Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA292350, Robert J. Perry, Judge.
Gregory L. Rickard for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie C. Brenan and Sarah J. Farhat, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, J.
INTRODUCTION
A jury convicted defendant Damien Watts of two counts of first degree murder (§ 187, subd. (a)), six counts of attempted murder (§ 664/187, subd. (a)), one count of shooting at an inhabited dwelling (§ 246), and one count of felon in possession of a firearm (§ 12021, subd. (a)(1)). In addition, the jury found true multiple gang allegations (§§ 186.22, subd. (b)(1) and 190.2, subd. (a)(22)); multiple firearm allegations (§ 12022.53, subd. (c) and (e)(1) and § 12022.53, subd. (d) and (e)(1)); and the special circumstance allegation of multiple murders (§ 190.2, subd. (a)(3)). The crimes arose from three shootings that occurred over a two-day period.
All statutory references are to the Penal Code.
In this appeal, defendant challenges only the admission of evidence about dog scent identification that helped to identify him as the shooter in the third shooting. The identification arose as follows. At the third crime scene, a trained police officer, following proper protocol, collected the scent from a shirt and an expended casing. The scent was “collected... using a vacuum device called a ‘scent transfer unit’ (STU). The STU holds a five-by-nine-inch gauze pad that ostensibly collects and preserves the scent from virtually any object a person has touched.” (People v. Willis (2004) 115 Cal.App.4th 379, 384.) Two days later at a police station, an experienced and trained dog handler had his bloodhound (also trained and experienced) inhale the scent pad taken from the shirt. Using that scent, the dog located defendant in the station. (The handler did not know where defendant was.) Fifteen minutes later, the dog inhaled the scent pad taken from the shell casing and once again located defendant who had been taken to a different part of the station.
As will be explained, defendant’s arguments that this evidence was improperly admitted have not been preserved for appellate review. Although the parties had agreed that defendant could bring a motion to strike after the evidence set forth in the preceding paragraph had been presented at trial, defense counsel made no such motion. Further, defense counsel’s objection at a pretrial hearing in which the trial court found that the STU met the criteria of People v. Kelly (1976) 17 Cal.3d 24 was insufficient to preserve an objection to the evidence received at trial about dog scent identification. Lastly, we reject defendant’s argument that trial counsel’s failure to object or to move to strike constitutes ineffective representation of counsel. We find that a satisfactory explanation exists for that inaction: the proper foundation had been laid for the evidence.
STATEMENT OF FACTS FOR THE CRIMES
1. Defendant’s Gang Affiliation
Defendant is a member of the “Rollin’ 60’s Neighborhood Crips” (“Rollin’ 60’s”), an offshoot of the “Westside Crips.” One of his gang names is “Little Chopper”. “Chopper” is gang slang for an assault rifle, including an AK-47. One of the primary rivals of the “Rollin’ 60’s” is the “8 Tray Gangster Crips” (“8 Tray”). In the opinion of a qualified gang expert, the murders, attempted murders, and shooting at an inhabited dwelling were committed to benefit the “Rollin’ 60’s.”
2. The First Shooting
The first shooting occurred on October 20, 2005 at approximately 5:17 p.m. in front of John Turner’s home located at 1223 West 84th Street in Los Angeles. It was still light out. His two adult two grandsons, Lester and Andre Turner, were in the front yard working on a car with an unidentified male friend. The residence is in an area controlled by the “8 Tray” gang. Andre and Lester Turner are “8 Tray” members.
Andre Turner saw a gray, four-door truck stop in the middle of the street about two houses away. Several men wearing hooded sweatshirts alighted from the truck and approached. Andre Turner asked: “What’s up?” The men replied “What’s up?” and began shooting at Lester and Andre Turner and their companion. One of the men used a rifle. Bullets entered the residence as the Turner brothers and their friend ran away. The shooters turned and ran back down the street to their truck. Laughing, they reentered the truck and left. No one was injured in the shooting.
