Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. BA182395, Bob S. Bowers, Jr., Judge.
Walter R. Urban, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven E. Mercer and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, J.
Defendant Francisco Marin appeals from the judgment sentencing him to life in prison without possibility of parole for murder. He contends: (1) the trial court erred in refusing to give a third party culpability instruction; (2) dog scent evidence should have been excluded; and (3) he was exonerated by DNA evidence. In addition, the People point out that Marin is entitled to additional custody credits and that a parole revocation fine should be reversed. We modify the judgment to correct the sentencing errors and affirm the judgment as so modified.
PROCEDURAL BACKGROUND
Marin and Eleazar De Santiago were jointly charged with the September 1997 first degree murder and second degree robbery of Charles Yim. Both were convicted as charged following a joint jury trial in 2001. In a prior nonpublished opinion, People v. De Santiago (July 20, 2003, B153447), we reversed those convictions and ordered a Kelly hearing (People v. Kelly (1976) 17 Cal.3d 24) on the admissibility of dog scent evidence collected by an instrument known as a Scent Transfer Unit (STU), followed by a new trial.
In addition, De Santiago’s conviction for being a felon in possession of a firearm and a finding that he personally used a firearm were reversed for insufficiency of the evidence.
On remand, the trial court found the STU to be a scientifically valid tool. A second jury trial resulted in convictions for each defendant. Each was sentenced to life in prison without the possibility of parole for first degree murder, plus a consecutive one year for a principal armed enhancement; sentence on the robbery conviction and a related gun use enhancement was stayed (Pen. Code, § 654). Each defendant appealed separately. In a prior nonpublished opinion, People v. De Santiago (November 24, 2010, B220070 (De Santiago)), we affirmed De Santiago’s conviction but modified the abstract of judgment to reflect the proper conduct credits and fees. We now address Marin’s appeal.
FACTS
The facts, as we chronicled them in De Santiago, are as follows:
I. The Murder and Robbery
In 1997, Charlie Yim owned Village Liquor in the City of Carson, which also contained a check cashing business. On September 18, 1997, Yim left for the bank in the afternoon to deposit $20,000 in checks and withdraw $24,000 in $20 and $100 bills for his check cashing business. He put the money in a dark colored bag or briefcase. While Yim was gone, his employee noticed two young Hispanic men enter the store at 3:00 or 4:00 p.m. and “watch” the security cameras. Although the employee knew 99 percent of the store’s customers and had worked there for 10 years, he did not recognize these two men. Yim was shot in the store’s parking lot at approximately 5:00 p.m. and his bag with the money in it was taken. Yim died from two gunshot wounds. One witness observed two Hispanic men sitting in a car shortly before the shooting. Several others saw a red car speed off after Yim was shot. Two expended nine-millimeter Winchester luger casings were recovered from the crime scene. When they reviewed the videotapes from the store, the police did not see anything of significance. At this time, De Santiago and Marin were already considered suspects.
Maria Medina lived around the corner from Village Liquor and heard screeching tires near her home that day. When she looked out of the window, she saw two Hispanic men with short hair get out of a red car that was parked across the street. The men took off their shirts, revealing white T-shirts underneath. She heard the driver tell the passenger to “hurry up, hurry up.” The driver then removed a glove and threw it away. A small gray car came by shortly thereafter and picked up the two men. Medina observed the passenger carrying a small dark colored briefcase when he got into the second car. Medina later identified Marin’s picture from a photographic lineup.
II. The Police Investigation
The police discovered a red Honda parked near Medina’s home that had its rear license plate bent upward so that no one could read the license plate unless he or she were standing directly over it. Inside the car, the police found latex gloves, a black cloth glove, a white T-shirt and one Motorola two-way radio. The police also recovered a blue shirt near the house where the car was parked. Officers lifted 15 latent fingerprints from the exterior and five from the interior of the car. When the prints were run, matches came back for both De Santiago and Marin. DNA testing on the gloves showed that De Santiago could not be excluded as a contributor to the DNA found on one of the rubber gloves.
