PEOPLE v. ELIAS

No. B224372.

THE PEOPLE, Plaintiff and Respondent, v. JOSE D. ELIAS et al., Defendants and Appellants.

Court of Appeals of California, Second District, Division Three.


Attorney(s) appearing for the Case

Janyce Keiko Imata Blair , under appointment by the Court of Appeal, for Defendant and Appellant Joseph R. Ruiz.

David H. Goodwin , under appointment by the Court of Appeal, for Defendant and Appellant Jose D. Elias.

Kamala D. Harris , Attorney General, Dane R. Gillette , Chief Assistant Attorney General, Pamela C. Hamanaka , Assistant Attorney General, Scott A. Taryle and Stacy S. Schwartz , Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

INTRODUCTION

A jury found defendants and appellants Jose D. Elias and Joseph R. Ruiz guilty of two counts of first degree murder and of brandishing a weapon but acquitted a third defendant, Eric Perez. At their joint trial, the prosecution introduced evidence that a dog was given scent from evidence and trailed to defendants. Defendants contend on appeal that this evidence was erroneously admitted and that the jury was misinstructed on it. In addition, defendants contend that the trial court failed to instruct the jury properly on uncharged crimes and acts. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual Background

A. Prosecution's case.

1. Brandishing a gun at Franklin Harris.

On May 7 or 8, 2007, Franklin Harris saw Elias and Ruiz in a Nissan car, and one of them (the passenger) brandished a gun and called him a "[b]ig-headed nigger." Harris had gone to school with Ruiz.

2. The murders of Tony Walker and Jamal Varcasia.

On May 7, 2007, around 2:00 p.m., Raeshel Shay was outside her home on Washington Boulevard. A gold Dodge Intrepid passed but made a U-turn and came back, now westbound on Washington. Three Hispanic men with bald heads were in the car; two men sat in front and the third in the back. Shay saw one gun, maybe two, come from the driver's side of the car, although she couldn't tell who held the gun.

Tony Walker was sitting in a parked car, and Jamal Varcasia was running across the street towards Walker. Multiple shots rang out, and Shay dropped to the ground. Someone shouted, "Villa" and "fuck PDL." Varcasia was lying in the street and Walker was in his car, both shot. Walker and Varcasia died of multiple gunshot wounds, four each. Neither victim had soot or stippling around the wounds, meaning that the gun was at least two feet from the victims.

Scared, Shay didn't immediately report what she saw. Instead, she was in custody for having a fraudulent gift card when, during a monitored phone call with her sister, Shay mentioned the shooting. Detective Keith Gomez then interviewed her. From photographic six-packs, she identified Elias as the driver, Ruiz as the rear passenger, and Perez as the front passenger. She said that the front passenger was chunky or calf-like, while the back passenger wasn't as big and looked younger than the driver.

At trial, Shay identified Elias, Ruiz, and Perez as the men in the car, although she said they looked different than they did at the time of the shooting. She also could not say who sat where in the car on the day of the shooting. At the preliminary hearing, however, Shay identified Elias as the person in the back seat and Perez as the driver. Also at the preliminary hearing she said there were four people in the car.

3. Post murder conduct and surveillance of Elias and Ruiz.

Sometime in early May 2007,1 Johann Montoya, a Villa Boy, was jumped outside his house by four to five men who came out of an SUV-like vehicle. Montoya later also told an officer that on May 7, 2007, he was near the scene of the shooting when he saw a gold Dodge Intrepid, which he recognized as a Villa Boys's car, speed by with four Hispanic men with shaved heads in it. Dopey (Elias) was driving the car, and Montoya thought that Brujo (Ruiz) may have owned it. At trial, Montoya denied making these statements to the officer. Montoya went to school with Elias, and he knew Ruiz as Brujo.

Police officers surveilled Ruiz and Elias from May 11 to May 14, 2007. On May 11, Officer Greg Afsharian saw Elias and others get into a white Ford Taurus driven by Ruiz. They passed a housing complex that was a known Blood hangout and continued past Washington, where Elias threw a Villa Boys's gang sign at some Black men. Ruiz pulled alongside two Black women and gang signs were thrown at them too. When the car passed a Black man wearing red shorts, they yelled something at him, and the Black man yelled back and made gang signs. Later, Officer Afsharian saw them talking with other Hispanic men and they threw gang signs at each other, but the interaction appeared to be friendly. The car stopped at an address on Allen and two women in a silver Dodge Stratus drove up and talked to Ruiz and Elias. Officers stopped the car four times that day, but no weapons were found.

Officers continued to follow defendants, observing them, on May 14, driving slowly by a Blood hangout. Officers stopped the car but again found no weapons. That evening, at about 7:00 p.m., Detective Tai Wotherspoon watched the car, a black Nissan, driven by Elias, stop. Three people got out and approached a group of Black men and one Hispanic man. The men who got out of Elias's car exchanged words with and then hit the Hispanic man. They drove away, yelling and throwing Villa Boys's gang signs. Detective Wotherspoon wasn't sure if Elias was the man who threw the punch, and he couldn't recall if Ruiz was in the car also.

But just after 7:00 p.m. that same night, Pasadena Police Officer Kevin Jackson saw Elias and Ruiz and a third person in a black Nissan. The Nissan passed a Black male teenager, and the car pulled alongside him. A male Hispanic got out of the Nissan and confronted the teenager.

