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Court of Appeal, First District, Division 3, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Jeffrey Maurice DANIELS, Defendant and Appellant.

Cr. 19675.

Decided: February 25, 1981

Quin Denvir, State Public Defender, David Lew, Deputy State Public Defender, San Francisco, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., William D. Stein, Charles R. B. Kirk, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Jeffrey Daniels appeals from a judgment of conviction after a jury found him guilty of forcible rape (Pen.Code, § 261, subd. (2)) and burglary (Pen.Code, § 459). In May 1979, he was sentenced to the upper term of five years on the rape count, with proceedings on the burglary count stayed pending appeal or completion of sentence on the rape.

Appellant contends (1) that the charges should have been dismissed for failure of the People to preserve a vaginal smear swab (Hitch motion); (2) that evidence of foot impression comparisons was improperly admitted because it was based on an analysis not yet established as a scientific technique; and (3) that instructions relating to identity were improperly refused.

The Facts

At a little before 9 p. m. on October 2, 1978, Mrs. M., the victim, was alone in her home and typing in an upstairs room. She was unaware of her attacker's presence until he threw a pillowcase over her head, let out an animal noise, and pulled her backwards onto the floor. Mrs. M. described her attacker's voice as that of a black male and his skin as non-Caucasian. He was a small man, and his shirt felt like cotton. She could tell that he had big lips when he pulled the pillowcase up part way and kissed her. She did not see his face.

The sexual attack lasted approximately 10 minutes. Near the end Mrs. M. heard her daughter, Jill, on the stairs and began to make noises, whereupon the attacker immediately got off of her.

Jill had arrived home to find the garage door into the house through her bedroom was wedged open. She noted that her drawers and shelves were in disarray and that her purse was missing. She went upstairs and saw a black man on the floor on top of her mother. The reality did not “dawn” on her for a moment, and she started to walk away. On hearing a growling noise, she half turned around and was face to face with her mother's attacker for a few seconds. The man pushed her down the stairs and tumbled down with her, landing across from her. Again, she saw his face for a few seconds. He was wearing dark pants with a print shirt; he immediately ran out through the bedroom door, closing it behind him.

That night, Jill guided the construction of a composite photograph of the assailant for the police. She then looked through a mug shot book, and selecting a photograph of appellant, she indicated that it “looks just like him.” A month later, she and her mother attended a lineup. As the individuals filed into the lineup room, Mrs. M. made a comment which Jill said influenced her selection. Jill selected a person other than appellant; she thought he was taller and bigger and had a scar on his face, but she was “almost positive.” She identified appellant at the preliminary hearing and at trial. She affirmed at trial that her identification was based on seeing appellant on the night of the incident rather than on the photographs, lineup, or preliminary hearing.1

Within two hours after the incident, the victim was examined at St. Mary's Hospital by an emergency room physician who used a cotton swab to collect a sample of the victim's vaginal fluids. He smeared the swab over several microscope slides and promptly examined them for motile sperm; he found none. The swab (which was placed in a plastic tube for preservation) and slides were delivered to Ms. Hartnett, the county criminologist, who tested the slides. She found an unusually low amount of sperm—nonmotile. She described the victim as a Type A secretor and appellant as a Type B secretor. (About 80 percent of the population are “secretors” who secrete blood antigens in their other bodily fluids, such as saliva, vaginal secretions and semen, thus permitting a blood typing from these bodily fluids.) The criminologist detected a slight presence of Type A in the sample, but no Type B. She gave several possible explanations for this: (a) appellant was not the rapist; (b) there was an inadequate amount of semen for secretor typing because the assailant had not ejaculated a sufficient amount or because the victim's activity after the rape had caused a loss of semen leaving an insufficient amount. (The victim testified that when she got up, she felt fluid running down her leg.) The criminologist testified that failure to find appellant's blood type was inconclusive and could neither inculpate or exonerate him.

Mrs. M. lived on Westmoor, four houses from the intersection of Westmoor and Palisades. Appellant lived at 190 Palisades, about 13 houses from the intersection. Thomas B., a friend of Jill, had come to the house to get his paper route receipt book on the night of the incident. He came through the alley next to Jill's bedroom, heard Jill and her mother yelling, and heard someone falling on the steps; he hid and heard someone cross the alley heading toward Palisades.

