P. v. Saballos

Filed 1/19/10 P. v. Saballos CA1/3

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THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Appellant Mario Saballos challenges a conviction for second degree robbery, contending the Redwood City Police Departments failure to preserve a videotape of the robbery warranted dismissal of the charge. In the alternative, appellant asserts the trial court erred in refusing to instruct jurors that they could find appellant not guilty if they determined the police acted in bad faith in allowing exculpatory evidence to be lost or destroyed. We affirm the judgment.

Factual and Procedural Background

A Shell station in Redwood City was robbed twice within a four-day period, once on November 6, 2007, and a second time on November 9, 2007. Maria Barajas was working as a cashier at the station on the date of the first robbery. According to Barajas, a man entered the stations store, bought some gum, and asked about the cost of Nyquil. He pulled up his shirt, showed Barajas part of what looked like a gun, and told her, Give me the money. Barajas gave him $400 to $500 from the register. She described the robber as wearing a cold weather cap and a grey sweatshirt with a stripe across the chest. She later identified appellant in a photo lineup and in court as the man who robbed her.

Karina Rodriguez was the cashier at the station on the night of the second robbery. On that occasion, a man entered the station, told Rodriguez to open the cash register, and placed his hand over the waist area near his bellybutton, as if he were reaching for a weapon. Rodriguez opened the register and put her hands in the air. The robber took $600 from the register.

Redwood City police officer Jason Gamble was dispatched to investigate the second robbery on the evening of November 9. At the time, he was unaware of the November 6 robbery and had no involvement in the investigation of that robbery. Officer Gamble took a statement from Rodriguez, who identified the robber as a heavyset Hispanic male with a mustache, wearing a white baseball cap, white t-shirt, and dark jeans. While at the Shell station, Officer Gamble viewed surveillance video of the November 9 robbery. He also viewed video of the November 6 robbery after being informed for the first time that there had been a robbery three days earlier. On the November 6 video, Officer Gamble saw what appeared to be a torso wearing a white T-shirt. He could not see the suspects face or discern the race, gender, or age of the suspect. He was not even certain the tape was from November 6.

Officer Gamble collected the video of the November 9 robbery but did not take the video of the November 6 robbery, reasoning that it had no evidentiary value and didnt depict anything. He determined the video of the November 9 robbery was more pertinent to his investigation and that, if necessary, the officer who conducted the investigation of the first robbery would probably go back and get the video of the November 6 robbery.

In the early morning hours of November 10, 2007, Officer Gamble was on patrol within about a mile of the Shell station. He saw appellant, who matched the general description of the robber given by Rodriguez. After obtaining appellants identification and noting his home address, the officer released appellant.

On November 11, 2007, police searched appellants residence pursuant to a warrant and found a white baseball cap as well as a grey sweatshirt with black stripes. At some point after Officer Gamble prepared his incident report for the November 9 robbery, he returned to the Shell station to recover the video of the November 6 robbery. At that point, the video had been purged and was no longer available.

The San Mateo District Attorneys Office charged appellant in an amended information with two counts of second degree robbery. (Pen. Code,[1]  212.5, subd. (c)). The robberies described in Counts 1 and 2 were alleged to have taken place on November 6, 2007, and November 9, 2007, respectively. As to Count 1, it was alleged that appellant used a firearm during the offense ( 12022.53, subd. (b) & 1203.06, subd. (a)(1)), was armed during the offense ( 12022, subd. (a)(1)), and that the crime was a serious felony in which the appellant personally used a firearm ( 1192.7, subd. (c)(8)). The information contained allegations that both counts were serious felonies within the meaning of section 1192.7, subdivision (c)(19).

Before trial commenced, appellant pleaded no contest to Count 2 and admitted the allegation that the crime was a serious felony under section 1192.7, subdivision (c)(19). A jury found appellant guilty of second degree robbery in Count 1 and found the firearm allegations not true. The court found that Count 1 constituted a serious felony under section 1192.7, subdivision (c)(19), and found not true the firearm allegation under section 1192.7, subdivision (c)(8).

The court sentenced appellant to four years in state prison, composed of the middle term of three years on Count 1, plus a consecutive term of one year on Count 2, representing one-third of the middle term of three years. The court suspended execution of the sentence and placed appellant on three-years probation subject to specified conditions. Appellant filed a timely notice of appeal.

