*1 No. 16915. [Crim. In Bank. Oct. 1974.] PEOPLE,
THE Plaintiff Appellant, HITCH,
WARNER HERBERT Defendant and Respondent.
Counsel General, Winkler, Evelle J. Younger, Jack R. Attorney Chief Assistant General, Moore, General, S. Clark Attorney Assistant Frederick Attorney Millar, Jr., Schwab, R. General, and Howard J. Deputy Attorneys Deem, C. Trom and Stanley Woodruff J. District Attorneys, Nancy Sieh, District Deputy for Plaintiff and Attorney, Appellant. W. Borrell for Defendant
Roger Respondent. (Los Shabo, S. Harold Buckley, Richard Public Defender E. Angeles), Defender, Amici Public Renzi & Kilbride and Fred Kilbride as Deputy t . Curiae on behalf Defendant and Responden Opinion
SULLIVAN, J. Defendant Warner Herbert Hitch was arrested on Sep- 10, 1970, tember vehicle while motor under influence of driving *4 Code, (Veh. 23102.) liquor. In of his intoxicating § fulfillment implied blood, consent to a chemical test of breath his or urine for the purpose Code, (Veh. intoxication 13353), he chose to submit a determining § test of his breath and the a officer administered arresting test breathalyzer at him the jail.
The used in breathalyzer the test is an electrically powered apparatus to calculate the designed extent alcohol in the circulatory sys- suspect’s tem. The blows into a and a suspect tube his breath is sample trapped inside the The machine. is then to bubble trapped'sample permitted through a test glass ampoule three cubic centimeters of 0.025 containing percent dichromate potassium in a acid solution 50-percent-by-volume sulphuric which a acts as reagent any alcohol the breath. suspended suspect’s If alcohol is in the it present a in the color and sample, produces change the light of-the transmissibility solution. the aof beam Upon light passage test the through the ampoule, relative of the light transmissibility solution is on a registered meter which calculates the of alcohol in the percent suspect’s blood. is calibrated as to a reading by
The machine so provide establishing between the test and a reference correlation ampoule ampoule the the identical in It is essential to test that a accuracy specification. three cubic be centimeters of solution exactly quantity present checked in the machine and a test each. This is gauge ampoule is discarded. meeting requirement defendant, test to the officer followed
In administering breathalyzer outlined above. The test standard showed blood alcohol procedures test, level of At conclusion milligrams 0.20 officer percent. the contents of the test into a and threw bottle poured ampoule glass away itself. He then delivered bottle to the Ventura County ampoule dis- eventually its established policy which according crime laboratory the contents. posed trial, breathalyzer the results of moved to suppress
Prior to and its contents of the test that the destruction ampoule test on ground at which received law. hearing due him of process After deprived test, the court found facts the breathalyzer testimony concerning expert the test of conducting and the method of the as to apparatus operation and that them above “given ás we have recounted to be substantially of the another reference the reference ampoule availability ampoule, contents, the bubbler tube” lot, and of the test same ampoule ampoule had occurred that retest the chemical actually change it was possible concluded the test.1 The court the test during in the contents of tube and the the bubbler test its contents preservation ampoule,- of value to both prose- would information reference ampoule provide destruction defense; that the intentional nonmalicious cution and the valu- by making of lаw these defendant of due items deprived unavailable; section 13354 required that Vehicle Code able evidence should items, breathalyzer the results of the of such preservation to Penal dismissed the action should be pursuant and that suppressed Code section 1385. *5 and dis- to motion the court defendant’s
Accordingly, granted suppress the the followed.2 missed action. This by appeal People of the suppression the settled rule that intentional
We start with it constitutes has to a defendant who requested material favorable bad faith of the or due of the good violation-of process, irrespective 150, U.S. 153-154 (1971) 405 v. United States [31 prosecution. (Giglio always possible alia that it is findings 1 In its detailed found inter the court and it if specifications retest it conforms to ampoule the and contents to determine if solution; always possible it that requisite contained the three cubic centimeters of solu potassium dichromate percent to determine whether there was in fact a 0.025 tion; ampoule glass of the reference optical ampoule the the and defects in test test; will may accuracy of a retest accuracy have on the that the an effect the and test, the manner in depend upon elapsed the actual such as the time since factors stored, chemical ampoule and the continued which the test and solution have been original the change upon a retest of the test and that conte’nts accuracy. duplicated cannot be 100 percent with County reversed Ventura Appellate Department Superior 2 The of the Court of the case judgment court that transfer Upon certification dismissal. and to uniformity decision necessary Appeal appeared to secure to the Cfurt District, law, Appellate Appeal, Second important questions of the Court settle Court, (See Rules hearing and decision. Cal. said case transferred to for ordered dis judgment of seq.). Appeal reversed 61 et Division One of said Court rule hearing granted a We municipal for trial. court and remanded cause to missal in this court. 6 104, 108, Maryland 763]; Brady (1963)
