PEOPLE v. MARKHAM

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Court of Appeal, Second District, Division 6, California.

The PEOPLE, Plaintiff and Respondent, v. Jerome Joseph MARKHAM, Defendant and Appellant.

Crim. B008283.

Decided: March 20, 1986

Kenneth J. Sargoy, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Marc E. Turchin and William T. Harter, Deputy Attys. Gen., for plaintiff and respondent.

STATEMENT OF FACTS AND ISSUE ON APPEAL

Jerome Joseph Markham appeals from the judgment of conviction at a court trial held following the denial of his motion pursuant to section 995 of the Penal Code to dismiss the information charging him with robbery and burglary.   Markham asserts that his conviction should be reversed because the trial court erred in admitting evidence of his admissions.   Markham objected at the time that there was insufficient proof beyond a reasonable doubt that he had voluntarily waived his right to remain silent.   The trial court overruled the objection on the ground that Proposition 8 mandated the use of the federal standard of proof by a preponderance of the evidence for determining the voluntariness of waivers;  that the prosecutor had met that burden;  but that if the state standard of proof beyond reasonable doubt was applicable, the prosecutor had not met that burden.   The admissions were received and were, by our review of the record, important evidence resulting in the conviction.

We are thus confronted with the issue whether the standard of proof of voluntariness of waivers is proof beyond a reasonable doubt (People v. Jimenez (1978) 21 Cal.3d 595, 606, 147 Cal.Rptr. 172, 580 P.2d 672) or proof by a preponderance of the evidence (Lego v. Twomey (1972) 404 U.S. 477, 489, 92 S.Ct. 619, 626, 30 L.Ed.2d 618).   The answer depends on the applicability of article I, section 28, subdivision (d) of the California Constitution, passed by the ballot initiative popularly known as Proposition 8, and referred to on this issue as the “truth in evidence law.” 1

ARGUMENTS ON APPEAL

Appellant claims that the state standard survived because the privilege against self-incrimination falls within the statutory privilege of Evidence Code section 940 2 and is therefore an exception to the “truth in evidence law.”   He relies on People v. Jacobs (1984) 158 Cal.App.3d 740, 204 Cal.Rptr. 849, and Ramona R. v. Superior Court (1985) 37 Cal.3d 802, 210 Cal.Rptr. 204, 693 P.2d 789 (modified 38 Cal.3d 453a), to support his position.   To those cases we would add People v. Navarez (1985) 169 Cal.App.3d 936, 215 Cal.Rptr. 519, People v. Barrios (1985) 166 Cal.App.3d 732, 212 Cal.Rptr. 644;  and People v. Clark (1985) 171 Cal.App.3d 889, 217 Cal.Rptr. 819, as providing additional support.

Respondent contends that Evidence Code section 940 3 establishes no more than a testimonial privilege, citing the comments of the law revision commission at the time section 940 was proposed.4  Respondent distinguishes Ramona R. factually, without citing the cases from the district courts of appeal.

SUMMARY OF CALIFORNIA CASES

In Ramona R. v. Superior Court, supra, 37 Cal.3d 802, 210 Cal.Rptr. 204, 693 P.2d 789, the juvenile defendant had been charged with murder.   A hearing was held on the issue whether she was unfit for juvenile court proceedings.   Because of the nature of the charge against her, she was presumed to be unfit for juvenile court treatment, and she bore the burden of proof to the contrary.   She did not testify because there was no agreement that her testimony could not be used against her at a later trial.   She was declared not to be a fit subject for juvenile court treatment.   After murder charges were filed against her in superior court, she sought a writ of mandate to compel vacation of the order of unfitness.   Her grounds were that the juvenile court refused to grant her immunity from use at trial of statements she made to her probation officer or of testimony she might have given at the fitness hearing.

The Supreme Court granted her writ, holding that section 940 allowed the continued use of state definitions of the scope of the privilege against self-incrimination;  that “use immunities” were included in the scope of the privilege;  that federal law was unsettled on the issue;  that preexisting state law was still binding;  and that a minor had a “use immunity” relating to testimony given at a fitness hearing.

