Filed 9/26/13 P. v. Jones CA2/3
               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  SECOND APPELLATE DISTRICT

                                              DIVISION THREE


THE PEOPLE,                                                                B241140

         Plaintiff and Respondent,                                        (Los Angeles County
                                                                          Super. Ct. No. MA054661)
         v.

RONALD A. JONES,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Hayden Zacky, Judge. Affirmed.
         Landra E. Rosenthal, 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, Stephanie A.
Miyoshi and William N. Frank, Deputy Attorneys General, for Plaintiff and
Respondent.


                                 ______________________________
           Defendant and appellant, Ronald A. Jones, appeals his conviction for first
degree murder (Pen. Code, § 187).1 He was sentenced to state prison for 25 years
to life.
           The judgment is affirmed.
                                       BACKGROUND
           Viewed in accordance with the usual rule of appellate review (People v.
Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.
           1. The crime scene evidence.
           Earl Cager testified his family owned Cager Clothing, a store in Palmdale,
on Q-6 near a barber shop. One of the store’s employees was Annton Berry.
On October 23, 2006, Earl and his mother went to the store to pick up some
T-shirts. Berry was the only person working in the store that day. At the rear of the
store, Earl saw a body with a plastic trash bag over its head. Earl ran and told his
mother, who called 911. Earl testified Berry’s silver Impala had been parked
outside the store when they arrived, but by the time they had parked, the Impala was
gone.
           When the police arrived they found Berry’s body. The autopsy showed
Berry had died from a gunshot wound to the head. Autopsy photographs showed he
had also sustained lacerations, a black eye, and bruising on his arm and knee,
suggesting he had been in a fight and had been wrestled to the ground. Berry’s
Impala, his wallet and his checkbook were subsequently found at other locations.
           Police recovered five latent fingerprints from the plastic bag which had been
placed over Berry’s head.
           2. Witness statements.
           Alfonso H. testified he was acquainted with defendant Jones as someone
who socialized with Alfonso’s nephews, Andre and Arthur. Alfonso told police that


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

                                              2
one morning before Halloween in 2006, he, his nephews and Jones were together.
Jones asked Arthur and Andre to help him rob a clothing store on Q-6 near a barber
shop. Jones wanted to rob this particular store because there would only be one
person working there. After Arthur and Andre refused Jones’s request, Jones left.
Alfonso spent the rest of the day with his nephews. That afternoon, he and Arthur
saw police roadblocks near the store Jones had talked about robbing. Alfonso and
Arthur later read in the newspaper that a man with a bag over his head had been
killed in the store that day.
       Two days after the killing, Arthur overheard Jones talking about the robbery,
saying the victim had pleaded for his life and Jones had had to wrestle him to the
ground.
       3. Fingerprint evidence.
       Los Angeles County Deputy Sheriff Craig Johnson testified he worked as a
fingerprint examiner. He developed five latent fingerprint cards from the plastic
bag on Berry’s head. A “latent fingerprint” is an unknown or unidentified print,
whereas an “exemplar” is a known example of a person’s fingerprints.
       The Sheriff’s Department uses an Automated Fingerprint Identification
System which allows a database search of latent fingerprints. This computerized
system generates a list of likely match candidates. Based on a photograph of the
latent prints taken from the plastic bag, the system hit on Jones as a potential match.
Johnson then manually compared the prints and confirmed the latent prints from the
bag belonged to Jones. Johnson testified one of the latent prints contained a portion
of Jones’s right little finger, and another contained a portion of Jones’s left ring
finger. Johnson’s initial comparison was then checked by two other fingerprint
analysts, who both concluded the latent prints matched Jones’s exemplar.
       On the day of Johnson’s testimony he fingerprinted Jones, creating a new
exemplar. Johnson then compared the latent prints from the bag to the new
exemplar and, once again, determined there was a match.
       Jones did not present any evidence.

                                           3
                                   CONTENTION
       Jones contends the trial court erred by refusing to hold a Kelly-Frye hearing
before admitting Johnson’s fingerprint testimony. This claim is meritless.
       1. Proceedings below.
       Defense counsel filed a motion to exclude the fingerprint evidence on Kelly-
Frye2 grounds. The motion cited a 2009 report from the National Academy of
Sciences and an unpublished 2008 Maryland trial court ruling, and argued that, due
to a recent change in the scientific community’s view of fingerprint analysis
reliability, there was no basis on which Johnson could have concluded the latent
prints belonged to Jones to the exclusion of all other people.
       The trial court denied the motion, saying: “[F]ingerprint analysis is not
a new scientific technique. The California Supreme Court has repeatedly held over
a span of 57 years that fingerprints are the strongest evidence of identity of a
person. . . . [T]hese cases appear to have been written prior to D.N.A. but there’s a
number of cases that stand for that proposition. [¶] In addition . . . the defense is
more than able to call a fingerprint witness if they’d like to present contrary
evidence that perhaps the prints at the crime scene did not belong to Mr. Jones.
And if [defense counsel] has such a witness, I am sure he will call that witness.
But I don’t believe there’s any reason to conduct a Kelly-Frye hearing. This is not
new scientific evidence. It’s generally accepted in the scientific community as well.




