IN RE: Michael G. DOUGLAS (1988)

A criminal case against petitioner Michael G. Douglas was dismissed after the trial court suppressed evidence pursuant to Penal Code section 1538.5.¹  The trial court then granted Douglas' petition for a writ of habeas corpus after ruling that the suppressed evidence could not be used at a parole revocation hearing.

 Penal Code section 1538.5, subdivision (d) provides that evidence, once finally suppressed, may not be used “at any trial or other hearing ․”  Does the Truth–In–Evidence provision of California Constitution, article I, section 28, subdivision (d), otherwise known as Proposition 8, limit Penal Code section 1538.5, subdivision (d)?   We hold that it does, even though it was reenacted after Proposition 8 became law.

FACTS

In May 1980, Michael G. Douglas was sentenced to prison following his conviction for robbery.   He was released on parole August 6, 1984.

On January 15, 1987, Douglas was arrested and charged with driving while under the influence of alcohol and driving with a suspended license.   This ultimately resulted in the Board of Prison Terms (Board) revoking Douglas' parole.

During the trial on the driving offenses, difficulties arose when defense counsel began to cross-examine Officer Kresky, the arresting officer, about events on the night of the arrest.   When asked if he recalled punching Douglas in the stomach while Douglas' hands were handcuffed behind his back, Kresky refused to answer, invoking his Fifth Amendment privilege against self-incrimination.   He told the court that he would assert the privilege as to any questions about the arrest.

This brought the proceedings to an abrupt halt.   Douglas complained that he was being deprived of his right to cross-examine Kresky.   The trial court agreed, and granted Douglas' motion to strike all of Kresky's previous testimony.

With no evidence that Officer Kresky had probable cause to stop or arrest Douglas, the court then granted Douglas' motion under section 1538.5 to suppress evidence of the blood alcohol test and to suppress evidence of Kresky's observations at the scene of the arrest.   The trial court acquitted Douglas on all counts because the evidence was insufficient to sustain a conviction.  (Pen.Code, § 1118.1.)

Following trial, Douglas filed a petition for writ of habeas corpus challenging the parole board's decision to revoke parole.   He requested a parole hearing.   The trial court granted the petition and ordered the Board to hold the hearing.   At the hearing, Kresky testified about his observations of Douglas at the time of the arrest.   The Board also received a copy of the blood alcohol test report.   The Board then revoked Douglas' parole, and he was returned to custody for 12 months.

Douglas ultimately filed a petition for a writ of habeas corpus.   He claimed he was denied equal protection of the law and due process because evidence used against him at the parole revocation hearing had previously been suppressed at trial.   He argues that under section 1538.5, subdivision (d), this evidence may not be admitted at the parole revocation hearing.  Section 1538.5, subdivision (d) requires that evidence excluded pursuant to a section 1538.5 hearing “shall not be admissible ․ at any trial or other hearing unless further proceedings authorized by this section, Section 871.5, Section 1238, or Section 1466 are utilized by the people.”

The trial court agreed with Douglas, and concluded that section 1538.5, subdivision (d) precluded the hearing panel from using the suppressed evidence.   The court granted the writ petition because without the suppressed evidence, the Board could not have found Douglas violated his parole.   The director of the Department of Corrections and Board of Prison Terms appeals.

DISCUSSION

We must decide whether the trial court correctly applied section 1538.5, subdivision (d) in light of the Truth–In–Evidence provision of Proposition 8.

The Board argues that the “truth-in-evidence” portion of Proposition 8 ² abrogated section 1538.5, subdivision (d), and therefore, the excluded evidence would be admissible at the parole hearing because it is relevant and because it would be admissible under federal law.

Douglas argues that Proposition 8 expressly allows the Legislature to exclude relevant evidence by statute “hereafter enacted.”   Subsequent to the adoption of Proposition 8, the Legislature amended section 1538.5 four times, always choosing to retain the operative provisions of subdivision (d).  (Stats.1982, ch. 625, § 1, p. 2632;  Stats.1982, ch. 1505, § 6, p. 5840;  Stats.1986, ch. 52, § 1;  Stats.1987, ch. 828, § 99;  see 51A West's Ann.Pen.Code (1988 pocket pt.) § 1538.5, p. 63.)   By doing so, the Legislature “reenacted” subdivision (d).  (Cal. Const., art. IV, § 9.)

Before these amendments were adopted by the Legislature, the Supreme Court and the Court of Appeal had ruled that subdivision (d) prohibits the use of the previously excluded evidence at sentencing hearings and probation revocation hearings.  (People v. Belleci (1979) 24 Cal.3d 879, 157 Cal.Rptr. 503, 598 P.2d 473;  People v. Zimmerman (1979) 100 Cal.App.3d 673, 161 Cal.Rptr. 188.)

