P. v. Childs
Filed 8/7/13 P. v. Childs CA2/4
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE
PEOPLE,
Plaintiff and Respondent,
v.
MARTIS
LEONARD CHILDS,
Defendant and Appellant.
B236982
(Los Angeles County
Super. Ct. No. VA109176)
APPEAL from a judgment of the Superior
Court for Los
Angeles County, Philip H. Hickok, Judge.
Affirmed.
Cannon & Harris and Donna L.
Harris, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Linda C. Johnson and Robert M. Snider, Deputy Attorneys
General, for Plaintiff and Respondent.
Defendant Martis Leonard Childs
appeals from a judgment sentencing him to a prison term of 90 years to life
after a jury found him guilty of first
degree murder (Pen. Code,
name="_ftnref1" title="">[1]
§ 187, subd. (a)) and attempted first degree murder (§§ 664/187,
subd. (a)), and found to be true allegations that the crimes were committed for
the benefit of a criminal street gang
(§ 186.22, subd. (b)(1)(C)) and that defendant personally discharged a
handgun causing death and great bodily
subd. (d)). Defendant raises two issues
on appeal. He contends: (1) the investigators employed impermissibly
suggestive identification procedures with one of the witnesses, who was the
only non-accomplice witness to identify defendant; and (2) the trial court
improperly admitted dog scent identification evidence. We affirm the judgment.
BACKGROUND
On the evening of February
6, 2006, a
small group of young people stood in the driveway of a home on Pace Avenue in Los Angeles where Nathan Wheaton and his sister,
Nikita Wheaton
title="">[2]
lived with their mother and their brother.
The group consisted of Nathan and Nikita; their next-door-neighbor,
Joseph “J.B.†Bryant; Bryant’s cousin, Jermaine Scorza; Troy Daniel and his
little brother, Antone; and Trarell M., who was 14 years old. At some point, they saw four men walking down
Pace
Avenue towards them. Before
the men reached them, Nathan received a telephone call and went inside his
house.
When the men reached the group, they
stood in a semicircle in front of them.
One of the men lifted his black hoodie sweatshirt to reveal a gun in his
waistband. One of the other men asked
the group, “Where you from?†Several
members of the group understood that to be a gang challenge. Daniel responded that they were not gang
members. As the men came nearer, one of
them, who was wearing a red leather jacket, recognized Daniel and shook his
hand. The man who issued the gang
challenge then began to check the pockets of everyone in the group to see what
they had. When he tried to check
Bryant’s pockets, Bryant slapped his hands away and said something to him. The man tried again, and they started fighting. The fight moved out into the street, until
the man with the gun pulled the gun out of his waistband and fired it at
Bryant. Bryant tried to run away as the
man continued to fire. Bryant fell, and
the man stood over him and fired several more shots at him. Bryant was hit six times; two of the shots
were fatal. Trarell, who was running
north on Pace trying to get away, also was shot in the back, although he
survived.
Nathan, who was inside the house when
the fight began, went outside when Nikita ran in to tell him to call the police
about the fight. Nathan saw people
fighting in his driveway. Before he
could get near them, the shooting started.
He saw the shooter standing near the rear of a car parked on the street. After firing a total of seven or eight shots,
the shooter and the other men took off running back the way they came. Nikita called 911 to report the shooting
shortly before 8:54 p.m.
Deputy Sheriff Samuel Valente was on
patrol that evening when he heard a call over his radio of a gunshot victim at 9418 Pace Avenue.
He immediately punched into the patrol car’s computer that he and his
partner were responding, and they started driving toward that location. That entry was made at 2055 (i.e., 8:55 p.m.).
As they drove, they saw a car driving southbound on Belhaven Avenue, turning west onto 93rd Street without signaling.
plate number into the computer; the time of that entry was 2058 (i.e., 8:58
p.m.). He and his partner pulled up
alongside the car and saw the driver reaching into one of the air conditioning
vents. They conducted a traffic stop,
did a pat-down search of the driver, and checked the air conditioning vents,
where they found a bag containing rock cocaine.
