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

The PEOPLE, Plaintiff and Respondent, v. Juan RODRIGUEZ and Barbaro A. Rodriguez, Defendants and Appellants.

Cr. 43996.

Decided: August 20, 1984

Thomas K. Takenouchi, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant Juan Rodriguez. Quin Denvir, Former State Public Defender, and Frank O. Bell, Jr., State Public Defender, under appointment by the Court of Appeal, and Richard Avila, Deputy State Public Defender, for defendant and appellant Barbaro A. Rodriguez. John K. Van de Kamp, Atty. Gen., John R. Gorey and William V. Ballough, Deputy Attys. Gen., for plaintiff and respondent.

Appellant Juan Rodriguez was charged with and convicted of kidnapping (Pen.Code, § 207) and discharging a firearm at an inhabited dwelling (Pen.Code, § 246) while personally using a firearm (Pen.Code, §§ 12022.5, 1203.06, subd. (a)(1)).   Appellant Barbaro Rodriguez was charged with and convicted of kidnaping.  (Pen.Code, § 207.)   Juan was sentenced to the lower term of three years in prison, with the firearm use enhancement stayed.   Barbaro received probation and county jail time.   Barbaro is a 32 year old non-English-speaking eighth grade dropout who entered the United States as a refugee from Cuba in 1980.   Juan, 40 years old, is non-English-speaking.   He completed the fifth grade in Cuba at age 18 and also entered the United States as a refugee in 1980.   They appeal, contending:

1. Their convictions must be reversed because they were denied the full-time assistance of an interpreter in the proceedings below.

2. The evidence supports the lesser included offense of false imprisonment but not kidnaping.

3. The evidence is insufficient to support Juan's conviction for discharging a firearm at an inhabited dwelling house.

4. The trial court improperly excluded certain testimony regarding Juan's intent.

5. The trial court had discretion to grant probation to Juan.

We find that appellants' first contention has merit, and therefore reverse.

The evidence showed that around 2 a.m. on September 10, 1982, Maria de la Luz Michael and her husband left a bar and went home.   Appellant Juan Rodriguez (hereafter Juan), with whom Mrs. Michael had been talking, followed them home and continued drinking there with several other guests.   Mrs. Michael's nephew, Mario Ruiz, admired Juan's chain.   Juan took the chain off and told Mario to use it.

Mrs. Michael's husband left for work around 5 a.m.   Raul Huerta arrived around 6 a.m.   A few minutes later, Mrs. Michael drove to the store in Juan's car with Huerta, Ruiz and another friend.   Juan was left behind.

When the group returned from the store, Juan angrily demanded the keys to his car and the return of his chain.   It appears that the group went into the house without returning the chain.   Juan, who was drunk, drove away.

Juan returned about 10 minutes later in a car driven by appellant Barbaro Rodriguez (hereafter Barbaro).   Mrs. Michael was outside at the garage talking to Huerta.   Juan demanded the return of his chain, pointed a gun, and fired it at the house.   Mrs. Michael's son, who was in the house, called the police.

Juan said that either Mrs. Michael or Huerta would have to accompany him and Barbaro to look for Ruiz.   He pointed the gun at Huerta and put him in the car, stating that Huerta would have to pay if the chain did not appear.   Huerta, who was very frightened, told Mrs. Michael to call the police.

Sitting in the car between the two appellants, Huerta directed them to the home of Ruiz's mother, 10 blocks away.   There, the three of them got out of the car, with Juan still pointing the gun.   Juan forced his way into the home of Ruiz's mother, pointed the gun at the people there, and threatened to kill somebody if he was not given either the chain or $1,000.   Barbaro also demanded the chain.   After Ruiz's mother indicated she did not know where Ruiz was, appellants drove Huerta back to Mrs. Michael's home, still against his will.   Juan continued pointing the gun at Huerta.

The police arrived, and Juan got out of the car.   Barbaro was immediately arrested.   During booking, the police found 12 rounds of .32 Colt ammunition in his pocket.1  Juan was located hiding nearby.   No gun was recovered.

Juan testified that he became angry when his chain was not returned.   He went home and asked his cousin Barbaro to drive him back to look for the chain, as he was too drunk to drive.   According to Juan, he never had a gun that night, and Huerta entered the car voluntarily to assist in the search for Mario Ruiz.

Barbaro similarly testified that Huerta entered the car voluntarily, Juan had no gun and he himself had no bullets.


Appellants contend that they were denied their constitutional right to an interpreter throughout the proceedings below.   We agree.

Article I, section 14 of the California Constitution provides in pertinent part:  “A person unable to understand English who is charged with a crime has a right to an interpreter throughout the proceedings.”

