People v. Zamora

• Decision Date: 28 August 1980
• Docket Number: Cr. 21063
• Citation: 167 Cal.Rptr. 573,28 Cal.3d 88,615 P.2d 1361
• Court: California Supreme Court
• Parties: , 615 P.2d 1361 The PEOPLE, Plaintiff and Respondent, v. Joseph Anthony ZAMORA, Defendant and Appellant.

Page 573

167 Cal.Rptr. 573

28 Cal.3d 88, 615 P.2d 1361

The PEOPLE, Plaintiff and Respondent, v. Joseph Anthony ZAMORA, Defendant and Appellant.

Cr. 21063.

Supreme Court of California, In Bank.

Aug. 28, 1980.

Rehearing Denied Oct. 16, 1980.

Irwin Siegel, Los Angeles, for defendant and appellant.

Quinn Denvir, State Public Defender, Charles M. Sevilla, Chief Asst. State Public Defender, Wilbur F. Littlefield, Public Defender, Los Angeles, Dennis A. Fischer and Robert Berke, Deputy Public Defenders, A. Wallace Tashima, San Francisco, Tracy S. Rich, Los Angeles and Morrison & Foerster, San Francisco, as amici curiae on behalf of defendant and appellant.

John K. Van de Kamp, Dist. Atty., Harry B. Sondheim, Donald J. Kaplan and Richard W. Gerry, Deputy Dist. Attys., for plaintiff and respondent.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Norman H. Sokolow, Acting Asst. Atty. Gen., Howard J. Schwab and Carol Wendelin Pollack, Deputy Attys. Gen., Burt Pines, City Atty., George C. Eskin, Chief Asst. City Atty., Rand Schrader, Laurie Harris and S. Thomas Todd, Deputy City Attys., Los Angeles, as amici curiae on behalf of plaintiff and respondent.

TOBRINER, Justice.

Defendant appeals from convictions for battery on a police officer (Pen. Code, §§ 242, 243) and resisting an officer in the discharge of his duties (Pen. Code, § 148). About two weeks before defendant's arrest in May of 1976, the Los Angeles City Attorney's office directed the destruction of all past records through 1974 of citizen complaints against police officers, excepting only complaints found meritorious by police investigation. As we shall explain, we have determined that the destruction of unsustained citizen complaints was entirely improper, and that such destruction deprived defendant of the opportunity to locate witnesses who could testify that on past occasions the officers involved in his case had used excessive or unnecessary force. ¹ We therefore conclude that the trial court erred in failing to impose sanctions upon the prosecution.

In deciding the appropriate sanction in the present case we examine and weigh three considerations. First, we note that although the record indicates that complaint records were destroyed improperly, and with the knowledge that such records were subject to defense discovery, such destruction does not suffice to prove that the police or city attorney acted in bad faith. Second, the destroyed records are not material evidence, but merely a possible source through which defendants might discover witnesses to impeach the testifying officers. Third, although a sanction should be severe enough to deter improper destruction of records, the sanction of dismissal urged by the defendant would result in the unfortunate consequence that an officer named in a destroyed complaint could be assaulted or resisted with impunity. These considerations lead us to conclude that a severe sanction should be imposed but that dismissal of the charges against defendant would be too drastic.

We therefore believe that the correct sanction in this case is that proposed by Presiding Justice Klein in her opinion for the Court of Appeal: the trial court should instruct the jury (a) that the officers in question used excessive or unnecessary force on each occasion when complaints were filed against them but that the complaint records later were destroyed, and (b) that the jury may rely upon that information to infer that the officers are prone to engage in excessive or unnecessary force (see Evid. Code, § 1103) and that the officers' testimony regarding incidents of alleged police force may be biased (see Evid. Code, § 1101, subd. (c)). The failure of the trial court to impose this or any sanction upon the prosecution in the present case constitutes reversible error.

1. Summary of proceedings below.

Defendant was charged with one count of battery against Los Angeles Police Officer Nelson and one count of resisting Officer Nelson in the discharge of his duties. The prosecution evidence at trial indicated that on May 22, 1976, several officers responded to a call that defendant and his father, Raymond, were involved in an argument. Officer Nelson entered the Zamora home first and, according to the police testimony defendant immediately attacked him. A scuffle ensued between the officers and defendant, his father, and his brother Pedro. The officers subdued and arrested the three Zamoras. According to defendant, as well as friends and relatives of defendant who witnessed the incident, however, Officer Soelitz, not Nelson, first entered the premises. The defense evidence indicated that Soelitz attacked defendant without provocation.

