Filed 10/23/13 P. v. Brown CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B242345

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. Nos. GA083551,
         v.                                                          GA080712)

HAROLD VAN BROWN,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
Dorothy L. Shubin, Judge; Carol Elswick, Judge. Affirmed.


         David L. Polsky, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Brendan
Sullivan, Deputy Attorneys General, for Plaintiff and Respondent.




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         In Los Angeles County Superior Court case No. GA080712, appellant Harold Van
Brown pled no contest to first degree residential burglary (§ 459),1 and attempted petty
theft (§§ 664/484, subd. (a)). The first degree residential burglary constituted a serious
felony (§ 667, subd. (a)) and a strike offense within the meaning of the “Three Strikes”
law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)). The trial court suspended execution
of sentence and placed appellant on formal probation for three years.
         While on probation, appellant was convicted by jury of first degree residential
burglary (§ 459), in Los Angeles County Superior Court case No. GA083551.2 The trial
court sentenced appellant to 10 years and four months in state prison, consisting of four
years on the burglary charge based on the low term of two years doubled pursuant to the
Three Strikes law, plus a five-year serious felony enhancement (§ 667, subd. (a)), and one
year and four months (one-third the four-year midterm) for the burglary in case
No. GA080712.
         Appellant contends the evidence was insufficient to support the jury’s verdict that
he committed first degree burglary in case No. GA083551. Appellant also contends the
evidence was insufficient to support the revocation of his probation. We affirm.
                                FACTUAL BACKGROUND
         On March 8, 2011, at approximately 2:30 p.m., Mariana D. returned home from
school to her Pasadena apartment. As she went upstairs, she saw on the stairs a pencil
box that appeared to have been thrown there. She normally kept the pencil box on top of
her closet. She also noticed that inside her bedroom someone had emptied out her bag.
Mariana went downstairs and discovered the Xbox video game console was missing from
the kitchen. She had last seen it the day before. Mariana called her mother and her
uncle.



1        All further statutory references are to the Penal Code unless otherwise stated.

2       Appellant’s first jury trial resulted in a mistrial. Based on the evidence presented
in the first trial, the trial court found appellant in violation of his probation.

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       Anthony Robles, Mariana’s uncle, arrived at the residence around 6:00 p.m. and
also noticed the Xbox was missing. He saw one corner of the screen on the outside of the
kitchen window was out of place. In the eight years he lived at the residence the window
screen had never been removed from the window. Robles saw a purple stain on the
kitchen tile and another stain on a bedsheet by the kitchen window. The stains were
similar to those in the alleyway outside the kitchen window caused by berries that fell
from an adjacent tree. Robles never saw anyone other than gardeners in the alleyway
outside the kitchen window. He called the police department to report the missing Xbox.
       At approximately 9:00 p.m. on March 8, 2011, Kevin Roon, a forensic specialist
with the Pasadena Police Department, arrived at the apartment to assist the police officers
investigating the burglary. Roon examined the exterior portion of the kitchen window.
The window was dirty and under the screen in the right-hand corner of the sliding portion
he observed disturbances in the dirt as if someone had touched the window and tried to
open it. Roon removed the screen and was able to lift a fingerprint from the window. A
forensic identification specialist from the Pasadena Police Department analyzed the
fingerprint and concluded the fingerprint on the window belonged to appellant.
       Robles had known appellant for about four to five years. Appellant was a relative
of Robles’s neighbor Ben. He had accompanied Ben to Robles’s residence on six or
seven occasions prior to the burglary to play video games. The last time appellant had
visited Robles’s residence was approximately two years before the burglary.
       Appellant did not present a defense or call any witnesses.
                                      DISCUSSION
       Appellant does not dispute that a burglary took place or that the fingerprints
recovered at the crime scene and admitted into evidence belonged to him. Rather, he
contends this fingerprint evidence was insufficient to support the finding he committed
the burglary because it is impossible to determine when he left the fingerprints on the
outside of the kitchen window.
       “Our Supreme Court has set forth the applicable constitutional test concerning the
sufficiency of evidence in cases where the conviction is premised on fingerprint evidence

