Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. SA058855, Katherine Mader, Judge.
Judy Fridkis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
Woods, J.
Jeffrey Daniel Daugherty appeals from the judgment entered after a jury convicted him of second degree burglary. On appeal, he contends the evidence was insufficient to support the conviction, and the trial court erred in denying him presentence custody credits for his time in home detention on an electronic monitor. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Daugherty was charged by information with one count of second degree burglary (Pen. Code, § 459 ). It was further alleged that he had suffered one prior serious or violent felony conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i) and 1170.12, subds. (a)-(d)) and had served six separate prison terms for felonies (§ 667.5, subd. (b)). Daugherty pleaded not guilty and denied the special allegations.
Statutory references are to the Penal Code.
According to the prosecution evidence presented at trial, on July 30, 2004, Elbert Shitamoto, the manager of an apartment complex, entered the locked laundry room and noticed the top panel of a washing machine had been removed and the coin box was missing. Only tenants of the apartment complex were permitted to use the laundry room; it was not open to the public. Tenants were required to have a key to gain access to the laundry room; the laundry room door had an automatic lock. Daugherty was not a tenant. Shitamoto had never seen Daugherty prior to these criminal proceedings.
Three latent fingerprints were lifted from the scene, including a thumbprint from the removed washing machine panel. Following his arrest, police had Daugherty provide a fingerprint exemplar for comparison. The comparison was made by Gina Cronin, a Los Angeles Police Department forensic print specialist, who concluded the latent thumbprint was Daugherty’s. The parties stipulated that Cronin was unable to determine when the thumbprint had been left on the washing machine panel. Daugherty was taken into custody on December 28, 2005. When told he was being arrested for burglary, Daugherty asked, “Which one?” In his subsequent police interview, Daugherty said he had not committed a laundry room burglary in over a year and requested details of the crime. After learning that this particular burglary had occurred more than a year earlier, Daugherty inquired whether it “was a good case.” When the detective described the fingerprint evidence, Daugherty said he wanted to “make a deal;” otherwise he “would not admit to a crime.” Daugherty then responded he did not remember ever having been at the location of the burglary.
Before the interview, Daugherty was advised of his right to remain silent, to the presence of an attorney, and, if indigent, to appointed counsel. (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].) Daugherty stated he understood those rights and waived them before any questioning occurred.
Simon Cole, Ph.D., testified as a defense expert on the subject of fingerprints. He presented an historical perspective on the early use of fingerprints without appropriate science, and explained that there are no scientific studies determining whether examiners can match prints with 100 percent accuracy. Dr. Cole explained about the subjectivity of the fingerprint identification process, which is conducted without universal standards and the potential for error in general. He had not compared the prints at issue here, and indeed had no training or experience as a fingerprint examiner.
Daugherty did not testify in his own defense.
On June 28, 2006, the jury found Daugherty guilty of committing second degree burglary. In a bifurcated proceeding, Daugherty admitted, and the trial court found true, he had suffered a prior serious or violent felony conviction under the Three Strikes law and had served three prior prison terms for felonies pursuant to section 667.5, subdivision (b).
On September 25, 2006, the trial court ordered Daugherty’s release from jail subject to home detention and enrollment in the electronic monitoring program pending sentencing.
Pursuant to section 1203.16, “the board of supervisors of any county may authorize the correctional administrator, as defined in subdivision (h), to offer a program under which minimum security inmates and low-risk offenders committed to a county jail or other county correctional facility or granted probation, or inmates participating in a work furlough program, may voluntarily participate in a home detention program during their sentence in lieu of confinement in the county jail or other county correctional facility or program under the auspices of the probation officer.” (§ 1203.16, subd. (a).)
On October 19, 2006, Daugherty was sentenced to a state prison term of four years, consisting of the middle term of two years for burglary, doubled to four years under the Three Strikes law, plus three concurrent one-year terms for his prior prison term enhancements. Daugherty was awarded 242 days of presentence custody credit (162 actual days and 80 days of conduct credit). He received no presentence custody credit for the time spent in home detention, from September 26, 2007 to October 19, 2007. At sentencing, the trial court concluded that Daugherty was not entitled to presentence custody credit for the time spent in home detention. Defense counsel stated she would research whether Daugherty was legally entitled to such credit.
