People v. PetersonPeople v. Peterson
A jury convicted defendant Scott Lee Peterson of one count of first degree murder for killing his wife, Laci Peterson, and one count of second degree murder for killing their unborn son. It found true the special circumstance that Peterson had committed multiple murders. At the penalty phase, the jury returned a verdict of death. This appeal is automatic. (
Peterson contends his trial was flawed for multiple reasons, beginning with the unusual amount of pretrial publicity that surrounded the case. We reject Peterson’s claim that he received an unfair trial as to guilt and thus affirm his convictions for murder. But before the trial began, the trial court made a series of clear and significant errors in jury selection that, under long-standing United States Supreme Court precedent, undermined Peterson’s right to an impartial jury at the penalty phase. While a court may dismiss a prospective juror as unqualified to sit on a capital case if the juror’s views on capital punishment would substantially impair his or her ability to follow the law, a juror may not be dismissed merely because he or she has expressed opposition to the death penalty as a general matter. (See Witherspoon v. Illinois (1968) 391 U.S. 510; Wainwright v. Witt (1985) 469 U.S. 412.) Here, the trial court
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Guilt Phase Trial
1. Prosecution Evidence
Peterson and Laci Rocha met in San Luis Obispo, where Laci was attending college and Peterson was working in a restaurant. They married in 1997. They opened and ran a restaurant together in San Luis Obispo. In 2000, they moved to Modesto and bought a house. Laci took a job as a substitute teacher, while Peterson ran a start-up fertilizer company named TradeCorp U.S.A. out of a leased warehouse. Some years after the two married, Laci became pregnant; the baby — whom the couple had named Conner — was due in February 2003.1
On December 23, 2002, Laci went grocery shopping around midday. She also had a prenatal medical checkup. In the late afternoon, both Laci and Peterson went to a salon where Laci’s sister, Amy Rocha, worked. Amy mentioned that she had ordered a gift basket for a family member that needed to be picked up the next day by 3:00 p.m. Peterson volunteered to get it for her, as he was going to be golfing nearby. Peterson also invited Amy to dinner, but she declined because she had prior plans. That night, Laci and her mother, Sharon, spoke on the phone and confirmed that Laci and Peterson would join Sharon and Sharon’s longtime partner, Ron Grantski, for dinner the following night, Christmas Eve.
At 10:18 the following morning, a neighbor, Karen Servas, saw the Petersons’ dog, McKenzie, wandering unaccompanied on the street, wearing his leash. Peterson’s truck was gone; Laci’s car was still in their driveway.
At around 5:15 p.m., Peterson called Sharon and asked if Laci was there. He described Laci as “missing.” Sharon suggested he check with friends and neighbors. Peterson called Sharon back shortly afterwards and reported the people he had spoken to had not seen Laci either. Sharon told Grantski to call the police. Officers soon met Peterson, Sharon, and Grantski at a nearby park. Neighbors and other relatives gathered at the park as well. Grantski spoke with Peterson and asked if he had gone golfing that day. Peterson said he had changed his mind and gone fishing instead. Told what time Peterson had gone, Grantski suggested it was an unusually late time to be fishing. Peterson walked off without responding. Peterson told a cousin of Sharon’s and two neighbors that he had been golfing all day. He volunteered to Sandy Rickard, a friend of Sharon’s, that he would not be surprised if the police found blood in his truck because he cut his hands all the time.
Police inspected the Peterson home. There were no signs of forced entry, nothing appeared missing, and Laci’s purse was still there. Peterson told officers he and Laci had watched television that morning, and Laci had planned to walk the dog and go grocery shopping. Peterson decided to go fishing in the San Francisco Bay. He went to his company warehouse where he stored a boat, drove to the Berkeley Marina, fished for two hours, and quit because the day was cold and rainy. He tried calling Laci on the home phone and her cell phone but did not reach her. Peterson got home around 4:30 p.m. He washed his clothes, ate some pizza, and then called Sharon to track down Laci.
Officer Matthew Spurlock asked what time Peterson was fishing. He also asked what Peterson was fishing for and what lure he used. According to Spurlock and Officer Derrick Letsinger, Peterson gave slow and initially noncommittal answers. He “really didn’t give a responsive time” and, when asked what he was fishing for, paused, gave a blank look, and “mumbled some stuff” without really answering. Peterson likewise responded with a blank look when asked about his lure, but after some delay came up with a size and color description.
Detective Allen Brocchini was called to the Peterson home. He found wet towels on top of the washing machine. Peterson explained that he had taken them out so that he could wash the clothes he had worn that day. Inside the
Peterson agreed to a further interview at the Modesto police station. Peterson repeated that Laci had planned to walk the dog and go grocery shopping. For his part, Peterson decided to go fishing because it was too cold to golf. He went to his warehouse, then to the Berkeley Marina around 1:00 p.m., and fished for 90 minutes near an area that was later identified as Brooks Island.2 Peterson did not pack a lunch or stop to eat on the way to or from the marina. On the way back, Peterson called Laci on their home phone and left two messages on her cell phone.3 He dropped off his boat at the warehouse and went home. Peterson told officers that there were no problems in his marriage.
Peterson had a followup interview with Detective Craig Grogan and an investigator from the state’s Department of Justice on Christmas Day, December 25. Peterson explained that he had never fished on the San Francisco Bay before but wanted to test out his boat. He troll fished4 for an hour on the way out to Brooks Island from the marina dock. Peterson suggested Laci might have been robbed of her jewelry by a transient and then kidnapped. He denied being involved in an affair with anyone. Later that day, Peterson called Detective Brocchini to check on the investigation. He asked if the police would be using cadaver dogs5 to search for Laci. Brocchini explained that they would not, because no one assumed Laci was dead.
In the days after Christmas, the Modesto Police Department executed search warrants on the Peterson home and Peterson’s warehouse. Police
At the warehouse, the police inspected the boat and found a pair of pliers under the middle seat. The pliers had hair clamped in their teeth. Subsequent mitochondrial DNA testing of a hair fragment determined that the hair matched a reference sample from Sharon, which meant that its donor had the same maternal lineage as Sharon. The hair did not match Peterson’s.
During the search of the Peterson home, articles that Laci would have touched were collected to give to trailing dogs to enable them to search for Laci’s scent. These included a slipper and a pair of sunglasses. On December 28, four days after Laci disappeared, Trimble, a trailing dog, was presented Laci’s sunglasses at the Berkeley Marina. Trimble alerted to Laci’s scent along a path that led out onto a dock and ended at the water.
