Opinion
B224445
01-31-2012
THE PEOPLE, Plaintiff and Respondent, v. TRENTON REED HENDERSON, Defendant and Appellant.
The Law Offices of Bradley Wm. Brunon and Bradley Wm. Brunon, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Richard S. Moskowitz, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. VA103541)
APPEAL from a judgment of the Superior Court of Los Angeles County. Michael A. Cowell, Judge. Affirmed.
The Law Offices of Bradley Wm. Brunon and Bradley Wm. Brunon, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Richard S. Moskowitz, Deputy Attorneys General, for Plaintiff and Respondent.
Trenton Reed Henderson appeals from the judgment entered upon his conviction by jury of driving under the influence, violating a statute, causing death or great bodily injury (Veh. Code, § 23153, subd. (a)). The jury found to be true the great bodily enhancement within the meaning of Penal Code section 12022.7. The trial court placed appellant on three-years formal probation subject to six months in county jail. Appellant contends that (1) the police violated his due process rights by improperly destroying exculpatory evidence, in violation of Trombetta and Youngblood, without imposing adequate sanctions, and (2) the jury instructions misdescribed the element of proximate causation and failed to instruct on appellant's defense that he did not violate the vehicle right-of-way statute.
All further statutory references are to the Penal Code unless otherwise indicated.
California v. Trombetta (1984) 467 U.S. 479 (Trombetta).
Arizona v. Youngblood (1988) 488 U.S. 51 (Youngblood).
We affirm.
FACTUAL BACKGROUND
Because the evidence of the condition of the motorcycle headlights adduced at the Trombetta hearing, conducted before trial, is substantially the same as the trial evidence, we do not recite that evidence here, but rather in the "Discussion," part I, post, section of this opinion.
The prosecution's evidence
The Collision
On August 28, 2007, near 9:45 p.m., appellant was traveling west on Telegraph Road and began making a left turn from the "left hand turn pocket" onto True Avenue. As he did so, he struck an oncoming motorcycle, traveling east on Telegraph Road at 35 to 40 miles per hour, driven by Luis Rivas (Rivas).
There were several witnesses to the accident. Rolando Hernandez (Hernandez) was driving north on True Avenue and was stopped for a red signal at the intersection of Telegraph Road. He was waiting for a motorcycle heading east on Telegraph to clear the intersection so he could make a right turn. The motorcycle's single headlamp was on. As he waited, a dark-colored SUV, traveling west on Telegraph Road, completely stopped in the left turn pocket, started to turn left on True Avenue when it was struck on its front end by the motorcycle. The motorcyclist fell, and the SUV ran over him. Hernandez estimated that, after turning, the SUV was traveling 25 miles per hour.
Desiree Garcia (Desiree) was familiar with motorcycles and acquainted with Rivas, a friend of one of her friends. She was at a gas station at the intersection of True Avenue and Telegraph Road with her mother, Doreen Garcia (Doreen), and saw the motorcycle traveling 40 miles per hour, a block or so from True Avenue, "going with the flow of traffic." The motorcycle had a single, bright white "triangular" headlight, which was on. The streetlights in the area were all lit, and the motorcyclist was not difficult to see. As the motorcycle approached the intersection, the signal was green for traffic on Telegraph.
At about the same time, Desiree saw appellant, driving a cream colored Highlander west in the left lane of Telegraph Road, enter the left-pocket turn lane. "It didn't seem like [he stopped]" at the limit line but instead accelerated as he began his turn. He hit the motorcyclist, running over his entire body and dragging him.
Though Doreen did not see the initial impact, she saw a beige-colored "truck" running over a body and dragging it, without slowing down. Doreen, trained in CPR, approached the motorcyclist, who was lying on the pavement, and "checked his pulse and . . . felt to see if he was breathing." The motorcycle was lying nearby. It was not moved before the police arrived.
Appellant stopped the SUV in front of the residence of Carl Willis (Willis), who exited his house. Appellant stood outside the vehicle and did not approach the motorcyclist. It appeared to Willis that appellant was very shaken. Appellant told him that he was not running, to call the police and that he did not see any lights on the motorcycle. Willis's mother came out of the house and saw appellant exit his vehicle crying and asking how the victim was.
Within minutes, Downey Police Officers Michael Galindo and Dustin Doyle arrived at the accident scene in separate patrol cars. Officer Galindo looked for witnesses. Paramedics treated Rivas, who was pronounced dead at Downey Medical Center at 11:18 p.m.
Police Department videotapes showed that the surface streets in the vicinity and the intersection were not well illuminated. Because it was dark, appellant's SUV appeared dark to Hernandez.
The DUI Investigation
Officer Galindo was told that appellant may have been under the influence of alcohol. Based upon field sobriety tests, appellant's physical symptoms, his admission that he had just come from Mr. B's Sports Lounge in Los Alamitos where he had three or four vodka and sodas, and his scores on the PAS test, Officer Galindo believed that appellant was impaired by alcohol and was unable to safely operate a vehicle. Accordingly, Officer Galindo arrested appellant.
At the police station, appellant underwent a breath test, using a Data Master breath alcohol analyzer device. His breath samples, given at 11:46 and 11:49 p.m., registered readings of .06.