Fred Johnson, a neighbor, saw the shooting. On four separate occasions, Johnson identified defendant as one of the shooters: in a photographic display, at a December 7, 2005 lineup, at the March 2007 preliminary hearing, and at trial. In addition, Johnson testified at trial that defendant had used a rifle resembling an AK-47.
On October 23, Andre Turner told Officer Richard Mendoza: “You all think I’m stupid. I saw who shot up my house. It was Chopper from 60’s. I know that bitch. The detectives showed me pictures of him today. I ain’t no snitch and I ain’t going to testify.” At trial, Andre Turner acknowledged that he knew defendant as “Chopper” from the “60’s” gang.
Andre Turner was referring to the fact that earlier that day, the police had come to his home to show him a six-person photographic display that included defendant. According to Detective Joseph Chavez, Turner “seemed very nervous and wasn’t too happy to see us.” Another man (unidentified) was present in the home. Detective Chavez saw the man “make eye contact” with Turner and make a gesture that “[b]asically in street terms it means you better not say anything to the police. No talking. Just don’t say anything.” After that, Turner “became more evasive [, ]... more nervous and basically was... avoiding most of [the detective’s] questions.” Turner recognized defendant’s photo, “stat[ing] that he knew [him] from jail” and “referred to him as a Rollin 60’s and... said his name was Chopper.” Turner, however, did not identify any of the men in the photos as the shooter and refused to write a statement on the photographic display.
At trial, Andre Turner denied having made that statement to Officer Mendoza.
Based upon the shooting at the Turner residence, defendant was convicted of the attempted murders of Lester and Andre Turner and their unidentified companion (counts 3, 4 & 5) and shooting at an inhabited dwelling (count 6).
In the information and verdict form, the victim was identified as “John Doe.”
3. The Second Shooting
The second shooting occurred less than 10 minutes later at a home slightly more than a mile from the Turner residence. Paul Fry and Thomas Sanders were at the home of one of Sanders’ relatives located at 7221 South Halldale Avenue. This home, like the Turner residence, is in “8 Tray” territory. Fry is a member of the “Bounty Hunters” gang, a rival gang to the “Crips.”
As Fry and Sanders entered Fry’s car, a man with a gun approached. He tried to fire the weapon but the gun jammed. The man ran away. Fry then saw another man with an “AK” rifle start shooting at him and Sanders. Fry described the shooter as an African American male, “around 6-1, 6-2” with a “healthy, athletic” body frame. Sanders was killed and Fry was seriously injured. Robin Sanders, Thomas Sanders’ aunt, heard the shots and ran out onto the porch. She saw a silver truck speed away from the scene.
Defendant is six feet, four inches tall and weighs approximately 210 pounds.
The police gathered 35 casings from this crime scene as well as the scene of the first shooting (the Turner residence). 30 of the casings were fired from the same assault rifle.
Based upon the shooting in front of the Sanders residence, defendant was convicted of the first degree murder of Sanders (count 1) and the attempted murder of Fry (count 2).
4. The Third Shooting
The third shooting occurred the next day (October 21) in front of an apartment complex located at 205 East Plymouth Street. This area is controlled by the Centinella Park Family Bloods, a rival of the “Rollin’ 60’s.” Four people were standing in front of the building: Jonithan Turnage, Jacare Smith, Shalvah McMullen, and a man identified only as Chris. Chris was a member of the Centinella Park Family Bloods. A gray truck without a license plate stopped in the middle of the street. Defendant alighted from the truck, smiled at Turnage and began shooting an AK-47 rifle in Turnage’s direction. Another man began shooting a handgun. Turnage and Smith were shot but survived. McMullen was killed.
From this crime scene, the police recovered the expended AK-47 casing and blue shirt subsequently used in the canine scent identification of defendant. The parties stipulated that the assault rifle used in this shooting was similar to the weapon used in the first two shootings.