In People v. Weaver (1985) 39 Cal.3d 654, 217 Cal.Rptr. 245, 703 P.2d 1139, the court held that a defendant's testimony given at pretrial hearings for revocation of parole or probation was exempt from the “truth in evidence law.”  Ramona R. was affirmed so far as it held that use immunity survived the “truth in evidence law,” but reservations were expressed about the “analysis and ramifications ․” of that decision.  (People v. Weaver, supra, 39 Cal.3d at p. 659, fn. 2, 217 Cal.Rptr. 245, 703 P.2d 1139.)

In People v. Jacobs, supra, 158 Cal.App.3d 740, 204 Cal.Rptr. 849, the defendant was questioned during his trial testimony about his silence in the face of questioning after his arrest.   The court noted the federal rule that post-arrest silence could be used for impeachment unless warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, were given before questioning.  (See Fletcher v. Weir (1982) 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490.)   After summarizing California case law, the court concluded that the California rule was that post-arrest silence could not be used, whether or not Miranda warnings were given.   The court further stated, in dictum, that a defendant's right under the California Constitution is unaltered by the “truth in evidence law” because the privilege against self-incrimination is a statutory privilege under section 940, and is exempt.

In People v. Barrios, supra, 166 Cal.App.3d 732, 212 Cal.Rptr. 644, defendant was interrogated without benefit of advice of his Miranda rights.   He made statements which were later admitted to impeach his trial testimony.   The trial court relied on the “truth in evidence law” and the federal rule in Harris v. New York (1971) 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, to allow use of the statements.   The appellate court held that People v. Disbrow (1976) 16 Cal.3d 101, 127 Cal.Rptr. 360, 545 P.2d 272, still controlled the decision because the privilege against self-incrimination is a statutory privilege under section 940 and is exempt from the “truth in evidence law.”   The court relied on Ramona R. and its own decision in Jacobs, ruling that because the statute contemplates that courts will determine the scope of the privilege, and the statute is exempt, the California court decisions determining the scope of the privilege are controlling.

In People v. Clark, supra, 171 Cal.App.3d 889, 217 Cal.Rptr. 819, the issue was the same as in Barrios, as were the analysis and the holding.   The court interpreted Ramona R. as wholly exempting self-incrimination issues from the “truth in evidence law.”   The dissenting justice asserted his belief that the intent of the voters was to curtail any restrictions on the admissibility of evidence not mandated by federal constitutional standards.

In People v. Navarez, supra, 169 Cal.App.3d 936, 215 Cal.Rptr. 519, the defendant was advised of his Miranda rights and refused to waive them.   Later he was readvised of his rights;  he waived them;  and he confessed.   The court held that his confession was inadmissible based on People v. Fioritto (1968) 68 Cal.2d 714, 68 Cal.Rptr. 817, 441 P.2d 625;  and People v. Pettingill (1978) 21 Cal.3d 231, 145 Cal.Rptr. 861, 578 P.2d 108, while recognizing that the federal rule articulated in Michigan v. Mosley (1975) 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313, would have permitted the admission of the confession.   The court held that the “truth in evidence law” was inapplicable, citing Ramona R. and Jacobs for the proposition that the right against self-incrimination is an exempted privilege.

 We do not read Ramona R. as other courts do.   We do not read Ramona R. as declaring that all issues relating to the right against self-incrimination are exempt from the “truth in evidence law,” based on the existence of a statutory privilege codifying some of the principles underlying this fundamental constitutional right.  Ramona R. deals solely with the limited issue of use immunity as it affected a defendant's decision whether to testify.   That is an issue covered by section 940 to which preexisting state law may be applied.   We disagree with other interpretations of Ramona R. that would make all self-incrimination issues exempt from the mandates of the “truth in evidence law.”

HOLDINGS

 We hold generally that the provisions of article I, section 28, subdivision (d) of the California Constitution re-established the federal standard for testing the voluntariness of waivers of Miranda rights.   Our opinion is based on separate and independent analyses of the issues actually involved in such waivers.

 First, we hold that section 940 is concerned with the scope of the privilege against self-incrimination, and not with procedural matters such as the standards for determination of voluntariness of waivers of the privilege.

 Second, we hold that a “legislative history” of Proposition 8 shows the voters' intent to make the “truth in evidence law” applicable to confessions, save only such exceptions as were specified in the initiative;  and that as already noted, section 940 does not constitute an exception for procedural issues.

