PEOPLE v. REESE

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Court of Appeal, Third District, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. David R. REESE, Defendant and Appellant.

Crim. 12863.

Decided: January 31, 1986

Frank O. Bell, Jr., State Public Defender, Roy M. Dahlberg and Laurance S. Smith, Deputy State Public Defenders, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Ward A. Campbell and Roger E. Venturi, Deputy Attys. Gen., for plaintiff and respondent.

INTRODUCTION AND FACTS

Defendant David R. Reese appeals from a judgment sentencing him to state prison after a jury convicted him of second degree murder (Pen.Code, § 187) 1 (count I) and felony child abuse (§ 273a, subd. (1)) (count II).

In May of 1982 defendant began living with his girlfriend, Bobbe Atterberry, in her home in Weaverville.   Living with the couple were defendant's two young children, Alesha and David Jr. (also known as Little David or “L.D.”), and Bobbe's two children, five-year-old Katrina and the nine-month-old victim, Robert.   Defendant's brother, Robin Reese, slept in a shed next to the house.

On the morning of June 9, 1982,2 Bobbe asked defendant to watch the children while she went to her mother's house.   While Bobbe was gone her nine-year-old niece, Heidi Townsend, visited the Atterberry home and observed defendant pick up Robert and throw him down on a bed after telling him to stop crying.

When Bobbe returned she noticed Robert's lip was cut and swollen.   Defendant told Bobbe that Robert had placed some toilet paper in his mouth and had choked, and that defendant's efforts to remove the paper caused Robert's injuries.

Later that day, neighbor James Pierce observed defendant outside the Atterberry residence working on a car.   Robert was nearby, crying.   Pierce saw defendant grab Robert by the shoulders and forcibly sit him down.

At approximately sundown that evening Bobbe again left the children in defendant's care as she went to town with her friend, Norma Oldbury.   Bobbe's neighbor, Pauline Kothman, testified she saw Bobbe leave in the evening and within 10 minutes heard Robert start to cry.   She heard defendant yell at Robert to hush, but instead the baby began crying louder.   Kothman heard “hitting” sounds, which were repeated.   Finally Kothman heard defendant tell Robert to “shut up,” followed by a thud.   The baby stopped crying in midscream, and Kothman heard no more crying the rest of the evening.   When Bobbe returned home she changed Robert's diaper and noticed his leg was hurt.

Bobbe and Robin Reese put the children to bed sometime around 8 p.m.   At one point later in the evening Bobbe took Robert from his crib;  she and Robert then fell asleep together.   Later, around 10 p.m., Bobbe awoke in a “groggy” condition and put Robert back into his bed.   At that time Robert was fine.

Bobbe next awoke in the early hours of June 10 to the cries of Alesha.   When Bobbe looked in on the children she saw defendant standing over them, and thought he must be covering them up.   Bobbe went back to bed.

Bobbe was again awakened, this time by a loud “bang.”   Defendant brought Robert into Bobbe's bedroom, stating, “I can't get this kid breathing.”   Robert's face was bruised and bluish.

About half an hour later defendant and Robin took Robert to the hospital.   When they returned, defendant stated they were “an hour too late.”   Robert was dead on arrival.

The emergency room physician, Dr. Dubberstein, informed defendant of Robert's death.   Dubberstein testified defendant's reaction to the news was aloof and unemotional, unlike that of most people.   Defendant appeared shocked that the baby had actually died, but he did not appear grief-stricken.   Dubberstein thought defendant's reaction was consistent with medication he was taking for a back injury.

An autopsy revealed multiple abrasions and contusions about the baby's mouth.   Robert's body appeared pummeled and battered.   The body had other scars which were several months old and predated defendant's living with Bobbe.   The cause of death was a massive skull fracture, consistent with having been thrown against a wall or floor.   Death occurred within minutes, some 50–60 minutes before arrival at the hospital.

Prior to trial defendant admitted to the officers that he threw the baby onto the bed the morning of June 9.   Defendant executed a written statement admitting that he had physically abused Robert, which was introduced into evidence at trial.  (See footnote 5, post.)

