P. v. Ramirez

Filed 9/29/06 P. v. Ramirez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Bryan Foster, Judge. Affirmed.

John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, and Lynne G. McGinnis, Deputy Attorney General, for Plaintiff and Respondent.

Following a jury trial, defendant was found guilty of possession of ingredients to make a destructive device (Pen. Code, § 12312)^[1] (count 1), possession of ammunition by a felon (§ 12316, subd. (b)(1)) (count 2), and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) (count 3).^[2] In addition, the jury found true that defendant had previously suffered two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and four prior prison terms (§ 667.5, subd. (a)).^[3] Defendant was sentenced to a total term of 53 years to life in state prison pursuant to the three strikes law.

Defendant’s sole contention on appeal is that the trial court erred in admitting into evidence a fingerprint card generated three months before trial in determining whether defendant was the person who had the alleged prior strike convictions, because the People had failed to provide adequate evidence of chain of custody. We reject this contention and affirm the judgment.

I

FACTUAL AND PROCEDURAL BACKGROUND^[4]

On May 28, 2004, San Bernardino County Sheriff’s deputies came to defendant’s home to investigate an unrelated matter. While they were checking defendant’s dirt driveway for impressions, defendant exited his house, acting nervous. Defendant blurted out that the “bullshit” and bullets in the house were not his.

Defendant consented to a search of his residence. When Deputy Chad Johnson entered the home, he noted a strong odor of gun powder emanating from the residence. Inside the residence, he found items that showed defendant had dominion and control of the residence, as well as bullets, ingredients for making an improvised explosive device, methamphetamine, and marijuana. Defendant claimed that none of the items were his; they were planted in his residence by an unidentified third party who was a member of the Mexican Mafia.

On August 19, 2004, the San Bernardino County (SBC) District Attorney’s office filed a four-count information against defendant. The information also alleged that defendant had suffered two prior strike convictions and four prior prison terms.

On August 17, 2005, outside the presence of the jury, the trial court held a hearing on identity, i.e., whether defendant was the person who had suffered the prior strike convictions. At the hearing, Rebecca Rinkes, an investigative technician with the SBC District Attorney’s office, testified that on April 20, 2005, SBC Deputy District Attorney Laura Ozols had asked her to observe while defendant was fingerprinted and to transport the fingerprint cards to SBC Central CAL ID (hereinafter referred to as “CAL ID”). Rinkes stated that Deputy Rossi rolled defendant’s fingerprints in the local booking cell of the county jail while she watched. Rinkes then took the fingerprint cards back to her office, placed them in an envelope, and put the envelope in a locked drawer. No one else had access to the drawer. On May 10, 2005, when defendant’s section 969b packet arrived, Rinkes took the packet and the envelope to CAL ID in San Bernardino. Rinkes gave the items to the “girl at the desk,” who signed for them.

Linda Risaliti, a fingerprint examiner with the SBC Sheriff’s Department CAL ID division, testified that she created a case file using defendant’s 10-print fingerprint card. She had received the fingerprint card on May 28, 2005. It was in an envelope that was date stamped. The envelope was clipped shut with a clasp. A notation on the envelope stated that Rinkes had walked it into Risaliti’s department on May 10. Risaliti also stated that the envelope contained the initials of the person who received it, Lisa Boyd. Risaliti acknowledged that she had no personal knowledge of when the envelope was received, from whom it was received, of what was specifically brought in, or of who received it, other than what she had read.

Risaliti further testified that on August 10, 2005, she had compared the fingerprint card to an abstract of judgment dated November 16, 1984, from defendant’s 969b packet, and they matched. The names on both were defendant’s name, Tommy Dominguez Ramirez. She had also compared the fingerprint card with an abstract of judgment dated May 23, 1989, against Tommy Dominguez Ramirez, which she obtained from defendant’s 969b packet, and they matched. There was a print on an abstract of judgment dated January 25, 1991, which was not suitable for comparison. A photograph on that abstract of judgment was identified as “T. Ramirez.”

