Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD183228, Robert F. O'Neill, Judge.
McCONNELL, P. J.
A jury convicted Jason Dee Partee of attempted murder of a peace officer (Pen. Code, §§ 644, subd. (e), 187, subd. (a), count 1), assault with a firearm upon a peace officer (§ 245, subd. (d)(1), count 2), shooting at an occupied vehicle (§ 246, count 3), and robbery (§ 211, count 4). The jury found Partee committed counts 1, 2 and 3 for the benefit of a criminal street gang (§ 186.22, subd. (b)(1), (4)). The jury found true in counts 1 and 2 that a firearm was used and discharged by a principal in the crime and Partee personally used a firearm. (§§ 12022.53, subds. (b), (c), (e)(1), 12022.5, subd. (a)). The jury also found Partee personally used a firearm in count 4. (§§ 12022.53, subd. (b), 12022.5, subd. (a)). Partee admitted he had a prison prior (§ 667.5, subd. (b)), a serious felony prior (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)) and three strike priors (§§ 667, subds. (b)-(i), 1170.12). He was sentenced to a total term of 41 years plus a consecutive term of 70 years to life. The sentence included two five-year terms for serious felony prior enhancements, one attached to count 1 and the other to count 4.
All statutory references are to the Penal Code unless otherwise indicated.
On appeal, Partee contends his convictions must be reversed because the court erroneously denied his motion to sever his case from a codefendant, upheld two witnesses' invocation of the Fifth Amendment privilege against self-incrimination, and denied his motion to exclude unreliable fingerprint evidence. Partee also contends there was insufficient evidence to support his robbery conviction or the criminal street gang enhancement. We requested supplemental briefing on whether the court properly imposed two serious felony prior enhancements. We affirm the judgment.
FACTS
On the morning of September 19, 2003, Partee was a passenger in a car driven by Ernesto Lizarraga. Partee was in the front passenger seat. In the back seat was Jose Yanez. Partee was a member of the Encanto criminal street gang while the other two were members of the Old Town National City criminal street gang.
At about 11:00 a.m., Officer Mario Moreno, who was driving a marked patrol car, decided to stop the car because the car's registration tags appeared to be expired. He activated his patrol car's overhead lights. Lizarraga slowed for a moment but kept driving. He went through a red light and made a right turn. As Officer Moreno grabbed for his radio to put out a call for the driver's failure to yield, Partee maneuvered his body outside the passenger side window and faced back toward Officer Moreno. He pointed a gun at the officer's car and fired several times. One of the bullets hit the windshield. Partee slid back into his seat and Lizarraga drove off with the police car following. After a short distance, Lizarraga pulled into a mobile home trailer park and all three men fled from the car. They left the keys in the ignition and abandoned gun magazines and ammunition for a .380 semiautomatic firearm inside the car. Lizarraga's fingerprints were found on the exterior of the driver's side, and Partee's fingerprints were found on the exterior of the car near the front passenger seat.
Lizarraga was found and arrested within a few minutes as he fled along the back fence of the trailer park. The police seized a pair of black gloves from Lizarraga. The right glove had one particle of gun shot residue, and both gloves had a mixture of DNA from at least three people. The DNA on the left glove could have been contributed by Lizarraga and was inconclusive as to Partee. The DNA on the right glove could not have been contributed by Partee, but could have been contributed by Lizarraga. In a curbside lineup, Officer Moreno identified Lizarraga as the shooter. But, later, after attending several more curbside line-ups and after further reflection, Officer Moreno decided that Partee most resembled the shooter and that Lizarraga was not the person who had fired the gun.
Partee ran into a cemetery and fled to a nearby residential neighborhood. About 11:15 a.m., he approached Ed Bazaure who was sitting outside his house reading a newspaper. Partee asked Bazaure to drive him out of the area. When Bazaure hesitated, Partee pulled out a gun and demanded the keys to Bazaure's truck. Bazaure went inside and retrieved his wife's set of keys, which did not include a key to his truck, and gave them to Partee. Bazaure then went back inside his house, locked the door and called 911. Partee left, leaving the keys inside the truck. Partee's fingerprints were later recovered from Bazaure's truck. Bazaure participated in a number of curbside lineups during the day but was unable to identify anyone.
