Opinion
2d Crim. No. B195779
4-22-2008
THE PEOPLE, Plaintiff and Respondent, v. THOMAS ARTHUR BEVERFORD, Defendant and Appellant.
Lyn A. Woodward, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Beverly K. Falk, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Thomas Arthur Beverford appeals his conviction by jury of unlawful driving or taking a vehicle (Veh. Code, § 10851, subd. (a)) and misdemeanor evading an officer. (Veh. Code, § 2800.1, subd. (a)(1)). The trial court sentenced him to two years state prison plus a consecutive 16 months in two other cases. Appellant appeals, contending that the trial court erred in denying his motion to suppress evidence (Pen. Code, § 1538.5) and admitting dog tracking evidence. We affirm.
Facts
On February 8, 2006, David Clark reported that his customized red Chevrolet Silverado truck was stolen. The truck was seen five days later at a shopping center at Petit and Telephone Road in Ventura.
Officer Mark Knackstedt saw the truck turn left onto Telephone, activated his overhead lights, and pursued the truck through a residential area at high speeds.
The truck turned left on Laramie and quickly stopped. Officer Knackstedt saw the driver and passenger jump out. The driver was wearing a white baseball jersey, blue jeans, brown boots, and sunglasses.
Officer Knackstedt chased the driver about 150 yards. The driver was ahead of him a distance of 15 to 20 yards, ran south on Burlington, turned west on Pueblo, and disappeared at the corner of Ann Arbor and Pueblo. Officer Knackstedt noticed that the side gates to the corner house at 918 Ann Arbor were open.
After officers and a police helicopter established a perimeter, the truck passenger, Kevin Henry, was arrested in a backyard. Henry said that he lived at 918 Ann Arbor with his girlfriend and that no one else was there. Keys to the house were on Henrys person.
Officer Trevor Shalhoob, a K-9 handler, arrived with Oscar, a police tracker dog. The officer saw a pair of gloves near the corner of Ann Arbor and Pueblo and directed Oscar to smell the gloves and follow the scent. Oscar led Officer Shalhoob to 918 Ann Arbor, up the driveway to a sliding glass door at the rear of the house.
Officers knocked on the front door and garage door, announced their presence, and asked the occupants to come out. A young Hispanic woman with a baby stepped out the sliding glass door. She said that no one else was in the house.
Officer Shalhoob entered and found a locked door from the kitchen to the garage. Henry told the officers that the kitchen door was the only entrance to the garage and that no one else was in the house.
Using Henrys house keys, Officer Knackstedt opened the door and found appellant on a bed in the garage. The officer immediately recognized appellant as the driver. Appellant was sweating, had a red face, and was wearing the same apparel: blue jeans and brown boots. The white baseball jersey and sunglasses were on the bed.
Waiving his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), appellant denied that he was the driver. Appellant was asked if he lived at the residence and answered "No." The police found a latent fingerprint on the truck rear view mirror but were unable to exclude appellant as the donor.
Henry testified as a defense witness and claimed that John Estrada was the driver. Henry also claimed that appellant was staying at the house as a temporary guest.
Motion to Suppress Evidence
Appellant argues that the warrantless entry violated his Fourth Amendment rights. The trial court denied the motion to suppress evidence of two grounds:
1. appellant had waived his Fourth Amendment standing and,
2. the entry was based on exigent circumstances.
On review, we defer to the trial courts factual findings where supported by substantial evidence and independently determine whether, on the facts found, the search was reasonable under Fourth Amendment standards. (People v. Leyba (1981) 29 Cal.3d 591, 596-597.) To assert a violation of a Fourth Amendment right, appellant must have a reasonable expectation of privacy in the place searched. (Rakas v. Illinois (1978) 439 U.S. 128, 140 [58 L.Ed.2d 387, 399].) Because it is a personal right, it may not be asserted vicariously. (Ibid. .)
"The touchstone of Fourth Amendment analysis is whether a person has a constitutionally protected reasonable expectation of privacy. [Citing Katz v. United States (1967) 389 U.S. 347, 360 [19 L.Ed.2d 576.] Katz posits a two part inquiry: first, has the individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable? [Citation.]" (California v. Ciraolo (1986) 476 U.S. 207, 211 [90 L.Ed.2d 210, 215].)
Henry told the officers that he lived at the house with his girlfriend and that the girlfriend and baby were alone in the house. This was confirmed by the girlfriend who met the officers at the door and stated that no else lived there or was inside. The girlfriend was surprised when the police found appellant in the garage. At the police station, appellant denied that he lived at the residence and would not say why he was in the garage. Although Henry had a set of keys to the house, no house keys were on appellants person.
Based on the girlfriends and Henrys statements, and appellants denial that he lived there, the trial court reasonably concluded that appellant lacked standing to claim that a Fourth Amendment privacy interest was violated. (People v. Rivera (2007) 41 Cal.4th 304, 308-309, fn. 1.)
The evidence also supported the finding that the entry was justified by exigent circumstances. The hot pursuit doctrine does not require that the fleeing felon be in physical view at all times. (People v. Escudero (1979) 23 Cal.3d 800, 809-810.) Entry into a home based on exigent circumstances requires probable cause to believe that the entry is justified by hot pursuit of a fleeing felon, the imminent destruction of evidence, to prevent a suspects escape, or the risk of danger to the police or other persons inside or outside the house. (People v. Thompson (2006) 38 Cal.4th 811, 818; People v. Celis (2004) 33 Cal.4th 667, 676.)
