People v. Figueroa CA2/1

Filed 5/18/22 P. v. Figueroa CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE, B299503
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA148473)
v.
EMETERIO FIGUEROA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Raul A. Sahagun, Judge. Affirmed in part,
reversed in part, and remanded with directions.
Caneel C. Fraser, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Paul M. Roadarmel, Jr. and Amanda V. Lopez,
Deputy Attorneys General, for Plaintiff and Respondent.
______________________
Following a bench trial, the trial court found Emeterio
Figueroa guilty of the execution-style murder of developmentally-
disabled Duke Herrera, who possessed the mental capacity of a
12-year-old. Figueroa lived in a riverbed homeless encampment,
carried guns, abused substances, and was known to behave
erratically. The murder occurred at night while Herrera was
riding his bicycle home from a movie along the bank of the
riverbed. In addition to murder (count 1), Figueroa was convicted
of assault with a firearm on John Doe (count 2), and possession of
a firearm (count 4). He raises a host of challenges on appeal,
which we address seriatim.
Figueroa first argues that his jury trial waiver was not
knowing and intelligent, but this contention is belied by the
totality of circumstances, most notably the waiver colloquy
between Figueroa and the prosecutor.
Figueroa next contends that the trial court erred in
admitting dog scent evidence obtained from a shell casing near
Herrera’s body through use of a scent transfer unit device.
However, Figueroa never raised an objection in the trial court to
use of the scent transfer unit. This objection was forfeited. With
respect to Figueroa’s foundational objection to dog scent trailing
evidence, the record adequately demonstrates the reliability of
the dog trailing evidence, i.e., the dog handler was qualified, and
the dog was sufficiently trained and reliable.
Figueroa claims the testimonial evidence from witnesses
who lived with him in a riverbed was unreliable and significantly
impeached. However, Figueroa made key admissions to some of
these witnesses, including that he murdered Herrera to prove he
could kill someone, and arranged with another to dispose of
Herrera’s bicycle and the murder weapon. The trial court
2
credited this testimonial evidence while observing that most of
the riverbed encampment witnesses were Figueroa’s friends and
had no reason to lie. We are not at liberty to reweigh such
evidence.
We also reject, for the reasons set forth above, Figueroa’s
contention that the trial court abused its discretion in denying
his motion for a new trial based upon alleged evidentiary
shortcomings.
However, the Attorney General concedes that, in light of
recent ameliorative amendments to Penal Code1 section 1170,
subdivision (b), the matter must be remanded for the trial court
to reconsider Figueroa’s sentence on counts 2 and 4.
Accordingly, while we reverse and remand this matter for
resentencing, in all other respects, we affirm.
BACKGROUND
A. Factual Summary
On occasion, 24-year-old Herrera rode his black beach
cruiser bicycle along the San Gabriel riverbed to and from the
movie theater. The bicycle had a large, brown leather seat.
Herrera had special needs and the mental capacity of a 12-year-
old.
On September 18, 2015, Herrera left the movie theater at
7:52 p.m. The next morning, his body was found along the
riverbed between Del Amo Boulevard and Carson Street.2 He
1 All unspecified statutory references are to the Penal Code.
2 Ralph Santiago found Herrera’s body while walking his
dogs along the San Gabriel River Trail. He entered the trail near
Monte Verde Park, and walked south, towards Carson Street.
This court sua sponte takes judicial notice that Monte Verde
3
had been shot in the back of the neck, at close range, and the
bullet had exited from his left eye. The gunshot wound and dirt
marks near his knees and toes indicated that he had been shot
from behind, while in a kneeling position. A nine-millimeter
cartridge shell casing was found a few feet from his body.
Neither his bicycle, the gun, nor the expended bullet was ever
found.
Figueroa lived at the riverbed as part of a homeless
encampment. He carried guns, including a .38 revolver, which he
would brandish, and a sawed-off 12-gauge shotgun in a violin
case. The mother of one of Figueroa’s children would come to the
riverbed and “switch guns out” with him.
In September 2015, Raymond Orozco lived at the riverbed
and had known Figueroa for several years. On September 17,
2015, the night before the murder, Figueroa, Orozco, and Orozco’s
girlfriend, Samantha Torres, were at a skatepark near Caruthers
Park. They smoked crystal meth, and Figueroa was “very high,”
drunk, and acting “crazy.” While riding a red beach cruiser
bicycle, Figueroa confronted five to seven males in a parked
truck, brandished his revolver, and chased them. He then
returned to approximately 20 feet away from Orozco and Torres
and shot at a tree two to three times. Orozco left the park, and
Torres urged Figueroa to leave. Orozco last saw Figueroa that
evening around 10 minutes later, before 7:00 p.m., when he
Park is south of Del Amo Boulevard and that, accordingly,
Herrera’s body was found between Del Amo Boulevard and
Carson Street. This court further takes judicial notice that the
area along the riverbed between Del Amo Boulevard and Carson
Street is approximately two to four miles south of Caruthers
Park. (Evid. Code, § 452, subds. (g), (h).)
4
observed Figueroa leave his bicycle by a railroad track bridge
near the 91 Freeway, south of the skatepark. Shortly thereafter,
Torres went to a 7-Eleven store on Artesia Boulevard and
observed Figueroa ride by on a bicycle belonging to another
friend.
On December 29, 2015, Los Angeles County Sheriff’s
Department Detective Brandt House interviewed Torres. Early
in the interview, Torres offered, “the only person that supposedly
did it was [Figueroa]” and “I don’t know if [Figueroa] killed that
kid, but I’m pretty sure that he probably did.” She also told
Detective House that Figueroa “never admitted to anyone that he
shot that kid.” After Detective House advised Torres that if she
were truthful with him, he would ensure that she was safe, she
told him that Figueroa bragged that he “shot that kid for [the
bicycle] seat” and because “he wanted to prove [to] himself that
he could kill somebody.” Figueroa also warned her that the police
would be coming to the riverbed area because he shot a “kid” for
his bicycle. At trial, Torres claimed she made up that Figueroa
admitted to shooting Herrera because Detective House kept
asking her the same questions, and she wanted to leave.
