THE PEOPLE, Plaintiff and Respondent, v. WILLIAM JESSE CLARK, Defendant and Appellant.
Crim. No. 12743
Third Dist.
Aug. 29, 1985
217 Cal. Rptr. 819 | 171 Cal. App. 3d 889
[Opinion certified for partial publication.*]
William C. Spater, under appointment by the Court of Appeal, for Defendant and Appellant.
John K. Van de Kamp, Attorney General, Willard F. Jones and Charles P. Just, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CARR, J.—In a joint trial with his codefendant, Lloyd, a jury convicted defendant of robbery (
On appeal, defendant contends: (1) error in the admission for impeachment of his un-Mirandized prearrest statements to Officer Ramirez; (2) error in permitting the prosecution to impeach him with his prior convictions; and (3) insufficiency of the evidence to sustain his conviction.
FACTS
At approximately 9 p.m. on September 21, 1982, David Preszler robbed the Payless Shoe Store in Stockton at gunpoint. The money, some of which was in a white bank bag, was placed in a brown paper bag with the words “Alpha Beta” printed on it. Preszler forced the two employees into the bathroom and escaped out the back door.
At about the same time, Officer Hatchard was in the parking lot of the shopping center in which the Payless Shoe Store was located, patrolling in an unmarked car for auto burglaries. The officer saw a person, later identified as codefendant Lloyd, running through the parking lot, clutching something to his chest. Lloyd entered a white car, which then was driven out of the parking lot. The officer, suspecting an auto burglary, followed.
The officer had followed the white car briefly when it accelerated in an apparent effort to escape. The car ran two stop signs and made a reckless turn across oncoming traffic. At that point, the officer activated his siren and interior red light. The chase continued until the white car went out of
David Preszler was charged together with defendant herein and his codefendant Lloyd with the robbery. Preszler pled guilty and at the joint trial of defendant and codefendant Lloyd testified that he was the sole perpetrator of the robbery, having escaped from the scene on a stolen bicycle, which he rode to the area where the bag of stolen money was found; that he dropped the bag of money at the place where it was found because he had disabled the bicycle on a speed bump and heard the police sirens, which alarmed him; that he had been a good friend of his codefendant when both were in prison and upon defendant‘s release, Lloyd, who apparently had been released earlier, had written to him and visited with him in early 1982. Further that in the summer months of 1982, Lloyd had telephoned that he was very upset because Lloyd and his wife had separated. Defendant came to Stockton from his home in Redding to lend spiritual comfort and help to Lloyd. On the evening of the robbery, he had driven to the K-Mart parking lot with Lloyd, who left the car to investigate the Cameo Club; that Lloyd returned hurriedly and drove the car out of the parking lot stating he had seen some members of the Nuestra Familia, a prison gang with whom both defendant and Lloyd had had contact in prison and whom both feared. When they observed a car following them, they assumed it was a Nuestra Familia gang member and they accelerated in an attempt to lose their pursuer.
I
Defendant‘s initial contention has merit and the error requires reversal.
During the prosecution case, the trial court ruled that any statement defendant made to police prior to receiving the warnings required by Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 Cal.Rptr. 1602, 10 A.L.R.3d 974] were inadmissible as part of the prosecutor‘s case in chief.
Defendant testified on his own behalf. During his cross-examination, over objection, the court ruled that statements made by defendant prior to his Miranda advisement would be admissible for purposes of impeachment. The defendant then testified in response to questions by the prosecutor that he
Defendant urges that statements taken in violation of Miranda are inadmissible for impeachment purposes under the rule established in People v. Disbrow (1976) 16 Cal.3d 101, 113 [127 Cal. Rptr. 360, 545 P.2d 272]. The People assert that enactment of article I, section 28, subdivision (d) of the California Constitution has abrogated the Disbrow rule and substituted the federal standard of admissibility of impeachment evidence. That standard permits evidence of prior inconsistent statements of the defendant, if otherwise uncoerced and voluntary, to be used for impeachment even though obtained in violation of Miranda. (Harris v. New York (1971) 401 U.S. 222, 224-225 [28 L.Ed.2d 1, 4, 91 S.Ct. 643].)
