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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph Michael GONZALES, Defendant and Appellant.


Decided: May 29, 1984

Edward J. Roberts, Los Angeles, for defendant and appellant. John K. Van de Kamp, Atty. Gen., J. Richard Haden and Peter Quon, Jr., Deputy Attys. Gen., for plaintiff and respondent.


The superior court's refusal to tailor a remedy for a police failure to preserve the intended victim's written description of a would-be robber's tattoo compels reversal of Joseph Michael Gonzales' attempted robbery conviction (People v. Hitch (1974) 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361).


At about 4:30 p.m. on January 29, 1982, cashier Jose Barrera was at his post behind bullet proof glass at a discount gas station in the city of Orange when he was approached by a Latin male.   The man had his hand in a paper bag and demanded all the money—or he would shoot.   Barrera, confident of the bullet proof glass, calmly wrote down a description of a distinctive one word tattoo he observed on the man's right bicep:  “g-u-i-l-t-y.”   And the frustrated felon fled.

Barrera, who does not speak or read English, reported the event to the Orange Police Department.   Three of Orange's finest, including a Spanish speaking officer accompanied by a Spanish speaking probation officer “ride-along,” were dispatched.   Barrera explained what occurred and handed over a receipt form containing his description of the tattoo.   The officers left this document at the station when they departed, however, and it was subsequently discarded by the victim's shift replacement.   The trial court held the police never “gathered” the evidence within the meaning of Hitch, although at least one officer and the probation officer physically handled the slip of paper and another officer may have, depending on whose recollection was accurate.

Barrera, when shown a piece of paper with the word “guilty” written out at the hearing on the Hitch motion, said it looked correct, although he could only actually recall the first letter.   Previously, he stated the first three letters were, he believed, “g-u-i” or “g-u-y.”

Although he tentatively identified another individual in an eighteen-picture photo lineup soon after the crime, Barrera selected Gonzales' picture from a set containing six different mug photos in June of 1982, after a sheriff's deputy informed Orange police of a tattoo he observed on Gonzales in May.   His tattoo is located on the left forearm, not the right bicep, however.   The parties describe it differently on appeal.   The Attorney General claims the tattoo reads “not guilty,” while the defense alleges it says, “mot gulity” (sic, as to both words).   We have examined the photos received in evidence and are satisfied the defense is correct;  the tattoo reads, “mot gulity.”   The distinction is obviously critical, particularly as to the second word, since Barrera does not read or speak English and testified he had never seen the English word “guilty” before.   The odds he would transpose letters to correct the spelling of a word in a strange language appear remote indeed.

At trial Gonzales, supported by his former wife, presented an alibi defense.   He said he had never visited Barrera's gas station and had been home all afternoon on the day of the crime.   The tattoo in question was applied when he was twelve years of age.


 The Attorney General claims the trial court correctly found Hitch inapplicable because police must merely preserve collected evidence and have no affirmative duty to gather it.   There is a simple answer to this argument:  the evidence was gathered by the officers.   One or two of them had actual possession of it.   It was gathered by any reasonable definition of the word.   The trial court's holding distills to the absurd proposition that “gathered evidence” is defined as evidence which is not lost.  Hitch is not so easily avoided, nor should it be.

 Of course, police can avoid the Hitch sanction where the evidentiary loss is unintentional or inadvertent, if “the governmental agencies involved have established, enforced and attempted in good faith to adhere to rigorous and systematic procedures designed to preserve the [evidence].”  (People v. Hitch, supra, 12 Cal.3d 641, 652–653, 117 Cal.Rptr. 9, 527 P.2d 361.)   The prosecution is not in a position to claim a systematic procedure was involved here, unless it was of the Mack Sennett variety;  the Hitch motion should have been granted.


 Dismissal is not necessarily required for nonmalicious Hitch violations, however;  and the court could have fashioned a remedy for the violation in this case short of dismissal:  “the courts enjoy a large measure of discretion in determining the appropriate sanction that should be imposed because of the destruction of discoverable records and evidence.  ‘[N]ot every suppression of evidence requires dismissal of charges․  The remedies to be applied need be only those required to assure the defendant a fair trial.’   [Citations.]”  (People v. Zamora (1980) 28 Cal.3d 88, 99, 167 Cal.Rptr. 573, 615 P.2d 1361.)   The court should evaluate the circumstances attending the loss or destruction, the materiality of the evidence, and the potential impact of sanctions on future cases and future police conduct.

 The circumstances attending this loss do not appear malicious, but neither can they be described as inadvertent.   Gross negligence is perhaps most apt.   The materiality of the evidence is clear.   The victim did not speak English, and it is unlikely he would accidentally correct the spelling of a misspelled word he had never seen.   If a description of the tattoo, correctly spelled in English, had been preserved and produced at trial, the prosecution's case would have been severely, perhaps irreparably, damaged.   Following Zamora, we hold Gonzales is entitled to a new trial at which the jury is to be instructed it is conclusively established the victim's note described the tyro robber's tattoo as consisting of six letters, “g-u-i-l-t-y,” in that order.   In other words, the prosecution is to be deprived of the argument the officers inadvertently failed to notice the misspelling of the word on the gas station receipt.   Police can be deterred, in our view, from gross failures to preserve material evidence by employment of the sanction of advising the jury the lost material would have been favorable to the defendant if presented at trial.   Although the officers might not have appreciated the potentially momentous significance of the receipt had they failed to note the misspelling, a crime victim's own contemporaneous written description of the criminal's physical description is so obviously of importance Hitch must generally apply to any police failure to preserve that evidence.

Gonzales' other contentions need not be addressed in light of our decision, although we note the Attorney General has correctly conceded a routine sentencing error which we presume will not be repeated in the event of conviction upon retrial.

The judgment is reversed.

CROSBY, Associate Justice.

TROTTER, P.J., and SONENSHINE, J., concur.