People v. Desantiago

Full title: THE PEOPLE, Plaintiff and Respondent, v. ELEAZAR DESANTIAGO et al.…

Court: Court of Appeals of California, Second Appellate District, Division Eight.

Date published: Jul 30, 2003

No. B153447 (Cal. Ct. App. Jul. 30, 2003)

Opinion

B153447.

7-30-2003

THE PEOPLE, Plaintiff and Respondent, v. ELEAZAR DESANTIAGO et al., Defendants and Appellants.

Geoffrey R. Pope for Defendant and Appellant Eleazar De Santiago. Walter R. Urban for Defendant and Appellant Francisco Marin. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General and Ellen Birnbaum Kehr, Deputy Attorney General, for Plaintiff and Respondent.

Cooper

Following a jury trial, appellants Francisco Marin and Eleazar Botello DeSantiago were convicted of the September 1997 first degree murder (Pen. Code, § 187(a)) and second degree robbery (Pen. Code, § 211) of Jay Charles Yim; appellant DeSantiago was also convicted of being a felon in possession of a firearm (Pen. Code, § 12021(a).)¹ The Peoples theory was felony-murder, and the jury found the murder was committed while appellants were engaged in the commission of the crime of robbery or attempted robbery (Pen. Code, § 190.2(a)(17).) The case was filed as a death penalty matter, but the prosecution gave notice that the death penalty was no longer being sought about a month after filing. The trial was held in 2001, almost four years after the crimes were committed. Appellants appeal the judgments of conviction.

1 The information further alleged that De Santiago had suffered a prior conviction of Penal Code section 207 on May 3, 1994, and various firearm enhancements. De Santiago admitted the prior kidnapping conviction; the jury was so instructed and was told that his felony conviction "may not be considered by you for any other purpose other than Count 3." The jury further found true allegations that a principal was armed with a firearm (Pen. Code, § 12022(a)(1)) as to the murder and robbery counts; and that DeSantiago personally used a firearm in the commission of both offenses (Pen. Code, § 12022.5(a)(1).

As to DeSantiago, we shall reverse the personal use findings and count 3 for insufficiency of evidence. As to both defendants we shall reverse their convictions because of the trial courts exclusion of testimony by a proposed defense expert. Upon remand and prior to any new trial in which evidence relating to the scent transfer unit (STU) is used, there must be a Kelly hearing on the STU.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Charlie Yim, the owner of Village Liquor in Carson, was shot to death on September 18, 1997, by the asphalt parking lot of his business. He had deposited checks and then withdrawn $ 24,000 in twenty and one hundred dollar denominations at a bank in Koreatown earlier that day, an almost daily occurrence given the check cashing part of his business. He put the cash into his briefcase. Dr. Won Kim, a friend from church whose office was on the second floor of the bank, had lunch with Yim that day, as Yim did almost every day after going to the bank. Yim was shot in the parking lot of his liquor store, and his briefcase with the money was missing.² The detectives found two expended shell casings at the crime scene.³ No one saw the actual shooting. The issue at trial was the identity of the assailants.

2 Over $ 600 was in Yims wallet and another $ 60 to $ 70 was in his pants pocket. His car was locked, and the alarm was set. Detectives found a 9 millimeter semiautomatic handgun in a bag wrapped in a towel in the locked truck. There was no briefcase at the crime scene.

3 The two bullets were removed from Mr. Yim at the autopsy were the same 9 millimeter caliber as the casings found at the crime scene. The gun was not recovered.

The assailants, identified as two Hispanic men, fled the scene racing away, "screeching," in a red or burgundy colored car.⁴ A car matching that description stopped, screeching, at the corner of 215th Place and Martin Street, about a quarter to a half mile from the shooting, and two Hispanic men got out of the car.⁵

4 The liquor store cashier testified that two Mexican "kids" he had not seen before came into the store about 30 minutes to an hour before the shooting and were looking at the video cameras used for security in the store. A regular check cashing customer saw two Hispanic men in a car in the nearby gas station before the shooting. When he left the store, that car had moved and as the customer waited in his car, he heard shots.

5 Aldair Ruiz Escobedo, a felon convicted of spousal abuse, testified that he owned the car for one day in 1997 and sold it to Pablo Hernandez for $ 900. He had exchanged the car for a Ford Crown Victoria at an auction and purportedly then sold the car to Hernandez, whom he met at a Laundromat that day. Ruiz Escobedo believes he was paid in $ 100 bills for the car. DeSantiagos defense implicated Pablo Hernandez in the charged crimes.

Maria Medina, eating dinner at her nearby home, saw them get out of the car in a hurry and rush to get everything they had, removing their shirts.⁶ Witnesses saw the driver remove a glove and a light blue shirt, which he threw into the car, and saw the passenger take off a dark T-shirt and perhaps a glove and throw them inside.⁷ Maria Medina saw the passenger holding a black or dark briefcase, which he got from the back seat of the car. A small gray car driven by an Hispanic man pulled up; both men who had been in the Honda jumped into the back seat, and the gray car drove off. Within minutes after they fled, police arrived at the scene.

6 Maria Medina testified that the Hispanic driver "wasnt very tall," had short hair and was not thin, "as the passenger was." She did not recall any facial hair on the driver but does not consider a mustache being any kind of facial hair. She testified that the driver was young, probably in his 20s, and wore a light blue shirt, which he removed as he got out of the car and threw into the car; a white t-shirt was underneath. The driver did not look like a gangster type. She also saw the driver or passenger remove a light colored glove and throw it into the car. The passenger was younger, taller, and thinner than the driver. They both had short hair, but Ms. Medina could not remember if it was shaved. She told the detective she saw the passenger take off a blue shirt as well; both shirts looked light blue. She could not tell if the passenger threw his shirt into the car or on the floor. Her mother, Margaret Medina, testified that the driver took off a dark shirt and threw it into the back seat of the car; she thought he was a clean cut young boy or man 16-19 years old, not too tall, 150-160 pounds, and with dark hair. She did not see the passenger, described as 16 to 19, with bleached hair, thinner than the driver and with a lighter complexion, wearing a white t-shirt, and a briefcase in his hand, toss anything. She did not recall seeing any gloves.

7 A two-way radio switched to "on" was found between the two front seats. The officers found a white t-shirt in the back of the car; three latex gloves, a cotton glove, and some powder that appeared to have come from the latex gloves.

Deputy Ponce de Leon found a burgundy, 4-door 1989 Honda Accord with a license plate bent upward only blocks away from the crime scene near the Medina residence.⁸ Appellant Marins left thumb print was found on the hood of the burgundy Honda left near the intersection of 215th and Martin, about a quarter to half a mile from the scene of the shooting. Several fingerprints and palm prints on the exterior of the car and one on the interior rear view window were those of DeSantiago.⁹

8 No one at the liquor store had reported a license plate that was bent up, nor did anyone report a license number or the broken headlight and body damage found on the Honda. There were no fingerprints on the plate. The rear windows on the passenger window and the passenger window behind the driver were tinted.

9 Twenty latent prints were lifted from the vehicle. Five were from inside the car, including the rear view mirror, the top of the inside driver window, the drivers seatbelt buckle and passenger seatbelt buckle, and inside right front passenger door window. Three or four of those were identifiable. Fifteen prints were recovered from outside the car; the majority, some of which were palm prints, were good prints. The print inside the vehicle was matched with DeSantiago during trial, and his counsel unsuccessfully asked for it to be excluded.

Three latex gloves (one in the drivers seat and a pair in the back seat) with powder, some of which was in parts of the car, and a two-way radio in the "on" position, were found in the car. The police found a white T-shirt in the back seat of the vehicle¹⁰ and a blue, button-down work-type shirt on the grass adjacent to the stucco wall of a house about 20 to 30 feet from where the Honda was located.¹¹ No DNA tests were done on the shirts.

10 Detectives admit that one of the witnesses says she saw a blue shirt, not a white t-shirt, thrown into the back of the car.

11 Detective Biehn took scent pad evidence from the blue shirt. Detective Loman, who had never used the device before September 19, 1997, demonstrated the Scent Transfer Unit machine (STU), a dustbuster-like machine. The machine is cleaned, a gauze pad is applied with a fresh set of latex gloves, and the machine is used for about a minute; then one removes the gauze pad and places it inside two sealed plastic zip-lock bags. Detective Biehn appeared to follow the instructions. Detective Loman followed the same process with the white shirt, booking it at homicide evidence and then to the lab the following morning. The sealed gauze pads were placed in a freezer.

Detective Scott saw the impression of two buttocks from an individual sitting on the hood. The ignition switch was intact and void of any ignition keys. The passenger and drivers windows were down. The car has since been stored; it was never reported stolen, nor did anyone try to claim it.

Maria Medina, who lived right across the street from where the Honda was found, identified a photograph of appellant Marin as looking like the PAGE CONTAINED FOOTNOTES PAGE CONTAINED FOOTNOTES PAGE CONTAINED FOOTNOTES PAGE CONTAINED FOOTNOTES driver of the burgundy Honda on October 20, 1997.¹² DeSantiago was in another of the four 6-packs shown to Ms. Medina, but she did not identify him.¹³ No one placed Marin at the shooting scene or said they saw him with a gun; no gun was recovered. Following his initial testimony, the liquor store cashier was recalled and testified that he believed he has seen appellant Marin before, but "cannot tell you exactly where." People at the scene of the shooting described the driver as male Hispanic, late teens to early 20s, dark hair or shaved-down hair, wearing from white t-shirts to light blue shirts; no one said he had a mustache.

