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People v. Epps6/27/1986
uld be unable to obtain comparable evidence by other reasonably available means."
Both parties, at least impliedly, assume that either the Hitch standard is applicable or functionally identical to the federal standard and analyze the issue by applying both standards interchangeably. In appellant's view, the Trombetta test "incorporates the first two steps of the California analysis, stating them as a single requirement, and adds the requirement that the defendant have no reasonably available means to obtain equivalent evidence."
Neither party addresses the question of whether Hitch or Trombetta is the controlling law in California. It seems well settled that law enforcement agencies, prosecutors and courts have accepted the responsibility of safeguarding evidence from being lost to defense counsel. Hitch and its progeny have resulted in far greater care than ever before concerning the preservation of evidence. The real issue in these types of cases deals with the methodology of handling the evidence and sanctions, if any, to be imposed in cases where evidence is lost or made inaccessible. It is important to note here again that in the instant case defense counsel indicated and the court found that the loss of this evidence was not deliberate on the part of the prosecution.
Therefore, operating in an area where it is well settled and accepted that the state must at least reasonably attempt to safeguard evidence, we turn to an analysis of the controlling authority in situations such as this one where the evidence is lost or unavailable. The application of Hitch or Trombetta is critical to the resolution of this case. The California Supreme Court has stated " is apparent that the Trombetta formulation of the duty-to-preserve test differs substantially from our own Hitch standard." (In re Michael L. (1985) 39 Cal. 3d 81, 86 [216 Cal. Rptr. 140, 702 P.2d 222].) In People v. Tierce (1985) 165 Cal. App. 3d 256, at pages 262-263 [211 Cal. Rptr. 325], this court concluded that the truth-in-evidence provision (Cal. Const., art. I, § 28, adopted by initiative, Primary Elec. (June 8, 1982) as Prop. 8) mandates that "the due process issue and the materiality issue in the case now before us must be decided by virtue of the application of principles of federal law" and California v. Trombetta, supra, becomes the guiding precedent. This court must carefully approach the task of reaching
the ultimate conclusion whether Trombetta is the applicable law. Tierce seems to apply, with a broad brush, Proposition 8 to Hitch when it states: "In view of the mandate of California Constitution, article I, section 28, subdivision (d), both the due process issue and the materiality issue in the case now before us must be decided by virtue of the application of principles of federal law." (People v. Tierce, supra, 165 Cal. App. 3d at p. 263.) Two fundamental questions are posed by the reasoning in Tierce : (1) Are evidentiary rules of exclusion for violations of other than search and seizure provisions covered by Proposition 8, and (2) is Hitch decided on federal or state law?
The first question is far more complex than it initially appears. In Tierce, this court quoted from In re Lance W. (1985) 37 Cal. 3d 873 [210 Cal. Rptr. 631, 694 P.2d 744]: "What Proposition 8 does is to eliminate a judicially created remedy for violations of the search and seizure provisions of the federal or state Constitutions, through the exclusion of evidence so obtained, except to the extent that exclusion remains federa
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