People v. Epps (182 Cal. App. 3d 1102, 1986)

Opinion

HOOVER, J.

Statement of the Case

On January 31, 1984, an information was filed in the Tulare County Superior Court charging appellant with one count of murder, including special allegations. On April 30, 1984, a first amended information was filed charging appellant with commission of one count of murder (violation of Pen. Code, § 187, a felony), one count of residential robbery (violation of Pen. Code, § 213.5, a felony), and one count of burglary (violation of Pen. Code, § 459, a felony). The first amended information specially alleged that count 1 was committed while appellant was engaged in the commission of the crimes of robbery and burglary within the meaning of Penal Code section 190.2, subdivision (a)(17). The amended information alleged, with respect to each count, appellant’s prior conviction of residential burglary within the meaning of Penal Code section 667, subdivision (a). Appellant pled not guilty to all counts and denied the special allegations. On May 25, 1984, appellant waived his right to trial by jury on all three counts and the allegations of special circumstances.

A court trial was held and ultimately the court rendered a decision finding defendant guilty on all three counts and finding the allegations of special circumstances to be true with respect to each count and found true the allegation of appellant’s prior serious felony conviction.

Appellant was sentenced to state prison for the term of life without possibility of parole. Appellant was also sentenced to the aggravated term of six years on count 2, including a consecutive enhancement for the prior felony conviction (Pen. Code, § 667, subd. (a)) and the aggravated term of six years on count 3, including a five-year enhancement for the prior serious felony conviction. The sentences on counts 2 and 3 were imposed concurrently and stayed pending completion of the sentence imposed on count 1. Appellant was further sentenced to the term of eight months for the prior serious felony conviction and the sentence was ordered to run consecutive to the sentence imposed on count 1.

Appellant appeals both the decision and sentence.

The Facts

On November 17, 1983, in Porterville, Tulare County, California, Signe Feldman (Feldman), age 77, was killed in her home. Feldman’s home was completely ransacked and various items of property with little actual value were taken. Sheriff’s units were dispatched to the area of the victim’s residence by neighbors who had called to report glass breaking and a general ruckus in the area. Upon arriving, the first unit observed appellant lying on his back in the middle of the road, arms up and hands behind his head, in front of the victim’s home. After the initial contact with appellant and an indication that appellant was going to be arrested for being under the influence of alcohol, appellant broke free of a deputy sheriff and ran away, discarding clothing which was later connected to the crime scene. Appellant was soon apprehended. At about the same time the obvious damage to the victim’s home led to further investigation of what appeared to be a burglary and soon thereafter, a murder. The trial transcript details at some length the near total destruction of the victim’s home and her brutal murder. Suffice to say here that, given the testimony surrounding the conspicuous way in which appellant destroyed the home (several people testified to hearing noises and seeing appellant in the home for up to two hours), the senseless murder of an elderly victim merely for property of insignificant value, and appellant’s aberrant behavior generally, the question of appellant’s thought processes is very significant.

After appellant’s arrest, the investigating officer had the presence of mind to obtain two blood samples and a urine sample from appellant. The blood samples were obtained in the proper manner and one was “preserved” for analysis of specific qualitative content while the other merely secured for eventual typing and comparison with the blood of the victim and blood at the crime scene. The urine sample was obtained in a manner which would prove ultimately useless for any practical purpose in this case. Standard procedures for obtaining urine samples as evidence in driving under-the-influence cases call for the accused to void his bladder and wait 10 to 20 minutes before giving the actual sample to be analyzed. This procedure precludes the accumulation of metabolic waste which would give an inaccurate view of the ratio of alcohol or drugs in the blood at or near the time of the offense. In this case, the authorities failed to have appellant void his bladder prior to collecting a sample of appellant’s urine. Analysis of the sample obtained was sufficient for qualitative analysis but deficient for quantitative analysis including any extrapolation to quantify the presence of intoxicants or controlled substances in appellant’s blood.