The police also transferred the scent from the white and blue shirts to a sterile gauze pad through a machine called a Scent Transfer Unit (STU), which is similar to a small vacuum cleaner. These scent pads were provided to dogs trained to follow an individual by their unique scent. The dogs showed some interest in residences known to be visited or occupied by De Santiago and Marin. One dog indicated a scent match to his trainer when it sat down behind Marin while the police were interviewing him.
De Santiago and Marin were arrested on September 28, 1997, and were told they were under arrest for murder based on fingerprint evidence recovered on a Honda. Police provided no other details of the crime. Police then placed both De Santiago and Marin in the back of a patrol car that was wired for sound. Police reviewed the recording wherein Marin refers to a “robbery and murder of fucking store.” Both Marin and De Santiago refer to “rods, ” meaning guns. Marin later said he was accused of robbery and murder, even though the police never mentioned a robbery. During a valid search of De Santiago’s uncle’s home, the police recovered $2,700 in $100 bills. De Santiago’s uncle testified the money did not come from De Santiago. He testified that it came in part from cashing a vacation check from his work and in part from his mother. The police confiscated the money and by the time of trial, De Santiago’s uncle had yet to provide documentation that the money came from legitimate sources.
III. The Trial
At trial, the prosecution presented evidence of the circumstances surrounding Yim’s shooting and the subsequent police investigation as stated above. The defense presented a theory of third party culpability, seeking to establish that Pablo Hernandez may have committed the crime. Hernandez had been under police surveillance in connection with a series of liquor store robberies. De Santiago’s half-sister, who was dating and living with Pablo Hernandez in September 1997, testified that Hernandez owned a red car. On January 14, 1998, police detectives followed Hernandez as he and another man drove a van to a liquor store in Carson. It appeared that they were trying to prevent anyone from following them. When they arrived, police observed Hernandez and the other man looking around and monitoring the area near the liquor store. Another Hispanic man pulled up in a gray car shortly thereafter and all three walked to the rear of the van while continuing to look around. The police arrested the three men, Pablo Hernandez, Leonel Mendoza and Juan Carlos. Motorola two-way radios were found inside the van and the gray car.
The defense also presented expert testimony from Van Ness Bogardus, a professor of law enforcement and a former Los Angeles County Sheriff. Bogardus offered expert opinions regarding the use of scent dogs to locate human beings. Bogardus participated in the sheriff department’s inaugural canine dog patrol program and received training and practical experience from 1980 to 1988 in working with dogs to detect the scent of human beings. Bogardus testified that it was not possible for a dog to be given an article that might contain the scent of a person and be able to match the scent with that person. A dog also would not be capable of sniffing a location to determine who may have been there. Indeed, he testified scents do not remain on substances such as concrete or grass for very long. As a result, Bogardus opined that the STU scent pad process was unreliable.
In rebuttal, the prosecution presented testimony from a retired Los Angeles County Sheriff who worked in the canine unit as a trainer and supervised Bogardus. He opined that dogs can locate a particular person when given a scent article. He also testified that dogs were capable of sniffing a location to determine whether someone had been there or not. Marin’s mother testified, on the other hand, that the scent dog sat down behind Marin only when its trainer stopped to speak to one of the detectives interviewing Marin.
DISCUSSION
A. Refusal to Give Third Party Culpability Instruction Was Not Error
Marin contends the trial court prejudicially erred in refusing to give the following requested instruction: “Defendant has introduced evidence to show that some other persons committed the charged offenses. The prosecution has the burden of establishing beyond a reasonable doubt that it was the defendant who committed the charged offense. [¶] If after consideration of all the evidence, you have a reasonable doubt that the defendant was the person who committed the charged offense, you must find the defendant not guilty.” He argues there was substantial evidence of third party culpability which warranted the instruction. We rejected the identical contention by co-defendant De Santiago in his prior appeal and come to the same conclusion here.