4. The testimony of Grezelda Martinez and Marisela Herrera.

Grezelda Martinez was Elias's girlfriend. Elias was a member of the Villa Boys gang called Dopey. Ruiz was also a Villa Boy known as Brujo, and in May 2007 Ruiz and Elias were together frequently, along with Perez. Elias had gang-related tattoos.

Guadalupe Herrera was Ruiz's girlfriend. Herrera had heard Ruiz called Brujo, but he wasn't a gang member. In May 2007, Ruiz and Perez were together sometimes. Herrera rented a house with her sister, Marisela Herrera, whom some people called Whisper. According to Officer Andrea Perez, Herrera said that Marisela is a member of the Villa Boys.

Marisela, however, denied having a connection to Villa Boys, although she knew members of the gang, including Elias. She knew Ruiz and Perez, but she didn't know if they were members of Villa Boys. Marisela had a grey Dodge Stratus that Ruiz also drove. A search of the car turned up a bullet casing.

When the police first came to Herrera's house, she told them she hadn't seen Ruiz in two or three weeks. In fact, she saw him on May 7 or 8. On the day of the shooting, she woke Ruiz up around 2:45 p.m. and they drove to her work. Detective Perez asked Herrera if Ruiz committed the murders, and Herrera replied, "Um-hm," which the detective took to be "yes," but which Herrera testified meant "no."

5. Firearm evidence.

Bullet casings were recovered from the scene of the murders. All casings found at the scene were Remington Peters nine-millimeter Luger caliber (a common brand of ammunition) and were fired from the same weapon. The bullets or fragments from the victims' bodies were consistent with having been fired from the same weapon, although it is possible they were not. It is likely that the casings at the scene and the recovered bullets/fragments came from the same gun. The People's firearm expert saw no evidence of another gun having been fired at the scene.

The two casings recovered from the silver Dodge Stratus owned by Herrera's sister were also nine-millimeter Luger, but they were not fired from the gun that fired the casings found at the scene of the shooting.

On May 15, 2007, officers found an unloaded .32 caliber handgun in a locker outside Guadalupe Herrera's, Ruiz's girlfriend, home. Herrera didn't know who the .32 caliber gun belonged to, but Officer Perez said that Herrera told her Ruiz put the gun in her house. The gun was not the murder weapon, and a .32 caliber gun cannot fire nine-millimeter bullets.

6. Dog scent evidence and the station identification.

On May 16, 2007, Detective Grant Curry accompanied Ted Hamm, a canine dog handler, at a station identification. Curry had three detectives take the three defendants—Ruiz, Elias, and Perez—up the elevator to different rooms on the third floor of the Pasadena Police Station. Neither Detective Curry nor Hamm knew where on the third floor the defendants were. Detective Curry then gave Hamm three bullet casings recovered from the crime scene and the .32 caliber gun. Using a Scent Transfer Unit (STU), described as a modified dust buster, that Hamm wiped down with alcohol after putting on gloves, Hamm extracted scent from the three casings and placed it on a sterile guaze pad. Hamm did the same with the .32 caliber gun, placing its scent on a different gauze pad.

Hamm brought his dog, Bojangles, up the elevator to the third floor and let Bojangles smell the pad containing the scent from the casings. Bojangles immediately went down the hall, making turns, and led Hamm and the detective to Perez. After Bojangles smelled a pad with the scent from the casings again, Bojangles this time led them to Elias. But when the scent pad was reintroduced a third time, Bojangles did not move.

The other detectives then took Elias, Ruiz, and Perez to the parking area, and Hamm had Bojangles smell the scent pad from the .32 caliber gun. Bojangles led to Ruiz.

Ruiz, Elias, and Perez were handcuffed during this identification process.

7. Gang evidence.

Pasadena has five local gangs, including Villa Boys, which has about 70 documented members. The Pasadena Denver Lanes is a Blood gang and a rival of the Villa Boys. Villa Boys's primary activities are robberies, assault with deadly weapons, attempted murders, narcotics sales, and stealing vehicles. Someone who drives around Blood-dominated areas and flashes gang signs at Black individuals acts in conjunction with Villa Boys. Elias and Ruiz have gang tattoos. Elias admitted to Officer Perez that he was a Villa Boy. In her opinion, Elias and Ruiz, as well as Perez, were Villa Boys, and the crimes were committed for the benefit of the gang. That Elias and Ruiz were seen driving around and flashing Villa Boys's gang signs in the days following the murders only confirmed her opinion.

B. Defense case

Minutes before Walker and Varcasia were killed, Milton Denham, who lived on Washington near the scene of the murders, spoke to them. He heard the gunshots from his house. Running outside, he saw a gold or champagne-colored Dodge Intrepid heading east on Washington. Denham could see the backs of two male Hispanics' heads.

George Warner was also driving westbound on Washington around the time of the shooting. He heard a popping sound and saw a large crowd of people. A car was traveling eastbound on Washington but he couldn't remember the car's color.

Patricia Fant, a firearms expert, agreed that the bullet fragments from the victims' bodies were nine-millimeter, were fired from the same gun, and were consistent with the casings found at the scene. The evidence was consistent with one gun having been used. Also, the evidence at the scene was consistent with the shooter's car travelling eastbound when the shots were fired.