On December 30, a woman named Amber Frey contacted the police after a friend advised her that Peterson, who she thought was unmarried with no children, and with whom she had been having a relationship since November, was connected to the disappearance of his pregnant wife. Frey and Peterson had had their first date on November 20 and had immediately become sexually intimate. Their relationship had progressed to the point where Peterson had stayed over at Frey’s home, picked up Frey’s young daughter from daycare, gone to various parties with Frey, alone and with her daughter, picked out a Christmas tree with Frey, and discussed their views on having children. Peterson initially told Frey he had never been married and had no children, but on December 6 a friend of Frey’s discovered otherwise and gave him an ultimatum to tell Frey by December 9 or else she would. On December 9, Peterson explained to Frey that he had in fact been married, but had “lost” his wife, and the upcoming holidays would be his first without her. On December 15, Peterson told Frey he would be in Europe on business through the rest of the month and much of January. On December 23, after Frey asked where she should send him things while he was away, Peterson rented a private mailbox to which Frey could send letters. He called Frey that
After meeting with police, Frey agreed to cooperate and tape future calls from Peterson. On New Year’s Eve, Peterson called Frey from a vigil for Laci, claiming to be in Paris watching fireworks over the Eiffel Tower. He called Frey again on New Year’s Day and in the days after, maintaining the fiction that he was in Europe. On January 3, 2003, when police confronted Peterson with a picture of himself and Frey, Peterson denied that it was him in the photo and that he was having an affair.
On January 6, at the instigation of police, Frey dropped hints that a friend had learned the truth and would tell her in a matter of hours.7 In response, Peterson finally admitted to Frey that he was married to a woman named Laci and had been in Modesto the entire time. The next day, when Frey asked if Peterson had told Laci about her, Peterson said he had and that Laci was “fine” with his having an affair. Later in the month, once news media had made the affair public, Peterson, in an interview aired nationwide, repeated that Laci was fine with his having an affair and said he had disclosed the affair to the police immediately. On February 19, at the direction of police investigators, Frey told Peterson they should stop talking.
In January, after obtaining a warrant, police placed a surveillance camera outside the Peterson home and GPS tracking devices on Peterson’s vehicles, including a series of cars and trucks Peterson rented for a few days at a time. Surveillance data from these devices and visual surveillance by the police showed Peterson driving the approximately 90 miles from his home to the Berkeley Marina at least five times in January, each time using a different vehicle. On January 5, he drove there in a gray Subaru, spent five or ten minutes, and left. On January 6, he returned to the marina in a red Honda and again spent only a few minutes. On January 9, Peterson drove there in a white pickup truck. On January 11, after determining that their cover had been blown, the Modesto Police Department shut down surveillance at the Peterson home. Nonetheless, from tracking data supplied by the automobiles’ manufacturers, police were able to determine that Peterson returned to the marina on January 26 in Laci’s Land Rover and on January 27 in a rented Dodge Dakota.
During the same period, Peterson began to make various changes to his work and living situations. On January 13, Peterson gave 30 days’ notice that he was terminating his warehouse lease, which was not up until October. That
A $500,000 reward was posted by a private foundation for information leading to Laci’s return. For months, no useful leads turned up. Even when potentially promising sightings were reported, Peterson appeared to show little interest. For example, the prosecution presented evidence collected from an authorized wiretap of Peterson’s phone that showed he took days to follow up with police about a possible sighting in Washington, though he told others — including his mother — that he had followed up with police immediately. Peterson similarly told a business associate he was waiting near the airport in case he needed to fly up to Washington, though at the time, Peterson was not near any airport.
In mid-April, a significant storm hit the San Francisco Bay Area. On April 13, after the storm had passed, a couple walking their dog came upon Conner’s badly decomposed body, apparently washed ashore along with other storm debris. The location was just over a mile from the southern tip of Brooks Island. The next morning, Laci’s body was discovered on the shoreline at Point Isabel, south of Conner’s body and again just over a mile from Brooks Island. Laci’s body had barnacles and duct tape on it. From residual clumps of fabric, it was possible to determine that she had been wearing light-colored capris. The clothing was consistent with the recollection of Amy, who testified that Laci was wearing cream-colored pants when she last saw her sister on December 23. It was, however, inconsistent with the recollection of Peterson, who told police that Laci was wearing black pants when he last saw her on December 24. Days later, DNA testing confirmed the identities of the two bodies.
Dr. Brian Peterson (no relation to the Petersons) performed autopsies on both bodies. Laci’s body had several parts missing, including her head, forearms, and one lower leg. Changes to the tissue suggested her body had been in a marine environment. Tidal action and marine animals could explain the missing body parts. Laci’s uterus was still enlarged, her birth canal was closed, and there was no evidence of a Caesarian-section birth, which indicated she had died while still pregnant. Dr. Allison Galloway, a forensic anthropologist given the remains to analyze, testified that Laci had been in water for three to six months. Given the condition of the body, it was not possible to determine a cause of death.
As mentioned, Laci had had a prenatal checkup on December 23. Based on ultrasounds, Conner was at 32 to 33 weeks of gestation. Post-mortem measurements of his bone growth allowed Dr. Greggory DeVore to estimate Conner’s date of death as falling between December 21 and December 24, with an average of December 23. Both Dr. Esther Towder, Laci’s gynecologist who conducted the December 23 checkup, and Dr. Peterson testified that based on his age and health, Conner would have survived had he been born that day.
Dr. Ralph Cheng, a hydrologist with the United States Geological Survey, was contacted by the Modesto Police Department in February, while Laci was still missing, and again in May, after she and Conner had been found. The first time, he was asked to assume that Laci’s body had been dumped with weights into the San Francisco Bay and, based on that assumption, to estimate where the body might be found. The second time, after the bodies had been found, Dr. Cheng was asked to estimate where they might have originated. He was able to estimate a location for Conner near the southern tip of Brooks Island, but no likely location for Laci. Divers searching the bay at Dr. Cheng’s target location were unable to find any relevant evidence.
On April 12, the day before Conner’s body was found, Peterson bought a car using his mother’s name, Jacqueline, as his own, providing a fake driver’s license number, and paying $3,600 in cash. He had grown a goatee and mustache and appeared to have dyed his hair. On April 15, when Sharon called him about the discovery of the (as-yet unidentified) bodies of Conner and Laci, Peterson did not return her call. Believing Peterson might flee, police arrested him on April 18. When arrested, Peterson had nearly $15,000 in cash, foreign currency, two drivers’ licenses (his own and his brother’s), a family member’s credit card, camping gear, considerable extra clothing, and multiple cell phones.
The prosecution introduced evidence concerning the Petersons’ finances. The Petersons’ expenses were high in relation to their current income. TradeCorp U.S.A. had never been profitable, posting operating losses of
In fall 2002, Laci inherited jewelry and, at Peterson’s request, had some of the items appraised. They were valued at more than $100,000. Computers seized from the Peterson home and the warehouse showed e-mails sent from an account bearing the username “slpete1” discussing the sale of jewelry, and eBay records likewise showed Peterson had posted jewelry items for sale. Laci also stood to inherit one-third of the proceeds from the sale of her grandfather’s house, an interest estimated to be worth around $140,000. Laci’s interest would terminate on her death, with no right of survivorship to Peterson, but it was unclear whether Peterson was aware of the limitation; Brent, the cotrustee of the grandparents’ estate, had not told Peterson about the provision.
