In rе GARY G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. GARY G., Defendant and Appellant.
Civ. No. 19185
Third Dist.
Jan. 30, 1981.
A petition for a rehearing was denied February 24, 1981.
115 Cal. App. 3d 629
Appellant‘s petition for a hearing by the Supreme Court was denied April 1, 1981. Bird, C. J., was of the opinion that the petition should be granted.
Eric J. Coffill and Quin Denvir, State Public Defender, under appointments by the Court of Appeal, for Defendant and Appellant.
George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, Gregory W. Baugher and James Ching, Deputy Attorneys General, for Plaintiff and Respondent.
CECCHETTINI, J.*—The minor, Gary G., was adjudged a ward of the court after it was found he had committed murder in the second degree. (
We discuss each contention below and conclude that the judgment be affirmed.
FACTS
On July 18, 1979, Danny G., Charles P. and Vince E. walked to a residential development site near Charles’ home. At the site, working inside some large drainage pipe sections, was Bill Williams. Williams’ girl friend, Julie I., was also in the ditch, keeping him company while he worked. Charles and Vince approached the ditch and began throwing rocks at Julie. After a short period of time the three minors left the area. Vince went home and Danny and Charles went to Danny‘s house.
Thereafter, Charles and Danny met the minor (Danny‘s older brother) and informed him that someone was working in the drainage pipes at the residential site. The minor suggested they return to the site. Charles agreed, as he wanted to throw more rocks at Julie.
While walking to the site, Charles noticed that the minor had a handgun tucked in the front of his pants. Charles inquired about the weapon; the minor pulled up his shirt and showed the gun to Charles. Upon reaching the site, Charles and the minor began throwing rocks into the open ditch. The minor pulled out the revolver and shot at a nearby generator; Charles then threw the generator into the ditch. Williams emerged from the pipe after the generator was thrown into the ditch. As Williams approached, Charles said, “I‘m going to kill you.” Williams responded, “Not if I kill you first.” Charles started to run away,
*Assigned by the Chairperson of the Judicial Council.
The minor returned home, borrowed the family car and drove Danny, Charles and Vincent to a liquor store. Upon returning from the store, the group was informed that thе police were looking for them. Charles and Vincent exited the car and the minor and Danny drove away. Danny did not return home until several days later on July 24. The minor did not return home until August 17, at which time he surrendered to the authorities.
In his defense, the minor testified that he was in Sacramento until 8 p.m. on the day of the murder. His alibi was corroborated by his brother Richard and a friend Melencio T. The minor asserts he did not turn himself in after learning of the shooting as he feared he would be shot by the police.
I
The minor asserts the evidence presented is insufficient to support the finding that he committed the offensе. We disagree.
In reviewing the determination by the court, we view the evidence in the light most favorable to respondent and presume in support thereof the existence of every fact the court could reasonably deduce from the evidence. (People v. Vann (1974) 12 Cal.3d 220, 225 [115 Cal.Rptr. 352, 524 P.2d 824].) The test is whether there is substantial evidence to support the conclusion of the juvenile court. (In re John S. (1978) 83 Cal.App.3d 285, 293-294 [147 Cal.Rptr. 771].)
Stripped to its essentials, the minor merely asserts that the court should have discredited the testimony of the witnesses presented by the People and, in turn, should have accepted his alibi defense which was corrobоrated by his brother Richard and his friend Melencio. The juvenile court resolved this conflict in the evidence in favor of the witnesses for the People; it is not now within our province to reweigh the evidence or resolve conflicts therein in favor of the minor. “The credibility of the witnesses and the weight to be given their testimony are
Upon resolution of the issue of credibility, the overwhelming evidence points to the minor as the perpetrator. Williams died from two gunshot wounds, both inflicted by a .38 caliber weapon, “probably a revolver.” The minor had shown Charles a .38 caliber revolver moments before the shooting. Julie made a positive identification of the minor as the person who fired two shots at Williams. At the time of the incident, Julie was only a short distance from both Williams and the minor. Upon leaving the scene, the minor stated to Charles, “I think he‘s dead. I shot him.” The minor‘s brother Danny, who was near the construction site, told his friends that “they” had just shot someone in the field and, while driving to the liquor store, the minor again admitted shooting Williams. Contrary to the minor‘s assertion, there is nothing in the record indicating that Charles‘, Julie‘s or the testimony of any other witness presented by the People was inherently improbable and thus legally unbelievable. (See People v. Mayberry (1975) 15 Cal.3d 143, 150 [125 Cal.Rptr. 745, 542 P.2d 1337].)
Substantial evidence supports the finding that the minor committed the murder.
