I concur in the judgment. While I am in accord with the views of the majority as to why the extreme sanction of dismissal should not be imposed, I am of the belief that under the circumstances disclosed by the record the severe penalty suggested by the Court of Appeal and adopted by the majority is unreasonable.
This is not a case where evidence existing contemporaneously with or subsequent to the event in question was destroyed. Rather, as the majority notes, the evidence was destroyed about two weeks before the incident at the Zamora home. Nor is this a case where evidence was destroyed in order to put this appellant at a disadvantage. (Maj. opn., ante, pp. 94-95.) Judge Sauer concluded that there was no showing that the destruction was done to keep defendant from receiving information contained in the destroyed documents. Judge Waters concluded that the records were not destroyed deliberately, maliciously or willfully.
Unlike People v. Hitch (1974) 12 Cal.3d 641 [117 Cal.Rptr. 9, 527 P.2d 361], we are not here concerned with an item of evidence which is *105directly determinative on the issue of guilt or innocence. In Hitch the item sought was the breath sample from which evidence of the alcoholic content of the blood of the accused automobile driver could be ascertained. Evidence obtained in a pending case was there destroyed. Here the majority agrees that the records sought are not material evidence.
This is not a case where the missing records were known to contain meritorious complaints of police conduct. Rather the complaints involved here were unsustained.
The best that can be said for the defendant’s position, in the record before us, is that the records were destroyed in apparent violation of Government Code section 34090.1 In my view under the circumstances here presented, there is no such sinister conduct attending the destruction of the records as to warrant either dismissal of the suit or the giving of the instruction suggested by the majority. Our law furnishes ample guidelines for cases such as this—guidelines applicable to all parties, prosecutors and defendants alike. Evidence Code section 413 provides in part: “In determining what inferences to draw from the evidence or facts in the case against a party, the trier of fact may consider, among other things, the party’s. .. willful suppression of evidence relating thereto. . .. ” With respect to a defendant’s conduct juries may be instructed “If you find that a defendant attempted to suppress evidence against himself in any manner, such as [by destroying evidence] such attempts may be considered by you as a circumstance tending to show a consciousness of guilt. However, such evidence is not sufficient in itself to prove guilt and its weight and significance, if any, are matters for your consideration.” (CALJIC No. 2.06 (4th ed. 1979).)
Under the circumstances revealed by the record in this case, it would appear that the most that defendant could reasonably expect would be an instruction based on Evidence Code section 413 and perhaps patterned on CALJIC No. 2.06, informing the jury that a specific number of complaints had been lodged against the officer in the past, that these records had been destroyed and that the jury may bear this in mind in determining whether this officer had a propensity to use excessive or unnecessary force. No more is required on the facts of this case. Application of the law, not the devising of sanctions should be our rule.
*106Clark, J., and Richardson, J., concurred.
I assume, for it has not been otherwise argued, that the City of Los Angeles, a chartered city, is bound by that code section. (See Cal. Const., art. XI, § 5, subd. (a).)