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Court of Appeal, First District, Division 5, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Derek KIMBLE, Defendant and Appellant.


Decided: February 05, 1986

David A. Nickerson, Court-appointed counsel, San Francisco, for defendant and appellant. John K. Van de Kamp, Atty. Gen., John W. Runde, Blair W. Hoffman, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Derek Kimble was convicted by a jury of attempted second degree murder (Pen.Code, §§ 664, 187) and robbery (Pen.Code, § 211), both acts committed with great bodily injury (Pen.Code, § 12022.7).   We reverse because even after Proposition 8 defendant's statements, obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, may not be used to impeach him.   An erroneous ruling permitting the admission of such statements was not harmless beyond a reasonable doubt.

On April 26, 1984, at about 11:15 p.m., the victim, Shawn Roberts, was approached and asked if he wanted to buy a “joint.”   Roberts asked what kind;  the man replied, “Thai.”   Roberts identified the man as Black, about five feet, nine inches, wearing “dark clothes, possibly a tan jacket, maybe blue jeans.”   Roberts later identified him as the defendant.   About 30 to 45 seconds later, another man arrived, whom Roberts could not see clearly.   Suddenly, Roberts was punched in the face, by whom he could not tell.   The two men proceeded to beat Roberts.   One of them said, “You'd better shut up or we're going to break your neck, and then you'll be dead.”   They took Roberts' wallet, his bank book, cigarettes, and his driver's license.   Roberts testified that the two men asked for pot.   When he replied that he did not have any, one said, “Okay.   Let's throw him over.”   The two men lifted him over the rail and tossed him to the pavement, 23 feet below.

Roberts was conscious as he lay on the street, but his heel, right leg and vertebra were broken.   When San Mateo Police Officer Carlos DeLa Fuente arrived, Roberts was unable to describe his attackers other than to say they were males.   Officer DeLa Fuente found a watch with a broken crystal lying next to Roberts, which did not belong to the victim.   Later that night, San Mateo Police Officer Dan Brooks observed defendant standing on B Street, about 25 to 35 yards from the scene of the assault.   Defendant was drinking a beer, which is a violation of the city ordinance, and Officer Brooks approached him.   Defendant was wearing a tan jacket and blue jeans.   The officer learned defendant had an outstanding traffic warrant and arrested him.   When he mentioned the Roberts robbery, defendant bolted.   The officer gave chase and ultimately caught him.

At the hospital, Roberts viewed over 40 mug shots and selected 5 as being similar to his assailants.   Later, Officer DeLa Fuente showed Roberts a photographic lineup, from which Roberts selected two pictures;  one was defendant's.   Three weeks after the assault, Roberts viewed a physical lineup which included defendant.   He selected someone other than defendant.

Roberts testified that the suspects took 41, $1 bills.   This represented tips Roberts collected at work earlier that day.   Roberts stated that the bills were folded in his pocket and all were facing the same direction.

During the booking search at the station, Officer Lawrence Wright found 38, $1 bills folded in defendant's front pocket, 34 of which were folded with Washington's picture facing the same direction.   The remaining bills were folded randomly.   Officer Wright gave the money to Officer Gwendolyn Raine, who testified that all 38 bills were facing the same way.   Inexplicably, the money was not inventoried but was given back to defendant.   Prior to being transported to the county jail, defendant left $15 in an envelope for his mother.   When he was booked in county jail, defendant had only $9.05 on his person.   There was no explanation where the rest of the money went.

Defendant's mother, Leola Graves, was called by the People and asked if she could identify the watch found next to Roberts as defendant's.   She said she did not recognize it.   She was impeached by Officer Robert Ross who had interviewed Graves after defendant's arrest.   He testified that she positively identified the watch as defendant's.   This conversation was tape-recorded.

Defendant did not testify.   His motion to exclude incriminating statements made in violation of his Miranda rights was denied.   The only defense witness, an attorney, testified that he attended a physical lineup which included the defendant, and that defendant looked substantially different in the physical lineup than he did in the photographic lineup.


In support of his first contention, defendant argues that Proposition 8 did not affect California law which bars the use of statements taken in violation of Miranda v. Arizona, supra, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, for impeachment purposes.1  Prior to trial, the parties stipulated that officers elicited four statements from defendant without first advising him of his constitutional rights.   The record does not disclose the nature of these statements.   After the trial court denied defendant's motion to exclude these statements for impeachment, he refused to testify.

