People v. Von Villas (10 Cal. App. 4th 201, 1992)

Opinion

FLYNN, J.—

I

Procedural Background

Robert Anthony Von Villas and Richard Herman Ford were charged in a 16-count information filed on October 14, 1986. For convenience, the information shall be considered as charging three separate sets of counts: The Loguercio conspiracy to commit murder counts; the Schaffer & Sons jewelry store robbery counts; and the Weed murder counts. The third set of counts involving the murder of Thomas Weed was severed from the information and tried separately. This opinion relates only to the first two sets of counts.

A. The Loguercio Conspiracy and Attempted Murder Counts

Both defendants were convicted by jury of conspiracy to commit murder (Pen. Code, §§ 182/187 [all statutory references are to the Penal Code unless otherwise indicated]). The charge contained 31 overt acts and named Joan Loguercio as the target. They were also convicted of the attempted murder of Ms. Loguercio on June 17, 1983, as well as on July 7, 1983 (§§ 664/187). Charges that a principal was armed with a firearm were found to be true as to both defendants. (§ 12022, subd. (a).)

Von Villas was acquitted of a charge that he attempted to administer stupefying drugs in committing the attempted murder of Ms. Loguercio (§ 222), while Ford was convicted of that charge.

B. The Schaffer & Sons Robbery Counts

Sue Martin, Theresa McKinney and Marilyn Lance Klass, employees of Schaffer & Sons jewelry store, were victims of the three robbery charges for which both defendants were convicted (§211). The defendants were also convicted of conspiracy to commit the robberies (§§ 182/211) and the special allegations that a principal was armed during the three robberies were found true (§ 12022, subd. (a)). Ford was found to have personally used a firearm (§ 12022.5). The jury found both defendants took property worth more than $100,000 (§ 12022.6). Both defendants were also convicted of felony false imprisonment charges as to each of the three victims (§ 236). As to the false imprisonment charges, the jury found that both defendants took funds and property worth more than $100,000; that a principal was armed with a firearm (§ 12022, subd. (a)), and that Ford personally used a firearm (§ 12022.5). Finally, the jury found both defendants had committed assaults with a firearm (§ 245, subd. (a)(2)) as to the three victims, and, again, that the property taken during the assaults was of a value exceeding $100,000.

C. Sentencing

Von Villas was sentenced to a term of 35 years to life, while Ford received 36 years to life. They appeal from their convictions below.

II

Facts

A. The Robbery of the Schaffer & Sons Jewelry Store

On Monday, November 22, 1982, at approximately 8:45 p.m., manager Sue Martin, assistant manager Marilyn Lance (née Klass), and merchandise coordinator Theresa McKinney were preparing to close the Northridge Mall branch of Schaffer & Sons, a jewelry store. A man entered, placed a black brief case on the counter, retrieved a handgun from it, and pointed it at the three women. He forcefully herded them into the restroom and, after warning them that he was going to tie them up, stated, “Hands behind your back, palms together.” By this time Ms. Martin realized she had dropped her key ring which contained means of access to the safe room as well as the jewelry counters.

The bandit told all the women that his partner had a police band radio that would notify them in advance if any of the women pushed an alarm. He closed the door and, for the next 20 minutes, the women heard scuffling or rattling in the shop. The intruder then opened the door, said, “O.K., Ladies?,” and shut the door.

None of the women saw the alleged accomplice.

Upon reentering the store, the women noticed that it appeared closed for the evening, with the display cases covered with their usual blue or white drapes and the front accordion door pulled closed. Ms. Martin’s key ring could not be found, and the door to the safe room was open. This was unusual, since it was closed and locked during business hours. Metal containers which had stored loose diamonds in individual diamond papers or bindles were empty, and the money which Ms. McKinney was counting was missing. Many trays had been dropped, and a number of finished pieces of jewelry, including ladies’ fashion rings and mountings, were gone. Brass mountings, on display as samples, were also missing. The entire inventory of loose diamonds could not be found. The police arrived later that evening to take reports.

The bandit, later identified as Ford, wore a dark overcoat, appeared to be in his late 40’s, was of large frame, and stood about 6 feet tall. He appeared to be wearing a full artificial beard which was very neatly trimmed and “salt- and-pepper” in color. His hair also appeared not to be real because it, like the beard, was too well trimmed and too cleanly lined. His ruddy complexion was medium and of uneven texture. During the robberies, he was wearing flesh-colored surgical gloves.

Marie Chodkowski, with her daughter Michele, had parked their car at the Northridge Mall at approximately 7:30 p.m. on the evening of the robbery. After shopping, they returned to the car at approximately 8:55 p.m. and noticed two men, later identified as Von Villas and Ford, standing in a parking area. Ms. Chodkowski thought Von Villas and Ford were made up like movie characters, and noticed that both looked away as she and her daughter approached. After placing their packages in the car, Ms. Chodkowski and her daughter observed that Ford, the bearded man in the dark overcoat carrying a black briefcase, was gone, and that Von Villas, also bearded and mustachioed and wearing a tan overcoat, was entering the mall. Ms. Chodkowski felt it strange that these men would enter the mall at closing time. She and her daughter decided to follow them. They observed Von Villas enter the Schaffer & Sons store and close its accordion doors as he removed his tan overcoat. They could not see into the store, but continued to observe, as they notified someone to contact security. After three security guards appeared and departed, Ms. Chodkowski and her daughter observed Ford and Von Villas, wearing their respective overcoats, with Ford carrying the black briefcase, leave the store. Ford pulled the doors closed as he left. Von Villas was observed to peel off a pair of what appeared to be surgical gloves and place them in his pocket. The two headed toward the parking area. The Chodkowskis then went home and called the police to report what they thought was a robbery.

Mr. Castro, one of the three security guards who appeared at the jewelry store, observed that the accordion door was not closed, and that a White male, matching Chodkowski’s description of Von Villas, was in the store covering the display counters. Mr. Castro was asked by the male if there was anything he could do for him, to which Mr. Castro replied “no.” Mr. Castro detected nothing unusual in the store.

Mr. Laguna, one of the three security guards, also observed two men in the jewelry store conducting themselves as though they were employees closing the store. They were removing jewelry from the display cases, but Mr. Laguna could not see where they were taking it. Assuming all was well, in spite of the fact that he had never seen the two men before, he left to complete his rounds.

