IN RE: MICHAEL L.

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Court of Appeal, First District, Division 2, California.

IN RE: MICHAEL L., a Minor. The PEOPLE of the State of California, Plaintiff and Respondent, v. MICHAEL L., Defendant and Appellant.

AO19856.

Decided: February 16, 1984

John K. Van de Kamp, Atty. Gen., Gloria F. DeHart, Mary A. Roth, Deputy Attys. Gen., San Francisco, for plaintiff and respondent. Harold M. Jaffe, Oakland, for defendant and appellant.

Michael L., a minor, appeals from an order adjudging him to be a person described in section 602 of the Welfare and Institutions Code and committing him to the California Youth Authority upon findings that he committed robbery (Pen.Code, § 211), battery (Pen.Code, § 242) and battery with serious bodily injury (Pen.Code, § 243, subd. (d)).  Included in the commitment term was a consecutive one-year enhancement on the robbery offense for personal use of a deadly or dangerous weapon, a knife (Pen.Code, § 12022, subd. (b)).

Appellant claims error in the lower court's (1) denial of his Hitch motion (People v. Hitch (1974) 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361) based on failure of the prosecution to obtain and preserve videotape evidence of the robbery, (2) imposition of a one-year enhancement under Penal Code section 12022, subdivision (b), for use of a knife in the commission of the robbery where such use supplied the necessary “force or fear” required for robbery, and (3) admission of the robbery victim's identification of the minor, which assertedly was the product of an unduly suggestive photographic lineup.

BACKGROUND

Appellant was on probation and in the custody of his mother when, on March 9, 1982, a supplemental petition (Welf. & Inst.Code, § 777) was filed in juvenile court alleging that the court's prior order granting probation had not been effective in rehabilitating the minor in that he had left home without permission on February 15th and his whereabouts were then unknown.   In the petition, the People requested modification of the prior order in light of previously found offenses (Pen.Code, §§ 242 [battery] and 243, subd. (d) [battery with serious bodily injury] ) and issuance of a warrant for the minor's arrest.   The warrant issued, and appellant was arrested by Oakland police on May 21st.   Following a detention hearing, at which the court found the allegations of the supplemental petition to be true, the minor was released on home supervision.   A subsequent petition filed on May 27th alleged that the minor was a person described in Welfare and Institutions Code section 602 in that he committed robbery with use of a knife, in violation of Penal Code sections 211 and 12022, subdivision (b), on or about February 13, 1982.

On July 13, 1982, appellant filed a suppression motion (Welf. & Inst.Code, § 700.1) challenging, among other things, the legality of a warrant search of his home on February 19th following the robbery.   At the suppression hearing held on July 28, appellant made an oral Hitch motion, asking that the court excise statements in an affidavit in support of the warrant, which affidavit indicated that identifications of him had been made on February 16 and 17 by the robbery victim and by an owner of the robbed premises.1  Appellant claimed that the identifications were tainted by previous viewings of a videotape of the robbery taken by a store surveillance camera and that, due to the People's negligent or intentional failure to preserve the tape, the tape was not provided to appellant.   Appellant asserted that the warrant could not stand without the portions of the affidavit sought to be excised and thus should be quashed.   The court denied the motion, and the jurisdictional hearing on the subsequent petition immediately ensued.

Throughout the hearing, counsel for appellant objected on Hitch grounds to the admission of evidence concerning the videotape viewings as well as evidence which might have been derived therefrom, including in-court identifications of appellant and the evidence seized in the warrant search of his home.   All such objections were overruled.

The court found the robbery and enhancement allegations to be true on August 10, 1982, and filed its dispositional order on both the supplemental and subsequent petitions on August 24th, setting aside the prior probation order and committing appellant to California Youth Authority for a maximum term of six years.   Five years were imposed for the robbery offense, as the principle term, plus one year for the enhancement.   Terms totaling four years and six months for the misdemeanor and felony battery offenses (Pen.Code, §§ 242, 243, subd. (d)) were ordered to run concurrent to the principle term.   Notice of the instant appeal, authorized by section 800 of the Welfare and Institutions Code, was filed on September 30, 1982.

