P. v. Ho

Filed 5/1/06 P. v. Ho CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Hung Quoc Ho was convicted after jury trial of first degree burglary (Pen. Code, §§ 459, 460, subd. (a)).[1] The trial court found true allegations that defendant had two prior serious felony convictions that also qualified as strikes. (§§ 667, subd. (a), 1170.12.) The court denied defendant's motion to strike the strikes and sentenced defendant to 25 years to life consecutive to 10 years. It also imposed a $10,000 restitution fine.

On appeal defendant argues that (1) he was deprived of his rights to due process and effective assistance of counsel when the court's evidentiary ruling precluded him from presenting his only defense; (2) he was deprived of his right to due process when the court gave CALJIC No. 2.02 instead of CALJIC No. 2.01; and (3) the $10,000 restitution fine must be reduced to $7,000. We disagree with all of defendant's contentions, and therefore affirm the judgment.

BACKGROUND

Defendant was charged by information with first degree burglary (§§ 459, 460, subd. (a)). The information further alleged that defendant had two prior serious felonies that also qualified as strikes (§§ 667, subd. (a), 1170.12.) The court granted defendant's request for a bifurcated trial on the priors, and defendant waived jury trial on the priors.

The trial evidence

Hung Thi Ho has lived in the same home in San Jose for 21 years. There is a gate between her front and her back yards. To open the gate, you have to reach over the top of it and undo a latch. In the back of the house is a sliding-glass door with a window next to it. The window has a lock.

On February 18, 2004, Ms. Ho bought a desk from Best Buy. Two Vietnamese men delivered the desk on either February 21 or 27, 2004. Ms. Ho took time off work and was there to meet the delivery men. One of them knocked on the front door. She opened the door for them and told them to put the desk in her daughter's room. They brought the desk in through the front door and took it to her daughter's room. They went back to the truck to get the boards needed to make the shelves, then came back and assembled the desk. Afterwards, they left through the front door. Ms. Ho watched the two men the entire time they were in her house, except while they assembled the desk. At no time did the men go into her kitchen, into the room with the sliding-glass door, or into her back yard.

Anthony Nguyen, an assistant manager at Best Buy, testified that defendant and Minh Tran delivered Ms. Ho's desk. At the time, defendant was a part-time employee of Best Buy. Mr. Tran testified that he and defendant went to Ms. Ho's front door with the desk. When Ms. Ho answered the door they took the desk inside. It took them two trips to bring the desk in, and then they assembled it with a screwdriver and ratchet. They left through the front door. They never went into the kitchen or the backyard.

On April 27, 2004, Ms. Ho left her house for work around 9:00 a.m. The back window was locked when she left. Sometime in the afternoon her daughter called to tell her that a window on the back of her house was broken. She told her daughter to leave the house and then she called the police. She went home and found that the window on the back of her house was broken, its screen was off, and a screwdriver was near the door. She also found that a VCR and a DVD player were missing from the room next to the kitchen, and a VCR and a DVD player were missing from her daughter's room. An officer came to her home that same day.

Detective Robert Fischer was dispatched to Ms. Ho's house at approximately 4:00 p.m. on April 27, 2004. He spoke with Ms. Ho and went inside the house. He saw a window at the back of the house had broken glass on the inside windowsill. Two panes at the lower center of the window, near the middle latch and lock, were broken. The window screen was on the ground in the backyard to the left of the window. He dusted the window for fingerprints. He found several smudges and one clear print on the outside of the window, to the left of the broken panes. A screwdriver found inside the home was given to him by Ms. Ho's daughter as evidence.

Michael Valverde testified as an expert in fingerprint collection, documentation, comparison and analysis. He was one of two examiners who compared the latent print Detective Fischer found with fingerprints in his database. He determined that the latent print matched the left thumb on defendant's 1987 10-print fingerprint card. The match was verified by another fingerprint examiner. Valverde testified on cross-examination that a fingerprint can remain on a glass surface under optimum conditions for years, so he has no idea how long the latent print was on the surface from where it was collected.

Ms. Ho testified that she does not know defendant, nor does she recognize him from the desk delivery or otherwise. He is not related to her and has never lived with her or her family. She never gave him permission to go into her backyard or her house, and she did not give him permission to take the VCRs or DVD players from her house.

Verdict, prior findings, and sentencing

On May 2, 2005, the jury found defendant guilty of first degree burglary and the court found the prior allegations to be true. On June 30, 2005, defendant filed a request that the court exercise its discretion under section 1385 to dismiss his strikes. The prosecutor filed opposition on July 15, 2005. The probation report stated that defendant had three prior felony and nine misdemeanor convictions, that he had violated his parole on numerous occasions, and that he was on parole for burglary at the time of the current offense. The probation officer recommended that defendant be sentenced to state prison for 25 years to life consecutive to 10 years, and that a restitution fine of $2,000 be imposed â€