II
The minor asserts the juvenile court erred in not permitting him to cross-examine the victim‘s brother, Arval Williams, concerning whether or not Arval was a member of the Aryan Brotherhood. He asserts that members of that group are biased against Mexican-Americans; thus questioning directed toward Arval‘s possible prejudice was proper and should have been permitted.
While refusal to permit cross-examination of a prosecuting witness can constitute reversible error (see People v. James (1976) 56 Cal.App.3d 876, 887 [128 Cal.Rptr. 733]; People v. Grantham (1972) 26 Cal.App.3d 661, 666 [103 Cal.Rptr. 262]), no error was committed herein. Arval‘s testimony was directed solely to events which transpired both before and after the incident and included a description of the type of work his brother was engaged in at the site, a description of the site itself and his discovery of his brother‘s body. Arval‘s testimony did not deal with the minor or the dynamics of the crime and the court thus properly restricted the cross-examination.
The minor asserts the juvenile court erred in denying his motion for mistrial on the basis of prosecutorial misconduct. Counsel made the motion after both sides had rested and based it on the tоtal record of the proceedings. No specific grounds were included in the motion. It was denied without comment. He asserts the district attorney attempted to prejudice the court by bringing to the court‘s attention the fact that the minor‘s father was facing criminal charges. While the district attorney did, on a couple of occasions and in different contexts, bring this fact to the court‘s attention, so too did counsel for the minor. There is nothing in the record to indicate, however, that any of the district attorney‘s comments in this regard were made with the intent to sway the court in its disposition of the case, or that the court was influenced.
The minor also asserts misconduct occurred when the district attorney expressed his personal opinion to the court as to the veracity of a witness for the defense. We agree that such an expression of personal opinion amounts to misconduct. (See People v. Perez (1962) 58 Cal.2d 229, 245 [23 Cal.Rptr. 569, 373 P.2d 617, 3 A.L.R.3d 946].) In order to state a case of misconduct sufficient to warrant reversal, however, it is incumbent upon the minor to demonstrate prejudice resulting from the misconduct. (People v. Bolton (1979) 23 Cal.3d 208, 214 [152 Cal.Rptr. 141, 589 P.2d 396].) Here the hearing was in front of a judge, not a jury. (Cf. ibid.) The minor has not shown, nor does the record in any way demonstrate, any prejudice to him attributable to the remarks made by the district attorney. The contention must be rejected.
IV
The minor asserts Julie‘s in-court identification of him as the perpetrator was tainted by a prior out-of-court identification. Prior to testifying, Julie observed the minor being led into the courtroom. At that time, the minor was handcuffed. The minor asserts the confrontation was so impermissively suggestive as to taint the subsequent in-court identification. We cannot agree.
An in-court identification will be suppressed only if it appears that a prior identificаtion procedure employed to secure it “was so impermissively suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” (Simmons v. United States (1968) 390 U.S. 377, 384 [19 L.Ed.2d 1247, 1253, 88 S.Ct. 967]; People v. Rodriguez
V
The minor asserts error in the court‘s refusal to strike the testimony of a ballistics expert where the information provided by the expert had not been previously disclosed to the defense.
A search of the minor‘s bedroom disclosed five .38 caliber casings, marked “WCC 71.”1 Paul Dougherty, a bаllistics expert, testified as to the meaning of “WCC 71.” The minor thereafter moved to strike Dougherty‘s testimony, asserting the district attorney should have provided timely notice of its expert and the essence of his testimony.
We find the motion was properly denied as there was no bad faith on the part of the People regarding the delay in notifying the defense of the expert testimony. Due to certain rulings made by the court in regard to a previous expert called by the People, the district attorney found it necessary to seek additional expert testimony. Dougherty was first contacted by the People the afternoon prior to the day he testified. The minor‘s counsel was aware of what the People were attempting to prove and, in addition, had been informed by the district attorney that the People would try to bring in a ballistics expert. Counsel could have secured his own expert; in fact, the court offered to grant counsel time to do so, but counsel declined. There was no error in denying the mo-
VI
The minor asserts he was denied due process by the failure of Officer Stewart to retain “rough interview notes” compiled when the officer interviewed Vincе E., a witness at the hearing. The minor had obtained a discovery order which included all notes made by investigating officers; he now contends that failure to provide him with such discovery deprived him of due process.