With respect to the opinions of several witnesses that Ford and Von Villas wore wigs and other disguises on the evening of the jewelry store robbery, the prosecution called Mr. Robert Fuller, an actor and an acquaintance of Von Villas’s. Sometime during October of 1982, shortly before the robbery, Von Villas telephoned Fuller and told him he, Von Villas, was going undercover and needed a makeup man who could provide a disguise. Mr. Fuller referred Von Villas to Mr. Jack Stone, a makeup man with significant experience. Mr. Stone then contacted Darlis Chefalo, an expert wig designer, and advised her that he needed wigs made for two undercover federal narcotics officers. She agreed to accept the job, and Mr. Stone accompanied Von Villas and Ford to her house where they were introduced as Dick and Bob. She arranged to purchase wigs for them, while Mr. Stone acquired beards and moustaches. The wigs were treated so as to make Von Villas and Ford appear older by use of a salt-and-pepper appearance. In working to perfect the disguise, Ms. Chefalo applied dark makeup on both men three times, the last time being on November 18, 1982. Extra makeup was provided, so the men could create the disguises themselves. She had suggested to them that Mr. Lotito, a true makeup expert, would be more skilled in changing their appearances, but Von Villas refused to let anyone but Ms. Chefalo do the makeup. As they left her house on November 18th, Von Villas and Ford told her to forget she had ever seen them.

Although there were difficulties encountered by Schaffer & Son employees in presenting an accurate inventory of each item taken during the robbery, Ms. Martin had taken inventory on October 19, 1982. One of the diamond parcel papers or “bindles” in that inventory was marked N.R.M. 200B45. The same parcel was in inventory on November 9, 1982. N.R.M. meant North Ridge Memo, an indication that the stones contained therein were a part of that store’s inventory as opposed to other branches of Schaffer & Sons. The diamond parcel containing the identifying notes would be removed from the diamonds when they were sold, and a clean parcel would be provided. Two hundred thirty-nine diamonds were taken from the store during the November 22,1982, robbery. Their wholesale value was $62,361, and the retail value was twice that. In addition, certain brass rings used for samples when customers wished to purchase gold rings of the same design were taken during the robbery.

Many of the loose diamonds taken during the robbery were similar to those either traded by Von Villas for other goods or services or to those found in his home during execution of a search warrant on July 8, 1983. The bindle containing the marking N.R.M. 200B45 was also recovered during the, execution of the warrant, but was inadvertently lost while in police custody. Other bindles and a brass ring, created by a jewelry designer who provided similar rings of this nature to Schaffer & Sons, were also recovered during the search.

Both Von Villas and Ford were active duty officers of the Los Angeles Police Department (LAPD), assigned to the Devonshire Division on the date of the robbery. At one time Von Villas had been assigned to the one-person substation at Northridge Mall, which was run by Officer Jim Dellinger at the time of the robbery. Thus Von Villas probably knew that the substation was unmanned on November 22, 1982. Northridge Mall was within the jurisdiction of Devonshire Division.

LAPD Detective Roger Dunn, an expert in undercover narcotics operations, opined that it was not the practice of LAPD to use officers disguised with makeup and beards in undercover narcotics investigations because the disguises could come off or be disturbed in the midst of the investigation.

LAPD Detective William Gailey, a classmate of Ford’s in the training program at LAPD, indicated that part of their training was to use proper handcuffing techniques, which included use of the command, “Hands behind your back, palms together.” Officer Tortorici, who worked with Ford for about a year, observed Ford handcuff several dozen people and heard him say, on many occasions, “Hands behind your back, palms together.”

Von Villas and his then partner Officer Glenn Bedford worked together on November 22, 1982. They routinely used “rovers” or “walkie talkies” that were checked out from the Devonshire Division’s equipment room. Von Villas was assigned Rover 3457 that day. Both Rover 3457 and 3453 were logged as missing after Von Villas’s shift concluded at 4:45 p.m. Rover 3456, assigned to Officer Bedford, was returned on time. Rover 3453 had been assigned to the Northridge Mall substation. Some time before the evening of November 23, 1982, Rover 3457 reappeared in the equipment room.

Ms. Diane Withers, a high school classmate of Von Villas, met him at a restaurant in Redondo Beach with other classmates in December, 1982. Von Villas told Ms. Withers that he could get some very good diamonds at half price. He said he could get a $10,000 stone for only $5,000. He also told Russell Kafel, another participant in the gathering, that if anyone was interested in diamonds, he could get them a good deal.

Von Villas, sometime between December 1 and December 24, 1982, approached Mrs. Elaine Neveaux, a nurse at Northridge Hospital. Away from his LAPD partner, he told Mrs. Neveaux and others that he had diamonds to sell. Mrs. Neveaux, who had known Von Villas for 10 years through her ex-husband, an LAPD officer, was familiar with the value of diamonds. She thought the prices quoted by Von Villas were considerably lower than retail.

Von Villas had been a customer of Schaffer & Sons for several years prior to the robbery. After the robbery, he made several contacts with other jewelers and business persons in an effort to sell loose diamonds to them or barter them in trade for other items, such as automotive repair equipment, tools and furniture. Many times he was successful.

In addition to the many stones and pieces of jewelry seized during the search of Von Villas’s residence, police officers recovered a pair of surgical gloves in a boot in the master bedroom and a small revolver under the bed.

Ford’s residence was searched on July 8 and 15, 1983. These searches led to the discovery of the overcoat worn during the robbery, the hairpiece used as a disguise, and makeup materials, including a container of pancake materials labeled with the name “Stone.” Several weapons were also recovered.

Early in 1983 Von Villas visited Bill Justice Custom Jewelry to have what he believed was a pure gold ring sized and used as a mounting for some loose diamonds. Connie Baisley, a jeweler working for Bill Justice, cut into the ring and found it to be brass. Von Villas was notified of this, and thereafter had a mold made of the brass ring so that gold rings could be produced. He and Ford both purchased gold rings made from the mold. The brass ring provided by Von Villas was one of the brass rings taken during the Schaffer & Sons robbery.

Ford also actively attempted to trade loose diamonds on March 2, 1983.

In January 1983, both Von Villas and Ford admitted committing the Northridge Schaffer & Sons jewelry store robbery to Bruce Adams. Both Von Villas and Ford threatened to kill Mr. Adams if he ever revealed anything about the jewelry store robbery.