12 When interviewed the night of the shooting, Maria Medina told police she saw the people in the burgundy Honda. She also told law enforcement she saw the driver take off a light blue shirt and throw it in the back and saw the passenger take off a light blue shirt and discard that in the street. Thus, she told Detective Logan that both discarded shirts were the same color. There was no blue shirt recovered from the car; only a white t-shirt was in the car. The blue shirt recovered on the grass was a dark blue. Ms. Medina was inside her house looking through a window when she observed the vehicle, driver and passenger. At trial, years after the event, she testified she "couldnt tell you for sure" if he is the driver and "couldnt swear to it," but "thats what he looked like to me at the time" and he is in the picture she chose at the time.

13 Detective Scott prepared two photo six-packs, one with Marin and one with DeSantiago. Margaret Medina was shown two 6-packs and did not identify anyone.

On September 20, 1997, Detective Scott was notified that prints on the Honda matched Marin and Eleazar Barasas, aka Eleazar Botell aka Eleazar DeSantiago. He obtained photographs of DeSantiago and Marin and found addresses for suspect DeSantiago at 219 North St. Louis, # 2 and 3312 Ganahl Street and addresses for Marin at 641 Cummings and 1947 1/2 Sheridan.

Appellants were arrested on September 28, 1997. Marin was arrested at his grandmothers house, 641 North Cummings; DeSantiago was arrested near the intersection of First and Soto in Boyle Heights. Officers said he was told he was under arrest for murder but was not told who the victim was or the circumstances of the case. DeSantiago was taken to the East Los Angeles Sheriffs station, awaiting the arrest of Marin and a wired surveillance car.

A search warrant executed at De Santiagos home at 3312 Ganahl produced $ 2700 in new one hundred dollar bills in the bedroom. A search of PAGE CONTAINED FOOTNOTES Marins mothers house, 1947 1/2 Sheridan, produced latex gloves and other medical supplies.¹⁴ Nothing was found at Marins grandmothers house. Marin was seen at Nancy Corrals apartment, 219 North St. Louis Street, where detectives found documents in Marins name and documents involving the payment of child support by Marin.¹⁵

14 The deputy was told that these supplies were for a deceased grandfather and a young lady with cerebral palsy who lived in the house. The latex gloves found in the Honda were a different type of glove than that found in Marins home.

15 There was testimony that Nancy Corral (Marins girlfriend and DeSantiagos sister) filled out a questionnaire in August 1994 and had obtained a child support judgment against Marin, who did not contest paternity, in June 1997 for $ 173 a month until the child was 18. He was sub-served at the Sheridan Street address. His bill showing a child support debt of $ 2,394.91, was closed for current support on September 26, 1997, about a week after the murder. Marin and Corral went to the District Attorneys family support office where Ms. Corral filed an affidavit requesting that the case be closed and waiving any money owed to her.

After Marin and DeSantiago were arrested on September 28, they were placed in a surveillance vehicle that had a hidden recording device. The arresting officer did not tell them the specifics of the subject homicide. The audiotape of their conversation was played for the jury. They discussed where they were arrested, and Marin stated the police said they had his fingerprints. DeSantiago said he was told he was being arrested for murder. Marin was told he was being accused of the "same thing, robbery and murder of, . . . fuckin store. I don- I dont know anything. I dont know anything." De Santiago later said he was also being accused of robbery and murder. Toward the end of the tape, Marin said he would ask to make a phone call and said "I think from here they11 take us to Carson." DeSantiago questioned Carson, and Marin replied "To the Carson police station. Thats where the, I mean, thats where the, the fuckin dead guy is and everything, there. And from there to County [jail]."

Evidence of another tape recording was also introduced. After obtaining a court order, Deputy Sheriff David Hebert tape recorded inmate DeSantiagos conversations with relatives who were visiting him in jail on October 4, 1997. In the lengthy conversation, they discussed the searches that had taken place, including money and photographs that had been seized; and DeSantiago mentioned the police had no gun but had his prints in the car. He explained: "Well, I . . . drove the car a week, thats how long I had it. . . . I drove it. It has prints because I . . . did drive it for a week. I had it home with me." While he did not think it proved anything, he regretted that if he went to court, he would "have to say that the [red] car was Armandos . . . ." They discussed explanations for possession of the car by DeSantiago and Armando Hernandez. DeSantiago seemed to suggest that they could say someone picked it up to sell it around the sixteenth or the seventeenth, which was the day before the homicide. He hoped he was incarcerated only for a parole violation and not for anything else.¹⁶

16 DeSantiago asked about "Frankie" and was told he got out of jail on Wednesday. Returning to Frankie later in the conversation, DeSantiago stated: "Its good that Frankie got out. I well, what did he do? Im saying."

Finally, dog scent evidence that is at the core of this appeal was introduced.¹⁷ On September 19, 1997, Detective Biehn extracted scent from the blue shirt recovered in this case. He used sterile gauze and the contested scent transfer unit. On October 16, 1997, the scent pads taken from the white t-shirt and blue work shirt found in or near the burgundy Honda were given to Trilo and Scarlett, dogs trained to trail scent.

17 The evidence was admitted over defense objection. We have summarized the Evidence Code 402 hearing on the admissibility of that evidence below.

The trainers and their dogs met on St. Louis, between Cesar Chavez and First Street in Boyle Heights. They had been given no specific information about the case. They went to St. Louis, then Cummings, Sheridan, and Ganahl.

Dog handler Peter Casas explained the process of training dogs to trail human scent, the certification process, and successful trailings by his dog. Casas trained Trilo, a Labrador retriever, beginning when the dog was about 12 weeks old. They became "mission ready" in 1995 and started working as an unpaid volunteer with the Sheriffs department. Trilo certified in trailing every year until 1998, when Casass workload became too heavy to train adequately. The oldest trail he had trained on was 8 days old.

Ted Hamm, who was the most qualified person on the team and had testified about 20 times before, was a fulltime volunteer and one of the senior dog handlers with the Sheriffs Department. He described to the jury the process of training and certifying dogs, including Scarlett, as well as his own experience in the field.¹⁸ Hamm also provided information to the jury about the scent transfer unit, which he has used since about 1996.¹⁹ In his opinion, Scarlett worked the same from an article of clothing as from a scent pad. The oldest scent she had trailed was about 4 1/2 weeks old. She has never made a mistake in trailing; he as a handler has caused "a couple."²⁰ She has provided information that exonerated suspects.

18 Objections were sustained and his answers stricken regarding his training experience with dogs trailing people from the same family and even identical twins.

19 Hamm has trained the Los Angeles Sheriffs Department Homicide Bureau on how to use the STU. He knows that other agencies also use the device.

20 Hamm opined that Scarlett was correct in identifying something that directly relates back "a very high percentage," about 70 percent.

Hamm especially likes bloodhounds for this task because of their superior sense of smell. Scarlett had never failed her test for certification and was still being used at the time of trial. She had provided information in missing person investigations "quite a few times." ²¹ When given a scent pad of someone not with them or with no scent on it, she "doesnt go anywhere." PAGE CONTAINED FOOTNOTES

21 Hamm also gave an example of a successful criminal investigation, where Scarlett trailed scent from a piece of concrete used to beat a teenager to death. She indicated a house, and those individuals confessed to the crime. Following this case, she has been successful in several criminal investigations.

On October 16, the dog handlers were told they were looking for a scent match but were given no details regarding directions or witness statements. They met in Boyle Heights and were given scent pads. Trilo went up one side of St. Louis and there were no scent matches. They came back the same side of the street and then crossed to the west side, where he was again "fired," i.e., given the scent pad. There were a lot of dogs and some people in the area, but Trilo "seemed to be more direct" and went up the steps at 219 North St. Louis (Nancy Corrals apartment building), turned into the doorway in the center of the apartment building and indicated on a particular apartment. They went to the end of the corridor and saw some people sitting around in the back yard; Trilo did not hit on any of them. Casas considered the apartment a positive match; Trilo was not interested in going anywhere else.

Casas and Trilo then went to Sheridan, where Casas again fired Trilo. The dog went down the block and indicated on a house, 1947 1/2 Sheridan (Marins mothers house). According to Cases, "he gave me a real strong indication." Casas encouraged Trilo to continue down the street; they went about two more houses but Casas felt there was not any more scent. As they came back towards the house on Sheridan, Trilo picked up a scent on his own, cut across the street diagonally and continued down the block. When they came to Cummings, Trilo turned right and on his own showed an interest in two houses on opposite sides of the street, including 641 Cummings (Marins grandmothers house). After returning to the car, they were asked to return to Sheridan, where a suspect had been seen. Casas refired Trilo and they walked up the street; when the dog got to Marin, who was being interviewed by Detective Scott, Trilo stopped which meant "hes pretty much found his person hes been looking for."²² They next went to Ganahl, but Casas was not asked to fire up Trilo at that location.

