Lead Opinion
Opinion
J.A jury convicted appellant Mark A. Kroncke of failing to stop and report an auto accident (Veh. Code, §§ 20001, 20003),
The principal issue is whether sections 20001 and 20003 require that a driver involved in an injury-producing accident identify himself as the driver, when that is not reasonably apparent. As we shall explain, the pertinent sections do impose such a duty. We further conclude that requiring the driver to inform investigating officers that he or she was the driver of a vehicle involved in the accident does not violate the driver’s constitutional right against self-incrimination. We affirm the judgment.
I
Facts
Overview
This case arises from the death of Martin Jacobsen, a 21-year-old Danish tourist. According to Kroncke, he met Jacobsen in the early morning hours in San Francisco and offered to drive him to Marin County. Immediately after they drove across the Golden Gate Bridge, Jacobsen suddenly jumped from Kroncke’s pickup truck and suffered injuries that were eventually fatal. Kroncke
Prosecution Evidence
On September 28, 1995, Danish tourists Martin Jacobsen and his cousin Nikolas Sorensen arrived in San Francisco, where they stayed in a downtown youth hostel. A few days later, Jacobsen told his cousin he was going to the Haight-Ashbury district to sleep with the homeless in the park. At 12:30 a.m. on October 4, Jacobsen left for the Haight with his sleeping bag and a small amount of money. He left his identification and most of his money at the hostel. He told Sorensen he would meet him at the hostel in the afternoon.
About 3:30 a.m., some three hours after Jacobsen left his hostel, a witness saw Jacobsen’s body lying against the guard rail in the northbound lane of Highway 101, just before the Waldo tunnel in Marin County. The witness stopped at a turnout before the tunnel and used a call box to summon help. While he was at the call box, the witness saw a pickup truck pull up to Jacobsen’s body. A heavyset man — Kroncke—got out of the truck, walked to Jacobsen’s body, and shook him. Emergency vehicles arrived at the scene approximately one minute later.
Golden Gate Bridge District Sergeant David Mills was the first officer to arrive at the scene. He saw Kroncke’s pickup truck stopped in the slow lane and Jacobsen lying by the guardrail. Jacobsen was seriously injured and gasping for air. Mills called for an ambulance. Mills did not believe that either Kroncke or his truck was connected to Jacobsen or the accident. Kroncke did not volunteer any information about how Jacobsen came to be on the roadway, nor did he tell Mills he was involved in the incident.
A few minutes later, District Lieutenant Michael Locati arrived at the scene. In response to Locati’s questions, Kroncke said he was going northbound when he happened to see Jacobsen lying by the side of the road. Kroncke also said he was a Golden Gate Transit bus driver. Kroncke gave Lieutenant Locati his name and address and Locati wrote down Kroncke’s license plate number. Nothing at the scene or in what Kroncke said led Locati to believe Kroncke was connected with Jacobsen or the accident.
Marin County Deputy Sheriff Fred Marziano also stopped at the scene to render assistance. Marziano, who knew Kroncke casually from various professional and social contacts, asked Kroncke if he knew what had happened. Kroncke said he did not know what had happened. He said he was driving up the freeway when he saw a person by the side of the road. There was nothing about the position of Kroncke’s pickup or Jacobsen’s body that indicated the pickup had struck Jacobsen or that he had fallen from that vehicle.
Jacobsen was taken to Marin General Hospital where the treating doctor determined he had a terminal brain injury. He was placed on life support, but died three days later. At the time he entered the hospital Jacobsen had a .16 percent blood-alcohol level. An autopsy revealed Jacobsen had suffered a “contrecoup” injury, from which the expert opined Jacobsen’s head was in motion when he suffered a blunt force trauma.
The prosecution’s accident reconstruction expert opined Jacobsen was sitting upright and facing to the rear when he stepped or jumped from a moving vehicle near the .6 mile marker on Highway 101. Jacobsen rolled on the asphalt for about 56 to 84 feet and came to rest 70 feet north of the .6 mile marker.
Three days later, Kroncke contacted Detective Carroll and said he wanted to give an additional statement. In a tape-recorded interview, Kroncke admitted Jacobsen had jumped from his truck. Kroncke said he drove to Haight Street in the early morning hours of October 4. There, he saw a person setting trash can fires and helped detain him until the police arrived. Afterwards, he saw Jacobsen ask a police officer for directions to the water. A few minutes later, Kroncke saw Jacobsen near Cala Foods with a group of homeless people. Kroncke offered Jacobsen a ride to his hostel, and Jacob-sen accepted.
After they drove around a bit, Jacobsen said his hostel was locked until morning and Kroncke asked Jacobsen if he wanted to go Marin for a drink. Jacobsen agreed. After they crossed the Golden Gate Bridge and passed Vista Point, Jacobsen started panicking, and said he wanted to go back to San Francisco. Kroncke said he would turn around and drive him back, but Jacobsen said he wanted to get out. Just north of Vista Point, Jacobsen suddenly opened the passenger door and stepped out of the pickup. Kroncke was traveling at 40 to 45 miles per hour at the time. Kroncke drove through the Waldo tunnel to the Spencer exit. He sat there in shock for “several minutes” before he decided to drive back to look for Jacobsen. When he returned he found Jacobsen lying on the side of the road.
Defense
Kroncke testified that on October 4, 1995, it was too hot to sleep and he went for a drive. His intent was to drive toward the Cliff House in San Francisco to get a view of the Mount Vision fire, which was then burning in western Marin County. He eventually ended up in the Haight-Ashbury district where he saw firefighters extinguishing a trash can fire. Kroncke saw a second fire and then saw a man light a third fire. Kroncke detained the man until Officer Ramos arrested him.
