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The People v. Adam Lance Bieneman

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE


December 23, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ADAM LANCE BIENEMAN, DEFENDANT AND APPELLANT.

(Alameda County Super. Ct. No. H38057)

The opinion of the court was delivered by: McGuiness, P.J.

P. v. Bieneman CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Adam Lance Bieneman (appellant) appeals from a judgment entered after a jury convicted him of assault with a firearm (Pen. Code, § 245, subd. (a)(2)*fn1 ), possession of a controlled substance (methamphetamine) with a firearm (Health & Saf. Code, § 11370.1, subd. (a)), and possession of a controlled substance (methamphetamine) (Health & Saf. Code, § 11377, subd. (a)). He contends: (1) his trial counsel was ineffective; (2) the trial court erred in denying his requests for a continuance of the trial; (3) the trial court erred in denying his motion for a new trial; and (4) the trial court violated his due process rights by denying his motion to dismiss the case on the ground the prosecution destroyed potentially exculpatory evidence. We reject the contentions and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A second amended information filed on March 27, 2007, charged appellant with shooting at an occupied motor vehicle (§ 246, count 1), assault with a firearm (§ 245, subd. (a)(2), count 2), possession of a controlled substance (methamphetamine) with a firearm (Health & Saf. Code, § 11370.1, subd. (a), count 3), and possession of a controlled substance (methamphetamine) (Health & Saf. Code, § 11377, subd. (a), count 4). The information further alleged as to counts 1 and 2 that appellant personally used a firearm (§ 12022.5, subd. (a)).

On Tuesday, October 14, 2008, the date set for a jury trial, defense counsel appeared in the master calendar department, Department 513, and orally requested a continuance on the ground he was unprepared for trial because he had failed to calendar it. He stated he had been in trial in another county and had not prepared for trial in this case "at all, or even known trial was due to begin until the prosecutor had called him over the weekend to ask if he was ready." He had not subpoenaed witnesses, prepared visual aids or prepared his client to testify, and was not prepared to cross-examine prosecution witnesses because he had not reviewed the preliminary hearing transcripts. He had also been unable to review the case file over the weekend because his assistant had the file and did not return it until that morning. The court noted the original complaint in the case was filed in December 2003. Defense counsel responded he had not been involved in the case until 2007 and that two of the three prior continuances were granted because the district attorney failed to provide required discovery. The court denied the motion and assigned the case to Department 511 for trial. Defense counsel asked if he could "re-present" his motion in the trial department, and the court responded, "Sure."

On October 15, defense counsel filed a written motion for a continuance in Department 511. He attached a declaration reiterating the statements he made in Department 513 and adding that he had never made such a significant calendaring error in the 39 years he had practiced law. He also declared he entered the case in 2007, "long after the preliminary hearings" had taken place. The judge in Department 511 (the trial judge) stated he had spoken with the judge in Department 513 and that "basically what I learned from him is, he denied the motion to continue . . . and assigned the case to trial." The trial judge stated he had read the motion and defense counsel's declaration but was not going to entertain the motion because the other judge had ruled on it in Department 513, "which is the appropriate place for a motion to continue the trial." Defense counsel explained he had made only an oral motion to continue in Department 513, then proceeded to argue the motion. The trial judge then stated, "Let me just outline for you what I think is a realistic schedule. I'm willing to take a break--well, number one, I'm willing to schedule the in limine motions regarding the defendant's statements for tomorrow morning. Bring in a jury panel Monday morning to commence jury selection. Basically, it ends up being a week's continuance at least. [¶] . . . [¶] It gives you time to work on the case. . . . I'm not entertaining a motion to continue, but what I am saying is, at least you're not getting jammed into . . . picking a jury this week that way, so what I'm going to do is pass it right now. . . . [¶] . . . [M]y . . . expectation is, we can deal with the motions in limine today, and we'll just take it one step at a time, but the plan is to bring a jury panel in Monday morning."