Investigating officers recovered in the victim's home a man's tennis shoe which the assailant had dropped in flight. (We will discuss this evidence later.) The officers also found near the intersection of Westmoor and Palisades a pair of men's jockey undershorts on the sidewalk. Although it was a foggy night, the shorts were not noticeably wet and had grass stains on them. The criminologist found that the semen on the shorts contained Type B secretions. (Appellant was a Type B secretor.) A Negroid pubic hair was found on the shorts and was compared by the criminologist with one of the appellant's pubic hairs. She found the two indistinguishable, including evidence that each had been shaved with a razor. She concluded “that these hairs were consistent and therefore could have shared a common origin.”

The following morning, officers armed with search and arrest warrants retrieved from appellant's room a package of Benson and Hedges cigarettes and a gold ballpoint pen with its point jammed open. The victim testified that she had one or two unopened packages of the same brand of cigarettes and the gold pen in her purse which was taken by her assailant. When arrested, appellant was wearing jeans and a dark print shirt which Jill identified as similar to the one worn by her mother's attacker. Appellant was also wearing a pair of boxer-style undershorts.

Two houses away from appellant's house, officers found a plastic bag containing the missing purses of the victim and her daughter, along with most of their contents, Jill's jewel box, and some of the victim's credit cards.

Appellant and his family members offered his alibi. All placed him in the family home around the time of the rape, although their time estimates differed slightly. His stepfather said he heard him but did not see him. His younger brother said that he saw him first around 7 p. m. in the kitchen and then shortly after 9 p. m. in the bedroom they shared. His mother saw him in the kitchen between 8 and 8:15 because of an argument between appellant and his sister, who did not testify. His mother also testified that she smoked Benson and Hedges cigarettes and that appellant often smoked hers, that she bought all of his underwear and never bought jockey shorts, and that she always bought his shoes and the shoe recovered in the victim's house was not appellant's. Appellant testified first that he was in the kitchen at 9:05, but later indicated he was in his downstairs bedroom when the rape occurred. He gave no explanation for the gold pen. A representative of the Parker pen company testified about the large number of such pens sold in the Bay Area; he also described how he had disassembled the pen and corrected the jam (after it was in evidence, prior to his testimony and without the permission of either the court or the prosecutor).

1. The Hitch Motion.

When Ms. Hartnett, the prosecution criminologist, received the slides and swab for examination, she noticed that a small amount of mold was growing on the swab. As noted previously, Ms. Hartnett had determined that appellant was a Type B secretor, and she had found no Type B antigens in her examination of the slides. The possible explanations for the absence of Type B antigens were: 1) appellant was not the rapist; 2) there was an insufficient quantity of semen present in the victim's vagina, either because of her activity after the rape or because the rapist had ejaculated only a small amount.

Before jury selection, appellant moved to dismiss the charges arguing that the prosecution had failed to preserve the swab. He contended, as he does on appeal, that:

1) The swab was material and potentially exculpatory evidence because, had it not contained mold, his expert could have performed a new test, called a quantitative acid phosphatase test, on it. Had the test been performed, he argues, a high level of acid phosphatase might have been found. If so, such a level might have indicated that a large semen sample was present in the victim's vagina at the time of the swabbing, giving rise to the opinion that Type B secretions should have been present and, since they were not, the likelihood that appellant was the rapist would be greatly reduced.

2) The hospital personnel were agents of the investigating authorities, and their negligence in failing to preserve the swab must be imputed to the investigating authorities.

The testimony by Ms. Hartnett and Michael Grubb, a criminologist called by appellant, revealed that acid phosphatase is a substance present in a variety of bodily secretions, including semen and vaginal fluid. Mr. Grubb testified that his laboratory had developed a method of quantitating the amount of acid phosphatase in a sample. The tester does not attempt to separate acid phosphatase in semen from vaginal acid phosphatase. Instead, the latter is factored out on a statistical basis. (Mr. Grubb explained that the acid is present in vaginal secretions at lower levels that it is in semen. The amount of acid phosphatase in either varies among individuals; however, the laboratory's test apparently attempts to account statistically for this and for factors such as the victim's activity after the rape and the time lapse between the rape and the test.) Mr. Grubb offered no testimony on base data for these statistical assumptions, nor did he suggest that any laboratory other than his own was performing the test.

Mr. Grubb said that the mold would have made the swab unusable for such a test and that it was not possible to use the slides for the test. He had not, however, attempted to use the swab or the slides, both of which were in existence at the time of the hearing.