A blood alcohol expert testified that people can be impaired in their ability to perform divided-attention tasks at a blood alcohol level of .05 percent, and a few even at a level as low as .02 percent. At a level of .08 percent, no one can operate a vehicle safely. Given what he drank that evening and when the tests were performed, the expert opined that appellant's actual blood alcohol level at the time of the accident would have been above .08.
The defense's evidence
Appellant presented evidence that he was not impaired because he did not drink excessively, the breath analyzer equipment in the field has a margin of error and breath tests are not as accurate as blood tests, and medical testimony that appellant suffered from medical conditions that affected the validity of the field sobriety and breath tests, such as gastric reflux, nystagmus and a bad knee.
DISCUSSION
I. Trombetta-Youngblood motion
A. Background
Appellant filed a Trombetta-Youngblood motion to dismiss the charges or, alternatively, for lesser sanctions based upon the government's failure to preserve evidence, including the motorcycle and some of its parts. Just days before trial began, the trial court conducted a hearing on the motion, at which six Downey police officers testified. The motion was denied.
Three days later, in the middle of trial, Officer Mark Haxton located the previous possessor of the motorcycle, Paul Mejia (Mejia). Mejia told him that the motorcycle needed repairs, had a stealth switch that allowed the motorcycle to be driven with its lights off, and that he believed its headlights were operative. After receiving this information, Officer Haxton looked at the photographs that were taken of the motorcycle and saw the stealth switch but could not tell if it was on or off. A report containing this new information was presented to defense counsel, after which he renewed the Trombetta motion, claiming that the new information left no doubt that the motorcycle would have been helpful because of the stealth switch. The trial court again denied the motion.
B. The first Trombetta hearing
The evidence adduced at the first Trombetta hearing is as follows.
1. Appellant's accident scene statement
On August 28, 2007, between 9:30 and 9:45 p.m., the fatal collision in which Rivas was killed occurred. Officer Doyle was one of the first officers to respond to the scene minutes after the accident. Shortly after his arrival, he spoke with appellant, who said he was the driver of the SUV and that he "did not see the motorcycle because the lights were off." Officer Doyle also spoke with Willis, who reported that appellant had told him the same thing.
Officer Doyle did not recall informing either investigating Officers Haxton or Perry Miller about appellant's statements because they arrived later. He did remember telling Officer Jason Klevos, a traffic officer, who arrived at the accident scene minutes after Officer Doyle. Officer Klevos asked appellant what happened and was told that appellant did not see the oncoming motorcycle. Officer Klevos did not recall appellant saying that the motorcycle's lights were off or Officer Doyle telling him that appellant had reported that.
2. Field examination of the motorcycle
On August 28, 2007, at approximately 11:00 p.m., Officer Haxton arrived at the accident scene to conduct an accident reconstruction. Officer Miller was already there. The two of them were responsible for gathering evidence. No one informed them that appellant had reported that the motorcycle's headlights were off at the time of the accident. But even without that information, Officer Haxton said that the operability of the motorcycle's headlights would have been part of the investigation, as it was important to determine if the headlights were functioning and on at the time of the collision.
Officer Haxton was informed that witnesses had reported that the motorcycle's front headlights were on.
Officers Haxton and Miller examined the motorcycle. It was equipped with two independent headlights and bulbs, each with a low and high beam filament. The headlights were operated by the ignition key and did not have an on and off switch. If the key was in the "on" position, the lights were automatically turned on. There was a separate switch to control the high and low beams. After the collision, the key was found in the motorcycle's ignition in the "on" position, the motorcycle's power was still on and the rear taillight was lit, indicating that the electrical circuit was still intact. The motorcycle was designed so that electricity passing through the wiring harness powered both the front and rear lights.
Near the motorcycle, Officer Miller found and inspected the detached housings for the headlights. Both had small particles inside of them. He also examined the wiring harnesses and located a single unlit, but intact, light bulb attached to one of the harnesses. He removed the bulb from its casing and put it in his jacket pocket, where it fit snugly so it did not move around. Although the fact that the intact bulb was still attached to the wiring harness was important to document, it was not photographed in that condition before it was removed. According to Officer Miller, that was because the forensics unit responsible for photographing had not yet arrived. Officer Miller felt it important to remove the bulb immediately to protect it from damage.
Officer Miller noticed minor damage to the wiring; some fraying of the plastic around the wires and part of the wires was dangling. He did not check to see if there was any electric flow in the wires because the taillight was on. In any event, he would not have been able to tell if any electrical stoppage was the result of the collision or was preexisting.
Officer Miller gave Officer Haxton the intact bulb and told him that there appeared to be deformation in the low beam filament. Officer Haxton placed the bulb into two styrofoam cups. He opined that the low beam filament of the intact bulb was lit at the time of the collision, based on the condition of the filaments. Officer Miller also told Officer Haxton that the other light bulb was "completely smashed," and, as a result, he saw no need to photograph it. Officer Miller observed what might have been a portion of the base from the second bulb in the debris, but the entire glass housing, including the filaments were "completely gone." The base was not taken and preserved as evidence.
