[177]Opinion
HASTINGS, J. The defendant, George Dewberry, was charged with burglary (Pen. Code, § 459.) Dewberry’s motion to suppress the in-court identification of Gordon Stevenson, a witness, was granted on the basis that certain photographs shown to Stevenson by the policé were unavailable for trial, and the cause was dismissed pursuant to section 1385 of the Penal Code. The People now appeal pursuant to Penal Code section 1238, subdivision (a)(8).
The facts adduced at the hearing were as follows: When Gordon Stevenson returned home on October 20, 1972, at approximately 9 p.m., he noticed that there appeared to be more lights burning in the house than he had remembered when he left. As he entered the house, he saw that lights were on in the living room, the bedroom and the kitchen, and he immediately caught a “fleeting glimpse” of a man in the bedroom. As Stevenson walked in, this man looked up and then exited by way of the outside kitchen door. Stevenson testified that he saw this stranger for “about a second or two” in the bedroom, lost sight of him for a second, and then saw him again for “seven seconds” in the kitchen before the man left. Stevenson ran outside to the alley, but “it was too dark to see anybody moving.” He then went around to the parking area in front of his house and came “face to face” with the intruder. As this man was approaching an automobile from one side, Stevenson approached from the other side; however, as the man entered the vehicle, he was not able to get a good look at his face. Stevenson stated at the hearing that he “had no doubt in [his] mind that it was the same man that had left the house but if [he was asked] to detail it, his face, [he] couldn’t do that.”
Stevenson then called the police. He described the intruder to them as a black male in his late twenties or early thirties, approximately 6 feet tall and weighing about 180 pounds. Later that night, other officers showed him six to eight photographs, which, according to Stevenson, included black persons. Stevenson picked out the defendant’s photograph. However, he was “not sure at that time of [his] identification” because the sideburns in that particular photograph “looked a bit different.” Further, because of either the “angle” at which the picture was taken or the “lighting,” he felt that he would be prevented from making and would not like to make a positive identification from the photographs.
At the hearing, Stevenson positively identified defendant as the man he saw in his house. When asked if his identification of defendant was [178]based upon “the events you observed in your apartment on the night it was burglarized,” Stevenson replied that it was.
Officer Dawson testified that on October 20, 1972, he showed to Stevenson about seven black and white photographs, two of which were of the defendant; the other five were of different Negro men, all of whom were similar in appearance to the defendant; they were in their twenties and of approximately the same build; “[n]one were particularly thin or particularly fat and they all had medium and dark complexions as opposed to light or very light.”
After the defendant’s preliminary hearing, the officer returned the pictures to the detective bureau’s files for further reference. At the hearing to suppress evidence, he was able to produce only those photographs of the defendant.
Defendant Dewberry, testifying in his own behalf, stated that he is 6 feet, 2% inches tall and weighs 213 pounds. Further, he had been growing a beard since July 7, 1972, and that his beard was, at this hearing, the longest that it had ever been.
Defendant contends that under People v. Hitch (Cal.) 113 Cal.Rptr. 158 [520 P.2d 974],1 and Eleazer v. Superior Court, 1 Cal.3d 847 [83 Cal.Rptr. 586, 464 P.2d 42], due process requires production of any evidence when it is reasonably possible that such evidence could assist the defense. Consequently, the trial court properly ordered the identification testimony suppressed.
It is true that there is a certain analogy between cases such as the present one, involving the nonmalicious, destruction of evidence valuable to the defense, and the so-called “loss of informant” cases, such as Eleazer and People v. Goliday, 8 Cal.3d 771 [106 Cal.Rptr. 113, 505 P.2d 537], Both Eleazer and Goliday make it clear that the prosecution cannot withhold information which might assist the defense in efforts to locate and produce an informant who is a material witness to a crime, and that the police and the district attorney must make reasonable efforts in good faith to locate such a person, so that either party, or the court itself, could, if it so desired, subpena him as a witness. However, this duty referred to does not arise until the defense makes a showing that the informant is a material witness, and it becomes apparent that loss of the evidence could hamper defendant in his defense. A defendant is to a large extent dependent upon the state for information as to the inform[179]ant’s identity and whereabouts since it is the police who generally have had the principal contact with him. It is for this reason that the above mentioned duty is imposed when the informant is a material witness. Similarly, in cases involving a photographic line-up, the state has control of the photographs and the defendant is dependent upon the state for their production. Accordingly, once a showing has been made that it is reasonably possible that these photographs could assist the defense, due process requires that they be produced.
