People v. Jackson

• Decision Date: 26 February 1980
• Docket Number: Cr. 19159
• Citation: 102 Cal.App.3d 620,162 Cal.Rptr. 574
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Clifford Lamar JACKSON, Defendant and Appellant.

Page 574

162 Cal.Rptr. 574

102 Cal.App.3d 620

The PEOPLE, Plaintiff and Respondent, v. Clifford Lamar JACKSON, Defendant and Appellant.

Cr. 19159.

Court of Appeal, First District, Division 4, California.

Feb. 26, 1980.

Rehearing Denied March 19, 1980.

Hearing Denied April 24, 1980.

Quin Denvir, State Public Defender, Eric S. Multhaup, Deputy State Public Defender, San Francisco, for defendant and appellant.

George Deukmejian, Atty. Gen. of State of California, Robert H. Philibosian, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins, Clifford K. Thompson, Jr., Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

CHRISTIAN, Associate Justice.

Clifford Lamar Jackson appeals from a judgment of imprisonment which was rendered after a jury found him guilty of two counts of forcible rape (Pen.Code, § 261.3) and two counts of forcible oral copulation (Pen.Code, § 288a). Two victims were involved on occasions two days apart.

Appellant contends that the trial court should have dismissed the charges connected with one of the victims because investigative officials failed to preserve semen specimens taken from the victim at a hospital after the rape. Comparison of genetic markers found in the semen specimen with those in an innocent man's blood might have afforded an innocent individual a high probability of scientific exculpation. Appellant had moved for production of the semen specimens but the district attorney advised the court that the evidence no longer existed.

Appellant contends that People v. Hitch (1974) 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361, and People v. Nation (1980) 26 Cal.3d 169, 161 Cal.Rptr. 299, 604 P.2d 1051, require dismissal of the charges. In Hitch, the Supreme Court held that an investigative agency involved in administration of a chemical test of a driver's breath for alcoholic intoxication has a duty to preserve and disclose specimens taken in administering the test. The prosecution bears the burden of demonstrating that the governmental agency had established, enforced and attempted in good faith to adhere to rigorous and systematic procedures designed to preserve the specimens. If the prosecution fails to meet this burden, the results of the test must be excluded from evidence but due process does not require dismissal of the action. (Id., 12 Cal.3d at pp. 652-653, 117 Cal.Rptr. 9, 527 P.2d 361.) The court noted, however, that bad faith destruction of the evidence raises an inference that the evidence could demonstrate innocence rather than merely serve to impeach the test results. "In such an instance dismissal may well be the proper sanction." (Id., at p. 653 n. 7, 117 Cal.Rptr. at p. 18, n. 7, 527 P.2d at p. 370, n. 7.) In People v. Nation, supra, 26 Cal.3d 169, 177, 161 Cal.Rptr. 299, 303, 604 P.2d 1051, 1055, the Supreme Court declared that "when a woman has been the victim of an attempted or actual rape and the police recover a semen sample of the assailant, the authorities must take reasonable measures to adequately preserve this evidence."

Included in the record in the present case is a property receipt signed by a police officer, indicating that "vaginal cotton swabs" in police custody had been stored at the medical laboratory at Ford Ord. The specimens were lost, and there was no showing that reasonable measures had been taken to preserve the evidence. The question is thus presented whether loss of the evidence compels reversal of the judgment. The Supreme Court did not consider that question in Nation, because there the prosecution had delivered the specimen to the defense in response to discovery and there was no showing that deterioration of the specimen was caused by the state's inaction. We therefore return to Hitch for guidance as to the effect to be given to the apparent failure of the police to preserve the specimen. According to Hitch the ordinary remedy is the exclusion of test results; it is said that dismissal "may well be the proper sanction" where there has been bad faith on the part of the prosecution (12 Cal.3d at p. 653 n. 7, 117 Cal.Rptr. at p. 18, n. 7, 527 P.2d at p. 370, n. 7). Here no test results were offered in evidence, and there is no indication that the prosecuting authorities were guilty of bad faith. Therefore, dismissal of the action would not be justified. (See People v. Sargent (1978) 86 Cal.App.3d 148, 153, 150 Cal.Rptr. 113.)

The trial court denied a defense motion to sever the two sets of charges. Penal Code section 954 provides that where an accusatory pleading charges two or more different offenses of the same class of crimes or offenses the trial court, "in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately . . . ." In denying the motion for severance, the trial court stated: "I don't know of any authority that stands for the proposition that you can sever the same class of crimes based upon the fact they are not similar . . . so, without authority I am aware of, the motion has to be denied." It thus appears that when the court denied the motion for severance it was acting under an erroneous belief that it had no authority to grant the motion.

In People v. Rist (1976) 16 Cal.3d 211, 223, 127 Cal.Rptr. 457, 465, 545 P.2d 833, 841, the court held that the trial court's denial of the defendant's motion for exclusion of evidence of prior convictions was not only an abuse of discretion but was not a true exercise of discretion at all. The court stated that it could not determine the degree of prejudice suffered by the defendant as a result of the court's error because the defendant might have testified had...