People v. Gutierrez

137 Cal. App. 3d 542, 187 Cal. Rptr. 130, 1982 Cal. App. LEXIS 2117

Opinions

Opinion

WIENER, J.

Jorge Gutierrez appeals a judgment entered after a jury convicted him of kidnaping (Pen. Code, § 207)¹ and rape by force and by threats (former § 261, subds. (2) and (3)). Included among his contentions is his claim of prejudicial error resulting from the court’s evidentiary ruling barring any cross-examination of the investigating officer eliciting a response in Spanish. As we shall explain, we have concluded this limitation of cross-examination violated Gutierrez’ fundamental right of confrontation and cross-examination secured to him under the Sixth Amendment of the United States Constitution and article I, section 15 of the California Constitution. We therefore reverse the judgment.

Factual Background

Seventeen-year-old Lisa M. testified that in the early morning hours of June 7, 1980, Gutierrez forcibly raped her. Her testimony was corroborated by other witnesses and Gutierrez’ confession. Gutierrez described the sex as consensual love making.

Denial of Gutierrez ’ Sixth Amendment Right to Confront and Fully Cross-examine Officer Costello Requires Reversal.

Police officer Joe Gastello interviewed Gutierrez on June 9, 1980, at about 11 a.m. Vera Saldivar, a probation officer, was also present. Before starting his questioning, Gastello first advised Gutierrez in Spanish of his constitutional rights. After waiving those rights, Gutierrez confessed. Part of Gastello’s testimony included the following:

“Q. What did the Defendant relate to you?

“A. He said that he approached her, made advances toward her, took her forcibly from the apartment by means of gagging her and binding her hands, took her out of the apartment.

“Q. After the Defendant stated that he forcibly took Lisa out of the apartment, what happened?

“A. He said that he started out with her. She got free. She ran from him. He ran her down, took her back forcibly and opened his trunk and put her in the trunk of the car and drove off with her out into the country.

“Q. When the Defendant indicated to you that he forcibly took her into the trunk, did he indicate what he meant by forcibly?

“A. Well, against her will, totally against her will.” (Italics supplied.)

On cross-examination of Gastello, defense counsel asked:

“Q. Now, in translations aren’t certain words, can’t they be a little different or have different meanings?

“A. They shouldn’t have.

“Q. What about the term force? I don’t know, force somebody, you mentioned that Mr. Gutierrez had said, for example, that he forced himself on her. How did he say it to you, do you remember?

“The Court: We went through this to a certain extent yesterday. Now, there is no way that our court reporter is going to be able to put down something that this witness says in Spanish.

“Mr. Leibowitz: Well, I recognize that. May I approach? I have an offer or a suggestion.

“The Court: Yes. (Whereupon, the following proceedings were held at the bench:)

“Mr. Leibowitz: My suggestion there are certain words like force, forced intentions or something on them. What he says is very important.

“The Court: I am not a witness in this case but I can tell you the word force is the same in English as it is in Spanish as it is in Italian as it is in Portuguese.

“Mr. Leibowitz: I am talking about forced intentions I will have to get it in a different way, I guess.

“The Court: Ask anything you like, but don’t ask him to repeat things in Spanish.”

Gutierrez asserts the court’s blanket ruling prohibiting any question causing the witness to respond in Spanish denied him his right to cross-examine secured by the Sixth Amendment. (See Pointer v. Texas (1965) 380 U.S. 400 [13 L.Ed.2d 923, 85 S.Ct. 1065]; Bruton v. United States (1968) 391 U.S. 123 [20 L.Ed.2d 476, 88 S.Ct. 1620]; cert. den. 397 U.S. 1014 [25 L.Ed.2d 428, 90 S.Ct. 1248].)

Initially, we wish to note our awareness of the burden placed upon trial judges to effectively dispose of innumerable cases in our increasingly litigious society. In order to accomplish this difficult goal, a trial judge must work collegially with his or her support staff. Understandably a court will make every effort to minimize or eliminate unnecessary tasks for members of its staff to maintain the high level of morale essential to handle the enormous amount of work which must be produced daily. Obviously it was within this spirit that the judge here precluded cross-examination to avoid placing the court reporter in the time-consuming and unenviable position of taking down words in a foreign language complicated by the later problem of transcribing those words.