About 3:00 p.m., Partee asked a woman at a nearby house to use the phone. He called his mother and told her "somebody did something stupid" and there were a lot of police officers at his location, and tried to give her directions so she could give him a ride.
About 5:00 or 5:30 p.m., a man who lived nearby discovered Partee hiding in a shed in his backyard. He begged Partee to leave, promising that he would not call the police, but Partee remained. About 7:00 p.m., the police found Partee in the shed and arrested him.
The next morning, a woman visiting her son who lived near where Partee had been arrested discovered a .380 semiautomatic firearm in the backyard between a shed and the fence. This gun had been used in the shooting.
Defense
Partee presented evidence that nothing material to the crime was found in the shed where he was arrested and that a witness to the shooting failed to identify him in a live line-up.
Yanez and Edgar Flores were called as witnesses but invoked their Fifth Amendment privilege against self-incrimination. A stipulation was read to the jury that Flores had told a police detective on September 23, 2003, that Yanez said he was the shooter.
DISCUSSION
I
Severance Motion
Partee contends he was denied a fair trial because the court denied his motion to sever his trial from that of codefendant Lizarraga.
When two or more defendants are jointly charged with a crime, they must be tried jointly unless the trial court orders separate trials. (§ 1098.) Separate trials are the exception. (People v. Alvarez (1996) 14 Cal.4th 155, 190.) Factors favoring severance include whether there was an incriminating confession by a codefendant, association with the codefendants is prejudicial, confusion is likely from evidence on multiple counts, there are antagonistic defenses or it is possible that at a separate trial a codefendant would give exonerating testimony. (People v. Hardy (1992) 2 Cal.4th 86, 167.) Defenses are antagonistic when the acceptance of one defendant's defense will preclude the acquittal of the other defendant. (Id. at p. 168.)
"A trial court's erroneous refusal to sever a defendant's trial from a codefendant's requires reversal if the defendant shows, to a reasonable probability, that separate trials would have produced a more favorable result [citations] or if joinder was so grossly unfair that it deprived the defendant of a fair trial [citations]." (People v. Tafoya (2007) 42 Cal.4th 147, 162.)
Partee contends he was prejudiced by being associated with Lizarraga because "the prosecution presented evidence of [Lizarraga] being a documented member of the Old Town National City street gang, which has over 450 members." Partee seems to be arguing that he was prejudiced by being associated with a person who belonged to a very large criminal street gang. This argument might have some merit if Partee were not also a gang member. There was, however, evidence that Partee was a member of the Encanto criminal street gang and that this gang, while smaller than the Old Town National City street gang, had engaged in violent offenses, including murder and assault. Under these circumstances, there is no reasonable likelihood that the verdict was the result of prejudicial association rather than based on the evidence presented at trial establishing Partee's guilt.
II
Invocation of Fifth Amendment Right
Partee contends the court's decision to allow Yanez and Flores to assert their Fifth Amendment privileges against incrimination denied his right to present a defense. These witnesses would have testified that Yanez told Flores that he was the shooter.
Under the state and federal constitutions, an individual, including a witness in a criminal case, may not be compelled to act as a witness against himself. (Fifth Amend., U.S. Const.; Cal. Const., art. I, § 15.) The privilege against self-incrimination is " 'accorded liberal construction in favor of the right it was intended to secure.' " (People v. Smith (2007) 40 Cal.4th 483, 520.) " 'To invoke the privilege, a witness need not be guilty of any offense; rather, the privilege is properly invoked whenever the witness's answers "would furnish a link in the chain of evidence needed to prosecute" the witness for a criminal offense. . . . [A] trial court may compel the witness to answer only if it "clearly appears to the court" that the proposed testimony "cannot possibly have a tendency to incriminate the person claiming the privilege." ' " (In re Marriage of Sachs (2002) 95 Cal.App.4th 1144, 1151, quoting from People v. Cudjo (1993) 6 Cal.4th 585, 617.)