Identification technicians were taking photographs of evidence they thought relevant, including photographs of the motorcycle's headlights. A photograph was taken of the two reflector cones which appeared to have come from the motorcycle's headlamps. Neither of the cones was recovered, nor were any close up photographs taken of the bulbs or the reflectors.
Officer Haxton understood that government regulations required that motorcycle headlights be designed to illuminate automatically when the ignition is turned on. To run "stealth," that is with the lights off, the motorcycle would have to have its electrical system modified and a special "stealth switch" installed. Such modifications were illegal, but most people nonetheless installed stealth switches. Officer Haxton did not notice a stealth switch or any other non-factory installed switch on the victim's motorcycle, but he was not specifically looking for one.
At some point, Officer Haxton was made aware that Rivas had a light bulb in his pocket. Officer Haxton did not recall who told him that and did not know why the bulb was there. He acknowledged that that bulb might have been helpful in determining if one of the bulbs was not working. He nonetheless made no effort to locate the bulb.
Don Gritton (Gritton), a retired California Highway Patrol officer, testified as a defense reconstruction expert. He was aware that appellant said that he did not see the motorcycle because its lights were off. Even without that statement, in his opinion the condition of the motorcycle's lighting system was important because if the lights were off, the victim was in violation of the law, and it would have been difficult for appellant to see him.
Gritton found numerous deficiencies in the police investigation. Proper investigation dictated that the intact bulb be photographed before removal from the housing. The base of the broken bulb should have been collected, as it might have aided investigators in determining if that bulb was defective, if it had been properly mounted, and if it was operational before the collision. If the bulb breaks while the filament is on, glass fragments would adhere to the filament because of the heat, or to the lens cover and other components of the headlamp. Putting the intact bulb into Officer Haxton's pocket was not a proper way of storing evidence, and created a risk of breaking the seal between the bulb and its base which could result in contamination. It would have also been important to save the light bulb in Rivas's pocket because it could have been a replacement bulb. A careful examination and preservation of the wiring harness would have been appropriate to determine if the lights were on. It would have been appropriate to impound the entire motorcycle as possible evidence to determine, for example, if it had a "stealth running."
Gritton examined a photograph of the intact bulb and concluded that the damage to the interior of the bulb was the result of "cold shock," suggesting that the filament was not lit when the break occurred. If the remains of the other bulb had been preserved, it is possible that Gritton and other experts would have been able to determine whether it too had been off at the time of the accident. Gritton conceded that the taillight being on suggested that there was no damage to the wiring harness. However, simply because the ignition activates both the front and rear lights at the same time does not necessarily mean that a break in one part of the wire would short out the entire wire.
Defense efforts to inspect the motorcycle
On August 28, 2007, Sergeant Dean Milligan went to the accident scene and impounded the motorcycle as evidence. It was transferred to Doug's Tow, whose policy it was to hold the vehicles until released by the police.
That same day, former deputy district attorney Robert Herron (Herron) was retained by appellant. His efforts to learn the results of the police investigation and to inspect the motorcycle began shortly afterwards. On September 12, 2007, he first spoke with Sergeant Milligan in an effort to gather information about the case and to arrange for the return of appellant's SUV. He was told to submit all discovery requests to the district attorney. Herron spoke with Sergeant Milligan again on September 13, 2007, and was told that appellant's SUV was ready for pick up and that the accident reconstruction investigation had been completed.
On October 11, 2007, Detective Rocio Gutierrez, the investigating officer, submitted the police reports regarding the accident to the district attorney's office. Much of the delay in doing so was attributable to the need to obtain a copy of the coroner's report, which the district attorney always requires and which was not received until September 26, 2007. Detective Gutierrez had not seen any documentation suggesting that there had been a written request to examine the motorcycle before the case was filed in the beginning of December 2007.
On November 1, 2007, Herron went to the Downey Police station and spent a couple of hours trying to arrange a meeting with Detective Gutierrez, who said that she needed a release from appellant. Herron gave the detective his card and asked that if they were going to prosecute appellant, if they would give him the opportunity to surrender his client. In early December, appellant was arrested without giving Herron the requested courtesy. The records division of the Downey police claimed to have lost a November 2007 written request Herron made for police reports.
On January 9, 2008, Herron submitted an informal discovery request to the district attorney, which included a request to examine the motorcycle. He submitted another informal request on March 7, 2008. Herron received a copy of the complaint and the police report but no response to his request to examine the motorcycle, though the Downey Police Department's practice was to allow representatives of the defendant to examine vehicles upon request to Detective Gutierrez. Sergeant Milligan testified that had the defense asked to examine an impounded vehicle, he would have authorized it and notified the investigating officer. He recalled no such request here.
Detective Gutierrez testified that no one from the defense ever contacted her directly about any discovery requests, though she did recall one request for discovery that she received from the district attorney. She did not recall receiving a call from Herron on September 12, 2007. It would have been her practice to confer with Sergeant Milligan about releasing the motorcycle, though she had no independent recollection of doing so. If they agreed the motorcycle no longer had any evidentiary value, it would have been released.