DISCUSSION
1. The Evidence Was Sufficient To Prove Daugherty’s Identity.
When determining whether the evidence was sufficient to sustain a conviction, “our role on appeal is a limited one.” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) “[T]he test of whether evidence is sufficient to support a conviction is ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citations.]” (People v. Holt (1997) 15 Cal.4th 619, 667.) “We draw all reasonable inferences in support of the judgment.” (People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears that “‘upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Daugherty contends there was no substantial evidence that he committed the laundry room burglary. Specifically he asserts the fingerprint evidence was insufficient to prove identity in two respects, first because the prosecution failed to establish the validity of the fingerprint comparison. Here, Daugherty argues, as he did before the jury, that the testimony of the prosecution’s expert Gina Cronin was defective, conclusory, and subjective in light of the testimony of defense expert Dr. Simon Cole. Additionally, relying on People v. Trevino (1985) 39 Cal.3d 667, overruled on other grounds in People v. Johnson (1989) 47 Cal.3d 1194, 1219, Daugherty argues the prosecution failed to establish a nexus between the latent thumbprint and the burglary. In Trevino, the California Supreme Court concluded the trial court erred in failing to grant a motion for judgment of acquittal on grounds the “highly speculative and equivocal identification testimony and the solitary fingerprint of some unknown vintage” was not substantial evidence supporting a murder conviction. (Id. at p. 697.) In concluding the fingerprint evidence was insufficient, the Supreme Court observed the fingerprint expert could not attest to the age of the incriminating fingerprint found in the victim’s home, where the codefendant had been a guest prior to the murder. (Ibid.) Daugherty posits that as in Trevino, it was just as likely that he had left his thumbprint at the crime scene for reasons unconnected to the crime. According to Daugherty, he may have gained access to the laundry room merely to wash his clothes when the door had been left ajar. Both arguments, however, amount to nothing more than a request that we reweigh the evidence on appeal. That is not a function of a reviewing court. (People v. Young (2005) 34 Cal.4th 1149, 1181; People v. Maury (2003) 30 Cal.4th 342, 403; People v. Culver (1973) 10 Cal.3d 542, 548.)
Defense counsel did not object to Gina Cronin’s qualifications as an expert witness or to her testimony being admitted. Although defense counsel made reference to a requested Evidence Code section 402 hearing and a “Kelly-Frye hearing”, no such proceedings are part of the record on appeal.
There was ample evidence that Daugherty committed the laundry room burglary. Apart from the fingerprint evidence were Daugherty’s admissions he had committed the burglary, first when he asked for “which burglary” had he been arrested; and then acknowledging he had committed a laundry room burglary more than a year earlier, which was within the time frame of the burglary in this case.
Nonetheless, “[f]ingerprint evidence is the strongest evidence of identity, and is ordinarily sufficient alone to identify the defendant.” (People v. Gardner (1969) 71 Cal.2d 843, 849; accord, People v. Johnson (1988) 47 Cal.3d 576, 601, overruled on another ground by People v. Reyes (1998) 19 Cal.4th 743, 752-754; People v. Nguyen (1994) 23 Cal.App.4th 32, 39-40.) And, his claim to the contrary notwithstanding, the record revealed no other reasonable explanation for the presence of Daugherty’s thumbprint on the removed panel of the washing machine. People v. Preciado (1991) 233 Cal.App.3d 1244, 1246 is instructive, in which the sole evidence against the burglary defendant was a fingerprint left on a wristwatch box. (Id. at p. 1246.) The victim testified he did not know the defendant, and the box had remained in the victim’s home since he had acquired it 18 months earlier. (Ibid.) The appellate court concluded the fingerprint alone was sufficient to prove the defendant’s identity. “[The defendant] either touched the item during an uninvited foray [into the victim’s home] or–miracle of miracles–he did so some 18 months earlier, before the victim received the gift, and the fingerprints endured. . . . The determination was for the jury and was, presumably, not a very difficult one.” (Id. at p. 1247.).
2. Daugherty Is Not Entitled To Additional Presentence Custody Credit For Time Spent In Home Detention.
Daugherty contends the trial erred in not awarding him presentence custody credit for the time spent in home detention on an electric monitor prior to sentencing. While acknowledging the Legislature eliminated “home detention program” from section 2900.5, subdivision (a), Daugherty contends nonetheless that he is entitled to custody credit for such time based on People v. Lapaille (1993) 15 Cal.App.4th 1159 (Lapaille) and People v. Cook (1993) 14 Cal.App.4th 1467 (Cook), section 2900.5, subdivision (f), and People v. Silva (2003) 114 Cal.App.4th 122 (Silva). Whether Daugherty has waived this claim on appeal, as the People contend, it is utterly without merit.
Prior to 1991, section 2900.5 subdivision (a) provided in pertinent part, “In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, including but not limited to any time spent in a jail, camp, work furlough facility, halfway house, rehabilitation facility, hospital, prison, juvenile detention facility, or similar residential institution, all days of custody of the defendant, including days served as a condition of probation in compliance with a court order . . . shall be credited upon his term of imprisonment.”
In 1991, section 2900.5, subdivision (a) was amended to add “home detention program” to those forms of custody for which a defendant would be entitled to presentence custody credit. (People v. Lapaille, supra, 15 Cal.App.4th at p. 1165.) This was intended to refer to “ electronic home detention programs . . . in which the prisoner is permitted to be at his or her home but must wear an electronic tracking device at all times, and submit to other statutory restrictions.” (Ibid.) Case law subsequently concluded that equal protection required extension of pretrial credits to those individuals in home detention programs who, although not subject to electronic monitoring, were subject to identical custodial restraints. (Id. at pp. 1169-1170.)