Defendant testified he pushed the victim down on the bed on June 9 but did not intend to harm him.   He denied abusing the victim later in the evening.   The thrust of the defense was that either Bobbe Atterberry or Robin Reese must have inflicted the injuries causing death.   However, defendant also testified he had taken medications in excess of their prescribed dosage, a fact corroborated by the presence of valium in his blood after arrest.

Trial by jury commenced January 3, 1983, and a mistrial was declared January 18 when the jury was unable to reach a verdict.   A second jury trial commenced February 16, 1983.   On March 4, 1983, the jury returned verdicts of guilty on both counts.

Following denial of his motion for new trial, defendant was sentenced to state prison and now appeals.

DISCUSSION 3

I

II

 Defendant also claims his written statement to the police was involuntary and should not have been admitted.   We disagree.4

Defendant's statement,5 acknowledged that on the morning of June 9, 1982, he grabbed Robert by the face with his hand and slammed his head down on the mattress.   Defendant's statement does not acknowledge that he actually killed the child.   Moreover, uncontradicted expert testimony ascribed the cause of death to a skull fracture suffered by the child some 50–60 minutes before arrival at the hospital in the early morning hours of June 10.   Consequently, defendant's statement does not constitute a confession to the crime of murder.   However, the statement does, in effect, acknowledge that defendant willfully and unjustifiably inflicted physical pain and abuse under circumstances likely to cause the nine-month-old child great bodily harm.   The statement, admitting as it does all the facts necessary to constitute the offense of felony child abuse, constitutes a confession to that offense.  (§ 273a, subd. (1);  People v. Jimenez (1978) 21 Cal.3d 595, 601, fn. 2, 147 Cal.Rptr. 172, 580 P.2d 672;  People v. McClary (1977) 20 Cal.3d 218, 230, 142 Cal.Rptr. 163, 571 P.2d 620;  see also People v. Hogan (1982) 31 Cal.3d 815, 844, 183 Cal.Rptr. 817, 647 P.2d 93.)

 We expressly reject the argument that the Jiminez rule survives Proposition 8's truth-in-evidence provision 6 by virtue of the holding in Ramona R. v. Superior Court (1985) 37 Cal.3d 802, 808, 210 Cal.Rptr. 204, 693 P.2d 789.   While Ramona R. and People v. Weaver (1985) 39 Cal.3d 654, 217 Cal.Rptr. 245, 703 P.2d 1139, appear to establish that Evidence Code section 940 includes within its reach judicial decisions relating to the privilege against self-incrimination, we do not believe the Supreme Court has ordained that all judicial decisions relating to the privilege are thus saved from the basic relevant evidence provision of Proposition 8.   In Ramona R. the court relied upon the Law Revision Commission comment to section 940, which “declares that ‘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.’ ”  (37 Cal.3d at p. 808, 210 Cal.Rptr. 204, 693 P.2d 789;  emphasis added.)   The Ramona court then noted it “must determine whether the use immunities [at issue there] are mandated by the United States or California Constitutions, including judicial interpretation thereof.   If they are, they fall within the exception to section 28(d) for statutory privileges, and thus, survive the adoption of Proposition 8.”  (Ibid.)  The Ramona court determined the use immunity in that case was essential in order to protect California's privilege against self-incrimination, and thus, is required by the California Constitution.   (Id., at pp. 809–810, 210 Cal.Rptr. 204, 693 P.2d 789.)

By contrast, in People v. Jiminez, supra, 21 Cal.3d 595, 147 Cal.Rptr. 172, 580 P.2d 672, the Supreme Court expressly declined to reach the constitutional question asserted by the defendant there to justify application of the reasonable doubt standard.  (21 Cal.3d at p. 605, 147 Cal.Rptr. 172, 580 P.2d 672.)   The court concluded “the reasonable doubt standard is required as a judicially declared rule of criminal procedure.”  (Ibid.)  Thus, the Jiminez rule imposing the higher standard of proof is not compelled by the United States or California Constitutions, and accordingly it does not fall into the exception to the truth-in-evidence provision as a statutory privilege.  (See Ramona R., supra, 37 Cal.3d at p. 808, 210 Cal.Rptr. 204, 693 P.2d 789.)

