People v. May

748 P.2d 307, 44 Cal. 3d 309, 243 Cal. Rptr. 369, 1988 Cal. LEXIS 20

Opinions

Opinion

LUCAS, C. J.

In this case we consider whether Proposition 8, and its “Truth-in-Evidence” component (Cal. Const., art. I, § 28, subd. (d) (hereafter section 28(d)), abrogated the rule of People v. Disbrow (1976) 16 Cal.3d 101 [127 Cal.Rptr. 360, 545 P.2d 272] (inadmisssibility for impeachment purposes of defendant’s extrajudicial statements elicited in violation of Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]). As will appear, we have concluded that the Disbrow ruling indeed has been so abrogated. Accordingly, we do not reach the People’s alternative argument that Disbrow should be overruled.

In February 1983, Janice F. lived in a condominium on Milpas Street in Santa Barbara. Seeking a roommate, she placed an advertisement in a local newspaper. On Saturday February 26, she spoke by telephone with a man about the rental, then briefly interviewed him at the condominium. He gave “Dennis” as his first name and a one-syllable last name.

Later that day Laura Jestings drove to the Chili Factory in Santa Barbara to meet friends. After she parked, a man walked briefly with her and mentioned that he was from Canoga Park, was in Santa Barbara for the weekend, and had previously been to the Chili Factory. As she was returning to her car from the Chili Factory, she again saw the man. She entered her car and locked the door. He approached and tapped on the window, and she rolled it down. After a brief discussion he pointed a gun at her and ordered her to open the door and move over. He got into the driver’s seat and placed the gun at her waist. He directed her to put her hands behind her back so that he could handcuff her. She resisted, jumped out of the car, and ran away. The man fled, taking neither the car nor anything therein.

On the afternoon of the following day—Sunday, February 27—the man who had spoken with Janice F. about sharing her condominium called and asked if he could come and talk with her further about the matter; she agreed. After the man arrived, they had a brief discussion about the condominium. Suddenly he grabbed her from behind, put his left hand over her mouth, placed a gun at her side, told her not to scream or to make him nervous, forced her up the stairs into a bedroom and handcuffed her behind her back. He asked if she had anything valuable, and she said no. He placed a bandana in her mouth as a gag and removed two rings she was wearing. Next, he put her on the bed on her back, removed her pants and underpants, pushed up her sweatshirt and brassiere to expose her breasts, bit her around the nipple of her right breast, penetrated her with his finger, and raped her. He then tied her hands and took off the handcuffs, replaced her pants and properly arranged the clothing on her upper body, and finally left. At the time of the attack, he was wearing shoes that appeared to be brown with black tones.

In the course of their investigation into the two sets of crimes, the police arrested defendant. Immediately after he was advised of his Miranda rights, he stated; “Before I answer a thing I want an attorney present here . . . .” Without providing him with an attorney, however, the police interrogated him and elicited, in addition to denials of involvement in the crimes, various statements indicating he was the perpetrator. For example, he stated that he had visited the Chili Factory, was in Santa Barbara on February 26 and 27, 1983, owned handcuffs, and had owned handguns.

Defendant was charged with the following crimes against Janice F.: burglary, sexual penetration with a foreign object, rape, robbery in an inhabited dwelling, assault with a deadly weapon, and false imprisonment. He was also charged with the following crimes, among others, against Jestings: assault with a deadly weapon and assault with intent to commit rape. He pleaded not guilty.

Before trial, defendant moved under Disbrow, supra, 16 Cal.3d 101, to bar any use of his statements to the police on the ground they were obtained in violation of his Miranda, supra, 384 U.S. 436, rights. Insofar as the motion sought to bar the prosecution from using the statements in its case in chief, it was impliedly granted. Otherwise, however, it was denied in the following ruling: “It appears to the Court that under Proposition 8, the Federal law must be applied, and the Federal standard must be applied as to the use of statements in violation of the Miranda rule, [1f] In this case,. . . there was a specific affirmative statement by the defendant that he wished to take advantage of his rights; that is, have an attorney, and that is repeated later on in the conversation as well. No question that it did not comply with Miranda. ... [H] The Court does find that the statements were not coerced; that there is no indication of coercion in the statements by length of the interview, or by methods used, or promises made; that there was no indication that if he talked, there would be a deal, that he would get off better if he did. [1f] So the ruling of the court is that under Harris, using the federal test, they would be usable as impeachment testimony by the prosecution, if otherwise appropriately usable as impeachment testimony.”

