People v. Jackson

Filed 8/1/16

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S139103

v. )

)

BAILEY LAMAR JACKSON, )

) Riverside County

Defendant and Appellant. ) Super. Ct. No. RIF97839

____________________________________)

Defendant Bailey Lamar Jackson was convicted by a jury of first degree

murder (Pen. Code, § 187, subd. (a); all further statutory references are to the

Penal Code unless otherwise indicated), first degree burglary (§ 459), and first

degree robbery (§§ 211, 215, subd. (a)) of Geraldine Myers. The jury found true

the special circumstance allegations of robbery murder and burglary murder.

(§§ 190.2, subd. (a)(l7)(A), (G).) Jackson was also convicted of attempted murder

(§§ 187, subd. (a), 664, subd. (a)), first degree burglary (§ 459), first degree

robbery (§§ 211, 215, subd. (a)), torture (§ 206), forcible rape (§ 261,

subd. (a)(2)), forcible oral copulation (§ 288a, subd. (c)(2)), and sexual penetration

with a foreign object on an unconscious person (§ 289, subd. (d)) against Myrna

Mason. The jury found true allegations that Jackson personally inflicted great

bodily injury on a person 70 years of age or older in the commission of the

attempted murder and torture. (§§ 12022.7, subd. (c), 1192.7, subd. (c)(8).) In

connection with the rape and forcible oral copulation charges, the jury found true

that Jackson inflicted aggravated mayhem or torture on Mason (§ 667.61, subd.

(d)(3)), that he entered her house with the intent to commit a violent sexual

offense (§ 667.61, subds. (c) & (d)(4)), and that he personally inflicted great

bodily injury on Mason (§ 667.61, former subd. (e)(3)). The jury also found that

Jackson had been convicted of two prior prison offenses (§ 667.5, subd. (b)), two

serious prior felonies (§ 667, subd. (a)), and two serious or violent felonies within

the meaning of the ―Three Strikes‖ law (§§ 667, subds. (c), (d)(2), & (e)(2)(A),

1170.12, subd. (c)(2)(A)).

The jury was unable to reach a penalty verdict. A new jury was empaneled

and the penalty phase was retried, resulting in a verdict of death. The trial court

denied the automatic motion to modify the penalty, sentenced Jackson to death for

the count of murder, and imposed a sentence of 212 years to life on the remaining

counts. This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); § 1239,

subd. (b).) We remand to the trial court to recalculate the noncapital portion of

Jackson‘s sentence. In all other respects, we affirm the judgment.

I. FACTS

A. Guilt Phase

In May 2001, 82-year-old Geraldine Myers disappeared from her home in

Riverside, California. Her car was later located in Las Vegas, but her body has not

been found. Six weeks later, Myrna Mason, an 84-year-old woman living alone in

the same neighborhood, was raped in her home. Jackson was arrested the

following day for Mason‘s rape. The investigation yielded evidence suggesting

that Jackson was also involved in Myers‘s disappearance, which led to further

investigation specifically designed to connect Jackson with the Myers case. The

following factual summary roughly tracks this chronology. Thus, certain evidence

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relevant to the Myers case (most notably, evidence derived through dog trailing)

follows the discussion of the Mason case.

1. Prosecution Evidence

a. Discovery of Myers‘s Disappearance

Myers‘s daughter-in-law Monique testified that, on Mother‘s Day, May 13,

2001, she took Myers to a Sunday service at the Arlington Christian Church.

Later that evening, one of her sons, William, took her to dinner. William and

Myers returned to her home between 7:00 and 7:30 that evening, and he stayed

with his mother until about 8:45 p.m. Monique called Myers several times

throughout the following day (May 14), but received no answer. After speaking

with her brother-in-law, Richard Myers, who had similarly been unable to reach

Myers that day, Monique decided to see if Myers was home. Monique went to

Myers‘s house on San Simeon Way at around 9:00 p.m. that night, but no one

answered the door. Monique obtained a key to the back door (which was locked)

from the property manager and entered the house. She looked around for five or

10 minutes and walked down the hallway and into the living room, but did not go

into either bedroom. There was a light on in the living room, but the rest of the

house was dark. She checked the front door and found it locked. She did not

notice anything unusual, so she returned the spare key and went home.

Monique called Myers the next morning and again received no answer.

Monique then called her daughter, Robin Myers Wilson, and instructed her to go

to Myers‘s home to ―see what‘s going on.‖

Robin Myers Wilson testified that, on May 15, 2001, after speaking with

her mother, she went with her younger sister Deanna to Myers‘s home. Wilson

immediately noticed that something was wrong: cleaning products were in

disarray, Myers‘s shoes were scattered on the floor, and a window curtain was

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lying in the sink. Wilson recognized Myers‘s purse in the kitchen. Walking

further into the house, Wilson noticed an apparent bleach stain in the hallway,

which had not been there when she had visited the Saturday before, as well as a

torn envelope on Myers‘s bed. In the spare bedroom, Wilson found a dress and

pantyhose lying on the floor. (Roberta Myers, Geraldine Myers‘s daughter-in-law,

described this as the black skirt that Myers had worn on Mother‘s Day. Deanna

described it as the blue dress Myers had worn that day.) Wilson called her mother

to tell her that something was wrong and then called 911 to report that Myers was

missing.

b. Preliminary Investigation of Myers‘s House

Riverside Police Officer Robert Arnold testified that he took a missing

persons report from Myers‘s son, Douglas, and then drove to her home at around

12:30 p.m. on May 15, 2001, to investigate. He walked the perimeter of the house

and did not see any signs of a forced entry or a disturbance within the house.

Riverside Police Sergeant Victor Williams testified that, on the afternoon of

May 15, 2001, he went to Myers‘s house to collect evidence in relation to the

missing persons report. In front of the house, Williams found newspapers from

Monday, May 14, and Tuesday, May 15. As he walked through the house, a stain

in the hallway ―stood out‖ to him. It looked like a bleach stain but gave off no

distinctive smell. Williams also noted a strike mark on the door opening from the

hall into the living room, which was shallow and appeared to have been made by a

hard object. White marks around the same door suggested that it had been

recently cleaned. Similar marks were visible on the door from the hallway to the

laundry room.

Williams found two empty beer bottles and an empty water bottle in a

garbage bag in the laundry room. These items did not yield DNA or latent

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fingerprints. William Myers, Myers‘s son and the last person to leave her house

on Mother‘s Day, testified that neither he nor Myers consumed beer that evening.

Williams also found approximately $8,000 in cash and bags of coins in

Myers‘s bedroom closet.

c. Recovery of Myers‘s Car in Las Vegas, Nevada

Las Vegas Police Officer Steven Perry testified that, on May 18, 2001, he

stopped a red Toyota Corolla, later identified as Myers‘s car, outside the city for a

lane infraction. The driver was 16-year-old Donald Rogers. Rogers told Officer

Perry that he had found the car in a Las Vegas parking lot with the keys in the

ignition and decided to take it. During an inventory search of the vehicle, officers

found a Macy‘s shopping bag in the trunk that appeared to have blood on it.

Federal Bureau of Investigations Special Agent Lawrence Wenko testified

that he lifted 21 latent fingerprints from the vehicle, none of which belonged to

Jackson. Wenko also collected the Macy‘s bag, an aqua-colored wallet, and a

white plastic bag containing shoes and other items, all of which he checked for

hair and fibers. He collected soil and debris from the passenger side rear bumper.

He did not identify any blood in the vehicle, other than what was on the Macy‘s

bag. He obtained video surveillance tapes for May 16 and 17, 2001, from the store

where Rogers said he had found the car; no earlier surveillance tapes were

available.

Rogers testified that he stole Myers‘s car from the parking lot of a shopping

center. He was looking for a car to steal, saw that the keys to the Corolla were in

the ignition, and decided to take it. Rogers drove the car around with his friend,

Jose Davila, and several of Davila‘s cousins. He recalled being surprised by how

empty the vehicle was; he did not find anything in the passenger compartment or

glove box, not even a vehicle registration. He described the trunk, however, as

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full of ―[a] lot of shoes and crayons and a bloody bag.‖ Rogers did not recall

taking anything from the trunk, except some crayons for Davila‘s sisters. Rogers

testified that he and his friend played with the bag, teasingly pushing it towards

each other, and that, in the process, he may have taken it out of the trunk and put it

back in, although he was not ―a hundred percent sure.‖

Rogers‘s statements were inconsistent as to the date on which he found

Myers‘s car. At the time of his arrest, he told Officer Perry he had taken it on

Thursday, May 17. During an interview several weeks later, he told Riverside

Police Detective Bill Barnes that he had taken it on Wednesday, May 16. At trial,

Rogers testified that he found the car on either Monday, May 14, or Tuesday, May

15, but that he could not say for sure which of the two dates was correct.

Detective Barnes traveled to Las Vegas on Friday, May 18, 2001 to inspect

Myers‘s car and interview Rogers. Barnes testified that Rogers expressed shock

upon learning that the car was connected to a murder. Rogers told Barnes that he

did not have ties to Southern California and had never been to Riverside.

California Department of Justice (DOJ) fingerprint analyst Linda Senteney

analyzed the fingerprints lifted from the items in the trunk of Myers‘s car.

Senteney was unable to match the prints to anyone connected to the case, other

than Rogers and Davila. Riverside County Sheriff‘s fingerprint examiner James

Edmonston was likewise unable to match any of the prints to anyone related to the

case, other than Davila and Officer Perry.

d. Jackson‘s Location on Mother‘s Day 2001

Angielina Fortson testified that she became romantically involved with

Jackson in the spring of 2000. About one-and-a-half months before the assault on

Mason, Jackson came to stay with Fortson, who was living with her mother, Billie

Harris, on Lassen Court in Riverside.

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Fortson testified that Jackson had gone outside to lift weights at some point

after dark on May 13, 2001. She heard him lifting weights for 25 to 30 minutes,

but he did not come back inside for over two hours. When he returned later,

Fortson noticed that he was sweaty. He told her he had gone to have a few beers

with their neighbor, Richard Shrader. Jackson and Fortson fell asleep; when

Fortson woke up at 9:00 a.m. the next morning, he was gone. He returned late that

evening and told her that he had been working with his friend, Joe Taufaao.

On cross-examination, Fortson stated that she could remember the events of

May 13, 2001, distinctly. She had been upset that day because her ex-husband

was supposed to bring her son to visit, but did not. She and Jackson drove

Harris‘s car to Jackson‘s mother‘s home. Then they returned to Harris‘s house.

Fortson‘s sisters and nephew came over and Fortson braided hair for her nephew

and several of his friends. Her sisters did not leave until 11:30 at night. At some

point after dark but before her sisters left, Jackson went outside to lift weights.

When everyone had left, Jackson comforted Fortson and the two had sex until

early in the morning, then fell asleep. When Fortson woke up at 9:00 a.m., he was

still there. She fell asleep and woke up later in the morning or early in the

afternoon. By then, he was gone and he did not return until late in the evening.

Richard Shrader‘s wife Debra testified that, at 9:30 p.m. on May 13, 2001,

Jackson had tapped on their window and Richard had gone outside to talk to him.

Jackson asked Richard if he could borrow $40. Richard said he would have to ask

his wife and went inside his house. Later that night, Jackson came to the door and

asked again. Richard declined to lend him the money. However, they had not

lifted weights together or gone to a bar. Richard does not drink because he is a

recovering alcoholic.

In April 2003, investigator Martin Silva from the district attorney‘s office

interviewed Fortson‘s daughter, Sheena. Sheena told Silva that, after Mother‘s

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Day of 2001, her mother was ―gone for like two or three days,‖ though she did not

know where because her mother did not usually tell Sheena where she was going.

Sheena told Silva that she thought Jackson was with her mother and that they left

on the afternoon of Mother‘s Day. At trial, Sheena testified that she did not

remember making these statements. With respect to Jackson‘s whereabouts, she

stated, ―I didn‘t say he was gone with her. I said she was gone.‖

Police interviewed Jackson‘s friend Taufaao on June 22, 2001. Taufaao

said that Jackson and Fortson did not take trips. A detective responded, ―Cause

[Jackson‘s] telling us and Angie is telling us that they made a trip to Vegas.‖

Taufaao responded that although he didn‘t know any details, he heard Jackson and

Forston saying something about how they went to Las Vegas. At trial, Taufaao

did not remember telling the police about a trip to Las Vegas. Instead, he said he

remembered the couple talking about going to Vegas in the future, not returning

from a recent trip. He recalled going out to dinner with his family on Mother‘s

Day, but did not know whether he had seen Jackson either that day or the day

after.

e. Additional Evidence Related to Myers‘s Disappearance

In a locked cabinet in Jackson‘s bedroom at his parents‘ house, police

found an article about Myers‘s disappearance clipped from a local newspaper.

Investigator Silva testified that prints found in Myers‘s bathroom were

made by a pair of Vans shoes. Dana Guidice, vice president of product

development for Vans, testified that the prints were made by shoes with a

―wafflecup‖ sole, a feature that was used in only two models: the Blake and the

Gravel. According to Guidice, approximately 20,000 to 30,000 pairs of the two

patterns total were sold in the United States, primarily in Southern California. At

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trial, Fortson was shown a picture of a Blake shoe. She testified that Jackson wore

that type of shoe when he mowed the lawn.

Myers‘s friend, Lilia Alberga, testified that Myers had blondish-reddish

hair that she had styled at the beauty parlor every week.

Loujean Price, a neighbor who shared a wall with Myers, testified that

Myers would take her trash out to the dumpsters across the alley about three times

per week, usually between 10:30 and 11:00 p.m. At around 11:00 p.m. on

Mother‘s Day 2001, Price heard three taps from Myers‘s side of the wall, which

sounded like someone was hammering a nail into the wall. She did not hear

anything else before or after that.

California Department of Justice Senior Criminalist Mark Traughber

examined articles of Jackson‘s clothing. One of his shirts had several holes ringed

by discoloration, which Traughber found consistent with bleach stains. Traughber

visually examined the stain on Myers‘s hallway carpet and chemically tested the

carpet, the padding beneath it, and the wood floor for blood. He also tested stains

near the bathroom. These tests were negative for blood. Traughber noticed a

small bloodstain on a heater grate, which matched Myers‘s DNA profile.

Traughber testified that there is no direct test that can be done to determine

whether the stain on the hallway carpet was caused by bleach. He acknowledged

the possibility that bleach would trigger a false positive result from the two tests

he used to check for blood. He also testified that bleach is ―very unstable when

you take it out of that bottle, or you start to dry it,‖ and will ―react with anything

around it and oxidize it‖ or decompose into salts and oxygen. He also testified

that it was ―common knowledge‖ that bleach could completely destroy blood.

After giving this testimony, Traughber conducted several experiments to

determine whether bleach could destroy blood, and how long bleach left exposed

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to the air would falsely test positive for blood. These experiments are discussed

further below. (Post, at pp. 81–83.)

f. Assault on Mason

At 3:50 a.m. on June 22, 2001, Riverside Police Officer Raymond Soto was

dispatched to Mason‘s house on Lassen Court. On the stand, Soto recounted the

details that he heard Mason tell the paramedics about the assault. Mason died

before Jackson‘s trial. On June 22, 2001, while she was in the hospital, Mason

recounted a similar set of facts in a recorded interview with Detective Jeffrey

Joseph, which was played for the jury. She also testified at a preliminary hearing

on July 17, 2002. Her hearing testimony was read aloud at trial. Her statements

were consistent on all occasions.

She described staying up reading until 1:30 in the morning and then going

outside to turn the water off. She had left her garage door slightly ajar because it

was a hot day and there was a refrigerator in the garage. When she went back

inside, she locked the door behind her, and turned to see a man wearing a ski mask

step out from behind her washing machine into her hallway. He pushed her down

to the floor and began choking her. Then he stood up and pushed her into the

bedroom. He pushed her onto the bed, told her to take her clothes off, and slapped

her on the back with his open hand. It hurt, and she told him that she had rods in

her back. He took off his ski mask, but she did not see his face. He told her

repeatedly that if she looked at him, he or ―his buddies‖ would kill her.