During a December 30, 2015 interview with Detective
House, Orozco stated that a few nights after Herrera was shot,
Figueroa warned him and Torres that the police would be coming
around. Orozco could not remember if Figueroa said it was
because the police thought Figueroa had something to do with
Herrera being shot, because he “probably shot somebody,” shot
some guy, or because Figueroa shot at the people in the truck.
Orozco told Detective House that he did not want to testify
against Figueroa because he believed that Figueroa “would kill
me and my family. I know that without a doubt in my mind.”
5
Former riverbed resident Desiree Han resold bicycles as
well as things Figueroa had stolen. Between August 17 and
September 21, 2015, she was at a drug rehabilitation facility.
Immediately thereafter, she stayed at her grandmother’s house
in Downey.
On May 19, 2016, Detective House interviewed riverbed
resident Belinda Raymond. Raymond told him that
approximately a week after the murder, Han told her that
Figueroa rode a black beach cruiser with brown handlebars,
grips, and a brown seat to her grandmother’s house and left it
and the gun there. Han told Raymond that she threw the gun
over the freeway wall near her grandmother’s house and buried it
in the dirt. Raymond was not sure if Han was telling the truth
because Han sometimes bragged or made things up.3
At trial, Raymond denied that Han told her Figueroa had
murdered Herrera, stole his bicycle, or gave Han the gun used in
the murder. She also testified that around the time of the
murder, she used methamphetamines, which affected her
memory. Han also denied having the conversation described by
Raymond.
In October 2015, Figueroa was arrested for violating parole.
He was charged with Herrera’s murder a year later.
As described further below, on January 5, 2016, using a
scent pad collected from the nine-millimeter cartridge found near
Herrera’s body, K-9 unit officer Roscoe trailed Figueroa’s scent
through the East Los Angeles Sheriff’s Station. Roscoe led his
handler, Michael Grossman, through the station and to the room
3According to riverbed resident Charles Price, Han
embellished frequently.
6
where Figueroa sat and alerted Grossman that he had reached
the end of the trail.4
B. Conviction and Sentencing
Following a five-day bench trial, Figueroa was convicted of
the first degree murder of Herrera (§ 187, subd. (a); count 1),
assault with a firearm on John Doe (§ 245, subd. (a)(2); count 2),
and possession of firearm by a felon (§ 29800, subd. (a)(1);
count 4). As to the murder charge, the court also found true that
Figueroa personally and intentionally discharged a firearm
(§ 12022.53, subds. (b)-(d)) and that he personally used a firearm
(§ 12022.5) in relation to the assault charge.5
In rendering its verdict, the court observed Torres’s
statement was “pretty clear” and the evidence that Figueroa
admitted to the murder was “very strong.” The court also
credited the “pretty detailed” and strong statement that Han
received the bike and gun and buried the gun. Further, it found
4 The parties entered stipulations regarding DNA and shoe
impression evidence. A DNA sample taken from the victim’s
neck revealed a mixture consistent with at least two contributors:
the victim was one, but Figueroa was excluded as the other.
DNA samples of a bloodstain were taken from shorts believed to
belong to Figueroa. The DNA profile matched Figueroa and
excluded Herrera. Also, four pairs of shoes and one single shoe
that were believed to belong to Figueroa were compared to two
shoe impressions found near the victim’s body. They did not
match. Figueroa also stipulated that he was a convicted felon.
5 Figueroa had been charged with discharging a firearm
with gross negligence (§ 246.3, subd. (a); count 3) based on his
shooting at the tree. The trial court found the evidence was not
sufficient to support a finding of gross negligence.
7
Roscoe’s conduct in trailing Figueroa persuasive corroboration of
the witnesses’ statements. Although the court stated it was
initially skeptical about the ability to use scent from the bullet
casing, the testimony persuaded the court that was standard
procedure. The court also found Roscoe was trained in trailing,
had a consistent trailing record, and never falsely identified a
subject.
Figueroa was sentenced to a prison term of 25 years to life
for the murder charge, plus a consecutive term of 25 years to life
pursuant to the section 12022.53, subdivision (d) enhancement.
He was sentenced concurrently with a four-year prison term for
the assault charge, plus a four-year term for the related gun
enhancement, and a three-year term for the possession charge.
Figueroa filed a timely notice of appeal.
DISCUSSION
A. Figueroa Voluntarily and Intelligently Waived His
Right to a Jury Trial
Relevant Proceedings
On November 16, 2018, defense counsel informed the court
that he and the prosecutor discussed a “possible court trial with
Judge [Raul A.] Sahagun.”6 At the court’s request, the prosecutor
then took Figueroa’s jury waiver:
“[Prosecutor]: Mr. Figueroa, you have a right to have a jury
trial. At that jury trial, you would have a right to have members
of the community, so what would happen is we would have
probably . . . 50 members of the community come in, your
6The record does not disclose whether Figueroa had prior
conversations with his counsel about waiving his right to a jury.
8
attorney and I would ask them questions and select 12 jurors in
order to preside over the trial. And what that means is that we
would present evidence, your attorney would ask questions of the
witnesses I call, you have the right to subpoena witnesses on your
own and have them testify, and then the jury would decide
whether you are guilty or not, and that standard is beyond a
reasonable doubt.
“What we have discussed here in court is that we are going
to not have a jury trial, and that means that Judge Sahagun is
going to be the person who presides over your trial matter.
Nothing changes as far as me subpoenaing in witnesses, your
attorney being able to confront and cross-examine them with you
being present, you being able to call your own witnesses and use
the subpoena powers of the court. You also would have the right
to remain silent or testify, you could testify if you wanted to,
that’s a right that’s personal to you. The judge decides whether
you are guilty beyond a reasonable doubt, the standard doesn’t
change from a jury trial for a court trial, but we are going to do
that in front of Judge Sahagun and let Judge Sahagun listen to
. . . all the evidence and make that decision beyond a reasonable
doubt. Do you understand that?
“[Figueroa]: Yes.
“[Prosecutor]: Is it agreeable with you that we do a court
trial in front of Judge Sahagun and that we waive a jury trial for
both the charges against you and the priors, because you also
have the right to have your priors heard in front of a jury as well,
okay, so do you agree that we can try this case in front of Judge
Sahagun and he would be the one in a court trial to decide
whether you are guilty beyond a reasonable doubt as to the
9
charges and should you be convicted as to any priors that you
may have?
