THE PEOPLE, Plaintiff and Respondent, v. MARK A. KRONCKE, Defendant and Appellant.
No. A077974
First Dist., Div. Three
Mar. 31, 1999
1535
[Opinion certified for partial publication.*]
Patton, Wolan & Boxer and Lawrence A. Boxer for Defendant and Appellany.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Ronald S. Matthias and Linda M. Murphy, Deputy Attorney Generals, for Plaintiff and Respondent.
OPINION
PARRILLI, J.—A jury convicted appellant Mark A. Kroncke of failing to stop and report an auto accident (
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.
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 got off at the next freeway exit and returned to where Jacobsen lay on the side of the road. Within a minute, a Golden Gate Bridge officer also arrived at the scene. Kroncke gave his name and other identifying information to the officers at the scene. He also told the officers he was driving on Highway 101 when he spotted Jacobsen on the side of the road and stopped to render aid. In instructing the jury, the court stated 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.” Kroncke contends the pertinent Vehicle Code sections impose no such duty, and the trial court prejudicially erred when it gave the instruction.
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
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 nоrth of the .6 mile marker.
More than three weeks after the accident, on October 31, 1995, Marin County Sheriff Detective Jeff Carroll interviewed Kroncke in connection with Jacobsen‘s death. Kroncke told Carroll he had been in San Francisco early on the morning of October 4, and was driving back home to Marin County when he came across a body on the right shoulder of the roadway. Kroncke stopped to render aid and noted Jacobsen‘s pupils were “blown,” which indicated to Kroncke that Jacobsen had suffered a head injury. Carroll
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 Jacobsen 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.2
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.
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 where the view of San Francisco was cut off, Jacobsen‘s demeanor changed. Jacobsen demanded that Kroncke stop and let him out. Kroncke explained he could not stop on the freeway, but said he would turn at the next exit (Spencer Avenue) and take Jacobsen back to the city. Jacobsen appeared to be panicking. Suddenly, Kroncke heard the sound of whooshing air, as if Jacobsen had opened the car door. He looked over towards Jacobsen and saw his back as he stepped from the truck. Kroncke was shocked.
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, “Here‘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
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 sectiоns 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 accident. 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) 1 Cal.App.3d 762 (Monismith), the court rejected such a literal interpretation of sections 20001 and 20003, and concluded that to comply with section 20001 the driver must identify himself as the driver of а vehicle involved in the accident, at least where such is not reasonably apparent from the circumstances. In Monismith, as here, the defendant was charged with violating sections 20001 and 20003.3 Although the defendant gave identifying information, he failed to inform the officers at the scene that he was the driver of a car involved in the accident. The trial court specifically instructed the jury that the defendant had a duty to “identify himself as the driver involved in the accident.” (1 Cal.App.3d at p. 765.) As Kroncke does here, the defendant argued on appeal that the pertinent sections do not require the driver of a vehicle to report that his vehicle was involved in the accident, but only to give the specific information the sections specify. (Ibid.) In rejecting this contention, the Monismith court stated:
“[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, 1 Cal.App.3d at p. 766, italics in original.)
Thus, the Monismith court concluded the trial court did not err when it instructed the jury “that to comply with section 20001 defendant was under a duty not only to identify himself, as he did, but also to identify himself as the driver of a vehicle involved in the accident.” (Id. at pp. 767-768, italics in original.)4
The facts in Monismith are similar to those in the case at bench. In Monismith, the defendant‘s car struck and fatally injured a pedestrian. However, the defendant‘s companion was actually driving at the time of the accident. Because the companion did not have a driver‘s license, he asked the defendant to say that he (the defendant) was driving. The defendant returned to the scene of the accident and gave the investigating officers his name, address, registration, and driver‘s license, but falsely told the officers he was driving. He did not tell the officers his car was involved in the accident, nor did his companion disclose this information. (1 Cal.App.3d at p. 764.) The defendant and his companion both denied to bystanders that their car had struck the victim. The defendant was convicted of violating sections 20001 and 20003 because he failed to disclose his car was involved in the accident, even though he was not actually driving at the time of the accident.5 (Monismith, supra, 1 Cal.App.3d at pp. 764-765, 766.)
