PEOPLE v. ALLEN (1989)

OPINION

Defendant, Herbert Perry Allen, was convicted by a jury of the information's sole charge, burglary of a commercial building and office (Pen.Code, § 460, subd. (2)).  He filed a timely appeal from the judgment.

Interesting instructional and evidentiary issues arise out of the unusual procedural posture of this case.   We hold:

1. Because defendant introduced, as a part of the defense case, his own pretrial admission or confession, it was error to instruct the jury to view such evidence with caution (CALJIC No. 2.70 (5th ed. 1988 bound vol.));

2. Defendant's out-of-court statement was not admissible under Evidence Code section 1250 (present state of mind);  and

3. Defendant's exercise of his Fifth Amendment privilege not to testify at his trial did not render him “unavailable” as a witness under Evidence Code section 240.

For the reasons expressed, we reverse.

FACTS

On May 13, 1988, an employee of a veterinary supply store went to the back room to obtain an item for a customer.   As she passed the company office located in the rear area of the building, she heard a noise, looked into the office, and saw defendant hiding under a desk.   When asked what he was doing, defendant stood up, said, “Nothing,” and ran from the office and out the back door of the building.   The employee yelled to another employee to call 911 and shouted to the customer to help her pursue the suspect.   The employee and customer chased defendant through one apartment complex, down a street, and into another apartment complex, where he was apprehended by the police.

Nothing was missing from the office.   However, fingerprints found on a desk drawer in the office were identified as those of defendant.

The owner of a tire sales business located across the street from the veterinary supply store testified defendant asked him about employment shortly before the incident.   A clerk at a neighboring bakery also testified defendant came into the bakery on the morning of the incident looking for a job.   Defendant had a job application in his pocket when he was arrested.

Senior Deputy Robert Yoon, who assisted in the initial investigation, was called as a witness by the defendant during the defense case.   Before Yoon was heard by the jury, the People made a hearsay objection to all testimony by Yoon about certain statements defendant made to Yoon after defendant's arrest.   An in limine hearing was held on the People's objection, during which counsel for defendant argued that Yoon's testimony was admissible under two exceptions to the hearsay rule—state of mind and declaration against interest.   At the conclusion of the hearing, the court overruled the objection.

Yoon then took the stand.   He testified that after defendant had been caught, secured in a police car, and given a Miranda ¹ warning, defendant said he had not planned on stealing anything prior to entering the building but had walked in the back door of the store to inquire about employment.   Defendant also said he saw an office desk drawer open as he walked through the rear area of the building.   He went into the office, looked inside the drawer, and saw a cash box.   He was about to open the cash box when he was surprised by a store employee.

No prosecution witness testified to any out-of-court statement by defendant, so defendant's description of the incident was not before the jury until Yoon testified as the last defense witness.

Defendant did not take the stand at trial, and instead relied on his statements to Yoon to support his defense against the burglary charges.   His theory was his lack of an intent to steal at the time he entered the building and at the time he walked into the office.   He argued he was guilty of attempted theft, not burglary.

The verdict forms given to the jury consisted of “guilty” and “not guilty” verdicts for each of two offenses, burglary (Pen.Code, § 460, subd. (2)), and attempted petty theft (Pen.Code, §§ 664/484).   The jury returned the “guilty” verdict for the offense of burglary.

DISCUSSION

I. THE INSTRUCTIONA. The Trial Court Erred in Giving the Jury a Cautionary Instruction Concerning Defendant's Statement to Deputy Yoon.

 The trial court's instructions to the jury included a complete version of CALJIC No. 2.70 (1980 rev.) (4th ed. pocket pt.).) ²  Defendant contends inclusion of the cautionary phrase found at the end of the instruction constituted prejudicial error.   He argues the instruction encouraged the jury to disfavorably view the statement he made to Yoon, and thus impermissibly discredited his defense against the burglary charges.

 CALJIC No. 2.70 is usually given where evidence of a statement amounting to an admission or confession ³ made by a defendant is presented by the prosecution.   The purpose of the instruction in that context is to benefit the defendant because it directs the jury to critically and consciously assess whether the inculpatory statement was actually made and accurately reported.  (People v. Beagle (1972) 6 Cal.3d 441, 455, 99 Cal.Rptr. 313, 492 P.2d 1.)   However, when the defendant admits the statement, the rationale behind and the reason for the instruction disappears.   Because the defendant is no longer in need of the protection afforded by the warning, the giving of the instruction is unnecessary.  (Cf., People v. Jackson (1954) 42 Cal.2d 540, 546, 268 P.2d 6.)

An analogous situation involves accomplice testimony.   Ordinarily, the court is sua sponte required to give a cautionary instruction ⁴ concerning the testimony of an accomplice called by the People.  (People v. Miller (1960) 185 Cal.App.2d 59, 82, 8 Cal.Rptr. 91.)   However, in People v. Graham (1978) 83 Cal.App.3d 736, 742–744, 149 Cal.Rptr. 6, it was held to be error to give the cautionary instruction when an accomplice, called by the prosecution, actually testified to facts favorable to the defendant.   Similarly, it is error to give the cautionary instruction when an accomplice is called by the defense.  (People v. Hartung (1950) 101 Cal.App.2d 292, 295, 225 P.2d 614;  People v. Fowler (1987) 196 Cal.App.3d 79, 85–87, 241 Cal.Rptr. 571.)

