P. v. Groth

Filed 10/21/08 P. v. Groth 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Fresno County. M. Bruce Smith, Judge.

Donn Ginoza, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

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Chad Allen Groth was convicted of driving with a blood alcohol level of .08 percent or more. On appeal, he argues that his constitutional right to due process of law was violated when, before his trial, the state laboratory destroyed the blood sample upon which the charge was based. We disagree. The sample had no apparent exculpatory value, and officials did not act in bad faith. The judgment is affirmed.

FACTUAL AND PROCEDURAL HISTORIES

Groth met Ashley Harper and her roommate Cory Airheart at a bar in Clovis on the night of February 7, 2006. Harper saw Groth drink six or seven shots of liquor and some beer during the evening. Harper was also drinking. She thought she had had too much to drink, so she asked Groth to give her and Airheart a ride home at about 1:00 or 1:30 on the morning of February 8. Harper and Airheart got in Groths white pickup truck and Groth drove to a Red Rocket gas station. While they were at the Red Rocket, Harper concluded that Groth also was too drunk to drive. She proposed to Airheart that they find another ride or walk home. Airheart agreed, although he believed Groth was driving normally. After getting out of the truck, Harper called 911 and reported Groth as a drunk driver.

At 1:50 a.m. on February 8, Clovis Police Officer Drew Mosher was dispatched to the Red Rocket on a report of a possibly intoxicated driver. He saw a white pickup truck in the parking lot. The driver moved the truck, got out, and argued with a person standing in the parking lot. Both people then turned toward the officer, appeared to spot him, and got in the truck, which moved to a parking space. As Officer Mosher got out of his patrol car, Groth climbed out of the truck. The officer approached and, detecting a strong smell of alcohol, asked Groth if he had been drinking. Groth denied it, but Mosher observed that his movements were slow, he was unsteady on his feet, and his speech was slurred. Groth refused to take any field sobriety tests. Concluding that Groth was probably intoxicated, Mosher arrested Groth and took him to a police station. There, Mosher explained that Groth was obligated to submit to a breath or blood test under Californias implied consent law, but Groth refused. When Officer Mosher began preparing a restraint chair for a forced blood draw, Groth relented and submitted to a blood test, stating that he continued to object.

A lab technician took the blood sample at 3:14 a.m., about an hour and 20 minutes after Officer Mosher received the dispatch. The sample was tested at a California Department of Justice laboratory and found to contain an alcohol level of .27 percent.

The district attorney filed an information charging Groth with driving under the influence of alcohol (Veh. Code,  23152, subd. (a)),^[1]driving with a blood alcohol level of .08 percent or more ( 23152, subd. (b)), and driving with a license suspended for driving under the influence ( 14601.2, subd. (a)). The information alleged pursuant to section 23578 that Groths blood alcohol level also was .15 percent or more. It further alleged that Groth had three prior convictions of violating section 23152, subdivision (b), and one prior conviction of violating section 14601.2. A jury trial began on May 17, 2007. While the trial was in progress, Groth entered a plea of guilty to the charge of driving with a license suspended for driving under the influence and admitted the prior convictions.

The jury found Groth not guilty of driving under the influence. It was unable to reach a verdict on the charge of driving with a blood alcohol level of .08 or more, upon which the court declared a mistrial.

The district attorney filed an amended information charging one count of driving with a blood alcohol level of .08 percent or higher ( 23152, subd. (b)) and again alleging that the level was .15 percent or higher ( 23578). The amended information also repeated the allegation that Groth had three prior convictions of violating section 23152, subdivision (b).

Before the second trial, Groth filed a motion to dismiss the charge. The motion alleged that, after the first trial, Groth obtained new counsel who requested, for the first time, that the blood sample be retested to confirm the alcohol-level finding and assure that the blood was really Groths. New counsel was informed, however, that the state destroyed the sample on May 3, 2007, before the first trial began. Groth argued that the sample was exculpatory and was destroyed in bad faith and, therefore, its destruction violated his right to due process of law. He requested that the charge be dismissed as a sanction or, alternatively, that the blood test results be excluded from evidence. In opposing the motion, the People explained that the California Department of Justice policy calls for retention of blood samples for one year in misdemeanor cases and three years in felony cases. They alleged that the department destroyed Groths sample because it mistakenly believed he was charged only with a misdemeanor. They argued that the sample, exhibiting an extraordinarily high blood alcohol content of .27 percent, had no exculpatory value; that there was no evidence of bad faith; and that the destruction of the sample was only negligent.

