THE PEOPLE, Plaintiff and Respondent, v. JEROME JOSEPH MARKHAM, Defendant and Appellant.
No. S009472. Crim. No. 25539.
Supreme Court of California
July 24, 1989
49 Cal.3d 63
Kenneth J. Sargoy, under appointment by the Supreme Court, for Defendant and Appellant.
George L. Schraer as Amicus Curiae on behalf of Defendant and Appellant.
John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, Andrew D. Amerson, Sharlene A. Honnaka, William T. Harter, Marc E. Turchin and Donald E. De Nicola, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
EAGLESON, J.—In People v. Jimenez (1978) 21 Cal.3d 595, 605 [147 Cal.Rptr. 172, 580 P.2d 672], this court first adopted “as a judicially declared rule of criminal procedure” the requirement that at trial the People prove the voluntariness of a defendant‘s confession beyond a reasonable doubt. The United States Supreme Court had earlier held that the federal Constitution required only that the prosecution prove a confession voluntary by a preponderance of the evidence. (Lego v. Twomey (1972) 404 U.S. 477, 489 [30 L.Ed.2d 618, 627, 92 S.Ct. 619].)1
We granted review in this case to determine whether
In conformance with the principles announced in People v. May (1988) 44 Cal.3d 309 [243 Cal.Rptr. 369, 748 P.2d 307], and In re Lance W. (1985) 37 Cal.3d 873 [210 Cal.Rptr. 631, 694 P.2d 744], we conclude that the Jimenez rule has been abrogated by
FACTS
On the evening of June 18, 1984, two men robbed the Pacific Drugstore in Oxnard. Pharmacist Jue was unable to identify defendant as one of the
Kato testified that during the robbery she heard the shorter robber state to Jue, “I need some Valiums or Thorazine.” Jue testified the taller robber demanded “Dilaudid, Valium and the money in the till.” The shorter robber then accompanied Jue to the rear of the store, where Jue gave him a bottle of Valium tablets. Jue recalled that the shorter robber “kind of apologized,” stating that if he could he would return to repay him. Jue also turned over the money from the cash register to the robbers.
Defendant was arrested the following day by Officer Veto, who believed defendant was then under the influence of a depressant drug. (
Detective McCowan told defendant that he had been tentatively identified as a participant in the drugstore robbery. Defendant then admitted to McCowan that he had obtained some Valium pills and change in the robbery, but claimed he was not the robber who had used a weapon. Defendant also stated he had told the pharmacist he would try to pay him back if he could. Evidence of these admissions was introduced over defense objection at the preliminary hearing. The magistrate ruled that the federal preponderance-of-the-evidence standard (see Lego v. Twomey, supra, 404 U.S. at p. 489 [30 L.Ed.2d at p. 627]) governed the determination of whether defendant‘s waiver of his Miranda rights was knowing, intelligent and voluntary. The magistrate indicated that if the state reasonable doubt standard applied (see People v. Jimenez, supra, 21 Cal.3d at p. 606), his ruling would have been otherwise. Defendant was bound over to superior court for trial on charges of robbery (
After denial of a motion to set aside the information (
The Court of Appeal affirmed on grounds that the principles of Lance W., dealing with suppression of evidence under the Fourth Amendment, are equally applicable to suppression of evidence on Fifth Amendment grounds, and that the “truth-in-evidence law” is applicable to procedural aspects of self-incrimination.
DISCUSSION
In In re Lance W., supra, 37 Cal.3d 873, this court held that the adoption of section 28(d) abrogated California‘s vicarious exclusionary rule and instead required application of the federal rule denying such standing. We explained that: “[I]n the absence of express statutory authority therefor courts may not exclude evidence seized in violation of either the state or federal Constitution unless exclusion is compelled by the federal Constitution. . . . [¶] Implicit in the limitation on the courts’ power to exclude relevant evidence to the enumerated statutory exceptions is a limitation on the power of the court to create nonstatutory exclusionary rules, whether denominated rules of procedure, rules of evidence, or substantive rules, for the exclusion of unlawfully seized evidence if those rules afford greater protection to a criminal defendant than does the Fourth Amendment.” (Id., at pp. 888-889, fn. omitted.)