After the ruling, defense counsel stated that defendant “will not be testifying, then, under compulsion of the ruling. We don’t want to be subjected to the possibility of cross-examination on that particular statement.”

At trial each of the victims described the attack she had suffered; Janice F. positively identified defendant as her assailant, and Jestings stated he looked very similar to the man who assaulted her. Another woman, Kathleen C., testified that in January 1983 she advertised in a local paper called Easy Ad for a roommate to share her apartment in San Luis Obispo; a man responded and subsequently attacked her; the incident was similar to that involving Janice F., and the assailant was defendant.

Larry Slayton also testified on behalf of the prosecution. He recalled that defendant, who was carrying a gun, picked him up at his home on a Sunday in February 1983, and drove to Santa Barbara. Defendant told Slayton he was going to see a woman there about an apartment and intended to rape her. Arriving in Santa Barbara, he drove to a block on Milpas Street— which proved to be near Janice F.’s condominium—and parked. He took out a pair of handcuffs and put them in his pocket. As he exited the car, he told Slayton that if anything happened he should leave. Slayton waited about five minutes and then left. In the early morning of the following day, defendant telephoned him and asked to be picked up; Slayton said he would, but did not. Later that day defendant saw him, became very angry and tried to choke him. He then displayed some rings and said, “This is all I got out of this, and if you would have been there, we could have got stereo components, stereo and a TV.” Defendant told him they were going back to Santa Barbara to retrieve his gun, which he had “stashed” there. Slayton, fearing defendant, ran away. Defendant chased Slayton, threatening to kill him, but Slayton eluded him.

Two experts testified for the prosecution. A document examiner was of the opinion that defendant had signed a registration form, giving “Dennis Burke” as his name and “Canoga Park” as his place of residence, in order to obtain a room at the Hope Ranch Motel—which was located about 400 yards from the Chili Factory—for Saturday, February 26, 1983. A serologist was of the opinion that seminal fluid stains found on the clothing worn by Janice F. and Kathleen C. at the time of the attacks could have been produced by defendant.

The prosecution also presented physical evidence linking defendant to the crimes, including two items found at his home: a pair of brown shoes with black spots, and a pair of handcuffs.

In its case in chief and through cross-examination of the prosecution’s witnesses, the defense tried to show that Slayton was lying in order to implicate defendant and protect someone else. Defendant, however, did not take the stand.¹

Defendant was convicted of the crimes charged. On appeal he contended, inter alia, that the court erred in denying his Disbrow motion, insofar as it sought to bar the prosecution from using his extrajudicial statements for impeachment. The Court of Appeal expressed doubt that the issue had been properly raised and preserved for appeal because defendant did not testify. The court nevertheless rejected the point on the merits: Concluding that section 28(d) abrogated the Disbrow rule and thereby left Harris v. New York (1971) 401 U.S. 222 [28 L.Ed.2d 1, 91 S.Ct. 643] to govern the case, it held that the trial court did not err in ruling the statements admissible for impeachment. Determining defendant’s other contentions to be similarly without merit, it affirmed the judgment.

Defendant now contends that Disbrow rendered his statements inadmissible for all purposes, including impeachment. The People, however, argue that Disbrow has been abrogated by the following provision of Proposition 8, now contained in section 28(d): “Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court. Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, Sections 352, 782 or 1103. Nothing in this section shall affect any existing statutory or constitutional right of the press.” (Italics added.)

Crucial to the question whether the Disbrow rule survives the adoption of section 28(d) is the effect of the emphasized savings clause, and especially the meaning of its phrase, “statutory rule[s] of evidence relating to privilege or hearsay.” After careful consideration of the question, we have concluded that the People’s position is correct. Accordingly, we hereby adopt the following portion of Justice Abbe’s opinion for the Court of Appeal in this case,

Footnotes

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* which opinion correctly treats the issue: The trial court held the enactment of [section 28 (d)] repealed the California exclusionary rule first set forth in [] [Disbrow].

