In re J.J., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.J., Defendant and Appellant F077097 Court of Appeal, Fifth District, California Filed September 26, 2019 Counsel Law Offices of Beles & Beles, Robert J. Beles and Paul McCarthy for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent. Franson Jr., Donald R., Appellate Court Judge OPINION *1 On March 30, 2017, the Kings County District Attorney filed a juvenile wardship petition alleging J.J., a minor, committed attempted forcible rape (Pen. Code,[1] §§ 261, subd. (a)(2), 664 [count I] ); false imprisonment by violence (§ 236 [count II] ); and sexual battery by restraint (§ 243.4, subd. (a) [count III] ). J.J. brought a motion to dismiss pursuant to California v. Trombetta (1984) 467 U.S. 479, 489 (Trombetta) and Arizona v. Youngblood (1988) 488 U.S. 51 (Youngblood), which was denied. Following a contested jurisdiction hearing, the juvenile court dismissed count III pursuant to section 1118.1 and found the remaining allegations true beyond a reasonable doubt. At the disposition hearing, J.J. was declared a ward of the court and placed on supervised probation while in the custody of his parents. On appeal, J.J. makes two contentions. First, the court should have granted his Trombetta-Youngblood motion because law enforcement failed to preserve certain surveillance camera footage and failed to obtain the victim's cell phone. Second, the cumulative effect of these errors deprived him of due process. For the reasons set forth below, we reject these contentions. STATEMENT OF FACTS On March 28, 2017, A.M. was in a residential neighborhood selling raffle tickets for a fundraiser when she came across J.J., who attended the same high school as her. She tried to sell him a ticket. J.J. took out a cell phone, typed “if you suck my dick,” and showed the message to A.M. When she refused, he suggested they have sex. A.M. walked away but J.J. pursued her and “tr[ied] to convince [her] to do those things.” He then pulled her hair because she “was walking too fast.” A.M. punched J.J.'s chest and continued to walk. He caught up to her and claimed “one of his neighbors would b[u]y a ticket from [her].” A.M. accompanied J.J. to a house in the vicinity. When A.M. knocked on the front door of the house, J.J.—who had sat down on a porch bench—pulled her onto his lap. While she struggled to get away, two Hispanic females in pink attire were strolling by. Although A.M. had been urging J.J. to “[l]et [her] go,” the females did not stop. Eventually, J.J. unlocked the front door and A.M. realized the house belonged to him and not a neighbor. Two large dogs emerged, frightening A.M. J.J. said he would “put the dogs up” and “get the money for the [ticket].” A.M. sat on the porch bench and waited. Thereafter, J.J. returned and dragged A.M. inside the house and into his bedroom. He threw her onto the bed and groped her breasts, vagina, and buttocks. A.M. told J.J. to stop, but he did not answer her. She kicked his genitals and attempted to flee. J.J. caused A.M. to fall down before she reached the door and grabbed her leg. When she threatened to “kick [him] in [his] balls” again, however, he released her. A.M. left the house and made her way to the nearby middle school, where she looked for her former coach. When she could not find the coach, A.M. went to her high school and told a teacher what had happened. *2 Later in the evening, Officer Beavers interviewed J.J. at the police department. According to J.J., he was walking home when he encountered A.M. She tried to sell him a raffle ticket, but he declined. J.J. continued to walk and A.M. followed behind him. When he reached his residence, he opened the front door and let his dogs out. J.J. then heard A.M. scream and saw her run off. He believed she was frightened by the dogs. J.J. did not speak to A.M. after he refused to buy a ticket and A.M. never reached the entrance of his house. Beavers viewed surveillance camera footage from the middle school. Two cameras recorded video of two individuals walking toward and stopping in front of a residence on March 28, 2017. Based on A.M.'s statements to the police and his familiarity with the neighborhood, Beavers concluded the individuals were A.M. and J.J. and the residence belonged to J.J. He did not observe footage of two Hispanic females walking by J.J's residence at the time of the incident. At the contested jurisdiction hearing, J.J. reiterated he came across A.M. while he was on his way home and declined to buy a raffle ticket from her. However, the two then walked together and conversed about a mutual friend. When A.M. offered to sell a ticket again, J.J. relented and the pair headed to his residence. He went inside the house to look for “spare change” while she waited next to the entrance. The front steel door was open, but the screen door was closed. Before J.J. could find any money, his dogs—which were “pretty big” and “bite”—pushed through the screen door and escaped. While he chased after them, A.M. “took off running.” DISCUSSION I. TROMBETTA-YOUNGBLOOD