The prosecution also submitted additional background concerning Peterson’s fishing. Computers seized from the Peterson home and the warehouse showed that someone had conducted searches of classified advertisements for boats on December 7, the day after Peterson learned he would no longer be able to conceal his marriage from Frey. That same day, Peterson called Bruce Peterson (no relation) about a boat for sale. Peterson inspected the boat the next day and bought it on December 9, without the anchors that came with the boat.
Peterson never registered the boat, nor did he ever mention the purchase to his father; to Grantski, an avid fisherman who had invited Peterson to fish several times; to other members of the Rocha family; or to his friend Gregory Reed, with whom he frequently discussed fishing. Review of the seized computers’ browser histories also showed someone conducting searches on December 8 for boat ramps on the Pacific Ocean, then examining nautical charts, currents, and maps for the Berkeley Marina and San Francisco Bay, including the area around Brooks Island. There were also visits to fishing-related websites.
December 24, the day Peterson said he was fishing, was gray, damp, and cold with a bit of wind. Few people were at the Berkeley Marina. When questioned by police, Peterson would not say what he was hoping to catch, but the fishing searches performed from his computer earlier in the month had included searches relating to sturgeon and striped bass. Angelo Cuanang, a published author on fishing in the San Francisco Bay who was accepted by the court as an expert fisherman, testified that Brooks Island was the wrong place to seek sturgeon, which congregated in a different part of the bay that time of year. Sturgeon also preferred live bait to lures, and Peterson’s rod was too weak to catch them. Anchoring was essential to reel in sturgeon; the
The prosecution’s theory was as follows: Peterson killed Laci sometime on the night of December 23 or morning of December 24. On the morning of the 24th, Peterson let their dog McKenzie out with his leash on to make it appear something had happened while Laci was walking him. He wrapped Laci’s body in a tarp in the bed of his truck, covered her with the patio umbrellas, drove to the warehouse, and then moved her body into his boat.8 He drove to the Berkeley Marina, motored out to an area near Brooks Island, and slipped her body, attached to homemade concrete weights like the homemade anchor Peterson had made, into the bay.9 Peterson then returned to Modesto, dropped off the boat at the warehouse, put the boat cover out back under a leaky gas blower so that any scent would be obscured, washed his clothes, and proceeded with the ruse that Laci was missing, hoping her body would never be discovered.
2. Defense Evidence
The defense argued the police had not diligently pursued whether a person or persons other than Peterson were more likely responsible for Laci’s disappearance and murder. The defense presented evidence that a burglary had occurred on the Petersons’ street the week of her disappearance and argued that the police failed adequately to follow up on whether that burglary had any connection to Laci’s disappearance. It also presented evidence that a stranger had gone to several houses on December 23 asking for money and, one neighbor thought, casing houses for burglaries, and so might have had something to do with her disappearance. Testimony was presented that the same neighbor, walking with a police officer on Christmas Day to look for the stranger, had seen a pair of sandals lying in the road 150 feet from the Petersons’ home; the neighbor wondered at the time if they might have any connection to Laci’s disappearance, but the officer just left them there. To support the possibility of a third party’s involvement, the defense challenged the prosecution’s theory that Conner died December 23 or 24, presenting its own expert who testified based on ultrasounds and other evidence that Conner lived until after Christmas.
The defense offered explanations for the circumstances of Peterson’s behavior in April. His use of his mother’s name to purchase a car was at her suggestion, to avoid having it impounded. He had large amounts of cash because she gave it to him to reimburse him for money erroneously withdrawn from his bank account rather than hers. Finally, he had his brother’s driver’s license because the club where he was going to golf that day gave discounts for local residents such as his brother.
3. Guilt Phase Verdict
The jury found Peterson guilty of murder in the first degree for killing Laci and murder in the second degree for killing Conner. (See
B. Penalty Phase Trial
1. Prosecution Evidence
Peterson had no criminal record nor any history of violent acts. At the penalty phase, the prosecution relied exclusively on the circumstances of the crime and victim impact evidence. Four members of Laci’s immediate family — her mother, Sharon; her stepfather, Ron Grantski; her brother, Brent; and her sister, Amy — testified. They described who Laci was as a person, shared photographs, memories, and vignettes from her life, and conveyed the grief and loss they each felt after the deaths of Laci and her unborn child.
2. Defense Evidence
Through friends, family, neighbors, teachers, coworkers, employers, and other witnesses, the defense offered evidence that Peterson had been a kind
According to the defense, Peterson was always calm with Laci. Indeed, witnesses testified Peterson was calm at all times — at work, on the golf course, and in his dealings with all those around him.
Friends and family testified to the impact the trial had had on Peterson’s relatives and indicated they believed, if sentenced to life in prison, Peterson could make a positive impact on the lives of others.
In closing argument, defense counsel described Peterson’s life as one worth saving and argued that lingering doubt about Peterson’s guilt should also weigh in favor of a life verdict.
3. Penalty Phase Verdict and Sentence
The jury returned a death verdict. The court denied a motion for new trial, denied the automatic motion for modification of the verdict, and imposed a sentence of death.
II. DISCUSSION
A. Excusal of Prospective Jurors for Cause Based on Questionnaire Answers Reflecting Opposition to the Death Penalty
Peterson claims errors occurred during every phase of his trial. We begin with his challenge to the manner in which the jury was chosen. During jury selection, multiple prospective jurors were excused based solely on written questionnaire responses indicating they were personally opposed to the death penalty. Peterson contends that, absent any indication these jurors would be unable to faithfully and impartially apply the law, it was error to remove them from the juror pool.
On this initial point, Peterson is correct. Long-standing United States Supreme Court precedent makes clear that prospective jurors may not be disqualified from service in a capital case solely because of their general objections to the death penalty. (See Witherspoon v. Illinois, supra, 391 U.S. at pp. 518–523 (Witherspoon); Wainwright v. Witt, supra, 469 U.S. at p. 424 (Witt).) That is just what happened here. And as this court has repeatedly
Jury selection in a capital case typically begins with prospective jurors filling out written questionnaires. These questionnaires allow the court and counsel to explore potential jurors’ views and past experiences that might affect how they evaluate the evidence to be presented. They also address views a juror might have concerning the death penalty, in the event a defendant is found guilty and findings are made that would render him or her eligible to be punished by death. The questionnaire in this case, based on proposals from the parties and as approved by the court, contained roughly 120 questions on a range of topics, including 13 directed to potential jurors’ views on the death penalty. To supplement the picture painted by answers to written questionnaires, the court and counsel may ask prospective jurors individual questions orally to clarify the nature of any views and further evaluate their ability to serve, a process known as voir dire. (See People v. Armstrong, supra,
Hovey v. Superior Court (1980) 28 Cal.3d 1, 80-81.)