Testimony established the following facts germane to the Hitch motion.   Eduardo Gonzalez was robbed by two individuals on the evening of February 13, 1982, while working behind the counter at McGoo's Donut Factory on 82nd Street in Oakland.   While one of the robbers occupied himself at a cigarette machine, the other approached Gonzalez on the pretense of wanting change for a ten-dollar bill, pulled a knife, leaped over the counter and demanded that Gonzalez open the cash register, warning, “If you make a false move you're gone.”   Gonzalez complied.   Then, the second robber jumped over the counter and took all the currency, and the armed robber took all coins.

After the robbers fled, Gonzalez reported the incident to Oakland police, and an officer responded within about 45 minutes.   Gonzalez had never before seen the robbers but was able to describe their clothing.   He reported to the officer that the armed individual—a black male aged sixteen or seventeen, of medium build and about five foot six or seven in height—had on a V-pattern light and dark blue ski jacket, black surfers (tennis shoes), a hooded sweatshirt with the hood up, a brimmed baseball cap and blue jeans.

The robbery was recorded on videotape by an automatic store surveillance camera.   Susan Thomas, who with her husband LeRoy owned the store, viewed the videotape in a back room of the store several times on the night of the robbery, first alone and then in the company of Gonzalez, a neighborhood boy and the responding officer.   She had advised the officer, “We have it on tape.”   Although she did not witness the robbery itself, from the tape Mrs. Thomas recognized the youth with the knife as a “neighborhood kid” and the brother of another youth, Victor C.   She so informed the officer (see fn. 1, ante ), who asked her to preserve the tape so that investigating officers who would later be sent out could see it.   Mrs. Thomas never again spoke with police about the tape.

As part of the robbery investigation, Sergeant Samuel Maddux of the Oakland Police Department, accompanied by a Sergeant Gillespie, went to the store on February 16th and viewed the videotape in the presence of Mr. (LeRoy) Thomas.   Mrs. Thomas was not present.   Using a freeze-frame device on Mr. Thomas' videotape player, Sergeant Maddux selected certain frames and photographed them, using Polaroid and 35 millimeter cameras.   Maddux initially wanted to take the videotape, but Mr. Thomas, who felt from past experience that the court systems “held on to his property a little bit too long for him,” wished to keep the tape.   Maddux testified that he asked Mr. Thomas to preserve the tape;  Mr. Thomas testified that he might have been so instructed but could not recall.   Mrs. Thomas, who had earlier been instructed to preserve the tape, thought that there was no further need to preserve it once it had been shown to the investigators.   The tape was later recorded over and thereby erased.

Sergeant Maddux interviewed Eduardo Gonzalez on the next day, February 17th.   Gonzalez, who had viewed the videotape on the night of the robbery four days earlier, was shown a lineup consisting of six photographs and quickly selected one of appellant (taken in December 1979) from among them.   He said, “That looks like the guy” but, when pressed by the sergeant, said that he could not be certain although there was a strong resemblance.   Gonzalez gave a signed statement to that effect.   Based on information received from Mrs. Thomas and Gonzalez, a search warrant was obtained for appellant's residence (see fn. 1, ante ).   Maddux served the warrant on February 19th and seized a blue jacket and a picture of appellant wearing the jacket.   Maddux knew to seize the jacket in part because he had seen the videotape.   Mrs. Thomas had furnished police with appellant's address as soon as she learned that information, on either the 13th or 14th of February.

Two freeze-frame photographs of the videotape were admitted into evidence at trial.   Sergeant Maddux, Eduardo Gonzalez and Mrs. Thomas all identified the photos as representations of the lost videotape but none could identify appellant from the photos, which the witnesses variously described as “blurry,” “fuzzy” and “not very good.”

