Filed 9/10/14

                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FOURTH APPELLATE DISTRICT

                                      DIVISION THREE


THE PEOPLE,

    Plaintiff and Appellant,                          G048425

        v.                                            (Super. Ct. No. 12NF3284)

DANIEL ALVAREZ, JR., et al.,                          OPINION

    Defendants and Respondents.



                  Appeal from an order of the Superior Court of Orange County, Steven D.
Bromberg, Judge. Affirmed as to Defendants and Respondents Daniel Alvarez, Jr., and
Michael Abel Cisneros. Reversed as to Defendant and Respondent Juan Jose Renteria.
                  Tony Raukauckas, District Attorney and Anna M. Chinowth, Deputy
District Attorney for Plaintiff and Appellant.
                  Susan S. Bauguess, under appointment by the Court of Appeal, for
Defendant and Respondent Daniel Alvarez, Jr.
                  Valerie G. Wass, under appointment by the Court of Appeal, for Defendant
and Respondent Juan Jose Renteria.
                  Jean Matulis, under appointment by the Court of Appeal, for Defendant and
Respondent Michael Abel Cisneros.
              This is an appeal by the Orange County District Attorney following a
dismissal of robbery charges against defendants Daniel Alvarez, Jr., Juan Jose Renteria,
and Michael Abel Cisneros. The defendants brought a motion to dismiss the case based
primarily on California v. Trombetta (1984) 467 U.S. 479 (Trombetta), arguing the
prosecution and the police had failed to preserve evidence from two police controlled
cameras in the vicinity of the robbery.
              The trial court determined on the night of the incident in question, one of
the defendants, Cisneros, specifically asked the senior officer on the scene, a detective, to
check any relevant video. The detective replied, “If I had video cameras of what took
place, that’s part of my job. My job is not to arrest people that aren’t guilty of
something.” Yet the detective later admitted he had never reviewed the video himself,
nor asked anyone else to do so. He asserted it was not his responsibility.
              The court also found the issue of retaining video was raised during a
hearing shortly after the defendants’ arrest, giving the prosecution notice the defense
wanted to review any available video evidence. Given these facts, and the others we
discuss below, the trial court granted the defendants’ motion to dismiss. We conclude the
court correctly dismissed the cases of defendants Cisneros and Alvarez, but substantial
evidence does not support the court’s factual findings as to Renteria. We therefore affirm
as to Cisneros and Alvarez and reverse as to Renteria.
                                              I
                        FACTS AND PROCEDURAL HISTORY
              On October 15, 2012, a felony complaint was filed alleging the defendants
had violated Penal Code sections 211 and 212.5, subdivision (a), which included
allegations of prior convictions as to Cisneros.1 All three defendants pled not guilty.

1 On October 23, an amended complaint was filed alleging Cisneros committed six prior
serious and violent felony convictions under Penal Code section 667, subdivisions (d),
(e)(2)(A), and section 1170.12, subdivisions (b) and (c)(2)(A). One prior serious felony


                                              2
A. Initial Hearing
              The preliminary hearing was apparently initially scheduled for October 16,
2012. On that date, there was a request by the prosecution to trail the hearing until
October 29. During the hearing, the issue of subpoenas for private video from the
surrounding areas was raised by Cisneros’s counsel. Subpoenas for video had been
served on two nearby private establishments, but nobody appeared on behalf of either.
Counsel requested bench warrants. The court declined to issue warrants, indicating there
might be a notice problem. Counsel then requested an order that any video be preserved.
              The prosecutor interjected at that point and stated, “I informed [Cisneros’s
counsel] that we are willing to comply with PC [1054.1]. And in regards to the videos,
we had already requested those be held. [¶] I’m opposed to any kind of warrant going out
at this point in time, and the People are already in the process of obtaining the videos. [¶]
I think that’s the appropriate way to go about getting the evidence. [¶] At this point in
time, there’s no possibility that they are going to be destroyed. We’re within 30 days.”
The court indicated that given the notice problem, the defense’s request for bench
warrants could not be granted in any event.


B. Evidence from the Preliminary Hearing
              The preliminary hearing was held on October 29. According to the
evidence given at the hearing, at about 1:30 in the morning of October 14, 2012, Jose C.
and a companion2 left an establishment called Revolucíon in Fullerton.3 As Jose C.



under Penal Code section 667, subdivision (a)(1) was also alleged. A minor amendment
by interlineation, striking certain language, was subsequently approved by the court.

2 Jose C.’s companion is unidentified in the record and was described by police as
“uncooperative,” and “belligerent.” He interfered with the police as they were attempting
to take a report.