“[Figueroa]: Yes.”
After both defense counsel and the prosecutor joined, the
court found Figueroa’s waiver to be knowing, intelligent and
voluntary.
Analysis
“Under the federal Constitution and our state Constitution,
a defendant in a criminal prosecution has a right to a jury trial.
[Citations.] However, a ‘jury may be waived in a criminal cause
by the consent of both parties expressed in open court by the
defendant and the defendant’s counsel.’ [Citation.] . . . ‘[A]
defendant’s waiver of the right to jury trial may not be accepted
by the court unless it is knowing and intelligent, that is, “ ‘ “made
with a full awareness both of the nature of the right being
abandoned and the consequences of the decision to abandon it,” ’ ”
as well as voluntary “ ‘ “in the sense that it was the product of a
free and deliberate choice rather than intimidation, coercion, or
deception.” ’ ” ’ [Citation.] ‘[W]hether or not there is an
intelligent, competent, self-protecting waiver of jury trial by an
accused must depend upon the unique circumstances of each
case.’ [Citation.]” (People v. Sivongxxay (2017) 3 Cal.5th 151,
166.)
A reviewing court must examine the totality of the
circumstances to determine whether the waiver is knowing and
intelligent. (People v. Sivongxxay, supra, 3 Cal.5th at p. 166.) A
failure to obtain an informed waiver results in a complete denial
of the defendant’s right to a jury trial and is structural error.
(People v. Daniels (2017) 3 Cal.5th 961, 1003 (lead opn. of
Cuéllar, J.).)
10
The prosecutor advised Figueroa that he had a right to a
jury trial and described the nature of that right, including that a
jury would be comprised of 12 members of the community, that
his counsel would participate in selecting the jurors, that the jury
would hear evidence and decide his guilt or innocence, and that if
his trial proceeded without a jury, a judge would hear evidence
and decide his guilt or innocence. The prosecutor asked Figueroa
if he understood, and Figueroa responded, “Yes.” The prosecutor
then asked whether Figueroa agreed to waive that right, and
Figueroa responded, “Yes.” These circumstances establish that
Figueroa’s waiver was knowing and intelligent.
Figueroa argues his jury waiver was not knowing or
intelligent because he was not specifically advised that the 12
jurors would have to unanimously agree on his guilt or innocence.
Our Supreme Court recommended that a defendant be advised
that (1) a jury is made up of 12 members of the community; (2) a
defendant through counsel may participate in jury selection;
(3) all 12 jurors must unanimously agree in order to reach a
verdict; and (4) if a defendant waives the right to a jury trial, a
judge alone will decide his guilt or innocence. (People v.
Sivongxxay, supra, 3 Cal.5th at p. 169.) However, the court has
“never insisted that a jury waiver colloquy invariably must
discuss juror impartiality, the unanimity requirement, or both for
an ensuing waiver to be knowing and intelligent.” (Id. at p. 168.)
Figueroa next argues that the prosecutor’s phraseology
suggested others could waive his jury right and that a court trial
was “an agreed upon eventuality.” He points to the prosecutor’s
statements that “[w]hat we have discussed here in court is that
we are going to not have a jury trial,” and “we are going to do that
in front of Judge Sahagun,” and the prosecutor’s question, “Is it
11
agreeable with you that . . . we waive a jury trial for both the
charges against you and the priors[?]” (Italics added.)
The prosecutor’s statement, taken as a whole, does not lend
itself to this argument. The prosecutor’s first words addressed to
Figueroa were unequivocal: “you have a right to have a jury
trial.” That the prosecutor asked for Figueroa’s permission to
waive a jury trial contradicts the notion that a bench trial was a
fait accompli. Any conceivable confusion caused by the word
“agreeable” was alleviated by the prosecutor later asking, “do you
agree.”
Figueroa complains that the prosecutor’s explanation of his
jury right was “rambling” (in 28 lines of transcript) to such a
degree that he could not understand it. Figueroa observes, “not
once was it simply stated to [Figueroa]: ‘You have a constitutional
right to a jury trial, do you give up that right?’ ”
Of course, obtaining a waiver from a defendant without
explaining to him the nature of his jury right would not produce a
knowing and intelligent waiver. (See People v. Daniels, supra, 3
Cal.5th at p. 994 (lead opn. of Cuéllar, J.); People v. Sivongxxay,
supra, 3 Cal.5th at p. 171.) The prosecutor’s advisement was not
meandering, but followed a logical progression, and was not so
long as to evade comprehension. Indeed, at the end of the
prosecutor’s description of Figueroa’s jury right, he asked
Figueroa if he understood, and Figueroa responded, “Yes.” There
is nothing in the record suggesting we should be skeptical of
Figueroa’s unequivocal affirmation.
B. The Trial Court Did Not Err in Admitting Dog Scent
Evidence
Figueroa argues the trial court erred in admitting dog scent
evidence without first holding a hearing pursuant to People v.
12
Kelly (1976) 17 Cal.3d 24 (Kelly) because the scent was collected
using a novel device, a scent transfer unit (STU). He further
argues the dog trailing evidence was altogether inadmissible
because the prosecutor failed to make the requisite foundational
showing articulated in People v. Jackson (2016) 1 Cal.5th 269(Jackson).
Factual Summary
K-9 handler Grossman testified that at the time of trial, he
had been a civilian contractor with the Los Angeles County
Sheriff’s Department for five to six years and had trained K-9
dogs for 16 years. His work included apprehension, narcotics
detection, cadaver, and tracking and trailing.
Grossman began training Roscoe, a bloodhound, when
Roscoe was eight weeks old. The pair were first certified in
tracking and trailing7 in 2012, when Roscoe was approximately
two years old, and Roscoe had five or six certifications for “man
trailing.”
Grossman trained Roscoe not to move when there was a
negative trail, i.e., no matching scent between the item that was
presented to him and a trail. Roscoe had a 100 percent success
rate for negatives and never identified the wrong person when
doing a scent identification. Grossman documented Roscoe’s
training, scent identifications, and tracking and trailing
(including failures) from November 1, 2010, to August 10, 2017,
in an 89-page log that was admitted into evidence.