It is argued that the decision in People v. Weaver, supra, concerning the “Coleman exclusionary remedy,” compels the conclusion that the Jiminez rule is also mandated by the California Constitution.   We find a significant difference, however, between the Jiminez standard of proof and the Coleman remedy (as subsequently interpreted by Ramona R.)   Like the rule in Jiminez, the Coleman exclusionary remedy was originally fashioned as “a judicial rule of evidence.”  (People v. Coleman (1975) 13 Cal.3d 867, 889, 120 Cal.Rptr. 384, 533 P.2d 1024.)   Then, in Ramona R. the Supreme Court expressly clarified the Coleman holding as compelled by the state Constitution, terming it “essential to California's privilege against self-incrimination.”  (Ramona R., 37 Cal.3d at p. 809, 210 Cal.Rptr. 204, 693 P.2d 789.)  Weaver simply recognized the Coleman exclusionary remedy fell into the exception to the truth-in-evidence provision as a statutory rule relating to privilege, because the remedy was defined to be constitutionally compelled in Ramona R.7

Jiminez, on the other hand, has not been so clarified.   As it stands, the Jiminez standard of proof is compelled by a policy consideration which postulates the higher standard of proof may “minimize[ ] the risk, ․ that a coerced confession will be admitted into evidence at trial.”  (21 Cal.3d at p. 606, 147 Cal.Rptr. 172, 580 P.2d 672.)   Additionally, the Jiminez court relied on the effect of Evidence Code section 405, where, “once the trial court has determined that a confession is voluntary and therefore admissible, the jury does not redetermine the voluntariness issue ․ and an appellate court must accept the trial court's resolution of conflicting evidence, ․”  (Id., at p. 607, 147 Cal.Rptr. 172, 580 P.2d 672.)   Finally, Jiminez relies upon the “salutary effect [of the reasonable-doubt standard] on the ultimate fact-finding process by reducing the possibility that coerced confessions in general will be admitted and thereby the possibility that coerced false confessions will be admitted.”  (Id., at p. 607, 147 Cal.Rptr. 172, 580 P.2d 672;  original emphasis.)   Thus, the Jiminez court concluded the “rule requiring the prosecution to prove the voluntariness of a confession beyond a reasonable doubt reflects sound judicial policy;  ․”  (Id., at p. 608, 147 Cal.Rptr. 172, 580 P.2d 672;  emphasis added.)

Based on the foregoing, we are unable to conclude the Jiminez standard of proof is compelled by the California Constitution, and it is equally clear the Supreme Court has not come to that conclusion.   As the Supreme Court has determined judicial decisions relating to the privilege against self-incrimination are statutory privileges insofar as they are “mandated by the ․ Constitutions” (Ramona R., supra, 37 Cal.3d at p. 808, 210 Cal.Rptr. 204, 693 P.2d 789), and the Jiminez standard is not so mandated, we do not regard the Jiminez standard of proof to be a statutory privilege which falls into the exception to the truth-in-evidence provision by virtue of Evidence Code section 940.

The obvious purpose of Proposition 8 was to conform California criminal procedure law to federal law.  (In re Lance W. (1985) 37 Cal.3d 873, 887–889, 210 Cal.Rptr. 631, 694 P.2d 744.)   Indeed, the explicit language of the truth-in-evidence provision compels the admission of relevant evidence except to the extent that the federal Constitution forbids its use.  ((Cal. Const., art. I, § 28, subd. (d);  In re Lance W., supra, at p. 888, 210 Cal.Rptr. 631, 694 P.2d 744.)   Thus, the indirect effect of Proposition 8 is to replace the Jiminez standard with the federal standard in Lego v. Twomey (1972) 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618, which requires a confession be found voluntary by a preponderance of the evidence.   Using Evidence Code section 940 to bootstrap those judicially-created rules related to the self-incrimination privilege which are not constitutionally compelled runs counter to the language and intent of Proposition 8.