On appeal, we apply an independent standard of review to a finding a witness could properly assert the privilege against self-incrimination. (People v. Seijas (2005) 36 Cal.4th 291, 304.) When evidence is improperly excluded, we reverse only if there is a reasonable probability that a more favorable outcome would have occurred if the evidence had been admitted. (People v. Fudge (1994) 7 Cal.4th 1075, 1103.)
The Attorney General argues Partee waived any objections to the invocations of the privilege against self-incrimination. We disagree. Partee's attorney presented argument against the invocations as to both witnesses.
Partee argues the court's sustaining of the invocations was improper. Yanez, who had pleaded guilty in another case in exchange for the dismissal of the charges in this case and begun serving a prison term, invoked his Fifth Amendment privilege because his attorney had told him the district attorney would "reopen" the case against him. Yanez's attorney explained that because the case had been originally prosecuted as a gang conspiracy against the Mexican Mafia, that even if the district attorney were barred from charging Yanez, he still could be prosecuted by federal authorities.
Partee argues Yanez's case could not be reopened because Yanez had already begun serving a prison sentence. Thus, any statements he might have made at trial in this case after having attempted to invoke his Fifth Amendment privilege could not have been used against him in a federal prosecution. (See Nelson v. Municipal Court (1972) 28 Cal.App.3d 889, 894 [testimony compelled under a grant of immunity may not be used in a subsequent prosecution].)
The justification for Flores's invocation of the Fifth Amendment was the risk of being prosecuted for giving a false report to a police officer. Partee argues this was not a valid justification because the statute of limitations had already run on this misdemeanor offense.
Even if we were to agree with Partee, we would not reverse. Partee suffered absolutely no harm as a result of the court's ruling. The key evidence — that Yanez claimed to be the shooter — was presented to the jury through a stipulation. The stipulation eliminated the risk of either witness recanting or testifying to other evidence that might incriminate Partee. There is no reasonable probability Partee would have received a more favorable outcome had the court ruled differently.
III
Fingerprint Evidence
Partee argues that fingerprint evidence fails to meet federal constitutional standards for the minimum reliability of evidence that may be used to convict a criminal defendant. He relies on the standard for admissible evidence stated by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals (1993) 509 U.S. 579 (Daubert).
In Daubert, the United States Supreme Court rejected the Frye test governing the admissibility of expert scientific testimony, which allowed the admission of expert scientific testimony about a scientific technique if it had achieved general acceptance in the relevant scientific community. (Daubert, supra, 509 U.S. at p. 589.) The Daubert court held that under the federal rules of evidence, a trial court must determine the reliability of scientific evidence considering the following non-exclusive list of factors: (1) whether the theory or technique can be and has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether the technique has a known or potential rate of error and whether there are standards controlling the technique's operation; and (4) whether the theory or technique has been generally accepted or rejected in the particular scientific field. (Id. at pp. 593-594.)
Frye v. United States (D.C. Cir. 1923) 293 F. 1013.
As Partee acknowledges, Daubert was not interpreting the federal constitution, but the federal rules of evidence. Further, as Partee also acknowledges, the California Supreme Court in People v. Leahy (1994) 8 Cal.4th 587, 594, held that the Kelly test, rather than Daubert test applies in California. We are bound by the decisions of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
People v. Kelly (1976) 17 Cal.3d 24.
Under the Kelly test, a party offering expert evidence based on a new scientific technique must establish that the technique has gained general acceptance within the relevant scientific community, the witness is properly qualified on the subject, and the person performing the test used correct scientific procedures. (People v. Kelly, supra, 17 Cal.3d at p. 30; People v. Bolden (2002) 29 Cal.4th 515, 544-545.) "Kelly is applicable only to 'new scientific techniques.' " (People v. Leahy, supra, 8 Cal.4th at p. 605; Roberti v. Andy's Termite & Pest Control, Inc. (2003) 113 Cal.App.4th 893, 900.) A claim that expert opinion evidence has been improperly admitted is reviewed under the deferential abuse of discretion standard. (People v. Panah (2005) 35 Cal.4th 395, 478.)