Ms. Hartnett had not heard of the test prior to this case. She knew of no other laboratory performing the test. Alameda, San Mateo, San Francisco and Santa Clara Counties do not perform such a test. She and her colleagues in the San Mateo crime laboratory saw problems with the test.

Ms. Hartnett described the standard rape evidence kit supplied by the San Mateo County criminal laboratory and testified that the hospital personnel had used the kit which came with instructions. She further testified that the particular mold on the swab forms in the absence of air, was not purposely induced, and “could generate from spores from the victim herself, or from the material present, or simply from bacteria in the air.”

Denying the motion to dismiss, the trial court found that there was no intentional or negligent act on the part of the prosecution or any of their agencies in the handling of the evidence in the case and that the tests performed by Ms. Hartnett were done in conformance with the scientific approval of the community; “the overall handling of the evidence was proper. Defendant was not prejudiced by it.” Moreover, the court's comments suggest that it did not feel that the test proposed by Mr. Grubb was accepted in the scientific community.

It is axiomatic that the prosecution has an obligation to disclose the existence of material evidence to a defendant and a correlative duty to preserve such evidence without a request for it. (People v. Nation (1980) 26 Cal.3d 169, 175, 161 Cal.Rptr. 299, 604 P.2d 1051; People v. Hitch (1974) 12 Cal.3d 641, 650, 117 Cal.Rptr. 9, 527 P.2d 361; In re Ferguson (1971) 5 Cal.3d 525, 532, 96 Cal.Rptr. 594, 487 P.2d 1234.) When evidence is no longer in existence, the initial burden is on the defendant to establish that the missing evidence is material. In other words, the defendant must show that “there is a reasonable possibility that [it] would constitute favorable evidence of the issue of guilt or innocence․” (People v. Hitch, supra, 12 Cal.3d at p. 649, 117 Cal.Rptr. 9, 527 P.2d 361; People v. Nation, supra, 26 Cal.3d at p. 176, 161 Cal.Rptr. 299, 604 P.2d 1051.) If this burden is met, sanctions for nonpreservation will be imposed “unless the prosecution can show that the governmental agencies involved have established, enforced and attempted in good faith to adhere to rigorous and systematic procedures designed to preserve” such evidence. (People v. Hitch, supra, 12 Cal.3d at pp. 652-653, 117 Cal.Rptr. 9, 527 P.2d 1361; People v. Nation, supra, 26 Cal.3d at p. 177, 161 Cal.Rptr. 299, 604 P.2d 1051.)

Hitch and its progeny have been concerned with the intentional destruction of evidence by the prosecuting authorities and have fashioned sanctions depending on whether the destruction was malicious and whether the authorities have met their burden of showing the establishment and enforcement of proper procedures to preserve the evidence. The Hitch court noted, however, quoting from United States v. Bryant (D.C.Cir.1971) 439 F.2d 642, 652, that “[n] egligent failure to comply with the required procedures will provide no excuse.” (People v. Hitch, supra, 12 Cal.3d at p. 652, 117 Cal.Rptr. 9, 527 P.2d 361.) Generally, negligent loss of evidence has been addressed in the context of whether the established procedures were adequate for the preservation of evidence. (See People v. Nation, supra 26 Cal.3d at p. 177, 161 Cal.Rptr. 299, 604 P.2d 1051 (deterioration of semen sample perhaps due to lack of refrigeration); People v. Swearington (1978) 84 Cal.App.3d 570, 573, 148 Cal.Rptr. 755 (evidence missing from property room evidence box; no evidence presented by prosecution concerning procedures); People v. Jackson (1980) 102 Cal.App.3d 620, 623, 162 Cal.Rptr. 574 (vaginal swabs lost from medical laboratory at Fort Ord, with no showing of reasonable measures taken to preserve).

The sanction of dismissal may be applied only where there has been a showing of intentional and malicious destruction. (People v. Hitch, supra, 12 Cal.3d at p. 653, 117 Cal.Rptr. 9, 527 P.2d 361; People v. Zamora (1980) 28 Cal.3d 88, 100, 167 Cal.Rptr. 573, 615 P.2d 1361.) Moreover, “lawful and proper destruction requires no sanction.” (People v. Zamora, supra, at p. 100, 167 Cal.Rptr. 573, 615 P.2d 1361;2 People v. Hitch, supra, 12 Cal.3d at pp. 652-653, 117 Cal.Rptr. 9, 527 P.2d 361.) Nor is any sanction required when the suppressed evidence is immaterial to the charge. (Zamora, supra, 28 Cal.3d at p. 100, 167 Cal.Rptr. 573, 615 P.2d 1361.) Absent a showing by the People of the establishment and enforcement of procedures for the preservation of material evidence, sanctions short of dismissal may be imposed for the intentional but nonmalicious destruction of evidence. Thus, for example in Hitch, supra, breathalyzer blood alcohol test results were suppressed where the test ampoules had been destroyed. And, in People v. Zamora, supra, no testimony was suppressed, but the trial court was ordered to instruct the jury on the subject of the lost police files and on inferences that might be drawn.