In People v. Disbrow, supra, 16 Cal.3d 101 the court acknowledged Harris v. New York, supra, 401 U.S. 222, 224-225 [28 L.Ed.2d 1, 4] but expressly rejected its holding and ruling on state grounds alone held “that the privilege against self-incrimination of article I, section 15, of the California Constitution precludes use by the prosecution of any extrajudicial statement by the defendant, whether inculpatory or exculpatory, either as affirmative evidence or for purposes of impeachment, obtained during custodial interrogation in violation of the standards declared in Miranda and its California progeny. Accordingly, we overrule Nudd and declare that Harris is not persuasive authority . . . in California.”1 (16 Cal.3d at p. 113, italics added.)
The People do not contest that defendant‘s statements to Officer Ramirez were obtained in violation of Miranda but urge article I, section 28, subdivision (d) (hereinafter 28(d)), while silent on the subject, must be interpreted as presuming supremacy of the federal law as such section implicitly acknowledges such supremacy.2 The subdivision provides in part that “[e]xcept as provided by statute hereafter enacted by a two-thirds vote of the membership of each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, 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.” (Italics added.)
Since People v. Disbrow (1976) 16 Cal.3d 101, 113 [127 Cal.Rptr. 360, 545 P.2d 272], is explicitly predicated upon article I, section 15 of the California Constitution it is unaffected by the provisions of article I, section 28(d). This case comes directly under Disbrow. We are compelled to apply it.
In Ramona R. v. Superior Court, supra, 37 Cal.3d 802, our Supreme Court recently held that “the language of that provision [
In our view People v. Disbrow, supra, 16 Cal.3d 101, has not been rendered a nullity by enactment of article I, section 28(d) of our California Constitution but in fact remains preserved as a statutory exemption to the provisions of that section.3
II*
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*See footnote, ante, page 889.
The judgment is reversed.
Blease, J., concurred.
EVANS, Acting P. J.—I dissent. My disagreement with the majority opinion is directed to the conclusion that the use of a “non-Mirandized” statement for purposes of impeachment is reversible error. I view the essence of the majority conclusion, that use of a non-Mirandized statement falls within the statutory privilege exception to California Constitution, article I, section 28, subdivision (d), and survives the enactment of Proposition 8, as totally unsupportable in reason or law.
California Constitution, article I, section 28, subdivision (d),1 is couched in clear, concise, unambiguous, and direct language. It states, “Right to Truth-in-Evidence. Except as provided by statute hereafter enacted by a two-thirds vote of the membership of 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.” The statutory privileges referred to in subdivision (d) are found in
Although section 940 appears to be a straightforward privilege, limited to incriminating evidence, the California Supreme Court in People v. Disbrow (1976) 16 Cal.3d 101 [127 Cal.Rptr. 360, 545 P.2d 272], fearful that the federal constitutional standard for the introduction of relevant evidence enunciated in Harris v. New York (1971) 401 U.S. 222 [28 L.Ed.2d 1, 91 S.Ct. 643], would encourage police misconduct, rejected Harris on state constitutional grounds finding that California Constitution, article I, section 15, protection against self-incrimination includes impeachment, and over-
In my view, the provisions of article I, section 28, subdivision (d), enacted by the voters as Proposition 8, constitutionally reestablished the federal standard as the basis for the introduction of relevant evidence, and effectively overruled that portion of Disbrow dealing with impeachment.
In part I arrive at that conclusion after examination of available evidence relative to the intent of the voters. Prior to the initiative election, Proposition 8 received widespread publicity; newspaper, radio, and television editorials focused on the provisions, and extensive public debate followed describing the various aspects and effects of the constitutional amendment. The voters were provided an election pamphlet containing the title and the summary prepared by the Attorney General; a detailed analysis was also prepared and made available by the legislative analyst.
The legislative analyst pointed out that under California decisional authority, certain evidence was not “permitted to be presented in a criminal trial or hearing.” The analysis went on to advise that the measure would change that and permit all relevant evidence that did not violate federal constitutional standards.