While Kroncke was talking with the police, Jacobsen approached Officer Ramos and asked for directions to the water. Ramos suggested Jacobsen take a bus and pointed to a nearby bus stop. As he was leaving the area, Kroncke saw Jacobsen standing near several homeless people in front of Cala Foods. Concluding Jacobsen was “out of his element,” Kroncke approached him and asked if he wanted a ride. Jacobsen accepted. Following a brief skirmish with a drug dealer, Jacobsen got into Kroncke’s truck.
After Jacobsen got into the truck, Kroncke drove out to Land’s End where they observed the Mount Vision fire. They then drove through the Marina and North Beach looking for Jacobsen’s hostel. Jacobsen could not remember where his hostel was, and Kroncke was unable to find it for him. Jacobsen eventually told Kroncke he had not checked out a key and would not be able to get into the hostel until 6:00 a.m. that morning in any event. Kroncke was not in any hurry because he had the next day off. Eventually they ended up at the Vista Point in San Francisco located at the southern end of the Golden Gate Bridge. There, Kroncke asked Jacobsen if he wanted to go across the Golden Gate Bridge into Marin County. Jacobsen agreed.
As they were driving across the bridge about 45 miles per hour, Kroncke pointed out various landmarks. Jacobsen was talkative at that point. However, after Kroncke crossed the bridge and arrived at a point
Kroncke continued driving, passed two turnouts, and got off at the first exit (Spencer Avenue) where he stayed for a few minutes wondering what to do. Ultimately, he decided to return to the area where Jacobsen had jumped rather than calling for help on a nearby phone. Kroncke returned to that area by the shortest route possible. Kroncke stopped his truck 20 feet from Jacobsen so he could see him in his headlights. Kroncke shook Jacobsen, and noticed blood coming from his nose, and that his eyes were half open but unfocused. Kroncke, who had training as an emergency medical technician, determined Jacobsen’s injuries were severe and there was nothing he could do. Kroncke was still in shock at that point.
About 30 seconds later, Sergeant Mills arrived at the scene. A few minutes after Mills arrived, Kroncke voluntarily gave Mills his driver’s license and vehicle registration and said, “Hére’s my info, I’m the driver, and this is the vehicle.” Kroncke did not recall having any substantive conversations with any other officer that night. He was in “no shape to talk” and didn’t say anything. Kroncke waited until an ambulance took Jacobsen away, and then went home to sleep.
Kroncke denied he was attempting to deceive the officers at the scene. He gave the officers his identification and thought it was fair to assume they would know he was the driver. Kroncke believed he had identified himself “as being involved in what was going on. . . . [The truck] was the one involved and I am the driver, not just someone who happened along.” Given the position of his pickup, Kroncke assumed the officers would reasonably conclude he was connected to the body on the road.
On October 31, when Detective Carroll asked Kroncke if he had seen Jacobsen before, Kroncke answered no because he had not seen him before the day of the accident. Kroncke admitted he told Carroll he had been driving northbound on Highway 101 when he saw the body on the side of the road, and that he may have left Carroll with the impression he found Jacobsen on the side of the road. On November 3, after speaking with his brother who is a highway patrol officer, Kroncke decided to speak with Detective Carroll again. Kroncke’s motive was “to set the story straight,” even though he did not believe he had previously told Carroll anything that was false or inaccurate.
Over defense objection, the court instructed the jury that sections 20001 and 20003 impose a duty on a driver to “disclose to the investigating officers that he was the driver of a vehicle involved in the accident, if such involvement is not reasonably apparent.”
The jury returned a verdict finding Kroncke guilty of violating sections 20001 (failure to report an accident) and 31 (giving false information to a police officer.) The court sentenced Kroncke to three years’ probation, conditioned on his serving six months in county jail. This timely appeal followed.
II
Discussion
A. The Trial Court Properly Instructed the Jury That Sections 20001 and 20003 Impose a Duty on a Driver to Disclose That He Was the Driver of a Vehicle Involved in an Accident, If Such Involvement Is Not Reasonably Apparent.
Kroncke first contends the trial court erred when it instructed the jury he had a statutory duty to disclose to the investigating officers that he was the driver of a vehicle involved in the acсident. Kroncke contends sections 20001 and 20003 contain no express requirement to that effect, and therefore the trial court erred when it gave the instruction. We reject this contention.
Kroncke correctly points out that the quoted sections do not explicitly impose a requirement that a person identify himself as the driver of a vehicle involved in an injury-producing accident. However, in People v. Monismith (1969)
“[Defendant’s] contention flies in the face of the language of both sections 20001 and 20003, since the introductory sentence of each refers to the ‘driver of any vehicle involved in an accident resulting in injury.’ Clearly, the code sections are concerned not with just a driver and not with just a vehicle, but with the driver of a vehicle involved in an accident. [Citations.] While it is true, as defendant argues, a court cannot, by an extension of the language of a statute, make something a crime which the Legislature has not defined as criminal, it is also true that a court, in interpreting legislation of this character, looks at the evil which the statute is designed to remedy. Obviously the statute here is designed to prevent the driver of a car involved in an accident from leaving the scene without furnishing information as to his identity. It seems equally clear that the driver of a vehicle involved in an accident can furnish such identification only by identifying himself as the driver of the vehicle involved in the accident. (§ 20001.)” (Monismith, supra,
The facts in
If anything, the facts of the present case present a more compelling case in favor of the People’s position than those in Monismith, because here Kroncke was driving the vehicle at the time of the accident. Nevertheless, both Monismith and Kroncke failed to identify the “driver involved” in their respective accidents.
Kroncke makes several arguments to discredit and distinguish Monismith, none of which are persuasive. We note that Monismith has been the law of this state for nearly 30 years without drawing criticism from any published case.
