IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
February 15, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JUILAKI STRAWTHER, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09F05830)
The opinion of the court was delivered by: Nicholson , J.
P. v. Strawther
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 when he committed the crime. (§ 12022.53, subd. (b).)
In a bifurcated bench trial, the court found true allegations that defendant had previously been convicted of a serious felony within the meaning of section 667, subdivision (a), and the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12).
The court sentenced defendant to a state prison term totaling 25 years, calculated as follows: the upper term of five years on the robbery count, doubled under the Three Strikes law, plus a consecutive 10 years for the firearm use enhancement and a consecutive five years for the prior felony conviction.
Defendant appeals, claiming (1) the trial court erred by admitting investigator Sardelich's testimony regarding his fingerprint analysis; (2) the court erred by not providing a pinpoint instruction on Sardelich's methodology; (3) the prosecutor committed misconduct in closing argument; and (4) trial counsel provided constitutionally ineffective assistance.
Admission of Investigator Sardelich's Testimony
Defendant claims the trial court erred by denying a motion his counsel made to exclude investigator Sardelich's testimony. He claims the evidence was inadmissible because it was irrelevant. He also claims admitting the evidence violated his right to due process, as the testimony was confusing and misleading. He further claims the evidence lacked the requisite scientific foundation (See People v. Kelly (1976) 17 Cal.3d 24, 30 (Kelly)).
Defendant has forfeited these arguments by not objecting on these grounds at the trial court. Even if the arguments had been properly raised, they lack merit.
A. Additional background information
During trial and outside the presence of the jury, defense counsel suggested she intended to challenge the fingerprint testimony investigator Sardelich would give. Counsel knew that Sardelich compared the crime scene latent prints and the "major case prints" taken by investigator Noonan with the known print taken from a database (in this case, a Department of Justice (DOJ) database), but he had not compared the latent prints and the case prints with each other. To further complicate the matter, the known print had not been introduced into evidence. According to counsel, Sardelich had used the known print "as the crux of what he would look at and compared that to everything else."
Counsel argued the evidence of the known print lacked foundation and a chain of custody. She also claimed the evidence was prejudicial. If the known print was admitted, the jury would wonder why DOJ had obtained defendant's prints back in 2004. Yet if the known print was not admitted, the expert's basis for claiming that the latent prints were defendant's would be missing.
Counsel asked for a hearing under Evidence Code section 402 to determine whether the known print was admissible. Counsel also asked that if the court determined the known print was not admissible, it exclude from evidence Sardelich's expert opinion as to the latent prints' identity, since he based that opinion on the known print.
Responding to counsel's motions, the prosecutor argued investigator Sardelich could use and reference the known print without having to admit it into evidence and still testify as to his opinion on the latent prints' identity. He explained the latent prints were entered into the DOJ's automated database, which notified the examiners of a potential match. This is how defendant was identified as a suspect. At that point, Tanya Atkinson of the crime scene investigations unit printed out the copy of the DOJ known print and compared it to the latent print taken from the crime scene. She verified the two matched.
The prosecutor, however, did not intend to have a witness testify to that. In his opinion, the DOJ known print only identified a possible suspect. He was not relying on the known print to tie defendant to the crime.
The prosecutor had obtained by court order defendant's major case prints. He had intended for an investigator to obtain the case prints and compare them with the latent prints. However, the investigator did not do that. Instead, investigator Sardelich compared the case prints investigator Noonan had obtained to the DOJ known print. This established the DOJ known print was in fact defendant's print.
Investigator Sardelich then took the DOJ known print and compared it to the latent prints lifted from the crime scene by investigator Wilson, and he determined they were a match. "So what we have is, as he put it, A equals B, B equals C, so, therefore, in his expert opinion he will say A equals C. [¶] Even if he doesn't say A equals C, [that] A equals B [and] B equals C establishes [defendant] left that latent print." Inexplicably, it never occurred to Sardelich to make, or to the prosecutor to direct Sardelich to make, a comparison of the latent prints with the major case prints.
