PEOPLE v. LEVARIO (1985)

In an information filed by the district attorney of San Bernardino County, Daniel Cornejo Levario (defendant) was charged in Count I with possession of a firearm in a courtroom (Pen.Code § 171b) and in Count II with possession of a firearm by an ex-felon (Pen.Code § 12021).

Defendant's oral motion for dismissal, suppression of evidence, or other sanctions was heard out of the presence of the jury and denied.   The jury found defendant guilty of both counts.   Defendant was sentenced to state prison for the aggravated term of three years on Count I and the aggravated term of three years on Count II which was stayed, said stay to become permanent upon completion of the term for Count I.

Defendant has appealed, contending that his motion for sanctions should have been granted by the trial court.

FACTS

On December 27, 1983, defendant and William Roy Brotemarkle were in San Bernardino County Superior Court Department Nine for a pretrial hearing on a residential robbery case in which they were codefendants.   Defendant arrived in department nine and removed his watch cap from his head.   During a recess defendant and Brotemarkle went into the hallway.   Upon returning to court, defendant was carrying his cap in his hand and Brotemarkle noticed that the cap appeared to have something inside it.   During a recess, Brotemarkle approached the courtroom bailiff, Deputy Henriksen, and told him that he believed defendant had a gun.   When defendant left the courtroom, Deputy Henriksen followed him into the men's room.   Upon entering the restroom, Deputy Henriksen observed an inner door closing, but could not see defendant.   As the deputy stepped to the inner door, he heard a squeaky-swinging noise from the restroom trash can lid, a thump, and another swinging noise.

Upon passing through the inner door, Deputy Henriksen observed defendant within 3 feet of the trash can with his watch cap loose in his hand.   The deputy immediately took the cap from defendant and found nothing in it.   Deputy Henriksen then checked the contents of the trash can and found a .22 caliber handgun tightly wrapped in a napkin as well as a clear plastic cup and a couple of paper towels.   Deputy Henriksen unwrapped the gun and opened it to discover that it was loaded, handling it in the process.   The deputy then arrested the defendant.

At trial, out of the presence of the jury, defendant moved for sanctions, requesting either suppression of the weapon involved or dismissal of the case.   The facts presented for this motion show that Deputy Henriksen retrieved a pistol from the wastebasket in the restroom outside of department nine of the San Bernardino Superior Court.   The prosecution never had the weapon analyzed for possible fingerprints, nor did it conduct any fingerprint comparison of any possible prints on the weapon to those of defendant.

Charles Von Colln, an expert in the field of fingerprinting, testified on behalf of the defendant.   He explained that he examined the weapon involved in the instant case which consisted of three pieces:  the cylinder, the frame and the nail (used in holding the cylinder on the frame).   He was given the pistol in a brown paper bag which also contained napkins and a black watch cap.

Mr. Von Colln testified that contact between the parts of the weapon and other contents of the bag could cause destruction and smudging of any latent prints on the weapon.   He further indicated that if an individual touches a gun, generally, latent prints will be left on the surface, however, that is not necessarily so, depending upon the particular individual's level of fluid secretion and the manner in which the individual touches the gun.   It is further possible to have latent fingerprints on a gun from persons who touch it days before it is recovered.

The defense expert also testified that he dusted the gun for fingerprints and lifted two latent prints from the weapon, however, he did not count the points of comparison within the latent prints to determine if they were suitable for comparison nor did he compare them to fingerprints of defendant or anyone else.

DISCUSSION

Defendant's only contention is that the trial court erred when it denied his motion for sanctions, requesting either suppression of evidence or dismissal of the case, because of police failure to lift and preserve latent fingerprints from the weapon involved herein.   He argues that his motion should have been granted pursuant to People v. Hitch (1974) 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361, and it progeny.   Defendant's contention is without merit.

 The court, in People v. Hitch, supra, 12 Cal.3d at 652, 117 Cal.Rptr. 9, 527 P.2d 361, held that law enforcement has a duty to preserve evidence once collected and where evidence has been destroyed by an investigative agency sanctions may be appropriate.   For the police to have a duty to preserve evidence, defendant must first show that the claimed evidence existed.  (People v. Maese (1980) 105 Cal.App.3d 710, 720, 164 Cal.Rptr. 485.)