 Third, we hold that even assuming that legislative history is insufficient to construe the meaning of the ballot initiative, the reasoning of In re Lance W. (1985) 37 Cal.3d 873, 210 Cal.Rptr. 631, 694 P.2d 744, is as applicable to confessions as it is to searches and seizures.  Lance W. holds that Proposition 8 abrogated independent state grounds save only such exceptions as are specifically stated in the initiative.   Since section 940 does not constitute an exemption for procedural issues, then the independent state grounds for excluding confessions based on voluntariness must also be abrogated.

 Fourth, we hold that the fundamental right against self-incrimination is not limited by a mere statutory privilege.  Section 940 is an irrelevancy in the history of the right against self-incrimination.   Reliance upon it to define self-incrimination would be a substantial denigration of one of our most fundamental rights.

 Finally, we hold that the Sixth Amendment right to counsel is involved in Miranda waivers.   The “truth in evidence law” established no statutory exception relating to the right to counsel, and cases such as Ramona R. are factually irrelevant.   The “truth in evidence law” is applicable on its face to the exclusion of evidence based on violations of the right to counsel.

I

Section 940 codifies a privilege against self-incrimination and was specifically exempted from the initiative's provisions.   The reading of Ramona R. set forth in People v. Barrios, supra, 166 Cal.App.3d 732, 212 Cal.Rptr. 644, tends to support the argument that all self-incrimination issues are exempted.  Ramona R. should not be so read.

Reference to the law revision commission comment to section 940 shows that the statute itself does not determine the scope of the privilege without reference to case law.   So much (and no more) was held by Ramona R. in its decision that the scope of the privilege should extend to create a “use immunity,” not directly mentioned in the statute, and governed by California constitutional standards where federal law is unclear.   Neither the comment nor the statute nor any Supreme Court case refers to procedural issues not involved in defining the scope of the privilege;  nor do they refer to the remedy to be applied for procedural violations of the privilege.   These issues, unaddressed by a specific exception, were not exempted from the “truth in evidence law.”

The Miranda rights themselves have been expressly recognized as “procedural safeguards” (Miranda v. Arizona, supra, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, and Berkemer v. McCarty (1984) 468 U.S. 420, ––––, 104 S.Ct. 3138, 3148, 82 L.Ed.2d 317, 331);  “protective devices” (Miranda, supra, 384 U.S. at p. 465, 86 S.Ct. at p. 1623);  and “prophylactic warnings” (New York v. Quarles (1984) 467 U.S. 649, ––––, 104 S.Ct. 2626, 2631, 81 L.Ed.2d 550, 556;  see also Doyle v. Ohio (1976) 426 U.S. 610, 617, 96 S.Ct. 2240, 2244, 49 L.Ed.2d 91).   The Supreme Court recognized the separation of the procedural issue from the substantive right in Michigan v. Tucker (1974) 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182, writing that “the police conduct here did not deprive respondent of his privilege against compulsory self-incrimination as such, but rather failed to make available to him the full measure of procedural safeguards associated with that right since Miranda ․” (id., at p. 444, 94 S.Ct. at p. 2364) and that “these procedural safeguards were not themselves rights protected by the Constitution but were instead measures to insure that the right against compulsory self-incrimination was protected.”  (Ibid.)

The question of the voluntariness of a waiver of those rights is similarly recognized as a “prerequisite” preliminary step in Miranda v. Arizona, supra, 384 U.S. 436, 476, 86 S.Ct. 1602, 1629, and as a “threshold requirement” in Oregon v. Elstad (1985) 470 U.S. ––––, ––––, 105 S.Ct. 1285, 1292, 84 L.Ed.2d 222, 230, in determining whether exclusion is necessary.

 The failure to give Miranda rights, and the voluntariness of their waiver, is not part of the definition of the scope of the right against self-incrimination.   Assuming arguendo that section 940 does establish an exception to the “truth in evidence law,” it does so on matters relating to the scope of the right.   Procedures effectuating the right are nonstatutory and are not exempted from the “truth in evidence law” by section 940.

