Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 05-080275-2, 05-080737-0
Sepulveda, J.
Defendant Troy Cebran Sanders, Jr., was found guilty by jury trial of second degree burglary (Pen. Code, §§ 459, 460, subd. (b)), felony vandalism (Pen. Code, § 594, subd. (b)(1)), and felony attempting to evade a peace officer while driving recklessly (Veh. Code, § 2800.2, subd. (a)) after he burglarized a gas station convenience store and led an officer on a high-speed chase. On appeal, he argues that (1) the trial court erred in admitting dog-trailing evidence because it lacked a proper foundation, and (2) insufficient evidence supports his conviction for evading a peace officer. We affirm the judgment.
I. Factual and Procedural Background
Around 2:30 a.m. on August 23, 2006, a Brentwood police officer who was on a routine patrol noticed a maroon subcompact car that was “partially embedded” in the front windows of a store at a gas station, as if there had been a collision. The glass doors of the store had been shattered, and it was clear to the officer that the car had driven into the front of the business. As soon as the officer turned into the parking lot, the maroon car rapidly accelerated in reverse and sped away on Brentwood Boulevard. The officer notified dispatch, activated the lights and sirens on his patrol car, and followed the speeding car.
The car turned onto Lone Tree Way and soon was driving more than 60 miles per hour in an area where the posted speed limit was 35 miles per hour. The car did not yield to the officer, and it instead continued to increase speed, at one point driving through an intersection where there was a flashing red light. The car eventually reached a speed of approximately 80 to 90 miles per hour. The car drove to Antioch, then turned onto Hillcrest. The officer could not see where the car went after it turned, and he discontinued the pursuit for safety reasons.
Another officer who was on patrol that morning and was listening over the police radio to reports of the chase, drove south on Hillcrest, and the car involved in the high-speed chase almost ran into the officer’s patrol vehicle. The officer saw two people in the car, one in the driver’s seat and one in the front passenger seat.
A person who lived on Ridgeview Drive in Antioch called 911 around 2:45 a.m. to report that a vehicle the resident did not recognize had “pulled up in a screeching halt” in the driveway. Todd Drummond lived a few blocks away and had been listening on his personal police scanner to reports of the car chase. When he heard that the car had pulled into a driveway near his home and that two suspects had taken off running, he went outside to look down the street. About a half hour later, Drummond saw two people run across his neighbor’s yard and “shot up the street.” They both had dark complexions and were wearing dark clothing. One was shorter than the other and had a “stocky” build, like a linebacker. Drummond called Antioch police.
Drummond told police that the shorter man with the stocky build was wearing a long, white t-shirt; however, he did not recall at trial having seen a white t-shirt. Defendant was found wearing a long, white t-shirt.
Antioch police officer Meghan Miller, a K-9 patrol officer, was on duty with her police dog Oberon (nicknamed Obe). Officer Miller and Obe responded around 2:45 a.m. to a home on Ridgeview Drive where a car had been abandoned. Miller used a paper towel from the center console of the car to swab the steering wheel to get the scent of the person who had been driving the vehicle. As discussed in more detail below, Miller introduced the scent to Obe, who chose a direction and began to “trail” the scent. Obe led the officer about a mile and a half through various streets for about 45 minutes and did not appear to lose a scent. At one point the dog’s behavior “changed drastically,” and he dove into bushes where he retrieved a left-handed black batting glove. Officer Miller stopped trailing a scent at that point, because she learned that police had detained suspects.
Defendant and a man named Lester Curry were detained at Hillcrest and Wildhorse in Antioch. Drummond was driven to where defendant and Curry were found for an in-field identification. He told police that one man was “definitely it,” and that he was “pretty sure” about the second. Defendant and Curry were then taken to the location where the car had been found and placed in separate patrol cars.