Mason described the details of the sexual assault. ―He fondled my breasts

briefly and he did not try to penetrate me, but he just used his penis to just touch

me. . . . [¶] From front to back between my legs.‖ He forced her to perform oral

sex on him, something she ―never ever had anything to do with . . . in my life,‖

and which she found offensive. He asked, ― ‗You sure you never done this

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before?‘ ‖ He choked her again, ―[w]orse than the first time,‖ and she felt she was

about to lose consciousness. At some point, she did lose consciousness. When

she woke up, she was toward the end of the bed with her legs hanging over the

foot of the bed. There was blood ―puddled‖ in both her ears. She found she was

unable to stand up. ―I couldn‘t understand why I couldn‘t get up and — until I

looked around and noticed that there was a garden rake handle that he had thrust

into my vagina. . . . [¶] I think there was blood on it about three or four inches

down the handle from the end of the handle.‖ She removed the rake, took a few

steps, and began to have diarrhea; she ran to the bathtub to wash herself, got

dressed, and called 911. Among the injuries she sustained to her vagina, neck, and

eardrums, she lost her singing voice and was unable to resume singing with her

choir after the assault.

Patricia Forst, an emergency room nurse responsible for clinical forensic

examinations of sexual assaults, interviewed and examined Mason at the hospital.

Forst testified that her physical examination corroborated Mason‘s account of the

assault. Mason suffered bruising on her hip and thigh, as well as her wrists, hands,

and forearms. She had petechiae (small broken blood vessels) on her face and in

her eyes, consistent with choking, as well bleeding in both ears, loss of hearing,

and bruising to her neck, jaw, and throat. She also had bruising on her tongue and

lacerations on her external genitalia and vaginal vault. Mason told Forst that her

assailant threatened to kill her or have his ―gang members‖ kill her if she called

the police.

At 6:10 a.m. on June 22, 2001, Riverside Police Detective Derwin Hudson

arrived at Mason‘s house. He searched the area and found a woman‘s purse, later

identified as Mason‘s, in a trash can one block from Mason‘s house. The trash can

belonged to the Shraders. Hudson left the purse in the trash can, notified his

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sergeant that it had been found, and waited by the trash can for a technician to

come and retrieve it.

Senior evidence technician Tim Ellis testified that he arrived at Mason‘s

house at 6:50 a.m. on June 22, 2001. He took a number of photographs of the

house and its surroundings. He testified that he noticed Mason‘s garage door was

open approximately 13 inches, which was enough space for someone to crawl in.

Fortson testified that her mother woke her up at around 7:00 or 8:00 a.m. on

June 22, 2001, and told her that the police were outside. The police entered the

room where Jackson and Fortson had been sleeping. They asked about several

television sets that were in the room, one of which was later determined to be

Mason‘s (the serial number matched the number on a warranty card provided by

Mason). Police arrested Jackson that morning and took him and Fortson to the

Spruce Street police station to be interviewed. Riverside Police Sergeant Kevin

Stanton testified that Mason‘s checkbook was found stuffed inside Fortson‘s

purse. Shrader testified that on the night of June 21, 2001, Jackson knocked on the

Shraders‘ door around 8:00 p.m. Jackson asked Richard if he could borrow $20.

Richard lent him $15.

Mehul Anjaria, a DNA analyst from the San Bernardino Sheriff‘s crime

laboratory, analyzed a bloodstain on a pair of Jackson‘s pants. She testified that

the DNA profile matched Mason‘s at 13 points. She estimated that only one in

120 quadrillion Caucasian women would have a matching profile. (A quadrillion

is the product of one million and one billion.) The probabilities that the profile

would match a black or Hispanic woman were even lower.

California Department of Justice Criminalist Michelle Merritt, an expert in

shoe impressions, testified about the shoe print found in the dirt outside Mason‘s

home. While there were no uniquely identifying marks, Merritt concluded that the

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print was left by a shoe whose design, size, and wear were consistent with shoes

owned by Jackson.

g. June 22, 2001 Dog Trailing

Riverside Deputy Sheriff Coby Webb, a canine officer, arrived at Mason‘s

house on the morning of June 22, 2001, accompanied by a bloodhound, Maggie

Mae, who had been trained to trail human scent. Webb used a ―device that sucks

up scent onto a gauze pad,‖ referred to as a ―scent transfer unit,‖ to vacuum the

scent from the shoe print found in the freshly raked dirt outside Mason‘s home and

transfer it onto a gauze scent pad. Webb presented the scent pad to Maggie.

Webb testified that Maggie trailed from outside Mason‘s home across the

street and around the trash can that still contained Mason‘s purse. Maggie

continued from there to the Shraders‘ porch, then turned and walked to Harris‘s

backyard, at which point she seemed confused and appeared to have lost the trail.

Webb testified that this reaction may have been the result of ―pooling,‖ which

occurs when many trails of the target scent overlap at a single location. Webb

testified that pooling can occur at the residence of the person who left the scent the

dog is trailing.

Webb and Maggie were called to the Spruce Street police station. Webb

was asked if she and Maggie could trail to or eliminate a suspect who was

detained inside the station. In the lobby, Webb presented Maggie with the scent

pad collected from the shoe print outside Mason‘s house. Maggie trailed through

the police station and into an interview room where Jackson was seated with a

police officer. Maggie did not ―commit herself to jump up‖ on Jackson, but she

approached him and stopped trailing. Webb testified that when Maggie ―gets

confused, she will just stop, which tells me she did not know which subject was

the possible suspect.‖ Webb noticed that the air conditioning was on in the

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building, which she said made it harder for Maggie because ―that person‘s scent is

going all through the air-conditioning vents.‖ Webb had to pull Maggie out of the

room, which further suggested to Webb that Maggie had located the person she

was trailing.

h. Jackson‘s June 22, 2001 Police Interview

The day Jackson was arrested, June 22, 2001, detectives Barnes and Joseph

interviewed him about the assault on Mason. As the interview progressed, the

detectives began to suspect that Jackson was at times referring to Myers. A

recording of the interview was played for the jury.

Barnes began the interview by explaining that they were investigating an

assault that occurred up the street from where Jackson was staying and that items

of Mason‘s property had been found in his possession. Jackson denied that

Forston was involved and stated that his ―homeboys‖ Mark Johnson, ―Psycho

Bullet,‖ and ―Tom Dog‖ gave him the television through his window. He said the

three men had ―pecked‖ on his window after he and Fortson had gone to sleep,

asked him for the $15 he had borrowed earlier from his neighbor, and slipped the

television through the window. He acknowledged that the television was stolen,

but denied knowing anything about the theft.

Jackson stated that the three men had given him a gun along with the

television. When asked where the gun was, he first said that he had thrown it into

the trash and later said they had come back to get it. He did not otherwise mention

the gun during the interview. When asked about the checkbook found in Fortson‘s

purse, he said that it came through the window in a box along with the television

and the gun. When asked where the box was, he said that he had taken his

medication before the men came and was too tired to pay attention to what was

going on.

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Jackson stated that he takes Haldol and Cogentin. He said he knew his

friends were going to break into a house, but he did not do anything to stop it.

He said that he was struggling to remember what happened because he had taken

his medication and drank beer that night. Eventually, he said that he remembered

carrying the television set. He said he ―knew he did somethin‘ bad‖ and was

―tryin‘ to think of a story.‖ He said he had gone for a walk that night to think

about his problems. He saw a garage door that was open and he went in to hide.

The owner shut the door, locking him inside, which made him feel scared.

Barnes asked Jackson what he did inside the house. Jackson said he made a

sandwich and drank some water at the sink. He said he initially thought no one

was home, but was startled when an older woman with red hair ―came out of

nowhere.‖ The woman did not look old to him. He ―just flipped‖ and punched

her in the face. He wanted to leave, but could not get out because the doors were

locked from the inside. He left through a window. He did not remember taking

the woman‘s purse, but thought he had taken her checkbook on his way out. He

said he had made up the friends on whom he initially blamed the theft of the

television.

After further discussion, Jackson said he thought he carried the woman to

her car. He placed the woman in the passenger seat, drove onto the freeway, and

threw her out the car window by the hair. He walked home and, by the time he

woke up, had forgotten about the television. When the police arrived, he

wondered what he had done. He asked the detectives whether he had killed the

woman when he threw her out of the car. He remembered driving past a Jack in

the Box and tossing her body out of the car before he reached Victorville, at a spot

called ―the View.‖ The spot was up in the mountains near a big white church. He

described the woman‘s car as a grey Audi.

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Barnes asked if he could be confusing two situations and Jackson said he

did not think he was. Barnes asked if Jackson remembered ripping the woman‘s

clothes off and raping her, and Jackson said no. Barnes brought up the fact that

there had been a similar incident in the neighborhood recently and Jackson said, ―I

didn‘t do it.‖ Jackson said he was positive because he remembered hearing about

the details of the earlier incident from his mother. The detectives asked if he could

remember any details of the sexual assault on Mason. Jackson said he could

remember ―stabbing her in the back‖ with a ―long machete knife.‖ When asked if

he was having a flashback to a different event, he said, ―I think all this was like the

same lady, the same lady I seen in the house is the same, the same lady with the

red hair and that‘s all, that‘s it, that‘s all I know.‖ Riverside Police Sergeant

Steven Johnson testified that there were no other cases in 2000 or 2001 in

Riverside with fact patterns that matched Jackson‘s statements to police, i.e., cases

in which an elderly woman was stabbed, taken somewhere in her car, and then

dumped on the road.

The detectives asked Jackson if he would ride with them toward Victorville

to indicate where he left the body and he agreed. We take judicial notice of the

fact that Victorville, the town near where Jackson indicated he left a body, is on

the route between Riverside, where Myers lived, and Las Vegas, where her car

was found. (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 715, 744–

745 [courts may take judicial notice of matters of common knowledge, including

official maps].) Myers‘s body was never found.

i. June 25, 2001 Dog Trailing

Barnes, Johnson, Webb, and Police Officer Tina Banfill Gould testified

regarding dog trailing conducted at the Orange Street police station on June 25,

2001, to test whether Jackson‘s scent could be linked to Myers‘s disappearance.

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Police chose the location because Jackson had not been there before. To lay the

trail, Jackson was led through the station by Barnes and Johnson from the

entrance, around at least two corners, and into a men‘s locker room. The

detectives sat Jackson on a bench, closed the door, and stayed in the room with

him. They were dressed in casual clothing, while Jackson was wearing an orange

jail jumpsuit.

Webb presented Maggie with a crumpled manila envelope, which had been

found on Myers‘s bed on May 15, 2001. It took Maggie 10 to 15 minutes to trail

from the starting point, around both corners that Jackson had turned, to the locker

room. When Webb opened the locker room door, Maggie walked past the

detectives, walked down the row where Jackson was seated, and put her paws on

the bench and her head next to his chest. Webb testified that this indicated that

Jackson‘s scent was on the manila envelope.

In addition to Webb, the prosecution called two expert witnesses, Dr. Lisa

Harvey and State Trooper Douglas Lowry, to testify about the use of dog trailing.

Their testimony is discussed further below. (Post, at pp. 41–44.)

2. Defense Evidence

The defense called Dr. Lawrence Myers, a professor at the Auburn

University College of Veterinary Medicine and an expert on detector dogs, who

testified about the reliability of dog trailing. Dr. Myers disputed Dr. Harvey‘s

opinion regarding how accurately an experienced dog can discriminate among and

follow human scents. His testimony is discussed further below. (Post, at pp. 44–

46.)

Detectives Sutton and Barnes testified that, on the afternoon of June 22,

2001, they drove with Jackson to the area he described as the View to try to find

Myers‘s body. A handful of detectives and a trained dog searched an area of

17

multiple acres for several hours. They did not find the body. A few days later,

another search was conducted near Victorville, but nothing was found.

Barnes testified that, when he interviewed Fortson at the Spruce Street

station on June 22, 2001, she told him that Jackson spent the night with her on

Mother‘s Day, that they had sex, and that she cooked breakfast for both of them

the next morning.

Billie Harris testified that, during the day of May 13, 2001, Fortson and

Jackson borrowed her car for about two hours. This was the only occasion on

which she permitted them to do so. She did not recall whether she saw Jackson

the following day, but, from the time Fortson came to live with her in March until

the time Jackson was arrested, neither Fortson nor Jackson was ever gone

overnight.

Zubevi Khalfani, Harris‘s grandson, testified that he would visit Harris

several times per month. During his visits, he would lift weights with Jackson and

Richard Shrader. On cross-examination, he stated that the last time he could recall

lifting weights with them was on Mother‘s Day 2001. That day, Khalfani was at

Harris‘s house until 5:00 p.m. and did not remember Jackson leaving the house

while he was there.

Jackson‘s father, Bailey Jackson, Sr., testified that he drove a Greyhound

bus route to Las Vegas prior to his retirement, but that he had last worked on

March 30, 2001. Greyhound district manager Edward Bauer produced

employment records showing that Jackson, Sr., worked on June 21 and 24, 2001,

but on no other day in May or June.

Regarding the newspaper clipping found in Jackson‘s parents‘ home,

Jackson, Sr., testified that the cabinet contained items belonging to him and his

wife, not to Jackson, and that his son did not have a key to the cabinet. Jackson,

18

Sr., frequently kept newspaper clippings about unsolved crimes in case he came

across information that could be helpful.

B. Penalty Phase

1. Evidence in Aggravation

During the penalty phase retrial, the prosecution reintroduced much of the

guilt phase testimony.

In February 2005, at the prosecution‘s request, Dr. Harvey ran two

additional dog trails at the San Bernardino police station, using her own dogs to

try to match Jackson‘s scent to a scent pad that had been placed in the envelope

found on Myers‘s bed. This trailing is discussed further below. (Post, at pp. 111–

115.)

Barnes testified that, on June 22, 2001, he had a recorded conversation with

Jackson while driving to the View to attempt to locate Myers‘s body. The

conversation, a transcript of which was admitted into evidence, ran as follows:

―BARNES: Hey when you, the times you were in the joint, did you guys

talk about, about, you guys cleaning evidence, like cleaning crime scenes, what

not, you know, that shop talk, you know about cleaning up . . . after you did

somebody? You guys ever talk about that?

―JACKSON: No. . . . .

―BARNES: What are some of the common ways? That you know.

―JACKSON: Like, like meaning what?

―BARNES: Like, like whacking somebody.

―JACKSON: Kill somebody?

―BARNES: Yeah.

―JACKSON: You got to get rid of the body. . . .

19

―[DETECTIVE] JOSEPH: What did you use to clean, what did they use

[sic] clean up with?

―JACKSON: I don‘t know. They just usually them like one dude told me

they go in with a jump suit on just regular clothes underneath and have on gloves

and all that stuff. . . .

―BARNES: What would they put down to like cover up blood?

―JACKSON: Cover up blood?

―BARNES: Yeah. . . .

―JOSEPH: How you cleaned it up.

―JACKSON: I, I would, I would throw some Clorox on it. . . .

―BARNES: Clorox bleach stuff.

―JACKSON: [Uh huh.]

―BARNES: How did you know that?

―JACKSON: Huh?

―BARNES: How did you know that?

―JACKSON: I just, just thought of it.‖

The prosecution introduced victim impact testimony from Myers‘s sons,

Douglas and William, and from her granddaughter, Deanna. They testified about

the pain and frustration of not knowing where Myers was or what had happened to

her.

The prosecution introduced evidence that Jackson had committed prior

crimes, as found true by the guilt phase jury: robbery, aggravated robbery,

attempted possession of a stolen vehicle, second degree burglary, infliction of

serious bodily injury, and petty theft with a prior.

20

2. Evidence in Mitigation

Dr. Myers testified regarding the reliability of dog trailing evidence. In

addition to the opinions he offered during the guilt phase, he opined that the

February 2005 trails were unreliable because the procedure used allowed for

Dr. Harvey to inadvertently cue the dogs. He stated that the fact that the dogs

engaged in trailing was not sufficient, absent a conclusive alert at the end of the

trail, to infer that they had matched Jackson‘s scent to any scent on the envelope.

Jackson‘s family members testified about the childhood abuse that

Jackson‘s mother, Cleona, had inflicted on him and his siblings. Cleona regularly

berated her children, including Jackson, and beat them with a belt. Jackson‘s

brother Larry recalled being beaten and tortured, having his hand held over an

open flame on the stove, and being hospitalized once when Cleona threw boiling

water on him. Jackson‘s sister Dolores testified that Cleona struck her in the arm

with a pipe, causing permanent nerve damage, and threw scissors at her. She also

testified to having seen Cleona throw Jackson as an infant against a couch and yell

repeatedly at him to shut up. Cleona also made her sons, including Jackson, beat

Dolores. Cleona taught her children to shoplift and used them to steal food from

the store or from other people.