Before trial, Turnage unequivocally identified defendant as the shooter on two separate occasions. First, during a February 2006 videotaped interview with Detective Kevin Lane, Turnage selected defendant from a six-person photo display. Next, he identified defendant as the shooter at the March 2007 preliminary hearing. However, at trial, Turnage, who conceded that he was there only because the police had served him with an arrest warrant and transported him to court, became more equivocal about his identification of defendant. He acknowledged that he had made the two prior identifications but then claimed that defendant, who was then present in court, “don’t even look like that photo.” When defense counsel showed him a photo of defendant taken by the police at the time of his arrest and asked him: “Is that the guy that shot at you?”, Turnage replied: “[I]t don’t look like it from here.” And when defense counsel asked if defendant was “the guy that got out of the truck” and shot at him, defendant responded: “It don’t look like it.”
The videotape was played for the jury.
When asked why he did not want to testify, Turnage replied: “Because I’m cool, I don’t want no parts of it. It’s too long. I don’t want no parts of this.”
Based upon the events of October 21, the jury convicted defendant of the first degree murder of Shalvah McMullen (count 8) and the attempted murders of Jonithan Turnage and Jacare Smith (counts 9 & 10).
5. Defendant’s Arrest
On October 22, the day after the third shooting, the police made a lawful traffic stop of a silver truck and detained its three occupants, including defendant. The truck’s driver was Percy Williams, a member of the “Rollin’ 60’s”; it’s rear passenger was Joseph Jones. The police found one live 9-millimeter round in the truck.
Witnesses identified the silver truck in which defendant was detained as the vehicle used in all of the shootings. Johnson, who witnessed the shooting at the Turner residence and identified defendant as the shooter, testified this was the truck that defendant and his companions entered to leave the scene. Robin Sanders, who saw a silver truck speed away from the shooting in front of her house, identified the truck as the one she had seen. Lastly, Claudia Regalado, a witness to the October 21 shooting in front of the apartment house at 265 East Plymouth Street, identified the truck as the vehicle that the shooters had used.
Sanders also testified that on October 22, 2005, the police transported her to the scene of defendant’s apprehension and that she then “positively identif[ied]” the silver truck as the vehicle she had seen the day before leave the shooting in front of her home.
6. The Parties’ Theories of the Case
Contrary to what defendant suggests in his appellate briefs, the evidence about the dog scent station identification played little role in the parties’ theories of the case as set forth in closing arguments.
The court submitted CALCRIM No. 374 (“Dog Tracking Evidence”). Neither party mentioned it in closing argument. The instruction provides:
The prosecutor’s closing argument made no mention of the dog scent identification. Instead, she explained the elements of the crimes and enhancements and how the evidence established each element beyond a reasonable doubt.
Defense counsel’s closing argument stated the key issue was defendant’s identification as the shooter. Counsel attacked Johnson’s identification of defendant at the first shooting, urged the jury to reject Turnage’s two pretrial identifications of defendant at the third shooting, and noted that no one from the second shooting had identified defendant. Defense counsel then briefly turned to the scent identification evidence. He minimized its significance, arguing that because “the dog” could not “tell you when that scent was laid down” on either the blue shirt or expended casing, the dog’s identification of defendant “can’t tell you who the shooter was.” He asked rhetorically: “Can the dog come in and say: ‘[Defendant] loaded that weapon with that cartridge’? That’s how his scent got on there.” Lastly, defense counsel questioned why the STU had been used on only one casing. He argued: “They did a scent capture [on] one shell casing, and they never did any of the others.... I’m not sure what that means.... There was plenty of time to test it. It wasn’t tested, all these other shell casings that were left. The burden is on the prosecution.”
In her rebuttal argument, the prosecutor explained that the dog scent identification evidence was just one of the “building blocks” in the prosecution’s case connecting defendant to the third shooting. In particular, she stated: “And then you have the dog scent evidence that says, you know what, Jonithan Turnage, you’re right. Your [pretrial] identification is right.”
In sum, nothing in either the evidentiary record or the prosecutor’s closing or rebuttal arguments supports defendant’s claim that “[t]he station identifications became the glue which held this shaky case together.” (Boldface omitted.) The scent identifications were derived solely from evidence obtained from the scene of the third shooting and the prosecutor relied upon this evidence only to urge that Turnage’s two pretrial identifications of defendant as the shooter at the third shooting were truthful.