22 According to Casas, if there were no scent on the scent pad, Trilo probably "would have just stood there, he wouldnt have gone at all." If Trilo did not find a matching scent, he would do what he did on the east side of St. Louis, just walk down the street and give no indication.

Before Trilos arrival, Detective Scott knocked on Marins door on Sheridan Street and asked Marin to step outside. Trilo came to the location, came right next to Marin and stopped.

Hamm was given scent pad 3A. He was not told about any particular address and had no idea if either defendant lived at that location or were at that location on that date. There was no indication on the east side of St. Louis. Scarlett showed some interest at 219 North St. Louis but continued past the building; on the way back that side of the street, she again showed interest at 219 St. Louis, going up the stairs to the front of the building and appearing to want to go into the building, Nancy Corrals apartment building. At the driveway for the address, she again showed interest and proceeded down the driveway to the back of the building, where she indicated she wanted to go inside. That was the only address on the street where there was any indication of interest in matching scent. In Hamms opinion, it was fairly old scent; Hamm told the detective it was probably ten to 15 days old.²³

23 After Hamm told Detective Scott his opinion, Scott informed Hamm that the suspect associated with that scent pad had been in custody about two weeks.

On the 1900 block of East Sheridan, Scarlett showed no interest in any of the houses on the block in either direction. She did show some interest in an older blue Plymouth parked at 1947 1/2 East Sheridan, Marins mothers house. Hamm felt there was probably a scent match either in or on that vehicle but not at any of the addresses. Hamm saw Detective Scott speaking with an individual at that address; he brought Scarlett over, but she had no interest in the individual.

At the 3300 block of Ganahl, Scarlett showed a lot of interest in the whole block, with the most interest centered on a house at 3312 Ganahl, DeSantiagos home. There were very aggressive dogs on both sides, so she would not enter the property. Hamm formed the opinion that even though there was a lot of scent in the area, it did appear to be older, just as with the vehicle and the Sheridan address.

Marin was rearrested in March 1999.

Pretrial motions on dog scent trailing

The People sought admission of "scent evidence;" the defense objected that the dogs were not trained properly. An Evidence Code section 402 hearing began on July 9, In its initial observations, the court stated it believed that the dog scent evidence might go to weight and not necessarily admissibility and that the majority of authority seems to hold that the probative value far outweighs the prejudice.

Edward Hamm, a bloodhound handler and volunteer with the Sheriffs Department, trained the dog Scarlett to identify and follow or locate human scent since she was four months old. He had not taken any college courses in how to train dogs for scent detection but had been to seminars. With bloodhounds, the dog is bred to do this and is also trained. He gives her the scent and the command; if there is a match, she goes and if there is not she does not go.²⁴

24 Hamm concedes that if he encourages her long and hard enough, she will "take trail onto something totally other than what I have given her." In addition, if the scent pad is contaminated by whatever it landed in, the dog could pick up the different scent. Wind can affect her trailing. Rain or water seems to enhance the scent for dogs, not wash it away. The scent is probably stronger at the destination, where a person may have spent some time. Given a hypothetical of a man who had had intercourse with his girlfriend who was menstruating, which Marins attorney claimed to be the case, Hamm testified he did not believe Scarlett would be attracted to that. He also opined that Scarlett could pick up a scent from an item in an undisturbed car and pick out the person who drove the car if the person was present.
Scarlett does not follow animal scent. In Hamms opinion the other dogs at or near the 3312 Ganahl Street address did not affect her ability to identify a matching scent.

Hamm described the process of training Scarlett for over a year, when she took and passed a certification test. He trained her about 325 to 350 hours the first year. She has also passed every certification test, given annually or biannually, since. She is one of the lead dogs in the Sheriffs Department.

The certification is based on standards for the sheriffs search dog team for trailing dogs, essentially the same as the statewide California Rescue Dogs Association. Hamm believed that the test in other departments is "essentially the same." The test was to complete a trail working a person she had not worked before on a trail about a mile long and about a day old. About 50 percent of the testing is where neither the trainer nor the dog know where the person is. After her use in the case at bench, she received certification in the city.

Hamm did not know the qualification of the Board of Directors of the search dog team that sets the standards for certification. There is no certain number of hours for training prior to the examination. He has seen a lot of dogs not qualify. He was currently working with the FBI developing a criterion program for them; but he could not say that he was "endorsed by the FBI." Scarlett has been used as an example in training with the FBI and other law enforcement agencies.

Differentiating tracking from trailing (which is what Scarlett did) and scent lineup, he testified that Scarlett was specifically trained to identify a particular human scent; her trainer gave her the scent of somebody "and its her job to follow and/or identify that person." That is, she is given a scent pad to work with and is trained to trail and find that scent. She has been involved in finding missing persons by scent. Moreover, Scarlett had been involved in over 400 crime investigations, primarily homicides. Hamm was not aware of any wrong identifications by Scarlett, although he did once prompt her to follow a trail she did not seem to want to follow. She has had her identifications confirmed by other evidence.

Until the time of her work in the case at bench, Scarletts oldest training trail had been about two weeks old; Hamm could not say how many times she had been trained on a trail that old. In his experience with her, the nearer Scarlett is sniffing to the ground, the older the trail.²⁵ Records of her training in 1996 show problems with her trailing on particular dates. In a training lineup in October 1997, she was 60 percent accurate. She was sometimes distracted by joggers or other dogs. Her accuracy was not affected by her being hungry or well fed; she will react to a reward even if well fed.

25 According to Hamm, one needs to rely on him specifically to interpret what Scarlett is doing. Another trainer would "not be able to correctly read" his dog.

Scarlett is trained to trail, not in cadaver search or air scent, though the dog "will inherently do some" by identification of scent in the air. When she finds the right person she may try to jump up on them or usually will try to find their hands; in training, she gets a food reward when she finds the right person, and that is the person who gives her the reward. Her identification of a location, which is what was involved in this case, is "certainly more subtle. Its just matter of her indicating interest in a location. But nothing like a bark, or anything like that." During training, he knows when she is correct; during an investigation, he has no idea if she is correct when she makes an indication on a location or person. Hamm considers their success rate to be "very high." Before the trailing in the case at bench, Hamm estimated Scarlett had been called in 25 to 30 criminal investigations.

When she was tracking in the case at bench, cars were going back and forth, some people were out, and another dog was present. There were a number of dogs at the third location. In his opinion, there was scent at the locations that matched scent from the scent pad.

Peter Casas, a former senior dog handler on the Sheriffs Department, had worked with the California Rescue Dog Association (CARDA), a private organization in which he attempted to train a dog named Fudge, a Labrador retriever who did not have the characteristics to do that type of work; he pulled her out of the program.²⁶ He came up through the ranks as a dog trainer²⁷ and was "mission ready." While with the Sheriffs Department, Casas trained Trilo, a Labrador retriever, since birth; it "became obvious he was going to do very well as a trailing dog . . . . That seemed to come natural for him." Trilo was the only dog Casas, who was working full time outside of his responsibilities with Trilo, trained from 1992 through October 1997. He spent 18-20 hours a month training the dog in trailing and cadaver training.

26 Casas helped produce standards for evaluation of cadaver dogs.

27 The sergeant is fulltime, is an authority, and supervises the others. The other volunteers are part-time.

Casas gave the dog a scent article, and Trilo was trained to pick up the scent when it is put in front of him. Then Trilo was trained to check for scent matches in the area. Casas began training Trilo when Trilo was about 12 weeks old. He first determined that the dog was not easily distracted or scared by loud motion; Trilo did very well as a puppy. Then he trained with runaways, having a person the dog can see run and hide behind a bush at the same time the trainer was presenting a scent article to the dog. Next, the trainer takes a step further and has the person run out and go to a location 15-20 feet away. The dog learns to match scent. Throughout training, the trail and time get longer.

Casas was undergoing training as a handler, and Ted Hamm was one of the three more senior dog handlers at the department.²⁸ Trilo was formally trained twice a month but training at home was three or four days a week. He was trained in scent discrimination or trailing "where we can present a scent article to him and he will look for a matching scent" and trail to its source.²⁹ He was trained in various environments so he could follow a scent on a trail of vegetation or a trail of cement sidewalk, in rain or various weather conditions. He was trained to disregard "critters" and other dogs. The oldest training trail for Trilo prior to October 1997 was 7 to 8 days old. In training and certification there was always a person at the end of the trail.

28 There was an annual seminar in Barstow with speakers from throughout the state.

29 Trilo was also a cadaver dog, but is out of certification because Casas left as a volunteer and retired the dog. Trilo was first certified in about 1995. That test involved successfully trailing an individual for about a mile in a canyon, along trails across the creek bed, and over to the other bank; the trail was about 20 hours old. The dog was recertified in 1996 and 1997; none of his certifications was on city streets. Before retiring, in 1998 or 1999, Trilo did not pass his last certification test in trailing and was not deployed anymore. Casas had been too busy to keep Trilo in training, and the dog "wasnt staying focused" and failed to locate his victim in the time period. Trilo stayed certified in cadaver and found a deceased person in 1998. Casas kept training logs but does not have them anymore. At one point, training forms were collected, but that stopped when it became very difficult for the person collecting all the data.