Prospective jurors may be excused from jury service through one of two primary mechanisms. First, the court may excuse jurors for cause based on a determination that bias or another substantial impairment disqualifies them from service. In a capital case, prospective jurors are subject to excusal if they would be unable or unwilling to impose the death penalty (or, conversely, if they would be unable or unwilling to vote against death) should the defendant be found guilty. (See, e.g., Ross v. Oklahoma (1988) 487 U.S. 81, 83-86; Lockett v. Ohio (1978) 438 U.S. 586, 595-596.) Second, prospective jurors may be excused by the parties by means of peremptory challenge. Each party is given a number of peremptory strikes set by law and allowed to cull from the remaining pool, up to the limit of their strikes, additional potential jurors they believe would be less favorably disposed to their side and to the verdict they seek. The result of this process is a final jury of 12, plus alternates to guard against the need to excuse one or more jurors during trial itself.
We are concerned here only with the first mechanism, excusal for cause. The question is whether the process the trial court employed to remove jurors
More than half a century ago, the United States Supreme Court held in Witherspoon, supra, 391 U.S. at page 522, that “a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” The court explained the reason for this rule: “A man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror. But a jury from which all such men have been excluded cannot perform the task demanded of it,” namely, to “express the conscience of the community on the ultimate question of life or death.” (Id. at p. 519.) Put differently, “a criminal defendant has the right to an impartial jury drawn from a venire that has not been tilted in favor of capital punishment by selective prosecutorial challenges for cause” based solely on general opposition to the death penalty. (Uttecht v. Brown (2007) 551 U.S. 1, 9.)
The law also recognizes, however, that states must have a way to ensure capital cases are tried before juries “able to apply capital punishment within the framework state law prescribes.” (Uttecht v. Brown, supra, 551 U.S. at p. 9.) In Witt, supra, 469 U.S. 412, the court held that trial courts may excuse a prospective juror for cause based on the juror‘s views of capital punishment if those views “would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” (Id. at p. 424, quoting Adams v. Texas (1980) 448 U.S. 38, 45; accord, People v. Jones (2017) 3 Cal.5th 583, 614.) But to protect the right to trial by impartial jury, a trial court may not remove jurors for cause based on views that do not substantially impair their ability to serve. “[I]f prospective jurors are barred from jury service because of their views about capital punishment on ‘any broader basis’ than inability to follow the law or abide by their oaths, the death sentence cannot be carried out.” (Adams, at p. 48; accord, Uttecht, at p. 9; Jones, at p. 614.)
Taken together, Witherspoon and Witt make clear that prospective jurors may not be disqualified from service simply because they object to the death penalty as a general matter. “[N]ot all who oppose the death penalty are subject to removal for cause in capital cases; those who firmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law.” (Lockhart v. McCree (1986) 476 U.S. 162, 176.) Nor may a juror be disqualified from service because he or she might “impose a higher threshold before concluding that the death penalty is appropriate.” (People v. Stewart (2004) 33 Cal.4th 425, 447.) “The critical issue is whether a life-leaning prospective juror — that is, one generally (but not invariably) favoring life in prison instead of the death penalty as an appropriate punishment — can set aside his or her personal views about capital punishment and follow the law as the trial judge instructs.” (People v. Thompson (2016) 1 Cal.5th 1043, 1065People v. Armstrong, supra, 6 Cal.5th at p. 750; Stewart, at p. 447; People v. Lewis (2001) 25 Cal.4th 610, 633.)
Here, Peterson directs our attention to a group of prospective jurors who were excused based solely on their questionnaire answers, without further questioning by the court or counsel. When dismissal is based solely on the written record, we independently review whether that record establishes that a juror was categorically unable to serve. (People v. Woodruff, supra, 5 Cal.5th at p. 743; People v. Riccardi, supra, 54 Cal.4th at p. 779.) ” ‘[W]hen an excusal was based on questionnaire responses alone, the excusal may be upheld if those answers, “taken together,” clearly demonstrate the juror‘s unwillingness or inability, because of attitudes about the death penalty, to perform his or her duties in a capital trial.’ ” (Riccardi, at p. 779.)
The record reveals that many jurors were summarily excused based on their responses to a single question, No. 109: “How would you rate your attitude towards the death penalty?” That question gave prospective jurors six possible answers — Strongly Oppose, Oppose, Weakly Oppose, Weakly Support, Support, and Strongly Support — and spaces to mark which one of these most closely reflected their general attitude. Although the prospective jurors’ answers to this question could well have prompted further inquiry during voir dire, these answers alone offered little insight into the controlling issue for purposes of their qualification to serve as jurors — whether they, whatever their general views on the death penalty might be, could accept and follow the court‘s instructions and be able to choose either life or death based on a sincere consideration of any aggravating or mitigating circumstances. (People v. Armstrong, supra, 6 Cal.5th at p. 750.) On that issue, a second question, No. 115, was more illuminating. It asked: “Do you have any moral,
Peterson asks us to focus in particular on 13 prospective jurors who were excused without further questioning after expressing some degree of opposition to the death penalty in response to question No. 109, even though these same jurors also answered “no” to question No. 115 — meaning that, so far as their questionnaires revealed, none held views so strong that they would be unable to vote for death if the circumstances warranted. The trial court dismissed these 13 prospective jurors as not qualified to serve without, insofar as the record reveals, ever probing their views on the ultimate issue, whether they were substantially impaired.
Take, for example, Prospective Juror No. 4841. Asked in her questionnaire her feelings toward the death penalty, the juror wrote: “Have no feeling.” Two questions later, asked to rate her attitude toward the death penalty and given the aforementioned range of options from “Strongly Oppose” to “Strongly Support,” she checked “Strongly Oppose.” But in response to the additional question, “Do you have any moral, religious, or philosophical opposition to the death penalty so strong that you would be unable to impose the death penalty regardless of the facts?” (italics added), the prospective juror checked “No.” Indeed, the juror implicitly confirmed that in some instances she could impose the death penalty; asked whether it would “be difficult for you to vote for the death penalty if the crime was the guilty party‘s first offense?,” she checked “No.”
