Filed 1/7/16 P. v. Trujillo CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D067338

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCS274090)

PEDRO JAVIER TRUJILLO,

         Defendant and Appellant.


         APPEALS from a judgment of the Superior Court of San Diego, Stephanie

Sontag, Judge. Affirmed.

         Theresa O. Stevenson, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Senior Assistant Attorney General, and Eric A. Swenson,

Deputy Attorney General, for Plaintiff and Respondent.


         A jury found Pedro Trujillo guilty of first degree burglary and grand theft. In a

bifurcated proceeding, Trujillo admitted he suffered four of five alleged prison priors.
(Pen. Code, § 667.5, subd. (b).) After an evidentiary hearing, the court found the fifth

prior true. The court imposed a seven-year prison term.

       On appeal, Trujillo challenges the sufficiency of the evidence showing he

committed the burglary and theft crimes. This challenge is without merit and we affirm

the judgment.

                    FACTUAL AND PROCEDURAL BACKGROUND

       On June 8, 2014, Venus Olaes moved into a home in which her boyfriend,

Michael Bair, was living. The next afternoon, the two-story house was burglarized when

no one was home. Trujillo was arrested about one month later based on fingerprint

evidence found in the downstairs bathroom, on a television set, and on a hard hat found

outside the home.

       At trial, the prosecutor presented evidence that about two months before the

burglary, Bair retained contractor Jesus Cruz to perform various projects in his home,

including a kitchen remodel, new flooring, and painting. Cruz hired Trujillo to assist in

this work. Trujillo worked on the kitchen cabinets and living room windows, and helped

mount a big screen television in the family room. Trujillo stopped working for Cruz

about one week before the burglary.

       On the day of the burglary, Bair left for work early in the morning. Olaes stayed

home, putting away her items and cleaning the house. She spent about 25 to 30 minutes

cleaning the downstairs bathroom—sweeping, cleaning the countertops, washing the

mirror, and putting items in the bathroom closet. The bathroom window was partially



                                             2
open. Olaes did not see any smudges or marks near the bathroom window or on the wall

next to the window.

        Olaes left the house in the early afternoon. At the time, the bathroom window

remained partially open and all of the doors were locked.

        Olaes returned to the house at about 4:45 p.m. and attempted to enter through the

garage by using a remote-controlled opener, but the garage door spring had been

disengaged. After Olaes manually opened the garage door, she noticed items missing

from the garage. She also found numerous items were missing from the house, including

computer equipment from the kitchen, stereo equipment from the living room, and two

flat screen televisions from the upstairs bedrooms. Additional missing items included a

laptop computer, sewing machine, stereo speaker system, credit cards, and about $800 in

cash.

        Olaes called 911 and waited outside for officers to arrive. While Olaes waited,

contractor Jose Cruz arrived (after Bair notified him of the burglary). Cruz stayed with

Olaes for about two hours, attempting to assist her.

        Police officers responded to the burglary call later that evening. When they

surveyed the house, Olaes and the officers noticed the downstairs bathroom window

screen had been removed and the window was now fully open. They saw a muddy

handprint at the top of the bathroom wall adjacent to the wall with the bathroom window.

One officer also saw a print on the bathroom windowsill.

        The day before, Bair had used the bathroom and did not notice any smudges or

marks on the windowsill or the wall. Olaes likewise had not seen the handprints earlier

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in the day when she was cleaning the bathroom. A police officer collected print cards for

the prints on the bathroom wall and windowsill.

       Bair and Olaes also noticed a white plastic hard hat outside the home beneath the

downstairs bathroom window near where the removed screen had been placed. The hat

had not been there earlier in the day. Neither Bair nor Olaes recognized the hard hat, and

it did not belong to contractor Cruz. The officers collected prints from the hard hat.

       Olaes and Bair also noticed the big screen television in the family room had been

disturbed, as if someone had unsuccessfully attempted to remove it from the wall. The

police officers saw three or four fingerprints on this television that were "[v]ery

apparent." The officers collected these prints.

