People v. Hunt

• Decision Date: 06 July 1982
• Docket Number: Cr. 37910
• Citation: 133 Cal.App.3d 543,184 Cal.Rptr. 197
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Michael William HUNT, Defendant and Appellant.

Page 197

184 Cal.Rptr. 197

133 Cal.App.3d 543

PEOPLE of the State of California, Plaintiff and Respondent, v. Michael William HUNT, Defendant and Appellant.

Cr. 37910.

Court of Appeal, Second District, Division 5, California.

July 6, 1982.

Daniel Jonathan Arnold, Newbury Park, for defendant and appellant

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Robert F. Katz and Stephen M. Kaufman, Deputy Attys. Gen., for defendant and appellant.

CHOATE, ^* Associate Justice.

STATEMENT OF THE CASE

Defendant was convicted by a jury of Counts I and II, burglaries, first degree Probation was denied and defendant was sentenced to an unstayed prison term of nine and two-thirds years. That term included a consecutive sentence on count I, burglary, for which the trial court incorrectly used the low term of two years, rather than the middle term required by the Penal Code for consecutive sentences. Five days later the court called the case again, announced its error in calculating the sentence, and sentenced defendant to an unstayed term of ten and one-third years, as follows: On count I, burglary first degree, a consecutive one-third of the four-year middle term; that is, sixteen months, or one and one-third years; count II, burglary first degree, a six-year, high base term enhanced by a three-year consecutive term for great bodily injury; and count III, attempted voluntary manslaughter, a low base term of one year, concurrent with other terms.

(Pen.Code, § 459), Count III, attempted voluntary manslaughter (Pen.Code, §§ 664/193) as a lesser but included offense of assault with an intent to commit murder (Pen.Code, § 217), and Count IV, simple assault (Pen.Code, § 240) as a lesser included offense of assault with intent to commit rape (Pen.Code, § 220). Enhancement allegations to Count II and Count IV for great bodily injury (Pen.Code, § 12022.7) and great bodily injury to a person 60 years (Pen.Code, § 1203.09) were found true.

Defendant appeals from the judgment and sentence.

FACTS

The evidence disclosed that on the night of August 8, or the early morning hours of August 9, 1979, defendant broke a window to enter the Cottrill apartment and took a television set and tape recorder, which he removed to his own nearby apartment. He then similarly entered an apartment across the street from the first, where he assaulted the occupant, 72-year old Anita Mora. When defendant left that apartment he was pursued by a police officer who observed him vault two fences and run away down a nearby ravine.

Police entering the Mora apartment found her unconscious, with severe injuries to her face and head. Her nightgown had been pushed up around her head and a pillow placed over her face. The officers found broken window glass on the floor, defendant's fingerprint on the metal rail of a screen to the sliding glass door, and bloodstains on Mrs. Mora's nightgown.

John Minerva, who was granted immunity, testified that he had been with defendant earlier on the evening of August 8th, and when they parted Minerva had driven home. Defendant appeared at Minerva's home after 2:00 a. m., with his shoes muddy and with abrasions on his arms and legs. He told Minerva that he had broken his arm. He admitted to Minerva that he had entered an apartment across the street from his house and had hit the lady who walked in on him. He said that he had fallen from a fence while trying to escape the police. Minerva, at defendant's request, later disposed of the television set taken in the Cottrill burglary.

The defendant testified that he was heavily intoxicated from pills and marijuana when Minerva drove him home. He fell on the sidewalk and broke his arm and Minerva helped him walk into the house. After putting an icepack on his own arm, he heard Minerva call him from the Cottrill apartment, where he refused to assist Minerva who was carrying out a television set. Later he walked across the street to the Mora apartment when Minerva called him. He entered, saw Mrs. Mora and fled through a window. He later drove Minerva's auto from near the crime scene to Minerva's home and left his damaged clothing with Minerva.

CONTENTIONS ON APPEAL

Defendant asserts as grounds for his appeal:

1. Insufficiency of the evidence at the preliminary hearing should have resulted in dismissal in his Motion under Penal Code section 995.

2. His motion to dismiss as a sanction for destruction of evidence by the prosecution should have been granted.

3. His motion to appoint a psychiatrist to assist him in selection of a jury should have been granted.

4. Opinion testimony to establish the bizarre or unusual nature of the Mora burglary should have been permitted to show defendant's diminished capacity.