II

The intent of the voters who enacted the “truth in evidence law” on June 8, 1982, was to direct that relevant evidence not be excluded except as required by the Constitution of the United States.  (In re Lance W., supra, 37 Cal.3d 873, 210 Cal.Rptr. 631, 694 P.2d 744.)   The initiative does not address on its face the question before us.   Interpretation of what Lance W. referred to as “ ‘the most ambiguous and least understood section of Proposition 8 ․’ ” (id., at p. 886, fn. 6, 210 Cal.Rptr. 631, 694 P.2d 744) is necessary.

 “Faced with a constitutional amendment adopted by initiative, however, we are obligated ․ to give effect to the expression of popular will, as best we can ascertain it, within the framework of overriding constitutional guarantees.”  (In re Lance W., supra, 37 Cal.3d at p. 879, 210 Cal.Rptr. 631, 694 P.2d 744.)   When construing matters voted on by the electorate, ballot summaries and arguments, legislative staff analyses, and the opinions of leading scholars may be acceptable sources from which the voters' intent and understanding may be discerned.   All those sources were relied upon by the court in In re Lance W. at, for example, page 886, footnote 6;  page 888, footnote 8;  and page 909, 210 Cal.Rptr. 631, 694 P.2d 744 (dis. opn. of Mosk, J.).  (See also White v. Davis (1975) 13 Cal.3d 757, 775, fn. 11, 120 Cal.Rptr. 94, 533 P.2d 22.)

The most obvious place for a statement of intent is in the body of the initiative itself.   The preamble to the initiative, now found in article I, section 28, subdivision (a) of the California Constitution, stated that the purpose of the initiative was to enact “broad reforms in the procedural treatment of accused persons․”

The analysis by the legislative analyst, contained in the Ballot Pamphlet, Proposed Amendments to California Constitution with Arguments to Voters, Primary Election, June 8, 1982 (hereafter, Ballot Pamphlet) does not expressly address the issue.   But its language 5 is not limiting.   The examples it gives are not exclusive.   Its language is inclusive, stating that the initiative “generally would allow most relevant evidence to be presented in criminal cases” excepting federal restrictions.  (Ballot Pamphlet, p. 32.)

The Arguments in Favor of Proposition 8 include the statement that “higher courts of this state have created additional rights for the criminally accused and placed more restrictions on law enforcement officers.   This proposition will overcome some of the adverse decisions by our higher courts.”  (Ballot Pamphlet, p. 34, by George Deukmejian, (then) Attorney General.)

The Assembly Committee on Criminal Justice prepared a staff analysis 6 because of its impact on legislation.   The committee concluded that a reasonable interpretation of the initiative was that the independent state grounds theory for excluding evidence would be repealed (Analysis, p. 14) and that, for example, Harris would now control over Disbrow in impeachment situations (Analysis, p. 17).

The citizens of California were subjected to considerable media coverage of the initiative as the date for balloting approached.   Most commentators agreed that the initiative would change the courts' reliance on independent state grounds for the exclusion of evidence.  (See, e.g., Dena Cochran (Apr. 1982) Cal.Journal, pp. 133–134;  Ballot Proposition Analysis (May 1982) Cal.Journal, p. 5;  (May 1982) 68 ABA Journal 530;  and Goodpaster, An Essay on Ending the Exclusionary Rule (1982) 33 Hastings L.Rev. 1065, 1067–1068.)

In Reforming the Exclusionary Rule:  An Analysis of Two Proposed Amendments to the California Constitution (1982) 33 Hastings L.Rev. 1109, 1123, (then) District Attorney of Los Angeles County, John Van de Kamp, and his deputy, Richard W. Gerry, noted that the “truth in evidence law” of Proposition 8 was even broader than S.C.A. 7 (the actual subject of their article) and that even S.C.A. 7 would change the Jimenez rule, along with most other self-incrimination rules.   District Attorney Van de Kamp expressed his views on Proposition 8 to his staff,7 again specifically noting the application of the initiative generally to self-incrimination issues, and specifically to the determination of voluntariness.

The voters are also, of course, charged with the knowledge of the existence of section 940 as a possible exception.   A reasonable reading of the statute and the comment would probably have led the voter to believe that the section referred only to a testimonial, in-court privilege.   The modification to the Ramona R. opinion (at 38 Cal.3d 453a, 210 Cal.Rptr. 204, 693 P.2d 789) holding that section 940 is not so limited came after the passage of the ballot initiative.   If voters thought anything about section 940, they would have had no reason to believe it applied to procedural issues.