LEGAL, FACTUAL AND PROCEDURAL BACKGROUND RE ADMISISION OF DOG SCENT IDENTIFICATION EVIDENCE
1. Legal Background
People v. Kelly, supra, 17 Cal.3d 24 (Kelly) held that evidence obtained through a new scientific technique can be admitted only after its reliability has been established under a three-prong test. “‘The first prong requires proof that the technique is generally accepted as reliable in the relevant scientific community. [Citation.] The second prong requires proof that the witness testifying about the technique and its application is a properly qualified expert on the subject. [Citation.] The third prong requires proof that the person performing the test in the particular case used correct scientific procedures. [Citation.]’” (People v. Mitchell (2003) 110 Cal.App.4th 772, 782.)
Two opinions from the Court of Appeal have held that a Kelly hearing is required before canine scent identification evidence based upon use of a STU can be admitted. (People v. Willis, supra, 115 Cal.App.4th at p. 386; People v. Mitchell, supra, 110 Cal.App.4th at p. 775.) Each opinion expressed various concerns about the STU. (People v. Willis, supra, 115 Cal.App.4th at pp. 385-386; People v. Mitchell, supra, 110 Cal.App.4th at pp. 789-794.) At this point, no published opinion from a California Appellate Court has held that a STU meets the Kelly requirements.
2. The Prosecutor’s Motion
Before trial, the prosecutor filed a motion requesting the trial court “to admit evidence of canine scent-identification, because [the] proper foundation may be established to admit such evidence.” To lay that foundation, the People offered the record of a Kelly hearing that had been conducted several years earlier in an unrelated case before another trial judge (Judge Rosenblatt). Six witnesses had testified at the four-day hearing: five for the prosecution and one for the defense. The People submitted copies of the 637-page reporter’s transcript of the hearing; Judge Rosenblatt’s detailed 19-page ruling; and a compact disc with an index containing the scientific literature and articles reviewed by Judge Rosenblatt.
People v. Salcido (Super. Ct. L.A. County 2005, No. GA052057).
Judge Rosenblatt held that the STU “is generally accepted as reliable in the relevant scientific community.” To render that holding, she ruled first on several foundational issues: (1) “The experts have established that to a reasonable scientific certainty, human scent is unique. Trained dogs can distinguish between one smell and another and can do so reliably.... [D]ogs can be trained to discriminate between the scent of one human and another”; (2) “The experts have established that for purposes of scent identification, scent can remain on an object for days, months and even years, through bomb blasts, under water and in the elements”; (3) “Human scent, whether particulate or gaseous in nature, is airborne and moveable from one surface to another with or without contact”; (4) “[D]ogs are capable of differentiating the odor of different individuals on an object” and “trained dogs use the unique human odor as their cue”; and (5) Bloodhounds “have acute scent capabilities” and “can be trained to be good at scent discrimination.”
Judge Rosenblatt therefore ruled that “the STU and dog scent discrimination evidence is admissible in court, with corroboration, if the person performing the technique used the correct scientific procedures, the training and experience of the dog and dog handler prove them to be proficient, and the methods used by the dog handler in the case are reliable.” (Italics added.)
Defendant states that Judge Rosenblatt’s ruling “never received appellate review because the case settled before trial.”
The People, citing concerns of judicial economy, asked the trial court to take judicial notice of all of the material it had tendered “to determine whether or not the STU meets the test of reliability under Kelly.” (See, e.g., People v. Smith (1989) 215 Cal.App.3d 19, 25 [appropriate for a trial court to take judicial notice of earlier Kelly hearing “so long as a defendant is not foreclosed from showing new information which may question the continuing reliability of the test in question or to show a change in the consensus within the scientific community concerning the scientific technique”].)
The People explained that “[i]n addition to satisfying the Kelly test, the collection procedure must be shown to have been in accord with scientifically approved protocol. This determination should be reserved for a trial court hearing pursuant to Evidence Code section 402. An affirmative finding at such a hearing will fulfill all three prongs of the Kelly test, opening the door for presentation at trial of evidence of the dog’s ability, reliability, and identification.” (Italics added.)