                                              3
walked through the parking lot, he was approached by approximately “five male Hispanic
gang types.” According to Jose C., Renteria then snatched a gold chain, worth about
$3,200, from around his neck. Renteria and his codefendants made threatening
statements, asking Jose C. what he was going to do about it. All three defendants said
they were “from the neighborhood.” Jose C. felt that due to the number of individuals
present and threatening him, he would be assaulted if he tried to retrieve his property.
              After the chain was taken, Jose C. followed the robbers, eventually flagging
down a marked police vehicle. Jose C. thereafter spoke to Officers MacShane and
Haynes of the Fullerton Police Department (FPD). Chris Wren, a detective with the gang
unit, also responded. Jose C. pointed out the three defendants, who were by that point
being detained nearby, to Wren. A search of the area resulted in the recovery of the gold
chain about 50 feet away. Wren did not know if nearby establishments had video
cameras, and he did not take any steps to secure the video. At the conclusion of the
preliminary hearing, the defendants were held to answer.


C. The Trombetta Motion and Hearing
              On December 24, Cisneros filed a motion to dismiss pursuant to Trombetta.
He argued the police department possessed evidence that would have exonerated him and
Alvarez, but the police allowed the evidence to be destroyed. The motion alleged that at
the scene, after all three defendants had been detained, “Officer MacSh[a]ne had a
“lengthy conversation” with Jose C. repeatedly asked Jose C. “several different ways”

3 As best we can tell from the exhibits and testimony, this incident took place in a
shopping area with businesses on three sides, adjacent to the respective streets, and a
reasonably large parking lot in the middle. The streets are Malden to the west, Wilshire
to the north, Harbor to the east and W. Amerige to the south. The businesses border the
streets except for W. Amerige, and the parking area is in the center, bordering W.
Amerige. Revolucíon is closest to Harbor, and Back Alley Bar, which is referenced
several times, is closest to Wilshire. There is a pedestrian walkway between the block of
buildings closest to Wilshire and the buildings closest to Harbor.


                                             4
whether “Mr. CISNEROS and Mr. ALVAREZ . . . ‘backed up’ Mr. RENTERIA . . . until
Jose C. implicated Mr. CISNEROS and Mr. ALVAREZ in the robbery of Jose C.”
               The motion also asserted that after his arrest, Cisneros “once again denied
any involvement in the incident, and pleaded with Officer Wren to get the videos,”
apparently referring to video from surrounding cameras. “[T]hose videos would show
that Mr. CISNEROS and Mr. ALVAREZ had no involvement in the theft of the
necklace.” The motion stated that Wren replied, “if I had video cameras of what took
place, that’s part of my job. My job is not to arrest people that aren’t guilty of
something.”4
               The motion further alleged the FPD maintained at least two cameras that
covered the crime scene, and although the defendants were taken to the FPD, the
investigating officers failed to review or preserve the camera data. Cisneros argued the
failure to preserve the camera recordings violated both Trombetta and Brady v. Maryland
(1963) 373 U.S. 83, 87 (Brady).
               In opposition, the prosecution argued Cisneros had not shown the evidence
actually existed, or had been lost or destroyed in bad faith. Cisneros had not, the
prosecutor argued, produced admissible evidence to show that any cameras maintained
by the FPD covered the relevant area. The prosecution asserted it was unaware that any
videos had ever existed, and if they did, whether they had been destroyed. Even if they
had, negligence did not require dismissal. Alvarez and Renteria moved to join Cisneros’s
motion without opposition.
               In April 2013, the court began an evidentiary hearing on the motion. Gary
Sirin, a detective in the FPD’s high-tech crimes unit, maintained and controlled cameras
located in Fullerton. He testified that at the time of the incident in this case, the FPD had


4As we will discuss shortly, this claim is supported by a partial transcript from Wren’s
personal recording device.


                                              5
nine cameras in the downtown area, which recorded to a server located at city hall. The
areas where the cameras were located were “high-concern areas” for potential crime.
One of the cameras was placed in the parking lot where the robbery occurred. The
camera system was used pursuant to a written policy by the FPD, and the cameras
generally retained their footage for two to two and one-half weeks.
              The cameras were accessible to the FPD at all times, but not always
monitored. Both the watch commander and dispatch had viewing stations, so if an officer
in the field needed to inquire about an event, dispatch could inform the officer if the area
was covered by a camera. The cameras could be moved and zoomed manually, though
they did on occasion malfunction and move on their own. Sometimes if a camera was
moved, it would not always be moved back to its original location. It is therefore
possible for something to occur but not be caught by a camera because of where the
camera was pointed at the time. At times, the cameras did capture largely useless footage
of a dumpster or a tree.
              If an officer wanted to view camera footage, he or she could request to do
so via e-mail or phone. Officers were typically aware that footage was only available for
a fairly short amount of time. Sirin did not receive a request from any of the officers
involved to view footage related to the instant case. By the time he received a request
from Cisneros’s attorney, the footage had been deleted. The request was most likely
made within just a few days of the time the footage had been overwritten. Sirin provided
footage to Cisneros’s attorney demonstrating the general coverage of the cameras, two of
which included coverage of the parking lot where the robbery had occurred behind the
Back Alley Bar.
              Officer MacShane was one of the officers on the scene the night of the
robbery. Jose C. told him the incident had occurred in the parking lot behind the Back
Alley Bar. MacShane was somewhat familiar with the video surveillance system. He