II. DISCUSSION

A. Pretrial Issues

1. Severance

Jackson contends that the trial court committed reversible error in denying

his motion to sever the Mason counts from the Myers counts.

a. Background

Jackson moved before trial to sever the Myers charges from the Mason

charges. He argued that the evidence relevant to each incident was not cross-

admissible because the incidents were not sufficiently similar. He argued that

21

evidence of the ―brutal cross-racial sexual offense‖ against Mason would

―overwhelm[]‖ the jury and prejudice the verdict on the weaker capital murder

charge. He contended that there was no physical evidence linking him to Myers‘s

disappearance and ―no description of other evidence as to who the perpetrator

might be,‖ leaving the prosecutor with ―some equivocal statements, assuming

admissibility[,] and his proximity to the homicide.‖ Finally, he argued that few

benefits would flow from joinder because there was only minimal overlap between

the evidence and the legal issues relevant to each incident.

The trial court denied Jackson‘s severance motion. ―[T]hese are not two

completely unrelated events. Where we have a murder and then several weeks

later we have a rape, and there‘s no cross admissibility of the evidence. And

under 954, joining them together, because they are both assaultive crimes. That‘s

not what we have. [¶] We have, again, the confession of the defendant — or I

should say the admission of the defendant anchor [sic] both counts. And this body

of evidence would be admissible whether we were trying the 187, or trying the

attempt 187 and sexual assault. This evidence is probative. It‘s highly relevant.

[¶] Is it prejudicial? Yes, it is. Very prejudicial. We often say any evidence that

is relevant and probative is certainly prejudicial to the defendant if it tends to show

guilt. This is very prejudicial evidence. But on the other hand, it‘s highly

probative and relevant to the fact-finder.‖

b. Analysis

Section 954 authorizes the joinder of two or more criminal charges, so long

as the offenses are ―connected together in their commission‖ or ―of the same

class.‖ Because murder and rape ―are assaultive crimes against the person,‖ they

constitute ―offenses of the same class of crimes‖ under section 954. (People v.

Ramirez (2006) 39 Cal.4th 398, 439.) When charges are properly joined under

22

section 954, a defendant must make a ―clear showing of prejudice‖ in order to

establish that a trial court‘s denial of a motion for severance was an abuse of

discretion. (People v. Lucas (2014) 60 Cal.4th 153, 214 (Lucas).) Because the

― ‗state‘s interest in joinder gives the court broader discretion in ruling on a motion

for severance than it has in ruling on admissibility of‘ evidence‖ (Alcala v.

Superior Court (2008) 43 Cal.4th 1205, 1221 (Alcala)), ―a party seeking severance

must make a stronger showing of potential prejudice than would be necessary to

exclude other-crimes evidence in a severed trial‖ (People v. Arias (1996) 13

Cal.4th 92, 127 (Arias)).

Our framework for analyzing prejudice in this context is well established.

―Cross-admissibility is the crucial factor affecting prejudice. [Citations.] If

evidence of one crime would be admissible in a separate trial of the other crime,

prejudice is usually dispelled.‖ (People v. Stitely (2005) 35 Cal.4th 514, 531–532

(Stitely).) ―If we determine that evidence underlying properly joined charges

would not be cross-admissible, we proceed to consider ‗whether the benefits of

joinder were sufficiently substantial to outweigh the possible ―spill-over‖ effect of

the ―other-crimes‖ evidence on the jury in its consideration of the evidence of

defendant‘s guilt of each set of offenses.‘ ‖ (People v. Soper (2009) 45 Cal.4th

759, 775 (Soper).) Three factors are most relevant to this assessment:

―(1) whether some of the charges are particularly likely to inflame the jury against

the defendant; (2) whether a weak case has been joined with a strong case or

another weak case so that the totality of the evidence may alter the outcome as to

some or all of the charges; or (3) whether one of the charges (but not another) is a

capital offense. . . .‖ (Ibid.)

We conclude that the trial court, in the light of ― ‗the record . . . when it

made its ruling‘ ‖ (Soper, supra, 45 Cal.4th at p. 774), did not abuse its discretion

when it denied Jackson‘s motion to sever the Mason case from the Myers case.

23

The Mason sex crimes evidence was fully cross-admissible, and even if it was not,

the joinder satisfied the relevant factors. Furthermore, Jackson has not met his

burden of showing that ―joinder actually resulted in ‗gross unfairness,‘ amounting

to a denial of due process.‖ (Arias, supra, 13 Cal.4th at p. 127.)

Evidence Code section 1101, subdivision (a) sets forth the ― ‗strongly

entrenched‘ ‖ rule that propensity evidence is not admissible to prove a

defendant‘s conduct on a specific occasion. (4 Leonard, The New Wigmore:

Evidence of Other Misconduct and Similar Events (2014) § 1.2, at p. 2; see People

v. Villatoro (2012) 54 Cal.4th 1152, 1171 (Villatoro) [rule against propensity

evidence ―is at least three centuries old in the common law‖].) ― ‗The inquiry is

not rejected because character is irrelevant; on the contrary, it is said to weigh too

much with the jury and to so overpersuade them as to prejudge one with a bad

general record and deny him a fair opportunity to defend against a particular

charge. The overriding policy of excluding such evidence, despite its admitted

probative value, is the practical experience that its disallowance tends to prevent

confusion of issues, unfair surprise and undue prejudice.‘ [Citation.]‖ (Villatoro,

at pp. 1171–1172.)

At the same time, ―other crimes‖ evidence is admissible under Evidence

Code section 1101, subdivision (b) ―when offered as evidence of a defendant‘s

motive, common scheme or plan, preparation, intent, knowledge, identity, or

absence of mistake or accident in the charged crimes.‖ (Lucas, supra, 60 Cal.4th

at pp. 214–215.) In this inquiry, the degree of similarity of criminal acts is often a

key factor, and ―there exists a continuum concerning the degree of similarity

required for cross-admissibility, depending upon the purpose for which

introduction of the evidence is sought: ‗The least degree of similarity . . . is

required in order to prove intent . . . .‘ By contrast, a higher degree of similarity is

24

required to prove common design or plan, and the highest degree of similarity is

required to prove identity.‖ (Soper, supra, 45 Cal.4th at p. 776, italics omitted.)

In the light of the record before the trial court at the time it made its ruling,

the trial court did not abuse its discretion in denying Jackson‘s motion to sever the

charges. As Jackson‘s counsel pointed out during the severance hearing, both the

Mason and Myers charges involved crimes against petite elderly women who lived

alone in the same neighborhood where Jackson was staying, who were attacked

six weeks apart in their homes late at night, and who were robbed of a small

amount of property, without their homes being ransacked.

The trial court had before it Jackson‘s June 22, 2001 statements to the

police that implicated him in both crimes. As the trial court explained, initially the

police were not focused on the Myers crime during the June 2001 interview.

Thus, had the charges been severed, the entire statement would be admissible in a

trial on the Myers case because the jury would need to know certain background

facts about the Mason incident in order to understand Jackson‘s interview

statements as evidence of his guilt on the Myers charges. For example, without

knowing that Mason did not have red hair and that Myers did, the jury would not

understand why the detectives believed Jackson was referring to Myers when he

mentioned a woman with red hair. Likewise, without knowing that Mason was

strangled in her house and left in her bed, the jury would not understand why

Jackson‘s description of stabbing a woman and throwing her out of a car window

suggested he was talking about Myers as opposed to Mason.

As the trial court reasoned: ―I think the big key here . . . is the defendant‘s

confession. [¶] If the Court severed these counts and you proceeded first, let‘s say

on the 187 count [Myers], let‘s say, as the trial judge, I would allow the confession

in its total circumstance. And then the People would be able to introduce evidence

that the defendant was making willfully false and misleading statements to the

25

police by bringing in the testimony of Myrna Mason.‖ The court reiterated that ―if

this was just one count of 187 against Miss Myers, that entire confession would

come in. You can‘t separate it because it is so bound up and intertwined with

everything. And then the People have the right to introduce evidence that he was

making a false and misleading statement to the police, and bring in impeachment

evidence from the Myrna Mason robbery, rape and attempted murder. So

regardless of which count was being tried, the whole thing would come in. [¶]

That‘s the key here. It‘s not only cross admissibility of evidence, it‘s the pivotal

evidence which anchors both counts.‖

The most salient evidence of the Mason crimes known to the court at the

time it made its ruling — and the principal linkage that the prosecution sought to

draw between the Mason and Myers crimes — had to do with Jackson‘s torturous

rape of Mason. We thus train our attention on whether the trial court correctly

ruled that the evidence of the sex crimes against Mason would be admissible in a

separate trial of the Myers charges. If so, the trial court did not abuse its discretion

when it denied Jackson‘s pretrial severance motion. We find that the Mason sex

crimes evidence would have been admissible in a separate trial of the Myers

charges for the purpose of proving intent and common plan.

i. Intent

For cross-admissibility of evidence based on common intent, ― ‗[t]he least

degree of similarity . . . is required . . . . [T]he . . . misconduct must be sufficiently

similar to support the inference that the defendant ― ‗probably harbor[ed] the same

[noninnocent] intent in each instance.‘ [Citations.]‖ [Citation.]‘ ‖ (Alcala, supra,

43 Cal.4th at pp. 1222–1223.) ―[T]he similarity required in order to prove the

existence of a common scheme or plan, applies all the more to the use . . . of other

26

charged crimes in order to prove intent — which, as noted, requires an even lesser

degree of similarity among the offenses.‖ (Id. at p. 1226.)

In Alcala, the defendant was charged with five murders, one in Orange

County and four in Los Angeles County. In finding the evidence of the Los

Angeles murders cross-admissible to show common plan and intent to murder in

the Orange County case, we noted the similarities between the cases: ―Each of the

victims was a young, single Caucasian female; all of the homicides involved

blunt-force facial trauma and occurred within a 19 month period; and the bodies of

all of the victims were discovered unclothed, or nude from the waist down. In

addition, all of the offenses appear to involve a sexually sadistic motive.‖ (Alcala,

supra, 43 Cal.4th at p. 1224.) Although the incidents also differed in certain

respects (including age, location of the bodies, evidence of sexual assault, and the

positioning of the bodies), we determined that the similarities met the standard to

support an inference of intent. (Id. at p. 1226 [―the evidence underlying the four

Los Angeles County charges would be relevant at a separate retrial of the [Orange

County] case to demonstrate the mental states of premeditation and deliberation

required for murder‖].)

In Stitely, we found cross-admissibility on a theory of common intent where

one victim was raped and the other murdered. (Stitely, supra, 35 Cal.4th at

p. 532.) The prosecution introduced evidence that the defendant choked and

raped one victim to show that he acted with ―similar criminal intent‖ when he had

sexual intercourse with the other victim, who was choked to death. (Ibid.) We

held that ―[t]he chance that defendant acted with innocent intent with [the murder

victim] is sharply reduced by evidence that he committed a forcible,

nonconsensual sex act upon [the rape victim] a few months earlier.‖ (Ibid.)

In this case, the similarities between the two incidents suggest a common

intent. As noted, in both incidents the victims‘ homes were not ransacked,

27

minimal property was taken, and in the Myers case her dress was found on the

floor of the guest room. Thus, the evidence that Jackson burglarized Mason‘s

home and viciously attacked and raped her supported an inference that he had

harbored the same intent toward Myers, who was another elderly woman living

alone in the same neighborhood.

ii. Common plan

―To establish the existence of a common design or plan, the common

features must indicate the existence of a plan rather than a series of similar

spontaneous acts, but the plan thus revealed need not be distinctive or unusual.‖

(People v. Ewoldt (1994) 7 Cal.4th 380, 403 (Ewoldt); see ibid. [―evidence that the

defendant has committed . . . criminal acts that are similar to the charged offense

may be relevant if these acts demonstrate circumstantially that the defendant

committed the charged offense pursuant to the same design or plan he or she used

in committing the [other] acts‖]; People v. Catlin (2001) 26 Cal.4th 81, 111

(Catlin) [―evidence of uncharged misconduct must demonstrate ‗not merely a

similarity in the results, but such a concurrence of common features that the

various acts are naturally to be explained as caused by a general plan of which

they are the individual manifestations‘ ‖].)

Our case law has found cross-admissible evidence of a common plan in a

variety of circumstances: where the sexual molestation victims were the

defendant‘s resident stepchildren and were molested by the defendant when they

were of a similar age (Ewoldt, supra, 7 Cal.4th at p. 403); where both victims were

the defendant‘s close relatives and both had been poisoned with a rare substance

(Catlin, supra, 26 Cal.4th at p. 111); where ―[e]ach [crime] involved the robbery

of a woman alone in an office, and each involved a violent confrontation,‖ even

though two of the incidents involved sexual assault and one did not (People v.

28

Foster (2010) 50 Cal.4th 1301, 1330); and where all three offenses took place in

the same geographic area, occurred within one month of each other, and involved

home invasion robberies in which the victims‘ cars were taken, and where two of

the offenses were carried out in the victim‘s garages by men with ski masks who

asked similar questions of the victims (People v. Capistrano (2014) 59 Cal.4th

830, 849 (Capistrano)).

In People v. Kraft (2000) 23 Cal.4th 978, 1002–1021, 1031–1032 (Kraft),

we found cross-admissibility of evidence of 16 murders based on a common plan

even though the crimes varied in geographic location and other details. ―The

victims shared certain characteristics, all being White males between the ages of

18 and 25, all but one being single, and most being, at the time of the offense,

vulnerable by virtue of lack of transportation. The method of obtaining control

over the victims was similar in most of the charged offenses: Defendant generally

supplied the victims with alcohol and drugs, often diazepam, to the point they

could no longer resist, whereupon defendant generally bound their wrists with

ligatures, frequently using shoelaces. After gaining control over the victims in

such a manner, unless they were already succumbing from the effects of the drugs,

defendant killed them, often by ligature strangulation. After the victims‘ deaths,

defendant disposed of the bodies generally by dumping them from his car, usually

on or near a freeway or other roadway. And each murder involved some type of

arguably sexual activity or aberration, whether taking the form of sodomy,

mutilation or stripping the victim of clothing.‖ (Id. at p. 1031.) The court noted

that even though the crimes were not committed in an identical way, ―a lesser

degree of similarity is necessary to admit evidence of other offenses to prove a

common design or plan than to prove identity.‖ (Id. at pp. 1031–1032.)

We also found cross-admissibility under a theory of common plan in

People v. Marshall (1997) 15 Cal.4th 1 (Marshall), where the defendant was

29

charged with a capital murder and a prior attempted assault. Cross-admissibility

was established in part based on close geographic and temporal proximity as well

as the identity of actions threatened or carried out on the victims: ―Durneall H.

was attacked in the same area as Sharon Rawls one month before Rawls was

killed. During the attack on H., she was dragged towards the same abandoned

apartment building in which Rawls‘s body was later found. H. was strangled, so

was Rawls. H. was told by her attacker that he intended to rape and kill her; there

was evidence that the attack on Rawls too was sexually motivated. A bus pass

belonging to H. and taken from her during the attack was found in defendant‘s

room; a letter belonging to Rawls was found in defendant‘s possession when

police detained him as he was leaving the building where Rawls‘s body was

found.‖ (Id. at p. 27.)

In this case, several similarities between the Mason incident and the Myers

incident suggest a general plan or method of operation. The victims were both

elderly women who lived alone, making them vulnerable to attack. The victims

lived near each other in the same neighborhood as Jackson. Each had briefly gone

outside her home late on the evening of the attacks. Both victims‘ homes were

burglarized late at night after the women had been outside. In both incidents, only

small amounts of property were taken, and neither home was ransacked. In both

incidents, there was evidence of sexual assault. The dress found on the floor in the

guest room of Myers‘s home supported the inference that she did not disrobe on

her own volition but rather was forced to undress. Jackson‘s own conflation of the

two crimes in his police interview further supports the inference that Jackson

attacked Myers in the same way he attacked Mason.

These points of similarity suggest that Jackson had a common plan of

attacking elderly women late at night while they were alone in their homes in his

neighborhood, with the purpose of sexually assaulting them. The evidence that

30

Mason was viciously raped would have been admissible in a separate trial on

Myers‘s murder because it was probative of a common plan.

In sum, we hold that the evidence of Mason‘s rape was fully cross-

admissible in the Myers case to prove common plan and intent. The two crimes

were committed within a short span of time in close physical proximity against

two elderly women who lived alone. In both cases, the victim‘s home was

burglarized late at night but was not ransacked; only a small amount of property

was taken, and there was evidence of sexual assault. ―If the evidence underlying

the charges in question would be cross-admissible, that factor alone is normally

sufficient to dispel any suggestion of prejudice and to justify a trial court‘s refusal

to sever properly joined charges.‖ (Soper, supra, 45 Cal.4th at pp. 774–775; see

Kraft, supra, 23 Cal.4th at p. 1030.)