MOTION a. Background Defense counsel submitted an informal general discovery request to the district attorney's office on or around April 17, 2017. He specifically asked for the middle school's surveillance camera footage and A.M.'s cell phone records on the day of the incident. On May 19, 2017, defense counsel received surveillance camera footage and observed gaps in the recording. He filed a motion to compel discovery on June 20, 2017, but subsequently asked the court to take it off the calendar on August 25, 2017. On November 8, 2017, defense counsel filed a Trombetta-Youngblood motion. He argued the police's failure to preserve the missing surveillance camera footage from the day of the incident warranted a dismissal of the action. On November 14, 2017, defense counsel filed an addendum to the motion, asserting the police should have seized A.M.'s cell phone. A hearing on the motion was conducted on December 7 and 11, 2017. Beavers testified he was at the police department when he and a dispatcher reviewed the middle school's surveillance camera footage, “an approximate two-hour chunk of time.” Beavers identified segments showing A.M. and/or J.J. and the dispatcher documented the specific camera and timestamps associated with each segment. Beavers did not see footage of two Hispanic females walking by J.J's residence at the time of the incident. Had he seen this, he would have identified such footage for retrieval. During cross-examination of Beavers, the court told defense counsel: “Under Trombetta, under Youngblood, ... Trombetta and Youngblood is a duty to preserve.... [It is] based on a premise that ... something ... [is] in the possession of the police department for which the defense does not have adequate access to.... [I]t seems to me that, one, [A.M.] and her phone have a privacy interest right ... that you need to address. But, secondly, the defense had the ability to subpoena those records the same as the People or as the police executing a warrant. Now, if they had executed a warrant and not turned it over to you or executed a warrant and ... destroyed it, that seems to me to fall into Trombetta and Youngblood.... [T]hey didn't seize it, ... the phone, the phone records ..., so they didn't possess it, and the defense could have subpoenaed it with a[ ] [subpoena duces tecum], so they had equal access to it, how does it fall under Trombetta or Youngblood ...? When I looked through the materials, and I looked through that several times, I don't see a single case anywhere that says if the police agency or the prosecution does not seize the evidence they are subject to sanctions if it's not preserved, particularly, when the defense has access to it....” (Italics added.) *3 Officer Augustus, a school resource officer, testified he was given a list of the video segments identified by Beavers. After Augustus contacted the school district's information technology (IT) department, he downloaded the requested footage and booked it into evidence. According to Augustus, the middle school's surveillance system overwrote old footage 30 to 40 days later. Steven Berry, the school district's technology director, testified the police “has access to all the school district cameras at the police department” and “can download footage or anything they want over there.” However, he emphasized “the old system was a little clunky” and the police would “come and ask [the IT department] if they needed footage” because “[the IT department employees] were a lot better at getting the footage.” According to Berry, the middle school's surveillance system overwrote old footage 14 days later. After this period, the old footage could no longer be recovered. After close of evidence, the court pronounced: “I think the laws on one of the issues is fairly clear, neither the police nor the prosecution have the duty to collect evidence that might be beneficial to the defense, and that's reiterated by the United States Supreme Court and the California Supreme Court in numerous cases. However, once collected, the due process c[l]ause does impose on the prosecution a duty to preserve material, exculpatory evidence. In this case, it is not clear to me w[he]ther the ... [p]olice [d]epartment did possess the surveillance video from ... [the] [m]iddle [s]chool within the terms or meanings of what the due process clause requires. Testimony is not completely clear, I suppose, on when the evidence was lost.... [A]ccording to Mr. Augustus's testimony, that it would have been taped over in the normal course of business sometime between or around April 27th, 2017, and May 7th, 2017. Testimony today ... from ... Mr. B[e]rry, who is the ... Technology Director for the [s]chool [d]istrict[,] indicated that it would have been lost on April 11th, 2017, some six days before the request by the defense for the specific video. [Berry]'s testimony is more persuasive to me than the officer's since he is the person familiar with the limitations of their system .... Even assuming that they did possess the videos within the meaning of the