Vince said that he did not hear the minor admit to shooting Williams nor did he tell Stewart that he had heard the minor make such a statement. In turn, Stewart testified that he interviewed Vince after the incident, at which time Vince made the above mentioned statement. Stewart had taken notes during the interview with Vince, but discarded them upon making a formal report which included verbatim some of the stаtements made by Vince during the interview. Stewart testified that it was a routine practice for him to discard such notes after using them to write up a final report. Although the minor had been provided a copy of the report, his counsel nonetheless moved to strike that part of Stewart‘s testimony relating to the interview notes, asserting this sanction was necessary as a result of the officer‘s discarding discoverable evidence. The motion was denied by the court.
“It is clear that the Constitution does not require the prosecution to make a complete and detailed acсounting to the defendant of all police investigatory work on a case.” (People v. Nation (1980) 26 Cal.3d 169, 175 [161 Cal.Rptr. 299, 604 P.2d 1051].) It is equally clear, however, that due process does require the prosecution to disclose all material evidence favorable to the accused whether such evidence relates directly to the issue of guilt or can lead the defense to favorable evidence. (In re Ferguson (1971) 5 Cal.3d 525, 532 [96 Cal.Rptr. 594, 487 P.2d 1234]; see Brady v. Maryland (1963) 373 U.S. 83, 87 [10 L.Ed.2d 215, 218, 83 S.Ct. 1194].) Furthermore, it has been held that the obligation to disclose the existence of material evidence places on the state a correlative duty to preserve such evidence even without a request therefor, and law enforcement agencies must take reasonable measures to insure adequate preservation of such evidence. (People v. Hitch (1974) 12 Cal.3d 641, 650 [117 Cal.Rptr. 9, 527 P.2d 361]; see United States v. Bryant (D.C. Cir. 1971) 439 F.2d 642, 651.)
This is not to say that such notes are never discoverable; indeed, should such notes still be in existence at the time a discovery order is made they should be turned over as part of the overall discovery package. (People v. Torres (1971) 19 Cal.App.3d 724, 731 [97 Cal.Rptr. 139].) We simply refuse to imрose a judicial mandate that requires in each and every instance all original notes taken during the investigatory process be retained. (See ibid.) Where an officer testifies that he made an accurate report based on the interview notes and thereafter a copy of the report is given to opposing counsel, there can be no cause to complain that all required discovery materials have not been provided and certainly no basis for requiring the officer‘s testimony be excluded as a result of inability to produce such notes.
Here the minor does not charge, nor did the court find, that the notes were discarded in bad faith (i.e., for some ulterior motive other than that they had served their intended purpose), nor does he point to any reasonable likelihood that the report in any way varied from the original notes taken. Yet by seeking to have the officer‘s testimony stricken, the minor nonetheless implies bad faith or error by way of the officer‘s having discarded the notes. Without any showing, we refuse to accede to such implication. While in some instances the failure to produce original notes taken during the investigatory process may arguably affect the weight to be given testimony concerning them, the inability to produce such notes does not make the testimony concerning what was said inadmissible. (People v. Torres, supra, 19 Cal.App.3d at p. 731.) The privilege of discovery presupposes something to discover. Source or backup material are not always available physically or because of privilege. But unavailability alone does not infer erroneous or false
The minor would argue that simply destroying, losing, misplacing, shrеdding, or otherwise discarding raw or rough notes creates an implication that there was error or fraud in the transcription of the same into a report or other memorial. Logic and common sense dictate otherwise. One could as logically say the written memorial prepared from the notes is more deliberate and dispassionate and thus more reliable. Neither inference is a rational conclusion from the bare act. At the very least, there should be a showing of some error or bad faith, as well as a showing that the material sought to be discovered сonstitutes significant evidence.
We are not oblivious to recent decisions emanating from the federal courts which, pursuant to Brady v. Maryland, supra, 373 U.S. 832 and United States v. Bryant, supra, 439 F.2d 642,3 hold that officers must retain the rough notes taken during the course of an investigation (see e.g., United States v. Harris (9th Cir. 1976) 543 F.2d 1247, 1252-1253; United States v. Harrison (D.C. Cir. 1975) 524 F.2d 421, 421, 423; United States v. Bundy (D.C. Cir. 1972) 472 F.2d 1266, 1267); it is simply our opinion that neither Brady, Bryant nor due process compel such a result. This case is not at all like Brady, wherein the prosecution withheld information valuable to the defense. Nor are the facts herein similar to
Finally, even if the court had struck the officer‘s testimony as it related to the discarded notes, such action would have had no bearing on the ultimate disposition of the case. Julie positively identified the minor as the perpetrator. Charles testified that the minor twice admitted the shooting. Further, Vince‘s testimony was both evasive and suspect, leading us to conclude thаt there was little need to attack his credibility through Officer Stewart. Thus, the most that could be said for the officer‘s testimony as it related to the interview with Vince was that it was both cumulative and unnecessary. Not only has the minor failed to make any showing of substantial materiality (see People v. Hitch, supra, 12 Cal.3d at pp. 645, 649-653; People v. Ammons (1980) 103 Cal.App.3d 20, 33 [162 Cal.Rptr. 772]), but we are convinced that a different result would not have attained if the court had agreed to strike the officer‘s testimony. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710, 87 S.Ct. 824, 24 A.L.R.3d 1065]].)