                                             6
was aware of the cameras in the vicinity of the incident, and he knew he could request
video from the watch commander or dispatch. He did not recall Cisneros asking him to
review video of the robbery, and he was not sure if he had requested video of the
incident, although he thought he had. He did not reference any such request in his report,
which is something he would typically do. He did not know if the cameras were pointed
in a direction that would have helped with his investigation on that particular night.
              FPD Sergeant Robert James, who was watch commander on the night in
question, testified in a manner largely similar to Sirin with regard to the general use of
the cameras. Generally, the FPD tried to focus the cameras on “the most fruitful areas.”
As relevant here, James testified there were two cameras pertinent to this incident. One
of them was generally focused on a pedestrian area to the east of the Back Alley Bar,
closer to the buildings near Harbor. The FPD refers to this area as “the triangle” due to
its shape. Another camera is located on the south side of W. Amerige, and the police try
to keep it focused on a north/south pedestrian crossing on W. Amerige. What is covered
at any particular time is variable, but that is where the FPD generally tried to focus the
cameras. He did not know exactly where the cameras were pointed on the night in
question.
              Wren testified next. With respect to where the robbery took place, Jose C.
told him it was the east side of the parking lot. He acknowledged he did not take any
steps to review video from the scene, either private footage or FPD footage. He initially
did not recall Cisneros asking him to pull the video from the cameras, although it would
not surprise him if someone had said that. When confronted with the recording of the
exchange, he recognized his voice on the recording where Cisneros specifically asked
him to do so. The tape of this exchange, edited as relevant here, was played in court:
              “[Cisneros]: You guys know we didn’t do anything, man.




                                              7
              “[Wren]: No, we don’t know. You know why we don’t know? ‘Cause
none of us were there.
              “[Cisneros]: Check the cameras, dude! There’s gotta be cameras around
here, man.
              [¶] . . . [¶]
              “[Wren]: I’m telling you right now. If I had video cameras of what took
place, that’s part of my job. My job is not to arrest people that aren’t guilty of
something. . . .”
              Cisneros continued repeating he had not done anything. Wren testified
when he responded to Cisneros it was his responsibility to retrieve video if it existed, he
was referring to the agency as a whole, and not himself in particular. He was not the
investigating officer in the case, but merely went to the scene to assist. It would have
been the robbery detective eventually assigned to the case who would be responsible for
reviewing any relevant video. Wren stated that with “the completion of the [police]
report itself [the case] gets assigned to an investigating detective. That in and of itself is
a request to check for video.”


D. Argument and Ruling
              At the conclusion of the hearing, the court discussed the case at length with
counsel before ruling. The court began by noting the duty to retain material is narrower
than the duty to disclose. If the unretained evidence is believed, based on “common
sense and information in front of us . . . to play a significant role in the defendant’s case,”
then Trombetta is relevant. Unlike a failure to disclose under Brady, the court noted,
under Trombetta, whether a failure to retain rises to the level of a due process violation
depends on whether the police and/or prosecution acted in good faith.
              The court characterized this case as follows: “This is a serious issue. There
is a lot at stake. We have three defendants. We have a Fullerton Police Department who


                                               8
appeared, at least, to have a major presence at the scene, interviewing witnesses, talking
to people and so on.” Shortly after the incident, Cisneros’s counsel appeared in another
courtroom, “asking for anything he can get that might accomplish securing the video
footage,” and at that point, the prosecutor informed the court that the People were certain
that no footage would be destroyed. The prosecutor pointed out that statement was in the
context of the private business footage Cisneros was seeking, but the court replied
“videos are videos . . . [let’s not] jump to any conclusions on anything yet.”
              Sirin, whom the court found very credible, had testified the area in question
was high crime. Sirin was familiar with the cameras and where they were. He testified
he did not receive a request for video from the night of the incident after the hearing
about the private cameras. That, the court said, was “not a good thing.” Moreover, the
court felt that some of the officers, including MacShane, “didn’t have a clue as to the
video policy.” Wren had initially testified he failed to recall if Cisneros had requested he
review any video; the transcribed recording revealed that he had. Thus, the court
believed two requests to maintain the video for review had been made — on the night of
the incident, and during the subsequent hearing. The court therefore concluded a
sufficient request to maintain the video was made.
              The court also discussed the evidence regarding the cameras and where
they were pointed, noting “There [are] a lot of moving parts to this while situation.” No
evidence had been produced that the cameras were pointed at the area where the robbery
occurred. But the court, analogizing to the instructions juries were given on similar
factual issues, said that courts instruct juries to use their “common sense and
reasonableness.” Therefore, “I think at that time . . . night, by a bar, in a high-crime-rate
area, it would be silly to assume . . . that the cameras were pointing at trees or the
ground.” The court felt this was a “red herring” issue.




