PEOPLE v. SABDALA (1988)

OPINION

I

In a second amended information, which reflected the consolidation of two cases, defendant Medearro A. Sabdala was charged with assault with intent to commit rape (Pen.Code, § 220); ¹  assault with a deadly weapon (§ 245 subd. (a)(1));  sexual battery (§ 243.4);  battery (§§ 242, 243 subd. (d));  rape (§ 261 subd. (1));  and, sodomy (§ 286 subd. (c)).  The information also contained several enhancement allegations.   All but the second alleged that defendant personally used a deadly weapon (§ 12022 subd. (b));  all but the sodomy count contained allegations of infliction of great bodily injury (§§ 12022.7 and 12022.8);  and, the first, second and fourth charges also included an allegation that the victim of the great bodily injury was over 60 years old (§ 1203.09 subd. (a)).  Defendant pleaded not guilty and denied all the allegations.

After numerous proceedings, not relevant to this appeal, defendant's jury trial began on September 8, 1986.   The jury found defendant guilty of all charges and found all the allegations true.   Defendant received a 24–year term in state prison.   Defendant's timely appeal followed.   We affirm.

FACTS

Early in the evening of November 3, 1985, a 78–year–old woman was preparing for her bath.   She had on only her robe, slip and brassiere.   As she entered the living room she saw a man sitting in a chair.   They spoke and he asked her if he could spend the night.   She answered no and asked him to leave.

The man grabbed her cane and struck her over the head repeatedly until the cane broke.   He then pushed her into a chair and forced her legs apart.   At trial she could not remember what happened next, until he went to the bathroom and she fled to a neighbor's.

The victim was bleeding profusely;  ultimately it took over 100 surgical staples to close the three gashes in her scalp which extended from her forehead to her neck.   At trial she identified defendant as her assailant.

After the victim had made her way to the neighbor's, the authorities were contacted.   Because of statements made to the authorities and the attending physician, when the victim was taken to the hospital she was given a gynecological examination and, using a rape kit, swab samples were obtained from the vaginal and rectal cavities.

The victim also was able to give the authorities a description of her attacker and indicated that a friend Ernesto Lopez might know where he lived.   She knew her assailant by the nickname of “Pueblo” or “Puebla.”   The assailant's description was broadcast to others in law enforcement.   Deputy Knoll, who was investigating the crime, contacted Mr. Lopez who offered to show him where the suspect lived.   As Knoll and Lopez were driving to the area, Knoll received a message that a suspect had been detained.

Deputy Williams, after hearing the assailant's description and being referred to a particular area of town, saw defendant walking across a vacant parking lot.   He matched the description.   When Williams stopped to talk to him he saw defendant had blood on his shirt.   Williams notified Knoll who arrived with Lopez in a few minutes.   Lopez identified defendant as the man known as “Pueblo.”

Defendant was arrested and taken in the patrol car.   Knoll, after defendant waived his Miranda rights, spoke with defendant about the crime.   Defendant denied he had been near the woman's house, said he had been at the Guadalajara Club with friends the past three hours.   He told Knoll the blood on his shirt was from a nosebleed he had had that afternoon caused by chemicals in his workplace.

Defendant's bloody clothing and a sample of blood found on his forehead were taken by the authorities.   All of the serological and rape kit evidence was analyzed by Kern County criminalist Bernadetta Rickard using electrophoresis multisystem analysis.   Electrophoretic multisystem analysis identifies not only the traditional blood types, but several other genetic markers appearing in the specimen.

The relevant data obtained here was that defendant had type O blood, with his PGM being 1−;  defendant was a nonsecretor.   The victim also had type O blood, but her PGM was 1+.  The blood found on defendant's shirt and forehead was type O, PGM 1+;  it could not have come from defendant but was consistent with the victim's blood.   The semen found in the victim's vagina was of an insufficient quantity to test.   The semen found in the rectum showed it came from a nonsecretor with a PGM of 1−, consistent with defendant having been the donor.