Where the materials available to the public, and presumably relied upon by the public, are so uniform in describing the content and effect of the initiative, courts should not overlook such interpretations.   The voters meant to do away with independent state grounds for applying the exclusionary rule and made no exception for procedural issues relating to confessions.   Their intent is effectuated by the “truth in evidence law.”   The law is applicable generally to the exclusion of confessions save only the specifically enumerated exceptions.   And, as held ante at page 266, section 940 does not except procedural issues relating to the privilege against self-incrimination.

III

 The California Supreme Court has stated:  “[I]n the absence of express statutory authority therefore 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.]”  (In re Lance W., supra, 37 Cal.3d at pp. 888–889, 210 Cal.Rptr. 631, 694 P.2d 744.)   We hold, based on this reasoning, that save for specific exceptions based on scope, the “truth in evidence law” is applicable to procedural aspects of self-incrimination.

The principles of Lance W., dealing with suppression of evidence on Fourth Amendment grounds, are equally applicable to suppression of evidence on Fifth Amendment grounds.8  While In re Lance W. involved exclusionary rules for violation of search and seizure provisions of the Constitutions rather than the state and federal constitutional rights to counsel and rights against self-incrimination involved here, its reasoning and result are equally applicable.   Both of the exclusionary rules are addressed to evidence obtained by police conduct in violation of constitutional provisions.   Both are based on the same rationales of deterring unlawful police conduct.   Since the issue here arises under Proposition 8, the same constitutional amendment construed in In re Lance W., the interpretation of that amendment by the Supreme Court 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.

Other courts have noted the overlap of the Fourth and Fifth Amendments and have used search and seizure reasoning and principles to consider self-incrimination problems.  Disbrow, for example, relied for its analysis on People v. Brisendine (1975) 13 Cal.3d 528, 119 Cal.Rptr. 315, 531 P.2d 1099, a search and seizure case.   Additional support for the application of Lance W.'s reasoning to self-incrimination issues is found in the many United States Supreme Court cases that recognize the intertwining of the concepts embodied in the Fourth and Fifth Amendments.  (See Malloy v. Hogan (1964) 378 U.S. 1, 8–9, 84 S.Ct. 1489, 1493–1494, 12 L.Ed.2d 653;  Davis v. United States (1946) 328 U.S. 582, 587, 66 S.Ct. 1256, 1258, 90 L.Ed. 1453 [“The law of searches and seizures as revealed in the decisions of this Court is the product of the interplay of these two constitutional provisions.”];  Mapp v. Ohio (1961) 367 U.S. 643, 657, 81 S.Ct. 1684, 1692, 6 L.Ed.2d 1081 (majority opn.), and pp. 662–666, 81 S.Ct. pp. 1695–1697 (conc. opn. of Black, J.);   and Boyd v. United States (1886) 116 U.S. 616, 630, 633, 6 S.Ct. 524, 532, 533, 29 L.Ed. 746 [“We have already noticed the intimate relationship between the two Amendments.   They throw great light on each other.”].)

Harris v. New York, supra, 401 U.S. 222, 91 S.Ct. 643, relied on Walder v. United States (1954) 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503, analogizing Walder 's application of the exclusionary rule in search cases to Harris' confession case.   In Berkemer v. McCarty, supra, 468 U.S. 420, 104 S.Ct. 3138, the court analogized from Terry v. Ohio (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, to treat questioning during a traffic stop like a pat-down search.   In INS v. Delgado (1984) 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247, the court treated the process of interrogation as a seizure.

Identical reasoning has been used in applying doctrines such as “fruit of the poisonous tree” to both Fourth and Fifth Amendment violations.  (See Wong Sun v. United States (1963) 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.)   The remedy for violating either the Fourth or the Fifth Amendments is the same in either state or federal courts—exclusion of the evidence.  (Weeks v. United States (1914) 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652;  Mapp v. Ohio, supra, 367 U.S. 643, 81 S.Ct. 1684;  Malloy v. Hogan, supra, 378 U.S. 1, 84 S.Ct. 1489.)

