The opinion
GARDNER, J. pro tem. * —I dissent.
I
In my opinion the court committed no error in admitting evidence of the shoeprint and the tampered screen at 5818 Sycamore Street.
This evidence of the tampered screen—and the shoeprint— and the defendant’s car (with the keys in it) which was parked in front of the address—was admissible as relevant circumstantial evidence developed by police investigation at the scene of the crime. Proper police investigation of a burglary need not stop at the property line. All of this evidence was relevant and showed, circumstantially, the appellant’s identity and the method of operation carried out by him in the commission of the crime with which he was charged. It was all part of a continuing transaction, all part of a chain of circumstantial evidence discovered at the scene of a crime which tended by reasonable inference to establish appellant’s guilt. It was not a prejudicial record of previous crimes committed by appellant in the conventional sense of “other offenses” (in spite of the concession of the Attorney General to the contrary at oral argument—a position in conflict with that set forth in his written brief which supports the above approach to the introduction of this evidence.)
II
In my opinion the appellant suffered no prejudice by the lack of oral testimony that the shoeprints found at the scene were similar to the shoes he was wearing that night. Admit *670 tedly, under the authorities discussed in the majority opinion, it would have been entirely proper, correct—and ritualistic— for a witness to have testified that he had examined the shoes and the photographs of the shoeprints and that they were similar and for him to have pointed out the similarities. Obviously this would have been necessary were the witness testifying to fingerprints. Fingerprint testimony has always been a matter of expertise.
But shoeprints are not a matter calling for expert testimony. In People v. Taylor, 4 Cal.2d 495 [ 50 P.2d 796 ], the Supreme Court in discussing shoeprints commented at p. 497: “In those states where the subject has been considered, the trend of authority seems to be to the effect that by reason of the great practical differences between fingerprints and shoeprints, in that the shoeprints are so large and the points of similarity are so obvious, the comparison of shoeprints is a matter of nonexpert rather than of expert testimony . . . The implication is that the expert’s opinion, when given, even if uncontradicted, is not conclusive of the fact, but the jury may consider the opinion evidence together with its own inspection of the physical evidence. And this is, we think, the correct rule. ...”
It was stipulated that the sheriff’s deputy who took the pictures of the shoeprints was a competent photographer. A proper foundation was laid that the photographs were accurate and fair reproductions of the shoeprints. All that was lacking was for a nonexpert witness (obviously a prosecution witness) to testify that he had. examined the shoes and the shoeprints and that they were similar and to indicate those points which, in his opinion, were points of similarity. In view of the character of a shoeprint and its large size the jury was able to conclude without oral testimony that the shoe and the shoeprint either were or were not similar. So where has the appellant been harmed by the lack of nonexpert opinion as to similarity? As a matter of fact, he benefits. Had a non-expert given his opinion as to similarity, the jury might have been influenced toward similarity by that opinion—good or bad. But here the jury was able to make its own determination as to similarity or dissimilarity, with the thinking process of the individual juror uninfluenced by the opinion of a nonexpert prosecution witness. Here, in view of the enlarged photographs showing the original size of the shoeprints and the introduction of appellant’s shoes, a jury could reasonably make a determination as to whether or not the shoes and *671 shoeprints were similar without the aid of a nonexpert witness to explain the obvious.
I submit, therefore, that since the comparison of appellant’s shoes and the shoeprints wras not a matter of expert opinion but was a matter of primarily factual determination by the jury that the technical error, if any, in admitting the shoe and shoeprints without the conventional explanation was not prejudicial. I cannot find that this error, if it was error, resulted in a miscarriage of justice. Assuming it was error, I cannot find that it is reasonably probable that a result more favorable to the appellant would have been reached in the absence of this error. (Cal. Const., art. VI, § 13; People v. Watson, 46 Cal.2d 818, 836 [ 299 P.2d 243 ] ; People v. Hamilton, 60 Cal.2d 105,136 [ 32 Cal.Rptr. 4 , 383 P.2d 412 ].)
Our system of justice does not demand a. perfect trial—only a fair one. In my opinion the appellant received a fair trial, free of prejudicial error, and the judgment should be affirmed.
Respondent’s petition for a hearing by the Supreme Court was denied October 15, 1969. Mosk, J., and Burke, J., were of the opinion that the petition should be granted.
Assigned by the Chairman of the Judicial Council.