“ ‘A criminal defendant may introduce evidence of third party culpability if such evidence raises a reasonable doubt as to his guilt, but the evidence must consist of direct or circumstantial evidence that links the third person to the crime. It is not enough that another person has the motive or opportunity to commit it.’ [Citation.]” (People v. Gutierrez (2009) 45 Cal.4th 789, 824 quoting People v. Robinson (2005) 37 Cal.4th 592, 625.) Further, a defendant, upon proper request, has a right to an instruction that pinpoints the defense theory of the case. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1142.) To determine instructional error, we consider the instructions as a whole and assume that the jurors are intelligent and capable of understanding and correlating all jury instructions which are given. (People v. Romo (1975) 47 Cal.App.3d 976, 990.) There is no requirement that the jury be instructed in the precise language requested by a party. (People v. Partlow (1978) 84 Cal.App.3d 540, 558, disapproved of on another point in People v. Bolton (1979) 23 Cal.3d 208, 213-214.)
People v. Kegler (1987) 197 Cal.App.3d 72, 77 (Kegler) is instructive. In that case, the defendant was convicted of robbing two men and murdering and robbing a third. Eyewitnesses saw a man driving a gray Cadillac rob the two men at 12:30 p.m. and murder the third man nearby at approximately 1:30 p.m. But the eyewitnesses expressed some uncertainty in identifying the defendant as the murderer. Their description of the suspect also fit that of the owner of a gray Cadillac, who testified he lent it to the defendant in exchange for cocaine. One of the witnesses initially identified the owner of the Cadillac as the murderer. Personal items from the victims were found in the Cadillac. (Id. at p. 78.) The defendant presented alibi evidence that he was with his girlfriend and a friend after 12:30 p.m. (Id. at p. 79.) The trial court refused to give a pinpoint instruction on third party culpability submitted by the defendant. (Ibid.) The appellate court affirmed, finding the requested instruction “inapposite because appellant did not present sufficient evidence of third party culpability linking any particular third person to actual perpetration of the crime.” (Id. at p. 80.) “Although defense counsel argued to the jury that [the owner of the Cadillac] was the one who robbed and shot [the third man], the only evidence he referred to in this regard was that [the owner] and his clothing matched the physical descriptions given by witnesses to the murder and the wallet of the victim was found in his car. However, no evidence placed [the car’s owner] at the scene of the murder or in possession of his car, undisputably used in the commission of the murder, at the time of the offense. Moreover, as conceded by defense counsel in final argument, the eyewitnesses’ descriptions of the suspect fit defendant, [the owner of the Cadillac] and ‘probably 100, 000 people in Los Angeles.’ ” (Ibid.) Moreover, the issue presented by the proposed pinpoint instruction was adequately explained to the jury in other instructions, specifically those related to the burden of proof, reasonable doubt, alibi, identity based on eyewitnesses and factors to consider and duplicated the issues presented in the proposed instruction. (Id. at p. 81.)
Relevant portions of the instruction read as follows: “ ‘The burden is on the State to prove beyond a reasonable doubt that the defendant is the person who committed the offense with which he is charged. In this regard, you are instructed that it is not necessary for the defendant to prove that another person may have committed the crime, nor is it the burden of the defendant to prove his innocence....’ ” (Kegler, supra, 197 Cal.App.3d at p. 79, fn. 1.)
