Monday, September 12, 2011
C.A. Upholds Gang Members’ Conviction in Pasadena Shooting Deaths
Justices Reject Challenge to Canine Identification Technique
By KENNETH OFGANG, Staff Writer
The Court of Appeal for this district Friday affirmed the convictions of two San Gabriel Valley men for the murders of two men in Pasadena in 2007.
In upholding the first-degree convictions of Jose David Elias of Pasadena and Joseph Raymond Ruiz of Alhambra, Div. Three rejected several challenges to the use of dog scent evidence used to identify the men as the killers of Tony Walker, 37, and Jamal Varcasia, 21.
Justice Richard Aldrich authored the unpublished opinion.
Elias, 20 at the time of the crimes, and Ruiz, who was 22, were identified members of the Villa Boys gang, which was involved in a series of violent clashes with the Pasadena Denver Lane gang at the time. Varcasia and Walker were apparently innocent victims of a drive-by shooting growing out of the gang rivalry.
A third member of Villa Boys, Eric Perez, was tried with Elias and Ruiz, but was acquitted.
An eyewitness identified the defendants as having been in the car from which the shots were fired, although she gave conflicting statements, telling police that Elias was driving, then testifying at a preliminary hearing that Perez was the driver, and finally stating at trial that she could not say who was sitting where.
About nine days after the shootings, police placed the defendants in different rooms at the Pasadena Police Station. Dog handler Ted Hamm, using a Scent Transfer Unit—described as a “modified dust buster”—had his dog, Bojangles, a bluetick coonhound, seek out the sources of scents found on shell casings from the shooting scene.
The dog first led Hamm and a detective to Perez, then to Elias, but on a third attempt, the dog did not move. The three defendants were then take to a parking area, where the dog, after smelling a scent paid from a .32 caliber gun—not the murder weapon—found outside the home of Ruiz’s girlfriend, led to Ruiz.
Elias was found guilty of both murders, with special circumstances of drive-by, gang-related, and multiple murder, and of brandishing a firearm in a separate incident. Ruiz was also found guilty of two counts of murder, but the special-circumstance allegations against him were not found true.
Los Angeles Superior Court Judge Lisa B. Lench sentenced Elias to life imprisonment, without the possibility of parole, plus two consecutive enhancements of 25 years under the 10-20-Life law. Ruiz drew two life terms, with 15-year minimums, plus the same 25-year enhancements.
On appeal, the defense argued that the dog-scent evidence lacked foundation, and that a jury instruction regarding the use of the evidence was erroneous.
But Aldrich said the trial judge acted within her discretion, based upon testimony given at a pretrial hearing by a chemist who works with scent-trailing dogs, an FBI supervisor who oversees the gathering of canine evidence throughout the United States, and Hamm.
The testimony established that other handlers sometimes use other procedures, the justice explained, such as controlling for false identifications by using a “negative” scent pad, meaning one that is unconnected to the case, or using two dogs. But there was no showing that Hamm’s procedures were unreliable, Aldrich said, noting that the FBI expert cited him as being in the “top echelon” of the profession.
With respect to Bojangles’ training and reliability, the justice rejected a defense contention that the evidence should be thrown out because the dog was not certified by a statewide organization.
Aldrich noted that there is no official certification standard or process in California, nor is there any national standard. The trial judge, he said, was entitled to rely on Hamm’s testimony that he had trained bloodhounds for 21 years, has participated in over 2,000 investigations, and trains each dog for over two years before the dog is used in police work, along with his specific testimony as to cases in which Bojangles was used.
The justice went on to say that there was no error in instructing the jury with CALCRIM No. 374, explaining that in order to rely upon dog-tracking evidence, the jury had to find that the dog was reliable and “accurately followed a trail that led to the person who committed the crime.”
Ruiz’s appellate lawyer argued that, with respect to the evidence that Bojangles smelled scent from the .32 and then led his handler to Ruiz, the instruction was inapplicable because this was not a case where a dog tracked a suspect from a crime scene to a relevant location, such as a hiding place.
But Aldrich said the instruction was “not inapplicable to a station identification,” and that it was relevant because an eyewitness testified that she might have seen two guns, supporting the prosecution theory that Ruiz and Ellis committed the crimes together, even though the physical evidence found at the scene suggested that only one gun was fired.
The justice similarly concluded that the .32 was admissible over the defense’s relevance objection.
The prosecution was represented on appeal by Deputy Attorneys General Scott A. Taryle and Stacy S. Schwartz. Court-appointed defense attorneys were Janyce K.I. Blair for Ruiz and David H. Goodwin for Elias.
The case is People v. Elias, B224372.
Copyright 2011, Metropolitan News Company