Douglas argues that under these circumstances subdivision (d) prohibits the use of suppressed evidence at parole revocation hearings.  (People v. Belleci, supra, 24 Cal.3d 879, 157 Cal.Rptr. 503, 598 P.2d 473;  People v. Fuller (1983) 148 Cal.App.3d 257, 262, 210 Cal.Rptr. 1;  People v. Willis (1983) 149 Cal.App.3d Supp. 56, 197 Cal.Rptr. 281;  People v. Zimmerman, supra, 100 Cal.App.3d 673, 161 Cal.Rptr. 188.)

After section 1538.5, subdivision (d) had first been amended, an appellate department of the superior court ruled that subdivision (d) applies to probation revocation hearings, and survives Proposition 8.  (People v. Willis, supra, 149 Cal.App.3d Supp. 56, 197 Cal.Rptr. 281.)

The Willis court and the dissent apparently feel that Proposition 8 had no effect on subdivision (d) because “the statute is procedural in character.   It simply requires prosecutors to exhaust existing statutory schemes for review if a motion to suppress is granted.”  (People v. Willis, supra, 149 Cal.App.3d Supp. 56, 60, 197 Cal.Rptr. 281.)

Willis seizes upon the procedural nature of subdivision (d) to hold that it bars the introduction of previously suppressed evidence at a subsequent probation revocation hearing.   It relies on People v. Belleci, supra, which held that the Legislature's purpose in enacting subdivision (d) “was simply to round out the picture by providing what should be done with the illegally obtained property or evidence in the event the motion to suppress is granted.”  (People v. Belleci, supra, 24 Cal.3d at p. 885 and fn. 4, 157 Cal.Rptr. 503, 598 P.2d 473.)

Whether procedural or not, the effect of subdivision (d) is to exclude relevant evidence from judicial proceedings even though that evidence would be admissible under the United States Constitution.   Proposition 8 was designed to prevent this.

The effect of Belleci on Proposition 8 was discussed in People v. Moore (1988) 201 Cal.App.3d 877, 247 Cal.Rptr. 353, rehearing denied August 28, 1988.   In Moore, the Court of Appeal held that an incriminating note which was suppressed because of an unlawful search of defendant's vehicle was admissible for impeachment under California Constitution, article I, section 28, subdivision (d) because exclusion for this purpose was not mandated under the federal Constitution.   The Moore court held that “Belleci, a pre-Proposition 8 case, must be construed in light of section 28(d).   In so doing it is manifestly clear that Belleci 's unqualified holding that evidence suppressed pursuant to section 1538.5 is inadmissible at any trial or hearing must be modified to include the qualification:  if exclusion is mandated by the Fourth Amendment exclusionary rule of the Federal Constitution.”  (People v. Moore, supra, at p. 885, 247 Cal.Rptr. 353;  see also People v. Brewster (1986) 184 Cal.App.3d 921, 929, 229 Cal.Rptr. 352, where the Court of Appeal held that evidence suppressed pursuant to a 1538.5 motion during a prosecution for murder was admissible at a sentencing hearing following the defendant's unrelated conviction for robbery.)

But what of the amendments to section 1538.5?   Even if Proposition 8 had nullified subdivision (d), would not the reenactment of subdivision (d) subsequent to Proposition 8, by a two-thirds vote of the Legislature, reinstate the law as it existed prior to Proposition 8?

The McDill court said:  “ ‘The failure of the Legislature to change the law in a particular respect when the subject is generally before it and changes in other respects are made is indicative of an intent to leave the law as it stands in the aspects not amended.’  [Citations.]”  (Estate of McDill (1975) 14 Cal.3d 831, 837–838, 122 Cal.Rptr. 754, 537 P.2d 874.)  “ ‘It is a generally accepted principle that in adopting legislation the Legislature is presumed to have had knowledge of existing domestic judicial decisions and to have enacted and amended statutes in the light of such decisions as have a direct bearing upon them.  [Citations.]’ ”  (Id., at p. 839, 122 Cal.Rptr. 754, 537 P.2d 874.)   The dissent also points out that the language in section 1538.5, subdivision (d) is clear and not ambiguous.

These arguments are cogent and plausible.   The trial judge, the Willis court, and even our distinguished dissenting colleague, are all guided by logic and thoughtfulness.   Rules of statutory construction would seem to compel us to rule that the reenactment of section 1538.5, subdivision (d) restored that section to its pre-Proposition 8 status.   One significant obstacle, however, prevents us from doing so.   Our Supreme Court holds otherwise.   Depending upon one's point of view, stare decisis has been known to inhibit audacity as well as good law.