Here, Marin maintains the following evidence warranted the requested instruction: (1) Yim’s murder occurred in the parking lot, not in the store where earlier that day Kim saw two Hispanic men apparently monitoring the store’s security cameras; the police did not see anything of significance when they reviewed the videotapes from the store even though Marin and De Santiago were already suspects; two Hispanic men with shaved heads or short hair were seen leaving the scene in a red car shortly after the shooting; (2) also shortly after the shooting, two Hispanic men with short hair were seen getting out of a red car a few blocks from where the crime occurred and being picked up by a gray car; police found a Motorola two-way radio in the abandoned red car; (3) four months after Yim’s murder, police conducting surveillance relating to a string of liquor store robberies followed Pablo Hernandez and Leonel Mendoza, both of whom had short hair, as they drove a van to a Carson area liquor store; at the store, Hernandez and Mendoza met Juan Carlos, who arrived driving a gray car; because the three men were acting suspiciously, police arrested them; Motorola two-way radios were found in the van and in the gray car; (4) Hernandez owned a red car at or around the time of Yim’s murder.
As in Kegler, this evidence did not sufficiently link Pablo Hernandez to the actual perpetration of Yim’s murder to warrant instructing the jury on third party culpability. (Kegler, supra, 197 Cal.App.3d at p. 78; see also People v. Hall (1986) 41 Cal.3d 826, 833.) That Hernandez and the men with him may have been in the process of perpetrating a similar crime just before they were arrested in January 2008 did not link Hernandez to Yim’s murder. No evidence placed Hernandez or the other men at Village Liquor; that Hernandez drove a red car at the time of Yim’s murder was not enough.
By contrast, Marin’s fingerprint was found on the red Honda abandoned across from Maria Medina’s home; Medina identified Marin as one of the two men who got out of that car. And the incriminating statements made by Marin and De Santiago while seated together in the patrol car further corroborate their participation in Yim’s robbery and murder, as do the results from the canine STU application.
We further conclude, as we did in De Santiago, that the issue presented by the pinpoint instruction requested by Marin was adequately explained to the jury in other instructions. Here, as in Kegler, the court instructed the jury on the People’s burden of proof and the definition of reasonable doubt, as well as on factors to consider in proving identity by eyewitness testimony. These instructions were sufficient to instruct the jury on his defense: “that the prosecution bore the burden of proving beyond a reasonable doubt that it was appellant who committed the robbery and murder, not [Hernandez, Mendoza or Carlos].”
B. Dog Scent Evidence Was Not Improperly Admitted
Marin contends reversal is required because Marin was excluded as the donor of the DNA found on the white and blue shirts which were the source of the scent given to the tracking dogs. As we understand his argument, it is that the dog scent evidence was improperly admitted because the DNA testing showed it to be inherently unreliable.
The relevant dog scent and DNA evidence is as follows. On an unspecified date, police officers used an STU to lift scent from the white and blue shirts found in and near the red Honda, and stored that scent on a gauze pad; the scent pad was placed in two freezer bags and then placed in a freezer. About one month after the murder, dog handlers and their dogs were brought to three streets associated with Marin and De Santiago. The dogs were given the STU-created scent pads to smell. Scarlett, the dog given the scent pad from the blue shirt, showed interest in various locations associated with Marin. Scarlett also showed interest in Marin himself while he was being interviewed on the sidewalk outside his home. Ten years later, Marin was essentially excluded as the donor of DNA found on the blue shirt. However, the forensic scientist who did the DNA analysis for the prosecution testified that DNA deteriorates over time and the fact that a person’s DNA is not found on an item of clothing does not mean that the person did not wear the clothing, only that there is no DNA evidence that he did so.
“When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary. [Citations.]” (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700; see also In re Ross (2009) 170 Cal.App.4th 1490, 1514 [issue deemed forfeited because it was not supported by citation to relevant legal authority].) Here, the only authority Marin cites in support of his argument that the dog scent evidence was improperly admitted is a decision by the Texas Court of Appeal which held that the result of a “dog-scent lineup” is insufficient to support a criminal conviction when standing alone or used as primary evidence; to support a conviction, dog scent evidence must be corroborated by other evidence. (Winfrey v. State (2010) 323 S.W.3d 875, 884 (Winfrey).) We do not find Winfrey persuasive, as it held only that a conviction that rests primarily on dog scent evidence is legally insufficient. Winfrey does not stand for a rule that dog scent evidence is never admissible. Marin has cited no California case, and we are aware of none, that holds dog scent evidence is inadmissible if it conflicts with other evidence, including DNA evidence. In any event, as we discuss below, there was significant additional evidence that supported the jury verdict.
