PEOPLE v. ZAMORA (1979)

In the case at bench, we are presented with several issues pertaining to the propriety of assessing sanctions against the prosecution under circumstances wherein a defendant charged with crimes arising from an altercation with law enforcement officers has been denied discovery of citizen complaints against those officers by virtue of the previous destruction of the complaint files.

STATEMENT OF THE CASE

Following a municipal court jury trial, defendant Joseph Anthony Zamora was convicted of one count of battery against Los Angeles Police Officer Norman Nelson (Pen.Code, s 242) and one count of resisting Officer Nelson in the discharge of his duties (Pen.Code, s 148). Defendant was subsequently granted probation, one of the conditions of which being that he spend time in county jail. This appeal by defendant followed.¹

Because of the nature of the issues to be considered, we need not give a detailed account of the evidence presented at trial. Basically, the prosecution's case disclosed that on the night of May 22, 1976, several officers of the Los Angeles Police Department responded to a call that defendant and his father, Raymond, were involved in an argument. After Officer Nelson had entered the Zamora residence ahead of his fellow officers, defendant reportedly said to him, “I'll kick your ass,” and then lunged at Nelson and grabbed his arm. A brief scuffle involving defendant, Nelson, and another responding officer then ensued before defendant was finally placed in handcuffs. Raymond Zamora and defendant's brother, Pedro, were also arrested that same night.²

According to defendant and several friends and relatives of defendant who witnessed the incident and testified on his behalf, the first officer to enter the Zamora home was not Nelson, but another officer involved in the incident, L. Soeletz. The tenor of the defense evidence was that Officer Soeletz attacked defendant without provocation and without any resistance being offered on defendant's part.

Prior to trial, defendant's attorney made an informal request of the city attorney's office, which was then prosecuting the case,³ for discovery of the personnel files of the police officers involved in the incident in question. The city attorney's office responded by letter that it was willing to produce the records of any citizen complaints charging racial prejudice or use of excessive force which had been filed against Officers Nelson, Soeletz, Schroyer, and Skiles; the letter indicated that the city attorney would not produce the records of complaints filed against two other officers, Molinar and Yant, since those officers did not appear to have been directly involved in the incident resulting in defendant's arrest. The letter from the city attorney's office further indicated that the records which were produced would include the names and addresses of the complainants.

The information which was ultimately provided to defendant, however, fell short of what had been promised. In particular, while defendant was supplied with the names and addresses of all complainants and witnesses who had participated in complaint proceedings against Officer Nelson and was informed that no complaints had been filed against Officer Skiles, he was given only the names, but not the addresses or phone numbers, of those who had filed complaints against Officers Soeletz and Schroyer. Defendant's attorney was told that “(n)o further information” was available with respect to the latter two officers.

In the meantime, defendant's case had been consolidated with that pending against his father, Raymond, who had already made a formal discovery motion requesting the same information concerning the arresting officers that had been sought in defendant's informal request and who had obtained the same disappointing results. During a pretrial hearing before Judge Michael Sauer on the prosecution's failure to comply with Raymond's discovery motion, which proceedings defendant was apparently permitted to join in, it was revealed for the first time that the complaint files pertaining to Officers Soeletz and Schroyer could not be produced because they had been destroyed. According to the testimony given at the hearing by Sergeant Royal Stark of the Los Angeles Police Department, all records of unsustained complaints⁴ dating from 1949 to 1974 had been destroyed on May 5 and May 7 of 1976 (about two weeks prior to the incident at the Zamora home) with the concurrence of the Los Angeles City Council.⁵ Sergeant Stark admitted that the usefulness of the complaint files to criminal defendants had been discussed with a representative of the city attorney's office prior to the destruction. At the conclusion of the hearing, Judge Sauer ruled that the prosecution would not be subjected to any sanctions since it appeared that the destruction of the complaint files, occurring as it did prior to the offenses in question and with the approval of the city council, “was not a deliberate suppression of evidence that might be available to the defense . . . .”

Following defendant's conviction, Judge Mary Waters, the trial judge, entertained a motion by defendant to reopen the discovery proceedings. Defendant's motion was supported by declarations⁶ and exhibits indicating that although the police department had destroyed complaint files which were less than two years old, the city council resolution approving the destruction had actually only authorized the destruction of complaint records which were not newer than five years old. Judge Waters, after stating that she had reviewed the transcript of the proceedings before Judge Sauer, denied defendant's motion, explaining that she could not find the destruction of the complaint files to have been “deliberate or malicious or willful.”