During the ensuing investigation and shortly thereafter, officers learned from witnesses that appellant had been drinking, possibly heavily, and may have used drugs. It was also learned that appellant had been in a fight in a bar and had become involved in a discussion with a key witness, Virginia Macri (Macri), about a $20 debt owed by appellant to Macri. The evidence established that appellant and several others had been at Maori’s house the evening before and early morning hours of the murder. Maori’s house is but a few houses away from the victim’s home on the same street. After the discussion of the fact of appellant’s debt of $20 to Macri, appellant and others left. Before leaving, Macri testified that appellant indicated he was “going to go to rob the lady down the street” to get Macri some money and that “somebody might get killed,” and if someone was killed Macri had better not say anything. It was also learned that while the victim’s grandson lived with her, appellant had been a frequent visitor to their home.

As earlier stated, several individuals, including Macri, heard loud noises coming from the victim’s house. The noises continued for an extended period. Two witnesses, Macri and Monte Mitchell (Mitchell), testified to actually having seen appellant standing in an open window of the victim’s home during the time the crime must have been occurring. Mitchell even provided testimony that the noise emanating from the house stopped during the times appellant seemed to be stationary, framed by the open window, staring outside.

Various items of personal property identified by relatives as belonging to the victim were found in a jacket shed by appellant during his attempted flight from the deputies. Shoe prints near the victim’s home matched the soles of the shoes worn by appellant. Appellant’s hands, as well as currency in his possession, were stained with blood which matched the blood type of the victim and was inconsistent with appellant’s own blood type. In short, the physical evidence and eyewitness testimony overwhelmingly established appellant as the perpetrator of this brutal and senseless murder.

The defense sought through testimony of appellant, appellant’s associates and medical experts to establish a pattern of chronic and contemporaneous drug and alcohol use which caused a blackout during the time in question and a mental state incapable of formulating specific intent.

While never disputing the fact that appellant had consumed alcohol and drugs immediately prior to the crime, the prosecution obviously did not concede the issue of intent. Therefore, the ability to present evidence with respect to the blood and/or urine analysis was of considerable importance to the appellant’s position. But for the actions of the prosecution and its treatment of physical evidence critical to the defense of this case, affirmation of this judgment would be simple. This court nonetheless affirms the judgment by applying principles of federal law.

I.

Was Appellant Denied Due Process of Law by the State’s Failure to Preserve Potentially Favorable Evidence and the Trial Court’s Failure to Impose an Appropriate Sanction?

There has evolved in recent years a body of case law which has been described as creating a ‘‘‘constitutionally guaranteed access to evidence.’” (California v. Trombetta (1984) 467 U.S. 479, 485 [81 L.Ed.2d 413, 419, 104 S.Ct. 2528, 2532].) There is probably no concise definition of this right and the courts, state and federal, have employed a case-by-case analysis. To elaborate the history and detail the many cases at this point would probably confuse rather than clarify the problem. Succinctly put, the inquiry is: “What duty does the state have in regard to the collection, retention, and distribution of evidence which might help the accused?” A natural corollary to this inquiry is: “What is the sanction which should be imposed on the state for violation of this duty?” At this point the court notes that there are many logical component parts to this puzzle. It is clear that the evidence involved may be human, in the form of witnesses, or inanimate, in the form of tangible physical evidence commonly associated with crime, i.e., blood, hair, tissue, semen, fingerprints, etc., etc. This opinion will only deal with inanimate physical evidence. It should be noted, however, that earlier opinions, such as Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215, 83 S.Ct. 1194], had little trouble expanding due process considerations with facts which showed a deliberate prosecution act or omission resulting in exculpatory evidence being withheld from the accused.

In the area of the state’s duty with respect to physical evidence potentially useful to the accused, the leading cases have dealt with blood alcohol levels obtained from the blood, breath or urine of accused drunk drivers. Fundamentally this court notes the difference between evidence which is the only evidence probative on the ultimate issue and the situation actually presented by this appeal. While a gross examination of the constitutionally guaranteed right of access to evidence might indicate universal application, actually there are subtle distinctions in the application of the duty and the imposition of sanctions for violation of the right. Patterns have evolved, but it would be presumptuous for this court to attempt to articulate a “majority rule.” It is clear, however, that fundamental considerations exist in different cases: (1) is the evidence objective evidence or subjective evidence; (2) does the evidence seized constitute the primary evidence of defendant’s guilt or merely represent part of a possible defense; (3) what is the methodology of the state regarding the collection of the evidence and its retention; and (4) is the accused charged with specific intent or general intent crimes?

