PEOPLE v. HEARN

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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. Gerald O'HEARN and Dennis D. Allbaugh, Defendants and Appellants.

Cr. 11431.

Decided: August 20, 1982

Kanter, Williams, Merin & Dickstein, Cathleen Williams, Sacramento, for defendant and appellant Gerald O'Hearn. Nicholas C. Holt, Fort Jones, for defendant and appellant Dennis D. Allbaugh. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Daniel J. Kremer, Asst. Attys. Gen., Eddie T. Keller, Nelson P. Kempsky, Harley D. Mayfield and Jay M. Bloom, Deputy Attys. Gen., for plaintiff and respondent.

These two appeals brought by codefendants Gerald O'Hearn and Dennis D. Allbaugh, consolidated upon this court's own motion, present identical issues of law and fact.

Defendants Gerald O'Hearn and Dennis Allbaugh appeal from the judgment of conviction of possession of marijuana for sale (Health & Safety Code, § 11359) after trial by court.   Defendants' sole contention is that since the sheriff intentionally destroyed 84 out of 85 marijuana plants seized, the trial court erred in allowing testimony concerning the destroyed plants.

FACTS

In the early evening of September 17, 1980, Undersheriff Jack Partlow was driving along a rural road in Siskiyou County when he observed a pick-up truck moving down a driveway towards the road.   As the sheriff watched, the truck stopped and backed up the driveway.

Sheriff Partlow walked up the driveway and observed that the bed of the pickup truck was filled with marijuana plants.   Shortly thereafter defendants Dennis Allbaugh and Gerald O'Hearn approached the truck.   Partlow identified himself.   Allbaugh claimed to be the owner of both the truck and part of its cargo, and O'Hearn claimed ownership of a part of the cargo.

In due course a large State Forest Service truck arrived.   State Forest personnel removed 84 of the 85 plants from Allbaugh's pickup truck and placed them in the state truck, which already contained a large number of other marijuana plants confiscated from 15 other locations nearby.   All the plants in the state truck were removed to a storage facility.   Partlow's partner, Deputy Gary Palmer, supervised this activity and counted the plants.   The plants ranged from four to ten feet in length, were generally bushy, and exhibited substantial resin and budding.   Officer Palmer estimated that the total weight of all the plants was 100 pounds.   Sheriff Partlow segregated one plant as a sample which, in a subsequent laboratory analysis, was identified as marijuana.

Pursuant to court order all of the plants from the state truck were destroyed.   Before destruction the weight of the plants was determined to be 2,970 pounds.   A photograph was taken depicting the plants in bulk.   One plant from each of the fifteen separate confiscations was retained, but this was done before all the plants were commingled.

DISCUSSION

We examine the facts in light of the applicable law.

“․ It is clear that the Constitution does not require the prosecution to make a complete and detailed accounting to the defendant of all police investigatory work on a case.  [Citation omitted.]  Yet it is well established that the suppression by the state of evidence favorable to an accused, after a request therefor, violates due process, irrespective of the good faith of the prosecution.  [Citation omitted.]  [The California Supreme Court] has recognized the prosecutor's duty to disclose such material evidence favorable to the accused even in the absence of a request from the defense.  [Citation omitted.]  In People v. Hitch (1974) 12 Cal.3d 641, 650, 117 Cal.Rptr. 9, 527 P.2d 361 [the court] held that the obligation to disclose the existence of material evidence places on the state a correlative duty to preserve such evidence even without a request therefor, and directed that in the future law enforcement agencies take reasonable measures to ensure its adequate preservation.”  [Fn. omitted.]  (People v. Nation (1980) 26 Cal.3d 169, 175, 161 Cal.Rptr. 299, 604 P.2d 1051.)

 In the instant case the trial court found the evidence destroyed was “highly relevant” to the charge and that the evidence was not destroyed in compliance with Health and Safety Code section 11479, but that the sheriffs acted in good faith in an attempt to comply with that section.   We do not quarrel with these findings as they are supported by the evidence.   We do not agree with the trial court's ruling that since the actual physical destruction occurred pursuant to a court order that good faith was conclusively established and no sanctions were required.