 Under federal law, statements by a defendant in violation of his constitutional rights may be used for impeachment purposes.  (Harris v. New York (1971) 401 U.S. 222, 225–226, 91 S.Ct. 643, 645–46, 28 L.Ed.2d 1.)   Under California law prior to Proposition 8, these statements were inadmissible for impeachment purposes.  (People v. Disbrow (1976) 16 Cal.3d 101, 113, 127 Cal.Rptr. 360, 545 P.2d 272.)   Relying on the truth-in-evidence provision of Proposition 8 (Cal.Const., art. I, § 28, subd. (d)), the People successfully argued at trial that federal law governs.   Relying on Ramona R. v. Superior Court (1985) 37 Cal.3d 802, 210 Cal.Rptr. 204, 693 P.2d 789, defendant argues that section 28, subdivision (d) expressly preserves the state law barring the use of illegally obtained statements for impeachment.   We agree.

The truth-in-evidence provision of California Constitution, article I, section 28, subdivision (d) provides:  “Except as provided by statute hereafter enacted by 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․  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.”  (Emphasis added.)

In Ramona R., the court had to decide whether testimony given by a minor at a fitness hearing could be used as substantive evidence at the jurisdictional hearing.   Several state court decisions held that this was error.   The issue was whether these decisions survived Proposition 8.   The Ramona R. court held that state law mandating use immunities for statements given at a juvenile court fitness hearing is an existing statutory rule relating to privilege, which is found in Evidence Code section 940.  (Ramona R. v. Superior Court, supra, 37 Cal.3d at pp. 808–809, 210 Cal.Rptr. 204, 693 P.2d 789).   That section 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.”   Concluding that the broad language of Evidence Code section 940 preserves self-incrimination rights as developed under either the state or federal Constitutions, the court held that use immunities under the state Constitution fall within the exception of article I, section 28, subdivision (d) and, thus, survive Proposition 8.  (Ibid.)  The Ramona R. court expressly reserved the question whether such testimony may be used for impeachment purposes.  (Id., at p. 807, fn. 2, 210 Cal.Rptr. 204, 693 P.2d 789).   See also People v. Weaver (1985) 39 Cal.3d 654, 217 Cal.Rptr. 245, 703 P.2d 1139, where the use immunity rule applicable to testimony at a probation revocation hearing was held to come within the exception for preexisting statutory privileges.  (Id., at pp. 658–660, 217 Cal.Rptr. 245, 703 P.2d 1139.)

The Attorney General attempts to limit the scope of Evidence Code section 940 and argues that it applies only to a witness' privilege;  i.e., the privilege to refuse to give incriminating testimony.   Thus, the Attorney General contends Evidence Code section 940 does not apply to nontestimonial matters such as extrajudicial statements.   This is a good argument, were it not for Disbrow.   There, the court held that the privilege against self-incrimination in article I, section 15 of the state Constitution also barred the use of illegally obtained statements for impeachment purposes.  (People v. Disbrow, supra, 16 Cal.3d at p. 113, 127 Cal.Rptr. 360, 545 P.2d 272.)   This is a privilege which comes within the scope of Evidence Code section 940 and, as such, is exempted from the effect of Proposition 8.  (See Ramona R. v. Superior Court, supra, 37 Cal.3d at p. 808, 210 Cal.Rptr. 204, 693 P.2d 789.)   Most cases which have addressed this issue have reached the same conclusion.  (See People v. Clark (1985) 171 Cal.App.3d 889, 894, 217 Cal.Rptr. 819;  People v. Navarez (1985) 169 Cal.App.3d 936, 215 Cal.Rptr. 519;  People v. Givans (1985) 166 Cal.App.3d 793, 212 Cal.Rptr. 762;  People v. Barrios (1985) 166 Cal.App.3d 732, 212 Cal.Rptr. 644;  People v. Jacobs (1984) 158 Cal.App.3d 740, 204 Cal.Rptr. 849.)2

 Our conclusion should not be interpreted as a license to commit perjury.  (See Oregon v. Elstad (1985) ––– U.S. ––––, ––––, 105 S.Ct. 1285, 1292–93, 84 L.Ed.2d 222, 231;  Harris v. New York, supra, 401 U.S. at pp. 225–226, 91 S.Ct. at pp. 645–46.)   But for the compulsion of Disbrow, we would admit uncoerced but unwarned statements for the limited purpose of impeachment.   Cross-examination has been described as “the greatest legal engine ever invented for the discovery of truth.”  (5 Wigmore, Evidence (Chadbourn rev.ed. 1974) § 1367, p. 32.)   Once defendant elects to testify, he is not entitled to a “false aura of veracity.”  (People v. Beagle (1972) 6 Cal.3d 441, 453–454, 99 Cal.Rptr. 313, 492 P.2d 1.)   The privilege against self-incrimination does not include the right of an accused to lie on his own behalf at trial.  (People v. Coleman (1975) 13 Cal.3d 867, 892, 120 Cal.Rptr. 384, 533 P.2d 1024.)   In Coleman, upon which Weaver is largely based, the court found no constitutional obstacle to using defendant's probation revocation hearing testimony for impeachment purposes at trial of the underlying charge.  (Ibid.)  We likewise believe that where the extrajudicial statements are voluntarily made, albeit without the Miranda warnings, that their limited use for impeachment purposes is consistent with fairness and due process.