due process clause, there has been no showing on the part of the police or the District Attorney of bad faith. Absent bad faith, the minor is entitled to relief only on a showing that the lost or destroyed evidence was material and exculpatory. Material and exculpatory evidence is evidence that might be expected to play a significant role in the minor's defense and it must possess exculpatory value that was apparent before the evidence was lost and be of such a nature that the minor would be unable to obtain comparable evidence by other reasonably available means, which doesn't appear to me that the video as described so far would have contained an apparent exculpatory value to your average police officer at the time that Mr. Beavers viewed it. ... [A]lso, as to the video, it appears to me that the minor sought the videos largely to impeach the victim because of, for example, the absence of the two women passing by as indicated, and Officer Beavers has already testified that he viewed the videos and was not able to see anyone matching that description in the videos going. Therefore, the minor is able to obtain comparable evidence by other means reasonably available ....” *4 The court denied the Trombetta-Youngblood motion. b. Analysis “Due process requires the state preserve evidence in its possession where it is reasonable to expect the evidence would play a significant role in the defense.” (People v. Alexander (2010) 49 Cal.4th 846, 878.) “The evidence must ‘possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.’ ” (Ibid., quoting Trombetta, supra, 467 U.S. at p. 489.) “If the evidence's exculpatory value is apparent and no comparable evidence is reasonably available, due process precludes the state from destroying it.” (People v. Duff (2014) 58 Cal.4th 527, 549.) “If, however, ‘no more can be said [of the evidence] than that it ... might have exonerated the defendant,’ [citation] the proscriptions of the federal Constitution are narrower; ‘unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.’ ” (Ibid., quoting Youngblood, supra, 488 U.S. at pp. 57, 58.) “Thus, there is a distinction between Trombetta's ‘exculpatory value that was apparent’ criteria and the standard set forth in Youngblood for ‘potentially useful’ evidence. If the higher standard of apparent exculpatory value is met, the motion [to dismiss] is granted in the defendant's favor. But if the best that can be said of the evidence is that it was ‘potentially useful,’ the defendant must also establish bad faith on the part of the police or prosecution.” (People v. Alvarez (2014) 229 Cal.App.4th 761, 773 (Alvarez).) “On review, we must determine whether, viewing the evidence in the light most favorable to the superior court's finding, there was substantial evidence to support its ruling.” (People v. Roybal (1998) 19 Cal.4th 481, 510; accord, People v. Montes (2014) 58 Cal.4th 809, 837; People v. Duff, supra, 58 Cal.4th at p. 549.) Regarding the middle school's surveillance camera footage, J.J. contends: “... Beavers ... cherry-picked only those portions of the ... surveillance video that would support his case and declined to obtain the entire video of the time period in question.... The most obvious cherry-picking occurred concerning A.M.'s claim that two third-party witnesses had observed part of the alleged assault, who she described as two Hispanic women dressed all in pink.... J.J. denied that any assault occurred. Obviously, the existence of third party witnesses to part of the assault would have made the case something more than a credibility contest between A.M. and J.J.” In essence, J.J. argues the unpreserved surveillance camera footage would have shown the absence of the two eyewitnesses identified by A.M. and cast doubt on the veracity of her account. (See People v. Fauber (1992) 2 Cal.4th 792, 830.) However, “the mere ‘possibility’ that information ... may ultimately prove exculpatory ‘is not enough to satisfy the standard of constitutional materiality.’ ” (City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 8, quoting Youngblood, supra, 488 U.S. at p. 56.) Although “discrepanc[ies] ... might eventually prove useful to a defendant in impeaching a witness[,] ... [it] is not the type of evidence that a reasonable police officer should be expected to recognize as having apparent exculpatory value.” (People v. Pastor Cruz (1993) 16 Cal.App.4th 322, 325.) Furthermore, at the motion and contested jurisdiction hearings, Beavers testified he did not observe footage of the two witnesses walking by J.J.'s residence at the time of the incident; otherwise, he would have had such footage preserved. Such testimony constitutes comparable evidence obtained by reasonably available means. (See, e.g., People v. Chism (2014) 58 Cal.4th 1266, 1300; People v. Fauber, supra, at p. 830; People v. Angeles (1985) 172 Cal.App.3d 1203, 1215.) *5 Since “the best that can be said of the [unpreserved footage] is that it was ‘potentially useful’ ” (Alvarez, supra, 229 Cal.App.4th at p. 773), J.J. must establish bad faith. Here, the