Defendant, his father, and his brother were tried jointly. The jury convicted defendant as charged, acquitted defendant's father, and deadlocked as to Pedro Zamora. Defendant appealed to the appellate department of the superior court, which reversed the conviction. The Court of Appeal transferred the cause to that court pursuant to California Rules of Court, rule 62(a); we granted a hearing following the Court of Appeal decision.

The principal issue on appeal relates to the destruction of police records by direction of the city attorney's office. Prior to trial, defendant's counsel made an informal request of the city attorney's office for discovery of records relating to the police officers involved. The city attorney agreed to produce records of any citizen complaints charging racial prejudice or excessive use of force against Officers Nelson, Soelitz, Schroyer, and Skiles; he assured counsel that the records would include the names, addresses, and phone numbers of the complainants.

The city attorney subsequently supplied the promised information as to Officer Nelson, and informed defendant that no complaints had been filed against Officer Skiles. With respect to Soelitz and Schroyer, however, he gave defendant only the names of complainants without addresses or phone numbers and stated that no further information was available.

Defendant's father, Raymond Zamora, filed a formal motion for discovery of the complaint records; defendant joined in the motion. At a hearing on the motion before Judge Michael Sauer, the prosecution revealed for the first time that all records of unsustained complaints from 1949 to 1974 were destroyed on May 5 and 7 of 1976, about two weeks before the incident at the Zamora home. Sergeant Stark of the city police department acknowledged that the police knew that the records might have some relevancy in criminal proceedings, but insisted that an order of the city council sanctioned the destruction. Judge Sauer concluded that the records were "destroyed by the City Council on the advice of the attorneys, advice of the City Clerk, advice of the various agencies, that they be destroyed. There has been no showing that they were done deliberately to keep you (Zamoras' attorneys) from receiving such information."

Defendant renewed his discovery motion before Judge Mary Waters, who presided at the trial. Defendant attached to his motion a copy of the police request to the city council for "authority to destroy obsolete records," noting that the request referred only to "miscellaneous files and memos" and did not suggest that the police sought destruction of complaint records subject to defense discovery. He attached also the resolution of the city council in response to that request. ² The resolution states that numerous city departments, including the police department, "desire to destroy certain records . . . which have served their purpose and are no longer required." Reciting that "none of said records . . . are less than five (5) years old," the resolution approves requests for destruction of a variety of city records including miscellaneous police records through 1974. ³ In a post conviction hearing Judge Waters reviewed these documents and the transcript of the hearing before Judge Sauer, and concluded that the destruction of records was "not deliberate, malicious, or wilful."

During the pendency of the present appeal, defense counsel in other cases developed additional facts and obtained further documents concerning the destruction of the complaint records. The Los Angeles County Public Defender, appearing here as amicus curiae, has asked us to take judicial notice of the records in three such cases and of a number of documents discovered and admitted into evidence in other cases. The People oppose our taking judicial notice on the ground that the requested documents and court files relate to evidentiary matters which should have been presented to the trial court. (See People v. Preslie (1977) 70 Cal.App.3d 486, 493, 138 Cal.Rptr. 828; People v. Superior Court (Mahle), 3 Cal.App.3d 476, 482, fn. 3, 83 Cal.Rptr. 771.) Although we regret that we must thus decide the present appeal upon a record less complete than that developed in later cases, we find the People's position viable and decide that we should not take judicial notice of matters which should have been, but were not, presented to the trial court.

2. The municipal court erred in failing to impose sanctions on the prosecution for the destruction of complaint records.

"(T)he intentional suppression of material evidence favorable to a defendant who has requested it constitutes a violation of due process, irrespective of the good or bad faith of the prosecution." People v. Hitch (1974) 12 Cal.3d 641, 645, 117 Cal.Rptr. 9, 12, 527 P.2d 361, 364; Dell M. v. Superior Court (1977) 70 Cal.App.3d 782, 786, 144 Cal.Rptr. 418.) Although complaint records themselves may not be material evidence, the defendant is entitled to discovery of such records because they may lead to evidence admissible under Evidence Code section 1103. (Pitchess v. Superior Court (1974) 11 Cal.3d 531, 537-538, 113 Cal.Rptr. 897, 522 P.2d 305.) Consequently, courts have not hesitated to conclude that the...