When Detective Gomez spoke to Shay on May 14, 2007, Shay was certain she saw two guns and the shooter's car was a gold Dodge Intrepid. When he showed her photographs from gang books, she started folding over pages, somewhere between 5 and 10 out of 20 pages.

II. Procedural Background.

On February 23, 2010, a jury found Elias and Ruiz guilty of counts 1 and 2, the first degree murders of Walker and Varcasia (Pen. Code, § 187, subd. (a)),2 and of count 4, brandishing a weapon at Harris (§ 417, subd. (a)(2)).3 As to both defendants on counts 1 and 2 for murder, the jury found true gun-use allegations (§ 12022.53, subds. (d) & (e)(1)) and gang-enhancement allegations (§ 186.22, subd. (b)(1)(C)). As to count 4, the jury also found true a gang-enhancement allegation (§ 186.22, subd. (d)). As to Elias only, the jury found true special circumstance allegations: the murders were intentional and perpetrated by means of discharging a firearm from a motor vehicle (§ 190.2, subd. (a)(21)); defendant killed the victims while an active gang member and the murders were carried out to further the gang's activities (§ 190.2, subd. (a)(22)); and multiple murder (§ 190.2, subd. (a)(3)). The jury did not find the special circumstance allegations true as to Ruiz.

On April 23, 2010, the trial court sentenced Elias on counts 1 and 2 to life without the possibility of parole plus two consecutive 25-year terms under section 12022.53, subdivision (d). The court imposed but stayed a one-year sentence on count 4. The court sentenced Ruiz on counts 1 and 2 to life terms, each with a 15-year minimum term, plus two consecutive 25-year terms under section 12022.53, subdivision (d). The court similarly imposed but stayed a one-year sentence on count 4.

DISCUSSION4

III. Dog-Scent Evidence.

Before trial, the trial court held a hearing under Evidence Code section 402 (402 hearing) to determine the admissibility of dog-scent evidence. After the hearing, the court admitted evidence of the station identification, finding that the STU is generally accepted in the scientific community as a collection device and that it can pick up scents from items that have gone through volatile events or scents. The court also found that a foundation had been laid for the handler and the scent dog.

Defendants argue: (A) that the "foundational requirements" for the scent identification were not established under People v. Kelly (1976) 17 Cal.3d 24 (Kelly), thereby leading to the admission of irrelevant evidence;5 and (B) that the trial court misinstructed the jury on the dog-scent evidence.

A. The trial court did not abuse its discretion by finding that the prosecution established a foundation to admit the dog-scent evidence.

The ability of a dog to track a human is a fact that may be proven by expert testimony on a case-by-case basis. (People v. Craig (1978) 86 Cal.App.3d 905, 915 [rejecting the notion that Kelly applies to dog tracking].)6 In Craig, three suspects were in a car, which they exited to run into an apartment complex. (Id. at p. 910.) The suspects were found and detained. A police dog tracked the suspect's scent from the car's interior to the point of detention. (Id. at p. 911.) This evidence was properly admitted because there was substantial evidence of the dog's reliability, namely, of the expert qualifications of the dog's handler and of the dog's training and skills. (Id. at pp. 916-917.)

People v. Malgren (1983) 139 Cal.App.3d 234, 237, which involved a dog tracking a burglary suspect from the burgled home over a trail of about seven-tenths of a mile, thereafter set forth the foundational requirements for admitting dog-tracking evidence. "[T]he following must be shown before dog trailing evidence is admissible: (1) the dog's handler was qualified by training and experience to use the dog; (2) the dog was adequately trained in tracking humans; (3) the dog has been found to be reliable in tracking humans; (4) the dog was placed on the track where circumstances indicated the guilty party to have been; and (5) the trail had not become stale or contaminated." (Id. at p. 238.)

Two recent cases—People v. Mitchell (2003) 110 Cal.App.4th 772 (Mitchell) and Willis, supra, 115 Cal.App.4th 379—concern the admissibility of dog-scent evidence and the STU. Mitchell involved a scent-identification lineup in which a STU collected scents from murder shell casings and from the victim's shirt. (Mitchell, at p. 780.) During a series of lineups, the dog was given, for example, the pad with the scent extracted from the shell casings, which it matched to a pad containing scent extracted from the defendant's shirt. The first issue there, unlike here, was whether the STU was a novel device within the meaning of Kelly. (Id. at p. 787.) The court held it was and that it was error for the trial court not to hold a Kelly with respect to the STU and as to the scent-identification evidence. Mitchell also noted that even if Kelly did not apply to scent-identification evidence in general, a foundation greater than the one provided there was necessary for admission: "For scent identification to be relevant, there must be some basis for assumptions made about degradation and contamination of scent, both before and during collection, as well as the uniqueness of each person's odor, beyond the mere experiences of one trainer and one dog." (Id. at pp. 793-794.)

Like here, Willis involved a station identification, as well as a location identification. (115 Cal.App.4th at p. 384.) In addition to lack of proof about the STU's acceptance in the scientific community, Willis found a "foundational weakness in the dog identification evidence." (Id. at p. 386.) The court noted the difference between cases where a dog tracks a suspect and cases where a dog is given a scent from a gauze pad after an incident and the dog is watched to see if it, for example, shows interest in a location or person. In such latter cases, "[t]he prosecution cannot rely solely on anecdotes regarding the dog's capabilities. Instead, a foundation must be laid from academic or scientific sources regarding (a) how long scent remains on an object or at a location; (b) whether every person has a scent that is so unique that it provides an accurate basis for scent identification, such that it can be analogized to human DNA; (c) whether a particular breed of dog is characterized by acute powers of scent and discrimination; and (d) the adequacy of the certification procedures for scent identifications." (Id. at p. 386.)

