I concur in the judgment and, for the sole purpose of achieving a single majority position to guide the trial court on remand, I join in the instructional directions to the trial court set forth in Justice Tobriner’s opinion. However, I respectfully disagree with the reasoning of the lead opinion since it would effectively foreclose dismissal as a sanction in any case which involved the wholesale destruction of discoverable evidence. As a result, the lesson the police will draw from this decision is that if they maliciously destroy all the records which contain discoverable materials at one time, they do not have to fear any sanctions or reprisals. However, if they refuse on a case by case basis to disclose discoverable records, they face the possibility of dismissal of their case and contempt of court. (See Dell M. v. Superior Court (1977) 70 Cal.App.3d 782 [144 Cal.Rptr. 418].) I cannot join in reasoning that sanctions such an illogical result.
Respondent’s petition for a rehearing was denied October 16, 1980. Clark, J., Richardson, J., and Manuel, J., were of the opinion that the petition should be granted.