At a jury trial that commenced on Monday, October 20, 2008, Zachary Cummins testified that about 6:45 p.m. on December 28, 2003,*fn2 he was driving his Honda Civic from San Lorenzo to San Ramon when he saw a white Mazda or Camry ahead of him on Crow Canyon Road. They both made a right turn onto Norris Canyon Road and Cummins was about 30 or 40 yards behind. They were the only two cars on the road at the time and they were going slightly over the speed limit of 35 miles per hour. When the white car sped up, Cummins also sped up, but the white car then slowed down, forcing Cummins to "c[o]me up on him" and "have to brake suddenly." Cummins thought, "What's this guy doing?" Then, immediately before Cummins drove over a "bump" on the road with which he was familiar (because he drove the same road every day), he saw an arm come out of the window of the white car along with a "large" or "decent size" object. He then heard a sound--"pop, pop, or bang, bang"--that he, as an avid shooter and hunter, recognized as gun shots, and he saw a "muzzle flash." The shots came in rapid succession, "faster than a revolver," and the muzzle was pointed "kind of like he was pointing something at" the area where Cummins's car was. Cummins was familiar with firecrackers and did not believe the sounds came from firecrackers. What looked like two shell casings, but could have been rocks, bounced off the ground.

Cummins swerved to the right when he heard the shots but when the white car sped off, Cummins chased after it. He was concerned for his safety but "wanted to get this guy" because "it's people like that that give . . . gun owners bad names" and because "if he did it to me . . . I don't see why he wouldn't do it to somebody else." He followed the white car which, at that point, was going about 50 miles per hour. He stayed 50 to 60 yards behind because handguns "tend to drop at about 40 yards." When his cell phone reception returned, he called 911 and was transferred to the San Ramon Police Department. The dispatcher said, "this gentleman is armed, you need to keep your distance," but Cummins "just kind of disregarded what [the dispatcher] was saying" because "there's a million white cars out there" and he "didn't want to lose him." At some point, the white car went into a parking lot and slowed to almost a stop, made a right turn onto Executive Parkway, then crossed Iron Horse Trail. It slowed down to approximately five miles per hour after going past Iron Horse Trail, then sped up again. Eventually, on Bollinger Canyon Road, the white car stopped at a stop light and a police car arrived. The dispatcher told him to leave the scene and return to the Fire Department where the police would take his statement. When Cummins made a U-turn, he saw the driver being taken out of the white car. In court, he identified appellant as the driver of the white car. Cummins testified he spoke to an officer who took his statement. He was "pretty shaken up" but answered the officer's questions. He estimated he followed the white car for approximately 15 minutes after the shots went off and that he lost sight of it just once for three or four seconds. After he finished speaking to the officer, he went to his parents' house to pick up his snowboard, got on the freeway, and spent the next two days at Lake Tahoe. On his way home two days later, he stopped on Norris Canyon Road and walked around, out of curiosity, to see if he could see any shell casings, even though he knew "it would be a needle in a haystack." He did not find any shell casings.

On cross-examination, Cummins testified he did not see a passenger in the white car and did not see appellant throw anything out of the car at any point after the shots went off. He testified the man in the white car looked "skinnier" than how appellant appeared in court. He testified the shell casings did not hit his car and there was no damage to his car. He testified he thought the gun was a 9 millimeter or .45 caliber gun because he did not think anyone would carry a .22 caliber pistol for protection because it "doesn't do damage really." He acknowledged he testified at the preliminary hearing that he believed it was a 9 millimeter or .45 caliber gun because "you're not going to get a [.]22 to have a muzzle fire like that." On redirect examination, Cummins testified that in his experience with firearms, muzzle flashes from a 9 millimeter and a .22 caliber pistol are "somewhat" similar.

