In re Brandon W. CA1/1

Filed 5/8/13 In re Brandon W. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
In re BRANDON W., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v. A136656
BRANDON W.,
(Alameda County
Defendant and Appellant. Super. Ct. No. SJ-12-189211)
In this case, a petition was filed pursuant to Welfare and Institutions Code section
602, subdivision (a), alleging minor committed first degree burglary (Pen Code, § 459).
On September 7, 2012, at a contested jurisdictional hearing, the juvenile court sustained
the petition. On September 21, 2012, the court declared appellant a ward of the court
under the supervision of the probation department, finding that continued residing in the
home of his grandmother was not in the best interests of the minor, and committed
appellant to the care of the probation department. The appellant now challenges the
sustaining of this petition. We affirm the judgment of the trial court.
STATEMENT OF FACTS
On October 15, 2011, around 12:45 p.m. Yolanda Alexander-Maker approached
her home at 1414 Fairview, Berkeley, California. She is African-American. She noticed
two African-American youths pass her on the sidewalk. One was medium-brown in skin
tone, the other light, each one was “fairly tall.” They appeared to be in their teens or
early twenties. When Alexander-Maker said “hello” to the youths, only the medium-
brown skinned male responded. The other kept going. She then saw a third male
following behind the two. She thought the three were together but they clearly were not
walking together. This gave her a “bad feeling.” Alexander-Maker had occupied her
home for over 50 years. She knew the people in her neighborhood and had not seen the
three youths before. As she entered her home, Alexander-Maker noticed the first two
men were gone but the third person was resting on the trunk of a red Honda, looking up
and down the street.
Alexander-Maker telephoned the police because she was suspicious. Looking out
her front window, she saw the first two men walk down a driveway of a neighbor’s home
and speak with the man at the Honda. Alexander-Maker then saw the two go back up the
neighbor’s driveway and disappear. Alexander-Maker testified the appellant resembled
the lighter-skinned male she saw on the street.
Jeanne Song lived in the home which had the driveway the two walked back and
forth from, 1422 Fairview. It was a single-family residence. On October 15, 2011, Song
and her daughter had gone to Santa Cruz around 8 a.m. Song locked her home before
leaving. Around 6 p.m., while in the town of Santa Cruz, she received a phone message
from Berkeley police. She returned the call and learned her home had been burglarized.
Song returned home on the 16th. She found a window in her living room broken
and boarded up. The driveway was adjacent to this window. Song’s burglar alarm went
off when the intruders had exited her home. She also learned the sensor batteries in her
windows did not operate properly.
Inside the home, Song saw that furniture had been moved. Her daughter’s
computer, iPod dock, some jewelry, a backpack and camera were missing. Cash was
missing from Song’s bedroom and the drawers were all open. Her computer was also
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taken. Song estimated the value of the stolen items at $10,000 to $15,000. Song testified
she did not know appellant and did not give him permission to enter her home.
Cuauhtemoc Vargas was a crime scene technician who responded to Song’s home
after the theft. He was there on October 15, 2011, around 1:10 pm. He dusted the
window area that had been broken and was believed to be the entry point for the theft.
Vargas found five latent prints on the exterior glass of the window. He concluded
professionally the prints faced upwards, indicating someone placed them while pushing
up on the window.
Elizabeth Troxel was a latent print analyst for the California Department of
Justice. She had eight years experience in this field. She was a Certified Latent Print
Examiner by the International Association of Identification. When tested for her
proficiency by outside agencies, she had always passed with no errors. Troxel examined
four of the five prints, Exhibit Nos. 5A to 5D. Using the data base of the Automated
Latent Print System, she received a list of suspects based on the prints entered. She
compared the prints from Song’s window with the top candidate identified by the System.
Appellant was the top candidate. Both sides stipulated appellant’s prints were the prints
from the Automated System. After making her comparison, Troxel concluded the prints
taken from Song’s window belonged to the appellant.
ANALYSIS
Appellant contends there is insufficient evidence to sustain the court’s finding that
appellant was involved in the burglary alleged in the petition. We find the evidence
supports the factual findings and legal conclusion of the commissioner.