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 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.” (1 Cal.App.3d at p. 766, italics in original.) Consequently, to comply in a meaningful way with the statute, a driver must identify himself as the driver of a vehicle involved in the 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) 1 Cal.App.4th 778, 783.) Moreover, ““[t]he primary rule of statutory construction, to which every other rule as to interpretation of particular terms must yield, is that the intention of the legislature must be ascertained if possible, and, when once ascertained, will be given effect, even though it may not be consistent with the strict letter of the statute. . . .““” (Dickey v. Raisin Proration Zone No. 1 (1944) 24 Cal.2d 796, 802, quoted in Bell v. Department of Motor Vehicles (1992) 11 Cal.App.4th 304, 311.) Thus, “‘[i]n the analysis of statutes for the purpose of finding the legislative intent, regard is to be had not so much to the exact phraseology in which the intent has been expressed as to the general tenor and scope of the entire scheme embodied in the enactments. [Citation.]‘” (County of Los Angeles v. Frisbie (1942) 19 Cal.2d 634, 639, quoted in Bell v. Department of Motor Vehicles, supra, 11 Cal.App.4th at p. 311; see also People v. Jimenez (1992) 11 Cal.App.4th 1611, 1625 [applying similar rules to section 20001], disapproved on another point in People v. Kobrin (1995) 11 Cal.4th 416, 419, 427 fn. 7.)
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 statutes is “to promote the satisfaction of civil liabilities arising from automobile accidents. . . .” (California v. Byers (1971) 402 U.S. 424, 430,
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, 1 Cal.App.3d at p. 767.) Obviously, the fact the Monismith court was considering particular facts does not deprive the court‘s statutory interpretation of precedential value. Moreover, as we have already explained, the facts here are closely analogous to those in Monismith and, if anything, present a more compelling case in favor of the People‘s argument.
Third, Kroncke contends Monismith is distinguishable because in Monismith 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) 96 Cal.App.2d 283, the court applied section 20001‘s predecessor statute to a case in which a person fell out of a car as it was making a turn. The court concluded this constituted an accident within the meaning of the statute. (96 Cal.App.2d at pp. 286-289.) The court stated: “As defined in Webster‘s Dictionary, an accident is an event that takes place without one‘s foresight or expectation; an undesigned, sudden, and unexpected event.” (Id. at p. 288.) Certainly, from Kroncke‘s perspective, Jacobsen‘s decision to leave the vehicle as he was traveling down the freeway was an event that took place without Kroncke‘s foresight or expectation. (See also People v. Jimenez, supra, 11 Cal.App.4th at p. 1625 [“The broad legislative purpose behind the enactment of Vehicle Code section 20001 requires us to give the word ‘accident’ its broadest possible meaning so as to extend the requirements of the statute to all injury-producing events involving vehicles.“].)
Fourth, Kroncke cites People v. Bammes (1968) 265 Cal.App.2d 626, where the court stated that “Section 20001 does not require
Finally, Kroncke contends Monismith is undermined by Byers v. Justice Court, supra, 71 Cal.2d 1039, and California v. Byers, supra, 402 U.S. 424, both of which concern whether California‘s accident reporting statutes violate a driver‘s Fifth Amendment privilege against self-incrimination. We discuss those cases in detail below, but note for now that neither case overrules or undermines Monismith‘s statutory analysis.
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, 71 Cal.2d 1039) and the United States Supreme Court (California v. Byers, supra, 402 U.S. 424) have already addressed the constitutional validity of California‘s compulsory accident reporting statutes vis-à-vis the Fifth Amendment.
In Byers v. Justice Court, our Supreme Court addressed the constitutionality of section 20002, subdivision (a), which required (and still requires) a driver involved in an accident causing property damage to stop and identify himself.7 (71 Cal.2d at pp. 1041-1042.) The California Supreme Court concluded the required disclosures did in fact compromise a driver‘s
Fifth Amendment privilege against self-incrimination. (Id. at p. 1047.) The court nevertheless upheld the statute on the ground “that the state may require a person to disclose information otherwise subject to a claim of privilege if in place of the protection conferred by the privilege there is substituted another protection, having the same scope and effect as the privilege, namely, immunity from use of the information or its fruits in connection with a criminal prosecution against the person.” (Id. at p. 1049.) In short, the court concluded that although the required disclosures might indeed violate the driver‘s right against self-incrimination, the state could nevertheless compel the disclosures provided the courts granted the driver use immunity with respeсt to the disclosed information. (Id. at pp. 1049-1050 [“[I]f the disclosures compelled by section 20002 . . . and the fruits of such disclosures may not be used in a criminal prosecution relating to the accident, the requirements of the privilege against self-incrimination are met.“].)
