APPEAL from a judgment of the Superior Court of Los Angeles County, Daviann L. Mitchell, Judge. Super. Ct. No. MA044953
The opinion of the court was delivered by: Klein, P. J.
CERTIFIED FOR PUBLICATION
Reversed in part, affirmed in part and remanded with directions.
Allen Tuggle, Jr., appeals the judgment (order granting probation) entered following his conviction by jury of burglary. (Pen. Code, § 459.)*fn1 Tuggle contends the presence of his fingerprint on a moveable object in the burglarized residence is insufficient to support the conviction absent a showing the fingerprint could not have been placed on the object at some earlier time. He also contends the trial court abused its discretion in allowing a forensic identification deputy to testify regarding the durability of fingerprints and the order directing Tuggle to pay attorney fees must be vacated for failure to comply with section 987.8, subdivision (b).
We accept the People's concession the case must be remanded to permit the trial court to comply with the reimbursement statute. On the remaining issues, we find no error. The burglarized residence, a model home in Lancaster, was cleaned before it opened in 2006 and thereafter was cleaned on a monthly basis until April of 2008. After the burgrlary in November of 2008, Tuggle's fingerprints were found on a vase that was on the ground next to a fireplace. When Tuggle was arrested in February of 2009, he admitted he had not been in any model homes in Lancaster in the previous two years. Based on the regular cleaning of the home and Tuggle's post-arrest statement, we conclude the evidence demonstrated Tuggle did not innocently leave his fingerprints on the vase. We further conclude no error appears in the admission of the testimony of a forensic identification deputy regarding the durability of fingerprints.
Thus, we reverse the order directing Tuggle to pay attorney fees, and remand the matter to the trial court for notice and a hearing as required by section 987.8, subdivision (b). In all other respects, we affirm the judgment.
1. The burglarized residence.
At trial, Sandra Rubio, a project manager for American Premier Homes (APH), testified that in 2005, APH developed a residential project in Lancaster which included the home at 1828 Kaylyn Street. When construction on the home concluded in 2006, APH contracted with JAG Interiors to furnish the home as one of three model homes. While the model homes were in use, they were cleaned once a month by a contractor, Magic Maintenance. The cleaning included "dusting and mopping everything." The model home was in use from 2006 until April of 2008. It was cleaned regularly during that time and no additional furnishings were brought to the home. In April of 2008, the project closed, the model homes were locked and the regular cleaning ceased. After the home was closed to the public, APH did not allow anyone to enter the home other than the superintendent. Rubio does not know Tuggle, he is not an APH employee and he did not have permission to enter the home.
Jamie General, an interior designer with JAG Interiors, supervised the furnishing of the model home at 1828 Kaylyn Street. General recalled it was "superhot, windy, [and] dusty" when the furnishings were delivered. "[E]verything got dirty because we had to leave all the windows and doors [open] because they didn't have any air [conditioning] yet. . . . [W]e were installing for five days in about 115 degree weather." The furnishings were delivered by Delivery Associates. General did not recognize Tuggle and, to General's knowledge, Tuggle was not hired to help with the delivery. After the furnishings were installed, a cleaning crew prepared the house for a grand opening.
APH superintendent Tommy Kozenko testified that on November 8, 2008, he discovered someone had broken into the model home at 1828 Kaylyn Street and ransacked it during the previous week. Items taken in the burglary included a refrigerator and the stereo speaker system. Kozenko indicated the model homes were kept in "spotless" condition while they were open to the public. When Kozenko entered to investigate the burglary, the interior of the home was dusty. Kozenko found a glass candleholder vase and other items on the floor next to the fireplace and it appeared the vase had been moved. At the time of the burglary, the air conditioning system remained in operation to protect the home from damage due to dust. The project was surrounded by undeveloped land. Dust and high wind were "big problem[s]" in the area.
2. The fingerprint evidence.
On November 10, 2008, Ann Mercer, a community service officer, lifted numerous fingerprints from objects inside the residence at 1828 Kaylyn Place. When Mercer entered the residence, she noticed "dust rings," which indicated objects had been moved. Mercer lifted fingerprints from a candle vase and noted on the print card the vase had been next to the fireplace.
Sheriff's Deputy Jeffrey Collins, a forensic identification deputy, matched Tuggle's fingerprints to fingerprints Mercer lifted from the vase. Collins explained that fingerprints are made by amino acids, they are delicate and they have a tendency to evaporate. In order for a fingerprint to remain on an object for three years, the object could not be "washed, cleaned, dusted, or anything like that. Because when you do have something like that, that's going to destroy your fingerprint. It's just going to wipe it out." "If an object is cleaned and it's cleaned monthly, even every two or three months, whatever fingerprint that is left prior to that is going to be contaminated or totally eliminated because you have that surface disturbed." "You can pretty much eliminate any fingerprint just by wiping it down once." Based on the testimony Collins heard, which indicated "these objects were being cleaned, it's highly unlikely a fingerprint would be sitting there for three, four years . . . ."
Sheriff's Deputy Daniel Mahoney arrested Tuggle on February 24, 2009. Tuggle told Mahoney he had not been in, around or near any model homes in the previous two years and he had been working with Labor Ready for two years. When Mahoney asked if Tuggle's fingerprints would be inside any model home in Lancaster, Tuggle said he was in no position to ...