*1 No. 24,1979.] Oct. 20519. [Crim. G.,

In re JOHNNY a Person Under Juvenile Court Law. Coming PEOPLE, THE Plaintiff and Respondent, G.,

JOHNNY Defendant and Appellant.

Counsel Fischer, Kenneth I. Defender, Littlefield, Dennis A. F. Public

Wilbur Menaster, Avram Albert J. Alan H. Yahr and Stanley Clayman, Goldman, Defenders, Public for Defendant and Appellant. Deputy Chief Assistant Defender, S. Denvir, Public State Quin Gary Goodpaster, Pinkerton, Lee Defender, and Michael Laurance S. Smith State Public Curiae of Defendant Defenders, Amici on behalf Public State Deputy and Appellant. Winkler, Assistant General, Chief Jack R. J.

Evelle Younger, Attorney General, Lawrence Moore, Assistant General, S. Clark Attorney Attorney Ash, Boren and Michael II, Attorneys W. P Scherb Deputy Roger General, for Plaintiff Respondent.

Opinion minor, an order MANUEL, Johnny G., from a adjudging appeals J. Code, 602) court & Inst. (Welf. § him a ward upon juvenile Code, with a (Pen. that he committed assault deadly weapon finding 245, subd. (a)). § victim, Herrera,

The assault Carlos testified an through interpreter he and lived three houses from one another. On the Johnny evening $1. Herrera He do for returned question agreed Johnny’s laundry home. As he he noticed crossed began laundry walking driveway entrance; him, two at its moments later he heard behind persons footsteps turned, and was assaulted and beaten two men. Before losing consciousness he heard one of the assailants about say something missing clothing. not consciousness until after

Herrera testified that he did being regain to a officer He did not remember taken to the police speaking hospital. of his On as one assailants. the scene of the assault or identifying Johnny him. When he know who attacked cross-examination he said that did not have made at the identification he asked if he knew whether any might that if are accurate, can do was he answered: “How time somebody you out, how can I I When are knocked unconscious? ... don’t know. say you him or him?” as a whole tended On the crucial issue of Herrera’s testimony identity, with, knew To Herrera exonerate Johnny Johnny. begin although assault, he testified he did had talked with him before the shortly Second, the voice although missing clothing. recognize spoke old, Latins, 18 to 20 Herrera was able to describe his assailants as years that he did not and of different he testified substantially heights, Third, stature with when asked to their either them. recognize compare herein, was taller than that of the minor Herrera testified that one Johnny times that Herrera several and the other was shorter. Finally, repeated from the circumstances it to him the attackers were the two men appeared he after he left house. passed Johnny’s to establish as one prosecutor sought Johnny’s identity

assailants’ an made by introducing extrajudicial assertedly Herrera to Los Police Officer after the assault. Officer Angeles Cooney found Herrera near the with his face covered with street Cooney lying coherent, blood. said that Herrera was conscious and “a Cooney though little shook Over testified that Herrera told him up.” objection Cooney that a had him on the street and asked him to move man approached help inside, however, some out of the latter’s house. After went things they man accused Herrera of to return some of his clothes and beat him failing with a board until he crawled out onto the said he sidewalk. Cooney *4 at that time to who was and asked pointed Johnny, standing nearby, him, Herrera in if that was the man who had attacked English Herrera “Yes.” replied did not or defense.

Johnny testify present any Following argument, denied motion to strike judge Johnny’s Cooney’s testimony regarding Herrera’s statement identification. The found that extrajudicial judge the statement was inconsistent with Herrera’s and that Herrer- testimony a’s total. The court admitted the lapse memory partial, as substantive evidence under Evidence Code 1235.1 contends the admission of the

Johnny testimony regarding Herrera’s identification as substantive evidence violated the extrajudicial Const., I, confrontation clause of the California Constitution art. (Cal. He also 15). contends that there was insufficient § evidence support that he committed the assault. finding

