Alfred A. (father), the presumed father of one-year-old V.A., 10-year-old Alfredo A., and 12-year-old Mark A., appeals from a judgment under Welfare and Institutions
We agree the court erred when it ordered father to testify. The court concluded father had no Fifth Amendment privilege in the dependency proceeding because section 355.1, subdivision (f) (section 355.1(f)), precluded use of his testimony in any other proceeding. The court’s conclusion impliedly found the immunity provided by section 355.1(f) was coextensive with father’s Fifth Amendment privilege, thereby justifying his compelled testimony. But a comparison of the plain language of section 355.1(f) with the equally plain language of the United States Supreme Court in
Kastigar v. United States
(1972)
FACTS
In the allegation most relevant to this appeal, SSA alleged that father, while intoxicated, had repeatedly struck V.’s mother, Myra A. (mother), while she was holding the infant V. in her arms, causing mother to drop the child, resulting in a fracture of V.’s right femur. The incident had resulted in father’s arrest on multiple criminal charges, including, as relevant here, willful cruelty to a child with possible injury or death (Pen. Code, § 273a, subd. (a)), inflicting corporal injury upon a spouse (Pen. Code, § 273.5, subd. (a)), and violation of a protective order with physical injury (Pen. Code, § 273.6, subd. (b)). In its August 9, 2006 juvenile dependency petition, SSA alleged that V. came within the jurisdiction of the juvenile court under section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), (e) (severe physical abuse of child under five), and (j) (abuse of sibling). SSA further alleged that Alfredo and Mark came within
The Jurisdiction and Disposition Hearing
At the combined jurisdiction and disposition hearing in January 2007, the court received into evidence and considered eight separate reports prepared by SSA, and heard testimony from social worker Barbara Mautino, Mark, and mother. All three witnesses were called by father: Mautino for the purpose of cross-examining her on the reports she had prepared, and Mark and mother as witnesses on father’s behalf.
The jurisdiction/disposition report prepared by Mautino recited the substance of her interview with father. Father and mother were married but separated. Mother had called father on a Friday evening and asked him to pick her up. Mother told him the baby (V.) “was constipated and had fallen off the bed.” She asked him to come and take the child to a hospital. Father protested, and suggested mother take the child to a nearby hospital herself. But later that evening father picked up mother and V. and brought them to his rented garage that had been converted into a living space. Father and mother drank that night, and “mother was getting agitated.” Father became “concerned because . . . mother has been violent before.” He asked a friend who was at a party outside the garage to “call the cops.” When the friend left, father “turned around and the next thing [he] knew the baby was on the floor.” “He didn’t know what happened. . . . [He] asked her if she dropped the baby, and she just started crying.” Father denied he ever hit mother. He also opined that mother’s injuries were suffered because “ ‘she hit herself. She has done that before and said I hit her.’ ”
The social worker also interviewed Mark. She reported Mark was “well groomed and well nourished,” and attended an intermediate school in Santa Ana as a seventh grader. He lived with father and his brother in the garage father had rented. Mark understood that his father was in jail for hitting V., but he stated, “ ‘My father did not hit V.’ ” Mark stated he and his brother were in the garage on the night of the incident, that he was “ ‘half awake,’ and that he saw his father ‘push’ [his] stepmother, but did not see the father hit the child.” Mark “had only seen his father drunk once, when his father slapped his stepmother.”
Alfredo gave a similar account to the social worker. “[H]e had never seen his father drunk, because his father ‘always only drinks two beers when he drinks.’ ” Alfredo “was not aware of the alleged accident with the child V.” Despite Alfredo’s lack of awareness, he also stated, “ ‘V. fell off the bed and that is how she got hurt, my father did not hit her.’ ”
The social worker’s jurisdiction/disposition report also quoted extensively from the detention report prepared at the time the children were taken into protective custody, including an interview with mother. Mother had first denied being with father on Friday evening, stating father had picked up V. for his weekend visit. Father had called her the next day and “told her that he took the baby to the emergency room because she seemed to be in pain during diaper changes.” “[M]other denied any abuse by V.’s father and stated she had no concerns about his parenting.”
Mother’s neighbors, however, told the social worker that mother had told them about father having beaten her while she was holding V, and that she had dropped
In an addendum report, SSA reported the opinion of the surgeon who had operated on V.’s femur. The surgeon stated he did “not believe that the break to the child’s leg could have occurred from a fall off of a bed.”
