*1 Aug. No. 22273. [Crim. 1983.] PEOPLE,
THE Plaintiff Respondent, SMITH,
KEVIN LEROY Defendant Appellant.
Counsel Court, John M. under Bishop, Defendant appointment Supreme and Appellant. Denvir,
Quin Defender, Collins, State Public Alice V. Harriet Wiss Hirsch Defenders, and Jean R. State Sternberg, Public as Amici Curiae on Deputy behalf of Defendant and Appellant.
George General, and John K. Van de Deukmejian Robert Kamp, Attorneys Philibosian, General, H. Chief Assistant D. Attorney William Stein and O’Brien, Niver, Edward P. General, Assistant Ronald E. Attorneys David *5 Runde, General, D. Salmon and John W. for Plaintiff Deputy Attorneys and Respondent. N. Heard
Christopher as Amicus Curiae on behalf of Plaintiff and Respon- dent.
Opinion MOSK, J. a from appeals convicting him of one judgment Defendant count of He robbery. contends that the trial court principally erred de- his motion to nying his confession on the that it suppress was ob- ground tained in violation of the privilege self-incrimination against guaranteed by I, article of the California As Constitution. will we appear, conclude that the contention is meritorious and must therefore judgment be reversed.
In mid-November 1979 Edwin Meares1 old and lived in a years Pablo, trailer in San park Contra Costa a defendant was man County; young of no fixed abode. met They first when defendant was and hitchhiking Meares him picked twice in one On up the second occasion defendant day. 1Although the name is written “Mears” in the transcript, trial when the witness testified preliminary at the hearing spelled he own his name as “Meares.” all no to take a shower. Meares
said he had been and had night up place alone, he his trailer. Defendant lived and offered him the use of replied and became his accepted houseguest.
For week went Meares shared their days a or all well. Defendant and meals, television, also together; they watched and attended a drive-in movie a of shoes. Trou- went and defendant bought pair Meares shopping together, arose, however, car, a late-model Buick ble over the use of the Meares he every Meares the car almost day; allowed defendant to borrow Regal. love for later an testified that defendant “seemed have inordinant [s/c] he he where said it.” defendant did not take the car always Unfortunately would return when bother discrepancies began or it and the promised, Meares. 20, 1979, told
Matters came to a when defendant head November he he was a instead. When Meares but went to going drugstore park back, asked, “Would the car an and defendant brought ensued argument better,” “Yes, it and I think would be rather Meares I you go?” replied, however, assert- defendant left the trailer. Ffe returned that evening, early defen- for some clothes left behind. After renewed discussion edly he had car,” said, demanding dant knife at Meares and “I want pointed your Defendant turn over the for the vehicle. keys registration Meares papers left his then with host’s clothing, bound Meares with some gagged wallet, checkbook, card, Meares credit a few small items. sum- other moned from a and was freed unharmed. neighbor, help
A Tucker was on routine few hours later—about 11 Officer p.m.—Police *6 when observed defendant County, urinating Solano he patrol Vallejo, lot. The car only the side of a a against building parking supermarket with a a the lot was Buick backed into a Regal nearby parking space, pas- out of his in the front Officer Tucker senger sitting stepped squad seat. As he defendant if car defendant him. officer asked walked over to meet identification, had he did not. replied and defendant any but found weapons, Officer Tucker next defendant’s patted clothing however, rear none. He did an in defendant’s pocket, feel object right pants further ado he it wallet. Without from its inferred was man’s shape wallet, and ordered out the Officer Tucker reached into the took pocket, a credit the officer saw defendant to it. When defendant complied, open the name card bore card he to hand over. The inside that directed defendant Meares, the of- defendant had given of earlier in the although questioning Officer ficer true of Kevin Because of this discrepancy his name Smith. He stolen. placed ran a the card and learned it was Tucker radio check on then searched defendant under arrest for stolen possession property, wallet; rest the Buick’s he learned a second finding by registration, radio check that the car was also stolen. station,
Officer
Tucker
defendant to
intend-
Vallejo
transported
police
ing
him about the stolen
When
ad-
interrogate
defendant was
property.
vised
his
under
rights
Miranda
At the outset of trial defendant moved to on grounds suppress illegality (1) the evidence seized in the lot Officer Tucker and parking confession obtained at the jail Officer The court county Hisey. granted the motion in unlawful; search part, of defendant’s wallet was ruling accordingly, card, it ordered that evidence of the stolen credit registration certificate, and Buick be automobile fruits of the as search. The suppressed court denied the confession, however, motion as to the and Officer Hisey was allowed to testify to its contents.
I matter, aAs preliminary we take of the law up question governing this case, After we appeal. in this granted hearing voters an adopted initiative measure at the June 1982 Election the ballot Primary designated as 8. election, It i.e., took effect on the after the on June day (Cal. Const., XVIII, 1982. art. The initiative made a number of § in the changes constitutional and law of this state statutory crim- governing inal In prosecutions. section 3 of the initiative added particular, new section Constitution, 28 to article I of the (d) subdivision of that section declares in pertinent that “relevant part evidence shall not be excluded in crim- inal proceeding.”2 *7 28(d), 2The provision, entirety hereinafter referred to as section reads in its as follows: “Except provided by as the by membership statute hereafter enacted a two-thirds vote of in Legislature, each house of the any pro- relevant evidence shall not be excluded criminal ceeding, including pretrial post hearings, any and conviction or in trial or motions and offense, hearing juvenile of a for a criminal juvenile Nothing whether heard in or adult court. any this existing statutory relating privilege section shall affect to or rule of evidence Code, 352, hearsay, or Nothing Evidence 782 Sections or 1103. this section shall affect any existing statutory right or constitutional of the press.” reprinted Proposition appendix 8 is in full v. in the to Brosnahan Brown 32 Cal.3d 300-301 274].
