People v. Coles

Opinion

INTRODUCTION

A jury found Eric Jermaine Coles guilty of arson and attempted arson. He raises a number of challenges to his conviction and sentence on appeal and in a related habeas corpus petition. We deny the petition and affirm the judgment.

BACKGROUND

In December 2002 Priscilla Rosales lived with various family members including her mother, Rene Jones, and her sister, Kristina. Defendant was Priscilla’s boyfriend and lived in an abandoned car parked in the garage.

About 11:30 p.m. defendant came to the apartment asking for Priscilla. He looked odd and appeared to be drunk. As he stood at her door, Jones heard a loud gunshot or explosion. Alarms went off and people began leaving the building across the street. Jones later told the police that defendant said he had blown up a car. She also repeated defendant’s statement to her daughter Priscilla.

About 10 minutes after the explosion Priscilla spoke with defendant, who told her he had “just lit up” a car. Priscilla told police about the admission but subsequently denied it, asking to withdraw her statement. At trial she claimed not to remember defendant’s statement. Jones testified at trial that she had lied about defendant’s admission, but that she was “almost positive” he had set the fire. Priscilla testified that defendant smokes, carries matches, and had borrowed her lighter that night.

A surveillance video in the garage captured someone loitering near both a Ford and a Mercedes SUV. The tape shows that after a glow developed on the far side of the Ford, the loiterer departed. The glow brightened and debris burst from the Ford. Jones identified defendant as the person on the tape.

Defendant was arrested and interviewed. He told police he did not remember anything, but that if he had set the fire it was “because of the drinking, to satisfy Priscilla, and to get back at that person.” At the officer’s suggestion defendant wrote a letter of apology stating “I really wasn’t trying to hurt anyone. I’m sorry your car was damaged due to my actions. I would love to help with any damages.”

The Ford sustained substantial damage. In addition, a paper towel had been rolled up and shoved into the fuel neck of the Mercedes. The towel had been ignited, but the flame had gone out before causing any damage. A fire inspector concluded the fire had been intentionally set.

Defendant testified that he had a history of alcohol and mental health problems and explained that he drinks to keep from hearing voices. He had

People v. Angeles (1985) 172 Cal.App.3d 1203 [ 218 Cal.Rptr. 756 ] (Angeles), contains an extensive discussion of the constitutional and statutory requirements relating to the preservation of investigatory notes and other evidence. In Angeles, Justice Eagleson traced the evolution of the rules beginning with Killian, supra, 368 U.S. 231 forward to California v. Trombetta (1984) 467 U.S. 479 [ 81 L.Ed.2d 413 , 104 S.Ct. 2528 ] (Trombetta), and through the application of the Truth-in-Evidence provisions added to the California Constitution in 1982 by Proposition 8. Justice Eagleson adopted the analysis of People v. Tierce (1985) 165 Cal.App.3d 256 [ 211 Cal.Rptr. 325 ], explaining the Killian test for evaluating the legal effect of note destruction. Under Killian the court must make findings on three points: “ ‘(1) whether the notes were made for the purpose of transferring the data, (2) whether the agent acted in good faith in destroying the notes, and (3) whether the agent acted in accordance with the normal procedure of the governmental unit in so destroying the notes. The [Supreme] [C]ourt held the absence of at least one of those elements to be a necessary, but not a sufficient, condition for a new trial. In order to obtain that remedy, the defendant must also overcome the doctrine of harmless error and demonstrate that the particular destruction of evidence resulted in actual harm to the defense.’ (Note, The Right to Independent Testing: A New Hitch in the Preservation of Evidence Doctrine (1975) 75 Colum. L.Rev. 1355 , 1357, fns. omitted.)” (People v. Tierce, at p. 264.)

Justice Eagleson went on to explain the substantial burden a defendant must carry on appeal. “As we read Killian[, supra, 368 U.S. 231 ] .. . there is no deprivation of a federal due process right if destruction of the original notes complies with the tripartite test of Killian. Above and beyond that, with respect to the issue of ‘constitutional materiality,’ Trombetta places the burden on the defendant to show that the ‘evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and also be of such a nature that the defendant would be unable to obtain

Under these standards defendant’s challenge here fails. Officer Lisa Kleinheinz had interviewed Priscilla and witness Rosiceli Villarreal. She took notes on a small pad while doing so. Two or three hours later, she used the information from those “little jotted notes” to refresh her recollection when she wrote her report and summarized what witnesses had told her. It is standard procedure to destroy notes after preparing a written report. Officer Kleinheinz’s report encompassed everything that was in her notes. Officer Tim Murphy spoke to Priscilla, took notes, and put the noted information in his report. Everything in the notes was included in his report. He confirmed that it is standard procedure to destroy notes after the completion of a report. The general custom and practice, as well as the particular procedures followed by these two officers was inquired into during both direct and cross-examination. The uncontradicted testimony establishes that the requirements of Killian, supra, 368 U.S. 231 , Angeles, supra, 172 Cal.App.3d 1203 , and their progeny were met.

The notes were made by the officers to assist them in the accurate preparation of their official reports. The notes were subsequently destroyed in accordance with departmental policy. The destruction was done in good faith, which the Angeles court described in this context as: “the absence of malice and absence of design to seek an unconscionable advantage over the defendant.” (Angeles, supra, 172 Cal.App.3d at p. 1214.) The notes were destroyed before any charges were filed against defendant and no exculpatory value was apparent before their destruction.

Defendant notes that the 1990 enactment of Proposition 115 imposed a prosecutorial duty to disclose “[Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial. . . .” (§ 1054.1, subd. (f).) He goes on to argue that this enactment requires law enforcement officers to retain all investigatory notes. His position is not supported by applicable authority.

Nothing in the statutes expressly requires the preservation of interview notes before a criminal complaint has been filed. Section 1054.1 requires the prosecutor to disclose material or information only “if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it

The judgment is affirmed. The petition for habeas corpus is denied.

Parrilli, J., and Poliak, J., concurred.

Appellant’s petition for review by the Supreme Court was denied March 15, 2006, S140262. George, C. J., and Corrigan, J., did not participate therein.