 Lance W. makes it clear that the “truth in evidence law” abrogated the independent state exclusionary rule.   Its reasoning, though limited in that opinion to Fourth Amendment violations, is logically no less compelling as to Fifth Amendment violations.   We hold, based on the logic of In re Lance W., that the “truth in evidence law” applies to Fifth Amendment violations except where the issue has been specifically exempted by the terms of the initiative.   And, as previously noted in section I, section 940 does not establish an exemption for the procedural issue of voluntariness of Miranda waivers.

IV

Section 940 was enacted in 1965 as part of the (then) new Evidence Code.   It was based on two code sections which were simultaneously repealed.   Former Penal Code section 1323 9 stated that a defendant could not be compelled to be a witness;  but that if he did testify, he could be thoroughly cross-examined;  and that if he did not, his silence could be the subject of comment.   Former Code of Civil Procedure section 2065 10 stood for the unremarkable proposition that a witness in a civil case was required to answer all questions except those subjecting him to a felony prosecution or having a tendency to degrade his character.   Those sections dealt on their faces with a testimonial privilege only and were never cited for any other proposition.

Between 1965 when section 940 was enacted, and 1984–1985 when it was cited by the courts in People v. Jacobs, supra, 158 Cal.App.3d 740, 751, 204 Cal.Rptr. 849, and Ramona R. v. Superior Court, supra, 37 Cal.3d 802, 210 Cal.Rptr. 204, 693 P.2d 789,11 the statute had been mentioned only 20 times in published cases.   In only six of those cases was the section mentioned in relation to a non-testimonial situation.   In none of those cases was section 940 relied upon for a ruling by the court.   Probably this was so because until Ramona R., judges freely relied on the comments of the law revision commission accompanying section 940 to the effect that it defined a testimonial privilege, but neither the scope of the privilege against self-incrimination, nor exceptions to it, nor circumstances when it has been waived.   The Supreme Court had also treated the statute as creating a testimonial privilege in, for example, Cramer v. Tyars (1979) 23 Cal.3d 131, 137, 151 Cal.Rptr. 653, 588 P.2d 793.

The interpretation of Ramona R. suggested by Barrios, Clark and Navarez would result in this statute being used to fully define every aspect of one of the most fundamental liberties preserved for citizens of the United States.   Section 940 had never once been cited as defining the right;  had never once been relied upon in any holding;  and did not even come into existence until 174 years after the enactment of the Fifth Amendment to the United States Constitution, where the right is truly defined.

Section 940 was not relied on by the California Supreme Court in any of the cases establishing independent state grounds for the determination of self-incrimination issues.   There is no reference to section 940 in the cases of People v. Disbrow, supra, 16 Cal.3d 101, 127 Cal.Rptr. 360, 545 P.2d 272, or People v. Pettingill, supra, 21 Cal.3d 231, 145 Cal.Rptr. 861, 578 P.2d 108, or People v. Jimenez, supra, 21 Cal.3d 595, 147 Cal.Rptr. 172, 580 P.2d 672, or People v. Arnold (1967) 66 Cal.2d 438, 58 Cal.Rptr. 115, 426 P.2d 515, the cases where the California court established a different standard on some self-incrimination issue.

The statute should not now be relied upon to save an independent state ground for deciding the voluntariness of a waiver.  Ramona R. held that section 940 is significant in the context of use immunities at juvenile fitness hearings.   Weaver held, with reservations, that section 940 is significant in the context of use immunities at probation and parole revocation hearings.   The meaning of section 940 should not be expanded beyond those limits.

 The use of section 940 to completely define the privilege against self-incrimination denigrates “one of the great landmarks in man's struggle to make himself civilized.”  (Griswold, The Fifth Amendment Today (1955) p. 7.)   The Fifth Amendment “reflects many of our fundamental values and most noble aspirations․”  (Murphy v. Waterfront Commission of New York (1964) 378 U.S. 52, 55, 84 S.Ct. 1594, 1596, 12 L.Ed.2d 678.)   The right has been referred to as “the mainstay of our adversary system of criminal justice.”   (Johnson v. New Jersey (1966) 384 U.S. 719, 729, 86 S.Ct. 1772, 1779, 16 L.Ed.2d 882.)   This “precious [right was] fixed in our Constitution only after centuries of persecution and struggle.   And in the words of Chief Justice Marshall, [it was] secured ‘for ages to come, and ․ designed to approach immortality as nearly as human institutions can approach it․’ ”  (Miranda v. Arizona, supra, 384 U.S. 436, 442, 86 S.Ct. 1602, 1611, quoting from Cohens v. Virginia (1821) 6 Wheat (19 U.S.) 264, 387, 5 L.Ed. 257.)   Section 940 does not fully define the privilege against self-incrimination and should not be relied on in analyzing a question of fundamental right.