       Surveillance video camera footage showed a white pickup truck with an extended

cab driving towards and then entering Olaes's driveway at about the time the burglary

would have occurred. Police officers were unable to identify the license plate or trace the

vehicle to the owner or driver. Although Cruz used a white truck for his work, his truck

was different from the vehicle in the video.

       The collected prints found at the scene included: (1) two sets of prints from the

downstairs bathroom: the visible print on the windowsill and a muddy handprint on the

adjacent bathroom wall; (2) fingerprints from the wall-mounted, big-screen family room

television; and (3) three prints from the white hard hat found outside the bathroom

window. Fingerprint examiner Marykay Hunt analyzed these prints and testified that

certain of the prints matched Trujillo's fingerprints.



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       Regarding the prints from the downstairs bathroom, Hunt opined that the print

lifted from the bathroom windowsill matched Trujillo's palm print. However, her

analysis was inconclusive regarding the muddy handprint on the bathroom wall.

       Regarding the fingerprints from the downstairs big screen television, Hunt

determined one fingerprint matched Trujillo's right thumb and one fingerprint matched

Trujillo's left thumb. Hunt also identified fingerprints matching Bair and Cruz from the

same television set. The evidence showed Trujillo had assisted Cruz in installing this

television set several weeks before the burglary, but after this installation the television

had been wiped clean. Bair testified there were no visible fingerprints on the television

the day before the burglary.

       Regarding the plastic hard hat, Hunt concluded the fingerprint found on the back

side of the hat matched Trujillo's left ring finger and the fingerprint on the hat's underbill

side matched Trujillo's left thumb.

       About three or four days before the burglary (after Trujillo had stopped working),

Cruz (and Cruz's daughter and her boyfriend) repainted the downstairs bathroom. They

first taped the windows, and then put a fresh coat of paint on all walls. Trujillo did not

work in the downstairs bathroom while he was on the job, but he may have used the toilet

while working there.

       The fingerprint examiner testified that print evidence is "very fragile" and can be

easily wiped away and will often "dissipate very quickly," particularly in a warm

environment. The examiner said fingerprints would definitely be removed if the surface

was painted or taped over.

                                              5
       Ten days after the burglary, a man attempted to use one of Bair's missing credit

cards at a retail store. Surveillance video showed three males at the checkout register

making a purchase with the card. Although the investigating officer initially believed one

of the males was Trujillo, he later learned that Trujillo was in custody at the time of the

attempted purchase. Police officers did not determine the identity of these men.

       Trujillo was arrested about one month after the crime. At the time of his arrest,

Trujillo did not have any of the stolen items with him. The prosecution presented

evidence that burglars frequently sell or pawn property immediately after taking the

property to avoid being caught with the stolen property.

       The value of the items stolen from the Bair/Olaes home totaled approximately

$6,600.

                                       DISCUSSION

       Trujillo challenges the sufficiency of the evidence to support that he was the

person who committed the crime. He argues that he was improperly linked to the crime

solely by his fingerprints.

                              I. Applicable Legal Principles

       Under California law, fingerprints are strong evidence of identity and are

" ' "ordinarily sufficient alone to identify the defendant." ' " (People v. Andrews (1989)

49 Cal.3d 200, 211, italics omitted; People v. Johnson (1988) 47 Cal.3d 576, 601; People

v. Tuggle (2012) 203 Cal.App.4th 1071, 1076; People v. Figueroa (1992) 2 Cal.App.4th

1584, 1588.) Evidence showing the defendant had prior access to the object or surface

where the prints were found raises a factual issue whether the fingerprints were placed at

                                              6
the time of the crime. (People v. Tuggle, supra, 203 Cal.App.4th at pp. 1076-1077; see

People v. Figueroa, supra, 2 Cal.App.4th at p. 1588.) "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

(1969) 71 Ca1.2d 843, 849; accord, People v. Bean (1988) 46 Cal.3d 919, 932-933.)