Discussion

Appellant raises two claims of error on appeal, both of which relate to the failure to preserve the videotape of the first robbery. First, appellant claims the trial court erred in denying his motion to dismiss Count 1 pursuant to California v. Trombetta (1984) 467 U.S. 479 (Trombetta) and Arizona v. Youngblood (1988) 488 U.S. 51 (Youngblood). Second, appellant asserts the trial court erred in denying his request at trial for a cautionary jury instruction pursuant to Trombetta and Youngblood.

I. Motion to Dismiss Pursuant to Trombetta and Youngblood

A. Background

Before the matter proceeded to a jury trial, appellant moved to dismiss Count 1 pursuant to Trombetta and Youngblood, alleging that the video of the November 6 robbery was exculpatory and that the investigating officer acted in bad faith in failing to preserve it.

The trial court conducted an evidentiary hearing on the motion. At the outset of the hearing, both counsel concurred with the trial court that certain facts can be agreed upon, specifically that there was a video, that the video has been destroyed, [and] that the police never took possession of that video.

Officer Gamble testified that he was designated the investigating officer for the November 9 robbery, not the November 6 robbery. As part of his investigation of the second robbery, he viewed the surveillance tape from the first robbery, which contained a partial image of a possible suspect. He explained that all he could see on the tape was a torso wearing a white t-shirt, [n]o face, no arms. At the time he saw the November 6 videotape, he was not aware that the cashier who had witnessed the first robbery, Barajas, had told the police the suspect was wearing a gray sweatshirt. The prosecution made an offer of proof that the videotape of the first robbery was destroyed by the Shell station.

The court denied the motion to dismiss, finding there was no material exculpatory evidence and no evidence of bad faith on the part of the police. The court noted the police never had custody of the evidence, and found no basis for sanctions to be imposed on the prosecution.

B. Analysis

Appellant contends the video of the November 6 robbery was exculpatory because it showed a suspect wearing a white t-shirt, whereas the cashier who witnessed the first robbery, Barajas, described the robber as wearing a grey sweatshirt with a stripe. Thus, he contends the trial court erred in denying his Trombetta/Youngblood motion to dismiss alleging failure to preserve evidence. For the reasons that follow, we disagree.

Law enforcement agencies have a duty, under the due process clause of the federal Constitution, to preserve evidence that might be expected to play a significant role in the suspects defense. (Trombetta, supra, 467 U.S. at p. 488.) To fall within the scope of this duty, the evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. (Id. at p. 489.) The states obligation to preserve evidence is even more limited when the defendants challenge is to the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant. (Youngblood, supra, 488 U.S. at p. 57.) In such a case, unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law. (Id. at p. 58.)

Once a defendant has proved the loss of material evidence, it is within the courts discretion to impose appropriate sanctions, including fashioning a suitable cautionary instruction. [Citations.] (People v. Medina (1990) 51 Cal.3d 870, 894.) On review of a trial courts ruling on a Trombetta/Youngblood motion, we must determine whether, viewing the evidence in the light most favorable to the superior courts finding, there was substantial evidence to support its ruling. [Citation.] (People v. Roybal (1998) 19 Cal.4th 481, 510.)

Here, substantial evidence supports the trial courts ruling. At the time Officer Gamble viewed the videotape of the November 6 robbery, it was not apparent the video contained significant, exculpatory evidence. From the officers perspective, the video had little or no value because it did not show the perpetrators face, gender, race, or age. Most importantly, Officer Gamble had no reason to believe the video was inconsistent with Barajass description of the robber. At the time he saw the video, he was not investigating the first robbery and was not aware of Barajass description of the suspect. Thus, the officer had no reason to conclude that a vague video from an earlier date displaying only a torso had any evidentiary value.

Appellant incorrectly argues that Officer Gambles testimony is contradicted by a detective who testified that Officer Gamble and another officer were trying to determine who the suspect behind both robberies was. That detective did not become involved in the matter until the evening of November 10th, 2007, the day after Officer Gamble viewed the videotapes. Whether Officer Gamble knew of a connection between the robberies as of November 10 is irrelevant to whether he knew of or suspected a connection when he viewed the videotape on November 9. Furthermore, even if there were a conflict in the officers testimony, we must view the evidence in the light most favorable to the trial courts ruling, and thus in favor of Officer Gambles account. (See People v. Roybal, supra, 19 Cal.4th at p. 510.)