The court denied the motion. It agreed with the Peoples view that the blood sample had no exculpatory value. It ruled that the prosecution was negligent, but did not act in bad faith, in failing to ensure that the Department of Justice knew Groth was charged with a felony. It also stated that during trial it would allow the defense to question witnesses about the destruction of the sample and would consider giving the jury a curative instruction on the subject.

During the second trial, the state criminalist who tested the blood sample confirmed that the laboratory destroyed the sample on May 3, 2007, even though its policy required a sample in a felony case to be retained for three years. He testified that this happened because the envelope in which the sample was transmitted to the laboratory bore a notation that the charged offense was a misdemeanor.

In his closing argument in the second trial, defense counsels strategy was to attack Harpers credibility and claim the prosecution had not proved the blood sample was really Groths. He contended that the chain of custody of the sample was defective because testimony showed the notation FSD (referring to the Fresno Sheriffs Department) on a document that accompanied the samplea document intended to show the destination to which the sample was deliveredwas crossed out and DOJ (Department of Justice) written in just before trial. (A police department property and evidence technician testified that FSD was a clerical error and was first noticed and corrected just before trial.) Defense counsel also argued that a sample containing .27 percent blood alcohol could not have been Groths because a person with that much alcohol in his blood would have appeared more impaired than Officer Mosher said Groth appeared.

The jury in the second trial found Groth guilty as charged and found true the allegation that his blood alcohol level was .15 percent or more. The court sentenced him to three years in prison, the upper term, for the violation of section 23152, subdivision (b), plus one concurrent year for the violation of section 14601.2.

DISCUSSION

Groth argues that his constitutional right to due process of law was violated when the state laboratory destroyed the blood sample before trial and that therefore the trial court erred when it denied his motion to dismiss. Two cases, California v. Trombetta (1984) 467 U.S. 479 (Trombetta) and Arizona v. Youngblood (1988) 488 U.S. 51 (Youngblood), set out the standards for a federal due process violation caused by the prosecutions failure to preserve evidence. In Trombetta, the court held:

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 suspects 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.)

In Youngblood, the court stated 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 . (Youngblood, supra, 488 U.S. at p. 58.)

In California courts, the Trombetta and Youngblood standards are applied in tandem. If evidence has an exculpatory value that is apparent before the evidence is destroyed, the state has a duty to preserve it under Trombetta and violates this duty if it destroys the evidence even in good faith. But [t]he states responsibility is [more] limited when the evidence was merely potentially useful, as in Youngblood. In that situation, the state breaches its duty only if it destroys the evidence in bad faith. (People v. Beeler (1995) 9 Cal.4th 953, 976.) We review for substantial evidence the trial courts finding on the presence or absence of bad faith. (People v. Memro (1995) 11 Cal.4th 786, 831.)

The blood sample in this case had no apparent exculpatory value at the time it was destroyed. It was tested by standard methods and found to contain a level of blood alcohol more than three times the legal limit. Its only apparent value was incriminatory. Therefore there was no due process violation under Trombetta.

In fact, this case is very similar to Trombetta. There, the state did not preserve breath samples that had been subjected to Intoxilizer tests to determine that the defendants were legally drunk. (Trombetta, supra, 467 U.S. at pp. 481-483.) Here, the state did not preserve a blood sample that was tested using gas chromatography to determine that Groth was legally drunk. There, the record contain[ed] no allegation of official animus towards [the defendant] or of a conscious effort to suppress exculpatory evidence. (Id. at p. 488.) The record here also contains nothing of the kind. There, the chances [were] extremely low that preserved samples would have been exculpatory because the testing equipment and technique were known to be reliable; samples already found to contain incriminating alcohol levels were much more likely to provide inculpatory than exculpatory evidence. (Id. at p. 489.) Here, Groth has pointed to nothing that would impugn the reliability of the gas chromatography testing method that was used. He has attacked the chain of custody, but the evidence he relies on for the attacka notation crossed out and correctedis no basis for a reasonable doubt that the blood was his. Since there was no due process violation in Trombetta, it is difficult to see how there could be one here.

There has been no showing of bad faith on the part of the prosecution or other officials. The only evidence relevant to this point supported the trial courts finding that the destruction of the sample was only negligent: The state laboratory was mistakenly informed that this was a misdemeanor case and the prosecution never corrected the error. Therefore, there was also no due process violation under Youngblood.