DISCUSSION

The principal question before us is whether sanctions should have been imposed in the instant case because of the destruction of the complaint files, and if so, whether the appropriate sanction should have been, as defendant and amici curiae on his behalf urge, dismissal of the charges. Before proceeding to a discussion of this question, however, we will address ourselves to several contentions made by the People or amici curiae on behalf of the People.

The People first contend that defendant is precluded from challenging the prosecution's compliance with his informal discovery request since that request was overbroad and did not show a plausible justification for the production of the complaint records. The People, however, did not question the sufficiency of defendant's discovery request in the court below or demand that a formal motion be made, but instead expressly agreed to provide the names and addresses of the pertinent complainants. Since defendant was thus led to believe that his discovery request would be complied with without a further showing on his part, it would be manifestly unfair at this late stage to give consideration to the People's criticisms of that request. (Cf. Kelvin L. v. Superior Court, supra, 62 Cal.App.3d 823, 827, 133 Cal.Rptr. 325; see People v. McManis (1972) 26 Cal.App.3d 608, 617-618, 102 Cal.Rptr. 889, regarding compliance with informal discovery requests.)

Further, since the prosecution's agreement to comply with defendant's discovery request included an express promise to supply the addresses of the citizen complainants, the People will likewise not be heard to argue now that the production of some of the complainants' names alone was sufficient for compliance or that the missing addresses would, in all probability, have been useless to the defense because of their ages. We note only that even if a substantial number of the complainants were no longer living at the addresses stated in the destroyed files, the addresses, if available, could no doubt have provided leads to the complainants' current whereabouts.

Urging that the only reasonable justification for permitting defendant access to the complaint records was to enable him to show, under Evidence Code section 1103, subdivision (a),⁷ that the arresting officers had a proclivity for excessive violence, the People and amici next contend that defendant could not have suffered any prejudice from the destruction of the complaint files since he did not claim self-defense, but instead maintained that he had remained passive throughout the incident in question. Evidence Code section 1103, however, is not, by its language, restricted in its application to situations wherein a self-defense theory is relied upon. (See Law Revision Com. Comment to Evid.Code, s 1102.) Certainly, evidence presented through the testimony of citizen complainants that the arresting officers in the present case had used excessive force (or, for that matter, exhibited racial prejudice (see Hinojosa v. Superior Court (1976) 55 Cal.App.3d 692, 696, 127 Cal.Rptr. 664)) on previous occasions could have been supportive of defendant's claim that the officers alone had behaved violently during the confrontation. Moreover, virtually the identical contention that is made here was rejected in Kelvin L. v. Superior Court, supra, 62 Cal.App.3d 823, 133 Cal.Rptr. 325, wherein the court noted: “Petitioner is not obliged to elect between available defenses for the purpose of presenting a discovery motion. Requiring him to do so would run into an immediate conflict with the Fifth Amendment.” (Id., at p. 829, 133 Cal.Rptr. at p. 329; see Pitchess v. Superior Court (1974) 11 Cal.3d 531, 536, 113 Cal.Rptr. 897, 522 P.2d 305.)

It is also to be noted that records relating to complaints filed against law enforcement officers for alleged racial prejudice or use of excessive force are not relevant merely to prove a character trait of the named victim under Evidence Code section 1103, but may also be used to impeach the testimony of even non-victim officers who witnessed the incident (Cadena v. Superior Court (1978) 79 Cal.App.3d 212, 221-222, 146 Cal.Rptr. 390; see Pitchess v. Superior Court, supra, 11 Cal.3d 531, 537, 113 Cal.Rptr. 897, 522 P.2d 305) or, in certain cases, to refresh other witnesses' memories (Pitchess v. Superior Court, supra ).

As a related contention to that just discussed, the People and amici further assert that defendant could not have been prejudiced by the destruction of the complaint files since the records pertinent to the named victim, Officer Nelson, were not among those destroyed and consequently were made available to the defense. It is argued that evidence concerning complaints against other officers would have been inadmissible at trial since Evidence Code section 1103 (fn. 7, Ante ) permits character evidence only with respect to “the victim of the crime . . . .” But even assuming that evidence of prior misconduct on the part of the other officers would have been ruled inadmissible at trial for this reason, it is well established that “discovery is not limited to admissible evidence, but encompasses information which may lead to relevant evidence.” (Kelvin L. v. Superior Court, supra, 62 Cal.App.3d 823, 828, 133 Cal.Rptr. 325, 329; see also Cadena v. Superior Court, supra, 79 Cal.App.3d 212, 221, 146 Cal.Rptr. 390.) It has thus been held that a defendant charged with attacking a police officer is entitled to discover not only complaints filed against the named victim, but also any complaints filed against other officers who acted in concert with the victim since access to these latter complaints may be of assistance in the preparation of a defense. (Cadena v. Superior Court, supra, at p. 220, 146 Cal.Rptr. 390; Dell M. v. Superior Court (1977) 70 Cal.App.3d 782, 787, 144 Cal.Rptr. 418.) The application of this rule would appear to be of especial significance here given that one of the major areas of dispute at trial was the identity of the victim-officer. Furthermore, as noted above, the potential usefulness of the now destroyed complaint files to the defense was not limited to the establishment of character traits under Evidence Code section 1103; had they been available, the files may very well have had substantial impeachment value. (Cadena v. Superior Court, supra, 79 Cal.App.3d at pp. 221-222, 146 Cal.Rptr. 390.)