However, the inclusion of “home detention program[s]” in section 2900.5 was subject to a sunset clause. (People v. Lapaille, supra, 15 Cal.App.4th at pp. 1165-1166.) The sunset clause was ultimately extended to 1999. (Stats. 1994, ch. 770, § 7.) On January 1, 1999, the current version of section 2900.5, subdivision (a), in which “home detention program[s]” are no longer included among those forms of custody for which a defendant is entitled to presentence credit, took effect. (§ 2900.5, subd. (h).) Daugherty is therefore not entitled to presentence custody credit under section 2900.5, subdivision (a), having participated in the home detention program after January 1, 1999. His reliance on Lapaille and Cook as support for his argument that presentence custody credit is mandatory for home detention program participants is misplaced. Those cases interpreted the former version of section 2900.5 subdivision (a) that is inapplicable here.
Daugherty fares no better in relying on section 2900.5, subdivision (f), which provides: “If a defendant serves time in a camp, work furlough facility, halfway house, rehabilitation facility, hospital, juvenile detention facility, similar residential facility, or home detention program in lieu of imprisonment in a county jail, and the statute under which the defendant is sentenced requires a mandatory minimum period of time in jail, the time spent in these facilities or programs shall qualify as mandatory time in jail.”
Daugherty maintains the inclusion of “home detention program” section 2900.5 subdivision (f) supports his claim of entitlement to presentence custody credit. However, that provision relates solely to credit against mandatory minimum jail sentences, not to any other type of custody credit. The language of subdivision (f) is clear: “If a defendant serves time in [certain facilities] in lieu of imprisonment in a county jail, and the statute under which the defendant is sentenced requires a mandatory minimum period of time in jail, the time spent in these facilities or programs shall qualify as mandatory time in jail.” (Italics added.) The subdivision is not triggered unless a defendant both serves time and is sentenced under a statute requiring a mandatory minimum time in jail. Once the subdivision applies, it provides only that the time served qualifies as mandatory jail time, not any other time.
What the statutory language makes plain is confirmed by the legislative history and subsequent case law. As amended July 15, 1991, the bill provided, “If a court or local correctional administrator orders a defendant to serve time in a camp, work furlough facility, halfway house, rehabilitation facility, hospital, juvenile detention facility, similar residential facility, or home detention program in lieu of imprisonment in county jail, and the statute under which the defendant is sentenced requires a mandatory minimum period of time in jail, the time spent in these facilities or programs shall qualify as mandatory time in jail.” (Assem. Bill. No. 688 (1991-1992 Reg. Sess.) as amended July 15, 1991.) It is clear the bill was meant to address the situation of a defendant ordered to serve time in an alternative facility when the statute under which the defendant is sentenced requires a mandatory minimum period of time in jail. This language was changed by amendment on August 22, 1991, to read as it does now. The amendment was intended “to clear up some confusing language pertaining to the courts’ and local correctional administrators’ respective authorities to order defendants to serve time in various types of alternative detention programs” and was not intended to “change any substantive aspect of the bill.” (Assem. Member Baker’s Floor Statement regarding amendments to Assem. Bill No. 688 (1991-1992 Reg. Sess.) as introduced Aug. 21, 1991.) The meaning of the statute remains the same: it does not address presentence custody credit.
Case law is in agreement. In Lapaille, the court stated section 2900.5, subdivision (f) provided that “convicted prisoners enrolled in alternative sentencing programs, including ‘home detention programs,’ [will] get credit against sentences for offenses which require[] that offenders serve a mandatory minimum period of time in jail.” (People v. Lapaille, supra, 15 Cal.App.4th at pp. 1165-1166.)
Finally, Silva is of no assistance to Daugherty. The defendant in Silva had been granted probation and was allowed to serve a county jail sentence as a participant in the home detention program. His probation was subsequently revoked, and he was sentenced to state prison for the previously suspended term. Under section 2900.5, the defendant was awarded presentence custody credit for the 171 days he had spent in the home detention program, but he was denied presentence conduct credit under section 4019 for that period. (People v. Silva, supra, 114 Cal.App.4th 122, 126.) The Court of Appeal affirmed, explaining that because the defendant was not in “‘actual custody’” within the meaning of the statute, but instead was at home or at work on electronic monitoring, he was not entitled to conduct credit under section 4019. (Id. at pp. 127-128.) In a footnote at the outset of the opinion, the court indicated “[t]here is no dispute surrounding the award of presentence custody credit.” (Id. at p. 126, fn. 3.) Daugherty maintains that his position is confirmed by this footnote. However, the footnote simply means what it says. The award of presentence credit in Silva was not an issue raised by the parties for consideration on appeal.
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J. ZELON, J.