Contra Costa County Deputy Sheriff Leah Stabio testified that at approximately 6:42 p.m. on December 28, 2003, she was working on a contract basis as a San Ramon police officer when she received a call that "possible shots" were fired from a moving car and the victim was following the suspect's car. As she searched for the cars, she received a call that the suspect had been stopped on Bollinger Canyon Road. She went to the scene and assisted with the stop as the suspects were handcuffed and placed in patrol cars. She then went to a different location and interviewed Cummins, who "seemed scared" and was "jittery" but did not appear to be under the influence of alcohol or any drugs. Cummins described the events to her and was "positive" a gun had been used. When Stabio learned that no gun was found in the suspect's car, she went to the area where Cummins had told her the suspect car had "slowed almost to a stop," parked her car, and searched for the gun. At the base of a tree, she found a small, silver .22-caliber semi-automatic pistol inside a black nylon holster. The gun was found on the left-hand, driver's side of the vehicle. There was no trash, leaves or dirt on top of the gun and it was "clean to the touch." There was an eight-round magazine in the gun and there were six rounds inside, i.e., there were two bullets missing.

Dana Mendes testified she was engaged to appellant and they had a four-year-old son together. She recalled testifying before in the case and telling the district attorney at the time that she did not want to testify. At trial, she testified that at about 6:30 or 6:45 p.m. on December 28, 2003, she was in a white Mazda that appellant was driving. They were driving home to San Ramon after having dinner in Hayward and were near Norris Canyon Road in Castro Valley. She had had a couple of glasses of wine and appellant had not had any alcohol. At some point, they were driving on Norris Canyon Road when a car came up behind them at a fast rate of speed and "started tailgating [them] all the way through the road." Mendes looked at the side mirror and saw the car, a green Honda, come within approximately six inches of their car. The driver was wearing a beanie and it appeared there were a total of four people in the car, although she later learned that what she saw was one person and a lot of snowboard equipment. Appellant sped up a little but the Honda stayed six inches behind. She was scared and a little nervous because he was driving so closely on a dark road but she did not call the police because she did not have a cell phone or it was turned off, and appellant did not own a cell phone.*fn3 Appellant pulled over to the side to the let the Honda pass, but the Honda pulled to the side behind them, then continued to follow when they went back on the road. "Half way through the canyon maybe," she heard a loud noise that sounded like firecrackers.

Later, the police pulled them over at gunpoint and threw her to the ground, handcuffed her, and took her to the police station. She told a female police officer that she was looking in the rearview mirror but "[the police] kept insisting . . . I was a liar, I knew more, and they were going to put me in jail for being a coconspirator." She did not recall telling an officer that appellant was upset that they were being followed closely by another car, and did not remember saying she heard two loud bangs that sounded like gunfire. She did not recall telling an officer that when she asked appellant what the noise was, he told her it was not her concern, and she did not recall saying she did not "want to press the issue" because appellant could become verbally abusive. She also did not recall telling an officer that appellant put something in his waistband and that he slowed the car twice near a parking lot. She testified there were firecrackers in either the glove compartment or on the side of the door because she had received some from her Asian co-workers. She did not remember telling an officer that she knew appellant had a gun because she had seen it around her house, and that the gun was silver and "had a slide like the one that the officer had." She also did not remember telling an officer that appellant smoked methamphetamine that morning. She did not recall her testimony at the preliminary hearing, including testimony that she saw appellant make a hand movement after she heard the loud noise, or testimony that appellant drove into a parking lot. She testified she did not know whether appellant went to a firing range the day of the incident.

On cross-examination, Mendes acknowledged that defense counsel had set up several appointments with her to try to talk to her about the incident, but that she was too emotional and was unable to talk to him. She testified that on the day of the incident, appellant had an asthma attack and was wheezing while he was driving. She testified she ran into Cummins at the district attorney's office and asked him why he was tailgating them that night. Cummins responded he was late for a snowboarding competition.

San Ramon police officer John Gardenier testified that about 6:45 p.m., he received a call that two shots had been fired from a white Mazda towards a green Honda Civic. Based on information provided to him by dispatch, he went to Bollinger Canyon Road and Iron Horse Trail and saw two cars matching the descriptions. He pulled in behind the Honda and the Honda pulled to the right. As he did, Gardenier saw the white Mazda and ordered the occupants out at gunpoint and had them placed face down on the ground. He identified appellant in court as the person who was driving the white Mazda that day. When another officer handcuffed appellant, appellant said, "What are you doing? It was only firecrackers." Appellant and the female passenger were placed in separate police cars and Gardenier searched the white Mazda for weapons. He did not find a gun, firecrackers, or anything pertinent to his investigation.