                                              9
              Wren, the court noted, was the senior officer on the scene. He knew there
were cameras in the area. Cisneros specifically asked him to check the cameras. Wren
responded it was part of his job. “Well, if it’s part of his job, . . . why in the world isn’t
he at least making an inquiry of somebody? They have radios, they have communication,
we have cameras here.” The court did not know why Wren declined to immediately
investigate further. But nobody did. “I’m perplexed on this. I truly am perplexed on it.
And [Wren] goes out of his way to tell [Cisneros] . . . ‘Don’t worry. This is my
responsibility.’” On the witness stand, Wren said it was his agency’s responsibility. “He
acknowledged it. So no one is denying any of this stuff. [¶] Nobody directed anybody to
do anything.” The court believed it was likely that the prosecutor at the hearing in
October 2012 had actually made a request to the FPD to preserve video, but it had not
been acted upon.
              The prosecution’s position was the defense had failed to show the video
evidence would have been exculpatory. Cisneros’s counsel argued the video could have
been used to differentiate between different levels of culpability between the defendants.
The prosecution felt this case was different from one in which an identification was made
later; here, the identification was made at the scene, and the chain was found very close
to the defendants. Therefore, given the proximity, the officers could reasonably have felt
the video was less likely to be exculpatory. James, the watch commander, had testified
the FPD generally tried to focus the cameras on the “most fruitful areas” right behind the
bars adjacent to the parking lot where the robbery occurred. None of the witnesses had
personal knowledge regarding where the cameras were pointed on the night in question.
Therefore, the prosecutor argued, the defense had failed to prove the evidence actually
existed or that it was material.
              The court indicated there was evidence the cameras did work, and while
there was evidence they could at times be pointed toward irrelevant areas, “this goes into



                                               10
my good grief category of you have a bar, active, high-crime-rate area, gang area,
actually, to a degree also. . . . [T]his seems to be a very, very active area with police
activity. And I don’t even think it would be a leap of faith . . . to assume the cameras
were not pointing downward. [¶] I’ll be very candid, I find this entire case disturbing.”
With that, the court granted the motion and dismissed the charge as to all defendants.
                                              II
                                       DISCUSSION
A. Legal Background
              The prosecution’s duty to disclose and retain evidence stems from the due
process clause of the United States Constitution, as explained and interpreted by the three
leading United States Supreme Court decisions on this subject — Brady, supra, 373 U.S.
83; Trombetta, supra, 467 U.S. 479, and Arizona v. Youngblood (1988) 488 U.S. 51
(Youngblood).
              Brady is the leading case on the prosecution’s duty to disclose exculpatory
evidence. “[T]he suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material to either guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution.” (Brady,
supra, 373 U.S. at p. 87.) Such evidence must be disclosed if it is material, that is, if
there is a reasonable probability the evidence might have altered the outcome of the trial.
(United States v. Bagley (1985) 473 U.S. 667, 682.)
              The duty to retain, rather than simply disclose, potentially exculpatory
evidence is somewhat different. Trombetta concerned a driving under the influence case
involving two drivers. The Trombetta court found that although breath samples taken
from the defendant had not been preserved, the test results were nonetheless admissible.
The court rejected the defendant’s argument that the state had a duty to retain the samples
for a number of reasons. The police officers were acting in good faith and according to



                                              11
normal procedure, the chance the samples would have been exculpatory were slim, and
defendants had other means to prove their innocence. (Trombetta, supra, 467 U.S. at pp.
488-490.) “Whatever duty the Constitution imposes on the States to preserve evidence,
that duty must be limited to evidence that might be expected to play a significant role in
the suspect’s defense. To meet this standard of constitutional materiality, [citation],
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.” (Id. at pp. 488-489, fn.
omitted.)
              Youngblood, the most recent of the three cases, explains the requirements
for demonstrating a due process violation based on the failure to retain evidence under
somewhat different circumstances. Youngblood was a sexual assault case in which the
state had failed to properly preserve fluid samples from the victim’s clothing and body.
Unlike the situation in Trombetta, where the evidence was destroyed after all relevant
testing was complete, in Youngblood, only limited testing was initially performed to
determine whether sexual contact had indeed occurred. (Youngblood, supra, 488 U.S. at
p. 53.) By the time more rigorous testing was attempted, it was no longer possible,
because the victim’s clothing had been improperly refrigerated. (Id. at p. 54.) The
defendant’s principal argument was mistaken identity, and he argued that if the victim’s
clothing had been properly preserved, the physical evidence might have exonerated him.
(Ibid.) The defendant was found guilty, and ultimately, the Supreme Court upheld the
conviction.
              The court stated: “The Due Process Clause of the Fourteenth Amendment,
as interpreted in Brady, makes the good or bad faith of the State irrelevant when the State
fails to disclose to the defendant material exculpatory evidence. But we think the Due
Process Clause requires a different result when we deal with the failure of the State to



