People v. Malgren

139 Cal. App. 3d 234, 188 Cal. Rptr. 569, 1983 Cal. App. LEXIS 1323

• Court: California Court of Appeal
• Decided: January 19, 1983
• Docket: Crim. 23419
• Status: Published

Opinions

Opinion

SCOTT, Acting P. J.

Ronald Fred Malgren was convicted by a jury of burglary (Pen. Code, § 459). He contends: (1) evidence of dog tracking was improperly admitted; (2) the evidence was insufficient to support the conviction; (3) the trial court should have instructed sua sponte that dog tracking evidence should be viewed with caution and does not by itself warrant a conviction; and (4) the court should not have instructed on flight.

I

Viewed in the light most favorable to the judgment, the evidence established the following. Teenagers John and Amy Cox returned to their Burlingame home one evening at about 11:15 p.m. Their parents were out of town. When they arrived, they noticed that a door which had been unlocked when they left, and which could only be locked from the inside, was locked. When they got into the house, they noticed that the front door handles or knobs had been removed. Amy screamed, and they heard a large crash from their parents’ bedroom. They heard someone running down the hall and loudly pulling at the dead-bolted door which opened onto the backyard. They ran to a neighbor’s, and called police.

Officer Gyselbrecht of the Burlingame Police Department arrived at approximately 11:39 p.m. with a police tracking dog, Sarge. The officer walked several steps inside the front door and commanded the dog to “track.” Sarge ran down the hallway and into the bedroom. From there the dog ran through the opened and damaged back door, across the backyard, and into the adjacent game reserve. A freeway was about 100 yards behind the house; the game reserve of bushes and high grass was between the house and the freeway. Sarge tracked for approximately 35 minutes and over about seven-tenths of a mile, and then ran into some high bushes and began to growl and bite. Appellant was found in the bushes, out of breath and perspiring. The bottoms of his trouser legs were wet, and there were leaves on his jacket, and mud and grass stains on his shoes.

Later that night, a penlight was found on the fire trail approximately 75 feet north of the burglarized residence. Although the surrounding ground was wet, the penlight was dry. The next day a pair of pliers was recovered hidden at the base of a bush about five houses north of the residence. Test of metal fragments on the teeth of the pliers and of the spacing of the teeth compared with marks on the doorknobs yielded results consistent with the theory that the pliers were used in the burglary.

Appellant testified in his own defense. He claimed that he had helped a woman start her car, and she invited him for a ride. As they were driving south on the freeway, he made unflattering remarks about her car, and she told him to get out. He was walking on the freeway when the dog came along and attacked him. He ran into the bushes to escape from the dog.

II

Relying on People v. Craig (1978) 86 Cal.App.3d 905 [150 Cal.Rptr. 676], appellant contends the dog tracking evidence was inadmissible for lack of a proper foundation. We disagree.

While a few courts have held that evidence of the conduct of a dog who has trailed an accused is always inadmissible, the majority view is that such evidence is admissible, provided a proper foundation is laid. (See Annot. (1968) 18 A.L.R.3d 1221; State v. Bourassa (1979) 137 Vt. 62 [399 A.2d 507]; State v. Socolof(1981) 28 Wn.App. 407 [623 P.2d 733]; State v. Barger (Tenn.Crim.App. 1980) 612 S.W.2d 485.) Consistent with the majority view, the court in People v. Craig, supra, 86 Cal.App.3d 905 held that dog trailing evidence is admissible in this state upon a sufficient showing of the particular dog’s ability and reliability in tracking humans. (Id., at p. 915.) While we agree that in each case the proponent of dog tracking evidence must establish the dog’s ability and reliability, we believe a proper foundation must also include evidence that the circumstances of the tracking itself make it probable that the person tracked was the guilty party (see State v. Bourassa, supra, 399 A.2d at p. 510). We conclude that the following must be shown before dog trailing 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. (State v. Socolof, supra, 623 P.2d at p. 734; see Cook v. State (Del.Sup. 1977) 374 A.2d 264, 270; People v. Sands (1978) 82 Mich.App. 25 [266 N.W.2d 652, 657].)

These requirements were satisfied here. Officer Gyselbrecht testified that the department acquired Sarge in 1978, and that he [the officer] was trained at that time as the dog’s handler by Robert Outman, described by the Craig court as an expert in dog training and handling, with particular emphasis on police dogs. (Craig, supra, 86 Cal.App.3d at p. 916.) In addition to that initial training, he and the dog had regularly participated in weekly maintenance training with Outman between 1978 and 1980, and with trainer James Patrick thereafter. Prior to its acquisition by the department, Sarge was trained by Outman, and was certified as 100 percent accurate. During its maintenance training, the dog continued to perform with 100 percent accuracy, and could successfully track an individual even though seven or eight people had walked over the area both before and after the track was laid. Gyselbrecht had actually used the dog on the street for tracking 15 or 20 times, and had captured 2 or 3 suspects. Sometimes the trail was interrupted by obstacles such as deep creeks or rooftops, or by the suspect’s flight in an auto; on other occasions the officer called the dog back because he did not want it to track across a freeway. As for the circumstances of this tracking, the dog was placed on the trail within 20 to 25 minutes after the intruder fled from the victims’ home.

