Opinion
REYNOSO, J.
The right of a criminal defendant to an interpreter is based on the fundamental notion that no person should be subjected to a Kafkaesque trial which may result in the loss of freedom and liberty. We granted hearing in this case to determine the scope of interpreter assistance which article I, section 14 of the California Constitution requires be afforded a non-English speaking criminal defendant. The trial court properly appointed an interpreter for the accused, Marcello Mata Aguilar, after observing him and speaking with him at his arraignment. That interpreter, however, became unavailable to the defendant during the testimony of two Spanish speaking prosecution witnesses. Mata Aguilar1 was convicted by the jury and he challenges that conviction.
Defendant’s central contention on appeal is that the trial court’s interference with his exclusive access to the interpreter throughout the proceedings deprived him of a constitutional right.
We hold that article I, section 14, requires that when an interpreter is appointed for a non-English speaking accused, the accused has a constitutional right to the assistance of the interpreter throughout the entire proceeding. Accordingly, we find constitutional error in the proceedings below.
[788]*7881. How the Problem Arose
On July 21, 1981, an altercation occurred between two farmworkers employed by Alfred Orosco Ramirez, a Sutter County labor contractor. The two employees, Jose Chaidez and Marcello Mata Aguilar both lived at the nearby labor camp. As the argument between the two Spanish speaking employees became heated, a crowd of fellow employees gathered. The argument escalated into a physical confrontation. Chaidez, the ultimate victim in this case, was the aggressor. The small crowd, which included Chaidez’ son, Jose Aurelio Chaidez, witnessed the events; several persons unsuccessfully attempted to intervene.
Chaidez, who was heavier and taller than Mata Aguilar, delivered several blows to the defendant which caused him to be knocked down. Chaidez then picked up a large stick approximately 30 inches long and threatened and yelled at defendant. Frightened and in pain, defendant got up and retreated to his nearby sleeping quarters where he retrieved his rifle which he kept loaded. Defendant emerged from the building and advanced toward Chaidez. As Chaidez dropped the large stick, defendant fired a single shot.
The police arrived shortly thereafter. They ascertained that Chaidez was dead. Police Detective Wilbur Terry located defendant and took him to the sheriff’s department to be interviewed. During the interview, Detective Terry learned that defendant could neither read or write Spanish, his native language, nor could he read or write English. He could speak only broken English. After being advised of his constitutional rights, defendant agreed to give the detective a statement.2 On August 19, 1981, defendant was charged with murder in violation of Penal Code section 187 and use of a firearm within the meaning of Penal Code section 12022.5.3
[789]*789At defendant’s jury trial, the court appointed an interpreter for him.4 However, his interpreter was “borrowed” by the court to function as a witness interpreter for the benefit of the court and jury when Jose Aurelio Chaidez and Alfred Orosco Ramirez, two prosecution witnesses, were called to testify against him. Chaidez was the first witness for the prosecution. Because he was Spanish speaking, the prosecution suggested that he would need “the interpreter.” Defense counsel, without consulting defendant, acquiesced in the “borrowing” of the interpreter. Chaidez, the only eyewitness other than defendant, testified about the verbal argument that preceded the physical altercation, the actions of his father and defendant prior to the shooting of his father, and defendant’s conduct after the shoot[790]*790ing. Orosco Ramirez was the last witness called by the prosecution. The court again directed that defendant’s interpreter assist the witness in testifying against him. Counsel, again without consulting defendant, acquiesced in this suggestion. Although defense counsel cross-examined Chaidez, no cross-examination of Orosco Ramirez was conducted.
2. The Solution: Constitutional Right to an Interpreter Throughout the Proceedings
a. The Parameters of the Right
Article I, section 14 of the California Constitution was amended in 1974 by vote of the electorate to provide that “[a] person unable to understand English who is charged with a crime has a right to an interpreter throughout the proceedings. ” (Italics added.) The trial court correctly appointed an interpreter for Mata Aguilar, thus complying with the portion of the Constitution which guarantees that an interpreter be provided. However, the trial court failed to follow the last three words of the constitutional provision—“throughout the proceedings”—when it deprived Mata Aguilar of that right by using his interpreter to translate for the prosecution’s witnesses. California’s Constitution does not provide a half measure of protection. Rather, it requires that when an interpreter is appointed for a criminal defendant, that interpreter must be provided to aid the accused during the whole course of the proceedings.