In In re Lance W. (1985) 37 Cal.3d 873, 890, 210 Cal.Rptr. 631, 694 P.2d 744, our Supreme Court concluded, among other things, that Proposition 8 permitted exclusion of relevant but unlawfully obtained evidence only if the exclusion would be required by the United States Constitution.

In its discussion of the effect of Proposition 8 on judicial rules of exclusion, Lance W. had occasion to discuss the effect, if any, of the amendments to section 1538.5 on Proposition 8.   Although Lance W. was particularly concerned about subdivision (a) of section 1538.5, its discussion concerned not just subdivision (a) but “the amendments to section 1538.5.”  (In re Lance W., supra, 37 Cal.3d at p. 896, 210 Cal.Rptr. 631, 694 P.2d 744.)   The Lance W. court pointed out that when the Legislature twice amended section 1538.5 subsequent to the adoption of Proposition 8, it did not contemplate a departure from the substantive provisions of Proposition 8.

The first post-Proposition 8 amendment of section 1538.5 was implemented through the enactment of chapter 625.  “Chapter 625 was an urgency measure which became effective upon signing.   The bill included both a declaration, in section 2, that the amendment of section 1538.5 did ‘not create any new grounds for exclusion of evidence that did not exist prior to this act.   The Legislature intended that the changes made by this act are procedural only.’ ”  (In re Lance W., supra, 37 Cal.3d at p. 894, 210 Cal.Rptr. 631, 694 P.2d 744.)   The “procedural changes” do not relate to the so-called procedural nature of section 1538.5, subdivision (d), but instead relate to making motions to suppress evidence “ ‘․ more uniform and economical as soon as possible.’ ”  (Ibid.)

The second amendment to section 1538.5 came about when the Legislature also amended several other sections of the Penal Code.  Lance W. pointed out that the Senate Judiciary Committee referred to the amendment “as a noncontroversial ‘cleanup’ amendment.   We cannot assume that the Legislature understood or intended that such far-reaching consequences—virtually a legislative repeal of the ‘Truth–In–Evidence’ section of Proposition 8—would follow an amendment so casually proposed and adopted without opposition.”   (In re Lance W., supra, 37 Cal.3d at p. 894, 210 Cal.Rptr. 631, 694 P.2d 744.)

The Lance W. court concluded “that the amendments to section 1538.5 adopted by the Legislature in 1982 had neither the intent nor the effect of reviving exclusionary rules abrogated by Proposition 8.   Therefore, although section 1538.5 continues to provide the exclusive procedure by which a defendant may seek suppression of evidence obtained in a search or seizure that violates ‘state constitutional standards,’ a court may exclude the evidence on that basis only if exclusion is also mandated by the federal exclusionary rule applicable to evidence seized in violation of the Fourth Amendment.”  (In re Lance W., supra, 37 Cal.3d at p. 896, 210 Cal.Rptr. 631, 694 P.2d 744.)

The dissent penalizes the People for failing to seek immediate appellate review of the original suppression of evidence at the trial.   The People, however, would have no cause to seek review of a decision that properly excludes evidence.   The People do not contend that the excluded evidence should be admissible at trial, only that it should be admissible at the parole revocation hearing because such evidence would be admissible under federal law.

The dissent also finds it inconceivable that the Legislature would enact a totally inoperative statute.   Legislatures, as well as courts, have been known to do strange things.  Lance W. is the final word on what the amendments to section 1538.5 mean vis-a-vis Proposition 8.   Subdivision (d) is ornamental.  (See People v. Moore, supra, 201 Cal.App.3d 877, 157 Cal.Rptr. 503, 598 P.2d 473.)   It exists, but like section 13 or section 24 of article I of the California Constitution, where only state grounds for exclusion exist under the Fourth Amendment, it has no effect.  (See In re Lance W., supra, 37 Cal.3d at pp. 886–887, 210 Cal.Rptr. 631, 694 P.2d 744.)   The Lance W. court did not disapprove People v. Willis as the dissent points out.   That is an interesting point upon which we think it inappropriate to speculate.   The language in Lance W., however, indicates that Willis is no longer law.

 In his petition for rehearing, Douglas contends that we interpret Proposition 8 as repealing “all statutes” which “might result in suppression of evidence․”  Of course the state may create procedures for suppression motions.   Absent express statutory authority to the contrary, these procedures may not result in the exclusion of evidence unless federal constitutional standards require such exclusion.

Douglas argues that our holding permits the People to introduce evidence in superior court despite suppression of that evidence at the preliminary hearing.  (See § 1538.5, subd. (j).)  The flaw in Douglas' example is that at both the preliminary hearing and at trial the federal constitutional standard for excluding evidence is the same.   Thus, evidence excluded at the preliminary hearing could not be admitted at the trial.   The same is not true at the parole revocation hearing, where the federal standard for exclusion differs from that at trial.