III–VII 8

DISPOSITION

The judgment of conviction of second degree murder is reversed.  (People v. Smith, 35 Cal.3d 798, 201 Cal.Rptr. 311, 678 P.2d 886.)   The judgment of conviction of felony child abuse is affirmed.   Defendant is entitled to 154 days of local conduct credits.

I concur in parts I and VII of the majority opinion.   I respectfully dissent from part II, however, because I conclude the majority apply the wrong standard of proof—a preponderance of the evidence—to assess the voluntariness of defendant's confession.   In my view, the People must prove the voluntariness of the confession beyond a reasonable doubt.   Since I conclude the confession was not voluntary beyond a reasonable doubt, it should not have been admitted into evidence.   Defendant's conviction of felony child abuse (§ 273a, subd. (1)) must therefore be reversed.

As the majority note (maj. opn., fn. 2), defendants's offense occurred one day following passage of Proposition 8.  (See People v. Smith (1983) 34 Cal.3d 251, 257–263, 193 Cal.Rptr. 692, 667 P.2d 149.)   It must be therefore determined whether the “truth in evidence” provision of that initiative (Cal. Const., art I, § 28, subd. (d)) changed the standard by which voluntariness of a confession was theretofore tested in California.   Recent decisions of our Supreme Court compel the conclusion it did not.

Prior to enactment of Proposition 8 the People had to establish voluntariness of a confession beyond a reasonable doubt.  (People v. Jimenez (1978) 21 Cal.3d 595, 608, 147 Cal.Rptr. 172, 580 P.2d 672.)   In Jimenez, our Supreme Court held the reasonable doubt standard is required in California as a judicially declared rule of criminal procedure.  (P. 605, 147 Cal.Rptr. 172, 580 P.2d 672.)   The court found it unnecessary to determine whether article I, section 15 of the state Constitution 1 compels application of that standard in order to protect the important values embodied therein.  (Ibid.)

The “truth in evidence” provision of Proposition 8 does not require a different result.   As our Supreme Court recently explained, “Although article I, section 28, subdivision (d), of the state Constitution, by its terms forbids the exclusion of relevant evidence in any criminal proceeding, the provision further states that ‘Nothing in this section shall affect any existing statutory rule of evidence relating to privilege․’ ”  (People v. Weaver (1985) 39 Cal.3d 654, 659, 217 Cal.Rptr. 245, 703 P.2d 1139.)   Among the statutory privileges left untouched by Proposition 8 is Evidence Code section 940, which provides that “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.”  (See Ramona R. v. Superior Court (1985) 37 Cal.3d 802, 808, 210 Cal.Rptr. 204, 693 P.2d 789.)

The statutory privilege contained in Evidence Code section 940 applies to pretrial statements made out of court, including confessions and statements amounting to confessions.  (People v. Barrios (1985) 166 Cal.App.3d 732, 736–742, 212 Cal.Rptr. 644.)

Evidence Code section 940 adopts and incorporates existing judicial decisions relating to statutory privileges.   In Ramona R. our Supreme Court noted that “the language of that provision [section 940] is purposefully broad, and is meant to include within its reach judicial decisions relating to the privilege against self-incrimination.”  (Ramona R. v. Superior Court, supra, 37 Cal.3d at p. 808, 210 Cal.Rptr. 204, 693 P.2d 789;  see People v. Navarez (1985) 169 Cal.App.3d 936, 942–945, 215 Cal.Rptr. 519;  People v. Jacobs (1984) 158 Cal.App.3d 740, 750–751, 204 Cal.Rptr. 849.)   Consequently, if a judicially declared rule is required by the state constitutional privilege, in the sense it is “essential” to the privilege, the rule exists under the Constitution of the state of California, is therefore incorporated in Evidence Code section 940, and survives Proposition 8.  (People v. Weaver, supra, 39 Cal.3d at p. 659, 217 Cal.Rptr. 245, 703 P.2d 1139;  Ramona R. v. Superior Court, supra, 37 Cal.3d at p. 808, 210 Cal.Rptr. 204, 693 P.2d 789.)