The purpose of the imposition of sanctions is twofold: “to uphold [the] defendant's right to a fair trial and to deter prosecution attempts to defy or circumvent judicial authority.” (People v. Zamora (1980) 28 Cal.3d 88, 96, 167 Cal.Rptr. 573, 615 P.2d 1361.) “[T]he courts must consider the impact of the sanction upon future cases and future police conduct․ At the same time the court must bear in mind the public interest in law enforcement, and the harm which may be inflicted by a sanction which prevents the trial and conviction of possibly guilty future defendants.” (People v. Zamora, supra, at p. 100, 167 Cal.Rptr. 573, 615 P.2d 1361.

“[T]he courts enjoy a large measure of discretion in determining the appropriate sanction that should be imposed because of the destruction of discoverable records and evidence.” (People v. Zamora, supra, at p. 99, 167 Cal.Rptr. 573, 615 P.2d 1361.) Our role, as a reviewing court is to determine whether that discretion has been properly exercised and to determine whether the trial court's factual findings are supported by substantial evidence. (People v. Zamora, supra, at p. 100, 167 Cal.Rptr. 573, 615 P.2d 1361.)

Here we need not decide whether appellant has met his burden of establishing the materiality of the test results or the validity of his proposed test. The trial court's finding that the presence of mold on the swab was not the fault of the prosecuting authorities was supported by substantial evidence, and the court properly denied appellant's motion to dismiss the charges.

2. Foot Impression Analysis.

Officers recovered from the victim's home a man's shoe which the assailant had dropped in flight. Ms. Hartnett, the county criminologist, performed a comparison study of the insole of that shoe, an innersole from a shoe worn by appellant after his arrest, an inked impression of appellant's bare foot, and a cast of the upper portion of his foot. These items were presented to the jury, along with a photographic display of the first three. Using a grid system, Ms. Hartnett had compared some 50 different features of the items. Ten of these were diagrammed on the photographic display.3

Ms. Hartnett testified that there were no inconsistencies between appellant's known foot impressions and the foot impressions found in the suspect's shoe. She opined that there was a “good probability” that appellant's foot had made the impression inside the shoe recovered from the crime scene.

Appellant contends, as he did at the pretrial motion, that the foot impression analysis performed by Ms. Hartnett is a “new scientific technique” and that its admission must be tested according to the standards set forth in People v. Kelly (1976) 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240. Respondent does not quarrel with the applicability of the Kelly rule to genuinely new scientific techniques. Instead, he argues, as he did below, that the technique (visual comparison of measurements) is not new and was simply being used “to solve a new twist on an old problem,” that of footprint or shoe comparison.4 The district attorney argued below, and the trial judge agreed, that Ms. Hartnett's testimony was admissible to assist the jury in viewing and understanding the comparison exhibits. The record reflects that the court below carefully considered the probative value of the testimony against any prejudicial effect. We see no abuse of discretion.

Kelly set forth the following test: “[A]dmissibility of expert testimony based upon the application of a new scientific technique traditionally involves a two-step process: (1) the reliability of the method must be established, usually by expert testimony, and (2) the witness furnishing such testimony must be properly qualified as an expert to give an opinion on the subject. (See Evid. Code, §§ 720, 801; Jones, Danger—Voiceprints Ahead (1973) 11 Am.Crim.L.Rev., 549, 554.) Additionally, the proponent of the evidence must demonstrate that correct scientific procedures were used in the particular case. [Citations.]” (Kelly at p. 30, 130 Cal.Rptr. 144, 549 P.2d 1240, emphasis in original.) Kelly expressed concern that “[l]ay jurors tend to give considerable weight to ‘scientific’ evidence when presented by ‘experts' with impressive credentials,” (Kelly at p. 31, 130 Cal.Rptr. 144, 549 P.2d 1240) and that there exists a “misleading aura of certainty which often envelopes a new scientific process, obscuring its currently experimental nature. [Citations.]” (Kelly at p. 32, 130 Cal.Rptr. 144, 549 P.2d 1240.)

