Opinion
C089357
09-21-2021
THE PEOPLE, Plaintiff and Respondent, v. SOK CHEAT PIN, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. CRF186931
MURRAY, J.
A jury found defendant Sok Cheat Pin guilty of felon in possession of a firearm and discharging a firearm in a grossly negligent manner. He was sentenced to a three-year eight-month aggregate term.
On appeal, defendant contends the trial court erred in permitting a deputy's testimony translating defendant's jailhouse call, wherein defendant told his girlfriend in Cambodian to “take [the gun] and hide it.” Defendant argues (1) Government Code section 68561, subdivision (a) required the deputy to be a certified interpreter before providing interpretation services in court; and (2) the trial court violated his right of confrontation and due process by allowing the deputy to interpret his jailhouse call without providing defendant a qualified interpreter.
Undesignated statutory references are to the Government Code.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Shooting
Defendant's girlfriend testified that on the day of the incident, she and defendant had a “little argument” in their apartment. After the argument, she went to lie down, and defendant went outside. She then heard the sound of a gunshot.
Responding officers reviewed a surveillance video of the apartment complex. In it, a person with a gun - who appeared to be defendant - exited the apartment and fired six shots. A “large amount” of muzzle flash, smoke, and recoil indicated it was not a toy gun or blanks. Thereafter, the person could then be seen throwing something over the fence next to the apartment complex.
Later, at a police station, defendant denied firing a gun. He claimed he had been sleeping and woke to the sound of an argument between his girlfriend and one of her children.
Officers found no firearm at the scene. But a police canine alerted to explosives or gunpowder in the apartment bedroom and in large box in the living room-kitchen area.
Defendant's Jail Call
The morning after his arrest, defendant called his girlfriend from the county jail. They spoke in Cambodian and English, and the call was recorded. The girlfriend later told a detective that she found a gun in the apartment under an Xbox, hid it in a cooler, and ultimately passed it on to another woman.
At trial, however, the girlfriend testified her jailhouse call with defendant never referenced a gun. Rather, regarding her conversation with defendant about looking under the Xbox, she said she was looking for her jewelry, She testified, “I told him to hide because my memory is bad.” Asked later about the meaning of something said in Cambodian in the recorded call she said: “I don't know, but all I know is that I'm getting my jewelries....” Asked about another portion of the conversation, she testified: “He said just keep the belongings and he has nothing -- like, no -- he shouldn't be charged with anything.” Asked about another portion, she said defendant told her “jewelry is in the blue case.”
However, she admitted that the detectives asked her whether defendant had asked her to hide a firearm. She was then asked the following question and gave the following answer:
Q: “[W]hat did you tell them when they asked you whether or not [defendant] asked you to hide a firearm?
A: “I said yes.
Q: “You told them that yes, he did ask you to do that.
A: I -- yes.”
After first denying that she hid the firearm, she admitted that she did.
The prosecution sought to have a deputy, who spoke Cambodian, testify to the translation of the jail call recording. The deputy was born in Cambodia and spoke Cambodian as a first language. He came to the United States when he was young and learned English, but he still communicates in Cambodian daily with family and friends. He, however, did not have a formal education in Cambodian and could not read or write it. Neither was he court certified to translate Cambodian, nor had he taken any proficiency or performance exams in it. And he had never been called as a witness to translate Cambodian.
Defense counsel objected, arguing the deputy's translation would deprive defendant of his right of confrontation as, “the Defense has no ability to cross-examine the [officer] as to his training and experience” and the accuracy of his translation. Counsel added, the deputy was neither qualified nor certified, under section 68560, to interpret. And his inability to read or write Cambodian also rendered him unqualified.
Section 68560, subdivision (f) provides in pertinent part: “Competent interpreter services in the courts … should be provided through programs to recruit, train, test, certify, and evaluate interpreters.”