At the start of the preliminary hearing, two interpreters were sworn, one for each of the defendants.   The prosecution's witness, Mr. Huerta, required an interpreter, and one of the two interpreters was used for that purpose.   It is unclear whether that interpreter was the one assigned to Juan or to Barbaro.

At the start of trial, two interpreters, Mona Rich and Enma Helou, were sworn.   Again, the record does not reflect which interpreter was assigned to which defendant.   The interpreter Enma Helou was used to interpret the testimony of the witnesses Natividad Ruiz, Maria de la Luz Michael, and Raul Huerta.   The record specifically states that Rich was “interpreting for the defendants” while Helou was interpreting for Huerta.   The defendants were also apparently sharing Rich's interpreting services while Helou was interpreting for Mrs. Ruiz and Mrs. Michael.

Our Supreme Court was recently confronted with a similar problem in People v. Aguilar (1984) 35 Cal.3d 785, 200 Cal.Rptr. 908, 677 P.2d 1198.   In Aguilar, the defendant's interpreter was “borrowed” to act as a witness interpreter for two prosecution witnesses.   The Supreme Court reversed, holding that “article I, section 14, requires that when an interpreter is appointed for a non-English speaking accused, the accused has a constitutional right to the assistance of the interpreter throughout the entire proceeding.”   (Id., at p. 787, 200 Cal.Rptr. 908, 677 P.2d 1198.)

 As Aguilar explained, the constitutional right to an interpreter throughout the criminal proceedings was added by a 1974 vote of the electorate.  (People v. Aguilar, supra, 35 Cal.3d at p. 790, 200 Cal.Rptr. 908, 677 P.2d 1198.)   There are three different roles played by such interpreters.   A “witness interpreter” makes possible the questioning of a non-English-speaking witness;  a “proceedings interpreter” facilitates a non-English-speaking defendant's understanding of the colloquy between the attorneys, the witness, and the judge;  and a “defense interpreter” enables a non-English-speaking defendant and his English-speaking attorney to communicate with each other.  (Ibid.)  Where a defendant's interpreter is borrowed to act as a witness interpreter, the accused loses his “only means of communicating with defense counsel and understanding the proceedings, ․”  (Id., at p. 791, 200 Cal.Rptr. 908, 677 P.2d 1198.)

Aguilar further recognized that its holding was supported by several previous decisions, including People v. Chavez (1981) 124 Cal.App.3d 215, 177 Cal.Rptr. 306, People v. Menchaca (1983) 146 Cal.App.3d 1019, 194 Cal.Rptr. 691, and United States ex rel. Negron v. New York (2d Cir.1970) 434 F.2d 386, 389.

In People v. Chavez, supra, 124 Cal.App.3d 215, 177 Cal.Rptr. 306, the First Appellate District held that a non-English-speaking defendant was denied his constitutional right to an interpreter where at various times he was wholly without an interpreter, utilized his counsel as an interpreter, had an official interpreter who paraphrased the plea proceedings, or utilized an unofficial interpreter.  Chavez further found that “[t]he right to an interpreter having ․ been guaranteed in the Constitution, it may not validly be waived without an ‘affirmative showing,’ on the record, of a waiver which was ‘intelligent and voluntary’ on the part of the affected defendant.   [Citations.]”  (Id., at p. 227, 177 Cal.Rptr. 306.)

In People v. Menchaca, supra, 146 Cal.App.3d 1019, 194 Cal.Rptr. 691, Division One of this court found that to protect the defendant's ability to “instantaneously communicate with counsel upon a spontaneous understanding of the testimony and the proceedings ․ nothing short of a sworn interpreter at defendant's elbow will suffice.”  (Id., at p. 1025, 194 Cal.Rptr. 691.)   In Menchaca, only a witness interpreter was used at the preliminary hearing, while at the trial, the defendant's interpreter was utilized as a witness interpreter for one of the witnesses.   The denial of the right to an interpreter was found to be so fundamental as to result in a denial of due process, which could not be waived by a failure to object at the trial level.  (Id., at p. 1025, 194 Cal.Rptr. 691.)

Finally, in United States ex rel. Negron v. New York, supra, 434 F.2d at page 389, the Second Circuit found that a non-English-speaking defendant had been denied his fundamental right to a fair trial where he went to trial without the services of an interpreter.

 Although we recognize a factual distinction between the case at bench and the cases cited, they are nonetheless controlling precedent.   Here, appellants shared one of the interpreters while the other interpreted for the witness, and therefore the defendants were not totally without the services of an interpreter at any time.   The problem is that the proximity of each defendant and his counsel to the joint interpreter created an unacceptable restriction on private communication with counsel.