Sergeant Milligan was authorized to release impounded vehicles. His custom was to check with Detective Gutierrez, or the assigned reconstruction specialists, Officers Miller or Haxton, to determine if there was any need to retain the vehicle before releasing it. Sergeant Milligan did not recall releasing the motorcycle, though department records indicate that he did so on February 11, 2008, without talking to the district attorney. It was sold to a salvage yard and destroyed without notice to appellant or Herron. Sergeant Milligan did not recall why it was released, though accrual of impound fees is a factor in such decisions.
On February 27, 2008, Herron learned that the motorcycle was no longer available. On November 20, 2008, defense expert, Randy Nelson (Nelson) was allowed to examine the intact light bulb found at the scene.
3. The Superior Court's ruling
The trial court believed that the mere possibility that the destroyed evidence might have been exculpatory was insufficient to establish a due process violation. It stated: "Clearly there was a failure to preserve all of the evidence. And clearly some [of that] evidence [] might have proven to be exculpatory, . . . [But] '[i]f . . . all that could be determined is that the evidence was potentially useful for the defense, which is certainly the case here, then the defendant must show that the Government acted in bad faith in destroying the evidence." While noting the dearth of case law defining "bad faith," the trial found that while there was "an egregious amount of negligence," there was no bad faith under any definition, because bad faith "clearly involve[s] a state of mind, and it seems to me what we have here is rank incompetence by the police. . . . [S]omeone screwed up royally in the preservation of evidence in this case. Evidence that should have been seized that [sic] wasn't, referring to the fragments of glass or at least the base of the bulb involved. [¶] Evidence that was located, the bulb in the pocket, somebody in the police department found it because it ended up in a police report. We don't know who found it. There's incompetence right there. Some police officer found a bulb in the decedent's pocket. We don't know who it was, we don't know who put it in the report, we don't know what happened to the bulb. . . . We are dealing here with incompetence, police incompetence in the preservation of evidence. [¶] But, I do not think we're dealing with bad faith because we're dealing here with not a state of mind, but the absence of a state of mind."
The trial court therefore denied appellant's request for dismissal of the charges, deciding instead to give a remedial instruction advising jurors that they could draw an adverse inference from the fact that the evidence had been destroyed.
The trial court instructed the jury as follows: "You have heard testimony that the items of physical evidence discovered by the police agency responding to the scene of the collision involved in this case included: [¶] 1) an intact light bulb from one motorcycle lamp; [¶] 2) an intact light bulb located in one of the decedent's pockets; [¶] 3) debris from the motorcycle; [¶] the motorcycle itself. [¶] Further that some of these items either were not retrieved from the scene of the collision or, if retrieved, were not preserved in police custody for possible forensic analysis thereafter. [¶] You have also heard conflicting testimony as to whether the motorcycle's lamp was lit immediately prior to the collision. Neither side is required to call as witnesses all persons who may have been present at any of the events disclosed by the evidence or who may have some knowledge of these events. Neither side is required to produce all objects or documents mentioned or suggested by the evidence. [¶] In resolving the question of whether or not the motorcycle headlamp was lit at the time of the collision, you have the discretion to base your decision solely on an evaluation of the credibility of witnesses. However, you may also take into consideration the police agency's failure to preserve physical evidence in deciding whether the People have proved beyond a reasonable doubt that the motorcycle lamp was lit at the time of the collision." (Modified version of CALJIC No. 2.11.)
C. Second Trombetta hearing
1. The hearing
At the second Trombetta motion, appellant argued that in light of the new evidence obtained from Mejia that the motorcycle had a stealth switch, there was no doubt that inspection of the motorcycle would have helped the defense.
2. The ruling
The trial court denied the motion, stating: "Obviously there's prejudice to the defense by not having the motorcycle for examination, but the court's already considered that. And I find this [new report] is more beneficial to the defense than prejudicial, so the court is going to stand by its ruling."
D. Contention
Appellant contends that the trial court erred in denying his Trombetta/Youngblood motions. He argues that "the trial court . . . found that the lost evidence had apparent exculpatory value. . . . But, it reasoned that 'bad faith' is a necessary component of all Trombetta/Youngblood violations, and means a conscious mental state equivalent to a specific intent to deprive the defendant of a fair adjudication.....The trial court should have imposed 'adequate compensatory' sanctions for a due process violation, without a showing of malicious intent." This contention is without merit.
E. Standard of review
On review of a Trombetta/Youngblood ruling, we must determine whether, viewing the evidence in the light most favorable to the trial court's finding, there was substantial evidence to support its ruling. (People v. Roybal (1998) 19 Cal.4th 481, 510; People v. Carter (2005) 36 Cal.4th 1215, 1246.) It is settled that the substantial evidence standard applies to a trial court's determination, following a factual inquiry, that the state acted in good or bad faith in failing to preserve evidence. (People v. Memro (1995) 11 Cal.4th 786, 831.)
F. The constitutional duty to preserve evidence
"The relevant due process principles have been discussed many times before." (People v. DePriest (2007) 42 Cal.4th 1, 41 (DePriest).) Law enforcement agencies must preserve evidence only if it possesses exculpatory value "'apparent before [it] was destroyed,'" and not obtainable "'by other reasonably available means.'" (Ibid.) This is the federal standard articulated in Trombetta which California has adopted. (See People v. Beeler (1995) 9 Cal.4th 953, 976-977 (Beeler); Trombetta, supra, 467 U.S. at p. 489.)