The crucial question, then, is whether the Jimenez rule is required by the state constitutional privilege.

In Ramona R. our Supreme Court resolved a closely analogous question:  whether, following Proposition 8, the People were still precluded from using at any trial statements made by the minor at a prior fitness hearing.  (37 Cal.3d at p. 804, 210 Cal.Rptr. 204, 693 P.2d 789.)   In arriving at the conclusion the People were precluded, the court placed crucial reliance on People v. Coleman (1975) 13 Cal.3d 867, 120 Cal.Rptr. 384, 533 P.2d 1024, where the court had, as in Jimenez, adopted a judicially declared rule prohibiting use at trial of a defendant's statements made at a prior probation revocation proceeding.  (Ramona R., supra, 37 Cal.3d at pp. 809–810, 210 Cal.Rptr. 204, 693 P.2d 789.)   The Ramona R. court held the policies underlying Coleman demonstrated that, even though the Coleman rule had not been based on the state Constitution when promulgated, “because we deemed such a determination to be unnecessary” (id., at p. 809, 210 Cal.Rptr. 204, 693 P.2d 789), the rule was of constitutional origin.  (Ibid.)  Recently, in People v. Weaver, supra, the court held that the Coleman rule itself survived Proposition 8.  (39 Cal.3d at p. 660, 217 Cal.Rptr. 245, 703 P.2d 1139.)

Since the policies underlying the Coleman rule and the Jimenez rule are nearly identical, there is no persuasive reason to deny that Jimenez's true parentage is found in the California Constitution.

Thus, the Coleman rule was adopted in part to vindicate the policy of “maintaining ‘ “a fair state-individual balance” ’ at the subsequent trial ‘ “by requiring the government ․ in its contest with the individual to shoulder the entire load.” ’  [Citations.]  Together with the demands of due process that an accused be presumed innocent and that his guilt be established beyond a reasonable doubt [citations], the privilege against self-incrimination requires the prosecution in a criminal trial to produce sufficient evidence to establish the defendant's guilt before he must decide whether to remain silent or to testify in his own behalf.  [Citations.]”  (People v. Coleman, supra, 13 Cal.3d at p. 875, 120 Cal.Rptr. 384, 533 P.2d 1024, emphasis in original.)   The rule also reflected the law's “ ‘unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt.’ ”   (Id., at p. 878, 120 Cal.Rptr. 384, 533 P.2d 1024, quoting Murphy v. Waterfront Comm'n (1964) 378 U.S. 52, 55, 84 S.Ct. 1594, 1596, 12 L.Ed.2d 678, 681.)

In Jimenez, as in Coleman, our high court emphasized the central place of the privilege against self-incrimination in our system of jurisprudence.   (People v. Jimenez, supra, 21 Cal.3d at p. 605–606, 147 Cal.Rptr. 172, 580 P.2d 672.)   The court noted that the privilege “reflects many of the fundamental values and most noble aspirations of our society, including:  ‘our willingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt;  our preference for an accusatorial rather than an inquisitorial system of criminal justice;  our fear that self-incriminatory statements will be elicited by inhumane treatment and abuses;  ․ our respect for the inviolability of the human personality ․;  our distrust of self-deprecatory statements;  and our realization that the privilege, while sometimes a “shelter to the guilty,” is often “a protection to the innocent.”  Quinn v. United States, 349 U.S. 155, 162 [75 S.Ct. 668, 673, 99 L.Ed. 964].’  (Murphy v. Waterfront Comm'n (1964) 378 U.S. 52, 55 [84 S.Ct. 1594, 1596, 12 L.Ed.2d 678, 681].)”  (Id., at p. 605, 147 Cal.Rptr. 172, 580 P.2d 672.)   The court took notice of special safeguards which have been designed to preserve the right, including the rule that automatically reverses a conviction when an involuntary confession has been used, even though there is ample evidence aside from the confession to support the conviction.  (Ibid.)