Jackson argues that although cross-admissibility normally dispels any

suggestion of prejudice, his case is an exception. We disagree. While evidence of

the torturous attack and rape of Mason was likely to inflame the jury, so too was

the evidence that Jackson attacked Myers, an elderly woman, late at night,

sexually assaulted her, possibly stabbed her to death, and disposed of her body in a

place where it would never be found. In addition, the Myers case was not weak.

Jackson‘s own statements, the recovery of Myers‘s car in Las Vegas, the shoe

prints in her home matching shoes similar to those he wore, and the dog trailing

evidence strongly suggested his guilt. Finally, although the Myers case was a

capital offense, ― ‗consolidation may be upheld on appeal where the evidence on

each of the joined charges is so strong that consolidation is unlikely to have

affected the verdict.‘ ‖ (Arias, supra, 13 Cal.4th at p. 130, fn. 11.) Accordingly,

we find that the trial court did not abuse its discretion in denying Jackson‘s

severance motion.

31

Even if the trial court‘s ruling was correct when made, we must reverse if

Jackson shows that ―joinder actually resulted in ‗gross unfairness,‘ amounting to a

denial of due process.‖ (Arias, supra, 13 Cal.4th at p. 127.) In addressing this

issue, we bring into focus the sex crimes evidence and how the prosecution used

this evidence to incriminate Jackson on the Myers charges. Significant stretches

of the trial were dedicated to detailed evidence of Jackson‘s rape of Mason.

The trial began with Officer Soto‘s testimony that on June 22, 2001, he

responded to a call concerning the ―rape of an elderly woman.‖ The prosecution

played a recording of Mason‘s 911 call in which she told the dispatcher, ―I‘ve just

been raped.‖ After the tape was played, Officer Soto gave further testimony

regarding Mason‘s description of the attack, stating that the perpetrator

―threatened to rape her vaginally and anally, but she had the presence of mind to

tell him that he probably wouldn‘t enjoy it because she had most of her organs

removed.‖

The next witness was Patricia Forst, the nurse who examined Mason at the

hospital. Forst testified that her clinical forensic examination of Mason took 17

hours, the longest examination of a sexual assault victim that she had ever

performed in seven years as a registered nurse. Forst described, among other

things, lacerations in Mason‘s vagina that were actively bleeding at 3:30 in the

afternoon, over 12 hours after the assault, and bruising on Mason‘s tongue

consistent with choking or having an object jammed in her mouth. Forst also

stated that Mason was in too much pain to undergo a pelvic exam without general

anesthesia, which is not typically used for that procedure.

Detective Joseph testified about his interview with Mason in the hospital.

The prosecution played a tape of the interview, during which the jury heard Mason

describe the incident in detail in her own voice. The interview lasted an hour.

Mason‘s statements to Joseph tracked the account she gave at the preliminary

32

hearing, and she recounted each brutal fact of the assault in the most polite

language she could manage. She said that when she woke up, there were ―big

spots about salad plate size of blood [] from each ear.‖ When she reached down

and touched the rake handle, she thought at first that it was ―a figment of my

imagination,‖ but then she pulled on it and ―it kept coming out and kept coming

out and kept coming out, I wasn‘t pulling very hard because didn‘t [sic] know

what, how far up it was and how much damage it has, had done but uh, uh it

seemed like it was forever before it finally was out.‖ Mason‘s account of the

violence she suffered was interspersed with details of her everyday life: she

―rake[d] the pine needles out where a lawn should be‖; she watched Wise Guy

while she ate her television dinner; her wooden television stand was made for her

by ―the nicest neighbor ever anyone could want, he‘s a retired school teacher and

taught uh Wood Shop.‖ As recounted by Mason, the rape occurred during an

otherwise ordinary night at home.

The prosecutor introduced several photographs of the rake, including a

close-up of the handle. He asked Ellis, the senior evidence technician, to point out

the ―reddish stain‖ on the end of the rake handle, which Ellis testified appeared to

be blood.

Two weeks later, the prosecution had the 70-page transcript of Mason‘s

preliminary hearing testimony read to the jury.

At closing argument, the prosecutor explained how he thought the evidence

of the Mason rape was crucial to understanding what happened to Myers:

―Evidence of what the defendant did to Myrna Mason is undisputed. . . . [T]he

proof of the defendant‘s identity as the perpetrator of the attack on Myrna Mason

is without question. [¶] In comparison, the proof of the defendant‘s identity as the

perpetrator of the crimes against Geraldine Myers is not as clear. But it is no less

convincing when you examine the entirety of the evidence.‖ In framing his

33

argument, the prosecutor urged the jury to reason from the Mason evidence to

Jackson‘s guilt of the Myers charges: ―Begin your analysis of the evidence in this

case with the crimes that occurred on June 22nd, 2001, the crimes against Myrna

Mason. Because it‘s the details of the commission of those crimes, the

defendant‘s conduct in the commission of those crimes and afterwards, the

evidence that was collected during the investigation of those crimes, and the

defendant‘s statements when he was being question[ed] about those crimes that

prove beyond a reasonable doubt that he is also the one who viciously attacked

and murdered Geraldine Myers on May 13th, 2001.‖ After reviewing the Mason

evidence, the prosecutor turned to the Myers murder and drew comparisons to the

Mason crimes. In particular, the prosecutor said: ―Neither place was ransacked.

Not Myrna Mason‘s, not Geraldine Myers‘s. And that tells you something. The

person who attacked Gerry Myers, like the person who attacked Myrna Mason,

their primary motivation wasn‘t theft. . . . The primary motivation was something

else: violent, vicious sexual assault.‖ The prosecutor noted that the perpetrator

did not take all of Myers‘s valuables, that a dress Myers had been wearing that day

was left on a bedroom floor, and that bleach had been used on the hallway carpet.

The prosecutor then said: ―Why do you think the defendant had to dispose of

Gerry Myers‘s body? The rational conclusion is not to cover up a theft; to cover

up a rape. He knew his DNA was in her body and that‘s why he had to get rid of

her body and dispose of it. Otherwise why not leave her there like Myrna Mason?

He knew he hasn‘t [sic] ejaculated in Myrna Mason. He could leave a message

with that body. [¶] But Gerry Myers, the first one, was different. We had a drop

of her blood found on that heater vent analyzed. . . . [¶] Again, this isn‘t a lot of

blood for someone who has been violently murdered, suggesting she didn‘t bleed a

lot from the manner in which she was killed, which suggests that it wasn‘t a

stabbing like the defendant indicated in his statement but more than likely, based

34

upon all the evidence that you have, she was strangled just like Myrna Mason

during the vicious, violent sexual assault that was his primary motivation.‖

The prosecutor later argued that ―the similarities to the way in which you

find Gerry Myers‘s house are haunting when you look at what happened with

Myrna Mason, and the similarities are undeniable. And they are similar because

they were perpetrated in an identical manner by the identical person, Bailey

Jackson.‖ In closing rebuttal, the prosecutor said, ―The one thing you have to

recognize, the one thing that‘s clear in this case, what that man‘s capable of, we

know, what he did to Myrna Mason. When you put that together with all of the

circumstantial and physical evidence, including his scent on that envelope at the

scene of Gerry Myers‘s house, there is no doubt that he is the one that committed

that crime.‖

The Mason sex crimes evidence, as presented above, was prejudicial in that

it tended to show that Jackson was guilty of the Myers murder. But that does not

mean joinder of the charges resulted in a grossly unfair trial. There was sufficient

independent evidence of guilt against Jackson for Myers‘s murder without

evidence of the Mason sex crimes: the matching shoe print evidence; the dog

trailing evidence; the physical and geographic similarities between the two victims

and their residences; the similar circumstances of the two crimes; and Jackson‘s

own statements all strongly implicated Jackson as guilty of Myers‘s murder.

Thus, there is not a strong likelihood that without the evidence of the Mason sex

crimes, Jackson would have escaped a guilty verdict in the Myers case.

Accordingly, we conclude that joinder of the Mason and Myers charges did

not result in gross unfairness amounting to a denial of due process.

35

2. Dog Trailing Evidence

Jackson contends that the trial court erred by admitting dog trailing

evidence without holding a hearing under People v. Kelly (1976) 17 Cal.3d 24

(Kelly) or Evidence Code section 402. He argues that the admission of this

evidence violated his Fifth and Sixth Amendment rights. We conclude that the

evidence was properly admitted at both the guilt and penalty phases.

a. Background

i. Uses of Dog Trailing in This Case

Dog trailing was used four times during the investigation of this case. The

first time was in the early morning of June 22, 2001. Coby Webb, a deputy sheriff

in the Riverside County Sheriff‘s department, and her police dog, Maggie Mae, a

bloodhound, were called to Mason‘s house. Webb used a handheld device called a

scent transfer unit to vacuum scent from a fresh shoe print outside the house and

transfer it to a gauze pad that she presented to Maggie. Maggie trailed across the

street and circled a garbage can, which was found to contain Mason‘s purse. She

then trailed down the street, walked onto the Shraders‘ porch, walked off, and

went over to the Harris residence, where Jackson was staying with Fortson.

Maggie sniffed around for ―quite a bit‖ in the area between the two houses, until

Webb thought she was confused and brought her back to the garbage can to start

over. From the garbage can, Maggie trailed down the street past the Harris

residence and then appeared to have lost the scent.

The second instance occurred later the same morning when Webb and

Maggie were called to the Spruce Street police station. Webb was asked to ―trail

or eliminate‖ someone being held as a suspect. Webb was told that the suspect

was in the building and had been in the lobby, but not which path he had taken

from that spot. Webb presented Maggie with the same scent pad she had used

earlier in the morning and Maggie began to trail through the building. Maggie

36

walked into an interview room, came out, walked into a different interview room

where Jackson was sitting, and stopped in front of him. Webb testified that

Maggie did not ―commit herself to jump up on‖ Jackson, but stood still in front of

him.

The third instance occurred on June 25, 2001, at the Orange Street police

station. To lay the trail, Jackson was walked from the street entrance, through the

building around at least two corners, and into a men‘s locker room. Detectives

Barnes and Johnson sat Jackson on a bench, closed the door, and then remained in

the room with him. The detectives wore casual attire, while Jackson, the only

Black man in the room, wore handcuffs and an orange jail jumpsuit. On the

sidewalk outside the station, Maggie was presented with the crumpled manila

envelope that had been found on Myers‘s bed on May 15, 2001. The envelope had

been collected by criminalist Mark Traughber, who placed a sterile gauze scent

pad inside it for 15 minutes to collect any human scent that was left on it. The

envelope was then placed inside a different manila envelope and the gauze pad

was placed in a Ziploc bag. Both were taken to the Spruce Street station. On May

16, 2001, evidence technician Ellis treated the envelope with a ninhydrin solution

to test for latent fingerprints, and then placed it in a sealed evidence bag.

(Ninhydrin is a chemical ―that detects fingerprints by staining them a color

ranging from a light pink to a dark purple.‖ (Lucas, supra, 60 Cal.4th at p. 179.)

The solution Ellis used contained ether acetate, ether ninhydrin, and xylene.

It took Maggie between 10 and 15 minutes to trail from the starting point

outside the station to the locker room door, following the exact path that Jackson

had taken. When Webb opened the door, Maggie went past both the detectives

and proceeded to the row of lockers where Jackson was seated. Webb lost sight of

Maggie when the dog turned the corner to walk down Jackson‘s row. When Webb

37

reached the row where Maggie had turned, she saw Maggie jump into Jackson‘s

lap.

The fourth instance took place in February 2005, between the two penalty

phase trials. The pertinent facts are set forth further below in the context of

Jackson‘s penalty phase claims. (Post, at pp. 111–115.)

ii. Motion for a Hearing Pursuant to Kelly or Evidence Code

Section 402

Before trial, Jackson moved the court to hold a hearing pursuant to Kelly,

supra, 17 Cal.3d 24, and Evidence Code section 402 before admitting evidence of

the June 25, 2001 dog trailing. Jackson submitted law review articles, scientific

publications, a declaration from Dr. Lawrence Myers, a professor of animal

behavior and sensory physiology and medicine at Auburn University College of

Veterinary Medicine, all calling into question the reliability of using dogs to

identify people by scent.

The prosecution, citing People v. Craig (1978) 86 Cal.App.3d 905 (Craig),

argued that Kelly did not apply because Webb used a ―[t]raditional tracking

technique[]‖ that had ―long been recognized in the law.‖ At the hearing on

Jackson‘s motion, the prosecution further argued that Kelly was inapposite

because dog trailing is not a scientific technique but a matter of common cultural

knowledge: ―It‘s something that‘s been recognized in the real world over the

centuries as an ability that dogs have. And man has been successful at times in

capturing that ability and utilizing it. It‘s not something that‘s foreign to a jury‘s

understanding. They can apply their own common sense. Jurors have been

exposed to bloodhounds tracking inmates in movies and in books and such dating

back to I think the time that movies were first created. They are aware that dogs

have this ability.‖

38

Citing People v. Malgren (1983) 139 Cal.App.3d 234 (Malgren), the trial

court found that the June 25, 2001 procedure was ―[m]ore appropriately one of

tracking‖ and thus admissible without a Kelly hearing. The court found that the

―fact that this was in a controlled atmosphere and the officers knowing the path

that the defendant actually took through the police department and the testimony

that the dog actually followed that path identically I think is strong circumstantial

evidence that the dog was on the proper scent.‖ The court held that the evidence

was admissible without a hearing under either Kelly, supra, 17 Cal.3d 24, or

Evidence Code section 402.

iii. Expert Testimony

(a) Deputy Coby Webb

Webb testified that she began bloodhound handler training in November

1998. She was certified as a trailing instructor by the Canine Training Academy

in September 2001 and is a member of the Law Enforcement Bloodhound

Association. Webb got Maggie, her second police dog, in 1999. Maggie

completed 20 hours of training at a Southern California Bloodhound Handlers

Coalition Seminar in July 1999 when she was four months old and she attended

the Colorado Canine Training Academy in September 2000, where she was

certified to trail human scent. In April 2001, she completed 40 hours of training

through the Law Enforcement Bloodhound Association. She went back to the

Colorado academy in May 2001. Maggie worked on her first case in September

2000. Webb‘s department made Maggie a deputy sheriff in November 2000. At

the time of trial, Maggie was certified by the National Police Bloodhound

Association.

Webb testified that she would train with Maggie for 10 to 15 hours each

week. Training consisted of running practice trails laid by a deputy or another

willing volunteer. Practice trails often included decoy trails laid by people Maggie

39

knew in order to teach her to avoid distractions. Maggie would regularly run

―negative trails,‖ in which she was presented with an object scented by someone

who had not been in the area and was rewarded for not trailing. When Maggie

could not find a trail matching the scent object, she would respond by walking

around in a circle. Some of the practice trails that Maggie would run were blind

(that is, Webb would not know the correct path or who the target was). Working

with outside organizations, Maggie had also run double-blind trails, where the

outside evaluator also did not know the correct path.

Webb testified that there is no standard training for trailing dogs, which is

why ―people evaluate them on a double-blind where I don‘t know the trail or the

trail layer so that we can make sure that the dog is working.‖ Some training

organizations will only ―pass‖ dogs who perform at a certain rate of accuracy;

others provide a subjective narrative evaluation of the dog‘s strengths and areas

for improvement. At the time of Jackson‘s trial, Maggie was one of four dogs in

the country in the advanced tracking dog group with the National Police

Bloodhound Association.

Webb testified that during training Maggie had been taught to indicate that

she had found the person she was trailing by jumping up on them. Webb later

testified that it was not necessary for Maggie to jump up on someone to indicate

that she had finished trailing. Instead, when Maggie would stop trailing and stand

still in front of someone, it was enough for Webb to question that individual to see

if ―that‘s the person we are looking for.‖ Webb testified that sometimes when

Maggie did not know which of several trails to follow, she would follow the

freshest trail.

Webb testified that Maggie had been found to be ―reliable‖ in both training

and cases in the field. She described seven cases in which Maggie had

successfully trailed a human by their scent before the June 25, 2001 trailing. She

40

also described challenging tasks that Maggie had performed. In one instance,

Maggie followed the scent of someone who wrote a letter that was mailed to Webb

and kept in the freezer for four weeks. In another instance, Maggie identified the

person who had handled an explosive device by following the scent that remained

after the device was detonated. Maggie performed successfully on this task four

times out of six and did not falsely alert on the remaining two trials.