L.Ed.2d S.Ct. v. U.S. 215, 218, 1194]; Ferguson In re L.Ed.2d 83 S.Ct. [10 1234].) Cal.3d 532 and cases there cited 487 P.2d companion Brady, In and a Boblit were found guilty his murder in the first trials and sentenced to death. At degree separate crime, but trial and admitted in the Brady took stand his participation claimed that done the actual In his Boblit had summation to killing. jury, counsel conceded that the defendant was of first Brady’s guilty degree murder, return a verdict “without asking only jury capital punish- ment.” Brady’s Prior to trial counsel had prosecution per- requested mit him to examine Boblit’s statements in their extrajudicial possession. In to the had shown response request him several state- prosecution ments but withheld one in which Boblit admitted the actual doing killing. after Brady discovered this his trial. The court held “that the high sup- pression of evidence to an re- favorable accused prosecution quest violatеs due where the evidence is material either guilt to punishment, of the or bad faith faith of the irrespective good prosecu- (Brady tion.” Maryland, supra, 215, 218].) 373 U.S. L.Ed.2d Giglio In both Ferguson and held be ma- suppressed terial, had a on the In bearing credibility key witness. prosecuting the former the failed to an prosecution alleged promise disclose witness that he would if he testified for the key prosecuted govern- ment; in the latter the failed to disclose the witness’s arrest and sex commitment record. Ferguson, Brady
In on of this court decisions relying declaring rule,3 same that thé district held attorney suppression prose cution sexual hus offenses of evidence as to the victim’s kidnaping band’s arrest record and commitment to as a sex state hospitals degenerate *6 of a fair he had the defendant trial even made deprived though no request for the the evidence. “Al of On the last production point explained; a though may of evidence be factor to consider request production evidence, of we have charge determining suppression recognized must, that ‘in some circumstances without disclose request, Lessard, substantial material evidence (In favorable to the accused.’ re supra, 497, 509.) 62 Cal.2d disclose and duty Conditioning produce evidence would mean that the to disclose would be in upon duty request Ferguson, supra, 3 SeeIn re among at cites p. opin Cal.3d 532 which others our (1.9.65) ions in In re Cal.Rptr. Lessard 62 Cal.2d and P.2d 39] re 6], In Imbl'er 60 Cal.2d 567-570 387 P.2d both Brady. which upon relied situations where the failure to disclose would to numerous applicable (In Ferguson, supra, trial.” re at the accused of fair Cal.3d deprive 532.) p. Giglio Ferguson, evidence was neither lost Brady,
In and suppressed but in existence. review nor remained destroyed continuously Upon review, was or the court in.a entire record on conviction appeal post evidence, decide whether or not was examine the suppressed position or not it and to determine whether favorable to accused ultimately was record ... by material entire “looking] light . . not the other evidence of only guilt circumstances . considering] (In Ferguson, supra, . .” re 5 Cal.3d any also other defense evidence . . 525, 533.) contexts, that In these if the has failed to establish defense material, the court reach the conclusion may suppressed that its did not affect the the trial and therefore nondisclosure fairness of not denial due if the has did constitute a defense Conversely, process. material, the may established that the evidence is court then suppressed that that there has been a denial due the conviction conclude process, that be at reversed and the cause remanded for a new trial which should be will be able to his defense with full access to the material defendant present information. bench, case results to the at we first observe
Turning test their nature constitute material evidencе on very breathalyzer need the issue of innocence of drunk We charge driving. or guilt Code, the Vehicle inter alia section only point provides if in a blood at the of the test the amount of alcohol time person’s blood, his urine was 0.10 analysis as shown chemical or per breath “it be was under cent more shall presumed person weight, offense.”4 at the time of the the influence alleged intoxicating liquor Giglio Ferguson, Thus the situations evidence sub corresponding test results of the would appear stantially affecting credibility and the of such evidence would deny to material suppression a fair trial.