Thus, the reliance of both Coleman and Jimenez on the same line of judicial authority (see, e.g., Murphy v. Waterfront Commission, supra, 378 U.S. at p. 55, 84 S.Ct. at 1596;  In re Winship (1970) 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368) demonstrates that both cases are grounded upon closely allied policy considerations.

Ramona R. tells us that these policy considerations are of constitutional magnitude in the context of a defendant's former testimony.   It would be wholly illogical to conclude, as the majority does, that these policies are of less significance in the context of involuntary confessions.

Consequently, in my view, the Jimenez rule survives the enactment of the “truth-in-evidence” provision of Proposition 8 for precisely the same reason the Coleman rule survives:  because it implements crucial policies which have already been recognized as being of constitutional dimension.  (People v. Weaver, supra, 39 Cal.3d at p. 659, 217 Cal.Rptr. 245, 703 P.2d 1139;  Ramona R. v. Superior Court, supra, 37 Cal.3d at p. 809–811, 210 Cal.Rptr. 204, 693 P.2d 789.)   That being the case, the Jimenez rule “may be deemed a ‘statutory’ rule [for purposes of Proposition 8] because the self-incrimination statute itself (Evid.Code, § 940) merely adopts existing judicial decisions relating to the privilege.  [Citation.]”  (Weaver, supra, 39 Cal.3d at p. 659, 217 Cal.Rptr. 245, 703 P.2d 1139.)   Because the Jimenez rule is deemed “statutory” it is exempted from the effects of Proposition 8 by the proposition's own terms.  (Cal. Const., art. I, § 28, subd. (d).)  It follows that defendant's confession must be held inadmissible unless proved by the prosectuion to be voluntary beyond a reasonable doubt.   (People v. Jimenez, supra, 21 Cal.3d at p. 605, 147 Cal.Rptr. 172, 580 P.2d 672.)   Now, to the merits of that question.

“If a confession is admitted at trial, the appellate court is required to examine the uncontradicted facts ‘to determine independently whether the trial court's conclusion of voluntariness was properly found.’  (People v. Berve (1958) 51 Cal.2d 286, 290 [332 P.2d 97].)  A confession is voluntary if the accused's decision to speak is entirely ‘self-motivated’ (People v. Steger (1976) 16 Cal.3d 539, 550 [128 Cal.Rptr. 161, 546 P.2d 665, 83 A.L.R.3d 1206] ), i.e., if he freely and voluntarily chooses to speak without ‘any form of compulsion or promise of reward․’  (People v. Trout (1960) 54 Cal.2d 576, 583 [6 Cal.Rptr. 759, 354 P.2d 231, 80 A.L.R.2d 1418].)  In deciding whether a statement is voluntary, ‘it is immaterial whether the pressure or inducement was physical or mental and whether it was express or implied.’   (Ibid.)  If the pressure or inducement was ‘a motivating cause’ of the decision to confess, the confession is involuntary and inadmissible as a matter of law.  (People v. Brommel (1961) 56 Cal.2d 629, 632 [15 Cal.Rptr. 909, 364 P.2d 845].)”  (People v. Thompson (1980) 27 Cal.3d 303, 327–328, 165 Cal.Rptr. 289, 611 P.2d 883.)

In determining whether a confession is voluntary, all surrounding circumstances must be considered—both the characteristics of the accused and the details of the interrogation.  (People v. Hogan (1982) 31 Cal.3d 815, 841, 183 Cal.Rptr. 817, 647 P.2d 93.)   Whether a confession is the product of psychological coercion depends on whether the influences brought to bear on the accused were such as to overbear petitioner's will to resist and not freely self-determined.  (Ibid.)

