IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)
May 17, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ANTHONY RICHARDO TURNER, DEFENDANT AND APPELLANT.
(Super. Ct. No. CRF094367)
The opinion of the court was delivered by: Hoch ,j.
P. v. Turner CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Following a jury trial, defendant Anthony Richardo Turner was convicted of transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) [undesignated statutory references are to the Health and Safety Code]) and possession of methamphetamine (§ 11377, subd. (a)). In a separate proceeding, the trial court sustained allegations defendant had three prior strike convictions (Pen. Code, § 667, subd. (e)(2)), a prior drug conviction (§ 11370.2, subd. (a)), and served seven prior prison terms (Pen. Code, § 667.5, subd. (b)). The trial court dismissed two of the strike priors, and sentenced defendant to 18 years in state prison.*fn1
On appeal, defendant contends the trial court erred in denying his Trombetta*fn2 motion. Finding no error, we affirm.
On patrol in the early morning of September 18, 2009, Woodland Police Department Officer Richard Rayls saw something moving in the dark. Officer Rayls activated his patrol car camera and lit the area; he saw defendant riding his bicycle on the sidewalk, east of Officer Rayls's location. He stopped defendant for not having rear red reflectors, riding on the sidewalk, and riding on the wrong side of the street.
Officer Rayls searched the area around the bicycle. A folded postcard with a baggie containing .14 grams of methamphetamine was found two feet from defendant's bicycle. A search of defendant's coat found an identification card application and a letter from the Department of Employment and Social Services. The letter contained defendant's personal information and had the same mailing address as the address on the postcard.
Photographs of the bicycle and video from Officer Rayls's patrol car camera were presented as evidence at trial. The parties stipulated that the bicycle was released by the police and sold at auction on November 5, 2009.
Defendant presented expert testimony that the fingerprinting procedure for the postcard was incorrect. The expert stated that he could find no reason why the bicycle was not kept as evidence.
Defendant contends the trial court should have granted his Trombetta motion because his bicycle was sold at auction, preventing it from being introduced at the hearing on his suppression motion. We disagree.
Officer Rayls was the only witness at the suppression motion held on January 11, 2010. He saw defendant riding a bicycle without rear reflectors or tire reflectors, going southbound on the east sidewalk of Cottonwood Street.
Officer Rayls knew the bicycle's lack of rear or tire reflectors violated the Vehicle Code, but he was unclear whether riding a bicycle on a sidewalk was a violation. He also knew the Vehicle Code required bicyclists to obey the same rules of the road as motor vehicles.
Officer Rayls did not take digital photographs of the bicycle at the scene. However, as his patrol car followed the bicycle before the stop, about 15 seconds of video was recorded. The bicycle was photographed by another officer at the Woodland Police Department receiving area. Asked if the photographs depicted the bicycle at issue, Officer Rayls replied: "I believe so, to the best of my ability."
Defendant argued at the suppression hearing that the initial stop was illegal. Finding there was probable cause to stop based on no reflectors on the rear of the bicycle, the trial court denied the suppression motion. (See Veh. Code, § 21201, subd. (d)(2).)
Defendant made a Trombetta motion on March 11, 2010. Defense counsel declared he had demanded the bicycle for the suppression hearing, and was promised the bicycle would be produced. The bicycle was not present at the suppression hearing, but defense counsel was told his investigator would get access to the bicycle at some point. The bicycle was booked into evidence on September 18, 2009, released for auction on November 5, 2009, and sold at auction.
Defense counsel did not believe the prosecutor knew the bicycle had been sold when he asked the prosecutor to produce the bicycle. Defense counsel argued the bicycle was key to his suppression motion, specifically as to whether the bicycle was missing a rear reflector, which counsel asserted was essential to the probable cause necessary for the stop.
The trial court denied the motion. It found the People did not act in bad faith in selling the bicycle, the exculpatory value of the bicycle was not apparent, and the photographs and video were alternate means to present the evidence concerning the bicycle.
"Law enforcement agencies have a duty to preserve evidence 'that might be expected to play a significant role in the suspect's defense.'" (People v. Hines (1997) 15 Cal.4th 997, 1042, quoting Trombetta, supra, 467 U.S. at p. 488 [81 L.Ed.2d at p. 422].) 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." (Trombetta, supra, 467 U.S. at p. 489 [81 L.Ed.2d at p. 422].) Further, "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." (Arizona v. Youngblood (1988) 488 U.S. 51, 58 [102 L.Ed.2d 281, 289].)
Defendant does not assert the bicycle was sold in bad faith. He contends that the bicycle was central to his claim of having rear reflectors, and that the bicycle in the photographs was not the one he rode. Arguing the lack of rear reflectors was the only reason for the stop, defendant concludes he would have prevailed on his suppression motion if the police had not sold the bicycle.
Defendant's argument assumes that his bicycle had rear reflectors, which is contradicted by Officer Rayls's testimony, as well as the photographs and the video. Defendant tries to address this weakness by noting some equivocation in Officer Rayls's verification of the photographs. However, even if we were to discount the photographs, this line of reasoning ignores both Officer Rayls's testimony and the video.
The exculpatory value of the bicycle is based on the supposition that defendant's account is correct, and that the considerable evidence to the contrary is wrong. At most, the bicycle was potentially useful evidence. Since defendant did not show bad faith by the People, it was not an abuse of discretion to deny the motion.
The judgment is affirmed.
We concur: BLEASE , Acting P. J. NICHOLSON J.