The Disbrow exclusion was based on independent state grounds under article I, section 15 of the California Constitution. It is contrary to the federal rule under the United States Constitution as enunciated by the Supreme Court in Harris v. New York [, supra,] 401 U.S. 222 . . . (Harris). The Harris court held that statements made to police under circumstances rendering them inadmissible under Miranda on the prosecution’s case in chief could be admitted for purposes of impeachment of a testifying defendant whose trial testimony was inconsistent with the earlier statements.

The issue here is whether the Disbrow exclusionary rule survived the 1982 amendment of the California Constitution by Proposition 8 which added [section 28(d)]. We find it did not.

[] [Defendant] argues that Evidence Code section 940 is an “existing statutory rule relating to privilege” which, [under section 28 (d)] precludes the use of such extrajudicial statements.

Evidence Code section 940 provides as follows: “To the extent that such privilege exists under the Constitution of the United States or the State of California, a person has a privilege to refuse to disclose any matter that may tend to incriminate him.” Section 940, on its face, is a statutory recognition of the constitutional privileges against self-incrimination. Even assuming arguendo section 940 is an “existing statutory rule of evidence relating to privilege” it is not helpful here. The question is not whether the [defendant] had a constitutional right [under Miranda] to refuse to disclose any information during the police interrogation []. He clearly had such rights under both the state and federal Constitutions. The question is rather, given that [defendant’s] constitutional privileges against self-incrimination and right to counsel were violated by the interrogation, what remedy is available to him?

In In re Lance W. (1985) 37 Cal.3d 873, 886-887 [210 Cal.Rptr. 631, 694 P.2d 744], [we] held: “What [the pertinent portion of] Proposition 8 does is to eliminate a judicially created remedy for violations of the search and seizure provisions of the federal or state Constitutions, through the exclusion of evidence so obtained, except to the extent the exclusion remains federally compelled.” [We] went on to state at pages 888-889 “. . . that in the absence of express statutory authority therefor courts may not exclude evidence seized in.violation of either the state or federal Constitution unless exclusion is compelled by the federal Constitution. . . . []|] Implicit in the limitation on the courts’ power to exclude relevant evidence to the enumerated statutory exceptions is a limitation on the power of the court to create nonstatutory exclusionary rules, whether denominated rules of procedure, rules of evidence, or substantive rules, for the exclusion of unlawfully seized evidence if those rules afford greater protection to a criminal defendant than does the Fourth Amendment. [Fn. omitted.]”

While In re Lance W. [, supra, 37 Cal.3d 873,] involved exclusionary [] [remedies] for violation of [constitutional] search and seizure provisions [] rather than the [] constitutional rights to counsel and rights against self-incrimination involved here, its reasoning and result are equally applicable. Both [kinds of] exclusionary rules are addressed to evidence obtained by police conduct in violation of constitutional provisions. Both are based on the same rationale[] of deterring unlawful police conduct.

For example, Harris v. New York, supra, 401 U.S. 222, 223-224 [], relief] oh Walder v. United States (1954) 347 U.S. 62 [98 L.Ed. 503, 74 S.Ct. 354], a case involving the Fourth Amendment exclusionary rules, to permit impeachment with evidence seized in violation of the Fifth Amendment. Similarly in People v. Disbrow, supra, 16 Cal.3d 101, 107 et seq., [we relied] extensively on cases involving exclusion of evidence obtained in unlawful searches and seizures including People v. Brisendine (1975) 13 Cal.3d 528 [119 Cal.Rptr. 315, 531 P.2d 1099]. [] Brisendine, which excluded illegally obtained evidence on independent state grounds, was held to be abrogated by Proposition 8 in In re Lance W.[, supra, 37 Cal.3d 873]. Since the issue here arises under the same constitutional amendment, [our] interpretation of that amendment [ ] is equally applicable in this case. In both instances the relevant provision of Proposition 8 requires the abrogation of the judicially declared exclusionary remedy for a constitutional violation based on police misconduct.