Appellant’s objection that trainer Patrick did not qualify as an expert on dog training and performance, and should not have been allowed to testify, is without merit. The trial court is given considerable latitude in determining the qualifications of an expert; its ruling will not be disturbed on appeal, absent a manifest abuse of discretion. (People v. Kelly (1976) 17 Cal.3d 24, 39 [130 Cal.Rptr. 144, 549 P.2d 1240].) While Patrick had no academic training in canine psychology or other related subjects, he had many years of occupational experience as a dog trainer. (See Evid. Code, § 720, subd. (a).) He had trained about 25 dogs for police departments; that training included search work. In addition, he conducted weekly maintenance training sessions for working police dogs. We find no abuse of discretion in admitting his testimony as an expert dog trainer.

Appellant also contends that a proper foundation was not laid for the admission of evidence about a second dog, Hunter, which found the pliers in the bushes. Appellant made no objection to that testimony at trial, however, and cannot challenge its admissibility for the first time on appeal. (People v. Smith (1977) 70 Cal.App.3d 306, 317 [138 Cal.Rptr. 783].)

III

Appellant also contends the evidence is insufficient to support the verdict.

In Craig, supra, 86 Cal.App.3d 905, the court stated, without citation of authority and without amplification, that dog trailing evidence, by itself, is not sufficient to warrant conviction. (Id., at p. 918, original italics.) Courts in those states admitting dog trailing or tracking evidence are in general agreement that such evidence alone cannot support a conviction, but we have found no consistent or clear expression of either the kind or the quantity of other evidence required, or of what that other evidence must establish. (Cf. People v. Perryman (1979) 89 Mich.App. 516 [280 N.W.2d 579, 583] [other direct evidence of guilt necessary]; State v. Taylor (1978) 118 N.H. 855 [395 A.2d 505, 507] [bloodhound evidence not in and of itself evidence a crime was committed; must be “some other evidence of guilt”]; Meyers v. Commonwealth (1922) 194 Ky. 523 [240 S.W. 71, 74] [must be “other sufficient incriminatory evidence” to uphold the conviction].) While we agree that there must be some corroborating evidence when dog tracking evidence is used to prove the identity of a criminal defendant, we see no reason to require that supporting evidence to be direct. The fact that all evidence is circumstantial does not lessen its weight, and circumstantial evidence is as adequate to convict as direct evidence. (People v. Goldstein (1956) 139 Cal.App.2d 146, 155 [293 P.2d 495].)

We emphasize that our task is not to decide whether we believe the evidence at trial established appellant’s guilt beyond a reasonable doubt, but to determine whether substantial evidence supports the conclusion of the trier of fact. We must view the evidence in the light most favorable to the judgment, presume in support of the judgment the existence of every fact the jury could reasonably deduce from that evidence, and determine whether the record discloses substantial evidence such that a reasonable trier of fact could find the appellant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576-578 [162 Cal.Rptr. 431, 606 P.2d 738].)

Officer Gyselbrecht arrived at the victims’ home less than 30 minutes after the burglar forcibly broke open the back door and fled. The officer ordered Sarge, a well-trained, experienced, and reliable tracker, to track. Sarge led the officer through the damp, grassy game reserve behind the house to appellant, hiding in the bushes less than seven-tenths of a mile north of the house. Although the night was cold, appellant was panting and perspiring, as if he had been running. The bottoms of Ms pants legs were wet, and Ms tenms shoes were muddy and wet and grass-stained; those facts also support the reasonable inference that he had just run from the home through the game reserve.

Officer Hall, who walked along the freeway opposite the Cox home after the burglary, testified that Sarge ran past him without pausing and headed into the bushes, followed by Ms trainer; Hall then saw appellant emerge from the bushes. Hall had not previously seen appellant or anyone else on the freeway or on its shoulder.

Appellant was found north of the victims’ home. Between the home and the bushes where he was found, officers also found a penlight, which appeared to have been recently dropped, and pliers with metal fragments in them which were consistent with their use in the burglary. The combination of all tMs circumstantial evidence is sufficient to support the conviction.