We consider the latter contention first since a determination that the evidence is insufficient to would bar retrial under support finding Const., the federal double clause S. 5th (U. Amend.) jeopardy recently the United States Court. v. Pierce interpreted by (See People 199, 24 Cal.3d 209-210 (1979) 595 Burks v. P.2d 91]; Cal.Rptr. [155 United States U.S. 1 (1978) L.Ed.2d 98 S.Ct. Greene v. 2141]; [57 437 U.S. 19 L.Ed.2d (1978) 98 S.Ct. As will 2151].) Massey appear, [57 we conclude that the contention has merit and find it accordingly not made 1Section 1235 “Evidence of a statement made a witness is provides: at the inadmissible rule if the is inconsistent with his testimony hearsay and is offered in with Section 770.” hearing compliance or Section 770 that the witness be an to explain deny requires given opportunity statement at in the trial. some point the minor’s under to reach the whether rights question unnecessary Constitution were violated. clause of the California confrontation “An the rule in this state It has been extrajudicial long at the trial is an identification be confirmed identification that cannot of other evidence in the absence a conviction insufficient sustain v. Gould (1960) with the crime.” to connect the defendant (People tending v. 273, 354 see also 865]; P.2d 54 Cal.2d People Cal.Rptr. 195, 591 P.2d 516, 535-537 Belton (1979) Cal.Rptr. 485] Jefferson, re M. In J.]; Cal.App.3d opn. by Eugene [conc. Jefferson, (June Cal. Evidence Benchbook 851]; minor 10.1, evidence Since 131-134.) connecting § only pp. supp.) identification, the order assault was such an with the appealed charged cannot stand. from defendants from a Gould, the two the victim identified crime. Defendant after the her shown shortly photographs

group him with the confronted when the admitted Gould complicity police Marudas denied of him. Defendant identification victim’s photographic else when involvement, named someone and Gould or knowledge any *5 her unable to trial the victim was At asked about his repeat accomplice. the earlier identifi- officer testified about identifications. A earlier police them at the time. cations, was sure of that the victim stating identifica- We held that the evidence extrajudicial photographic of even was admitted as evidence tions identity properly independent to the identification trial. We the witness was unable repeat though identification evidence itself is held, however, that such further by An identification that a conviction. insufficient to sustain extrajudicial view, trial, in was the witness at our cannot be confirmed lacking by the sole identification to form sufficient reliability substantiality Gould’s was based. We affirmed on which the conviction evidence of his own admission of evidence conviction since was by supported evidence of the victim’s as well as the extrajudicial by complicity however, conviction, because the We reversed Marudas’ identification. was to connect him with the crime the evidence reasonably only tending confirmed at trial.2 which could not be identification extrajudicial his to the regarding that Marudas’ statement police 2We the assertion rejected know, I will time I to court get ‘I don’t but by whereabouts on the of the crime—“ day to a reasonable to be’ rise ”—gave or five to me where I want have four people place which have or consciousness of guilt might supported inference of concealment attempted in other from those made We found this statement distinguishable the conviction. clearly was Gould decided to the Evidence Code. adoption drafters of the Evidence Code were of aware Gould discussed the dual of nature its in their comments: “Sections holding to the rule similar to that which was codify exceptions hearsay recognized v. Gould .... Sections 1235 and 1238 deal with the only evidence; do not what determine constitutes admissibility they Hence, evidence sufficient to or sustain verdict these sections finding. have no on effect Gould an case that evidence of holding identification that an cannot be confirmed identification extrajudicial at the trial is insufficient to sustain a criminal in the conviction absence other evidence to connect the defendant with crime.” (Cal. tending Code, Law Revision Com. com. Evid. West’s Unann. Evid. § Code It is clear (1968 ed.) 284-285.) thus that the drafters pp. Evidence Code did not intend to rule Gould change regarding of evidence to sustain a conviction. sufficiency The evidence in this case is insufficient sustain order under Gould. The evidence with offense only Johnny connecting made Herrera to Officer extrajudicial assertedly Cooney after unconscious, the assault. At trial he Herrera said did not statement, remember this and described his assailants as making Neither Herrera’s with nor resembling Johnny. acquaintance Johnny at the scene reasonable for the Johnny’s presence any provides support No on consciousness of or adjudication. guilt part Johnny intimidation Herrera him could be inferred from these reasonably factors. In the absence of other evidence connect *6 tending Johnny assault, the evidence of Herrera’s inconsistent identification prior was insufficient to sustain the order. Johnny adjudication

Since the evidence was as a of law to insufficient matter support the the minor committed the offense further finding charged, are Const., barred the 5th double clause (U.S. proceedings jeopardy States, under the rule Amend.) of Burks v. United U.S. supra, fact cases where statements of consciousness of could be inferred from reasonably guilt incredible, false, that were later or the defendant’s subsequent contradicted proved Gould, 630-631.) v. testimony. (People supra, at pp. the 3The remark about clothes that Herrera testified heard attack during missing having to well have come other who had used Herrera’s services could from any equally person do his laundry. in California U.S. Greene v. (People Massey, applicable supra, Pierce, 209-210).4 Cal.3d pp. supra, is