Interpreters play three different but essential roles in criminal proceedings: “(1) They make the questioning of a non-English-speaking witness possible; (2) they facilitate the non-English-speaking defendant’s understanding of the colloquy between the attorneys, the witness, and the judge; and (3) they enable the non-English speaking defendant and his English-speaking attorney to communicate ... an interpreter performing the first service will be called a ‘witness interpreter, ’ one performing the second service, a ‘proceedings interpreter,’ and one performing the third service a ‘defense interpreter.’” (Chang & Araujo, Interpreters for the Defense: Due Process for the Non-English-Speaking Defendant (1975) 63 Cal.L.Rev. 801, 802; hereinafter cited as Chang & Araujo.) While the three roles are interrelated they are distinct.
The defendant’s right to understand the instructions and rulings of the judge, the questions and objections of defense counsel and the prosecution, as well as the testimony of the witnesses is a continuous one. At moments crucial to the defense—when evidentiary rulings and jury instructions are given by the court, when damaging testimony is being introduced—the non-English speaking defendant who is denied the assistance of an interpreter, [791]*791is unable to communicate with the court or with counsel and is unable to understand and participate in the proceedings which hold the key to freedom.5
Thus, the “borrowing” of the interpreter, the accused’s only means of communicating with defense counsel and understanding the proceedings, was a denial of a constitutional right.6
Our conclusion finds support in recent Court of Appeal rulings. People v. Chavez (1981) 124 Cal.App.3d 215 [177 Cal.Rptr. 306], held that a non-English speaking criminal defendant had been denied his constitutional right to receive interpreter assistance throughout the proceedings. The defendant was wholly without an interpreter during portions of the preliminary proceedings dealing with his competence to stand trial. In
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Opinion
REYNOSO, J.
The right of a criminal defendant to an interpreter is based on the fundamental notion that no person should be subjected to a Kafkaesque trial which may result in the loss of freedom and liberty. We granted hearing in this case to determine the scope of interpreter assistance which article I, section 14 of the California Constitution requires be afforded a non-English speaking criminal defendant. The trial court properly appointed an interpreter for the accused, Marcello Mata Aguilar, after observing him and speaking with him at his arraignment. That interpreter, however, became unavailable to the defendant during the testimony of two Spanish speaking prosecution witnesses. Mata Aguilar1 was convicted by the jury and he challenges that conviction.
Defendant’s central contention on appeal is that the trial court’s interference with his exclusive access to the interpreter throughout the proceedings deprived him of a constitutional right.
We hold that article I, section 14, requires that when an interpreter is appointed for a non-English speaking accused, the accused has a constitutional right to the assistance of the interpreter throughout the entire proceeding. Accordingly, we find constitutional error in the proceedings below.
[788]*7881. How the Problem Arose
On July 21, 1981, an altercation occurred between two farmworkers employed by Alfred Orosco Ramirez, a Sutter County labor contractor. The two employees, Jose Chaidez and Marcello Mata Aguilar both lived at the nearby labor camp. As the argument between the two Spanish speaking employees became heated, a crowd of fellow employees gathered. The argument escalated into a physical confrontation. Chaidez, the ultimate victim in this case, was the aggressor. The small crowd, which included Chaidez’ son, Jose Aurelio Chaidez, witnessed the events; several persons unsuccessfully attempted to intervene.
Chaidez, who was heavier and taller than Mata Aguilar, delivered several blows to the defendant which caused him to be knocked down. Chaidez then picked up a large stick approximately 30 inches long and threatened and yelled at defendant. Frightened and in pain, defendant got up and retreated to his nearby sleeping quarters where he retrieved his rifle which he kept loaded. Defendant emerged from the building and advanced toward Chaidez. As Chaidez dropped the large stick, defendant fired a single shot.