Gardenier returned to his patrol car and told appellant he was being detained because someone alleged appellant had shot at him. Appellant responded he had not shot at anyone and had only thrown a couple of firecrackers because someone was following him too closely. Gardenier told appellant he was going to perform a test to on his hands to determine whether he had fired a gun. He then removed appellant from the car to conduct a more thorough search of his person. At that time, appellant commented he was concerned he would have gunshot residue on his hands because he had been to the shooting range the prior day. During the search of appellant's person, Gardenier found in appellant's pocket a white crystalline substance in a clear baggie that he believed, based on his training and experience, was a significant amount of methamphetamine. Appellant said, "That's not mine. I confiscated it from somebody." The substance was tested and determined to be a usable amount of methamphetamine. Gardenier then conducted a gunshot residue (GSR) test on appellant whereby a little piece of plastic with a very sticky side is used to "go up and down the person's hands, fingers and face, and whatever gunshot reside . . . sticks to that . . . [is] analyzed." He submitted the GSR sample and the jacket appellant had been wearing to "San Ramon evidence." Gardenier later learned a gun had been found and that it was not registered.

Gardenier further testified he spoke to Mendes at the police station. Based on what he knew at the time, including the fact that a gun had been found, he told Mendes he did not believe her statement that she did not see a gun. Mendes told Gardenier that appellant became angry when he felt someone was tailgating him on Crow Canyon Road near Norris Canyon Road. She said that while she was looking in the side view mirror, she heard two loud bangs that sounded like gunshots, then saw appellant "stick something in his waistband." She asked appellant what the noise was, and he told her to mind her own business. Appellant then drove through a parking lot and threw something out of the window. She had seen appellant with a gun at their home and the gun was silver and had a slide that looked similar to the gun Gardenier was carrying. She asked appellant where he got the gun and he told her to mind her own business. She said she "let it go" and did not "question it" further because appellant tends to become verbally abusive. Mendes also told Gardenier that appellant had smoked methamphetamine earlier that day.

On cross-examination, Gardenier testified he had not seen the GSR evidence and appellant's jacket since placing them into evidence. He later learned from the district attorney that the evidenced had been destroyed. Gardenier also clarified that Mendes did not say she saw appellant throw something out of the car, but that she saw him make a throwing motion and did not see anything being thrown out. Gardenier further testified that he did not record the interview with Mendes because there was no recording equipment in the interview room. He testified he could have gotten recording equipment from another place and that it was his mistake not to record the interview. He also testified he did not take notes as he spoke to Mendes but that he made a report of the interview that night, based on his memory. Gardenier testified he did not have appellant or Mendes tested to see if they were under the influence of a controlled substance because he saw "no obvious outward indications" that they were under the influence.

The parties stipulated that on August 4, 2005, the Alameda County crime lab received the gun found on the day of the incident and tested it for fingerprints. One fingerprint was found and did not match either appellant's or Mendes's fingerprints. Juan Gomez, a supervising criminalist for the Alameda County Sheriff's Office crime lab, examined the gun in court and testified there were not many good surfaces from which to recover usable fingerprints.

A property and evidence technician for the Alameda County Sheriff's office testified she collects and maintains evidence she receives from deputies. The parties stipulated that on August 8, 2005, the Alameda County Sheriff's Department's Property and Evidence section received a gun, magazine, bullets, a holster, a clear plastic baggie containing a crystal substance, various photographs, and GSR kits from appellant and Mendes, and that it destroyed the jacket, both GSR kits, and the holster on April 12, 2006, before any of those items were tested. The property technician testified these items were destroyed because she received a disposition stating the case had been dismissed. She later learned this was a mistake and that the case had not been dismissed. The other items were not destroyed because items are destroyed at different times based on categories such as "narcotics" or "guns."