The United States Supreme Court granted certiorari and vacated the California Supreme Court‘s decision in Byers v. Justice Court. (402 U.S. at p. 434.) In California v. Byers, supra, 402 U.S. 424, a four-judge plurality of the United States Supreme Court disagreed with the California Supreme Court and concluded that section 20002, subdivision (a)(1)‘s8 disclosure requirements do not implicate the right against self-incrimination. The plurality determined that, unlike registration schemes aimed at identifying criminal behavior, the statute in question was essentially regulatory, its purpose being “to promote the satisfaction of civil liabilities arising from automobile accidents.” (Id. at p. 430.) Contrary to the kind of disclosure statutes that the court had found self-incriminating, section 20002 was not directed at a ““highly selective group“” or one ““inherently suspect of criminal activities,“” but was instead ““directed at the public at large.“” (402 U.S. at p. 430.) In sum, the high court found “disclosures with respect to automobile accidents simply do not entail the kind of substantial risk of self-incrimination
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, 402 U.S. at p. 439 (conc. opn. of Harlan, J.).) He reasoned that California had a vital interest in the individual financial responsibility of those who own and operate vehicles; that “compelled self-reрorting is a necessary part of an effective scheme of assuring personal financial responsibility for automobile accidents“; and that to extend the privilege against self-incrimination to the “compelled self-reporting . . . regulatory scheme” will impair the state‘s capacity to pursue simultaneously the objectives of ensuring financial responsibility for accidents and criminal sanctions to deter dangerous driving. (California v. Byers, supra, 402 U.S. at p. 448 (conc. opn. of Harlan, J.).)
California v. Byers, supra, 402 U.S. 424, supports the conclusion that California‘s accident reporting statutes—including sections 20001 and 20003—do not violate a driver‘s right against self-incrimination. However, Kroncke contends the plurality based their conclusion on the premise that the statute they were examining required disclosure of only the driver‘s name and identifying information, and did not compel the driver to disclose he was “involved” in an accident. Consequently, Kroncke contends that if we construe section 20003 as requiring the driver to disclose that he was a driver involved in the accident, then the statute would violate the driver‘s right against self-incrimination. We disagree.
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 (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
After reaching these conclusions, the plurality went on to express an alternative and separate rationale for the result it reached. In the second section of the plurality‘s opinion, the court stated: “Even if we were to view the statutоry reporting requirement as incriminating in the traditional sense, in our view it would be the ‘extravagant’ extension of the privilege Justice Holmes warned against to hold that it is testimonial in the Fifth Amendment sense.” (402 U.S. at p. 431, italics added.) It was in this portion of the opinion that the plurality suggested that the act of stopping and leaving identifying information was a “neutral act” not warranting application of the privilege against self-incrimination. The rationale of the first section of the opinion is not undermined in anyway by this second section. 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. By describing this disclosure as a “neutral act,” the court was merely saying that compulsory self-identification of a driver in an accident does not warrant protection under traditional Fifth Amendment jurisprudence. This is because such 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.10 The court quickly pointed out: “Whatever the collateral consequences of disclosing [a] name and address, the statutory purpose is to
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 connotations of language, be characterized as ‘inherently suspect’ . . . . And, having initially specified the regulated event—i.e., an automobile accident involving property damage—in the broadest terms possible consistent with the regulatory scheme‘s concededly noncriminal purpose, the State has confined the portion of the scheme now before us . . . to the minimal level of disclosure . . . .” (402 U.S. at p. 456 (conc. opn. of Harlan, J.); see also Craib v. Bulmash, supra, 49 Cal.3d at pp. 488-489.)
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
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 avаilable 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.) In our view, this reasoning applies with equal force to section 20003, the statute we consider in this case. There is nothing in the record before us to suggest otherwise.
Thus, we find no Fifth Amendment violation under either the plurality or concurring opinions in California v. Byers, supra, 402 U.S. 424.