B. The Loguercio Conspiracy and Attempted Murders

Von Villas had conducted business with a mortgage broker, Gayl West, on several occasions. She had, through M.B. Financial, arranged to finance certain real estate transactions brought to her by Von Villas in the past. She met with Von Villas in January 1983, at a Marie Callender’s restaurant in Northridge, to discuss a real estate loan. At the conclusion of the meeting he told her that if she knew anyone who wanted a contract put on anybody, to let him know. He said they could both make a commission on such an arrangement. Ms. West became concerned, because Von Villas was not joking. At this time, Von Villas mentioned he had a friend, Joan Loguercio, recently divorced, who needed an appraisal of her home to enable her and her husband to split the profits. Although Ms. West was shocked by Von Villas’s comment about putting out contracts on people, she did arrange to have Russell Cartwright conduct the Loguercio appraisal.

Von Villas had contact with Ms. West sometime between January and April, 1983, when he was assisting Linda Sintic, a friend, with a real estate loan. During the negotiations, Von Villas told Ms. West he would supply diamonds as security for the loan. When asked where he had obtained the diamonds, he said it was none of her business.

Marilyn Petretti met Von Villas in May of 1983 and saw him socially from May to July. During that period she saw him with loose diamonds in his possession. Von Villas complained to her about his inadequate salary, and said he could have people killed if he felt they were doing the wrong thing. He claimed to know many people with whom he could arrange another’s death.

Joan Loguercio met Von Villas in March 1982, when she reported to the Devonshire station that her son had run away. Von Villas came out to talk to her about it, and they became friends. He wanted to help with her divorce and home loan problems. Eventually, Ms. Loguercio agreed to a “paper sale” through which Von Villas would buy her home, while she continued to live in the house. This would enable Von Villas to qualify for a loan on Ms. Loguercio’s house. An arrangement was made whereby Von Villas would acquire a life insurance policy covering each of them, Von Villas and Ms. Loguercio, so that the survivor would receive $100,000. The ostensible purpose of the policy was to cover the mortgage payments on Ms. Loguercio’s home. On May 20, 1983, Ms. Loguercio signed an insurance document and she submitted to a medical examination on May 23, 1983. The plan for Von Villas to acquire a loan on the Loguercio house never materialized, but an Allstate term policy, as described, was issued; it was picked up by Von Villas. He paid the premiums on May 20, 1983.

Von Villas was incorrectly advised by the insurance agent that the policy was in full force and effect. However, the lack of an insurable interest present as required by Insurance Code section 286, made the policy invalid.

Ms. Loguercio was an exotic dancer at the Honey Bee Club, and later at the Venus Faire. Von Villas introduced her to Bruce Adams in order for her to obtain employment at International Automotive, an automobile repair shop in which Von Villas had an interest and of which Mr. Adams was manager. Harris Omburn, Ms. Loguercio’s live-in boyfriend from December 1982 until 1984, also knew Mr. Adams and had seen Von Villas at International Automotive.

One night in June 1983, Ford visited Mrs. Loguercio while she was performing at the Venus Faire. He tipped her $320 for her 20-minute performance. She gave him her telephone number and promised to meet him at a motel the following Friday. Ford posed as “Dr. A” or “Dr. Anderson” and offered her $1,000 to be with him. Ms. Loguercio was apprehensive and called Von Villas to have him check out Dr. Anderson. Von Villas called Ms. Loguercio back later in the day and advised her that Dr. Anderson worked for a pharmaceutical company, had lots of money, and that she should “go for it.” After she had made the appropriate reservations, Ford called and cancelled the Friday night tryst.

Three weeks later “Dr. Anderson” called Ms. Loguercio and requested that she set up the same type of motel arrangement, which she did, for the evening of June 17, 1983. He promised to pay any of her bills and told her he could write a check for $20,000 to buy her husband out of the house. They were to spend the night together, then go to Dr. Anderson’s bank where he would get the $20,000. Ms. Loguercio noticed that Ford (Dr. Anderson) and Von Villas were echoing one another in their comments—particularly concerning her need for money.

Ford arrived at the Hollywoodland Motel at approximately 9:30 p.m., and he and Ms. Loguercio drank Vodka and orange juice. She took three “uppers” which were among the several drugs Ford brought to the room. He wore a brown wig, and gave Ms. Loguercio $2,000. After several sexual acts, Ms. Loguercio became concerned when, after she was told to lie facedown on the bed with her hands underneath her, Ford sat on her back and tried to have intercourse with her. She looked back toward him and saw his hand in the air coming down at her. Something dark was in his hand and she heard an elastic-like snapping sound. She turned and jumped up as Ford tried to hide the item in his hand beneath the covers. She was frightened and refused Ford’s request that she lie down again. After returning most of his money to him, she dressed and left, claiming that she was ill.

Ms. Loguercio did not report the incident to the police. She did tell her boss at the Venus Faire, Scott, her boyfriend, several of her girlfriends and, a bit later, Mr. Adams and Von Villas about the incident and her belief that Dr. Anderson tried to kill her.

On June 18, 1983, Ms. Loguercio called Von Villas, who returned the call about two days later. Von Villas, in responding to her description of what happened at the motel, reassured her that it was not, as she had perceived, a murder attempt. He asked if she would see Dr. Anderson again. She refused.

Von Villas then began calling Ms. Loguercio rather frequently. Von Villas was interested in her work schedule and that of her boyfriend. She became anxious about the insurance policy situation, and asked Von Villas to cancel the policy. Von Villas claimed he had forgotten the name of the insurance agent.

On July 6,1983, Ms. Loguercio met with Mr. Adams at the Greek Gardens Restaurant. She told him she believed Von Villas wanted to kill her for insurance proceeds and described the motel room incident with Dr. Anderson. She believed the killing would take place on July 7, 1983, after she got off work at the Venus Faire.

The next day, July 7, 1983, Mr. Adams called her and told her to go to work and not to worry. He called her again that day and asked her out for drinks or dinner after she got off work that night. She agreed.

Mr. Adams and Ford had become friends at the Sepulveda Veterans Administration Hospital where they both received treatment for posttraumatic stress as Vietnam veterans. Mr. Adams was a mechanic and experienced in the care and handling of automatic weapons.

On November 4, 1982, Mr. Adams and Ford took a trip together to Colorado in Ford’s station wagon. During the drive Ford stated that he had planned and executed a diamond robbery and had planned another one to take place in Century City at a jewelry mart. He told Mr. Adams that he had obtained salt-and-pepper wigs from a professional makeup artist. It was a friendly trip of four days’ duration. The purpose of the trip was to buy automatic weapons; Ford knew Mr. Adams was experienced in dealing with such devices because of his Marine Corps experience.