In this case the evidence respecting the crucial factual circumstances of defendant's confession is uncontradicted.   On June 14, 1982, defendant agreed to accompany two sheriff's deputies to their office for an interview, and the deputies went to Bobbe Atterberry's house to pick him up.   When the deputies arrived at the house, defendant was outside, in an altercation with Bob Atterberry, Bobbe's father.   Officer Sanborn observed Bob Atterberry chasing defendant around a vehicle and testified that “it would have been physical if he [Atterberry] caught David․”  Defendant testified without contradiction that Bob Atterberry threatened to “cut my throat” and “skin me alive.”

At the sheriff's office defendant was read his Miranda [Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694] rights and signed a waiver form.   Officer Sanborn testified that he observed defendant was “emotionally upset.”   The officer said he got defendant a cup of coffee because “after the confrontation he had just had with Bob Atterberry, I thought it would maybe help to kind of relax him a little bit also.”   Officer Sanborn testified he told defendant, “ ‘If you don't tell me the truth or if I don't have enough probable cause to take you into custody, you're going to be turned loose out there and Bob Atterberry would probably hurt you.’ ”  (Emphasis added.)   Defendant responded, “All right,” and then he confessed.

Under the federal constitution, law enforcement officers cannot use the threats of private citizens to compel a suspect to incriminate himself.  (See Payne v. Arkansas (1958) 356 U.S. 560, 565–566, 78 S.Ct. 844, 848–849, 2 L.Ed.2d 975, 979–980 [police chief told defendant 30 to 40 people were waiting outside jail and chief would keep them away if defendant confessed].)  Under the California Constitution, it is settled that threats of private citizens alone may suffice to render a confession involuntary:  “All that is important is the question whether the confession was the product of a rational intellect and free will.  [Citations.]”  (People v. Brown (1981) 119 Cal.App.3d 116, 129, 173 Cal.Rptr. 877;  People v. Haydel (1974) 12 Cal.3d 190, 199–202, 115 Cal.Rptr. 394, 524 P.2d 866 [refusal by private security guard to allow suspect to see wife rendered statement involuntary];  People v. Berve (1958) 51 Cal.2d 286, 293, 332 P.2d 97 [confession of accused abortionist, taken at police station after accused had been kidnapped by victim's husband and beaten, ruled involuntary].)  The slightest pressure, whether by way of inducement to confess, or threat if confession is withheld, is sufficient to require the exclusion of the confession.  (People v. Berve, supra, 51 Cal.2d at p. 291, 332 P.2d 97.)

Here, it is important to note that defendant confessed while he was, in Officer Sanborn's words, emotionally upset, immediately following the officer's suggestion that he would be released and suffer tangible harm at the hands of one with obvious and demonstrated animus for him.   Moreover, the officer's reference to “enough probable cause to take you into custody” precludes characterizing the officer's statement merely as “an exhortation ․ to tell the truth.”  (See People v. Jimenez, supra, 21 Cal.3d at p. 611, 147 Cal.Rptr. 172, 580 P.2d 672.)   The clear import of Officer Sanborn's remark was that only an incriminating statement would supply probable cause to keep defendant in custody and prevent his suffering harm at the hands of Atterberry.

On independent review of these uncontradicted facts (People v. Jimenez, supra, 21 Cal.3d at p. 609, 147 Cal.Rptr. 172, 580 P.2d 672) I cannot conclude defendant's confession was voluntary beyond a reasonable doubt.   The trial court thus erred in admitting the confession into evidence.   Defendant's conviction of felony child abuse (§ 273a, subd. (1)) must be therefore reversed.  (Id., at p. 605, 147 Cal.Rptr. 172, 580 P.2d 672.)

Since I would reverse defendant's convictions in their entirety for the reasons previously set forth, I have no occasion to examine the questions set forth in parts III through VI of the majority opinion, and I express no view with respect to the issues discussed therein.

FOOTNOTES

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

2.   This is one day after passage of Proposition 8.  (People v. Smith (1983) 34 Cal.3d 251, 257, 193 Cal.Rptr. 692, 667 P.2d 149.)   That initiative therefore applies to this case.  (Id., at p. 262, 193 Cal.Rptr. 692, 667 P.2d 149.)