The order from reversed directions dismiss appealed proceeding. J., J, Clark, J, Richardson, J,

Bird, Tobriner, concurred. C. of this that on facts MOSK, J., I agree particular Concurring. was the minor case—i.e., the inconsistent statement identifying prior order must be him with the assault—the sole evidence connecting Cal.2d v. Gould under the rule of reversed a however, such 354 P.2d many prosecutions, 865]. the sole case but not is an statement part People’s important crime, that the rule with the so Gould the defendant evidence connecting cases, of the bench and bar those is not For the guidance triggered. made that the admission of also the contention here should address violates of a witness as substantive evidence inconsistent statement prior I, of the California Constitution (art. 15). § the confrontation clause observe, this As the on The record contention. majority fully supports Herrera, the sole crucial issue of identity testimony eyewitness, minor herein. On this state of the tended exonerate Johnny, his burden evidence the had sustained clearly prosecutor proving Code, doubt & Inst. (Welf. 701) reasonable § beyond Johnny therefore introduce charge. prosecutor sought guilty crime, Herrera’s statement accusing assertedly extrajudicial Johnny When on made to Officer objected Cooney. Johnny ground the evidence was offered as a told court hearsay, prosecutor into statement was then admitted inconsistent statement. Herrera’s evidence. no stressed the

In his longer opening argument prosecutor state and his between Herrera’s inconsistencies extrajudicial 1 instead, of that ment; relied on the substance he heavily *7 v. Civil Islands Virgin in other see Government rulings e.g., 4For similar jurisdictions, 255, v. Pollard State (3d 1979) (uncorroborated testimony); accomplice 591 F.2d 260 Cir. (Tex.Crim. 1978) 753,756 576 Brown v. State 656,658] (same); (1978) Ark. 264 S.W.2d [574 36, confession). (uncorroborated 42-43 S.W.2d asserted, as the attack he told it to for that “The 1The prosecutor example, story told on the stand.” differs that Mr. Herrera Cooney Officer the only slightly story 550 fact was in Herrera’s assailant.2

proof Johnny Johnny thereupon his renewed but the invoked Evidence hearsay objection, prosecutor 1235 Code section as for the both to authority using impeach the witness and to the establish truth of matter asserted. The court use, the latter and his permitted closing argument prosecutor again contents statement as minor’s emphasized proof guilt.3 The court forthwith found the to be the minor true charge against beyond doubt, a reasonable sustained him a ward. petition, adjudged Until 1967 it was settled well in this state that a inconsistent statement of witness was and hence inadmissible substantive hearsay therein, evidence of the facts related and could be considered for the only limited the witness’ This “orthodox purpose impeaching credibility. rule” in criminal v. Orcalles applied equally (1948) prosecutions (People 562, 572-573 P.2d v. Ballard 218 26]; (1963) People [197 295, 309 233]; v. 35 (1939) Cal.App.2d Cal.Rptr. People [32 Zoffel 215, 223 P.2d v. 160]; (1927) Westcott Cal.App.2d [95 Cal.App. 298, 312-313 P. and in civil 901]) actions v. (Albert & Co. [260 McKay 451, 174 Cal. P. (1917) Fibreboard 666]; Products Paper [163 Corp. Union East 675, Machinists (1964) Bay Cal.App.2d 64]; v.Co. National Auto. & Cas. Ins. Co. Cal.Rptr. Apparel Supply Mfrs. (1961) 467-468 v. Huston Cal.App.2d 380]; Kroplin 343-344 P.2d 575]). Cal.App.2d however, Effective undertook to January Legislature that rule 1235 of section the Evidence Code. abrogate by adopting “Evidence of a statement made a witness is made provides: inadmissible rule if the statement is inconsistent with his hearsay 2Thus the that Officer Cooney to the minor and asked Mr. prosecutor argued “pointed said, ‘Yes, Herrera if this is the minor or did who it. Mr. Herrera was he.’ He him it asked said sure. And said again he he he was sure. yes, “Now, I would remind the this minor is not a Herrera Court Mr. knew him. stranger. He had delivered the to him. He to tell just laundry was conscious the whole enough story and he was asked twice and minor him was feet from standing just couple away he when him out.” pointed 3After to draw adverse inferences from Herrera’s direct seeking testimony, concluded: in itself add to enough “that when prosecutor proof you made to of all of all attack identification Officer of the details this Cooney, repeating to Officer Officer testified he was conscious coherent. Officer Cooney. Cooney asked if it was the who he said he was sure him twice minor did this and Cooney carefully remember, Honor, And that Mr. Herrera knew this minor before. He wasn’t was. your mind, he there was confusion in his would out a to him. If pointing stranger certainly any out he knew He said he have been careful about before. picking somebody him. who attacked person Honor, I is well “Your believe this case proved.” *8 770.”4 with Section offered in at the and is compliance testimony hearing writers, a number of rule” “unorthodox legal espoused by Adopting inconsistent the substantive use section 1235 thus allows any prior trial or civil and of a in criminal statement witness—whether regardless it was made.5 the circumstances in which 599, 441 P.2d 68 Cal.2d 646 In v. Johnson (1968) 1235 in a of section 111], we first addressed the question validity with incest committed criminal There the defendant was charged setting. At trial the denied the with his alleged 15-year-old daughter daughter. occurred, wife likewise denied had and the defendant’s incest having and sexual between the defendant their observed activities daughter. any and over the defendant’s objection, jury presence to the was allowed to read certain contrary testimony prosecutor prior in that wife and before the the defendant’s daughter grand jury: given by had relations that the defendant sexual testimony daughter charged both and his wife asserted she had her on dates in question, her in such Each witness stated that observed and conduct. participated true, and and was not had been motivated by spite grand jury addition, from the district office. In and by pressure attorney’s jealousy was allowed to introduce into evidence certain extrajudi prosecutor cial to their statements the defendant’s wife and similar daughter made to four witnesses. but thereto different grand jury testimony prior The ruled trial court that section and applicable, permitted consider the to several inconsistent statements of the defend jury prior ant’s wife of the matters asserted therein. daughter proof was found defendant as charged. guilty