Regardless of our personal views, we must follow Disbrow.  (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)   We conclude the trial court erred in ruling that defendant could be impeached with the illegally obtained statements.

 Since the ruling violated the constitutional right to be free from self-incrimination, the error must be evaluated under Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.   Thus, the judgment can be affirmed only if this court declares the error was harmless beyond a reasonable doubt.  (At pp. 23–24, 87 S.Ct. at pp. 827–28;  also In re D.L. (1975) 46 Cal.App.3d 65, 72, 120 Cal.Rptr. 276.)

Here, defendant did not testify and we have no idea what his defense would have been.   Defendant called no witnesses except for the attorney mentioned above.   The victim, Roberts, saw only one of his assailants and only for a brief period.   This explains why his identification testimony was equivocal.   Although he identified defendant's photograph and positively identified defendant at the preliminary hearing, he failed to pick him out of a physical lineup.   He did not recognize defendant at trial, although he did identify defendant's voice as one of the assailants.   Defendant's mother identified the watch found next to the victim as defendant's.   Further, defendant was arrested with bills virtually identical in amount and arrangement as those taken from the victim.   Although there was evidence linking defendant to the crime, it was not overwhelming.

The missing money and the inability of the victim to identify his assailant leave too many unanswered questions and force us to speculate as to the effect of defendant's testimony on the outcome of the trial, about which we know nothing.   As our Supreme Court stated in People v. Rist (1976) 16 Cal.3d 211, 127 Cal.Rptr. 457, 545 P.2d 833, “[W]e cannot presume to know what defendant's testimony might have been had he testified, as might well have happened had the [error not occurred].  It is thus not possible for us to determine on the record before us the degree of prejudice suffered by defendant because of the ․ error ․ and the usual tests for concluding that an error requires the reversal of a judgment of conviction are not applicable.  (See People v. Hill (1974) 12 Cal.3d 731, 769, 117 Cal.Rptr. 393, 528 P.2d 1․)  Defendant is entitled to a new trial․”  (Id., at p. 223, 127 Cal.Rptr. 457, 545 P.2d 833, fn. omitted;  see also People v. Spearman (1979) 25 Cal.3d 107, 118–119, 157 Cal.Rptr. 883, 599 P.2d 74.)

 We cannot emphasize too strenuously that our decision to reverse is not to be taken as approval of a system which encourages a defendant to perjure himself with impunity.   Ideally, our legal procedures should be error free and of unimpeachable integrity.   But since justice is a uniquely human notion, the system we develop to advance that aim may sometimes fall short of the high goal which we have set for ourselves.   Every defendant is entitled to a trial that is fair;  there is no right to a perfect trial and, indeed, there is no such thing.   Working, as we must, within the parameters of a system which relies on people, we must give due proportion to the errors that often crop up.   In such a system, there must be room for harmless error.

Overloading the legal system with retrials and rehearings only serves to undermine confidence in the judiciary.   Pity the trial judge who must retry a case because a defendant can conform his answers, not to the truth, but to a self-serving version of the events.   It may be fairly argued that the search for truth has become more rhetoric than real;  that we may have arrived at a point where a defendant can lie without fear that uncoerced statements, voluntarily given, will not be used to impeach his testimony.   We think it is time for our Supreme Court to reexamine Disbrow.


 For purposes of retrial we address the remaining issues.   The trial court erred in instructing the jury that they may convict defendant of attempted second degree murder without finding a specific intent to kill.   After instructing the jury on the elements of murder, the court instructed the jury that they could convict defendant of attempted second degree murder upon a finding of implied malice.   The court also expressly directed that the jury need not find that the defendant intended to kill the victim in order to convict him of attempted second degree murder.   This was error as the People concede.  (People v. Guerra (1985) 40 Cal.3d 377, 220 Cal.Rptr. 374, 708 P.2d 1252.)  “ ‘Specific intent to kill is a necessary element of attempted murder.   It must be proved, and it cannot be inferred merely from the commission of another dangerous crime.’  [Citation].”  (People v. Collie (1981) 30 Cal.3d 43, 61–62, 177 Cal.Rptr. 458, 634 P.2d 534, fn. omitted.)   Viewing the instructions as a whole, we cannot state that the error was harmless.   We cannot infer that the jury found the specific intent existed under other properly given instructions.  (See People v. Garcia (1984) 36 Cal.3d 539, 554–555, 205 Cal.Rptr. 265, 684 P.2d 826;  People v. Sedeno (1974) 10 Cal.3d 703, 721, 112 Cal.Rptr. 1, 518 P.2d 913.)   The conviction for attempted second degree murder must be reversed on this ground also.