The police arrived shortly thereafter. They ascertained that Chaidez was dead. Police Detective Wilbur Terry located defendant and took him to the sheriff’s department to be interviewed. During the interview, Detective Terry learned that defendant could neither read or write Spanish, his native language, nor could he read or write English. He could speak only broken English. After being advised of his constitutional rights, defendant agreed to give the detective a statement.2 On August 19, 1981, defendant was charged with murder in violation of Penal Code section 187 and use of a firearm within the meaning of Penal Code section 12022.5.3
[789]*789At defendant’s jury trial, the court appointed an interpreter for him.4 However, his interpreter was “borrowed” by the court to function as a witness interpreter for the benefit of the court and jury when Jose Aurelio Chaidez and Alfred Orosco Ramirez, two prosecution witnesses, were called to testify against him. Chaidez was the first witness for the prosecution. Because he was Spanish speaking, the prosecution suggested that he would need “the interpreter.” Defense counsel, without consulting defendant, acquiesced in the “borrowing” of the interpreter. Chaidez, the only eyewitness other than defendant, testified about the verbal argument that preceded the physical altercation, the actions of his father and defendant prior to the shooting of his father, and defendant’s conduct after the shoot[790]*790ing. Orosco Ramirez was the last witness called by the prosecution. The court again directed that defendant’s interpreter assist the witness in testifying against him. Counsel, again without consulting defendant, acquiesced in this suggestion. Although defense counsel cross-examined Chaidez, no cross-examination of Orosco Ramirez was conducted.
2. The Solution: Constitutional Right to an Interpreter Throughout the Proceedings
a. The Parameters of the Right
Article I, section 14 of the California Constitution was amended in 1974 by vote of the electorate to provide that “[a] person unable to understand English who is charged with a crime has a right to an interpreter throughout the proceedings. ” (Italics added.) The trial court correctly appointed an interpreter for Mata Aguilar, thus complying with the portion of the Constitution which guarantees that an interpreter be provided. However, the trial court failed to follow the last three words of the constitutional provision—“throughout the proceedings”—when it deprived Mata Aguilar of that right by using his interpreter to translate for the prosecution’s witnesses. California’s Constitution does not provide a half measure of protection. Rather, it requires that when an interpreter is appointed for a criminal defendant, that interpreter must be provided to aid the accused during the whole course of the proceedings.
Interpreters play three different but essential roles in criminal proceedings: “(1) They make the questioning of a non-English-speaking witness possible; (2) they facilitate the non-English-speaking defendant’s understanding of the colloquy between the attorneys, the witness, and the judge; and (3) they enable the non-English speaking defendant and his English-speaking attorney to communicate ... an interpreter performing the first service will be called a ‘witness interpreter, ’ one performing the second service, a ‘proceedings interpreter,’ and one performing the third service a ‘defense interpreter.’” (Chang & Araujo, Interpreters for the Defense: Due Process for the Non-English-Speaking Defendant (1975) 63 Cal.L.Rev. 801, 802; hereinafter cited as Chang & Araujo.) While the three roles are interrelated they are distinct.
The defendant’s right to understand the instructions and rulings of the judge, the questions and objections of defense counsel and the prosecution, as well as the testimony of the witnesses is a continuous one. At moments crucial to the defense—when evidentiary rulings and jury instructions are given by the court, when damaging testimony is being introduced—the non-English speaking defendant who is denied the assistance of an interpreter, [791]*791is unable to communicate with the court or with counsel and is unable to understand and participate in the proceedings which hold the key to freedom.5
Thus, the “borrowing” of the interpreter, the accused’s only means of communicating with defense counsel and understanding the proceedings, was a denial of a constitutional right.6
Our conclusion finds support in recent Court of Appeal rulings. People v. Chavez (1981) 124 Cal.App.3d 215 [177 Cal.Rptr. 306], held that a non-English speaking criminal defendant had been denied his constitutional right to receive interpreter assistance throughout the proceedings. The defendant was wholly without an interpreter during portions of the preliminary proceedings dealing with his competence to stand trial. In Chavez, defense counsel acted as an interpreter when Chavez was arraigned (Id., at p. 221); a court-appointed official interpreter was provided for the entry of the plea7 (Id., at pp. 222-223); and an unofficial interpreter was provided for part of the sentencing process.8 The Court of Appeal noted that prior to the 1974 amendment of article I, section 14, an interpreter was only required wherever it was “necessary” as a matter of due process. (See People v. Annett (1967) 251 Cal.App.2d 858, 861-862 [59 Cal.Rptr. 888].) The court went on to note, however, that “Article I, Section 14, now grants a non-English-speaking defendant the distinct right to an interpreter ‘throughout the proceedings.’” (People v. Chavez, supra, 124 Cal.App.3d at p. 221.) Accordingly, the court found constitutional error in the trial court proceedings.