The prosecution also presented evidence of the frequency of these various blood types and secretor status in the population in general.   Only 20 percent of the population is nonsecretor;  the PGM 1− appears in only 7.8 percent of the Mexican–American population.   Thus, only approximately 1.6 percent of the Mexican–American population could have been the donor-assailant;  “so roughly 1 out of 50 people or 1 out of 75 people.”   Similarly, evidence was presented that anywhere from 4.4 percent to 3.1 percent of the Mexican–American population could have been the donor of the blood found on defendant.

The defendant testified.   He denied having assaulted the victim.   He claimed he did not know the victim.   He had been drinking all day with friends, having spent the three hours prior to his arrest at the Guadalajara Club.   He said that after leaving the club he stumbled and hit his face, causing a nosebleed.   The blood on his shirt and forehead was his own.   He did not remember telling the police that the nosebleed was caused by chemicals at work.

DISCUSSION

II–III **

IV

Whether the Trial Court Improperly Determined Defendant's Waiver of His Miranda Rights was Voluntary, Knowing and Intelligent.

Defendant contends the trial court improperly found his statements to the authorities, after his arrest, followed a knowing and intelligent waiver of his Miranda rights.  (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.)   Defendant challenged admission of his statements, contending he was drunk and could not understand English sufficiently.   The court held a hearing and after testimony by the officer and the defendant, the court ruled:  “Okay, he got a proper Miranda warning and he understood it․”  When asked by defense counsel whether it was applying the preponderance of the evidence standard or the beyond the reasonable doubt standard, the court indicated it was applying the preponderance of the evidence test.   Defendant contends the trial court applied an improper standard of review and that he was prejudiced thereby.

A. Standard of Review

In 1978, the California Supreme Court in People v. Jimenez (1978) 21 Cal.3d 595, 605, 147 Cal.Rptr. 172, 580 P.2d 672, adopted “as a judicially declared rule of criminal procedure” the requirement that the People prove beyond a reasonable doubt at trial that any confession or admission was voluntary.   The court adopted this standard of proof in face of the United States Supreme Court's earlier holding that the federal Constitution required no more than that the prosecution prove the voluntariness of a confession by a preponderance of the evidence.  (Lego v. Twomey (1972) 404 U.S. 477, 489, 92 S.Ct. 619, 626, 30 L.Ed.2d 618.)   We can only conclude here that the trial court believed that the 1982 addition to the California Constitution of article I, section 28, subdivision (d), by way of Proposition 8 required application of the lesser, federally-approved standard.

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.”

In In re Lance W. (1985) 37 Cal.3d 873, 210 Cal.Rptr. 631, 694 P.2d 744 the California Supreme Court held that Proposition 8 abrogated California's vicarious exclusionary rule, which permitted standing to challenge a search by third parties, and required application of the federal rule denying such standing.   The court stated:

“Implicit in the limitation on the courts' power to exclude relevant evidence to the enumerated statutory exceptions is a limitation on the power of the court to create nonstatutory exclusionary rules, whether denominated rules of procedure, rules of evidence, or substantive rules, for the exclusion of unlawfully seized evidence if those rules afford greater protection to a criminal defendant than does the Fourth Amendment.”  (Id. at pp. 888–889, 210 Cal.Rptr. 631, 694 P.2d 744, fn. omitted.)

Since Lance W., several cases have found the applicability of federal, rather than contrary, California rules relating the admissibility of evidence.