A defendant might argue that the standards of Trombetta and Youngblood provide inadequate protection. After all, even if a blood sample appears incriminatory and its destruction is merely negligent, that destruction still deprives the defendant of a potential means of clearing himself and leaves him to depend on the honesty and competence of the government officials involved in testing it before it was destroyed. In Youngblood, the state failed to preserve semen samples and stained clothing which, with more testing, might have exonerated the defendant. (Youngblood, supra, 488 U.S. at pp. 53-55.) Despite the lack of bad faith, and although the evidence was not obviously exculpatory, Justice Blackmun, dissenting, thought the unavailability of the evidence resulted in an unfair trial and deprived the defendant of due process. (Id. at pp. 61-62 (dis. opn. of Blackmun, J.).) A Supreme Court majority rejected this view, however, and we, of course, are bound by its holding.

Groth argues that the record must be read as showing bad faith because a state policy required the sample to be retained for three years and this policy was violated.^[2] This argument has no merit. As we have said, a prosecution witness testified that the sample was destroyed because documentation accompanying it mistakenly stated that Groth was charged only with a misdemeanor. There was no evidence that this was anything but a negligent mistake. The burden of showing bad faith belonged to Groth. (Youngblood, supra, 488 U.S. at p. 58; People v. Memro, supra, 11 Cal.4th at p. 831.) He has not shown it.

Groth attempts to distinguish Youngblood by pointing out that, there, the prosecution did not rely on any of the evidence it failed to preserve, while here the People relied on the test results from the destroyed blood sample. (See Youngblood, supra, 488 U.S. at p. 56.) Nothing in the Youngblood opinion, however, supports the view that the bad-faith requirement should be set aside if the prosecution uses test results from the unpreserved evidence. To the contrary, the court held that the defendant must show bad faith when we deal with the failure of the State to 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. (Id. at p. 57.) That is the situation before us here.

Groth also argues that the existence of the states policy of retaining blood samples for three years in felony cases independently establishes a liberty interest protected by the due process provisions of the federal and state Constitutions. He says this means the violation of the policy is a due process violation even in the absence of bad faith. We disagree. True, nonconstitutional sources of law often give rise to liberty or property interests that are constitutionally protected by so-called procedural due process. (See, e.g., Hicks v. Oklahoma (1980) 447 U.S. 343, 346 [defendant deprived of due process rights under federal Constitution where state court failed to instruct sentencing jury on lesser sentence available under state law].) A state does not violate due process, however, every time it takes away an interest of this kind. A constitutional analysis is necessary to determine whether the way in which a person was deprived of the interest was unconstitutional. (See Mathews v. Eldridge (1976) 424 U.S. 319, 332-333, 334-335 [multifactor analysis determined whether disability benefits, which arose from statute but enjoyed constitutional protection under procedural due process, were terminated constitutionally or unconstitutionally].) Groth has not explained why a violation of the states evidence-retention policy arising from a good-faith mistakeand in a case where the evidence was not apparently exculpatorywould amount to a due process violation. Even if he is correct that the state procedure gives rise to a constitutionally protected liberty interest in preservation of evidence, there is no reason to think the standard for finding an unconstitutional deprivation of that interest would be anything other than the Trombetta-Youngblood standard.

Finally, Groth claims his due process rights were violated under the state Constitution even if they were not violated under the federal Constitution. The California Constitution provides no additional protection to a defendant under these circumstances. Prior to Trombetta, California cases afforded defendants greater due process protection in destruction-of-evidence cases. (See People v. Hitch (1974) 12 Cal.3d 641, 649, 652-653.) These cases were based on California courts interpretation of federal due process, however, and not on any independent state grounds. They did not survive Trombetta. (People v. Johnson (1989) 47 Cal.3d 1194, 1233.)

For all these reasons, we conclude that there was no due process violation when the state laboratory destroyed the blood sample. The trial court properly denied Groths motion to dismiss.

DISPOSITION

The judgment is affirmed.

_____________________

Wiseman, Acting P.J.

WE CONCUR:

_____________________

Levy, J.

_____________________

Dawson, J.

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^[1]Subsequent statutory references are to the Vehicle Code.

^[2]As quoted in a brief included in the appellate record, a policy manual of the Department of Justices Bureau of Forensic Services (BFS) states:

BFS will retain all felony evidence for a period of three years after which it will be returned to the submitting agency. All misdemeanor evidence will be retained by BFS for at least 12 months after which it will be destroyed unless we receive written notification to return the evidence.

Groth also cites section 23614, subdivision (b), which affords a defendant an opportunity to have a blood sample retained for later analysis.