First, Kroncke contends Monismith erroneously interprets the language of section 20003. We disagree. We agree with Monismith that “. . . the code sections are concerned not with just a driver and not with just a vehicle, but with the driver of a vehicle involved in an accident.” (
As the Monismith court observed, in understanding the meaning and scope of a criminal statute, we must be guided by the evil the Legislature sought to avert and the method chosen to do so. (People v. Berry (1991)
Here, sections 20001 and 20003 are part of a statutory scheme which imposes on drivers the obligation to self-report when the driver’s vehicle has been involved in an accident. The purpose of these státutes is “to promote the satisfaction of civil liabilities arising from automobile accidents. . . .” (California v. Byers (1971)
Second, Kroncke contends Monismith “has no precedential value” because that court stated it found no error in the trial court’s instructions “under the facts peculiar to this case.” (Monismith, supra,
Third, Kroncke contends Monismith is distinguishable because in Mo-nismith the vehicle struck a pedestrian, while in the present case Jacobsen jumped from the vehicle. Although Kroncke does not make the argument in so many words, he effectively contends that Jacobsen’s decision to jump from Kroncke’s vehicle did not constitute a reportable “accident” within the meaning of sections 20001 and 20003. We disagree. In People v. Green (1950)
Fourth, Kroncke cites People v. Bammes (1968)
Finally, Kroncke contends Monismith is undermined by Byers v. Justice Court, supra,
B. The Statutory Requirement Does Not Violate a Person’s Constitutional Right Against Self-incrimination.
Kroncke next contends that if we interpret sections 20001 and 20003 to mean a person must disclose that he was the driver of a vehicle involved in an accident, then those sections would violate the person’s Fifth Amendment right against self-incrimination. We disagree.
Both our own Supreme Court (Byers v. Justice Court, supra,
The United States Supreme Court granted certiorari and vacated the California Supreme Court’s decision in Byers v. Justice Court. (
Justice Harlan, in his concurring opinion, urged there was a “real" and not an “imaginary” risk of self-incrimination in complying with the statute. However, he determined that the “presence of a ‘real’ and not ‘imaginary’ risk of self-incrimination is not a sufficient predicate for extending the privilege against self-incrimination to regulatory schemes of the character involved in this case.” (California v. Byers, supra,
California v. Byers, supra,
It is true, as Kroncke points out, that the second section of the plurality opinion (and Justice Brennan’s dissent) suggests the plurality viewed the statute at issue as requiring the driver to disclose only his name and identifying information. (See, e.g., 402 U.S. at pp. 432, 433-434, & 468 [91 S.Ct. at pp. 1539-1541, & 1557-1558] (dis. opn. of Brennan, J.).) Nevertheless, the central reasoning of the plurality was that there was no Fifth Amendment violation because “disclosures with respect to automobile accidents simply do not entail the kind of substantial risk of self-incrimination involved in [other cases]” and “. . . the statutory purpose is noncriminal and self-reporting is indispensable to its fulfillment.” (Id. at p. 431 [
In his concurring opinion, Justice Harlan expressed concern that the privilege might impair the state’s interest in ensuring financial responsibility and deterring dangerous driving through criminal sanctions. He explained that the cases in which the Supreme Court found that disclosure requirements had violated the privilege against self-incrimination all involved registration laws that focused almost exclusively on criminal conduct. “In contrast,” he observed, “the ‘hit and run’ statute [in Byers] predicates the duty to report on the occurrence of an event which cannot, without simply distorting the normal
Justice Harlan went on to reason: “California’s decision to compel Byers to stop after his accident and identify himself will not relieve the State of the duty to determine, entirely by virtue of its own investigation after the coerced stop, whether or not any aspect of Byer’s behavior was criminal. Nor will it relieve the State of the duty to determine whether the accident which Byers was forced to admit involvement in was proximately related to the aspect of his driving behavior thought to be criminal. In short, Byers having once focused attention on himself as an accident participant, the State must still bear the burden of making the main evidentiary case against Byers as a violator of [a criminal statute]. To characterize this burden as a merely ritualistic confirmation of the ‘conviction’ secured through compliance with the reporting requirement in issue would be a gross distortion of reality ■ • ■ • ffl] • • • RD Considering the noncriminal governmental purpose in securing the information, the necessity for self-reporting as a means of securing the information, and the nature of the disclosures involved, I cannot say that the purposes of the Fifth Amendment warrant imposition of a use restriction as a condition on the enforcement of this statute.” (402 U.S. at pp. 457-458 [91 S.Ct. at pp. 1552-1553], italics added, fns. omitted (cone. opn. of Harlan, J.).) Kroncke’s name could easily be substituted for Byers’s; Justice Harlan’s reasoning applies with equal force and the same conclusion should obtain.
Thus, we find no Fifth Amendment violation under either the plurality or concurring opinions in California v. Byers, supra,
The dissent’s conclusion that it violates the Fifth amendment to require a driver involved in an accident to identify himself as such, is based on the dissent’s very different perspective on the issue before us. We believe that in light of the Fifth Amendment’s underlying purpose, in an increasingly complex society, the ability to invoke the privilege may be reduced when invocation would interfere with the effective operation of a generally applicable statute aimed at regulating civil responsibility. It is the context in which the disclosure is required and the underlying purpose of the disclosure that is most important and determines the analytical frаmework. We derive this framework from reading California v. Byers, supra,
The dissent discounts the relevance of Bouknight, by claiming the Supreme Court’s analysis was based on the fact that Ms. Bouknight, who was ordered to produce a child over whom she had custody, had accepted child custody under conditions to which she had agreed. (Dis. opn., post, at pp. 1572-1573.) Although this is factually true, the important legal point in Bouknight was similar to that in California v. Byers, supra,
The dissent also observes the Bouknight court went on to note that the “testimonial aspects” involved in producing the child might require a limitation on the use of those testimonial aspects in a subsequent criminal proceeding. (Dis. opn., post, at p. 1572.) More precisely, after holding that Ms. Bouknight could not invoke the privilege to resist the production order, the Bouknight court stated: “We are not called upon to define the precise limitations that may exist upon the State’s ability to use the testimonial aspects of Bouknight’s act of production in subsequent criminal proceedings. But we note that imposition of such limitations is not foreclosed.” (
In contrast to our analysis, the dissent concludes that the central issue is whether the disclosures the statute requires are “testimonial in nature.” (Dis. opn., post, at pp. 1561-1564.) Even if we were to agree that this is the central issue in this case, we believe the dissent has drawn an erroneous distinction between the disclosures the Supreme Court found proper in California v. Byers, and the disclosure the dissent claims is improper here.
