Filed 1/26/15 P. v. Moreno CA4/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

RUDY ANTHONY MORENO,

 Defendant and Appellant.

 G050287

 (Super. Ct. No. FSB1103961)

 O P I N I O N

Appeal from a judgment of the Superior Court of San Bernardino County, 

Annemaire G. Pace, Judge. Affirmed.

Athena Shudde, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, Andrew Mestman and 

Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.

* * *
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A jury convicted defendant Rudy Anthony Moreno of first degree burglary, 

count 1 (Pen. Code, § 459; all further statutory references are to this code) and attempted 

first degree burglary, count 2 (§§ 664, 459). In a bifurcated proceeding, the trial court 

found defendant had two prior convictions qualifying as “strikes” (§§ 667, subds. (b)-(i), 

1170.12, subds. (a)-(d)), one serious felony conviction (§ 667, subd. (a)(1)), and three 

prior prison terms (§ 667.5, subd. (b)). The trial court sentenced defendant to 25 years to 

life on count 1 plus seven years on the enhancements.

In his appeal, defendant contends the court erred by excluding evidence of 

alleged third party culpability and in permitting a fingerprint expert to testify about the 

movement and force used in connection with a palm print. We conclude the court did not 

err and affirm the judgment.

FACTS

Defendant occupied an apartment in a large apartment complex. His unit 

was below the one occupied by Elena Leaich. The two encountered each other from time 

to time. As Leaich was leaving for a weekend, carrying a bag, she noticed defendant, 

who asked if she would be gone for the weekend. Leaich confirmed she would be.

Before Leaich left on her trip, she closed and locked the windows and doors 

of her apartment. When she returned after midnight a few days later, she found the front 

door slightly ajar, her kitchen window open with its screen missing. Her apartment had 

been ransacked. Her television, her stereo, and food from her freezer were missing.

Leaich called the police; Officer Jason Betts responded. Betts noticed the 

front door was damaged, the kitchen window, next to the front door, was ajar, and its 

screen was missing. He noticed a palm print on the window and concluded this was

where the burglar entered the apartment.
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April Crichton, a forensic specialist, obtained two latent prints from the 

outside side of the kitchen window and a latent print from the blinds inside that window. 

The Automated Fingerprint Identification System returned a positive match on one of the 

prints for defendant. Fingerprint examiner Amanda Haleman testified the palm print 

demonstrated that upward, forceful pressure had been applied to the window. The prints 

must have been made after the screen was no longer in place.

DISCUSSION

1. The trial court did not err in excluding alleged third party culpability evidence.

There were two other burglaries at the apartment complex. Four months 

before the instant burglary, and before defendant resided in the complex, a laundry room 

was burglarized. Three months after the instant burglary, and after defendant’s arrest,

another apartment was entered through a broken bedroom window. Although 

defendant’s counsel acknowledged the laundry room break in might not meet the criteria 

for third party culpability, he urged the evidence of the second burglary be admitted to 

provide evidence of third party culpability. The trial court ruled, “If there were a string 

of similar burglaries at or around the same time in this complex I would agree that, that 

would be relevant. But this is one separate isolated incident months after this burglary. 

Neither burglary is unique in any real respect and they’re not super similar to each other 

given the different methods of entry. [¶] So based on the state of the law I do not find 

that this is relevant to the jury’s determination in this case. And so I’m going to exclude 

any evidence by the defense regarding those other two incidents.” 

Defendant argues the court erred in denying admission of this evidence. 

We disagree.
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Although defendant argues, in part, that the denial of admission was error 

under Evidence Code section 352, the trial court did not exclude the evidence under the 

weighing process required by that section. The court excluded the evidence because it 

found the evidence to be irrelevant. We review such a denial for abuse of discretion. 

(People v. Brady (2010) 50 Cal.4th 547, 558; People v. Prince (2007) 40 Cal.4th 1179, 

1242.)

No attempt was made to identify the burglars involved in the two other 

burglaries and the details provided by defense counsel were sparse. Counsel stated,

“There are two unrelated burglaries that occurred in the apartment complex in question. 

One before. The one before was from the apartment complex laundry room. And then 

after the burglary in question there was another burglary in the complex where 

[defendant] lived after [defendant] was in custody on this case.” 

