(Super. Ct. No. 09F05830)
The opinion of the court was delivered by: Nicholson , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Juilaki Strawther appeals from his conviction of second degree robbery. He contends the trial court made numerous prejudicial errors regarding the admission of the prosecution's fingerprint evidence against him. Alternatively, he claims his trial counsel rendered ineffective assistance when she did not raise numerous objections to the fingerprint evidence. He also alleges instructional error and prosecutorial misconduct. We disagree with defendant's contentions and affirm the judgment.
Jagdeep Singh and Kuldeep Lally were working at a 7-Eleven store on 43rd Avenue in Sacramento the evening of July 19, 2009. Singh was the assistant manager and worked at the cash register. Lally was the night clerk. He was responsible for stocking the shelves and cleaning the store regularly.
One of Lally's duties included cleaning the store's counter areas. He would wipe the counters with a damp cloth. That day, he cleaned the counter in front of the cashier with a damp towel at 7:19:05 p.m. He was recorded doing so by the store's surveillance camera.
At about 7:30 p.m. that evening, Singh was helping a customer when he noticed two men outside the store. After the customer left and while Singh was putting change in the register drawer, a man suddenly came up to him, displayed a gun, and told Singh to give him the money or he would shoot him. Singh feared he would be shot. He noticed the robber put his left hand onto the glass counter in front of the cash register while he held the gun in his right hand. The robber was not wearing gloves. Singh opened the drawer and gave the robber the money. The robber took the money, put the gun in his pants, and ran out. Singh then hit the robbery bell at his counter and called 911.
Singh described the robber as Black, approximately 20 or 21 years of age, and wearing a beanie, a black jacket, and a t-shirt with a golden sign on the front. The robber also had a little beard and some facial hair. Singh did not notice any tattoos on the robber. The robber's gun was a black revolver with a long barrel.
Singh was unable to identify the robber at trial. He was not sure if defendant was the robber, but he noted defendant's color and facial hair looked similar to the robber's. Singh had participated in a photo lineup about a week after the robbery, however, and at that time he identified defendant as the robber. His memory then was much better than it was at trial, and he was confident then that he had identified the correct person. He had seen the man he identified in the photo lineup in his store sometime during the month before the robbery, but not earlier on the day of the robbery.
Sacramento Police Department Detective Mike Mullaly was assigned to investigate the robbery. On July 28, 2009, he met with the store's owner and viewed the surveillance tape of the robbery. The tape showed the robber, and showed him pointing a revolver-type weapon at Singh. It also showed the robber was accompanied by another person who wore a white t-shirt. This accomplice remained outside of the store during the robbery. Both the robber and his accomplice fled after the robbery.
Detective Mullaly became aware that defendant was a suspect in the robbery. He administered the photo lineup to Singh. Singh looked at the photos "for just a few seconds," pointed to defendant's photo, and said he was the robber. Singh said he was certain he had selected the robber.
Fingerprint evidence was collected as part of the investigation. On the evening of the robbery, Sacramento Police Department forensic investigator Bridget Wilson collected two latent fingerprints from the 7-Eleven's counter near the cash register and four latent prints from the interior of the store's door.
On October 13, 2009, Sacramento Police Department forensic investigator Darin Noonan met with defendant in order to take a set of "major case prints" from him. Investigator Noonan described major case prints as "known exemplars from every portion of the hand, the joints of the fingers and of the palms and the lower portion and side portions of the palms that you would normally not obtain during the booking process." Investigator Noonan obtained defendant's case prints and booked them into the file. He also photographed defendant to document his identity as the person whose fingerprints he had collected.
Sacramento Police Department forensic investigator Timothy Sardelich analyzed the latent prints investigator Wilson had collected at the scene. Along with the latent prints, investigator Sardelich received a known print from a database of known prints used for when someone applies for a background check, for employment with law enforcement, or by the Department of Motor Vehicles (DMV).*fn1 The known print belonged to defendant. Sardelich was asked to compare the latent prints with the known print. Sardelich compared the latent prints taken from the scene with the known print, and he determined the latent prints taken from the 7-Eleven's glass counter matched defendant's known print.
Investigator Sardelich next compared defendant's known print from the database with the case prints taken from defendant by investigator Noonan. He concluded the known print and the case prints came from the same person.
From these comparisons, investigator Sardelich concluded one of the latent prints lifted from the 7-Eleven's counter was of defendant's left little finger. Another latent print lifted from the counter was of defendant's left hand and fingers. Other latent prints that had been lifted from the 7-Eleven's door by investigator Wilson during the robbery investigation did not match defendant's known print or his case prints.
We provide additional facts in context as necessary.
Following the presentation of evidence, a jury convicted defendant of one count of second degree robbery (Pen. Code, § 211).*fn2 The jury also found true an allegation that defendant had personally used a firearm ...