Lastly, the People urged that assuming the trial court found that use of the STU met the Kelly criteria, the dog’s “ability to use scent evidence to track need not be subject to a Kelly hearing because it, unlike the STU, is not a ‘scientific technique.’” Instead, evidence that the dog had identified defendant using scent was admissible as long as the People laid the proper foundation.
The defense did not file opposition to the People’s motion.
3. The Hearing on the Pretrial Motion
After reading the People’s motion, the trial court conducted a reported hearing. The court stated:
“This is a time set for hearing of the People’s motion to admit [canine] scent identification evidence. The court has read the motion and has read the opinion by Judge Rosenblatt which is attached as part of the motion as well as the supporting transcripts of witnesses. I do believe that it is appropriate to take judicial notice of the extensive hearing that Judge Rosenblatt held on the issue of admissibility of the Scent Transfer Unit Model 100, I think is the way it’s referred or abbreviated, as S.T.U.
“Judge Rosenblatt in her lengthy written opinion found that the S.T.U. is generally accepted as reliable in the relevant scientific community. And she further ruled that S.T.U. and dog scent discrimination evidence is admissible in court with corroboration if the person performing the technique used the correct scientific procedures, the training and experience of the dog and the dog handler prove to be sufficient and the methods used by the dog handler in the case are reliable.”
The court then asked defense counsel: “[D]o you care to argue the issue of whether or not Judge Rosenblatt’s opinion on this should be accepted by this court?”
Defense counsel replied:
“Your Honor, just briefly.
“I think it is discretionary with the court, obviously, whether or not you are going to allow such evidence in. I think counsel pointed out aptly that the Appellate Court is yet to render a ruling or opinion on the admissibility of this S.T.U. scent device which would supposedly capture the scent. And I had another issue that wasn’t addressed, but the issue about the scent being able to be transferred off of something as a bullet that’s fired. And I think the court had some reservations about that the last time we informally discussed it. I don’t remember if it was on the record or off the record. But in any event, I would object to this, Your Honor. And I would submit it. Thank you.” (Italics added.)
In response to a question from the court, the prosecutor confirmed that in this case scent evidence had been obtained from an expended casing as well as a shirt left at the crime scene. The court proceeded to rule:
“Now, I feel based upon the information that has been presented to the court, which I take judicial notice that the S.T.U. scent capturing device is generally acceptable as reliable in the scientific community and the showing that was made and the evidence taken in the [proceeding] that Judge Rosenblatt presided over at the time – convinces this court that the requirements of the Kelly case was satisfied in that regard. And I do accept Judge Rosenblatt’s opinion on that as fully supported by the evidence.” (Italics added.)
Judge Rosenblatt’s ruling had stated: “It is the method of collection, the scent transfer unit called the STU, which is the subject of the Kelly Hearing.”
The court indicated that the prosecutor would still be required to show “that in this particular case the procedures were properly followed in that the dog and the dog handler were properly qualified.” (Italics added.) The court stated the matter could be taken up either before or during trial. The prosecutor represented that she would be able to establish the foundational requirements at trial. Defense counsel agreed to permit the People to present that evidence during trial, subject to a motion to strike.
4. Trial Testimony About Scent Identification
Buena Park Police Officer Christos Charalambous has been a peace officer for 17 years. He is currently assigned to the canine unit. He has been trained to teach bloodhounds to use scent evidence to find an individual. The police “specifically” use bloodhounds for tracking based upon scent because “everybody has a certain odor, just kind of like fingerprints, every person has a unique odor” and bloodhounds can discern that scent.
Beginning in 2004, Officer Charalambous received extensive training about the proper use of a STU to gather scent. Now, he teaches others, including FBI agents, how to use a STU. He has used a STU to collect the scent from evidence (including a shirt and expended casings) found at crime scenes between 200 and 300 times. He explained that if the STU sucks off multiple scents from one item that two or more people have touched, “the dog will be able to determine which scent it’s going to go follow.... [I]f one of the scents matches on the ground, ... the dog will match whatever is on the pad to the ground and they will go with it.”