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as follows: ‘An appellate court called upon to review the sufficiency of the evidence
supporting a judgment of conviction of a criminal offense must, after a review of the
whole record, determine whether the evidence is such that a reasonable trier of fact could
have found the defendant guilty beyond a reasonable doubt. [Citations.] The standard of
appellate review is the same in cases in which the People rely primarily 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 be reasonably reconciled with a contrary finding does not
warrant a reversal of the judgment.’” [Citations.] “Circumstantial evidence may be
sufficient to connect a defendant with the crime and to prove his guilt beyond a
reasonable doubt.” [Citation.]’ [Citations.]” (People v. Figueroa (1992) 2 Cal.App.4th
1584, 1587.)
       “Fingerprint evidence is . . . ‘the strongest evidence of identity, and is ordinarily
sufficient alone to identify the defendant.’” (People v. Bailes (1982) 129 Cal.App.3d
265, 282 (Bailes), quoting People v. Gardner (1969) 71 Cal.2d 843, 849.) “Generally
speaking whether fingerprints or palmprints of the accused are alone sufficient to identify
the defendant as the criminal must depend on the particular circumstances of the case.
[Citations.] Where such prints are found at the place of forced entry, particularly where
such location is normally inaccessible to others, there is a reasonable basis for the
inference that the prints were made there at the time of the commission of the offense and
under such circumstances may alone be sufficient to identify the accused.” (People v.
Atwood (1963) 223 Cal.App.2d 316, 326; overruled on other grounds in People v. Carter
(2003) 30 Cal.4th 1166, 1197–1198.) “The jury is entitled to draw its own inferences as
to how the defendant’s prints came to be on the [object] and when . . . and to weigh the
evidence and opinion of the fingerprint experts.” (People v. Gardner, supra, at p. 849.)



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       In Bailes the defendant was convicted of burglary based solely on the presence of
his fingerprint on a bathroom window screen that had been bent away from the window
to allow access to the burglarized residence. (Bailes, supra, 129 Cal.App.3d at pp. 268–
269.) The defendant’s family members testified the defendant was with his father and
brother on the morning of the burglary; the stolen items were never seen in the
defendant’s room or anywhere else in the family home; and the defendant “‘quite
regularly’” worked for his father, a plastering contractor, during which the defendant
removed window screens as part of his job. (Id. at p. 269.) Relying on cases in which
“a fingerprint, palm print, or footprint [was] left inside a structure or at a point of unusual
access,” the appellate court concluded the jury could reasonably infer the defendant had
left his print on the screen in the process of burglarizing the residence. (Id. at p. 282.)
       Sufficient evidence supports appellant’s conviction of the burglary based upon the
finding of his fingerprints on the outside of the kitchen window shortly after the burglary.
Robles testified that purple stains were found on the kitchen floor and on a bedsheet
which resembled the purple berries found in the alleyway outside the kitchen window.
The jury could have reasonably inferred that the kitchen window was the point of entry
into the apartment when the Xbox was stolen. Appellant argues his fingerprints could
have been left there on one of the numerous occasions he visited the apartment to play
video games, or he could have left them there when he passed by the window. There is
no support in the record for appellant’s contention that the outside of the window was
accessible to him when he visited the apartment. Indeed, the evidence is to the contrary.
Robles testified that he never saw anyone other than gardeners in the alleyway by the
kitchen window. In the eight years Robles lived at the apartment, he had never seen the
screen removed from the window, which would have been necessary for appellant’s
fingerprints to get on the window glass. Furthermore, Robles testified that appellant had
not been in the apartment for approximately two years prior to the burglary.
       Appellant relies on Mikes v. Borg (9th Cir. 1991) 947 F.2d 353 (Mikes), where the
court held that, “in fingerprint-only cases in which the prosecution’s theory is based on
the premise that the defendant handled certain objects while committing the crime in