258 election, General filed a supplemental after the the
Shortly Attorney all other criminal (d) brief that 28 this case and section contending governs by when briefs were filed defendant it was appeals pending adopted. Reply curiae, that not only the Public Defender amicus by contending and State as 28 8 to (d) pending ap but a whole is inapplicable section as Proposition before the and indeed to case which the crime occurred prop peals, a detailed brief. Attorney responsive osition took effect. The General filed In before this court. joined, argued The issue was thus and has been orally our original Brosnahan Brown we exercised supra, the of jurisdiction validity Proposi to review writ certain by challenges and be “the are should importance tion because issues of great public (Id. the by resolved at The issue here raised promptly.” parties— i.e., no and important to which cases does is less Proposition apply?— these to the the at In view of all circum urgent public large. and profession stances, in the it that we address the case question is appropriate hand. We hold that only prosecutions shall Proposition applies for crimes committed on or after effective date. its First, the stated
We reach for reasons. pur- this conclusion three primary (a) of of crimes. Subdivision is to deter the commission pose Proposition Constitution, I, 3 of new of added section of article of that evidently is a declaration intent legislative speaks Proposition certain rights In its three it lists as whole. first proposition paragraphs in particular, is security protect; of that the personal proposition designed more expectation the second “the basic persons paragraph emphasizes will be ap- to innocent victims who commit felonious acts causing injury courts, sufficiently pun- detained in tried and custody, propriately as a encouraged goal ished so that the is public safety protected of ” recites that added.) And fourth (Italics paragraph highest importance. of treatment procedural “To these broad reforms in accomplish goals, are of persons convicted sentencing accused persons disposition to serious dis- to criminal behavior and necessary and as deterrents proper added.) (Italics lives.” ruption people’s effective, reform, deter no how can
It obvious no such matter or behavior or disruption criminal behavior avert of life if that disruption vote could has taken Not even a unanimous already place. people been have back the crimes that had previously turned clock prevented committed; Ac- to the electorate. we cannot ascribe so irrational a hope 8 to the deterrence be cordingly, by declaring purpose to offenses only crime the voters have intended the must measure apply *8 259 deterred, the time i.e., could be that had not been committed already that was 8 adopted.3 Our second reason so flows from fun 8 the viewing Proposition damental that if the must construe a principle reasonably courts possible to statute avoid doubts Cal.3d (In Kay (1970) as to its re 1 constitutionality. 930, 942 686, 142]; accord, (1983) 464 P.2d v. Roder Cal.Rptr. People [83 491, 33 Cal.3d 501, 1302]; 505 658 P.2d v. Black Cal.Rptr. [189 (1982) 1, 32 454, Cal.3d 10 104]; 648 P.2d Cal.Rptr. Department [184 of 197, Corrections v. Workers’ Bd. 23 207 Comp. Cal.3d Appeals 345, 853], 589 P.2d The same cited.) and cases [152 principle construction governs of a (Otsuka of the California Constitution. provision Hite (1966) 412].) 606-607 [51 And it governs either even case the was vote measure though adopted of “because people, the voters no more may violate Constitution by a ballot enacting measure than do so legislative body may by enacting legislation.” (Citizens Rent Control v. Against Berkeley (1981) 454 U.S. 492, 498, 295 L.Ed.2d 434].) 102 S.Ct. [70 context,
In the defect in present constitutional potential Propo sition 8 is that if before its construed to to crimes committed apply adoption, Constitution, may it amount to an ex law. state which facto Our upon post Const., I, (Cal. we art. rely, guide such prohibits general laws. § known, lines for facto are well but its enforcing ex prohibition post specific difficult applications may questions. present
Thus it is said a law “it that for to be ex facto must commonly post enactment, apply events and it disadvantage before its must occurring (Weaver offender affected by (Fns. omitted.) it.” v. Graham 450 17, 23, U.S. 960].) L.Ed.2d The latter plainly S.Ct. phrase [67 includes law any an when as criminal act that innocent punishes done, or increases the (Id. for a after it was crime committed. punishment 22].) at L.Ed.2d at p.