[ ] Disbrow did not [purport to] define the scope of the California constitutional privilege against self-incrimination now set forth at article I, section 15. In Disbrow, as in People v. Brisendine, supra, 13 Cal.3d 528, on which it relied, the court [] [created a new remedy for violations of Miranda, but did not reinterpret or extend] the scope of the substantive rights protected by the Constitution. (See In re Lance W., supra, 37 Cal.3d 873, 886-887.) Consequently, section 940, which relates only to substantive, not remedial, rights cannot be relied upon to save the exclusionary rule set forth in Disbrow.

[] [Defendant’s reliance on Ramona R. v. Superior Court (1985) 37 Cal.3d 802 (210 Cal.Rptr. 204, 693 P.2d 789) is misplaced], Ramona R. involved [the use of] legislatively compelled self-incriminatory statements or testimony in contrast to [using statements merely violative of Miranda\. In Ramona R. the [] [issues were] whether the juvenile court erred in failing to grant [] [the defendant] immunity from use at trial of any statements she made to her probation officer or to the court in the fitness hearing, [] [and] whether the requirement of such use immunity based on pre-Proposition 8 decisional law survived the passage of [section 28(d)]. [Our] court held that the use-immunity privilege was compelled by the California constitutional privilege against self-incrimination. That privilege was codified in [Evidence Code] section 940. It consequently was a privilege specifically exempted from the all-relevant-evidence provision of section 28(d).

Ramona, a juvenile, was charged with murder. The prosecution sought to prosecute her as an adult under the provisions of Welfare and Institutions Code section 707 []. Since the charge was one specified by section 707, subdivision (b), [] the minor was statutorily presumed [under subdivision (c)] to be unfit for juvenile court treatment. This statutory rebuttable presumption of unfitness effectively compelled the minor to produce [potentially incriminating] evidence at the fitness hearing or in her prehearing interview with a probation officer [].

[Legislatively compelled testimony [cannot] be used against the testifier for any purpose under the federal Constitution. (New Jersey v. Portash (1979) 440 U.S. 450, 458-459 [59 L.Ed.2d 501, 509-510, 99 S.Ct. 1292].) Testimony may be constitutionally compelled by statute only if the person testifying is protected to the same extent as if [he] had not spoken at all. Therefore, [as we explained in Ramona i?.] the prosecution must be precluded from making any use of such testimony against that person. The scope of the immunity is as broad as the privilege against compulsory self-incrimination. [] Neither Ramona R. [, supra, 37 Cal.3d 802] nor Portash purports to deal with evidence seized in violation of the right against self-incrimination. They deal with the scope of the right itself rather than a remedial device to cure a constitutional violation. [] [End of Court of Appeal opinion.]

In addition to the Court of Appeal’s analysis, we make the following observations which support our holding. First, the “Truth-in-Evidence” provision of our Constitution was probably intended by the California voters as a means of (1) abrogating judicial decisions which had required the exclusion of relevant evidence solely to deter police misconduct in violation of a suspect’s constitutional rights under the state Constitution, while (2) preserving legislatively created rules of privilege insulating particular communications, such as the attorney-client or physician-patient privilege. As we recently observed, “The people have apparently decided that the exclusion of evidence is not an acceptable means of implementing those rights, except as required by the Constitution of the United States.” (In re Lance W., supra, 37 Cal.3d 873, 887, italics added.)

Given the probable aim of the voters in adopting section 28(d), namely, to dispense with exclusionary rules derived solely from the state Constitution, it is not reasonably likely that the California voters intended to preserve, in the form of a “statutory” privilege, a judicially created exclusionary rule expressly rejected by the United States Supreme Court under the federal Constitution. (See Harris v. New York, supra, 401 U.S. 222.) In this regard, Ramona R., supra, 37 Cal.3d 802, is distinguishable on the further ground that its rule of use immunity was adopted in the face of conflicting signals from the federal courts regarding the necessity of such a remedy under the federal Constitution. (See 37 Cal.3d at pp. 808-809.)

