People v. Pastor Cruz

Opinion

SOVEN, J.

*

The People appeal from an order of dismissal in favor of defendants Antonio Pastor Cruz and Victor Pastor Cruz. The trial court dismissed the case because the police negligently lost a knife allegedly used in the charged crime of assault with a deadly weapon, to wit, a knife. We reverse.

Facts

The facts appear to be generally undisputed. A quarrel arose between defendants and the alleged victims, Manuel Gonzalez Sanchez and Amador Mayorga Romero. The victims’ version was that defendants, without provocation, attacked them with knives, and that both victims were stabbed. Both

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victims were treated at a hospital for their injuries. Defendants’ version was that they acted in self defense after the victims assaulted them with bottles.

The alleged assaults occurred on July 13, 1991. A police report was apparently prepared at the time when the alleged assaults occurred. That report is not part of the record, and was not before the trial court. The parties seem to agree that one or both victims described the knife, or one of the knives, as having a 12-inch blade, characterized by defense counsel as giving the impression that the knife was akin to a “horrendous sword.” At tiie preliminary hearing, in December 1991, victim Amador Mayorga Romero agreed in testimony that the knives were of the kind that trucks carry for cutting meat and vegetables.

In ruling on defendants’ motion to dismiss, the court summarized the facts: In about April 1992, defendants’ fingerprint examiner contacted the investigating officer at the Los Angeles Police Department to examine the knife for the purpose of fingerprinting the knife. The fingerprint examiner was told that the knife had been destroyed. The knife had been recovered at the scene, protected against manhandling at the scene with a handkerchief, and deposited in the trunk of a police car.

The court, in granting defendants’ motion to dismiss the case based on the prosecution’s inability to produce the knife, stated as follows: “Obviously, the knife is a very critical portion of the case. It’s in allegations, in the charges. The charges are assault with a deadly weapon, to wit, a knife. . . . [f] . . . the knife was recovered by the police department. They obviously felt it was a crucial piece of evidence because they recovered it, apparently handled it very carefully, properly. . . . [ft] The record is silent as to . . . whatever happened with the knife while it was in police custody, . . . [f]