Beyond constraints, these two manifest is much less picture clear. with, To begin guidance no can be found of concept vested it rights, as is now settled that “a law need not impair a ‘vested right’ (Id. violate the ex post prohibition.” 29p. facto contrary 3A compelled by (d) inference is not speaks applying the fact that section 28 “any (See ante.) proceeding.” context—i.e., criminal fn. When read in evi relevant dence shall not proceeding, including pretrial be excluded “in criminal post con viction hearings”—the phrase (d) motions and plainly is meant to ensure section 28 will operate only not stages criminal but also in prosecution trials other of a in which evidence offered, examinations, preliminary such hearings accusatory as set aside motions evidence, addition, course, pleadings suppress or sentencing proceedings. In phrase purpose excluding (d). serves the scope civil from the cases
260 is the 23],)4 more helpful procedural-sub
L.Ed.2d at Somewhat p. be used with distinction, great tool must but even that traditional stantive as do procedural be may designated in this context: which “Changes care doctrine, but that in itself is rule, not, the ex facto as a come within post 702, 707 P.2d (1958) 50 Cal.2d the true test.” v. Ward (People [328 not (1964) Morse 777], on other grounds disapproved Likewise, 810].) 33, 12 A.L.R.3d 649 [36 Weaver that “no ex Court reiterated recently the United States Supreme (450 merely effected is procedural” violation occurs if the change post facto 23]), immediately but qualified at p. U.S. at fn. L.Ed.2d p. [67 however, is not right, of a substantial rule the caveat that “Alteration form.” a seemingly procedural if the statute takes even merely procedural, form, that deter effect, of the law “it not the (Ibid.) This is because is the ” 31].) Yet at (Id. p. at L.Ed.2d mines whether it is ex post p. facto. right” what is a “substantial did not undertake to define court high rights.5 an inclusive list such this less still purpose, prepare facto legislation, of ex As to all but most obvious examples post Each new short, rule. rule is that there is no general general in the con be individually weighed on this must challenged ground statute case, outcome will scales, and the in the context of a stitutional specific is the right on matters of on how substantial often degree—e.g., depend these are Plainly and how is that the statute impairs significant impairment. Indeed, in close cases differ. on which reasonable judges may questions court’s sense of factors as the will turn on such subtle inevitably decision fair and justice. play when, as consistency
This task is difficult with enough perform occurs, the at a time or a multisection one statute usually Legislature adopts It is even more act that is either all “substantive” or all “procedural.” mixture of when the random seemingly provi is legislation problematic such a of both kinds. Viewed 8 is composite. sions functionally, Proposition 8 deals generally It true that in Brosnahan the court held that II, subdi of article with a within the “single subject” meaning Constitution,6 as (d), vision and defined that subject “promoting solely with whether analysis, concerned engages post 4“When a in ex which is court facto an act than did consequences to disadvantageous penal criminal or assigns a statute more occurred, statutory change touches whether the place the law in when the act it is irrelevant 23].) (Id. p. any L.Ed.2d at rights.” vested fn. statutes, consistently been have procedural appearance, though 5A few kinds of even a defendant’s effect on because of their substantial subject post held to the ex facto clause crime, burden of prosecution’s lowering rights: e.g., deleting elements of statutes proof, impairing or a defense. to the subject may not be submitted more than one embracing 6“An initiative measure electors or have effect.” *10 247.) But the (32 at of actual or crime victims.” Cal.3d rights potential p. us, cau and repeatedly did not address the now before opinion question into other any tioned that it was not meant to inquiries preclude subsequent 241, (Id. 242.) of 8. at aspect Proposition pp. were
We in of the observed Brosnahan that the 10 sections proposition to safeguards both and substantive” designed strengthen “procedural (Id. crime. in of light victims of at When the measure is examined p. concern, however, into our do not all divide neatly its present provisions one or the other of those categories. Prop Thus some provisions substantive, osition 8 are facto if were clearly they and would be ex post to Prime among crimes committed before the measure took effect. applied these is the clause convicted of five to the sentence of adding years anyone a (§ 5).7 “serious with a a crime At the felony” conviction of such prior other end of the both in are that are spectrum clearly provisions procedural effect, form and and would crimes. These not be ex facto as to post prior 3) include the (§ clauses of crime a to restitution giving victims right (§ 6), appear sentencing hearings guaranteeing “right parole (§3), to safe schools” conviction to be felony proved requiring prior in court when (ibid.). it is an element of a open felony charged extremes, however,
Between these two a number of other fall provisions 8 that a closer in out- present although question: procedural form, ward it is that in a each affect possible rights case particular may the defendant that are “substantial” to ex facto sufficiently post require include the protection. They clauses all limitations on the use of abolishing convictions prior against defendant for either or enhance- impeachment (§ ment of 3), sentence (§ 4), modifying defense of insanity restricting in plea bargaining (§ 7), certain commitment to prosecutions barring the Youth Authority any convicted of certain crimes committed person (§ 8). after the of 17 age
The difficulty the latter another of presented by by is group epitomized members, i.e., its of section 3 which declares that “relevant portion 2, evidence shall not be (fn. ante). excluded in criminal any proceeding” Whether that clause is ex facto as to cannot be told in crimes post prior terms; advance or in it will the actual effect of the general clause depend in a in For a case in which specific prosecution. example, provision found to result evidence admissible or the kinds of simply broadening class of it would not be ex facto persons testify, competent probably post 7If the defense of capacity any respect diminished survived in the enactment of Penal Code (Stats. 1592), Prop section 28 ch. 4 of its abolition § osition 8 trigger post protection. would also ex facto 343-344, fn. 5 (People operation. Bradford hand, matter in [dictum].) the other On 46] or
which the a defense “per- clause is seen to have the effect of impairing when be than was required convicted with less evidence mitting person 458, the act was done” v. Sobiek (People Cal.App.3d be barred [dictum]), its would appear application 519] ex facto clause. post *11 uncertainties, of litiga-
To avert minimize multiplicity these like to cases, tion, to inevitable close forestall of results in the inconsistency measure under to of this constitutionality avoid doubts as to the general clause, to criminal only the ex facto we construe 8 post apply Proposition after the date it took out of committed on or arising offenses proceedings 103, (See effect. 117-119 also v. Teron People death legislation, the 1977 [construing penalty 773] which for its im- restored that elaborate penalty provided procedures date].) effective committed after its crimes plementation, apply only number of so avoid a Finally, by prac- 8 we also construing Proposition the tical right adverse to the administration of consequences justice drawn, course, of arbi- trial. Wherever a fair line is some appearance it; inevitable courts should trariness is the more one closely approaches line where make the every reasonable effort to curtail that effect by placing Here, that it will have the least the dissent hypothesizes results. capricious do, crime, we if we draw the line in the case at bar at date of the as of which search disclose evidence of crimes some single might multiple date; 9, 1982, the latter were committed before June that and others after not. would therefore be but former would governed Proposition even once. The dissent’s to have occurred hypothetical highly unlikely draw—i.e., contrast, date of finality the line that the dissent would By of no less be certain to result in instances many judgment—would to be still pending arbitrariness: all criminal that appeals happened apparent 9, 1982, such appeals would but all on June be governed date would not. that were decided in the days immediately preceding ob- determined during period Whether a defendant whose was appeal not on the would therefore often depend tained a reversal and a new trial which the appellate with merits of his but merely dispatch appeal court acted on his case. particular