Returning now to the question of whether sanctions should have been imposed in the case at bench, we begin by noting that it is a settled rule that “the intentional suppression of material evidence favorable to a defendant who has requested it constitutes a violation of due process, irrespective of the good or bad faith of the prosecution.” (People v. Hitch (1974) 12 Cal.3d 641, 645, 117 Cal.Rptr. 9, 12, 527 P.2d 361, 364; see Giglio v. United States (1972) 405 U.S. 150, 153-154, 92 S.Ct. 763, 31 L.Ed.2d 104.)

In determining that no violation of due process occurred here such as would merit the imposition of sanctions, both trial court judges who ruled on the instant discovery issue appear to have been greatly influenced by the fact that the destruction of the complaint files was carried out with the approval of the city council. Such approval was required under the provisions of Government Code section 34090, which reads as follows:

“Unless otherwise provided by law, with the approval of the legislative body by resolution and the written consent of the city attorney the head of a city department may destroy any city record, document, instrument, book or paper, under his charge, without making a copy thereof, after the same is no longer required.

“This section does not authorize the destruction of:

“. . . ect

“(d) Records less than two years old. . . .” 8

A recent case from the Third District Court of Appeal, City of Sacramento v. Municipal Court (Pope ) (1978) 83 Cal.App.3d 795, 148 Cal.Rptr. 114 (hereinafter cited as Pope ), suggests that no sanctions should be imposed against the prosecution for the destruction of citizen complaint files pertinent to the preparation of a criminal defendant's defense if it is shown that the destruction took place prior to the occurrence of the crime in question and in accordance with the dictates of Government Code section 34090. In that case, the defendant, Pope, was charged in the municipal court with resisting two Sacramento police officers in the performance of their duties on January 21, 1977. Upon seeking discovery of citizen complaints lodged against the two officers, Pope was informed that on August 13, 1976, the Sacramento Chief of Police had ordered the destruction of virtually all internal investigation files concerning investigations completed over two years before. It was not disputed that the police chief had acted pursuant to the authority granted in Government Code section 34090 as supplemented by a Sacramento City Council resolution. In response to a motion by Pope, the municipal court issued a subpoena and a subpoena duces tecum to the chief ordering him to testify and to produce documents relating to the police department's policy regarding disclosure or destruction of information pertaining to peace officers. The chief thereupon obtained a writ from the superior court prohibiting the municipal court from enforcing its subpoenas and Pope appealed. (Pope, at pp. 797-798, 148 Cal.Rptr. 114.)

In upholding the issuance of the writ, the Court of Appeal rejected Pope's contention that the case before it was controlled by both Pitchess v. Superior Court, supra, 11 Cal.3d 531, 113 Cal.Rptr. 897, 522 P.2d 305, wherein the right of criminal defendants to discover citizen complaints against police officers when pertinent to the preparation of a defense was recognized by our Supreme Court, and People v. Hitch, supra, 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361, in which the Supreme Court discussed the obligation of the prosecution to preserve evidence favorable to the accused. As noted by the appellate court: “In neither Hitch nor Pitchess is it held or suggested that records pertaining to citizens' complaints may not be destroyed after a reasonable period of time. Furthermore, neither case holds nor suggests that a law enforcement agency has a duty to retain and preserve records permanently that may possibly benefit prospective defendants in future cases. (P ) . . . (The chief of police) had no reason to know or to believe any of the records he destroyed pursuant to statutory authorization would later become of any use to Pope.” (Pope, 83 Cal.App.3d at p. 799, 148 Cal.Rptr. at pp. 115-116.)

The court went on to also reject Pope's contention that he should have been permitted to show that the police chief and other city officials purposely engineered the passage of the resolution allowing the record destruction in order to frustrate the clear mandate of Pitchess. The court appeared to reason that the willfulness or maliciousness with which the destruction was accomplished would only have been a relevant area of inquiry if it had first been demonstrated that an obligation to preserve the complaint records existed. (Pope, 83 Cal.App.3d at pp. 799-800, 148 Cal.Rptr. 114.)