Casas gave rewards of praise or a tennis ball, not food, and could tell when the dog was "on scent."³⁰ When Trilo wanted to let Casas know there was a match, he would basically stop trailing; if a person was there, he would stop and sit down next to him or just stop searching. With a trailing dog like Trilo, an "alert" does not really apply, and the dog does not give some indication he has found a person, as an area dog (which is trained to pick up on any human scent) would do. The dog is trained not to be distracted by other dogs or people, though Casas would not want his dog working near a dog in heat during training.

30 Casas cannot tell the age of the scent by Trilos reaction.

Casas testified that Trilo was successful in helping to locate a person who was threatening suicide and, on another occasion, overdue hikers. Trilo also helped in a homicide prior to this case, using scent drawn from a knife by using the scent pump and trailing the individual out into the desert, again around the crime scene, and finally to a residence that belonged to the suspects friend. To Casas knowledge, Trilo has not misidentified anyone since being certified.

Trilo had been involved in 4 or 5 criminal investigations before this one. On September 18, 1997, during the trailing in this case, another dog attacked Trilo. Casas and his partner had to use pepper spray, but Trilo continued to work and indicated on an apartment. That did not affect Trilos ability to identify.

Casas did not know if there had been studies on contamination of trails. He believed a truck might spray water and wash everything away. He also believed a trail might diminish in time, but had "no idea" if the trail in the instant case would diminish with precipitation, cars driving by, etc. Casas knows that Trilo did not "indicate" on one side of the street but did on the other side in the case at bench. On the 200 block of North St. Louis, Trilo walked into the apartment building, up the stairs and down the hall to a particular apartment. Casas had not been briefed by the detectives as to any location before he scented the dog and had not been told there was possibly an old scent.

Trilo then went to another location, where Casas was not told what house they were looking at. Trilo indicated twice on the same house, 1947 1/2 Sheridan.³¹ The dog then picked up a scent and cut across the street diagonally, went around the corner onto Cummings and indicated on a house at 645 and then at 647 Cummings. Casas later learned that one of the houses belonged to the suspects grandparent and the other, to a friend of the suspect. Getting back in the vehicle, he received a call saying the individual was standing outside the house and they wanted him to run the dog again. They returned to Sheridan, and Trilo basically stopped trailing in front of the individual standing outside talking to the detective. Casas later learned that individual was arrested and charged with a crime.

31 Deputies had seen Marin at this location a couple of times and served a search warrant. Several times, Marin drove a short block and a half away to 641 North Cummings and to 219 North St. Louis, about 3/4 of a mile away, where he just walked in.

Following Mr. Casas testimony, the court again indicated that the evidence was admissible and the defense questions go to weight and not admissibility. Moreover, the court found that Kelly-Frye ³² does not necessarily apply: "Its not a science. We cannot perform this over and over again. It is not a science in that sense but it is." The handler knows the dog.

32 People v. Kelly (1976) 17 Cal.3d 24, 130 Cal. Rptr. 144, 549 P.2d 1240; Frye v. United States (D.C. Cir. 1923) 54 App. D.C. 46, 293 Fed.1013. The Federal Rules of Evidence have superseded Frye (Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, 587, 125 L. Ed. 2d 469, 113 S. Ct. 2786), but California has retained the Kelly test (People v. Leahy (1994) 8 Cal.4th 587, 591-592, 882 P.2d 321 [compliance with Kelly required prior to admission of results of horizontal gaze nystagmus field sobriety test; case remanded for a Kelly hearing]), and "our state law rule is now referred to simply as the Kelly test or rule" (People v. Bolden (2002) 29 Cal.4th 515, 545.) Nevertheless, the trial court and many California courts continue to refer to the Kelly-Frye rule.

Ms. Miller stated that if the evidence was going to be admitted: "my defense expert could be here. Hes gonna have to say overnight. He flew in from Sacramento." The court left any tactical decision to defense counsel. And if the defense expert was not going to come, the court was going to call for a jury panel.

Pretrial motion to qualify defense expert on dog scent evidence

The next day, Vanness H. Bogardus III was called by De Santiago as his expert regarding dog training and dog scent. The People immediately asked for Sgt. Bill Thompson to sit in on Bogardus testimony to assist the prosecutor. The prosecutors understanding was that Bogardus, with whom Sgt. Thompson had been trained, "is not qualified at all to testify as an expert on this subject and actually has been excluded several times from testifying on this as an expert witness."

Bogardus was an adjunct faculty as a professor of law enforcement instruction at Sierra College in Rocklin, California, teaching primarily firearms. He was also a consultant to attorneys on issues of wrongful death, use of force, excessive force, police dog training and usage, police firearms usage and training and police procedures and tactics. He was a Marine during the Vietnam war and served as a deputy sheriff in Los Angeles County for 17 1/2 years beginning in 1971; he honorably retired with a service-connected medical disability.³³ He has attempted to qualify as an expert in other criminal trials.

33 Bogardus was transferred out and then went on disability for a year before he left in 1988. In 1985, soon after his dog certified, he was transferred to San Dimas. He could not recall if he spent some time in a psychiatric hospital but did not think he had. He denied going on stress leaving testifying he developed a precancerous condition of his stomach and was not allowed to go back to work.

Bogardus began training with police dogs in 1980 as the first inaugural handler for the departments patrol dog program.³⁴ During the next six years, he worked with Marco, 14 months old when Bogardus was assigned to him, and Nando.³⁵ He received training through seminars and other providers and in 1985 certified as a staff leader according to the standards of the state police school for service dog handlers in Germany and as a police dog trainer and manager according to the international standard. Bogardus was the first American police officer to perform the street certification rating called the PSP or police protection dog proof standard. He was also the first deputy sheriff to have certified a police dog according the any standard, qualified for police patrol, forensic tracking, search and rescues. Both of his dogs could find suspects, even in summer months.

34 He trained Marco, a patrol dog not a tracking dog, beginning June 1 and began taking calls about September 1. During the four months of training, they did "obedience work and runaways and protection work" inside and outside of buildings. He trained his dog as a fight and bite dog; Marco was able to find and bite a suspect with 5 to 6 months of training, 40 hours a week. Even though Marco was never certified, he went out on calls. Bogardus kept logs of Marcos training, but no longer had them. Marco stopped working in the fall of 1982.

35 Bogardus bought Nando, a 2 1/2 year old male German shepherd, when Marco was going to go out of service. Nando was already a Shuthund 1, a police dog imported from Germany, and Bogardus continued to train him. He was permitted to use Nando immediately on calls and worked through November 1988, when Bogardus left service. He certified Nando in March 1985 according to the international standard but not by CARDA. The dog was recertified by a handler dog team in 1987 and 1988. Bogardus dogs were German shepherds, not bloodhounds; but he is a licensed chief testing judge for the American Temperament Testing Society, and thus evaluated but did not train bloodhounds. He does not believe bloodhounds are bred for scent, to use their noses to identify things. Bloodhounds were not accepted at the time he was working on the Sheriffs Department; they then used only German shepherds. He has trained a Labrador, which he then sold and it became a working dog for the City of Los Angeles Housing Authority. He was also a trainer for handler dog teams that used Labradors.
He was not present during the trailings in the case at bench, nor had he ever seen Scarlett or Trilo working.

The County of Los Angeles provided in-house training. Bogardus paid for trainers to come to Los Angeles and hosted a training program for officers from across the United States. About six were in the class, and then Bogardus was certified in PSP.³⁶ The German official commanded the police dog school at Suckenbrock, commanded 600 handler dog teams in his state, and provided training to about six other countries in the free world.

36 According to Bogardus, he ultimately qualified his dog "as a forensic tracker, according to the P.S.P. standard, which was a shorter track but also in the location of evidence."

The police dog training course was a base of 600 hours of training in all disciplines, actual hands-on training with the dog and other dogs and teams. Bogardus also received training in forensic tracking, where the dog trails by sniffing the air and the ground. Bogardus has a library of more than 100 books, including the primary book in 1972, Scent and the Scenting Dog by William Syrotuck. After leaving the Sheriffs Department in 1988, Bogardus continued his training and procured and trained people to use dogs, e.g., those interested in a drug-free work place.

Bogardus explained the difference in air scenting, tracking and trailing. In his opinion, "trailing" is a combination of tracking and air scenting. He is familiar with CARDA (California Rescue Dog Association) and their standards for trailing dogs.³⁷ According to Bogardus, the certification standard ranges from a mile and a half to a 2-mile trial, where the trails are between two and four hours old.³⁸ The area search standard is for a 40-acre block, with 160-acre areas where the dog is expected to find a person within a 4-hour time frame. He was also familiar with the National Bloodhound Association, with standards similar to CARDA. Police standards call for tracking a one-mile track that is 3 hours old and would represent the international standard.

37 He acknowledges that police use people other than CARDA-certified people. Another state would find any assistance useful in a search and rescue context.

