THE PEOPLE, Plаintiff and Respondent, v. JOSEPH ANTHONY ZAMORA, Defendant and Appellant.
Crim. No. 21063
Supreme Court of California
Aug. 28, 1980.
Respondent‘s petition for a rehearing was denied October 16, 1980.
Irwin Siegel for Defendant and Appellant.
Quin Denvir, State Public Defender, Charles M. Sevilla, Chief Assistant State Public Defender, Wilbur F. Littlefield, Public Defender (Los Angeles), Dennis A. Fischer and Robert Berke, Deputy Public Defenders, A. Wallace Tashima, Tracy S. Rich and Morrison & Foerster as Amici Curiae on behalf of Defendant and Appellant.
John K. Van de Kamp, District Attorney, Harry B. Sondheim, Donald J. Kaplan and Richard W. Gerry, Deputy District Attorneys, for Plaintiff and Respondent.
Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Norman H. Sokolow, Acting Assistant Attorney General, Howard J. Schwab and Carol Wendelin Pollack, Deputy Attorneys General, Burt Pines, City Attorney (Los Angeles), George C. Eskin, Chief Assistant City Attorney, Rand Schrader, Laurie Harris and S. Thomas Todd, Deputy City Attorneys, as Amici Curiae on behalf of Plaintiff and Respondent.
TOBRINER, J.—Defendant appeals from convictions for battery on a police officer (
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 аre 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
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 provоcation.
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
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
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 postconviction 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.”
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, 527 P.2d 361]; Dell M. v. Superior Court (1977) 70 Cal.App.3d 782, 786 [144 Cal.Rptr. 418].) Although comрlaint records themselves may not be material evidence, the defendant is entitled to discovery of such records because they may lead to evidence admissible under
The prosecution does not dispute the fact that the city attorney‘s office destroyed complаint records, and that the destruction of the records deprived defendant of the opportunity to locate witnesses who might
The prosecution urges as its first contention that the city council authorized thе destruction by a resolution adopted pursuant to
Furthermore, as we noted earlier, the resolution of the council did not comply with
Secondly, the People may not avoid sanctions by reliance upon our statement in People v. Hitch, supra, 12 Cal.3d 641, 652-653, to the effect that “intentional but nonmalicious destruction” of evidence did not warrant sanctions if “the governmental agencies invоlved have established, enforced and attempted in good faith to adhere to rigorous and systematic procedures designed to preserve” the evidence. The present record discloses no “rigorous and systematic procedures” designed to preserve evidence, but the wholesale destruction of records previously preserved.6
3. An instruction to the jury relating the destruction of the complaint records to the officers’ testimony is the appropriate sanction in the present case.
Defendant argues that the only appropriate sanction in the present case is dismissal of all charges against him. The People, on the other hand, relying on the trial court‘s failure to find bad faith, urge that only minimal sanctions or none at all be imposed. As we explain, in our view, this case, falling between the two positions, calls for a severe sanction but one short of dismissal of the charges.
We first observe that the courts enjoy a large measure of discretion in determining the appropriate sanction that should be imposed because of the destruction of discoverable records and evidence. “[N]ot every suppression of evidence requires dismissal of charges.... The remedies to be applied need be only those required to assure the defendant a fair trial.” (Brown v. Municipal Court (1978) 86 Cal.App.3d 357, 363 [150 Cal.Rptr. 216]; see Dell M. v. Superior Court, supra, 70 Cal.App.3d 782, 788.)7
Review of prior cases suggests the factors that guide the exercise of that discretion. First, “the imposition and mode of sanctions depends upon the particular circumstances attending such loss or destruction.” (People v. Hitch, supra, 12 Cal.3d 641, 650.) Thus lawful and proper destruction requires no sanction (Pope, supra, 83 Cal.App.3d 795; Robinson v. Superior Court, supra, 76 Cal.App.3d 968); illegal and malicious suppression of evidence may result in dismissal (see People v. Mejia (1976) 57 Cal.App.3d 574 [129 Cal.Rptr. 192]; Dell M. v. Superior Court, supra, 70 Cal.App.3d 782).