A cautionary instruction is necessary when an accomplice testifies for the prosecution because of the tainted source of the evidence, which is often given in the expectation of leniency or immunity.  (People v. Dail (1943) 22 Cal.2d 642, 654, 140 P.2d 828;  People v. Tewksberry (1976) 15 Cal.3d 953, 967, 127 Cal.Rptr. 135, 544 P.2d 1335.)   On the other hand, when the accomplice testimony benefits the defense, that justification disappears.   (People v. Graham, supra, 83 Cal.App.3d at p. 743, 149 Cal.Rptr. 6.)

An equivalent analysis applies here.   When the prosecution puts into evidence a statement by the defendant that constitutes a confession or an admission, in the absence of any affirmation of it by the defense the cautionary instruction must be given.   However, where the defendant introduces the statement ⁵ or in some manner affirmatively incorporates it into his or her defense to the charge, the jury should not be told to view the evidence with distrust.   The problem is that the jurors cannot reasonably be expected to distinguish between the two different issues—whether the statement was made and whether it was true.   The sentence “Evidence of an oral admission should be viewed with caution” which is included in CALJIC No. 2.70 can have a different meaning to a lay person than to one trained in the law.   A lay person might well, and probably would, understand “evidence” to mean the content of the admission, and consequently have difficulty drawing the legal distinction between content and the fact of occurrence.   Thus, there is a danger the defendant's verification of the statement will lead the jurors to conclude the caution was intended to admonish them to skeptically view the substance of the defendant's words.

 The effect of the instruction in these circumstances was to discredit defendant's evidence and thereby “ ‘․ trench upon his constitutional rights by invading the province of the jury.’ ”  (People v. Hartung, supra, 101 Cal.App.2d at p. 295, 225 P.2d 614.)   The inclusion of the cautionary segment of the instruction was error.⁶

B. The Error Was Prejudicial.

 We are constrained to conclude the error was prejudicial under the “miscarriage of justice” standard of article VI, section 13 of the California Constitution: ⁷

“[A] ‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.”   (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)

The principal distinction between the two crimes submitted to the jury was the defendant's intent at the time of entry into the store.   To be sure, there was circumstantial evidence of the existence at that moment of a plan to steal.   The defendant did not use the front, main entrance to the business, through which a person looking for a job would most likely pass.   The back of the building was screened by a fence which surrounded a storage area adjacent to the rear door used by defendant, and signs were posted near the door which contained warnings such as “Danger” and “Authorized Personnel Only” in bold letters.   Such facts support a conclusion defendant entered the store in a secretive and evasive manner with a criminal purpose in mind.

On the other hand, defendant's testimony that he came to the store to look for employment was corroborated by the testimony of the two nearby business persons who had been earlier contacted by defendant about job prospects, and by the job application found in defendant's pocket at the time of his arrest.   Defendant's story was not so inherently improbable as to be arbitrarily disregarded.⁸

With that physical and third party evidence before the jury, the credibility of the defendant as to his non-criminal purpose in entering the store was crucial.   The verdict reflects a resolution of that question adverse to the defendant.   The inclusion of the cautionary phrase might well have had a significant effect on the jury's evaluation of defendant's believability.   We cannot say that in the absence of the cautionary phrase the jury would not have believed defendant or, at minimum, entertained a reasonable doubt as to his guilt of the crime of burglary.   It is no more within our power to make credibility determinations than it was within the trial court's.

In effect, the court told the jury the statements made by defendant were to be viewed with distrust, thereby partially taking from the jurors their responsibility to be the “sole judges of the believability of a witness.”   (CALJIC No. 2.20 (1980 rev.) (4th ed. pocket pt.);   also see Pen.Code, § 1127.)   The admonition in this context is somewhat akin to the situation where the trial judge comments on the credibility of witnesses without informing the jury that the court's views are not binding on them.  (Cf., People v. Rodriguez (1986) 42 Cal.3d 730, 766, 230 Cal.Rptr. 667, 726 P.2d 113;  CALJIC No. 17.32 (1982 rev.) (4th ed. pocket pt.).)

The People urge reversal is not mandated because the improper instruction related to evidence which should not have been admitted ⁹ and the defendant could not thereby have been harmed.   The argument avoids the essential point.   Our holdings later in this opinion will prohibit, on retrial, admission of defendant's statements by way of the exceptions to the hearsay rule contained in Evidence Code section 1250 (existing state of mind), Evidence Code 1251 (former state of mind) and Evidence Code section 1230 (declaration against interest).   However, we leave open the remote possibility of admission of some or all of defendant's statement as a “spontaneous utterance” (Evid.Code, § 1240).   More importantly, defendant may present his version of the relevant events through his own direct testimony should he choose to take the stand on retrial.   Reversal is thus mandatory else we foreclose the defendant from the opportunity to have a jury evaluate his defense uninfluenced by improper instructions, whether the pertinent testimony comes in through Yoon or through defendant.

II. THE EVIDENTIARY ISSUES

A. Penal Code Section 1252 Review Is Proper

Because we reverse we are obliged to evaluate, at the request of the Attorney General, certain evidentiary rulings of the trial court.   Under Penal Code section 1252,¹⁰ when a judgment of conviction is overturned, the People may obtain appellate review of issues likely to arise on retrial which the People cannot raise by appeal.  (People v. Burke (1956) 47 Cal.2d 45, 54, 301 P.2d 241;  People v. Zelver (1955) 135 Cal.App.2d 226, 236–237, 287 P.2d 183.)