On October 21, 2005, Officer Charalambous used an “STU-100” at the scene of the third shooting (205 East Plymouth Street) to collect human scent from a blue shirt (taking three samples) and from one spent shell casing (taking another three samples). The STU-100 works like a vacuum, sucking scent from an object and depositing it on a sterile gauze pad. Officer Charalambous followed prescribed procedures to ensure the scent he obtained was not contaminated. Officer Charalambous gave all of the scent pads to the forensics unit for refrigeration.
On October 23, 2005, the scent pads were used to identify defendant at the 77th Street station. The identification was made by a bloodhound named Enya. Ervin Reyburn, a retired El Monte Police Officer, testified as follows. He had worked as a police officer for El Monte Police for 30 years. The last seven years of his service were spent as a canine officer, a field in which he received extensive training from court-certified experts. For the two years prior to his retirement, he supervised the canine unit. He has previously qualified in court as a canine handler. Since 2000, he has received on-going training with the Bloodhound Coalition as a bloodhound handler who conducts dog scent identification.
The People’s pretrial motion had explained: “[T]he LA Sheriff’s Department, the El Monte Police Department, South Pasadena Police Department, Irvine Police Department, and Ventura County Sheriff’s Department have collaborated to establish guidelines for the use of bloodhounds in scent tracking. This is known as the ‘Bloodhound Coalition.’” Judge Rosenblatt, whose opinion was adopted in toto by the trial court, had found that “these certification procedures meet the minimum standards.” In addition, Officer Charalambous had testified that the Bloodhound Coalition was “a group of officers from different organizations that get together and train together. Kind of like a canine group that goes out, works bloodhounds and trains bloodhounds together.”
In 2000, Reyburn started training Enya in police station scent identification. Reyburn had the assistance of four certified experts in training her as a “scent discriminate dog” that “looks for the specific scent given to her.” In particular, Enya was trained to trail suspects using the scent transferred from expended casings. At the close of her training, Enya received the required certification from the Bloodhound Coalition. By the time of trial, Enya had worked between 120 and 130 scent discrimination cases. To Reyburn’s knowledge, Enya had never misidentified anyone.
At the 77th Street station, Detective Lane asked Reyburn to have Enya run trails using the scent obtained from the blue shirt and the shell casing. Lane told Reyburn that “a possible suspect was inside the building, ” but did not tell him where the suspect was located. Reyburn explained: “I don’t want to know” where the suspect is in the building “[b]ecause it would influence me as a handler while working the dog. I have to go on what the dog is doing, not on what I want to do.”
Reyburn put Enya in a harness with a 15-foot lead, and took her inside the southeast area of the station. He gave Enya a scent pad taken from the blue shirt, let her inhale it, and told her to search. Enya headed to the foyer, sniffed around the elevators, and “downed” in front of the westernmost elevator, indicating that she wanted to go through the door. When the elevator came, they went to the second floor, where Enya continued to trail through several hallways and into the homicide bureau and up to a partially ajar door. Enya’s tail wagged heavily, indicating that she was happy. Reyburn opened the partially ajar door. Enya entered and went up to defendant, who was seated in the room. Enya nuzzled defendant and sat down in front of him, indicating her identification of the scent.
Thereafter, defendant was moved to a new location. Reyburn “did not know where he was moved to, nor the route that he had taken.” After approximately 15 minutes, Reyburn gave Enya the scent pad taken from the shell casing. Starting next to a stairwell in the homicide bureau, Reyburn told Enya to search. She circled the office, and went down the stairwell. She downed in front of one of three doors, and then went through the door into the lobby and up to an interview room. The door was ajar. Reyburn opened it, and Enya entered. She pounced on the lap of defendant, who was seated there, indicating her scent identification.
Defense counsel did not move to strike any of the testimony given by Officer Charalambous or Reyburn.