The trial court remarked that in the “normal course” if the prosecution needed something interpreted, they would go through the interpreter's office to find someone, but what is “unusual here is that the person that has been brought in does not have that certification.” When asked why a certified interpreter wasn't offered, the prosecutor explained, “the issue of finding Cambodian speaking translators, ” that “[he] had checked with the interpreter's office, ” and “I did not see the opportunity to request a Cambodian speaking interpreter.”
The trial court emphasized that the “preferred path” would have been to use a certified Cambodian interpreter, but it concluded the officer was qualified to interpret the conversation in the jail call and would be testifying as a lay witness. It explained, if the interpretation involved writing, the officer would not have been qualified - but having spoken Cambodian all of his life, the officer had a skill set that qualified him as a lay witness and an expert witness if called to do so. It added that the girlfriend, “a Cambodian speaking person, was allowed to interpret the language that was spoken. And I don't know to what extent she has ever been in a position to give that kind of testimony....” Also, “the Defendant himself apparently speaks Cambodian, ” and “the defense certainly has an opportunity to consult with their client.” In the trial court's view, the objection presented an issue that went to weight rather than the interpretation's admissibility.
The deputy thereafter testified that in the recording - after defendant told his girlfriend in English that he was just smoking “weed” in the car, and there was no gun - he asked her in Cambodian, “Did they find the gun?” and instructed her in Cambodian to, “Go into the room and take a look.” When the girlfriend told him she found it, defendant instructed her to “Take it and hide it.” He later repeated, “go ahead and hide it.”
Verdicts and Sentencing
The jury found defendant guilty of possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)), and discharge of a firearm in a grossly negligent manner (Pen. Code, § 246.3), with personal use of a firearm enhancement (Pen. Code, § 1192.7, subd (c)(a)). Defendant was sentenced to a three-year eight-month aggregate term.
DISCUSSION
I. Section 68561, subdivision (a) Contention
On appeal, defendant contends the trial court erred by allowing the deputy to interpret the jailhouse conversation over the defense's objection. He argues that under section 68561, subdivision (a), the deputy was required to be a court certified interpreter before providing interpreting services in court.
Section 68561, subdivision (a) states in pertinent part that “Except for good cause as provided in subdivision (c), a person who interprets in a court proceeding using a language designated by the Judicial Council … shall be a certified court interpreter, as defined in section 68566, for the language used.”
Section 68566 provides: “A natural person who either (1) holds a valid certificate as a certified court interpreter issued by a certification entity approved by the Judicial Council, or (2) until January 1, 1996, is named and maintained on the list of recommended court interpreters previously established by the State Personnel Board or established by an entity provisionally approved under subdivision (b) of Section 68562, shall be designated a ‘certified court interpreter.' No other person or entity shall use the title ‘certified court interpreter' or represent that he or she or it is certified to interpret in or for the courts.”
Defendant, finding no cases on point, points to the Merriam-Websters Dictionary definitions of “ ‘interpret' ” and “ ‘interpreter,' ” respectively defined as “ ‘to explain or tell the meaning of: present in understandable terms,' ” and “ ‘one who translates orally for parties conversing in different languages.' ” He concludes that under any conceivable application of “interpret, ” the deputy provided interpreting services and was therefore required to be certified. We are not persuaded.
(https://www.merriam-webster.com/dictionary/interpret [as of September 14, 2021], archived at <https://perma.cc/P45Q-9QGZ>.)
Section 68561 applies to interpreters appointed by the trial court to interpret the statements of witnesses, attorneys, and others who speak in court. (§ 68561, subd. (c) [Giving courts authority to “appoint” an interpreter who does not hold a court interpreter certificate when there is good cause]; Rule of Court Rule 2.893 [“This rule applies to all trial court proceedings in which the court appoints an interpreter for a Limited English Proficient (LEP) person”] italics added.) And here, the deputy was not appointed to interpret.