7 To be certified for statewide deployment for tracking and
trailing, a dog and handler team must be able to trail a minimum
of 800 meters with three to five turns, and certifications must be
completed every year.
13
In 2008, Grossman began using an STU, which is a vacuum
machine that transfers scent from an object onto a gauze pad.8
Grossman’s regular practice in using the STU included double-
sealing the scent pad in two “Ziploc” bags, which he then placed
in a brown paper bag, and instructing the detective taking the
evidence to put it in a glass jar at the station. Roscoe began
working with STU-generated scent pads in 2011. Grossman
observed that Roscoe did not behave differently when presented
with an STU-generated scent pad than a scent collected in a
different manner.
On September 19, 2015, using an STU, Grossman collected
three gauze scent pads from the nine-millimeter casing found on
the ground near Herrera’s body.9 One of the pads was kept in
evidence at the sheriff’s department.
Grossman’s partner, Ann Anderson, has been a bloodhound
handler since 2000. She was one of three bloodhound handlers in
the United States certified by the Federal Bureau of
Investigation in their human scent evidence team. She was also
certified in trailing with her dog, Morgan, by the Ventura County
Sheriff’s Department, and at the time of trial, had been a contract
bloodhound handler for the Los Angeles County Sheriff’s
8 Grossman testified that there is no state or industry
standard for STU proficiency. A trainer at the Long Beach Police
Department trained and certified Grossman in STU use. The
training included sterilization, how to handle and process the
evidence, how to not contaminate the source, and how to use the
device. By 2012, he was “certified” to use the device.
9 Before collecting the scent on September 19, 2015,
Grossman sterilized the STU, wore latex gloves, and used
sterilized tongs to pick up the casing and place it in the STU.
14
Department Homicide Division for approximately eight years.
Anderson was trained to use an STU by the Bloodhound
Handlers Coalition, and has used an STU hundreds of times.
Her dogs have been able to track scents obtained from an STU.
Anderson testified that she watched Grossman collect the scent
from the shell casing on September 19, 2015, and that he did so
in an appropriate manner.
On January 5, 2016, Roscoe and Grossman performed a
scent trail at the East Los Angeles Sheriff’s Station. Figueroa
had never been to the station before and was not there when
Roscoe arrived. Prior to Figueroa’s arrival, Grossman presented
the scent pad from the crime scene to Roscoe, who did not move,
indicating that there was no trail to follow. Roscoe was returned
to a car in the station’s general public parking lot.
Thereafter, a sheriff’s detective, Detective Adam Kirste,
brought Figueroa into the station through the police entrance.
He placed Figueroa in an interview room and sat with him.
Grossman did not see Figueroa being brought in and was not told
where Figueroa was located. Neither Grossman nor Roscoe had
been to that sheriff’s station before that day.
Grossman then brought Roscoe back into the station and
presented the scent pad to him.10 Roscoe made a right turn down
a long hallway into a briefing room, came back out, and turned
down another long hallway. The hallway had four doorways,
with the doors cracked open a quarter inch. Roscoe sniffed the
first door, passed it, went to the second door that was eight to 10
10 Prior to trailing, Roscoe was presented with the other
detectives who may have handled the scent pad so that he could
dismiss them as possible trailing targets.
15
feet away from the first door, turned, went back to the first door,
and pushed it open. Detective Kirste, dressed in plain clothes,
and Figueroa were in the room. Roscoe sniffed Figueroa,
continued past him, sniffed Detective Kirste, turned back to
Figueroa, and indicated an alert on Figueroa by sitting down in
front of him and alternating looks at Grossman and Figueroa.11
Grossman’s log indicates that Roscoe took about four minutes to
work out the scent between the two doors. During that time, he
engaged in trying to pick up the scent in the air instead of on the
ground. Grossman testified that buildings have issues with air
current moving around, “because of the vacuum effect going
around doors [and] through air conditioning systems.”
The defense presented Jill Kessler-Miller as a dog training
expert. At the time of trial, she had trained dogs for 31 years and
was a certified trainer for two organizations, including the
International Association of K-9 Professionals. She trained dogs
in several areas including obedience, agility, bite work, scent
discrimination, scent detection of items such as drugs or bombs,
and tracking, which she indicated was different from trailing.
She acknowledged that she has never testified as an expert in
dog trailing, trained a dog in trailing, seen a trailing dog being
trained, or seen a trailing dog work inside a building. She
reviewed 94 articles and research studies in preparation for her
testimony.
Based on Kessler-Miller’s review of the 89-page log, she
concluded that, out of 71 searches, Roscoe had a success rate of
11 Anderson was present at the police station and helped
run the procedure. She did not observe Grossman do anything
incorrectly.
16
54 percent and a fail rate of 22 percent. However, on cross-
examination, she acknowledged that she did not know if all the
entries pertained to Roscoe.
Kessler-Miller opined that Figueroa being dressed in “jail
clothing” or that he was Hispanic could have improperly
influenced Roscoe. She also questioned whether the scent of the
metal shell casing could smell the same to Roscoe as Figueroa’s
metal handcuffs; whether Roscoe’s “alert” on Figueroa was
merely Roscoe looking for confirmation; and whether, if there
were no discernable scent on the scent pad, Roscoe alerted on
Figueroa simply because his was the newest or freshest scent at
the station. She acknowledged she did not know whether
Grossman gave Roscoe any improper cues and could not say
whether Roscoe made an accurate identification. She also
acknowledged that based on the way air moves indoors, it would
have been normal for Roscoe to initially pass the first door and
then return to it.
Defense counsel asked Kessler-Miller whether an STU
device was reliable and a good means to preserve a scent. She
testified, “it’s a fine unit,” and that the alcohol used to sterilize
the unit does not “affect[ a dog’s] search.” However, she observed
studies have determined that organic scents change over time,
especially within the first three weeks.