Moreover, designed as a measure although Proposition presented word- (d) broadly thereof is so to benefit the at least section prosecution, in neutral declaring well: by to the defense as ed as to certain benefits grant criminal pro- not be excluded terms that “relevant evidence shall but to make admissible relevant ceeding,” previously appears evidence the defense. Yet inadmissible not for the but also for only as dissent’s would those benefits to all defendants—such proposal deny the defendant June 1982: although here—whose trials took before place the Attorney General would be for an affirmance on rely pros- permitted ecution evidence made the de- admissible retroactively by Proposition fendant would be denied the evidence ad- to introduce defense opportunity circumstances, missible under the same In that denial could law. appropriate amount to a of due deprivation process. before June 1982. in the case at bar was committed robbery long the law of California we review the under merits of
Accordingly, appeal it stood at the time of that crime.8 as
II *12 in that the obtained by Sergeant Hisey Defendant contends confession was inadmissible under Costa on the after the arrest County morning Contra decision in Cal.3d People Pettingill our well taken. 578 P.2d is point 108]. In Officer of the Eureka Police arrested Berry Pettingill Department a in that read him his city, defendant on a charge committing burglary Miranda and if he wanted to talk to the The defendant asked rights, police. so, do and later Officer Berry refused to Two hours placed city jail. invited him to make readvised defendant of his Miranda and rights again talk, statement; once more the declined to and was transferred defendant Meanwhile, of the crime in to evidence found at the scene county jail. Bar- Eureka connected the defendant with several recent Santa burglaries bara. Two later Detective of the Santa Barbara Police days Rogers Depart- ment arrived in Eureka to the latter offenses. The Eureka police investigate him, him that the de- turned over the evidence to and informed suspicious De- fendant had twice to make a On the following day refused statement. and if he wanted tective read the defendant his Miranda asked Rogers rights the defendant con- to talk about the Santa Barbara This time burglaries. fessed, When motion and was with the Santa Barbara offenses. his charged denied, the confession was he guilty appealed. suppress pleaded conviction,
We reversed the
that the confession was obtained
holding
I,
violation of the
article
by
self-incrimination
privilege against
guaranteed
line of
long
of the California Constitution. We first reviewed
case,
8Because
inapplicable
parties’
8 is
we do not reach the
this
additional
as to
scope
validity.
contentions
its
California decisions
with
v. Fioritto
Next, in the final an Pettingill was conducted officer of interrogation another law enforcement agency and dealt with crimes different from those for which the defendant had been arrested and We held first questioned. that to. draw a distinction on undermine would ground purpose *13 the Fioritto rule: “It catch the criminal might occasional who sophisticated wishes to make selective statements about certain charges specified agen cies; but it would do so at the cost of into its net the sweeping large majority of who see the uniform suspects as a who only symbol authority, police neither know nor care about the of their precise jurisdictional competence and who do interrogators, not want to talk to them. Little would any remain of the Fioritto rule if it could be evaded in an by sending simply officer from a different or sheriff’s time police every suspect department silent, asserts his to remain right or the of the by subject ques changing from (Id. one of the tioning crimes under to another.” at investigation 245.) p.
Finally, this law we declined deciding of state constitutional question facts, to follow a United States similar Michigan Court decision on Supreme v. Mosley 321], 423 U.S. L.Ed.2d S.Ct. which held 96 [46 to the the of the under federal self-incrimination contrary privilege against Fifth Amendment. In and Mosley robbery the defendant was arrested station; taken to the he refused Detroit advised of his Miranda police rights, to talk. to the Several hours later a different detective took the defendant homicide bureau in him the Miranda warn- the same building, again gave due In unrelated robbery-murder. him about an sought ings, question latter in the himself the defendant made a statement implicating course murder. first crime, degree him of and the statement was used convicting of the Michigan appel the view The United States Court rejected Supreme to remain silent his late court that once a has asserted right suspect se inadmissible. obtained is per confession renewed by interrogation police test, admissibility that the Instead the court a factual holding adopted cut off Miranda right such a confession on whether the turns suspect’s (Id. at circumstances. was in the totality questioning respected had 321].) showing L.Ed.2d at The court then found such p. p. [46 it, been made in the identified several “circumstances” case before “the resumed interrogation, here ceased support: immediately police of time and the after the of a only questioning passage significant period of a the second interrogation fresh set of and restricted provision warnings, (Id. crime to a that had not been a of the earlier interrogation.” subject L.Ed.2d at 322].) p. p. state,
In to be this given Mosley determining weight of the United Pettingill court invoked the settled doctrine that “decisions States Court fundamental civil are au Supreme defining rights persuasive consideration, by to be afforded but are to be followed thority respectful California than courts when no less individual only they protection provide guaranteed by California law.” (People Longwill 943, 951, fn. 4 753].) After such considera tion, we concluded in that the test less Pettingill Mosley protection provided first, than California law in two the “circumstances” stressed respects: court de were incommunicado high “precisely techniques—lengthy tention and the that we found to switching interrogators charges—” California endanger under suspect’s self-incrimination privilege against law (21 on him to confess. Cal.3d at increasing pressures Second, and totality-of-the-circum more because the perhaps important, stances test of in its formulation Mosley unavoidably unpre vague *14 results, dictable in its would lead we reasoned that to it in California adopt to in criminal delays trials while the of each “circumstance” sufficiency facts; turn, was and litigated, to inconsistent on similar these rulings effects would conduct make it more difficult for the to conform their police standards, to constitutional instances of indi and would cause necessarily (Id. 249-251.) vidual we concluded that injustice. at For these reasons pp. rule, test, “the Fioritto will remain the rule of de Mosley rather than the cision in all (Id. state in California.” at prosecutions p. bar,
In the for one case at defendant was arrested Pettingill, as (Solano); offense one county of stolen committed in (possession property) when a and officer from that him Miranda police gave warnings county offense, him about
sought question that he asserted his to remain right silent; after defendant had been held in continuous some 10 custody hours v. Mack (compare People [165 454]), (Contra Costa) officer from a county different police him sought about a committed in question different offense the (robbery) latter he county; defendant Miranda and this time gave warnings again, facts, defendant confessed. On held identical such a essentially Pettingill confession inadmissible. General Attorney seizes on one factual difference between this case Pettingill, Here draw a distinction on that Ser attempts ground.
