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Court of Appeal, Third District, California.

IN RE: RANDY JOE H., a Person Coming Under the Juvenile Court Law. PEOPLE of the State of California, Plaintiff and Respondent, v. RANDY JOE H., Defendant and Appellant.

Civ. 22596.

Decided: March 20, 1984

James J. Haight, Haight & Lieberman, San Francisco, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Joel E. Carey and J. Robert Jibson, Deputy Attys. Gen., for plaintiff and respondent.

The minor appeals from an adjudication of wardship upon a finding that he violated Penal Code section 484, petty theft.   The minor's confession was admitted into evidence.   It is claimed this ruling was error in that an improper standard of proof of voluntariness was applied in determining admissibility.

The minor, although only 13 years old, had been previously adjudged a ward and had numerous contacts with the law.


An evidentiary hearing was held pursuant to Evidence Code section 405 to determine voluntariness of the confession.   The sole witness was a police officer.1

Two officers went to the minor's home.   After Miranda 2 warning and waiver, in the presence of his mother, the minor was questioned for five minutes.   The minor asserted he had found the stolen property in question.   With the minor's consent, one officer and the minor went to the porch, out of the mother's presence.   The minor was not advised that he had a right to have his mother present.   The officer testified his reason for questioning on the porch was his belief that one normally receives exculpatory statements by a minor in the presence of the parent.   Ten minutes of questioning on the porch elicited the confession.   At some time, either inside or on the porch, the minor asked what could happen to him.   The officer told him that depended on his investigation and the options ranged from counseling with the parent to juvenile hall booking.   While inside the house, the officer stated he had talked to other witnesses.

In ruling on admissibility, the trial court was cognizant of People v. Jimenez (1978) 21 Cal.3d 595, 147 Cal.Rptr. 172, 580 P.2d 672, which requires proof of voluntariness of a confession beyond a reasonable doubt.   The trial court concluded the Jimenez standard was changed by section 28, subdivision (d), of article I of the California Constitution (hereafter referred to as section 28, subdivision (d)), which provides in part:  “[R]elevant evidence shall not be excluded in any criminal proceeding, ․ 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.”

The trial court then considered the totality of the evidence and concluded that the confession was proven voluntary by a preponderance of the evidence, expressly adopting the rule of Lego v. Twomey (1972) 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618.

We have independently reviewed the facts and agree with the trial court's determination that, based on a totality of the circumstances and on the standard of a preponderance of the evidence, the confession was voluntary.   (In re Jessie L. (1982) 131 Cal.App.3d 202, 215–216, 182 Cal.Rptr. 396;  People v. Lara (1967) 67 Cal.2d 365, 62 Cal.Rptr. 586, 432 P.2d 202.   In re Charles P. (1982) 134 Cal.App.3d 768, 184 Cal.Rptr. 707;  People v. Berve (1958) 51 Cal.2d 286, 290, 332 P.2d 97;  People v. Andersen (1980) 101 Cal.App.3d 563, 575–583, 161 Cal.Rptr. 707;  In re Anthony J. (1980) 107 Cal.App.3d 962, 972–974, 166 Cal.Rptr. 238.



 We hold that pursuant to section 28, subdivision (d), the preliminary fact of voluntariness of a confession is now to be determined according to the Constitution of the United States and such other federal constitutional standards as are applicable.   However, this holding is limited to the single issue of the burden of proof standard on voluntariness of a confession;  other questions under section 28, subdivision (d), must be treated on a case-by-case basis.3  (Brosnahan v. Brown (1982) 32 Cal.3d 236, 241, 186 Cal.Rptr. 30, 651 P.2d 274.)

We observe the Brosnahan court has generally found that Proposition 8, the initiative measure which includes section 28, subdivision (d), is constitutional, and answered numerous questions thereon.   We therefore address only those unresolved questions peculiarly involved in this factual context.


 The language of section 28, subdivision (d), places no limits on the admissibility of relevant evidence.   If the section is given a literal meaning, it purports to sanction a violation of the federal Constitution.   (Lego v. Twomey, supra, 404 U.S. at p. 489, 92 S.Ct. at p. 626, 30 L.Ed.2d at p. 627;  Jackson v. Denno (1964) 378 U.S. 368, 377, 84 S.Ct. 1774, 1781, 12 L.Ed.2d 908, 916.)   The Lego and Jackson decisions hold that implicit within the Fourteenth Amendment of the United States Constitution is the guarantee that confessions not proven by a preponderance of the evidence may not be admitted in evidence against an accused.   The Constitution of the United States is the supreme law of the land.  (U.S. Const., Amend. VI.)   Whenever the constitutional powers of the federal government and those of any state come into conflict, the latter must yield.  (See City of San Diego v. Van Winkle (1945) 69 Cal.App.2d 237, 246, 158 P.2d 774, and cases cited therein.)

We turn to settled rules of construction to determine the meaning of section 28, subdivision (d).