Gonzalez, who had described the armed robber as wearing the hood of a hooded sweatshirt up over his head, could not tell whether the robber was shown in the photos or whether anyone depicted therein wore a hood, although he noted that one person was wearing something on his head.   Similarly, although Mrs. Thomas testified that “the tape was very clear” and was able to identify appellant in court as the robber depicted in the tape, she stated that she could not make an identification based on the freeze-frame photos.   Gonzalez, when asked in court to think back to the night of the robbery and to put out of his mind the photographic lineup identification subsequently made for Sergeant Maddux, said in reference to appellant, “I'm not so sure but I think it's him.”

Gonzalez identified photographs of the seized blue jacket in court, saying, “Well, the guy with the knife was wearing something like this.”   He did not recall the V-shape pattern on the sleeves (shown in the photos) but explained that he had only looked at the body of the jacket during the robbery.   Gonzalez recognized in one of the freeze-frame photos a jacket that looked like the one in police photos of the seized jacket.

APPEAL

I

Appellant contends that the failure of police to preserve the videotape recording violated his due process right to a fair trial under principles applied in People v. Hitch, supra, 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361.   The People respond that no duty arose to preserve the evidence because police never possessed the videotape;  sanctions would not be called for in any event because police neither recommended nor consented to the videotape's destruction;  and sanctions are inappropriate because appellant failed to show that the videotape was potentially exculpatory.

Recently the Supreme Court in People v. Moore (1983) 34 Cal.3d 215, 193 Cal.Rptr. 404, 666 P.2d 419, summarized its prior holding in Hitch:  “This court held [in Hitch ] that an investigative agency has a duty to preserve and disclose evidence material to the guilt or innocence of the accused [citation] and that the duty arises even in the absence of a request from the defendant.  [Citations.]  [¶]  Hitch relied on the reasoning of United States v. Bryant (D.C.Cir.1971) 439 F.2d 642, which explained that ‘before a request for discovery has been made, the duty of disclosure is operative as a duty of preservation.’  (Id., at p. 651.)”  (Moore, supra, 34 Cal.3d at pp. 219–220, 193 Cal.Rptr. 404, 666 P.2d 419.)   The court in Moore continued, at page 220, 193 Cal.Rptr. 404, 666 P.2d 419, “When the evidence is no longer in existence, the burden of establishing that the evidence is material is met when the defendant shows that there is ‘a reasonable possibility that the evidence, if preserved, would have constituted favorable evidence on the issue of guilt or innocence․’  [Citation.]”  A defendant is able to meet the requirement that the evidence would have been favorable on the issue of guilt or innocence by showing that by its nature it could “reasonably be used to impeach the credibility of the prosecution witness' testimony regarding the evidence.”  (Id., at p. 200, 193 Cal.Rptr. 404, 666 P.2d 419.)

 The test of materiality is satisfied in this case because, without the videotape, positive identification of appellant might have been impossible.   The victim, Gonzalez, was the only eyewitness and initially could only describe the clothing and general physical dimensions of the armed robber.   The videotape-based identification made by Mrs. Thomas was the link that brought police focus upon appellant.   She had no other basis for identifying appellant as the robber.   It also seems unlikely that Gonzalez could have later selected appellant out of a photographic lineup had he not first viewed the videotape.   The two freeze-frame photographs of the videotape were of such poor quality that the hearing witnesses could make no positive identifications independent of their recollections from having seen the videotape.   All of this points to the materiality of the videotape as impeachment evidence bearing directly on the accuracy of the identifications—the key proof of guilt or innocence.