geant testified that at the Hisey time he renewed the he did not interrogation know that on the Officer Tucker had read defendant his previous evening Miranda rights defendant had declined to answer On the any questions. face however, of our we fact and opinion Pettingill, very considered this plainly indicated that it would difference. amount to a distinction without a Thus, in some of the left the ad hoc reviewing by questions open approach we Mosley, that out “In record was ‘not clear’ as to pointed Mosley the what if anything second detective knew about the first interrogation ([423 at L.Ed.2d will be p. 322]); at the confession ad p. U.S.] when, here, missible as he is informed that the fully previously suspect questioned refused to waive to remain silent? Should explicitly his right it be admissible (21 even if the second officer fact?” that ignorant Cal.3d at 249-250.) In a footnote at we pp. answered latter point “ as follows: ‘To question say that of the second officer concern ignorance ing earlier interview shields the second not only interview from attack would the door to open evasions but it the reason for by police ignores rule, the Fioritto which is to from down a prevent police wearing pris oner’s resistance he until makes the statement repeated pressuring finally desired in order to That exists whether or not the suc get peace. pressure cessive would-be are or are in concert for that interrogators acting purpose, acting is the effect on the Fioritto seeks to independently—it prisoner (Id. avoid.’” fn. from v. Milton quoting People 803].) 415-416 Cal.App.2d While the strictly from our was not foregoing passage Pettingill opinion decision, deliberate; to the necessary it was both relevant and and its rejec- tion of the distinction was based on the same hypothesized ground—i.e., avoid earlier of the Miranda-Fioritto rule—as our frustrating purposes (21 242-245). the distinctions Cal.3d at rejection urged pp. as will the view is consis- Finally, appear, expressed quoted passage *15 tent with the decided both before cases and after Pettingill. Fioritto,
Thus in the first decision to v. Ireland 70 follow People 1323], Cal.2d 522 40 the de- 450 P.2d A.L.R.3d Cal.Rptr. [75 He Miranda warnings. the crime scene and given fendant was arrested at officers nei- arresting but the for my attorney,” “Call my replied, parents The it to their superiors. communicated with the nor ther complied request station, arrived where a detective to the defendant was transported police been informed had not The detective an hour later to him. half interrogate the readvise He the defendant’s for his attorney. proceeded request talk, obtained a would if he defendant of his Miranda asked rights, the Miranda-Fioritto under We held the confession inadmissible confession. must cease rule, that the that police questioning reiterating requirement de- self-incrimination his against when defendant asserts privilege interrogation. of custodial coercive nature inherently signed dispel that the arresting circumstance 537.) We as irrelevant the (Id. rejected for his defendant’s request the detective of the officers had not informed de- communication within police “The fact that a failure of attorney: Our our decision. have been at fault can have no effect upon partment might reason, that, custodial interrogative concern lies with the fact for whatever (Italics in original; did not cease assertion privilege.” processes upon ibid., fn. Randall People
We the latter in the next case in point, quoted reasoning 114], (1970) Cal.3d footnote 10 confession may who obtained the that the fact that the officer concluding not “will not have known of the defendant’s assertion of privilege prior would open excuse his ... To hold otherwise subsequent questioning. (Ibid.)
door to evasions police.” More v. Borba recently, Cal.App.3d at 11:30 305], the was for drunk driving p.m., defendant arrested him to a linking and a search disclosed in his booking property possession the defendant Mi- earlier that The officer gave burglary evening. arresting incident, randa him about the drunk driving warnings sought question a detective who was but he declined to talk. At 8:30 the next morning readvised him unaware that the invoked his Miranda rights defendant had waiver, about the burglary. him those obtained rights, questioned stolen, and statement was his The defendant admitted he knew the property was him of such convicting receiving used property. failure that counsel’s Court of holding reversed judgment, Appeal Pettingill grounds deprived to the admission of statement object meritorious
defendant of effective withdrew potentially representation between distinction meaningful defense. The court observed that the only obtained the who it was that the detective and the case before Pettingill to talk to the earlier refusal of the defendant’s confession ignorant footnote of the above-quoted officer. For the reasons stated in arresting *16 268 however, the court
Pettingill, held this to be a distinction without a differ- (Id. 995-996.)9 ence. at pp.