                                             12
preserve evidentiary material of which no more can be said than that it could have been
subjected to tests, the results of which might have exonerated the defendant.”
(Youngblood, supra, 488 U.S. at p. 57.) As explained in Trombetta, the court noted the
problematic nature of determining the materiality of permanently lost evidence. The
court also declined to impose on the police an absolute duty to retain and preserve
anything that might possibly have some significance. (Id. at p. 58.)
              Accordingly, “We think that requiring a defendant to show bad faith on the
part of the police both limits the extent of the police’s obligation to preserve evidence to
reasonable bounds and confines it to that class of cases where the interests of justice most
clearly require it, i.e., those cases in which the police themselves by their conduct
indicate that the evidence could form a basis for exonerating the defendant. We therefore
hold that 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, 488 U.S. at p. 58.) The court held that at worst, the conduct
of the police in Youngblood could at best be characterized as negligent. (Ibid.)
              Thus, there is a distinction between Trombetta’s “exculpatory value that
was apparent” criteria and the standard set forth in Youngblood for “potentially useful”
evidence. If the higher standard of apparent exculpatory value is met, the motion is
granted in the defendant’s favor. But if the best that can be said of the evidence is that it
was “potentially useful,” the defendant must also establish bad faith on the part of the
police or prosecution. (See Youngblood, supra, 488 U.S. at p. 58; Trombetta, supra, 467
U.S. at pp. 488-489.)
              The Supreme Court applied the Youngblood test again in Illinois v. Fisher
(2004) 540 U.S. 544. The evidence in question was a substance that had been tested four
times and had been determined to be cocaine. The defendant remained a fugitive for
more than 10 years, and by the time he was arrested and prosecuted, the evidence had



                                             13
been destroyed and could not be retested. “At most, respondent could hope that, had the
evidence been preserved, a fifth test conducted on the substance would have exonerated
him.” (Id. at p. 548.) “[T]he applicability of the bad-faith requirement in Youngblood
depended not on the centrality of the contested evidence to the prosecution’s case or the
defendant’s defense, but on the distinction between ‘material exculpatory’ evidence and
‘potentially useful’ evidence” and therefore Youngblood’s bad-faith requirement applies.
(Id. at p. 549.)
               The California Supreme Court summarized the requirement to retain
evidence and when the failure to do so violates due process as follows. The prosecution’s
“failure to retain evidence violates due process only when that evidence ‘might be
expected to play a significant role in the suspect’s defense,’ and has ‘exculpatory value
[that is] apparent before [it is] destroyed.’ [Citation.] In that regard, the mere
‘possibility’ that information in the prosecution’s possession may ultimately prove
exculpatory ‘is not enough to satisfy the standard of constitutional materiality.’
[Citation.] And whereas under Brady, supra, 373 U.S. 83, the good or bad faith of the
prosecution is irrelevant when it fails to disclose to the defendant material exculpatory
evidence [citation], a different standard applies when the prosecution fails to retain
evidence that is potentially useful to the defense. In the latter situation, there is no due
process violation unless the accused can show bad faith by the government. [Citation.]”
(City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 8.)
               We review the trial court’s decision on a Trombetta/Youngblood motion
under the substantial evidence standard. (People v. Montes (2014) 58 Cal.4th 809, 837;
People v. Memro (1995) 11 Cal.4th 786, 831.) “In assessing a claim of insufficiency of
evidence, the reviewing court’s task is to review the whole record in the light most
favorable to the judgment to determine whether it discloses substantial evidence—that is,
evidence that is reasonable, credible, and of solid value . . .” in support of the court’s



                                              14
decision. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) ‘“If the circumstances
reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a contrary finding does not
warrant a reversal of the judgment.”’ [Citations.]”’ [Citation.]” (Ibid.)
              Therefore, we adopt the following as our analytical approach. First, did the
destroyed evidence meet either the “exculpatory value that was apparent” or the
“potentially useful” standards for materiality under Trombetta or Youngblood,
respectively? (See Youngblood, supra, 488 U.S. at p. 58; Trombetta, supra, 467 U.S. at
pp. 488-489.) Second, if the evidence qualified as “potentially useful” under
Youngblood but did not meet the Trombetta standard, was the failure to retain it in bad
faith? (Youngblood, supra, 488 U.S. at p. 58.) Because they are differently situated, we
address Cisneros and Alavarez separately from Renteria.