The situation in the case at bench is distinguishable from that contemplated in Pope. In that case it was conceded that the police had strictly complied with Government Code section 34090 by carrying out the destruction of the complaint files in accordance with the terms of a resolution passed by the local legislative body. Here, in contrast, it would appear that the authority granted by the city council's resolution, which provided only for the destruction of documents not less than five years old, was greatly exceeded.

The People and the People's amici point out that up until January 1, 1976, Government Code section 34090, subdivision (d) restricted the destruction of public documents to those not less than five years old, and submit that it was only through inadvertence that the resolution passed by the city council reflected this former provision rather than the current version of the subdivision, which permits the destruction of public documents which are not less than two years old. But whether or not an oversight was involved, it cannot be presumed that the city council would have adopted the resolution in question had the provision therein restricting the destruction to records not less than five years old been replaced by one permitting destruction of records not less than two years old.⁹ Furthermore, the destruction which took place here was not even done in accordance with the present language of Government Code section 34090, subdivision (d) since complaint files less than two years old were apparently included among those obliterated. It has been recently observed in an opinion by the Attorney General that “if destruction is desired (under Government Code section 34090), it may only be done in the manner provided for by the statute. The mode prescribed is the measure of the power.” (57 Ops.Cal.Atty.Gen. 307, 310 (1974).)

From the above, it is clear that the destruction which occurred here cannot be justified on the ground that prior approval of the city council was obtained in compliance with Government Code section 34090, as was the case in Pope. The People argue, however, that even if the requirements of section 34090 were not technically met, no sanctions should have been applied here since the record and the rulings in the trial court support the conclusion that a good faith effort at compliance with the statute was attempted. Without acknowledging that the case is applicable to our situation, the People support their argument by referring to language from People v. Hitch, supra, 12 Cal.3d 641, at pages 652-653, 117 Cal.Rptr. 9, at page 17, 527 P.2d 361, at page 369; wherein the court indicated that sanctions should not be imposed for the “intentional but nonmalicious destruction” of evidence if 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” the evidence. (Italics added.)

The People's argument fails on two accounts. First, the “rigorous and systematic procedures” referred to in Hitch would appear to be those specifically directed at insuring that favorable evidence will be available to a defendant when needed. Despite the People's contentions to the contrary, it cannot be said that the provisions of Government Code section 34090 are directed toward that end. Second, even if section 34090 could be viewed as embodying the kind of systematic preservation procedure mentioned in Hitch, it would be difficult to accept that the “oversights” which occurred here in the implementation of that procedure were of the type which could find countenance under Hitch's “good faith” adherence standard. In United States v. Bryant (1971) 142 U.S.App.D.C. 132, 439 F.2d 642, the source from which Hitch's “good faith” test was taken, the court observed that “(n)egligent failure to comply with the required procedures will provide no excuse.” (Id., at p. 652; see People v. Hitch, supra, 12 Cal.3d 641, 652 & 653, fn. 6, 117 Cal.Rptr. 9, 527 P.2d 361.) It cannot be seriously disputed that the “oversights” which took place here were, at the very least, negligently caused.

Furthermore, we cannot accept the suggestion by one of People's amici that this case is similar to the situation contemplated in Robinson v. Superior Court (1978) 76 Cal.App.3d 968, 143 Cal.Rptr. 328, wherein the appellate court held that the destruction of certain jailhouse visitor passes did not violate the preservation rule set forth in Hitch even though the passes might have provided the defendant access to eyewitnesses to the incident which gave rise to the charges against him. In so holding, the court noted that at the time of the destruction it could not have been known that the passes, which were not intended to be used as records, might be of some use to a criminal defendant. (Id., at pp. 974-976, 143 Cal.Rptr. 328.)

Here, in contrast, there is no doubt but that the destroyed complaint files were intended to be records of some sort. Moreover, the prosecution and the police were aware, since at least the time of our Supreme Court's 1974 decision in Pitchess v. Superior Court, supra, 11 Cal.3d 531, 537-538, 113 Cal.Rptr. 897, 522 P.2d 305, that the complaint files had potential value to defendants charged with attacks against police officers. Indeed, Sergeant Stark admitted at the hearing before Judge Sauer that the usefulness of the complaint records to criminal defendants had been a subject of discussion between the police department and the city attorney's office prior to their destruction.