DISCUSSION
In this appeal, defendant does not challenge the trial court’s ruling, adopting Judge Rosenblatt’s earlier opinion, that the STU met the Kelly criteria. Instead, defendant contends: “The Trial Court Erred in Admitting the Dog Scent Station Identification, Violating [His] Federal Constitutional Due Process Rights to a Fair Jury Trial.” He argues: “The station identifications... in which dogs match the scent of crime objects (usually bullet casings) to a particular suspect have not been generally accepted as reliable in the scientific community.” Defendant advances several arguments as to how and why the dog handler can impermissibly influence the dog’s action, and suggests, without any citation to the trial record, that “even though Reyburn did not know the location of [defendant], he could have influenced Enya’s search simply by consciously or unconsciously urging her to continue until she found a likely candidate in a likely location.” (Italics added.) Thus, defendant flatly concludes: “[S]tation identifications should not be admissible in court.” He asks this court to change the law so as to “prohibit the admission of dog scent identification evidence on a case-by-case basis because there is no scientific consensus concerning its reliability.” Defendant’s prolix briefs rely, in part, on articles that were not published when Judge Rosenblatt made her ruling and therefore were not presented to the trial court in this case.
Citing People v. Shirley (1982) 31 Cal.3d 18, 56, footnote 34 and People v. Reilly (1987) 196 Cal.App.3d 1127, 1134, defendant notes that as a reviewing court we can consider scientific literature not presented to the trial court. That principle, however, presupposes that the issue whether the Kelly criteria have been satisfied was adequately raised below. As we explain, defendant’s contention that dog scent station identification evidence fails to satisfy Kelly was not raised below. Thus, there is no reason to consider literature not presented to the trial court because the core claim was never presented to that court.
We cannot and do not reach the merits of defendant’s arguments because they have been forfeited by his failure to raise them in the trial court. To preserve for appellate review the claim that evidence was erroneously admitted, the defendant must object in the trial court. (Evid. Code, § 353, subd. (a); People v. Kennedy (2005) 36 Cal.4th 595, 612.) Absent a timely and specific objection, the claim is forfeited. (Ibid.) In this case, defendant failed to make the objection that he now advances: dog scent station identification is not reliable, either in general or in this specific case.
As set forth earlier, the People’s pretrial motion asked the trial court to determine whether the STU met the Kelly criteria. To that end, the People asked the trial court to take judicial notice of the evidence offered at the earlier hearing conducted on the same issue by Judge Rosenblatt and to adopt her ruling. Defendant filed no opposition to this motion, did not object to the trial court’s consideration of any of the material offered by the People, and offered no additional evidence for the court to consider.
At the hearing, the trial court indicated that it would take judicial notice of the evidence that had been presented to Judge Rosenblatt as well as the ruling that she had made. Defendant did not object to this procedure. When asked if he “care[d] to argue the issue” whether Judge Rosenblatt’s opinion should be adopted in this case, defense counsel simply noted (correctly) that the decision lay in the trial court’s discretion but that he “would object to this.” He stated no specific grounds for his objection. The trial court then adopted Judge Rosenblatt’s decision “as fully supported by the evidence” but stated that the prosecutor still had to lay the foundation for the scent identification evidence by showing that “the procedures were properly followed in that the dog and the dog handler were properly qualified.” Defense counsel agreed that the prosecution could present this evidence during trial (as opposed to before trial) subject to his motion to strike based upon inadequate foundation.
At trial, the prosecution presented the required foundational evidence through the testimony of Officer Charalambous and Reyburn. Defense counsel’s cross-examination of the two witnesses did not raise any of the concerns that defendant now advances about possible suggestive behavior by Reyburn improperly influencing Enya’s scent identification. After Reyburn concluded his testimony, defense counsel did not move to strike on any ground the testimony about Enya’s two scent identifications of defendant although the trial court had previously stated it would entertain such a motion. Therefore, the claim that defendant now advances is forfeited.
To avoid this conclusion, defendant makes two distinct arguments.