All of those factors existed here. During the foot chase, appellant rounded the corner and disappeared in front of the house. The officer saw the house side gates open and a pair of gloves in the street. After a perimeter was set up, a K-9 unit tracked the scent from the gloves to the sliding glass door. Henrys girlfriend came to the door and stated that no one else lived there or was inside. When appellant was found in the garage, Henrys girlfriend started crying and kept saying, "Whos that?" Substantial evidence supported the finding that the entry was necessary to assure the safety of occupants and the police, to prevent appellants escape, and to prevent the destruction of evidence.
Dog Tracking Evidence
Appellant next argues that the trial court erred in receiving the dog tracking evidence. Officer Shalhoob testified that Oscar had extensive training in tracking, that he had trained with the dog, and that dogs like Oscar are instinctively predatory and feed off the scent of prey. Oscar had two years experience as a tracker before undergoing a month of training with Officer Shalhoob. Oscar also received weekly maintenance training (10 hours a week).
The trial court did not err in overruling appellants foundation and Kelly/Frye objections (People v. Kelly (1976) 17 Cal.3d 24, 30-32; Frye v. United States (D.C. Cir. 1923) 293 F. 1013). Dog tracking evidence is not subject to Kelly/Fry, but does require a showing that the dog has tracking ability and is reliable. (People v. Craig (1978) 86 Cal.App.3d 905, 915.) In People v. Malgren (1983) 139 Cal.App.3d 234, the court listed five foundational requirements: "(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.]" (Id., at p. 238.)
The evidence showed that the dog was trained in tracking humans, had passed proficiency tests and trained weekly, and that dog trainers had determined that Oscar was reliable in tracking humans. Appellant argues that the last two Malgren factors were not satisfied because Officer Shalhoob used the gloves as the point of origin to track the scent. He speculates that the scent could have been the truck passenger (Henry), a neighbor, or a stranger because the gloves were lying in the street.
Officer Shalhoob directed the dog to track the scent starting from the suspects last known location, i.e., the corner of Ann Arbor and Pueblo where the gloves were found. Appellant speculates that the dog may have been tracking Henrys scent, but Henry jumped from the truck and ran in a different direction. Officer Knackstedt ran 15 to 20 yards behind the driver and lost sight of him at the corner of Ann Arbor and Pueblo. No one saw Henry run past the corner. Officer Shalhoob testified that Oscars training included cross-tracking in which the trainer intentionally tried to throw the dog off a scent by laying a different scent to cross track or divert the dog. If there were five individuals in an area, Oscar was trained to pick up their scents and the scent of the sixth person, i.e., the suspect. If Oscar was diverted by someone elses scent, the dog was trained to go back to the start point and track the scent again. Officer Shalhoob stated that Oscar exhibited no crosstracking problems and that it took less than a minute to track the scent on the gloves to the sliding glass door.
Officer Knackstedt saw the driver jump from the truck on Laramie, run south on Burlington, and then west on Pueblo to the corner at Ann Arbor. The truck passenger (Henry) ran northbound on Burlington.
Consistent with People v. Craig, supra, and People v. Malgren, supra, the jury was instructed it could not consider dog tracking evidence absent evidence of the dogs general reliability as a tracker and corroborative evidence that "the dog accurately followed a trail that led to the person who committed the crime". (See e.g., People v. Gonzales (1990) 218 Cal.App.3d 403, 408.) We presume that the jury understood and followed the instruction. (People v. Morales (2001) 25 Cal.4th 34, 47.)
The jury received a CALCRIM 374 instruction that stated: "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 or a location. [¶] Before you may rely on dog tracking evidence, there must be: Evidence of the dogs general reliability as a tracker, and 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, and its handler, together with everything else that you learned about the dogs work in this case."
There is no reasonable probability appellant would have obtained a more favorable result had the evidence been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836.) Officer Knackstedt saw appellant jump from the truck, chased him through the housing tract, and identified appellant by his hairstyle, facial features, physique, and apparel. The identification was corroborated by appellants flight to the house where the truck passenger lived. When officers entered the garage, appellant had a flushed face, was lying next to a fan to cool off the sweat, and had removed the sunglasses and baseball jersey.
The prosecutor told the jury that the dog tracking evidence merely corroborated Officer Knackstedts identification: "Oscars nose. [The] K-9 tracking. You [can] do with it what you want. Its not sufficient in and of itself for proof beyond a reasonable doubt. And that makes sense because if [the law was otherwise] all Id have to do is bring Oscar in here and he could just sit up there on the witness stand and bark at the defendant . . . a few times."
The evidence was overwhelming. Appellant received a fair trial and makes no showing that he was denied effective assistance of counsel. (People v. Osband (1996) 13 Cal.4th 622, 678.) "A defendant must prove prejudice that is a `"demonstrable reality," not simply speculation. [Citations.]" (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)
The judgment is affirmed.
We concur:
COFFEE, J.
PERREN, J.