I dissent.
Once again the majority of the court produce a generally well-considered discussion on the substantive issue of law involved, and then founder on applying their rule to the party directly affected thereby, in this instance the defendant.
My learned colleagues persist in the notion that there are only two alternatives available in adapting a new court-made rule: application retroactively or prospectively. This is evident from the discussion at ante, pages 654-655. Yet I have pointed out time and again that there is a third, and preferable, alternative: applying the new rule to the aggrieved party responsible for bringing the issue to judicial attention, and thereafter prospectively. (See my concurring opinion in In re Stewart (1974) 10 Cal. 3d 902, 907 [112 Cal.Rptr. 520, 519 P.2d 568]; dissenting opinion in In re Yurko (1974) 10 Cal.3d 857, 867 [112 Cal.Rptr. 513, 519 P.2d 561]; concurring and dissenting opinion in Westbrook v. Mihaly (1970) 2 Cal.3d 765, 802 [87 Cal.Rptr. 839, 471 P.2d 487].)
*656It is curious that the majority selectively quote the guiding criteria for applying new standards described in Stovall v. Denno (1967) 388 U.S. 293 [18 L.Ed.2d 1199, 87 S.Ct. 1967], and then proceed to ignore the resolution of the problem discussed in that very case, i.e., that'the original litigant before the court must be given the benefit of a decision which creates new rights. Stovall declared that the rule established in United States v. Wade (1967) 388 U.S. 218 [18 L.Ed.2d 1149, 87 S.Ct. 1926], and Gilbert v. California (1967) 388 U.S. 263 [18 L.Ed.2d 1178, 87 S.Ct. 1951], must apply to defendants Wade and Gilbert as “an unavoidable consequence of the necessity that constitutional adjudications not stand as mere dictum,” and thereafter prospectively.
If the opinion of the majority in this case is not to be mere dictum, or an academic exercise with the characteristics of an advisory opinion (see People ex rel. Lynch v. Superior Court (1970) 1 Cal.3d 910, 912 [83 Cal. Rptr. 670, 464 P.2d 126]), the result must of necessity apply to the party directly involved, the defendant Hitch. Instead, the majority appear to deem him to be an unselfish public-spirited citizen, performing a pro bono service by helping to reform the law solely for utilization by future litigants. This is a noble role which I am certain the defendant would happily eschew in exchange for the right to taste the fruits of his elusive victory.
There is a second grave defect in the majority opinion. The defendant maintained that the intentional, though admittedly nonmalicious, destruction of the ampoule deprived him of due process of law by making valuable evidence unavailable. I concede arguendo that the issue does not rise to constitutional dimensions (United States v. Augenblick (1968) 393 U.S. 348 [21 L.Ed.2d 537, 89 S.Ct. 528]), but nevertheless whether the ampoule was a valuable exhibit necessary to tfie defendant’s adequate defense is an evidentiary matter ordinarily reserved to the trial court’s resolution.
Under comparable circumstances — -there, a lost document — the Ninth Circuit found a dismissal by the trial court to be within its “inherent power.” (United States v. Heath (9th Cir. 1958) 260 F.2d 623, 626.) Said the court: “any unfairness to a defendant should be eliminated by the trial judge. To prevent possible prejudice on trial beyond the general atmosphere of impartiality which traditionally pervades the- courtroom, trial judges have wide discretion to methods of control.” Here the trial judge, after a thorough hearing, concluded that the destroyed evidence was necessary to accord defendant a fair trial. I am reluctant to second-guess the trier of fact on what is essentially an elementary factual determination.
Indeed, throughout the majority opinion there is the implicit concession *657that the physical evidence is necessary to a proper defense against the charges. That being so, I find it impossible to rationalize a result which in effect advises the defendant: you and the trial court are correct, the physical evidence is vital to your defense, without it you may not have a fair trial, but despite that handicap off to trial you must go. My colleagues, in reversing the trial court, direct the defendant to pole vault to acquittal— without a pole.
I would affirm the order.