On contended the use of the defendant that by authorizing appeal, of his inconsistent statements wife and as substantive daughter prior him, evidence “section him of his against deprived right the Sixth to States confrontation Amendment the United guaranteed by omitted; 68 We Constitution.” Cal.2d with the 651.) (Fn. agreed contention, and so held in a unanimous decision. a number Reviewing decisions United States Court on related topics, posited an to cross-examine his accusers is constitutionally adequate opportunity essential of a defendant’s The defend- confrontation. component right Johnson, course, ant had had no whatever opportunity note, an that the witness be afforded 770 merely 4As majority requires trial. or his during opportunity explain deny “orthodox” overview of between the controversy 5For a historical analytical rules, Read, The New Dilemma “unorthodox” see Confrontation-Hearsay So.Cal.L.Rev. 1. *9 cross-examine the and the statements grand jury testimony extrajudicial him at the time were, his confrontation with the against sole they given; witnesses was at the trial itself. the matter from a we were of the

Analyzing practical viewpoint, that cross-examination is not effective unless it can be opinion fully undertaken after the declarant’s direct and in the immediately testimony of the same trier of fact. We with presence 656) (at quoted approval p. case of State v. (1939) Minn. 358 reasoning leading Saporen N.W. “The chief merit cross examination is not that at 901]: some time to dissect adverse gives party opponent right future Its is in virtue its immediate testimony. principal application testing Its strokes fall while the iron is hot. False to process. testimony apt harden and become to the blows of truth in as the unyielding proportion witness has for reconsideration and influence opportunity sugges- others, be, tions of is, whose interest and often to maintain falsehood may rather than truth.” (Italics And added.) we concluded “This (at 655), truth is verified trial not one of practical whom would daily lawyers, to both a later date and a different forum his to willingly postpone right cross-examine a witness his client.” against