V

Even if it be held that the privilege against self-incrimination is no more than is contemplated by the statutory privilege (and that therefore it is exempt from the “truth in evidence” directive to examine alleged violations of that right by federal standards), it must be seen that waiver of the privilege necessarily affects the right to counsel, protected under the Sixth Amendment and made applicable to the states under the Fourteenth Amendment due process clause by Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.   Both Escobedo v. Illinois (1964) 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and Miranda recognize this issue.  Escobedo is, in fact, expressly grounded on the Sixth Amendment right to counsel.  Miranda established that before statements made as the result of custodial interrogation can be admitted as evidence, it must be proven that the suspect voluntarily waived both Fifth and Sixth Amendment rights.   If not, a statement is deemed to have been compelled under the Fifth Amendment.   The remedy for denial of the right to counsel is exclusion of the evidence.  (Burgett v. Texas (1967) 389 U.S. 109, 114–115, 88 S.Ct. 258, 261–262, 19 L.Ed.2d 319;  Miranda v. Arizona, supra, 384 U.S. 436, 86 S.Ct. 1602.)

The issue of voluntariness of a waiver of a Sixth Amendment right, where the potential remedy is exclusion of evidence, is not one which may be resolved by reference to Ramona R.   The issue in Ramona R. was California's judicially created rule of immunity from use of a defendant's testimony during a juvenile fitness hearing at a later trial.  Ramona R. cannot be construed as establishing guidelines for waiver of the right to counsel.   The logic of In re Lance W. is compelling, however, for the same reasons noted in section III, ante;  and although the court specifically did not address the issue (In re Lance W., supra, 37 Cal.3d at p. 885, fn. 4, 210 Cal.Rptr. 631, 694 P.2d 744), the analysis fits.

 Where the remedy is exclusion of evidence, where the issue is not specifically exempted from the “truth in evidence law,” where the federal standards are clear, and where reliance on California cases would result in exclusion and federal cases would not, the “truth in evidence law” applies.

The right to counsel is not specifically addressed in any statutes exempted by the “truth in evidence law.”   It is not addressed in Ramona R.   The federal standard for measuring proof of voluntariness of a waiver of the right to counsel is clear.  Lego v. Twomey, supra, 404 U.S. 477, 92 S.Ct. 619, requires that voluntariness be proved by a preponderance of the evidence.   Application of the California standard, articulated in Jimenez, would require proof beyond a reasonable doubt and would result in exclusion of evidence which would be admissible under federal law.

 Proposition 8 requires that federal standards be applied where California rules would result in exclusion while federal rules would not.   The federal standard for measuring voluntariness of waivers is proof by a preponderance of the evidence.   So it must be in California as well.

VI

 Accordingly, for all the reasons stated in sections I, II, III, IV and V, we conclude that the trial court did not err when it applied the federal standard of proof by a preponderance of the evidence to its decision whether Markham had voluntarily waived his Miranda rights.   The judgment is affirmed.

I respectfully dissent.

I would subscribe to the position of the majority were it not for Evidence Code section 940, which I think is a statutory privilege exempted from Proposition 8.   Like Mount Everest, it is there.

In Ramona R. v. Superior Court (1985) 37 Cal.3d 802, 808–809, 210 Cal.Rptr. 204, 693 P.2d 789, our Supreme Court held that the exclusionary remedy precluding the use at trial of a defendant's statement made in an earlier probation revocation hearing (People v. Coleman (1975) 13 Cal.3d 867, 120 Cal.Rptr. 384, 533 P.2d 1024) was “essential to California's privilege against self-incrimination.”  People v. Weaver (1985) 39 Cal.3d 654, 660, 217 Cal.Rptr. 245, 703 P.2d 1139, held that the Coleman rule survived Proposition 8.   Relying on Ramona R., it held that “Coleman 's exclusionary rule may be deemed a ‘statutory’ rule because the self-incrimination statute itself (Evid.Code, § 940) merely adopts existing judicial decisions relating to the privilege.”  (Weaver, supra, at p. 659, 217 Cal.Rptr. 245, 703 P.2d 1139.)

