abuse. [Citations.]” (Id. at pp. 321-322.) The trial court did not abuse its discretion in
permitting the testimony of the fingerprint expert.




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                                DISPOSITION


          The judgment is affirmed.




                                          RYLAARSDAM, ACTING P. J.

WE CONCUR:



BEDSWORTH, J.



ARONSON, J.




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