Section 20003 requires a driver involved in an accident to disclose “his or her name, current residence address, ... the registration number of the vehicle he or she is driving, and the name and current residence address of the owner to . . . any traffic or police officer at the scene of the accident.” We believe the dissent would agree that these explicit disclosures are permitted under California v. Byers.
As the dissent notes, the Supreme Court has held that “ ‘[I]n order to be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.’ ” (Dis. opn., post, at p. 1562, quoting Doe v. United States (1988)
In our view, when a driver at the site of an accident gives his name, current residence address, registration number, and the name and current residence address of the vehicle’s owner, he reveals or discloses information — as opposed to “real or physical evidence” — that may not otherwise be available to the prosecuting authorities. We fail to see how disclosing such identifying information is any less “testimonial” than disclosing that he was the driver of a vehicle involved in an accident. Moreover, the required disclosure of this identifying information also carries risks of self-incrimination — it could reveal, for example, that the driver was unlicensed, had outstanding warrants, or was" driving a stolen car. While any of this informatiоn could provide a link leading to criminal prosecution, the United States Supreme Court has concluded the Fifth Amendment does not make statutes requiring disclosure of identifying information in this context unconstitutional.
In short, it appears the United States Supreme Court approaches the analysis first by looking at the nature of the statute requiring the disclosure. If the statute aims to regulate conduct in which the state has a legitimate interest, compliance serves to achieve important state goals of a noncriminal nature, and the disclosures do not entail a “substantial risk” of self-incrimination, then the court will not permit the Fifth Amendment privilege to block the regulatory scheme. Only when the law in question would primarily advance the state’s penal interests, or create a substantial risk of self-incrimination, does the Supreme Court appear willing to extend Fifth Amendment protection. (See Banks v. Commonwealth, supra,
Sections 20001, 20002, 20003, and 20004 all impose obligations on those who are privileged to drive in California. The Legislature requires drivers to self-report the fact of an accident and identify themselves and the owner of the vehicle involved. The state grants a substantial privilege when it licenses drivers to use California roadways. The exercise of that privilege includes the potential of placing others at significant risk, and may lead to injury and death as happened here. The statutes require the driver/owner to provide identifying information regarding both himself and the vehicle so that those who have been damaged or injured can collect from those who are at fault. The legitimate aim of the statutes is civil remediation and regulation of drivers who use the roadways in California. A driver in most circumstances will comply without providing any incriminating “testimony” against himself and is certainly free to claim a Fifth Amendment privilege after he has met the statutes’ requirements.
Kroncke testified at trial that he provided the officers at the scene with his name, driver’s license and vehicle registration.
In sum, we follow what we believe to be the law announced in California v. Byers, and conclude that the Fifth Amendment privilege against self-incrimination does not relieve a California driver оf his duty to comply with the reporting requirements of sections 20001 and 20003, including his duty to identify himself as the driver of a vehicle involved in the accident.
C., D.
Ill
Disposition
The judgment is affirmed.
Walker, J., concurred.
Notes
Subsequent statutory references are to the Vehicle Code, unless otherwise noted.
Officer Ramos testified and confirmed that Kroncke had detained an arson suspect on October 4, 1995.
Monismith involved an earlier version of section 20003 that read: “The driver of any vehicle involved in an accident resulting in injury to or death of any person shall also give his name, address, the registration number of the vehicle he is driving, the name of the owner, and upon request and if available exhibit his driver’s license to the person struck or the driver or occupants of any vehicle collided with or shall give such information and exhibit his license to any traffic or police officer at the scene of the accident. . . .” With respect to the issue presented in this case, we see no substantive difference between the former and current versions of section 20003. (Monismith, supra,
We agree with this commonsense statutory construction. As the court pointed out in People v. Malcolm (1975)
The Monismith court noted that in construing sections 20001 and 20003 the courts have held that an owner present at the time of an accident is considered to be a “driver” within the meaning of the pertinent sections, even though he was not actually driving at the time of the accident. (Monismith, supra,
In this regard, we note that another part of this statutory scheme — section 20004— imposes a duty to report directly to the California Highway Patrol or police in circumstances where an accident results in death and there are no law enforcement officers on the scene. Like section 20003, section 20004 does not explicitly require that the reporting person state he was involved in an accident.
Section 20002, subdivision (a) at the time of Byers’s accident provided: “ ‘The driver of any vehicle involved in an accident resulting in damage to any property including vehicles shall immediately stop the vehicle at the scene of the accident and shall then and there either: (1) Locate and notify the owner or person in charge of such property of the name and address of the driver and owner of the vehicle involved, or; (2) Leave in a conspicuous place on the vehicle or other property damaged a written notice giving the name and address of the driver and of the owner of the vehicle involved and a statement of the circumstances thereof and shall without unnecessary delay notify the police department of the city wherein the collision occurred or, if the collision occurred in unincorporated territory, the local headquarters of the Department of the California Highway Patrol. Any person failing to stop or to comply .with said requirements under such circumstances is guilty of a misdemeanor and uрon conviction thereof shall be punished by imprisonment in the county jail for not to exceed six months or by a fine of not to exceed five hundred dollars ($500) or by both.’ ” (Byers v. Justice Court, supra,
The United States Supreme Court confined its review to this subdivision.
