>P. v.
Hotterknight





















Filed
2/4/13 P. v. Hotterknight CA5

















NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.







IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT


>

THE PEOPLE, Plaintiff and Respondent, v. DEREK JERMAINE HOTTERKNIGHT, Defendant and Appellant.

F063221 (Super. Ct. No. F10903459) >OPINION

APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Fresno
County. Rosendo Peña, Judge.

John
Hardesty, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
John W. Powell, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Derek Jermaine Hotterknight was
convicted of crimes arising out of a hit-and-run accident. Hotterknight’s sole href="http://www.fearnotlaw.com/">contention on appeal is that the court
erred in denying his pretrial Trombetta-Youngbloodhref="#_ftn1" name="_ftnref1" title="">^[1] motion based on the police’s failure to
preserve the vehicle he was allegedly driving at the time of the accident. We affirm the judgment.

FACTUAL BACKGROUNDhref="#_ftn2"
name="_ftnref2" title="">^[2]>

Around 1:00 a.m. on July 8,
2010, Deborah Harris was driving with her nephew on Shaw Avenue near Chestnut
Avenue in Fresno, when her vehicle was struck by another vehicle. The next thing Harris could remember was waking
up in the hospital three weeks later.
Harris sustained multiple
serious injuries and her nephew sustained comparatively minor
injuries.

Police
officers who responded to the accident scene observed Harris’s wrecked vehicle
on the sidewalk beneath a power pole.
All the lights were out and the area was dark. The vehicle that struck Harris’s vehicle was
found about 100 yards away. The vehicle
– a silver Chevrolet Tahoe with big chrome rims – was facing west in the
eastbound lane. No one was in the Tahoe
when the police arrived. The driver’s
side airbag was deployed and there was fresh blood on it.

Both physical evidence and witness
accounts connected Hotterknight to the Tahoe and indicated he was driving the
vehicle at the time of the collision.

Hotterknight’s DNA profile matched
the DNA profile of the blood on the airbag.


A police officer found
Hotterknight’s cell phone near the scene of the accident, and a private
security guard located Hotterknight on the grounds of a nearby apartment
complex.

Hotterknight’s wife, whom the
police officer contacted using Hotterknight’s cell phone, informed the officer
she was the owner of the Tahoe and that Hotterknight did not ask her permission
to drive it. When Hotterknight was later
taken to the hospital for a forced blood draw, an angry woman, whom police
assumed to be his wife, showed up in the parking lot and started yelling at
him. Hotterknight responded by saying
something like, “I have a Tahoe, I have a Lexus. I don’t know what the problem is if I wrecked
one of the cars, that’s what I have insurance for.”

Shortly before the accident
occurred, three security guards escorted a visibly intoxicated Hotterknight out
of Fajita Fiesta, a restaurant/night club on Shaw Avenue, after Hotterknight
reportedly grabbed the buttocks of a female bartender. The security guards testified to how
Hotterknight flashed money at them to try to get back inside the club and
became belligerent when they offered to get him a taxi.

Hotterknight got into a large SUV
and flipped off the security guards as he drove out of the parking lot. As Hotterknight drove out of the parking lot,
one of the security guards saw Hotterknight almost hit another vehicle that was
traveling east on Shaw Avenue. Within
five to ten minutes of Hotterknight leaving, all the lights went off on the
block, including those of Fajita Fiesta and the surrounding restaurants.

Two women testified they were
driving in a car eastbound on Shaw Avenue, when a large SUV pulled out of the
Fajita Fiesta parking lot and almost hit their car. The SUV was a Tahoe or Escalade with large
chrome or silver rims. After it almost
hit them, the SUV continued to drive erratically ahead of them.

Shortly after they lost sight of the
SUV, the women saw a big flash or spark.
Then all the power and lights went off on Shaw Avenue. They soon arrived at an accident scene and
saw a vehicle lying underneath a power pole.
Further up the road, they saw the SUV that almost hit them, facing the
wrong direction. Two males appeared to
be running away from the passenger side of the SUV.

Testing of blood drawn from
Hotterknight at 4:15 a.m. on the morning of the accident revealed a blood
alcohol level of .18 percent. At the
time of the accident, his blood alcohol level would have been between .22 and
.25 percent. In addition, Hotterknight
tested positive for methylenedioxymethamphetamine, also known as MDMA or
ecstasy.