B. The Standard of Review

A decision about admissibility of the evidence as an exception to the hearsay rule requires the trial court to decide certain preliminary facts under Evidence Code section 405.  (See Assem. Com. on Judiciary com., 29B West's Ann.Evid.Code (1966 ed.) § 405, pp. 277–282;  3 Witkin, Cal.Evidence (3d ed. 1986) Introduction of Evidence at Trial, § 1726, p. 1681.)   The People's objection was made at an in limine hearing during trial, just before Yoon was called to the stand.   No oral testimony was taken at the hearing, and the court did not designate which party had the burden of producing evidence and the burden of proof.¹¹  After hearing counsel's lengthy arguments, the court resolved the objection by simply overruling it without any statement of reasons or findings.¹²

The admission of Yoon's testimony “implies whatever finding of fact is prerequisite thereto.”  (Evid.Code, § 402, subd. (c).)  If the record contains facts sufficient to support the ruling, we must uphold it.  (3 Witkin, Cal.Evidence, supra, Introduction of Evidence at Trial, § 1712, pp. 1672–1673;  Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329, 48 P. 117.)

C. Hearsay

The People contend the trial court's admission over the People's objection of the defendant's out-of-court statement to Yoon was error because the communication was pure hearsay outside the scope of any exception.   The statement was offered to prove the truth of the facts it contained, including defendant's professed innocent entry into the building and the absence of any criminal purpose on his part until after he walked into the office area.   As such, it was hearsay (Evid.Code, § 1200, subd. (a)), and may be admitted only to the extent it falls within a recognized exception to the hearsay rule.  (Evid.Code, § 1200, subd. (b).) ¹³  We will discuss in turn each of the claimed grounds of admissibility advanced by the defendant in his brief.

1. Evidence Code Section 1240 (“Spontaneous Utterance”)

Defendant first contends his statement to Yoon was a “spontaneous utterance” within Evidence Code section 1240, which provides as follows:

“Evidence of a statement is not made inadmissible by the hearsay rule if the statement:

“(a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant;  and

“(b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.”

Defendant did not seek admittance on this ground in the trial court.   The court's comments ¹⁴ when ruling at the conclusion of the in limine hearing makes it clear the parties did not raise, and the court did not rule on, any assertion section 1240 applied.   We do not construe those remarks, made after the parties had completed their presentations and submitted the issue, as a finding on the point.   Because the parties did not address this potential ground of admissibility below, we do not here decide it.

However, should the issue surface on remand, we offer a few observations for the guidance of the trial court.   On the record before us, we have serious doubts the defendant's statements to Yoon constitute “spontaneous utterances” within Evidence Code section 1240.   The defendant, after having fled the store, was chased down and apprehended some distance away.   He was then apparently driven in a patrol vehicle back to the main entrance area of the veterinary supply business and sometime later was interviewed there by Yoon.   The record does not reflect the lapse of time between those events.

Our Supreme Court in People v. Poggi (1988) 45 Cal.3d 306, 318–319, 246 Cal.Rptr. 886, 753 P.2d 1082, recently summarized the law in this area:

“Section 1240 is the codification of an established common law exception to the hearsay rule.  [Citations.]

“ ‘To render [statements] admissible [under the spontaneous declaration exception] it is required that (1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting;  (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance;  and (3) the utterance must relate to the circumstance of the occurrence preceding it.’  (Showalter v. Western Pacific R.R. Co. (1940) 16 Cal.2d 460, 468 [106 P.2d 895];  accord, People v. Washington, [ (1969) ] 71 Cal.2d [1170] at p. 1176 [81 Cal.Rptr. 5, 459 P.2d 259].)”

“ ‘The foundation for this exception is that if the declarations are made under the immediate influence of the occurrence to which they relate, they are deemed sufficiently trustworthy to be presented to the jury.  [Citation.]  [¶] The basis for this circumstantial probability of trustworthiness is “that in the stress of nervous excitement the reflective faculties may be stilled and the utterance may become the unreflecting and sincere expression of one's actual impressions and belief.” ’  (Showalter v. Western Pacific R.R. Co., supra, 16 Cal.2d at p. 468 [106 P.2d 895].)

“Whether the requirements of the spontaneous statement exception are satisfied in any given case is, in general, largely a question of fact.  (See, e.g., People v. Washington, supra, 71 Cal.2d at pp. 1176–1177 [81 Cal.Rptr. 5, 459 P.2d 259].)   The determination of the question is vested in the court, not the jury.  (E.g., People v. Tewksbury (1976) 15 Cal.3d 953, 966, fn. 13 [127 Cal.Rptr. 135, 544 P.2d 1335].)   In performing this task, the court ‘necessarily [exercises] some element of discretion․’  (Showalter v. Western Pacific R.R. Co., supra, 16 Cal.2d at p. 469 [106 P.2d 895].)

“Because the second requirement relates to the peculiar facts of the individual case more than the first or third does (see 6 Wigmore, Evidence (Chadbourn rev. ed. 1976) § 1750, pp. 202–222 [hereafter Wigmore];  People v. Jones (1984) 155 Cal.App.3d 653, 662 [202 Cal.Rptr. 289], following Wigmore), the discretion of the trial court is at its broadest when it determines whether this requirement is met (see Showalter v. Western Pacific R.R. Co., supra, 16 Cal.2d at pp. 468–469 [106 P.2d 895] ).   Indeed, Dean Wigmore goes so far as to urge that the issue should be left ‘absolutely to the determination of the trial court.’  (6 Wigmore, supra, § 1750, p. 221, italics deleted.)”