Kelly dealt with a genuinely new experimental identification technique—that of voiceprints, which requires scientific assumptions and hypotheses which cannot be proven in the courtroom and which lie beyond the knowledge of the average juror. (People v. Marx (1975) 54 Cal.App.3d 100, 110, 126 Cal.Rptr. 350.) In discussing the admissibility of bite mark evidence, the court in Marx observed that the evidence was trustworthy first because the experts “did not rely on untested methods, unproven hypotheses, intuition or revelation. Rather, they applied scientifically and professionally established techniques … to the solution of a particular problem which, though novel, was well within the capability of those techniques.” (Marx, supra, at p. 111, 126 Cal.Rptr. 350.) Second, the court pointed out that the trier of fact could see for itself the material object, exhibits of slides, photographs, x-rays and models of the bite mark wounds. (Marx, supra, at p. 111, 126 Cal.Rptr. 350.) Marx preceded Kelly but Marx accepted the test of Frye v. United States (App.D.C. 1923) 293 F. 1013, which was the test adopted by the Kelly court. Marx noted that “The Frye test finds its rational basis in the degree to which the trier of fact must accept, on faith, scientific hypotheses not capable of proof or disproof in court and not even generally accepted outside the courtroom.” (Marx, supra, 54 Cal.App.3d at p. 110, 126 Cal.Rptr. 350.)

The record (both at the pretrial motion and at trial before the jury) is clear that this was the first time Ms. Hartnett had performed this type of comparison and that such comparisons were not widely performed. (She makes reference to approximately six articles on the subject, at least two of which were about work done in India—on bare foot impressions made in the ground.) The jury was told that she had never made such a comparison before. She testified concerning what articles she had read, who she had consulted, and her methodology. She was cross-examined extensively concerning the lack of statistical data available with respect to population frequency of specific foot characteristics. She did not contend that the analysis purported to have the certainty of, for example, fingerprint identification; however, she did say others felt it was reliable for positive identification.5 The judge (at the pretrial hearing), and later the jury, were presented with detailed information on all of the variables that could effect Ms. Hartnett's measurements.

Ms. Hartnett's testimony was properly admitted. Appellant could have been required to place his foot in the recovered shoe. (See People v. Rucker (1980) 26 Cal.3d 368, 380, 162 Cal.Rptr. 13, 605 P.2d 843; People v. White (1968) 69 Cal.2d 751, 72 Cal.Rptr. 873, 446 P.2d 993.) The exhibits themselves were simply admissible, demonstrative evidence to show in some detail that appellant's foot was one which fit the shoe. The jury could view the exhibits, and Ms. Hartnett's testimony was appropriate to explain the points of similarity. Ms. Hartnett was a fully qualified criminologist, trained in measurement and comparison techniques. Her credentials were before the jury in some detail. The jury was free to accept or reject her opinion.

Appellant also argues that the prosecution made no showing that the various foot impressions were produced under similar conditions, and that the footwear taken from appellant had a significant amount of wear or was of a similar design, style or surface as that of the recovered shoe. Ms. Hartnett was cross-examined on the question of the similarity of conditions. The jury could, themselves, observe any dissimilarities between the insole and the shoe taken from the scene. These objections go to weight, not admissibility.

Finally, we note that even if we were to conclude that the testimony was inadmissible, it was harmless. There was ample evidence, both direct and circumstantial, pointing to appellant as the rapist. There is no reasonable probability that a result more favorable to appellant would have been reached. (People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243.)

3. Jury Instructions.

Appellant proposed four special jury instructions.6 All were refused. He contends that this was error, requiring reversal. We disagree.

Instructions No. 1 and No. 2 are variations of CALJIC No. 2.91 which was given. Further, they imply that the only evidence identifying the defendant was Jill's testimony. That is not the case. (See People v. McCowan (1978) 85 Cal.App.3d 675, 679-680, 149 Cal.Rptr. 611.)