Discussing the juror and whether counsel would stipulate to her excusal, the court said: “Reading these [questionnaire answers], I am of the opinion this juror wouldn‘t qualify. [¶] Look at 4841. Go to that one. 19 — page 19, answer 109. Strongly opposes the death penalty. I could dispose of this juror in a couple of questions. So if you don‘t want to stipulate, fine. But if they oppose the death penalty, they are not qualified under Wainwright [v.] Witt.” That afternoon, the trial court read off the juror‘s answer to the attitude question, No. 109, again noting that she had checked, “Strongly Opposed.” On that basis, he concluded “this juror . . . would not qualify” and excused her without any questioning.
In response to these same questions, Prospective Juror No. 6960 said of the death penalty, “I wish it was not a thing needed” and checked that she opposed (not that she strongly opposed) the death penalty. But she too
Prospective Juror No. 16727 indicated he was strongly opposed to the death penalty based on his “spirituality,” but his opposition was not such that he could never impose it no matter the facts. His questionnaire indicated that, if the crime was a defendant‘s first offense, whether it would be difficult to vote for death would “[d]epend[] on the [e]vidence” — implying the juror could, in some instances, vote for death even for a first-time offender. The trial court, noting that the juror wrote he was “against the death penalty” and checked that he “strongly oppose[d]” it, said, “I don‘t think this person would qualify because of his answers, and he‘s opposed to the death penalty. So I would be inclined to excuse him. Over the objection of [defense counsel].” After defense counsel confirmed his “vehement objection,” the court excused the juror without questioning him: “[J]uror number 16727 is excused because he is opposed to the death penalty.”
Again, these were not isolated occurrences. The trial court excused more than a dozen prospective jurors based solely on their written opposition to the death penalty (question No. 109), without also considering their answers to question No. 115, which reflected the jurors’ ability to impose the death penalty in some circumstances. Perhaps further questioning might have established that one or more of these jurors in truth could not conscientiously consider death as an option. But no such questioning occurred here, because the trial court rejected counsel‘s requests to question these prospective jurors and declined to ask any questions itself. As a result, these jurors were excused for cause based on a written expression of opposition to the death penalty, without more.
We do not suggest that a trial court errs any time it exercises its discretion to limit counsel‘s opportunity to question prospective jurors directly. In a case with a venire of this size — nearly 1,500 prospective jurors — tight controls on voir dire were necessary and inevitable. But a court must still ensure that, by whatever means, sufficient inquiry is made so only those properly excusable under the governing standards are dismissed for cause: ” ‘Before granting a challenge for cause, the “court must have sufficient information regarding the prospective juror‘s state of mind to permit a reliable determination as to whether the juror‘s views would ’ “prevent or substantially impair” ’ ” performance as a capital juror. [Citation.] Trial courts must therefore make “a conscientious attempt to determine
The People concede Peterson‘s claims are all preserved because at the time of trial no objection was required to preserve claims of Witt/Witherspoon error. (See People v. Jones (2013) 57 Cal.4th 899, 914-915 [describing evolution of the forfeiture rule for such error].) In any event, the record shows defense counsel consistently resisted these dismissals, arguing on numerous occasions that just because a juror indicated opposition to the death penalty, that did not mean he or she could not vote for death in appropriate circumstances. These objections gained no traction with the trial court, and ultimately the defense had no choice but to accede to the for-cause standard the court had adopted: “Obviously[,] I believe that opposition to the death penalty should not be a for-cause challenge. The Court has ruled on it. I‘m not going to continue to raise it each time. Although I want the record to reflect that I am submitting [subject to a standing objection] on the Court‘s previous rulings.”
Crucially, “it is the adversary seeking exclusion who must demonstrate, through questioning, that the potential juror lacks impartiality.” (Witt, supra, 469 U.S. at p. 423; accord, People v. Stewart, supra, 33 Cal.4th at p. 445.) It is thus incumbent on the party seeking excusal, or the court, to ask questions sufficient to differentiate between mere opposition and an actual inability to impose the death penalty. The exclusion of prospective jurors as impaired, in the absence of a record demonstrating they were impaired, is a violation of the Sixth Amendment right to an impartial jury. (See People v. Woodruff, supra, 5 Cal.5th at pp. 744-745 [error not to ask clarifying questions to determine whether written indication of opposition to the death penalty would impair juror‘s ability to serve]; People v. Riccardi, supra, 54 Cal.4th at p. 782 [same]; Stewart, at pp. 449-452 [same].)
Even though neither the court nor the prosecution questioned these 13 excused jurors, the People argue that all 13 dismissals are supported by substantial evidence in the record. Given the absence of questioning, the People rely solely on the jurors’ questionnaire responses. In addition to the opposition to the death penalty reflected in the jurors’ answers to question No. 109, the People point to other responses to questions about the jurors’ death penalty attitudes — for example, that in many cases their views had not changed in the last 10 years, or that some jurors anticipated it would be difficult for them to choose death for a first-time offender.
There are two difficulties with the People‘s response. The first is that it misstates the standard of review; as discussed, when dismissal for cause
In sum: The law is clear that a capital jury may include those who, as an abstract matter, oppose — or even strongly oppose — the death penalty, though a prosecutor might seek to limit the number of such jurors. It may include those who favor — or even strongly favor — the death penalty, though defense counsel might seek to limit their numbers. Eligibility for service does not depend on a juror‘s abstract views of capital punishment. It depends, instead, on the prospective juror‘s willingness and ability to follow a court‘s instructions and conscientiously consider both penalties in light of the evidence presented by each side. This is the meaning of the guarantee of an impartial jury, drawn from the community at large, for the trial of a defendant facing the death penalty.
Under that standard, the questionnaire answers submitted by these prospective jurors did not establish they were unfit to serve. Voir dire might have painted a different picture, with the court and counsel through oral questions exploring whether each individual juror had the necessary ability and willingness to consider both life and death as options. But for these 13 jurors, there was no such questioning. Thus, we know only that in the abstract they opposed the death penalty. The record made in the trial court does not offer a basis sufficient to uphold excusal of these jurors for cause under the clear standards laid out by the United States Supreme Court.
The People contend these errors in jury selection should be treated as harmless. But precedent requires otherwise. Witherspoon itself held “that a sentence of death cannot be carried out” if it has been imposed by a jury chosen after disqualifying prospective jurors for having “voiced general objections to the death penalty.” (Witherspoon, supra, 391 U.S. at p. 522.)
In their brief, the People asked us to reconsider our cases, including principally People v. Riccardi, supra, 54 Cal.4th 758, that hold the erroneous exclusion of a juror based on death penalty views can never be harmless. But at oral argument, the People acknowledged that Gray v. Mississippi, supra, 481 U.S. 648 is controlling and that error of this sort requires automatic reversal of the penalty judgment. (See People v. Armstrong, supra, 6 Cal.5th at p. 764.) Riccardi is but one in a long line of cases, dating back to Witherspoon itself, that have held that reversal is required.