For the same reason, the rule in People v. Jimenez (1978) 21 Cal.3d 595, 608, 147 Cal.Rptr. 172, 580 P.2d 672, that the voluntariness of a confession must be proved beyond a reasonable doubt, also survives Proposition 8.   The Jimenez rule is an expression of a constitutional principle and, like the Coleman exclusionary rule, may be deemed a “statutory” rule that is exempted from Proposition 8.  (People v. Weaver, supra, 39 Cal.3d 654, 659, 217 Cal.Rptr. 245, 703 P.2d 1139, relying on Ramona R. v. Superior Court, supra, 37 Cal.3d 802, 210 Cal.Rptr. 204, 693 P.2d 789.)

That section 940 is a statutory expression of a constitutional right does not make it any less a statutory privilege.   It is no more an “irrelevancy” as the majority suggests than is Mount Everest.   I would reverse.

FOOTNOTES

FOOTNOTE.  

1.   That section provides:“Right to Truth-in-Evidence.   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.”

2.   Evidence Code section 940 states:“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.”

3.   All further statutory references are to the Evidence Code unless otherwise specified.

4.   “Section 940 recognizes the privilege (derived from the California and United States Constitutions) of a person to refuse, when testifying, to give information that might tend to incriminate him.   [Citations.]  This privilege should be distinguished from the privilege stated in Section 930 (privilege of defendant in a criminal case to refuse to testify at all).“Section 940 does not determine the scope of the privilege against self-incrimination;  the scope of the privilege is determined by the pertinent provisions of the California and United States Constitutions as interpreted by the courts.  [Citations.]  Nor does Section 940 prescribe the exceptions to the privilege or indicate when it has been waived.   This, too, is determined by the cases interpreting the pertinent provisions of the California and United States Constitutions․”  (See Law Revision Com. com. to Evid.Code, § 940, West's Ann.Evid.Code (1966) p. 513.)

5.   In pertinent part, the analysis reads, at page 32:“Evidence.   Under current law, certain evidence is not permitted to be presented in a criminal trial or hearing.   For example, evidence obtained through unlawful eavesdropping or wiretapping, or through unlawful searches of persons or property, cannot be used in court.   This measure generally would allow most relevant evidence to be presented in criminal cases, subject to such exceptions as the Legislature may in the future enact by a two-thirds vote.   The measure could not affect federal restrictions on the use of evidence.”

6.   Assembly Committee on Criminal Justice, Analysis of Proposition 8, March 24, 1982 (herein, Analysis).

7.   Special Directive 82–6, contained in Criminal Practice After Proposition 8 (Cont.Ed.Bar 1982) pages 321, 355.

8.   And, as we will show below, to suppression of evidence on Sixth Amendment grounds, as well.

9.   Former Penal Code section 1323, enacted 1872, stated:“ ‘A defendant in a criminal action or proceeding cannot be compelled to be a witness against himself;  but if he offers himself as a witness, he may be cross-examined by the counsel for the people as to all matters about which he was examined in chief.   The failure of the defendant to explain or to deny by his testimony any evidence or facts in the case against him may be commented upon by counsel.’ ”  (See Legislative History to Evid.Code, § 413, Deering's Ann.Evid.Code (1966) p. 444.)

10.   Former Code of Civil Procedure section 2065, enacted 1872, stated:“ ‘A witness must answer questions legal and pertinent to the matter in issue, though his answer may establish a claim against himself;  but he need not give an answer which will have a tendency to subject him to punishment for a felony;  nor need he give an answer which will have a direct tendency to degrade his character, unless it be to the very fact in issue, or to a fact from which the fact in issue would be presumed.   But a witness must answer as to the fact of his previous conviction for felony unless he has previously received a full and unconditional pardon, based upon a certificate of rehabilitation.’ ”  (See Legislative History to Evid.Code, § 351, Deering's Ann.Evid.Code (1966) p. 379.)

11.   During that period, about 44 volumes of Supreme Court reports and about 195 volumes of appellate court reports were published.

HINTZ, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

ABBE, J., concurs.