Miller and Obe also returned to the place where the car had been found. As they walked by the patrol car where defendant was detained, Obe barked, jumped, and scratched at the car’s window, which was open but caged to transport suspects. Officer Miller believed that Obe was trying to communicate that the dog had located the source of the odor from the steering wheel. She testified, “I believe that he [the dog] thought he found the guy.” Although Curry was still in the area, the dog did not lunge at him or anyone else.
Officers found a single key in defendant’s right pocket that opened the driver’s side door of the car involved in the chase, but the key did not start the ignition. Police found that defendant also was carrying a ring with several other keys on it, but none of the keys started the ignition. Police did not find any keys on Curry. Officers also found a package of Newport cigarettes in defendant’s pocket.
The officer involved in the initial pursuit went to the driveway on Ridgeview Drive and confirmed that the abandoned car was the one he had been chasing. A right-handed baseball batter’s glove that appeared to match the left-handed one that Obe retrieved from the bushes was found in the center console of the vehicle between the front seats. Eleven cartons of Newport cigarettes also were found in the car. Defendant’s fingerprint was found on the exterior front passenger door.
An officer who was five feet, seven-and-a-half inches tall and weighed 210 pounds sat in the driver’s side of the car, without adjusting the seat. He testified that the seat fit him “perfectly.” Defendant was similarly “short and stocky,” standing five feet, seven inches tall, and weighing 220 pounds. Curry, by contrast, was “much taller” and “relatively lean,” standing six feet, two inches tall, and weighing 190 pounds. The front passenger seat of the car was found to be “scooted back” almost to the rear seat. Curry’s right arm was broken and in a cast extending from a portion of his hand up to his elbow.
Officers who inspected the gas station where the car had crashed into the doors found that two cash register drawers were standing open, and there were a number of boxes of Newport cigarettes knocked over and strewn about the floor.
Defendant was charged by information (case No. 05-080274-4) with one felony count of second degree burglary (Pen. Code, §§ 459, 460, subd. (b)—count one), one felony count of vandalism (Pen. Code, § 594, subd. (b)(1)—count two), and one felony count of attempting to evade a peace officer while driving recklessly (Veh. Code, § 2800.2, subd. (a)—count three). A jury found defendant guilty as charged.
The trial court sentenced defendant to the midterm of two years on count one, the midterm of two years on count two (stayed pursuant to Penal Code section 654), and one-third the midterm (eight months) on count three, to be served consecutively, for a total of two years, eight months in prison. Defendant timely appealed.
Defendant was arrested during the pendency of this action and charged in case No. 05-080737-0 with two drug-related felonies and a probation violation after a search of the car he was driving revealed base cocaine. He pleaded no contest in that case to one count of unlawful possession (Health & Saf. Code, § 11350, subd. (a)), admitted the probation violation, and was sentenced to 16 months in prison, to run concurrently with the sentence in case No. 05-080274-4. Upon the recommendation of the First District Appellate Project, this court on December 1, 2008, deemed the notice of appeal filed in case No. 05-080274-4 amended to include case No. 05-080737-0; however, defendant does not challenge his plea or sentence in the drug case.
II. Discussion
No Error to Admit Dog-Trailing Evidence.
1. Background
In response to defendant’s pretrial request to exclude evidence that his scent was trailed by a police dog, the trial court held a hearing pursuant to Evidence Code section 402 to determine whether the evidence was sufficiently reliable. Officer Miller, the K-9 patrol officer, testified that she began working with police dog Obe beginning in 2002, when the dog was two years old. Officer Miller received hundreds of hours of on-the-job and classroom training over a period of seven months to become a canine officer. With the exception of one day during training when students were not required to bring their dogs to class, Officer Miller always trained with Obe. In May 2003, Obe received his Peace Officer Standards and Training (POST) certification for obedience, searching, apprehension, the ability to stop biting after being commanded to do so, and the identification of certain narcotics. Obe never failed any certification test.
Evidence Code section 402, subdivision (a) provides that the trial court shall determine the existence of a preliminary fact where the fact is disputed.
There is no California POST certification for dog tracking or trailing, according to Officer Miller.