We are reminded by the People and the People's amici that despite this admission from Sergeant Stark, neither of the two municipal court judges who heard this matter were able to find that the destruction of the files in question had been intentional or deliberate. The basis of these rulings appears to have been an assumption on the two judges' parts that deliberateness could not be established unless it could be shown that the destruction was accomplished for the express purpose of depriving the particular defendant in this case of useful evidence as opposed to some unascertained group of future defendants. Of course, since the destruction in issue took place before the occurrence of the incident which led to defendant's arrest, no such showing was possible in the present case.

Yet, it would be difficult to view our Supreme Court's decision in Pitchess regarding the right of defendants to discover prior citizen complaint records in cases such as this as not also carrying within it some implication of a duty on the part of law enforcement officials to preserve such records so that they will be available when needed. Indeed, even the court in Pope appeared to feel that local authorities have an obligation to retain complaint records for “a reasonable period of time.” (Pope, 83 Cal.App.3d at p. 799, 148 Cal.Rptr. 114.) Of course, this does not mean that the records must be preserved indefinitely. The principal thrust of Pope is that when complaint records have been destroyed pursuant to statutory authority and with the concurrence of the local legislative body, it can be presumed that any implied duty of preservation has been properly discharged.¹⁰ But when, as here, the destruction has not been accomplished in strict accordance with the requirements of the statutory authority, no such presumption can be said to arise. In circumstances such as these, then, it would be proper to find that the destruction was intentional even though, at the time it took place, only future defendants were affected. Anything to the contrary in Pope we must respectfully disagree with.

In view of the foregoing, we conclude that a violation of due process did occur here because of the destruction of the complaint files. We further conclude that the trial court's failure to impose appropriate sanctions to remedy this due process violation cannot be termed harmless error,¹¹ as is contended by the People. The evidence presented at trial was closely balanced, as is reflected in the fact that defendant's two codefendants both escaped conviction (see fn. 2, Ante ). Indeed, the trial was essentially reduced to a credibility contest in which the testimony of the arresting officers was to be weighed against that of defendant and his witnesses. Since all of the witnesses who testified on defendant's behalf were either friends or relatives, it can be presumed that the jury discounted their testimony because of apparent bias. Access to the now destroyed complaint files may very well have enabled defendant to call favorable witnesses who did not have such an obvious interest in the outcome of the trial. That defendant was deprived of a fair trial by virtue of the absence of appropriate sanctions is accordingly manifest.

It is thus clear that defendant's conviction must be reversed.¹² What remains to be decided is the nature of the sanction or sanctions to be imposed upon remand.

Defendant and his amici contend that any sanction short of dismissal would be inadequate here. In assessing this contention, we begin by noting that dismissal is not always called for following the suppression of evidence. As was stated recently in Brown v. Municipal Court (1978) 86 Cal.App.3d 357, 363, 150 Cal.Rptr. 216, 220: “(N)ot every suppression of evidence requires dismissal of charges. (Citation.) The remedies to be applied need be only those required to assure the defendant a fair trial. (Citation.)” (See also Dell M. v. Superior Court, supra, 70 Cal.App.3d 782, 788, 144 Cal.Rptr. 418.)

Reference is made by one of defendant's amici to the suggestion offered by our Supreme Court in Hitch that dismissal may be the appropriate sanction when it is shown that there has been a bad faith or malicious destruction of evidence. (People v. Hitch, supra, 12 Cal.3d 641, 653, fn. 7, 117 Cal.Rptr. 9, 527 P.2d 361.) It is argued that dismissal of the charges in the case at bench would be consonant with this suggestion since the maliciousness with which the complaint files in question were destroyed has either already been shown or could be shown upon remand.¹³ The suggestion from Hitch referred to, however, was based upon an assumption that it could be inferred from the bad faith or malicious destruction of certain types of evidence that the material destroyed was capable of conclusively establishing the accused's innocence. (Ibid.) It is obvious that such an assumption has no place here since the destroyed complaint files, while possibly of great value to the defense, were nevertheless at most only sources of indirect evidence on the issue of defendant's guilt or innocence. We therefore do not deem the “maliciousness” with which the destruction occurred here to be of any great consequence to the determination of an appropriate sanction.

It is further urged on defendant's behalf that this case should be viewed as being similar to those in which criminal charges have been dropped because the prosecution has either refused to reveal the identity of a material witness or has in some way caused the witness to be rendered unavailable to the defense. (See, e. g., People v. Mejia (1976) 57 Cal.App.3d 574, 129 Cal.Rptr. 192.) The inapplicability of the line of cases cited to the situation before us is apparent, however, when it is recognized that the label “material witness” has generally only been conferred in criminal proceedings upon those who either participated in the charged offense or were eyewitnesses thereto. (id., at p. 580, 129 cal.rptr. 192.) any witnesses who might have been obtained in the present case through the now destroyed complaint files could in no manner be termed “material” in this sense of the term.

