Opinion
Review Granted October 2, 1986.
Certified for Partial Publication
Review Granted Oct. 2, 1986.
Opinion on pages 28-180 omitted.
[228 Cal.Rptr. 471]Carl A. Gonser, San Anselmo, under appointment by the Court of Appeal, for defendant and appellant.
John K. Van de Kamp, Atty. Gen. and Thomas Y. Shigemoto and Ruth Saavedra, Deputy Atty. Gens., for plaintiff and respondent.
Assigned by the Chief Justice.
Defendant appeals from an order admitting him to probation with general conditions and a special condition that he serve 360 days in the county jail. As a result of a jury trial he was found guilty of two counts of vehicle burglary (Pen.Code, § 459), and one count of tampering with a vehicle (Veh.Code, § 10852).
In the published part of this decision we deal with defendant's contentions that his Miranda rights were violated (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) and that he had a right to have an interpreter present during police questioning. Finding no merit either in these contentions or in those which we address in the unpublished portion of this opinion, we shall affirm.
The reporter of decisions is directed to publish all of the opinion including the dissent, except Parts III, IV, V, VI, VII and VIII (Cal.Rules of Court, rule 976.1)
"This case requires that we determine the impact of this new constitutional provision [section 28(d) ] upon prior decisions of California courts which mandate the exclusion of evidence ... under circumstances in which the evidence would be admissible under federal constitutional principles. Specifically, the question is whether a person charged with commission of a criminal offense may insist upon the exclusion of relevant evidence at trial on the ground that the evidence was seized in violation of article I, section 13, or was seized in violation of the right of another person to be free of unreasonable search and seizure under either constitutional provision." (In re Lance W., supra, 37 Cal.3d at p. 879, 210 Cal.Rptr. 631, 694 P.2d 744, original italics.)
In the early morning hours of November 14, 1982, Davis police officers, responding to reports of automobile burglaries, observed defendant riding a bicycle in the area of the reported crimes. When the officers asked defendant to stop he threw a hammer into an adjacent field. A backpack was also recovered where it had been abandoned on the street. Both the hammer and the backpack had been stolen in the automobile burglaries. Defendant was arrested.
On November 16, 1982, Detective Safarik of the Davis Police Department contacted defendant at the Yolo County Jail. He introduced himself as a police officer and advised the defendant in English of his Miranda rights. He asked defendant if he understood his rights and after defendant responded "Yes," Safarik asked if defendant wished to talk. Defendant again replied, "Yes." Defendant never indicated a lack of understanding, and never lapsed into Spanish. Defendant told Safarik that he was riding his bike in the early morning hours of November 14, saw a backpack and a hammer under a public telephone, picked them up and carried them with him. He [228 Cal.Rptr. 472] said that because he realized it was the police that told him to stop and he knew the property did not belong to him, he threw the hammer and backpack into the field.
At trial, defendant testified he understood what Detective Safarik was asking him on November 16 at the jail, but that it was Safarik who did not understand defendant's answers.
DISCUSSION
I
Defendant's principal contention is that the trial court erred by admitting for the purposes of impeachment statements made by defendant to Detective Safarik. The court stated it could not find beyond a reasonable doubt that defendant had knowingly and intelligently waived his rights under Miranda v. Arizona, supra, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Based on the inability to find beyond a reasonable doubt, the court barred from the case-in-chief statements made after the defendant's arrest. The court, however, ruled that the People could impeach defendant with the statements made after his arrest, based on California Constitution, article I, section 28, subdivision (d), enacted in ballot Proposition 8 of 1982.
Article I, section 28, subdivision (d), of the California Constitution provides: "Right to Truth-in-Evidence. Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court. Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, Sections 352, 782, or 1103. Nothing in this section shall affect any existing statutory or constitutional right of the press."
Because of the language difficulty, and because defendant had asked Detective Safarik whether he was a lawyer prior to making the statements, the trial court determined that, while it was proven by a preponderance of the evidence that defendant was informed of and understood his constitutional rights before waiving them, it was not proven beyond a reasonable doubt. Thus, the trial court ruled statements defendant made to Detective Safarik were inadmissible for the case-in-chief. After defendant testified, the prosecuting attorney moved to impeach him with prior inconsistent statements made to Detective Safarik. The trial court, finding that there was no improper police conduct and that the statements were trustworthy, ruled the statements made to Detective Safarik admissible for the purpose of impeachment.