The sole deviation from line of v. Lopez (1979) this authority 541], 90 711 in Cal.App.3d a case which the Court of Cal.Rptr. Ap- held a confession on peal admissible facts identical those at essentially bar. Here the trial court based on and the ruling Attorney its General Lopez, naturally view, however, relies on heavily the decision. We are of the that Lopez both the misconstrues letter of and its anteced- Pettingill spirit Lopez ents. the in narrow and begins by reading Pettingill opinion grudging (id. fashion 715-719), at five then to list “factors” said to pp. proceeds justify (1) the confession in the admitting question: re- interrogation sulted the confession was conducted a officer in a by different different and on a different there place (2) was no of subter- topic; showing “police (3) first; the fuge”; second was not “reinstitution” of the interrogation (4) correct; the second (5) Miranda was the warning complete second officer did not know that the defendant had exercised his previously (Id. Miranda at 719-720.) rights. pp.
The of the Lopez of the confession deciding admissibility technique “factors,” however, such is in a return to the weighing “totality effect the circumstances” test of we to follow test declined Mosley—a expressly in Pettingill; and we two “Pettingill as reaffirmed after re- years Lopez, ” mains the law of California (People and we adhere to it. Davis faithfully 186].) Cal.3d
Moreover, each of the been rejected factors stressed in has as ir- Lopez relevant to the rule in the we Miranda-Fioritto cases have purposes reviewed above. In distinction between Pettin- only arguable particular, i.e., is the last factor that the gill Lopez listed second officer Lopez, did not know the defendant Miranda rights. had exercised his previously Yet the issue is not state of mind the officer but of the prisoner. Miranda-Fioritto rule is not but insure that designed punish police statement a his free will makes while confined is prisoner product rather than the inherent (Pettingill, coerciveness custodial interrogation. Cal.3d.) at 237 of 21 Successive even more p. bring pressure interrogations bear, and from effect is their cumulative not prisoner’s viewpoint lessened officer be unaware because the second slightest merely may he to talk. observed Borba already correctly refused As court (110 996), at is the with its inherent custody “It fact of Cal.App.3d p. facts, re Roland 9On similar the same result reached without discussion in In K. too, 96], There, obtained Cal.App.3d the officer who 295 [147 morning not defendant had confession after the testified he did know that the arrest (Id. invoked his privilege against night self-incrimination the before. *17 un- that to confess ambience inducing psychological compulsion coercive on, derlies, interrogation rule on continued police from Fioritto the court’s silent, not the knowledge remain who of a has asserted his right prisoner It is his privilege. that has invoked the police interrogator prisoner 90 Lopez, supra, v. that we decline to follow People for these reasons as it insofar Lopez we 711.” For the same reasons disapprove Cal.App.3d is inconsistent with the decision. present ob the confession we conclude that
Following Pettingill, accordingly, to remain silent Officer after exercised his right tained defendant Hisey self-incrimination taken in violation of defendant’s against was privilege I, 15, and hence was Constitution under article section the California introduced the confession was nevertheless inadmissible. Because tainted him, (Fioritto, supra, evidence the must be reversed. against into judgment Cal.2d, cited.) 720 of 68 and cases
III Proc., (Code 43), we the the court remand Civ. For guidance § the the court erred in ruling also address General’s contention that Attorney Officer Tucker was that the evidence in the lot by seized physical parking General obtained and therefore inadmissible. Attorney illegally Code, (Pen. entitled this question defending appeal ruling 1252; fn. v. Braeseke People § so. P.2d the on which he does 384]); is with difficulty theory dis- hearing expressly At on the motion to prosecutor suppress, had the right claimed reliance on the that Officer Tucker any theory it because remove wallet from defendant’s during patdown pocket Leib (See have been or contained might weapon. 1105], cited.) cases
Cal.3d 875-876 to an arrest Nor did the contend the search incidental prosecutor on a Rather, the intrusion defendant for offense. he sought justify any i.e., booking a so-called “accelerated different that it was wholly theory, General, turn, attempt- search.” The disavows the prosecutor’s Attorney on an ‘acceler- reliance that “We disclaim flatly ed states justification several fur- Instead he ated of the instant case.” booking’ theory proposes all The theories still the intrusion. ther—and different—theories to justify a mis- an of defendant for that the was incidental to arrest search postulate demeanor, variance which misdemeanor but are at considerable over they brief filed in in his defendant committed. Thus allegedly respondent’s was en- Officer Tucker Court of General Appeal Attorney argued him vi- because he observed titled to demand identification from defendant or private prop- Penal Code 374b.5 litter on (discarding public olate that the officer could erty), infer the wallet in defendant’s contained pocket identification, such that defendant’s earlier denial that he had identifi- cation thus constituted the additional misdemeanor of an officer obstructing Code, (Pen. 148), his and that the discharge duty search was § incidental to an arrest for the latter offense.