Missing the obvious remedy of a direct comparison between A and C, the prosecutor offered "to sanitize" where the known print came from by asking investigator Sardelich if he had access to multiple databases used for background checks, employment screens, and DMV fingerprints. He would then ask Sardelich if he compared the major case prints to a photo of a known print taken from one of those databases. Once he compared them, Sardelich could say the known print was defendant's. Then Sardelich could compare the known print to the latent prints and conclude in his expert opinion that it is the same person. The prosecutor argued this sanitation would take care of any foundation and prejudice concerns raised by defense counsel.
Turning to defense counsel, the court asked whether an expert could rely on the case prints, the latent prints, and the known print and conclude in his opinion they were all defendant's prints. Defense counsel did not answer the question directly. Instead, she claimed that situation would force her to show the jury what she claimed was inadmissible evidence (the known print) in order to question the expert about his comparisons.
The court said that was not per se improper. In fact, it was a common occurrence where expert opinions are challenged, as they can be based on inadmissible hearsay.
The court implied the evidence was admissible by stating it understood the prosecution's argument that the cross-comparisons of the three sets of prints supported the reliability of investigator Sardelich's opinion. It denied defense counsel's motion to exclude any evidence to the extent the motion sought that relief.
The court also denied counsel's motion for an Evidence Code section 402 hearing without prejudice "because I have no idea exactly what's going to be said. These are merely offers of proof at this time."
During trial, investigator Sardelich testified as an expert witness to the points discussed above. Neither the prosecution nor the defense sought to admit the known print into evidence. Defense counsel offered no objections to Sardelich's status as an expert witness or to his testimony. On cross-examination, investigator Sardelich repeated he had reached his conclusions by comparing the crime scene latent prints with the known print, and the major case prints with the known print.
Defendant has forfeited his argument that the court erred in admitting investigator Sardelich's testimony. Defendant never objected to Sardelich's testimony as inadmissible because it was irrelevant, confusing, misleading, or lacking a proper scientific foundation, the grounds he raises on appeal. At trial, defendant argued the evidence was inadmissible because it lacked foundation and a chain of custody and was prejudicial. Defendant cannot raise an objection to evidence on appeal that was not made in the trial court. (Evid. Code, § 353, subd. (a); People v. Partida (2005) 37 Cal.4th 428, 435.)
Defendant's claims also fail on their merits. The trial court did not abuse its discretion by admitting investigator Sardelich's testimony. The testimony was relevant, was not confusing or misleading, and it did not require any particular scientific foundation. No doubt Sardelich could have reached his opinion in a less circuitous route, but he nonetheless concluded the latent prints found at the crime scene belonged to defendant. That opinion was obviously relevant, and the jurors could consider the manner in which Sardelich reached that opinion as part of determining the weight and credibility they would attach to his opinion.
Defendant argues investigator Sardelich's testimony was inadmissible because it relied on what he calls a "transitivity relation" that he claims in this case is false. In logic, the term "transitive" "describes a given relation between terms such that if it exists between 'a' and 'b' and between 'b' and 'c,' then it also exists between 'a' and 'c.' Typical transitive relationships include 'is greater than,' 'is equal to,' and 'is similar to.'" (Encarta World English Dict. (North Amer. ed.) [Microsoft Word 7 utility].)
Defendant claims fingerprint analysis is not mathematics but is contextual and subjective, and thus the type of transitive relationship used by the prosecutor and investigator Sardelich does not hold true here. In his opinion, the relationship between the database known print, the latent prints, and the major case prints is a transitivity fallacy, similar to that expressed in such phrases as if A is perpendicular to B, and B is perpendicular to C, then A is perpendicular to C, or if A is a friend of B, and B is a friend of C, then A is a friend of C. As a result, he argues the evidence was irrelevant, misleading, and based on a new scientific technique. We disagree.
Expert testimony may "be premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions. [Citations.] Of course, any material that forms the basis of an expert's opinion testimony must be reliable. [Citation.] [¶]
"So long as this threshold requirement of reliability is satisfied, even matter that is ordinarily inadmissible can form the proper basis for an expert's opinion testimony. [Citations.] And because Evidence Code section 802 allows an expert witness to 'state on direct examination the reasons for his opinion and the matter . . . upon which it is based,' an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion. [Citations.]" (People v. Gardeley (1996) 14 Cal.4th 605, 618, original italics.)