The Attorney General‘s argument in favor of the ballot measure pointed out that “higher courts of this state have created additional rights for the criminally accused and placed more restrictions on law enforcement officers.” His statement further advised “This proposition will overcome some of the adverse decisions by our higher courts.”
In a judicial review of an amendment to the organic law of California, we should not likely presume that voters were unaware of the consequences of their action in approving Proposition 8. Rather, we should assume that in approving the constitutional amendment, the voters voted intelligently and considered each aspect of the law which was supplied to them for consideration. (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 243-244 [149 Cal.Rptr. 239, 583 P.2d 1281].)
In this instance, it seems clear to me the voters intended to curtail the sometime practice of the higher California courts of interpreting California constitutional provisions as additional restrictions on the use of evidence in criminal prosecutions.
“The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. We hold, therefore, that petitioner‘s credibility was appropriately impeached by use of his earlier conflicting statements.” (Fn. omitted; id., 401 U.S. at pp. 225-226 [28 L.Ed.2d at pp. 4-5].)
Through Proposition 8, the federal standard for the admission of relevant evidence and particularly the conclusion and rationale of Harris on the use of non-Mirandized prior inconsistent statements for impeachment purposes has been reestablished as the California standard, and removed from California Constitution, article I, section 15, and
The evidence of prior inconsistent statements is relevant and does not violate any statutory privilege. Section 940 precludes only forced testimony that would incriminate. It, like article I, section 15, does not speak to impeachment.
Incriminate is defined in Webster‘s Third New International Dictionary as “to furnish evidence or proof of circumstances tending to show . . . guilt.” ((1980) p. 1146, col. 1.) Impeach, on the other hand, is defined as “to challenge, impugn, or charge as having some . . . [bias] . . . not credible, [impeach] the accuracy of his memory.” (Id., p. 1132, col. 2.) More importantly, constitutional provisions adopted by the People are to be interpreted so as to effectuate the intent of the enactment. If the intent of such provision is clear from the language used, there is no room for judicial interpretation. (Kaiser v. Hopkins (1936) 6 Cal.2d 537, 538 [58 P.2d 1278]; Board of Supervisors v. Lonergan (1980) 27 Cal.3d 855 [167 Cal.Rptr. 820, 616 P.2d 802]; Skivers v. State of California (1970) 13 Cal.App.3d 652, 655 [91 Cal.Rptr. 707].)
Subdivision (d) appears to be unambiguously clear in its provisions stating that “relevant evidence shall not be excluded in any criminal proceeding” unless barred by existing statutory rules pertaining among other things to privilege.
In this instance, the truthfulness of defendant‘s testimony is relevant. As the Harris court stated, the shield provided by Miranda cannot be perverted into a license to use perjury by way of defense, free from the risk of confrontation of prior inconsistent statements. Such statements do not incriminate; they merely challenge the defendant‘s veracity—the most relevant evidential course.
The majority opinion apparently chooses to ignore recent decisions of the California Supreme Court holding that the right to “Truth-in-Evidence” provisions of the California Constitution (Cal. Const., art. I, § 28, subd. (d)) abrogate California‘s independent exclusionary rule and the exclusion of evidence is not required unless its use would violate some provision of the federal Constitution or existing statutory privileges. (In re Lance W. (1985) 37 Cal.3d 873 [210 Cal. Rptr. 631, 694 P.2d 744]; People v. Ruggles (1985) 39 Cal.3d 1 [216 Cal.Rptr. 88, 702 P.2d 170].) The portion of Disbrow, which implicated impeachment of a defendant-witness into California Constitution, article I, section 15 (self-incrimination) in order to exclude the use of non-Mirandized statements for impeachment, as prohibited by Harris, was annulled by Proposition 8 (art. I, § 28, subd. (d)).
I agree with the Supreme Court decisions in In re Lance W., supra, 37 Cal.3d 873, and People v. Ruggles, supra, 39 Cal.3d 1, and would conclude that article I, section 28, subdivision (d), of the California Constitution as enacted by the voters by Proposition 8 in 1982 reestablishes the federal rule as the California standard for the admission of relevant evidence in criminal proceedings.
I would affirm the judgment.