We are called upon here to decide whether Proposition 8 similarly has abrogated the Jimenez rule requiring a greater degree of proof of voluntariness than the federal standard.   We recognize that the court in People v. Azure (1986) 178 Cal.App.3d 591, 224 Cal.Rptr. 158 found that Proposition 8 did not change the rule enunciated in Jimenez and that the California Supreme Court denied review in Azure.²  However, our analysis of the California Supreme Court's recent decision in People v. May (1988) 44 Cal.3d 309, 243 Cal.Rptr. 369, 748 P.2d 307 suggests that Proposition 8 requires application of the federal standard.³

In Azure the court concluded, based in a significant part on decisions out of this court in People v. Barrios (1985) 166 Cal.App.3d 732, 212 Cal.Rptr. 644 and the California Supreme Court in People v. Weaver (1985) 39 Cal.3d 654, 217 Cal.Rptr. 245, 703 P.2d 1139 and Ramona R. v. Superior Court (1985) 37 Cal.3d 802, 210 Cal.Rptr. 204, 693 P.2d 789, that the Jimenez rule was a “statutory rule of evidence relating to privilege” under Evidence Code section 940 ⁴ and by the terms of Proposition 8 exempt from its operation.  (People v. Azure, supra, 178 Cal.App.3d at p. 600, 224 Cal.Rptr. 158.)   In People v. Barrios, supra, 166 Cal.App.3d 732, 212 Cal.Rptr. 644, this court found that the California rule that a defendant could not be impeached with statements obtained in violation of the Fifth Amendment, enunciated in People v. Disbrow (1976) 16 Cal.3d 101, 127 Cal.Rptr. 360, 545 P.2d 272, was likewise a rule relating to privilege unaffected by Proposition 8.

However, this year the California Supreme Court decided the case of People v. May (1988) 44 Cal.3d 309, 243 Cal.Rptr. 369, 748 P.2d 307.   The court concluded that Proposition 8 abrogated the Disbrow rule, leaving the United States Supreme Court's decision in Harris v. New York (1971) 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, allowing impeachment of a testifying defendant with statements taken in violation of the Fifth Amendment, to control admission of such evidence.  (People v. May, supra, 44 Cal.3d at p. 315, 243 Cal.Rptr. 369, 748 P.2d 307.)⁵  In reaching this conclusion the court found that the Disbrow rule was a remedial device, not a substantive right, and thus not encompassed by Evidence Code section 940.  (Id. at p. 317, 243 Cal.Rptr. 369, 748 P.2d 307.)   In Ramona R., conversely, the question revolved around the scope of the privilege against self-incrimination.  (Id. at pp. 317–318, 243 Cal.Rptr. 369, 748 P.2d 307.)   Moreover, unlike the situation when Disbrow was decided, there is no federal rule contrary to that reaffirmed in Ramona R. allowing the use of such testimony.  (Id. at p. 318, 243 Cal.Rptr. 369, 748 P.2d 307.)

Our question then is whether the rule in Jimenez, decided in spite of a conflicting federal rule, reflects a substantive right dealing with the scope of the privilege against self-incrimination encompassed by Evidence Code 940, exempting it from the operation of Proposition 8.

In Jimenez the court adopted the beyond the reasonable doubt standard as controlling the trial court's decision as to the voluntariness of a confession.  (People v. Jimenez, supra, 21 Cal.3d at p. 605, 147 Cal.Rptr. 172, 580 P.2d 672.)⁶  The court reasoned that the use of the higher standard of review would decrease the risk that an involuntary confession would be admitted.  (Id. at p. 606, 147 Cal.Rptr. 172, 580 P.2d 672.)   Additionally, this would also decrease the risk that a false involuntary confession would be admitted and therefore have “a salutary effect on the ultimate fact-finding process․”  (Id. at p. 607, 147 Cal.Rptr. 172, 580 P.2d 672.)   The court felt that the new rule would not “unduly hamper the prosecution” given their ability “to impose adequate prosecutorial controls over the interrogation process․”  (Id. at p. 608, 147 Cal.Rptr. 172, 580 P.2d 672.)