The state's responsibility is further limited when the defendant challenges the failure to preserve evidence "of which no more can be said than that it could have been subjected to tests" that might have helped the defense. (Youngblood, supra, 488 U.S. at p. 57.) In such a case, unless the defendant can show "'bad faith'" by the police, failure to preserve "'potentially useful evidence'" does not violate his due process rights. (DePriest, supra, 42 Cal.4th at p. 42; Youngblood, supra, at p. 58 ["[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law"].) "The presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the police's knowledge of the exculpatory value of the evidence at the time it was lost or destroyed." (Youngblood, supra, at p. 57, fn.*.)
Applying these principles here, we conclude that there is sufficient evidence to support the trial court's findings that the motorcycle and other lost or destroyed evidentiary items had no exculpatory value that was apparent before destruction and that the police did not act in bad faith. Consequently, there was no due process violation. 1. Exculpatory value, apparent before loss/destruction
Appellant's claim that the trial court found that some of the lost/destroyed evidence had exculpatory value is premised upon a misconception of the Trombetta requirement for a due process violation. Trombetta states that law enforcement agencies must preserve evidence only if it possesses exculpatory value, "apparent before [it] was destroyed . . ." (DePriest, supra, 42 Cal.4th at pp. 41-42.) Appellant distorts this requirement, arguing that the lost evidence must have "apparent exculpatory value." Use of the phrase "apparent exculpatory value" suggests that that evidence need not be exculpatory, but need only appear to be. However, Trombetta makes clear that the evidence must be exculpatory, but its exculpatory value must be apparent before destruction or loss.
Based upon his erroneous characterization of what evidence must be preserved, appellant argues that the trial court found that some of the lost/destroyed evidence was exculpatory. He is wrong. The trial court's ruling clearly indicates that it found none of that evidence to have exculpatory value, apparent before its loss or destruction. The trial court stated that some of the lost/destroyed evidence "might have proven to be exculpatory." (Italics added.) It added, " . . . [But] '[i]f . . . all that could be determined is that the evidence was potentially useful for the defense, which is certainly the case here, then the defendant must show that the Government acted in bad faith in destroying the evidence." (Italics added.)
The trial court clearly found that the unpreserved evidence was not exculpatory without further testing. The evidence supports this finding. Gritton, appellant's expert, found numerous deficiencies in the police investigation. Proper investigation dictated that the intact headlight bulb found at the accident scene should have been photographed before it was removed from the housing because the way in which it was attached to the wiring might have revealed information as to whether it was working at the time of the collision. The base of the broken bulb should have been collected as it might have aided investigators in determining if that bulb was defective, if it had been properly mounted, and if it was operational before the collision. It would have also been important to save the light bulb in Rivas's pocket because it might have been a replacement bulb, revealing that at least one of the bulbs was not operational. A careful examination and preservation of the wiring harness might have been helpful in determining if the lights were on. It would have been appropriate to impound the entire motorcycle as possible evidence to determine, for example, if it had a stealth switch, and if that switch was on. Mejia, the preceding possessor of the motorcycle, told Officer Haxton that it had a stealth switch, but photographs failed to reveal if that switch was on or off.
Thus, while all of the unpreserved evidence had the potential of yielding critical information on whether the motorcycle's lights were on at the time of the collision, none of that evidence was exculpatory without further testing.
2. Bad faith
When the evidence does not have exculpatory value that is apparent before its loss or destruction, but only "could have been subjected to tests, the results of which might have exonerated the defendant" (Youngblood, supra, 488 U.S. at p. 57), a due process violation is not automatically made out. Rather, "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." (Youngblood, supra, at p. 58, italics added.)
Defining what constitutes "bad faith" on the part of the police has proven elusive. Justice Blackmun, in his dissenting opinion in Youngblood, observed this definitional difficulty, stating: "Apart from the inherent difficulty a defendant would have in obtaining evidence to show a lack of good faith, the line between 'good faith' and 'bad faith' is anything but bright, and the majority's formulation may well create more questions than it answers. What constitutes bad faith for these purposes? Does a defendant have to show actual malice, or would recklessness, or the deliberate failure to establish standards for maintaining and preserving evidence, be sufficient? Does 'good faith police work' require a certain minimum of diligence, or will a lazy officer, who does not walk the few extra steps to the evidence refrigerator, be considered to be acting in good faith? While the majority leaves these questions for another day, its quick embrace of a 'bad faith' standard has not brightened the line; it only has moved the line so as to provide fewer protections for criminal defendants." (Youngblood, supra, 488 U.S. at pp. 66-67, dis. opn. of Blackmun, J.)
The California Supreme Court has described bad faith in the Youngblood context as follows: "'The presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the police's knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.' [Citation.]" (Beeler, supra, 9 Cal.4th at p. 976; DePriest, supra, 42 Cal.4th at p. 42 [suggesting that bad faith is found when "the police knew [that the destroyed evidence] would have exculpated [the defendant]"; Youngblood, supra, 488 U.S. at p. 56, fn.*.)