In applying these rules here, we break no new ground; the governing law was as clear at the time of trial as it is today. Indeed, in a case decided several months before jury selection began in this case, we pointedly reminded trial judges about the critical importance of carefully adhering to the well-settled standards and procedures for death-qualifying a jury: “In view of the extremely serious consequence — an automatic reversal of any ensuing death penalty judgment — that results from a trial court‘s error in improperly excluding a prospective juror for cause during the death-qualification stage of jury selection, we expect a trial court to make a special effort to be apprised of and to follow the well-established principles and protocols pertaining to the death qualification of a capital jury. As the present case demonstrates, an inadequate or incomplete examination of potential jurors can have disastrous consequences as to the validity of a judgment. The error that occurred in this case — introducing a fatal flaw that tainted the outcome of the penalty phase even before the jury was sworn — underscores the need for trial courts to proceed with special care and clarity in conducting voir dire in death penalty trials. The circumstance that the error in this case was committed by a trial judge with substantial experience in criminal law renders the voir dire examination at issue all the more inexplicable and disappointing.” (People v. Heard, supra, 31 Cal.4th at pp. 966-967.)
Peterson, however, asks us to go one step further. He argues that the errors in jury selection affected all parts of his trial, not just the penalty phase, and rendered the results of the jury‘s guilt phase deliberations unreliable as well. He accordingly asks that we set aside not only his sentence but the murder convictions that preceded it. Both the United States Supreme Court and this court have previously declined to take this additional step, and Peterson offers no persuasive ground for doing so here.
The United States Supreme Court in Witherspoon rejected the argument that errors in death qualifying a jury necessarily undermine its guilt phase verdict in addition to its penalty judgment. Invoking surveys and academic studies, Witherspoon had argued that “the kind of juror who would be unperturbed by the prospect of sending a man to his death . . . is the kind of juror who would too readily ignore the presumption of the defendant‘s innocence, accept the prosecution‘s version of the facts, and return a verdict of guilt,” and thus his jury was biased as to guilt too. (Witherspoon, supra, 391 U.S. at pp. 516-517; see id. at p. 517, fns. 10, 11.) The high court was unpersuaded. While the court considered it “self-evident” that errors in death qualification would undermine the jury‘s impartiality “in its role as arbiter of the punishment to be imposed” (id. at p. 518), Witherspoon‘s studies failed to show that the same was true of the jury in its different
Peterson candidly acknowledges this precedent, but asks us to distinguish it on the ground that Witherspoon and subsequent cases considered only whether the Sixth and Fourteenth Amendments to the United States Constitution require a guilty verdict be set aside; Peterson argues the Eighth Amendment compels a different result. But Peterson‘s Eighth Amendment claim “appears to be merely a restatement of [the] Sixth Amendment claim[].” (People v. Johnson (1992) 3 Cal.4th 1183, 1213.) Though couched in terms of Eighth Amendment reliability, as opposed to Sixth Amendment representativeness, it depends on the identical premise — that the exclusion of jurors generally opposed to the death penalty tilts the venire to an unacceptable degree in favor of the prosecution on questions of guilt as well as sentence. On the record before it, the court in Witherspoon was unable to say that even systematic exclusion of those opposed to the death penalty “substantially increase[d] the risk of conviction.” (Witherspoon, supra, 391 U.S. at p. 518.) The 1984, 1986, and 1994 studies Peterson cites do not lead to a different conclusion. He relies on research analyzing how the constitutionally accepted process of “death qualification” — i.e., the dismissal of potential jurors who would either always or never vote for death — alters the willingness to convict. These studies do not establish that excluding one — or even 13 — prospective jurors, from a pool of nearly 1,500, “substantially increase[s] the risk of error in the factfinding process.” (Beck v. Alabama (1980) 447 U.S. 625, 632.) Nor does Peterson point to any evidence in the record to support this claim.
Peterson argues that even if the errors in jury selection do not require reversal of his convictions, there were several other errors that do command that result. We therefore turn to whether any of these asserted errors in the guilt phase trial requires that Peterson‘s murder convictions be set aside.
Peterson was arrested and charged in Stanislaus County, where he and Laci had lived. He moved for a change of venue, arguing that a fair and impartial trial could not be had in Stanislaus because of the extensive publicity the case had received. The Stanislaus County Superior Court granted the motion and, after considering the alternatives recommended by the Administrative Office of the Courts,11 including Alameda, Santa Clara, and Orange Counties, selected San Mateo County as the best venue. It found that local media coverage and the degree of community involvement in the case would preclude a fair trial in Stanislaus, but any county of sufficient size outside the Central Valley could provide a fair trial. San Mateo was selected based on its facilities and its relative proximity compared to Southern California, which would minimize travel for the many Modesto-area witnesses.
Jury selection began in March 2004. In May 2004, Peterson filed a second change of venue motion, this time seeking transfer of the case to Los Angeles County. He argued that examination of questionnaire answers from prospective jurors showed, once again, that extensive pretrial publicity was affecting the juror pool. The trial court considered the parties’ papers and arguments and made a detailed oral ruling denying a further venue change. Peterson contends the denial of his second motion violated his federal constitutional right to trial by an impartial jury (
In a series of cases in the 1960s, the United States Supreme Court recognized that media publicity about a criminal trial could in some circumstances deprive the defendant of the right to trial by an impartial jury. (Sheppard v. Maxwell (1966) 384 U.S. 333; Estes v. Texas (1965) 381 U.S. 532; Rideau v. Louisiana (1963) 373 U.S. 723; Irvin v. Dowd (1961) 366 U.S. 717; see generally Skilling v. United States (2010) 561 U.S. 358, 378-381.) In the wake of these decisions, to ensure “the requirement basic to our jurisprudence that every person accused of crime is entitled to a trial by a fair and impartial jury” (Maine v. Superior Court (1968) 68 Cal.2d 375, 384), this court adopted a new standard for pretrial change of venue motions: Such a motion should ” ‘be granted whenever it is determined that because of the dissemination of potentially prejudicial material, there is a reasonable likelihood that in the absence of such relief, a fair trial cannot be
Over time, we have elaborated on the prophylactic Maine standard and identified a series of considerations courts must weigh to ensure the constitutional right to a fair trial is preserved. “The factors to be considered are the nature and gravity of the offense, the nature and extent of the news coverage, the size of the community, the status of the defendant in the community, and the popularity and prominence of the victim.” (People v. Harris (1981) 28 Cal.3d 935, 948; accord, e.g., People v. Rices (2017) 4 Cal.5th 49, 72.) “On appeal, the defense bears the burden of showing both error and prejudice. It must establish a reasonable likelihood both that a fair trial could not be had at the time of the motion, and that the defendant did not actually receive a fair trial.” (People v. Smith (2015) 61 Cal.4th 18, 39; see People v. McCurdy (2014) 59 Cal.4th 1063, 1075.) Alternatively, in rare and “exceptional cases,” a defendant may show circumstances so ” ‘extraordinary’ ” that a court may assume no fair trial could be had. (People v. Prince (2007) 40 Cal.4th 1179, 1216Smith, at p. 39; McCurdy, at p. 1075.) As dictated by Sheppard v. Maxwell, supra, 384 U.S. at page 362 and Maine v. Superior Court, supra, 68 Cal.2d at page 382, however, we will independently review all the circumstances to determine whether there was a reasonable likelihood of an unfair trial. (Smith, at p. 39; McCurdy, at p. 1075.)