In curiae, however, his filed in this court to a brief of response amicus General has shifted Attorney again his and now an ground, propounds even more elaborate thesis. He first that Officer Tucker in fact ar argues rested defendant for a violation Penal Code section 375 or (throwing an or releasing injurious nauseous substance a theater or other place business or and that the search was incidental to that public assembly) ar rest. that in Apparently a case of urination it is recognizing unlikely public that an officer would to seize either the used to attempt instrumentality commit the crime or the fruits thereof v. Court (People Superior (Kiefer) (1970) 807, Cal.3d 478 P.2d 45 A.L.R.3d [91 559]), the General that Attorney any documents on the urges identifying of the arrestee can be person nevertheless seized and searched as “other evidence . . . which will aid in the or conviction of the criminal.” apprehension (Ib alternative, id.) In the General contends that Officer Attorney Tucker had cause to arrest defendant for the misdemean- probable supposed or of to reveal “wilfully failing documents of identification on his person officer,” when under requested circumstances an appropriate peace offense that the General to find in the Attorney statute purports general (Pen. Code, (e).) subd. The prohibiting loitering. argument presum § is that in ably the case of that “offense” such documents of identification are themselves either instrumentalities or fruits of the crime and hence can be seized and searched an as an incident to arrest therefor.10
We need not reach the merits of of the numerous any imaginative theories offered to us in the Attorney General’s protean presentation: undeniable fact was raised at the remains that none of these theories Indeed, from the to the extent it can be determined suppression hearing. it that the offense for which Officer Tucker fact de testimony appears tained defendant was different from now relied on yet again General: the officer that he “had in mind” the statute Attorney agreed pro on or which waste matter hibiting dumping public private property, General, before the United Attorney 10Infairness to the we brief was written note his (Lawson v. Supreme loitering States court as unconstitutional. struck down cited statute — — 1855].) Kolender U.S. 103 S.Ct. L.Ed.2d that none it is settled circumstances In these Code section 374b.11 is Penal the first time can be raised theories General’s new the Attorney 626, 640-641 Cal.3d Court (Lorenzana Superior appeal. cited.) cases 33], to the an Lorenzana exception us to make General Attorney urges he First stresses convincing. but neither in this case on two grounds,
rule But this is conflict. not in hearing at that the evidence the suppression the inferences turns on usually the issue of most hearings: true suppression well Moreover, might the evidence evidence. to be drawn from undisputed the addi- the hearing had raised been in conflict if the have prosecution say we cannot General now proposes: that the Attorney tional theories meet testimony other not have elicited event defendant would in such *19 to rule is designed the all theories. Finally, some or of those Lorenzana fact but also issues of level not of issues only resolution at the trial promote of law.12 “We disclaim any brief that the General states his
Secondly, Attorney evi- the tangible in the the of admissibility suppressed interest issue of court’s dence”; rather, ruling the he assertedly challenges superior defendant’s to admit in order to defend its decision only subsequent issue confession, under- This disingenuous “but for a different reason.” slightly never- General is statement, however, the fact that the Attorney cannot hide him that to and ruling, permit theless the vigorously attacking suppression for the consumption thereafter invented any to do so reason “on theories (1972) (Simon) Court of v. Superior courts” reviewing (People frustrate the 1205]) purposes P.2d would the exclu- 640) and (Lorenzana, at of both Penal Code section 1538.5 p. of a fair the defendant 198), rule at (Simon, deprive itself sionary 198- (id. forum in the pp. to his case appropriate fully litigate opportunity 199). construed, whether, correctly when day intriguing question 11We leave for another the 374b, 374b.5, 375) (i.e., or case
any general invoked in this §§ of the Penal Code sections Code, (Compare Pen. by Tucker. act observed Officer punish specific is intended to the prohibited act is also that the The officer further testified [spitting public places].) 372a § by Vallejo municipal ordinance. hearing parties “All faced (ibid.), suppression at the explained 12As we in Lorenzana of the question relative to the testimony arguments obligation presenting all their support their had theories If the other admissibility of the evidence at that time. conduct, proper place illegal police product of contention that the evidence was not the hearing. ... To allow suppression trial level at the argue those theories was on the ad or contest the legal support of new theories reopening question of the on the basis 1538.5 and Code section Penal purpose evidence defeat missibility of the would the issue of question when arguments relative to the presenting from all discourage parties added.) (Italics admissibility initially raised.” of evidence is evi It follows that the order of the trial court physical suppressing unchal dence lot stands in effect seized Officer Tucker parking on retrial. and that evidence will therefore be inadmissible lenged, himself, The victim robbery eyewitness testimony course, will be admissible in any such proceeding.13 is reversed. judgment * Gilbert, J., Bird, J., Broussard, J., Grodin, J., J., C. Reynoso, concurred.
RICHARDSON, dissent. I respectfully J. in June the electorate
Despite
passage
I, 28,
(art.
subd.
amendment to the California Constitution
consequent
§
(d))
be excluded in
criminal
that “relevant evidence shall not
declaring
to reverse crim-
more than a
later the
continues
majority
proceeding,”
year
exclusion-
inal
in reliance
the now
state
solely
abrogated
convictions
upon
rule. I
continued refusal
give
with
ary
strongly disagree
majority’s
8.
immediate effect to the
clear intent
adopting Proposition
people’s
*20
case,
confes-
In the
one
that defendant’s
no
present
questions
apparently
v.
(see Michigan
under
sion was admissible
constitutional principles
federal
313,
The
321]).
majority
S.Ct.
1. Intent: Full Final. to All Cases Not Yet Retroactivity The ballot a “vital” need to stressed arguments Proposition supporting reverse the trend which “For too courts’ decisions appellate prior . . . have of criminals than demonstrated more concern with the long rights (Ballot with the The rights supra, innocent victims.” Pamp., crime,” “decisive action violent supporters Proposition urged against convictions, that its would criminal promised result “more adoption more criminals sentenced to state and more for the being prison, protection (Ibid.) law-abiding citizenry.”