San Ramon police department detective Sharlene Dinkins testified she was on duty on December 28, 2003, when she assisted Gardenier in conducting a felony car stop and detained Mendes in her patrol car. Mendes told Dinkins she did not want to get involved. She lowered her voice and said appellant has a temper. After being informed of her rights, Mendes told Dinkins she was the passenger in a car that was being driven by appellant. At about the point where Norris Canyon Road meets Crow Canyon Road, another car got behind them and appellant became upset that the car was following so closely. Mendes was watching the car in the rear passenger mirror when she heard two bangs that she thought were gunshots. She turned to appellant and asked him what that was, and he responded it was none of her concern. She saw appellant put something in his waistband. They continued through the canyon into San Ramon and slowed down twice around some parking areas. When they were in a parking area, appellant made a throwing motion out of the car, although Mendes did not see what it was.

The jury returned a guilty verdict on counts 2 (assault with a firearm), 3 (possession of methamphetamine with a firearm) and 4 (possession of methamphetamine) and a not guilty verdict on count 1 (shooting at an occupied motor vehicle). The jury also found true the allegation as to count 2 that appellant personally used a firearm. Appellant filed a motion for a new trial, which the trial court denied. The trial court sentenced appellant to seven years in state prison.

DISCUSSION

Ineffective Assistance of Counsel

Appellant contends defense counsel was ineffective because he failed to prepare for trial. We reject the contention.

"Establishing a claim of ineffective assistance of counsel requires the defendant to demonstrate (1) counsel's performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms and (2) counsel's deficient representation prejudiced the defendant, i.e., there is a 'reasonable probability' that, but for counsel's failings, defendant would have obtained a more favorable result." (People v. Dennis (1998) 17 Cal.4th 468, 540, citing Strickland v. Washington (1984) 466 U.S. 668, 687, 694, and In re Wilson (1992) 3 Cal.4th 945, 950.) A "court must indulge a 'strong presumption' that counsel's conduct falls within the wide range of reasonable professional assistance." (Bell v. Cone (2002) 535 U.S. 685, 702.) Further, the defendant bears the burden of establishing prejudice as a " ' "demonstrable reality." ' " (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.) Speculation as to the effect of counsel's alleged errors or omissions is insufficient to satisfy this burden. (Ibid.)

Appellant has not made the requisite showing. He asserts defense counsel "complete[ly] fail[ed] to prepare for trial." Counsel, however, was familiar with the case as he had been involved in it as early as 2007. Although he stated he did not realize until October 11 or 12, 2008, that a trial was scheduled to start on October 14, the trial did not actually commence until October 20. There is nothing in the record indicating counsel did not diligently prepare for trial between October 14 and 20. At trial, he competently raised objections, cross-examined witnesses--at times by referring to the transcript from the preliminary hearing--and argued the defense case to the jury. As the trial judge stated after having observed the trial, counsel's performance was "anything but" incompetent. (See People v. Fosselman (1983) 33 Cal.3d 572, 582 ["It is undeniable that trial judges are particularly well suited to observe courtroom performance and to rule on the adequacy of counsel in criminal cases tried before them"].)

Appellant suggests that counsel's performance was deficient because he did not prepare Mendes for her testimony, which "likely carried little weight with the jury because she was clearly flustered and distressed" and had "difficulty remembering the events . . . ." Counsel, however, attempted on several occasions to meet with Mendes about the incident but she was too emotional to even talk to him. There is nothing to suggest Mendes would have agreed to talk to counsel had he tried to meet with her specifically in preparation for trial, or that she would have become less "flustered and distressed" as a result of the meeting. Further, Mendes's "difficulty remembering the events" related almost entirely to the statements she had made to officers that incriminated appellant, and a meeting with counsel in which he would have reminded her of these statements would not have assisted appellant in his defense.