For these reasons we held in Johnson that the defendant’s belated at cross-examine the trial on the witnesses’ state- opportunity i.e., ments was not did not the demands constitutionally adequate, satisfy of the confrontation clause of the Sixth We Amendment. reversed the conviction, and the United States Court denied judgment certiorari. U.S. 1051 (393 L.Ed.2d 89 S.Ct. 679].) In the our reiterated Johnson following year holding Green 70 Cal.2d 654 451 P.2d (hereinafter 422] I). Green There defendant was furnishing marijuana charged Porter, Melvin a minor. At trial Porter testified that the defendant “stuff,” him and asked him to sell some unidentified and he telephoned came into of 29 subsequently possession baggies marijuana; witness could not remember how he had obtained marijuana, however, because he was LSD at the time. The taking prosecutor then allowed to read into the record certain prior testimony given by Porter at the In that the witness stated that preliminary hearing. direction of the he had its defendant from picked marijuana up in the of the defendant’s house. Later in the hiding place yard parents’ trial was also allowed to introduce an prosecutor extrajudicial Porter, statement made officer in which the latter asserted police to him. Both had delivered the defendant marijuana personally *10 were statement and the the extrajudicial hearing testimony preliminary to of defendant’s as evidence the admitted substantive guilt pursuant 1235. unanimous decision. of the conviction We reversed again judgment to conceded that Porter’s General extrajudicial The Attorney Johnson, evidence under as officer was inadmissible substantive the police was admissible claimed that the but testimony preliminary hearing Porter at that the had an to cross-examine because defendant opportunity matter as a such We were of the that hearing. practical opinion First, reasons. insufficient for at least two was constitutionally opportunity the lack of of of the and limited because narrowly proceeding purpose a to and the defendant at time preliminary hearing investigate prepare, has neither the incentive nor the subject prosecution capability as he at trial: “The to as a cross-examination does witnesses searching in is convinced of the not be preliminary proceedings required judge doubt,’ but look for defendant’s a reasonable need only guilt ‘beyond in him. A a reasonable witness’ credibility, charge against fortiori adduced, need be or evidence not testimony, convincing though only doubt, which credible a cross-examination would reasonable and beyond would of a witness at trial not surely impeach finding probable preclude cause at the Even [citation], stage. given opportunity preliminary to fire neither nor defense is or able all its willing prosecution generally at this for considerations both of time early stage guns proceedings, omitted; 70 Cal.2d 663.) and (Fn. efficacy.” at p.

Second, is when the cross-examination at the hearing preliminary read from cold the trier of fact into the trial record simply transcript, manner of is denied counsel’s observing conducting any possibility “It demeanor in to his examination and witness’s replying questions: that the of cross-examination is not elicit is role elementary simply at contradiction of the witness’ a rare occurrence bald direct testimony, best, but to focus the trier of fact on the witness’ attention relates and demeanor as he his then defends his version against story immediate of the ‘the cross-examination By challenge opposing attorney. has the recollection and accused an only testing sifting opportunity, witness, him face the conscience of the but of to stand to face compelling him, order at his look they may judge by jury his the stand and the manner in which he demeanor gives testimony upon he It is because demeanor—atti whether is belief.’ worthy [Citation.] evidence and manner—is a factor in testimonial tude weighing significant that it fact, is axiomatic the trier of before whom the witness testified and trial, cross-examined at is the sole of a witness judge credibility and of the to be his at 662.) weight (Id., given testimony.” we reiterated that “the cross-

Summing up, ‘contemporaneous’ alone, examination which absence of a legal showing necessity, be considered effective can is cross- fully constitutionally adequate examination the same time the direct before the given, same trier as must on the witness ultimately pass credibility *11 short, of the In cross-examination be neither weight nunc testimony. may omitted; tunc nor be tunc nunc.” id. at (Fn. 661.) We pro may pro p. therefore held that the defendant’s to cross- premature opportunity examine at the on the witness’ statement was preliminary hearing prior his at confrontation trial adequate protect right “guaranteed by the Sixth Amendment to the Constitution.” at (Id., 665.) p. certiorari, General for and this time the Attorney again petitioned United States Court took the case. In v. Green Supreme (1970) California 489,

399 U.S. 149 L.Ed.2d 90 S.Ct. a divided court 1930], held that [26 witness’s, of a admission inconsistent statement as substantive prior evidence does not violate the confrontation clause of the federal Constitution the statement was made in at the provided testimony or, in circumstances which it was preliminary hearing regardless made, the declarant testifies at the trial: each instance in the provided to cross-examine was deemed for Sixth Amend- opportunity adequate ment needs. The court therefore vacated our and remanded the judgment case for further proceedings.6 6On we remand addressed certain factual issues left to our court high resolution the