However, namely in the case before us suppressed contents, has been destroyed. and its reference ampoule, to, we do have this Unlike the courts in the three cases referred just us that we can determine whether critical evidence in the record before so *7 and material to the issue of his it would have favorable to defendant been as deter alcohol provides in detail that amount 4 See section 23126 which “affecting the burden give presumptions various mined the test shall rise to proof.” 642, Bryant (1971) v. (See States F.2d or innocence. United guilt 132].) can decide these issues refer Nor 647-648 App.D.C. as set forth at the of the court. municipal Although, ence to findings it that the this concluded beginning opinion, preservation contents, the and the its reference bubbler tube ampoule, value and that the destruction of еvidence will information of provide trial, only value to the defense can to defendant of fair operate deprive specific court and did could no.t not decide that municipal which was was both favorable defendant and material to the destroyed issue or innocence. guilt
We what must therefore decide a court should determine principles where, here, claim for relief a defendant’s as to dis- evidence subject in and the is closure no existence court therefore unable ascertain longer was, been, or whether such evidence would have favorable defendant th.e his and material on issue innocence. or guilt context, In another we ’have cognate enforced rule applied failure or to disclose governing identity refusal where an informer under similar circumstances it cannot be established unknown, testimony, informer’s which is of course is favorable and material.
To relief to the defendant in these we have situations provide consistently expounded and rule: “When from the applied following appears evidence that an informer is material witness the issue on of the defend ant’s the informer’s guilt, identity may defendant and helpful nondisclosure would him aof fair trial. The must either deprive People (Price Court, disclose his identity Superior or incur dismissal. 1 Cal. Court, .; 3d Superior . . Honore v. 842-843 70 Cal.2d .; People v. McShann, . . .)” Cal.2d . (People . . v. Hunt 231, 239 Cal.3d 205].) 481 P.2d In all of these cases we recognized the task which the de- impossible fendant faced in show that the would seeking informer be a favorable Price, and material witness. As we explained “The defendant need not that the inforiher prove would give testimony favorable to the defense order to disclosure his nor need he compel identity, in- prove was a former even an participant eyewitness to the de- crime. The fendant’s ‘burden extends only to a that “in showing view of the informer would be a material witness on the issue of and non- guilt disclosure of his would identity a fair trial.” deprive however, “That burden is [Citation.] when discharged, defendant demon- strates a reasonable possibility anonymous iden- informant whose *8 is on issue of which result could evidence the tity sought might give guilt in defendant’s . .” the nature of the [B]y very exoneration. . problem here to state which defendants is for them .confronting impossible facts would show the do of the informant’s Since materiality testimony. they know his what he will if identity they say cannot state factually possibly he is All do that defendants are is to demon- testify. required required strate “a reasonable the . . could that informant . anonymous possibility evidence on issue give of result in exonera- guilt might [their] tion.” italics.) (1 843!) Cal.3d at (Original [Citation.]’” p. these cases closely analogous
We nondisclosure problem find There, here, as evidence was in us. the no'ndisclosed now before one defendant, as had as if it been effectively destroyed. “lost” to the a real sense Code, (Evid. 140) rather deal with demonstrative evidence here § While witnesses, we the difference of no find testimony than with the living would re- normally since it were available and disclosed it if significance a witness to facilitate its introduction and living the testimony quire in the it. as instance informer Accordingly just explain possibly on who favorable might seeks witness .evidence give defendant innocence, seeks or so in situation defendant issue of present guilt on the issue of his evidence which favorable to him demonstrative might situation, is the evidence lost to innocence. In former or guilt exercise its as a withheld the state’s by result being privilege situation, the evidence is lost to de- disclosure. In instant against the authorities. In the former situation fendant been destroyed hаving has there is a reasonable we have said that if the defendant shown that that could possibility anonymous informant favorable give . innocence, must be disclosed identity on the issue or his guilt Ap- if, us, to the case before we are of the view that given this rationale plying contents, the test its and the reference availability is favor- they there a reasonable would constitute ampoule, possibility innocence, must on the issue then such evidence able evidence of guilt be disclosed.