 When a provision of the state Constitution is capable of two constructions, one of which would cause a conflict with the federal Constitution, the other must be adopted.  (Steinhart v. Superior Court (1902) 137 Cal. 575, 579, 70 P. 629;  Otsuka v. Hite (1966) 64 Cal.2d 596, 606–607, 51 Cal.Rptr. 284, 414 P.2d 412.)   It is the duty of the courts to adopt that construction which will uphold constitutionality whenever possible.  (People v. Globe Grain & Mill. Co. (1930) 211 Cal. 121, 127, 294 P. 3.)   When dealing with claims of overbreadth, we may and should interpret those provisions according to the foregoing rules.   The California Constitution, article III, section 1, declares the United States Constitution is the supreme law of the land.   Reading the new section 28, subdivision (d), in light of article III, section 1, the interpretation above makes the two provisions compatible.4

 A fundamental rule of construction is to ascertain the intent of the people in adopting section 28, subdivision (d).   The voter's pamphlet contains the analysis of the Legislative Analyst's office, which states in part:  “The measure could not affect federal restrictions on the use of evidence.”   (Brosnahan v. Brown, supra, 32 Cal.3d at p. 302, 186 Cal.Rptr. 30, 651 P.2d 274.)   It would appear the construction above comports with this extrinsic expression of intent.   We should give effect to the intent of the voters.   (In re Quinn (1973) 35 Cal.App.3d 473, 483, 110 Cal.Rptr. 881.)

Frequently we look to the situation intended to be remedied in order to interpret an amendment.  (Ibid.)  A perusal of the arguments in favor of Proposition 8 reflect an assertion this state's courts provide “additional rights for the ․ accused.”  (Brosnahan v. Brown, supra, 32 Cal.3d at p. 305, 186 Cal.Rptr. 30, 651 P.2d 274.)   It is possible the voters intended to correct an evil they perceived in our courts giving additional rights other than those afforded by the federal Constitution.   If this was the voters' purpose, the foregoing construction is in conformity with such purpose.

 Therefore, we deem section 28, subdivision (d), in referring to “relevant evidence,” means relevant evidence admissible under applicable federal constitutional standards.   As so interpreted, we find section 28, subdivision (d), to be facially constitutional.


It is argued that section 28, subdivision (d), invades the inherent or peculiar powers of the judiciary.   We are urged to subordinate section 28, subdivision (d), to other California constitutional provisions giving certain powers to the judiciary.   The arguments ignore that the power of the judiciary springs from the Constitution.   To suggest that the judicial power may not be limited by the Constitution is to deny that the courts are bound by, or achieve their power through, the Constitution.   We need not now consider those questions in addressing this argument as it is apparent these provisions are not an invasion of the judiciary's powers.

 Certainly, as applied to this case, the restrictions on the court's powers under section 28, subdivision (d), are not in an area essential to judicial administration.   The proviso creates rules regarding evidence and procedure.   These are properly matters which may be addressed by both the courts and the Legislature.  (Evid.Code;  Code Civ.Proc.;   Pen.Code;  Briggs v. Superior Court (1931) 211 Cal. 619, 630, 297 P. 3;  Fleming v. Superior Court (1925) 196 Cal. 344, 351, 238 P. 88;  Miller & Lux Inc. v. Secara (1924) 193 Cal. 755, 766, 227 P. 171;  Corso v. Security-First Nat. Bank (1959) 171 Cal.App.2d 816, 829–830, 342 P.2d 56.)   Absent a constitutional prohibition or a peculiar judicial function, the courts have uniformly applied legislative rules of evidence and judicial procedure.  (People v. Spriggs (1964) 60 Cal.2d 868, 871–872, 36 Cal.Rptr. 841, 389 P.2d 377.)   The people have the same power as that historically exercised by the Legislature.  (Cal. Const., art. II, § 1.)   The provisions of section 28, subdivision (d), do not invade a constitutionally vested judicial power.


The standard of proof required for a criminal conviction is that guilt must be established beyond a reasonable doubt.  (In re Winship (1970) 397 U.S. 358, 361–364, 90 S.Ct. 1068, 1071–1072, 25 L.Ed.2d 368, 373–375.)   The Supreme Court in Lego v. Twomey, supra, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618, rejected the Winship rule as applicable to the standard by which to determine admissibility of a confession.

 California has long adhered to a lesser standard to establish admissibility of evidence, even though guilt must be established beyond a reasonable doubt.   The following are examples:  People v. Amaya (1952) 40 Cal.2d 70, 251 P.2d 324 (the burden to prove corpus delicti by slight or prima facie evidence);  People v. Cavanaugh (1955) 44 Cal.2d 252, 282 P.2d 53 (the burden to prove territorial jurisdiction);  People v. Durham (1969) 70 Cal.2d 171, 74 Cal.Rptr. 262, 449 P.2d 198 (the burden to prove an uncharged crime);  People v. McGill (1935) 10 Cal.App.2d 155, 51 P.2d 433 (the burden of proving an exception to the statute of limitations);  People v. Superior Court (Bowman) (1971) 18 Cal.App.3d 316, 95 Cal.Rptr. 757 (the burden to prove legality of a search without a warrant);  People v. Martin (1970) 2 Cal.3d 822, 87 Cal.Rptr. 709, 471 P.2d 29 (the burden to prove a court identification not tainted).   The reasonable doubt standard to establish guilt does not require admissibility of all preliminary facts be established by that standard.