Legal Principles Relating to the Admissibility of Dog
Scent Evidence
The case law regarding the admissibility of dog scent
evidence is sparsely sprinkled over the last two decades. In 2003,
this court held in People v. Mitchell (2003) 110 Cal.App.4th 772,
17
775, 789-794 (Mitchell), that a Kelly12 hearing was required
before dog scent identification evidence involving the use of an
STU could be admitted into evidence because the STU was a
novel device used in furtherance of a new technique, without “a
history of use in the field of law enforcement or in any other
arena.” (Mitchell, supra, at pp. 787-789.) The court
acknowledged, however, that “ ‘dog trailing is a lot different than
dog scent recognition.’ ” (Id. at p. 790.)13
In 2016, the California Supreme Court in Jackson, supra, 1
Cal.5th 269, concluded a Kelly hearing was not required before
admitting dog trailing evidence that did not involve the use of an
STU. (Jackson, supra, at p. 316.) The court stated that “dog
trailing . . . falls outside the scope of Kelly because it is not
12 Under Kelly, when admission of expert testimony
relating the use of novel scientific methods or techniques is at
issue, the proponent of such evidence must sufficiently establish
that the technique has gained general acceptance in its particular
scientific field, the expert witness proffering testimony
concerning the technique is qualified to do so, and correct
scientific procedures were used. (People v. Peterson (2020) 10
Cal.5th 409, 444, citing Kelly, supra, 17 Cal.3d at p. 30.)
13 In Mitchell, a dog handler used an STU to collect scents
from shell casings, the victim’s and defendant’s shirts, and other
items. A scent dog then participated in scent identification
lineups, matching a scent pad that had, for example, scent
extracted from a shell casing to a pad that contained scent
collected from the defendant’s shirt. (Mitchell, supra, 110
Cal.App.4th at p. 780.) People v. Willis (2004) 115 Cal.App.4th
379, relying on Mitchell, required a Kelly hearing before an STU-
collected scent was used to see if a scent dog would “ ‘show[ ]
interest’ ” in certain locations where the defendant lived or spent
time. (Willis, supra, at p. 386.)
18
mechanized but rather the product of individual skill and innate
physical ability. ‘[W]hile the reliability of a machine can be
duplicated and passed down the assembly line with relative ease,
the abilities and reliability of each dog desired to be used in court
must be shown on an individual basis before evidence of that
dog’s efforts is admissible.’ [Citation.]” (Ibid.) Additionally,
unlike the sort of scientific evidence a juror might uncritically
accept, for which a threshold Kelly hearing should be held,
“[s]cent trailing evidence is not so foreign to everyday experience
that it would be unusually difficult for jurors to evaluate.”
(Jackson, supra, at p. 317.) “Jurors are capable of understanding
and evaluating testimony about a particular dog’s sensory
perceptions, its training, its reliability, the experience and
technique of its handler, and its performance in scent trailing” in
a given case. (Ibid.)
The Jackson court concluded that, in order for dog scent
trailing evidence to be admitted, the proponent must
demonstrate by a preponderance of the evidence four
foundational factors: (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 had been
found reliable in tracking humans; and, (4) the dog was placed on
the track where circumstances indicated the guilty party to have
been. (Jackson, supra, 1 Cal.5th at pp. 321-323.)
19
Figueroa Forfeited His Argument that STU-collected
Scent Evidence Required a Kelly Hearing14
Figueroa contends the trial court erred in admitting dog
scent evidence without first scrutinizing the STU pursuant to
Kelly.15 But he never raised such an argument in the court
14 We note the court in Figueroa’s case sat as the trier of
fact without a jury, whereas “[t]he Kelly test is intended to
forestall the jury’s uncritical acceptance of scientific evidence or
technology that is so foreign to everyday experience as to be
unusually difficult for laypersons to evaluate.” (People v. Venegas
(1998) 18 Cal.4th 47, 80, italics added; see People v. Peterson,
supra, 10 Cal.5th at p. 444 [the purpose of the Kelly test “is to
protect against the risk of credulous juries attributing to evidence
cloaked in scientific terminology an aura of infallibility” (italics
added)]; cf. People v. Diaz (1992) 3 Cal.4th 495 [analyzing
whether the defendant in a bench trial forfeited his Kelly
objection by failing to raise it in the trial court]; Seering v.
Department of Social Services (1987) 194 Cal.App.3d 298, 310
[finding “the purpose of the Kelly . . . rule will be served by
applying it in” an administrative proceeding].)
15 The People argue that the Supreme Court implicitly held
that an STU is not subject to Kelly in People v. Peterson, supra,
10 Cal.5th at p. 446, because the court discussed the STU-
collected scent and the non-STU-collected scent in Jackson
without indicating the STU was a distinguishing factor.
However, neither Jackson nor Peterson involved a timely
objection to an STU-collected scent, and, thus, the court did not
consider the propriety of admitting such evidence without a Kelly
hearing. (See Styne v. Stevens (2001) 26 Cal.4th 42, 57, [“An
opinion is not authority for a point not raised, considered, or
resolved therein”]; Kirk v. First American Title Ins. Co. (2010)
183 Cal.App.4th 776, 797 [“ ‘ “language contained in a judicial
opinion is ‘ “to be understood in the light of the facts and issue
20
below. Instead, Figueroa initially told the trial court that the dog
scent trailing evidence should be excluded in its entirety because
it failed to meet the Kelly test. However, he later repudiated this
position and agreed that, under Jackson, Kelly did not apply.
Figueroa never specifically argued, as he now advances on this
appeal, that use of the STU is subject to Kelly.
Having failed to make a timely and specific objection in the
trial court on the ground that he now urges on appeal, Figueroa
forfeited this issue. (See Jackson, supra, 1 Cal.5th at p. 366 [“ ‘A
general objection to the admission or exclusion of evidence, or one
based on a different ground from that advanced at trial, does not
preserve the claim for appeal’ ”]; People v. Bury (1996) 41
Cal.App.4th 1194, 1201 [“A judgment shall not be reversed for
the erroneous admission of evidence unless the evidence was
timely objected to in the trial court on the exact ground being
raised on appeal”]; see also People v. Ochoa (1998) 19 Cal.4th 353,
414 [finding the defendant forfeited his Kelly challenge to the
admission of evidence by failing to object in the trial court].)