Officer Miller and her dog began training to do “scent work” (or “trailing”) in 2004 or 2005, training for about 16 hours a month for two years. Obe completed hundreds of “trails exercises,” learning how to trail a person’s scent. In his training, Obe was “about 90 to 95 percent accurate” in trailing a decoy. On the occasions when he was not accurate, it was because he lost the scent or did not find the subject of his search; he never identified the wrong person to be trailed. Before Obe was used in the instant case, he trailed suspects in about 20 other cases.
Around 2:45 a.m. the morning of the high-speed chase, Officer Miller and Obe were called to the driveway where the car involved in the high-speed chase had been abandoned. Officer Miller put gloves on, retrieved a paper towel she found in the center console of the vehicle, and swabbed the car’s steering wheel. She selected the steering wheel to swab, because the driver likely would have been sweating and left a strong odor there, and it likely would have been one of the last places that the driver had touched. She explained why she used a paper towel to swab: “Everything about that paper towel had to do with the inside of the vehicle. I didn’t have to take a sterile pad from my car, which I had done in the past. I got to use what was in there, which was a bonus. It makes it better.” Officer Miller then introduced the paper towel to Obe and directed the dog to trail the odor on it.
Obe “went right to work,” selecting a direction and leading Officer Miller. The dog traveled about a mile and a half, making multiple turns, and never appeared to lose a scent. Around 3:40 a.m., the dog indicated that he had trailed the scent to bushes, and he retrieved a batting glove that appeared to have been thrown there. Officer Miller informed other officers over the police radio that she had found a glove, and she was informed that another glove had been found inside the abandoned vehicle and that suspects had been detained nearby. Officer Miller and her dog stopped trailing at that point, and they received a ride back to the abandoned vehicle. When Miller and Obe passed by the patrol car where defendant was being held, the dog “suddenly barked and jumped up on the side” of the car. Officer Miller concluded that Obe had found the person who had left his odor in the vehicle.
The trial court concluded that the evidence of dog trailing was sufficiently reliable to be presented to the jury. At trial, Officer Miller testified consistently with her testimony at the pretrial hearing about her qualifications and about Obe’s trailing on the morning of the crime.
2. Analysis
Defendant renews his argument that the dog-trailing evidence was inadmissible because the prosecution did not establish the reliability of the evidence. Dog-tracking evidence is admissible upon a sufficient showing of the particular dog’s ability and reliability in tracking humans. (People v. Malgren (1983) 139 Cal.App.3d 234, 238, disapproved on another ground in People v. Jones (1991) 53 Cal.3d 1115, 1144-1145; People v. Craig (1978) 86 Cal.App.3d 905, 915.) Each particular dog’s ability and reliability must be shown on a case-by-case basis. (Craig, at p. 915.) “This testimony should come from a person sufficiently acquainted with the dog, his training, ability and past record of reliability.” (Ibid.)
Officer Miller testified that dog “tracking” and “trailing” are slightly different skills and that Obe was trained to trail (but not track) scents. The relevant cases, as well as the parties on appeal, refer to dog-tracking evidence, but there is no suggestion that the relevant legal principles are not applicable to both tracking and trailing.
In People v. Malgren, supra, 139 Cal.App.3d 234, the court held that a proper foundation for dog-tracking evidence must include evidence that the circumstances of the particular tracking at issue make it probable that the person tracked was the guilty party. (Id. at p. 238.) The court held that the following must be shown before dog-tracking evidence is admissible: “(1) the dog’s handler was qualified by training and experience to use the dog; (2) the dog was adequately trained in tracking humans; (3) the dog has been found to be reliable in tracking humans; (4) the dog was placed on the track where circumstances indicated the guilty party to have been; and (5) the trail had not become stale or contaminated.” (Ibid.) Reviewing the trial court’s ruling on the admissibility of evidence under an abuse of discretion standard (People v. Williams (1997) 16 Cal.4th 153, 197), we find no abuse of discretion here.