We construe defendants' contentions to focus on whether an adequate foundation was laid to admit the dog-scent identification evidence under Malgren and Mitchell. We find that the trial court did not abuse its discretion in finding that the People laid an adequate foundation to admit the dog-scent identification evidence through the testimony of its expert witnesses: Dr. Kenneth Furton, a professor of Chemistry and Biochemistry; Rex Stockham, an FBI supervisory special agent who is the forensic canine program manager and research program manager for the evidence response team unit;7 and Ted Hamm, a civilian contract canine handler primarily employed by the Los Angeles County Sheriff's Department and Bojangles's handler and trainer.

A trial court is given "considerable latitude" to determine an expert's qualifications, and its ruling will not be disturbed on appeal absent a manifest abuse of discretion. (People v. Malgren, supra, 139 Cal.App.3d at p. 238.) Whether an adequate foundation to establish the relevance of the evidence has been presented generally lies within the trial court's broad discretion. (See People v. Ramos (1997) 15 Cal.4th 1133, 1175; People v. Hovarter (2008) 44 Cal.4th 983, 1011 [trial court had discretion to determine whether foundation had been established for the business records exception to the hearsay rule].)

1. Hamm's procedures.

Defendants argue that the way in which Hamm conducted his scent identification was not what the relevant scientific community accepts or says is good practice. They specifically point to the use of a "negative scent pad," which Hamm "[a]lmost never" uses and did not use during the station identifications at issue. A "negative scent pad" is a pad having a scent unconnected to the case; therefore, the dog should not trail after smelling it. Stockham gives his dogs a negative scent pad to ensure they are "working" properly that day, before the actual trailing is done. Using such "controls," however, is not common practice, and the only law enforcement agency that uses controls is the FBI. Hamm's failure to use a negative scent pad did not therefore establish that the procedure he used was a bad practice.

Defendants also argue that Hamm's procedures were faulty because he does not use two dogs when conducting his identifications; he uses only one. Stockham, however, merely testified that while he prefers to use more than one dog in his investigations, he uses single dogs too. Stockham did not testify that the only generally accepted practice is to use two dogs. In fact, Stockham praised Hamm as "very competent" and in the "top echelon of experienced handlers in the U.S." He considers Hamm to be a leading expert in scent trailing.

2. Bojangles's training and reliability

Malgren found that a dog's training and reliability in tracking humans must be established before the dog-tracking evidence can be introduced. Defendants essentially argue that those findings could not be made here because Bojangles was not certified. Defendants incorrectly assert that Dr. Furton testified that a dog must go "through certain blind tests and reach a set percentile of correct identifications" to be certified in California. What Dr. Furton actually said was a California organization he belongs to requires a training log, blind tests, and a certain percentile of correct identification to certify a dog; he did not testify that California has a certification standard or process. Rather, there is no national standard for certification or training of scent dogs, and standards vary from state to state. Neither California nor the Los Angeles County Sheriff's Department have requirements for certifying trailing dogs. The Scientific Working Groups on Dogs and Orthogonal Detection Guidelines (SWGDOG), an international working group funded by the FBI, is developing best practice certification and assessment guidelines for police-related canine disciplines.

Although there are no national or specific state standards for training or certifying a scent dog, Stockham described his training process and how he determines a dog's reliability. Stockham keeps detailed training records to compare and contrast the milestones a dog should reach. To determine a dog's reliability, he relies on frequent observation of teams and blind testing, which the FBI routinely conducts.8 Before Stockham considers deploying a dog for a job, he subjects it to a series of tests and controls. The "best practice" is for someone not routinely involved in the dog's training to assess its readiness for fieldwork. But a dog's handler also has the ability to determine whether the dog is positively or negatively trailing a scent. Once a dog is ready for fieldwork, the dog still requires maintenance training, and the industry standard is a scent dog should have 16 hours of maintenance training, although some people in the field believe that once a month is sufficient.

Based on differences between Stockham's practices and the way Bojangles was trained and assessed, defendants argue that a foundation was not laid as to Bojangles's reliability. They point out that Bojangles was not certified; Hamm, instead of an outside agency, determined Bojangles's readiness. Defendants also argue that there were significant flaws in his training; for example, Hamm lost his training logs dated before August 2008 in a computer crash and therefore Hamm's testimony about Bojangles's training and abilities was merely anecdotal.

We disagree. Hamm testified extensively and specifically about his and Bojangles's background. Hamm has trained bloodhounds for 21 years and participated in over 2,000 investigations. He begins training a dog when it is a puppy. The dog first watches a person run away and then follows. Then the person drops an object that has his or her scent on it. Eventually, the person goes out of the dog's sight, and the dog must transition from visually following the person to using its nose to find the person. The length, age, and complexity of the trail is slowly increased. Hamm also works blind, meaning he doesn't know where the person is or what the result should be. The training process takes about two years, although a dog continues to do maintenance training even after it is ready to work. He tries to do maintenance training at least once a week and more often if he is able.