Deputy Valente’s partner searched the car, but did not impound it; no
gun was found in the car. They arrested
the driver, who said his name was Ronnie Lamont Dunn. In fact, the driver was defendant; Ronnie
Dunn was defendant’s older brother.
Deputy Valente did not consider defendant to be a suspect in the
shooting at that time.
Sergeant Richard Biddle of the Los
Angeles County Sheriff’s Department was called to investigate the
shooting. When he arrived at the scene
that evening, he saw there were several 9 millimeter shell casings on the
ground. The casings were collected as
evidence. Sergeant Biddle observed as
one of the two dog handlers who were called to the scene, Edward Hamm, used a
scent transfer unit (STU) to create scent pads from some of the casings. Hamm presented one of the pads to his dog, a
bloodhound named Night, and told Night to “find him.†Night began to follow a trail, and eventually
ended up at an apartment complex between Belhaven Avenue and Hooper Avenue,
just north of 93rd Street. The dog
showed particular interest in a stairway at 9234 Belhaven Avenue, and an
apartment at 9215 Hooper Avenue. The
other dog handler, Joseph D’Allura, and his dog were called to that area. D’Allura presented one of the scent pads to
his dog, Cooper, and told Cooper to locate that scent. Cooper alerted at the same two locations that
Night had shown an interest in: a
stairway at 9234 Belhaven, and the door to Apartment 1 at 9215 Hooper
Avenue. Gregory Charles Moody lived in
that apartment.
In addition to accompanying the dog
handlers, Sergeant Biddle also interviewed witnesses to the shooting and
obtained descriptions of the four men.
Within a few days after the shooting, Nikita, Nathan, and Jermaine
Scorza were shown photo-lineups, one of which included a picture of Moody, and
another that included a picture of defendant taken upon his arrest on the night
of the shooting.
title="">[4] None of them identified defendant or Moody as
one of the men involved in the shooting incident. However, Scorza identified Levitius Wright as
the person who pocket-checked everyone and fought with Bryant. A month later, after being shown additional
photo-lineups, Nathan identified Markease Williams as the man in the red jacket
who shook Troy Daniel’s hand, and Scorza identified Carl Arline as another one
of the men.
Sergeant Biddle interviewed Moody in
May 2006. Moody told him that he saw
defendant standing in front of his apartment complex with Jantay Smith and some
other people within a few minutes after the shooting.
“I didn’t mean to shoot that boy on Pace.
I thought there was some Crips over there. I went over there because there was a
shooting at 95th. The Crips were
shooting at 95th earlier.â€
Sergeant Biddle and his partner met
with Nathan again shortly after the interview with Moody, and showed him
another photo-lineup. They asked Nathan
if any of the photographs looked like the shooter. Nathan initially chose defendant’s picture,
but then also pointed to two other pictures, saying they all had a
resemblance. When asked whether the
first person he pointed to looked most like the person with the gun, he agreed,
but he was not 100 percent sure.
Sergeant Biddle’s partner asked Nathan to fix his confidence level on a
scale of one to 10, with 10 being that he is absolutely sure that the picture
is of the shooter and one being that he is absolutely sure it is not the
shooter. Nathan said his confidence
level was probably six.
In September 2008, D’Allura and his
dog, Cooper, participated in a scent lineup, using one of the scent pads Hamm
made at the crime scene from one of the casings. Cooper matched that scent to a scent pad
D’Allura made from a shirt taken from defendant a few weeks earlier.
In January 2010, defendant, Wright,
Williams, and Arline were charged by information with one count of
count of attempted premeditated murder (§§ 664/187, subd. (a)), with gang
and gun allegations (§§ 186.22, subd. (b)(1)(C), 12022.53, subds.
(b),(c),(d)) as to each count. In
addition, the information included a prior conviction allegation against
Williams under the Three Strikes law (§§ 667, subd. (b)-(i), 1170.12,
subd. (a)-(d)), and prior prison term allegations against defendant, Wright,
and Arline (§ 667.5, subd. (b)).
Before trial, Williams and Arline entered into plea agreements; in
exchange for their testimony at trial, Williams received an 11-year prison
term, and Arline received a 16-year term.