In the instant case there is no issue of whether the need for an independent defense analysis was apparent during the time frame in which these actions occurred. The investigating officer on the night of the murder concluded that blood and urine samples were necessary for testing given the obvious evidentiary considerations in the case. This is not a case of applying 20-20 hindsight to a patrol officer’s conduct, concerning some esoteric application of a judicially created search and seizure rule, where the officer was faced with an instantaneous decision. In this case the officer’s experience and education are obvious. The officer probably felt this was a case involving special circumstances, and the thought processes of appellant, if significantly impaired, would be of critical, perhaps singular, importance. The officer is to be commended on his recognition of the potential problem and his straightforward and proper conduct in obtaining blood and urine samples as evidence. It must have been obvious, even early in the investigation, that the evidence pointing to appellant as the perpetrator was overwhelming.

As it turns out, the officer was correct, and appellant’s mental state was the pivotal issue.

Therefore, from the inception of this case, the blood and urine tests could not have had anything but momentous significance. It is noteworthy that the record from the date of filing the complaint (mid-November 1983) until January 1984 contains little reference to the problem presented. Defense counsel requested the blood and urine samples for independent testing and was repeatedly assured of their ultimate delivery. The record speaks well for what must be the honesty and professionalism of the law enforcement agencies in Tulare County and the state regional laboratories. In this case, however, defense counsel’s reliance on a pattern of behavior was misplaced and occurred in such a manner that, absent the benefit of a crystal ball, could not have been avoided. By the time all the pieces fell into place, the blood sample suitable for qualitative and quantitative testing had been entirely consumed and it was apparent the urine sample was inappropriate for the desired testing.

This case poses a predicament which is not easily reconciled, which is to say, the prosecution very easily could have prevented this calamity. On its first realization that the quantity of properly preserved blood was a problem, the prosecution could easily have informed defense counsel and sought either a mutually agreed upon independent laboratory, an alternate and scientifically sound procedure for testing two smaller-than-usual sampies, or the guidance of the superior court in fashioning a discovery order. The prosecution did not deviate from its standard procedures for analysis of the blood sample. However, this standard procedure ultimately consumed the entire sample. It is possible that the prosecution did not ask and was not told of the gradual attrition of the blood sample. Perhaps the prosecution was negligent in failing to inquire as to the amount of blood actually needed for its standard tests and ignorant of the actual testing processes, including the eventuality of repeated testing. Because the practice and procedure in Tulare County seem to have a reputation in the community for integrity, and because appellant’s trial counsel stated on the record, “Your Honor, I don’t think its any deliberate act on Miss Paden’s part,” this court concludes that the trial court was correct in its ruling that the state was acting in good faith in following its normal procedures, and that there was no conscious effort to suppress evidence beneficial to the defense.

In deciding this case and mindful of the above, this court looks to the prevailing authority in this area. As often cited in both sides’ briefs and arguments, the case of People v. Hitch (1974) 12 Cal.3d 641 [117 Cal.Rptr. 9, 527 P.2d 361] represents this state’s highest court’s definitive statement of the duty to preserve blood samples obtained by the police in criminal investigations. The standard enumerated in Hitch, and expanded by its progeny, is (1) that the evidence must have been material, (2) the authorities must have had knowledge of the potential materiality of the evidence, and (3) the authorities must have destroyed the evidence or failed to follow “rigorous and systematic procedures” to preserve the evidence. (People v. Hitch, supra, 12 Cal.3d at pp. 652-653.)