Second, the sanction depends on the materiality of the evidence suppressed. In Hitch, for example, we noted that bad faith destruction of evidence which might conclusively demonstrate innocence could require dismissal. (12 Cal.3d 641, 653, fn. 7.) Suppression of evidence which might impeach a witness for bias, however, may result in a new trial instead of a dismissal (Giglio v. United States, supra, 405 U.S. 150); suppression of evidence immaterial to the charge invokes no sanction (see Dell M. v. Superior Court, supra, 70 Cal.App.3d 782, 788).
Finally, the courts must consider the impact of the sanction upon future cases and future police conduct. If a sanction is to deter suppression of records and evidence, it must contain a punitive element; it must outweigh the benefit that the prosecution gains from the suppression. At the same time the court must bear in mind the public interest in law enforcement, and the harm which may be inflicted by a sanction which prevents the trial and conviction of possibly guilty future defendants.
We examine the record in the present case in light of the foregoing considerations, looking first at the circumstances of the destruction of the records. Two municipal court judges, after hearing and argument, found that the destruction here was not malicious or perpetrated in bad faith; on the limited record of this case we cannot overturn that finding. Nevertheless, the police department and the city attorney‘s office knew that the records were subject to defense discovery. Thеy knew, too, that
Militating against defendant‘s proposed sanction of dismissal, however, is the fact that the suppressed records do not contain material evidence. If the records had not been destroyed, defendant could have learned the addresses and phone numbers (several years old) of persons who made unsustained charges against two of the officers involved. Defendant could possibly have located some of those persons; they might possibly have been suitable witnesses; the jury might have believed them and inferred that the officers, having used improper force in the past, did so again when they entered the Zamora residence. But this chain of possibilities, leading at most to impeachment evidence, does not demonstrate the need for the severe sanction suggested for suppression of conclusive evidence (see People v. Hitch, supra, 12 Cal.3d 641, 653, fn. 7) or material witnesses (see People v. Mejia, supra, 57 Cal.App.3d 574).
Finally, we recognize the desirability of the imposition of some sanction to deter future destruction of records or evidence in similar circumstances. We therefore reject the suggestion that the jury should merely be told that records of unsustained complaints were destroyed; such a proposal imposes no penalty on the prosecution; the prosecution may well prefer such an instruction to the nuisance of having to produce records for discovery.
The threatening effect of the sanction upon future law enforcement, however, compels us to reject the claim that dismissal is the appropriate penalty. If we ordered dismissal of the charges against this defendant, then on any future occasion when a defendant is accused of assaulting or resisting Officer Soelitz or Officer Schroyer, such defendant could claim the officer‘s use of unnecessary or excessive force provoked the encounter, and demand discovery of the complaint records. Similarly, any time either officer was an essential witness to an assault of another person, the defendant could demand the records to investigate whether the officer was biased. Since the records have been destroyed and could not be produced, the defendant in such a future case being similarly sit-
Thus the trial court could foresee as the consequence of a dismissal in the present case the creation of a cadre of police officers who could not be called upon to quell a disturbance or to make an arrest because those resisting their authority could not be prosecuted. Indeed, the officers’ personal safety might be seriously endangered. A police officer performing his duties will necessarily arouse anger and incur enmity; public knowledge that an assailant cannot be convicted for an assault on the officer would pose an extreme hazard.9
The officers named in the complaints did not decide to destroy the records of thе complaints; the Los Angeles City Attorney‘s office did so. If that destruction were unlawful, and executed with the intent to thwart defense discovery, sanctions ranging from internal disciplinary measures to criminal prosecution (see
For the foregoing reasons, we conclude that the appropriate sanction is that set out in the opinion of the Court of Appeal. According to that opinion, upon remand of this case, the court should instruct the jury that Officers Soelitz and Schroyer used excessive or unnecessary force on each occasion when complaints were filed against those officers, but
In our opinion, the sanction of a jury instruction will adequately redress the actual harm done to defendant by the destruction of the complaints. It will not, of course, provide him with a live witness who can testify to past police misconduct. The instruction, however, substantially favors defendant in other respects. First, it assumes that the destroyed records would have led defendant to favorable evidence; in reality, defendant might not have been able even to locate the witnesses identified in the records or, if he had found them, the resulting testimony might have proven useless. Second, the instruction deprives the prosecution of the opportunity to rebut the evidence of past misconduct by the оfficers. Finally, it prohibits the jurors from rejecting such evidence, although in the absence of the instruction such rejection would have been their prerogative.