Defendant was jointly tried with
Wright. Nathan, Nikita, Scorza, Daniel,
and Trarell testified about what they observed, and Nathan was questioned about
his identification of defendant as the shooter.
events of that evening, and both testified that defendant was with them when
they approached the group on Pace Avenue and that defendant was the
shooter. In addition to the
eyewitnesses, the prosecution presented the testimony of, among others, both
dog handlers, Sergeant Biddle, and a gang expert. Defendant did not present any witnesses.
The jury found defendant guilty on
both counts, and found the gang and gun allegations to be true. The trial court sentenced defendant to 25
years to life on the murder count, plus 25 years to life on the gun allegation,
and a consecutive term of 15 years to life on the attempted murder count (with
a gang enhancement), plus 25 years to life on the gun allegation, for a total
of 90 years to life. Defendant timely
filed a notice of appeal from the judgment.
A Suggestive
Identification
On May 24, 2006 – almost four months
after the shooting, and shortly after Moody told Sergeant Biddle that he
overheard defendant talking about shooting Bryant – Sergeant Biddle and his
partner, Kent Wegener, met again with Nathan.
After engaging in some small talk, Wegener told Nathan, “Well we want
you to look at a picture of the shooter. . . .
Because he’s the one we haven’t shown you yet.†Sergeant Biddle reminded Nathan about the
admonishment that he or Wegener read to Nathan the last time they showed him a
photo-lineup, and said he had to read it to him again. After Wegener told Nathan to listen closely,
Sergeant Biddle read the admonishment to Nathan. The admonishment advised that the person
involved in the crime may or may not be among the photographs being shown to
him.
Before showing Nathan the
photo-lineup, Wegener told Nathan to concentrate on what the shooter looked
like, and reminded him that the shooter may or may not be among the
photographs. Nathan was presented with
the photo-lineup and Wegener asked if he recognized anyone. After looking at it for a short period of
time, Nathan pointed to the photograph of defendant, which was in the lower
left corner. Sergeant Biddle asked,
“Which one? This one?†Nathan then pointed to two other photographs,
indicating that those also looked similar.
Sergeant Biddle asked, “Okay, but this one in the lower left resembles
the guy you saw that night?†Nathan
answered, “Yeah.†Sergeant Biddle and
Wegener asked him a few more questions about the photographs he pointed to, and
tried to confirm that the photograph in the lower left looked most like the
shooter. Wegener noted that Nathan
indicated he was not totally sure about his identification of defendant’s
photograph, and asked Nathan to tell him, “on a scale of one to ten, if ten was
you[’re] absolutely sure that it’s him and one is you’re absolutely sure that
it’s not him, what number is he?†Nathan
responded, “Probably six.†Sergeant
Biddle asked Nathan to write on the form, in his own words, that the lower left
photograph looks the most like the shooter, with a confidence level of six on a
scale of one to ten. Nathan wrote: “Lower left look could have like him but not
sure.â€
Before trial, defendant moved to
exclude evidence concerning Nathan’s identification of defendant, arguing that
the identification process was unduly suggestive. After reviewing a transcript of the interview
during which Nathan made the identification, the court denied the motion,
noting that defendant’s argument went more to the weight of the identification
evidence rather than its admissibility.
On appeal, defendant argues his right to due process was violated
because Sergeant Biddle and his partner used unduly suggestive photo-lineup
procedures and pressured Nathan to make a positive identification of defendant
as the shooter. We disagree.
“‘[F]or a witness identification
procedure to violate the due process clauses, the state must, at the threshold,
improperly suggest something to the witness – i.e., it must, wittingly or unwittingly,
initiate an unduly suggestive procedure.’
[Citation.]†(
1250-1251.) Defendant contends Sergeant
Biddle and his partner engaged in leading and suggestive comments at the start
of the identification process by telling Nathan that they wanted him “to look
at a picture of the shooter.†While
Wegener’s initial statement was inartfully phrased, it was made in the context
of explaining why they had asked Nathan to come back for an interview and which
of the four men involved in the incident they wanted Nathan to try to
identify. Most importantly, Sergeant
Biddle immediately reminded Nathan of the admonition he read to him before
previous photo-lineups, reread the admonition to him, and reiterated that the
shooter may not be in the lineup.