At the jurisdiction/disposition hearing, father cross-examined Mautino, but she had no further information concerning the precipitating incident. She did testify she had measured the height of the bed at mother’s home and found it was two feet above the carpeted floor.
Mark testified consistently with the information he had given the social workers. He stated mother once broke father’s stereo with a hammer, and had said mean things to father “like she doesn’t want to live here, [and] she’s going to bum down the house.” But Mark repeated he had not seen the alleged altercation because he was sleeping. He had never seen father or mother hit each other.
Father called mother as a witness. She testified consistently with the second version of the events she had related to the social worker and gave a vivid account of the altercation with father. When she arrived with V. at father’s rented garage on Friday night, they both “started drinking.” She said father was dmnk, so she asked him to take her home. He refused “because he said he was drunk.” Father accused her of having a boyfriend at her home, and they argued. The argument escalated when father called her “a bitch and a ho.” Mother asked him “if that was the case, then why did he want me there.” Father responded she was “just there because he just wanted to fuck [her].” She threw a cell phone at father, but missed him. “That’s when [father] punched me in my face.” Mother was holding the baby V. during the entire argument. Mother turned after being hit in the face, and father continued beating her in the back and the back of the head until she dropped the baby.
Father Asserts His Fifth Amendment Right Against Self-incrimination
Mother’s counsel called father to testify as a witness. Father’s counsel announced father’s “intention to invoke his right not to incriminate himself and [counsel did] not believe there are going to be any questions that could be relevant that would lead him to not invoke that right.” Father’s counsel presented a brief on the issue, and mother’s counsel invited the court to review former mle 1421(d) (now rale 5.548) which specifies the procedure for granting immunity to a witness in a section 300 proceeding. The court recessed for lunch. After the luncheon recess, the court invited argument on father’s Fifth Amendment claim. Mother’s counsel referred to rale 5.548(d) and argued the court could “compel him to testify and offer him immunity to testify.” Counsel for the children argued “there are means that the court can take so that his testimony can’t be easily discovered.” SSA argued that since father had made statements to social workers that were already contained in some of the SSA reports, “all counsel have the right to cross-examine him as to those statements.”
The court then turned to father’s counsel and asked, “[P]erhaps father’s counsel would like to provide the court with some
The court then advised father that he was “on notice that if you refuse to follow an order that the court will make should you decide not to testify, that I will strike the evidence you presented. That means that what [mother] testified to is not going to be considered by the court. The court is not interested in reviewing it. I will not consider what Mark testified to either. What I will be relying on is the information that was filed or presented to the court by way of the social services reports.”
Mother’s counsel then called father as a witness, and asked two questions: “Did you tell the mother to lie about how V. was hurt?” and “Did you repeatedly strike the mother while she was holding V. in her arms?” Father asserted his Fifth Amendment privilege, the court ordered father to answer, he refused, and the court struck the testimony of mother and Mark.
The court sustained the petition as to all children under section 300, subdivisions (a) and (b), under subdivision (j) as to Joshua and V., and under subdivision (g) as to Mark and Alfredo. The allegations under section 300, subdivision (e) were found not to be true. The children were declared dependents of the juvenile court.
DISCUSSION
The Court Erred by Ordering Father to Testify After He Invoked His Fifth Amendment Right Against Self-incrimination
In
Kastigar, supra,
The statute at issue in Kastigar was title 18 United States Code section 6002. “The statute provides that when a witness is compelled by district court order to testify over a claim of the privilege: [][] ‘the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.’ ” (Kastigar, supra, 406 U.S. at pp. 448-449.) The Kastigar court held “[t]he statute’s explicit proscription of the use in any criminal case of ‘testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information)’ is consonant with Fifth Amendment standards. We hold that such immunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege. While a grant of immunity must afford protection commensurate with that afforded by the privilege, it need not be broader.” {Id. at p. 453, italics added.)