Instructions Nos. 3 and 5 attempt to focus the jury's attention on aspects of Jill's identification. California courts have concluded that a criminal defendant is entitled to instructions which focus the attention of the jury on evidence from which a reasonable doubt might be engendered, including identification instructions. (People v. Hurley (1979) 95 Cal.App.3d 895, 900, 157 Cal.Rptr. 364; People v. Guzman (1975) 47 Cal.App.3d 380, 387, 121 Cal.Rptr. 69.) Appellant relies on Guzman, but there, unlike his own trial, no instruction linking identification to the concept of reasonable doubt was given. Later cases have held that CALJIC Nos. 2.20 and 2.91 which were given, are sufficient to focus the jury's attention with regard to the People's burden on identity. (See People v. Hurley, supra, 95 Cal.App.3d, at p. 901, 157 Cal.Rptr. 364; People v. Kelley (1977) 75 Cal.App.3d 672, 679, 142 Cal.Rptr. 457; People v. Boothe (1977) 65 Cal.App.3d 685, 690, 135 Cal.Rptr. 570; People v. Smith (1977) 67 Cal.App.3d 45, 49, 136 Cal.Rptr. 387; People v. Vindiola (1979) 96 Cal.App.3d 370, 386, 158 Cal.Rptr. 6; People v. Blair (1979) 25 Cal.3d 640, 663, 159 Cal.Rptr. 818, 602 P.2d 738 (no duty to instruct sua sponte).)

As we recently observed in People v. Lybrand (1981) Cal.App.3d, 171 Cal.Rptr. 157, “More recently, however, Guzman was resurrected in People v. Hall (1980) 28 Cal.3d 143 [167 Cal.Rptr. 844, 616 P.2d 826]. There the Supreme Court said: ‘Appellant Nichols also contends that the trial court committed prejudicial error in refusing to give his requested instructions concerning proof of identity beyond a reasonable doubt. Under the case law, it is error to refuse to give an instruction requested by a defendant which “directs attention to evidence from … which a reasonable doubt of his guilt could be engendered.” (People v. Sears (1970) 2 Cal.3d 180, 190 … [84 Cal.Rptr. 711, 465 P.2d 847].) This applies with equal force to a refusal to give a requested instruction which deals with identification in the context of reasonable doubt. (People v. Guzman, supra, 47 Cal.App.3d at p. 387 [121 Cal.Rptr. 69]; People v. Roberts (1967) 256 Cal.App.2d 488, 492-494․ [64 Cal.Rptr. 70].) [¶] Nichols' proposed instruction No. 5 was identical to one of the instructions which was found to be too long and argumentative in Guzman. (See People v. Guzman, supra, 47 Cal.App.3d at p. 387 [121 Cal.Rptr. 69].) Further, some of the factors highlighted by the instruction have no application to the present case. Although the trial court did not err in refusing to give the instruction as written, it should not have refused to tailor the instruction to the facts of this case. However, this error was not prejudicial since the trial court did read to the jury CALJIC No. 2.91, as modified at Nichols' request, and CALJIC No. 2.20. In the future, the trial courts should consider and give appropriate instructions involving reasonable doubt and eyewitness identification. (See People v. Sears, supra, 2 Cal.3d at p. 190, 84 Cal.Rptr. 711, 465 P.2d 847.)’ (People v. Hall, supra, 28 Cal.3d at pp. 158-160, 167 Cal.Rptr. 844, 616 P.2d 826, fns. omitted.) The Hall rule is explicitly prospective only. Thus, here it was not error to refuse the instructions. Additionally, as in Hall, any error was harmless since CALJIC Nos. 2.20 and 2.91 were given.”

Finally, we have previously pointed out that “instructions which are argumentative and call upon the jury to consider specific evidence concerning which there was a factual dispute should not be given.” (People v. Watson (1979) 89 Cal.App.3d 376, 386, 152 Cal.Rptr. 471 (Scott, J.).) Instruction No. 4 is an excellent closing argument. A longer version of it was in fact the defense argument.

The judgment is affirmed.


1.  We have augmented the record on our own motion (Cal. Rules of Court, rule 12) to include the composite, the photospread, appellant's booking photo and the photographs of the line-up, all of which were before the jury. Suffice it to say that Jill's identification of appellant was in no way weakened, and indeed was strengthened by these items.

2.  The Zamora court cites Robinson v. Superior Court (1978) 76 Cal.App.3d 968, 143 Cal.Rptr. 328, with approval. There, no sanctions were imposed for the police destruction of jailhouse visitor passes “since such passes were not intended as records and the police were not aware that their preservation might aid the defense.” (People v. Zamora, supra, 28 Cal.3d at p. 98, 167 Cal.Rptr. 573, 615 P.2d 1361.)