Hamm trained Bojangles in this manner, on trails fresher than 48 hours, to discriminate between human scents and to identify only the scent he's given. Bojangles has also been trained in different environments and on different surfaces. He's been trained with the STU and on a variety of scent articles, including spent cartridge casings. Bojangles frequently participates in a weekly maintenance training session. Hamm has been doing casework with Bojangles for three or four years with no history of falsely identifying targets in either blind testing or casework. Bojangles has confirmed cases, which are cases in which the dog's conclusion is confirmed by other sources, for example, witness statements, confessions, and DNA.9 To Hamm's knowledge, Bojangles has no confirmed negatives, where the dog found a scent and trailed to a subject who did not match the scent.10

Defendants also attack Bojangles's reliability because there was no evidence that his breed, bluetick coonhound, has particular scent abilities. Mitchell noted that "foundational requirements for qualification of tracking and trailing evidence often include the element that the dog be of a breed, stock or pedigree characterized by acute powers of scent and discrimination." (110 Cal.App.4th at p. 792.) The breed of a dog may have some relevance to the foundational requirements. But we cannot say, to the extent a dog's breed is related to its ability to discriminate scents, that there was an insufficient foundation established as to Bojangles's acute power of scent and discrimination. Hamm testified extensively about Bojangles's abilities. The absence of more specific evidence of the abilities of blue tick coonhounds did not render the scent-identification evidence inadmissible.

3. The uniqueness of human scent.

The prosecution established a foundation that human scent is unique. Dr. Kenneth Furton, a professor of Chemistry and Biochemistry, studies the uniqueness of human scent and works with dogs to determine their ability to distinguish between individuals. Sixty-three compounds have been identified as "human specific primary odor compounds." Dr. Furton testified it is generally accepted that there is a sufficient biochemical basis for differentiating people based on their odors. Dogs have been able to differentiate between even identical twins. All the data he has seen supports the conclusion that human scent is unique. Stockham agreed that dogs can distinguish between humans.

Citing Mitchell, defendants attack this testimony because Dr. Furton did not testify in terms of the "probability" of a match. Mitchell, however, did not hold that such testimony was a necessary element to establish the uniqueness of human scent. Unlike here, there was no evidence in Mitchell that every person has a scent so unique it provides an accurate basis for a scent-identification lineup. (Mitchell, supra, 110 Cal.App.4th at p. 791.) The Mitchell court simply wondered if the uniqueness of scent could be analogized to the uniqueness of DNA, which is expressed by the statistical probability of a random match. (Ibid.) Mitchell did not hold that the uniqueness of human scent must be expressed in such terms.

4. The ability of dogs to pick up scent from an object.

Next, defendants question the ability of dogs to pick up scent from expended cartridges, especially considering that the cartridges might be handled only briefly and go through extreme heat. Dr. Furton, however, testified that a person doesn't have to hold an item for a long period of time to leave their scent on it. Studies, including an informal test in the Netherlands, also confirm that human scent can remain on a spent cartridge casing.

Both Dr. Furton and Stockham also testified about the ability of scent to withstand extreme conditions. Human scent left on pads remains even after several months of exposure to the elements. Studies have shown that scent pads placed in a storage container, such as a Ziploc bag or a glass jar retain scent for "even years." A Dutch study showed that scent can remain on a stored item at least seven years. Dr. Furton conducted studies in which dogs reliably identified individuals by their scent left on objects that had been burned or exploded. Dr. Furton would expect that extreme heat might affect the amount of human scent on an object but not its detectability by a dog. Stockham published a paper about an experiment in which containers were held for several minutes by six different people, and then the containers were burned. The ability of the dogs to smell a scent pad collected from the arson debris was "way better than chance at picking the correct person." Although 14 to 16 scent pads were made from the same scent item, no degradation in the results were observed. It is "[w]ay better than chance" that human odor survives detonation forces.

5. The ability of dogs to differentiate multiple scents on an item.

Defendants next argue that there was an insufficient foundation that dogs can differentiate multiple scents on an object. Dr. Furton, however, testified that dogs can discriminate between multiple scents, namely, when two people touch an object. Stockham agreed that dogs can differentiate each individual's odor on a scent object and that the scientific community accepts this. Multiple scents on a single pad pose no problem for a dog, and Stockham has "dismissed eighteen people off of one scent object." Stockham described a test he conducted in which a woman mailed a letter to him. The letter was radiated. Using scent from that letter, a dog was able to correctly identify the home where the woman had lived, even though she hadn't been there in six months. Even defendants' expert, Steven Nicely, testified that a properly trained dog can reliably distinguish between human scents with a high probability.

Based on this evidence, the trial court did not abuse its discretion by finding that the prosecution laid a foundation, under Malgren and Mitchell, for the dog-scent evidence.

B. The dog-scent identification instruction.

Ruiz makes an additional contention regarding the dog-scent evidence: the trial court misinstructed the jury with CALCRIM No. 374 insofar as it applied to evidence that Bojangles smelled scent from the .32 caliber gun and then led his handler to Ruiz.

Without objection from defense counsel, the jury was instructed with CALCRIM No. 374: "You have received evidence about the use of a tracking dog. You may not conclude that the defendant is the person who committed the crime based only on the fact that a dog indicated the defendant. Before you rely on dog-tracking evidence, there must be, one, evidence of the dog's general reliability as a tracker, and, two, other evidence that the dog accurately followed a trail that led to the person who committed the crime. This other evidence does not need to independently link the defendant to the crime. [¶] In deciding the meaning and importance of the dog-tracking evidence consider the training, skill and experience, if any, of the dog, [its] trainer or [its] handler together with everything else that you learned about the dog's work on this case." (Italics added.)