Defendant attacks the sufficiency of evidence regarding Officer Miller’s and her dog’s training, the first and second requirements set forth in People v. Malgren, supra, 139 Cal.App.3d at page 238. He first claims that Miller and Obe “had not been trained together.” To the contrary, although Obe received some basic training in identifying narcotics before he was placed with Officer Miller at the age of two, all of Miller’s training after that was done “hands on with the dog.” Although Obe had not been POST-certified in tracking or trailing (because no such certification exists), Obe had received hundreds of hours of training and had been certified for obedience, searching, apprehension, the ability to stop biting after being commanded to do so, and the identification of certain narcotics.
Defendant also points to Officer Miller’s trial testimony that Obe’s accuracy rate was about 90 percent. Miller explained that sometimes Obe decides he does not want to trail (because he is “acting up,” because there is not enough odor to which to expose him, or for some other unknown reason), but that in all her training with the dog, Obe had never identified someone whose scent he was not asked to trail. Officer Miller also explained that although she had received significant training and was instructed on dog-trailing techniques, it was her trainers who knew various technical aspects of following scents, such as why moistening a cloth helps collect scents from areas where it is difficult to collect an odor. We disagree with defendant’s suggestion that this made Miller’s testimony less reliable.
Defendant makes much of the fact that Officer Miller used a paper towel to collect odor from the car’s steering wheel instead of following the usual practice of using a sterile gauze pad, suggesting that this increased the likelihood of cross-contamination of scents. To the contrary, Miller explained that it was a “bonus” to use an item located inside the car to collect scent. She explained at trial that “starting with something that already has odor from inside the vehicle is a bonus because we are looking for people that were inside that vehicle. Then using that article and swabbing, so to speak, the steering wheel would delineate more odor. Not delineate, but would absorb more odor and give the dog a stronger source of odor from a subject inside the vehicle.” Although it is true that Officer Miller did not know who had last touched the paper towel before she used it to wipe the wheel, once she swabbed, “[t]he scent on the steering wheel would be the strongest source of odor at that point.” She testified that although she is generally concerned that she not cross-contaminate any scents found at different crime scenes, cross-contamination was not a concern here because she used “a towel found in the same car where [she was] trying to locate odors from persons in that car.” We disagree with defendant that the use of the paper towel showed that the trail Obe followed was stale or contaminated, rendering the dog-trailing evidence inadmissible. (People v. Malgren, supra, 139 Cal.App.3d at p. 238.) The trial court did not abuse its vast discretion in admitting the dog-trailing evidence.
Officer Miller testified that she did not have sterile gauze pads with her the morning of the chase.
B. Substantial Evidence Supports Conviction for Evading a Peace Officer While Driving Recklessly.
Defendant challenges the sufficiency of the evidence supporting his conviction for attempting to evade a peace officer while driving recklessly (Veh. Code, § 2800.2, subd. (a).) When reviewing a claim of insufficiency of the evidence, we determine “ ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (People v. Catlin (2001) 26 Cal.4th 81, 139.) The evidence must be “ ‘reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’ ” (Ibid.)
Vehicle Code section 2800.2, subdivision (a) provides, in relevant part: “If a person flees or attempts to elude a pursuing peace officer in violation of Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property, the person driving the vehicle... shall be punished....” The jury was correctly instructed that conviction for this crime requires proof that: “1. A peace officer driving a motor vehicle was pursuing the defendant; [¶] 2. The defendant, who was also driving a motor vehicle, willfully fled from, or tried to elude, the officer, intending to evade the officer; [¶] 3. During the pursuit, the defendant drove with willful or wanton disregard for the safety of other persons or property; and [¶] 4. All of the following were true: [¶] (a) There was at least one lighted red lamp visible from the front of the peace officer’s vehicle; [¶] (b) The defendant either saw or reasonably should have seen the lamp; [¶] (c) The peace officer’s vehicle was sounding a siren as reasonably necessary; [¶] (d) The peace officer’s vehicle was distinctively marked; and [¶] (e) The peace officer was wearing a distinctive uniform.” (CALCRIM No. 2181; see also People v. Sewell (2000) 80 Cal.App.4th 690, 696-697, disapproved on another ground in People v. Howard (2005) 34 Cal.4th 1129, 1139, fn. 5; People v. Springfield (1993) 13 Cal.App.4th 1674, 1680-1681.) Defendant challenges only the sufficiency of the evidence that he was the driver (as opposed to the passenger) of the vehicle that led police on the high-speed chase.