3.  We have augmented the record on our own motion (Cal. Rules of Court, rule 12) to include these exhibits.

4.  See, for example, Annot., Footprints as Evidence, 35 A.L.R.2d 856, § 4 and cases cited; People v. Houser (1948) 85 Cal.App.2d 686, 691, 193 P.2d 937; People v. Wynkoop (1958) 165 Cal.App.2d 540, 546, 331 P.2d 1040; People v. Zismer (1969) 275 Cal.App.2d 660, 665, 80 Cal.Rptr. 184. Footprint comparison includes that of distinctive features, as well as size and wear patterns. Also, see State v. Mark (Iowa, 1979) 286 N.W.2d 396, 407-409, where the physical characteristics of the suspect so revealed by the footprints were compared with the defendant's physical characteristics.

5.  We wish to make clear that we are not endorsing foot or shoe impression comparison as a scientific method of certain identification, comparable, for instance, to fingerprints. The record here does not support a conclusion that foot impressions are unique to individuals. Moreover, we are mindful of the Kelly court's concern with the “aura” of scientific certainty surrounding expert testimony. While Ms. Hartnett was careful to qualify her opinion, portions of her testimony suggested that others considered the application of measurement technique to this problem to be a method of certain identification. That, of course, goes beyond aiding the trier of fact in understanding the exhibits.

6.  4. Defendant's Proposed Jury InstructionNo. 1:“The burden is on the prosecution to prove beyond a reasonable doubt not only that the offenses were committed as alleged in the Information, but also that the defendant is the one who committed it. You must be satisfied beyond a reasonable doubt of the accuracy of the identification before you may convict him. If the circumstances of the identification are not convincing beyond a reasonable doubt, you must find the defendant not guilty.”No. 2:“You are instructed that the identity of the defendant as the person who committed the crime is an element of every crime. The Government has the burden of providing identity, beyond a reasonable doubt. It is not essential that the witness himself be free from doubt as to the correctness of his statement. However, you, the jury, must be satisfied beyond a reasonable doubt of the accuracy of the identification of the defendant before you may convict him. If you are not convinced beyond a reasonable doubt that the defendant was the person who committed the crime, you must find the defendant not guilty.”No. 3:“In evaluating the identification testimony of the witness, you should determine if:“1. The witness had adequate opportunity to make the observation;“2. The witness is positive in her identification;“3. The witness's identification testimony is not weakened by prior failure to identify or by prior inconsistent identification, and;“4. After cross-examination the testimony remains positive and qualified.“If you find that any one of the four conditions is absent, you are admonished to consider the witness's testimony as to identity with caution and scrutinize it with care.”No. 4:“In determining whether in regard to the elements at issue reasonable doubt exists, as that term has been previously defined, you may consider any of the following evidence:“1. The fact that no hair samples from the defendant were found at or near the scene of the crime;“2. The fact that his blood type was not found in the vaginal smears taken from the victim following the rape;“3. The fact that no evidence of rug fibers from the victim's residence was found on any of the defendant's clothing;“4. The fact that his fingerprints were not found at the scene;“5. The fact that none of the victim's hair was found on any of the defendant's clothing;“6. The fact that the missing shoe and clothing taken from the victim were not found at the defendant's residence;“7. The fact that numerous items taken from the victim and from her house were never located at or even near defendant's home, and in fact never recovered;“8. Any other evidence tending to prove reasonable doubt.”No. 5:“Identification testimony is an expression of belief or impression by the witness. Its value depends on the opportunity the witness had to observe the offender at the time of the offense and make reliable identification later. In appraising whether the witness had an adequate opportunity to observe the offender at the time of the offense, you should consider such matters as how long or short a time was available, whether the witness was in fear or anxious at the time of the observation, and whether the witness had had an occasion to see or know the person in the past.“You may also take into account in evaluating the identification testimony of a witness whether that witness failed to make an identification of the defendant on other occasions, or made an identification that was inconsistent with his identification at the trial.“Finally, you must consider the credibility of each identification witness in the same way as any other witness, consider whether he or she is truthful, and whether he or she had the capacity and opportunity to make reliable observation in the matter covered in his or her testimony.”

DEAL, Associate Justice.

WHITE, P. J., and SCOTT, J., concur. Hearing denied. BIRD, C.J., did not participate.