To the extent defendant contends
Sergeant Biddle and Wegener acted improperly by focusing on Nathan’s
identification of defendant’s photograph rather than the other two photographs
Nathan subsequently pointed to, his contention that that conduct violated his
right to due process also fails.
Sergeant Biddle and Wegener focused on defendant’s photograph only
then attempted to determine Nathan’s level of certainty about that
identification. “Generally, a pretrial
procedure will only be deemed unfair if it suggests in advance of a witness’s
identification the identity of the person suspected by the police.†(People
v. Brandon (1995) 32 Cal.App.4th 1033, 1052; see also People v. Hunt (1977) 19
Cal.3d 888, 894 [“‘A procedure is unfair which suggests in advance of
identification by the witness the identity of the person suspected by the
police’â€].)
In short, defendant’s right to due
process was not violated by the trial court admitting evidence of Nathan’s
identification of defendant. The police
officers did not suggest anything to Nathan in advance of his
identification. The jury heard the
recording of the interview at which the identification took place, and heard
Nathan express his lack of certainty. As
the trial court aptly noted, Nathan’s uncertainty and the officers’ questioning
of him went to the weight of identification, rather than its admissibility.
B Dog
Scent Identification
Before trial, the prosecutor filed a
motion asking the trial court for permission to introduce
identification evidence at trial. As
part of the motion, the prosecutor asked the trial court to take judicial
notice of People v. Salcido, Los
Angeles Superior Court Case Number GA052057 (Salcido), in which another trial judge, Judge Michelle R.
Rosenblatt, conducted an extensive hearing to determine (1) whether the STU
(which Hamm used to create the scent pads from the casings found at the scene,
both in Salcido and in the present
case) meets the test of reliability under People
v. Kelly (1976) 17 Cal.3d 24 (Kelly);
(2) whether human scent is unique; (3) how long scent will remain at a
location; (4) how long captured scent will remain on a gauze pad;
(5) whether, as a breed, bloodhounds have acute powers of scent and scent
discrimination; (6) whether dogs can be trained to discriminate between scents,
such as in a scent lineup; and (7) if so, whether certification procedures are adequate
to ensure that scent discrimination dogs are properly trained and that dog
handlers are properly trained.
name="_ftnref8" title="">[8] In her detailed ruling, Judge Rosenblatt
found that (1) the STU is generally accepted as reliable in the relevant
scientific community; (2) the protocol that Hamm uses for cleaning and using
the STU is generally accepted as reliable in the relevant scientific community;
(3) experts have established to a reasonable scientific certainty that human
scent is unique and that trained dogs can reliably distinguish between one
scent and another; (4) experts have established that, for purposes of scent
identification, scent can remain on an object for years, through bomb blasts,
under water, and in the elements; (5) scent can remain on a gauze pad for several
months, then slowly decreases, although the human scent pattern remains; (6) it
is the training, rather than the breed, of the dog that makes a dog proficient
in scent detection, identification, and discrimination; and (7) dogs can be
trained to accurately discriminate between human scents, such as in a scent
lineup.
At the hearing on the prosecutor’s
motion, the prosecutor argued that if the trial court took judicial notice of
the proceedings and opinion in Salcido,
there was no need for a Kelly hearing,
and all that was necessary was an Evidence Code section 402 hearing (402
hearing) on the training and certifications of the dog and dog handler to
establish a foundation for admission of the dog scent identification evidence. Counsel for defendant argued that a
scientific articles and studies had come out since the hearing in
The trial court stated that it would take judicial notice of Judge
Rosenblatt’s opinion in Salcido,
including its reasoning, and that a Kelly
hearing would not be required unless defense counsel presented the court with
post-Salcido studies or articles that
disagreed with Judge Rosenblatt’s findings.
accepted Judge Rosenblatt’s findings, he would challenge the foundation for the
evidence at the 402 hearing.
At the 402 hearing, D’Allura testified
that he had been a dog handler for the Los Angeles County Sheriff’s Department
from 1991 to 2001, at which point he became a contractor to the Department. He received training through the Department’s
Canine Unit Special Enforcement Bureau, and eventually became a trainer
himself. He has been training dogs to
discriminate human scent since 1996. He
began training Cooper, the dog used in the scent identification lineup in the
present case, when Cooper was three months old.