B. Cisneros and Alvarez
              1. Materiality
              As we discussed above, Trombetta defines material evidence as that which
“might be expected to play a significant role in the suspect’s defense. To meet this
standard of constitutional materiality, [citation] 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, fn. omitted.)
Under Youngblood, the standard is whether the destroyed evidence, had it been subjected
to analysis, was “potentially useful” to defendants. (Youngblood, supra, 488 U.S. at
p. 58.)
              In his motion, Cisneros referred to MacShane’s conversation with Jose C.,
which he essentially characterized as repeated attempts by MacShane to encourage the



                                              15
victim to point the finger at he and Alvarez. In effect, Cisneros claimed he needed the
unblinking, neutral eye of the video cameras to counter the false notion MacShane
planted with Jose C. that Cisneros and Alvarez helped Renteria commit the robbery. The
videos therefore also would aid Cisneros by showing Wren mistakenly relied on Jose C.’s
false claim, suggested by MacShane, that Cisneros and Alvarez “made threatening
statements,” showing their intent to abet the offense. Cisneros practically begged Wren
to “Check the cameras, dude!” Cisneros claimed the video footage would show “we
didn’t do anything,” and “I didn’t even see it, man!” The FPD was thus given prompt
notice that Cisneros believed the video to be important evidence that could exculpate he
and Alvarez.
               We use the word “exculpate” rather than “exonerate” intentionally. As a
layperson, Cisneros may well have believed that if he was not the individual who
snatched the gold chain, he was in no legal jeopardy. That, of course, is not true —
Cisneros could still be liable as an aider and abettor, for example. But it is certainly
possible that the video would have demonstrated that Cisneros and/or Alvarez had some
lesser degree of culpability. Perhaps one or both of them was more appropriately charged
as an accessory. (Pen. Code, § 32.) Perhaps the video would demonstrate this was really
a theft (Pen. Code, § 487) rather than a robbery. Such facts would be relevant to the
punishment of the defendants, but particularly pertinent to Cisneros, who has six prior
strikes on his record. In a worst case scenario, he could have been facing a 25 to life
sentence if he were convicted of robbery, which might not be the case if he were found
guilty of a lesser charge. Evidence may be material if the evidence is relevant as to either
guilt or punishment. (See Brady, supra, 373 U.S. at p. 87.)
               The prosecutor’s primary contention is there is no guarantee the cameras
were pointing where they were supposed to be, and therefore neither the apparent
exculpatory value nor the potential usefulness of the video could be established. The



                                             16
court rejected this argument, and we find the court’s conclusion on this point was
supported by substantial evidence. FPD officers testified the cameras were located in
high-crime areas. The FPD tried to focus the cameras focused on “the most fruitful
areas.” One of those areas was the parking lot, where one of the cameras was stationed,
and another was directly across the street. Thus, the trial court’s inference that the police
would try to keep the cameras pointed where they would be the most useful was
reasonable in light of the evidence. Further, it was a reasonable inference from the
testimony that at least one of the cameras would have captured the incident.
              This case has similarities to U.S. v. Cooper (9th Cir. 1993) 983 F.2d 928
(Cooper). In that case, the defendants were charged with conspiracy to manufacture
methamphetamine. (Id. at p. 930.) After searching the premises, various pieces of
equipment were destroyed and put into large drums pursuant to Drug Enforcement
Agency policy. (Ibid.) The government was aware the drums would only be stored for a
short time before destruction. (Ibid.)
              The defendants contended they were engaged in lawful manufacturing
activity. (Cooper, supra, 983 F.2d at p. 929.) They argued the government’s destruction
of the entire lab deprived them of the ability to establish their defense. The government
offered no reasoning for its decision. Destruction of the evidence occurred after
government investigators knew the nature of the defense and after the defendants had
made several requests for return of the equipment. (Id. at p. 931.)
              “Agents involved in the search knew that the lab was ostensibly configured
to make [a legal chemical]. In conversations following the seizure, agents repeatedly
confronted claims that the equipment was specially configured for legitimate chemical
processes and was structurally incapable of methamphetamine manufacture. In response
to defense requests for return of the equipment, government agents stated that they held it