Indeed, a wide gulf exists between what the deputy did and what court appointed interpreters do. Appointed “interpreters play three different but essential roles in criminal proceedings: ‘(1) They make the questioning of a non-English-speaking witness possible; (2) they facilitate the non-English-speaking defendant's understanding of the colloquy between the attorneys, the witness, and the judge; and (3) they enable the non-English speaking defendant and his English-speaking attorney to communicate....'” (People v. Aguilar (1984) 35 Cal.3d 785, 790.) To that end, “[a]n interpreter must use his or her best skills and judgment to interpret accurately without embellishing, omitting, or editing, ” and must interpret everything said during the entire proceeding. (Rule 2.890, subd. (b).) Interpreters must also take an oath to “make a true interpretation to the witness in a language that the witness understands and that he or she will make a true interpretation of the witness' answers to questions to counsel, court, or jury, in the English language, with his or her best skill and judgment.” (Evid. Code, § 751, subd. (a).) No statute or rule requires an interpreter of evidence - oral or documentary - to be certified.
This is consistent with defendant's proffered definition of an interpreter as “ ‘one who translates orally for parties conversing in different languages.' ”
Here, the deputy was not appointed to interpret real-time court proceedings, nor was his interpretation offered to enable a non-English-speaking person's access to the court. The deputy simply testified to the meaning of part of an admitted item of evidence. His testimony, like any other, could be probed through cross-examination and countered through other witnesses, such as the girlfriend or another Cambodian speaking person. In short, the deputy's testimony was not the sort of essential interpretation service contemplated in section 68561.
As such, the deputy need not have been certified under section 68561, and the trial court did not err in permitting his testimony.
II. Sixth and Fourteenth Amendment Contention
Defendant also contends the trial court violated his right of confrontation and due process by allowing the deputy to interpret the jailhouse conversation without also appointing a qualified interpreter for the defense. He argues he was deprived of a witness interpreter because the defense “had no practical means of cross-examining [the deputy's] testimony about his interpretation of the jailhouse conversation.” He also takes issue with the trial court's conclusion that meaningful cross-examination was possible because defendant spoke Cambodian. Defendant counters that he was not a qualified interpreter, and the jury would have known any questions defense counsel asked had come from defendant - effectively waiving his right to confidential communication with his attorney and effective assistance of counsel. We disagree.
Because defendant never asked the trial court to appoint an interpreter or to fund the hiring of one, his contention is forfeited. (People v. Romero (2008) 44 Cal.4th 386, 411 [forfeiture applies to errors relating to witness interpreters].) Additionally, we note defendant could have sought funding for an interpreter to offer an independent interpretation of the recorded conversation between him and his girlfriend. (See People v. Schaffer (2010) 185 Cal.App.4th 1235, 1245 [Under Penal Code section 987 and 987.8, subdivision (g), indigent criminal defendants are entitled to necessary expenses, including fees for expert testimony or funding for any other form of services provided to assist a defendant in the preparation or presentation of a case].)
Moreover, defendant has failed to establish any prejudice. The defense was permitted to cross-examine the deputy, including about his background and qualifications as an interpreter. (See People v Perez (2000) 82 Cal.App.4th 760, 765 [“The Confrontation clause guarantees only ‘an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish... successful cross-examination is not the constitutional guarantee' ”].) Nor did defendant establish through an offer of proof from a disinterested Cambodian speaking witness that the deputy's interpretation was wrong.
And as to communicating with his counsel, we note that defense counsel could have discussed the recording with defendant before trial. Or during the pendency of the trial, counsel could have consulted with defendant outside the presence of the jury when court was not in session or asked for a recess to do so during trial. In any event, consultation between counsel and client during trial is not only inevitable but desirable. It is the reason a defendant is ordinarily seated at counsel table. (People v. Zammora (1944) 66 Cal App.2d 166, 234-236.) As here, juries are instructed to decide the case “based only on the evidence that has been presented to you in this trial.” As for defendant's ability to consult with council somehow being problematic because defendant himself is not court certified, we are at a loss why he would need to be certified to translate his own statement.
No violation of defendant's Sixth or Fourteenth Amendment rights occurred.
DISPOSITION
The judgment is affirmed.
We concur: RAYE, P. J., HULL, J.