15. Sanctions (Trombetta Motion)

The following sample motion for sanctions must be properly formatted with header information, line numbers, page numbers, etc. before being used in any court.



TO THE COURT AND THE DISTRICT ATTORNEY: PLEASE TAKE NOTICE that at the date and time indicated above, or as soon thereafter as the matter can be heard in the above entitled court, Defendant will move for an order dismissing the above entitled action because of the loss of significant exculpatory evidence.

This motion will be based upon this notice of motion, the memorandum of points and authorities served and filed concurrently herewith, on all the papers and records on file in this action, and on such oral and documentary evidence as may be presented at the hearing of this motion.


By David Faulkner,
Attorney for Dave Douglass


Kyle Knight reported that he saw a male and a female tampering with his neighbor’s vehicle (RT 5) and attempting to open the doors. However, he did not specify who was doing what to the vehicle (RT 16). His report led officers to stop Defendant and her codefendant’s vehicle, and Mr. Knight identified them as the suspects (RT 6). The vehicle’s owner, Valentine Victim, reported that the vehicle’s tow hitch was missing and a strap was burnt (RT 7-8), but he gave no indication of when he last observed those portions of the vehicle.

The vehicle was locked and had an alarm active (RT 7), but no one reported that the alarm went off. No tow hitch was found on either defendant or in their vehicle (RT 12), and law enforcement did not seize any tools capable of removing a tow hitch (id.). Nor did law enforcement seize or even document any items that could reach a temperature high enough to burn the vehicle’s straps. Fingerprints were taken from the vehicle handles, but the fingerprints were not a match to either defendant (RT 10).



The law does not impose a duty on the prosecution to collect evidence that might be beneficial to the defense; however, once collected, the prosecution does have a duty to preserve material evidence. (In re Michael L. (1985) 39 Cal 3rd 81; People v. Hogan (1982) 31 Cal 3rd 815, 851, disapproved on other grounds in People v. Cooper (1991) 53 Cal 3rd 771, 836).

In this case, law enforcement seized control of the victim’s vehicle and co-defendant’s vehicle along with the tools and other evidence therein, but failed to preserve the vehicles or evidence for use by Defendant. The prosecution further failed to even photograph or inventory items in either vehicle.


If the prosecution preserved and then destroyed or permanently lost evidence, the defense may make a motion for sanctions, called a Trombetta or Youngblood motion. The destroyed evidence must have been material to the defense case (California v, Trombetta (1984) 467 US 479, 488).

The materiality of evidence in California is determined under the Trombetta/Youngblood federal standard (People v. Zapien (1993) 4 Cal 4th 929, 964; People v. Cooper (1991) 53 Cal 3rd 771, 810; People v. Johnson (1989) 47 Cal 3rd 1194, 1233). Material evidence is evidence that might be expected to play a significant role in the suspect’s defense. It must possess an exculpatory value that was apparent before the evidence was lost or destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. (California v. Trombetta, supra.)

The lost vehicles are material to Defendant’s case because the codefendant’s vehicle could be used to show not only that Defendant did not have the means to commit the charged offense, but also that if any offense was actually committed, it was not by her or her codefendant. Simply put, the loss and the required means to commit the offense were not in the codefendant’s vehicle, and there was simply no other reasonable place the items could be found. Further, the victim’s vehicle could be used to show that Defendant had no contact at all with the vehicle. If Defendant did have contact with the vehicle, her DNA would have necessarily been transferred to the vehicle.

Law enforcement’s release of the vehicles has summarily denied Defendant the right to present favorable and material evidence that would play a significant role in his defense. The investigative officers are now at liberty to give their own inculpatory description of the vehicles and their contents, which could have been contradicted by the access to the vehicles in several ways.

First, had the defense been granted access to the codefendant’s vehicle before its release – the vehicle in which she was arrested, the vehicle could be thoroughly examined to establish that the “stolen” hitch was not in the vehicle. Because defendant was stopped shortly after the offense, the absence of the hitch is exculpatory. Without access to the vehicle, the prosecution is free to impeach law enforcement’s investigation and argue that the arresting officers simply did not conduct a thorough enough search to find the hitch that was carefully hidden by defendants. A skilled prosecutor could simply ask questions like, “did you search inside the glove box?”, “did you search the trunk?”, “did you search under the hood?” Any negative answer could be used to argue that defendants could have hidden the hitch beyond the scope of law enforcement’s search.

Second, had the defense been granted access to the vehicle before its release, the defense could have shown that none of the “tools” allegedly found in the vehicle could have been used to remove the hitch. Without access to the tools, the Prosecution is free to argue that the defendants had “burglary tools” that could have been used to remove the hitch.

Third, had the defense been granted access to the vehicle before its release, the defense could have shown that defendant’s had no ability to cause the burn damage to the victim’s vehicle. Without access to the vehicle, the Prosecution is free to argue that the defendants had torches or some other ignition source hidden in the vehicle.

Fourth, had the defense been granted access to the victim’s vehicle before its release, the defense could have shown that the vehicle alarm would have gone off if the vehicle was manipulated as described by the witness. This is significant exculpatory evidence that could have disproved the witness’s description of events.

Finally, had the defense been granted access to the victim’s vehicle before its release, the defense could have shown that the “straps” on the gas can, made of metal on many vehicle models, could not be burnt except by high temperature such as would have ignited the gas cans.

The loss of the victim’s vehicle is also damning to Defendant. Had the vehicle been preserved, DNA testing could have eliminated Defendant as a suspect in that his DNA would not have been found on the door handles, the area around the receiver hitch, or anywhere else on the vehicle.


This Court should dismiss the instant action because Defendant is irreparably harmed by the loss of the described evidence.