Just before Thanksgiving of 1982, Ford introduced Mr. Adams to Von Villas. After Mr. Adams did some repair work on Von Villas’s car, Von Villas and Ford arranged to open an automotive repair shop, International Automotive, with Mr. Adams as the operator. Ford mentioned that he was planning a jewelry store robbery in Northridge, but that it was too close to Devonshire Division, where he worked. Von Villas listened to this conversation and asked Mr. Adams if he could acquire a “cold plate,” one which was no longer registered and had not been reported stolen, in order to disguise the identity of his 1969 Pontiac Grand Prix. Such a “cold plate” was found under the seat of Von Villas’s car during a subsequent search thereof.

Around November 28, 1982, the three men met again to start up International Automotive by finding a location and obtaining automobile parts. During this meeting Mr. Adams was shown a shoebox containing approximately 90 loose diamonds and about 20 rings which Von Villas took from the trunk of the Grand Prix. Ford also handled loose diamonds in Mr. Adams’s presence. Von Villas offered to trade the diamonds for merchandise.

Von Villas and Ford, as indicated, threatened at this time to kill Mr. Adams if he ever revealed anything about the jewelry store robberies.

In January 1983, Ford and Von Villas had an argument at the offices of International Automotive wherein Ford accused Von Villas of failing to do his job in the Northridge robbery. Ford said he had to enter, take down the customers, and tie them up, while Von Villas merely stood there in the door and waved at two security guards. Von Villas claimed that he had done his job during the robbery. Both Von Villas and Ford once again warned Mr. Adams to say nothing of the robbery or he would be killed.

Mr. Adams finally decided to report matters to the authorities after receiving additional death threats from Von Villas. The automotive repair business was not working out financially, and Von Villas needed money. Von Villas, aware of Mr. Adams’s capabilities with automatic weapons, told him that Mr. Adams should go to El Toro and pick up certain automatic and semiautomatic weapons, ammunition and tear gas. Mr. Adams refused. Von Villas again threatened to kill Mr. Adams, and told him that he would receive a telephone phone call from “a guy at El Toro.” Mr. Adams received such a call from a Hal Hansen who described certain weapons and said to Mr. Adams that he would call again to confirm a meeting. Mr. Adams never heard from him again. After Von Villas confirmed that Hal Hansen was the person who would contact Mr. Adams about the weapons, Mr. Adams contacted the FBI and was referred to federal Alcohol, Tobacco and Firearms (ATF) agents in Van Nuys sometime in June 1983. Mr. Adams deemed contact with LAPD as too dangerous since Von Villas and Ford had warned him that if he tried such a contact they would find out about it and kill him.

As it turned out, Mr. Adams had conferred with Agent Oddo of ATF before his appointment to meet Ms. Loguercio on the evening of July 6,1983, when she expressed her fear that Von Villas and Ford were trying to kill her to obtain the insurance proceeds. Fearing that Ms. Loguercio was being used by Von Villas to obtain illegal firearms, Agent Oddo affixed a body transmitter on Mr. Adams’s body. The conversation wherein Ms. Loguercio expressed her fears was thus recorded.

On July 7, 1983, Von Villas arrived at International Automotive shortly before noon. Mr. Adams confronted Von Villas with Ms. Loguercio’s allegation that he, Von Villas, was trying to kill her for the $100,000 insurance proceeds, and that “Dr. Anderson” was Ford. Von Villas became evasive and denied the allegation. When Mr. Adams related the facts surrounding the attempt on Ms. Loguercio’s life at the Hollywoodland Motel, Von Villas “got real nervous” and started to stutter. Ford then arrived and Mr. Adams confronted him with the “Dr. Anderson routine.” Ford and Von Villas then left the office. Five minutes later they returned and Von Villas asked Mr. Adams if he wanted to “make the hit.” Mr. Adams agreed in order to further elicit details for Agent Oddo’s benefit. Von Villas told Mr. Adams that he had to help because Ms. Loguercio was afraid of both Ford and Von Villas. Ford would actually do the “hit” with Mr. Adams accompanying him. Ford and Mr. Adams would receive $12,500 each.

Mr. Adams then called Ms. Loguercio. While talking to her about their midnight meeting planned for that night, Von Villas handed him three notes with questions which Mr. Adams blended into the conversation. The notes concerned how much her boyfriend knew, if she would go to dinner and perhaps a motel with Mr. Adams, and a reminder to Mr. Adams that he would get $12,500. These notes were recovered and, after expert analysis, were found to have been written by Von Villas.

Von Villas then told Mr. Adams that the “hit” had to look like a sex crime and that it had to take place in Hollywood. He added that this would make the killing look like just another prostitute case, and that Hollywood homicide teams were overloaded with cases so the investigation would be slow. Ford was told by Von Villas to find a location for the body to be dropped and to find some rug or rubber pad under which Ford could hide in the back of Mr. Adam’s van, the vehicle which would be used for transportation that night. Although Mr. Adams was wired with a transmitter, the recording of the conversations made in his presence was unintelligible because of mechanical difficulties.

At approximately 3 p.m. on July 7, 1983, Mr. Adams met ATF Agent Oddo and made three monitored and recorded phone calls, one to Von Villas at his home and the other two to Ford. Ford confirmed that the body would be dropped off at Orange Drive, just off Mulholland, and requested that Mr. Adams obtain some long-necked bottles. That afternoon ATF agents installed electronic surveillance equipment in the van. LAPD was notified by Agent Oddo about the plans for the night.

At approximately 9 p.m., Detective Henry Gardena, LAPD, observed Ford arrive at International Automotive carrying a large guitar case and a dark briefcase which he referred to as “a homicide kit.” Ford told Mr. Adams again that the murder had to look “like some maniac got a hold of this woman and just plain did her." Ford was planning to drug Ms. Loguercio with Tuinal capsules. Two individuals dropped by the shop at this point and, after they left, Ford said ‘that’s two people that can put us together now.” This comment was taped.

About 9:40 p.m. Ford and Mr. Adams left the shop and proceeded to the Venus Faire for a rehearsal of the plan. Ford reassured Mr. Adams that he had gloves so he could punch Ms. Loguercio’s teeth out. The van arrived at 11629 Van Owen where it backed behind a building to an area with several loading or trash bins. Ford and Mr. Adams were looking for a place to dump the body. The van then went to a 7-Eleven store in North Hollywood. Mr. Adams got out and went into the store, while Ford rearranged the blanket in the back of the van. Ford returned to the passenger seat and began mixing Tuinal in the beer that Mr. Adams had just purchased. He also started laying out the contents of his “homicide kit.”