record demonstrates Beavers reviewed approximately two hours of the middle school's surveillance camera footage at the police department. While Beavers—in theory—could have downloaded the footage himself at the police department, Berry's testimony revealed the police department's system was “clunky” and the school district's IT staffers were better equipped to retrieve the footage. Accordingly, as part of a request to the school district's IT department (via school resource officer Augustus), Beavers identified certain video portions he deemed relevant, namely segments showing A.M. and/or J.J., for download. There was no footage of two Hispanic females walking by J.J.'s residence at the time of the incident and Beavers testified to this fact. On April 11, 2017, sometime after the requested footage was downloaded and booked into evidence and before defense counsel submitted an informal general discovery request to the district attorney's office, the middle school's surveillance system overwrote the footage. Berry indicated the overwriting process was routine. Viewing the record in the light most favorable to denial of the dismissal motion, the court could reasonably conclude “[t]here is no evidence of official animus toward defendant on the part of [Beavers] or any conscious effort on his part to suppress exculpatory evidence.” (People v. Angeles, supra, 172 Cal.App.3d at p. 1214.) At most, the record shows the missing footage was overwritten, “not purposefully destroyed or secreted so as to prejudice defendant with respect to their possible content.” (Ibid.)[2] Finally, the record indicates A.M.'s cell phone and its records were never in police possession. “Generally, due process does not require the police to collect particular items of evidence. [Citation.] ‘The police cannot be expected to “gather up everything which might eventually prove useful to the defense.” ’ [Citation.]” (People v. Montes, supra, 58 Cal.4th at p. 837; see People v. Daniels (1991) 52 Cal.3d 815, 855 “[T]he police duty to obtain exculpatory evidence is not as strong as its duty to preserve evidence already obtained.”].) “To date there is no authority for the proposition that sanctions should be imposed for a failure to gather evidence as opposed to a failure to preserve evidence.” (People v. Harris (1985) 165 Cal.App.3d 324, 329.) J.J. does not cite such authority. Therefore, we conclude substantial evidence supported the juvenile court's denial of J.J.'s Trombetta-Youngblood motion.[3] II. CUMULATIVE ERROR “[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.” (People v. Hill (1998) 17 Cal.4th 800, 844.) “A claim of cumulative error is in essence a due process claim ....” (People v. Rivas (2013) 214 Cal.App.4th 1410, 1436.) “ ‘The “litmus test” for cumulative error “is whether defendant received due process and a fair trial.” ’ ” (Ibid.) “[T]he reviewing court must ‘review each allegation and assess the cumulative effect of any errors to see if it is reasonably probable the jury would have reached a result more favorable to [the] defendant in their absence.’ [Citation.]” (People v. Williams (2009) 170 Cal.App.4th 587, 646.) *6 “Having determined that no error occurred ..., we conclude that this contention lacks merit ....” (People v. Heard (2003) 31 Cal.4th 946, 982.) DISPOSITION The juvenile court's adjudication and orders are affirmed. WE CONCUR: HILL, P.J. DETJEN, J. Footnotes [1] Subsequent statutory citations refer to the Penal Code. [2] J.J. cites Alvarez, which is factually inapposite. In that case, the victim was robbed by approximately five men; shortly thereafter, the three defendants were apprehended. (Alvarez, supra, 229 Cal.App.4th at p. 766.) There were two police-controlled surveillance cameras in the vicinity of the robbery and officers were “typically aware that footage was only available for a fairly short amount of time,” i.e., two to two-and-a-half weeks. (Id. at pp. 764, 767–768.) One of the defendants asked a detective at the scene to check relevant video footage. (Id. at pp. 764.) The detective replied, “ ‘If I had video cameras of what took place, that's part of my job. My job is not to arrest people that aren't guilty of something.’ ” (Ibid.) However, he subsequently admitted he did not review any of the footage, did not ask anyone else to do so, and disclaimed responsibility to follow up on the defendant's request. (Id. at pp. 764, 769, 777.) According to the officer in charge of maintaining and controlling the cameras, none of the officers involved in the defendants' arrest submitted a request to view the footage. (Id. at pp. 767–768.) By the time defense counsel submitted such a request, the footage had been deleted. (Id. at p. 768.) The trial court granted the defendants' dismissal motion, finding bad faith on the part of the police. (See id. at pp. 769–770.) The appellate court affirmed the ruling with respect to two of the three defendants. (See id. at pp. 776–778, 788.) [3] Since we rejected J.J.'s claim on the merits, we need not address the Attorney General's forfeiture argument.