Michael L., In re

• Decision Date: 25 July 1985
• Docket Number: Cr. 23647
• Citation: 216 Cal.Rptr. 140,39 Cal.3d 81,702 P.2d 222
• Court: California Supreme Court
• Parties: , 702 P.2d 222 In re MICHAEL L., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. MICHAEL L., Defendant and Appellant.

Page 140

216 Cal.Rptr. 140

39 Cal.3d 81, 702 P.2d 222

In re MICHAEL L., a Person Coming Under the Juvenile Court Law.

The PEOPLE, Plaintiff and Respondent, v. MICHAEL L., Defendant and Appellant.

Cr. 23647.

Supreme Court of California,

In Bank.

July 25, 1985.

[39 Cal.3d 83] Harold M. Jaffe, Oakland, under appointment by the Supreme Court, for defendant and appellant.

Frank O. Bell, Jr., State Public Defender, Ralph Goldsen and Michael Pescetta, Deputy State Public Defenders, as amici curiae on behalf of defendant and appellant.

John K. Van de Kamp, Atty. Gen., Gloria F. DeHart and Mary A. Roth, Deputy Attys. Gen., for plaintiff and respondent.

Michael E. Nail, Dist. Atty. (Solano), John R. Vance, Jr., Deputy Dist. Atty., as amici curiae on behalf of plaintiff and respondent.

[702 P.2d 223] BY THE COURT:

Michael L., a minor, appeals from an order adjudging him to be a ward of the state under section 602 of the Welfare and Institutions Code and committing him to the California Youth Authority upon a finding that he had perpetrated a robbery. We must decide whether testimony identifying appellant as the perpetrator of the robbery in question should have been excluded at trial because police failed to seize from a private party the now erased videotape that enabled the witnesses to make their identifications.

We conclude that the testimony was admissible

BACKGROUND

Eduardo Gonzalez was robbed by two individuals on the evening of February 13, 1982, while he was working behind the counter at McGoo's Donut Factory on 82d Street in Oakland. While one of the robbers occupied himself at a cigarette machine, the other approached Gonzalez on the pretense of wanting change for a $10 bill. He pulled a knife, leaped over the counter and demanded that Gonzalez open the cash register, warning, "If you make a false move you're gone." Gonzalez complied. The second robber then jumped over the counter and took all the currency, and the armed robber took all the coins.

After the robbers fled, Gonzalez reported the incident to Oakland police, and an officer responded within the hour. Gonzalez had never before seen the robbers but was able to describe their clothing. He reported to the officer that the armed individual--a black male aged 16 or 17, of medium build and about 5 feet 6 or 7 inches in height--wore a V-pattern light and dark blue ski jacket, black surfers (tennis shoes), a hooded sweatshirt with the hood up, a brimmed baseball cap, and blue jeans.

The robbery was recorded on videotape by an automatic store surveillance camera. Susan Thomas, who with her husband LeRoy owned the store, viewed the videotape in a back room of the store several times on the night of the robbery, first alone and then in the company of Gonzalez, a neighborhood boy, and the responding officer. Although she did not witness the robbery itself, from the tape Susan Thomas recognized the youth with the knife as a "neighborhood kid" and the brother of another youth, Victor. She so informed the officer. The neighborhood boy also recognized the youth with the knife and volunteered that his name was Michael. Before departing from the store the responding officer asked Susan Thomas to preserve the tape for later viewing by investigating officers. Susan Thomas never again spoke with police about the tape.

As part of the robbery investigation, Sergeant Samuel Maddux of the Oakland police and another sergeant went to the store on February 16 and viewed the videotape in the presence of LeRoy Thomas. Using a freeze-frame device on the Thomases' videotape player, Sergeant Maddux selected certain frames and photographed them with Polaroid and 35 millimeter cameras.

Sergeant Maddux interviewed Eduardo Gonzalez on the next day, February 17. Gonzalez, who had viewed the videotape on the night of the robbery four days earlier, was shown a lineup consisting of six photographs and quickly selected one of appellant (taken in Dec. 1979) from among them. He said, "That looks like the guy." When pressed by the sergeant, Gonzalez said he could not be certain, but he did find a strong resemblance. Gonzalez gave a signed statement to that effect.