We find this definition of bad faith to be of little assistance in evaluating any given case. Moreover, it is much like the Trombetta requirement for a due process violation; exculpatory value, apparent before the loss or destruction of the evidence. What is the difference between having exculpatory value that is apparent and exculpatory value known to the police?
The trial court found that while there was rank incompetence in the handling of the evidence, there was no evidence that the police had the requisite mental state to constitute bad faith. It did not articulate precisely what that mental state was, and we therefore assume that it knew that it was as defined in Beeler. (In re Ivey (2000) 85 Cal.App.4th 793, 805 ["We will presume in the absence of contrary evidence that the . . . judge knew the law"].) There was substantial evidence to support the trial court's no-bad-faith finding, as there is no evidence that the police lost or destroyed the motorcycle and other evidence knowing their exculpatory value.
When Officers Haxton and Miller were investigating the crime scene and collecting evidence, they knew that multiple witnesses said that the motorcycle's headlights were on at the time of the accident. They were unaware that appellant claimed otherwise. Thus, while the condition of the headlights was an important issue in any investigation of this type of accident, it did not appear to the officers that it was a paramount issue here where there was no suggestion that the lights were off.
Further, the officers concluded from inspecting the intact light bulb found at the scene, based upon the appearance of its low-beam filament, that the bulb was on when the accident occurred. That conclusion was buttressed by their finding that the taillight, which was on the same wiring harness as the headlights, was on even after the accident. Given these facts, their less than maximum concern for whether the headlights were on, their putting little significance on the debris which may have contained the destroyed headlight bulb and its base, and their failure to preserve these items, was understandable. It did not reflect bad faith.
The officers also did not notice any non-factory switches on the motorcycle, including any stealth switch, that could have been used to allow the motorcycle to operate without the headlights, overriding the motorcycle manufacturer's requirement that the lights come on automatically when the ignition was turned on. While their failure to observe the stealth switch was an apparent oversight, it supported their belief that there was no issue as to whether the motorcycle was being driven without its headlights on.
At the time that the motorcycle was released from storage and destroyed, the officers still did not realize that it had a stealth switch. Because the taillight, which was on the same wiring as the headlights, was on after the accident, the officers had reason to believe that the motorcycle was not being operated in a stealth mode, and that the headlights were also on. It was not until the beginning of trial that Officer Haxton spoke with Mejia, the prior possessor of the motorcycle, who told him that it had a stealth switch. Officer Haxton then checked the photographs and saw the switch, though he could not tell if it was on or off.
In summary, there was no evidence that the police were aware in this case that the motorcycle and its parts had any potential exculpatory value on the question of whether the lights were on, as nothing in their investigation suggested that the headlights were off.
3. Sanction instruction
Though the trial court denied appellant's Trombetta motions, it nonetheless instructed the jury with a modified version of CALJIC No. 2.11, regarding the police's failure to preserve evidence. At the instruction conference, defense counsel had problems with some of its language, concerned that the jury would not understand the significance of the People's failure to preserve the evidence unless the instruction informed the jury of the People's constitutional duty to do so. After a discussion off the record regarding this instruction, the trial court stated, "I think we have an agreement on the phrasing of 211." No objection to this comment was made by either counsel. The trial court refused to give the special instruction on the subject submitted by appellant.
See footnote 6, ante.
The special instruction submitted by appellant stated: "[A police department has a [constitutional] duty to gather and preserve evidence that has apparent exculpatory value, that is, evidence that would reasonably appear to be of value to the defense.] [¶] There has been testimony that the police failed to retrieve or preserve evidence from the scene of the collision, including: [¶] 1. An intact light bulb from the decedent's pocket, [¶] 2. Debris from the motorcycle including a possible second lampbulb from the motorcycle, [¶] 3. The motorcycle itself. [¶] You have also heard testimony that examination of the unpreserved evidence might have provided evidence that the motorcycle headlamp was not lit immediately before the collision. [¶] You have also heard conflicting eyewitness testimony as to whether the headlamp was lit immediately before the collision. [¶] You may consider all of this evidence in determining whether the prosecution has proven that the headlamp was lit beyond a reasonable doubt."
Appellant argues that the jury instruction given by the trial court to ameliorate the prejudice to appellant resulting from the destruction of evidence was "inadequate to offset the due process violation. . . ." He claims that the instruction did not require the jury to make a finding adverse to the People because of the failure to preserve evidence, but simply told the jury that it could consider that failure on whether the second motorcycle headlight was on at the time of the accident. Even worse, he argues, the instruction also cautioned that neither side was required to produce all objects or documents mentioned or suggested by the evidence. "Inserting th[is] misleading principle from CALJIC 2.11 into a Trombetta remedial instruction tells a jury to give no weight at all to the fact that the prosecution's agents lost important evidence. It is an aggravating instruction that compounds the unfairness to the defendant." We reject appellant's argument for multiple reasons.