The defense presented no evidence. The court asked the prosecutor whether there was a break in the chain of custody. The prosecutor replied that a perfect chain was not necessary; that the name on the April 20, 2005, fingerprint card and the certified 969b packet was Tommy Dominguez Ramirez or Tommy Ramirez; that the fingerprints matched; and that it was highly improbable that the fingerprints were from someone else. Defense counsel argued that tampering was possible, since one of the three sets of prints did not match. The court then interrupted, stating counsel’s characterization of Risaliti’s testimony was inaccurate, as the testimony was that the prints were not suitable for comparison. Defense counsel conceded that Risaliti’s testimony was that it was not suitable for comparison and asserted that there was a “chain of custody problem,” “a qualification problem,” and “legal problems.”

The trial court stated, “As far as the legal problems that you made the initial objections to, I overruled those.

In terms of the qualifications, I believe the qualifications have been established of the witnesses to testify to what they testified to and so I’ll overrule that.

In terms of the chain of custody issues . . . , speak to that.

Why do you need chain of custody in this type of matter?”

Defense counsel responded that the chain of custody was relevant to identity. The prosecutor argued that this went to the weight of the evidence rather than its admissibility and that the 969b packet, the picture, and the fingerprint card clearly showed defendant was the person who had suffered the prior convictions. The prosecutor further noted that the fingerprints were taken and delivered as part of the normal course of business.

The court then inquired whether Rinkes identified the fingerprint card. The prosecutor responded that she did not and that she would have no reason to look at it. The court, opining there to be a chain of custody problem, asked the prosecutor to call a witness who would verify that the fingerprint card examined by CAL ID was the one in the envelope. The prosecutor noted that Rinkes testified that she took immediate custody of the envelope containing the fingerprint card after defendant’s fingerprints were taken and that she had placed it in a locked desk and then delivered it to CAL ID. The court responded that a secretary or receptionist gave it to Risaliti and that there was a break in the chain of custody at that point, since the fingerprint card was not sealed in any way. The prosecutor replied that the chain of custody in this instance was irrelevant, that it would go to the weight and not the admissibility, and that at most the break in custody was an eight-hour day within the confines of a government office (CAL ID). The prosecutor further maintained that since the fingerprints matched, it was impossible that anything interfered with the chain. The prosecutor also noted that it is presumed that a government office practicing its normal course of business would not tamper with the envelope. Defense counsel again argued that the prosecutor had failed to prove chain of custody and that identity was not established.

The trial court stated that the prosecutor should prove that the document Risaliti reviewed was the same one the SBC Sheriff’s Department executed when taking defendant’s fingerprints by eliciting testimony either from someone who saw the fingerprint card before it was delivered to CAL ID or from someone at CAL ID that when he/she received it from Rinkes, it was transmitted without modification. The prosecutor noted that the fingerprint card contained defendant’s signature and his date of birth and that from the totality of the circumstances, it was clear that the prints were defendant’s. The prosecutor added that he used Rinkes as a witness to avoid the necessity of calling everyone who dealt with the fingerprint card to the stand. The court told the prosecutor that he could solve any potential problem by eliciting testimony from Deputy Rossi, who rolled defendant’s fingerprints onto the card, that the signature on the card was defendant’s signature. The bailiff noted that Deputy Rossi was taking some days off. The prosecutor offered to conduct further research into the issue and again pointed out it was a weight versus admissibility issue.

After a recess, the court stated that it had reviewed the matter and agreed with the prosecutor that the chain of custody issue was a question of weight rather than admissibility. Following further argument, the court found that defendant was the person who was convicted of first degree burglary (§ 459) in 1984, possession of heroin for sale (Health & Saf. Code, § 11351) in 1989, and unlawful intercourse (§ 261.2) and oral copulation with a person under the age of 18 (§ 288a, subd. (b)(1)) in 1990.

II

DISCUSSION

Defendant contends the trial court abused its discretion in admitting into evidence the April 20, 2005, fingerprint card over his objection. Specifically, he claims the prosecution failed to prove a key link in the chain of custody of the fingerprint card and that without the fingerprint card, there was insufficient evidence on the issue of identity, entitling him to a remand for resentencing without consideration of the prior convictions.