At some point prior to the first hearing in the case, the Thomases inadvertently erased the videotape of the robbery. The tape had been left in their possession. Sergeant Maddux testified that when he took the freeze-frame photographs he had wanted to take the tape into police custody, but that LeRoy Thomas had objected because in the past the courts had held his property "too long." Maddux further testified that he did ask LeRoy Thomas to save the tape and that Thomas had indicated he would do so. LeRoy Thomas testified that the tape was erased inadvertently. He also stated that the officers might have asked him to save the tape but that he could not recall whether they in fact did. Susan Thomas, who acknowledged that she had been instructed to preserve the tape, testified that she thought there was no need to save the tape once the investigating officers had examined it.

Two freeze-frame photographs of the videotape were admitted into evidence at trial. Sergeant Maddux, Eduardo Gonzalez, and Susan Thomas all identified the photographs as representations of the lost videotape but none could identify appellant from Gonzalez, who had described the armed robber as wearing the hood of a hooded sweatshirt up over his head, could not tell whether the robber was shown in the photographs or whether anyone depicted in them wore a hood, although he noted that one person was wearing something on his head. Although she testified that "the tape was very clear" and was able to identify appellant in court as the robber depicted in the tape, Susan Thomas stated that she could not make an identification based on the freeze-frame photographs. Gonzalez, when asked in court to think back to the night of the robbery and to put out of his mind the photographic lineup identification about which he had also testified, said in reference to appellant, "I'm not so sure but I think it's him."

the photographs, which the witnesses variously characterized as "blurry," "fuzzy," and "not very good."

Execution of a warrant search of appellant's residence turned up a two-tone blue jacket similar to the one worn by the robber who carried the knife. The search also produced a photograph of appellant wearing that jacket, and Sergeant Maddux testified that he recognized that jacket from the videotape he had viewed following the robbery. Gonzalez also identified photographs of the blue jacket seized from appellant's home, saying, "Well, the guy with the knife was wearing something like this." He did not recall the V-shape pattern on the sleeves (shown in the photographs) but explained that he had only looked at the body of the jacket during the robbery. Gonzalez recognized in one of the freeze-frame photographs a jacket that looked like the one in police photographs of the seized jacket.

Counsel for appellant objected on Hitch grounds (People v. Hitch (1974) 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361) to the admission of evidence concerning the videotape viewings as well as evidence which might have been derived from them, including all in-court identifications of appellant. The objections were overruled.

The court found that appellant had perpetrated the robbery and committed him to the custody of the Youth Authority for five years. The court added a year to the commitment on the ground that appellant had used a deadly weapon. (Pen.Code, § 12022, subd. (b).)

DISCUSSION

I. Exclusion of the In-Court Identifications

Initially, we observe that the rule announced in People v. Hitch, supra, 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361, is not necessarily applicable to the present case. In Hitch, we held that the federal guaranty of due process requires the People to preserve breathalyzer ampoules in their possession for later retesting by defendants charged with driving while intoxicated. We ruled that the People's duty to preserve applies whenever there exists a "reasonable possibility" that the evidence would have constituted "favorable evidence on the issue of guilt or innocence." (Id. at p. 649, 117 Cal.Rptr. 9, 527 P.2d 361.) We later applied Hitch to require the preservation of a semen sample taken from a rape victim (People v. Nation (1980) 26 Cal.3d 169, 161 Cal.Rptr. 299, 604 P.2d 1051), and a urine sample taken from a suspected narcotics user (People v. Moore (1983) 34 Cal.3d 215, 193 Cal.Rptr. 404, 666 P.2d 419).

In California v. Trombetta (1984) 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413, the United States Supreme Court addressed for the first time the People's duty under the due process clause of the Fourteenth Amendment to take affirmative steps to preserve evidence. Although the high court acknowledged our effort in Hitch to define the duty imposed by the federal Constitution (see id., at p. ----, fn. 5, 104 S.Ct. at p. 2531, fn. 5, 81 L.Ed.2d 413), it formulated its own test describing the contours of the obligation: "Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect's defense. To meet this standard of constitutional materiality [citation], evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and also be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." (Id., at p. ----, fn. omitted, 104 S.Ct. at p. 2534, 81 L.Ed.2d 413.)

It is apparent that the Trombetta formulation of the duty-to-preserve test differs substantially from our own Hitch standard. It is unnecessary, however, for us to reach the question whether Hitch has "survived" Trombetta, for we have concluded that, under the circumstances in this case, exclusion of the identification testimony is unwarranted even under our...