With respect to the trail at the Orange Street station, Webb testified that she

asked the detectives: ― ‗Can I please have three turns to make sure Maggie is

committed to trailing, and I need to have it where there‘s no air conditioner on and

I don‘t know where the subject is.‘ ‖ Although she did not know the path that

Jackson took through the basement, she did need to know ―where the subject had

walked into the building . . . . to match the trail with the scent item or not match, I

needed to point [Maggie] on a trail. So I just needed to know where the person

first walked into the building.‖ When asked whether the June 22, 2001 trailing

would have influenced Maggie on June 25, 2001, Webb stated: ―No. We run

numerous trails. An example, like this month I believe I‘m up to 14 callouts. So I

change scents, I mean, almost on a daily basis. And she—I‘ve never seen her able

to remember something—a trail of somebody else. I‘ve never, ever seen that.‖

(b) Douglas Lowry

Douglas Lowry, a Maryland state trooper and dog handler, testified as an

expert witness for the prosecution. He described a trail that he ran at the

prosecution‘s request to determine whether a bloodhound could trail from an

article treated with ninhydrin. He had a subject crumple up an envelope and leave

it on a bed. After two minutes, the subject placed the envelope in a plastic bag and

Lowry brought it to the police station where a forensic technician sprayed it with

ninhydrin. The envelope was sealed in a bag used to store evidence and kept in

Lowry‘s basement overnight. The next day, he drove his bloodhound to a public

41

park where the subject and two other individuals laid trails leading away from the

parking lot. The subjects started walking abreast and then split off in different

directions, crossing one another‘s paths. Lowry did not watch to see which path

each person followed. When Lowry placed the dog at the start of the trail and

presented him with the envelope, the dog trailed to the subject who had handled

the envelope within 10 minutes. One of the other trail-layers was the dog‘s

primary caregiver, but the dog did not follow her trail.

On cross-examination, Lowry testified that the precise amount of time

between when the subject handled the envelope and when the trailing was

conducted would not matter so long as the trailing is conducted within a

―reasonable time,‖ i.e., not ―weeks or months after the envelope was handled.‖

When asked whether he thought his dog would be able to trail off an article 40

days after the subject handled it, he said, ―40 days, that‘s hard for me to say. My

theory on working dogs is you really don‘t know anything until you try your dog.

I would say 40 days would really be stretching it for a dog to successfully do that.‖

He agreed that ―a scent article left out in the open air with others around . . . in

excess of 24 hours would be more likely to be contaminated than an article left out

in the open for minutes.‖

(c) Dr. Lisa Harvey

Dr. Harvey testified as an expert witness for the prosecution. She testified

that bloodhounds can reliably and accurately discriminate between human scents,

and that human scent remains on anything that a human touches, including paper.

In the mid-1990s, Dr. Harvey started a research program to study human

scent and bloodhound trailing after she found that ―there was no research

anywhere in the world on how these dogs work.‖ In one experiment, she found

evidence that dogs do not follow so-called ―rafts‖ of dead skin cells as some

scientists believe, but instead follow a trail of gasses emitted by the human body.

42

In a different study, Dr. Harvey tested dogs‘ ability to distinguish between

identical twins, siblings, and pairs of unrelated people. She concluded that human

scent is unique and is determined by DNA, but is not significantly affected by

environmental factors such as where someone lives, what they eat, or the personal

hygiene products they use. She testified about research conducted by other

scientists suggesting that human scent is controlled by chromosome 6, which

encodes a part of the immune system referred to as the major histocompatibility

complex.

In the summer of 2003, Dr. Harvey published an article in the peer-

reviewed Journal of Forensic Sciences. The article describes her first study in the

field of dog trailing and human scent, which she undertook because she ―went

through and looked on the internet to try to . . . see if there were any scientific

studies, because we were testifying in court and people were asking us pertinent

questions, and I couldn‘t find them. I didn‘t know how to answer them

appropriately as a scientist. And I was shocked to find that there were no

scientific studies. Everything is handed down word of mouth. Nothing is

statistically factual, and I was really shocked. So I thought this would be a basic

study.‖ She set up multiple blind trails over different types of terrain using

multiple trail-layers to determine whether bloodhounds could accurately track the

scent of individual humans. The five experienced dogs in the study, all of whom

were older than a year-and-a-half, were able to trail accurately 95 percent of the

time. The three dogs who were less than a year old were accurate only 60 to 70

percent of the time.

At the time of trial, Dr. Harvey had not published any other articles. She

testified that she had conducted other studies on topics including the use of scent

transfer devices, the presence of scent in human bodily fluids, the capacity of

different materials to retain human scent, the amount of time required to transfer

43

human scent onto an article, and the length of time human scent would persist on

an article. She described an ongoing experiment she was conducting in which

bloodhounds were able to accurately trail a scent from a T-shirt scrap stored in an

evidence envelope for over seven years.

Dr. Harvey testified that there ―haven‘t been any real serious scientific

studies‖ of how bloodhounds are able to trail humans. She stated that she did not

know of any other scientists or researchers working on the topic or scientific

publications on the use of bloodhounds in ―determining human scent.‖

At the prosecution‘s request, Dr. Harvey had conducted a test similar to the

one Lowry performed to see whether a dog‘s ability to trail would be impacted by

treating a scent article with ninhydrin. She found that the three dogs she tested

were able to successfully trail off an envelope treated with ninhydrin; each dog

was tested twice. Before each trail, she tested the dog with a scent that was not

present in the area to ensure that the dog was not just following a familiar or

interesting scent.

Dr. Harvey testified that in order to verify that a dog is accurate and

reliable, ―we give consistent training to the dog. Then, when we take them to an

unknown area trying to trail someone, as long as the dog is working in the same

manner that they worked during training, we are able to say that this is consistent;

therefore, we say it is reliable.‖ She testified that dogs who are trained to trail

human scent will not follow a scent simply because they have been asked to

follow that scent on past trails. Instead, dogs are trained to ―forget the last smell

[they] had when [they] were in harness.‖ She stated that ―[b]loodhounds are

extremely disobedient dogs,‖ and ―only thing we can really get them trained to do

is, ‗This is my harness. This is when I go out to trail. And when I‘m presented

with this smell, this is the smell I‘m supposed to trail.‘ ‖

44

(d) Dr. Lawrence Myers

Jackson called Dr. Myers, a professor of veterinary medicine and an expert

on detector dogs, to testify. Dr. Myers stated that human scent is made up of ―all

of the chemicals that are released by a human.‖ Scientists have identified many of

these chemicals but do not know which chemicals (or combinations of chemicals)

dogs rely on to trail humans. Without this information, Dr. Myers testified, it is

hard to determine the reliability of an identification based on an older scent in

which certain organic compounds may have degraded or otherwise changed.

Dr. Myers testified that it is accepted that dogs can discriminate between

the scents of different people and that they can trail individuals despite the

presence of ―various contaminations,‖ but the extent of dogs‘ ability to perform

these tasks is unknown because only minimal, inconclusive research has been

conducted to date. Certain components of an individual‘s scent remain stable over

time, but other components are influenced by factors like toiletries, diet, bathing

habits, and proximity to smokers and that these variable factors can interfere with

a dog‘s ability to trail. Training is crucial to ensure that trailing dogs

unambiguously understand the nature of the tasks they are asked to perform.

Dr. Myers testified that a properly trained dog that sniffs an article

containing human scent will know to follow that human scent. But if more than

one scent is present on an article, there is no way to know which scent the dog is

following in a particular case. He suggested that more research could be done to

determine, empirically, how often a dog will follow the desired scent.

Dr. Myers testified that a dog can be cued visually to alert by the fact that

only one person in an array is wearing a bright jumpsuit and handcuffs. He also

described how a handler can cue a dog by walking at a different speed, tugging or

letting up on the leash, or changing her tone of voice. He said he would be ―very

45

concerned‖ if the target or decoys in a scent identification task were known to the

dog, although he could not say that it would ―definitely‖ affect the outcome.

Dr. Myers also testified about proper evidence handling and storage

procedures. Collecting evidence with rubber or latex gloves is imperfect from the

standpoint of scent preservation because an individual‘s scent can pass through the

gloves and transfer onto the objects they handle. In addition, people often touch

the outside of the gloves when they put them on, transferring their scent in the

process. He suggested that the cleanest procedure is to use sterilized metal tongs.

The best storage materials are glass, metal, and porcelain. Paper and plastic bags

are porous, allowing odors to pass through in both directions. A heat-sealed

evidence bag is better than a paper bag, although still porous. Refrigeration,

especially at extremely low temperatures, slows scent degradation.

b. Analysis

i. Applicability of Kelly

Jackson challenges the trial court‘s rejection of his request to hold a Kelly

hearing before admitting evidence of the June 22, 2001 scent trailing. We

conclude that a Kelly hearing was not required.

Kelly, supra, 17 Cal.3d 24, renders inadmissible evidence derived from a

―new scientific technique‖ unless the proponent shows that (1) ―the technique is

generally accepted as reliable in the relevant scientific community‖; (2) ―the

witness testifying about the technique and its application is a properly qualified

expert on the subject‖; and (3) ―the person performing the test in the particular

case used correct scientific procedures.‖ (People v. Bolden (2002) 29 Cal.4th 515,

544–545 (Bolden).) Because our scientific understanding and our understanding

of what constitutes ―science‖ is constantly evolving, the term ―new scientific

46

technique‖ resists formal definition. (See People v. Stoll (1989) 49 Cal.3d 1136,

1155 (Stoll).)

Instead, courts rely on two principles to determine when the test applies.

―First, Kelly/Frye only applies to that limited class of expert testimony which is

based, in whole or part, on a technique, process, or theory which is new to science

and, even more so, the law.‖ (Stoll, supra, 49 Cal.3d at p. 1156; see People v.

Leahy (1994) 8 Cal.4th 587, 605 (Leahy).) To be new, a technique must be

meaningfully distinct from existing techniques. (See People v. Cook (2007) 40

Cal.4th 1334, 1345 (Cook).) Unintentional departures resulting from a careless

attempt to follow an otherwise accepted procedure do not implicate Kelly. (Cook,

at p. 1345; People v. Farmer (1989) 47 Cal.3d 888, 913, overruled on other

grounds in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.) Second, a Kelly

hearing may be warranted when ―the unproven technique or procedure appears in

both name and description to provide some definitive truth which the expert need

only accurately recognize and relay to the jury.‖ (Stoll, supra, at p. 1156.)

Appellate courts review de novo the determination that a technique is

subject to Kelly. (See Leahy, supra, 8 Cal.4th at pp. 605–607.)

In Craig, supra, 86 Cal.App.3d 905, the court held that dog trailing — that

is, using a dog to find a particular individual by following a trail of their scent

(sometimes incorrectly referred to as ―tracking‖) — falls outside the scope of

Kelly because it is not 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.‖ (Craig, at p. 915.)

The court in Craig found that the following testimony from the dog‘s

handler was sufficient to establish reliability: (1) the dog was trained to follow

47

trails from beginning to end; (2) the dog performed ―at the 100 percent level in

explosives detection, and work with humans‖ (Craig, supra, 86 Cal.App.3d at

p. 916); (3) the dog and officer team ―rated 100 percent when started from a

vehicle‖; (4) the dog was tested on a twice-weekly basis; (5) the officer had used

the dog in four similar situations prior to this case; and (6) the dog had, ―on

numerous occasions, followed suspects to a point where the evidence showed the

suspects had entered vehicles and driven away.‖ (Craig, at p. 917.)

We agree with the analysis in Craig. ―The 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 (Venegas).) Scent trailing

evidence is not so foreign to everyday experience that it would be unusually

difficult for jurors to evaluate. 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,

such as performed in this case. (See Craig, supra, 86 Cal.App.3d at p. 915

[―Therefore, rather than attempt to identify certain specific criteria as being

indicative of the ability of dogs, in general, to trail a human, we choose to require

each particular dog‘s ability and reliability be shown on a case-by-case basis. We

are not merely assuming a well-trained dog can trail a human; we say that this

ability is a fact which, like other facts, may be proven by expert testimony.‖].)

It is also unlikely that a juror would believe that dogs are scientifically

infallible, a risk that Kelly was intended to address. (See People v. Cowan (2010)

50 Cal.4th 401, 470 (Cowan) [―As we have explained, the Kelly rule ‗is intended

to prevent lay jurors from being unduly influenced by procedures which seem

scientific and infallible, but which actually are not.‘ ‖].) Jurors can easily

understand that even the most well-trained dog can make mistakes. In fact, the

48

experts called to testify repeatedly conceded this point about trailing dogs in

general and Maggie specifically. On cross-examination, Lowry testified that in

practice, he observed dogs change their trail from an older scent to a newer scent,

and that he observed this more often with newer dogs. He also testified that dogs,

like people, have good days and bad days, as well as days when they simply do not

want to work.

Likewise, Dr. Harvey, on both direct and cross-examination, testified that

the accuracy of dogs was correlated with their age, with ―veteran dogs‖ having a

success rate of 95 percent, while novice dogs had a success rate of 60 percent. Dr.

Harvey also admitted that even well-trained dogs have good days and bad days.

When asked if she thought Maggie made mistakes, Dr. Harvey responded, ―Oh,

yes, I‘m sure.‖ Testifying about her own dog, Shelby, she stated that she could

tell ―for sure‖ that Shelby had made mistakes in practices, even if she was not sure

of mistakes made out in the field.

Webb also testified that Maggie had previously made mistakes or did not

find the target person. She testified that Maggie needs to be continually trained to

ignore distractions: ―Q. Is Maggie trained in avoiding distractions or ignoring

distractions? [¶] A. Well, it‘s a continuing training. She‘s a dog. So we have to

continually train in ignoring animals and sticking with that one person‘s scent.‖

She explained that Maggie had sometimes jumped on the wrong person in training

and needed to be corrected.

The jury also heard Jackson‘s expert, Dr. Myers, testify about the fallibility

of dogs to trail human scent: ―Q. How do we know that the trailing then is

accurate and reliable? [¶] A. Right now, you don‘t. That‘s really the problem.

Um, we have people that are working hard to make it so. We have — I don‘t think

there‘s any question in anybody‘s mind that enough research has been done to

show that they can do it. The issue is how reliably and under what circumstances

49

can they do it?‖ Furthermore, when asked whether the ability of dogs to

discriminate among human scent was a ―generally accepted practice in this

research community,‖ Dr. Myers testified, ―It‘s an area of interest in the research

community. I would say that most of us, in fact, believe it can be done.‖ The

question, Dr. Myers said, is that ―we don‘t know how well it can be done.‖ Thus,

even Dr. Myers believed that dog trailing does not raise a question about ―a

technique, process, or theory which is new to science‖ (Stoll, supra, 49 Cal.3d at

p. 1156) but rather concerns the reliability of a particular dog to consistently trail a

given scent and the procedures used in any particular case.

The deviations that Jackson identifies are not sufficient to distinguish this

procedure from traditional dog trailing or render it ―new‖ to the law. (See People

v. Cordova (2015) 62 Cal.4th 104 [holding Kelly inapplicable to the latest DNA

testing kit, which used the same methodology as earlier kits]; Stoll, supra, 49

Cal.3d at pp. 1156–1157 [holding Kelly inapplicable to psychological methods that

were ―not new to psychology or the law‖]); Cook, supra, 40 Cal.4th at p. 1345

[holding Kelly inapplicable to electrophoretic testing of bloodstains (a generally

accepted technique) where samples from multiple spots of blood on the same shoe

were combined for the purposes of testing]; Venegas, supra, 18 Cal.4th at pp. 53–

54 [no need to prove general acceptance of restriction fragment length

polymorphism (RFLP) analysis where methodology ―appear[ed] indistinguishable

from the RFLP methodology described and upheld‖ in previous cases]; People v.

Cooper (1991) 53 Cal.3d 771, 812 [recently developed electrophoretic test for a

particular enzyme admissible without Kelly hearing where electrophoretic testing

had already been found generally admissible].)

Jackson argues that the presence of the two detectives in the locker room

transformed the Orange Street trailing into a hybrid of a trailing and a scent lineup.

In a scent lineup, ―a dog sniffs an object imbued with a scent known to be from a

50

wrongdoer and then sniffs a line of either objects or people. If the dog ‗alerts‘ —

that is, barks at, sniffs and paws at, sits near, or mouths a suspect, or an object

touched by a suspect — the ‗alert,‘ in the form of an alleged match of the object‘s

scent with that of the suspect, is admitted as substantive evidence that the person

identified committed the crime.‖ (Taslitz, Does the Cold Nose Know? The

Unscientific Myth of the Dog Scent Lineup (1990) 42 Hastings L.J. 15, 17, fn.

omitted.)