We find further support for this conclusion in a Virginia Supreme Court case where the court held that the Virginia mandatory accident reporting requirement does not violate the Fifth Amendment. (Banks v. Commonwealth (1976)
As the Supreme Court observed in California v. Byers, California’s accident disclosure statutes are “directed at all persons — here all persons who drive automobiles in California. This group, numbering as it does in the millions, is so large as to render § 20002 (a)(1) a statute ‘directed at the public at large.’ [Citations.] It is difficult to consider this group as either ‘highly selective’ or ‘inherently suspect of criminal activities.’ Driving an automobile, unlike gambling, is a lawful activity. Moreover, it is not a criminal offense under California law to be a driver ‘involved in an accident.’ An accident may be the fault of others; it may occur without any driver having been at fault. No empirical data are suggested in support of the conclusion that there is a relevant correlation between being a driver and criminal prosecution of drivers. So far as any available information instructs us, most accidents occur without creating criminal liability even if one or both of the drivers are guilty of negligence as a matter of tort law.” (California v. Byers, supra, 402 U.S. at pp. 430-431 [
We reject Kroncke’s contention that California v. Byers somehow “overruled” Monismith’s statutory interpretation of sections 20001 and 20003. It is well established that state courts — not the federal courts — have responsibility for interpreting their own state statutes. (Campbell v. Superior Court (1996)
The statute the California v. Byers court approved required the driver of a vehicle involved in an accident resulting in property damage to “ ‘[l]ocate and notify the owner or person in charge of such property of the name and address of the driver and owner of the vehicle involved ....”’ (
Although Kroncke’s testimony was contradicted by the officers, by all accounts given at trial, he gave his name, address and the license number of the vehicle he was driving to the officers at the scene of the accident. The dissent believes he complied with the requirements of sections 20001 and 20003 and did not need to do more. We agree that a driver may invoke a privilege under the Fifth Amendment and refuse to discuss the circumstances or details of the accident if he so chooses. He may not, however, invoke the privilege to avoid identifying himself as the driver. Kroncke certainly waived any Fifth Amendment privilege when he voluntarily sought to “set the story straight" and disclosed to Detective Carroll on November 3 that he was the driver. Never has he claimed his earlier failure to say he was driving was based on a belief that what he said might be incriminatory. The Fifth Amendment does not license prevarication. Had Kroncke simply complied with the statute, and had he later been prosecuted for a crime in which the state sought to use his admission of driving, we would be presented with the issue of whether his admission could be used in the criminal case against him. We disagree with the dissent’s view that the use of his disclosure is presented on these facts. It is not his admission of being the driver that is being used, it is his failure to do so. If Kroncke had complied with the statute as we construe it, one thing is clear: he would not have been prosecuted for the felony which forms the basis of this appeal.
See footnote, ante, page 1535.
Concurrence Opinion
I respectfully dissent from the conclusion of my learned colleagues with regard to appellant’s felony conviction. This case involves a very narrow issue: the scope of a motorist’s responsibility to stop and provide identifying information under Vehicle Code section 20003.
Vehicle Code section 20003 as enacted by the Legislature essentially requires a motorist involved in an accident causing death or injury to do two things, 1) stop at the scene and 2) provide identifying information about himself, the car and the owner.
I. Judicial Legislation
The first difficulty is that the majority seeks to make criminal something . the Legislature has not. The duly enacted law makes it
It is the majority’s expansion of the statute that creates the constitutional infirmity, as will be discussed below. The statute as written is sound. We should construe the statute narrowly to achieve its purpose. The aim of the statute is to promote the satisfaction of civil liabilities arising from automobile accidents. (Maj. opn., ante, at pp. 1546-1547; California v. Byers (1971)
The majority relies in part on People v. Monismith (1969)
A driver can comply with the statute by stopping and providing the statutorily required data. Such conduct would fulfill the statutory goal of preventing drivers from leaving the scene unidentified. If, having stopped and given the facts enumerated by statute, the driver’s involvement is evident, or later discovered, so be it. If not, “our accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by . . . compelling it from his own mouth.” (Miranda v. Arizona (1966)
The majority writes that “Monismith has been the law of this state for nearly 30 years without drawing criticism from any published case.” (Maj. opn., ante, at p. 1546.) In the 30 years since Monismith was decided it has also never been cited as authority for the majority’s proposition. Indeed, it has been cited in a grand total of one published decision. People v. Bautista (1990)
II. The Fifth Amendment
It should be noted at the outset that this kind of case will arise but rarely. In the vast majority of instances, if a driver stops his car at the scene of a death or injury-causing accident, it will be evident from the observable circumstances such as body damage, paint transfers and so on that the car was, indeed, involved in the accident. Other witnesses may have seen the accident; so involvement will be clear and the only outstanding question will be identity. Here we deal with the unusual case in which the involvement is not evident. In such a case, can the statute require a motorist to provide law enforcement with the majority’s compelled admission? Resolution of the question turns on the extent of the Fifth Amendment’s protection against self incrimination. This inquiry, in turn, revolves around whether such a disclosure is testimonial in nature and whether it involves a substantial risk of self-incrimination.
A. Testimonial Communications
The United States Supreme Court has addressed the testimonial question in a number of different contexts. Examination of this
In Malloy v. Hogan (1964)
The Supreme Court examined the scope of the privilege two years later in Schmerber v. California (1966)
Doe v. United States (1988)
Numerous cases have concluded that a variety of behaviors and disclosures are nontestimonial in nature. Thus, individuals may be required to provide fingerprints (People v. Bryant (1969)
What the majority would require, under compulsion of fine or criminal confinement
The majority takes issue with the conclusion that a compelled admission that a driver was involved in an accident causing death or injury is a testimonial communication. “We fail to see how disclosing such identifying information is any less ‘testimonial’ than disclosing that he was the driver of a vehicle involved in an accident. . . . While any of this information could provide a link leading to criminal prosecution, thе United States Supreme Court has concluded the Fifth Amendment does not make [the] statute[]. . . unconstitutional.” (Maj. opn., ante, at p. 1555.) The reality is thát merely providing identification is fundamentally different from admitting involvement in an accident causing death or injury. In Byers, Justice Burger classified such identifying information as “neutral.” (Byers, supra, 402 U.S. at pp. 431-432 [91 S.Ct. at pp. 1539-1540].) The majority cites not a single case holding that providing identification is a testimonial communication or implicates the Fifth Amendment.