(399 U.S. at 168-170 and 502-504]), L.Ed.2d at affirmed the conviction. pp. pp. [26 494, 3 (1971) (hereinafter v. Cal.3d Green 981 479 P.2d Green (People Cal.Rptr. [92 998] II).) of the decisions this court followed v. Sixth Green Subsequent California 589, 241, (1971) Amendment context. 4 602 483 v. Cal.3d (People Cal.Rptr. Bynum [94 663, 1193], (1976) overruled on other 16 P.2d v. Williams Cal.3d 669 grounds People 888, 599, 1000]; (1973) 8 547 P.2d v. Hathcock Cal.3d 615-616 People Cal.Rptr. [128 [105 540, 622, 24, 476]; (1973) v. P.2d Williams 9 Cal.3d Cal.Rptr. Cal.Rptr. People [106 632, (1974) 998]; 506 P.2d v. Strickland 11 Cal.3d 523 P.2d People Cal.Rptr. 672].) One of the issues on remand in Green II was whether Porter’s failure of as to memory “inconsistent,” how he the within the of marijuana acquired meaning with his In statement that Sam describing acquisition. prior 700], 208-210 P.2d we had held a witness’s bona fide and total failure remember event is not “inconsistent” with a prior statement the II him event. Green we found that substantial describing trial evidence claim of was not court’s that Porter’s loss supported finding memory fide, bona therefore held that his claim must be deemed an denial implied defendant him furnished his marijuana, making testimony “materially some time each discussing precedent, spend Although opinions Court and this States between the United real disagreement limited value court is over cross-examination types practical Yet on situations. in the Johnson and Green to the defendant available one of close essentially degree: disagreement inspection that such court recognizes high repeatedly majority opinion traditional, than lower level of cross-examination protection provides before statement cross-examination challenged contemporaneous that such fact, is of the trier of but the court the ultimate opinion Thus of the Sixth are for Amendment. deficiencies permissible purposes confrontation—oath, cross- insured court lists three protections examination, acknowl and the of demeanor evidence—and availability course, is, have “It true that the out-of-court statement may edges: But to none these made under circumstances been protections. subject trial, out-of-court at if the declarant is testifying present (Italics the lost most all protections.” purposes regains practical for added; the court is led L.Ed.2d at 497].) 399 U.S. Again, p. *12 evidence in matter” the loss of demeanor to “discount as a constitutional violated, confrontation are not “The defendant’s the circumstances: rights in that would have been relevant even some demeanor evidence though added; id. at issue is lost.” (Italics this p. credibility resolving forever the court “It be true that L.Ed.2d at 498].) may Finally recognizes p. the truth of the would in a better to evaluate be prior

jury position cross- have witnessed a statement” if it could contemporaneous declarant; not convinced that such of the but the court is examination examina more than cross-examination “is so much subsequent effective of the Confrontation Clause.” tion that it must be made the touchstone added; 160-161 L.Ed.2d 498-499].) id. (Italics at pp. at pp. were of the view that the short, the of the court majority high in Johnson and for cross-examination

shortcomings opportunities were within the because not violate the Sixth Amendment Green did they Indeed, Amendment. under the Fourteenth to the states leeway permitted devoted to this Justice of Chief solely the Burger concurring opinion States to of the It “the allowing experiment emphasizes importance point. If new standards area of criminal innovate, and justice. especially will be a or failure one State their success and are tried in procedures L.Ed.2d at 504].) at (Id., and to the p. others Congress.” guide meets the tests “The California statute And it reiterates (ibid.) 985-989.) In the case at bar (3 Cal.3d at inconsistent” with his statements. pp. prior find that Herrera’s of bona tides but did lapse court did not reach the trial question Sam total, on that ground. distinguished rather than correctly memory partial Sixth Amendments, and Fourteenth the wisdom of the accordingly, California; statute is left to State of other will properly jurisdictions watch the with interest.” undoubtedly experiment If the law, issue were a matter of purely statutoiy “experiment” would of course be But the cannot “innovate” permissible. Legislature individual that are expense impairing rights guaranteed by California Constitution. We as much in Johnson when we said explained 657-658 of 68 “We (at Cal.2d): do not here as a matter pp. inquire, evidence, law of whether inconsistent statements of a witness should or not be should admitted as That substantive proof. disagreement between the academic and the courts has been settled in this community state enactment of section 1235 of the Evidence by Legislature’s Code, cannot review wisdom its solution. ‘The power to determine what is or or is not evidence in civil legislature competent criminal cases is unquestionable.’ [Citation.] unlimited,

“But that while is not and remains power, unquestionable, restrictions the state and federal subject placed upon Indeed, Constitutions .... of this recognition principle the Evidence Code declares that ‘A statement that is otherwise admissible evidence is inadmissible the defendant in a criminal hearsay against made, action if another, the statement was either or defendant such circumstances that it under is inadmissible the defendant against ” under the Constitution of the or United States the State of California.’ *13 added and (Italics omitted.)