At 11:45 p.m. the van parked in front of the Venus Faire and Mr. Adams got out and walked towards the establishment. Detective Gardena and other LAPD officers then converged on the van and arrested Ford, who was underneath the blanket in the back of the van. He had a loaded .22-caliber Derringer in his pocket. At approximately 2 a.m. Von Villas was arrested at his home on Goshen Street in Simi Valley.

Ford’s homicide kit contained two knives or daggers, a mask, lubricating jelly, rope, a pair of brown gloves and containers of pills.

At trial, Mr. Adams was impeached with prior inconsistent statements and declared to be less than credible. He was characterized as dishonest and a liar. It was also alleged that he had received preferential treatment by the officers in return for his cooperation as a prosecution witness in the case.

C. The Von Villas and Ford Defenses

Von Villas denied participation in the Schaffer & Sons robbery, denied admitting that he committed the robbery to Mr. Adams and denied that he had planned to kill Ms. Loguercio.

Von Villas had worked in several overtime jobs and was a successful real estate investor and businessman. His comment to Gayl West that he could arrange to have people taken care of was merely a suggestion that, because he had worked as a bodyguard, he could arrange for that type of protection for others. He attributed the appearance of the rubber gloves in Ms boot to Ms ownersMp of a ranch in Simi Valley, where horses were boarded and rubber surgical gloves were used in providing them first aid. The ranch had been traded for the Goshen Street house. He inherited several pieces of jewelry from Ms mother’s estate on her death in 1970, and bought many loose stones in Hong Kong prior to her death, when he was recuperating from wounds received in Vietnam. He began seriously trading diamonds in 1982, but only those wMch he had acquired legally. The brass ring wMch allegedly was in the possession of Schaffer & Sons was acquired from Mr. Bill Justice at the Simi Valley swap meet. As to the bindle marked with notations, wMch was lost wMle in police custody, Von Villas recalled acquiring several plain paper bindles from a jeweler named Mr. Kaplan. He also recalled going to Schaffer & Sons in late October or early November 1982, where he wrote information provided by the salesperson at the jewelry store on the plain bindles. He claimed the notations on the lost bindle were in Ms writing.

Von Villas met Ford in the late 1970’s or early 1980’s. Ford asked Von Villas if he could help obtain a disguise for Mm so he, Ford, could attempt to find the man who raped Ms wife, a drifter who frequented the streets of Hollywood. Both men acquired the disgmses and makeup from Ms. Chefalo after being referred by Jack Stone. Von Villas and Ford cruised the streets of Hollywood in search of the rapist.

Von Villas did in fact attempt to assist Ms. Loguercio in her efforts to finance the paper sale of the house owned by her and her ex-husband, and did indeed arrange for the acquisition of a life insurance policy that would serve to cover mortgage payments upon the death of either him or her. Von Villas always knew, however, that there was no insurable interest in existence and would not be until escrow closed on the sale. Because it never closed, he knew that the policy was not in full force and effect on July 7, 1983. He never told Ford about the insurance policy until that date. He never discussed with Ford any plans to drug Ms. Loguercio at the Hollywoodland Motel on June 17, 1983, although he knew Ford used the “Dr. Anderson” name in order to facilitate his encounters with her. He denied that Ms. Loguercio told him that “Dr. Anderson” tried to kill her on that night.

Von Villas was experiencing grave business problems at International Automotive because Mr. Adams was performing shoddy work and stealing money from him. There were strong words between them. On the afternoon of July 7, Von Villas and Mr. Adams once again traded harsh words based upon customer dissatisfaction, and Mr. Adams responded, “Joan thinks you’re trying to kill her.” Von Villas stated that Mr. Adams should not play games, to which Mr. Adams stated, “if the price is right, I’ll do it.” Von Villas replied, “all right Bruce, I will give you 25,000 bucks.” At this point Ford arrived and, at Von Villas’s suggestion, Ford and Von Villas went outside where Von Villas stated that he wanted to trigger a “panic attack” in Mr. Adams. They both decided to go along with the charade, and told Mr. Adams to go forward with the killing. Von Villas made up notes to Mr. Adams solidifying the plan, as Mr. Adams talked to Ms. Loguercio about their planned meeting at midnight that evening.

Von Villas drove to his home about 2 or 2:30 p.m. that afternoon, took some medicine because he was not feeling well, and tried to sleep. Mr. Adams called him about 3:20 p.m. and further plans were discussed for the killing that evening. About 5:39 p.m. Von Villas and Ford talked on the telephone. Von Villas asked Ford not to meet Mr. Adams at the shop that night and just forget about what they had discussed earlier in the day. Ford reluctantly agreed. Von Villas then stayed at home until his arrest.

Ford denied that he and Mr. Adams had acquired weapons in Colorado. They had gone to purchase Mac-10’s but never reached their destination because of car trouble. In spite of bad reports from many as to Mr. Adams’s credibility and work habits, Ford did go into business with Mr. Adams in the International Automotive shop on January 1, 1983. Ford did participate in a treatment program for combat-related stress problems as well as psychological problems resulting from his being shot while on duty as a police officer and his wife’s brutal rape in November 1980. At the time his terminally ill mother-in-law was living with him and his disabled wife. He felt that his life was a mess and he drank heavily.

Ford first met Ms. Loguercio in January 1983, at a time when Mr. Adams was dating her. He became attracted to her.

In his efforts to apprehend the man who raped his wife, Ford, along with Von Villas, had indeed acquired the appropriate disguises from Mr. Stone and Ms. Chefalo. He used the disguise some 10 to 15 times in his unsuccessful pursuit of “Skip,” his wife’s rapist, before the beard disintegrated. He never robbed a jewelry store.