The videotape not only is material and therefore has a direct bearing on the question of guilt or innocence, but there was a “reasonable possibility that the evidence, if preserved, would have constituted favorable evidence” on this question.   As noted above, when evidence is no longer in existence, the “favorable evidence” burden is “met when the evidence by its nature could reasonably be used to impeach the credibility of the prosecution witness' testimony regarding the evidence.”  (Moore, supra, at p. 220, 193 Cal.Rptr. 404, 666 P.2d 419.)   Given the fact that the videotape was the touchstone for the prosecution's case, there is no question that it could have been used by the defense to test credibility.

II

 Next, the People argue that, even if the evidence in question is material, appellant made no showing of materiality in the court below.   However, we conclude that appellant's motion to exclude the evidence, coupled with his defense position at the hearing that he was not the robber, supplied a sufficient showing under the circumstances.   In fact, under these circumstances it would be impossible for one wrongly accused of the robbery to make a better showing than outright denial.   An analogous situation arose in People v. Moore, supra, 34 Cal.3d 215, 193 Cal.Rptr. 404, 666 P.2d 419, wherein a urine test ampoule lost by the government constituted the sole evidence of an alleged probation violation (drug use) aside from test results based upon analysis of the ampoule.   Speaking to the requirement of showing materiality, the Supreme Court noted, after first observing that such test results are subject to impeachment:  “․ it is the government's loss of evidence that requires speculative inquiry as to its materiality․  [¶]  In this case, the loss of the evidence necessarily means that the defendant will be unable to make a showing of materiality beyond claiming that he did not ingest PCP.   This the defendant did by denying in open court that he violated probation.”  (Id., at p. 221, 193 Cal.Rptr. 404, 666 P.2d 419.)

The witness identifications in this case are, like the chemical test results in Moore, subject to impeachment.   Also, as previously explained, the destroyed videotape was the sole solid evidence connecting appellant with the robbery, and all that survived to the time of the hearing were conclusions based on that evidence.   We therefore conclude that appellant's denial of wrongdoing and implicit denial of his presence at the robbery scene constituted the requisite showing of materiality.   It follows that a duty arose to preserve the videotape for disclosure to the defense.  (Hitch, supra, 12 Cal.3d 641, 649–650, 117 Cal.Rptr. 9, 527 P.2d 361.)

III

 We reject the People's argument that there was no duty to initially seize the tape and that, since the officers never came into possession of the tape, they therefore had no duty to preserve it.   This question was left open by the Supreme Court in People v. Hogan (1982) 31 Cal.3d 815, at page 851, 183 Cal.Rptr. 817, 647 P.2d 93, where the court commented:  “Hitch and Nation [People v. Nation (1980) 26 Cal.3d 169 [161 Cal.Rptr. 299, 604 P.2d 1051] ] imposed a duty to preserve material evidence which the police had already obtained.   Neither case imposed a duty to obtain such evidence or to conduct any particular tests.  [Citation.]  The police cannot be expected to ‘gather up everything which might eventually prove useful to the defense.’   (People v. Watson (1977) 75 Cal.App.3d 384, 400 [142 Cal.Rptr. 134];  ․)  [¶]  There might be cases in which this court would impose sanctions for a failure to obtain evidence.   But this is not such a situation.” 2  (Fn. omitted.)   Subsequently, in People v. Trombetta (1983) 142 Cal.App.3d 138, 190 Cal.Rptr. 319 (cert. granted 1984, 464 U.S. 1037, 104 S.Ct. 696, 79 L.Ed.2d 163), this court determined that the due process concerns of Hitch imposed an obligation on law enforcement officers to collect and preserve a retestable breath sample in drunk driving cases where the People prosecuted with the test results of an Omicron Intoxilizer, the use of which device does not result in collection of a retestable sample.  (Id., 12 Cal.3d at pp. 143–144, 117 Cal.Rptr. 9, 527 P.2d 361.)   and quoting from the reasoning of the Colorado Supreme Court in Garcia v. Dist. Court, 21st Jud. Dist. (1979) 197 Colo. 38, 589 P.2d 924, the Trombetta court concluded that “ ‘[t]he failure of the state to collect and preserve evidence, when those acts can be accomplished as a mere incident to a procedure routinely performed by state agents, is tantamount to suppression of that evidence.’  (589 P.2d at pp. 929–930.)  ․  [¶]  Due process demands that where evidence is collected by the state, ․ law enforcement agencies must establish and follow rigorous and systematic procedures to preserve the captured evidence or its equivalent for the use of the defendant.  [Citation.]”