The California Supreme Court in People v. Hitch (1974) 12 Cal.3d 641 at pages 652–653, 117 Cal.Rptr. 9, 527 P.2d 361, ruled that sanctions are inappropriate when evidence is intentionally destroyed in good faith only where “the governmental agencies involved have established, enforced and attempted in good faith to adhere to rigorous and systematic procedures designed to preserve the [evidence.]”

The trial court properly found that the sheriff made a good faith attempt to comply with the provisions of Health and Safety Code section 11479 in the destruction of the 2,970 pounds of marijuana collected in the state truck from 16 different places, which included that of appellants'.   But by that time it was too late to comply with that section as to each grower.   The problem created in this case preceded the actual destruction of the plants.   The effective destruction occurred when the approximately 100 pounds of plants found in the pickup were commingled with the 2,870 pounds of other plants since they could no longer be identified, analyzed or used as evidence in any way to establish quantity and quality.   Quantity is, of course, a key question on the issue of possession for sale or for personal use.   This cannot be considered an attempt to adhere to “rigorous and systematic procedures to preserve the evidence” as required by Hitch and People v. Zamora (1980) 28 Cal.3d 88, 167 Cal.Rptr. 573, 615 P.2d 1361, nor compliance with Health and Safety Code section 11479.   Here, as in Zamora, it is clear that the procedure employed by the sheriff in commingling all the plants seized in the 16 areas resulted not in the preservation of evidence, but rather, in its destruction.

 The People first argue that the evidence destroyed was not material because it did not bear on an element of the crime.   Materiality is not limited to circumstances when the evidence relates directly to an element of the crime.   The evidence is material when there is a reasonable possibility that it would be favorable to the defendant on the issue of guilt or innocence.  (People v. Nation, supra, 26 Cal.3d at p. 176, 161 Cal.Rptr. 299, 604 P.2d 1051.)   The quantity and quality of the contraband seized is always relevant to the issue of whether the narcotics are held for sale or personal use.  (People v. Shipstead (1971) 19 Cal.App.3d 58, 77, 96 Cal.Rptr. 513.)

The defendants established through expert testimony that the potency of marijuana measured by its tetrahydrocannibal content varies significantly from plant to plant even among plants grown in the same place under similar growing conditions, and that the quantity of marijuana consumed varies greatly among users.   The People argue the testimony of the police officers concerning the number of plants, their size and apparent potency as evidenced by the presence of resin and budding established that the defendant possessed a sufficient quantity of high quality marijuana to allow the trier of fact to infer the marijuana was held for sale and not for personal use.   The People conclude that in light of this testimony even if the plants had been preserved it would not be reasonably possible that the defendant could have proven that they were not held for sale.

 It is clear, however, had the plants not been destroyed, the defendants may have been able to impeach the officer's testimony both as to quantity and quality of the marijuana.   Because this potentially impeaching evidence was destroyed, it is the testimony of the officers which must be suppressed.   (People v. Goss (1980) 109 Cal.App.3d 443, 456, 167 Cal.Rptr. 224.)

The People contend alternatively that the plants were properly destroyed pursuant to Health and Safety Code section 11479.1

The People argue that because the evidence seized was harvested plants the only prerequisite to their destruction is stated by the last sentence in subdivision (c) of the statute, i.e., that one representative sample be retained.   We disagree with the People's construction of the statute.

The statute permits the destruction of that amount of a controlled substance in excess of ten pounds only if the requirements of subdivision (a) through (d) are met.   Although the last sentence in subdivision (c) apparently reduces the number of representative samples that need be retained from five to one when the controlled substance consists of growing or harvested plants, it does not eliminate the remaining requirements of the statute.

 At the time the plants were, in effect, destroyed by commingling them with those in the state truck, the statute was violated in the following particulars:  (1) ten pounds of the suspected controlled substance was not retained;  (2) no photographs were taken which reasonably depicted the total amount of the plants and (3) the chief of the law enforcement agency did not determine it was not reasonably possible to remove and store the plants.   We conclude that the People may not justify the destruction of evidence herein at issue by reliance upon Health and Safety Code section 11479 in the absence of strict compliance therewith.  (People v. Zamora (1980) 28 Cal.3d 88, 98, 167 Cal.Rptr. 573, 615 P.2d 1361.)