When the claim is made on appeal of insufficient evidence in a delinquency
proceeding, the standard of review is the same as in an adult criminal prosecution. (In re
Roderick P. (1972) 7 Cal.3d 801, 809.) The test is whether the record contains any
substantial evidence which supports the finding of the trier of fact, and we view this
evidence in the light most favorable to that finding. (Id. at p. 808.) The test on appeal is
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whether any “rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 319; In re
Muhammed C. (2002) 95 Cal.App.4th 1325, 1328.)
In this case, there is no contention the home of Ms. Song was burglarized. The
appellant’s challenge here addresses his responsibility for the offense. He argues the
identification by Alexander-Maker in court was not reliable. He also claims there is
insufficient evidence he entered the residence. Both contentions are without merit.
Critical to appellant’s guilt is the physical evidence in the case. His fingerprints
were found on the broken living room window, the acknowledged entry point used by the
suspects in entering Song’s home. Officer Vargas testified the prints were found facing
upwards, a fact consistent with pushing the window upwards. Also, Song testified she
did not know appellant and did not give him permission to be on her property.
Our Supreme Court has “repeatedly emphasized that fingerprints are the strongest
evidence of identity and ordinarily are sufficient by themselves to identify the perpetrator
of the crime.” (People v. Figueroa (1992) 2 Cal.App.4th 1584, 1588, emphasis added,
citing People v. Andrews (1989) 49 Cal.3d 200, 211. See also, People v. Johnson (1988)
47 Cal.3d 576, 601; People v. Gardner (1969) 71 Cal.2d 843, 849.) In People v. Bailes
(1982) 129 Cal.App.3d 265, the only evidence linking defendant to the charge was the
discovery of his fingerprint on a bathroom window screen. That was sufficient to sustain
his burglary conviction against a challenge based on insufficiency of the evidence.
“[C]ases have held that evidence of a fingerprint, palm print, or footprint left inside a
structure or at a point of unusual access is alone sufficient to support a burglary
conviction.” (Id. at p. 282, and cases cited therein.) In Bailes, defendant’s print was
found on the screen that had been bent to allow access. (Id.) Here, the prints of appellant
were found on the broken window pane which was the clear point of entry.
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The presence of appellant’s prints at the illegal entry point, along with his lack of
any valid nexus with the victim’s home and Ms. Song’s unfamiliarity with him, provide
sufficient evidence to support the finding of the trier of fact.
Additionally, Alexander-Maker testified at the hearing appellant resembled one of
the three men she saw moments before the commission of the crime. She passed
appellant at approximately 12:45 p.m. on the day of the crime. Vargas, the police
technician, arrived and found the latents at 1:10 p.m. In between, Alexander-Maker saw
the lookout in front of the home and appellant and his ally going back and forth along the
victim’s driveway. This tight time period is significant support of the trial court’s factual
determination. Also, the suspects’ conduct was so suspicious Alexander-Maker was
compelled to call the police.
We know the testimony of one witness is sufficient to prove identity. We defer to
the trier of fact in assessing the weakness of such identification, especially in light of
cross-examination. (People v. Elwood (1988) 199 Cal.App.3d 1365, 1372–1373.)
Testimony the defendant “resembles” the suspect is enough on appeal. (People v. Wiest
(1962) 205 Cal.App.2d 43, 45–46.) An eyewitness need not be “positive” in her
identification. (People v. Midkiff (1968) 262 Cal.App.2d 734, 740.)
It is true Alexander-Maker testified she had a glance at appellant as he passed her
on the street. However, it was at a time when she was not under stress from any criminal
assault. The men she saw triggered a curiosity on her part. She had lived in the
neighborhood for more than 50 years. She knew her neighbors. She felt the young men’s
behavior unusual enough to call police quickly. When she passed appellant he was only
six to eight feet away from her. Alexander-Maker also testified, “[Appellant was] about
the same height [as the suspect]. I consider him light skinned in my book. He looks like
the gentleman as far as I know.”
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During the hearing, the court did question Alexander-Maker regarding her in-court
identification. Also, the judicial officer noted there were no cross-racial identification
issues because the witness was also African-American.
In summary, the evidence of the fingerprints is substantial evidence in this case.
There is no challenge presented to the procedures used by the police in obtaining the
evidence and the analysis performed by witness Troxel. The trier of fact apparently
found the eyewitness identification by Alexander-Maker sufficient to support the finding
sustaining the petition.
We affirm the judgment.
__________________________________
Dondero, J.
We concur:
__________________________________
Margulies, Acting P. J.
__________________________________
Sepulveda, J.
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