Nonetheless, the burden created did not warrant a ruling prohibiting all responses in Spanish. If the parties were to so stipulate, the bilingual witness or the interpreter could have written the answer out for the benefit of the court reporter for insertion in the reporter’s transcript at a later time. Or, absent the stipulation, the reporter could report the answer phonetically. The alleged difficulties of receiving answers in Spanish from a crucial witness cannot be used to limit or encroach upon the constitutional rights of persons who are not fluent in English. There is no question but that a court has the responsibility to control all proceedings during trial (§ 1044) and trial court exclusion of collateral matter offered for impeachment has been consistently upheld. (People v. Flores (1977) 71 Cal.App.3d 559, 567 [139 Cal.Rptr. 546]; see also People v. Redmond (1981) 29 Cal.3d 904, 913 [176 Cal.Rptr. 780, 633 P.2d 976].) But that responsibility may not be expanded to deny a defendant the right to confront a key witness and to preclude cross-examination of that witness on the actual words used in the defendant’s confession. If this case were free of the dual language problem, there would be no question but that defense counsel would have been permitted to ask the witness about the inculpatory words actually used by the defendant. Fairness as well as logic require the application of the same standard to all persons charged with the commission of a crime regardless of their ability to speak English.

The more difficult question remains, however, whether this limited right of cross-examination was prejudicial under Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824]. May we say that the error here was “harmless beyond a reasonable doubt”? (Id., at p. 24 [17 L.Ed.2d at p. 711].) If we could properly limit our inquiry to a determination whether there was other evidence that Gutierrez forced himself upon Lisa, we could answer this question in the affirmative. Castello testified he observed Lisa’s neck was bruised and one of her eyes was “blood-stained” when he went to her apartment on the morning of June 8. Lisa testified Gutierrez “slugged” and “slapped” her. But our responsibility in determining whether the error is harmless beyond a reasonable doubt requires more.

The right of cross-examination is one of the safeguards essential to a fair trial and the United States Supreme Court has been zealous in protecting the rights of confrontation and cross-examination from erosion. The courts of this state have taken a similar stand, stressing the “. . .‘most substantial’ nature of the defendants’ right to confront witnesses, designating it a ‘right of the highest importance.’ ” (People v. Chavez (1980) 26 Cal.3d 334, 357 [161 Cal.Rptr. 762, 605 P.2d 401], citations omitted.) The scope of protecting this most precious right is highlighted in Smith v. Illinois (1968) 390 U.S. 129 [19 L.Ed.2d 956, 88 S.Ct. 748]. There, a state conviction was reversed because of a denial of a Sixth Amendment right even though the defendant’s right to cross-examine the chief prosecution witness was neither denied nor delayed but simply curtailed by preventing questions asking the witness’ name and address. The court said “[t]o forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself.” (Id., at p. 131 [19 L.Ed.2d at p. 959].)

Here, the actual words used by Gutierrez are highly significant. A substantially different connotation could have been drawn by the jury had Gutierrez said he was only trying to force his affections upon Lisa compared to the inference which the jury drew that he was physically forcing himself upon her. What the answer to. this question would have been and what additional questions would have been asked or what answers would have been given are admittedly unknown. Nevertheless, “‘[q]uestions on cross-examination ... are largely exploratory, and it is unreasonable to require an offer of proof since counsel often cannot know what pertinent facts may be elicited.’ ” (Gallaher v. Superior Court (1980) 103 Cal.App.3d 666, 672 [162 Cal.Rptr. 389] quoting Tossman v. Newman (1951) 37 Cal.2d 522, 525 [233 P.2d 1].) Because the right of cross-examination is judically perceived to be the “ ‘greatest legal engine ever invented for the discovery of truth’ ” (see California v. Green (1970) 399 U.S. 149, 158 [26 L.Ed.2d 489, 497, 90 S.Ct. 1930], quoting 5 Wigmore, § 1367), we hold the People have not proved the court’s error in restricting cross-examination was harmless beyond a reasonable doubt.