We turn to the meaning of “relevant evidence” as used in section 28, subdivision (d).   It is important to distinguish between rules of relevancy and admissibility.  (1 Jones, Evidence (6th ed. 1972) § 4:5, p. 391.)   Rules of admissibility are rules of legal policy extrinsic to the question of relevancy.   Thus, although relevant, the law may not allow certain evidence to be admitted.   Section 28, subdivision (d), by its terms recognizes the difference between relevant and admissible evidence.   Generally, hearsay, privileged evidence and evidence excludable under Evidence Code section 352 are all relevant evidence, but are made inadmissible because of long-honored policy rules.   Section 28, subdivision (d), by expressly excepting these matters from its ambit, recognizes the distinction between relevance and admissibility and reflects the intent to define relevance in its narrower, modern sense.

Prior to the turn of the century, case law and commentaries frequently regarded any evidence coming within an exclusionary rule as irrelevant.  (1 Wigmore, Evidence (3d ed. 1940) § 12, p. 297.)   Adopting such a meaning for relevance does not express the intent of section 28, subdivision (d).   The law now accepts that logic, rather than extrinsic rules, determines whether evidence is relevant.  (1 Jones, supra, at pp. 377–381.)   This is recognized in Evidence Code section 210, which defines relevant evidence as follows:  “ ‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.”

 We conclude that the meaning of “relevant evidence” in section 28, subdivision (d), is as defined in section 210 of the Evidence Code.

When the Jimenez court adopted the rule that a confession must be proved beyond a reasonable doubt, implicit therein was the acknowledgment that a confession admissible by whatever standard is relevant evidence.  Jimenez recognized that Evidence Code section 405 hearings must be held on the question of voluntariness.  Evidence Code section 405 presupposes that the evidence is relevant.  Evidence Code section 403 is applicable in determining questions of relevance.

 A confession is relevant evidence within the meaning of section 28, subdivision (d).


Section 28, subdivision (d), does not purport on its face to control or change legislative or judicially developed burdens of proof.   Therefore, it would appear the weight to be accorded any evidence is undisturbed by said section.   In the area of determining a preliminary fact to admissibility, however, the indirect effect of section 28, subdivision (d), is to change the prior rules of burden of proof.   The commandment of the proviso is to require all relevant evidence be admitted save that barred by applicable federal constitutional standards and other exceptions in the section.   The section does not permit the courts to require the proof of any preliminary fact in situations not enumerated or required under federal constitutional standards.   If there can be no required preliminary facts before admissibility, there is nothing to which a burden of proof can pertain.   The section has the effect of indirectly doing away with the standard of burden of proof on preliminary facts because it removes the requirement of the preliminary fact.   However, by the necessary interpretation above, the section requires the establishment of the preliminary fact under federally directed mandates.   That mandate is a standard of a preponderance of the evidence.  (Lego v. Twomey, supra, 404 U.S. at p. 489, 92 S.Ct. at p. 626, 30 L.Ed.2d at p. 627.)   Even though section 28, subdivision (d), does not directly pertain to questions of burden of proof, in this particular situation it indirectly results in the imposition of the new standard of Lego in place of Jimenez.

Logic commands a direct approach to this analysis.   The amendment suggests the court should remove impediments to admissibility of relevant evidence so long as such removal is permissible.   If the lower standard is permissible, it is to be favored as it results in admissibility.

 Whatsoever rational approach is applied, the burden of proof on the preliminary fact of voluntariness has been changed by section 28, subdivision (d).

 The judgment is affirmed.



1.   The minor testified in the guilt phase attacking the weight to be given the confession, but did not offer testimony on admissibility of the confession.  (People v. Lindsey (1972) 27 Cal.App.3d 622, 632, 103 Cal.Rptr. 755.)

2.   Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

3.   We do not, therefore, address such issues as whether section 28, subdivision (d), would allow the prosecution to introduce evidence of a defendant's character prior to the defendant himself putting such character in evidence.  (See Brosnahan v. Brown (1982) 32 Cal.3d 236, 272, 186 Cal.Rptr. 30, 651 P.2d 274 (dis. opn. of Bird, C.J.)

4.   We need not address the problem of harmonizing other parts of the state Constitution (i.e., due process—self-incrimination, article I, section 15) as section 28, subdivision (d), in this case affects a rule of procedure only.  (People v. Jimenez (1978) 21 Cal.3d 595, 605, 147 Cal.Rptr. 172, 580 P.2d 672.)

DAWSON, Associate Justice.* FN* Assigned by the Chief Justice.

PUGLIA, P.J., concurs. SPARKS, J., concurs in the result.

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