The burden articulated in Hitch and imposed on the prosecution to establish, enforce and attempt in good faith to adhere to “rigorous and systematic procedures” designed to preserve the evidence has been applied to urine samples (People v. Moore (1983) 34 Cal.3d 215 [193 Cal.Rptr. 404, 666 P.2d 419]) and semen samples (People v. Nation (1980) 26 Cal.3d 169 [161 Cal.Rptr. 299, 604 P.2d 1051]). The test of materiality that appellant must preliminarily satisfy merely requires a showing that there is “ ‘a reasonable possibility that the evidence, if preserved, would have constituted favorable evidence on the issue of guilt or innocence. [Citation omitted.]’” (People v. Moore, supra, 34 Cal.3d at p. 220; People v. Hitch, supra, 12 Cal.3d at p. 649; People v. Newsome (1982) 136 Cal.App.3d 992, 1001 [186 Cal.Rptr. 676].) The Supreme Court in Moore further went on to state that the burden of the defense is satisfied when the “evidence by its nature could reasonably be used to impeach the credibility of the prosecution witness’ testimony regarding the evidence.” (34 Cal.3d at p. 220.)

Appellant and respondent both cite the analogous federal rule as set forth in California v. Trombetta, supra, 467 U.S. at pages 488-489 [81 L.Ed.2d at p. 422, 104 S.Ct. at p. 2534]: “Whatever.duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense. [Fn. omitted.] To meet this standard of constitutional materiality, . . ., evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and also be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.”

Both parties, at least impliedly, assume that either the Hitch standard is applicable or functionally identical to the federal standard and analyze the issue by applying both standards interchangeably. In appellant’s view, the Trombetta test “incorporates the first two steps of the California analysis, stating them as a single requirement, and adds the requirement that the defendant have no reasonably available means to obtain equivalent evidence.”

Neither party addresses the question of whether Hitch or Trombetta is the controlling law in California. It seems well settled that law enforcement agencies, prosecutors and courts have accepted the responsibility of safeguarding evidence from being lost to defense counsel. Hitch and its progeny have resulted in far greater care than ever before concerning the preservation of evidence. The real issue in these types of cases deals with the methodology of handling the evidence and sanctions, if any, to be imposed in cases where evidence is lost or made inaccessible. It is important to note here again that in the instant case defense counsel indicated and the court found that the loss of this evidence was not deliberate on the part of the prosecution.

Therefore, operating in an area where it is well settled and accepted that the state must at least reasonably attempt to safeguard evidence, we turn to an analysis of the controlling authority in situations such as this one where the evidence is lost or unavailable. The application of Hitch or Trombetta is critical to the resolution of this case. The California Supreme Court has stated “[i]t is apparent that the Trombetta formulation of the duty-to-preserve test differs substantially from our own Hitch standard.” (In re Michael L. (1985) 39 Cal.3d 81, 86 [216 Cal.Rptr. 140, 702 P.2d 222].) In People v. Tierce (1985) 165 Cal.App.3d 256, at pages 262-263 [211 Cal.Rptr. 325], this court concluded that the truth-in-evidence provision (Cal. Const., art. I, § 28, adopted by initiative, Primary Elec. (June 8, 1982) as Prop. 8) mandates that “the due process issue and the materiality issue in the case now before us must be decided by virtue of the application of principles of federal law” and California v. Trombetta, supra, becomes the guiding precedent. This court must carefully approach the task of reaching the ultimate conclusion whether Trombetta is the applicable law. Tierce seems to apply, with a broad brush, Proposition 8 to Hitch when it states: “In view of the mandate of California Constitution, article I, section 28, subdivision (d), both the due process issue and the materiality issue in the case now before us must be decided by virtue of the application of principles of federal law.” (People v. Tierce, supra, 165 Cal.App.3d at p. 263.) Two. fundamental questions are posed by the reasoning in Tierce: (1) Are evidentiary rules of exclusion for violations of other than search and seizure provisions covered by Proposition 8, and (2) is Hitch decided on federal or state law?