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 framework. We derive this framework from reading California v. Byers, supra, 402 U.S. 424, and Baltimore Dept. of Social Servs. v. Bouknight (1990) 493 U.S. 549 and the Supreme Court‘s analysis of its own precedent that each of those cases contains. The dissent believes it is the substance of the disclosure that controls the Fifth Amendment analysis. As we have indicated, however, thе central teaching of California v. Byers is that “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 [of the hit-and-run statutes] is noncriminal and self-reporting is indispensable to its fulfillment.” (Id. at p. 431; see also Craib v. Bulmash, supra, 49 Cal.3d at pp. 488-489; Fahlgren v. Department of Motor Vehicles, supra, 186 Cal.App.3d at pp. 937-938.) Thus in cases which involve the “[t]ension between the State‘s demand for disclosures and the protection of the right against self-incrimination,” we must balance the public need against the individual claim to constitutional protection in deciding whether the privilege applies. (California v. Byers, supra, 402 U.S. at p. 427.) Contrary to the dissent‘s assertion, the “testimonial” character of the disclosure is not dispositive. As the United States Supreme Court has more recently observed: “The possibility that [a law] will compel testimonial assertions that may prove incriminating does not, in all contexts, justify invoking the privilege to resist production.” (Baltimore Dept. of Social Servs. v. Bouknight, supra, 493 U.S. 549, 555.)
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.” (493 U.S. at p. 561.) Similarly, in this case, we are not called upon to define the precise limitations on the state‘s ability to use the “testimonial” aspect of the required disclosures. We hold only that a person may not rely on the Fifth Amendment privilege to resist making the disclosure in the first instance.
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
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) 487 U.S. 201, 210 [108 S.Ct. 2341, 2347-2348, 101 L.Ed.2d 184].) In the dissent‘s own words, “a testimonial communication is one in which a person reveals knowledge or information from his own mind. Conversely, if all that is required is the production of ‘real or physical evidence’ or noncommunicative conduct the privilege is not violated.” (Dis. opn., post, at p. 1562.)
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 information could provide a link leading to criminal prosecution, the United States Supreme Court has concluded the
Kroncke testified at trial that he provided the officers at the scene with his name, driver‘s license and vehicle registration. He also claimed to have identified himself, at least implicitly, as the driver of the vehicle involved in the accident.13 Like Kroncke, most citizens understand the reasonable and constitutional reporting requirements the Vehicle Code imposes. The dissent,
In sum, we follow what we believe to be the law announced in California v. Byers, and conclude that the
C., D.*
III
DISPOSITION
The judgment is affirmed.
Walker, J., concurred.
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 a crime to fail to stop and provide identifying information. The majority would declare it a crime to fail to explicitly admit involvement in an accident resulting in death or injury. The majority asserts the statutory language demonstrates that the Legislature intended to require this admission. I disagree. In referring to “a driver involved in an accident” the statute defines the class of drivers compelled to stop and provide identification. It does not, by its plain language, compel the explicit admission of involvement. If the language is ambiguous, standard rules of construction require that a statute imposing penal consequences be narrowly construed. (See generally, 1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Introduction to Crimes, § 28, pp. 37-38.)2 When the government requires its citizens to do something under threat of penal consequence, its pronouncement must be clear. A citizen is
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) 402 U.S. 424, 430 [91 S.Ct. 1535, 1539, 29 L.Ed.2d 9] (Byers).) To achieve this purpose, the Legislature recognized that we live in an increasingly anonymous society. If motorists could leave the scene of an accident without identifying themselves, the satisfaction of civil liability would be made almost impossible. Thus, the law requires a motorist to stop and provide identification before receding into the nameless crowd. Armed with that identity, a civil litigant, or criminal investigator can conduct further investigation and seek appropriate legal redress.3 The Legislature enacted a statute designed to secure identity. The majority rewrites it to be a statute which facilitates the building of a case.
The majority relies in part on People v. Monismith (1969) 1 Cal.App.3d 762 [81 Cal.Rptr. 879] (Monismith), the opinion of a two-judge panel. The
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) 384 U.S. 436, 460 [86 S.Ct. 1602, 1620, 16 L.Ed.2d 694, 10 A.L.R.3d 974].) The Monismith court, in its brief opinion, did not address the issue of testimonial communication in any way. The Monismith court did not do so because it recognized the immunity articulated by the California Supreme Court in Byers v. Justice Court (1969) 71 Cal.2d 1039 [80 Cal.Rptr. 553, 458 P.2d 465]. (Monismith, supra, 1 Cal.App.3d at p. 767.) Only later did the United States Supreme Court decide Byers.