We would thus tailor the sanction to compensate for the exact wrong done; we would attempt to remedy the harm to the victims by giving them the approximate equivalent of the destroyed records of the complaints. We prefer this redress to the imposition on the officers of the drastic penalty of denial of current and future defenses.
4. The trial court‘s failure to impose the sanction of an adverse finding constitutes prejudicial error.
With respect to this point we adopt the opinion of the Court of Appeal. It explained that: “The evidence presented at trial was closely balanced, as is reflected in the fact that defendant‘s two codefendants both escaped conviction.... Indeed, the trial was essentially reduced to a credibility contest in which the testimony of the arresting officers was to be weighed against that of defendant and his witnesses. Since all of the witnesses who testified on defendant‘s behalf were either friends
For the foregoing reasons the judgment is reversed.
Mosk, J., and Newman, J., concurred.
MANUEL, J., Concurring and Dissenting.—I concur in the judgment. While I am in accord with the views of the majority as to why the extreme sanction of dismissal should not be imposed, I am of the belief that under the circumstances disclosed by the record the severe penalty suggested by the Court of Appeal and adopted by the majority is unreasonable.
This is not a case where evidence existing contemporaneously with or subsequent to the event in question was destroyed. Rather, as the majority notes, the evidence was destroyed about two weeks before the incident at the Zamora home. Nor is this a case where evidence was destroyed in order to put this appellant at a disadvantage. (Maj. opn., ante, pp. 94-95.) Judge Sauer concluded that there was no showing that the destruction was done to keep defendant from receiving information contained in the destroyed documents. Judge Waters concluded that the records were not destroyed deliberately, maliciously or willfully.
Unlike People v. Hitch (1974) 12 Cal.3d 641 [117 Cal.Rptr. 9, 527 P.2d 361], we are not here concerned with an item of evidence which is
This is not a case where the missing records were known to contain meritorious complaints of police conduct. Rather the complaints involved here were unsustained.
The best that can be said for the defendant‘s position, in the record before us, is that the records were destroyed in apparent violation of
Under the circumstances revealed by the record in this case, it would appear that the most that defendant could reasonably expect would be an instruction based on
BIRD, C. J., Concurring and Dissenting.—I concur in the judgment and, fоr the sole purpose of achieving a single majority position to guide the trial court on remand, I join in the instructional directions to the trial court set forth in Justice Tobriner‘s opinion. However, I respectfully disagree with the reasoning of the lead opinion since it would effectively foreclose dismissal as a sanction in any case which involved the wholesale destruction of discoverable evidence. As a result, the lesson the police will draw from this decision is that if they maliciously destroy all the records which contain discoverable materials at one time, they do not have to fear any sanctions or reprisals. However, if they refuse on a case by case basis to disclose discoverable records, they face the possibility of dismissal of their case and contempt of court. (See Dell M. v. Superior Court (1977) 70 Cal.App.3d 782 [144 Cal.Rptr. 418].) I cannot join in reasoning that sanctions such an illogical result.
Notes
“Further, since the prosecution‘s agreement to comply with defendant‘s discovery request included an express promise to supply the addresses of the citizen complainants, the People will likewise not be heard to argue now that the production of some of the complainants’ names alone was sufficient for compliance or that the missing addresses would, in all probability, have been usеless to the defense because of their ages. We note only that even if a substantial number of the complainants were no longer living at the addresses stated in the destroyed files, the addresses, if available, could no doubt have provided leads to the complainants’ current whereabouts.”