[792]*792Recently, in People v. Menchaca (1983) 146 Cal.App.3d 1019 [194 Cal.Rptr. 691], the Court of Appeal found, “nothing short of a sworn interpreter at defendant’s elbow,” will satisfy the article I, section 14 guarantee to an interpreter throughout the proceedings. (Id. at p. 1025.) That case involved a Spanish speaking criminal defendant who was illiterate and neither spoke nor understood English. Like defendant Mata Aguilar, Menchaca was initially provided with an interpreter but the interpreter was removed during the testimony of a prosecution witness.9
In concluding that a constitutional error had occurred, the Menchaca court took judicial notice that when an interpreter is utilized at trial, the interpreter and the witness speak to each other at relatively close range. The court stated, “Under such circumstances, it cannot be assumed a defendant clearly hears and understands the question and answer exchange in Spanish.” (Id. at p. 1024.) The court observed that even if the defendant could understand the answers of the witness, it was not established that the defendant understood the testimony because, “[w]ithout a clear understanding of the questions, such testimony is essentially meaningless.” (Ibid., italics added.) Finally, the court mentioned that when acting as a witness interpreter, the same interpreter could not provide the defendant with translation of other integral parts of the proceedings, such as the open-court colloquy between bench and counsel and the rulings of the court. (Id. at p. 1025.) These concerns, of course, are equally applicable to the case at bench.
We find persuasive discussion in federal case law. One such case addresses the issue of interpreter assistance principally in terms of the right of confrontation under the Sixth Amendment of the United States Constitution. In U.S. ex. rel. Negron v. New York (2d Cir. 1970) 434 F.2d 386, the appellate court found constitutional error in the failure of the trial court to provide a Spanish speaking defendant with an interpreter notwithstanding the fact that a prosecution interpreter provided the accused with periodic summaries of the proceedings. “The least we can require is that a court, put on notice of a defendant’s severe language difficulty, make unmistakably clear to him that he has a right to have a competent translator to assist him, at state expense if need be, throughout his trial. ” (Id. at pp. 390-391, italics added.) There, the defendant was unable to communicate with his counsel without the use of an interpreter. The single interpreter provided by the court was used primarily to interpret the testimony of the Spanish speaking witnesses for the court and jury. Negron’s contacts with counsel through the interpreter were few. The concern of the district court in Negron is instructive: “[i]n order to afford Negron his right to confrontation, it was [793]*793necessary under the circumstances that he be provided with a simultaneous translation of what was being said for the purpose of communicating with his attorney to enable the latter to effectively cross-examine those English-speaking witnesses to test their credibility, their memory and their accuracy of observation in light of Negron’s version of the facts.” (310 F.Supp. 1304, 1307 (E.D.N.Y.) affd., 434 F.2d 386.)
In affirming the granting of Negron’s habeas corpus petition, the Second Circuit went beyond the right of confrontation, “. . . the right that was denied Negron seems to us even more consequential than the right of confrontation. Considerations of fairness, the integrity of the fact-finding process, and the potency of our adversary system of justice forbid that the state should prosecute a defendant who is not present at his own trial, [citation omitted], . . . [a]nd it is equally imperative that every criminal defendant— if the right to be present is to have meaning—possess ‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.’” (434 F.2d at p. 389.)