First, defendant argues that his objection at the pretrial hearing was sufficient to preserve his present claim for review. We are not persuaded. For one thing, the focus of the pretrial hearing was whether the STU satisfied the Kelly test, not whether dog scent identification evidence was admissible in this case. Defense counsel’s agreement that the prosecutor could present the foundational evidence for the dog scent identification at trial subject to his motion to strike implicitly recognized that his objection at the hearing was not sufficient to preserve any objection to that evidence and that he would be required to object after the People had presented it if he did not wish the jury to consider it. Moreover, defendant’s objection at the pretrial hearing was generic: he simply objected to the trial court’s adoption of Judge Rosenblatt’s opinion without raising any specific objection to the testimony she had heard, the articles she had reviewed, or the preliminary findings she had made. Thus, the fact that Judge Rosenblatt had also found that “dog scent discrimination evidence” is admissible assuming the proper foundation is laid does not render defendant’s general objection sufficient to preserve the arguments he now advances. “Specificity is required both to enable the court to make an informed ruling on the... objection and to enable the party proffering the evidence to cure the defect in the evidence.” (People v. Mattson (1990) 50 Cal.3d 826, 854.) This requirement “prevents a party from engaging in gamesmanship by choosing not to object, awaiting the outcome, and then claiming error.” (People v. Kennedy, supra, 36 Cal.4th at p. 612.) Defendant’s objection failed to meet this requirement. (See People v. Demetrulias (2006) 39 Cal.4th 1, 22 [a general objection such as relevance is insufficient to preserve an appellate claim based upon specific grounds].)
That defense counsel also noted his concern “about the scent being able to be transferred off of something as a bullet that’s fired” adds nothing to defendant’s argument that the objection was sufficient to preserve the claim he now advances. That concern, whatever its merits, bears no relationship to defendant’s present argument that “dog scent identification evidence in the form of station identifications” fails to meet the Kelly criteria.
Defendant next seeks to avoid the forfeiture conclusion by arguing that trial counsel’s failure to object or to move to strike constitutes prejudicial ineffective representation. We are not persuaded.
“Failure to object rarely constitutes constitutionally ineffective legal representation.” (People v. Boyette (2002) 29 Cal.4th 381, 424.) Defendant must establish that trial counsel’s failure fell below an objective standard of reasonableness and, absent that failing, there is a reasonable probability that the result of the trial would have been different. (People v. Hernandez (2004) 33 Cal.4th 1040, 1052-1053.) When, as here, the record on appeal sheds no light why trial counsel failed to object, the claim of ineffective assistance must be rejected unless there could be no satisfactory explanation for the lack of objection. (People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.) “Were it otherwise, appellate courts would be required to engage in the ‘“perilous process”’ of second-guessing counsel’s trial strategy.” (People v. Frye (1998) 18 Cal.4th 894, 979.)
In this case, a satisfactory explanation exists for trial counsel’s failure to object to or move to strike the evidence of Enya’s two scent identifications of defendant: the proper foundations had been adequately laid for the evidence. Officer Charalambous testified about the ability of bloodhounds to use scent evidence to track individuals. Reyburn testified about his training and experience first as a canine officer and later as a bloodhound handler specializing in scent identification. Further, Reyburn testified about Enya’s extensive training, certification, and proficiency in police station scent identification as well as the precautions he took to ensure reliable results on the day in question. This testimony constituted more than substantial evidence to support a finding by the trial court—had it been asked to make one—that the proper foundation had been laid for the station scent identifications of defendant. In other words, the trial court would have overruled any objection by defense counsel. Because trial counsel is not required “to indulge in idle acts to appear competent” (People v. Torrez (1995) 31 Cal.App.4th 1084, 1091), defense counsel’s failure to object or to move to strike does not establish ineffective representation. (See also People v. Price (1991) 1 Cal.4th 324, 387 [“Counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile.”].)
Appellate counsel filed a habeas corpus petition in this court alleging prejudicial ineffective assistance of trial counsel. (In re Damien Watts, B230198.) He alleges that he asked trial counsel several times for an explanation for his failure to object but received no response. We deferred consideration of the petition pending resolution of the appeal. Today, we file an order summarily denying the petition without prejudice to filing it first in the trial court.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P.J., MANELLA, J.
“You have received evidence about the use of a tracking dog. You may not conclude that the defendant is the person who committed the crime based only on the fact that a dog indicated the defendant. Before you 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 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 dog’s work in this case.”