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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Edwardo Aguayo LEDESMA, Defendant and Appellant.

No. B023407.

Decided: November 24, 1987

Robert L. Sills, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Linda C. Johnson, Supervising Deputy Atty. Gen., and Robert M. Snider, Deputy Atty. Gen., Los Angeles, for plaintiff and respondent.

Appellant, Edwardo Aguayo Ledesma, and Ricardo Perez Moran 1 were jointly charged in an information with having murdered Isais Juarez (Pen.Code, § 187).2  Additionally, Moran was charged with having committed an assault with a deadly weapon (§ 245, subd. (a)(1)).   Prior to trial, Moran's motion made pursuant to section 995 was granted and the murder charge was dismissed.   He was then allowed to plead to assault with a deadly weapon.   Following a jury trial, appellant was found guilty of murder in the second degree and an allegation he had used a knife was found to be true (§ 187, 189, 12022, subd. (b)).  The appeal is from the judgment sentencing appellant to state prison for the term prescribed by law (15 years to life) plus an additional year for the use of the knife.


On Saturday, October 5, 1985, appellant and Moran were playing pool and drinking beer at Rosa's Cantina when the victim, Isais Juarez (Isais), walked in with Manuel Juarez (Manuel).   Isais and Manuel sat down at a table and ordered a beer.   At that time Patricia Soto (Patricia), whom appellant considered to be his girlfriend, served them a beer and stayed and talked to Isais until appellant called her over to the table where he was now seated.

Appellant and Patricia, who had spent several nights together the previous month, had a conversation, and Patricia was observed shaking her head “No”.   Patricia then left appellant and walked over to where Isais and Manuel were seated.   Appellant followed and asked Isais if he wanted to stay with Patricia.   Isais answered “Yes”, and appellant then ordered Isais a beer.

Suddenly Moran, who was bigger than Isais, grabbed Isais by the neck, picked him up, shoved him against a wall, and asked him if he was going to stay with Patricia.   When Isais said “Yes”, Moran struck Isais twice and shoved him out the door of the bar with appellant following.   Another barmaid hollered at Moran to leave the kid alone, but appellant told her to stay out of it.   Just prior to appellant's departure from the bar he was seen drawing a knife and opening it.

Once outside, the parties began fighting and apparently other parties got involved in the fracas because Manuel was being beaten on the ground by two other men.   Moran and Isais were trading blows and at one point Isais pushed appellant down.   Appellant then got up, approached Isais from the side, and stabbed him in the left side of his back.   Isais then turned towards appellant who stabbed him in the chest.   When the barmaids ran inside to phone for an ambulance, Moran stopped them from making the call.   Two of the women then drove to a public telephone booth where they made the call.   Upon returning to the scene, they found both Isais, Manuel and appellant had all departed.

Manuel, in the interim, had taken Isais to the home of Manuel's girlfriend.   From there, he was taken by ambulance to a hospital where he was pronounced dead at 9:46 p.m.

Later that night, appellant called Moran at the bar and learned the police had come.   Appellant then said “Oh, that's okay.   I guess we'll see what happens.”

The following Monday, appellant went to work and through a friend he made arrangements to see an attorney later that evening.   Before he was able to meet and confer with the attorney, he was arrested.   The attorney immediately went to the police station but was not allowed to speak to appellant until after appellant had made a statement and had been booked.   In that statement, appellant denied stabbing Isais.

At trial, appellant admitted stabbing Isais, and the events leading up to the fight, but he claimed he had been flashing a roll of money and was leaving when he was jumped by Isais and his friends.   He felt he was acting in self-defense because he was being robbed by Isais.   In addition to his own testimony, he also presented witnesses who backed up his version of the events of the evening, as well as presenting character evidence on his behalf.   Appellant was then impeached with his prior statement.

The Court Erred In Allowing Into Evidence Appellant's Statement:  “Proposition 8 Did Not Repeal Prior California Case Law As It Relates To Confessions.”

 In People v. Houston (1986) 42 Cal.3d 595, 230 Cal.Rptr. 141, 724 P.2d 1166, the California Supreme Court specifically repudiated the United States Supreme Court's reasoning in Moran v. Burbine (1986) 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410, and held the failure of the police to notify a defendant that his attorney was waiting to speak to him rendered a subsequent confession inadmissible under Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.   But the court was careful to point out that the case had arisen before the passage of Proposition 8 (see Cal. Const., art. 1, § 28, subd. (d) as adopted by initiative on June 8, 1982) and thus the court did not have to determine the effect of Proposition 8 upon the issue.   In this case, we are squarely confronted with the question.