Whether this unavailable evidence would have provided information of value to the defense is predominantly a question of fact and the test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact.
In the present case the court summarized defense counsel’s argument to suppress Stevenson’s identification as.follows:
“You are arguing, basically, number one, that the eyewitness identification by this victim is a weak identification.
“You are assuming that even though the Court concludes that it is a strong positive identification that, nevertheless, the defendant is deprived of his right of cross-examination during the trial of this particular matter and it is impossible to make a final determination as to whether or not this witness’s identification was tainted because we do not have the photographs before us; . . .”
The trial court then concluded that “in this case . . . there was a strong positive eyewitness identification by this victim [Stevenson].” The court then stated that it was “disturbed about the fact that the defendant is deprived basically of his right to cross-examine this witness during the course of the trial; it being possible that on cross-examination, it could be brought out that this witness was influenced in his identification by the photographs.”
During the district attorney’s argument, the court agreed that “the evidence is clear in this case from the witness’s testimony that it is a positive identification” and that “there is no evidence to indicate ... his in-court identification was in any way tainted by the photographic show-up.” (Italics added.)
Nevertheless, the court, in granting the defendant’s motion to suppress the in-court identification, as well as the photographic show-up, concluded that since the photographs shown to the victim, Stevenson, were no longer available and that since, normally, the defendant would be able to intro[180]duce those photographs into evidence “in an attempt to convince the jury that this witness’ identification was not based entirely upon what he observed at the time and which was tainted by his observation of photographs,” the net result is, “basically . . . depriving the defendant of that method and technique of cross-examination. . . . that ... he [defendant] is deprived of a fair trial because he is deprived of the opportunity of having 12 citizens make the determination as to whether or not this witness’s identification is sufficiently positive and based upon his actual observation or based upon his observation of photographs. ... I think that the defendant is being deprived of a very, very important right particularly under the facts of this particular case.”
From an examination of the record there is no evidence showing that the missing photographs could be of any assistance to the defense, and it was only upon speculation that the court decided that defendant would be deprived of a fair trial without said photographs. It is only by this “speculation” that the photographic line-up was somehow unfair and that such unfairness resulted in contributing to the in-court identification. Defendant, by this tenuous and circuitous route seeks to question the result— the in-court identification.
Consequently, the remaining issue before us on this appeal is whether the failure, per se, to produce the photographs2 precludes the defendant from obtaining a fair trial.
In People v. Bethea, 18 Cal.App.3d 930 [96 Cal.Rptr. 229], the defendant urged that the burden was upon the People to show that the in-court identification was free from the taint of an impermissibly suggestive pretrial photographic identification, and that when the People failed to produce the photographs at trial, this failure, as a matter of law, established that the photographic identification was improper. In rejecting the defendant’s contention, the court, at page 938, stated,. “The mere claim of unfairness is not enough. The [People’s] burden does not arise until there is some evidence that the photographic identification procedure was impermissibly suggestive.” The court then concluded that there was “no evidence of undue suggestion created by the procedures used. The testimony of the [181]witness is clear and frank, and there is no hint of connivance, evasion or skulduggery on the part of the police. . . . The production of the photographs in question used by the police would be the ultimate in the way of proof that they were not unduly suggestive, but it is not mandatory. When the burden of proof indeed does shift to the prosecution to demonstrate the fairness of a photographic identification procedure, it may be extremely difficult in most cases to prove its fairness without the photographs, but we do not impose this requirement as a matter of law.” (Italics added.)
Here, the court concluded that the witness’s “identification was based upon his personal observation of this defendant at the time of the commission of the alleged crime,” and noted that there was no evidence indicating that the in-court identification was in any way tainted by the photographic show-up. A photographic identification procedure is not rendered unduly suggestive by the inclusion, as in the present case, of two pictures of the accused. (United States v. Ballard, 423 F.2d 127, 132.) Therefore, as set forth in Bethea, no burden arose upon the People to prove that the pretrial identification procedure was not unduly suggestive. A mere claim that the procedure might have been unfair is not enough to require that the People must produce the photographs where evidence establishes their nonavailability due to inadvertence and not intentional destruction.