We conclude that the circumstances of this case demand an expansion of the Hitch rule consistent with the Trombetta case.   To allow the Thomases to retain the tape was to place in jeopardy the evidentiary centerpiece of the case against appellant.   The officers here should have seized or subpoenaed the videotape at the time of their investigation.

The officers, upon viewing the videotape, knew of its significance and materiality.   They realized from the time of their initial contact with the store owner, Mrs. Thomas, that the tape itself, or facsimilies of the tape, and an identification based on the tape would be used in proceedings against the robber and, therefore, would form the foundation of their case.   Although they were not in exclusive possession of the tape, the officers exercised control over it while using it to take the freeze-frame photos.   In the short time it took to obtain self-developing photos, the officers further realized, or should have realized, that the photos taken were by no means equivalent in breadth, kind or quality to the videotape itself.3

The police were under a Hitch duty to take possession of and preserve the evidence, or its evidentiary equivalent, once they knew, or should have known of its materiality and prosecutorial importance.

IV

 Should sanctions be imposed for the failure of the police to exercise their duty to preserve the videotape?   The People contend that sanctions are inappropriate because the officers did not recommend or consent to the tape's destruction.   However, it is settled law that sanctions may be called for even where the loss of evidence was unintentional or inadvertent.4  (People v. Goss (1980) 109 Cal.App.3d 443, 455, 167 Cal.Rptr. 224;  People v. Chambers, supra, 108 Cal.App.3d 985, 989, 166 Cal.Rptr. 815;  People v. Swearingen (1978) 84 Cal.App.3d 570, 574–575, 148 Cal.Rptr. 755;  see also People v. Bailes (1982) 129 Cal.App.3d 265, 273–274, 180 Cal.Rptr. 792.)

 Hitch holds that sanctions for nondisclosure due to loss or destruction should not be imposed if the People 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 the [evidence]” (12 Cal.3d 641, 652–653, 117 Cal.Rptr. 9, 527 P.2d 361).   However, the People did not meet their burden here.   Nothing in the record even suggests that reliance on the Thomases to preserve the videotape was part of rigorous and systematic preservation procedures.  (Contrast People v. Brown, supra, 138 Cal.App.3d 832, 835, 188 Cal.Rptr. 324 [evidence showed reliance on a police policy of photographing and then returning stolen merchandise to store security people for safekeeping until a prosecution had been terminated].)

 Having concluded that the officers failed in their duty to seize and preserve the videotape evidence and that the unintentional loss of that evidence was not guarded against by good faith adherence to rigorous and systematic procedures, we are left to decide what sanctions are appropriate.  “[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.  ‘[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.’  [Citation.]”  (People v. Zamora (1980) 28 Cal.3d 88, 99, 167 Cal.Rptr. 573, 615 P.2d 1361.)   Factors which guide the exercise of that discretion include (1) the particular circumstances attending the loss or destruction, (2) the materiality of the evidence and (3) the impact of the sanctions on future cases and future police conduct.  (Id., at p. 100, 167 Cal.Rptr. 573, 615 P.2d 1361.)