3.   See footnote *, ante.

4.   Defendant made a pretrial motion pursuant to Evidence Code sections 402 and 405 to exclude the confession.   One ground offered by defendant was that his statement was coerced.   Officer Sanborn testified at the suppression hearing that while interrogating defendant he told defendant, “ ‘If you don't tell me the truth or if I don't have enough probable cause to take you into custody, you're going to be turned loose out there and Bob Atterberry would probably hurt you.’ ”Defendant also argued his statement was involuntary due to the medication he had been taking for his back injury.   The trial court denied the motion to suppress, finding the Miranda waiver was voluntary (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), and that Officer Sanborn's statement to the effect Bob Atterberry might hurt defendant did not support any theory of coercion.   The trial court was correct.   Officer Sanborn's statement was not a threat to do something improper or unwarranted under the circumstances.   Indeed, if probable cause to hold defendant were not forthcoming, Sanborn would have the duty to release defendant.   This is not a case where a lynch mob was waiting outside the jail, or where there was any certainty concerning Atterberry's actions.   There was no promise of leniency or other similar benefit.   (See People v. Johns (1983) 145 Cal.App.3d 281, 291, 193 Cal.Rptr. 182, citing People v. Johnson (1969) 70 Cal.2d 469, 479, 74 Cal.Rptr. 889, 450 P.2d 265.)Defendant also offered no proof to rebut the physician who examined defendant shortly after the statement was given and found defendant alert and capable of voluntarily waiving his rights.   The trial court did not state under what standard of proof it found the statement voluntary, which is the subject of our discussion, infra.

5.   “On Wednesday Morning, June 9, 1982, I was at home with Robert, Alesha, Katrina, Little David, and my brother, Robin.   Bobbe went down to her parents' house at around 10:30 a.m. to do some laundry.   I stayed home with the children while she was gone.   My brother Robin spent most the time down in the shop while Bobbe was gone.  [¶ ] Bobbe had been gone for about one hour.   The baby kept crying, and I couldn't get it to stop.   I gave the baby a bottle and changed its diaper.   It still was crying.   I lost my temper.   I grabbed the baby by the face with my right hand and slammed his head down on the mattress and yelled ‘shut up.’   He cried for a few more minutes and then went to sleep.  [¶ ] I examined the baby's head, but couldn't see any bruises or swelling, so I didn't think he was hurt.   If I thought he was injured, I would have taken him to the doctor right away.  [¶ ] Bobbe returned home at around 1:00–1:30 p.m.   I did not mention the incident to Bobbe.  [¶ ] The baby seemed fine the rest of the day.   I played with him and bounced him on my lap.  [¶ ] Later that night, I checked on Robert, Alesha and Little David.   It was at this time I found that Robert was not breathing or moving.   I blew air into his mouth and pounded on his chest and back.   I then took him to the hospital but it was too late.   The doctor told me the baby had been dead for about one hour.”

6.   Article I, section 28, subdivision (d) of the California Constitution provides:  “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.”For purposes of brevity we will refer to this Constitutional provision as the “truth-in-evidence provision.”

7.   While restating the Ramona R. holding on this subject, Weaver failed to include expressly the limitation that a judicially-created remedy be constitutionally compelled to be considered a statutory rule relating to the privilege against self-incrimination by virtue of Evidence Code section 940.   The omission is not significant.  Weaver merely restated the Ramona R. rationale in brief form, and had already concluded the Coleman remedy, unlike the Jiminez rule, was constitutionally compelled.  (People v. Weaver, supra, 39 Cal.3d 656, and fn. 2, 217 Cal.Rptr. 245, 703 P.2d 1139.)

8.   See footnote * ante.

1.   Article I, section 15 of the California Constitution provides in pertinent part:  “Persons may not ․ be compelled in a criminal cause to be a witness against themselves․”

REGAN, Acting Presiding Justice.

EVANS, J., concurs.

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