As to the events of July 7, 1983, Ford appeared at International Automotive to pick up money from Mr. Adams, who had requested that Ford drop by. Upon his arrival, Mr. Adams stated, “you guys are trying to kill Loguercio.” He followed by saying, “I’m going to get her for twenty five thou.” Ford turned to Von Villas and asked what this was all about, and Von Villas told Ford they should go outside. There, they talked. Von Villas indicated that the insurance policy that Mr. Adams had mentioned as the motivation for killing Ms. Loguercio was not effective until escrow closed on a real estate deal she and Von Villas had entered into. They both decided that they were “playing another game with Mr. Adams.” They then returned to the shop and told Mr. Adams “Fine, if you’re going to kill Loguercio, that’s fine. Now tell me about where you get this idea that there is an insurance policy and what’s the story, what’s going on.” Mr. Adams then reiterated the description of events at the Hollywoodland Motel of June 17, 1983, when Ford, alias “Dr. Anderson,” tried to kill Ms. Loguercio. Ford told Von Villas, “Halt, you know, let’s push him,” in an effort to prod Mr. Adams into further action.

Ford and Von Villas continued to play along with Mr. Adams, Ford receiving the assignment of providing a “homicide kit” as requested by Mr. Adams. Ford arrived at the shop and proceeded on the route to the Venus Faire with all necessary equipment that might be needed for the killing, but had no intent to kill Ms. Loguercio. Ford’s only reason for stating that the killing had to look like a vicious sex attack was to force Mr. Adams to back down. He never thought Mr. Adams would go forward with the killing, and would have backed down had Mr. Adams arrived back at the van with Ms. Loguercio.

As for the June 17, 1983, incident, Ford never intended to kill Ms. Loguercio at the Hollywoodland Motel. Although he had told Mr. Adams that he had a garrote in his hand, the item was actually a sexual device. He did in fact use the alias “Dr. Anderson.”

As to the jewelry store robbery, Ford denied having committed the robbery. In his view, he was mistakenly identified as one of the robbers.

III

Issues Presented

A. Introduction

Both Von Villas and Ford present multiple issues for review. Some relate to each appellant individually, and some to both. They will be discussed seriatim.

B. The Constitutional and Statutory Newsperson’s Shield Law 1. Factual Summary

Von Villas served a subpoena duces tecum on Jan Golab, a freelance writer, demanding that he produce certain materials, including notes and audiotapes, gathered by him from Mr. Adams in order to write an article for Hustler magazine. The article, entitled The Dark Side of the Force, was published in the March 1985 edition. On July 7,1986, Mr. Golab invoked his rights under Evidence Code section 1070, the so-called “newsperson’s shield law,” in his motion to quash the subpoena duces tecum. The trial court conducted a hearing, wherein Mr. Golab testified that he had in his possession the items called for in the subpoena as well as audiotapes and other notes he acquired from various LAPD officers in preparation for an article entitled Cops Who Catch Cops which was published in the September 1984 edition of Los Angeles magazine. The judge, with all parties in agreement, broadened the call of the subpoena duces tecum to include all unpublished information acquired by Mr. Golab in the preparation of both articles, and indicated that both California statutory and constitutional protections afforded newspersons would be considered relevant to the hearing on the motion to quash the subpoena duces tecum.

During the hearing on the motion, Mr. Golab claimed that his purpose in invoking the shield law was to fulfill his vows of confidentiality made to some of his sources (principally Mr. Adams), and to protect his financial interest in his work product in the event movies or other publications might ensue. Ford and Von Villas claimed that their rights to a fair trial, particularly their rights to obtain discovery of prior statements of Mr. Adams that might be appropriate material for impeachment as prior inconsistent statements, would be violated if they were denied access to the notes and tapes. Their view was that Mr. Golab’s principal objective in asserting his newsperson’s shield rights was to preserve his pecuniary interest in future publications or films. This objective, in their opinion, was of lesser significance than the rights of the appellants to effectively cross-examine Mr. Adams, a key prosecution witness. They asserted that a state constitutional provision providing a shield to newspersons (in this case a freelance journalist) must give way to the federal and state constitutional rights of Von Villas and Ford to confront the witnesses presented against them.

Mr. Golab testified originally that he had taped approximately 20 to 30 minutes of Mr. Adams’s conversation with him at a time when he was not under contract with Hustler to write the article, but later amended his testimony to reflect that he had only made notes during that time, and had not taped anything. He further testified that he would invoke the shield’s protection and refuse to turn over the items sought whether called by the prosecution or the defense. Finally, in response to a showing that the witness, Mr. Adams, waived any interest he had in maintaining the confidentiality of the materials in Mr. Golab’s possession, Mr. Golab testified that he felt Mr. Adams’s waiver of confidentiality was coerced, or, at the least, not sincere. In any event, Mr. Golab stated that he would assert his constitutional protections regardless of Mr. Adams’s waiver of confidentiality.

At the hearing on the motion to quash the subpoena duces tecum, counsel and the court agreed that all materials held by Mr. Golab constituted “unpublished information” and that the appropriate burden upon Von Villas and Ford in attempting to discover the materials was to demonstrate a “. . . reasonable possibility that the evidence sought might result in [their] exoneration.” (Hammarley v. Superior Court (1979) 89 Cal.App.3d 388, 399 [153 Cal.Rptr. 608].) As to the brief period of time during which Mr. Golab discussed the preparation of the article with Mr. Adams before entering into the Hustler contract, there was no determination made as to whether Mr. Golab would qualify as a “newsperson” for purposes of the shield provision, but the “unpublished information” generated during that time was de minimis.

Counsel for Von Villas and Ford were denied their request to review Mr. Golab’s materials in camera with the court, but the trial court, Mr. Golab, and his counsel did review the Hustler magazine materials in camera to determine whether or not discovery of the materials was warranted. Although the Los Angeles magazine materials were not reviewed in camera, the court determined that none of the interviews conducted in preparation of that article involved Mr. Adams, and the article itself only briefly mentioned Von Villas and Ford. The materials for the Los Angeles magazine article were found irrelevant, thus their nondisclosure was protected by the shield provision.

With respect to the unpublished materials gathered for the Hustler article, the court granted the motion to quash, and ruled that Mr. Golab qualified for the “shield” protection; that the materials were relevant; that they contained nothing that would constitute impeachment material; and that, in any event, there was nothing in the tapes qualifying as an inconsistent statement by Mr. Adams not already made available to Von Villas and Ford from the record. The trial court further found that there was “no reasonable possibility that any of the materials in Mr. Golab’s possession as to either the Hustler article or the Los Angeles Magazine article would exonerate a defendant or provide any impeaching evidence. Everything that I have seen indicates consistency with the evidence of record.” In balancing Mr. Golab’s rights to maintain the confidentiality of his unpublished information with the rights of Von Villas and Ford to a fair trial, the judge ruled that Mr. Golab’s rights would prevail.