The statute at issue here, section 355.1(f), provides: “Testimony by a parent . . . who has the care or custody of the minor made the subject of a proceeding under Section 300 shall not be admissible as evidence in any other action or proceeding.” The court construed section 355.1(f) as providing sufficient “use immunity that results by operation of law” to compel father’s testimony. But under
Kastigar,
a grant of immunity “must afford protection commensurate with that afforded by the privilege”
(Kastigar, supra,
We are not prepared to
infer
that section 355.1(f) provides full use and derivative use immunity for compelled testimony, contrary to the explicit language of the statute. In construing a statute, our role is “not to insert what has been omitted, or to omit what has been inserted.” (Code Civ. Proc., § 1858.) Striking an appropriate balance between the government’s interest in prosecuting crimes and its interest in securing the parent’s full cooperation and participation in juvenile dependency proceedings is a matter of policy, not of law. A policy decision to grant
all
parents blanket statutory use and derivative use immunity from criminal prosecution, no matter what the circumstances,
A procedure is available by which use and derivative use immunity may be granted in a particular case. In a section 300 proceeding, either SSA or the prosecuting attorney may request the court to order a witness to answer a question or produce evidence. (Rule 5.548(d).) The request may also be made jointly by SSA and the prosecuting attorney. If the request is not made jointly, the other party “must be given the opportunity to show why immunity is not to be granted . . . ,”
4
(Rule 5.548(d)(1).) And if the request is made jointly, the court may still deny immunity if “to do so would be clearly contrary to
the public interest.” (Rule 5.548(d)(2).) Upon a grant of immunity under rule 5.548(d), “any answer given, evidence produced, or information derived there from must not be used against the witness in a juvenile court or criminal proceeding.” (Rule 5.548(d)(3).) The immunity granted thus affords “protection commensurate with that afforded by the privilege.”
(Kastigar, supra,
We note also that other rules of court would be wholly unnecessary if section 355.1(f) provided immunity coextensive with the privilege. Rule 5.534(j)(l)(A) provides generally that in section 300 cases the court must advise the “child, parent, and guardian” of “[a]ny right to assert the privilege against self-incrimination.” Specifically, at the jurisdiction hearing, “[ajfter giving the advisement required by rule 5.534, the court must advise the parent or guardian,” inter alia, of “[t]he right to assert any privilege against self-incrimination.”
6
(Rule 5.682(b)(2).) If section
The Existence of an Exclusionary Rule of Evidence Is Insufficient to Compel Testimony over the Assertion of the Fifth Amendment Privilege
It remains our task to address the cases relied upon by the trial court and by SSA on this appeal. We will conclude that although several cases have declared an exclusionary rule of evidence in support of Fifth Amendment goals, none have approved compelling the testimony of a witness over a valid Fifth Amendment objection, absent a proper grant of immunity coextensive with the privilege, and given at the time the testimony is compelled.
First, the trial court relied on
Amos L., supra,
It is undeniable, however, that the
Amos L.
court grounded its decision on the predecessor statute to section 355.1 which prohibited the use of a parent’s testimony in any other proceeding. Whether the statute provided immunity coextensive with the privilege was apparently not argued, and certainly not discussed by the
Amos L.
court. “[Cjases are not authority for propositions not considered therein.”
(Roberts
v.
City of Palmdale
(1993)
On appeal, SSA also relies on a series of cases in which the courts have fashioned exclusionary rules of evidence to sustain conditions placed upon a parent as part of the reunification process over the parent’s Fifth Amendment challenge.
(In re Jessica B.
(1989)
We begin our analysis of these juvenile dependency cases by returning to one of the original sources of the doctrine they espouse,
Coleman, supra,
A related body of law contributed to the juvenile dependency cases relied upon by SSA. In
Bryan v. Superior Court
(1972)
The
Bryan
and
Wayne H.
rules were again reviewed by our Supreme Court in
Ramona R.,
supra,
Neither
Coleman
nor
Ramona
R.—the underpinnings of the dependency cases cited by SSA—involved the court’s attempt to
compel
testimony over a
Fifth Amendment objection. The Supreme Court used the word “immunities” as convenient shorthand to describe judicially created exclusionary rules of evidence. The testimony was declared inadmissible in a subsequent criminal prosecution, not because a district attorney had decided to request use and derivative use immunity for the witness in furtherance of a prosecution, but to provide a willing (but fearful) witness some measure of relief when finding it necessary to self-incriminate in order to achieve some other legitimate goal; in short, to ameliorate the Hobson’s choice facing the witness. These rules were held in
Ramona R., supra,
Jessica B., supra,
The
Jessica B.
court added some language that, in our view, veered off course, stating: “[A] person proceeding simultaneously in the criminal courts for child abuse and the juvenile court regarding a dependency of the abused minor should not only be granted use immunity for his or her testimony at dependency proceedings that constitutes an admission to the acts at issue in the criminal case against him or her but also for such statements made during court-ordered therapy.”