The opinion in Jimenez does not attempt to define either the scope of the privilege or the situations in which it pertains.   Both the federal and the state Constitutions prohibit the introduction of involuntary confessions.   (Payne v. Arkansas (1958) 356 U.S. 560, 561, 78 S.Ct. 844, 846, 2 L.Ed.2d 975;  People v. Trout (1960) 54 Cal.2d 576, 583, 6 Cal.Rptr. 759, 354 P.2d 231.)   The court's goal in Jimenez was only to set the degree of proof by which the People must establish that the statements of the defendant are voluntary and admissible at trial, not the standards by which a statement will or will not be deemed voluntary, i.e., violative of the Fifth Amendment.   The rule in Jimenez appears purely procedural, not substantive and was acknowledged as such.

“Although the defendant urges that the privilege against self-incrimination contained in article I, section 15 of the state Constitution requires application of the reasonable doubt standard in order to fully protect the important values embodied therein, we find it unnecessary to reach the constitutional question as we conclude for the reasons set forth below that the reasonable doubt standard is required as a judicially-declared rule of criminal procedure.  [Citation.]”  (Jimenez, supra, 21 Cal.3d at p. 605, 147 Cal.Rptr. 172, 580 P.2d 672.)

While we recognize in other contexts the procedural-substantive dichotomy has been described as problematic (see People v. Smith, supra, 34 Cal.3d 251, 260, 193 Cal.Rptr. 692, 667 P.2d 149), in light of May we find that the burden of proof required for admission at trial of a defendant's statement is not a substantive right encompassed by the privilege provisions of Evidence Code section 940.

The rule announced in Jimenez was the product of a policy decision by the court reflecting a balancing of values.  (21 Cal.3d at p. 608, 147 Cal.Rptr. 692, 667 P.2d 149.)   It is this judicial balancing in favor of the defendant to a degree greater than that required by the federal Constitution which May suggests the voters sought to overrule by the passage of Proposition 8.  “Thus, it seems very likely that Proposition 8 was crafted for the very purpose, among others, of abrogating cases such as Disbrow, which had elevated the procedural rights of the criminal defendant above the level required by the federal Constitution, as interpreted by the United States Supreme Court.”  (People v. May, supra, 44 Cal.3d at p. 318, 243 Cal.Rptr. 369, 748 P.2d 307.)

The United States Supreme Court entertained a policy argument similar to that accepted in Jimenez and rejected it.

“[W]e are unconvinced that merely emphasizing the importance of the values served by exclusionary rules is itself sufficient demonstration that the Constitution also requires admissibility to be proved beyond reasonable doubt.   Evidence obtained in violation of the Fourth Amendment has been excluded from federal criminal trials for many years.  [Citation.]  The same is true of coerced confessions offered in either federal or state trials.  [Citations.]  But, from our experience over this period of time no substantial evidence has accumulated that federal rights have suffered from determining admissibility by a preponderance of the evidence.   Petitioner offers nothing to suggest that admissibility rulings have been unreliable or otherwise wanting in quality because not based on some higher standard.   Without good cause, we are unwilling to expand currently applicable exclusionary rules by erecting additional barriers to placing truthful and probative evidence before state juries and by revising the standards applicable in collateral proceedings.   Sound reason for moving further in this direction has not been offered here nor do we discern any at the present time.   This is particularly true since the exclusionary rules are very much aimed at deterring lawless conduct by police and prosecution and it is very doubtful that escalating the prosecution's burden of proof in Fourth and Fifth Amendment suppression hearings would be sufficiently productive in this respect to outweigh the public interest in placing probative evidence before juries for the purpose of arriving at truthful decisions about guilt or innocence.”  (Lego v. Twomey, supra, 404 U.S. at pp. 488–489, 92 S.Ct. at p. 626, fn. omitted.)

As the court in May interpreted the voters' intent in passing Proposition 8:

“Given the probable aim of the voters in adopting section 28(d), namely, to dispense with exclusionary rules derived solely from the state Constitution, it is not reasonably likely that the California voters intended to preserve, in the form of a ‘statutory’ privilege, a judicially created exclusionary rule expressly rejected by the United States Supreme Court under the federal Constitution.”  (People v. May, supra, 44 Cal.3d at p. 318, 243 Cal.Rptr. 369, 748 P.2d 307.)