Ruiz takes issue with this instruction, and in particular, the italicized portion, on the ground that the instruction does not apply to the specific facts of this case. It is limited to and arose out of, defendant argues, factual scenarios in which a dog tracks a suspect-defendant from the crime scene to, for example, a place of hiding. (People v. Malgren, supra, 139 Cal.App.3d at p. 237; People v. Gonzales (1990) 218 Cal.App.3d 403, 406-407.) Malgren found that a jury is properly instructed on dog-tracking evidence when it is informed that there must be some other evidence, direct or circumstantial, supporting the accuracy of the identification and, in determining what weight to give such evidence, the jury should consider the training, proficiency, experience, and proven ability of the dog, its trainer, and its handler, together with the circumstances surrounding the trailing in question. (Malgren, at p. 242.) Gonzalez elaborated that the "corroborating evidence necessary to support dog-tracking evidence need not be evidence which independently links the defendant to the crime; it suffices if the evidence merely supports the accuracy of the dog tracking." (Gonzales, at p. 408.)

Although CALCRIM No. 374 might seem more appropriate to a Malgren and Gonzales—like tracking situation, it is not inapplicable to a station identification. The instruction simply says that there must be "other evidence that the dog accurately followed a trail that led to the person who committed the crime." (Italics added.) Bojangles smelled scent from the .32 caliber gun and trailed to Ruiz. Although there was no physical evidence that a .32 caliber gun was used during the crimes (only nine-millimeter bullets and casings were recovered from the crime scene and from the victims' bodies), Raeshal Shay testified that she might have seen two guns; hence, it was the prosecution's theory that Elias and Ruiz committed the crimes together and that there was a second gun, possibly the .32 caliber gun found at Ruiz's girlfriend's house. The dog-scent evidence therefore merely connected Ruiz to the .32 caliber gun; there had to be other corroborating evidence that Ruiz was the person who committed the crime. Shay saw Elias and Ruiz in the car together. Montoya saw Elias in the car that day. Ruiz's girlfriend had a car that was similar to the car used in the shooting. Elias and Ruiz were Villa Boys who, in the days following Walker's and Varcasia's murders, committed crimes together against, inferentially, Black people they perceived to be rivals.

IV. Uncharged Crimes and Acts of Misconduct.

Before trial, defendants moved to exclude evidence of their activities in the days following the May 7, 2007 murders; specifically, Ruiz's and Elias's activities from May 11 to May 14, 2007, during which time they drove through Blood dominated areas, harassing, among others, Black men, and signaling their membership in Villa Boys.11 The prosecutor argued that the evidence was relevant to the gang-enhancement allegations and cross-admissible on the count for brandishing a weapon; the defense argued it should be excluded under Evidence Code section 352. The trial court found that the evidence was not unduly prejudicial, given its probative value, and allowed its admission. Defense counsel, however, neither requested that the jury be instructed with CALCRIM No. 375 nor did the trial court sua sponte give that instruction. Defendants therefore now contend that the trial court prejudicially erred in not giving the limiting instruction and that their trial counsel were ineffective for not requesting it.

A. Sua sponte instruction.

Defendants do not contend that the uncharged crimes and acts of misconduct were inadmissible.12 They instead contend that the trial court erred by not sua sponte instructing the jury that the uncharged crimes and misconduct were admitted for a limited purpose. A trial court is required to instruct the jury, sua sponte, on the general principles of law relevant to the issues raised by the evidence. (People v. Martinez (2010) 47 Cal.4th 911, 953.) But, in general, the trial court is under no duty to instruct sua sponte on the limited admissibility of evidence of past criminal conduct. (People v. Collie (1981) 30 Cal.3d 43, 64; see also People v. Hernandez (2004) 33 Cal.4th 1040, 1051-1052; People v. Farnam (2002) 28 Cal.4th 107, 163-164.) The exception to this rule is the "occasional extraordinary case in which unprotested evidence of past offenses is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose." (Collie, at p. 64.)

This case does not fall within the exception. Although certainly an important part of the prosecution's case, we cannot say that the evidence of uncharged crimes and acts of misconduct were a "dominant" part of the evidence, given that eyewitness testimony figured so prominently in the case. The evidence was also undoubtedly prejudicial, but any evidence which tends to prove guilt is prejudicial to the defendant's case. (People v. Karis (1988) 46 Cal.3d 612, 638.) "`"[P]rejudicial"' "is not synonymous with "`"damaging."'" (Ibid.) The evidence was also more than "minimally relevant." It was directly relevant to the gang enhancement and the special circumstance allegations. The evidence showed that Elias and Ruiz drove around areas where rival gang members were known to hang out, flashed Villa Boys's gang signs, and harassed and attacked people who they perceived to be members of a rival gang.