Defendant maintains that the California Supreme Court's opinion in People v. Disbrow (1976) 16 Cal.3d 101, 545 P.2d 272, was not abrogated by the enactment of Proposition 8, when the electorate added article I, section 28, subdivision (d), the truth-in-evidence provision, to the California Constitution. Disbrow held that even for impeachment, statements in violation of Miranda could not be used. The federal law is contrary, allowing such statements to be used for impeachment. (Harris v. New York (1971) 401 U.S. 222, 223-226, 91 S.Ct. 643, 644-646, 28 L.Ed.2d 1, 3-5.) We need not reach the holding in Disbrow, as we hold the statements made were properly admitted in that Proposition 8 allows admission of the statements upon proof of the Miranda waiver by a preponderance of the evidence.
The People urge that Proposition 8 invalidated the holding in People v. Jimenez (1978) 21 Cal.3d 595, 608, 147 Cal.Rptr. 172, 580 P.2d 672, that the voluntariness of a confession must be proven beyond a reasonable doubt. The People assert the proper test is whether the voluntariness of a confession has been proven by a preponderance of the evidence. (Lego v. Twomey (1972) 404 U.S. 477, 489, 92 S.Ct. 619, 626, 30 L.Ed.2d 618, 627.)
The threshold issue centers upon the standard of proof required for the admissibility of a confession.
We look first to the effect of Proposition 8 on Jimenez. Proposition 8 has withstood several attacks on its constitutionality. (In [228 Cal.Rptr. 473] re Lance W. (1985) 37 Cal.3d 873, 210 Cal.Rptr. 631, 694 P.2d 744; Brosnahan v. Brown (1982) 32 Cal.3d 236, 186 Cal.Rptr. 30, 651 P.2d 274.) The California Supreme Court has held that "not only the language of [section 28(d) ] but also accepted statutory construction and available 'legislative' history confirm [the] conclusion that the electorate intended to mandate admission of relevant evidence, even if unlawfully seized, to the extent admission of the evidence is permitted by the United States Constitution." (In re Lance W., supra, at pp. 887-888, 210 Cal.Rptr. 631, 694 P.2d 744.) The court concluded the "people have apparently decided that the exclusion of evidence is not an acceptable means of implementing those [substantive rights protected by either constitution], except as required by the Constitution of the United States." (Id., at p. 887, 210 Cal.Rptr. 631, 694 P.2d 744.)
In Lance W., the Supreme Court recognized an implicit limitation "on the power of the court to create nonstatutory exclusionary rules, whether denominated rules of procedure, rules of evidence, or substantive rules, for the exclusion of unlawfully seized evidence if those rules afford greater protection to a criminal defendant than does the Fourth Amendment." (In re Lance W., supra, at pp. 888-889, 210 Cal.Rptr. 631, 694 P.2d 744.) While the Court was addressing search and seizure violations, the footnote immediately following the above quotation cites those ballot arguments which advised the voter in general: " 'For too long our courts ... have demonstrated more concern with the rights of criminals than with the rights of innocent victims.' 'Higher courts of this state have created additional rights for the criminally accused and placed more restrictions on law enforcement officers. This proposition will overcome some of the adverse decisions by our higher courts.' " ( Id., p. 889, fn. 9, 210 Cal.Rptr. 631, 694 P.2d 744.) Footnote 8 states "ballot summaries and arguments are accepted sources from which to ascertain the voters' intent and understanding of initiative measures. [Citations omitted.]" (Id., at p. 888, fn. 8, 210 Cal.Rptr. 631, 694 P.2d 744.) Based on the foregoing, the limitations on the creation of rules addressed in Lance W. apply equally to violations of Miranda rights.