38 Bogardus testified the two to four hour age of a scent trail is established "because a scent is lost rather quickly in all settings." While mist might liven up a scent, "rain will obliterate a scent." In his opinion, the potential of a dog successfully to work a trail more than four hours old is "very low." In addition, in his opinion based on his experience, training, and the literature he has reviewed, heat (which causes a dog to pant rather than sniff with the nose and causes skin rafts to dissipate) adversely affects a dogs ability to trail.

A dog sniffs the article, but it is hard to know exactly what is being sniffed; Bogardus opines the dog smells the shirt. The experts believe that skin rafts do not last more than just a few hours. Bogardus does not believe a dog can locate a person based on having an object presented to him so he can sniff it. Answering the courts question, Bogardus testified that the potential for a dog to detect the scent of a person who lived at a location "would be better."³⁹ PAGE CONTAINED FOOTNOTES

39 On redirect, he clarified that in his opinion, the scent would not be appreciable for the dog if the person had been gone from the home for a week or five days. In addition, the dogs would be highly affected by a female dog in heat, and might be affected by urine from another dog in the area or strong cooking odors if the dog was hungry. A dog might also be attracted to a person who had just had sex.

There was no scent identification when Bogardus was training his dogs to be a patrol dogs. Bogardus received training in scent discrimination work according to the German police dog standard. He obtained training on his own and then hosted the 600-hour training course in Los Angeles. He trained Marco to do scent identification, but not to the standard of giving the dog a scent and having the dog find a matching scent. He did not give his dogs a scent to start them. Bogardus had never watched a deputy give a dog a scent pad and watched the dog go on a trail and match or identify a suspect. He had never personally used a S.T.U. machine or seen the search and rescue team work by giving dogs articles from lost hikers.⁴⁰

40 Bogardus had seen others extract a scent, put it from an article onto a scent pad with a scent transfer unit machine.

During cross-examination of Bogardus, the court stated it was "prepared to play it out" but had "heard enough information from both sides to have a pretty good idea as there where I think Im going on this." When the prosecutor argued he was not qualified because he had not done the scent identification involved in the case at bench, the court decided to hear more testimony.

According to Bogardus, a handler can intentionally manipulate a dog to respond. He also opined that dogs cannot track over concrete and asphalt, as shown in scientific studies dating back to 1928. The part-time volunteers in the sheriffs department do not usually meet the rigorous standards of the Schutzhund sport standards. Dogs do not understand spoken language but do understand inflection of the voice and body language. Although he has heard anecdotes from handlers, Bogardus had seen no literature stating that dogs can indicate how old a scent could be. A book by Syrotuck is generally considered a primary text in dog handling.

In addition, according to Bogardus, the premise of trailing, that a dog can sniff an article and follow to the owner of the article, has been disproved. In the 1928 Carl Halster experiments, dogs could not find even their own handlers by being given an item and put on the track. His own tests at the East Los Angeles Station showed the scent was pretty well obliterated after just a few minutes. This result was consistent with his real world searches with sheriffs dogs and later, the 1928 study, and information from a trainer at the German police dog school.

Attack on scent transfer unit

The day after the court concluded that Bogardus would not be allowed to testify as an expert in this matter, with a jury panel on its way to the courtroom, DeSantiagos counsel filed a motion to exclude scent pad evidence, terming the scent transfer device "nothing more than a glorified dust-buster" and arguing it had been excluded under Kelly-Frye in another county. Counsel also asked for a continuance to get another expert in dog scent evidence, someone from the east coast who would qualify. The court stated it had continued the matter at defense request to bring in Bogardus; these other issues "should have been addressed earlier before you ever announced ready to go to trial in this matter." The prosecutor objected to the timeliness of the motion, arguing the scent transfer unit was part of the initial police report and the motion should have been made, at the latest, when all the experts were present for the 402 hearing that had concluded the previous day. Moreover, one of the detectives that extracted one of the scent pads was scheduled to leave Friday for ten days for Mexico regarding a tragedy in his own family.

The court decided to proceed to trial and any issues regarding the STU could be addressed to witnesses during trial. The unit was known early on, and the matter had been continued at defense request on at least two occasions for the services of a defense expert. The motion was introduced about ten minutes before the court came out and following two court days on the prior pretrial motion, after the court indicated that "we would be proceeding to trial this morning."

During voir dire, defense counsel again raised her filing of the motion and stated "it is in the nature of a 402 motion." The court stated it understood and believed it can make a determination based on the papers filed. The following day, the court heard argument on the defense motion to exclude scent pad evidence based on inadmissibility under Kelly-Frye. The prosecutor argued that the unit does not even come under the Kelly-Frye test.

The court denied the motion to exclude the STU unit, adopting the argument of the prosecutor and concluding the STU is not subject to Kelly-Frye. Moreover, if Kelly-Frye were applicable, the court determined the STU is not a new or novel scientific technique.

Defense

Neither defendant testified.

DeSantiago relied on a January 14, 1998, law enforcement surveillance that targeted other suspects, including Pablo Hernandez. In relation to the investigation of the instant case, Detective Mark Lorenz and four or five others went to a location at 912 East Adams where they saw two male Hispanics in a conversion van.⁴¹ The team followed the van, which was making unusual and evasive movements and had dealers plates with no numbers, to Normandie Way and Redondo Beach Boulevard, a business area.⁴² A small gray Nissan was parked on the east side of Normandie Way, across the street from the van. A male Hispanic got out of the gray car and went to the van. The surveillance team summoned a marked sheriffs unit to make the initial contact; then the surveillance deputies joined them. The two men from the van and one from the gray car were arrested. A Motorola radio, 158FXE9336, was found in the gray car. Another Motorola radio (158FXG8619), a cellular phone, a set of binoculars, and an address book were found in the van. Both radios were the same type found in the Honda associated with the Yim homicide; that serial number was 158FXGB561. No gun was found in either vehicle.⁴³

41 Lorenz identified the driver of the van, Pablo Hernandez, 55" and 140 pounds, as the person in the lower right-hand corner of Peoples exhibit 7. His passenger was Eliano Mendoza, 57", 200 pounds. The third person at the location, Juan Carlos, was 53", 150 pounds.
Lorenz had first seen Pablo Hernandez on an earlier date with two females at the Adams address. He never saw Hernandez at the St. Louis, Cummings, or Ganahl addresses. He had been told there was a relationship between Hernandez and DeSantiago. He was never told that Hernandez was a suspect in the Yim murder; he was told that about appellants.

42 He later learned the van was registered to Lorena Hernandez.

43 Lorenz had also been involved in the September 1997 surveillance of the St. Louis address, where he had seen defendant Marin "many times." Lorenz had also seen Marin at the Sheridan address, but not as frequently as at the St. Louis address. Although involved at surveillance on Cummings, Lorenz never spotted Marin there; he learned from others that Marin was at that location. Marin never was seen going to work, but occasionally was with his young daughter.

Lorenz first saw DeSantiago in September 1997 at the Adams location where he later saw Pablo Hernandez. Although never himself seeing DeSantiago at the Ganahl address, other officers saw him there. Lorenz knew DeSantiago was in custody during the January 1998 surveillance.

Marins 14-year-old niece and other relatives provided his alibi of watching her, her sister and Marins baby daughter on the day of the shooting. She testified that in 1997, her mother took her to school and then went to work at a law firm. Either her uncle or, when he could not make it, her grandmother would take her home from school at 2:30. She would then stay at her uncles until her mother got home, at 5:20 or 5:30. After they left, he would go pick up his girlfriend Nancy at school at 9 or 9:30 p.m..⁴⁴ She could not remember who picked her up September 18, 1997, when she was in the fifth grade, but thinks it was probably her uncle and they were probably with him at his house around 5 p.m. that day. Her uncle also picked up her sister every day at 11 a.m., a time Ms. Vasquez was in school.⁴⁵

44 On cross-examination, she identified photographs of Marin, his girlfriend Nancy, and Nancys brother Eleasar De Santiago. She knew that Rosalba was Nancys sister and Pablos wife. Irma is Nancy and Rosas mom, and Lorena Hernandez is DeSantiagos girlfriend.
She also corroborated that Marin came over to her grandmas at 1947 a lot and to the Cummings address.

45 According to Lorenz, however, the surveillance log does not indicate Marin went to a school to pick up his niece in the afternoon.

Nancy Corral was Marins girlfriend and DeSantiagos sister. Marin moved in with her in March or April 1997 at her St. Louis Street address and lived with her until he was arrested. Before Marin moved in with her, he stayed with his grandmother at the Cummings address. Nancy Corral worked at a law firm and went to school at night. Marin stayed at home watching his one-year-old niece Jessica and daughter Darla, and Corral was the breadwinner. He also occasionally picked up Valerie at school. Ms. Corral called Marin every day at about 4:30, before leaving work about 5. She does not know if she called him on September 18 or where he was at 5 p.m. that day. However, it is 25 miles from her home to Carson, and Marin was home when she got there at 5:30.

According to Nancy Corral, Marin is 510" or 511" and 185 pounds; he has had a mustache the entire ten years they have been together.⁴⁶ She has never seen him drive a stick shift car. She knew Pablo Hernandez PAGE CONTAINED FOOTNOTES as "Armando." Her sister Rosalba Corral was living with Pablo Hernandez on Adams in 1997, and they have five children together.