       In reviewing a challenge to the sufficiency of the evidence, we examine the entire

record in the light most favorable to the judgment to determine whether there is

substantial evidence from which a reasonable trier of fact could find the defendant guilty

beyond a reasonable doubt. (People v. Nelson (2011) 51 Cal.4th 198, 210.) It is the

jury's exclusive province to determine credibility and to resolve evidentiary conflicts and

inconsistencies, and we presume in support of the judgment the existence of every fact

the jury could reasonably deduce from the evidence. (Ibid.; People v. Young (2005) 34

Cal.4th 1149, 1181.) If the circumstances reasonably justify the jury's findings, reversal

is not warranted merely because the circumstances might also be reasonably reconciled

with a contrary finding. (Nelson, at p. 210; see People v. Bean, supra, 46 Cal.3d at pp.

932-933.)

                                       II. Analysis

       The evidence established that after having worked in the home for several weeks,

Trujillo was familiar with the entrances and exits of the home and was aware Bair had

expensive electronic items in his home. Trujillo stopped working for the contractor

before the job was finished. The bathroom was then fully painted, and the windows were

taped during the painting. The bathroom was cleaned, and the television was wiped

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clean. Shortly after the burglary, police officers found three sets of prints that were later

determined to match Trujillo's fingerprints and/or handprint: (1) the print found on the

downstairs bathroom windowsill; (2) two fingerprints found on the big-screen mounted

television in the living room that had been disturbed in the burglary; and (3) two

fingerprints on the hard hat found outside the downstairs bathroom window.

       At trial, the primary issue for the jury's consideration was whether the prosecution

proved beyond a reasonable doubt that these prints were placed at the time of the

burglary or whether there was a different explanation (i.e., Trujillo previously touched

these surfaces/objects when he was working in the house). After considering the

evidence, the jury found the prosecution met its burden. Viewing the record as a whole,

we are satisfied there is substantial evidence to support this finding. The evidence was

sufficient for the jury to find the identified prints reflected contact at the time of the

burglary and that any of Trujillo's previously-placed fingerprints would have dissipated

or been wiped off by cleaning, paint, or tape.

       It was undisputed at trial that the burglar entered the house through the bathroom

window. Trujillo's print was found on the bathroom windowsill. Although the evidence

showed that Trujillo may have used the bathroom when he was working on the job, the

evidence showed that after he stopped working on this job, the bathroom had been

completely painted and the window area had been covered with tape. Additionally, on

the morning before the burglary, Olaes had thoroughly cleaned the bathroom and did not

notice the visible print marks on the windowsill or the adjacent wall. Further, the



                                               8
location of the window—very high and close to the ceiling—made it unlikely that a

person using the facilities would have had an occasion to touch the windowsill.

       Additionally, Trujillo's fingerprints were on the hard hat found immediately below

the bathroom window where the burglar entered. The evidence showed this hat had not

been in or near the home before the burglary and it did not belong to Cruz or any of his

other workers.

       The evidence also showed that the night before the burglary, there were no visible

fingerprints on the big screen television, and the next day, there were "very apparent"

fingerprints, two of which matched Trujillo's fingerprints. The evidence showed that the

burglar attempted to remove this television from the house, but was unable to do so.

       Further, the burglary was committed in June when it was quite warm in the house.

The prosecution presented evidence showing a fingerprint would more quickly dissipate

in warm weather.

       Putting together the fingerprint evidence with the fact that Trujillo was familiar

with the home and knew of the existence of easily removable electronic equipment, the

jury had sufficient evidence to conclude that Trujillo was the person who committed this

burglary.

       In challenging the sufficiency of the evidence, Trujillo relies on various facts that

support his defense. For example, he emphasizes there was no evidence he owned the

truck seen on the video surveillance camera or that he was in possession of money or the

stolen items when he was arrested. However, the jury, as the finder of fact, could

reasonably find the lack of additional evidence did not negate the strength of the

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fingerprint evidence. Additionally, Trujillo's discussion of the house key is unavailing.