Indeed, the explicit language of section 28, subdivision (d), compels the admission of relevant evidence except to the extent that the federal constitution forbids its use. (In re Lance W., supra, at p. 888, 210 Cal.Rptr. 631, 694 P.2d 744.) Evidence Code section 210 defines relevant evidence as "... evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." When the Jimenez court adopted the rule that voluntariness of a confession must be proved beyond a reasonable doubt, implicit therein was the acknowledgement that a confession admissible by whatever standard is relevant evidence. Clearly, a confession is relevant evidence within the meaning of section 28, subdivision (d).
An indirect effect of section 28, subdivision (d), is to change the prior rules of burden of proof for confessions. The commandment of the initiative is to require all relevant evidence be admitted save that barred by applicable federal constitutional standards and those enumerated exceptions. The section does not permit the courts to require the proof of any preliminary fact other than what is required under federal constitutional standards, and thus, there is nothing to which a burden of proof can pertain. Under section 28, subdivision (d), the only requirement remaining before admissibility is the establishment of any preliminary fact required under federal mandates. Those mandates include the standard of a preponderance of the evidence to establish the voluntariness of a confession. (Lego v. Twomey, supra, 404 U.S. at p. 489, 92 S.Ct. at 626, 30 L.Ed.2d at p. 627.) Thus, the indirect effect of section 28, subdivision (d), is to replace the Jimenez rule with the standard in Lego.
We also expressly reject the argument that the Jimenez rule survives Proposition [228 Cal.Rptr. 474] 8's "Truth-in-Evidence" provision by virtue of the holding in Ramona R. v. Superior Court (1985) 37 Cal.3d 802, 808, 210 Cal.Rptr. 204, 693 P.2d 789. While Ramona R. and People v. Weaver (1985) 39 Cal.3d 654, 217 Cal.Rptr. 245, 703 P.2d 1139, appear to establish that Evidence Code section 940 includes within its reach judicial decisions relating to the privilege against self-incrimination, we do not believe the Supreme Court has ordained that all judicial decisions relating to the privilege are thus "saved" from the basic relevant evidence provision of Proposition 8. In Ramona R. the court relied upon the Law Revision Commission comment to section 940, which "declares that 'Section 940 does not determine the scope of the privilege against self-incrimination; the scope of the privilege is determined by the pertinent provisions of the California and United States Constitutions as interpreted by the courts.' " (37 Cal.3d at p. 808, 210 Cal.Rptr. 204, 693 P.2d 789; emphasis added.) The court then noted it "must determine whether the use immunities [at issue there] are mandated by the United States or California Constitutions, including judicial interpretation thereof. If they are, they fall within the exception to section 28(d) for statutory privileges, and thus, survive the adoption of Proposition 8." (Ibid.) In Ramona R., the court determined the use immunity in that case was required in order to protect California's privilege against self-incrimination, and thus, is required by the California Constitution. (Id., at pp. 809-810, 210 Cal.Rptr. 204, 693 P.2d 789.)
By contrast, in People v. Jimenez, supra, 21 Cal.3d 595, 147 Cal.Rptr. 172, 580 P.2d 672, the Supreme Court expressly declined to reach the constitutional question asserted by the defendant to justify application of the reasonable doubt standard. (Id., at p. 605, 147 Cal.Rptr. 172, 580 P.2d 672.) The court concluded "the reasonable doubt standard is required as a judicially declared rule of criminal procedure." (Ibid.) Thus, the Jimenez rule imposing the higher standard of proof is not compelled by the United States or California Constitutions, and accordingly it does not fall into the exception to section 28, subdivision (d), as a statutory privilege. (See Ramona R., supra, 37 Cal.3d at p. 808, 210 Cal.Rptr. 204, 693 P.2d 789.)