On the contrary, numerous cases have upheld the compulsion of identification, even by those in custody and upon specific questioning by law enforcement. (See, e.g., People v. Hall (1988)
As the majority points out,
The majority quite rightly notes the Supreme Court’s several references to balance. It is precisely at the point between nontеstimonial conduct and explicit admission that the court strikes the all-important balance. The majority’s central error is that they place the scales in the wrong place. Rather than acknowledging the court’s reliance on the long-standing concept of testimonial assertions, the majority sets the balance elsewhere, concluding that compulsion of an explicit admission is permissible if the motives are pure. No court has gone that far; nor should we.
The majority accurately observes: “By describing this disclosure as a ‘neutral act,’ the [Byers] court was merely saying that compulsory self-identification of a driver in an accident does not warrant protection under traditional Fifth Amendment jurisprudence.” (Maj. opn., ante, at p. 1551.) They go astray with their next sentence which contains the majority’s rationale, not that of the Supreme Court: “This is because such a compulsory disclosure, while it may reveal that the person was a driver involved in an accident, identifies, but does not necessarily implicate anyone in criminal conduct.” (Ibid.) The majority’s conclusion is an unsound extension of the Byers property damage scenario. A motorist legally compelled to admit he has just killed or injured someone directly implicates himself and runs a substantial risk of incrimination,
The majority attempts to avoid the conclusion that producing identification is not testimonial by noting that doing so “could provide a link leading to criminal prosecution.” (Maj. opn., ante, at p. 1555.) As indicated earlier, a Fifth Amendment analysis often involves two issues: 1) whether the information is testimonial; and 2) whether its compulsory revelation presents a significant risk of incrimination. The “link in the chain” question relates to the risk of incrimination, not the testimonial nature of the information.
B. Risk of Incrimination
The Supreme Court has also visited the issue of whether a compelled disclosure presents a substantial risk of incrimination in a number of cases. One such case is Marchetti v. United States (1968)
Justice Harlan explained the court’s analysis in this manner: “The central standard for the privilege’s application has been whether the claimant is confronted by substantial and ‘real,’ and not merely trifling or imaginary, hazards of incrimination.” (Marchetti, supra,
Application of the Marchetti principles shows the majority’s requirement would suffer the same infirmity. The statute, by its language, does not apply to the public at large, or even to all drivers. Its obligations fall on only those drivers involved in accidents that result in death or injury. The conduct of drivers who cause serious accidents is addressed by numerous penal provisions which punish unsafe driving. The required admission created by the majority would be given directly to a law enforcement officer and readily available to prosecuting authorities.
An officer, called to the scene of an accident in which someone is killed or injured, obviously investigates a very serious circumstance. Any driver “involved” in such an accident is necessarily and reasonably suspected of potentially criminal conduct. A significant proportion of these accidents will involve one or more Vehicle Code violations: speeding (Veh. Code, § 22348 et seq.), driving under the influence (Veh. Code, § 23152 et seq.), following too closely (Veh. Code, § 21703), changing lanes unsafely (Veh. Code, § 21658) or driving recklessly (Veh. Code, § 23103), to name but a few. If death results, vehicular manslaughter (Pen. Code, § 192, subd. (c)) might very well be charged, predicated upon a Vehicle Code violation. It is certainly true that a driver may drive perfectly and conform with every law and yet be blamelessly involved in a serious accident. What is important for our analysis is not that some conduct may be innocent, but rather, that much driving which causes death or injury will, indeed, be criminal. Further investigation is obviously needed to determine
Based on long-standing United States Supreme Court jurisprudence the requirement imposed by the majority violates the Fifth Amendment. The admission they would compel is testimonial in nature. Its effect is that the person making such an admission runs a substantial risk of incrimination.
The Byers Cases
The majority relies heavily upon the analysis of Byers v. Justice Court, supra,
The majority’s reliance on Byers is misplaced for three reasons. First, Byers did not resolve, or even address the judicially compelled admission that is at issue here. Second, the majority inaccurately apprehends the precedential value Byers does have. Third, they extend Byers beyond its holding.
Byers addressed a very precise issue. “This case presents the narrow but important question of whether the constitutional privilege against compulsory self-incrimination is infringed by California’s so called ‘hit and run’ statute which requires the driver of a motor vehicle involved in an accident to stop at the scene and give his name and address.” (Byers, supra,
In applying Byers it is important to be clear on what it considered. The case dealt only with the two statutory requirements as legislatively enacted: the duty to stop at the scene of an accident and the duty to provide identifying information. The plurality did not expend a syllable discussing whether the statute required the additional admission urged here.
It is also important to note that Byers dealt with a statute that applied to accidents involving property damage. It did not address a statute relating to accidents causing death or injury. Indeed, in a footnote to the plurality opinion, Justice Burger observes that in injury or death cases “. . . there is a statutory use restriction [Vehicle Code sections 20012, 20013] for these compelled disclosures.” (Byers, supra,
In part I of Byers the plurality considered the risk of incrimination as a factor implicating the protections of the Fifth Amendment. Justice Berger pointed out: “Whenever the Court is confronted with the question of a compelled disclosure that has an incriminating potential, the judicial scrutiny is invariably a close one. Tension between the State’s demand for disclosures and the protection of the right against self-incrimination is likely to give rise to serious questions. Inevitably these must be resolved in terms of balancing the public need on the one hand, and the individual claim to constitutional protections on the other; neither interest can be treated lightly.” (
In the second part of Byers the plurality concluded that the statute’s requirements did not violate the Fifth Amendment because the information required by the statute was not testimonial. Justice Berger explained the plurality’s view: “The act of stopping is no more testimonial — indeed less so in some respects — than requiring a person in custody to stand or walk in a police lineup, to speak prescribed words, or to give samples of handwriting, fingerprints, or blood. [Citations.] Disclosure of name and address is an essentially neutral act.” (402 U.S. at pp. 431-432 [91 S.Ct. at pp. 1539-1540].)