 Finally, the People argue that if this court finds noncompliance with section 11479, any relief should be granted prospectively only.   The People, citing People v. Hitch, supra, 12 Cal.3d 641 at page 654, 117 Cal.Rptr. 9, 527 P.2d 361, contend that a finding of noncompliance with the statute on the facts described herein amounts to the enunciation of a new rule of law.   We disagree.   The People do not contend that Health & Safety Code section 11479 was not effective at the time the evidence was destroyed.   There is no evidence that law enforcement agencies in good faith routinely commingle and then destroy material physical evidence seized from a number of defendants in ostensible compliance with Health and Safety Code section 11479.   Hitch is distinguishable in that the practice proscribed therein, destruction of breathalyzer ampules, was conceded to be a standard and uniform procedure throughout the state.

The judgments are reversed.

I perceive the majority opinion as adhering to the rule enunciated in People v. Hitch (1974) 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361, that intentional suppression of material evidence favorable to a defendant who has requested it constitutes a violation of due process, irrespective of good or bad faith on the part of the prosecution, without considering the import of Health and Safety Code section 11479.1

The legal principles enunciated in Hitch, supra, and in People v. Zamora (1980) 28 Cal.3d 88, 167 Cal.Rptr. 573, 615 P.2d 1361, are not disputed;  however, the present circumstances are factually inapposite to the doctrines established by those cases as a consequence of the 1979 amendments to section 11479.

I perceive a fundamental flaw in the predicate for the majority opinion in the statement, “The effective destruction occurred when the approximately 100 pounds of plants found in the pickup were commingled with the 2,870 pounds of other plants since they could no longer be identified, analyzed or used as evidence in any way to establish quantity and quality.   Quantity is, of course, a key question on the issue of possession for sale or for personal use.   This cannot be considered an attempt to adhere to ‘rigorous and systematic procedures to preserve the evidence’ as required by Hitch and People v. Zamora (1980) 28 Cal.3d 88 [167 Cal.Rptr. 573, 615 P.2d 1361].”  Without specification of reason, the opinion ignores the authorization in section 11479 for the destruction of all but one harvested plant.

As I perceive the statute, that which was expressly authorized by the Legislature was done in this instance.  Section 11479 as amended in 1979 provides in pertinent part, “Notwithstanding the provisions of sections 11474 and 11474.5, at any time after seizure by a law enforcement agency of the suspected controlled substance, that amount in excess of 10 pounds of gross weight may be destroyed without a court order by the chief of the law enforcement agency or a designated subordinate.   Destruction shall not take place pursuant to this section until all of the following requirements are satisfied:

“(a) At least five random and representative samples have been taken, for evidentiary purposes, from the total amount of suspected controlled substances to be destroyed.

“(b) Photographs have been taken which reasonably demonstrate the total amount of the suspected controlled substance sample and to be destroyed.

“(c) The gross weight of the suspected controlled substance has been determined, either by actually weighing the suspected controlled substance or by estimating such weight after dimensional measurement of the total suspected controlled substance.   When the suspected controlled substance consists of growing or harvested plants, only a representative sample need ․ be retained for evidentiary purposes.

“(d) The chief of the law enforcement agency has determined that it is not reasonably possible to preserve the suspected controlled substance in place, or to remove the suspected controlled substance to another location․” (Emphasis added.)

Subdivision (c) specifically authorizes the retention of but one representative plant “for evidentiary purposes ” when the controlled substance consists of growing or harvested plants, as it did in this instance.

This contrasts, and needs no reconciliation, with the provisions of subdivision (a) which requires in all other instances that five random and representative samples be kept “for evidentiary purposes.”   The two subdivisions are readily harmonized and do not conflict.

The harvested marijuana in this instance was garnered from 15 separate locations.   One representative plant from each location was segregated and separately maintained.   The weight of the plants harvested at each site, including the defendants', was estimated.   The plants in Allbaugh's pickup were estimated to weigh approximately 100 pounds.  (§ 11479, subd. (c).)  Photographs of all of the confiscated harvested plants were taken (§ 11479, subd. (b)) as well as of each representative plant (§ 11479, subd. (d)), and the chief of the law enforcement agency determined it was not reasonable to preserve the marijuana and ordered its destruction.   However, as an ultimate safeguard prior to its destruction, he not only made the determination required by section 11479, subdivision (d), but secured a court order for the destruction of the controlled substance as well.   The total of the controlled substance (harvested plants), exclusive of one representative plant from each location (§ 11479, subd. (c)), was then destroyed.