First, appellant's argument is constructed on the faulty premise that there was a due process violation that required mitigation. As we discussed in part IF, ante, we find no constitutional violation in the failure to preserve evidence here. Thus, the trial court was not obligated to give any instruction on that point. (People v. Farnam (2002) 28 Cal.4th 107, 167 [an instruction need not be given where, as here, no bad faith failure to preserve the evidence was shown].)
Second, we find nothing in the ameliorative instruction that was contrary to law. It accurately stated that there is no obligation on a party to produce all objects or documents referenced in the evidence and that the jury could consider the failure to preserve evidence on the issues to which the evidence was related. This statement highlighted for the jury the police failures to preserve key evidence.
Finally, it is the general rule that '"[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language."' (People v. Hart (1999) 20 Cal.4th 546, 622; People v. Gonzalez (2002) 99 Cal.App.4th 475, 483.) The instruction here was correct in law. After an off-the-record discussion, the trial court stated that the parties had reached an agreement on the wording of CALJIC No. 2.11. No objection to that comment was made by either of the parties. The failure of counsel to indicate that they still had an objection to CALJIC No. 2.11 forfeited a challenge to it.
II. Instructional errors
A. CALJIC NO. 3.41 was erroneous
1. Background
The evidence at trial raised the question of whether the motorcycle's headlights were on at the time of the accident. If they were not on, then, as Officer Haxton testified, Rivas's operation of the motorcycle at night without the headlights on was a crime. If the lights were off, a reasonably prudent driver might not see the motorcycle.
Appellant tried this case on two theories; (1) that he was not impaired by alcohol, and (2) he did not violate Vehicle Code section 21801 because a reasonably prudent driver might not see the motorcycle and therefore the statutory violation was not the proximate cause of death or injury. (People v. Schumacher (1961) 194 Cal.App.2d 335, 338.)
Subdivision (a) of Vehicle Code section 21801 provides: "The driver of a vehicle intending to turn to the left or to complete a U-turn upon a highway, or to turn left into public or private property, or an alley, shall yield the right-of-way to all vehicles approaching from the opposite direction which are close enough to constitute a hazard at any time during the turning movement, and shall continue to yield the right-of-way to the approaching vehicles until the left turn or U-turn can be made with reasonable safety."
The trial court instructed the jury in accordance with CALJIC No. 3.41, as follows: "There may be more than one cause of the death of a person. When the conduct of two or more individuals contributes concurrently as a cause of the death of a person, the conduct of each is a cause of that person's death if that conduct was also a substantial factor contributing to the result. A cause is concurrent if it was operative at the moment of a person's death and acted with another cause to produce that person's death. [^] If you find that the conduct of Defendant, Trenton Henderson, was a cause of the death of Luis Rivas, then it is no defense that the conduct of some other person, even the deceased, contributed to that person's death."
Defense counsel expressed discomfort with CALJIC No. 3.41, claiming that the last sentence was "very absolute." It indicated that if appellant was a cause of death, it was no defense that some other person, such as the victim, contributed to the death, completely taking away the driving-without-a-headlight defense. The trial court disagreed.
2. Contention
Appellant contends that CALJIC No. 3.41, as given, misstated the elements of proximate causation. He argues that it allowed the jury to find him to be the cause of Rivas's death solely because appellant's vehicle struck the motorcycle, without finding that he violated Vehicle Code section 21801. He argues that CALJIC No. 3.41 should have been modified to read, "If you find that the violation of section 21801 by [appellant] was a cause of the death of Luis Rivas, then it is no defense that the conduct of some other person, even the deceased, contributed to that person's death." This contention lacks merit.
3. Adequacy of instructions considered in their entirety
"'"[A] single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge."'" (People v. Frye (1998) 18 Cal.4th 894, 957], disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) "An instruction can only be found to be ambiguous or misleading if, in the context of the entire charge, there is a reasonable likelihood that the jury misconstrued or misapplied its words." (People v. Campos (2007) 156 Cal.App.4th 1228, 1237.)
In claiming that CALJIC No. 3.41 allows the jury to find appellant to be the cause of Rivas's death "solely because Mr. Henderson's vehicle struck the motorcycle, without finding a violation of section 21801," appellant ignores these fundamental principles. When the instructions are considered as a whole, it is clear that appellant's construction is not likely to have been adopted by the jury.
In addition to CALJIC No. 3.41, the trial court instructed the jury on the elements of felony driving under the influence causing injury (Veh. Code, § 23153, subd.(a)) in accordance with CALJIC No. 12.60, which states that, "In order to prove [a violation of section 23153, subdivision (a)], each of the following elements must be proved: [¶] 1. A person drove a vehicle while under the influence of any alcoholic beverage; [¶] 2. That person concurrently committed an unlawful act in violation of Vehicle Code Section 21801(a); and [¶] 3. The failure to perform the duty imposed by law was a cause of bodily injury to a person other than the driver of the vehicle'" (CALJIC No. 12.60, italics added; People v. Verlinde (2002) 100 Cal.App.4th 1146, 1159-1160.) We presume that the jury followed the instructions given. (See, e.g., People v. Horton (1995) 11 Cal.4th 1068, 1121.)
