California Court of Appeals, Fourth District, Third Division
Appeal from an order of the Superior Court of Orange County, No. 12NF3284 Steven D. Bromberg, Judge.
[Copyrighted Material Omitted]
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.
MOORE, ACTING P. J.
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 [81 L.Ed.2d 413, 104 S.Ct. 2528] (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 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 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.
FACTS AND PROCEDURAL HISTORY
On October 15, 2012, a felony complaint was filed alleging defendants had violated Penal Code sections 211 and 212.5, subdivision (a), which included allegations of prior convictions as to Cisneros. All three defendants pled not guilty.
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, about 1:30 in the morning of October 14, 2012,
Jose C. and a companion left an establishment called Revolucíon in Fullerton. As Jose C. 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, 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” 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.”
The motion further alleged the FPD maintained at least two cameras that covered the crime scene, and although 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 [10 L.Ed.2d 215, 83 S.Ct. 1194] (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 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 ...