In 1988 we decided People v. May, supra, 44 Cal.3d 309, holding that Proposition 8 abrogated the rule of People v. Disbrow (1976) 16 Cal.3d 101 [127 Cal.Rptr. 360, 545 P.2d 272], which had held inadmissible for impeachment purposes a defendant‘s extrajudicial statements elicited in violation of his Miranda rights. We reinstated the pre-Disbrow federal rule set forth in Harris v. New York (1971) 401 U.S. 222 [28 L.Ed.2d 1, 91 S.Ct. 643], permitting impeachment of a defendant, who elects to testify in his own behalf, with extrajudicial statements taken in violation of his Fifth Amendment rights. (People v. May, supra, 44 Cal.3d at p. 315.)
We determined in May that the Disbrow rule was a remedial device, not a substantive right, and thus did not fall within the exception to section 28(d) for “existing statutory rule[s] of evidence relating to privilege“—in particular
We distinguished our earlier holding in Ramona R. v. Superior Court (1985) 37 Cal.3d 802 [210 Cal.Rptr. 204, 693 P.2d 789], since that case involved the use of legislatively compelled self-incriminatory statements or testimony, in contrast to statements merely violative of Miranda. We pointed out in May that legislatively compelled testimony cannot be used against
We made a number of further important observations in May supportive of our holding therein: “[T]he ‘Truth-in-Evidence’ provision of our Constitution was probably intended by the California voters as a means of (1) abrogating judicial decisions which had required the exclusion of relevant evidence solely to deter police misconduct in violation of a suspect‘s constitutional rights under the state Constitution, while (2) preserving legislatively created rules of privilege insulating particular communications, such as the attorney-client or physician-patient privilege. As we recently observed, ‘The people have apparently decided that the exclusion of evidence is not an acceptable means of implementing those rights, except as required by the Constitution of the United States.’ (In re Lance W., supra, 37 Cal.3d 873, 887, italics added.) [¶] Given the probable aim of the voters in adopting section 28(d), namely, to dispense with exclusionary rules derived solely from the state Constitution, it is not reasonably likely that the California voters intended to preserve, in the form of a ‘statutory’ privilege, a judicially created exclusionary rule expressly rejected by the United States Supreme Court under the federal Constitution. (See Harris v. New York, supra, 401 U.S. 222.) In this regard, Ramona R., supra, 37 Cal.3d 802, is distinguishable on the further ground that its rule of use immunity was adopted in the face of conflicting signals from the federal courts regarding the necessity of such a remedy under the federal Constitution. (See [Ramona R.,] 37 Cal.3d at pp. 808-809.)” (May, supra, 44 Cal.3d at p. 318.)
The Jimenez rule was likewise a judicially declared rule of criminal procedure adopted in the face of the conflicting, less demanding federal preponderance of the evidence standard of Lego v. Twomey, supra, 404 U.S. at page 489 [30 L.Ed.2d at page 627]. It is not a rule defining a substantive right dealing with the scope of a defendant‘s Fifth Amendment privilege against self-incrimination, and consequently is not encompassed by
In adopting the beyond-a-reasonable doubt standard, the Jimenez court reasoned that use of the stricter standard of proof would serve to decrease the risk that an involuntary confession would be admitted (21 Cal.3d at p. 605), and further decrease the risk that a false involuntary confession would be admitted and therefore have “a salutary effect on the ultimate fact-finding process. . . .” (Id., at p. 607.) We also stated our belief that
It is clear that the goal of this court in Jimenez was merely to set the degree of proof by which the prosecution must establish the voluntariness of a defendant‘s extrajudicial statements. Long before Jimenez, both the federal and state Constitutions prohibited the introduction of involuntary confessions. (See, e.g., Payne v. Arkansas (1958) 356 U.S. 560, 561 [2 L.Ed.2d 975, 977, 78 S.Ct. 844]; People v. Trout (1960) 54 Cal.2d 576, 583 [6 Cal.Rptr. 759, 354 P.2d 231, 80 A.L.R.2d 1418].) Our opinion in Jimenez did not attempt to redefine the scope of the Fifth Amendment privilege against self-incrimination in California. The rule established in that case was purely procedural, not substantive, and we expressly acknowledged as much: “Although the defendant urges that the privilege against self-incrimination contained in article I, section 15 of the state Constitution requires application of the reasonable doubt standard in order to fully protect the important values embodied therein, we find it unnecessary to reach the constitutional question as we conclude for the reasons set forth below that the reasonable doubt standard is required as a judicially declared rule of criminal procedure. [Citation.]” (Jimenez, supra, 21 Cal.3d at p. 605.)