 Defendant also contends that the trial court erred in denying his Hitch motion.  (People v. Hitch (1974) 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361.)   The government has the duty to preserve and disclose evidence material to the issue of guilt or innocence of the defendant.  (Id., at p. 652, 117 Cal.Rptr. 9, 527 P.2d 361;  People v. Moore (1983) 34 Cal.3d 215, 219, 193 Cal.Rptr. 404, 666 P.2d 419.)   The defendant has the burden of showing the materiality of the missing or destroyed evidence.   Having sustained this burden, the People must demonstrate that they adhered to “rigorous and systematic procedures designed to preserve [the evidence].”  (People v. Hitch, supra, 12 Cal.3d at pp. 652–653, 117 Cal.Rptr. 9, 527 P.2d 361.)   Failure to meet this burden results in sanctions;  e.g., test results or testimony may be excluded from evidence.  (People v. Moore, supra, 34 Cal.3d at p. 223, 193 Cal.Rptr. 404, 666 P.2d 419.)

At defendant's booking at the city jail, two officers observed that defendant had $38 dollars, 34 of which were folded in the peculiar manner testified to by the victim.   The money was not preserved but was given to defendant.   He left $15 for his mother and kept the rest.   Upon booking at the county jail, he had less than $10 remaining.   The trial court denied the Hitch motion on the ground that the money itself was not material;  only the order of the bills.   Also, the court concluded that the police cannot be blamed for evidence destroyed by defendant.

 Both the amount of the money, almost the same amount as was stolen from the victim, as well as the peculiar arrangement were material facts.   Under Hitch, the police had a duty to preserve and disclose this evidence.   But it cannot be said that defendant was prejudiced since he had control over this evidence.   The evidence had been “disclosed” to him and, thus, he could not claim surprise or other disadvantage at trial.  (People v. Hitch, supra, 12 Cal.3d at pp. 648–649, 117 Cal.Rptr. 9, 527 P.2d 361.)   Based on the unique set of circumstances, the trial court properly refused to impose sanctions on the prosecution.


Defendant also contends that his motion to dismiss the information (Pen.Code, § 995) should have been granted because the prosecution did not disclose a witness' interview conducted prior to trial.   We disagree.   The witness, Walter Washington, claimed to have been with defendant 30 minutes before the crime and seeing defendant with a “big wad of money.”   The interview was conducted two weeks before the preliminary hearing and a copy of the transcript was given to defense counsel on the first day of trial.   The report had not been previously turned over because of the witness' fear of retaliation.   During the trial, Washington was questioned out of the hearing of the jury, and defense counsel indicated he did not need Washington's testimony.

 The prosecution must disclose material evidence to the defense.   (In re Ferguson (1971) 5 Cal.3d 525, 532, 96 Cal.Rptr. 594, 487 P.2d 1234.)   Here, the witness was known to defendant and, presumably, so was any exculpatory evidence.   The government did not try to hide the witness or prevent defendant from taking his statement.   Under these circumstances, there was no suppression of evidence.   Even if we conclude that the prosecutor failed in his duty to disclose these statements prior to trial, that failure was unintentional and was done without malice.   In such cases, the offended party is given an opportunity to meet the new evidence.  (People v. Reyes (1974) 12 Cal.3d 486, 502, 116 Cal.Rptr. 217, 526 P.2d 225.)   Here, the witness was brought into court for disobeying a subpoena.   Apparently satisfied that the witness could not aid his case, defense counsel allowed the witness to leave.   We find no prejudice to defendant.   We need not address defendant's remaining contention.

The convictions of robbery and attempted second degree murder are reversed.


1.   The Attorney General relies on Luce v. United States (1984) 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443, and asserts that defendant is precluded from raising this issue because he failed to make an offer of proof.  Luce was based on the federal rules of evidence and was limited to the defendant's right to preserve his claim of felony-impeachment error for appellate review.  (At pp. –––– – –––– [105 S.Ct. at pp. 462–464;  83 L.Ed.2d at pp. 447–448].)  This issue is before our Supreme Court in People v. Collins (Crim. 24784, rev. granted Aug. 30, 1985) and other cases.   No state or federal constitutional rights were affected;  for this reason, we find Luce to be inapplicable to the instant matter.

2.   One Court of Appeal case which reached a contrary conclusion is pending before the Supreme Court (People v. May (Crim. 24991, rev. granted Nov. 27, 1985).)

LOW, Presiding Justice.

KING and HANING, JJ., concur.

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