Here, the facts reveal arrangements had been made for appellant to see an attorney on the Monday following the murder.   It was the intention of the attorney to have appellant surrender himself after he had conferred with him.   However, appellant was arrested prior to arriving at the attorney's office and instead was taken to the police station.   This was around 4:30 p.m.  Appellant's attorney was notified of the arrest, and the attorney immediately called the San Pedro Police Station and stated he represented appellant and did not want anyone questioning appellant until after he had talked to appellant.   He then went to the San Pedro Police Station arriving sometime before 6 p.m.  Upon arriving at the station, the attorney notified the desk sergeant he did not want appellant questioned before he could talk to him.   Once again he was informed appellant was not in the facility, but about 45 minutes later, a detective came out and stated appellant was then being booked.   The attorney then had to wait for over two hours before he was allowed to see appellant.   He was suspicious that appellant was, in fact, being interrogated because of the amount of time it was taking.

Meanwhile, starting about 6:10 p.m., appellant was being questioned in both Spanish and English by two detectives who did not know the attorney was trying to see appellant.   After being advised of his Miranda rights, appellant made a statement denying he had stabbed Isais.   Appellant never told the police officers he had an attorney, nor did he ever ask to have an attorney present while being questioned.   Further, appellant never indicated he had planned to talk to an attorney on the day he was arrested.

Following the hearing, the court ruled the confession admissible, and that appellant could be impeached should he take the stand.   The court reasoned that the Sixth Amendment right to counsel did not attach until such time as appellant requested an attorney.   Since appellant had waived the right to have an attorney present, there was not any violation of Miranda.

In relevant part, California Constitution, Article 1, section 28, subdivision (d) provides:

“Except as provided for by statute ․ relevant evidence shall not be excluded in any criminal proceeding, ․  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.”  (Emphasis added.)

In In re Lance W. (1985) 37 Cal.3d 873, 210 Cal.Rptr. 631, 694 P.2d 744, the court conducted a detailed examination of the above article and concluded that the section was intended to limit the power of the courts to exclude relevant evidence.  (Id., at p. 888, 210 Cal.Rptr. 631, 694 P.2d 744.)   As the court stated:

“The express intent of section 28(d) is to ensure that all relevant evidence be admitted.   That purpose cannot be effectuated if the judiciary is free to adopt exclusionary rules that are not authorized by statute or mandated by the Constitution.”  (Id., at p. 889, 210 Cal.Rptr. 631, 694 P.2d 744.)

There the court was concerned with the Fourth Amendment application of Proposition 8, an area of law of which there was no question that Proposition 8 was to apply.

Here, however, we are concerned with the application of Proposition 8 as it applies to the Fifth Amendment to the United States Constitution and article 1, section 15 of the California Constitution.   By its very terms, Proposition 8 states that it does not apply to any existing statutory rule of evidence relating to privilege.   In turn, Evidence Code section 940 provides:

“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.”

Since the passage of Proposition 8, the Supreme Court has discussed the application of Proposition 8 to the Fifth Amendment on two separate occasions.   First, in Ramona R. v. Superior Court (1985) 37 Cal.3d 802, 210 Cal.Rptr. 204, 693 P.2d 789, the court was faced with a fact situation where a minor was denied use immunity at her fitness hearing at a time when she was about to be declared unfit to be tried in the juvenile court.   The Supreme Court examined the issue and Evidence Code section 940 and stated:

“It is true that section 940 does not on its face refer to use immunities.   However, the language of that provision is purposefully broad, and is meant to include within its reach judicial decisions relating to the privilege against self-incrimination.”  (Id., at p. 808, 210 Cal.Rptr. 204, 693 P.2d 789;  emphasis added.)

After determining that the use immunity at a juvenile fitness hearing was compelled under the California Constitution, the court reversed the order finding the minor unfit and remanded for a new hearing.

In the next case, People v. Weaver (1985) 39 Cal.3d 654, 217 Cal.Rptr. 245, 703 P.2d 1139, the court was faced with basically the same issue as it determined whether the limited exclusionary rule of People v. Coleman (1975) 13 Cal.3d 867, 120 Cal.Rptr. 384, 533 P.2d 1024, survived the passage of Proposition 8.   The court concluded the rule survived and stated:

“We have recently held in a juvenile court case that the use immunities derived from Coleman fall within the foregoing exception, those immunities being ‘essential to California's privilege against self-incrimination.’  (Ramona R. v. Superior Court, supra, 37 Cal.3d at p. 809 [210 Cal.Rptr. 204, 693 P.2d 789].)  In other words, 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.  [Citation.]”  (People v. Weaver, supra, 39 Cal.3d at p. 659, 217 Cal.Rptr. 245, 703 P.2d 1139.)