As stated trial court concluded that the its ampoule, previously contents, the and the bubbler tube used in the reference ampoule original test, if of value to both the would information provide prose- preserved, clаim, this cution and the defense. to the conclusion is Contrary People’s reasonable and the evidence. Sincé there findings supported ’device and their con- the above testing possibility components tents the results of the would accuracy credibility impeach test, issue the defendant-driver’s constitute material evidence on the they are, therefore, We if this evidence were or innocence. satisfied that guilt *9 650
available, its are due would disclosure. We also satisfied process require were and not and if the cause that if this evidence available disclosed had convicted, and had been due to trial would proceeded process have reversal a direction with to disclose required prosecution it for use But this has de- on retrial. since in fact material evidence been stroyed and can never be on any produced, urge duty People their has to disclose been dissolved and have been they fully finally part affairs, exonerated of any from this state of on essentially consequences of theory impossibility compliance.
We this contention and the which As reject theory upon grounded. 642, 651, was said Bryant, supra, in United States v. “It is 439 F.2d most consistent [Brady with those and the safeguards federal purposes to hold that discovery of disclosure attaches in duty some form rules] once the has Government first the evi- taken gathered possession Otherwise, dence in disclosure be avoided by questiоn. might destroying vital evidence before or before defendants hear begins of its prosecution made, existence. Hence hold that before has been discovery request duty operative duty preservation.” disclosure is as a (United States Bryant, 642, v. supra, (italics added).) F.2d This court also has the same recognized duty of evidence to be dis- preservation required closed due Brady. under the The duty requirements People’s disclose the identity of an who is a informer material witness on the issue includes guilt duty “undertake reasonable efforts to obtain infor- mation defense locate (People such an informer.” v. may Goliday 113, (1973) 537]; Cal.3d 505 P.2d Cal.Rptr. [106 v. Superior Court (1970) 1 Cal.3d Eleazer
However it does follow that sanction of dismissal which we have the refusal of the imposed upon disclose official information prosecution Hunt, its as to the (see People of an possession identity supra, informer v. 4 Cal.3d cited, 231 and other supra) cases is necessarily appropriate upon the failure of the to disclose information no in its longer pos- or, session due words, to loss or destruction it in other its put failure to disclose such information because of its failure to it. We preserve observe that in similar situations United States Court has held Supreme and mode sanctions imposition depend upon particular circumstances such loss attending or destruction. Augenblick
In
United States
Reversing judgment high there had been no denial of due a defect in the court process constituting martial. (18 were covered the Jencks Act U.S.C.A. Although tapes 3500), the court § “the Government bore the burden of explained, pro- so,” them it could not do an was ducing why “earnest effort explaining them,” made to locate extensive was received as the nature testimony and existence of the and as to “the routine in Navy’s tapes handling such and the “record is devoid of credible evidence that using recordings,” were (393 they U.S. 355-356 L.Ed.2d suppressed” passim [21 544-545]) that had not been in bad presumably meaning they suppressed (See Bryant, 642, 651, faith. United States supra, F.2d as inter- so this see (9th 1972) also United States v. Sewar preting phrase; Cir. 236.)