It is argued that the decision in People v. Weaver, supra, concerning the "Coleman exclusionary rule," compels the conclusion that the Jimenez rule is also mandated by the California Constitution. We find a significant difference, however, between the Jimenez standard of proof and the Coleman remedy (as subsequently interpreted by Ramona R.) Like the rule in Jimenez, the Coleman exclusionary remedy was originally fashioned as a judicial rule of evidence. (See People v. Coleman (1975) 13 Cal.3d 867, 889, 120 Cal.Rptr. 384, 533 P.2d 1024.) Then, in Ramona R. the Supreme Court expressly clarified the Coleman holding as compelled by the state Constitution, terming it "essential to California's privilege against self-incrimination." (Ramona R., supra, 37 Cal.3d at pp. 809-810, 210 Cal.Rptr. 204, 693 P.2d 789.) In deciding Weaver, Justice Lucas simply recognized that the Coleman exclusionary remedy fell into the exception to section 28, subdivision (d), as a statutory rule relating to privilege, because the remedy was defined to be constitutionally compelled in Ramona R.
Jimenez, on the other hand, has not been so "clarified." As it stands, the Jimenez standard of proof is compelled by a policy consideration which postulates the higher standard of proof may "minimize[ ] the risk, ... that a coerced confession will be admitted into evidence at trial." (21 Cal.3d at p. 606, 147 Cal.Rptr. 172, 580 P.2d 672.) Additionally, the Jimenez court relied on the effect of Evidence Code section 405, where, "once the trial court has determined that a confession is voluntary and therefore admissible, the jury does not redetermine the voluntariness issue ... and an appellate court must accept the trial court's resolution of conflicting evidence, ..." (Id., at p. 607, 147 Cal.Rptr. 172, 580 P.2d 672.) Finally, the court relied upon the "salutary effect [of the reasonable doubt standard] on the ultimate fact-finding process by reducing [228 Cal.Rptr. 475] the possibility that coerced confessions in general will be admitted and thereby the possibility that coerced false confessions will be admitted." (Id., at p. 607, 147 Cal.Rptr. 172, 580 P.2d 672, original emphasis.) Thus, the court concluded the "rule requiring the prosecution to prove the voluntariness of a confession beyond a reasonable doubt reflects sound judicial policy; ..." (Id., at p. 608, 147 Cal.Rptr. 172, 580 P.2d 672; emphasis added.)
Based on the foregoing, we are unable to conclude the Jimenez standard of proof is compelled by the California Constitution, and it is equally clear the Supreme Court has not come to that conclusion. As that court has determined judicial decisions relating to the privilege against self-incrimination fall within the statutory rule of Evidence code section 940 only insofar as they are "mandated by the ... Constitutions" (Ramona R., supra, 37 Cal.3d at pp. 809-810, 210 Cal.Rptr. 204, 693 P.2d 789), and the Jimenez standard is not so mandated, we do not regard the Jimenez standard of proof to be a "statutory rule of evidence relating to privilege" within the exception to section 28, subdivision (d), by virtue of Evidence Code section 940.
Hence we necessarily reject as untenable the view of the dissent in this case and that of the lead opinion by this court in People v. Azure (1986) 178 Cal.App.3d 591, 224 Cal.Rptr. 158, that the Jimenez rule requires no constitutional predicate for its continued survival.
The obvious purpose of Proposition 8 was to conform California criminal procedure law to federal law. (In re Lance W. (1985) 37 Cal.3d 873, 887-889, 210 Cal.Rptr. 631, 694 P.2d 744.) As we have noted, the explicit language of section 28, subdivision (d), compels the admission of relevant evidence except to the extent that the federal Constitution forbids its use. (In re Lance W., supra, at p. 888, 210 Cal.Rptr. 631, 694 P.2d 744.) Thus, the indirect effect of Proposition 8 is to replace the Jimenez standard with the federal standard in Lego v. Twomey, supra, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618, which requires a confession be found voluntary by a preponderance of the evidence. We do not consider the Jimenez standard of proof essential to California's privilege against self-incrimination. The rights of the accused are well protected by the trial judges of this state using the Federal rule of standard of proof, that is, by preponderance of the evidence, when admitting confessions. The standard concerns admissibility rulings, not convictions. (Lego v. Twomey, supra, 404 U.S. at pp. 487-488, 92 S.Ct. at 625-626, 30 L.Ed.2d at pp. 626-627.)