The court interrupted: “And my understanding is that the laundry room he 

was not living there at that time?” 

Counsel continued: “That is correct. It was my hope and request to seek to 

admit both of those. However, as an officer of the court I think I am required to be 

candid and in all [due] candor I am aware of the case[]law and the rules regarding third 

party culpability. And I cannot say that the incident regarding the laundry room, of 

course I would like to have it in, but I cannot credibly argue to the court that, that would 

necessary come within the purview of the third party culpability in terms of my 

understanding of the law. Regarding the incident after, I think there is a stronger nexus 

because it was an apartment and I believe the mode of entry was a door - - window - -

which makes it even more similar.” 

At this point in the discussion, defense counsel acknowledged having 

received a police report from the prosecutor. Presumably this report pertained to either 

one or both of the burglaries being discussed. But the record does not contain such a 

report.
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In response, the prosecutor referred to the second burglary and stated “[i]t 

was a broken bedroom window entry. It was not through a kitchen window. There was 

no - - the window was actually broken and that’s how the burglary entry was 

accomplished.” 

With respect to the laundry room burglary, we do not even know if the 

room was locked or whether entry was forced. It bears no resemblance to the subject 

burglary and we appreciate defense counsel’s candor in acknowledging the court should 

not even consider this burglary. We therefore reject defendant’s argument in this appeal 

that counsel’s concession constitutes ineffective assistance of counsel.

The mere fact there was another burglary in a complex containing 328 units 

some months after the subject burglary is too remote and too uncertain to be relevant. As 

pointed out by the prosecutor, even the mode of entry differed. In the instant burglary,

the entry was achieved by sliding a kitchen window open; in the later burglary, a 

bedroom window was broken to gain entry. There is nothing in the record to indicate the 

identity of the person who committed the later burglary. In People v. Sandoval (1992) 4 

Cal.4th 155, 176, our Supreme Court stated “[a] criminal defendant has a right to present 

evidence of third party culpability if it is capable of raising a reasonable doubt about his 

own guilt. This rule does ‘not require that any evidence, however remote, must be 

admitted to show a third party’s possible culpability.’” (Ibid.) In an apartment complex 

of this size, it is unfortunately not unusual that two burglaries took place within several 

months of each other. But without further specific similarity between the methods used, 

we cannot conclude the trial court abused its discretion in deciding evidence of the later 

burglary was not relevant.

2. The court did not err in admitting evidence of the fingerprint expert.

Haleman testified about the procedure she used to match one latent palm

print to defendant’s known palm print. She then testified to the pressure applied and the 
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upward movement of defendant’s palm. She based this on “large white marks going in 

an upward direction.” This, in turn, explained how the window was opened. 

Defendant objected on grounds of speculation and lack of foundation. He 

now argues to the same effect that “Haleman lacked qualification as an expert on 

movement and force underlying fingerprint impressions, and admission of [this] evidence 

constituted an abuse of discretion.” 

Haleman had been employed as a fingerprint examiner for seven years. She 

had received 400 hours of formal training in fingerprint analysis, classification, and 

identification. She had received approximately 10 months of on-the-job training in these 

same areas. In addition, she received training from the Department of Justice and San 

Bernardino Valley College. She had testified as an expert in approximately 15 prior 

cases. To argue she could testify about fingerprints but not about palm prints draws too 

narrow a line around the expert’s area of expertise. Similarly, testimony of force left by a 

fingerprint or palm impression or movement demonstrated by the impression would seem 

to be well within the area of her expertise. 

“Where a witness has disclosed sufficient knowledge of the subject to 

entitle his opinion to go to the jury, the question of the degree of his knowledge goes 

more to the weight of the evidence than its admissibility.” (Seneris v. Haas (1955) 45 

Cal.2d 811, 833.) And, as noted by the Attorney General, People v. Bolin (1998) 18 

Cal.4th 297 held “[t]he trial court’s determination of whether a witness qualifies as an 

expert is a matter of discretion and will not be disturbed absent a showing of manifest 

abuse. [Citations.]” (Id. at pp. 321-322.) The trial court did not abuse its discretion in 

permitting the testimony of the fingerprint expert.
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DISPOSITION

The judgment is affirmed.

RYLAARSDAM, ACTING P. J.

WE CONCUR:

BEDSWORTH, J.

ARONSON, J.