PROCEDURAL BACKGROUND

On February
9, 2011, the district attorney filed a first amended information charging
Hotterknight with driving while having a blood alcohol content of .08 percent
or more and causing bodily injury (Veh. Code, § 23153, subd. (b); count 1),
driving under the influence and causing injury (Veh. Code, § 23153, subd. (a);
count 2), leaving the scene of an accident (Veh. Code, § 20001, subd. (a);
count 3), and misdemeanor battery (Pen. Code, § 242; count 4). In counts 1 and 2, the information alleged
that Hotterknight personally inflicted great bodily injury upon Deborah Kay
Harris (Pen. Code, § 12022.7, subd. (a)), and caused bodily injury to more
than one victim (Veh. Code, § 23558).
In count 1, the information further alleged that Hotterknight had a
blood alcohol content of .15 percent or higher (Veh. Code, § 23578). Additionally, the information alleged that
Hotterknight had been convicted of a serious or violent felony within the scope
of the three strikes law (Pen. Code, §§ 667, subds. (a)(1), (b)-(i), 1170.12,
subds. (a)-(d)) and that he had served a prior prison term (Pen. Code,
§ 667.5, subd. (b)).

On February
17, 2011, a jury found Hotterknight guilty of count 4. The jury was unable to reach a verdict and
the court declared a mistrial as to the remaining counts. The court subsequently set a tentative date
for a retrial.

On May 23,
2011, Hotterknight filed his Trombetta-Youngblood
motion. The court denied the motion
following an evidentiary hearing on
May 24, 2011.

On June 8,
2011, a jury found Hotterknight guilty as charged in counts 1, 2, and 3. Hotterknight waived his right to a court
trial and admitted the strike prior and prison prior. On August 30, 2011, the court sentenced him
to a total prison term of 12 years.

DISCUSSION

Hotterknight
argues the court committed reversible error by denying his pretrial >Trombetta-Youngblood motion based on the
police’s failure to preserve the Tahoe following the accident. We disagree.

>1. Background

On May 23, 2011, Hotterknight filed
a Trombetta-Youngblood motion to
dismiss the case or, alternatively, to “exclude any evidence gained from law
enforcement testing of the Chevy Tahoe.”
The motion argued:

“The exculpatory value of the Chevy Tahoe was apparent
when it was taken into custody of law enforcement. The bulk of the government’s case is based on
the random blood sample taken from the airbag in the Tahoe. Many other tests could have been done to
determine who was the driver of the Tahoe during the night in question.”

The motion asserted that the defense’s mechanical engineer,
who later testified at trial, could have conducted particular tests to
determine, among other things, whether the blood stain found on the driver’s
side airbag was placed there by “voluntary occupant motion … or from an involuntary
motion as a result of the collision itself” and whether the passenger’s side
airbag was malfunctioning at the time of the collision. The motion asserted such testing was
“especially critical” because the defense theory was that Hotterknight was seated
in the front passenger’s seat, but the passenger side airbag failed to deploy
due to a malfunction.

At the href="http://www.mcmillanlaw.com/">evidentiary hearing on May 24, 2011,
John DeCicco, the owner of Action Towing, testified he took custody of the
Tahoe on July 8, 2010, pursuant to a contract with the Fresno Police Department
to collect evidence in traffic collisions.
DeCicco observed that whoever filled out the electronic inventory
report, which the police department faxed to him, mistakenly marked the
“impound” box instead of the hit-and-run box.
However, DeCicco testified he did not treat evidence any differently
based on which box was marked but would go by what the officer told him. Also, it appeared one of DeCicco’s secretaries
handwrote “hit and run” on the report.

DeCicco
further testified that to release a vehicle in his custody, he needed a vehicle
release form from the police department.
In this case, the vehicle release form directed him to release the Tahoe
to Stacy Hotterknight as the registered owner.
The form thus authorized DeCicco to release the vehicle either to the
registered owner or her agent. He
recalled releasing the Tahoe to an insurance company.

DeCicco had the Tahoe in his
custody for six days, from July 8 to July 13, 2010. He testified that the length of time he keeps
vehicles for the police “varies.” “Some
of them are a year, some of them are ten years, some are a month, depending on
the case.”

Fresno
Police Officer Eric Kong testified he was dispatched to the traffic collision
on July 8, 2010, and was the primary officer for the call. Kong directed Officer Cheryl Montoya to
collect DNA swabs from the Tahoe. Kong
acknowledged that it was a near fatal car accident and he thought the evidence
in such a case would be extremely important, which was why he had Montoya take
DNA swabs from the vehicle.

Kong
further testified he generated the vehicle inventory report by entering
information in a computer at the scene of the collision, and instructed the tow
company to impound the Tahoe as evidence.
Kong handled the vehicle in accordance with the normal practices of the
police department.

Fresno
Police Detective Michael Rossi, who was assigned to investigate hit-and-run
cases at the time, testified he collected a DNA sample from Hotterknight
several months after the collision.