The evidence showed that at the time of the burglary, Cruz had possession of the key, and

this key was not in the place previously accessible to the workers. Similarly, the fact that

neither Olaes nor Bair "closely examined" the bathroom before the burglary does not

mean the jury was precluded from finding the visible smudges did not exist before the

burglary. This is particularly true with respect to Olaes, who said that she spent about 25

minutes cleaning the bathroom that morning.

       Trujillo relies on several decisions in which fingerprint evidence was found

insufficient to support the conviction. (See, e.g., Mikes v. Borg (9th Cir. 1991) 947 F.2d

353 (Mikes); Birt v. Superior Court (1973) 34 Cal.App.3d 934 (Birt); People v. Flores

(1943) 58 Cal.App.2d 764 (Flores); People v. Redmond (1969) 71 Ca1.2d 745

(Redmond).) Those cases are factually distinguishable.

       In Mikes, 947 F.2d 353, the only evidence against the defendant was his

fingerprints found on a moveable object (a turnstyle post used as the murder weapon)

found at the scene. (Id. at pp. 355-356.) The court held this evidence was insufficient to

support the murder conviction because the prosecution did not present any facts showing

the defendant did not have prior access to the object, particularly because the object had

previously been in a public area. (Id. at pp. 356-361.) This case is different because the

prosecution acknowledged Trujillo had prior access to the home when he worked there,




                                             10
but presented specific evidence showing that any fingerprints placed during that time

would have been removed or dissipated before the burglary.1

       In Birt, supra, 34 Cal.App.3d 934, there were no fingerprints found at the

burglarized home or on any objects taken from the home. But the defendant was charged

with burglary based on the defendant's fingerprint on a cigarette lighter found in a rental

van containing the victim's stolen property. (Id. at pp. 937-938.) Finding this fingerprint

insufficient to hold the defendant to answer for the burglary charge, the court stated: "At

most, the presence of petitioner's fingerprint on the lighter found on the front seat showed

that, at some unknown time and place, she had been inside the van; but there was no

direct or circumstantial evidence to indicate when and where that had been. Only by

guesswork, speculation, or conjecture can it be inferred that petitioner was inside the van,

or in the area, at the time of the . . . burglary." (Id. at p. 938.) This case is different

because the fingerprints were found in the burglarized home, and not merely in a vehicle

used to transport the stolen goods.

       In Flores, supra, 58 Cal.App.2d 764, evidence of a fingerprint on a rear view

mirror established only that the defendant had been in a stolen car, not that he was

involved in stealing the car. (Id. at pp. 766-768.) Under these circumstances, the court

found there was insufficient evidence to sustain a grand theft conviction. (Id. at pp. 768-

770.) This case is different because the item stolen in Flores was personal property (a


1       Additionally, California courts have questioned whether Mikes is binding authority
to the extent it differs from the California Supreme Court's application of substantial
evidence review pertaining to fingerprint evidence. (See People v. Tuggle, supra, 203
Cal.App.4th at p. 1076; People v. Figueroa, supra, 2 Cal.App.4th at pp. 1587-1588.)
                                               11
vehicle) that could be transferred among parties; whereas the fingerprints here were

found in the burglarized home.

       In Redmond, supra, 71 Cal.2d 745, the defendant's fingerprint was found near a

bedroom window, but the evidence showed the defendant (a television salesperson) had

been in the house the day before the burglary and the defendant had discussed the

television with the homeowners in their bedroom near the window. (Id. at p. 752.) On

this record (and evidence showing the witnesses could not identify the defendant), the

court reversed the burglary conviction, emphasizing defendant's presence in the bedroom

the previous day. (Id. at pp. 756-757.) This case is different because here there was

affirmative evidence presented showing the area where the print was found was wiped,

cleaned, painted, or taped. Additionally, the hat with Trujillo's fingerprints was found

directly beneath the burglary-access window.

       Substantial evidence supported the jury verdict.

                                      DISPOSITION

       Judgment affirmed.



                                                                              HALLER, J.

WE CONCUR:



MCCONNELL, P. J.



AARON, J.

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