Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS021768
Premo, J.
A jury convicted defendant Tony Juarez of second degree murder. On appeal, defendant contends that the trial court erred by refusing to give the jury his proffered instruction regarding the failure to maintain an exculpatory investigative report. We disagree and affirm the judgment.
FACTUAL BACKGROUND
In 1988, defendant’s wife, Stephanie Rodriguez, returned home from work and discovered the couple’s two-year-old son, Anthony, limp, in distress and defendant asleep, smelling of alcohol. She gathered Anthony, awoke defendant, and told defendant to drive to the hospital. On the way, Rodriguez asked what had happened and defendant replied that Anthony had fallen but was fine before going to sleep. Anthony died during surgery from a fractured skull. Monterey County Sheriff Investigators, Detectives Norman Snyder and Dave Ealy, and Monterey County Coroner Investigators, Deputy Sheriffs John DiCarlo and David English, responded to the hospital. The next day, Detective Snyder interviewed defendant at defendant’s home. Defendant told Detective Snyder that Anthony was standing on a patio railing and fell, hitting his head on concrete. Detective Snyder determined that the incident had occurred in Salinas, which was outside county jurisdiction. He then informed Salinas Police Detectives Lukenbill and Lambert, who indicated that the Salinas Police Department would undertake the investigation. At some point, Deputy DiCarlo received a Salinas Police Department report No. 88-102243 for the case. Ultimately, Salinas Police Detective Joe Gunter communicated to Deputy DiCarlo that Anthony’s death was accidental. Deputy DiCarlo wrote a coroner’s report that referenced the police department report number.
The report itself was not evidential. As to cause of death, coroner’s pathologist Dr. Hugh Wilson performed the autopsy and testified. In addition to “trauma at the back of the head,” Dr. Wilson saw oval-shaped bruises to the eyes that were consistent with grip marks and an elbow bruise, all having occurred within 24 hours of death. He also saw an older bruise on Anthony’s right arm and a healing rib fracture.
In 1989, defendant and Rodriguez became born again Christians and joined the Lighthouse Church. About three years later, defendant told Pastor Alfred Florez that he had killed Anthony. He thereafter told the same to Rodriguez and detailed that he had slammed Anthony against the wall.
In 1995, defendant and Rodriguez separated. Defendant then moved to Arkansas.
In 2002, Rodriguez told the Salinas Police Department what she knew about Anthony’s death. Police recorded telephone calls and an Arkansas motel-room conversation between defendant and Rodriguez.
At defendant’s first trial that ended in a mistrial, defendant testified that he had “tossed” Anthony against the crib rail in the bedroom, which caused Anthony to be “Knocked out.”
ISSUE BACKGROUND
Before trial, defendant filed a motion “for an evidentiary hearing as to whether a ‘Brady’ violation has occurred.” The motion informed that defendant had sought Salinas Police Department report No. 88-102243 but had been told that no such report existed. It wished “to determine whether such report ever existed and whether it still exists, and if once existed, and now non existent, the appropriate sanctions to be applied to the prosecution herein.”
At the hearing, the following occurred: Detective Gunter did not recall investigating Anthony’s death or discussing the matter with Deputy DiCarlo; he opined that, had he made an investigation, a report would have been generated. Deputy DiCarlo recalled conversing with Detective Gunter about Anthony’s death, being given the report No. 88-102243 by someone, and learning from Detective Gunter that the investigation into Anthony’s death “did not indicate [that] any crime [was] involved”; he related that there was no police report in the coroner’s file though he usually requested a copy. Salinas Police Department records manager Rachel Soratos affirmed that No. 88-102243 was consistent with the department’s numbering system, no report corresponded to that number, no report corresponded to other case-identifying information, and an accidental-death report could have been routinely purged but the department is required to retain all child abuse reports.
From this, defendant concluded that “certain sanctions are appropriate” short of dismissal and asked for leave to prepare a jury instruction. When the trial court asked defendant to explain the legal basis for sanctions, defendant replied “due process of law wherein there was actions taken by an agency and nothing was preserved.” The prosecutor assisted by offering that defendant’s point appeared to be “a Hitch/Trombetta/Youngblood motion, which involves destruction of evidence and that involves due process--the origin of the rule is due process--then there has to be some kind of malicious destruction.” He then explained that no such malicious destruction was shown because no police officer testified to having conducted an investigation and no witness testified to having been interrogated by the police about the case. He concluded that there was no evidence that “anyone ever wrote a report.” Defendant then offered: “I characterize this mainly as a Brady motion mainly because a police agency has a duty to write reports.” He urged that Deputy DiCarlo’s testimony showed that Detective Gunter made an investigation and determination. The trial court found that there was no evidence “that someone went in and found the report and then with some evil motive, destroyed it.” It then mused whether the authorities “that must be applied to the setting require, allow the Court to provide any kind of an instruction specific to that.” Defendant offered that the point was “going to require some thought,” and the trial court agreed to address the matter further during the trial.
At trial, Detective Gunter’s hearing testimony was read to the jury and Deputy DiCarlo testified consistently with his hearing testimony. Soratos testified and opined that police report No. 88-102243 never existed because it was not in the police computer system. She explained that, since her hearing testimony, she had performed research and determined that all police reports would be in the computer system, though hard copies might be purged. She added that it was common for a police report number to be generated without resulting in a written report. She gave an example where a police officer in the field “pulls a report number” while investigating a case but later “It turns out the case is nothing.” Salinas Police Detective Sheldon Bryan testified that a case number is oftentimes not used again after a police officer pulls a case number but does not write a report. He added that he had searched the police records after Rodriguez had first contacted him and discovered that police report No. 88-102243 “actually came back to something completely unrelated to [defendant’s] family.” He continued that, after this discovery, he had searched 100 case numbers before and after No. 88-102243, encompassing dates well before and after Anthony’s death, and found no police report relating to Anthony’s death.