Moreover, the trial courts ruling was proper because appellant was able to obtain comparable evidence by other reasonably available means. (Trombetta, supra, 467 U.S. at p. 489.) Officer Gambles testimony regarding the November 6 videotape was the comparable evidence heard by the jury. He testified about the video on direct and cross-examination, describing the white-shirted torso seen in the video. Appellant was thus able to present evidence regarding the purported conflict between Barajass description of the robbers clothing and the video evidence. (See People v. Walker (1988) 47 Cal.3d 605, 638 [rejecting Trombetta claim regarding failure to preserve audiotape where defense counsel had opportunity to cross-examine officer who monitored taped conversation].) Indeed, in closing argument, defense counsel argued at length about the inconsistency between the video evidence, as described by Officer Gamble, and the description given by Barajas.

Appellant contends the video is the kind of evidence that could not be reproduced accurately by any witness merely recounting what he had seen. However, it is unlikely the jury would have found the video of a torso any more compelling than the officers description of it. The intrigue that defense counsel created at trial regarding the videotape and its destruction was probably more powerful to the jury than an actual viewing of the videotape. Moreover, Trombetta does not require that a defendant have access to evidence identical to that which was lost or destroyed. Instead, there is a Trombetta violation only when a defendant is unable to obtain comparable evidence through reasonably available means. (Trombetta, supra, 467 U.S. at p. 489.) Officer Gambles testimony constituted comparable evidence.

Further, given the speculative value of the videotape, appellant was required to show bad faith on the part of the officer. (Youngblood, supra, 488 U.S. at p. 58.) Here, there was no evidence of bad faith. Officer Gamble was unaware of a need to preserve the November 6 tape at the time he viewed it, believing another officer was responsible for investigating the first robbery and any evidence pertaining to it. Any suggestion of bad faith in failing to collect the November 6 video is undercut by Officer Gambles later attempt to retrieve the tape after its significance was discovered. By then, the Shell station, not the police department, had destroyed the tape.

II. Failure to Instruct the Jury Pursuant to Trombetta and Youngblood

A.                 Background

At the close of evidence, defense counsel in effect renewed his motion pursuant to Trombetta and Youngblood, requesting as a sanction that the court give a jury instruction, as follows: You may find the defendant not guilty if you believe: (1) that exculpatory evidence existed at the time Officer Gamble conducted his investigation; (2) that he knew that the evidence was exculpatory at the time he viewed it; and (3) in light of that knowledge he intentionally and in bad faith allowed exculpatory evidence to be lost or destroyed.

The trial court refused to give the requested instruction, concluding there was no evidentiary support for the instruction. The court found there was no basis to believe that the clothing of the alleged suspect on the video was exculpatory because Officer Gamble did not know what the description of the suspect had been with reference to [the] November 6th robbery. Further, the officer went back to the Shell station and tried to recover the tape after he realized its significance. According to the court, [t]hat is not evidence of bad faith, but, rather, it corroborates his explanation as to why he did not seize the November 6 tape.

B. Analysis

Contrary to appellants contention that a de novo standard of review governs our consideration of the trial courts refusal to give his proposed Trombetta/Youngblood instruction, we review the trial courts ruling for abuse of discretion. (See People v. Medina, supra,51 Cal.3d at p. 894 [trial court vested with discretion in determining appropriate sanction for loss of evidence].) When there is no Trombetta/Youngblood violation, [t]he trial court [is] not required to impose any sanction, including jury instructions. [Citations.] (People v. Cooper (1991) 53 Cal.3d 771, 811; see also People v. Huston (1989) 210 Cal.App.3d 192, 215 [no error in failure to give cautionary instruction in absence of Trombetta violation].)

As discussed in section I, ante, there was no Trombetta violation. The November 6 videotape was not constitutionally material evidence, as defined by Trombetta, because it was not known to be exculpatory at the time the officer viewed it. Further, appellant was able to present comparable evidence by cross-examining Officer Gamble. Plus, there was no evidence to indicate the police acted in bad faith by failing to preserve the tape. Because there was no Trombetta violation, the court did not abuse its discretion in denying appellants request for a cautionary instruction pursuant to Trombetta/Youngblood.

Disposition

The judgment is affirmed.

_________________________

McGuiness, P.J.

We concur:

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Siggins, J.

_________________________

Jenkins, J

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[1] All further statutory references are to the Penal Code unless otherwise specified.