 When the facts now before us are measured against the statutory and case law standards, two points are apparent.   First, the passage of time and the number of events between the defendant's entry into the store and the delivery of his explanation to Yoon make it unlikely the statement was uttered before defendant had time to reflect.¹⁵  No doubt defendant was at the time in some state of agitation or nervousness about being chased down, arrested, and held in a police car.   But Evidence Code section 1240 requires that the statement which is the product of the reaction relate to the event which it describes, not some other event which, at the time it occurred, may have been equally as exciting to the declarant.

Second, Evidence Code section 1240 expressly requires that the statement describe the act, condition, or event perceived by the defendant which caused the “stress of excitement.”   Here, the statement described the defendant's entry into, movement about, and discovery in, the veterinary store.   We are somewhat dubious that, in giving his statement to Yoon sometime after he had made his way into and out of the store and after he had been chased, captured, and secured in a patrol vehicle, defendant was “ ‘under the immediate influence of the occurrence’ ” (Poggi, supra, at p. 318, 246 Cal.Rptr. 886, 753 P.2d 1082) to which the explanation relates, i.e., defendant's entry into and activities inside the store.

On the record now before us we would have no difficulty deciding the defendant's statement was not “spontaneous” were the question squarely before us.   However, as we said, since the record does not disclose the lapse of time between the pertinent events and because the parties did not raise the issue in the trial court, we do not decide it.   The topic may be presented to the trial judge on remand.

2. Evidence Code section 1250 (Existing State of Mind)

 Just prior to the close of the in limine arguments, defense counsel suggested that Evidence Code section 1250 constituted another justification for allowing the jury to hear Yoon's testimony about what the defendant told him.   As noted above, in ruling on the People's objection the court did not articulate the identity of the exception or exceptions under which the testimony was permitted.

If the court rested its decision upon Evidence Code section 1250, it was in error.  Section 1250 addresses statements of the declarant's “then-existing state of mind, emotion or physical sensation.”  (Evid.Code, § 1250, subd. (a), emphasis added.)   The information which defendant gave to Yoon consisted of a recitation of past events—what defendant did and thought with respect to the store.   The portion of the statement which describes defendant's past mental condition—his lack of intent to steal at any time before approaching the cash box in the office—is not within the scope of section 1250.

The only “state of mind” invoked by Yoon's testimony is defendant's memory of the past events, including his intentions as he proceeded through the store.   Evidence Code section 1250, subdivision (b) ¹⁶ specifically prohibits admission of such evidence under the exception codified in section 1250:

“Any statement of a past event is, of course, a statement of the declarant's then existing state of mind—his memory or belief—concerning the past event.   If the evidence of that state of mind—the statement of memory—were admissible to show that the fact remembered or believed actually occurred, any statement narrating a past event would be, by a process of circuitous reasoning, admissible to prove that the event occurred.”  (See Assem. Com. on Judiciary com., 29B West's Ann.Evid.Code (1966 ed.) § 1250, p. 271;  also see Estate of Anderson (1921) 185 Cal. 700, 718, 719–720 [198 P. 407].)

3. Evidence Code section 1230 (Declaration Against Interest)

Evidence Code section 1230 provides:

“Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant's pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true.”  (Emphasis added.)

Evidence Code section 240 expresses the uniform rule applicable to determining “unavailability” whenever it is a condition of admissibility under another provision of the Code.  (Assem. Com. on Judiciary com., 29B West's Ann.Code § 240, p. 26.)   Insofar as is pertinent to this case, Evidence Code section 240 reads:

“(a) Except as otherwise provided in subdivision (b), ‘unavailable as a witness' means that the declarant is any of the following:

“(1) Exempted or precluded on the ground of privilege from testifying concerning the matter to which his or her statement is relevant.

“․

“(b) A declarant is not unavailable as a witness if the exemption, preclusion, disqualification, death, inability, or absence of the declarant was brought about by the procurement or wrongdoing of the proponent of his or her statement for the purpose of preventing the declarant from attending or testifying.”

The defendant here contends he was “unavailable” as a witness by reason of the exercise of his Fifth Amendment privilege not to testify.  (Evid.Code, § 240, subd. (a)(1).)

It is well established that a third party declarant who refuses to testify on self-incrimination grounds is “unavailable” within the meaning of Evidence Code section 240.  (People v. Smith (1970) 13 Cal.App.3d 897, 902, 91 Cal.Rptr. 786;  People v. Lopez (1980) 110 Cal.App.3d 1010, 1021, 168 Cal.Rptr. 378.)   However, we have been unable to uncover any definitive case authority for the proposition that the result is the same when the defendant is the declarant.   On the face of it, if a third party witness who relies on the Fifth Amendment is “unavailable,” a defendant witness who asserts the same right should likewise be “unavailable.”   Putting aside subdivision (b) of Evidence Code section 240, the statutes involved (Evid.Code, § 240, subd. (a) and Evid.Code, § 1230) speak generally in terms of “declarants” or “witnesses” and carve out no excluded category for defendants in criminal cases who choose not to testify.

Nonetheless, what authority does exist explicitly and directly makes the distinction, by reference to Evidence Code section 240, subdivision (b), or similar provisions contained in other codes of evidence, such as the Federal Rules of Evidence.   The legislative comment to section 240, subdivision (b), declares its purpose to “establish safeguards against sharp practices and ․ to assure ‘that unavailability is honest and not planned in order to gain an advantage,’ ” such that “if the out-of-court statement is that of the party himself, he may not create ‘unavailability’ under this section by invoking a privilege not to testify.”  (See Assem. Com. on Judiciary com., 29B West's Ann.Evid.Code (1966 ed.) § 240, pp. 26–27.)