The Jimenez rule reflected a policy decision, a balancing of competing values squarely at odds with that previously arrived at by the United States Supreme Court in Lego v. Twomey, in which case the high court entertained and rejected policy arguments similar to those accepted in Jimenez. The high court in Lego wrote: “[W]e are unconvinced that merely emphasizing the importance of the values served by exclusionary rules is itself sufficient demonstration that the Constitution also requires admissibility to be proved beyond reasonable doubt. Evidence obtained in violation of the Fourth Amendment has been excluded from federal criminal trials for many years. [Citation.] The same is true of coerced confessions offered in either federal or state trials. [Citations.] But, from our experience over this period of time no substantial evidence has accumulated that federal rights have suffered from determining admissibility by a preponderance of the evidence. Petitioner offers nothing to suggest that admissibility rulings have been unreliable or otherwise wanting in quality because not based on some higher standard. Without good cause, we are unwilling to expand currently applicable exclusionary rules by erecting additional barriers to placing truthful and probative evidence before state juries and by revising the standards applicable in collateral proceedings. Sound reason for moving further in this direction has not been offered here nor do we discern any at the present time. This is particularly true since the exclusionary rules are very much aimed at deterring lawless conduct by police and prosecution and it is very
The beyond a reasonable doubt standard of proof required under Jimenez compels exclusion of confessions and admissions otherwise admissible as voluntary under the less demanding federal preponderance-of-the-evidence standard of Lego v. Twomey. Consequently, the procedural rule of Jimenez accomplishes what a rule founded on independent state constitutional grounds, in the wake of Proposition 8, cannot—exclusion of relevant evidence based upon a standard of proof of voluntariness more stringent than that mandated by the federal Constitution. We have explained that the intent of the electorate in passing Proposition 8 was to curtail the exclusion of relevant evidence based upon independent state grounds, except as required by the Constitution of the United States. (People v. May, supra, 44 Cal.3d at p. 318; In re Lance W., supra, 37 Cal.3d at p. 887.)
The Constitution of the United States requires no more than that the voluntariness of confessions or admissions be proved by a preponderance of the evidence at trial. (Lego v. Twomey, supra, 404 U.S. 477, 489 [30 L.Ed.2d 618, 627].) Section 28(d) establishes that standard as the rule in California.4
CONCLUSION
The decision of the Court of Appeal upholding defendant‘s judgment of conviction is affirmed.
Lucas, C. J., Panelli, J., Kaufman, J., and Kennard, J., concurred.
MOSK, J.—With the utmost reluctance, I concur in the judgment. As will appear,
The precise question is whether—as the Court of Appeal held—
Under
Therefore, I am compelled to conclude that the judgment of the Court of Appeal must be affirmed.
I must observe, however, that in Asia, Latin America, and other areas of this troubled world courageous men and women are striving, and some are dying, to establish and expand individual rights. It is ironic that in California our existing individual rights are being curtailed.
We cannot blame the United States Constitution or the United States Supreme Court for this situation. In Pruneyard Shopping Center v. Robins (1980) 447 U.S. 74 [64 L.Ed.2d 741, 100 S.Ct. 2035], Chief Justice Rehnquist, then an associate justice, stated for a unanimous court that decisions
Rather, the blame for the sorry situation in which we find ourselves must be placed squarely on Proposition 8. That ill-conceived measure has struck down California precedents on individual rights as it has encountered them in its path of destruction. (See, e.g., People v. May (1988) 44 Cal.3d 309 [243 Cal.Rptr. 369, 748 P.2d 307], interring People v. Disbrow (1976) 16 Cal.3d 101 [127 Cal.Rptr. 360, 545 P.2d 272]; In re Lance W. (1985) 37 Cal.3d 873 [210 Cal.Rptr. 631, 694 P.2d 744], interring among other decisions People v. Martin (1955) 45 Cal.2d 755 [290 P.2d 855]; People v. Warner (1988) 203 Cal.App.3d 1122 [250 Cal.Rptr. 462], purporting to inter People v. Pettingill (1978) 21 Cal.3d 231 [145 Cal.Rptr. 861, 578 P.2d 108].) Jimenez is the latest casualty—and regrettably, probably not the last.
BROUSSARD, J.—I concur in the judgment under compulsion of People v. May (1988) 44 Cal.3d 309 [243 Cal.Rptr. 369, 748 P.2d 307].