2
       The Kelly/Frye test for admitting the results of new scientific techniques
originally referred to People v. Kelly (1976) 17 Cal.3d 24, 30-32 and Fyre v. United
States (D.C.Cir. 1923) 293 F. 1013. “[F]ollowing the United States Supreme
Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S.
[579] . . , holding that Frye was abrogated by rule 702 of the Federal Rules of
Evidence . . . we conclude that the Kelly/Frye formulation (or now more accurately,
the Kelly formulation) should remain a prerequisite to the admission of expert
testimony regarding new scientific methodology in this state.” (People v. Leahy
(1994) 8 Cal.4th 587, 591.)

                                           4
Historically, fingerprints have been presented in criminal cases throughout this state
and throughout the entire country, if not the world. So the motion is denied.”
       2. Standard of review.
       Jones’s Kelly-Frye challenge to Johnson’s testimony is “a decision . . . which
concerns the admissibility of evidence, [and is therefore] subject to review for abuse
of discretion. This is especially so when, as here, the evidence comprises expert
opinion testimony. [Citation.] Underlying determinations, of course, are
scrutinized pursuant to the test appropriate thereto. The conclusion that a certain
legal principle, like the Kelly-Frye rule, is applicable or not in a certain factual
situation is examined independently. [Citation.]” (People v. Rowland (1992)
4 Cal.4th 238, 266.)
       3. Discussion.
       Jones contends his conviction must be reversed because the trial court
refused to hold a Kelly-Frye hearing on the reliability of fingerprint evidence.
This claim is meritless.
              a. No need to hold a Kelly-Frye hearing.
       Jones contends the trial court “erroneously concluded that fingerprint
evidence was generally accepted in the scientific community. While fingerprint
evidence may still be accepted in the legal community, and particularly in
connection with criminal cases, recent developments have shown that fingerprint
evidence is not in fact, at this time, generally accepted in the scientific community.
There has clearly been shown that a basis now exists to question the hitherto
ordinarily unchallenged acceptance of testimony by so-called fingerprint experts.”
       Jones bases this claim on a 2009 report issued by the National Research
Council [N.R.C.] of the National Academy of Sciences, “Strengthening Forensic




                                            5
Science in the United States: A Path Forward.”3 He asserts: “The report is
unequivocal; there is no existing research which demonstrates that fingerprint
comparison evidence is reliable and valid.” Jones also relies on an unpublished
Maryland trial court opinion4 which, on the basis of the N.R.C. report and testimony
from an FBI fingerprint expert, refused to allow prosecution fingerprint evidence on
the ground the state had failed to prove the testimony rested on a reliable factual
foundation.
       The Attorney General responds: “The [N.R.C.] study appellant cites has not
persuaded other courts that it established any change in the opinion of the scientific
community or warranted exclusion of latent fingerprint evidence. Appellant’s out-
of-jurisdiction legal authority is unpersuasive and not even good law in its own
jurisdiction.”
       We find the Attorney General’s position more persuasive. The unpublished
Maryland case relied on by Jones, Maryland v. Rose (2007 Md. Cir.Ct. LEXIS 14),
was implicitly disapproved two years later by Markham v. State (2009 Md.App.)
984 A.2d 262, which affirmed a trial court’s refusal to hold a hearing on the




3
        See National Research Council, “Strengthening Forensic Science in the
United States: A Path Forward (2009)”
https://www.ncjrs.gov/pdffiles1/njj/grants/228091.pdf (as of Sept. 17, 2013).
4
        The California Rules of Court only prohibit the citation of unpublished
California cases. As we noted in Haligowski v. Superior Court (2011) 200
Cal.App.4th 983, 990, fn. 4: “Unpublished federal opinions are ‘ “citable
notwithstanding California Rules of Court, rule [8.1115] which only bars citation of
unpublished California opinions.” ’ ” “In California an unpublished opinion may
not be cited or relied upon. [Citations.] However this rule applies only to opinions
originating in California. Opinions from other jurisdictions can be cited without
regard to their publication status. Decisions of the courts of other states are only
regarded as ‘persuasive . . . depending on the point involved’ [citation], and some
states have different publication criteria than California.” (Lebrilla v. Farmers
Group, Inc. (2004) 119 Cal.App.4th 1070, 1077.)