In the instant case, the court found defendant understood and voluntarily waived his Miranda rights by a preponderance of the evidence. The findings are supported by the record of the evidentiary hearing. Detective Safarik testified he had communicated in English with defendant prior to November 16, 1982; that on November 16, he contacted defendant at the Yolo County Jail and identified himself as a police officer; that he had advised defendant in English of his constitutional rights from a card, and asked if defendant understood his rights. Defendant responded "Yes." Safarik then asked defendant if he wished to talk and defendant stated "Yes." Defendant never stated he did not understand when pressed for details by Safarik, and he never used Spanish to respond. Safarik understood that defendant was bilingual and spoke English with a heavy accent; however, he stated defendant was "lucid" in his responses, and he had no problem understanding defendant.
Defendant testified at the hearing that he asked Safarik if he was his attorney. He claims nothing was read to him beforehand, and he did not recall being asked if he wanted to talk to an attorney. He stated that he thought Safarik was an attorney. He testified he understood the questions being asked, but believed Safarik did not understand his answers. There was no evidence of physical or mental coercion. We conclude defendant's statements were admissible under federal law, and thus under the truth-in-evidence provision of Proposition 8. [228 Cal.Rptr. 476]
II
Defendant also contends his statements were improperly obtained because there was no interpreter present during police questioning after his arrest but prior to his being charged with any crime. Defendant asserts he has a right to an interpreter under California Constitution, article I, section 14, which provides in part: "A person unable to understand English who is charged with a crime has the right to an interpreter throughout the proceedings."
Defendant's contentions are without merit, as the constitutional provision expressly does not grant a right to an interpreter except to persons "charged with a crime," and because the proceedings to which the provision refers can only be those which are conducted before a court or judicial officer.
In People v. Aguilar (1984) 35 Cal.3d 785, 200 Cal.Rptr. 908, 677 P.2d 1198, the California Supreme Court held the constitutional requirement for an interpreter applies "throughout the proceedings." (Aguilar, supra, at pp. 790-791, 200 Cal.Rptr. 908, 677 P.2d 1198; see In re Dung (1984) 160 Cal.App.3d 697, 707, 206 Cal.Rptr. 772.) However, the court discusses this right only in the context of judicial proceedings, and not investigatory proceedings, in-field questioning or custodial questioning prior to charging. In footnote 2, the Court noted that an investigating detective has "ample time to assure by measured tone of voice and repetition that defendant [understands] him. In contrast, a trial is a formal proceedings." (Aguilar, supra, 35 Cal.3d p. 788, fn. 2, 200 Cal.Rptr. 908, 677 P.2d 1198.) We conclude the constitutional right to an interpreter does not apply to investigatory proceedings or in-field or custodial questioning prior to any formal charging of a defendant.
The constitution provides the right to an interpreter to any "person unable to understand English who is charged with a crime...." (Cal.Const., art. I, § 14.) In the instant case, defendant was questioned by Detective Safarik in jail on November 16, 1982, two days after the early morning arrest on November 14. Defendant was subsequently released from jail pending the investigation. Defendant was charged on March 14, 1983, by information filed in the superior court with the vehicular burglaries, and he was arraigned on March 16. Based on the express language of the constitutional article, we conclude the right to an interpreter does not vest until a defendant is charged with a crime, "either by indictment or, after examination and commitment by a magistrate, by information." (Cal.Const., art. I, § 14.) Thus, defendant in the instant case was not entitled to an interpreter until he was charged with a crime on March 14, 1983.
If the language difficulties are implicated in the giving of Miranda warnings, a defendant may move to suppress any statements made as inadmissible, as there may not have been a voluntary and knowing waiver of his constitutional rights. Such was the case here, where the trial court deemed statements inadmissible for use in the case-in-chief due to language difficulties. Any such motion is more properly based on a violation of Miranda rights than on any constitutional right to an interpreter.
See footnote 1 ante.
The judgment (order of probation) is affirmed.
PUGLIA, P.J., concurs.
CARR, Associate Justice.