It is true the United States Court has now us told that section Supreme 1235 not does violate the federal Constitution. But as the foregoing clear, makes end does not it is matter: also our quotation to measure the statute of the Constitu- obligation against provisions I, 15, tion of California. Article section of that charter in declares relevant that a our be crime in courts has the “to part person charged right issue, with the witnesses The confronted the defendant.” there- against fore, section 1235 for the is whether violates that reasons guarantee; I, I I stated at Johnson Green would hold that does. need length those in detail in are no less order demonstrate analyses they repeat to the of confrontation declared section 15 of article I. right applicable fact, we concluded in Johnson 660 of 68 that “Evidence Cal.2d) (at p. 1235, case, Code when in a criminal section defendant applied against results in the kind of of cross-examination that erosion neither right the United States Court nor court will this countenance.” (Italics Supreme The Court is added.) reach that result in apparently willing federalism; the name of but our to enforce the California responsibility Declaration of court, sets standard for this Rights higher persuades me to adhere to our unanimous view in Johnson and Green I of the fatal deficiencies of cross-examination under section 1235.7 contends,

The however, General that we are barred from so Attorney of section 15 of article I. Prior to 1974 holding by legislative history there was no confrontation clause in the California Constitution. (See I, 13; 777, former art. v. Wallin P.2d (1950) § In that the clause was added to 1].) of article I as year part the revision of the California Declaration of submitted to the Rights voters as 7 on the election ballot. The Proposition general Attorney General infers from this of events that the clause was intended sequence to have no own, content or of its but to be a carbon meaning merely copy of the federal He concludes that in the California guarantee. applying confrontation clause our courts are bound federal deci- irrevocably sions Amendment, the Sixth and in construing particular by California Green. for at First, least three reasons. argument unpersuasive although

the confrontation clause of the Sixth Amendment was not made binding on the states until 1965 v. Texas (Pointer U.S. 400 (1965) L.Ed.2d 923, 85 S.Ct. in California law the 1065]), that event. right long predated That the defendant is entitled to confront the witnesses him in a against criminal has been declared our statutes since the prosecution explicitly earliest 1850, 119, 11, 275; 1851, statehood. ch. (Stats. Stats. days § p. 212; ch. Code, now Pen. subd. § And even to its 3.) § restatement as a Constitution, the California our separate guarantee courts “the of confrontation as consistently recognized right being part due under article I of that document. v. Dozier process” (People Pointer itself declared that 770].) Cal.App.2d “the of confrontation and cross-examination is an essential and right *14 7The of reasoning v. Green has drawn criticism from the heavy legal California (See, commentators. e.g., Reutlinger, Prior Inconsistent Statements: Inconsistent Presently 361; Doctrine (1974) Graham, 26 L.J. Hastings The and the Right of Confrontation Rule: 99, 117-122; Sir Walter Hearsay (1972) Loses Another 8 Raleigh One Crim.L.Bull. Seidelson, 76; and the Hearsay (1971) Sixth Exceptions Amendment 40 Geo.Wash.L.Rev. 591-596; (1971) 580, Note 423-427; 415, 59 Cal.L.Rev. Note (1971) 39 Geo.Wash.L.Rev. Note, Court, 108, 114-117; (1970) 1969 Term 84 Supreme Harv.L.Rev. (1970) Note 37 207, L.Rev. 212-214.) In his Brooklyn of the penetrating analysis practical aspects Professor problem, refutes not Reutlinger relied on only specific arguments by Court but also Supreme various additional claims advanced by proponents unorthodox view. the kind of fair trial which is this for

fundamental country’s requirement that to an Indeed, we have declared constitutional deprive goal. expressly him is a the witnesses denial accused of the to cross-examine right against law.” of of (380 of the Fourteenth Amendment’s due guarantee process course, citizens, California have 927].) U.S. L.Ed.2d at p. p. our state due of law fundamental charters been by guaranteed process 8; I, I, art. 1849. art. Cal. Const. former (Cal. § since Const. 13, now in this the draftsmen 15.) § Proposition § Accordingly, respect slate; on and to extent that the 7 did not write a clean present law, clause California our courts are confrontation continues prior not bound federal Sixth Amendment decisions evidently construing by it. the inference drawn General is

Secondly, by Attorney contrary intent the California of the draftsmen expressed Proposition Revision Commission. In 1970 its Article I Constitution February on the “the Committee Declaration of recommended Rights adoption to confront Confrontation of witnesses is another Sixth witnesses. right However, on which is states. the Committee Amendment right binding such basic law as well as feels that should state guarantees flow from 7; Procedure, on see also law.” IV Crim. (Italics added.) p. (Rep. federal Const., comment, Com., of Cal. Cal. Const. Revision Revision Proposed recommendation, course, was That 24.) (1971) ultimately pt. four 7 and the voters later. embodied by years Proposition adopted an intent of the draftsmen that The emphasized language clearly implies California clause source in—“flow the new confrontation find its state, from”—the law of this and that it exist organic independently from—“as well as”—its federal counterpart. fact that the General the salient same disregards