 We reject respondent's suggestion that “if a defendant had a comment to make to his attorney during such testimony that the interpreter at the defense table could easily lean over, or move to one side and carry on a private conversation with the defendant and his attorney.”   This is unacceptable because while the interpreter was acting on behalf of one defendant as a “defense interpreter,” the other defendant would be without a “proceedings interpreter.”   Just as the constitutional right to counsel “contemplates that such assistance be untrammeled and unimpaired by a court order requiring that one lawyer shall simultaneously represent conflicting interests” (Leversen v. Superior Court (1983) 34 Cal.3d 530, 536–537, 194 Cal.Rptr. 448, 668 P.2d 755), the constitutional right to an interpreter cannot be impaired by requiring joint use of the same interpreter at the counsel table.

 Aguilar approvingly quoted section 18(a) of the Standards of Judicial Administration of the Judicial Council, which states:  “An interpreter is needed if upon examination by the court a party or witness is unable to speak English so as to be understood directly by counsel, court, and jury, or if a party is unable to understand and speak English sufficiently to comprehend the proceedings and to assist counsel in the conduct of the case.   Separate interpreters may be needed for each non-English speaking party.   An additional interpreter may be needed to interpret witness testimony for the court.”   (Emphasis added.)

Respondent stresses that the language of section 18(a) is permissive rather than mandatory.   Respondent contends that since both appellants here relied on the same defense, their interests were not adverse and they could utilize the same interpreter.  Article I, section 14 of the state Constitution gives each defendant an unconditional right to an interpreter throughout the proceedings.   That right was impaired when the same interpreter was utilized for both defendants.

 Respondent further argues that any error was harmless as “no reasonable probability of denial of appellants right to effective representation was shown.”   However, none of the cases cited above mention a requirement that prejudice be shown.  Aguilar treated such error as reversible per se absent a waiver.  (People v. Aguilar, supra, 35 Cal.3d at p. 794, 200 Cal.Rptr. 908, 677 P.2d 1198.) 2

We conclude that “[c]onsiderations of fairness, the integrity of the fact-finding process, and the potency of our adversary system of justice” (United States ex rel. Negron v. New York, supra, 434 F.2d at p. 389), mandate a new trial for both appellants.


Certain problems which may arise on retrial must be addressed here.

 Both appellants argue that there was insufficient evidence to support the crime of kidnaping, because Huerta voluntarily entered the car in Mrs. Michael's stead to assist in looking for Mario Ruiz.   The evidence is entirely to the contrary.   Huerta testified that he left because the “gun commanded” him.   Mrs. Michael testified that Huerta was very frightened when he entered the car at gunpoint.   And Mrs. Michael's son observed that Huerta was taken away by force.

 Similarly, little time need be spent on Juan's argument that there was insufficient evidence that he shot at an inhabited dwelling house.   Mrs. Michael's son specifically testified that he was in the house when the shot was fired.   Mrs. Michael saw Juan fire a bullet into the door, and the police found a bullet there.

 Juan also argues that the trial court erred in not permitting him to answer two questions which Barbaro's counsel asked him regarding whether Huerta was going to take him to Mario Ruiz's mother's house to help find the chain.   Juan cites People v. Mayberry (1975) 15 Cal.3d 143, 155, 125 Cal.Rptr. 745, 542 P.2d 1337, which held that a reasonable belief in consent is a defense to kidnaping.   We see no connection between the rejected questions and a mistake of fact defense.   Even if Juan was utilizing Huerta to help find the chain, he had no right to do so by force, at gunpoint.

 Finally, Juan argues that the trial court was mistaken in believing he was ineligible for probation due to the gun use.   There was no error.   Under People v. Tanner (1979) 24 Cal.3d 514, 156 Cal.Rptr. 450, 596 P.2d 328, and Penal Code section 1203.06, Juan was ineligible for probation.   The trial court retained the power only to strike the additional two-year enhancement for firearms use.  (People v. Williams (1981) 30 Cal.3d 470, 482, 179 Cal.Rptr. 443, 637 P.2d 1029;  People v. Dorsey (1972) 28 Cal.App.3d 15, 104 Cal.Rptr. 326.)   That is essentially what the trial court accomplished by staying the two-year enhancement due to expressed mitigating factors.

The judgments are reversed.


1.   An expended projectile retrieved from the door of the Michael home was a .32 caliber Smith and Wesson bullet.

2.   We recognize that People v. Gomez, 158 Cal.App.3d 446, –––, footnote 3, 204 Cal.Rptr. 655, 84 Daily Journal D.A.R. 2753, 2754, footnote 3, which was decided by the First Appellate District on July 20, 1984, refused to read Aguilar as requiring a reversible-per-se standard, on the ground that “there [was] no indication that the question was presented or considered.”   We disagree, concluding that the question was necessarily considered and resolved in Aguilar.

WOODS, Presiding Justice.

ARGUELLES and TITLE,* JJ., concur.

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