(Jessica B., supra,
We construe similarly the other cases cited by SSA.
Lamonica H., supra,
In
Candida S., supra,
The last case cited by SSA,
Joanna Y, supra,
We draw a distinction between a witness’s right to refuse to answer incriminatory questions, absent the grant of use and derivative use immunity, and the concomitant right to exclude answers from evidence where the requisite immunity has not been granted. “[A] witness protected by the privilege may rightfully refuse to answer unless and until he is protected at least against the use of his compelled answers and evidence derived therefrom in any subsequent criminal case in which he is a defendant. [Citation.] Absent such protection, if he is nevertheless compelled to answer, his answers are inadmissible against him in a later criminal prosecution.”
(Lefkowitz
v.
Turley
(1973)
The United States Supreme Court has drawn the same distinction. In
Maness
v.
Meyers
(1975)
Similarly, in
Pillsbury Co.
v.
Conboy
(1983)
Thus, California law offers a promise to a parent that his or her testimony in juvenile dependency proceedings, as well as his or her statements made in therapy in furtherance of the reunification process, will not be used against the parent in a subsequent criminal prosecution. Thus, while the law may legitimately require a parent to admit responsibility for wrongful acts as a condition to be fulfilled in therapy, and while the parent has some protection if he or she chooses to testify, the consequences of the parent’s decision not to acknowledge his or her wrongdoing, or not to testify, must be limited to the usual consequences occasioned by the lack of cooperation in the reunification process, or by the failure to present evidence. The parent remains free to refuse the law’s exclusionary offer, and to stand on the Fifth Amendment without other sanction, both in court and in therapy. Neither section 355.1(f) nor any of the juvenile dependency cases that have addressed the Fifth Amendment privilege have extended the exclusionary rule to information derived from the witness’s testimony. And even if the court extended the exclusionary rule to derivative information, the witness is nevertheless entitled to stand on the Fifth Amendment privilege unless a grant of immunity coextensive with the privilege is granted
at the time
the testimony is compelled. Here, father was entitled to stand on his Fifth Amendment right. As more colorfully put in
Maness v. Meyers, supra,
The Court Lacked Authority to Impose an Evidence Sanction
Even if father’s testimony would have been completely immunized as the trial court believed, striking the testimony
First, although the court found that father violated its order, it made no finding of contempt and made no order adjudging father guilty of contempt. (See Code Civ. Proc., § 1211, subd. (a) [“When a contempt is committed in the immediate view and presence of the court, ... it may be punished summarily; for which an order must be made, reciting the facts as occurring in such immediate view and presence, adjudging that the person proceeded against is thereby guilty of a contempt, and that he or she be punished as therein prescribed”].)
Second, even if father had been adjudged guilty of contempt, we are not aware of any authority that would allow the court to punish the contempt by imposing an evidence sanction. The usual penalties for contempt of court in a civil action are a fine of up to $1,000, or imprisonment for up to five days, or both. (Code Civ. Proc., § 1218, subd. (a).) Where the contempt consists of a willful refusal to testify, the contemner may be imprisoned until he or she gives the answer. (Code Civ. Proc., § 1219, subd. (a).) Under Penal Code section 166, subdivision (a)(4), the willful disobedience of a lawfully issued court order is a contempt punishable as a misdemeanor—up to six months in jail, or a fine of $1,000, or both. (Pen. Code, § 19.) Welfare and Institutions Code section 213 provides that “[a]ny willful disobedience or interference with any lawful order of the juvenile court . . . constitutes a contempt of court,” but does not specify the authorized punishment. “While no case has yet construed the scope of this section, the penalties for violation of section 213 are apparently those set forth in Code of Civil Procedure section 1218 for contempts generally: a fine of up to $1,000, imprisonment of up to five days, or both.”
(In re Michael G.
(1988)
Third, the court has the authority under Code of Civil Procedure section 177.5 to impose a monetary sanction “not to exceed fifteen hundred dollars ($1,500), notwithstanding any other provision of law ... for any violation of a lawful court order by a person, done without good cause or substantial justification.” Thus, had the court’s order been lawful, a fine, but not an evidence sanction, could have been imposed pursuant to this section.
The recent case of
In re Vanessa M.