For the reasons stated in the majority opinion of this court in People v. Azure (1986) 178 Cal.App.3d 591, 224 Cal.Rptr. 158 (rev. den. 5/22/86) I dissent from the majority holding in Part I that the standard of proof to be employed in determining the voluntariness of a confession is a preponderance of the evidence as opposed to beyond a reasonable doubt. Azure, supra, the rationale of which I find persuasive, [228 Cal.Rptr. 477] rejected the concept adopted by the majority herein that the Truth-in-Evidence provisions of Proposition 8 (Cal.Const., art. I, § 28, subd. (d)) abrogated the rule established by People v. Jimenez (1978) 21 Cal.3d 595, 608, 147 Cal.Rptr. 172, 580 P.2d 672 requiring the prosecution to prove voluntariness of a confession beyond a reasonable doubt. The majority herein say the federal standard requiring proof only by a preponderance of the evidence as enunciated in Lego v. Twomey (1972) 404 U.S. 477, 489, 92 S.Ct. 619, 626, 30 L.Ed.2d 618, 627, is the appropriate standard post-Proposition 8 and this conclusion is mandated by In re Lance W. (1985) 37 Cal.3d 873, 210 Cal.Rptr. 631, 694 P.2d 744.
In my view, the majority misperceives the breadth of Lance W., supra. Lance W. was expressly limited to cases involving evidence alleged to have been unlawfully seized and specifically to the right of a defendant to assert vicarious standing in moving to exclude evidence, a right enunciated on independent state grounds in People v. Martin (1955) 45 Cal.2d 755, 290 P.2d 855 and Kaplan v. Superior Court (1971) 6 Cal.3d 150, 156, 98 Cal.Rptr. 649, 491 P.2d 1. 1 In resolving these limited issues, the Supreme Court determined that the exclusionary rule is simply a judicially created remedy designed to safeguard rights conferred by the search and seizure provisions of the federal and state Constitutions through its deterrent effect on police misconduct and is not a substantive constitutional right. (37 Cal.3d at p. 887, 210 Cal.Rptr. 631, 694 P.2d 744.) In short, the exclusionary rule is only a judicially created rule whose purpose is to give substance to the rights conferred by the Fourth Amendment and article 1, section 13.
The majority's conclusion that "the limitations on the creation of rules addressed in Lance W. apply equally to violations of Miranda rights" (maj. opn. p. 473) is simply not valid. To equate the judicially declared remedy of the exclusionary rule with the statutory and constitutional privilege against self-incrimination is like comparing an easement of necessity to fee simple title. In the former, they both relate to the law, in the latter to the land and there the resemblance ends.
In my view, as I expressed in People v. Azure, supra, the Supreme Court in Ramona R. v. Superior Court (1985) 37 Cal.3d 802, 808, 210 Cal.Rptr. 204, 693 P.2d 789, and People v. Weaver (1985) 39 Cal.3d 654, 217 Cal.Rptr. 245, 703 P.2d 1139 could not more clearly beacon that Evidence Code section 940 includes within its parameters existing judicial decisions relating to its statutory privilege and that judicial decisions dealing with the voluntariness of a confession or a statement against interest and the standard of proof by which such confession or statement are to be measured are included within those parameters. Whether the court declared a particular rule to be a judicial rule of evidence or constitutionally based is irrelevant. The issue is whether it is constitutionally or statutorily compelled. To assert that we must wait on the sidelines until the Supreme Court "clarifies" People v. Jimenez, as suggested by the majority is not a solution. (Maj. opn. p. 474.) We do not exist in a legal vacuum. We appropriately fit the applicable rules of law to each situation as it arises.
I would affirm the trial court's application of the beyond a reasonable doubt standard to the Miranda rights issue but, unlike the majority, would meet the issue of the continued viability of People v. Disbrow [228 Cal.Rptr. 478] (1976) 16 Cal.3d 101, 127 Cal.Rptr. 360, 545 P.2d 272 and for the reasons stated in the majority opinion in People v. Clark (1985) 171 Cal.App.3d 889, 217 Cal.Rptr. 819 would hold Disbrow has not been rendered a nullity by enactment of article I, section 28, subdivision (d) of our California Constitution but remains preserved as a statutory exemption to the provisions of that section. It was therefore error to permit defendant to be cross-examined by a statement taken in violation of his Miranda rights. Because of my solitary and therefore powerless status in this case, I do not reach the issue of whether such error was prejudicial or harmless.