Appellant also asserts that counsel failed to prepare him to testify on his own behalf. He argues that "had [he] taken the stand and clearly and unambiguously expanded on his remarks . . . about the firecrackers, there is a 'probability sufficient to undermine confidence in the outcome' that the jurors would have concluded that there was, in fact, reasonable doubt as to whether the bangs were gunshots or firecrackers." There is evidence in the record, however, suggesting that appellant had trouble controlling himself and would not have been a good witness. During a pretrial hearing, defense counsel pointed out to the court that appellant "has [a] seventh grade education and . . . it takes a little time to talk with him," and that when counsel broached the topic of a plea bargain, appellant became "shocked and upset," believing counsel was "against him." At one point during that hearing, appellant interrupted the court and said, "I want to go home." After accusing the court of "sabotaging" him, appellant left the court without permission, although he later returned of his own volition. Appellant has failed to show that counsel's decision not to call him as a witness was not a tactical one. (See People v. Gurule (2002) 28 Cal.4th 557, 610-611 [appellant must show that counsel's alleged error was not attributable to a tactical decision that a reasonably competent defense attorney would make]; People v. Majors (1998) 18 Cal.4th 385, 403 [the record must affirmatively disclose that counsel lacked a rational tactical basis for the challenged act].)

Moreover, even if defense counsel's performance had fallen below an objective standard of reasonableness, it did not prejudice appellant, as there was no "reasonable probability" that, but for defense counsel's "failings," appellant would have obtained a more favorable result. There was ample evidence from which a jury could determine that appellant shot a gun out of the car window and that he possessed methamphetamine with a firearm. The victim, who was very familiar with guns and also familiar with firecrackers, testified he recognized the sounds he heard that evening as gunshots. He testified he saw a "muzzle flash" and thought he also saw shell casings. There was evidence Mendes told the police appellant was upset or angry they were being tailgated, she heard sounds she thought were gunshots, and saw appellant put something in his waistband, slow down near a parking lot and make a throwing motion with his hand. Mendes also told the police that she had seen a silver gun at the home she shared with appellant. A silver gun was found in the area that the victim indicated appellant had slowed down. During a search of appellant's person, police found a usable amount of methamphetamine in appellant's pocket. Because appellant has failed to establish that defense counsel's performance was deficient and that he would have otherwise obtained a more favorable result, his claim of ineffective assistance of counsel fails.

Continuance

Appellant contends the trial court erred in denying his requests for a continuance of the trial. We reject the contention.

"Continuances shall be granted only upon a showing of good cause," (§ 1050, subd. (e)), and the trial court has broad discretion to grant or deny the request. (People v. Grant (1988) 45 Cal.3d 829, 844.) "In determining whether a denial was so arbitrary as to deny due process, the appellate court looks to the circumstances of each case and to the reasons presented for the request." (People v. Frye (1998) 18 Cal.4th 894, 1013, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) One factor to consider is whether a continuance would be useful. (People v. Beeler (1995) 9 Cal.4th 953, 1003 ["to demonstrate the usefulness of a continuance a party must show both the materiality of the evidence necessitating the continuance and that such evidence could be obtained within a reasonable time"].) The trial court must consider not only the benefit the moving party anticipates, but also the likelihood the benefit will result, the burden on other witnesses, jurors and the court, and whether substantial justice will be accomplished by granting a continuance. (People v. Laursen (1972) 8 Cal.3d 192, 204.) The burden is on the defendant to establish error. (People v. Beeler, supra, 9 Cal.4th at p. 1003.) " '[A]n order of denial is seldom successfully attacked.' [Citation.]" (Ibid.)

Here, appellant appears to concede there was no good cause, as he states that "neglecting to calendar the starting date of trial was a grievous error on [counsel's] part" and that " 'I forgot to write it down in my calendar' is the polar opposite of good cause . . . ." In any event, the record shows the court essentially granted a continuance by delaying the beginning of jury selection until the following week, stating, "Basically, it ends up being a week's continuance at least. [¶] . . . [¶] It gives you time to work on the case." Further, even if the court abused its discretion in denying the request for a continuance, appellant has failed to show he was prejudiced, as he was not provided with ineffective assistance of counsel and there was ample evidence from which a jury could convict him.

Motion for a New Trial

Appellant contends the trial court erred in denying his motion for a new trial. We disagree.