Moreover, although the jury was not instructed with CALCRIM No. 375,13 the court did give CALCRIM No. 1403: "You may consider evidence of gang activity only for the limited purpose of deciding whether[:] [(1)] The defendant acted with the intent, purpose and knowledge that are required to prove the gang[-]related enhancements and special circumstance allegations charged[;] or, [(2)] The defendant had a motive to commit the crimes charged. [¶] You may also consider this evidence when you evaluate the credibility of or reliability of a witness and when you consider the fact[s] and information relied on by an expert [witness] in reaching his or her opinion. You may not consider this evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or that he [or she] has a disposition to commit this crime." Like CALCRIM No. 375, CALCRIM No. 1403 instructed the jury that the evidence was admitted for a limited purpose, namely, to establish the gang enhancement and special circumstance allegations. Importantly, it also instructed the jury that they could not consider the uncharged crimes and acts to conclude that the defendants had bad characters or were disposed to commit crime.

Defendants, however, argue that giving CALCRIM No. 1403 didn't compensate for the failure to give CALCRIM No. 375, because No. 1403 was expressly limited to "evidence of gang activity" and some of the uncharged crimes and acts were not "evidence of gang activity"; namely, evidence that Ruiz and Elias accosted two Black women, that they harassed a Black man walking on the street, and that someone in Elias's car punched a male Hispanic.14 Placed in context, this evidence certainly could be reasonably viewed as gang activity. It took place over the course of three days during which defendants drove around Blood dominated areas, harassing primarily Black men and women and throwing Villa Boys's gang signs. Gang members engage in such behavior, according to the People's gang expert, Officer Perez, to intimidate the community. Blood gangs are one of Villa Boys's rivals, and there have been incidents of violence between the Villa Boys and Black gangs. The jury therefore could have viewed this evidence as gang activity.15

B. Trial counsel did not provide ineffective assistance by failing to request CALCRIM No. 375.

Alternatively, defendants contend that their trial counsel were ineffective for not asking the trial court to give CALCRIM No. 375. We disagree.

An appellant claiming ineffective assistance of counsel has the burden to show: (1) counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient performance resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 688; People v. Ledesma (1987) 43 Cal.3d 171, 216, 218.) In determining whether counsel's performance was deficient, we exercise deferential scrutiny. (Strickland, at p. 689; Ledesma, at p. 216.) Here, the record is silent as to whether defense counsel had a tactical purpose in failing to request the limiting instruction. In any event, this is not a case in which reasonable counsel would have necessarily requested the instruction. Defense counsel did object to admission of the uncharged acts under Evidence Code section 352, but the trial court overruled the objection. Once it was clear that evidence of defendants' gang-related activities from May 11 to 14, 2007 would be admitted, defense counsel could reasonably have chosen to forgo requesting CALCRIM No. 375, deeming CALCRIM No. 1403 sufficient to limit the application of the evidence to the gang enhancement and special circumstance allegations.

V. The .32 Caliber Gun.

Police officers found a .32 caliber semiautomatic gun at Guadalupe and Marisela Herrera's house. Thereafter, a scent pad was created by extracting scent from that gun, and the scent dog, Bojangles, alerted to Ruiz.16 Ruiz now contends that evidence of the .32 caliber gun should have been excluded because there was no "connection between the firearm and [Ruiz's] culpability" other than one based on speculation and conjecture, and therefore admission of the evidence violated his right to due process of law. We disagree that the evidence was either irrelevant or that its admission rendered the trial fundamentally unfair.

"No evidence is admissible except relevant evidence." (Evid. Code, § 350.) "`Relevant evidence'" is evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) A trial court has broad discretion in determining whether evidence is relevant and whether Evidence Code section 352 precludes its admission. (People v. Mills (2010) 48 Cal.4th 158, 195; People v. Williams (2008) 43 Cal.4th 584, 634.) "The admission of relevant evidence will not offend due process unless [that] evidence is so prejudicial as to render the defendant's trial fundamentally unfair." (People v. Falsetta (1999) 21 Cal.4th 903, 913; see also People v. Partida (2005) 37 Cal.4th 428, 439.)

Ruiz's argument that evidence of the .32 caliber gun should have been excluded is premised on ballistics evidence. Only nine-millimeter casings and bullet fragments were recovered from the crime scene and from the victims' bodies. Nine-millimeter bullets cannot be fired through a .32 caliber gun. According to both the prosecution and defense firearm experts, this evidence was consistent with only one gun being used during the shooting.

Raeshal Shay, however, testified at trial that she saw one, and possibly two, guns during the shooting. Just days after the shooting, she told a detective she saw two guns. A .32 caliber gun—albeit not the murder weapon—was thereafter found at the home of Ruiz's girlfriend. Herrera testified that she didn't know how the gun got to her house, although Detective Perez testified that Herrera told her Ruiz put it there. The relevance of the gun was therefore this: there might have been a second gun in the shooter's car; a second gun was found at Ruiz's girlfriend's house; Ruiz therefore might have had access to that gun. Given the deference we must afford the trial court's ruling, we cannot say that the court abused its discretion by admitting the evidence or that its admission rendered the trial fundamentally unfair.

DISPOSITION

The judgment is affirmed.

CROSKEY, Acting P. J. and KITCHING, J., concurs.