F.2d Killian v. in United States Similarly U.S. 231 L.Ed.2d 256, 82 S.Ct. where a 302], notes were government destroyed agent’s after into being Court found no viola- incorporated report, Supreme “if, tion of due since after served that were having they purpose, destroyed in faith and in accord with agents good their normal would be clear their destruction did not practice, constitute an im- destruction of evidence nor permissible of any right.” deprive petitioner (Id. at L.Ed.2d at 264].) p. p. Bryant,
In United States v. supra, F.2d where a narcotics destroyed of the critical agent conversation tape recording occurring the narcotics transaction because it was during allegedly unintelligible, court, Brady, Augenblick after and other cases discussing synthesized their clear holdings following statement duty, prosecution’s “Augenblick we find makes clear extremely persuasive; only circumstances of the in these cases should be relevant tape’s disappearance that, sanctions. It also while sanctions question proper suggests ,cases
should be of bad faith excep- an imposed suppression good tion will be made loss. . An for faith exception good faith ... loss of evidence must not be allowed to swallow the important discovery rules, explanation and the burden on the heavy Government must be a one; but criminal convictions otherwise based on sufficient evidence may long to stand so as made ‘earnest permitted Government efforts’ preserve discovery crucial materials and to them once a request is find made. For the will ‘earnest efforts’ be defined future The quite strictly. [¶] Augenblick Court’s to the Supreme references ‘routine in han- Navy’s such, dling and in an earlier using recordings’ to an opinion exception *11 for loss ‘in faith and in accord with . good . . normal suggests practice’ importance regularity in preservation vital evidence. Of of of course, the regular for procedures be to the preservation must adequate task; systematic of Government under- non-preservation involving tapes in. agents cover cases before but would be might regular, the. —as us— insufficiently defendants’ protective to we right discovery. Accordingly, hold that sanctions nondisclosure based on loss evidence will be in the invoked unless the Government can show that promul- it has future gated, attempted and good rigorous in to syste- and enforced faith follow procedures designed matic preserve to all discoverable evidence gathered in the course a burden, course, criminal The investigation. is on the to Government make' this failure to showing. Negligent with the comply excuse. required procedures no . . . A will'provide so crucial as right [¶] that of disclosure not to be built on . . . ought sands. It shifting ought, rather, rules, to be protected systemаtically and applied systematically (United enforced.” Bryant, supra; States v. F.2d (italics 651-652 added); Comment, Response see Judicial to Governmental Loss or De- struction (1972) 542, 558-565; Note, Evidence 39 U.Chi.L.Rev. Dis- Evidence, 1971 Duke L. J. -644.) coverable p.
We think that the rule Bryant declared the federal court in provides now solution before us problem chemical test involving of a .for Code, (Veh. 13353). driver’s breath As we have § test explained, its contents and the reference ampoule, used in the customarily ampoule test constitute material evidence on the issue driver’s in guilt nocence of the a vehicle under the charge driving influence of intoxicat We conclude that the ing liquor. involved in investigative agency the test has a duty disclose such evidence. we Accordingly preserve that, where, here, hold as such evidence cannot be disclosed because- of its officials, intentional but nonmalicious destruction sanc investigative tions future be shall for such and non imposed nonpreservation disclosure unless can show that the prosecution governmental agencies established, involved have enforced and faith adhere attempted good the test and systematic procedures designed rigorous' preserve ampoule used in such test. The and its contents and the reference chemical such duty shall bear the burden demonstrating pre prosecution serve the and their contents has been fulfilled. If the prosecution ampoules its then the results of meets burden makes required showing, test shall be admissible even breathalyzer ampoules tjiough I its and theif contents have lost.5 f fails to meet prosecution been burden Finally then court shall sanctions for nondisclosure. apply hold that in such latter event6 due shall not dismissal of require the action but shall that the results breathalyzer require merely be excluded from evidence.7 Municipal
As in Van Halen v. out Court pointed Cal.App.3d “Evidence or other chemi- breathalyzer 140]: cal test is not a element of for drunk necessary Many driving. defendants were tried and convicted of- that offense before chemical long used; tests were discovered or since here was arrested before petitiоner Covington Municipal *12 (1969) 5 In Cal.Rptr. Cal.App.2d [78 Court 273 470 563] the court held that because the destruction of the test the officer police faith, good was in procedure, in accordance with to standard and tantam.ount intentional suppression, holding there no process. was denial of due While this accu Augenblick rately applied Covington the good faith of evidence exception, loss the Bryant holding court of course did subsequent not have the benefit of the opinion preservation of all required by process. material is due