Granted, when the undisclosed or unavailable witness has been an informer the courts have ordered dismissals even though the informer was not a participant in or an eyewitness to the underlying crime. (See Price v. Superior Court (1970) 1 Cal.3d 836, 843, 83 Cal.Rptr. 369, 463 P.2d 721.) Informants, however, who occupy a unique place in law enforcement investigations, can often be expected to provide valuable information directly related to the circumstances surrounding a charged offense without having been percipient witnesses thereto. The same cannot be said of the type of witnesses who can be located through an inspection of citizen complaint files. We therefore deem the dismissal rule pertaining to the nondisclosure of informants to be Sui generis.

It is also asserted that the case at bench is comparable to those in which the court has ordered the prosecution to turn over citizen complaint files in its possession following an unsuccessful claim of privilege under Evidence Code section 1040,¹⁴ and then has granted a dismissal in response to the prosecution's refusal to comply with the court's disclosure order. (See, e. g., Dell M. v. Superior Court, supra, 70 Cal.App.3d 782, 786, 144 Cal.Rptr. 418.) The cases referred to, however, are unlike the present case for a very basic reason. In the unsustained privilege cases, the prosecution is capable of complying with the court's discovery order, but for some reason has voluntarily chosen to withhold disclosure at the risk of incurring a dismissal. Dismissal is an appropriate sanction under such circumstances since the prosecution is deliberately disobeying a court order. Here, however, the prosecution is decidedly incapable of complying with defendant's discovery request since the material sought is no longer in existence. The threat of dismissal under circumstances such as those presented in the case at bench would thus not serve the same function of inducing obeyance of a court order as it does in the unsustained privilege cases.

Rather, the instant case appears to be more comparable to those in which a defendant has been denied access to complaint records because the prosecution has been successful in asserting a privilege. The established sanction in such cases is to require an adverse finding to be made against the prosecution in accordance with the dictates of Evidence Code section 1042, subdivision (a).¹⁵ (See Saulter v. Municipal Court, supra, 75 Cal.App.3d 231, 241, 142 Cal.Rptr. 266; Kelvin L. v. Superior Court, supra, 62 Cal.App.3d 823, 830-831, 133 Cal.Rptr. 325.) For example, in a case wherein a privilege has been asserted and sustained as to complaint records pertaining to three separate incidents, the appropriate remedy would be for the court to make a finding that the officers involved in the incidents had used excessive or unnecessary force against citizens on three prior occasions. (Kelvin L. v. Superior Court, supra, at p. 831, 133 Cal.Rptr. 325.)

We conclude that the sanction of an adverse finding is properly adaptable to the situation before us. Thus, upon remand the jury should be instructed that Officers Soeletz and Schroyer used excessive or unnecessary force against citizens¹⁶ on whatever number of occasions is equal to the number of incidents for which complaint files were improperly destroyed.¹⁷ Such instruction should also indicate to the jurors the two possible purposes for which the adverse finding against the officers might be considered: First, to the extent that the officers could be viewed as having been direct participants in the scuffle which led to defendant's arrest, the adverse finding would have relevance to the jurors' determination of whether the officers had a character trait for excessive or unwarranted violence. (See Kelvin L. v. Superior Court, supra, 62 Cal.App.3d 823, 828, 831, 133 Cal.Rptr. 325.) Second, even if the officers were merely percipient witnesses to the incident in question, i. e., not directly involved therein, the adverse finding would nevertheless be of significance to the jurors in assessing whether the officers may have been biased in reporting their observations in view of their own prior history of altercations with citizens under circumstances similar to those present in the case at bench. (Cf. Cadena v. Superior Court, supra, 79 Cal.App.3d 212, 221-222, 146 Cal.Rptr. 390.

We recognize that the giving of an adverse finding instruction does not provide defendant with the living, breathing witnesses he might have been able to obtain from an inspection of the now missing complaint files. On the other hand, an adverse finding instruction actually favors defendant in at least three respects: First, it gives him the benefit of an assumption that the destroyed complaint files would have led to favorable evidence; second, it deprives the prosecution of the ability to refute any evidence which might have been offered to prove use of excessive force on prior occasions had the complaint files not been destroyed; and third, it prohibits the jurors from rejecting such evidence, as would have been their prerogative in the absence of the instruction.

The sanction of an adverse finding should thus serve to adequately insure that defendant receives the fair trial he to which he is entitled. An outright dismissal would give him more than he is entitled to and would not be in the best interests of justice.