                                             17
as evidence. This statement was repeated even after the equipment had been destroyed.”
(Cooper, supra, 983 F.2d at p. 931.)
               The government did not challenge the defense’s argument regarding the
evidence’s materiality or the bad faith of the law enforcement officers, instead arguing
that comparable evidence was reasonably available. (Cooper, supra, 983 F.2d at p. 931.)
The court rejected this argument and upheld the dismissal of the indictment. (Id. at
p. 933.) “The defendants’ version of the facts, which was repeatedly relayed to
government agents, had at least a ring of credibility. They should not be made to suffer
because government agents discounted their version and, in bad faith, allowed its proof,
or its disproof, to be buried in a toxic waste dump.” (Ibid.)
               Similarly, here, the video had the potential to exonerate or considerably
reduce the culpability of Cisneros and Alvarez. The FPD and the prosecution knew video
existed and at least two requests were made to review or retain it. While we cannot say
the evidence, apparently destroyed before it was ever reviewed, meets the Trombetta
standard of possessing “exculpatory value that was apparent before the evidence was
destroyed” (Trombetta, supra, 467 U.S. at pp. 489) we can readily say the video meets
the standard set forth in Youngblood as “potentially useful” to the defendants.
(Youngblood, supra, 488 U.S. at p. 58.) We must therefore also examine whether this
case meets Youngblood’s bad faith requirement.
               2. Bad Faith
               If the evidence is “potentially useful” under Youngblood, we turn next to
the question of whether the government acted in bad faith. (Youngblood, supra, 488 U.S.
at p. 58.) We review the trial court’s finding on the existence or nonexistence of bad
faith under the substantial evidence standard. (People v. Velasco (2011) 194 Cal.App.4th
1258, 1262.)




                                             18
              The People suggest that at best, the FPD and prosecution were negligent.
The trial court found it very troubling that Sirin had never received a request for the video
from the night of the incident. The court found two requests for the video had been made
— one from Cisneros, and the other from counsel at the initial hearing. Despite the
request from Cisneros, Wren testified checking the cameras was not his job. The court
stated: “I’m perplexed on this. I truly am perplexed on it. And [Wren] goes out of his
way to tell [Cisneros] . . . ‘Don’t worry. This is my responsibility.’” On the witness
stand, Wren said it was his agency’s responsibility. “He acknowledged it. So no one is
denying any of this stuff. [¶] Nobody directed anybody to do anything.”
              In addition to Cisneros’s request on the night of the incident, defense
counsel raised the issue of obtaining video just a few days later, on October 16. Although
defense counsel was attempting to address the issue of video that might be obtained from
private businesses in the area, the prosecutor interjected herself: “I informed [Cisneros’
counsel] that we are willing to comply with PC [1054.1]. And in regards to the videos,
we had already requested those be held. [¶] . . . And the People are already in the process
of obtaining the videos. [¶] . . . [¶] At this point in time, there’s no possibility that they
are going to be destroyed. We’re within 30 days.”
              We suspect, for a number of reasons, the prosecutor was referring not to the
private video defense counsel was seeking, but the FPD video at issue here. But in any
event, the prosecution was put on clear notice that obtaining any video from the parking
lot was important to the defense.
              The court determined the FPD and the prosecution were well aware of the
potential usefulness of the video, and did nothing, despite their knowledge that the FPD’s
policy at the time was only to preserve video for a short period. If “the police themselves
by their conduct indicate that the evidence could form a basis for exonerating the
defendant” (Youngblood, supra, 488 U.S. at p. 58) and fail to preserve it, that shows bad



                                               19
faith. Both Wren, on the night of the incident, and the prosecutor, at the initial hearing,
acknowledged the potential usefulness of the video.
              The FPD’s conduct is as disturbing to us as it was to the trial court. When
asked by Cisneros to review the video, Wren told Cisneros that it was “part of [his] job.”
In court, however, he first failed to recall Cisneros asking him to watch any video of the
area. After his recollection was refreshed by the recording, Wren disclaimed all
responsibility to follow up on the video, and had no idea who the individual responsible
for doing so might be. When taken together with the prosecution’s statement at the initial
hearing that steps were being taken to preserve the video, this amounted to more than
mere negligence; the trial court concluded this was bad faith, and that finding is
supported by substantial evidence.


C. Renteria
              Unlike Cisneros and Alvarez, Renteria does not meet the standard of
demonstrating the destroyed evidence “possess[ed] an exculpatory value that was
apparent before the evidence was destroyed. . . .” (Trombetta, supra, 467 U.S. at pp.
488-489, fn. omitted) or the lesser standard under Youngblood that the destroyed
evidence was “potentially useful.” (Youngblood, supra, 488 U.S. at p. 58.)
              Renteria joined Cisneros’s motion, but he never supplemented it in any
fashion, and nothing in the motion suggested the videos held exculpatory value for him.
Renteria never filled this gap with his own foundation to support his joinder in the
motion. There was no basis to conclude that Cisneros’s statement at the scene that “we
didn’t do anything” included Renteria. The context Cisneros furnished in his motion
showed “we” meant Cisneros and Alvarez. Cisneros did not suggest Renteria was absent
from the scene or wrongly accused, but rather only that Cisneros and Alvarez did not aid
or abet the perpetrator. According to Cisneros, he and Alvarez had no involvement in the