The four-member plurality needed Justice Harlan’s concurrence to resolve the case. Justice Harlan did not agree with the plurality’s conclusion in part I. In Justice Harlan’s view even the limited requirements at issue, even in a property damage case, created a substantial risk of inculpation. He acknowledged the holding in United States v. Wade, supra,
Justice Harlan reviewed the extant Supreme Court jurisprudence and acknowledged that the cases hold the presence of a substantial risk of self-incrimination triggers Fifth Amendment protections. (Byers, supra, 402 U.S. at pp. 437-439 [91 S.Ct. at pp. 1542-1544] (cone. opn. of Harlan, J.).) He went on to suggest a modification of that standard. Without the concurrence of any other justice, he took the position that the presence of a substantial incriminatory risk should not be a sufficient basis, standing alone, to support a Fifth Amendment invocation. {Id. at p. 453 [91 S.Ct. at pp. 1550-1551] (cone. opn. of Harlan, J.).) Instead, Justice Harlan proposed a balancing test which would take into account the purpose of the regulatory statute, the necessity for self-reporting to effectuate the regulatory purpose, and the nature of the disclosures compelled. Applying his test to the Byers facts, Justice Harlan concluded that the Fifth Amendment did not require use immunity to justify the compelled disclosures. Again, it is important to note that no other member of the court joined Justice Harlan in his suggestion that the court retreat from its previous rulings. The rule remains; a statute compelling an admission that creates an appreciable risk of self-incrimination violates the Fifth Amendment, regardless of the statute’s purpose.
The Supreme Court was very clear on what “narrow question” it was deciding. Byers stands for the proposition that a driver involved in an accident that causes property damage can be compelled to stop and provide identification to another driver. It did not address whether a driver could be compelled to make any disclosures to a law enforcement agent. It did not consider whether the rule would be different if death or injury were involved, rather than property damage. It decidedly did not contemplate the admission the majority imposes here.
The majority ignores the limited nature of the plurality’s inquiry. They seek to expand the “central reasoning” of Byers beyond the circumscriptions both the plurality and concurrence carefully note. (See, maj. opn., ante, at p. 1550). It is a fundamental rule of precedential analysis that a case decides that which it decides. Attempts to expand a case’s precedential authority beyond its facts are dangerous expeditions, particularly in the absence of the explicit pronouncement of a broader rule. The expedition proves fatal when the court takes care to affirmatively limit its holding, as is the case here.
There is an even more fundamental problem with the majority’s attempt to rely on Byers. In arguing that “the central teaching of California v. Byers is that [the disclosure statutes do not violate the Fifth
Byers, supra,
A fair reading of the plurality opinion and the Harlan concurrence reveals the justices were aware of the delicate balance they sought to strike. A more expansive reading is not justified by the text. The majority’s conclusion that the Supreme Court would have upheld a statute such as the one the majority crafts is a prognostication in which I cannot join. Worse than being merely an unsupported assertion it is definitively inconsistent with the carefully drafted and limited opinions of the plurality and Justice Harlan.
The majority also seeks to separate part I of the Byers opinion, dealing with risk of incrimination, from part II, addressing the testimonial question. By this analytical device the majority seeks to avoid discussion of the concept of testimonial communications in Fifth Amendment jurisprudence. Part I of the plurality opinion does not discuss the concept in any way. This omission is not surprising because of the limited nature of the court’s inquiry: whether a statute can compel a motorist to stop and provide identifying information. Because both requirements are nontestimonial part one of the opinion omits such a discussion. It is this very point that part II makes clear. A reading of the entire opinion is necessary to understand the extent, and limitation, of the high court’s ruling. Further, as noted above, part one of the opinion cannot stand alone, because its reasoning did not command a majority of the court.
The testimonial nature of the majority’s compelled admission and the risk of incrimination it presents are the factors which place it at odds with the Fifth Amendment. The majority seeks to avoid this conclusion by defining the issue differently. They conclude “[i]t is the context in which the disclosure is required and the underlying purpose of the disclosure” that are determinative. (Maj. opn., ante, at p. 1553.) The Supreme Court, however, has held that the “availability of the privilege does not turn upon the type of proceeding in which its protection is invoked, but upon the nature of the statement or admission and the exposure which it invites.” (In re Gault (1967)
The majority interprets Byers to say that context and purpose are the primary focus of a Fifth Amendment analysis, rather than substance or effect. (See maj. opn., ante, at p. 1553.) Such a conclusion flows from a fundamental misreading of Byers. The Byers plurality directly considered whether the statutory requirements presented a risk of incrimination. That is, they first considered the effect of the disclosure. The plurality then analyzed whether a testimonial assertion was required. In doing so they evaluated the substance of the requirements. Because they decided that neither the effect nor the substance of the requirements implicated the Fifth Amendment, the Byers plurality was free to focus on context. Here, the majority tosses aside both substance and effect to claim that context and purpose are all. Not only do the majority put the cart before the horse, they disengage the cart and run the horse from the field.
The Byers сourt dealt with a statute designed to ensure identification would be provided, as Justice Burger phrased it, “[a] name, linked with a motor vehicle.” (Byers, supra, 402 U.S. at pp. 433-434 [
The majority defends their expansion of the statute by asserting: “The Fifth Amendment was never intended to be a refuge for those facing civil liability. It was not intended to force investigating agencies, or citizens, to invest time and energy puzzling out who was driving when injury accidents occur . . . .” (Maj. opn., ante, at p. 1557.) What the majority fails to acknowledge is that those who kill or injure others while driving will frequently face both civil and criminal liability. The “investigating agencies” to which they refer are law enforcement agencies investigating crimes.