The first question is far more complex than it initially appears. In Tierce, this court quoted from In re Lance W. (1985) 37 Cal.3d 873 [210 Cal.Rptr. 631, 694 P.2d 744]: “What Proposition 8 does is to eliminate a judicially created remedy for violations of the search and seizure provisions of the federal or state Constitutions, through the exclusion of evidence so obtained, except to the extent that exclusion remains federally compelled.” (In re Lance W., supra, 37 Cal.3d at pp. 886-887.) It might therefore be argued that Proposition 8 only applies to search and seizure, or Fourth Amendment violations. It should be noted that In re Lance W. was a Fourth Amendment situation. Hitch, whether resting on state or federal grounds, involves due process and is not otherwise covered by a privilege or statute and thus seems exempt from Proposition 8. The question is how can Hitch be overruled by Proposition 8 as stated in Tierce. The answer can be found by careful consideration of the language of Proposition 8, the language in In re Lance W., and the language in other recent decisions. The net effect of this analysis leads this court to conclude that the applicability of Proposition 8 can be stated as follows:

Whenever the remedy for the violation of a federal constitutional right, regardless of whether it is search and seizure, due process, right to confrontation, etc., is not covered by a California statutory scheme such as privilege, and involves the exclusion of evidence, Proposition 8 requires the court to apply federal judicial standards.

This conclusion is drawn from the express language of Proposition 8, which states: “Except as provided by statute hereafter enacted . . . relevant evidence shall not be excluded in any criminal proceeding . . . .” (Cal. Const., art. I, § 28, subd. (d).)

Also, despite the fact that In re Lance W. states the applicability of Proposition 8 to “search and seizure” violations, the California Supreme Court has indicated in subsequent opinions that Proposition 8 also applies to cases involving other than search and seizure violations.

A footnote in In re Lance W. itself states “[t]he question of whether section 28(d) mandates admission of evidence obtained in violation of other constitutional guarantees is not presented by this appeal and we do not, therefore, address amicus’ further assertion that evidence obtained in violation of a defendant’s Sixth Amendment right to counsel must be admitted under the mandate of section 28(d).” (In re Lance W., supra, 37 Cal.3d at p. 885, fn. 4.)

People v. Weaver (1985) 39 Cal.3d 654, 659 [217 Cal.Rptr. 245, 703 P.2d 1139] concluded the exclusionary remedy adopted in People v. Coleman (1975) 13 Cal.3d 867 [120 Cal.Rptr. 384, 533 P.2d 1024], which establishes use immunity in a subsequent trial on criminal charges for the testimony of a probationer given at a probation revocation hearing, “survived Proposition 8 because that remedy falls within the exception to section 28, subdivision (d), which preserves preexisting statutory privileges.” (39 Cal.3d at pp. 656-657.) Thus the court in Weaver implicitly found that Proposition 8 was applicable to a state exclusionary remedy for violation of a constitutional provision other than search and seizure, but concluded that an express exception stated in the initiative saved the exclusionary rule in this case.

Therefore, Tierce is correct in its conclusion that Proposition 8 compels an application of federal rules, and in cases involving this “constitutional guarantee of access to evidence” resolves that Trombetta is the relevant standard. Resolution of the question of whether Hitch is founded in state or federal law may not be necessary since Proposition 8 seems to compel application of federal principles in either event. Since some confusion remains in the area, we will deal briefly with this aspect of the case. Hitch was decided in 1973 by a nearly unanimous California Supreme Court. The only dissent came from Justice Mosk who wrote of the essential unfairness of the effect of the ruling which concluded that due process was in fact violated but applied the rule prospectively. Hitch was decided on due process grounds, incorporates federal standards, and cites federal cases as authority.

After Hitch there was a proliferation of California cases which expanded the concept of a “constitutionally guaranteed access to evidence.” Certainly the spread of the reasoning announced in Hitch has found a broader footing in California than in the federal courts. The idea that Hitch was based on independent state grounds, as stated by this court in Tierce (165 Cal.App.3d at p. 263), is agreed with by Chief Justice Bird, who, dissenting in In re Michael L., supra, 39 Cal.3d 81, at page 101, stated: “I believe it necessary to emphasize that the duty-to-preserve principles announced in Hitch rest on independent state grounds.”

However, the by-the-court opinion in Michael L. concludes that “[i]n Hitch, we held that the /