The judgment of conviction is reversed.

FOOTNOTES

1.  Upon appeal to the appellate department of the superior court, defendant's conviction was reversed. Pursuant to rule 62(a), California Rules of Court, we ordered the cause transferred to this court to settle the important questions of law presented therein.

2.  Raymond and Pedro Zamora were tried together with defendant on the same or similar charges. Raymond was acquitted, while the jury could not reach a verdict as to Pedro.

3.  After trial, the Office of the Los Angeles City Attorney recused itself and was replaced by the Office of the District Attorney of Los Angeles County.

4.  Unsustained complaints are as discoverable as sustained ones. (Saulter v. Municipal Court (1977) 75 Cal.App.3d 231, 240, 142 Cal.Rptr. 266; Kelvin L. v. Superior Court (1976) 62 Cal.App.3d 823, 829, 133 Cal.Rptr. 325.)

5.  Although the complaint files were destroyed, a “track record” indicating the names of all complainants (but generally not addresses), the dates of the complaints, and the dispositions of complaint proceedings was retained.

6.  Judge Waters indicated that she did not consider the declarations to be properly before her because they did not reflect their places of execution and thus were technically insufficient. (Code Civ.Proc., s 2015.5.) Judge Waters nevertheless stated that her ruling on the motion would have been the same even if the declarations had been correctly prepared.

7.  Evidence Code section 1103 provides as follows:“In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if such evidence is:“(a) Offered by the defendant to prove conduct of the victim in conformity with such character or trait of character. . . .”

8.  At the time of the destruction of the relevant complaint files in May 1976, Government Code section 34090, as quoted above, was the operative statute authorizing the destruction in question. As of January 1, 1979, however, Penal Code section 832.5 has overridden the provisions of that Government Code section, as applied to complaints made against law enforcement officers, by providing as follows:“(a) Each department or agency in this state which employs peace officers shall establish a procedure to investigate citizens' complaints against the personnel of such departments or agencies, and shall make a written description of the procedure available to the public.“(b) Complaints and any reports or findings relating thereto shall be retained for a period of at least five years.”

9.  It might be noted that the request form which was sent to the city council for the purpose of obtaining permission to destroy the citizen complaint records in issue here described those records simply as “Miscellaneous Files,” “Miscellaneous Memorandums,” or “Miscellaneous Correspondence.” Such nebulous description of the material to be destroyed would seem to frustrate the legislative intent behind Government Code section 34090's requirement that the destruction take place “with the approval of the legislative body . . . .”

10.  Without the citation of any authority, one of the amici curiae appearing on behalf of defendant asserts in a footnote to their brief that any statute which purports to authorize the destruction of evidence which might be of use to criminal defendants, such as Government Code section 34090, should be deemed unconstitutional. As was pointed out by amici at the time of oral argument, the court in Pope specifically noted that the defendant therein had not challenged the constitutionality of Government Code section 34090. (Pope, supra, 83 Cal.App.3d 795, 799, 148 Cal.Rptr. 114.)Section 34090, of course, cannot be said to be invalid on its face since the statute is not explicitly concerned with evidence in criminal cases, but serves merely as authority for the destruction of city records in general. However, it is well established that “(a) statute valid on its face may be unconstitutionally applied.” (People v. Wingo (1975) 14 Cal.3d 169, 180, 121 Cal.Rptr. 97, 106, 534 P.2d 1001, 1010.) Amici's assertion thus really goes to the police department's reliance on Government Code section 34090 as a vehicle for carrying out the destruction in question, rather than to any infirmity in the statute itself. But taken to its logical end, amici's assertion amounts to a contention that files such as were destroyed in the case at bench must be retained indefinitely. Given the obvious declining relevancy of the complaint files with the passage of time, we are not prepared to say that their periodic destruction in accordance with the terms of a statute such as Government Code section 34090 would contravene the principles of due process.

11.  The People assert that whatever error occurred below should be assessed against the “miscarriage of justice” standard explicated in People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243. But since suppression of evidence constitutes a violation of a defendant's due process rights (People v. Hitch, supra, 12 Cal.3d 641, 645, 117 Cal.Rptr. 9, 527 P.2d 361; People v. Kiihoa (1960) 53 Cal.2d 748, 752, 3 Cal.Rptr. 1, 349 P.2d 673), it would appear that the proper test to be employed here is that enunciated in Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 for errors of a constitutional nature. (See People v. Ruthford (1975) 14 Cal.3d 399, 408, 121 Cal.Rptr. 261, 534 P.2d 1341.) Actually, with respect to the case at bench, the distinction between the two tests is of no significance since the error in question could not be considered harmless under either.