The logical conclusion of the majority’s assertion is that the Fifth Amendment must yield when to honor it would be inconvenient. To make such a point is to simultaneously refute it. The Fifth Amendment does not exist to facilitate law enforcement, it exists to protect citizens from governmental demands that they incriminate themselves. The majority does not point to another state in America that imposes an obligation such as theirs on its citizens. California should not lead this expedition. It takes us away from the hearthstone of the Fifth Amendment and into uncharted territory where the fundamental relationship between the people and their government can be altered without legislation to suit the convenience of the sovereign. This is not the arrangement the framers of the Constitution had in mind.
Appellant here has relied on People v. Bammes (1968)
As the majority notes, Justice Peters, in Byers v. Justice Court did observe: “First, although it is true that neither section 20001 nor section 20002 explicitly requires drivers involved in accidents to identify themselves as involved drivers, neither can fairly be read to require only that an involved driver identify himself as merely having been ‘at or near the scene of the accident when it occurred.’ ” (71 Cal.2d. at p 1045, italics in original.) What the majority fails to point out is the very next sentence: “Even if these statutes could be so read, it seems clear that in almost all circumstances it would be obvious to the person to whom the identification was made that the person supplying identification was a driver involved in the accident.” (Ibid., italics added.)
The majority’s further reliance on Baltimore Dept. of Social Servs. v. Bouknight (1990)
The majority asserts: “Similarly [to the court in Bouknight] we are not called upon to define the precise limitations on the state’s ability to use the ‘testimonial’ aspect of the required disclosures.” (Maj. opn., ante, at p. 1554). In fact the majority is called upon to address the use question. If their interpretation of the statute is to stand they must decide whether it violates the Fifth Amendment or requires the use immunity extended in Byers v. Justice Court, and suggested by Bouknight. The procedural posture of Bouknight allowed the court to defer this later consideration in a way that our case does not permit. All Bouknight resolved was that Ms. Bouknight had to release her son to authorities to protect his safety. If there was a future prosecution, the issue of immunity could be dealt with. Our case is different. Here, the majority seeks to punish the defendant for a completed course of conduct. There is no opportunity to extend immunity to him. He will be punished for not anticipating the majority’s statutory amendment regardless of the incriminating risk. The extension of immunity to some future litigant will be of cold comfort to him.
Conclusion
We cannot lose sight of the fact that we are dealing with a constitutional protection. Even well-intentioned limitations on such an essential guarantee are to be closely scrutinized.
Likewise, Justice Harlan noted the same danger in his Byers concurrence. “If the technique of self-reporting as a means of achieving regulatory goals unrelated to deterrence of antisocial behavior through criminal sanctions is carried to an extreme, the ‘accusatorial’ system which the Fifth Amendment is supposed to secure can be reduced to mere ritual. And the risk that such a situation will materialize is not merely a function of the willingness of an ill-disposed officialdom to exploit the protective screen of ostensible legislative purpose to bypass the procedural limitations on governmental collection of information in the criminal process. The sweep of modem governmental regulation — and the dynamic growth of techniques for gathering and using information culled from individuals by force of criminal sanctions— could of course be thought to present a significant threat to the values considered to underpin the Fifth Amendment, quite apart from any supposed illegitimate motives that might not be cognizable under ordinary canons of judicial review.” (402 U.S. atpp. 453-454 [91 S.Ct. atpp. 1550-1551] (cone, opn. of Harlan, J.).)
By reaching out to impose an obligation not adopted by the Legislature, the majority commits three errors. First, they judicially legislate criminal conduct, which we are not empowered to do. Second, they judicially enact a statute which violates the Fifth Amendment of the United States Constitution and article I, section 15 of the California Constitution.
Commission of these errors is neither necessary nor constitutionally permissible. I would reverse the felony conviction. I would affirm the misdemeanor conviction and join in the majority’s analysis of the remaining issues.
Appellant’s petition for review by the Supreme Court was denied July 15, 1999. Mosk, J., was of the opinion that the petition should be granted.
Another provision, that the driver render aid to the injured, is not at issue here.
The majority mentions a number of cases in support of their expansive construction. (Maj. opn., ante, at pp. 1546-1547.) Several of them are civil cases and are distinguishable on that basis. The two criminal cases which they cite do not support the conclusion they would draw. In People v. Berry (1991)
Indeed, that is what happened here. Because they had his name and address, investigators later interviewed Kroncke, who ultimately admitted his involvement. It is true that Kroncke originally lied to investigators. That act was a crime for which he has properly been convicted. The law can punish someone who lies during an investigation. What it cannot do is force him to incriminate himself.
“One cannot ignore the implication of such conduct and disclosure by a driver, however. By leaving his name and address, the person depositing the information implicitly discloses he was the driver of a vehicle involved in the accident, the one who caused the damage.” (Maj. opn., ante, at p. 1551.)
The majority’s reference to Justice Harlan’s conclusion that a driver who complies with the statute as written admits involvement in the accident (maj. opn., ante, at pp. 1552-1553), suffers from the same analytical flaw. No other justice, including those in the plurality accepted that conclusion. It was Justice Harlan’s view alone, thus lacking precedential force.
The majority claims to “find further support” for their conclusion in the opinions of two cases from Virginia and New York. (Maj. opn., ante, at p. 1551, fn. 9, Banks v. Commonwealth (1976)
The majority says that defendant waived the privilege when he disclosed on November 3 that he had been the driver. (Maj. opn., ante, at p. 1557, fn. 13.) That conduct, however, was not the basis for his prosecution. He was prosecuted for his conduct a month earlier. The waiver analysis is inapplicable.
“Persons may not ... be compelled in a criminal cause to be a witness against themselves. . . .”