The cases which have encountered the issue side with the legislative comment to Evidence Code section 240 (see Assem. Com. on Judiciary com., 29B West's Ann.Evid.Code, supra, § 240, pp. 26–27).   In People v. Cruz (1968) 264 Cal.App.2d 350, 70 Cal.Rptr. 603, decided under the predecessor to the current Evidence Code,¹⁷ among the issues raised by the defendant was the admissibility of a tape-recording of certain statements he had made.   The defendant argued the statements reflected his “state of mind.”   Although deciding the question on the ground of lack of “trustworthiness,” the court mentioned in passing that section 1251 of the then new Evidence Code dealt with the “former state of mind” exception to the hearsay rule and observed:

“If the declarant is a defendant in a criminal action, he would not be able to take advantage of section 1251 because his privilege not to become a witness does not make him unavailable.   Defendant, as a party, was in a position to control his availability.  (See comment on Evid.Code, § 240:  ‘Moreover, if the out-of-court statement is that of the party himself, he may not create “unavailability” under this section by invoking a privilege not to testify.’)”  (People v. Cruz, supra, 264 Cal.App.2d at pp. 356–357, fn. 6 [70 Cal.Rptr. 603];  see Assem. Com. on Judiciary com., 29B West's Ann.Evid.Code, supra, § 240, p. 27.)

The Cruz dicta was noted in People v. Fry (1985) 166 Cal.App.3d 941, 951, footnote 5, 213 Cal.Rptr. 319:

“A witness claiming a valid privilege not to testify is unavailable.   [Citations.]  Whether this allows a defendant to get his own out-of-court hearsay statements in evidence is not addressed by [People v.] Smith [ (1970) 13 Cal.App.3d 897, 902, 91 Cal.Rptr. 786], and dicta in People v. Cruz, supra, 264 Cal.App.2d 350, 356–357, footnote 6 [70 Cal.Rptr. 603], indicates the defendant cannot ‘manufacture’ his own unavailability.”

Federal cases under rule 804 18 of the Federal Rules of Evidence have recognized the issue (United States v. Evans (1980) 635 F.2d 1124, 1126, fn. 1).   One federal court has held, without analysis or citation of authority, in conformity with Cruz and the legislative comment to section 240.   (United States v. Bennett (10th Cir.1976) 539 F.2d 45, 54, cert. den. 429 U.S. 925, 97 S.Ct. 327, 50 L.Ed.2d 293 [“The right not to testify is clearly his, but the defendant may not invoke that right and avoid facing cross-examination while claiming the right to have his [former] testimony put before the jury.”];   see also Assem. Com. on Judiciary com., 29B West's Ann.Evid.Code, supra, § 240, pp. 26–27;  McCormick on Evidence (3d ed.) § 253, p. 754, fn. 8.)

 Defendant argues it is constitutionally impermissible to hold that an accused who exercises his or her Fifth Amendment right is “available” under section 240, because to do so would violate due process by traversing the privilege.   He cites Griffin v. California (1965) 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, which invalidated, as a “penalty” imposed on the accused for exercising Fifth Amendment rights, a state evidentiary rule that allowed the prosecutor to comment on the defendant's silence.

Whether a state rule of procedure or evidence runs afoul of the Fifth Amendment depends upon whether its effect “impairs to an appreciable extent any of the policies behind” the right enshrined in the Fifth Amendment.   (McGautha v. California (1970) 402 U.S. 183, 214, 91 S.Ct. 1454, 1470, 28 L.Ed.2d 711.)   Those policies were summarized in Murphy v. Waterfront Commission (1964) 378 U.S. 52, 55, 84 S.Ct. 1594, 1596, 12 L.Ed.2d 678:

“The privilege against self-incrimination ‘registers an important advance in the development of our liberty—“one of the great landmarks in man's struggle to make himself civilized.” ’  Ullmann v. United States, 350 U.S. 422, 426 [76 S.Ct. 497, 500, 100 L.Ed. 511].   It reflects many of our fundamental values and most noble aspirations:  our unwillingness 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-incriminating statements will be elicited by inhumane treatment and abuses;  our sense of fair play which dictates ‘a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load,’ 8 Wigmore, Evidence (McNaughton rev., 1961), 317;  our respect for the inviolability of the human personality and of the right of each individual ‘to a private enclave where he may lead a private life,’ United States v. Grunewald, 233 F.2d 556, 581–582 (Frank, J., dissenting), rev'd 353 U.S. 391 [77 S.Ct. 963, 1 L.Ed.2d 931];  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].”   (Fn. omitted.)

However, the privilege does not sweep away any and all procedural or evidentiary rules which impact upon a defendant's election to testify.   For example, the jury's power to decide both guilt and punishment at a single trial (McGautha v. California, supra, 402 U.S. 183 at p. 217, 91 S.Ct. at p. 1472), the prosecutor's ability to cross-examine a defendant who has elected to testify (Brown v. Walker (1898) 161 U.S. 591, 597–598, 16 S.Ct. 644, 647, 40 L.Ed. 819), the prosecutor's reference to a defense failure to introduce evidence of certain friendly witnesses (People v. Grant (1969) 268 Cal.App.2d 470, 475, 74 Cal.Rptr. 111), the prosecutor's disparagement of the defense case (People v. Bethea (1971) 18 Cal.App.3d 930, 936, 96 Cal.Rptr. 229), and the prosecutor's impeachment of a testifying defendant with prior convictions (Adamson v. California (1946) 332 U.S. 46, 57–58, 67 S.Ct. 1672, 1678–1679, 91 L.Ed. 1903;  People v. Beagle, supra, 6 Cal.3d at pp. 453–454, 99 Cal.Rptr. 313, 492 P.2d 1), have all been constitutionally validated even though the effect of each is to sometimes compel the defendant to make difficult tactical elections, including in many instances whether to take the stand.   That such choices are often tough is not a denial of due process.   (Adamson v. California, supra, 332 U.S. at pp. 57–58, 67 S.Ct. at pp. 1678–1679;  People v. Beagle, supra, 6 Cal.3d at p. 454, 99 Cal.Rptr. 313, 492 P.2d 1.)