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) 217 Cal.App.3d 1 [265 Cal.Rptr. 661], referred to Monismith in deciding whether a
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
A. Testimonial Communications
The United States Supreme Court has addressed the testimonial question in a number of different contexts. Examination of this body of precedent reveals that the disclosure in question here is testimonial.
In Malloy v. Hogan (1964) 378 U.S. 1 [84 S.Ct. 1489, 12 L.Ed.2d 653], the court held the
The Supreme Court examined the scope of the privilege two years later in Schmerber v. California (1966) 384 U.S. 757 [86 S.Ct. 1826, 16 L.Ed.2d 908] (Schmerber). Following an accident, Schmerber had been arrested for drunk driving. Schmerber‘s blood was drawn, without his consent, at the direction of a police officer. The blood sample revealed the presence of alcohol. Schmerber argued that compelling him to give a blood sample violated his
Doe v. United States (1988) 487 U.S. 201 [108 S.Ct. 2341, 101 L.Ed.2d 184] turned squarely upon an interpretation of the meaning of the term “testimonial.” Doe claimed the
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) 275 Cal.App.2d 215 [79 Cal.Rptr. 549]), give blood samples (Schmerber, supra, 384 U.S. 757), stand in a lineup (United States v. Wade (1967) 388 U.S. 218 [87 S.Ct. 1926, 18 L.Ed.2d 1149]), produce handwriting exemplars (Gilbert v. California (1967) 388 U.S. 263 [87 S.Ct. 1951, 18 L.Ed.2d 1178]), wear certain clothing (Holt v. United States (1910) 218 U.S. 245 [31 S.Ct. 2, 54 L.Ed. 1021]; People v. White (1968) 69 Cal.2d 751 [72 Cal.Rptr. 873, 446 P.2d 993]), and turn over records or other items (Fisher v. United States (1976) 425 U.S. 391 [96 S.Ct. 1569, 48 L.Ed.2d 39]). An analysis of this body of authority teaches that a testimonial communication is one in which a person reveals knowledge or information from his own mind. Conversely, if all that is required is the production of “real or physical evidence” or noncommunicative conduct, the privilege is not violated. “[T]he protection of the privilege reaches an accused‘s communications, whatever form they might take, . . .” (Schmerber, supra, at pp. 763-764 [86 S.Ct. at p. 1832].)
What the majority would require, under compulsion of fine or criminal confinement for failure, is the production of testimonial information, communicative information of the motorist‘s “knowledge of facts relating him to the offense,” of the “contents of his own mind.”
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) 199 Cal.App.3d 914 [245 Cal.Rptr. 458] and People v. Powell (1986) 178 Cal.App.3d 36 [223 Cal.Rptr. 475].) The question in determining whether a disclosure is testimonial is not, as the majority implies, whether the disclosure facilitates further investigation of a crime. Standing in a lineup or providing fingerprints obviously does so. The question, as the Supreme Court has explained, is whether the state has compelled an individual “to disclose the contents of his own mind“; to reveal “his knowledge of facts relating him to the offense.” Indeed, it is difficult to imagine a more direct compulsion of one‘s “knowledge of facts relating him to the offense” than to compel him to reveal he killed or injured someone while driving.
As the majority points out,4 the act of stopping and providing identification carries with it some implicit meaning. Most conduct does. Of course, a motorist may stop and produce identification for reasons other than admitting culpability. He may stop as a witness. He may stop to aid the injured. He may stop out of curiosity. Even if one interpretation of such conduct supports an inference of involvement, it is not the only reasonable conclusion available. The majority would compel a motorist to remove all doubt by confessing involvement.