Conceding that the other factors were “largely neutral,” Peterson rests his argument that denial of a second change in venue was error on a single consideration, the nature and extent of pretrial publicity. This case was the subject of massive, worldwide media attention. Peterson asserts, and the People do not dispute, “that the combination of print media, radio coverage, television and cable and internet coverage made this perhaps the most widely covered trial in American history.” The trial judge remarked, “The only place you could send this case probably where they wouldn‘t [have] hear[d] about it — I‘m not so sure about that — would be send it to Mars, you know. That‘s the only place where you could try this case where nobody would know anything about it. It‘s been all over the world.” We also take as a given that much of this publicity portrayed Peterson in a negative light. We nonetheless find no error in the trial court‘s denial of Peterson‘s second change of venue motion.
Preliminarily, we reject Peterson‘s argument that when unfavorable publicity reaches the saturation level of this case, any denial of a change of venue
In similar cases, courts have held that a change of venue motion may be denied if the change would be futile: “Where pretrial publicity has been geographically widespread and pervasive . . . , a court may deny change of venue on the sensible ground that it would do no good.” (People v. Venegas (1994) 25 Cal.App.4th 1731, 1738.) For cases of a certain profile, it would be “speculation to suppose the results of jury selection would have been significantly different in any county. The media report local trials of notorious crimes in all counties. People read newspapers and watch television” — and, we may now add, use the Internet — “in all counties.” (People v. Cooper (1991) 53 Cal.3d 771, 807 Manson family, the Court of Appeal wrote: “It is patently clear that the crimes charged, as well as the identity and the involvement of appellants, permeated every corner of this state with varying degrees of intensity. The ubiquity of media coverage made any such differential one of insignificant degree. A change of venue offered no solution to the publicity problem. Even if venue had been changed, nothing could have prevented the public media from swinging its attention to that place. The magnetic pull of such notorious cases is compelling.” (People v. Manson (1976) 61 Cal.App.3d 102, 176-177; see People v. Davis (2009) 46 Cal.4th 539, 578-579.)
The same is true here. Precisely because this case was the subject of such widespread media attention, it is unclear what purpose a second change of venue would have served. The publicity the Peterson trial generated, like the trials of O.J. Simpson, the Manson family, and any number of other so-called trials of the century before them, was intrinsic to the case, not the place. This was even more true than in earlier times because, as Peterson rightly notes, his trial followed the explosion of cable television and the Internet as sources of information, facilitating nationwide coverage of the case. For these reasons, as the trial court aptly observed, “[i]t is speculation to suppose [the] results of jury selection would be any different anywhere else.” Media attention followed this case from Stanislaus County to San Mateo County.
Against this conclusion, Peterson relies on survey statistics measuring the levels in Los Angeles County of awareness and prejudgment of the case, but those statistics do not support his argument. First, the surveys did not include San Mateo, so no direct comparisons can be drawn between Los Angeles and San Mateo. Second, the two other Bay Area counties surveyed, Alameda and Santa Clara, generally showed no statistically significant differences from Los Angeles, although all three counties were statistically significantly different from Stanislaus, where the case was originally pending. This led Peterson’s own expert to opine, in support of moving the case from Stanislaus, that for a fair trial the “best three counties that are [statistically] fairly close are Los Angeles, Alameda, and Santa Clara County.” Third, the statistics derive from a survey taken a full year before the second change of venue motion and do not show how prejudgment levels would have changed if the case were transferred to Los Angeles, and with it the national media spotlight. (See People v. Davis, supra, 46 Cal.4th at p. 575 [“Because it is impossible to control heightened media attention in any new venue, it also is virtually impossible to prevent the knowledge and prejudgment rates for potential jurors living in a new venue from increasing after the change of venue has occurred“].)
Instead, in a high-profile case such as this one, provided a sufficiently large pool is available — and we agree with the trial court that San Mateo’s 700,000-plus residents provided such a pool — the better answer is not to change venue yet again but to rigorously vet potential jurors to screen out those tainted and irrevocably biased by pretrial publicity, to find 12, plus alternates, who can decide only on the evidence admitted at trial. Almost inevitably even those qualified for potential service by a court may have had some prior exposure to the case, but “[p]rominence does not necessarily produce prejudice, and juror impartiality, we have reiterated, does not require ignorance.” (Skilling v. United States, supra, 561 U.S. at p. 381.) What matters is whether each prospective juror can ” ‘lay aside his [or her] impression or opinion and render a verdict based on the evidence presented in court.’ ” (People v. Harris, supra, 28 Cal.3d at p. 950, quoting Irvin v. Dowd, supra, 366 U.S. at p. 723.)
The trial court here did just this. Indeed, defense counsel himself acknowledged, “I think the court has exercised Herculean efforts in trying to get a fair panel here.” Nearly 1,500 prospective jurors were scrutinized. (See People v. Famalaro (2011) 52 Cal.4th 1, 30 [“The
Peterson argues that the seated jurors’ declarations of impartiality should be rejected based on his survey data drawn from the venire as a whole. We agree that “the juror’s assurances that he [or she] is equal to this task cannot be dispositive of the accused’s rights.” (Murphy v. Florida, supra, 421 U.S. at p. 800.) But Peterson offers no sound basis to believe the jurors’ assurances in this case were insincere. Almost every prospective juror had been exposed to publicity about the case, but this is unsurprising for a case Peterson describes as the most publicized in American history, and would have been unlikely to change much in any other county. According to Peterson’s review of juror questionnaires filled out before the second motion, 43 percent of prospective jurors (426 of 998) had formed a preliminary opinion that Peterson was guilty, and 19 percent (190 of 998), roughly one in five, would not be able to set aside that view. But this still means that, by the time jury selection was complete, the parties would have had well in excess of 1,000 avowedly impartial jurors to choose from. “When, as here, there is a ‘large, diverse pool of potential jurors, the suggestion that 12 impartial individuals could not be empanelled is hard to sustain.’ ” (People v. Famalaro, supra, 52 Cal.4th at p. 23, quoting Skilling v. United States, supra, 561 U.S. at p. 382.) Our confidence in the fairness of the actual jury rests as well on our independent review of their voir dire, during which the parties and court carefully vetted them to ferret out bias. (See Famalaro, at p. 31.) Peterson has not demonstrated the trial court could not, and did not, find 12 impartial individuals. His claim that he was denied his right to trial before a fair jury is without merit.12
C. Admission of Dog Scent Trailing Evidence
Before trial, the court held an
Consistent with the trial court’s ruling, dog handler Eloise Anderson, a member of the Contra Costa County Sheriff’s Department search and rescue team, testified at trial about scent trailing she conducted at the Berkeley Marina with her dog Trimble. Anderson reported to the marina with Trimble on December 28, 2002, four days after Laci’s disappearance. Anderson was provided a glasses case containing a pair of Laci’s sunglasses and asked to work with her dog to determine whether any trail of Laci’s scent could be detected. The marina harbor had two separate access points where someone might enter, so Anderson had Trimble check each entry point. Wearing rubber gloves to conceal her own scent, Anderson opened the glasses case to expose the sunglasses inside, presented the case with the sunglasses to Trimble, and gave a trailing command. In the first location, Trimble responded with a “no scent trail” signal. In the second location, Trimble “lined out,” pulling her harness line taut, with level head, and taking Anderson from an area near the parking lot down one of the marina piers to a pylon on the pier where a boat could have been tied, then giving Anderson an “end of trail” signal.