In People v. Mitchell (2003) 110 Cal.App.4th 772 (Mitchell), the court held

that it was error to admit evidence of a scent lineup without first holding a Kelly

hearing. The court raised a number of questions regarding the validity of the

assumptions that underlie scent lineups. In particular, the court was troubled by

the lack of evidence showing (1) how long human scent persists on an object;

(2) how storage conditions affect the persistence of human scent on an object;

(3) how a dog might distinguish between different scents present on the same

object; (4) whether every individual has a unique scent; and (5) what certification

procedures are necessary for scent identification dogs. (Mitchell, at pp. 791–793.)

The prosecution did not present any scientific evidence, relying entirely on the

testimony of the dog‘s handler. (Id. at p. 791.)

The court opined that a technique may be scientific for the purposes of

Kelly even if it is not developed in a laboratory: ―Difficulty in understanding the

precise nature and parameters of a dog‘s ability to discriminate scents does not

take this phenomenon out of the realm of science. . . . [¶] Canine ability to

discriminate scent has a physiological, and therefore in its most fundamental

sense, a scientific basis.‖ (Mitchell, supra, 110 Cal.App.4th at p. 790.) In contrast

to Craig, which emphasized the extent to which the reliability of dog trailing

varies with the individual dog (Craig, supra, 86 Cal.App.3d at p. 915), the court in

Mitchell stressed the opacity and apparent infallibility of a scent lineup as a basis

51

for applying Kelly. ―A scent identification by [a dog] appears to provide a

definitive truth, with [the dog] being analogous to a machine that [the handler]

(and only [the handler]) can calibrate and read.‖ (Mitchell, at p. 793.)

The court in Mitchell found in the alternative that the prosecution did not

lay a sufficient foundation for admitting evidence of the scent lineup. While a

―history of canine performance‖ provided a basis for the admissibility of scent

trailing, the court found no ―basis for assumptions made about degradation and

contamination of scent, both before and during collection, as well as the

uniqueness of each person‘s odor, beyond the mere experiences of one trainer and

one dog.‖ (Mitchell, supra, 110 Cal.App.4th at pp. 793–794; accord, People v.

Willis (2004) 115 Cal.App.4th 379, 386 (Willis).)

Mitchell‘s reasoning is inapplicable here. Although Barnes testified that

there were communications personnel in another room in the basement while

Maggie was trailing, Jackson does not argue that their presence transformed the

trail into a scent lineup, nor does he argue that as a general matter dog trailing can

only be reliably conducted in areas where other people are not present. Crucially,

at no point was Maggie presented with a line of multiple people or objects and

asked to distinguish among them; instead, the detectives and Jackson were waiting

in different parts of the locker room. Webb testified that she could not see Jackson

when she followed Maggie past the detectives and did not see him until she turned

the corner to watch Maggie jump into his lap. Likewise, the fact that the envelope

had been treated with ninhydrin and was close to six weeks old did not change the

nature of what Maggie was asked to do: follow any human scent that she could

pick up from the envelope.

Accordingly, we conclude that a Kelly hearing was not necessary before the

jury could hear the dog trailing evidence. Evidence grounded in the ability of

particular dogs to perform scent trailing on command has been admissible in

52

California since 1978, so long as a proper foundation is laid. (See Craig, supra,

86 Cal.App.3d at p. 915.) There is no reason to deviate from that precedent here.

However, the conclusion that Kelly does not apply should not be read to

mean that dog trailing is not ―science,‖ that scientific findings in this area are

irrelevant, or that the reliability of proffered dog trailing evidence will be

discernible from the personal experience of the handler. On the contrary, dog-

trailing procedures and experiments must comply with the laws of physics,

chemistry, and biology. When proffered testimony describes events that exceed or

violate these laws, courts must exclude it as unfounded. (See Mitchell, supra, 110

Cal.App.4th at p. 790.)

ii. Foundation

Jackson argues that the trial court erred in failing to hold a hearing pursuant

to Evidence Code section 402 before admitting evidence of the June 25, 2001

trailing and that, had such a hearing been held, the evidence would have been

excluded as unreliable. We disagree. The trial court did not abuse its discretion in

determining that the prosecution laid a sufficient foundation for this evidence.

―In determining the admissibility of evidence, the trial court has broad

discretion. . . . A trial court‘s ruling on admissibility implies whatever finding of

fact is prerequisite thereto. . . .‖ (People v. Williams (1997) 16 Cal.4th 153, 196

(Williams).) ―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.]‖ (People v. DeHoyos (2013) 57

Cal.4th 79, 132.)

53

―When the relevance of proffered evidence depends upon the existence of a

preliminary fact, the trial court must determine whether the evidence is sufficient

to permit the jury to find the preliminary fact true by a preponderance of the

evidence.‖ (People v. Hinton (2006) 37 Cal.4th 839, 890.) ―The proponent of the

proffered evidence has the burden of producing evidence as to the existence of the

preliminary fact. . . .‖ (Evid. Code, § 403, subd. (a).)

Evidence of dog trailing was held to be admissible in People v. Malgren,

supra, 139 Cal.App.3d 234 only if the proponent made a sufficient showing as to

five foundational requirements: (1) whether ―the dog‘s handler was qualified by

training and experience to use the dog‖; (2) whether ―the dog was adequately

trained in tracking humans‖; (3) whether ―the dog has been found to be reliable in

tracking humans‖; (4) whether the dog was ―placed on the track where

circumstances indicated the guilty party to have been‖; and (5) that the source of

the scent — whether it was left at a location or on an object — has not become

―stale or contaminated.‖ (Id. at p. 238.) The last two factors were held to be

necessary to ensure that ―the circumstances of the tracking itself make it probable

that the person tracked was the guilty party.‖ (Ibid.) In Malgren, the court found

that these two requirements were satisfied because ―the dog was placed on the trail

within 20 to 25 minutes after the intruder fled from the victims‘ home.‖ (Id. at

p. 238.)

Malgren further held that dog trailing evidence is insufficient to support a

conviction absent some corroborating evidence, either direct or circumstantial.

(Malgren, supra, 139 Cal.App.3d at p. 239.) As explained in a subsequent

decision, the last two Malgren factors — whether the dog was placed on the trail

where circumstances indicate the guilty party was and whether the trail has

become stale or contaminated — ―help to ensure the dog has a fresh scent, but

they do not . . . corroborate that the person located is the person who was tracked.

54

The dog‘s actions in locating an individual require assurance that the person

located is the person pursued, as well as being the person who in fact left the

initial scent followed by the dog.‖ (People v. Gonzales (1990) 218 Cal.App.3d

403, 409 (Gonzales).)

In the trial court, Jackson argued that a hearing under Evidence Code

section 402 was necessary to examine the prosecutor‘s contention that the fifth

foundational requirement (i.e., the trail was neither stale nor contaminated) was

satisfied. The prosecutor made a foundational offer of proof based on the

testimony at the preliminary hearing. The trial court denied Jackson‘s request and

made a ruling on the record that the foundational requirements with regard to the

dog trailing evidence had been satisfied. The record here supports the trial court‘s

finding that an adequate foundation had been established. As discussed below, the

preliminary hearing testimony of Webb, as well as the trial testimony of Dr.

Harvey, Webb, and Lowry was sufficient to lay a foundation for evidence of the

June 25, 2001 dog trailing.

As to the first three factors — the handler‘s qualifications and the training

and reliability of the dog — in both her preliminary hearing testimony and trial

testimony, Webb described the training that she and Maggie had undergone

specifically geared toward trailing human scent. Maggie had been certified as a

trailing dog by the National Police Bloodhound Association and was one of a

handful of dogs participating in their advanced training group. In the spring of

2001, Webb was training with Maggie regularly, including running blind and

double-blind trails. Maggie had performed successfully in at least seven other

cases before June 2001. In addition, both Lowry and Dr. Harvey testified at trial

to Maggie‘s reputed and observed reliability. This testimony was sufficient to

show that Webb and Maggie had the proper training and that Maggie was able to

trail reliably in June 2001.

55

The fourth Malgren factor — that the dog was placed on the trail in a place

where the evidence showed the perpetrator to have been — was satisfied by

evidence that the dog was presented with a scent article that the jury could infer

was handled by whoever was responsible for Myers‘s disappearance. Testimony

at trial indicated that Myers kept cash in her purse, separating bills by

denomination into manila and white envelopes. There was also testimony that

Myers was a tidy person and would not have left a crumpled envelope lying on the

bed. There was no cash in Myers‘s purse when it was found. These

circumstances tend to show that the guilty party handled the envelope, and

Jackson does not argue otherwise.

Jackson argues that the prosecution failed to satisfy the fifth Malgren

requirement — that the source of the scent was not stale or contaminated. The

envelope was left on Myers‘s bed in the open air for at least half a day, i.e., the

time between Monique Myers‘s visit at 9:00 p.m. on May 14, 2001, and the

collection of the envelope by investigators on the afternoon of May 15, 2001.

During that time, it could have absorbed scents from the air or investigators in the

house. In addition, the envelope was treated with ninhydrin, and the envelope was

stored at room temperature for 40 days before being presented to Maggie. Jackson

does not contend that his scent was somehow transferred to the envelope during

the period it was in storage.

Although Malgren set forth this fifth requirement with regard to staleness

and contamination, in that case and other cases the trailing was conducted almost

immediately following the perpetrator‘s flight. (See Craig, supra, 86 Cal.App.3d

at p. 910 [―[o]ne of the first units to arrive‖ after police were called to the scene

was ―Officer Reed with an experienced, trained police dog‖]; Malgren, supra, 139

Cal.App.3d at p. 237 [officer arrived with police dog less than 20 minutes after

burglar had fled]; Gonzales, supra, 218 Cal.App.3d at pp. 405–406 [officer arrived

56

with police dog approximately 25 minutes after burglars had fled].) We are

unconvinced that we should impose a foundational requirement that, prior to

admission of dog trailing testimony, the scent presented to the dog must be shown

not to be stale or contaminated. People v. Malgren, supra, 139 Cal.App.3d 234, is

thus disapproved on this point to the extent it holds otherwise.

The prosecution presented testimony from Dr. Harvey as to her opinion of

how long a scent could remain on an item. Dr. Harvey mentioned an unpublished

ongoing study in which she ―ha[d] to assume [based on her results] . . . that [a

scent] could remain [on an item] as long as 7 1/2 years or possibly longer.‖ She

―would not say‖ that a scent would persist that long in every case, and she did not

offer any criteria for determining how long a scent would persist in a particular

case.

Nevertheless, all three prosecution experts opined that if a scent is not

detectable on the object presented to the dog, or if the scent on the object does not

match a trail, then a well-trained dog will not trail. Dr. Harvey testified that dogs

are trained on ―negative trails,‖ where the dog is given a scent item that cannot be

matched to any trail, either because the scent item contains no scent or because

there is no trail that matches the scent on the item. The dog is trained to freeze,

whine, go around in circles, or engage in some other behavior that signals to the

handler that it is unable to find the trail. Webb testified that she often had Maggie

run negative trails. When Maggie was unable to locate a trail, she would stop or

go around in circles, indicating that she could not find a trail. Lowry also testified

that well-trained dogs are trained on negative trails.

Well-trained dogs are also trained to discern the scent that matches the

trail, even when multiple scents are present on the scent item or when multiple

scents are in an area. Webb explained that Maggie was constantly faced with such

contamination because she did not work in a sterile environment but rather in an

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urban environment where there were always a lot of people leaving trails. Webb

also testified that scent items were often contaminated because they came from

homes where many people lived and, if the scent item came from a crime scene,

the scents of police officers and medical personnel were also present. Lowry

testified that these dogs are ―coming into contact with a lot of contamination that

we don‘t even know that is present.‖ However, if the dog is well trained and

presented with a scent and a matching trail, Lowry explained, ―he will ignore what

he is not supposed to smell.‖

Dr. Harvey also testified that she did not believe in contamination: ―My

understanding of what contamination would be by the courts would be that

something happens that would prevent the dog from being able to smell a

particular person‘s scent signature and then go and find them. I‘ve never been in a

situation where the dogs could not do that.‖ She described an experiment where

an individual laid a trail, got in a car at the end of the trail, and returned 48 hours

later to the end of the trail. In the interim period, that trail was mixed with the

trails of thousands of people attending a festival. Nevertheless, the original trails

were still discernable to the dog. She testified, ―That may be considered by the

court, in my opinion, contamination. But for a bloodhound it‘s not.‖ Furthermore,

Dr. Harvey testified that she ―believe[d] . . . fully‖ that a bloodhound‘s ability to

trail would not be affected by how many people have touched a scent item; all that

matters is the extent to which that dog can reliably match a scent on the item to the

scent trail.

Accordingly, the relevant question is not, as Malgren suggests, whether the

scent is ―stale‖ or ―contaminated,‖ but whether a well-trained dog is able to alert

its handler that it is unable to discern a particular scent from the scent item or that

the scent on the scent item does not have a trail. The expert testimony in this case

suggests that a well-trained dog will refuse to trail if it cannot do so given the lack

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of a scent or the absence of a discernible trail. The experts in this case testified

that Maggie, in particular, consistently failed to trail when there was no scent or

when there was no trail matching the scent. As to whether the envelope found at

Myers‘s house was contaminated because it was sprayed with ninhydrin, the

prosecution introduced the experiments performed by Lowry and Dr. Harvey

showing that a scent on a scent item was not altered by ninhydrin such that the dog

was unable to trail. Jackson contends this showing was insufficient.

The Attorney General argues that ―Maggie‘s ability to follow Jackson‘s

path through the police station, and unambiguously alert on him‖ shows that the

―ninhydrin did not affect Jackson‘s scent on the envelope.‖ This argument is

unsatisfactory because it simply assumes what it is intended to prove, namely, that

the reason Maggie trailed to Jackson was that she detected his scent on the

envelope. The relevant question is whether Maggie would follow the trail of a

particular scent even if the scent was altered by the ninhydrin in a way that should

have precluded her from following a trail with that scent. Maggie‘s training

suggests that she would not. As discussed above, the prosecution‘s experts

repeatedly testified that if a bloodhound, trained as to when to trail and when not

to trail, was presented with a scent item with no scent or a scent that did not have a

trail, the dog would not trail. Furthermore, Dr. Harvey and Webb testified that

given her training and the experience of her handler, Maggie would not trail if the

scent item presented to her did not also have a corresponding trail.

Jackson questions whether Maggie trailed to him not because his scent was

on the scent item, but because ―his scent was the most familiar, because Maggie

had sniffed him three days earlier in the Spruce Street Station interview room.‖

But Dr. Harvey, Lowry, and Webb testified that well-trained dogs were trained to

forget past scents or familiar scents and to trail only on the scent that was

presented to her at that time. Dr. Harvey explained that the harness tells the dog

59

that it is time to work and that when the dog is presented with a smell, the dog is

aware that ―this is the smell I‘m supposed to trail.‖ She testified that the dog

knew, based on its training, that it would not get a reward unless it ―forg[ot] the

last smell you had when you were in harness. You‘re not going to get the love pat

unless you do what I tell you to do and go look for that smell.‖

Webb testified that even though Maggie had smelled Jackson three days

earlier, Webb had ―never seen [Maggie be] able to remember . . . a trail of

somebody else.‖ She explained that she changed scents with Maggie almost every

day. Maggie had been trained using decoys, where she was presented with a scent

item and trails of people she knew or were familiar with. She was trained to

ignore the scents that she was familiar with and instead to focus only on the scent

on the scent item. Lowry also testified that dogs would need to be ―re-scented‖

unless they were in a continuous trailing exercise, such as when a trail is

intentionally dropped and the dog is asked to pick it up again at a different spot.

In sum, we do not discern a distinct issue of staleness or contamination that

bears on the admissibility of dog-trailing evidence separate and apart from the

other four relevant requirements. Thus, the fifth Malgren factor is not an

independent requirement; it is satisfied by evidence that establishes the other four

factors. Again, to the extent People v. Malgren, supra, 139 Cal.App.3d 234,

suggests otherwise, it is disapproved on this point. If a well-qualified handler

trains a dog who has reliably trailed human scent and is well trained in ignoring or

forgetting past smells and in indicating negative trails, then the dog will not trail if

the scent on the scent item is stale or nonexistent, or if there is no trail that

matches the scent on the scent item. The dog will also be able to distinguish

among scents even if there are multiple scents (so-called contamination) either on

the scent item or in the trail itself.