The latter language has a direct application to this case and appears to be controlling.   In People v. Houston, supra, 42 Cal.3d 595, 230 Cal.Rptr. 141, 724 P.2d 1166, the court was confronted with the identical issue before this court.   Even though the court clearly indicated the case was a pre-Proposition 8 case, it nonetheless grounded its decision on the California Constitution.  (Id., at pp. 609–610, 230 Cal.Rptr. 141, 724 P.2d 1166.)   Specifically, the court stated:

“For the purposes of the California Constitution, we adhere in general to the reasoning adopted by the Burbine dissent, the American Bar Association, and the overwhelming majority of state courts which have addressed the issue.   We therefore hold that, whether or not a suspect in custody has previously waived his rights to silence and counsel, the police may not deny him the opportunity, before questioning begins or resumes, to meet with his retained or appointed counsel who has taken diligent steps to come to his aid.”  (Id., at p. 610, 230 Cal.Rptr. 141, 724 P.2d 1166;  fn. omitted.)

 Since the confession was inadmissible, it was also error for the trial court to allow appellant to be impeached by the use of illegally obtained statements.  (People v. Disbrow (1976) 16 Cal.3d 101, 127 Cal.Rptr. 360, 545 P.2d 272.)

In essence, the People have asked this court to ignore the prior decisions of the California Supreme Court and to judicially declare that the facts of this case involve a question of the Sixth Amendment, not the Fifth.   However, as an intermediate appellate court, we cannot do so.  (People v. Triggs (1973) 8 Cal.3d 884, 106 Cal.Rptr. 408, 506 P.2d 232;  Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937.)   If the rule is to be changed, it is for the Supreme Court, not this court to re-examine its prior holdings and if necessary restate a new rule.

Here, the statements given by appellant wherein he denied the stabbing clearly prejudiced his claim of self-defense.   As this court stated in People v. Farris (1981) 120 Cal.App.3d 51, 58, 174 Cal.Rptr. 424:

“People v. Disbrow, supra, 16 Cal.3d 101 [127 Cal.Rptr. 360, 545 P.2d 272], can be distinguished because it involved prior inculpatory admissions which a jury might view as evidence of guilt even in the face of a limiting instruction (16 Cal.3d at p. 112 [127 Cal.Rptr. 360, 545 P.2d 272] ), whereas that danger is absent from the case at bar which instead involves prior exculpatory statements.   However, People v. Rucker [1980] 26 Cal.3d 368 [162 Cal.Rptr. 13, 605 P.2d 843], emphatically reminds us that ‘if there has been a failure to comply with Miranda's safeguards, “any [resulting] extrajudicial statement by the defendant, whether inculpatory or exculpatory,” is inadmissible “either as affirmative evidence or for purposes of impeachment.” ’  (26 Cal.3d at p. 390 [162 Cal.Rptr. 13, 605 P.2d 843];  italics in original.)   As an intermediate appellate court, we are bound by these authoritative rulings.”


 Since the case will have to be retried, we shall only examine those contentions that are likely to arise upon a retrial.   Should either side wish to call the codefendant Moran, and he still has the right to assert his privilege against self-incrimination, the only person who will be able to grant him immunity will be the prosecutor.  (Daly v. Superior Court (1977) 19 Cal.3d 132, 143–146, 137 Cal.Rptr. 14, 560 P.2d 1193;  People v. Estrada (1986) 176 Cal.App.3d 410, 418, 221 Cal.Rptr. 922.)   In light of the evidence which showed appellant left the scene after the incidents and did not immediately turn himself in, it was proper for the court to give the “Flight Instruction” (CALJIC No. 2.52).  (People v. Cannady (1972) 8 Cal.3d 379, 105 Cal.Rptr. 129, 503 P.2d 585.)   Finally, the evidence was such that the jury could have concluded that appellant and Moran took Isais outside because of appellant's jealousy, and that appellant thereafter coldly and deliberately killed Isais.   In light of such evidence, there was no error in instructing on first degree murder, regardless of the prosecutor's concession in argument to the jury.  (People v. Anderson (1968) 70 Cal.2d 15, 27–30, 73 Cal.Rptr. 550, 447 P.2d 942.)

Any other alleged errors are not likely to reoccur upon a retrial.