Figueroa also cannot prevail on his alternative argument
that counsel’s failure to object to the use of the STU constituted
ineffective assistance of counsel because, at a minimum, he
cannot demonstrate the reasonable probability of a different
outcome. (People v. Ochoa, supra, 19 Cal.4th at p. 414.) Even
putting to one side the dog scent evidence, substantial evidence
supports Figueroa’s murder conviction, as we discuss more fully
ante. Moreover, given the extensive use of STU devices since our
decision in Mitchell 19 years ago, it is doubtful whether the STU
then before the court, and an opinion is not authority for a
proposition not therein considered” ’ ” ’ ”].)
21
should still be considered a novel method for gathering scents for
dog trailing. (See Jackson, supra, 1 Cal.5th at p. 327.) Roscoe
began working with STU-generated scent pads in 2011 and did
not behave any differently when presented with an STU-
generated scent pad versus a scent collected in a different
manner. Anderson testified that she used STU-collected scents
hundreds of times, and that her dogs effectively used STU-
collected scents. Defense expert Kessler-Miller, who reviewed 94
articles in preparation for her testimony, testified that the STU
was “a fine unit” when asked about its reliability in preserving
scent. There is also abundant scientific literature with respect to
the reliability of the STU. (See, e.g., Caraballo et al., An
investigation into the concurrent collection of human scent and
epithelial skin cells using a non-contact sampling device in
Forensic Sci. Int. (2016) vol. 266, pp. 148-159 [“the STU-100 was
not suitable in collecting a sufficient amount of epithelial skin
cells for DNA analysis, but proved to be efficient in collecting
human scent from two different objects”]; Curran et al., Canine
human scent identifications with post-blast debris collected from
improvised explosive devices in Forensic Sci. Int. (2010) vol. 199,
pp. 103-108 [using, in double-blind field trials to test the
survivability of human scent on post-blast devices, an STU to
collect scent and finding an average success rate of 82.2 percent];
Harvey & Harvey, Reliability of Bloodhounds in Criminal
Investigations in J. Forensic Sci. (July 2003) vol. 48, no. 4,
pp. 811-816 [using an STU to test bloodhound’s trailing ability
and finding the device “to be effective in the collection of scent
without disturbing any other forensic evidence”].)
22
Substantial Evidence Supported the Jackson Factors
for Admissibility
Figueroa next argues that substantial evidence did not
support any of the four Jackson factors for admissibility,
including: (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 had been found reliable in tracking
humans; and, (4) the dog was placed on the track where
circumstances indicated the guilty party to have been. (Jackson,
supra, 1 Cal.5th at pp. 321-323 [discussing with approval four of
the five factors for admissibility trailing evidence stated in People
v. Malgren (1983) 139 Cal.App.3d 234, disapproved, in part, in
Jackson, supra, at p. 323].)
“ ‘We review the trial court’s conclusions regarding
foundational facts for substantial evidence. [Citation.] We
review the trial court’s ultimate ruling for an abuse of discretion
[citations], reversing only if “ ‘the trial court exercised its
discretion in an arbitrary, capricious, or patently absurd manner
that resulted in a manifest miscarriage of justice.’ ” [Citation.]’
[Citation.]” (Jackson, supra, 1 Cal.5th at pp. 320-321.)
With respect to the first factor, substantial evidence
showed Grossman was qualified by training and experience to
use Roscoe as a trailing dog. He began training Roscoe when the
dog was two months old, and the pair was certified in tracking
and trailing in 2012.
With respect to the second and third factors, Roscoe was
adequately trained in trailing humans and demonstrated
reliability in doing so. He was first certified in trailing when he
was two years old and held an additional five or six certifications
for man trailing. Grossman regularly trained Roscoe, including
23
in negative trails, for which Roscoe had a 100 percent success
rate. Roscoe never identified the wrong person when doing a
scent identification. Grossman also recorded Roscoe’s training,
tracking, and trailing in an 89-page log that spanned November
2010 to August 2017.16
With respect to the fourth factor, substantial evidence
established that Roscoe was placed on the track where
circumstances indicated the guilty party to have been. Given the
dirt patterns near Herrera’s knees and toes, he was shot at the
location where he was found. The scent pad was taken from a
bullet shell casing that was found just a few feet from Herrera’s
body. A reasonable inference exists that the person who shot
16 Figueroa raises several additional issues with respect to
training and reliability that deserve only brief mention.
Although Kessler-Miller opined that Roscoe had a 54 percent
success rate, her analysis was impeached because it included
entries for which Roscoe was not identified as the dog that
performed the task listed. In any event, her conflicting testimony
would go to the weight not the admissibility of the evidence. (See
People v. Merriman (2014) 60 Cal.4th 1, 57 [“the reliability of a
witness’s testimony is a matter for the jury [or trier of fact] to
decide and therefore concerns the weight of the evidence, and not
its admissibility”].) Also, the fact that Grossman did not have as
many years of experience or certifications and Roscoe did not
have as much training as the handler and dog team in People v.
Peterson, supra, 10 Cal.5th at pages 447 to 448, is
inconsequential because nothing in Peterson suggests the
qualifications described therein established a floor for adequate
training and reliability.
24
Herrera touched that bullet casing. (See People v. Jackson,
supra, 1 Cal.5th at p. 322.)17
Having substantial evidence to support each of the Jackson
factors, the trial court did not abuse its discretion in admitting
the dog scent evidence.
C. Substantial Evidence Supports Figueroa’s
Conviction for Murder
“In addressing a claim of insufficient evidence to support a
conviction, this court ‘ “reviews the entire record in the light most
favorable to the prosecution to determine whether it contains
evidence that is reasonable, credible, and of solid value, from
17 Figueroa argues the prosecution failed to demonstrate
the reliability of a scent taken from a bullet casing after being
fired from a gun and left in the dirt overnight. He postulates the
casing may not have come from the bullet that killed Herrera, the
scent on the casing could have belonged to someone who touched
it but did not fire the gun, and because the casing laid in the dirt
overnight, “it is not a foregone conclusion that the only or
primary scent on it would be that of the perpetrator of the
homicide.” He also argues that Roscoe used the scent months
after it was collected, and that there was no evidence that Roscoe
had reliably trailed scents that were that old. Whereas
Figueroa’s arguments question whether the scent was stale or
contaminated, the Jackson court expressly rejected requiring
such a showing for admissibility. (Jackson, supra, 1 Cal.5th at
p. 323 [stating the relevant question is not whether the scent is
stale or contaminated, but whether the dog has a proven track
record of reliably trailing scents only when there is a
corresponding trail and even if other scents are present].)