The rules for establishing chain of custody were recently set forth in People v. Catlin (2001) 26 Cal.4th 81: “In a chain of custody claim, ‘“[t]he burden on the party offering the evidence is to show to the satisfaction of the trial court that, taking all the circumstances into account including the ease or difficulty with which the particular evidence could have been altered, it is reasonably certain that there was no alteration.

The requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for, because then it is as likely as not that the evidence analyzed was not the evidence originally received. Left to such speculation the court must exclude the evidence. [Citations.] Conversely, when it is the barest speculation that there was tampering, it is proper to admit the evidence and let what doubt remains go to its weight.’ [Citations.]’” (Id. at p. 134, quoting People v. Diaz (1992) 3 Cal.4th 495, 559, and citing Mendez, Cal. Evidence (1993) § 13.05, p. 237 [“[w]hile a perfect chain of custody is desirable, gaps will not result in the exclusion of the evidence, so long as the links offered connect the evidence with the case and raise no serious questions of tampering”]; see also People v. Lucas (1995) 12 Cal.4th 415, 444; People v. William (1989) 48 Cal.3d 1112, 1134.) “The trial court’s exercise of discretion in admitting the evidence is reviewed on appeal for abuse of discretion.” (Catlin, at p. 134, citing County of Sonoma v. Grant W. (1986) 187 Cal.App.3d 1439, 1448.)

Defendant claims there was a vital gap in custody between the time Rinkes handed the fingerprint card to a “girl,” later identified as receptionist Lisa Boyd at CAL ID, and when Risaliti took possession. Defendant thus maintains that because of this gap, the “reasonable certainty” element was missing and that before the jury could determine the weight, the trial court had to determine that the chain of custody had been proved by a preponderance of the evidence.

The contention is without merit. Initially, we note the trial court ruled in favor of the People after carefully analyzing and researching the issue. Hence, defendant has failed to show the court’s decision was “arbitrary, capricious or patently absurd.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) Moreover, the court’s ruling was correct. Based on the testimonial evidence of Rinkes and Risaliti, as laid out, ante, there was no evidence that the fingerprint card or the envelope containing the fingerprint card had been tampered with. “’”[W]hen it is the barest speculation that there was tampering, it is proper to admit the evidence and let what doubt remains go to its weight.”’” (People v. Catlin, supra, 26 Cal.4th at p. 134; see also People v. Williams, supra, 48 Cal.3d 1112, 1132-1135 [fingerprint card properly admitted even though the prosecution mishandled a business card found in a murder residence: there was confusion whether it was found in the kitchen or bedroom, whether it was commingled with other evidence, and why a fingerprint comparison was delayed 14 months]; People v. Lewis (1987) 191 Cal.App.3d 1288, 1298-1299 [appellant having raised the “barest speculation” that there was tampering with or substitution of original exhibits, it was proper for trial court to admit the evidence and let any “remain[ing] doubt” go to its weight].)

From the evidence adduced at the hearing, the trial court could conclude with reasonable certainty that no one had tampered with the envelope or its contents. There was not a scintilla of evidence supporting any possible claim of substitution or tampering. Any chain of custody deficiency was based on the “barest speculation” of tampering. Moreover, this alleged break in the chain of custody was not fatal, as the evidence clearly remained in official custody. “It is proper to presume that an official duty has been regularly performed unless there is some evidence to the contrary. [Citations.]” (People v. Lugo (1962) 203 Cal.App.2d 772, 775.)

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

HOLLENHORST

Acting P.J.

KING

J.

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^[1] All future statutory references are to the Penal Code unless otherwise stated.

^[2] Before trial, the trial court dismissed count 4 (making a criminal threat (§ 422)) on motion of the People.

^[3] Pursuant to the People’s request, the trial court later dismissed the fourth prior prison term allegation.

^[4] Because defendant only challenges his prior convictions, a detailed factual background will not be recounted.