Paras, Acting P. J., concurred.
REYNOSO, J.—I concur in the result but dissent from that portion of the opinion which concludes that the original interview notes taken by investigating officers need not be preserved. Such notes are discoverable, says the majority, only if they exist. However, the officers are free to discard the interview notes when the “formal report” is made. In so many cases, as in the case at bar, the minor‘s recollection of important portions of the conversation differs from the formal report, generally prepared some time after the conversation. The officer, often and quite naturally, has no recollection independent of the report. Innocent mistakes can be made in transferring the cоnversation from the original notes to the formal report. This is particularly so since the final report includes more than summaries of conversations. Under the majority rule, there is no way to double-check for errors or inconsistencies. Manifestly, the more reliable reflector of the conversation are the notes contemporaneously made. We deal with an issue of truth-finding not bad faith.
What to do? The majority‘s response is that nothing need be done. I am persuaded that the approach taken by the federal cases, cited but rejected by the majority, is the rеasonable judicial response under existing state law. Since the minor had the right to discover the notes, had they not been destroyed (Funk v. Superior Court (1959) 52 Cal.2d 423, 424 [340 P.2d 593]), the teaching of People v. Hitch (1974) 12 Cal.3d 641, 650 [117 Cal.Rptr. 9, 527 P.2d 361], applies. Hitch, in essence, mandates the preservation of evidence. Notes of the conversation come within California‘s definition of evidence (
While the above legal analysis seems straightforward and controlling, the rationale, as explained in the federal cases, persuades further. “It seems too plain for argument that rough [interview] notes from any witness ... could prove ... material.” (United States v. Harrison (D.C. Cir. 1975) 524 F.2d 421, 427.) “Although the agents are trained to include all pertinent infоrmation in the [formal] report, there is clearly room for misunderstanding or outright error whenever there is a transfer of information in this manner.” (Id., at pp. 427-428.) And the judicial role is explained. “Notes taken by FBI agents in interviews either with prospective government witnesses or, as in this case, with the
Despite the strength of my sense that the majority misanalyzes California law in the interview notes issue, I concur in the result. I agree with the majority that, under the facts of this case, even if the court had struck the officer‘s testimony, the minor would not have benefitted.
I add this final note. Local and state police departments, like the FBI on the federal level, want to follow the rules in protecting society; if the law is made clear by the courts, the investigative practices of our police will be strengthened and the rights of the accused protected. Thеse aims, of course, are not mutually exclusive but, in a democracy, mutually beneficial. Those institutions which protect all of us, law enforcement and the judiciary, are strengthened by rules which are clear and fair.1
PARAS, Acting P. J., Concurring.—I cannot let the comments of our dissenting justice pass without expressing independent thoughts thereon.
The practice of discarding raw notes (including interview notes) used to record concurrently transpiring events is universal. A given newsman will make them at the scene of a news event as he interviews interested parties, makes observations, etc., will later dictаte or write the event more formally, and will then discard the notes as useless. A particular contractor will take notes during the inspection of a job site, later will use them to work up a formal bid, then will discard them. A teach-
There are of course certain of us, metaphorical “pack rats,” who never destroy or discard anything and consequently retain even the roughest of such notes. There are others who discard them purely out of a sense of neatness, reluctant to retain anything which has served its purpose. And there are those who discard them consciously beсause they do not want them observed by anyone else. What these varying types generally have in common, those who save and those who discard is an absence of guile. In the process of discarding, those who do so intend no deception. There is nothing sinister about their practice. They simply and reasonably feel that their ultimate product has been produced by fair and accurate means, and those means need no longer be preserved. My personal conclusion, based on the encounter of hundreds of such raw notes during 30 years experience at the bench and bar, is that they should routinely be destroyed, for they rarely aid in ascertaining truth, and more often than not generate confusion and consequent falsehood.
I am sure that the dissenter would never condemn this practice as it relates to judicial notes we take during oral argument, later to destroy after writing an opinion. I am equally certain he does not condemn the practice when done by the multitudes of others in other occupations. In my view, he should treat police officers the same. A distinction is not warranted.