P. v. Hines CA2/8

Filed 7/15/13 P. v. Hines CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE OF THE STATE OF B242558 CALIFORNIA, (Los Angeles County Plaintiff and Respondent, Super. Ct. No. NA087602)

v.

WILLIE HINES,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Richard R. Romero, Judge. Affirmed.

Vaneessa Place, under appointment by the Court of Appeal, for Plaintiff and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Roberta L. Davis and Zee Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________

Willie Hines appeals from the judgment entered after he was convicted of residential robbery and various sexual assault charges. He contends that the trial court should have dismissed the case because his due process rights were violated by the prosecution’s loss or destruction of exculpatory evidence. We affirm the judgment because Hines waived the issue by not obtaining a ruling on his motion to dismiss and because the missing evidence was not exculpatory under the Trombetta and Youngblood line of cases.1

FACTS AND PROCEDURAL HISTORY

On the morning of March 3, 1998, a man brandishing a gun broke into R.M.’s Long Beach apartment as she slept and, after taking certain valuables from her at gunpoint, raped and orally copulated her. R.M. called 911 after the attacker left and was taken by sheriff’s deputies to a hospital, where a nurse performed a sexual assault examination that included collecting DNA samples with vaginal swabs. The nurse who performed the exam noted tearing in R.M.’s genital area that could have occurred during consensual intercourse but was more consistent with the blunt force trauma common to sexual assault. R.M. described her attacker as a young African-American who wore a mask and a black hoodie to conceal his face. She was able to recall his eyes, noting that the “whites” (sclera) were yellow. A few weeks after the attack, R.M. described the man to her neighbor, a professional artist, who made a sketch of the man based on that description. Vicky Ferguson lived less than one-fourth of a mile from R.M. After hearing about the attack, she called the sheriff’s department to tell them about an encounter she had that morning. Ferguson said she was unloading her van outside