People v. Malgren

• Decision Date: 19 January 1983
• Docket Number: Cr. 23419
• Citation: 188 Cal.Rptr. 569,139 Cal.App.3d 234
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Ronald Fred MALGREN, Defendant and Appellant. A012644.

Page 569

188 Cal.Rptr. 569

139 Cal.App.3d 234

The PEOPLE of the State of California, Plaintiff and Respondent, v. Ronald Fred MALGREN, Defendant and Appellant.

A012644.

Cr. 23419.

Court of Appeal, First District, Division 3, California.

Jan. 19, 1983.

Hearing Denied March 23, 1983.

Quin Denvir, State Public Defender, Jean Hagins Alexander, Acting Deputy State Public Defender, San Francisco, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., William D. Stein, Asst. Atty. Gen., W. Eric Collins, Robert R. Granucci, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

SCOTT, Acting Presiding Justice.

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 back yard. 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 back yard, 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 Wash.App. 407, 623 P.2d 733; State v. Barger (Tenn.Cr.App.1980) 612 S.W.2d 485.) Consistent with the majority view, the court in People v. Craig, supra, 86 Cal.App.3d 905, 150 Cal.Rptr. 676 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, 150 Cal.Rptr. 676.) 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.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, 150 Cal.Rptr. 676.) 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 two or three 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 didn't 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, 150 Cal.Rptr. 676, 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, 150 Cal.Rptr. 676, original emphasis.) 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...