Cooper received 3,500 to 4,000 hours of training in human scent
searches, including training in matching human scents from objects that have been
exploded, burned, melted, cleaned, or sterilized. He has participated in studies conducted by
the FBI, and in 2002 he was certified by the Los Angeles Sheriff’s Department
in 2002 scent comparison.
name="_ftnref10" title="">[10]
Cooper began working in criminal cases
on scent comparisons in 2002, and between 2002 to 2008, he and Cooper worked on
over 1300 cases, including 272 scent lineups.
D’Allura was not aware of any lineups in which Cooper made an incorrect
identification; he never received feedback from any investigator, prosecutor,
or defense attorney that the person Cooper identified was not the suspect.
D’Allura explained the procedure he
typically used (and used in the present case) to conduct scent lineups. D’Allura makes scent pads from three people
who were not involved in the crime, and a scent pad from the suspect (in the
present case, from defendant’s shirt), all of which are stored separately in
double zip-lock bags. He is then
provided with a scent pad from the crime scene, which also is kept in double
zip-lock bags. For the lineup, D’Allura
prepares four boxes. There is a 3-inch
by 3-inch hole in the top of each box.
D’Allura places one of the scent pads from the individuals (the three
uninvolved people and the suspect) into each box. The four boxes are placed on the ground in a
diamond, about eight to ten feet apart.
He takes Cooper to the center of the diamond and presents the scent pad
he wants matched. He unleashes Cooper,
and Cooper goes to check the boxes. If
Cooper finds a match, he will lie down next to the box. The first lineup he conducts is a proof
lineup, in which Cooper is presented with a scent pad from one of the
uninvolved individuals. If Cooper makes
a correct identification, D’Allura conducts a second lineup using the scent pad
from the crime scene.
At the 402 hearing, D’Allura testified
that he had discussed his procedures with Dr. Adee Schoon, who is the foremost
expert on scent lineups and scent canines, and that Dr. Schoon approved of
those procedures. Another expert, Zhan
Zooman, who is the commander of the Netherlands canine scent unit, observed
D’Allura and Cooper work, and told D’Allura he was very impressed with Cooper’s
work.
At the close of the 402 hearing, the
trial court found that a sufficient foundation had been laid to allow the dog
scent identification evidence to be admitted.
Defense counsel objected, stating:
“I don’t think they’ve laid a proper foundation for where they received
this evidence, how the evidence was obtained and stored, to make a good scent
lineup. I don’t think they followed any
certain procedure, . . . or any scientific procedure, to prevent contamination
by the way it was stored. And so I don’t
think they laid a proper foundation to allow this scent identification to come
in.†The court overruled the objection.
In his testimony before the jury,
D’Allura discussed his and Cooper’s training and experience, and how the scent
lineup was conducted in this case. He
explained that before conducting the lineup, he obtained scent pads from three
inmate trustees who worked at a Sheriff’s station and were the same race and
gender as defendant. Each trustee wiped
a sterile gauze pad on their arms and hands, placed the pad in a zip-lock bag,
sealed it, placed that bag in another zip-lock bag, sealed it, and placed it in
a manila envelope. He had one of the
trustees make two scent pads, one of which would be used in the proof
lineup. He placed the manila envelopes
in a box with dividers and drove to the Homicide Bureau to conduct the scent
lineup.
When he arrived at the Homicide
Bureau, Sergeant Biddle gave him a plastic bag that contained a shirt. D’Allura placed a sterile gauze pad in the
bag with the shirt and let it sit for 20 minutes, after which he removed the
pad (while wearing gloves) and placed it in a bag and double-bagged it. After D’Allura, wearing gloves, placed the
scent pads in the four boxes (three boxes had a scent pad from a trustee, and
the fourth had the scent pad from the shirt), he marked the bottom of the box
that had the scent pad from the shirt with a large X, and marked the bottom of
the box that had the scent pad from the trustee who made two scent pads with a
small X. He gave the boxes to the
investigators, and he and Cooper left the area to wait in a parking lot around
the corner while the investigators arranged the boxes in a diamond pattern on a
grassy area next to the Homicide Bureau building.