12.  It is asserted by one of the People's amici that our decision herein should be given only prospective effect (i. e., apply only to the destruction of complaints filed subsequent to the date of this decision) since any destruction which has already occurred has been based on a long-standing assumption on the part of the police that they are entitled to destroy complaint records with impunity. (Cf. People v. Hitch, supra, 12 Cal.3d 641, 654-655, 117 Cal.Rptr. 9, 527 P.2d 361.) However, even if we were to accept this assertion, it would appear that the benefits of the instant decision should nevertheless accrue to at least the present defendant. (See People v. Ramey (1976) 16 Cal.3d 263, 276, fn. 7, 127 Cal.Rptr. 629, 545 P.2d 1333; In re Podesto (1976) 15 Cal.3d 921, 938, 127 Cal.Rptr. 97, 544 P.2d 1297; see also Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 830-832, 119 Cal.Rptr. 858, 532 P.2d 1226 (conc. and dis. opn. of Mosk, J.).) In any event, the contention that a well established police department practice was somehow involved here is belied by the fact that up until the destruction which occurred in the case at bench in May 1976, complaint records dating as far back as 1949 had been preserved. This fact, coupled with Sergeant Stark's admission that the police department was aware of the usefulness of the complaint files to defendants prior to their destruction, leads to the conclusion that the entities responsible for the destruction herein must be deemed to have knowingly assumed the risk that their actions would later be declared improper by a court and that appropriate sanctions would thereupon be imposed. We therefore decline to limit our decision to prospective application only.

13.  In support of this assertion, amici has invited this court to take judicial notice of several substantially similar cases from the municipal court which arose subsequent to the case at bench and in which dismissals were ordered. In each of the cited cases, the municipal court, upon the presentation of certain evidence which was not produced in the case at bench, made a finding that the same May 1976 destruction which is at the heart of the present controversy was either maliciously or willfully caused. It is a basic rule of appellate practice, however, that matters occurring after entry of judgment are not cognizable on appeal. (6 Witkin, Cal.Procedure (2d ed. 1971) Appeal, s 220, pp. 4210-4211.) Consequently, it would appear to be improper for this court to place any reliance upon the cases cited by amici. But even if we could take cognizance of the municipal court cases referred to, our decision herein would not be affected since, as will become apparent, we do not believe that the sanctions to be imposed in these types of cases should vary according to whether the government's actions are found to have been malicious or not.

14.  Evidence Code section 1040 provides as follows:“(a) As used in this section, ‘official information’ means information acquired in confidence by a public employee in the course of his duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.“(b) A public entity has a privilege to refuse to disclose official information, and to prevent another from disclosing such information, if the privilege is claimed by a person authorized by the public entity to do so and:“(1) Disclosure is forbidden by an act of the Congress of the United States or a statute of this state; or“(2) Disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice; but no privilege may be claimed under this paragraph if any person authorized to do so has consented that the information be disclosed in the proceeding. In determining whether disclosure of the information is against the public interest, the interest of the public entity as a party in the outcome of the proceeding may not be considered.”

15.  Evidence Code section 1042 reads as follows:“(a) Except where disclosure is forbidden by an act of the Congress of the United States, if a claim of privilege under this article by the state or a public entity in this state is sustained in a criminal proceeding, the presiding officer shall make such order or finding of fact adverse to the public entity bringing the proceeding as is required by law upon any issue in the proceeding to which the privileged information is material. . . .”

16.  Assuming that the nature of the destroyed complaint files could support such an inference, the instruction to the jury might also state that the officers had previously exhibited evidence of racial prejudice. (See Hinojosa v. Superior Court, supra, 55 Cal.App.3d 692, 696, 127 Cal.Rptr. 664.)

17.  One of the People's amici has asserted that it can be determined from the “track record” still in existence (see fn. 5, Ante ) that all but two of the destroyed complaint files pertaining to Officers Soeletz and Schroyer were greater than five years old at the time of the destruction. If this is in fact the case, then it would appear that the adverse finding should only be made as to the two files which were under five years old at the indicated time since the others would, under Pope, have been properly destroyed in accordance with the city council's resolution and Government Code section 34090. (But see fn.9, ante.)In view of this observation, we need not address ourselves to the People's contention concerning the possible application on remand of Evidence Code section 1045, subdivision (b)(1) (eff. Jan. 1, 1979), which now limits discovery of citizen complaint records to those pertaining to peace officer conduct occurring not more than five years before the incident in controversy.

KLEIN, Presiding Justice.

ALLPORT and POTTER, JJ., concur.