There seems no reasonable doubt whatever that who drafted those persons and voted for (and 8 intended that its provisions especially of a state abrogation rule) would take effect as soon as consti- exclusionary I, tutionally of new possible. article subdivision wording conclusion, (d), of the state Constitution reinforces that for it provides (with not exclud- here) “relevant evidence shall not be exceptions pertinent ed in added.) criminal constitutional (Italics This proceeding.” provi- to, not sion is limited nor it affect criminal does those only, proceedings crimes con- involving committed on or after June The restriction 1982. either in the jured by majority history basis imaginary, lacking any *21 of 8 or in law. Proposition general 8, the
Focusing isolated in the to upon language Proposition preamble of 8 to be the majority suggests “by declaring purpose Proposition deterrence of crime the voters must have intended the measure only apply deterred, i.e., to offenses that could be that had not been committed already 258-259.) (Ante, The the time 8 was by Proposition adopted.” pp. argument is The immediate criminal of specious. “any application proceeding” of its of the state exclusion- provisions Proposition including abrogation rule, would result in criminal convictions unobtainable ary by previously rule, reason of the and would a maximum deterrent pur- serve obviously rule, The state created and not consti- pose. exclusionary being judicially founded, reach to re- most is not tutionally certainly beyond people’s Here, Constitution. move it. have embedded this removal in their they
In the case the present majority holds defendant’s conviction must be reversed because his confession was elicited in violation of state constitu- tional should the choose to defendant principles. Accordingly, retry People crime, without the benefit of his of the a conviction be much confession may however, more difficult to obtain. If 8 is the conviction Proposition applied, would be affirmed. undoubtedly Can there be reasonable doubt regard- intent of both the ing probable authors and voters as to retroactive of 8 in such a it that either au- application Proposition situation? Is likely thors or voters would have favored the of a confessed robber mere- acquittal because of a technical ly violation of the rules which prophylactic previously we had created to judicially such from “protect” persons police interroga- tion and which the themselves had so people recently abrogated? that,
It also should be observed because of the Cali- holding, majority’s fornia courts henceforth must two different of rules evidentiary sets apply cases, in criminal the date of commission depending solely upon Hereafter, offense or offenses. search conducted after the single adoption 8 which evidence crimes could be Proposition may disclose of multiple crimes, ruled valid as to certain Such and invalid as to others. needless anomalies make no sense or otherwise lessen constitutionally pub- lic’s for our respect decisions.
2. Ex Post Facto Are Here. Principles Inapplicable declines a retroactive majority assertedly application 8 in order to “avoid of the measure constitutionality doubts” regarding (Ante, With as to crimes committed its applied prior adoption. due frivolous. I that the respect my colleagues, suggest clearly point cases, own, California held that ex facto our have including uniformly post are not violated the retroactive statute which principles application alters rules the admission of merely evidentiary previously permitting evidence, inadmissible or and which does not lessen the amount incompetent or measure v. Brad- (People to convict. proof necessary previously 333, 343-344, 46]; (1969) 70 Cal.2d fn. 5 [74 ford 777]; v. People Ward P.2d Sobiek 519].) A a consti- fortiori, Cal.App.3d tutional does not invoke ex facto change evidentiary principles. rules post *22 Moreover, that, it should be borne in mind the majority’s sweeping despite and dicta the retroactive effect of pronouncements regarding Proposition whole, as a we deal here with the of the “truth-in-evi- only application measure, I, article section sub- dence” embodied in new portion is to (d), of our state Constitution. The sole effect of this provision division Under of relevant evidence in criminal proceedings. admission permit authorities, enactment be foregoing may such constitutional properly retroactive effect in not final. given yet cases
Thus, in Ward we whether an amendment to the death considered penalty laws which in the introduction at the of evidence permitted penalty phase Code, (former 190.1) or of the offense Pen. could aggravation mitigation § be to a defendant whose occurred to its As applied offense prior adoption. case, in the defendant in Ward that evidence his present argued jail court juvenile records would have been inadmissible to the amendment prior and, that the accordingly, altered situation his change procedure substantial detriment and constituted the enactment of an ex facto law. post (50 708.) Cal.2d at In his we observed that p. flatly rejecting argument, of a similar not “Changes nature had heretofore been as consti approved state,” ex tuting facto laws in California and post this and discussed several federal cases on the v. Missouri subject, including Thompson U.S. 380 (Id., 708-709.) L.Ed. 18 S.Ct. Thompson pp. 922]. had held that “we cannot which to hold a statute perceive any ground upon to be ex post which does admit evidence of a more than nothing par facto ticular kind in a criminal . . . which under the case was not admissible rules of evidence ... at the committed.” (P. time the offense was 386 [43 207].) L.Ed.2d at p.
Similarly, we People Bradford, relied supra, again upon Thompson in the rules of evidence which concluding “changes broaden the class of are not deemed ex persons competent testify post facto in 343-344, fn. In the defendant’s operation.” Bradford, (Pp. was spouse over permitted testify his reason of objection by adoption of Evidence Code section not in effect when which was provision offense was committed. We defendant’s claim that the again rejected new statute could not be under ex facto retroactively applied post prin- ciples.
In of our own light in Ward and and the court’s holdings Bradford, high it ruling Thompson, cannot be said that the is so with fairly issue fraught (ante, 262) “uncertainties” toas require application prospective view, 8. In my the lesson line of cases taught by foregoing clear: crystal the new law cannot a criminal conviction Although permit to be obtained with less evidence than when the act com was was required mitted, restrictions, the new law ease there properly may prior evidentiary the admission by permitting of more relevant evidence than previously allowed. I, manifest intent in new article sub- people’s adopting (d),
division was to as consti- erase California’s rule as soon exclusionary *23 There no constitutional whatever to a tutionally permissible. impediment criminal cases retroactive of the new with respect application provision ill not final. we created the state rule it behooves yet Although exclusionary to frustrate or us its removal themselves. delay people
I would affirm the judgment.