When admission of expert testimony relating the use of novel scientific methods or techniques is at issue, the proponent of the evidence must demonstrate the technique’s reliability through testimony from an expert qualified to opine on the subject. The technique’s reliability, in turn, depends on a showing that it has achieved general acceptance among practitioners in the relevant field. Finally, the proponent of the evidence must show any procedures necessary to ensure the technique’s validity were properly followed in the given case. (Kelly, supra, 17 Cal.3d at p. 30.) The purpose of these threshold requirements — commonly referred to as the Kelly test — is to protect against the risk of credulous juries attributing to evidence cloaked in scientific terminology an aura of infallibility. (Id. at pp. 31–32.)
Not every subject of expert testimony needs to satisfy the Kelly test. Courts determining whether Kelly applies must consider, first, whether the technique at issue is novel, because Kelly ” ‘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.’ ” (People v. Jackson (2016) 1 Cal.5th 269, 316 (Jackson).) Second, courts should consider whether the technique is one whose reliability would be difficult for laypersons to evaluate. 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.’ ” (Jackson, at p. 316.) Conversely, no Kelly hearing is needed when “[j]urors are capable of understanding and evaluating” the reliability of expert testimony based in whole or in part on the novel technique. (Jackson, at p. 317.)
Several decades ago, in People v. Craig (1978) 86 Cal.App.3d 905 (Craig), addressing an issue then of first impression in California, the Court of Appeal concluded no Kelly hearing was needed before introducing dog-trailing evidence. The court explained that dog trailing does not involve standardized techniques and inanimate, fungible instruments whose accepted use in the scientific community may be established, but individual dogs, whose “ability and reliability [should] be shown on a case-by-case basis.” (Craig, at p. 915Kelly does not apply; the evidence is admissible if proper foundation is laid concerning the present ability of a particular well-trained dog to trail a human. This “is a fact which, like other facts, may be proven by expert testimony.” (Ibid.)
When this court first addressed these issues in Jackson, supra, 1 Cal.5th 269, we endorsed the general approach of Craig and Malgren. We agreed that unlike the sorts of scientific evidence a juror might uncritically accept, for which a threshold Kelly hearing should be held, “[s]cent trailing evidence is not so foreign to everyday experience that it would be unusually difficult for jurors to evaluate. Jurors are capable of understanding and evaluating testimony about a particular dog’s sensory perceptions, its training, its reliability, the experience and technique of its handler, and its performance in scent trailing” in a given case. (Jackson, at p. 317Id. at p. 320.)
In discussing the necessary foundation, we adopted the Malgren factors with one modification. A proponent must establish as background qualifications the adequacy of the handler’s and dog’s training and supply evidence of the dog’s reliability in trailing humans. (Jackson, supra, 1 Cal.5th at pp. 321–322Craig and Malgren) by being allowed to sniff the beginning of a known trail or (as in Jackson) by being “presented with a scent article” and then asked to smell for a corresponding trail of the same scent. (Jackson, at p. 322Craig, Malgren, and People v. Gonzales (1990) 218 Cal.App.3d 403, 409 (Gonzales) — the need for some independent evidence tending to confirm that a person found at the end of the trail the dog followed was indeed the person who left the scent trail and supplied the initial scent. (Jackson, at p. 321.) We concluded the remaining Malgren condition for admissibility — evidence the source of the initial scent had not become stale or contaminated — was essentially duplicative of the other elements and thus need not be shown independently. “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.” (Jackson, at p. 325Malgren requirements ordinarily will suffice to support admission of dog-trailing evidence. (See People v. Westerfield (2019) 6 Cal.5th 632, 706.)
As in Jackson, we conclude the trial court did not err in declining to subject the dog-trailing evidence to the threshold Kelly test. The nature of the dog-trailing technique at issue here is not meaningfully different from the technique at issue in Jackson, which we concluded was not subject to Kelly. In Jackson, on one occasion, a trained dog was given a gauze pad infused with scent from a fresh shoe print left outside a victim’s house and then taken to a lobby through which a suspect had passed. The dog was able to trail from the lobby to an interview room where the suspect was sitting, whereupon the dog alerted to the suspect. (Jackson, supra, 1 Cal.5th at pp. 308–309Id. at p. 309 was asked to perform was to “follow any human scent that she could pick up from the envelope.” (Id. at p. 320.) Here, Trimble’s task was not fundamentally different in nature: She was presented with Laci’s sunglasses and then directed to smell for trails of the same human scent, if any, at the Berkeley Marina. This was not a novel technique; indeed, Anderson testified that teaching a dog to scent off an object and then seek a corresponding trail is a routine part of training dogs to trail humans. Nor was it a technique whose fallibility would have been opaque to laypersons. Under Jackson, no Kelly hearing was necessary before the evidence was admitted, provided that the requisite foundational requirements were satisfied.
Turning to that necessary foundation, Peterson argues we should supplement the requirements set out in Jackson with additional requirements derived from the Court of Appeal’s decisions in People v. Willis (2004) 115 Cal.App.4th 379 (Willis) and People v. Mitchell (2003) 110 Cal.App.4th 772, 790–794 (Mitchell). We declined to impose these requirements in Jackson, and there is no reason for a different result here. (Jackson, supra, 1 Cal.5th at pp. 319–320.)
In Willis, the dog was not asked to smell for a scent trail, but instead was exposed to a scent and then “watched to see if the dog ‘show[ed] interest’ in various locales frequented by the defendant.” (Willis, supra, 115 Cal.App.4th at p. 386.) This sort of scent identification, the court held, should be