C. The Judgment Is Supported By Substantial Evidence
Marin contends the “DNA results alone should have rendered an acquittal.” Understanding this as a challenge to the sufficiency of the evidence, we find no merit in the contention.
Although Marin cites to no legal authority in this section of his Opening Brief, we treat his citation to Winfrey, the Texas case, in the prior section, as intended to also apply to this sufficiency of the evidence argument.
Upon a challenge to the sufficiency of the evidence to sustain a judgment, we review the whole record in the light most favorable to the judgment to determine whether there was substantial evidence upon which a trier of fact could find the defendant guilty beyond a reasonable doubt. Evidence is substantial when it is reasonable, credible, and of solid value. (People v. Prince (2007) 40 Cal.4th 1179, 1251.) We presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence, whether it was direct or circumstantial. (Ibid.) The resolution of conflicts or inconsistencies in the testimony is the exclusive province of the jury. (People v. Solomon (2010) 49 Cal.4th 792, 818.)
First, there is no merit to the argument that failure to find a defendant’s DNA on items relating to the crime compels acquittal. On the contrary, the presence or absence of DNA is circumstantial evidence. (See People v. Prince, supra, 40 Cal.4th at p. 1190 [including DNA as circumstantial evidence].) In other words, it is an evidentiary fact, from which an inference can be argued. Whether to make that inference is for the jury to decide. (People v. Rivera (2003) 109 Cal.App.4th 1241, 1244.) In this case, the fact that Marin’s DNA was not found on the blue shirt 10 years after the murder is nothing more than circumstantial evidence from which the trier of fact could infer that Marin was not wearing the shirt on the day of the murder, but the jury was not required to make that inference. The weight of that testimony in light of all the evidence adduced was for the jury to decide.
Second, assuming for the sake of argument that dog scent evidence requires corroboration in criminal prosecutions in California, as it does in Texas under Winfrey, there was substantial, independent evidence of Marin’s involvement in Yim’s murder. This includes Medina’s identification of Marin as one of the two men she saw getting out of the red car shortly after the murder and the fact that Marin’s fingerprint was found on that car. It also includes the recorded conversation between De Santiago and Marin in the back of the police car, in which Marin refers to a “robbery and murder of fucking store” and Marin’s later statement that he was accused of robbery and murder, before police had told Marin he was also a robbery suspect.
D. Sentencing Errors
The People also bring our attention to two sentencing issues which warrant correction of the abstract of judgment. First, as it did with co-defendant De Santiago, the trial court failed to include any conduct credit under former Penal Code section 2933.1 and instead applied Penal Code section 2933.2, which precludes any person convicted of murder from receiving conduct credit. Section 2933.2, however, became operative on June 3, 1998, and does not apply to a murder committed in 1997. (Pen. Code, § 2933.2, subd. (d).) As a result, Marin is entitled to presentence conduct credits at the rate of 15 percent of actual time served under the then-operative section 2933.1. His actual credits are listed as 2, 272, thereby entitling him to 340 conduct credits.
Second, as it did with co-defendant De Santiago, the trial court imposed and suspended a $10,000 parole revocation fine under Penal Code section 1202.45. Because the court sentenced Marin to life in prison without the possibility of parole, that fine should be stricken.
DISPOSITION
The trial court is directed to prepare a corrected abstract of judgment reflecting 340 conduct credits based upon 2, 272 days of actual credits and striking the $10,000 parole revocation fine. The revised judgment shall be forwarded to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: BIGELOW, P. J., FLIER, J.