In addition to the above, appellant testified with Ms explanation of his midmght presence in the bushes between the Cox house and the freeway. We recognize that appellant had no burden of proof. Nevertheless, where a material fact is established by the evidence and it is shown that a defendant’s testimony as to that fact is wilfully untrue, tMs circumstance tends to show consciousness of guilt and has probative force in connection with other evidence on the issue of such guilt. ( People v. Wayne (1953) 41 Cal.2d 814, 823 [264 P.2d 547], overruled on another ground in People v. Snyder (1958) 50 Cal.2d 190, 197 [324 P.2d 1].) Here appellant did not simply deny Ms guilt, but “ventured upon an explanation [for Ms presence in the bushes] so unusual that the triers of fact could [have] conclude[d] that it was an intentional fabrication indicating consciousness of guilt and the absence of any true exculpatory explanation.” (Ibid.)

IV

Appellant also contends the trial court erred in failing to give sua sponté the instruction on dog tracking evidence in People v. Craig, supra, 86 , which states that such evidence should be viewed with caution, and is not alone sufficient to warrant conviction.¹

In criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case. (People v. Wickersham (1982) 32 Cal.3d 307, 323 [185 Cal.Rptr. 436, 650 P.2d 311].)

The sua sponte rule “‘ ... [is] undoubtedly designed to promote the ends of justice by providing some judicial safeguards for defendants from the possible vagaries of ineptness of counsel under the adversary system. . . . ’[Citation.]” (People v. Flannel (1979) 25 Cal.3d 668, 683 [160 Cal.Rptr. 84, 603 P.2d 1].) The trial court need not fill in every time a litigant or his counsel fails to discover an abstruse but possible theory of the facts. (People v. Wade (1959) 53 Cal.2d 322, 334 [348 P.2d 116].) “The duty of the trial court involves percipience—not omniscience.” (People v. Cram (1970) 12 Cal.App.3d 37, 41 [90 Cal.Rptr. 393].)

It did not take omniscience to see the significance of dog tracking evidence in this case, and Craig was decided almost three years before appellant’s trial. The principle that dog trailing evidence alone is not sufficient to warrant conviction was unquestionably a principle openly and closely connected with the facts before the court. Nevertheless, we disagree that the court was obligated to instruct that dog trailing evidence must be viewed with caution, or that such evidence is of little probative value. Unlike accomplice testimony, dog tracking evidence is not inherently suspect because of a self-interested source. (See People v. Gordon (1973) 10 Cal.3d 460, 471 [110 Cal.Rptr. 906, 516 P.2d 298].) The notion that such evidence is of slight probative value or must be viewed with caution stems at least in part from a fear that a jury will be in awe of the animal’s apparent powers and will give the evidence too much weight. (See People v. McPherson (1978) 85 Mich.App. 341 [271 N.W.2d 228, 230].) In light of the stringent foundational requirements which must be met before such evidence is admissible at all, however, we see no reason to categorize that evidence thereafter as inferior or untrustworthy, and instruct that it be given less weight than other evidence. The Craig court itself suggested that what the law in this state actually requires is not that dog trailing evidence be viewed with caution, but that it be treated as any other evidence, with its weight left to the trier of fact. (Craig, supra, 86 Cal.App.3d at p. 918.)

We hold, then, that the trial court should have instructed sua sponte that (1) when dog tracking evidence is used to prove the identity of a defendant, there must be some other evidence, either direct or circumstantial, which supports the accuracy of that identification evidence; and (2) in determining what weight to give such evidence, the jury should consider the training, proficiency, experience, and proven ability, if any, of the dog, its trainer, and its handler, together with all the circumstances surrounding the trailing in question.

Finally, appellant also contends that the court erred when it instructed with CALJIC No. 2.52 (1979 rev.) (Flight After Crime).² We agree. It is inappropriate to give a flight instruction when the identity of the perpetrator or perpetrators who fled is in question. (People v. Moringlane (1982) 127 Cal.App.3d 811, 821 [179 Cal.Rptr. 726]; People v. Salazar (1980) 108 Cal.App.3d 992, 997-998 [167 Cal.Rptr. 38]; People v. Anjell (1979) 100 Cal.App.3d 189, 199 [160 Cal.Rptr. 669].)

The court’s instructional errors were not prejudicial. We have no reason to believe that the jury relied only on the dog tracking evidence and rejected the other evidence of appellant’s guilt. We do not believe that absent the errors, it is reasonably probable that a result more favorable to appellant would have been reached. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].)

Judgment is affirmed.

Barry-Deal, J., concurred.

1 That instruction in its entirety was: “Testimony of dog trailing has been presented in this case. Such dog trailing evidence must be viewed with the utmost of caution. Such evidence must be considered, if found reliable, not separately, but in conjunction with all other evidence in the case. Dog trailing evidence alone is not sufficient to warrant conviction. In determining what weight to give such evidence you should consider the training, proficiency, experience, and proven ability, if any, of the dog, its trainer, and its handler, together with all the circumstances surrounding the trailing in question.”

2 “The flight of a person immediately after the commission of a crime, or after he is accused of a crime, is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding the question of his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine.”