The People not only substantially complied with the provisions of section 11479, but did so literally.

If the majority perceive the provisions of subdivision (a) and subdivision (c) of section 11479 as conflicting, thus comprising an ambiguity to be construed in defendants' favor, I again disagree.   There is no ambiguity.

The express terms of subdivision (a) and subdivision (c) make them mutually exclusive.   The Legislature made it plain that in the instance of growing or harvested plants (marijuana), the law enforcement agencies need not separate and preserve for evidentiary purposes five random and representative samples as required in cases involving other types of controlled substances.   Rather, the Legislature authorized the retention of but one representative plant for evidentiary purposes with the total seized contraband depicted by photographs and estimated by weight.   The statement in the majority opinion, “[h]ad the plants not been destroyed, the defendants may have been able to impeach the officer's testimony both as to quantity and quality of the marijuana.   Because this potentially impeaching evidence was destroyed, it is the testimony of the officers which must be suppressed.  (People v. Goss (1980) 109 Cal.App.3d 443, 456 [167 Cal.Rptr. 224].)” is but a truism.   The quoted statement ignores the express provisions of section 11479 authorizing the destruction of all but one representative plant of the seized contraband.   The defendants, because section 11479 was applied and followed by the law enforcement agency, have available only one harvested plant with which to attempt to impeach the officer's testimony as to quantity and quality;  they also have available the officer's estimate of weight and the photographs which may be used in any attempt to impeach the officer's testimony.

That quoted statement from the majority opinion is a polemic;  it attempts to avoid the absolute right of the People to destroy all but one of the harvested plants when accomplished pursuant to the prescribed safeguards;  the opinion further proceeds on the general principles of Hitch pronounced five years prior to the adoption of the 1979 amendments to section 11479 which authorize the destruction of seized controlled substances.   In this instance the People adhered to the requirements established for the destruction of the confiscated growing plants.

I would affirm the judgments.

FOOTNOTES

FOOTNOTE.  

1.   Health and Safety Code section 11479 states:“Notwithstanding the provisions of Sections 11474 and 11474.5, at any time after seizure by a law enforcement agency of a suspected controlled substance, that amount in excess of 10 pounds in gross weight may be destroyed without a court order by the chief of the law enforcement agency or a designated subordinate.   Destruction shall not take place pursuant to this section until all of the following requirements are satisfied:  [¶] (a) At least five random and representative samples have been taken, for evidentiary purposes, from the total amount of suspected controlled substances to be destroyed.  [¶] (b) Photographs have been taken which reasonably demonstrate the total amount of the suspected controlled substance sampled and to be destroyed.  [¶] (c) The gross weight of the suspected controlled substance has been determined, either by actually weighing the suspected controlled substance or by estimating such weight after dimensional measurement of the total suspected controlled substance.   When the suspected controlled substance consists of growing or harvested plants, only a representative sample need ․ be retained for evidentiary purposes.  [¶] (d) The chief of the law enforcement agency has determined that it is not reasonably possible to preserve the suspected controlled substance in place, or to remove the suspected controlled substance to another location.   In making this determination, the difficulty of transporting and storing the suspected controlled substance to another site and the storage facilities may be taken into consideration.  [¶] Subsequent to any destruction of a suspected controlled substance pursuant to this section, an affidavit shall be filed within 30 days in the court which has jurisdiction over any pending criminal proceedings pertaining to that suspected controlled substance, reciting the information required by subdivisions (a), (b), (c), and (d) together with information establishing the location of the suspected controlled substance, and specifying the date and time of the destruction.   In the event that there are no criminal proceedings pending which pertain to that suspected controlled substance, the affidavit may be filed in any court within the county which would have jurisdiction over a person against whom such criminal charges might be filed.”

1.   All further code references will be to the Health and Safety Code.

ABBE, Associate Justice.* FN* Assigned by the Chief Justice.

CARR, J., concurs.

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