60

Of course, an opposing party may cross-examine a witness on any of the

foundational requirements and may present expert testimony to rebut any

testimony in favor of dog trailing. In this case, Dr. Myers disagreed with much of

the prosecution‘s dog trailing testimony. He opined that there was not ―a good

reliable measure of what the reliability of the dog is in this case.‖ He also opined

that he was not sure what exactly a dog was smelling when presented with a scent

item or whether that scent was affected by environmental and personal hygiene

factors. According to Dr. Myers, ―some of the chemicals that are present in

human scent will decompose and degrade,‖ making contamination and staleness

an issue when asking a dog to trail. This disagreement among the experts was for

―the jury to resolve . . . , accepting such of it, or none of it, as they saw fit.‖

(People v. Carter (1961) 56 Cal.2d 549, 560.) We conclude that the trial court did

not abuse its discretion in ruling that the prosecution had laid an adequate

foundation for introducing the dog trailing evidence in this case.

B. Guilt Phase Issues

1. Other Errors Related to the Dog Trailing

a. Limitation on Cross-examination

Jackson argues that the trial court committed reversible error in barring

defense counsel from ―bringing out the fact‖ that the scent transfer unit that Dr.

Harvey used in her research has been excluded under Kelly, supra, 17 Cal.3d 24,

by two Courts of Appeal. (See Mitchell, supra, 110 Cal.App.4th at pp. 789, and

Willis, supra, 115 Cal.App.4th at p. 385.) Jackson further argues that the court

should have held a hearing on its own motion under either Kelly or Evidence Code

section 402 with respect to the scent transfer unit (even though he did not request

such a hearing) or, at the least, ―informed the jury in some fashion that the

machine on which Dr. Harvey relied had not been approved as reliable in the

61

courts of this state.‖ The Attorney General counters that Dr. Harvey‘s opinion

was properly based on material reasonably relied on by other experts in her field

and thus there was no error.

i. Background

At trial, the following colloquy occurred between defense counsel and Dr.

Harvey regarding Dr. Harvey‘s research:

―Q. How were these scents collected from various evidence?

―A. We used an instrument called [a] scent-transfer unit. It is an

instrument that has a type of vacuum device that collects the scent onto a gauze

pad made out of paper pulp. . . .

―Q. Is this a device that‘s been accepted in your scientific community?

―A. I don‘t know exactly what you mean.

―Q. Well, the area of your research, is it often referred to as a scientific

community, those involved in it; correct?

―A. Yes.

―Q. The use of the scent transfer unit, is that a device that is generally

accepted in your scientific community?

―A. As far as the people doing scent research are concerned, Florida

International University uses the scent-transfer unit to collect scent, Oak Ridge

Laboratories uses, the FBI uses it, and, yes, we use it.

―Q. To your knowledge, has the scent transfer unit ever been accepted by

any court of law in a published opinion in California?‖

The prosecution objected to defense counsel‘s last question on the grounds

of relevance. The trial court heard the parties on the issue out of the presence of

the jury. Defense counsel argued that the rejection of the scent transfer unit by

other courts — and Dr. Harvey‘s knowledge of that rejection — was relevant to

62

the jurors‘ evaluation of her opinion. The court read Mitchell, supra, 110

Cal.App.4th 772, and Willis, supra, 115 Cal.App.4th 379, to mean that the device

was inadmissible on foundational grounds, not because of Kelly. The court stated,

―As far as instructing the jury that the device has not been approved in a court of

law, I‘m not going to do that, because it‘s apples and oranges. This is a research

device. Certainly they are free to use any research device they want. If we‘re

talking about the actual admissibility in court of an item of evidence, that‘s

something entirely different.‖

ii. Analysis

―A person is qualified to testify as an expert if he has special knowledge,

skill, experience, training, or education sufficient to qualify him as an expert on

the subject to which his testimony relates. Against the objection of a party, such

special knowledge, skill, experience, training, or education must be shown before

the witness may testify as an expert.‖ (Evid. Code, § 720, subd. (a).) An expert

can only base testimony on a matter, ―whether or not admissible, that is of a type

that reasonably may be relied upon by an expert in forming an opinion upon the

subject to which his testimony relates, unless an expert is precluded by law from

using such matter as a basis for his opinion.‖ (Evid. Code, § 801, subd. (b).)

―When a preliminary showing is made that the proposed witness has sufficient

knowledge to qualify as an expert under the Evidence Code, questions about the

depth or scope of his or her knowledge or experience go to the weight, not the

admissibility, of the witness‘s testimony.‖ (People v. Jones (2013) 57 Cal.4th

899, 949–950 (Jones).)

―When a witness gives his personal opinion on the stand — even if he

qualifies as an expert — the jurors may temper their acceptance of his testimony

with a healthy skepticism born of their knowledge that all human beings are

63

fallible. But the opposite may be true when the evidence is produced by a

machine: like many laypersons, jurors tend to ascribe an inordinately high degree

of certainty to proof derived from an apparently ‗scientific‘ mechanism,

instrument, or procedure.‖ (People v. McDonald (1984) 37 Cal.3d 351, 372

(McDonald), overruled on other grounds in People v. Mendoza (2000) 23 Cal.4th

896, 915; see Jones, supra, 57 Cal.4th at p. 953 [declining to apply Kelly to test

admission of psychologist‘s opinion, based in part on the use of Rorschach test].)

First, Jackson‘s claim is forfeited. A ― ‗defendant‘s failure to make a

timely and specific objection‘ on the ground asserted on appeal makes that ground

not cognizable.‖ (People v. Seijas (2005) 36 Cal.4th 291, 302 (Seijas).) A proper

objection must ― ‗ ―fairly inform the trial court, as well as the party offering the

evidence, of the specific reason or reasons the objecting party believes the

evidence should be excluded, so the party offering the evidence can respond

appropriately and the court can make a fully informed ruling.‖ [Citation.]‘ ‖

(People v. Valdez (2012) 55 Cal.4th 82, 130 (Valdez), quoting People v. Zamudio

(2008) 43 Cal.4th 327, 354 (Zamudio).)

Nor on the merits do we find error in the trial court‘s exclusion of defense

counsel‘s questions regarding general acceptance of the scent transfer unit in

California courts. Although both Mitchell, supra, 110 Cal.App.4th 772, and

Willis, supra, 115 Cal.App.4th 379, found that a scent transfer unit is subject to

Kelly and excluded evidence derived from the use of the device, these holdings

were of limited relevance here.

Dr. Harvey did not use a scent transfer unit to determine whether Jackson‘s

scent was on the envelope found on Myers‘s bed. Her use of the device was

limited to her own research, including her published articles. Further, she did not

lean on the use of the scent transfer unit, or its scientific name and appearance, to

64

buttress her credibility or burnish her expertise. Rather, she discussed the device

in response to defense counsel’s question about her research methods.

Kelly, supra, 17 Cal.3d 24, is principally directed at the risk that a jury will

overvalue physical evidence because it was derived from a seemingly infallible

method. (See McDonald, supra, 37 Cal.3d at pp. 372–373.) If defense counsel

were concerned that mention of the scent transfer unit would deprive the jury of its

ability to critically assess Dr. Harvey‘s credibility, eliciting her testimony on the

use of this device would be a curious strategic choice.

Kelly is not directed at the risk Jackson highlights here, namely, that the

jury will credit an expert‘s testimony even though her methods, unbeknownst to

the jury, are novel. This risk is policed by Evidence Code section 720, under

which a party may challenge a proffered expert‘s qualifications and the foundation

for her opinion. (See Jones, supra, 57 Cal.4th at p. 949.) At trial, Jackson did not

challenge Dr. Harvey‘s opinion as unreliable because of her use of the scent

transfer unit. Thus, the trial court had no opportunity to hold a hearing on this

issue.

We reject Jackson‘s contention that moving for a hearing would have been

futile ―given the trial court‘s persistent rulings denying such hearings.‖ The trial

court rejected his bid for an evidentiary hearing on the Orange Street station dog

trailing because it found that the trailing was not a scent lineup. There is no basis

for concluding that the trial court would have reached an identical conclusion with

respect to Dr. Harvey‘s use of the scent transfer unit, given the different status of

that device under the law. In any event, Jackson‘s failure to raise this issue at trial

precludes our review.

Further, it is worth noting that previous cases have not held that the scent

transfer unit is inherently flawed or unreliable, only that it is subject to Kelly and

that there was no evidence of a scientific consensus as to their reliability. (Willis,

65

supra, 115 Cal.App.4th at p. 385 [― ‗The scent transfer unit is a novel device used

in furtherance of a new technique‘ and, as such, is subject to a Kelly analysis.‖],

citing Mitchell, supra, 110 Cal.App.4th at p. 789.) Because Jackson‘s attempt to

use these cases to discredit Dr. Harvey‘s research could have led to juror

confusion, the trial court did not abuse its discretion in excluding this evidence

under Evidence Code section 352. Nor did the trial court have any independent

obligation to ―inform[] the jury in some fashion that the machine on which Dr.

Harvey relied had not been approved as reliable in the courts of this state.‖

b. Photographs of Maggie

Jackson argues that the trial court erred in admitting photographs of Maggie

because the pictures were irrelevant and engendered positive feelings toward the

dog. The Attorney General counters that the relevance of the photographs

outweighed any possible prejudice they could have caused.

At trial, the court admitted an exhibit board displaying nine photographs of

Maggie: on her own, with Webb, being harnessed before trailing, in the act of

trailing, and alerting on a target. Jackson moved to exclude any images of the dog

as irrelevant because there was no ―contention the dog doesn‘t exist‖ or that the

dog ―is not a dog, or not a bloodhound.‖ The court denied this motion, finding

that the photographs would ―probably be helpful for the jury to see . . . so they can

better understand the working conditions of the dog.‖ The court granted a similar

motion to exclude the dog herself from court because her live presence ―may

engender some sympathetic responses from the jury, especially from pet lovers,‖

and her presence was not necessary to the prosecution‘s case.

Evidence is relevant if it has ―any tendency in reason to prove or disprove

any disputed fact that is of consequence to the determination of the action.‖ (Evid.

Code, § 210.) ―The trial court has considerable discretion in determining the

66

relevance of evidence.‖ (People v. Williams (2008) 43 Cal.4th 584, 634.) A court

may exercise its discretion to exclude relevant evidence ―if its probative value is

substantially outweighed by the probability that its admission will . . . create

substantial danger of undue prejudice.‖ (Evid. Code, § 352.) ― ‗A trial court‘s

exercise of discretion in admitting or excluding evidence . . . will not be disturbed

except on a showing the trial court exercised its discretion in an arbitrary,

capricious, or patently absurd manner that resulted in a manifest miscarriage of

justice.‘ ‖ (People v. Brown (2003) 31 Cal.4th 518, 534.)

We agree with the trial court that the images were relevant to understanding

Maggie‘s working conditions. The jurors could see the type of harness she wore,

her body language while tracking, and examples of how she would alert Webb that

she had found the source of the scent she was following. This evidence was

relevant to the jurors‘ assessment of Webb‘s credibility and their overall

determination of Maggie‘s reliability. For example, a juror could have concluded

that Maggie‘s purported alert was too vague to be reliably interpreted by Webb.

Although the pictures could have stirred sympathy in some jurors, there is no basis

to conclude that they created a substantial danger of undue prejudice. Maggie was

not a puppy, and the pictures did not show her performing tricks, being

affectionate toward humans, or engaging in other behavior that might elicit a

strong emotional response. Accordingly, we conclude that the trial court did not

abuse its discretion in admitting the photographs.

c. Juror Misconduct

Jackson contends that the trial court erred in denying his motion for a

mistrial on the basis of juror misconduct. This claim relates to an incident in

which several of the jurors engaged Dr. Harvey in conversation during a break in

her testimony.

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i. Background

At trial, defense counsel asked Dr. Harvey whether she knew of any

published California cases admitting evidence of a scent transfer unit. The court

sustained the prosecution‘s objection to this question as irrelevant and defense

counsel asked to be heard on the matter. While the attorneys and the judge

discussed the matter in chambers, several jurors began asking Dr. Harvey

questions about her dog. She responded verbally to at least one question and

responded with gestures or facial expressions to certain other questions. During

the lunch break, three jurors reported the conversation to the clerk, who reported it

to the judge.

The judge questioned the courtroom deputy and each of the seated and

alternate jurors individually about what had happened. The jurors individually

testified that a few jurors asked Dr. Harvey general questions about the dog‘s

height and weight, whether the dog drooled, and various noises the dog made.

They testified that Dr. Harvey at times gestured her responses to their questions

(e.g., holding up fingers to indicate that the dog weighed 135 pounds) and at other

times responded verbally (e.g., saying that one of the dogs was ―not my dog.‖)

The jurors also testified that they talked and laughed among themselves about

dogs in general. The court and defense counsel questioned each juror who

actually interacted with Dr. Harvey as to whether they could set aside the

conversation when assessing Dr. Harvey‘s testimony, and each said that he or she

could.

Jackson moved for a mistrial or, in the alternative, the exclusion of the

jurors who actively engaged in the conversation. The trial court denied the

motion, explaining that ―[it] does appear to the Court that no specific questions

were asked about this case. I‘m not trying to minimize what happened. I‘m just

trying to put it in context. The questions were general in nature regarding her dog

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or dogs. The jurors have represented to the Court that what transpired would not

affect how they evaluate her credibility based upon the kinds of questions asked

and her answers. It seems reasonably apparent to me that they wouldn‘t.‖

The court then readmitted the jurors and admonished them collectively:

―[W]hat happened this morning is unfortunate. It shouldn‘t have happened. And

I‘m admonishing all the jurors that anything that transpired during that session

while the Court was with counsel going over the evidentiary issues, anything that

transpired during that session, any questions asked or statements made by anybody

involved in the conversations cannot be used at all in evaluating the evidence in

this case or evaluating the credibility of a witness, and in particular evaluating the

testimony of Dr. Harvey. Anything that you heard or anything that was said has to

be put aside and this case evaluated on what is done in open court in front of the

Court‘s view and in front of the attorneys, and that‘s the way it has to be.‖ The

court asked the jurors if they could adhere to that and they collectively stated that

they could.

ii. Analysis

Jurors ―convers[ing] among themselves, or with anyone else, . . . on any

subject connected with the trial‖ is juror misconduct. (§ 1122, subd. (a)(1).) Juror

misconduct ― ‗raises a presumption of prejudice that may be rebutted by proof that

no prejudice actually resulted.‘ ‖ (In re Hitchings (1993) 6 Cal.4th 97, 118

(Hitchings).) A verdict must be reversed if the court ― ‗ ―finds a substantial

likelihood‖ ‘ ‖ that the misconduct influenced the vote of one or more jurors.

(Ibid.) The presumption ― ‗ ―may be rebutted by an affirmative evidentiary

showing that prejudice does not exist or by a reviewing court‘s examination of the

entire record to determine whether there is a reasonable probability of actual harm

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to the complaining party.‖ ‘ ‖ (Id. at p. 119.) The ―substantial likelihood‖ test is

an objective standard. (People v. Marshall (1990) 50 Cal.3d 907, 951.)

―[B]ias may appear in either of two ways: (1) if the extraneous material,

judged objectively, is so prejudicial in and of itself that it is inherently and

substantially likely to have influenced a juror; or (2) even if the information is not

‗inherently‘ prejudicial, if, from the nature of the misconduct and the surrounding

circumstances, the court determines that it is substantially likely a juror was

‗actually biased‘ against the defendant.‖ (People v. Nesler (1997) 16 Cal.4th 561,

578–579 (Nesler).) The surrounding circumstances include ―the nature of the

juror‘s conduct, the circumstances under which the information was obtained, the

instructions the jury received, the nature of the evidence and issues at trial, and the

strength of the evidence against the defendant.‖ (In re Carpenter (1995) 9 Cal.4th

634, 654.) ―[W]e accept the trial court‘s findings of historical fact if supported by

substantial evidence, but we review independently the question of whether

prejudice arose from juror misconduct.‖ (People v. Thomas (2012) 53 Cal.4th

771, 819.)

There is no dispute that the conversation between the jurors and Dr. Harvey

constituted juror misconduct. Jackson argues that this misconduct biased the

jurors because it involved multiple jurors, occurred in the middle of Dr. Harvey‘s

testimony, and concerned trailing dogs in a case where the reliability of dog

trailing was an important issue. He stresses that the jurors‘ professions to the

contrary are not conclusive; the jurors themselves may not have realized how this

interaction shaped their perception of Dr. Harvey‘s credibility. The Attorney

General counters that the content of the conversation was ―innocuous‖ and that the

trial court‘s individual voir dire and collective admonishment constituted

substantial evidence in support of its conclusion that the conversation would not

affect the jurors‘ determination of the case.