The judgment is reversed.

I dissent.

In Moran v. Burbine (1986) 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410, the United States Supreme Court held that a suspect's voluntary confessions obtained after a waiver of rights in accordance with the dictates of Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 were not inadmissible under the Fifth or Sixth Amendments despite the unsuccessful attempt of an attorney to obtain access to the suspect during the course of interrogation.   In People v. Houston (1986) 42 Cal.3d 595, 600, footnote 2, 230 Cal.Rptr. 141, 724 P.2d 1166, it was observed that the California Supreme Court has “not been bound by federal interpretations of Miranda when applying it in the context of the state constitutional privilege [against self-incrimination.  Cal. Const., art. I, § 15].  [Citations.]”   In declining to follow Burbine, the California Supreme Court in Houston concluded that the admission in evidence of the defendant's confession under the foregoing circumstances “violated defendant's Miranda rights as they apply in California, and also thwarted his separate California constitutional right of access to counsel at a ‘critical stage’ of the proceedings against him.  [Fn. omitted.]”  (People v. Houston, supra, 42 Cal.3d at p. 600, 230 Cal.Rptr. 141, 724 P.2d 1166.)   As noted by the California Supreme Court in Houston, its “[a]pplication of the exclusionary rule” was “not affected by Proposition 8 (see Cal. Const., art. I, § 28, subd. (d), as adopted by Initiative on June 8, 1982), since the conduct on which the criminal charge is based is alleged to have occurred well before the passage of the initiative.  [Citation.]”  (Id., at p. 600, fn. 3, 230 Cal.Rptr. 141, 724 P.2d 1166.)

The present case involves a crime committed in 1985 and therefore subject to the provisions of Proposition 8.   Although the majority is of course correct in observing that we are bound as an intermediate appellate court by the decisions of the California Supreme Court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937), and that “[i]f the rule is to be changed, it is for the Supreme Court, not this court to re-examine [the Supreme Court's] prior holdings” (majority opn., ante, p. 880), I do not agree with the majority that decisions of the California Supreme Court have established definitively that all exclusionary rules involving the privilege against self-incrimination have survived the passage of Proposition 8.  Ramona R. v. Superior Court (1985) 37 Cal.3d 802, 807, 210 Cal.Rptr. 204, 693 P.2d 789, dealt solely with the limited issue of the “substantial protection” accorded a juvenile “against the use at trial of any statements she may make to her probation officer or to the court at her fitness hearing.”   People v. Weaver (1985) 39 Cal.3d 654, 659, footnote 2, 217 Cal.Rptr. 245, 703 P.2d 1139, expressing “several reservations regarding [the] analysis and ramifications” of Ramona R., held merely that Proposition 8 had not abrogated the rule of People v. Coleman (1975) 13 Cal.3d 867, 120 Cal.Rptr. 384, 533 P.2d 1024, excluding from evidence at trial the defendant's prior testimony given at a hearing conducted to determine whether parole or probation should be revoked.

In expressing my dissent from the majority's opinion, I find it unnecessary for the following reasons to address the issue whether the Supreme Court's holding in People v. Houston, supra, applies in a post-Proposition 8 situation such as the present one:  (1) the Supreme Court has granted a rehearing in People v. May (March 26, 1987, Crim. 24991) which, along with other cases presently on review before that court, involves the issue of Proposition 8's impact on prior holdings excluding evidence on self-incrimination grounds;  (2) the dissenting opinion in People v. Houston, supra, fully articulates the reasons favoring a reexamination of the ruling in Houston in the context of whether it should be followed in post-Proposition 8 cases; 1 (3) in any event, for the reasons that follow, I find the instant case readily distinguishable from Houston and affording an even stronger basis for upholding the trial court's admission of the defendant's statements than was presented in Burbine; and (4) even if the admission of appellant's statements (which denied culpability) were erroneous, I would find such error to have been harmless beyond a reasonable doubt.

In Houston the interrogating officer, having spoken by telephone with the suspect's attorney prior to the commencement of interrogation, knew of the attorney's desire to consult with his client before questioning began.   The officer said he would relay the message to the suspect although he was unsure whether the suspect was then at the station.   The suspect was never told by the interrogating officer or anyone else that the attorney had called or come to the station.   In the present case the record indicates without contradiction that the detectives who questioned appellant did not know that he had an appointment to see an attorney that afternoon, or that an attorney was attempting to see appellant or was at the police station.   The detectives did not leave the interview room during the course of their conversation with appellant.   The state of mind of the officers, especially those outside the interview room, should have no bearing on the validity of appellant's waiver of his Miranda rights.