When the boxes were in place, the
investigators went inside the building to observe from behind one-way glass,
and D’Allura was called to conduct the proof lineup. D’Allura took Cooper to the center of the
diamond, let him smell the scent pad from the trustee who made two pads, and
unleashed him. Cooper checked the boxes,
and indicated that he made a match by lying down next to one of them. The investigators notified D’Allura that
Cooper had made a correct identification.
D’Allura and Cooper left the area again, and waited for 10 minutes to
allow Cooper to decompress; D’Allura was not informed whether the investigators
rearranged the boxes during this time.
After that time, D’Allura was again called to the area to conduct the
scent lineup using the scent pad taken from one of the casings. Cooper matched that scent to a box, which
D’Allura subsequently was told was the box containing the scent pad taken from
defendant’s shirt.
On appeal, defendant contends the
trial court erred in allowing the dog scent identification evidence to be
admitted because (1) there was insufficient evidence to establish the
proficiency of the dog or his handler, and (2) D’Allura’s testimony failed to
establish that correct scientific procedures were employed in the collection
and storing of the scent evidence used to make the identification. As to the first ground, defendant forfeited
that issue by failing to object on that ground at the conclusion of the 402
hearing. (People v. Demetrulias (2006) 39 Cal.4th 1, 22 [defendant forfeited
appellate claim of improper admission of evidence by failing to object at trial
on specific ground argued on appeal; People
v. Mattson (1990) 50 Cal.3d 826, 854 [“Specificity [of the grounds for
objection] is required both to enable the court to make an informed ruling on
the motion or objection and to enable the party proffering the evidence to cure
the defect in the evidenceâ€].) As to the
second ground, there was sufficient evidence presented through other witnesses
to establish that correct scientific procedures were employed in this case.
For example, defendant argues that
D’Allura did not provide any information regarding his training in using the
STU or how it was maintained. No doubt,
that is because D’Allura did not use the STU to create the scent pad from the
casings found at the crime scene.
Instead, the other dog handler, Hamm, testified that he used the STU to
create the scent pads, and that he followed all appropriate procedures with
regard to cleaning the STU and collecting the scent; D’Allura testified that he
was present when Hamm created them.
Defendant also argues that D’Allura
failed to testify that he followed established protocols to avoid contamination
when preparing, storing, or using the scent pads. But D’Allura did testify about the measures
he took to avoid contamination of any items that were in possession. He testified that he wore gloves when
handling any of the evidence, and that all of the scent pads were double-bagged
in zip-lock bags. To the extent
defendant contends D’Allura did not testify about how the scent pads were
stored when he was not using them, he is correct. But Sergeant Biddle testified that he
observed Hamm making the scent pads and placing them in double zip-lock bags,
and that those bags were booked into evidence at the Sheriff’s Homicide Bureau
and then were brought to the Sheriff’s Department central property room, where
they were kept in a freezer. He testified
that the pads were removed from refrigeration on the morning of the scent
lineup.
Finally, defendant argues that
D’Allura did not know anything about the shirt that he was asked to use for the
scent lineup. Once again, defendant is
correct that D’Allura had no knowledge about how that shirt was obtained and
how it was stored. But Sergeant Biddle
testified that shortly before the scent lineup was conducted he went to
Ironwood State prison and had defendant put his shirt into a plastic bag. Sergeant Biddle took that bag and put it into
another plastic bag and sealed it with a rubber band, then put it into a manila
envelope and booked it into evidence at the Sheriff’s Homicide Bureau.
In short, defendant’s contention that
a proper foundation was not laid regarding the collection, preparation,
handling, and storage of the scent-related items is contrary to the
record. Thus, the trial court did not
err in admitting the dog scent identification evidence.
The judgment is affirmed.
WILLHITE,
J.
We concur:
EPSTEIN, P. J.
MANELLA, J.
undesignated statutory references are to the Penal Code.
refer to Nathan and Nikita Wheaton by their first names to avoid confusion.