The majority quite rightly notes the Supreme Court‘s several references to balance. It is precisely at the point between nontestimonial conduct and
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
The majority attempts tо 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
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) 390 U.S. 39 [88 S.Ct. 697, 19 L.Ed.2d 889] (Marchetti) which dealt with statutes regulating taxation of wagers. Under the statutes, those who accept wagers were required to pay occupational taxes and to register with the local Internal Revenue director. Registrants were required to admit they were in the business of accepting wagers. The issue, as framed by Justice Harlan for the majority, was “whether the methods employed by Congress in the federal wagering tax statutes are, in this situation, consistent with the limitations created by the privilege against self-incrimination guaranteed by the
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, 390 U.S. at p. 53 [88 S.Ct. at p. 705]). “In these circumstances, it can scarcely be denied that the obligations to register and to pay the occupational tax created for petitioner ‘real and appreciable,’ and not merely ‘imaginary and unsubstantial,’ hazards of self-incrimination. [Citations.] Petitionеr . . . was required, on pain of criminal prosecution, to provide information which he might reasonably suppose would be available to prosecuting authorities, and which would surely prove a significant ‘link in a chain’ of evidence tending to establish his guilt.” (Id. at p. 48 [88 S.Ct. at pp. 702-703], fn. omitted.)
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 (
Based on long-standing United States Supreme Court jurisprudence the requirement imposed by the majority violates the
The Byers Cases
The majority relies heavily upon the analysis of Byers v. Justice Court, supra, 71 Cal.2d 1039 and Byers, supra, 402 U.S. 424. In Byers the United States Supreme Court reviewed the California Supreme Court‘s disposition in the same case. The celebrated Mr. Byers was in an auto accident and fled without providing the statutorily required identification. It was his failure to stop and produce identification that was at issue before both supreme courts.
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, 402 U.S. at p. 425 [91 S.Ct. at p. 1536], italics added.) In answering the question Justice Burger, writing for the plurality, considered two factors: 1) what the statute required of a driver involved in an accident causing property damage; and 2) the degree to which those requirements presented a risk of incrimination.
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 аpplied to accidents involving property damage. It did not address a statute relating to
In part I of Byers the plurality considered the risk of incrimination as a factor implicating the protections of the
In the second part of Byers the plurality concluded that the statute‘s requirements did not violate the
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, 388 U.S. 218, that
Justice Harlan reviewed the extant Supreme Court jurisprudence and acknowledged that the cases hold the presence of a substantial risk of self-incrimination triggers
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.
Byers, supra, 402 U.S. 424, explicitly dealt with the language of the statute. The plurality opinion is replete with references to “the statute.” Likewise, Justice Harlan‘s concurrence is limited in its scope. Justice Harlan discusses at length the need to balance legitimate governmental interests with the constitutional protections of the
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.6
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
The majority interprets Byers to say that context and purpose are the primary focus of a
The majority defends their expansion of the statute by asserting: “The
The logical conclusion of the majority‘s assertion is that the
Appellant here has relied on People v. Bammes (1968) 265 Cal.App.2d 626 [71 Cal.Rptr. 415] (Bammes) for the proposition that admission of involvement is not required. The majority rejects Bammes by citing Byers v. Justice Court, supra, 71 Cal.2d 1039. The reliance on Byers v. Justice Court is somewhat problematic in that its judgment was vacated by the United States Supreme Court in Byers, supra, 402 U.S. 424.
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
Three things then, are apparent. First, Byers v. Justice Court did not hold an explicit admission is required by the statute. It merely criticized Bammes for concluding that a driver could say something false, i.e., that he was merely at or near the scene, rather than the driver. Second, Byers v. Justice Court assumed the usual circumstance in which involvement is “obvious,” rather than the unusual circumstance we deal with here, in which involvement is not apparent. Third, the majority cannot have it both ways. They cannot fairly cite Byers v. Justice Court to support their interpretation of the statute without acknowledging that the case also concluded that their interpretation required the extension of immunity because it otherwise violated the
The majority‘s further reliance on Baltimore Dept. of Social Servs. v. Bouknight (1990) 493 U.S. 549 [110 S.Ct. 900, 107 L.Ed.2d 992], is also unavailing. In Bouknight, Justice O‘Connor concluded that a mother could not resist a court order to turn her young son over to child welfare authorities by relying on the
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
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. As Justice Bradley observed in Boyd v. United States, supra, 116 U.S. 616: “It may be that it is [a limitation] in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. . . . It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.” (Id. at p. 635 [6 S.Ct. at p. 535].) This view was echoed by Justice Brandeis, dissenting in Olmstead v. United States (1928) 277 U.S. 438 [48 S.Ct. 564, 72 L.Ed. 944, 66 A.L.R. 376]: “The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” (Id. at p. 479 [48 S.Ct. at p. 573] (dis. opn. of Brandeis, J.).)
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
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
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.