In Houston (and in Burbine ) the suspect waived his Miranda rights without knowing that others had arranged for an attorney to represent him.   Significantly, in contrast, appellant testified at the hearing held pursuant to Evidence Code section 402 that he had an appointment to see an attorney the afternoon of his arrest, and had planned to confer with him and then surrender himself at the police station in the company of the attorney;  however, before arriving at the attorney's office he was arrested and taken to the police station.   After being advised of his Miranda rights, appellant waived those rights 2 and proceeded to give an exculpatory statement to the officers without telling them that he had planned to talk to an attorney that day.   Appellant never informed the officers, nor did he testify at the hearing held pursuant to Evidence Code section 402, that he had desired to consult with the attorney before speaking to the officers or have the attorney present during questioning.   Appellant's only exercise of his right to remain silent consisted of his total silence at the police station concerning his plan to confer with an attorney that afternoon;  in all other respects he exhibited no reluctance in communicating fully with the officers regarding his exculpatory version of the events in question.

It was no doubt because of this desire to vindicate himself in the eyes of the officers that appellant felt it unnecessary to summon the attorney before giving the officers his exculpatory account of the incident.   To allow appellant to choose this course of action and then obtain a reversal of his murder conviction would be to make a mockery of the constitutional protections which our higher courts have fashioned to ensure that police interrogation is conducted in a noncoercive manner.

In addition to concluding that admission of appellant's statements was not error under People v. Houston, supra, I am of the opinion that had it been error for the trial court to admit these exculpatory statements, such error would have been harmless beyond a reasonable doubt.

Appellant testified before the jury that upon leaving the bar he was robbed and beaten by the victim and his friends, and that he had stabbed the victim in self-defense.   Other defense witnesses corroborated appellant's version of the incident and testified as to appellant's good character.   Presumably in anticipation of being impeached by the statements which the trial court, over objection, had ruled admissible but which the jury had not yet heard, appellant on direct examination admitted telling the police that he had not stabbed the victim.   Appellant explained his statements as reflecting his fear of the police.   Appellant also testified he had told the police that he had been mugged outside the bar.   The prosecution cross-examined appellant concerning these statements to the police.

Despite the partial inconsistency between appellant's statements to the police and the testimony of appellant and other defense witnesses at the trial, I disagree with the majority's conclusion that the admission of appellant's statements “clearly prejudiced his claim of self-defense.”  (Majority opn., ante, p. ––––.)  Although under some circumstances the erroneous admission of a defendant's exculpatory statements has been held to constitute reversible error (see People v. Farris (1981) 120 Cal.App.3d 51, 58, 174 Cal.Rptr. 424), any such error in the present case would clearly have been harmless beyond a reasonable doubt in light of all the other eyewitness testimony introduced by the prosecution and the defense.  (Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.)   As the Supreme Court concluded in People v. Murtishaw (1981) 29 Cal.3d 733, 756, 175 Cal.Rptr. 738, 631 P.2d 446, a first-degree murder case, “defendant's statements, to the extent that they contradict the eyewitness testimony, are exculpatory․   We ․ conclude that even if the admission of defendant's statements was error, such error was harmless.” 3

For the foregoing reasons, I would affirm appellant's conviction of second degree murder.4



1.   Ricardo Perez Moran is not a party to this appeal.

2.   All statutory references are to the Penal Code unless otherwise specified.

1.   Among those articulated reasons is the following, which is particularly applicable to the present case:  “[T]he defendant in this case had already rejected the opportunity to communicate with and have counsel present;  the ‘communication’ involved thus was a one-way street, from an attorney seeking access to a suspect who had already waived his right to talk with him.   The Fifth Amendment right against self-incrimination is the individual suspect's right, not his attorney's.”  (People v. Houston, supra, 42 Cal.3d at p. 620, fn. 1, 230 Cal.Rptr. 141, 724 P.2d 1166 [Lucas, J., dissenting], emphasis in original.)

2.   Appellant's counsel conceded at the hearing:  “The defendant has not challenged that he [was] advised and understood and knowingly and intelligently, under the circumstances, waived whatever the rights were under Miranda.”

3.   The claimed error in Murtishaw involved the investigating officers' destruction of their handwritten notes of the interrogation, allegedly in violation of People v. Hitch (1974) 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361.

4.   I find it unnecessary to address appellant's other claims of error since the majority's opinion does not find them to be meritorious.

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

KINGSLEY, J., concurs.

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