Grossman testified that Roscoe had been trained on negative
trails and had a 100 percent success rate in not trailing when
there was no corresponding scent present.
25
which a rational trier of fact could find the defendant guilty
beyond a reasonable doubt.” ’ [Citation.] ‘We presume every fact
in support of the judgment the trier of fact could have reasonably
deduced from the evidence. [Citation.] If the circumstances
reasonably justify the trier of fact’s findings, reversal of the
judgment is not warranted simply because the circumstances
might also reasonably be reconciled with a contrary finding.’
[Citation.]” (Jackson, supra, 1 Cal.5th at p. 345.)
Statements from the riverbed residents that Figueroa
admitted that he murdered Herrera and that he took Herrera’s
bicycle and the murder weapon to Han’s grandmother’s home
constitute substantial evidence supporting his murder conviction.
The dog trailing evidence corroborates these statements.18
18 Figueroa argues that, even if the dog scent evidence was
admissible under Jackson, it was unsound for the same reasons
he argued it should not have been admitted. Because substantial
evidence supports each of the four Jackson factors, we will only
address Figueroa’s additional arguments relating to the viability,
staleness, or contamination of the scent. With respect to scent
pad storage, Grossman testified that his standard practice was to
tell law enforcement to store scent pads in a glass jar each time
he collected a scent. Kessler-Miller agreed storing scent pads in
glass was the correct procedure. Although Figueroa claims that
the prosecution failed to demonstrate that human scent could
survive on a bullet casing after being fired from a gun and laying
on the ground overnight, Grossman’s testimony implied that
using scent from an expended casing was a regular and accepted
practice. Neither Figueroa nor Kessler-Miller challenged this
practice.
Although Figueroa observes that Roscoe stopped for
approximately four minutes as he trailed the scent through the
station trying to pick up the trail, both Grossman and Kessler-
26
Figueroa argues the riverbed residents’ statements were
“so fundamentally unreliable so as to present no ‘solid value’ and
thus insufficient to support a conviction.” He observes each
riverbed witness was a methamphetamine addict who admitted
to associated memory issues and provided muddled, contradictory
statements to the authorities and at trial.
Notwithstanding Torres’s conflicting testimony, the trial
court found her original statement to Detective House credible
and “very strong” evidence that Figueroa admitted he shot
Herrera. It observed that virtually all the witnesses were
Figueroa’s friends and therefore had no reason to lie. The court
also found the statement that Han received the bike and gun and
buried the gun to be “pretty detailed” and strong. Han’s
testimony that she collected beach cruisers, resold bicycles, and
sold things that Figueroa stole corroborates Raymond’s story that
Figueroa took the bicycle to Han.
Although Figueroa asks us to reweigh the evidence and
independently determine that the witnesses’ statements
incriminating him were not credible, we are not at liberty to do
so. “[It] is well settled that an appellate court will not reweigh
the evidence, assess the credibility of witnesses or determine
inconsistencies and contradictions in their testimony, these being
Miller testified that the movement of air currents indoors may
affect a scent dog’s trailing. Figueroa also points to Kessler-
Miller’s questions of whether Roscoe could have alerted on
Figueroa because he was Hispanic, in jail clothing, or wearing
metal handcuffs. However, it was for the court as the trier of fact
to determine how much weight to give the four-minute delay and
Kessler-Miller’s opinions. (See People v. Maury (2003) 30 Cal.4th
342, 403; People v. Sullivan (1963) 214 Cal.App.2d 404, 408.)
27
matters for the trier of fact to resolve.” (People v. Sullivan,
supra, 214 Cal.App.2d at p. 408; see People v. Maury, supra, 30
Cal.4th at p. 403 [“Conflicts and even testimony [that] is subject
to justifiable suspicion do not justify the reversal of a judgment,
for it is the exclusive province of the trial judge or jury to
determine the credibility of a witness and the truth or falsity of
the facts upon which a determination depends”].)
Viewing the evidence in the light most favorable to the
judgment, there was substantial evidence to support Figueroa’s
murder conviction.
D. The Trial Court Did Not Abuse its Discretion in
Denying Figueroa’s Motion for a New Trial
On June 7, 2019, Figueroa filed a motion for a new trial on
the bases that, inter alia, the verdict was contrary to evidence
because the riverbed residents incriminating statements were so
unreliable that they could not support the murder charge and the
court erred as a matter of law in admitting the dog scent
evidence. The trial court denied the motion.
Relevant here, section 1181 allows a trial court to grant a
new trial when jury verdict “is contrary to law or evidence”
(§ 1181, subd. (6)) or when it “has erred in the decision of any
question of law arising during the course of the trial” (id., subd.
(5)). “A trial court has broad discretion in ruling on a motion for
a new trial, and there is a strong presumption that it properly
exercised [its] discretion.” (People v. Davis (1995) 10 Cal.4th 463,
524.) “ ‘The determination of a motion for a new trial rests so
completely within the court’s discretion that its action will not be
disturbed unless a manifest and unmistakable abuse of discretion
clearly appears.’ [Citation.]” (People v. Williams (1988) 45 Cal.3d
281268, 1318; accord, People v. Carter (2005) 36 Cal.4th 1114, 1210;
People v. Coffman and Marlow (2004) 34 Cal.4th 1, 127.)
We need not revisit Figueroa’s argument that a new trial
was warranted because the trial court erroneously admitted the
dog scent evidence. As addressed above, substantial evidence
supported each Jackson factor. Further, it was certainly not
beyond the bounds of reason for the trial court to find the
inculpatory statements of Torres, Orozco, and Raymond credible.
Figueroa argues that in ruling on his motion, the trial court
relied on its erroneous recollection of facts to impute credibility to
Raymond’s statement. The trial court observed, “The one piece of
evidence that I thought was significant, . . . Raymond describes
. . . that Han told her she—[Figueroa] gave her the gun, gave her
the bike, and she threw it over the fence at her grandmother’s
house and there was some construction back there so they didn’t
want to bury it. How would Raymond know to make that up?