The bedrock purpose of the privilege “ ‘is to regulate a particular government-governed relation’ ”  (Murphy, supra, 378 U.S. at p. 56, fn. 5, 84 S.Ct. at p. 1597, fn. 5), that is, the involuntary acquisition of evidence by the state from the citizen.   The cases such as Griffin which have found a constitutional defect deal with instances where the defendant's exercise of the privilege is in some manner pointed out or commented on to the trier of fact in a way that suggests the defendant's silence arises out of actual guilt or a purpose to conceal.  (Griffin v. California, supra, 380 U.S. at p. 614–615, 85 S.Ct. at p. 1232–1233;  People v. Crawford (1967) 253 Cal.App.2d 524, 534–535, 61 Cal.Rptr. 472 [prosecutor's comment on alibi defense];  People v. Summerfield (1968) 262 Cal.App.2d 626, 631, 69 Cal.Rptr. 10 [instruction].)   In other words, the exercise of the privilege itself is turned against, and used by the prosecution to the disadvantage of, the defendant.   Such actions fly in the face of the Fifth Amendment's basic rationale—to protect against governmental coercion of the accused's testimony.  (Murphy v. Waterfront Commission, supra, 378 U.S. at p. 55, 84 S.Ct. at p. 1596.)

We do not have that sort of situation here.   To deem the defendant “available” does not allow the prosecution to coercively conscript from him his own knowledge or to comment on or otherwise use his silence.  (Murphy, supra, 378 U.S. at p. 56, fn. 5, 84 S.Ct. at p. 1597, fn. 5.)   Neither defendant's own words nor his silence will be available to support the People's case.   Indeed, the prosecution in the trial court did not seek to call Yoon during the People's case-in-chief or in any way use the defendant's statements to the officer against him.

We think the United States Supreme Court's remarks in Adamson v. California, supra, 332 U.S. at pages 57–58, 67 S.Ct. at pages 1678–1679, although they deal with impeachment by a prior conviction, are nonetheless apropos:

“It is true that if comment were forbidden, an accused in this situation could remain silent and avoid evidence of former crimes and comment upon his failure to testify.   We are of the view, however, that a state may control such a situation in accordance with its own ideas of the most efficient administration of criminal justice.

The purpose of due process is not to protect an accused against a proper conviction but against an unfair conviction.   When evidence is before a jury that threatens conviction, it does not seem unfair to require him to choose between leaving the adverse evidence unexplained and subjecting himself to impeachment through disclosure of former crimes.   Indeed, this is a dilemma with which any defendant may be faced.   If facts, adverse to the defendant, are proven by the prosecution, there may be no way to explain them favorably to the accused except by a witness who may be vulnerable to impeachment on cross-examination.   The defendant must then decide whether or not to use such a witness.   The fact that the witness may also be the defendant makes the choice more difficult but a denial of due process does not emerge from the circumstances.”  (Emphasis added.)

 There being no constitutional impediment to a rule of evidence which declares a defendant “available” for purposes of application of a hearsay exception, we need now determine whether Evidence Code section 240 admits of such an interpretation.   The initial and obvious resort must be to the Comment to section 240, which directly discloses what the Legislature had in mind.   (Cf., People v. Rojas (1975) 15 Cal.3d 540, 551, 125 Cal.Rptr. 357, 542 P.2d 229  [The Legislative Comment to § 240 is an expression of the “legislative intent”].)   The pertinent portion of the Comment, should we adopt it, necessitates a holding that the defendant “may not create ‘unavailability’ ․ by invoking a privilege not to testify.”   We have found nothing which commands rejection of the Comment.

Two basic considerations underly most of the exceptions to the hearsay rule:  a circumstantial probability of “trustworthiness” and a “necessity” for the evidence.  (5 Wigmore, Evidence (Chadbourn ed. 1974) § 1420).   With respect to the element of necessity, if the secondary evidence is not admitted it would otherwise be lost because the declarant is unavailable and there are no present sources to secure “evidence of the same value.”  (5 Wigmore, supra, § 1421.)   Thus, the concept of “unavailability” expresses a rule of preference, such that the declarant's personal in court recitation of events, with the safeguards of oath and cross-examination, is preferred if it is available.   If it is not, then his or her extrajudicial statements, so long as they are of a certain quality, are favored over the total loss of the evidence.  (4 Weinstein's Evidence (1988) § 804(a)[01].)

