concurring specially:
Part V of this Court’s plurality opinion relies on People v. Hitch, 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361 (1974), which states that “once the government has first gathered and taken possession of the evidence,” there is a “duty of preservation ... before the request for discovery has been made,” and a duty to disclose after the request for discovery is made. Ante at 92, 774 P.2d at 262. Furthermore, the opinion states that “so long as the government made ‘earnest efforts’ to preserve crucial materials and to find them *102once a discovery request is made,” no constitutional violation has occurred. Ante at 92, 774 P.2d at 262. However, Part Y of the opinion does not adequately relate all of the facts which were found by the district court in support of its conclusion that no due process violation occurred in this case. All of the witnesses testified that samples of the victim’s various body cavity fluids were collected on swabs by Dr. Droulard, the pathologist, and the fluids on those swabs were then transferred onto glass slides which were tested and preserved. The only conflict in the testimony was whether, after the swabs were used to make the glass slides, they were discarded by the doctor, as Officer Rodriguez testified, or by Officer Rodriguez, as Dr. Droulard testified. The trial court, after observing the witnesses testify, resolved this conflict in the testimony, concluding that it was Dr. Droulard who discarded them. While the technician, Pam Server, testified that the fluids transferred onto the glass slides would not be as concentrated as the fluids on the swabs themselves, there is nothing in the record to show that Officer Rodriguez knew or should reasonably have known that when Dr. Droulard transferred the bodily fluids onto the glass slides that he was not employing accepted scientific means for testing and preserving evidence. I think it would be expecting too much of an ordinary police officer to understand that the medical doctor’s actions in making the slides and then discarding the swabs was not an accepted scientific method of testing and preserving any potential evidence. The trial court specifically found that the destruction of the swabs was inadvertent. That finding is supported by the record. I believe the record also reflects that “the government made ‘earnest efforts’ to preserve the critical materials” within the meaning of the Hitch case relied on by the majority. Ante at 92, 774 P.2d at 262.
However, the most recent test enunciated by the United States Supreme Court regarding the states’ obligation to preserve potentially exculpatory evidence was set out in Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). In that case, which also involved the preservation of swabs and other physical evidence in a sexual molestation case, the United States Supreme Court reversed the Arizona courts which had held that the state’s failure to preserve semen samples from the victim’s body (swabs) and clothing had violated due process. The United States Supreme Court rejected both the “earnest efforts” test, and the “negligent failure to preserve” test of People v. Hitch, 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361 (1974), relied on in Part V of this Court’s plurality opinion. The Court in Arizona v. Youngblood, stated, “The failure of the police to refrigerate the clothing and to perform tests on the semen samples can at worst be described as negligent.” However, the Court held that was not enough to constitute a due process violation. The Court concluded by holding that “[w]e therefore hold that unless a criminal defendant can show bad faith on the part of police, failure to preserve potentially useful evidence does not constitute a denial of due process.”
There is no evidence here of any bad faith upon the part of Officer Rodriguez. The trial court specifically found that it was Dr. Droulard, and not Officer Rodriguez, who discarded the swabs. The trial court further found that that discarding was inadvertent and not intentional. Accordingly, the trial court did not err in concluding that Fain’s rights to due process were not violated.