FootNotes


1. It is not clear from the record on what day Johann Montoya was attacked. He reported the attack to the police on May 11, but it is unclear if that was the same day he was attacked or if it had happened several days before, on May 8.
2. All further undesignated statutory references are to the Penal Code.
3. Count 3 was dismissed.
4. Each defendant joins in the other's arguments, to the extent applicable.
5. In construing defendants' imprecise first argument, the People argue that defendants do not challenge the STU's use under Kelly; rather, they contend that other aspects of the dog trailing evidence failed to satisfy Kelly. We rely on the record to clarify the issues. At the 402 hearing, the trial court asked counsel to agree that the Kelly portion of the hearing concerned only the STU, namely, whether the STU reliably picks up scent from an article, and that the second part concerned whether there was a foundation to admit the dog-scent identification evidence. Defense counsel concurred with that characterization, although defense counsel added that although they did not challenge the STU's ability to pick up a single scent, they did challenge its ability to pick up multiple scents. On appeal, however, defendants do not argue that the STU cannot pick up multiple scents.

They instead argue that dogs, as opposed to the STU, cannot differentiate multiple scents. This, however, is a foundational issue, not a Kelly issue. To the extent defendants try to reframe this and the issues about the dog-scent evidence under Kelly, that is not how they were presented in the trial court. Other than the STU's ability to pick up scents, the court and the parties framed the remaining issues as foundational ones. Therefore, we analyze defendants' contentions under the cases discussing the foundational requirements for dog-scent identification evidence and not under Kelly.

Although we find that defendants have not properly raised any issue under Kelly, we note that Kelly applies to novel devices or processes. (Kelly, supra, 17 Cal.3d at p. 30; People v. Willis (2004) 115 Cal.App.4th 379, 385 (Willis).) A new technique is subject to a three-part test of reliability: First, the technique is considered reliable in the scientific community; second, the witness testifying about the technique must be a qualified expert on the subject; and, third, the person performing the test used correct scientific procedures. (Willis, at p. 385.)

6. The court said about Kelly: It deals with "problems of general acceptance in the scientific community of inanimate scientific techniques, rather than specific recognition of one animal's ability to utilize a subjective, innate capability." (People v. Craig, supra, 86 Cal.App.3d at pp. 915-916.)
7. Stockham oversees the human-scent team, which provides canine resources throughout the United States.
8. There are two types of blind tests: single and double. In a single blind test the handler doesn't know what the outcome should be, and in the double blind test nobody knows what it should be.
9. Hamm has been able to confirm approximately 40 of Bojangles's cases out of 300.
10. There could be, defendants point out, problems with some of Bojangles's confirmed cases in that perhaps Hamm relied on a false confession or a faulty eyewitness identification as confirmation of Bojangles's conclusion. There was, however, extensive cross-examination about the confirmed cases, and this argument goes more to the weight of the evidence rather than to its admissibility.
11. That evidence is summarized at Section I.
12. Evidence Code section 1101, subdivision (a), prohibits the admission of other crimes evidence for the purpose of showing the defendant's bad character or criminal propensity, such evidence is admissible against a defendant "`when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act.'" (People v. Catlin (2001) 26 Cal.4th 81, 145; see also Evid. Code, § 1101, subd. (b).)
13. Defendants suggest that CALCRIM No. 375 should have been modified as follows: "The People presented evidence that the defendant committed other offenses that were not charged in this case. [¶] The People presented evidence of other behavior by the defendant that was not charged in this case. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offenses/acts). Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the uncharged offenses/acts, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not: [¶] The defendant was the person who committed the offenses alleged in this case. [¶] The defendant acted with the intent to <[insert] specific intent [required] to prove [the] offenses alleged> in this case]. [¶] The defendant had a motive to commit the offenses alleged in this case. [¶] The defendant knew <insert knowledge required to prove [the] offenses alleged> when he/she allegedly acted in this case. [¶] . . . [¶] The defendant had a plan or scheme to commit the offenses alleged in this case. [¶] . . . [¶] In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offenses and acts and the charged offenses. [¶] Do not consider this evidence for any other purpose. [¶] Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime. [¶] If you conclude that the defendant committed the uncharged offenses/acts, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of <insert charges>. The People must still prove each charge and allegation beyond a reasonable doubt."
14. Ruiz incorrectly suggests there was no evidence he participated in hitting the male Hispanic and therefore there should have been an instruction limiting the use of this evidence against him. Detective Wotherspoon testified that he saw Elias in the car at 7:00 p.m., but he couldn't recall if Ruiz was in the car. Officer Jackson, however, testified that he was surveilling Elias just after 7:00 p.m., and Officer Jackson did identify Ruiz. From this, it was reasonable to infer that Ruiz was in the car with Elias during the prior incident.
15. Defendants also argue that evidence connecting Ruiz to the .32 caliber gun found at his girlfriend's house was not "evidence of gang activity." We agree, but it wasn't admitted for that purpose. Because it was not admitted as evidence of an uncharged act or misconduct, defendant's argument is inapplicable to the gun evidence.

Ruiz also argues that there was no evidence he was involved in the assault on Johann Montoya, and therefore his testimony should have also been subject to CALCRIM No. 375. Montoya's testimony that he was jumped sometime in early May by unidentified Villa Boys was not offered as an uncharged act against either Ruiz or Elias. It was offered to show that Montoya, in the process of reporting that assault to the police, mentioned he saw a gold Dodge Intrepid driven by Elias on the day of the shooting. Montoya was familiar with Villa Boys, as he was one himself.

16. Defense counsel objected to admission of evidence of the .32 caliber gun before trial, and the trial court indicated that the prosecution would have to make a further showing before it would be admitted. The evidence, however, was thereafter admitted without further objection or discussion.

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