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question, the record must contain sufficient evidence from which the trier of fact could
reasonably infer that the fingerprints were in fact impressed at that time and not at some
earlier date. [Citations.]” (Id. at pp. 356–357.) The victim in Mikes had purchased a
turnstile from a hardware store prior to his murder, and the components of the turnstile
were found disassembled at the crime scene. (Id. at p. 355.) Six of the defendant’s
fingerprints were found on the turnstile posts, and two of his prints were found on the
post that appeared to be the murder weapon. (Id. at pp. 355–356.) The victim had
acquired the turnstile four months before his death. (Id. at p. 355.) The Ninth Circuit
panel found it was possible that the defendant’s fingerprints were on the posts prior to the
time the victim purchased it. (Id. at pp. 358–359.)
       Mikes is merely persuasive rather than binding authority. (See People v.
Figueroa, supra, 2 Cal.App.4th 1587, 1588.) Moreover, the Ninth Circuit sitting en banc
and in a three-judge panel has declined to apply Mikes in two cases where the only
evidence consisted of the defendant’s fingerprints on a glass louver pane or on a
windowsill. (Schell v. Witek (9th Cir. 2000) 218 F.3d 1017, 1022–1023; Taylor v. Stainer
(9th Cir. 1994) 31 F.3d 907, 909–910.) In addition, Division Five of this district declined
to follow Mikes in People v. Figueroa, supra, at page 1588. All of these cases
distinguished Mikes on the facts, and the circumstances of this case are distinguishable
from those of Mikes as well.
       The Mikes court held that “the record must be sufficient to justify a reasonable
factfinder’s conclusion that the posts were not accessible to the defendant during the
relevant period,” which in Mikes was the period shortly before the victim acquired them.
(Mikes, supra, 947 F.2d at p. 361.) The court stated, “The ‘relevant time’ is defined as
the time prior to the commission of the crime during which the defendant reasonably
could have placed his fingerprints on the object in question and during which such prints
might have remained on that object. We must examine, in each case, the circumstances
surrounding the custody or location of the object, as well as its function, the accessibility
of the object to the defendant, and the extent to which the object was or could have been
handled by others.” (Id. at pp. 357–358, italics added.) We believe that, in this case, the

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prosecution presented evidence (as we have set out ante) sufficient to permit a reasonable
jury to conclude that the outside of the kitchen window on which appellant’s fingerprints
appeared was inaccessible to him prior to the commission of the crime during the
“relevant time,” which in this case would have been in excess of two years before the
burglary.
       Based on the foregoing, we conclude the record contains sufficient evidence
identifying appellant as the perpetrator, and the determination that the fingerprints were
left on the outside of the kitchen window during the commission of the burglary was not
“unreasonably speculative” under the circumstances of this case. (Mikes, supra, 947 F.2d
at p. 361.) ‘“[A]ll of the evidence is to be considered in the light most favorable to the
prosecution,’ [citation]; that the prosecution need not affirmatively ‘rule out every
hypothesis except that of guilt,’ [citation]; and [] a reviewing court ‘faced with a record
of historical facts that supports conflicting inferences must presume—even if it does not
affirmatively appear in the record—that the trier of fact resolved any such conflicts in
favor of the prosecution, and must defer to that resolution,’ [citation].” (Wright v. West
(1992) 505 U.S. 277, 296.) As the jury aptly found, there is no reasonable possibility
appellant left his fingerprints on the outside of the kitchen window in excess of two years
earlier and that they were not left there during the burglary of the Robles’s residence.
       For the reasons noted above, substantial evidence also supported the trial court’s
revocation and termination of appellant’s probation based on the evidence presented.




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                                    DISPOSITION
      The judgment is affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                           _____________________, J. *
                                                  FERNS
We concur:


____________________________, P. J.
      BOREN


____________________________, J.
      CHAVEZ




*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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