Jurors heard evidence that two people were in the car during the chase, and they were seated in the driver’s seat and the front passenger seat. Defendant is shorter than Curry, and the front seats in the car were set in such a way to suggest that a shorter person was seated in the driver’s seat. Officers found a key in defendant’s right pocket that opened the car door, whereas no keys were found on Curry. Curry was wearing a cast on his arm, supporting an inference that he was not the driver of the car. A rational trier of fact could have found beyond a reasonable doubt, based on this evidence, that defendant was the driver.
The prosecution also presented evidence that after being introduced to the scent on the car’s steering wheel and directed to trail it, police dog Obe later lunged at defendant as if to communicate that he had identified the scent he had been asked to trail. As with his argument that the dog-trailing evidence was improperly admitted, defendant claims that Obe could in fact have been trailing the scent of the person who last used the paper towel used to swab the steering wheel, as opposed to the scent on the steering wheel itself. Again, however, Officer Miller testified about why it was preferable to use a paper towel from the car to swab the steering wheel, and that the strongest scent on the paper towel was from the steering wheel. Her testimony about the odor-collection procedure does not undermine our confidence in the verdict.
Defendant’s reliance on People v. Gonzales (1990) 218 Cal.App.3d 403 is misplaced. In Gonzales, a burglary suspect fled on foot after a sheriff’s deputy entered a home where an alarm had been triggered. (Id. at pp. 405-406.) A deputy’s dog smelled a pillowcase that had been used to carry items from the home, and the dog then led the deputy to defendant, who was a little less than a mile away from the home that had been burglarized. (Id. at pp. 406-407.) The appellate court suggested that substantial evidence supported the verdict, and that it would have affirmed the conviction had the jury been properly instructed regarding dog-tracking evidence. (Id. at p. 415.) However, the court concluded that the trial court had prejudicially erred by not instructing the jury that it must find that there was evidence supporting the accuracy of the dog tracking. (Id. at pp. 414-415.)
Here, by contrast, the jury was instructed (pursuant to CALCRIM No. 374) that, before it could rely on dog-tracking evidence, there must be “[o]ther evidence that the dog accurately followed a trail that led to a person or object involved in or related to the charged offenses.” It was for the jury, which was properly instructed on the law (People v. Gonzales, supra, 218 Cal.App.3d at p. 414), to determine whether any possible cross-contamination of scents on the paper towel used to swab the steering wheel undermined the accuracy of Obe’s trailing. Based on Officer Miller’s testimony, we conclude that there was sufficient evidence to support the accuracy of the dog trailing (ibid.), and that a rational trier of fact could have concluded that defendant was the driver of the car based on the dog-trailing and other evidence.
CALCRIM No. 374, as given in this case, provides in full: “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, a location, or an item relevant to the alleged offenses. Before you may rely on dog tracking evidence, there must be: [¶] 1. Evidence of the dog’s general reliability as a tracker; and [¶] 2. Other evidence that the dog accurately followed a trail that led to a person or object involved in or related to the charged offenses. 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 dog’s work in this case.”
Finally, we agree with respondent that it is not reasonably probable that the jury would have reached a different result had the dog-trailing evidence been excluded, because the jury heard other evidence that sufficiently established that defendant was the driver of the car. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Willis (2004) 115 Cal.App.4th 379, 387-388 [harmless error to admit novel form of dog scent identification evidence where other evidence established defendant’s guilt of first degree murder].)
III. Disposition
The judgment is affirmed.
We concur: Ruvolo, P.J., Reardon, J.