 Consideration of those factors and the nature of the due process violation in this case convinces us that the appropriate sanction is exclusion of all evidence which might have been impeached by the erased videotape.   As was observed in Brown v. Municipal Court (1978) 86 Cal.App.3d 357, at page 363, 150 Cal.Rptr. 216, “[w]here potentially impeaching evidence on behalf of a defendant is suppressed [by virtue of its loss or destruction], due process does not require dismissal of the action, but only exclusion of the prosecution's evidence which might have been impeached by the evidence suppressed.”   Another fact weighing in favor of exclusion rather than dismissal is that destruction of the videotape was not due to intentional or bad faith actions of the officers.  (Hitch, supra, 12 Cal.3d 641, 653 & fn. 6, 117 Cal.Rptr. 9, 527 P.2d 361;  People v. Goss, supra, 109 Cal.App.3d 443, 456, 167 Cal.Rptr. 224.)   The People do not suggest that any lesser sanction than exclusion is appropriate.

Exclusion of evidence which might have been impeached by the videotape means that much of the testimony of Mr. and Mrs. Thomas, Sergeant Maddux and Eduardo Gonzalez should not have gone to the trier of fact.   Additionally, we believe that the warrant authorizing the search of appellant's home and the photographic lineup identification by Gonzalez were almost exclusively products of the videotape viewings and thus should also have been removed from the trier's consideration.   Without Mrs. Thomas' recognition of the suspect from the videotape and her having given the officer the suspect's name and address, Sergeant Maddux would have had only Gonzalez' general description of the suspect's clothing and approximate weight and height by which to assemble a photographic lineup.   Nothing in that description could have given Maddux reason to include appellant's photograph in the lineup.   Regardless of how quickly or surely Gonzalez may have selected appellant's photo and irrespective of whether Gonzalez' identification was based entirely on recollections of the robbery, the lineup itself would have been impossible to stage without the videotape-induced identification.   The reporter's transcript reveals that the warrant was obtained upon the strength of averments that the affiant had viewed the videotape and observed the suspect's clothing, that Mrs. Thomas had identified the suspect as appellant and that Gonzalez had positively identified appellant out of the photographic lineup discussed above.  (See ante, fn. 1.)   All of the above information came from the videotape viewings.   The only untainted evidence available to police at the time the warrant was obtained, according to the record before us, was the victim's initial, general description.   This general description, which provides no hint as to where to search, could not support probable cause.

In conclusion, we hold that the court below erroneously denied appellant's Hitch motion and that the sanction of exclusion should have been imposed.   In assessing prejudice caused by Hitch error, “the reviewing court need not reverse the conviction if the absence of the evidence (or ․ the presence of evidence which might have been impeached by the missing evidence) was ‘harmless beyond a reasonable doubt’ [citations].”  (People v. Goss, supra, 109 Cal.App.3d 443, 458, 167 Cal.Rptr. 224;  Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.)   Here, the evidence which should have been excluded constituted virtually the whole case against appellant.   Its admission was clearly prejudicial in the constitutional sense, requiring reversal.  (Cal. Const., art. VI, § 13.)

Our conclusion makes it unnecessary to reach appellant's contention that the photographic lineup was unduly suggestive.

V

 Finally, appellant claims sentencing error which could arise again should the case be retried.   He contends that use of a knife was an element (force or fear) of the robbery in this case and therefore could not also be used as the basis for enhancement under Penal Code section 12022, subdivision (b) (personal use of a deadly or dangerous weapon in the course of a felony).   However, Division Four of this court in In re Anthony H. (1980) 108 Cal.App.3d 494, 166 Cal.Rptr. 607, rejected the same contention raised here, reasoning, at page 499, 166 Cal.Rptr. 607:  “If appellant's interpretation of Penal Code section 12022 ․ were correct, ․ the statute would be self-defeating and meaningless, for it leaves room for no case in which enhancement can be had;  in every case where used, the weapon is an ‘element.’   The only way to give meaning to the language of section 12022, subdivision (b) ․ is to read it as requiring enhancement if a deadly weapon is used in the particular case, unless the kind of offense of which defendant was convicted cannot be committed without such use․  So interpreted, the exclusion is given rational meaning and is unavailable to appellant here, as use of a knife or other dangerous or deadly weapon is not an essential element of the offense of attempted robbery.  (See People v. Cortez (1980) 103 Cal.App.3d 491, 496, 163 Cal.Rptr. 1 ․:  ‘While robbery is the taking of property in the possession of another, from his person or immediate presence and against his will, accomplished by means of force or fear, the particular means of force or fear or the manner in which fear is imparted is not an element of robbery․’)”  (Emphasis in original.)