discoverable Anything Covington contrary is opinion disapproved. to this 6 We do not address the proper ourselves to where there is evidence sanction presеrve bad faith failure to the but .rather address ourselves to the situation where the law negligently enforcement authorities have failed institute and enforce proper preservation procedures. the 7 A bad faith to preserve susceptible failure and is ampoules the their contents they the inference that destroyed were the actual test results were- different because above, case, reported. pointed from those As ampoules, out' the the if normal available, results, merely impeach would rarely the test but would if ever conclu However, sively establish innocence. bad destruction raises an inference that faith ampoules may the could be demonstrate innocence. In such well an dismissal instance proper the sanction. 80, (1959) 78 A.L.R.2d 901] Cal.App.2d In re In Newbern for drunkenness arrested person it a of due to refuse the court held denial expense at alcohol level his own test of his blood opportunity an to obtain chemical (Veh. Code, Now, implied the consent statute discharged petitioner. under the chemical of his breath who chooses a test seq.) person § 13353 et the arrested foregoing private relying on this test and may be lulled into his innocence establish destroy supporting officials the If the law enforcement test his own. independent faith, would the actual results thereby raising the inference that evidence in bad sanction, innocence, appropriatе may be an appear it would that dismissal indicate Newbern, We cannot was refused. where the court said: “This [the test] as in had the evidence charged, police the would have why. If he was drunk as wonder doubt to cast some opinion. their refusal tends the blood test to corroborate Their Newbern, 866.) (In 862, supra, Cal.App.2d opinion. .” re their . . administered, breathalyzer there must was exist evidence necessarily
from officer the fact arresting tending show of his intoxication. If the excluded, evidence of the test is breathalyzer there no reason why not, desire, if may forward with whatever People they go other may proof be available.” Indeed the other well be The may ma proof overwhelming. ampoules terial evidence of the and their provided by preservation con tents serves the function of the test Results.Therefore possibly impeaching the test should results balance the failure suppressing fully improper preserve evidence. It is potentially that where impeaching noteworthy material evidence which would be of in the value potential impeachment of a witness has been lost improperly destroyed by gov ernment, federal decisions indicated that have sanction to appropriate is the imposed of the witness’ suppression (United States v. testimony. Bryant (1971) F.2d 259]; Augello United States v. App.D.C. (2dCir. 1971)451 F.2d 1167;Comment, supra, 561.) 39 U.Chi.L.Rev. at
We must now turn our attention to case hand. disposition earlier, As intimated which we have determined rule foregoing effect, announce have that is that it today only shall shall prospective apply tests administered after date this “The only breathalyzer opinion. (a) criteria retroactivity] resolution of guiding question implicate [of standards, (b) new to be the extent the reliance served purpose standards, (c) law on the effect enforcement authorities old on of a justice administration retroactive of the new standards.” application (St v. Denno 388 U.S. L.Ed.2d 297 [18 ovall 1967].) 87 S.Ct. The sanctions on imposing prosecu purpose tion where material evidence favorable to defendant has been non- *13 the maliciously lost or afford defendant to the course to .destroyed is of fullest еxtent a fair trial. On the other hand cannot realistic facts ignore breath, in to the respect of these chemical tests of administering namely isit the standard and almost uniform for law enforcement procedure officials the state to the and throughout their contents destroy ampoules’8 and that law enforcement has in faith followed relied generally good and this procedure. in view the Finally, number extraordinarily large of arrests for drunk and the number of in driving large proportionately stances where the breath, arrestee has chosen test of his we are con vinced that retroactive any rule we application announce herein would have a and harmful unwarranted on pervasive, effеct the administra tion of justice. We therefore hold that effect be only shall prospective given 1219.2(d), 1219.2(a) Code, 8 Title required California Administrative blood and urine sections retention specimens adjudicated,” “until case has while been requirement section 1219.3 imposed samples. no such respect with to the breath only the rule shall to our decision and that announced today applied this tests of breath administered after date of filing chemical opinion.9 bench, the case and their con In at destruction the ampoules tents was in faith and good authorities in accomplished investigative with law Such conformity standard enforcement intentional procedures. or nonmalicious destruction loss of evidence falls within the ambit loss of in good rules faith were governing applied United Augenblick, Covington States v. and supra, U.S. 348 Court, Municipal supra, (See ante.) fn. In 470. such Cal.App.2d circumstances, and the rule which we today since announce does not apply ;as-. case, the instant the evidence results of retrospectively test should -not have breathalyzer been suppressed.