Originally, the test of unavailability was satisfied only if the declarant was dead at the time of trial.¹⁹  The concept was thereafter expanded, and other forms of unavailability were recognized as meeting the test of necessity, including the exercise by the witness of a privilege.  (5 Wigmore, supra, § 1456, fn. 6.)   In the development of the exceptions, the essential recognition was that if the declarant was legitimately unavailable, secondary evidence of what he or she said was the best evidence at hand, and therefore, if relevant and trustworthy, it ought to be allowed for whatever weight the jury might give it.  (40 So.Cal.L.Rev. 1, 22;  Naylor v. Gronkowski (1972) 9 Ill.App.3d 302;  292 N.E.2d 227, 229–230.)   The California Supreme Court participated in the evolution of the law on this topic, and before adoption of the present Evidence Code had decided that death, insanity, serious illness, absence from the state, and refusal of a third-party declarant to testify on grounds of privilege rendered a witness unavailable.  (People v. Spriggs (1964) 60 Cal.2d 868, 875, 36 Cal.Rptr. 841, 389 P.2d 377.)²⁰  More recently, a witness's declination to testify out of fear has received equal billing.   (People v. Rojas, supra, 15 Cal.3d at p. 552, 125 Cal.Rptr. 357, 542 P.2d 229.)

This history indicates that the element of necessity is established when neither the court nor the parties possesses the power or ability to produce the testimony.   A witness not a party who invokes the Fifth Amendment cannot be forced to testify by the parties or the court.  (People v. Lopez (1980) 110 Cal.App.3d 1010, 1021, 168 Cal.Rptr. 378.)   A witness who refuses to testify after a grant of immunity, once all reasonable steps to compel him or her to do so prove unavailing, is beyond the court's or the parties' compulsion.  (People v. Rojas, supra, 15 Cal.3d at p. 551, 125 Cal.Rptr. 357, 542 P.2d 229 [fear for life];  People v. Sul (1981) 122 Cal.App.3d 355, 360, 175 Cal.Rptr. 893;  People v. Francis (1988) 200 Cal.App.3d 579, 588, 245 Cal.Rptr. 923;  Mason v. United States (1969) 408 F.2d 903, 906.)   Of the same class, obviously, are witnesses who have died (5 Wigmore, supra, § 1456), who are insane (5 Wigmore, supra, § 1456, fn. 3), who are ill (5 Wigmore, supra, § 1456, fn. 2), who are outside the jurisdiction (McCormick on Evidence, supra, § 253, p. 754), and who claim lack of memory (McDonnell v. United States (1973) 472 F.2d 1153, 1155, cert. den. 412 U.S. 942, 93 S.Ct. 2785, 37 L.Ed.2d 402).

That is not so when the party, for his or her own supposed advantage, creates the witnesses' or his or her own legal unavailability or is somehow responsible for allowing the unavailability to occur.   This distinction has long been acknowledged.  (Fed. Rules of Evid., rule 804(a) (28 U.S.C.);   Reports, Recommendations and Studies, 4 Cal. Law Revision Com.Rep. (1964) p. 412 [comments by the California Law Revision Commission on rule 62(7) of the Uniform Rules of Evidence].)   It was a principal concern of the Law Revision Commission, as it had been of the Commission on the Uniform Evidence Code, to safeguard against “sharp practices” in order to assure “ ‘that unavailability is honest and not planned in order to gain an advantage.’ ”  (4 Cal.Law Revision Com.Rep., supra, p. 412, fn. 9;  also see Assem. Com. on Judiciary com., 29B West's Ann.Evid.Code, supra, § 240, pp. 26–27.)   The prophylactic measure intended to protect against such evasions is embodied in subdivision (b) of Evidence Code section 240 (see 4 Cal. Law Revision Com. Rep., supra, at p. 412), and confirmed by the comment to the statute.

In sum, we hold that a defendant who elects not to testify at his or her own trial is not “unavailable” within the meaning of Evidence Code section 240.   Where such a defendant desires to introduce his or her own out of court statements without being sworn or becoming subject to the disadvantage of cross-examination, the requisite “necessity” to hear the proffered secondary evidence is not present.   To hold otherwise would be to offer a “savvy” defendant a golden opportunity to manipulate the receipt of favorable evidence without having to face the burden of cross-examination.

Since we dispose of the Evidence Code section 1230 exception on this limited ground, we are spared the chore of deciding how to handle the portions of the statement which are either neutral or not against defendant's interest.  (See 4 Weinstein's Evidence, supra, § 8.04(b)(3)[02];  and 1 Witkin, Cal.Evidence (3d ed. 1986) The Hearsay Rule, § 689, pp. 676–677.)   In addition, our decision makes it unnecessary to assess the admissibility of the defendant's statement under Evidence Code section 1251 (past state of mind); ²¹  the “availability” of the defendant precludes admission under that exception.

DISPOSITION 22

The judgment is reversed.

FOOTNOTES

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

2.   The instruction given to the jury by the trial court is as follows:“A confession is a statement made by a defendant other than at his trial in which he has acknowledged his guilt of the crime for which he is on trial.   In order to constitute a confession, such a statement must acknowledge participation in the crime as well as the required criminal intent.“A statement made by a defendant other than at his trial is not a confession but an admission whenever the statement does not by itself acknowledge his guilt of the crime for which he is on trial, but which tends to prove his guilt when considered with the rest of the evidence.“You are the exclusive judges as to whether the defendant made a confession or an admission, and if so, whether such statement is true in whole or in part.   If you should find that the defendant did not make the statement, you must reject it.   If you find that it is true in whole or in part, you may consider that part which you find to be true.“Evidence of an oral confession or oral admission of the defendant should be viewed with caution.”

3.   The proper compartmentalization of each term or phrase in defendant's statement for purposes of CALJIC 2.70, that is, whether his words should be classed in whole or in part as a “confession” of attempted petty theft, an “admission” relevant to the burglary charge or the lesser offense of attempted petty theft, or a combination, is irrelevant to this appeal.   The defendant's only challenge to the instruction is the inclusion of the cautionary phrase.