As a rule of procedure and not substantive rights under the Fifth Amendment, the Jimenez principle is not encompassed within the privilege exceptions to Proposition 8.  (See People v. May, supra, 44 Cal.3d at p. 317, 243 Cal.Rptr. 369, 748 P.2d 307;  and compare with Ramona R. v. Superior Court, supra, 37 Cal.3d 802, 210 Cal.Rptr. 204, 693 P.2d 789.)   The rule reflects a balance of competing policies by the California Supreme Court contrary to that arrived at by the United States Supreme Court.  (Lego v. Twomey, supra, 404 U.S. at pp. 488–489, 92 S.Ct. at pp. 626–627.)   The intent of the voters in passing Proposition 8 was to circumscribe the exclusion of relevant evidence based upon independent state grounds.  “ ‘The people have apparently decided that the exclusion of evidence is not an acceptable means of implementing those rights, except as required by the Constitution of the United States.’ ”  (People v. May, supra, 44 Cal.3d at p. 318, 243 Cal.Rptr. 369, 748 P.2d 307, quoting from In re Lance W., supra, 37 Cal.3d at p. 887, 210 Cal.Rptr. 631, 694 P.2d 744.)

Clearly, the higher procedural standard of Jimenez would compel exclusion of statements admissible under the federal standards of Lego.   Consequently, the maintenance of the procedural rule of Jimenez does directly what an independent state constitutional interpretation could not.   The distinction, if any, is one of form over substance and is precisely the consequence challenged by Proposition 8:  the exclusion of evidence based upon standards more stringent than the Constitution of the United States.   The federal Constitution does not require a greater degree of proof than by a preponderance of the evidence;  this is now the rule in California.

B. Prejudice ***

V ***Whether the Trial Court Erred in Admitting Certain Hearsay Testimony

The judgment is affirmed.

FOOTNOTES

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

FOOTNOTE.   See footnote*, ante.

2.   This issue is currently before the California Supreme Court in three cases, People v. Campos, (1986) 204 Cal.App.3d 138, 228 Cal.Rptr. 470, People v. Markham, (1986) 198 Cal.App.3d 249, 224 Cal.Rptr. 262, and People v. Tijerina (unpublished).

3.   Appellant cites People v. Howard (1988) 44 Cal.3d 375, 394, 243 Cal.Rptr. 842, 749 P.2d 279, and People v. Belmontes (1988) 45 Cal.3d 744, 773, 248 Cal.Rptr. 126, 755 P.2d 310, as dispositive of the appropriate burden of proof.   Both cases reiterate the standard expressed in People v. Jimenez, supra.   We note, however, that the murder in Howard occurred May 30, 1981, and the murder in Belmontes occurred March 15, 1981.   Both murders therefore occurred prior to the effective date of Proposition 8, passed in June 1982, and are governed by the law prior to the passage of Proposition 8.  (People v. Smith (1983) 34 Cal.3d 251, 258, 193 Cal.Rptr. 692, 667 P.2d 149.)

4.   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.”

5.   The May opinion thus overrules this court's resolution of the issue in People v. Barrios, supra, 166 Cal.App.3d 732, 212 Cal.Rptr. 644.

6.   It does not appear determinative that it was adopted as a judicially-declared rule of procedure rather than as constitutionally compelled.   Indeed, the rule announced in People v. Coleman (1975) 13 Cal.3d 867, 120 Cal.Rptr. 384, 533 P.2d 1024 which was found to survive Proposition 8 in Ramona R. and Weaver was also a judicially declared rule;  contrariwise, the rule announced in Disbrow was based upon article I, section 15, of the California Constitution.

FOOTNOTE.   See footnote*, ante.

ARDAIZ, Associate Justice.

HAMLIN, Acting P.J., and SARKISIAN, J.†, concur.