Thus, it seems very likely that Proposition 8 was crafted for the very purpose, among others, of abrogating cases such as Disbrow, which had elevated the procedural rights of the criminal defendant above the level required by the federal Constitution, as interpreted by the United States Supreme Court. (See Ballot Pamp. arguments in favor of Prop. 8 as presented to the voters, Primary Elec. (June 8, 1982) p. 34.)

Defendant disregards the realities underlying the passage of Proposition 8 in discerning some “statutory” privilege which insulates and protects Disbrow. That case neither concerned nor created any mere statutory privilege. As Disbrow itself unambiguously declares, “We therefore hold that the privilege against self-incrimination of article I, section 15, of the California Constitution precludes use by the prosecution of any extrajudicial statement by the defendant . . .” in violation of Miranda. (16 Cal.3d at p. 113, italics added.) We believe that section 28(d) was intended to preclude this kind of reliance on the state Constitution to create new exclusionary rules rejected by applicable decisions of the United States Supreme Court. Thus, to accept defendant’s thesis would thwart the probable intent of the framers of, and voters for, Proposition 8. (See also People v. Fritz (1985) 40 Cal.3d 227, 233 [219 Cal.Rptr. 460, 707 P.2d 833] [dis. opn. by Lucas, J.]; People v. Castro (1985) 38 Cal.3d 301, 319 [211 Cal.Rptr. 719, 696 P.2d 111] [dis. opn. by Grodin, J.], 323 [dis. opn. by Lucas, J.].)

The federal rule announced in Harris v. New York, supra, 401 U.S. 222, allowing impeachment by the defendant’s prior statements taken in violation of Miranda, may have been based on the premise that the privilege against self-incrimination cannot be invoked by one who has voluntarily taken the witness stand to testify concerning the subject matter of his prior statement. (See People v. Stanfill (1986) 184 Cal.App.3d 577, 581-582 [229 Cal.Rptr. 215], and cases cited.) As Harris explains, “Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. [Citations.]” (401 U.S. at p. 225 [28 L.Ed.2d at p. 4], italics added.) Thus, it seems reasonable to conclude that no privilege, statutory or otherwise, protected defendant from impeachment in this case.

In addition, and contrary to the view expressed in the dissent herein, it is not reasonably likely that the voters deemed the Disbrow rule a “statutory rule of evidence relating to . . . hearsay . . .” which would be preserved under section 28(d). (Italics added.) Although the argument was neither relied on by defendant nor discussed by the parties, we briefly address it here.

Evidence Code section 1204 recites that an otherwise admissible hearsay statement is nonetheless inadmissible in a criminal action if it was made “under such circumstances that it is inadmissible against the defendent under the Constitution of the United States or the State of California.” In other words, section 1204 (in much the same manner as section 940) simply acknowledges the existence of judicial decisions under the state or federal Constitutions which bear upon the admissibility issue. As we have previously explained in the context of our analysis of section 940, in adopting section 28(d) and its exception for “statutory rules of evidence,” the voters probably intended to preserve legislatively created evidentiary rules, while abrogating judicial decisions which had required the exclusion of evidence solely on state constitutional grounds. We would wholly frustrate this intent were we to hold that the Disbrow rule survived merely because the Legislature had acknowledged the existence of judicial rules such as Disbrow in statutes such as sections 940 and 1204.

The judgment of the Court of Appeal is affirmed.

Panelli, J., and Kaufman, J., concurred.

1

In light of the evidence presented by the prosecution, several of defendant’s extrajudicial statements appeared more inculpatory than they had prior to trial. Such statements include: defendant had gone to Santa Barbara with Slayton, and had used Easy Ad to sell various items and, notably, to advertise for roommates.

Brackets together, in this manner [ ], are used to indicate deletions from the opinion of the Court of Appeal; brackets enclosing material (other than the editor’s parallel citations) are, unless otherwise indicated, used to denote insertions or additions. (Estate of McDill (1975) 14 Cal.3d 831, 834 [122 Cal.Rptr. 754, 537 P.2d 874].)