How would she know those facts if, indeed, there is a place
behind the grandmother’s house, there was construction going on
over there. How would she make that up? And I think it’s
strong, strong evidence that she didn’t make it up, that Han,
indeed, told her . . . there is no other explanation for her making
that statement other than that is what Han said.”
Although Figueroa is correct that Raymond did not make
any statement that there was construction behind Han’s
grandmother’s house, the trial court’s erroneous recollection of
this specific evidence was harmless. (See Cal. Const., art. VI,
§ 13 [“[n]o judgment shall be set aside, or new trial granted, in
any cause . . . for any error as to any matter of procedure, unless,
after an examination of the entire cause, including the evidence,
the court shall be of the opinion that the error complained of has
29
resulted in a miscarriage of justice”]; People v. Braxton (2004) 34
Cal.4th 798, 818, 820 [error regarding new trial motion subject to
“miscarriage of justice” review; no miscarriage of justice if
appellate record shows trial court would have properly exercised
discretion to deny motion].)
Putting aside the trial court’s mistaken recollection about
certain aspects of Raymond’s testimony, her statement was still
of sufficient detail to indicate it was of solid, credible value. For
example, Raymond stated that Han told her that she threw the
gun over a freeway wall and buried it. Detective House
confirmed that there was a sound wall for the freeway by the
house and construction site.
Although specifically highlighted by the trial court in
denying the motion for new trial, Raymond’s statement was not
the only evidence on which the court did or could rely. In issuing
its verdict, the trial court also specifically credited Torres’s
testimony and other aspects of Raymond’s testimony. The trial
court also presumably relied upon Orozco’s statements that
Figueroa admitted to killing Herrera. The dog scent evidence
corroborated these statements. Moreover, Figueroa’s erratic
behavior the evening before the murder, his familiarity with and
access to guns, combined with the fact that, close to the time
Herrera left the movie theater, Figueroa was seen heading south,
in the direction where Herrera’s body was later found, all
corroborate the court’s verdict.19
19 In ruling on the motion for new trial, the trial court
stated, “we know Mr. Figueroa is handy with guns. We know he
had guns, he fired guns. So we know he is handy with a weapon.”
Figueroa characterizes the court’s use of the word “handy” to
mean Figueroa had a propensity for violence, in contravention of
30
The trial court did not abuse its discretion in denying
Figueroa’s motion for new trial.
E. Amendments to Section 1170 Mandate Remand for
Resentencing of Figueroa
During the pendency of Figueroa’s appeal, the Governor
signed into law Assembly Bill No. 124 (2021-2022 Reg. Sess.) and
Senate Bill No. 567 (2021-2022 Reg. Sess.), effective January 1,
2022, amending section 1170. Because the amendments are
ameliorative and Figueroa’s conviction is not yet final, they apply
retroactively to Figueroa’s sentence. (See In re Estrada (1965) 63
Cal.2d 740, 744.)
Assembly Bill No. 124 and Senate Bill No. 567 amended
section 1170 to create a presumption in favor of a low prison term
if certain circumstances were a contributing factor in the
commission of the offense. (§ 1170, subd. (b)(6).) These
circumstances include that the defendant experienced
psychological, physical, or childhood trauma; was under the age
of 26 at the time of the commission of the offense; or prior to the
instant offense or at the time of the commission of the offense,
the defendant was a victim of intimate partner violence or human
trafficking. Subdivision (b)(7) clarifies that subdivision (b)(6)
does not preclude the court from imposing a lower term even if
there was no evidence of subdivision (b)(6) factors present.
(Stats. 2021, ch. 731, § 1.3; Stats. 2021, ch. 695, § 5.)
its prior evidentiary ruling to not consider firearm evidence for
that purpose. Read in context, it is more likely the court meant
Figueroa was familiar with how to use a gun, which the court
found was a permissible inference from the evidence in making
its evidentiary ruling.
31
Senate Bill No. 567 also amended section 1170, subdivision
(b)(1) and (2) to require a sentencing court to impose the middle
term for any offense for which the statute specifies three possible
terms unless “there are circumstances in aggravation of the crime
that justify the imposition of a term of imprisonment exceeding
the middle term, and the facts underlying those circumstances
have been stipulated to by the defendant, or have been found true
beyond a reasonable doubt at trial by the jury or by the judge in a
court trial.” (Stats. 2021, ch. 731, § 1.3; § 1170, subd. (b)(1) &
(2).)
The Attorney General concedes, and we agree, that the
matter should be remanded for the court to hear evidence that
may warrant the imposition of the low term pursuant to section
1170, subdivision (b)(6) for counts 2 and 4. Upon remand, the
court may revisit its prior sentencing decisions in light of new
legislation, including, but not limited to, Senate Bill No. 567.
(People v. Valenzuela (2019) 7 Cal.5th 415, 424-425 [“the full
resentencing rule allows a court to revisit all prior sentencing
decisions when resentencing a defendant”]; accord, People v.
Buycks (2018) 5 Cal.5th 857, 893 [“the ‘full resentencing
rule’ ”].)20
20The Attorney General argues (and Figueroa does not
dispute) a clerical error in the abstract of judgment may require
correction. “Courts may correct clerical errors at any time, and
appellate courts . . . that have properly assumed jurisdiction of
cases have ordered correction of abstracts of judgment that did
not accurately reflect the oral judgments of sentencing courts.”
(People v. Mitchell (2001) 26 Cal.4th 181, 185.) For Figueroa’s
conviction of section 245, subdivision (a)(2), assault with a
firearm (count 2), the court sentenced Figueroa to the high term
of four years plus an additional four-year term for the section
32
DISPOSITION
We reverse and remand the matter for resentencing. In all
other respects, the judgment is affirmed.
NOT TO BE PUBLISHED
CRANDALL, J.*
We concur:
CHANEY, J.
BENDIX, Acting P. J.
12022.5 allegation of personal use of a firearm. The abstract of
judgment omits the four-year term for the section 12022.5
allegation, and, thus, does not accurately reflect the oral
pronouncement of judgment.
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
33