Identification based on fingerprints is not a new scientific technique. The latent print examiner in this case testified fingerprints have been used for identification for over a hundred years. Fingerprint identification evidence has been admitted in American courts since the early twentieth century. (State of Illinois v. Jennings (1911) 252 Ill. 534, 549, 96 N.E. 1077, 1082; see also State of New Jersey v. DeGeralmo (1912) 83 N.J.L. 135, 136, 83 A. 643, 644 [duly qualified expert testified that fingerprints found on post were made by the defendant].) By the early 1930's, fingerprint evidence was well established in California. By the 1940's, the California Supreme Court was describing fingerprints as "the strongest evidence of identity of a person" and holding that the fingerprints "were alone sufficient to identify the defendant as the criminal." (People v. Adamson (1946) 27 Cal.2d 478, 495, overruled on other grounds in In re Gaines (1965) 63 Cal.2d 234, 238.) The California Supreme Court continues to recognize the validity of fingerprint evidence. (People v. Farnam (2002) 28 Cal.4th 107, 160 [concluding use of a computerized system for generating potential candidates for fingerprint comparisons did not implicate the concerns in Kelly, noting "the prosecution relied on a long-established technique — fingerprint comparison performed by fingerprint experts"].)
In 1911, the court in State of Illinois v. Jennings, supra, 96 N.E. 1077, 1081-1082 stated: "This class of evidence is admitted in Great Britain. In 1909 the court of criminal appeals held that finger prints might be received in evidence, and refused to interfere with a conviction below though this evidence was the sole ground of identification. [Citation.] While the courts of this country do not appear to have had occasion to pass on the question, standard authorities on scientific subjects discuss the use of finger prints as a system of identification, concluding that experience has shown it to be reliable. [Citations.] These authorities state that this system of identification is of very ancient origin, having been used in Egypt when the impression of the monarch's thumb was used as his sign manual; that it has been used in the courts of India for many years and more recently in the courts of several European countries; that in recent years its use has become very general by the police departments of the large cities of this country and Europe; that the great success of the system in England, where it has been used since 1891 in thousands of cases without error, caused the sending of an investigating commission from the United States, on whose favorable report a bureau was established by the United States government in the war and other departments."
People v. Jones (1931) 112 Cal.App. 68, 70-71 (expert testimony admitted that fingerprints found on railing were made by the defendant); People v. Ramirez (1931) 113 Cal.App. 204, 206 (expert testimony admitted that "finger-marks" found on an item at the crime scene had been made by the defendant); People v. McKinley (1934) 2 Cal.2d 133, 134-135 (fingerprints taken at time of incarceration in Oklahoma compared to and found identical to the defendant's fingerprints).
Moreover, those courts that have considered the admissibility of fingerprint identification under the Daubert test are virtually unanimous in holding the evidence is admissible. Additionally, the only evidence presented on this issue at trial — by the latent print examiner — was that the uniqueness of fingerprints and the validity of their use for identification were well established by numerous studies. She testified her own professional experience confirmed the conclusion fingerprints were unique; she never had experienced a situation where she had run a fingerprint card through a computer database and received hits for more than one individual.
State of Hawai'i v. Escobido-Ortiz (Hawai'i Ct.App. 2005) 126 P.3d 402, 412 ("The courts . . . both before and after Daubert, are virtually unanimous in holding that . . . expert testimony [on latent fingerprint identification] is reliable and admissible."); State of Montana v. Cline (Mont. 1996) 909 P.2d 1171, 1177 (holding that fingerprint identification is so well-established that a Daubert analysis is not necessary); Barber v. State of Alabama (Ala. Crim. App. 2005) 952 So.2d 393, 421-422 (holding fingerprint identification meets the reliability criteria of Daubert); but see Cole, Criminology: More than Zero: Accounting for Error in Latent Fingerprint Identification (2005) 95 J. Crim. Law & Criminology 985 (criticizing judicial analysis of fingerprint identification evidence).