 Because section 1538.5, subdivision (d), is not applicable, the Board correctly asserts that under state and federal law, the rule excluding the use of illegally obtained evidence does not apply at parole revocation hearings unless the method used to obtain the evidence was so egregious as to shock the conscience.  (In re Martinez (1970) 1 Cal.3d 641, 650, 83 Cal.Rptr. 382, 463 P.2d 734;  see United States ex rel. Sperling v. Fitzpatrick (2d Cir.1970) 426 F.2d 1161, 1164;  United States v. Vandemark (9th Cir.1975) 522 F.2d 1019.)

 Douglas argues that Officer Kresky's refusal to answer questions at trial about his alleged use of force against Douglas, leads to the inference that his conduct was egregious.   Assuming arguendo that the issue of Officer Kresky's conduct can be raised for the first time on appeal (see People v. Mills (1978) 81 Cal.App.3d 171, 175–176, 146 Cal.Rptr. 411), his refusal to answer was a constitutionally protected privilege from which we may not draw any inference.  (Evid.Code, § 913, subd. (a).)

Just as the issue of Officer Kresky's conduct was not dispositive at trial or in the writ proceeding, it is not germane to our review of the order granting the writ petition.   The order granting the writ is reversed.

I respectfully dissent.

I agree with the reasoning and the decision in People v. Willis (1983) 149 Cal.App.3d Supp. 56, 197 Cal.Rptr. 281.   Apparently, so does the California Supreme Court.  In re Lance W. (1985) 37 Cal.3d 873, 210 Cal.Rptr. 631, 694 P.2d 744, was filed originally containing footnote 19 on page 897, 210 Cal.Rptr. 631, 694 P.2d 744, disapproving People v. Willis.   Approximately seven weeks later, the Supreme Court modified its Lance W. decision by deleting that footnote.

As the court in In re Lance W. pointed out, at the outset of its decision, it was determining, “․ the impact of this new constitutional provision [article 2, section 28(d) ] upon prior decisions of California courts which mandate the exclusion of evidence obtained in violation of the federal Constitution (4th amend.) or the state Constitution (art. 1, § 13), under circumstances in which the evidence would be admissible under federal constitutional principles․”  (Id., at p. 879, 210 Cal.Rptr. 631, 694 P.2d 744.)   It did not suggest it was ruling on statutory procedural rules.

In construing subdivision (d) of 1538.5, rather than subdivision (a) which was under consideration in In re Lance W., the inquiry is not whether the search and seizure violated the state or federal Constitutions.   Instead, the question is whether a court has previously made a determination that evidence was illegally obtained.   When a court makes such a finding the People are entitled to immediate appellate review of such rulings under section 1538.5.   If such review is not sought, the evidence shall not thereafter be admissible at any trial or other hearing.

Proposition 8 authorized the Legislature to provide by statutes “hereafter enacted” by a two-thirds vote, for exceptions to the rule that, “․ evidence shall not be excluded in any criminal proceedings.”

As pointed out in the majority opinion, the Legislature has amended section 1538.5 four times since the adoption of Proposition 8, each time choosing to retain subdivision (d).   By doing so, the Legislature “reenacted” subdivision (d).  (Cal. Const., art. IV, § 9.)

I cannot conclude that the Legislature on each occasion when it reenacted 1538.5, subdivision (d) decided to enact a totally inoperative statute.   Had the Legislature wished to do what the majority declares it did, it would have merely eliminated subdivision (d) in its entirety.

In re Lance W. does not compel my colleagues to hold as they do.   The Lance court was concerned with the suggestion that the reenactment of 1538.5 as “judicially construed” would be considered tantamount to a virtual “․ repeal of the ‘truth in the evidence’ section of Proposition 8.”   The court determined that the Legislature obviously did not intend to repeal Proposition 8 immediately after its adoption.

However In re Lance W. does not hold that the Legislature cannot provide that illegally obtained evidence may not be used in pre or post conviction hearings after a court ruling.  Section 1538.5(d) is not a substantive exclusionary rule.   It is a procedural rule which does not create or contain grounds for exclusion of evidence and in no way could its reenactment be construed as a “virtual repeal” of Proposition 8.

There is no argument that the language in 1538.5(d) is unambiguous.   A settled principle of California law is that where statutory language is clear and not ambiguous, there is no need for construction.  (In re Waters of Long Valley Creek Stream System (1979) 25 Cal.3d 339, 348, 158 Cal.Rptr. 350, 599 P.2d 656.)  Section 1538.5(d) should be applied as written.

I would affirm the judgment.

FOOTNOTES

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

2.   Article I, section 28, subdivision (d) of the California Constitution reads:  “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.”

GILBERT, Associate Justice.

STEVEN J. STONE, P.J., concurs.