We adhere to the holding and rationale of In re Anthony H. and therefore conclude that the enhancement in this case was properly imposed.

DISPOSITION

For the foregoing reasons, the order appealed from is reversed.

FOOTNOTES

1.   Appellant sought to excise the following excerpts from the affidavit.“On February 16 your affiant and Sergeant W.J. Gillespie met with owner, LeRoy Thomas, of McGoo's Donuts and viewed the video tape of the incident.   In viewing the tape, it was noted that the suspect reported to be Michael [L.] was wearing a distinctive ski-type jacket which was a lighter color over a darker color and, that the jacket had a western yoke design.   The suspect was observed to draw the knife from the left pocket of his jacket.”  “On 17 February, 1982, at 0942 hours your affiant met with Eduardo Gonzalez, the reporting person in Exhibit A.   Your affiant presented a photographic lineup of six photographs which include a mug photograph of Michael [L.].  Eduardo Gonzalez quickly pointed to photograph no. 4 which is the photograph of Michael [L.] and stated, ‘That looks like the guy.’   Eduardo Gonzalez signed and dated the back of the photograph and submitted to a written statement regarding his identification.”   “Pursuant to review of Exhibit A your affiant noted that the owner of McGoo's Donuts, Susan Thomas, stated that she viewed [the] video tape of the incident and identified one of the responsible suspects as Michael [C.] who reportedly resides at 1050 83rd Avenue, Oakland.”Mrs. Thomas' identification of a Michael C. rather than Michael L. was due to a neighborhood boy being present during a viewing of the videotape and telling her that the suspect, whom she recognized and knew to be the brother of Victor C., was named Michael.   She mistakenly assumed that Michael shared his brother's last name.

2.   In Hogan, the defendant in a murder prosecution argued that the body of the victim should have been preserved until fingernail scrapings could be taken by the defense.   The Supreme Court found it unnecessary to reach the issue, however, finding it “highly implausible that the scrapings could have produced favorable evidence on the issue of guilt” (People v. Hogan, supra, 31 Cal.3d 815, 851, 183 Cal.Rptr. 817, 647 P.2d 93) and further noting that, in any event, prosecutorial agencies have no right to the custody of the remains of a deceased (id., at p. 851, fn. 18, 183 Cal.Rptr. 817, 647 P.2d 93).

3.   We do not suggest that nothing short of a duplicate copy would have sufficed for this equivalency requirement.   The crucial issue to which the evidence pertained was identification.   Unless the quality of the videotape was so poor that the use of the freeze-frame device rendered the subjects non-recognizable, clear photographs showing a sequence of still frames could certainly have proven to be of comparable evidentiary worth.

4.   The court in People v. Brown (1982) 138 Cal.App.3d 832, 188 Cal.Rptr. 324, in analyzing a situation in which bathrobes stolen from a department store were entrusted to the store for safekeeping pending prosecution and were for some reason sold by the store, accepted, “but arguendo only, [the defendant's] assertion that it was the prosecution (acting through the police officer) and not the department store, which rendered the stolen bathrobes unavailable.”  (P. 836, 188 Cal.Rptr. 324.)   Although the point is not raised in the instant case, it is important to note that our analysis also assumes that the officers were at fault for loss of the tape.   Otherwise, government agencies might be encouraged not to take possession of material defense evidence, thereby avoiding the risk of sanctions should the evidence be lost or destroyed.

SMITH, Associate Justice.

KLINE, P.J., and ROUSE, J., concur.