Rossi also confirmed that he was
the officer who authorized the release of the Tahoe from impound six days after
the collision. Rossi recalled that
either the insurance company or the registered owner, Stacy Hotterknight,
contacted him and requested the release of vehicle.

Rossi testified that in cases he
investigated, he typically did not keep impounded vehicles as evidence for very
long. He did not perform mechanical inspections
of vehicles involved in nonfatal traffic accidents such as this one. In fatal traffic accidents, the Collision
Reconstruction Unit (formally known as the MAIT team) takes possession of the
vehicles and they remain impounded for a much longer period of time because the
Unit conducts a more thorough investigation.
Had the vehicle in this case been treated as a Collision Reconstruction
Unit tow, Rossi would not have had the authority to release it.

Rossi handled the Tahoe in
accordance with the normal practices of the police department. In accordance with those practices, he made a
decision to release the vehicle after reviewing the case and determining “it
didn’t appear there was anything that I was going to be able to investigate
further by having the vehicle in impound.”


The court denied the >Trombetta motion, reasoning:

“[A]ll that has been shown here
is that it’s possible that the vehicle might contain exculpatory evidence if
further examined. There’s been no
showing that it[]s exculpatory nature was apparent before it was released. And in this case there’s been no showing of
bad faith. There was no showing that the
detective authorizing the release had animus towards Mr. Hotterknight or
towards this case. He testified that he
evaluated this case as he does all the other cases that he has handled, and
that he released it pursuant to his determination that further investigation
was not necessary, as he has done in many other cases.

“Court
finds no evidence that this was done in bad faith. In fact, the vehicle was released to the
defendant’s wife and/or her insurance company and was not otherwise
destroyed. Or there was nothing from
which the Court could infer that this was being destroyed or released for the
purpose of hiding exculpatory evidence.”


>2. Applicable Legal Principles

Law
enforcement agencies have a duty, under the due process clause of the
Fourteenth Amendment, to preserve evidence “that might be expected to play a
significant role in the suspect’s defense.”
(Trombetta, >supra, 467 U.S. 479, 488.) To fall within the scope of this duty, 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.” (Id.
at p. 489.)

The state’s responsibility is
further limited when the defendant’s challenge is based on the failure to
preserve potentially exculpatory
evidence—that is, “evidentiary material of which no more can be said than that >it could have been subjected to tests,
the result of which might have
exonerated the defendant.” (>Youngblood, supra, 488 U.S. 51, 57, italics added.) “[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.” (Id.
at p. 58.)

“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, 488 U.S. at pp.
56-57, fn. *.) It is significant whether
the state knew the evidence could form a basis for exonerating the defendant
and failed to preserve it as part of a conscious effort to circumvent its
constitutional discovery obligation. (>Trombetta, supra, 467 U.S. at p.
488.) The negligent destruction of, or
failure to preserve, potentially exculpatory evidence, without evidence of bad
faith, will not give rise to a due process violation. (Youngblood,
supra, 488 U.S. at p. 58.)

“On review,
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.)

>3. Analysis

We agree with the trial court that
Hotterknight failed to show the Tahoe possessed apparent exculpatory value when
Detective Rossi authorized its release from impound.href="#_ftn3" name="_ftnref3" title="">^[3] Hotterknight argues that “[t]he only evidence
in existence to show that [he] was not behind the wheel was contained in the
Chevy Tahoe.” However, we simply do not
know whether additional evidence derived from the Tahoe necessarily would have
been exculpatory. It is speculative to
assume as much. We can just as easily
speculate that additional testing of the Tahoe would have provided further
proof that Hotterknight was the driver.

Thus, the Youngblood bad faith test applies because the unpreserved Tahoe was
merely “potentially useful evidence.” (>Youngblood, supra, 488 U.S. at p. 58.)
In Trombetta, the high court
found no constitutional violation where “the record contain[ed] no allegation
of official animus towards respondents or of a conscious effort to suppress
exculpatory evidence.” (>Trombetta, supra, 467 U.S. 479, 488.)
Similarly, here, there was no evidence that, in authorizing the release
of the Tahoe, Rossi intended to deprive Hotterknight of exculpatory evidence or
to otherwise harm him. Instead, Rossi’s
testimony established he followed standard police procedure in handling the
vehicle. Hotterknight’s suggestion that
bad faith may be imputed to Rossi because the standard procedure he followed in
this case was “deliberately biased against defense interests” is without either
evidentiary or legal support.
Hotterknight has failed to establish the court erred in denying his >Trombetta-Youngblood motion.

>DISPOSITION

The judgment is affirmed.





_____________________

Gomes, J.

WE CONCUR:





_____________________

Cornell, Acting P.J.





_____________________

Detjen, J.