The Judicial Council has recognized that under circumstances like that at bench the appointment of more than a single interpreter is warranted. “An interpreter is needed ... if a party is unable to understand and speak English sufficiently to comprehend the proceedings and to assist counsel in the conduct of the case. Separate interpreters may be needed for each non-English speaking party. An additional interpreter may be needed to interpret witness testimony for the court.” (Standards of Judicial Administration, section 18(a), appended to Cal. Rules of Court). Two interpreters were required in this case.
Compelling reasons exist for the appointment of more than one interpreter: “[It] is nearly impossible for one interpreter to translate the testimony of a witness while simultaneously translating and listening to the discussions between defendant and counsel. It is in these circumstances that a defense interpreter is most needed to ensure adequate representation by the defendant’s counsel.” (Chang & Araujo, at pp. 821-822.) Requiring two interpreters in cases such as the one before us has additional benefits to the criminal justice system because “it is difficult for an interpreter who has worked closely with the defendant and his counsel in the preparation of the defense from the pretrial stage to translate the court proceedings impartially. Finally, a separate defense interpreter would serve to ensure the accuracy of the proceedings and witness interpreters.”10 (Id., at p. 822.)
[794]*794Without an interpreter, the trial is reduced to “a babble of voices” to the defendant. (U.S. ex rel. Negron v. New York, supra, 434 F.2d 386, at p. 388.) Sensitivity toward language difficulties is the hallmark of our multilingual state. This sensitivity has been appropriately elevated to constitutional proportions when the state, through the criminal process, places the life and liberty of the non-English speaker in jeopardy.
b. The Waiver
A reversal is required unless the defendant waived the constitutional right we have described. Was there a valid waiver? We reject the People’s contention that consent of defense counsel to the use of Mata Aguilar’s interpreter to translate testimony for the benefit of the jury and the court amounted to a waiver of the article I, section 14 right.
There is no indication in the record that defendant voluntarily and intelligently waived his constitutional right. Although prior to 1974, appointment of an interpreter could be waived by failure to request one, this is no longer the case. “The right to an interpreter having since been guaranteed in the Constitution, it may not validly be waived without an ‘affirmative showing,’ on the record, of waiver which was ‘intelligent and voluntary’ on the part of the affected defendant.” (People v. Chavez, supra, 124 Cal.App.3d 215, 227.) We agree and thus we hold that a personal waiver by the defendant was required. The mere acquiescence by counsel did not waive the right to interpreter assistance.
Further, the record does not support a conclusion that defendant knew he had a right to an interpreter throughout the proceedings. The issue of knowledge of the right to an interpreter was addressed by the Second Circuit in Negron, in which the court stated, “Simply to recall the classic definition of a waiver—‘an intentional relinquishment or abandonment of a known right,’ Johnson v. Zerbst, 304 U.S. 458 [parallel citations omitted] (1938)— is a sufficient answer to the government’s suggestion that Negron waived any fundamental right by his passive acquiescence in the grinding of the judicial machinery and his failure to affirmatively assert the right. For all that appears, Negron, who was clearly unaccustomed to asserting ‘personal rights’ against the authority of the judicial arm of the state, may well not have had the slightest notion that he had any ‘rights’ or any ‘privilege’ to assert them.” (434 F.2d at p. 390.) Similarly, Mata Aguilar’s inaction in demanding his personal right did not result in a waiver.
[795]*795There is no indication in the record that defendant made a voluntary and intentional waiver. An exchange took place—entirely in English—between the court, the prosecutor, the interpreter, and defense counsel. The defendant was excluded.11 This conversation, being a “babble of voices” to the defendant, cannot be held to amount to a waiver by him of his right to an interpreter.
In the ethnic richness of California, a multiplicity of languages has been nurtured. Historically, many peoples speaking diverse tongues have formed large portions of our population. The people of this state, through the clear and express terms of their Constitution, require that all persons tried in a California court understand what is happening about them, for them, and against them. Who would have it otherwise?
The judgment is reversed.
Bird, C. J., Kaus, J., Broussard, J., and Grodin, J., concurred.