The order the results of the and breathalyzer dismissing suppressing the action is reversed and the is remanded to court cause municipal trial. J., McComb, J., Tobriner, J., Burke, Molinari, J.,* J., C. and Wright, concurred.
MOSK, J. I dissent.
Once of the court well- again majority generally produce involved, considered discussion on the of law and substantive issue then founder on their rule affected in thereby, party directly applying this instance the defendant. two only there are the notion
My learned colleagues persist rule: a new court-made application available adapting alternatives ante, at This is evident from the retroactively discussion prospectively. time 654-655. Yet I have out and that there is a again pages pointed third, rule to aggrieved alternative: new applying preferable, attention, thereafter issue to judicial for bringing party responsible Cal. in In re Stewart (See my concurring opinion prospectively. 568]; P.2d dissenting opinion 3d *14 513, P.2d 857, 519 (1974) In re Cal.3d 867 Cal.Rptr. Yurko 10 [112 (1970) Mihaly v. 561]; in Westbrook concurring dissenting opinion 765, 487].) 839, 2 802 471 P.2d Cal.3d [87 respect in to newof rules prospective application 9 Fоr on the similar conclusions v. Eleazer preserve see comparable to material duties the 780, 111, Court, 847; People Goliday, supra, Superior supra, v. Cal.3d 1 Cal.3d footnote 7 and cases there cited. the Council. by the Judicial * Assigned Chairman the criteria for
It is curious that
majority selectively quote
guiding
(1967)
in Stovall v. Denno
new standards described
U.S.
applying
1199,
1967],
L.Ed.2d
87 S.Ct.
and then
proceed
ignore
293 [18
case, i.e.,
of the
discussed
that very
resolution
that'the original
problem
before the court must
benefit of a decision which
given
litigant
creates new
Stovall declared that
United
the rule established in
rights.
1149, 87
1926],
(1967)
States v. Wade
If case an this is not to be mere opinion majority academic exercise advisory (see with characteristics an opinion People Lynch Superior (1970) ex rel. Court 1 Cal.3d Cal. 912 [83 126]), 464 P.2d the result must Rptr. necessity party apply involved, Instead, directly Hitch. majority appear citizen, deem him to be an unselfish a bono public-spirited pro performing service law by reform the solely for utilization future helping litigants. This is a noble role which I am certain defendant would eschew happily for the to taste the exchange fruits his elusive right victory. a
There is second defect in the grave The defendant majority opinion. intentional, maintаined that nonmalicious, admittedly destruc- though tion of the him of due of law ampoule valuable deprived by making evidence unavailable. I concede that the issue does not rise to arguendo (United Augenblick constitutional dimensions States v. U.S. 528]), L.Ed.2d 89 S.Ct. nevertheless whether was a valuable exhibit tfie necessary defendant’s adequate defense is an matter evidentiary ordinarily reserved to the trial court’s resolution. -there,
Under comparable lost document —the Ninth circumstances— Circuit found trial court to be dismissal within its “inherent (United (9th 1958) States v. Heath power.” Cir. 626.) F.2d Said the court: unfairness to “any defendant should be eliminated trial To judge. on trial prevent possible prejudice beyond general atmosphere courtroom, impartiality traditionally the- pervades trial have wide judges discretion to methods of control.” Here the trial after concluded judge, thorough hearing, evidence was destroyed necessary to accord defendant a fair trial. I am reluctant to second-guess the trier of fact on what is an essentially factual elementary determination.
Indeed, throughout majority there is the opinion concession implicit *15 to a defense evidence is necessary against proper physical so, I it to rationalize a result which in find impossible That charges. being correct, trial court are and the physi- effect advises the defendant: you defense, have fair without your you may cal evidence is vital trial, off to trial must you go. My colleagues, despite handicap court, the defendant to vault to the trial direct pole acquittal— reversing without a pole. would
I affirm order.