46 She thought DeSantiago was about the same height as Marin, maybe a little taller. Marins mother thought he was 58" or 59". She agreed he had not shaved his mustache in the past six years and that he cannot drive a stick shift vehicle.

Yvette Munoz, 20 at the time of trial, lived at the St. Louis address in an apartment across the hall from Marin and Nancy Corral and knows both appellants.⁴⁷ She and other neighbors were ordered out of the building by police when appellants were arrested. She was pregnant in September 1997 and was home all day; Marin was there with his little daughter all the time. He also took care of his niece in the afternoons. Munoz never saw appellant leave without the children.

47 However, she testified that Marin was living with Nancy Corral when Munoz moved into the building in 1996, contrary to Corrals testimony that Marin moved in with her in 1997.

Sylvia Marin, appellants mother, testified she lived at 1947 1/2 Sheridan Street and saw her son almost every day, usually at her home and sometimes at his, where he was staying with Nancy on St. Louis. Her daughter, disabled with a chromosome abnormality, lived with her. The nurses used Latex gloves to change her, to feed her, "for everything."⁴⁸ The gloves and medical supplies found in her house were used for her daughter. Sylvia Marin had a $ 100 bill for emergencies, in case her daughter needed emergency care.

48 The company sent different types of Latex gloves to her house.

According to his mother appellant Marin took care of that sister, who required help all the time; he would help lift her twice a day when she ate, about 9 a.m. and then about 1:30 or 2 in the afternoon. He always brought his daughter Darla and niece Jessica with him; he was the babysitter for Cindys daughter Jessica.

His mother concedes telling the detectives that she had seen her son driving a small red car that belonged to Nancy Corrals stepfather, Marcello. She does not remember if her son came to her home on September 18, but she is "sure he was." However, being "so nervous," she did not tell the detectives who interviewed her that he was at her home twice a day, every day. Nor did she know where he was about 5 p.m. on September 18, 1997. She would usually call him about 5:30 when her daughter was also there; he would answer the phone.

Cynthia Marin, appellants sister, lived on City View Street in September 1997.⁴⁹ For the past 13 years, she worked as a secretary at a law firm and her brother took care of her children, Valerie Vasquez and Jessica Treto, while she worked. He watched the little one and picked up the big one from school at 2:30 or 2:45, using her car to do so. She described their daily routine, including his help with their disabled sister.⁵⁰ She paid her brother $ 50 a week for his help with her children. She would call several times a day, including before leaving at about 4:50 p.m. She testified that she called him at about 4:45 or 4:50 on September 18 and he answered the phone; when she got to his house about 5:20, he was there with her kids and his little girl. Nancy Corral arrived soon after. Appellant then took Nancy Corral to night school after 6 p.m.

49 During trial, she was living at 641 North Cummings.

50 She admitted that at times her mother would pick up Valerie at school, if her brother could not do it. At times, she would pick up Valerie.

She spoke to Detective Mike Scott on September 29.⁵¹ He showed her pictures and said a murder had taken place in Carson and asked if she recognized anyone in the pictures, which included DeSantiago, Armando, and Indio.⁵² She told Scott that her brother was with her at his house at 5:20 on September 18 and that he picked up Valerie every day. Moreover, she in fact was with him at that time at the St. Louis address, which is about 35 miles from Carson.

51 According to the rebuttal testimony of Sgt. Joseph Purcell and Detective Scott, Scott was not involved in executing the search warrant on Sheridan on September 29. Purcell and not Scott interviewed Marins mother and others that date. Marins mother said her son came over on occasion, not twice a day. She also said she had seen her son driving a red car, which belonged to Marcello, the stepfather of appellants girlfriend Nancy Corral. Purcell saw the disabled girl in the front room.

52 She knew Pablo Hernandez as Armando and believed he had a gray car. Detective Scott showed her a photograph of the red Honda, and she told him she saw DeSantiago driving a red car in early September and that it was "probably that one." According to Detective Scott on rebuttal, he did not take those photographs until January 14, 1998, so could not have shown them to Cindy Marin on September 29. When he spoke to her on that date, she did not say she paid her brother to pick up her child every day from school, nor did he later contact Scott with that information. He showed her Peoples 23 and she told him she had seen DeSantiago driving that car about three weeks before. He denied telling Cynthia Marin that he did not believe her brother did it but that her brother knew who did. No one told Scott during the investigation that someone other than Marin murdered and robbed the victim. Scott did not recall Cynthia saying she saw her brother driving the red car.

New trial motions

Appellant DeSantiagos motion for new trial was based on a challenge to the dog scent evidence and the PAGE CONTAINED FOOTNOTES STU as well as the courts refusal to allow the defense expert regarding dog scent evidence. Marins motion for new trial was based on juror misconduct, an issue not raised on appeal, and the weakness of the eyewitness identification.⁵³ Marins declaration in support of the motion for new trial stated there was no DNA testing of the evidence and asked that the court order the test be authorized.⁵⁴ The court decided that the motion was untimely in that any such request should have been made before trial. The court did not postpone sentencing on the basis of the defense request for DNA testing.

53 Marin also added a paragraph to his eyewitness argument contesting the trial courts decision refusing the evidence of defendants expert on dog scent and tracking evidence.

54 His counsel thereafter filed a motion for DNA testing under Penal Code section 1405.

In denying Marins motion for new trial court stated "that basically there was in my opinion sufficient credible evidence to sustain a verdict in this matter . . . ." The court reviewed its rulings on the dog scent issues and concluded that its position had not changed.

CONTENTIONS ON APPEAL

Appellant De Santiago contends: 1. The trial court abused its discretion in admitting the dog scent evidence and thereby denied appellants federal and state due process right to a fair trial. 2. The trial court denied appellants federal and state due process right to a fair trial when it denied appellants offer of expert testimony. 3. The evidence at trial is insufficient to support the finding that appellant personally used or had possession or control of a firearm. 4. The trial court erred when it sentenced appellant to two life terms without the possibility of parole.

Appellant Marin contends: 1. The scent evidence collected was unreliable.

2. Admitting the "scent pads" was improper. 3. The eyewitness testimony was unreliable. 4. Defendant has a right to DNA testing on the shirt collected from the Honda.

DISCUSSION

1. The matter must be remanded for a Kelly hearing on the STU.

Both appellants contest the admission of the dog scent evidence. Appellant De Santiago contends the trial court abused its discretion in admitting the dog scent evidence and thereby denied appellants federal and state due process right to a fair trial. Appellant Marin contends the scent evidence collected was unreliable, and admitting the "scent pads" was improper.

The People sought admission of "scent evidence;" the defense objected that the dogs were not trained properly. We have set forth in detail the Evidence Code section 402 hearing on dog scent evidence. Given a proper foundation, California courts like the majority of states (see Evidence of Trailing by Dogs in Criminal Cases, 81 ALR5th 563) have long permitted evidence of dog tracking, trailing, and other scent identification.⁵⁵ (See People v. Malgren (1983) 139 Cal. App. 3d 234, 237, 188 Cal. Rptr. 569, disapproved on other grounds in People v. Jones (1991) 53 Cal.3d 1115, 1144-1145, 282 Cal. Rptr. 465, 811 P.2d 757; People v. Craig (1978) 86 Cal. App. 3d 905, 150 Cal. Rptr. 676; 1 Witkin, Calif. Evidence (4th ed. 2000) Opinion Evidence, § 77, pp. 623-624.)

55 But see Taslitz, Does the Cold Nose Know? The Unscientific Myth of the Dog Scent Lineup (1990) 42 Hastings L.J. 15.

The Malgren court, supra, 139 Cal. App. 3d 234, 238, concluded "that the following must be shown before dog trailing evidence is admissible: (1) the dogs 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. [Citations.]" (See also People v. Gonzales (1990) 218 Cal. App. 3d 403, 414, 267 Cal. Rptr. 138 [refining Malgren rule of corroboration to allow corroborative evidence to support the accuracy of the tracking itself, not necessarily to link the accused to the crime.])⁵⁶

56 Moreover, the jury in the case at bench was instructed with CALJIC No. 2.16 regarding dog-tracking evidence: "Evidence of dog tracking has been received for the purpose of showing, it if does, that the defendant is a perpetrator of the crime of Murder, in violation of Penal Code Section 187(a) and Robbery, in violation of Penal Code Section 211. This evidence is not by itself sufficient to permit an inference that the defendant is guilty of the crime of Murder and Robbery. Before guilt may be inferred, there must be other evidence that supports the accuracy of the identification of the defendant as the perpetrator of the crime of Murder and Robbery.
"The corroborating evidence need not be evidence which independently links the defendant to the crime. It is sufficient if it supports the accuracy of the dog tracking. [P] In determining the weight to give to dog-tracking evidence, you should consider the training, proficiency, experience, and proven ability, if any, of the dog, its trainer, and its handler, together with all the circumstances surrounding the tracking in question." (Italics added.)

We agree with the trial court that a proper showing was made in the case at bench. Thus, we reject appellants claims regarding the unreliability per se of dog trailing evidence. Moreover, the trial court did not err in concluding the trainers in the case at bench had provided a proper foundation.