Thus, contrary to appellant's claim, the jury was instructed that he could not be convicted of violating Vehicle Code section 23153, subdivision (a) unless it found that he violated Vehicle Code section 21801 (right-of-way statute) and that that violation was a cause of the bodily injury. CALJIC No. 3.41 does not contradict this requirement. Reasonably construed together, CALJIC Nos. 3.41 and 12.60 are complimentary. They collectively provide that to convict appellant of violating Vehicle Code section 23153, subdivision (a), the prosecution must prove that he violated the right-of-way statute (Veh. Code, § 21801), the violation caused the bodily injury, and, if there was more than one cause of death, appellant was still criminally culpable if his unlawful left turn was a "substantial factor" contributing in the result. (CALJIC No. 3.41.)
B. Failure to instruct on reasonably-prudent-driver defense
1. Background
At trial, appellant relied upon the defense that he did not see the motorcycle because its lights were off, which he claims is a defense to a Vehicle Code section 21801 violation, which in turn is a defense to Vehicle Code section 23153, subdivision (a), felony driving under the influence causing death or bodily injury.
2. Contention
Appellant contends that the instructions failed to inform the jury of the defense that a reasonably prudent driver would not have seen the motorcycle. He argues that Vehicle Code section 21801 which states that "[t]he driver of a vehicle intending to turn to the left upon a highway shall yield the right-of-way to all vehicles approaching from the opposite direction which are close enough to constitute a hazard . . ." and the instruction based upon it "contain no mental state and appear on their face to describe a strict liability offense." "The jury was left to guess at the requisite mental state for a right of way violation." This contention is without merit.
3. The offense of which appellant was convicted
Appellant argues that the jury was not instructed on the mens rea required for violating the right-of-way requirements in Vehicle Code section 21801. But that code section is not the offense of which appellant was convicted. He was convicted of driving under the influence causing injury in Vehicle Code section 23153, subdivision (a). The elements of that offense, as previously stated, are: "1. A person drove a vehicle while under the influence of any alcoholic beverage; [¶] 2. That person concurrently committed an unlawful act in violation of Vehicle Code Section 21801(a); and [¶] 3. The failure to
perform the duty imposed by law was a cause of bodily injury to a person other than the driver of the vehicle'" (CALJIC No. 12.60, italics added; People v. Verlinde, supra, 100 Cal.App.4th at pp. 1159-1160.) Violation of Vehicle Code section 21801 is not the offense but is merely an element of the offense.
4. Duty to instruct
In criminal cases, "'"even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case."'" (People v. Breverman (1998) 19 Cal.4th 142, 154, quoting People v. St. Martin (1970) 1 Cal.3d 524, 531.) "'The duty to instruct, sua sponte, on general principles closely and openly connected with the facts before the court also encompasses an obligation to instruct on defenses. . . .'" (People v. Lopez (1992) 11 Cal.App.4th 1115, 1120) and "every theory of the case supported by substantial evidence, including defenses that are not inconsistent with the defendant's theory of the case." (People v. Montoya (1994) 7 Cal.4th 1027, 1047; People v. Breverman, supra, at p. 157.)
"But '"when a defendant presents evidence to attempt to negate or rebut the prosecution's proof of an element of the offense, a defendant is not presenting a special defense invoking sua sponte instructional duties. While a court may well have a duty to give a 'pinpoint' instruction relating such evidence to the elements of the offense and to the jury's duty to acquit if the evidence produces a reasonable doubt, such 'pinpoint' instructions are not required to be given sua sponte and must be given only upon request."'" (People v. Anderson (2011) 51 Cal.4th 989, 996-997.)
"[E]vidence 'proffered in an attempt to raise a doubt on an element of a crime which the prosecution must prove beyond a reasonable doubt' may, but only upon request, justify the giving of a pinpoint instruction that 'does not involve a "general principle of law" as that term is used in the cases that have imposed a sua sponte duty of instruction on the trial court.' [Citation.] 'Such instructions relate particular facts to a legal issue in the case or "pinpoint" the crux of a defendant's case, such as mistaken identification or alibi. [Citation.] They are required to be given upon request when there is evidence supportive of the theory, but they are not required to be given sua sponte.' [Citation.]" (People v. Jennings (2010) 50 Cal.4th 616, 674-675.)
Because a violation of the right-of-way statute was merely an element of a Vehicle Code section 23153, subdivision (a) felony violation, driving while under the influence and causing injury or death, appellant's defense was simply an effort to raise a doubt as to that element. As such, if appellant wanted a pinpoint instruction on that point, a request was required. The record fails to indicate that such a request was made. Hence, the trial court had no obligation to instruct sua sponte on appellant's defense.
The instruction on Vehicle Code section 21801 that was given in the language of the statute and was proper. "'The language of a statute defining a crime or defense is generally an appropriate and desirable basis for an instruction, and is ordinarily sufficient when the defendant fails to request amplification. If the jury would have no difficulty in understanding the statute without guidance, the court need do no more than instruct in statutory language.'" (People v. Estrada (1995) 11 Cal.4th 568, 574.)
See footnote 9, ante.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
___________________________, J.
ASHMANN-GERST
We concur:
___________________________, P. J.
BOREN
___________________________, J.
CHAVEZ