The Court Properly Refused to Instruct the Jury on Unlawful Sexual Intercourse (CALJIC No. 10.10 (1979 Revision)).

For guidance of the court upon retrial, we address Gutierrez’ contention the court erred in failing to instruct the jury on the crime of unlawful sexual intercourse (§ 261.5) as a necessarily included offense of the charged offense of forcible rape. (§ 261.)

An offense is characterized as “lesser included” if all its elements must necessarily be included in the elements of the greater offense as each is defined by statute or by the charging language of the information. (People v. Puckett (1975) 44 Cal.App.3d 607, 611 [118 Cal.Rptr. 884].)

Here, the applicable statutes provide: “Unlawful sexual intercourse is an act of sexual intercourse accomplished with, a female not the wife of the perpetrator, where the female is under the age of 18 years.” (§ 261.5.)

“Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:

“(2) Where it is accomplished against a person’s will by means of force or fear of immediate and unlawful bodily injury on the person of another.” (§261.) To constitute unlawful sexual intercourse, the victim must be under the age of 18, an element not necessarily included in the crime of forcible rape.

Gutierrez argues, however, that even if unlawful sexual intercourse is not necessarily included in the offense of forcible rape, the court had a duty to give the requested instruction to insure the jury considered all material issues presented by the evidence. (People v. St. Martin (1970) 1 Cal.3d 524, 531 [83 Cal.Rptr. 166, 463 P.2d 390].) One argument he makes for this proffered instruction is the unfairness to do otherwise. He explains it is common knowledge that sexual intercourse with a female under the age of 18 is a criminal act. The jury was well aware that Gutierrez committed this crime. However, when the jurors were asked to decide solely between acquitting or convicting Gutierrez of forcible rape, they may have convicted him because acquittal would have resulted in their absolving a man who clearly committed a crime. Gutierrez asserts by refusing to give the unlawful intercourse instruction, the court stripped him of his only defense.

Although we are sympathetic to this argument, we have concluded the reasoning of People v. West (1980) 107 Cal.App.3d 987 [165 Cal.Rptr. 24] is persuasive. In rejecting a similar contention, the court explained that requiring the trial court, if requested, to instruct the jury it may convict the defendant of a lesser but not included offense although defendant has been charged with a different more onerous crime gives the defendant the power to decide what crime he is charged with, “a power that resides exclusively with the prosecution.” (Id., at p. 993; see also People v. Singleton (1980) 112 Cal.App.3d 418 [169 Cal.Rptr. 333], cone. opn. Staniforth, J., pp. 431-432.)

Moreover, there is a significant difference in the burden imposed upon the trial court and the requirement that instructions must be given on “necessarily included offenses” supported by substantial evidence and requiring instructions on offenses which are not “necessarily included.” The term “necessarily included” is strictly defined by case law. (People v. Lohbauer (1981) 29 Cal.3d 364, 368-369 [173 Cal.Rptr. 453, 627 P.2d 183].) There are no such definitions or limitations with respect to offenses which are not “necessarily included” to effectively guide the trial court in deciding whether to give the requested instruction. We will not add an additional trial court requirement which may well frustrate, rather than contribute to the administration of justice.

Disposition

Judgment reversed.²

Footnotes

1

All statutory references are to the Penal Code unless otherwise indicated.

2

In light of our disposition, we have concluded it is unnecessary for us to discuss the effect of Gastello’s alleged failure to properly advise Gutierrez of his Miranda rights. On this record, however, we believe it appropriate that Gutierrez have the further opportunity to relitigate whether he made a knowing and intelligent waiver of his Miranda rights. To the extent possible, because of the issues involved, it would indeed be helpful, perhaps even essential, if Gutierrez had a Spanish-speaking lawyer at all stages of the proceeding, including his further Evidence Code section 402 hearing.