An accused has, and defendant Dewberry availed himself of, the opportunity to cross-examine witnesses in an effort “to expose '. . . the method’s potential for error.”’ (People v. Bethea, supra, at p. 938.) The record before us discloses no unfairness; rather, it indicates that the photographic display was eminently fair. Officer Dawson testified that as he selected the various photographs, it was his intention to pick photographs that were similar in appearance to defendant; all of them were in black and white; each depicted men in their twenties, of approximately the same physical stature, with medium or dark complexions; and further, the victim positively identified defendant as the intruder.
Consequently, under the circumstances, the defendant would not be denied a fair trial by the unintentional inability of the police to produce the photographs.
On our own motion we asked the district attorney and the public defender to respond, in writing or at oral argument, on whether the trial court’s ruling suppressing the identification testimony by the victim of the burglary was reviewable on appeal. Included in our query were questions [182]regarding the purpose behind the enactment of subdivision (a)(8) of Penal Code section 12383 and whether there are any tactical reasons why a defendant would make a motion to suppress identification testimony before the attachment of jeopardy. Both parties responded to our request; therefore, we answer the issue thus raised. We conclude that under the facts of this case, section 1238, subdivision (a)(8) does provide for a review of the trial court’s ruling excluding identification testimony before jeopardy attaches when that ruling determines the case and results in a dismissal of the charge.4
In the case before us, the record establishes that defendant was unequivocally identified in court by the only witness, the victim. The trial court emphasized the fact that there was no evidence indicating that the in-court identification was tainted by the photographic show-up. Nevertheless, the trial court excluded the in-court identification which was vital evidence in the prosecution of the case.
To approve this result makes a mockery of justice. By prosecutorial inadvertence, a victim sees complete immunity given the perpetrator of the crime. Certainly there are two sides of the admonition often given to judges. As Lord Chancellor Farrer Herschell once said, “Important as it was that people should get justice, it was even more important that they should be made to feel and see that they were getting it.” (See 2 Atlay, Victorian Chancellors (1908) 460.)
By the provisions of the section involved, the People may appeal “an order or judgment dismissing ... the action before the defendant has been placed in jeopardy . . . .” It would have little meaning if the court could consider only the technical correctness of the order of dismissal but not review the reason behind it, especially when the two are intertwined.
In People v. Beasley, 5 Cal.App.3d 617 [85 Cal.Rptr. 501], the court, after quoting subdivision (8), states on page 635: “No recognizable policy appears against prosecution or punishment for a previously dismissed felony offense when jeopardy has not attached. . . . The question on review of [183]such a dismissal order ordinarily is also whether under the circumstances the trial judge exceeded the bounds of judicial discretion. If there was such an abuse of discretion the order must be set aside. [Citations.]”
In the same case the court on pages 636-637 reviews policy considerations behind People’s appeals after dismissals pursuant to section 1385 of the Penal Code and states, “. . . ‘furtherance of justice,’ requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People, in determining whether there should be a dismissal. [Citations.] . . . [S]ection 1385 specifies that the ‘reasons of the dismissal must be set forth in an order entered upon the minutes’ (Italics added.) . . . One of the purposes of the specification of reasons is to enable an appellate court to determine whether, in view of the reasons assigned to justify a section 1385 dismissal, a proper exercise of discretion is shown.”
The analogy applies with equal force to the problem before us. To determine the propriety of the dismissal, we must consider the reasons given for the ruling. The inclusion of this evidence of in-court identification was essential to the prosecution; its erronbous exclusion necessitated dismissal.
We are not unmindful that the principal ground for restricting People’s appeals (double jeopardy concept excepted) is the hardship placed on the defendant by the delay. This objection is substantially overcome in the statute by denying the People the right to refile if an appeal is taken. The decision on appeal is binding.5 An appeal under section 1238, subdivision (a)(8) is an election of remedies.
The district attorney, in answer to our query {supra), correctly states there are numerous tactical reasons why defense counsel would make a motion to suppress identification testimony before the attachment of jeopardy. Counsel may make such a motion to discover what evidence the People have which would establish the defendant’s identity, or ascertain which evidence would likely be admitted during trial. He may determine that his client would probably be convicted and should for the best interest of his client attempt to negotiate a plea. Once the trial has started, a plea negotiation is generally not available. Also, prior knowledge of the extent of crucial evidence that might be divulged by proper motions could place defense counsel in a better position to prepare and present his case. Further, counsel has additional opportunity to observe the witnesses while [184]testifying under oath and this could be invaluable to an experienced trial lawyer. And finally, although other reasons might exist, defense counsel may wish to make a pretrial motion so that he will have two bites of the apple. If unsuccessful on the pretrial motion, he can renew it at trial.