5. Testimony regarding acts and conduct of John Minerva to show his violent character should have been permitted.

6. Photographs of the victim, Mrs. Mora, were unduly prejudicial to him and should not have been received.

7. The prosecution's fingerprint expert should not have been permitted to testify to identification of defendant's print.

8. Defendant's letters, sent to his fiancee from jail, should not have been received in evidence.

9. The trial court misused sentencing rules criteria in sentencing to consecutive and enhanced terms.

10. The trial court should have dismissed one of the assault counts, because the assaults were a single course of conduct.

11. Having sentenced the defendant the court should not have recalled him to increase the sentence.

DISCUSSION

1. The Motion Under Penal Code Section 995

Penal Code section 995 provides that an information must be set aside when the defendant has been committed without reasonable or probable cause. Defendant complains that his motion under that section was improperly denied. When a superior court denies the motion to set aside, a writ of prohibition may be filed under Penal Code section 999a. Defendant did not file such a petition. The case proceeded to trial and defendant was convicted with sufficient evidence to support the judgment. The defendant's contention that there was insufficient evidence to find reasonable and probable cause to commit him for trial is, therefore, moot. "If there is insufficient evidence to support the commitment the defendant cannot be said to be prejudiced where sufficient evidence has been produced at this trial to support the conviction." (People v. Hampton (1981) 116 Cal.App.3d 193, 172 Cal.Rptr. 25; People v. Chambers (1980) 108 Cal.App.3d 985, 991, 166 Cal.Rptr. 815.)

2. The "Hitch" Motion to Dismiss

Defendant unsuccessfully moved pursuant to People v. Hitch (1974) 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361, to dismiss the information as a result of a police officer's destruction of notes and papers which defendant claimed would have been helpful to his defense. Testimony of the officer was that when he arrived at the Mora house at about 2:00 a. m., he wrote down the license numbers of three or four automobiles parked nearby. He read the numbers over the police radio to the dispatcher and was given a Department of Motor Vehicles' report on ownership of the cars. He recalled that none of them was registered to John Minerva. He knew Minerva's car but did not see it there. Later, at 7:00 a.m., he returned and wrote down 30 or 40 more license numbers on a piece of paper and returned to the police station with that paper. He ran a check of Department of Motor Vehicles automobile registrations on those numbers. None of them was registered to Minerva.

He testified at the preliminary hearing that he thought his lists and the teletype sheets were then in his desk, but he realized later that he had thrown them away. The trial court found that "[O]fficer Harper did not deliberately destroy anything that he [reasonably] could have anticipated would be helpful to the defense." The record and another remark of the court about "destruction of things which might have appeared at the time to be useless to anybody", reflect a finding that the destruction was intentional but not malicious.

The importance of the lists, it is suggested, is that had they been available, defendant could have impeached Minerva's testimony that he dropped the defendant off at defendant's house and drove the car home. The presence of Minerva's automobile near the scene of the crimes, defendant claims, would have refuted Minerva's story that defendant was the sole perpetrator of the crimes.

The intentional but nonmalicious destruction of evidence by the police justifies the imposition of sanctions short of dismissal, if there is a reasonable possibility that the evidence would have been favorable to the defense. (People v. Murtishaw (1981) 29 Cal.3d 733, 755, 175 Cal.Rptr. 738, 631 P.2d 446; People v. Hitch, supra, 12 Cal.3d 641, 653, 117 Cal.Rptr. 9, 527 P.2d 361.)

Imposition of a reasonable sanction for the destruction of evidence may be warranted in some instances, but if the police acted in good faith, that is, without a malicious intent, the burden is on the defense to prove that there was substantial materiality in the destroyed material. (People v. Ammons (1980) 103 Cal.App.3d 20, 32-33, 162 Cal.Rptr. 772.) Defendant in the present case has not succeeded in showing that the lists of license numbers and registrations would have been material for any purpose. He has not shown "a reasonable possibility that they would constitute favorable evidence on the issue of guilt or innocence." (People v. Hitch, supra, 12 Cal.3d 641, at p. 649, 117 Cal.Rptr. 9, 527 P.2d 361.) He suggests that even though none of the vehicles was registered to Minerva, perhaps Minerva's vehicle had been recently purchased and the Department of Motor Vehicles had not been notified of the change in ownership. The hypothesis simply asked the court to speculate. We find no error in the refusal to dismiss or to apply other sanctions.

3. The Refusal of the Court to...