Thirdly, Attorney revised section 15 of that added the confrontation clause to Proposition 24 to that declares in I also added new section article. Section article Constitution are not this relevant by guaranteed part “Rights on those the United States Constitution.” guaranteed dependent 929, 939, v. Norman footnote this section “The 237], 538 P.2d by adopting explained have directed that we of this state meaning give sovereign people of limits which is fixed by constitutionally guaranteed rights independent States Court United parallel rights applicable terms, section 24 Constitution.” its United States By guaranteed section 15. confrontation alia to the inter guaranteed right applies *15 have intended 7 cannot be deemed to the draftsmen of Thus Proposition

559 be construed identical- to that the California confrontation clause require to the confrontation of the United States Constitution.8 ly provision Rather, of 24 that simultaneous section although signifies adoption clause to that of the Sixth California is language “parallel” Amendment, in for of California out its few words fleshing protection citizens our courts are constrained “the limits fixed by rigidly United States Court” on the of the federal Supreme operation provision. It that the issue follows whether v. Green is on us in binding California of the California confrontation clause remains an application open Its answer is the settled doctrine that the federal question. governed by to decision is be followed if it no less to provides only protection California citizens than is the state Constitution. v. guaranteed by (People 231, 861, 248 578 P.2d and (1978) 108], Pettingill Cal.Rptr. [145 cited; accord, 67, cases v. 22 88 Cook Cal.3d (1978) People Cal.Rptr. [148 605, 258, 583 P.2d v. 22 285 130]; Wheeler Cal.3d (1978) People [148 890, 583 P.2d From the discussion 748].) Cal.Rptr. preceding the test cannot be met: conclusion reached apparent contraiy herein, I, 15, Constitution, under article of the California the high court decision in v. Green with crime permits charged person California to be on a of convicted inconsistent statement a witness that was not prior to the cross-examination before subject safeguards contemporaneous Indeed, the ultimate trier of fact. it even such a in allows conviction—as the case at bar—on a witness’ unsworn accusation made in a totally nonjudicial setting.9 8Court decisions (See, should be Appeal contrary v. disapproved. e.g., People 627, (1978)

Bertoldo 77 632 675]; (1976) v. 57 Cal.App.3d Cal.Rptr. Contreras People [143 816, 820 Cal.App.3d 397]; v. 45 Cal.Rptr. (1975) People Browning Cal.App.3d 420], overruled on other Cal.Rptr. (1976) in v. grounds Williams supra, 669; Cal.3d (1978) cf. People Morgan 712].) Cal.App.3d if our courts were 9Ironically, v. Green to compelled by the latter permit California scenario, on trial before them would receive less persons even than is afforded protection to defendants in the federal courts under the new Federal Rules of Evidence. Rule 801(d)(1)(A) federal trials a witness’ provides inconsistent be prior can as used substantive evidence if it was oath only “under to the given subject penalty trial, at a or other perjury hearing, or in a It is proceeding, to note deposition.” interesting that as originally drafted Committee for the Rules of Advisory Evidence Proposed Court, submitted the rule contained no Congress by such limitation and followed Evidence Code section 1235 in the substantive use of allowing any prior statement; inconsistent the time the rule yet from had emerged Congress, that body amended it to impose that the inconsistent statement above-quoted requirement Graham, be (See embodied sworn declarant. Inconsistent Employing Statements Substantive Evidence: A Critical Review and Impeachment Proposed for Amendments 801(d)(1)(A), Federal Rules Evidence 1565, 1575-1582.) Mich.L.Rev. The amendment was to the concern of responsive House “a be of a defendant could convicted on basis Representatives solely *16 As the rule of v. Green thus less than is provides protection California law, in our California it should not be followed courts in guaranteed I, the confrontation clause of article of the state applying Constitution.

Newman, J., concurred. statement, witness’ out-of-court even the statement was alleged though disputed by own witness had witness’ no certain evidence existed establishing and, that the recounted information the statement more accurately fundamentally, Johnson, course, 1577.) (Id., statement had ever been made.” expressed Bein, Rule, (See similar concern. Prior Inconsistent Statements: The generally Hearsay 967.) 801(d)(1)(A) and 803(24) (1979) 26 UCLA L.Rev.