We are more concerned with the use of the scent transfer unit. As the court noted in People v. Craig (1978) 86 Cal. App. 3d 905, 915-916, 150 Cal. Rptr. 676, the reliability of dog trailing is distinguishable from the admissibility of new scientific techniques. "In the area of new scientific techniques, especially dealing with electronic gadgetry, one piece of testing apparatus is essentially the same as another of similar design, make and purpose. When dealing with animate objects, however, we must assume each and every unit is an individual and is different from all others. Within one breed of dog, or even with two dogs of the same parentage, it cannot be said each dog will have the same exact characteristics and abilities. Therefore, while the reliability of a machine can be duplicated and passed down the assembly line with relative ease, the abilities and reliability of each dog desired to be used in court must be shown on an individual basis before evidence of that dogs efforts is admissible. We simply cannot say all dogs can trail a human, or even that all dogs of specific breeds can do so. [P] Therefore, rather than attempt to identify certain specific criteria as being indicative of the ability of dogs, in general, to trail a human, we choose to require each particular dogs ability and reliability be shown on a case-by-case basis. We are not merely assuming a well-trained dog can trail a human; we say that this ability is a fact which, like other facts, may be proven by expert testimony."

The converse of the analysis in Craig is that a proper scientific foundation should be proven for new scientific techniques. The scent transfer unit is a scientific instrument that should be subject to empirical analysis. (See People v. Kelly, supra, 17 Cal.3d 24, as explained and distinguished in People v. Ayala (2000) 24 Cal.4th 243, 281: Kelly, supra, "set forth certain "general principles of admissibility" of expert testimony based on new scientific techniques, including the following "traditional" two-step process: "(1) The reliability of the method must be established, usually by expert testimony, and (2) the witness furnishing such testimony must be properly qualified as an expert to give an opinion on the subject. [Citations.] Additionally, the proponent of the evidence must demonstrate that correct scientific procedures were used in the particular case." [Citations, italics omitted . . . .])" (Accord People v. Mendibles (1988) 199 Cal. App. 3d 1277, 1292, 245 Cal. Rptr. 553 [permitting use of colposcope with attached camera to examine external genitalia of victims of child sexual abuse without a showing under Kelly.])⁵⁷

57 The court in People v. Mendibles, supra, 199 Cal. App. 3d 1277, 1293, listed as "characteristic of those new techniques subject to the Kelly requirements of reliability and acceptance in the relevant scientific community . . . such devices or analyses as hypnosis-induced testimony ([People v. Shirley (1982)] 31 Cal.3d 18), voiceprint identification (Kelly , supra, 17 Cal.3d at p. 30), new systems of blood typing (Huntingdon v. Crowley (1966) 64 Cal.2d 647, 653-656 [51 Cal.Rptr. 254, 414 P.2d 382]), the use of truth serum or sodium pentothal (People v. Jones (1959) 52 Cal.2d 636, 653 ), the use of a scanning electron microscope to detect particles of gunshot residue (People v. Palmer (1978) 80 Cal. App. 3d 239, 250-255 [145 Cal.Rptr. 466, 1 A.L.R.4th 1056]), or bite-mark identification (People v. Slone (1978) 76 Cal. App. 3d 611, 619-625 )." (See also People v. Smith (2003) 107 Cal.App.4th 646, 652, 131 Cal. Rptr. 2d 230, 234, finding a new technique accepted as reliable in the relevant scientific community.)

Although Kelly has been held to apply to scientific principles, methodologies and techniques, not the specific devices used to implement them (People v. Nolan (2002) 95 Cal.App.4th 1210, 1215 [since the methodology of urinalysis has been accepted, the specific device used to perform urinalysis is not subject to Kelly]; People v. Bury (1996) 41 Cal.App.4th 1194, 1202 [same with respect to devices for testing breath for alcohol]), the rule just stated has not been applied to new devices used to conduct a new type of test. The scent transfer unit is neither an established device used to conduct a new type of test or a new device used to conduct an established type of test. (People v. Mitchell (2003) Cal.App.4th [2003 WL 21673749, 10-13].)

The handlers and the law enforcement personnel involved in this case reported that the STU was applied to the shirts; the gauze pads used in the STU were then each put into a plastic freezer bag, sealed, placed into another plastic freezer bag, and then frozen until needed. Several weeks later, the dogs involved in the case at bench were each given a gauze pad from which the STU had allegedly extracted the scent from shirts discarded near the Medina home and trailed to locations associated with appellants and, in the case of Marin, to appellant as he stood with detectives.

The dog handlers were understandably unable lay a Kelly foundation. They are not scientists or engineers; they know their dogs but not the mechanism of the unit that is said to extract scent which the dogs can then use for trailing. The chronology of the challenges to the dog scent evidence and the trial courts decisions on admissibility did not compel the prosecution to prove the scientific basis of what appears to be a new scientific technique.

As we next explain, the judgments must be reversed for error in excluding testimony by the proposed defense expert. Upon remand and prior to any new trial in which the STU evidence is utilized, a Kelly evidentiary hearing must be held.

3. The trial court abused its discretion in excluding Bogardus expert testimony.

Following the trial courts decision to admit the dog scent evidence, DeSantiago called Vanness H. Bogardus III as his expert regarding dog training and dog scent. The People objected that Bogardus was not qualified and had been excluded from testifying as an expert witness by other courts.

We have set forth above a detailed account of the hearing regarding Bogardus expertise. His background in training dogs is impressive. He began training with police dogs in 1980 as the first inaugural handler for the departments patrol dog program. He received training through seminars and other providers and in 1985 certified as a staff leader according to the standards of the state police school for service dog handlers in Germany and as a police dog trainer and manager according to the international standard. Bogardus was the first American police officer to perform the street certification rating called the PSP or police protection dog proof standard. He was also the first deputy sheriff to have certified a police dog according the any standard, qualified for police patrol, forensic tracking, search and rescues.

Bogardus has a library of more than 100 books, including the primary book in 1972, Scent and the Scenting Dog by William Syrotuck. After leaving the Sheriffs Department in 1988, Bogardus continued his training and procured and trained people to use dogs, e.g., those interested in a drug-free work place.

A dog sniffs the article, but it is hard to know exactly what is being sniffed; Bogardus opined the dog smells the shirt. According to Bogardus, the experts believe that skin rafts do not last more than just a few hours; he does not believe a dog can locate a person based on having an object presented to him so he can sniff it. Answering the courts question, Bogardus testified that the potential for a dog to detect the scent of a person who lived at a location "would be better." Moreover, the dogs could be distracted by a dog in heat, urine from another dog in the area, strong cooking odors, or a person who had just had sex.

There was no scent identification when Bogardus was training his dogs to be a patrol dog. Bogardus received training in scent discrimination work according to the German police dog standard. He obtained training on his own and then hosted a 600-hour training course in Los Angeles. He trained his dog Marco to do scent identification, but not to the standard of giving the dog a scent and having the dog find a matching scent. He did not give his dogs a scent to start them. Bogardus had never watched a deputy give a dog a scent pad and watched the dog go on a trail and match or identify a suspect. He had never personally used a STU machine or seen the search and rescue team work by giving dogs articles from lost hikers; he had seen others use the STU.

According to Bogardus, a handler can intentionally manipulate a dog to respond. He also opined that dogs cannot track over concrete and asphalt, as shown in scientific studies dating back to 1928. The dog could also be attracted to scents from debris that affects the sample. The part-time volunteers in the sheriffs department do not usually meet the rigorous standards of the Schutzhund sport standards. Dogs do not understand spoken language but do understand inflection of the voice and body language. Although he has heard anecdotes from handlers, Bogardus has seen no literature stating that dogs can indicate how old a scent could be. A book by Syrotuck is generally considered a primary text in dog handling.

In addition, according to Bogardus the premise of trailing, that a dog can sniff an article and follow to the owner of the article, has been disproved. In the 1928 Carl Halster experiments, dogs could not find even their own handlers by being given an item and put on the track. His own tests at the East Los Angeles Station showed the scent was pretty well obliterated after just a few minutes. This result was consistent with his real world searches with sheriffs dogs and later, the 1928 study, and information from a trainer at the German police dog school.

"A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates." (Evid. Code, § 720, subd. (a).)" (People v. Kelly, supra, 17 Cal.3d 24, 39." "The qualifications of an expert witness are finally determined by the trial judge." (3 Witkin, Cal. Evidence 4th ed.2000, Presentation at Trial, § 190, p. 251; Evid. Code, § 720, Law Revision Commission Comment.)

The trial court has broad latitude in determining the qualifications of an expert (People v. Davenport (1995) 11 Cal.4th 1171, 1206-1207, 906 P.2d 1068) and its ruling will be overturned only for a manifest abuse of discretion (People v. Bolin (1998) 18 Cal.4th 297, 321-322, 75 Cal.Rptr.2d 412, 956 P.2d 374.)