Appellant's motion for a new trial was based on his argument that he was not adequately represented at trial because of the court's denial of his requests for a continuance. The court denied the motion for a new trial, stating, ". . . I'll just make the observation that I've known Mr. Taylor [defense counsel] for a lot of years, and I know what kind of trial lawyer he is, and I know he sets the bar high for himself, and I appreciate that. But what Mr. Taylor might feel is not his best work, by many other people's standards, would be something to shoot for. [¶] I don't find--it doesn't appear to me that [appellant] was prejudiced by the denial of the motion to continue before trial, even if there was good cause, and . . . I believe that the motion to continue the trial was properly denied by [the judge in Department 513]." The court stated it had watched the "whole trial" and that counsel's performance was "anything but" "incompetent."

"Because a ruling on a motion for new trial rests so completely within the trial court's discretion, we will not disturb it on appeal absent " ' " 'a manifest and unmistakable abuse of discretion.' " ' " (People v. Earp (1999) 20 Cal.4th 826, 890.) In reviewing the denial of a motion for new trial on the ground of ineffective assistance of counsel, an appellate court defers to the lower court's factual findings, express and implied, if they are supported by substantial evidence. (People v. Taylor (1984) 162 Cal.App.3d 720, 724.) In light of our conclusion that appellant was not provided with ineffective assistance of counsel and that the court did not err in denying his requests for a continuance of the trial, we conclude the court also did not err in denying appellant's motion for a new trial.

Destruction of Evidence

On March 27, 2007, appellant filed a Hitch-Trombetta motion*fn4 seeking dismissal of the case as a sanction for the destruction of the GSR samples and his jacket. The court denied the motion, stating the destruction of the evidence was not intentional and that because appellant had told an officer that he was at a shooting range shortly before the incident took place, "even if there was gunshot residue found on his person that would not be definitive as to whether or not he was the actual shooter . . . ." Appellant contends the trial court violated his due process rights by denying his motion to dismiss. We disagree.

The state has the duty to preserve "evidence that might be expected to play a significant role in the suspect's defense," and its failure to do so deprives the suspect of his due process rights. (Trombetta, supra, 467 U.S. at pp. 485, 488.) The duty, however, "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 . . . 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.) The Supreme Court has expressed an "unwillingness to . . . impos[e] on the police an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution." (Arizona v. Youngblood (1988) 488 U.S. 51, 58.) The "possibility" that evidence "could have exculpated [the defendant] if preserved or tested is not enough to satisfy the standard of constitutional materiality in Trombetta." (Id. at p. 56, fn. *.) Thus, the state's failure to preserve potentially useful evidence does not deny the defendant his due process rights "unless [he] can show bad faith on the part of the police." (Id. at p. 58.)

The "presence of 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." (Arizona v. Youngblood, supra, 488 U.S. at p. 56, fn. *.) The destruction or loss of evidence that "can at worst be described as negligent" does not violate due process. (Id. at p. 58; see also People v. Ochoa (1998) 19 Cal.4th 353, 417.) 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.)

Here, the evidence that was destroyed was only potentially exculpatory because neither the GSR strips nor the jacket had been tested to determine whether there was any gunshot residue. Thus, the police had no knowledge whether the evidence had any exculpatory value. Further, the property technician's testimony that she destroyed the evidence based on incorrect information that the case had been dismissed shows the police acted negligently, and not in bad faith. Appellant contends that "the property clerk's decision to destroy an item of [his] personal property, rather than at least attempting to return it to him, constituted bad faith, irrespective of whether or not she knew the jacket to be exculpatory." He asserts that destruction of his personal property, i.e., the jacket, " 'certainly implies a malicious intent' " on the part of the People, while it is "a fair enough point as to the GSR kits" that they were destroyed because they " 'were the property of the People to preserve or destroy at the discretion of the People.' " He cites no authority, however, for the proposition that bad faith must be implied when the state destroys a defendant's personal property. Substantial evidence supports the trial court's implied finding that the destruction of evidence was not done in bad faith.*fn5

DISPOSITION

The judgment is affirmed.

We concur:

Siggins, J.

Jenkins, J.


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