In sum, fingerprint identification evidence has long been recognized as a reliable scientific evidence and has been found admissible whether the Kelly or Daubert test is applied. An individual, such as Partee, who seeks to challenge such a long-recognized scientific technique bears the burden of showing that the evidence is not scientifically reliable. Such a burden requires more than the vague claims and speculation raised here.
IV
Sufficiency of the Evidence
Partee contends the evidence is insufficient to support either the robbery conviction or the criminal street gang enhancement.
When an appellant challenges the sufficiency of the evidence to support a conviction, "we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Bolin (1998) 18 Cal.4th 297, 331.) We " ' "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' " (People v. Davis (1995) 10 Cal.4th 463, 509; In re Manuel G. (1997) 16 Cal.4th 805, 822.) We draw all reasonable inferences in support of the judgment. (People v. McCleod (1997) 55 Cal.App.4th 1205, 1220-1221.)
A. Robbery
Partee contends the evidence was insufficient to support the robbery conviction because he never had possession of the truck and therefore the asportation element of robbery was not satisfied.
Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. (§ 211.) "The taking element of robbery itself has two necessary elements, gaining possession of the victim's property and asporting or carrying away the loot." (People v. Cooper (1991) 53 Cal.3d 1158, 1165; Miller v. Superior Court (2004) 115 Cal.App.4th 216, 223.)
As the Attorney General points out, the robbery conviction was not based on the taking of Bazaure's truck, but on the taking of the keys. The prosecutor specifically argued the robbery count was based on the taking of the keys. The evidence showed Partee asported the keys from Bazaure's possession.
B. Gang Enhancements
The jury found true criminal street gang enhancements as to all the offenses, except count 4. Partee contends the evidence was insufficient to support these enhancements because the prosecution failed to demonstrate he was a member of a criminal street gang.
Section 186.22, subdivision (b)(1) applies to a "person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . ." The gang enhancement does not require proof that the individual was a member of a criminal street gang; it is sufficient if the defendant acted intentionally in concert with known gang members to commit a crime for the benefit of the gang. (See People v. Villalobos (2006) 145 Cal.App.4th 310, 321-322; In re Jose P. (2003) 106 Cal.App.4th 458, 466; People v. Valdez (1997) 58 Cal.App.4th 494, 505.)
Section 186.22, subdivision (b)(1) applies to any felony, while subdivision (b)(4) applies to certain enumerated felonies, including shooting at an inhabited vehicle.
Here, although Partee was not a documented gang member, he had tattoos on his body that were consistent with being a member or associating with the Encanto criminal street gang. The other two people in the car were gang members. An expert testified firing on a police officer benefits a gang and its members by giving them status within the gang culture. A jury could reasonably conclude that Partee was a gang member and that the seemingly senseless shooting in this case was committed to benefit a criminal street gang.
V
Imposition of Two Serious Felony Prior Enhancements
Partee admitted one serious felony prior under section 667, subdivision (a)(1). He also admitted three prior strike convictions. The court sentenced Partee to indeterminate terms on count 1 (the attempted murder) and count 4 (robbery). The court also imposed on both counts a five-year term for the serious felony prior. Partee contends that since he admitted only one serious felony prior, only one section 667, subdivision (a)(1) enhancement should have been imposed.
Section 667, subdivision (a)(1) provides in pertinent part: "[A]ny person convicted of a serious felony who previously has been convicted of a serious felony . . . shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively." Attempted murder and robbery are both serious felonies. (§§ 667, subd. (a)(4); 1192.7, subd. (c)(1), (19), (39).) When, indeterminate terms are imposed under the three strikes law, it is proper to add a prior serious felony enhancement to each current serious felony conviction. (People v. Williams (2004) 34 Cal.4th 397, 405.) Thus, the court did not errin imposing the section 667, subdivision (a)(1) enhancement on both counts 1 and 4.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, J. NARES, J.