Defendant does not contest the reliability of the database known print. And there is no doubt the DOJ database is reasonably relied upon by experts to assist with the fingerprint identification process. (See, e.g., People v. Farnam (2002) 28 Cal.4th 107, 160.) Thus, whether the database known print was admissible is beside the point, as investigator Sardelich was free to rely upon it and discuss it in his testimony as material he relied upon to form his opinion.
Admitting the testimony also did not violate defendant's due process rights, as the evidence was not misleading, confusing, or lacking a required scientific foundation. Contrary to defendant's assertions, investigator Sardelich's testimony was that, based on his scientific analysis, the latent prints matched, or were equal to, the known print, which in turn matched, or was equal to, the major case prints. Each comparison was made in Sardelich's opinion to a scientific certainty. That was sufficient for purposes of expert opinion testimony, and whether it was a true or false transitive relationship was a matter of weight to be decided by the jury.
Due process was also accorded defendant. Counsel was able to, and did challenge investigator Sardelich's methodology and analysis on cross-examination. She chose not to introduce the known print because she did not want the jury to speculate why defendant had been fingerprinted years earlier. The jury had the latent prints and the major case prints to compare and determine their similarity for themselves. Moreover, Sardelich did not rely on the database's identification of the known print belonging to defendant as the means for identifying the prints. Rather, he first determined the latent print and the known print were made by the same person, and then he determined the known print and the case print were from defendant.
Kelly also did not bar investigator Sardelich's testimony. There is nothing in the record on which to claim Sardelich's methodology was not scientifically accepted. Transitive relationships are not novel to logic, and defendant certainly does not challenge the way in which Sardelich actually compared the various sets of prints.
We thus conclude the trial court did not abuse its discretion by admitting investigator Sardelich's fingerprint identification testimony.
Defendant asserts the trial court had a duty to instruct the jury sua sponte that it had to determine whether a valid transitive relationship existed between the three sets of prints. The trial court was under no such duty.
The court instructed the jury it was not required to accept investigator Sardelich's opinion as true, and that it could determine what meaning or importance to give to his opinion in reaching a verdict. (CALCRIM No. 332.) In that instruction, the court specifically informed the jury that "[y]ou must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence."
These instructions adequately informed the jurors they could give whatever weight they believed appropriate to investigator Sardelich's opinion and the methods he used to reach that opinion. Had the court given any other instruction more specific than these on this issue, that instruction would have been argumentative. Thus, a pinpoint instruction was not required in this instance.
Defendant claims the prosecutor's references to investigator Sardelich's opinion during his closing argument was misleading and introduced facts not in evidence. Defendant did not object to the prosecutor's closing argument and request an admonition, and thus his claim of misconduct is forfeited. (People v. Friend (2009) 47 Cal.4th 1, 29.)
Ineffective Assistance of Counsel
Defendant asserts his trial counsel provided ineffective assistance on numerous occasions by failing to: (1) object to investigator Sardelich's testimony as irrelevant and in violation of due process; (2) cross-examine Sardelich on the transitive relationship he used, his standard for determining any of the prints were matches, and the effect of "biasing contextual information;" (3) seek a Kelly hearing; (4) request a pinpoint or limiting instruction on proof of a transitive relationship; and (5) object to the prosecutor's closing argument.
We have already determined the trial court committed no error by admitting investigator Sardelich's testimony. Thus, there was no ineffective assistance when counsel chose not to make non-meritorious, or even frivolous objections, to that testimony. Even if there had been error, there was no prejudice. It is not reasonably probable defendant would have obtained a more favorable outcome. (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].) The victim identified defendant in a photo lineup as the person who robbed him, and, having seen the person in his store within the month before the robbery, he testified he was certain at the time of his identification that the person he selected was in fact the robber. That person was defendant.
In light of such a strong identification, there is no reasonable probability defendant would have fared better at trial had counsel raised the objections and arguments appellate counsel raises here.
The judgment is affirmed.
We concur: BLEASE , Acting P. J. HULL , J.