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The content of the conversation was not inherently prejudicial. Dr. Harvey

did not say anything bearing directly on the case. Although the jurors asked

general questions about Dr. Harvey‘s dog, they did not discuss Maggie‘s

reliability or the abilities of trailing dogs, broadly speaking. The jurors did not

receive any information about how trailing dogs are trained, the circumstances in

which they work, or the scientific basis for scent identification. Dr. Harvey did

not discuss her own research or make any claims about the dog trailing conducted

in this case. The deputy recalled a question about the use of dogs by other

agencies, but there is no evidence that Dr. Harvey responded to that question or

that any of the other jurors heard it. Dr. Harvey did not comment on Jackson‘s

alleged actions or his character.

This is not a case in which a juror received information about a defendant‘s

prior conviction (see People v. Holloway (1990) 50 Cal.3d 1098, 1107–1112,

disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830,

fn. 1); asked one of the witnesses to clarify evidentiary issues in the case (see

People v. Pierce (1979) 24 Cal.3d 199, 205–208 (Pierce)); or made erroneous

statements of law to the rest of the jury during deliberations (see In re Stankewitz

(1985) 40 Cal.3d 391, 399–400).

Second, the surrounding circumstances do not show a substantial likelihood

of actual bias. (See Nesler, supra, 16 Cal.4th at pp. 578–579.) The jurors were

not attempting to obtain information about the case. From their testimony, it

appears that many jurors were aware that they were not supposed to converse with

the witness and they attempted to ignore the conversation. Several jurors were

concerned enough to report the conversation almost immediately after it took

place. Because it was reported so quickly, the court was able to assess what

occurred while the jurors‘ memories were fresh. The court questioned each juror

independently to determine what was said. Most jurors remembered only a few

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statements being made concerning information such as the size of Dr. Harvey‘s

dog. After the individual voir dire, the court clearly and strongly admonished the

jurors. Jackson put on considerable evidence calling into question the reliability

of dog trailing in general and, more specifically, the procedures used in this case.

Although reports that the jurors were laughing and ―cutting up‖ with Dr.

Harvey could suggest a rapport that led some jurors to be biased in evaluating her

credibility, such an inference is not compelled. ―[C]ontact between a juror and a

witness . . . may be nonprejudicial if . . . there is no showing that the contact

related to the trial. . . .‖ (Cowan, supra, 50 Cal.4th at p. 507; see also Pierce,

supra, 24 Cal.3d at p. 208 [suggesting that contact between a juror and a witness

involving ―mere social amenities unrelated to the trial‖ is not necessarily

prejudicial].) The trial court is in the best position to observe the jurors‘ demeanor

and determine whether such bias existed (see People v. Debose (2014) 59 Cal.4th

177, 202), and here the trial court questioned several jurors individually whether

the improper conversation with Dr. Harvey would affect their evaluation of her

testimony.

Based on an examination of the entire record, we conclude that the

inference of bias was rebutted and that the trial court did not err in denying the

motion. (See Hitchings, supra, 6 Cal.4th at p. 119.)

d. Webb‘s Opinion That Dogs Are Colorblind

Jackson argues that the trial court committed reversible error in admitting

Webb‘s testimony that dogs are colorblind.

Dr. Myers testified about the risk of visual cueing when scent lineups are

conducted using people instead of objects. ―The worst examples I have seen of

this is where a dog was brought into a situation where there were five individuals.

As it turned out, there were seven. Four of them were sitting peaceably and one

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was in a yellow jumpsuit and handcuffs surrounded by two officers. That‘s not a

very good lineup. That‘s contributing a cue that‘s hard to ignore.‖ In rebuttal, the

prosecution asked Webb, ―Are dogs colorblind?‖ She responded, ―Yes, they are.‖

The court overruled Jackson‘s objection that this testimony was unfounded.

A witness is qualified to offer an expert opinion if she has ―special

knowledge, skill, experience, training, or education sufficient to qualify [her] as an

expert on the subject to which [her] testimony relates. Against the objection of a

party, such special knowledge, skill, experience, training, or education must be

shown before the witness may testify as an expert.‖ (Evid. Code, § 720, subd.

(a).)

Even assuming Webb‘s statement lacked foundation, this error was not

prejudicial under Watson. (See People v. Watson (1956) 46 Cal.2d 818, 836–837.)

Webb‘s testimony does not indicate that Maggie paused when passing the

detectives or that she was confronted with a static choice between the detectives

and defendant. Rather, her testimony suggests that Maggie was running ahead of

Webb and passed by the detectives before she could see defendant. Jackson

himself does not argue that this statement was prejudicial in and of itself, instead

framing it as ―part of the overall pattern of the trial court‘s rulings — anything

dog-related offered by the prosecution was admissible; anything challenging their

admission was a waste of time.‖

Jackson does not offer any reasoned explanation for how this statement

prejudiced him. His argument is a criticism of the trial court‘s approach to the

case, not a reasoned explanation of how this particular statement probably affected

the verdict.

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e. Jury Instructions

Jackson argues that the trial court erred in giving the standard version of

CALJIC No. 2.16 to the jury. This instruction reads: ―Evidence of dog tracking

has been received for the purpose of showing, if it does, that the defendant is [the]

[a] perpetrator of the crime of ___________. This evidence is not by itself

sufficient to permit an inference that the defendant is guilty of the crime of

___________. Before guilt may be inferred, there must be other evidence that

supports the accuracy of the identification of the defendant as the perpetrator of

the crime of ___________. [¶] The corroborating evidence need not be evidence

which independently links the defendant to the crime. It is sufficient if it supports

the accuracy of the dog tracking. [¶] In determining the weight to give to dog-

tracking evidence, you should consider the training, proficiency, experience, and

proven ability, if any, of the dog, its trainer, and its handler, together with all the

circumstances surrounding the tracking in question.‖

Although Jackson approved this instruction at trial, he now contends that

the court had a duty to issue a different instruction sua sponte. He criticizes the

instruction given on the grounds that (1) the foundation for the dog trailing

evidence in this case was insufficient; (2) the instruction is not sufficiently

cautionary; and (3) the instruction undermines the prosecution‘s burden of proof.

Jackson suggests that an instruction like the one rejected in Craig would have

been more appropriate: ― ‗[D]og-trailing evidence must be viewed with the utmost

of caution and is of slight probative value. Such evidence must be considered, if

found reliable, not separately, but in conjunction with all other testimony in this

case, and in the absence of some other direct evidence of guilt, dog trailing

evidence would not warrant conviction.‘ ‖ (Craig, supra, 86 Cal.App.3d at

p. 917.)

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―A trial court has no sua sponte duty to revise or improve upon an accurate

statement of law without a request from counsel [citation], and failure to request

clarification of an otherwise correct instruction forfeits the claim of error for

purposes of appeal.‖ (People v. Lee (2011) 51 Cal.4th 620, 638.) Jackson

forfeited this argument by failing to object, since CALJIC 2.16 correctly states the

law as set forth in Malgren and Gonzales. (See Gonzales, supra, 218 Cal.App.3d

at p. 414; Malgren, supra, 139 Cal.App.3d at p. 242.)

Jackson‘s remaining arguments are based on his contentions that this case

did not concern dog trailing but rather a scent identification lineup and that an

insufficient foundation was laid for the evidence. The argument that the June 25,

2001 trailing should have been considered a scent lineup was discussed earlier.

(Ante, at pp. 50–52.) We need not consider it further in this context.

2. Denial of Motion to Suppress Jackson‘s Admission

Jackson contends that the trial court erred by denying his motion to

suppress statements he made during the June 22, 2001 police interview admitting

to violent crimes against an elderly woman. He argues that the statements were

made after he invoked his right to remain silent under Miranda v. Arizona (1966)

384 U.S. 436 (Miranda) and were therefore obtained in violation of his state and

federal constitutional rights. We conclude that the trial court properly admitted

these statements.

a. Background

On June 22, 2001, the morning after the attack on Mason, law enforcement

officers arrested Jackson and conducted an in-custody interview at the police

station. Jackson was given standard Miranda warnings and then voluntarily

agreed to speak with the investigating detectives, Barnes and Joseph. After a

number of questions, Jackson asked to stop the interview, saying: ―Man just take

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me to jail man. I don‘t wanna talk no more.‖ The detectives left the room. About

five minutes later, a different officer, Detective Sutton, came in and asked Jackson

if he wanted some water. The conversation proceeded as follows:

―SUTTON: Were you thirsty at all? I‘ve got some cold water if you do.

―JACKSON: No man what are you gonna do with me man?

―SUTTON: I don‘t know, I mean, I‘m on the outside. Don‘t know what‘s

going on.

―JACKSON: I need to speak to somebody right now man ‘cause I need . . .

―SUTTON: Do you want them to come in and talk to you some more? Is

that what it is?

―JACKSON: No I need to find out what are they, what are they gonna do

man, what is . . .

―SUTTON: Well I don‘t know, did you want them to come back in and

talk to you some more is that it? If that‘s all, I‘ll go tell ‘em.

―JACKSON: Is my girl still here?

―SUTTON: I, I‘m manning a desk up front so I don‘t know.

―JACKSON: How long am I gonna be here man?

―SUTTON: Again, I‘m sorry.

―JACKSON: If they don‘t let me out man I will fuck up this room right

now man.

―SUTTON: Well what you just need to do is just kinda take a deep breath

and . . .

―JACKSON: Take a deep breath, what are you talking about man? I don‘t

even have . . .

―SUTTON: Just kinda relax.

―JACKSON: My medicine right now man. . . . .

―SUTTON: . . . it‘s unlawful for me to dispense medication.

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―JACKSON: Well they, they need to come on and do what they need to do

man.

―SUTTON: Okay so you wanna talk to ‘em again . . . . I‘ll get them here

and then you can talk to ‘em some more and tell ‘em everything you need to tell

‘em okay, okay? Is that a yes or a no? Okay.‖

After the first two officers returned, the following conversation ensued:

―JOSEPH: I understand you wanted to talk to us still?

―BARNES: Did you say you want to talk to us again Bailey, at your

request?

―JACKSON: Yes sir.

―BARNES: Okay what‘s up.

―JACKSON: I‘m just, I‘m sorry man, . . . I know I did it.

―BARNES : You know you did it.

―JACKSON: Yeah I know I did it okay?

―BARNES: Okay what did you do.‖

Jackson then went on to make a number of statements about his actions

against a red-haired woman that led detectives to suspect him of crimes against

Myers.

Before trial, Jackson brought a motion to suppress, arguing that his

statements were involuntary, coerced, and obtained in violation of his rights under

Miranda, the Fifth and Fourteenth Amendments of the United States Constitution,

and article I, section 15 of the California Constitution. He argued that the police

improperly continued questioning him after he invoked his right to remain silent.

At a hearing on the motion, Detective Sutton testified that the other two

detectives had not requested that he attempt to encourage defendant to reinitiate

questioning, only to watch defendant ―while they were gone from the room.‖ The

trial court found no violation of defendant‘s Miranda rights. It credited Detective

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Sutton‘s testimony that he had not been asked to act improperly, concluded that

Jackson had reinitiated communication, and held that the officers had acted in

good faith in continuing the interview.

b. Analysis

The Fifth Amendment provides that ―[n]o person . . . shall be compelled in

any criminal case to be a witness against himself.‖ (U.S. Const., 5th Amend.; see

Malloy v. Hogan, 378 U.S. 1, 6.) To safeguard a suspect‘s Fifth Amendment

privilege against self-incrimination from the ―inherently compelling pressures‖ of

custodial interrogation (Miranda, supra, 384 U.S. at p. 467), the high court

adopted a set of prophylactic measures requiring law enforcement officers to

advise an accused of his right to remain silent and to have counsel present prior to

any custodial interrogation. (Id. at pp. 444–445.) ―[I]f at any point in the

interview [a defendant] invokes the right to remain silent or the right to counsel,

‗the interrogation must cease.‘ ‖ (People v. Martinez (2010) 47 Cal.4th 911, 947

(Martinez), quoting Miranda, at p. 474.) ―[A]n accused . . . having expressed his

desire to deal with the police only through counsel, is not subject to further

interrogation by the authorities until counsel has been made available to him,

unless the accused himself initiates further communication, exchanges, or

conversations with the police.‖ (Edwards v. Arizona (1981) 451 U.S. 477, 484–

485 (Edwards).) ―[T]he prosecution bears the burden of establishing by a

preponderance of the evidence that [a Miranda] waiver was knowing, intelligent,

and voluntary under the totality of the circumstances of the interrogation.‖

(People v. Linton (2013) 56 Cal.4th 1146, 1171 (Linton).)

A statement obtained in violation of a suspect‘s Miranda rights may not be

admitted to establish guilt in a criminal case. (People v. Sims (1993) 5 Cal.4th

405, 440.) ―In reviewing the trial court‘s denial of a suppression motion on

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Miranda and involuntariness grounds, ‗ ― ‗we accept the trial court‘s resolution of

disputed facts and inferences, and its evaluations of credibility, if supported by

substantial evidence. We independently determine from the undisputed facts and

the facts properly found by the trial court whether the challenged statement was

illegally obtained.‘ ‖ ‘ [Citations.] Where, as was the case here, an interview is

recorded, the facts surrounding the admission or confession are undisputed and we

may apply independent review.‖ (People v. Duff (2014) 58 Cal.4th 527, 551

(Duff).) We review issues concerning the suppression of such statements under

federal constitutional standards. (People v. Nelson (2012) 53 Cal.4th 367, 374.)

There is no dispute that Jackson validly waived his Miranda rights at the

start of the interview and then subsequently invoked his right to remain silent.

The Attorney General argues only that, after telling the officers he ―[didn‘t] wanna

talk no more,‖ he reinitiated contact with the officers. Jackson contends that his

exchange with Detective Sutton communicated only a desire to leave the room and

get access to his medication, not to share information about the case.

Our review of the record indicates that the officers acceded to Jackson‘s

desire to stop talking and that Jackson subsequently reinitiated the interview.

Before the start of questioning, Jackson was fully advised of his Miranda rights

and acknowledged that he understood them. After he asked to terminate

questioning, the interviewing detectives stopped their questioning and left the

room. It was only after he asked to speak with the detectives again, and Detective

Sutton confirmed that this was his wish, that the detectives returned. Even then,

Detective Barnes began by asking: ―Did you say you want to talk to us again

Bailey, at your request?‖ After Jackson confirmed, Barnes simply asked, ―Okay

what‘s up,‖ rather than returning to his interrogation questioning. It was Jackson,

not the detectives, who reinitiated the conversation. Furthermore, even if the

detectives reinitiated the conversation after Jackson invoked his right to counsel in

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violation of Edwards, Jackson‘s statements after reinitiating the conversation were

voluntary statements to an innocuous question. (See People v. Bradford (1997) 14

Cal.4th 1005, 1040 [―[I]f the statement made after an Edwards violation is

voluntary, ‗the admissibility of any subsequent statement should turn in these

circumstances solely on whether it is knowingly and voluntarily made.‘ ‖ ].)

Jackson argues that Detective Sutton‘s comments were coercive by

implying that the only way he could get the answers to his questions would be to

speak to the investigators again. ― ‗A confession may be found involuntary if

extracted by threats or violence, obtained by direct or implied promises, or secured

by the exertion of improper influence.‘ ‖ (People v. McWhorter (2009) 47 Cal.4th

318, 347 (McWhorter).) A review of the interview discloses that Detective Sutton

offered Jackson water and responded that he did not know what the detectives

were planning to do and that he could not lawfully administer any medications.

When Detective Sutton asked, ―Do you want them to come in and talk to you

some more?‖ Jackson said, ―No I need to find out what are they, what are they

gonna do man, what is . . .‖ — at which point Detective Sutton asked again, ―Well

I don‘t know, did you want them to come back in and talk to you some more is

that it?‖ Although these statements suggested that Jackson could find out what the

detectives were planning to do by talking to them further, they did not suggest that

talking to the detectives was the only way Jackson could get answers to his

questions. ―Insofar as a defendant‘s claims of involuntariness emphasize that

defendant‘s particular psychological state rendered him open to coercion, this

court has noted that ‗[t]he Fifth Amendment is not ―concerned with moral and

psychological pressures to confess emanating from sources other than official

coercion.‖ ‘ ‖ (People v. Smith (2007) 40 Cal.4th 483, 502.) There is no

indication that any coercive tactics were used against Jackson.

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Nor were the police officers required to readvise Jackson of his Miranda

rights before resuming their questioning. In Duff, supra, 58 Cal.4th 527, the

defendant argued that his

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