(2006)
The Error Was Harmless
We have described at some length our reasons for concluding the court erred. We have done so because it appears both the court and SSA held the view that the Fifth Amendment simply does not apply in juvenile dependency proceedings, and because we have interpreted many of the authorities discussed in this opinion differently from the apparent interpretation by the trial court and SSA. Nevertheless, we conclude the error was harmless in this case beyond a reasonable doubt.
(Chapman
v.
State of California
(1967)
Father contends the error was structural, requiring a per se reversal. We disagree. The United States Supreme Court “has applied harmless-error analysis to a wide range of errors and has recognized that most constitutional errors can be harmless.”
(Arizona v. Fulminante
(1991)
We utilize the
Chapman
standard to assess the effect of the error because the trial court punished father for asserting his federally guaranteed constitutional right not to self-incriminate, resulting in a deprivation of his statutory due process right to present evidence on his own behalf. We recognize that the recent case of
Denny H. v. Superior Court
(2005)
We disagree with the
Denny H.
analysis. In our view, where federally guaranteed constitutional rights are trampled, heightened harmless error scrutiny is appropriate, regardless of the burden of persuasion applicable in the trial court. The harmless error standard is the standard which guides the
reviewing
court.
(Chapman, supra,
We also disagree with the
Denny H.
rationale that we may appropriately balance a federally guaranteed constitutional right against a state-created right so as to “honor[] ‘both the special nature and purpose of dependency proceedings as well as the importance of the right to parent, and assignf] an increased significance to the federal constitutional error established.’ ”
(Denny H., supra,
Finally, the weight of authority in California applies the
Chapman
harmless error standard in juvenile dependency proceedings where the error is of constitutional dimension. (See, e.g.,
Vanessa M., supra,
Consideration of the testimony wrongfully stricken would only have bolstered the court’s jurisdictional finding. It was consistent with the reports prepared by SSA. We confidently “declare a belief’ the error was harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
Sills, P. J., and Fybel, J., concurred.
Notes
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
Bernice A. is the mother of Mark and Alfredo. Myra A. is the mother of V., and V.’s half sibling, Joshua S. Joshua’s alleged father is Martin P. Neither mother is a party to this appeal. Nor is there any issue on appeal regarding Joshua or Martin, his alleged father. This appeal is only from the judgment declaring Alfred A.’s children, Mark, Alfredo, and V., dependents of the juvenile court.
All further rule references are to the California Rules of Court.
The rule refers to the prosecuting attorney as a “party.” The appearance of the district attorney in a juvenile dependency case is rare, at least in Orange County. Section 317, subdivision (c), permits the court to appoint the district attorney to represent the minor. And under section 681, subdivision (b), where the dependency petition alleges that “a minor is a person described in subdivision (a), (b), or (d) of Section 300, and either of the parents ... is charged in a pending criminal prosecution based upon unlawful acts committed against the minor, the prosecuting attorney shall, with the consent or at the request of the juvenile court
judge, represent the minor in the interest of the state at the juvenile court proceeding.” The district attorney has not appeared as a party in this dependency case. Nevertheless, if immunity were to be requested by SSA under rule 5.548(d), the court must require notice to be given to the district attorney, particularly where, as here, there is a pending criminal prosecution. Otherwise, the judicial branch would intrude on an executive branch function. (Cal. Const., art. V, § 13 [law enforcement and the prosecution of crimes is part of executive branch of government]; see
In re Weber
(1974)
As described above, mother suggested the court could grant immunity under rule 5.548(d), but the court did not inquire whether SSA desired to pursue a grant of immunity under that rule.
We note the advisement was not given in this case. At the commencement of the jurisdiction hearing, counsel for the mother of Mark and Alfredo waived the advisement, but no other party waived the advisement on the record. Of course, father did invoke the privilege against self-incrimination, so the lack of proper advisement was inconsequential as to him.
Constitution, section 28(d) provides in pertinent part: “[Rjelevant 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.”
Evidence Code section 940 states: “To the extent that such privilege exists under the Constitution of the United States or the State of California, a person has a privilege to refuse to disclose any matter that may tend to incriminate him.”
As observed earlier, if that statement were correct, the courts should stop advising parents at the jurisdictional hearing under rule 5.682(b)(2) that they have the right not to self-incriminate.
If father had testified, but then had refused to submit to cross-examination, his testimony could have been stricken.
(People v. Miller
(1990)