The public defender, in written response to our query (supra), concedes that in certain cases pretrial motions on the issue of identification (particularly where there is more than one witness) might aid defense counsel to plan trial strategy.6 In this phase, of his response, he cited People v. Smith, 273 Cal.App.2d 547 [78 Cal.Rptr. 405], and referred to page 552. On that page, the court said: “We note that the procedure followed was not the statutory procedure under Penal Code section 1538.5, which applies only to a motion to suppress evidence ‘obtained as a result of a search or seizure.’ (See People v. Superior Court (1969) 70 Cal.2d 123, 127-130 [74 Cal.Rptr. 294, 449 P.2d 230].) The motion to suppress in this case was a somewhat analogous means of getting a ruling on a preliminary issue of fact to be decided by the court alone, prior to the selection of a jury, so that the jury would not be kept waiting while that issue was tried. Furthermore, the pretrial procedure enabled both sides to plan trial tactics in the light of the trial court’s ruling upon this vital issue.”
The concurring opinion would have us return the case to the trial court without ruling on the correctness of the trial court’s exclusion of the in-court identification. This we do not choose to do. The parties would find themselves in the same position they were in just before the dismissal, when the People stated they were unable to proceed because of the court’s ruling. To reverse in such a technical manner promotes unnecessary multiplicity of the proceedings. It was the trial court’s own actions that compelled the dismissal7 and we choose to treat the dismissal as having been made by the court on its own motion. (People v. Curtiss, 4 Cal.App.3d 123 [84 Cal.Rptr. 106].) The minute order stated the dismissal was pursuant to section 1385 of the Penal Code. The record before us demonstrates there was a pretrial hearing to consider a motion to suppress evidence; that the motion was granted, at which time the People declared their inability to proceed. This was adequate to notify this court on the reason for the dismissal, and complied with section 1385. (People v. Bea[185]sley, supra.) The in-court identification was mandatory to the success of the prosecution. After its exclusion the prosecution made it clear to the court that without this evidence they were not ready to proceed. The Legislature has given the trial court the power to dismiss under the broad standard of justice. (People v. Superior Court, 69 Cal.2d 491, 504 [72 Cal.Rptr. 330, 446 P.2d 138]) and there would be no reason to further detain or harass the defendant here by insisting the case continue in some form of vacuum when the People are unable to continue.
The order dismissing the action is reversed; the trial court is directed to set aside the order suppressing evidence.
Stephens, J., concurred.
On June 14, 1974, the Supreme Court granted a rehearing in People v. Hitch. We, therefore, decline discussing the applicability of the Hitch case to the case at bar.
With reference to the failure of the officers to produce the photographs herein, it appears that such failure resulted from inadvertence or negligence, and not for the deliberate purpose of suppressing the truth; however, it is the duty of the officers to preserve [the photographs which are used for identification, and as the court said in Simmons v. United States, 390 U.S. 377 [19 L.Ed.2d 1247, 88 S.Ct. 967], the better practice would be to make and keep a list of the pictures so used. To punish the prosecution for this kind of unintentional act is to put form over substance and bring justice into disrespect.
Penal Code section 1238 provides in pertinent part: “(a) An appeal may be taken by the people from any of the following: . . .
“(8) An order or judgment dismissing or otherwise terminating the action before the defendant has been placed in jeopardy or where the defendant has waived jeopardy.”
The trial court recognized the need for higher court review in the instant situation. After its ruling excluding the in-court identification, the court stated “I might indicate for the record that I personally believe—however, I have ruled in this case and I did rule in favor of the defendant—but I personally believe that a writ would be in order in this case.”
Penal Code section 1238, subdivision (b) provides: “If, pursuant to paragraph (8) of subdivision (a), the people prosecute an appeal to decision, or any review of such decision, it shall be binding upon them and they shall be prohibited from refiling the case which was appealed.”
The public defender, however, did not see how such a motion would be helpful to the defense here because there was only one identification witness.
These actions in order are: exclusion of the in-court identification; a statement that the trial court personally believed that a writ would be in order; insistence that the People then determine if they could proceed to trial; preparation of a minute order stating it was a section 1385 dismissal, which only the court or the People can request.