2. Discussion

Von Villas and Ford pose the following questions:

a. Does Mr. Golab, a third party witness and freelance journalist, qualify for the protections afforded a “newsperson” under article I, section 2, subdivision (b) of the California Constitution and Evidence Code section 1070?

b. Does the California Supreme Court decision in Delaney v. Superior Court (1990) 50 Cal.3d 785 [268 Cal.Rptr. 753, 789 P.2d 934] assist in the disposition of these issues?

c. Did the trial judge correctly apply the Delaney balancing test in the case at bar?

d. Whether application of the Delaney balancing test to the facts of the case at bar unconstitutionally burdens Von Villas’s and Ford’s right to a fair trial?

3. Mr. Golab, a Freelance Journalist, Qualifies for the Constitutional Protections Afforded by Article /, Section 2, Subdivision (b) and Evidence Code Section 1070 With Respect to All Unpublished Information in His Possession

Article I, section 2, subdivision (b) of the California Constitution expressly states, in part: “[a] publisher, editor, reporter or other person connected with or employed upon a . . . magazine ... or any person who has been so connected or employed, shall not be adjudged in contempt... for refusing to disclose any unpublished information obtained ... for communication to the public.”

In discussing the language of the shield provision, certain guidelines are clear. The intent of the voters controls when reviewing constitutional provisions adopted by them. (Kaiser v. Hopkins (1936) 6 Cal.2d 537,538 [58 P.2d 1278]; Armstrong v. County of San Mateo (1983) 146 Cal.App.3d 597, 618 [194 Cal.Rptr. 294].) To determine that intent, “ ‘The court turns first to the words themselves for the answer.’ ” (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 724 [257 Cal.Rptr. 708, 771 P.2d 406].) ‘“If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute) or of the voters (in the case of a provision adopted by the voters).’ ” (Delaney v. Superior Court, supra, 50 Cal.3d 785, 798, quoting Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [248 Cal.Rptr. 115, 755 P.2d 299].)

The constitutional provision plainly encompasses Mr. Golab’s position as a freelance writer “connected with or employed upon . . .” both Hustler and Los Angeles magazine within its protective shield.

Ford asserts that “unpublished information” acquired by Mr. Golab before he entered into the Hustler contract was not within the constitutional shield of article I, section 2, subdivision (b). To this assertion the trial judge opined “. . . that I believe that Golab is entitled to certain statutory and constitutional protection provided in this state except possibly for the freelance period. But with regard to his freelance status, I find . . . that it represents an unsignificant phase of his activity on this article.” The trial judge continued, “[furthermore, I would have serious trouble discriminating against his freelance status under the . . . constitutional protections, because . . . when someone as a freelance needs to develop a relationship to be able to ‘pitch’ an article, that person’s status is . . . not fairly distinguishable from that of someone who is in the employ of an agency. . . . Therefore, I would have serious equal protection problems with distinguishing between Golab, the freelance, and Golab, the Hustler special editor. . . .”

Mr. Golab had been a reporter or freelance writer for some 13 years prior to his involvement with the instant articles. The clear language of article I, section 2, subdivision (b) provided him with newsperson’s shield protection both before and after the execution of the written Hustler contract.

Although the unpublished information obtained before execution of the Hustler contract was found by the trial court, after in camera review, to be both insignificant and irrelevant, it was obtained by Mr. Golab within the constraints of article I, section 2, subdivision (b).

Clearly, the trial judge’s decision that Mr. Golab’s precontract and post-contract unpublished information was protected by the shield provision was amply supported by substantial evidence. As such, it will not be overturned absent an abuse of discretion. (.Delaney v. Superior Court, supra, 50 Cal.3d at p. 816.) We conclude that there was no abuse of discretion.

Alternatively, the record supports the conclusion reached by the trial judge that the precontract unpublished information was irrelevant in that it contained no interview materials concerning Mr. Adams and only a passing reference to Ford and Von Villas. Such a finding constitutes a ruling under Evidence Code section 352 which will not be overturned absent an abuse of discretion. (People v. Green (1980) 27 Cal.3d 1 [164 Cal.Rptr. 1, 609 P.2d 468].)

The trial judge substantially complied with the standards set forth in Delaney.

4. The Delaney Decision

Delaney was handed down some four years after the trial judge granted Mr. Golab’s motion to quash the subpoena duces tecum. Nonetheless, its analysis of the constitutional shield provision is most helpful in resolving the issues before this court.

There is no question that the protection of the shield provision gives way when nondisclosure of otherwise protected unpublished information would deprive a criminal defendant of his federal constitutional right to a fair trial under either the Sixth Amendment or the due process clause of the Fourteenth Amendment. (Delaney v. Superior Court, supra, 50 Cal.3d at p. 805.) The question we now consider is: what showing must the criminal defendant make in order to overcome the newsperson’s claim of immunity under the shield provision?

Trial counsel for Von Villas enunciated his view of the burden upon his client when he stated:

“. . . we have to show a relevance toward exoneration, that the supposed material might lead to exoneration. ... If we could make a showing that that evidence could possibly . . . —and the cases use the word ‘possibly’ lead to exoneration in a criminal case, we are entitled to the discovery and disclosure.”

The trial judge tentatively ruled that:

“. . . it does not appear to me that there has been a showing of reasonable possibility that the materials, the unpublished materials in Mr. Golab’s possession would exonerate the defendants or would lead to impeaching evidence of Mr. Adams.”

After reviewing the unpublished materials in camera, the trial judge stated that he was:

“. . . persuaded absolutely that there is no reasonable possibility that any of the materials in Mr. Golab’s possession as to either the Hustler article or the Los Angeles Magazine article would exonerate a defendant or provide any impeaching evidence. Everything that I have seen indicates consistency with the evidence of record.”

In articulating the threshold showing which must be made by the criminal defendant when faced with an article I, section 2, subdivision (b) claim by a newsperson, trial counsel and the trial judge correctly applied the standard expressed in Hammarley v. Superior Court, supra, 89 Cal.App.3d 388 at page 399:

“Faced with a claim of privilege, the burden is oh the party seeking to avoid the privilege competently to demonstrate not only that the evidence sought is relevant and necessary to his case, but that it is not available from a source less intrusive upon the privilege. Moreover, as with any attempt to discover evidence subject to a claim of privilege, a defendant must show a reasonable possibility that the evidence sought might result in his exoneration (People v. Borunda (1974) 11 Cal.3d 523, 527 [113 Cal.Rptr. 825, 522 P.2d 1]).”