Defendant argued that “a public record was apparently destroyed.” He also assumed the police had an official duty to prepare a police report and relied on Evidence Code section 664 (“It is presumed that official duty has been regularly performed”). He requested that the trial court give the jury the following special instruction: “You may consider the fact that no report was maintained of the initial investigation as evidence that the initial investigation in this matter determined the death of the child victim as accidental.” The prosecutor replied that there was never a report, ergo there was no bad faith destruction to trigger any remedy.
The trial court assumed that the police had an official duty to prepare a report. It then focused on Soratos’s testimony that there was no report and concluded that “the evidence that was presented refutes [the Evidence Code presumption] at least to some degree.” It refused to give defendant’s proposed instruction but observed that defendant was free to argue that the police generated a report, which concluded that Anthony’s death was accidental.
DISCUSSION
Defendant contends that the loss of the police report violated his state and federal rights to due process. He urges that the report should have been “provided under the due process requirement that all exculpatory evidence be provided to the defense.” He relies onBrady v. Maryland (1963) 373 U.S. 83 (Brady), California v. Trombetta (1984) 467 U.S. 479 (Trombetta), and Arizona v. Youngblood (1988) 488 U.S. 51, 58 (Youngblood). There is no merit to this claim.
First, defendant confuses his mix of authorities.
Brady held that a prosecutor’s failure to disclose favorable evidence to an accused “violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” (Brady, supra, 373 U.S. at p. 87.) To establish that the government’s failure to turn over evidence violates Brady, the defendant must demonstrate (1) the undisclosed evidence was favorable, either because it was exculpatory or impeaching; (2) the evidence was suppressed by the State, either willfully or inadvertently; and (3) the evidence was material to the defense. (See Strickler v. Greene (1999) 527 U.S. 263, 280-281; In re Brown (1998) 17 Cal.4th 873, 879.)
Here, defendant does not demonstrate the second element of a Brady claim. No evidence supports that the prosecution or anyone on the prosecution team had possession of the police report at issue and thereafter suppressed it. Even if one accepts that a police report for this case existed at one time, it is undisputed that (1) the report did not exist in 2002 when Detective Bryan began his investigation of this 1988 offense, and (2) there is no explanation for the report’s nonexistence. From this, one can reasonably infer that (1) the report was lost, or (2) Detective Gunter pulled the number but did not write a report. But one cannot reasonably infer that a report was suppressed. Defendant is simply speculating that the prosecution willfully or inadvertently suppressed the report. Such speculation cannot establish a Brady violation. (Cf. United States v. Spagnuolo (9th Cir. 1977) 549 F.2d 705, 713 [no undisclosed evidence existed]; U.S. v. Mitchell (7th Cir. 1999) 178 F.3d 904 [speculation not enough to show Brady violation]; United States v. Navarro (7th Cir. 1984) 737 F.2d 625, 631 [same]; U.S. v. Pou (8th Cir. 1992) 953 F.2d 363, 366-367 [same].)
Here, as below, defendant attempts to show Brady error when the facts reveal that the sought after evidence had been, at best (from defendant’s perspective), lost. Consequently the analysis falls squarely under Trombetta and Youngblood.
The failure to preserve, or the destruction of evidence by the prosecution, was specifically addressed in Trombetta and Youngblood. In Trombetta, the court held that the government has a duty under the United States Constitution to preserve evidence “that might be expected to play a significant role in the [defendant’s] defense.” To meet this standard, the evidence must “both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” (Trombetta, supra, 467 U.S. at pp. 488-489.) In Youngblood, the court added that, to show a denial of federal constitutional due process from the destruction of such evidence, the defendant must also show that the police acted in bad faith. (Youngblood, supra, 488 U.S. at p. 58.) Our Supreme Court has expressly adopted the holdings of Trombetta and Youngblood. (People v. Frye (1998) 18 Cal.4th 894, 942-943; People v. Zapien (1993) 4 Cal.4th 929, 964; People v. Cooper (1991) 53 Cal.3d 771, 810-811.)
“[A] trial court’s inquiry whether evidence was destroyed in good faith or bad faith is essentially factual: therefore, the proper standard of review is substantial evidence.” (People v. Memro (1995) 11 Cal.4th 786, 831.) Under this standard, “we must determine whether, viewing the evidence in the light most favorable to the superior court’s finding, there was substantial evidence to support its ruling.” (People v. Roybal (1998) 19 Cal.4th 481, 510.) The testimony of a single witness, even if he is a party to the case, may be sufficient. (Evid. Code, § 411.) We do not decide the credibility of witnesses, as that is the function of the trier of fact. (People v. French (1978) 77 Cal.App.3d 511, 523.)
Defendant’s Trombetta/Youngblood claim fails at the threshold because the evidence most favorable to the trial court’s ruling is that the police report never existed. This follows because (1) Soratos explained that assigned police report numbers do not necessarily mean that a police report was generated at all, and (2) Detective Bryan affirmed that the police report number thought to refer to a police report about this case referred instead to a report about another case and no other police reports near the time of the crime at issue corresponded to this case. Thus, the prosecution did not fail to preserve or destroy evidence. We recognize that the trial court did not explicitly find that the police report never existed. It found that Soratos’s testimony refuted the Evidence Code presumption that the police prepared a report “at least to some degree.” But, even if one accepts that the police prepared a report for this case, the uncontradicted evidence supports only that the report was lost. No evidence supports that the loss could be considered in bad faith. (People v. Ochoa (1998) 19 Cal.4th 353, 417 [negligent failure to preserve evidence does not violate due process].)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.