 The evidence herein indicates that by the time the weapon was in the possession of law enforcement it was at various times either wrapped in a watch cap or in a napkin.   These facts indicate that there was little likelihood of obtaining fingerprint evidence in the first instance.   Also, according to defendant's expert's testimony, if a person does not excrete amino fluids, no fingerprint will be left on a particular surface.   The expert also explained that if a person excreted an excessive amount of fluids out of his or her pores, there could be smears around any possible fingerprint.   The record in this case contains no evidence of the physiology of defendant or any other possible handler of the gun to determine if, in fact, any comparable prints might be on the weapon.   Finally, defendant's expert testified it was almost an impossibility to tell whether latent fingerprints could be lifted from a weapon deposited in a trash receptacle without immediate dusting.   However, prints may be on a surface that is properly preserved for an indefinite period.

Under the Hitch criteria, defendant has not met the prerequisite showing of the existence of evidence in order to require the imposition of sanctions.

Defendant further contends that the Hitch decision places an additional burden on law enforcement not only to preserve evidence once obtained, but to collect the evidence in the first instance.

 It is well established that law enforcement officials are under no affirmative duty to discover potential evidence for the defense.  (People v. Bradley (1984) 159 Cal.App.3d 399, 405, 205 Cal.Rptr. 485;  People v. Maese, supra, 105 Cal.App.3d at p. 720, 164 Cal.Rptr. 485;  and People v. Cooper (1979) 95 Cal.App.3d 844, 850–851, 157 Cal.Rptr. 348).   The instant case is different from the Hitch situation where raw data (breath) was collected, tested and destroyed.   Nor is this case like People v. Nation (1980) 26 Cal.3d 169, 173, 161 Cal.Rptr. 299, 604 P.2d 1051, where collected evidence (semen) was retained but not adequately preserved to allow defendant to test it.   In each case, evidence was actually collected by law enforcement.   But, as pointed out in People v. Hogan (1982) 31 Cal.3d 815, 851, 183 Cal.Rptr. 817, 647 P.2d 93, neither case imposed a duty to collect evidence in the first instance.   Further, there has been no authority cited that requires the prosecution to affirmatively collect or gather or seize potentially material evidence in the course of an investigation for defendant's use.  (People v. Bradley, supra, 159 Cal.App.3d at p. 406, 205 Cal.Rptr. 485.)

 Assuming, however, that some type of fingerprint evidence existed and was destroyed by the prosecution, defendant has failed to meet the test of California v. Trombetta (1984) ––– U.S. ––––, ––––, 104 S.Ct. 2528, 2534, 81 L.Ed.2d 413, 422 in order to show a constitutional due process violation that would require the imposition of sanctions.

The United States Supreme Court in Trombetta made it clear that the constitutional duty to preserve evidence “must be limited to evidence that might be expected to play a significant role in the suspect's defense․  [E]vidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and also be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.”   (Id. at p. ––––, 104 S.Ct. at p. 2534, 81 L.Ed.2d at p. 422, fn. omitted.)

Although preservation of the weapon in order to allow the defense expert to examine it to determine if comparable fingerprints existed might conceivably have added to defendant's case, there has been no showing, as required by Trombetta, that the evidence was exculpatory or that law enforcement knew it was exculpatory before any failure to preserve the weapon for defense analysis.   An examination of the weapon would either show defendant's fingerprints on the weapon or the absence of his prints or the presence of a print not identified as defendant's.   While the presence of defendant's fingerprint on the weapon would be strong circumstantial evidence of his guilt, the absence of a print identifiable as defendant's does not support the finding that defendant did not handle the gun.   It does not appear, therefore, that defendant has established that the preservation of the weapon for examination would have produced exculpatory evidence which was known to law enforcement.

Trombetta also requires that comparable evidence could not be obtained from any other reasonably available source.  (California v. Trombetta, supra, 467 U.S. at p. ––––, 104 S.Ct. at p. 2534, 81 L.Ed.2d at p. 422.)   Defendant's expert testified in the trial court that he was able to lift two latent prints from the weapon.   Contrary to defendant's claim that these prints were useless because they could not be used for comparison, the expert testified that he never examined these prints to make a count of the points of identification and, therefore, could not determine whether they were suitable for comparison or not.   Defendant's own evidence shows that there might have been an alternate source of comparable evidence that he had been requesting from the prosecution.

Since the prosecution is under no duty to exert efforts to discover potential evidence for the purpose of preserving it for the defense (People v. Bradley, supra, 159 Cal.App.3d at p. 405, 205 Cal.Rptr. 485;  People v. Maese, supra, 105 Cal.App.3d at p. 720, 164 Cal.Rptr. 485) and since the defendant made no showing that any evidence allegedly destroyed was exculpatory in nature and could not be obtained from any other reasonably available source, the trial court's denial of defendant's motion for sanctions or dismissal was correct.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

McINTYRE–POE, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

MORRIS, P.J., and RICKLES, J., concur.