In Delaney v. Superior Court, supra, 50 Cal.3d at page 808, a 1990 decision, the court stated:

“We hold that, to overcome a prima facie showing by a newsperson that he is entitled to withhold information under the shield law, a criminal defendant must show a reasonable possibility the information will materially assist his defense. A criminal defendant is not required to show that the information goes to the heart of his case.”

Interestingly, the Delaney court cited Hammarley v. Superior Court, supra, and Hallissy v. Superior Court (1988) 200 Cal.App.3d 1038 [248 Cal.Rptr. 635], the authorities, inter alia, followed by the trial judge as containing language consistent with the holding as to the threshold showing which a criminal defendant must make in order to overcome the shield claim.

“Indeed, neither court determined that the information at issue went to the ‘heart of the case,’ nor did they even use the term. As to the threshold showing required, the decisions are consistent with the test we adopt in this case.” (Delaney v. Superior Court, supra, 50 Cal.3d at p. 808, fn. 22.)

Whether the criminal defendant must show a reasonable possibility the information “might result in his exoneration” (Hammarley) or “will materially assist his defense” (Delaney) present different standards or not, it is clear in the case at bar that the trial judge’s finding, after a careful review of the “unpublished information,” that appellants did not make a showing which would warrant the denial of the motion to quash, was correct In short, there was no requirement for the trial court to balance the interests of the newsperson with those of the criminal defendant as set forth in Delaney. The express findings of the trial judge included a referral to “exoneration” but, importantly, included language confirming that the materials would not be utilized to impeach Mr. Adams, or any other witness. Since the sole objective of appellants was to acquire material to impeach Mr. Adams, the trial judge appropriately granted the motion to quash.

Even if Von Villas and Ford were able to convince the trial judge that the shield provisions must yield to their right to a fair trial, it is also clear that the trial judge, who was intimately familiar with the facts of the case, and who had carefully reviewed the unpublished information, found:

“. . . there is nothing in those tapes that represents significant impeachment information at all. And the only reason why I use the term significant is because there may be an inconsistency there with something said someplace. But if it is, it is an inconsistency that exists elsewhere. There is nothing, in other words, in any of the tapes that I haven’t heard elsewhere in these proceedings or the material ... in the defense possession.”

Although Delaney discusses the alternative-source requirement at length, its holding provides that:

“For all the foregoing reasons, we conclude that a universal and inflexible alternative-source requirement is inappropriate in a criminal proceeding. In considering whether the requirement is appropriate in a given case, the trial court should consider the type of information being sought (e.g., names of potential witnesses, documents, a reporter’s eyewitness observations), the quality of the alternative source, and the practicality of obtaining the information from the alternative source. The trial court must also consider the other balancing factors set forth above: whether the information is confidential or sensitive, the interests sought to be protected by the shield law, and the importance of the information to the criminal defendant. In short, whether an alternative-source requirement applies will depend on the facts of each case.” (Delaney v. Superior Court, supra, 50 Cal.3d at pp. 812-813.)

The trial judge’s finding regarding the alternative source available to appellants for Mr. Golab’s unpublished information was reasonable.

In conclusion, even if it was error for the court to refuse to turn over the unpublished information because, arguendo, appellants were successful in making the requisite showing to overcome the shield claim, it is clear that the alternative source available to them would support the trial court’s decision to grant the motion to quash.

5. The Balancing Test Set Forth in Delaney, to the Extent That It Considers the Interests of a Newsperson, Did Not Unconstitutionally Burden the Rights of Ford and Von Villas to a Fair Trial

As counsel for Ford concedes, this court is bound not to accept his argument that the right to a fair trial is of such magnitude that once a threshold showing that information held by a newsperson and not available from other sources will assist the defense, the newsperson’s interests must cede to the defendant’s right to a fair trial. To accept such an argument would fly in the face of the Delaney majority decision. Under appellants’ view, as espoused by Justice Mosk in his concurrence in Delaney, supra, 50 Cal.3d at page 809, footnote 24, there is nothing to balance.

This court, bound by the principles of stare decisis, is, therefore, bound by Delaney. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 [20 Cal.Rptr. 321, 369 P.2d 937].)

C. The Trial Court’s Denial of Von Villas’s Motion to Suppress Evidence Pursuant to Section 1538.5

D. The Loss of the Diamond Bindle, the Admission Into Evidence of Secondary Evidence in Its Place, and the Refusal of Von Villas’s Request for Jury Instructions Regarding the Loss of the Bindle

1. Factual Summary

Von Villas and Ford stand convicted, inter alia, of three counts of robbery, three counts of false imprisonment and three counts of assault with a firearm. These charges related to the robbery of the Schaffer & Sons jewelry store in Northridge.

During the July 8 search of the Von Villas residence officers found a diamond bindle, a small paper container used to package loose diamonds, which had certain writing on it, supporting the inference that the bindle was from Schaffer & Sons. The bindle, identified by the police as item 45, was booked into evidence on that date and described on the property report by the officers conducting the investigation. The LAPD property clerk confirmed that the portion of the property report describing item 45 contained the notations “Empty diamond bindle - N.R.N. 200 B4 5.06 with a 9 and a circle.” Below that was the note “105 and two little zeros slash 79 and two little zeros, E-A. . . .” The clerk further testified that it was her practice to compare the information describing the item contained on the property report with the actual item itself before booking the item into evidence.

On or about October 21, 1983, the diamond bindle was discovered to be missing. Extensive searches for the bindle by several officials proved unsuccessful.

The trial judge found that the diamond bindle was lost or destroyed without fraudulent intent; that there were diligent, good faith efforts made to locate the bindle; and that the portion of the property report containing the description of the bindle, including the notations thereon, was admissible as either a business record under Evidence Code section 1271, or that the contents thereof could be read into the record as past recollection recorded of the officer who created the property report under Evidence Code section 1237. The trial judge also preliminarily granted the prosecution’s motion to substitute secondary evidence of the bindle pursuant to Evidence Code sections 1501 and 1505, subject to the appropriate foundational proof.

2. Discussion

Von Villas asserts that his Fourteenth Amendment due process rights were violated because police officials lost a diamond bindle which contained writing and had been booked as evidence of the robbery charge. Von Villas claims that the loss of the bindle brought about a violation of section 1536 whic