4.   For example, CALJIC No. 3.18 (5th ed. 1988 bound vol.).

5.   For purposes of this portion of our opinion, we assume Yoon's testimony about what the defendant said is otherwise admissible.

6.   Depending upon the circumstances, the trial court may be required to tailor the instruction to meet the defendant's trial treatment of the purported admission or confession.   For example, if the defendant admits, by his own testimony, or by the testimony of a third party witness, or by argument, to having made a portion, but not all, of an admission attributed to him by a prosecution witness, the instruction will require alteration so as to inform the jury that the caution applies only to the part of defendant's statement which he denies or to the part which he neither admits nor denies, as the case may be, and does not apply to the part which he admits.   Also, if a portion of a defendant's statement is exculpatory and a portion incriminatory, appropriate corresponding modification would be required.   An equivalent rule applies to accomplice testimony.  (People v. Flanders (1979) 89 Cal.App.3d 634, 639, 152 Cal.Rptr. 696 [Accomplice instructions should point out to the jurors that they are to “view with distrust only that portion of the accomplice's testimony which incriminated” the defendant.] )

7.   We do not reach the issue of whether the error was of constitutional import and therefore prejudicial under the more stringent test of Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.

8.   “To be improbable on its face the evidence must assert that something has occurred that it does not seem possible could have occurred under the circumstances disclosed.   The improbability must be apparent;  evidence which is unusual or inconsistent is not necessarily improbable.”   (People v. Headlee (1941) 18 Cal.2d 266, 267–268, 115 P.2d 427;  also see People v. Mayberry (1975) 15 Cal.3d 143, 150, 125 Cal.Rptr. 745, 542 P.2d 1337.)

9.   The People's evidentiary objections are assessed in Part II of this opinion.

10.   Penal Code section 1252 provides in pertinent part:  “On an appeal by a defendant, the appellate court shall, in addition to the issues raised by the defendant, consider and pass upon all rulings of the trial court adverse to the State which it may be requested to pass upon by the Attorney General.”

11.   Generally, the burden is on the proponent of the evidence to show that it comes within a hearsay objection.  (Evid.Code, § 1200;  see Assem. Com. on Judiciary com., 29B West's Ann.Evid.Code (1966 ed.) § 405, p. 227.)

12.   Express findings are not required.  (Evid.Code, § 402, subd. (c).)

13.   Whether all or any part of the defendant's words are admissible into evidence presents a question distinct from that concerned with the propriety of giving the cautions embodied in CALJIC No. 2.70.   Only after the evidence is properly admitted, and only to the extent of the evidence actually admitted, does any issue arise about whether that evidence requires the instructional warning.

14.   “I am also curious about the fact that counsel has not argued that it was some kind of spontaneity, that is a spontaneous type utterance.”

15.   We acknowledge that “ ‘[N]either lapse of time ․ nor the fact that the declarations were elicited by questioning deprives the statements of spontaniety if it nevertheless appears that they were made under the stress of excitement and while the reflective powers were still in abeyance.’ ”  (Poggi, supra, 45 Cal.3d at p. 319, 246 Cal.Rptr. 886, 753 P.2d 1082, emphasis deleted.)

16.   Evidence Code section 1250, subdivision (b), reads:  “This section does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed.”

17.   Evidence Code section 240 is declarative of the law existing at the time of its enactment.  (See Assem. Com. on Judiciary com., 29B West's Ann.Evid.Code, supra, § 240, p. 27.)

FN18. In relevant part rule 804(a) of the Federal Rules of Evidence (28 U.S.C.) provides:“(a) Definition of unavailability.—‘Unavailability as a witness' includes situations in which the declarant—“(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement;  or“(2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so;  or“(3) testifies to a lack of memory of the subject matter of the declarant's statement;  or“(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity;  or“(5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means.“A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.”.  FN18. In relevant part rule 804(a) of the Federal Rules of Evidence (28 U.S.C.) provides:“(a) Definition of unavailability.—‘Unavailability as a witness' includes situations in which the declarant—“(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement;  or“(2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so;  or“(3) testifies to a lack of memory of the subject matter of the declarant's statement;  or“(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity;  or“(5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means.“A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.”

19.   “The cases where such evidence is admitted seem to proceed generally upon the principle that, by the decease of the person, better evidence cannot be had.”  (Williams, J., in Fitch v. Chapman (1833) 10 Conn. 8, 11, quoted in 5 Wigmore, supra, § 1456.)

20.   The cases which have addressed this matter have pointed out the real issue, the unavailability of the witness's testimony, not the witness, for a witness may be physically present in court but his or her testimony may nevertheless be unavailable.  (McCormick on Evidence, supra, § 253.)

21.   Evidence Code section 1251 provides:“Subject to Section 1252, evidence of a statement of the declarant's state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) at a time prior to the statement is not made inadmissible by the hearsay rule if:“(a) The declarant is unavailable as a witness;  and“(b) The evidence is offered to prove such prior state of mind, emotion, or physical sensation when it is itself an issue in the action and the evidence is not offered to prove any fact other than such state of mind, emotion, or physical sensation.”  (Emphasis added.)

22.   Defendant on this appeal also contends the trial court erred in allowing the prosecutor, over defendant's objection, to elicit Yoon's personal opinion about defendant's credibility at the time he made the statements in issue.   However, the People have effectively conceded the error, as they must.  (People v. Melton (1988) 44 Cal.3d 713, 744, 244 Cal.Rptr. 867, 750 P.2d 741.)

DIBIASO, Associate Justice.

BEST, Acting P.J., and BAXTER, J., concur.