                                             20
offense. Indeed, they “didn’t even see it,” and therefore the videos were essential to rebut
the contrary narrative allegedly planted by MacShane and recounted by Wren. But this
factual foundation to demonstrate exculpatory value or even potential usefulness did not
apply to Renteria.
              Thus, we cannot conclude there was substantial evidence to support the trial
court’s conclusion that the evidence held the necessary materiality as to Renteria (see
People v. Montes, supra, 58 Cal.4th at p. 837), and we need not consider the bad faith
issue as to this defendant. We therefore reverse the court’s order as to Renteria only.


D. Remedy for Cisneros and Alvarez
              At the very end of its brief, the People offer a one-paragraph argument
asserting dismissal was an inappropriate sanction. Only one case, which predates
Trombetta, is cited. (People v. Zamora (1980) 28 Cal.3d 88, 99.) The People did not
suggest any specific alternate sanction in the trial court and do not do so here. They
merely argue that dismissal goes too far.
              With respect to the proper remedy, courts have a large measure of
discretion in determining the appropriate sanction for failure to preserve material
evidence. (People v. Memro, supra, 11 Cal.4th at p. 831.) A dismissal on due process
grounds may be improper if a less drastic alternative is available that still protects the
defendant’s right to due process. (See U.S. v. Kearns (9th Cir. 1993) 5 F.3d 1251, 1254.)
Many cases have acknowledged the ability of courts to administer ameliorative jury
instructions. (See Youngblood, supra, 488 U.S. at p. 60 (conc. opn. of Stevens, J.);
People v. Montes, supra, 58 Cal.4th at p. 837.)
              There are few cases after Youngblood, however, where the bad faith
destruction of material exculpatory evidence warranted anything less than dismissal, and
dismissal is proper if less drastic alternatives are unavailable. (See U.S. v. Kearns, supra,



                                              21
5 F.3d at p. 1254.) For example, the Cooper court found that a proposed jury instruction
would pale in comparison to the potential value of the destroyed evidence. (Cooper,
supra, 938 F.2d at p. 932.) The destruction of the lab equipment itself deprived the
defendants the ability to establish their innocence, because experts could not determine
by viewing photographs whether or not the lab was constructed for methamphetamine
production. (Ibid; see also U.S. v. Bohl (10th Cir. 1994) 25 F.3d 904, 914 [bad faith
destruction of evidence required dismissal because the effect of destruction and dearth of
adequate secondary evidence violated the defendants’ due process rights].)
              Moreover, it is far from obvious what lesser remedy might come anywhere
close to addressing the FPD’s bad faith failure to retain material video evidence, and
perhaps this is why the prosecution never suggested one. In any event, we conclude,
given the weight of the authority on this point and the People’s failure to offer a viable
alternative sanction, the trial court did not abuse its discretion by dismissing the case.
              The importance of holding the police and the prosecution to their
obligations under Brady, Trombetta and Youngblood cannot be overstated. Police and
prosecutors are more than willing to avail themselves of technology when it is to their
advantage; there must be a level playing field that gives defendants equal access to the
same evidence. Equal and fair treatment in this respect is nothing less than the
foundation upon which due process is built.
              Judge Kozinski recently stated: “There is an epidemic of Brady violations
abroad in the land. Only judges can put a stop to it.” (U. S. v. Olsen (9th Cir. 2013) 737
F.3d 625, 626 (Kozinski, J., dis. from denial of rehg. en banc).) Perhaps the same is true
of Trombetta and Youngblood; what is so disturbing about unretained or destroyed




                                              22
evidence is that we can never truly know what was lost.5 While judges must act as
“quality control” to remedy constitutional errors, it is ultimately up to the police and
prosecutors to end the failure to retain evidence or its bad faith destruction.
                                              III
                                       DISPOSITION
              The court’s order is affirmed as to defendants Cisneros and Alvarez, and
reversed as to defendant Renteria.




                                                    MOORE, ACTING P. J.

WE CONCUR:



ARONSON, J.



THOMPSON, J.




5This is usually, but not always, true. The defendant in Youngblood, one of the key
cases on this issue, provides us with not only the pertinent law, but also a disturbing
cautionary note. Twelve years after the Supreme Court decided the case, the science had
sufficiently improved over time to permit testing of the evidence in the case. The
defendant was then exonerated due to the new DNA evidence. (See Whitaker, DNA
Frees Inmate Years After Justices Rejected Plea (Aug. 11, 2000) The New York Times,
<http://www.nytimes.com/2000/08/11/us/dna-frees-inmate-years-after-justices-rejected-
plea.html> (as of Sept. 4, 2014).)


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