As explained above, Bogardus had impressive and extensive experience in the handling and manipulation of dogs and their ability regarding scent. Although he had not personally used a scent transfer unit, such experience was not critical to his ability to assist the trier of fact in understanding a pertinent area of factual inquiry, which is the purpose for an expert witness. Like the trial court, we are concerned about his response that he "could not recall" if he spent some time in a psychiatric hospital but did not think he had. One would expect that a person would know he or she either had or had not spent time in a psychiatric hospital. His answer would certainly provide fodder for cross-examination. But, by itself, and without any further information about the reason for any psychiatric confinement or possible effect on his expertise regarding dog scent, his answer goes to the weight and not the admissibility of his proposed testimony, and we conclude there was an abuse of discretion in not allowing him to testify. Given his skepticism about the type of dog trailing used to identify both Marin and DeSantiago and his knowledge of manipulation by trainers and the importance of the evidence in the identification, we cannot find any error in this regard to be nonprejudicial. Therefore, we must reverse the judgment of conviction and remand for further proceedings.

4. The evidence at trial is insufficient to support the finding that appellant DeSantiago personally used or had possession or control of a firearm.

One of two suspects shot the victim. De Santiago contends the record does not support the jurys finding of his personal use of the firearm in counts 1 and 2 or his possession or control of a firearm, necessary to convict on count 3 (possession of a firearm by an ex-felon). We agree.

The jury was instructed that the term "personally used a firearm" means that "the defendant must have intentionally displayed a firearm in a menacing manner, intentionally fired it, or intentionally struck or hit a human being with it." In closing argument, the People argued that De Santiago was the passenger and the passenger was the person seen with a briefcase. The prosecutor then argued that "defendant DeSantiago is the one who got out of the car, fired the weapon, took the briefcase and got in . . . ." Even if we accept that those who saw the suspects when they fled the Honda for the gray vehicle saw the passenger and not the driver with a briefcase, neither those witnesses nor any other witness saw the shooting itself.⁵⁸ From the record before us, we do not know if the passenger grabbed the briefcase from the victim and the driver fired the weapon; if the passenger took the briefcase and fired; or indeed if the driver took a more aggressive role in the shooting and taking the briefcase and then returned to the vehicle. We therefore must strike the personal use findings.

58 Moreover, Maria Medina saw the passenger retrieve the briefcase from the back seat of the Honda, not from the front passenger side of the vehicle.

Appellant DeSantiago contends that, just as there was no evidence of his personal use of the firearm, so there is no evidence of his "possession or control" of the firearm and his conviction for possession of a firearm by an ex-felon must be reversed. Possession of a firearm may be actual or constructive.

As explained in People v. Pena (1999) 74 Cal.App.4th 1078, 1083-1084, discussing the meaning of "immediate personal possession" of a weapon in section 11550(e), "A defendant possesses a weapon when it is under his dominion and control. (See 2 Witkin & Epstein, Cal.Criminal Law (2d ed. 1988) Crimes Against Public Peace and Welfare, § 1003, p. 1135.) A defendant has actual possession when the weapon is in his immediate possession or control. He has constructive possession when the weapon, while not in his actual possession, is nonetheless under his dominion and control, either directly or through others. (People v. Wong Fun (1940) 39 Cal. App. 2d 211 [214, 102 P.2d 774]; United States v. Covert (6th Cir.1997) 117 F.3d 940, 948.) [P] A defendant has personal possession of a firearm when he himself has the weapon. (People v. Mendival (1992) 2 Cal.App.4th 562, 574 .) Personal possession precludes the imposition of vicarious liability that may flow to a technically unarmed principal when another principal in the offense has a weapon. [Citation.] (People v. Bland (1995) 10 Cal.4th 991, 998, 898 P.2d 391, fn. [343 Cal. Rptr. 2d 77, 898 P.2d 391] (Bland).) It does not mean the weapon must be carried on the defendants person. (People v. Mendival, supra, at p. 574; People v. Superior Court (Pomilia ) (1991) 235 Cal. App. 3d 1464, 1468-1471 .)" Furthermore, "the mere presence of the accused with others in a vehicle in which contraband is found or from which it is thrown is not sufficient evidence, standing alone, to justify a conviction of possession [citations].)" (In re Elisabeth H. (1971) 20 Cal. App. 3d 323, 330, 97 Cal. Rptr. 565; accord Williams v. Superior Court (1974) 38 Cal. App. 3d 412, 422, 112 Cal. Rptr. 485.)

On the other hand, "there is no doubting the fact that it is possible for two or more persons to possess one weapon under Penal Code sec. 12021, . . . This is equally true of any contraband article. In People v. Toms (1958) 163 Cal. App. 2d 123 [329 P.2d 90, 93] a package of narcotics was found on the ground, at the side of an automobile in which one of the defendants was seated. The other defendant was outside of the car but only a few feet distant. Both were convicted under the theory of joint constructive possession" (People v. Hunt (1963) 221 Cal. App. 2d 224, 227, 34 Cal. Rptr. 421.)

The gun in the case at bench was not recovered. No gunshot residue tests were introduced. There was no evidence the firearm was on the drivers side or the passengers side of the red Honda or in a place where constructive possession by both assailants might be inferred. Therefore, the conviction on count 3 must be reversed.

5. The eyewitness testimony was not unreliable.

Appellant Marin contests the reliability of the eyewitness testimony. He argues that Ms. Medina saw the driver from a distance, had never seen him before, gave a lukewarm identification from the photographic six-pack, and was unable to swear at trial that Marin was indeed the person she saw.

The jury was properly instructed on the burden of providing identity based on eyewitness identification (CALJIC No. 2.91) and the factors to consider in proving identity by eyewitness testimony (CALJIC No. 2.92.) CALJIC No. 2.92 "properly highlights the factors relevant to defendants concerns about the reliability of eyewitness identification testimony in a particular set of circumstances." (People v. London (1988) 206 Cal. App. 3d 896, 907, 254 Cal. Rptr. 59, quoting People v. Wright (1988) 45 Cal.3d 1126, 1153, 248 Cal. Rptr. 600, 755 P.2d 1049.) The validity of Ms. Medinas identification of Marin was a question for the trier of fact.

6. The only DNA issue raised in the trial court is reviewable by petition for writ, not by appeal.

On cross-examination of Detective Loman, De Santiagos counsel asked if there had been any DNA testing of the blue shirt. She argued the lack of DNA testing of the shirts in her closing argument. At that point, neither counsel had requested DNA testing of the shirts. Only following Marins conviction did his counsel made a motion for DNA testing under Penal Code section 1405.⁵⁹

59 Penal Code section 1405 sets forth a procedure for a "person who was convicted of a felony and is currently serving a term of imprisonment" to make a written motion for DNA testing before the trial court that entered the judgment of conviction. Subdivision (j) makes the grant or denial of the motion reviewable by petition for writ of mandate or prohibition filed within 20 days of the courts order.

Given the reliance of the prosecution in the case at bench on the scent evidence from the shirts discarded where the suspects changed vehicles in order to prove the highly contested issue of identity, DNA testing that would prove the shirts did not belong to defendants would be pertinent. If a proper motion conforming to the requirements of section 1405 is filed, the trial court is required to grant the motion. However, subdivision (j) (formerly subdivision (h)) of section 1405 makes the grant or denial of the motion reviewable by petition for writ of mandate or prohibition filed within 20 days of the courts order and provides the order "shall not be appealable."⁶⁰

60 If there is a retrial, defense counsel may seek appropriate discovery relating to any DNA evidence on the shirts.

7. We need not reach the issue of whether the trial court erred when it sentenced appellant DeSantiago to two life terms without the possibility of parole.

DeSantiago was sentenced to consecutive two life terms without the possibility of parole, plus 4 years for personal use of a handgun during the murder.⁶¹ He contends that People v. Hardy (1999) 73 Cal.App.4th 1429, which concluded that such doubling of an LWOP term was permissible, was incorrectly decided and that this court should follow the reasoning in People v. Smithson (2000) 79 Cal.App.4th 480, 501-504, which reasoned that because an LWOP sentence is not a determinate term and does not contain a minimum term, it is not subject to the doubling requirement of Penal Code section 667, subdivision (e)(1). (Id. at p. 503.)⁶² Both cases were brought to the attention of the trial court, which chose to follow "the law as is current in our particular district." Because we have reversed the judgments of conviction, it is unnecessary to resolve the conflict between Hardy and Smithson.

61 As to the robbery count, DeSantiago was sentenced to the mid term of 6 years, ordered to run concurrent to the sentence in count 1. The court did not impose sentence for personal use or principal armed as to the robbery count as it would constitute double use. The court did not impose a term for 12022(a)(1) on count one for the same double use reasons. The four-year sentence imposed on count 3, ex-felon in possession of a firearm, was ordered to run concurrent to count 1. Sentences in counts 2 and 3 were ordered stayed pursuant to section 654. De Santiago received credits for 1453 actual days time served but no good-time/work-time credits.

62 Both Hardy and Smithson rely on their construction of Penal Code section 667, subd. (e)(1), and related statutes. Subdivision (e)(1) reads: "If a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction." (Italics added.)

DISPOSITION

As to DeSantiago, we reverse the personal use findings and reverse the conviction on count 3 for insufficiency of evidence. As to both defendants we reverse the remaining judgments of conviction and remand for further proceedings. Upon remand and prior to any new trial in which evidence relating to the scent transfer unit (STU) is used, there must be a Kelly hearing on the STU.

We concur: RUBIN, J., BOLAND, J.