                                           6
reliability of fingerprint identification evidence.5 Markham said: “Given the
consensus that fingerprint identification is reliable, other courts recently have
reaffirmed Maryland’s view that a court can take judicial notice of the reliability of
fingerprint identification evidence. See United States v. Crisp, 324 F.3d 261, 269
(4th Cir.2003) (because Crisp has ‘provided no reason today to believe that this
general adoption of the principles underlying fingerprint identification has, for
decades, been misplaced,’ the district court properly accepted ‘at face value’ the
consensus that the technique is reliable) . . . ; State v. Escobido–Ortiz, 109 Hawai’i
359, 126 P.3d 402, 413 (2005) (‘We take judicial notice, based on the
overwhelming caselaw from other jurisdictions, that the theory underlying latent
fingerprint identification is valid and that the procedures used in identifying latent
fingerprints, if performed properly, have been widely accepted as reliable.’);
Florence v. Commonwealth, 120 S.W.3d 699, 702 (Ky. 2003) (fingerprint analysis
included among types of scientific evidence for which trial judges can take judicial
notice that they ‘have achieved the status of scientific reliability’).” (Markham v.
State, supra, 984 A.2d at p. 274, italics added.)
       More recently, the Florida Supreme Court in a death penalty case, Johnston
v. State (Fla. 2010) 27 So.3d 11, denied a request for post-conviction relief
predicated on the N.R.C. report’s discussion of fingerprint evidence: “[W]e
conclude that the report lacks the specificity that would justify a conclusion that it
provides a basis to find the forensic evidence admitted at trial to be infirm or faulty.
The following statement in the report’s executive summary is particularly telling:
‘The committee decided early in its work that it would not be feasible to develop a
detailed evaluation of each discipline in terms of its scientific underpinning, level


5
       Markham stated: “Appellant has cited to no reported case, in Maryland or
otherwise, finding that fingerprint evidence is not reliable.” (Markham v. State,
supra, 984 A.2d at p. 274, fn. omitted.) “Appellant’s sole citation is to a circuit
court decision excluding fingerprint evidence.” (Id. at p. 274, fn. 7.) This circuit
court decision was apparently the Rose case relied on by Jones.
                                           7
of development, and ability to provide evidence to address the major types of
questions raised in criminal prosecutions and civil litigation.’ ” (Id. at p. 21.)
       The fact there may now exist some scholarly criticism of forensic fingerprint
analysis does not demonstrate there has been a change in the scientific community’s
long-standing view that the technique is reliable. We conclude the Kelly-Frye rule
does not apply to this case and that the trial court did not abuse its discretion by
admitting the fingerprint evidence.
              b. No prejudice in any event.
       In any event, we conclude any error in admitting the fingerprint evidence
was harmless. The erroneous admission of scientific analysis evidence requires
reversal only if it is reasonably probable the verdict would have been more
favorable to the defendant in the absence of the error. (See People v. Venegas
(1998) 18 Cal.4th 47, 93 [“Erroneous admission of the results of the FBI’s DNA
analysis using the modified ceiling approach with floating bins that were too narrow
requires reversal only if it is reasonably probable the verdict would have been more
favorable to defendant in the absence of the error [under Watson6].”].) Here, there
is no reasonable probability of a different result.
       Jones did not put on any evidence. Alfonso told police Jones had asked
Alfonso’s nephews to participate in the clothing store robbery with him, but that
they refused. Arthur confirmed this story and also told police that two days later he
overheard Jones talking about his involvement in the crime. Jones argues this
evidence should be discounted because it came from witnesses who could have
been viewed as accomplices. Not so; neither Alfonso nor Arthur was an
accomplice.
       “An accomplice’s testimony is not sufficient to support a conviction unless it
is corroborated by other evidence connecting the defendant with the commission of
the offense. [Citation.] In this context, ‘testimony’ includes an accomplice’s out-


6
       People v. Watson (1956) 46 Cal.2d 818.
                                            8
of-court statements made under questioning by police or under other suspect
circumstances. [Citations.]” (People v. Carrington (2009) 47 Cal.4th 145, 190-
191.) “ ‘[A]n accomplice is one who aids or promotes the perpetrator’s crime with
knowledge of the perpetrator’s unlawful purpose and an intent to assist in the
commission of the target crime. . . .’ [Citation.] ‘In order to be an accomplice, the
witness must be chargeable with the crime as a principal (§ 31) and not merely as an
accessory after the fact (§§ 32, 33).’ [Citation.]” (People v. McKinzie (2012)
54 Cal.4th 1302, 1353.) “The court need give such instructions only where there is
substantial evidence that the witness was an accomplice” (People v. Boyer (2006)
38 Cal.4th 412, 466), which does not include mere speculation. (See People v.
Howard (1992) 1 Cal.4th 1132, 1173 [“Only through bare speculation could the
jury have concluded that Devine was guilty of the charged offenses as an
accomplice.”].)
       There was no evidence Alfonso and Arthur were accomplices. Jones’s
assertion that Arthur was an accomplice is based on a misreading of the record.
Jones claims Alfonso told police his nephews carried out the robbery with Jones,
but what Alfonso actually said was that, although his nephews were associates of
Jones, they had refused to take part in the robbery and they did not accompany
Jones to the store that day.
       Hence, Jones’s guilt did not depend entirely on the fingerprint evidence.
Rather, there was strong independent evidence tying Jones to the crime. Therefore,
even had the expert been required to testify he could not say the latent prints
belonged to Jones “to the exclusion of all other people,” it is not reasonably
probable the verdict would have been more favorable to Jones.




                                           9
                                 DISPOSITION
     The judgment is affirmed.
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                          KLEIN, P. J.


We concur:



             CROSKEY, J.




             ALDRICH, J.




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