PEOPLE v. GOMEZ (1984)

On appeal from a judgment of conviction for sale of heroin (Health & Saf.Code, § 11352), appellant, Felipe Mejia Gomez, contends that he was denied his right to an interpreter throughout the proceedings and that he was denied effective assistance of counsel because his attorney did not make effective use of the interpreter that was provided.   We affirm the judgment.

I. The Facts

The circumstances of the underlying offense are not pertinent to this appeal.   The salient facts follow.   Trinidad Montes worked for the Salinas Police Department as an undercover operator in a “heroin buy program.”   After preliminary negotiations he bought six balloons, or one “spoon,” of heroin from appellant, through the latter's codefendant, Dolores Ruiz.   Recordings of several incriminating conversations about the transaction were introduced in evidence.   Appellant denied selling the heroin or knowing Ms. Ruiz.

II. Discussion

In California, a criminal defendant who is unable to understand English is entitled to an interpreter throughout the proceedings.  (Cal. Const., art. I, § 14, 3d par.) ¹

The record before us shows that at the beginning of the preliminary hearing appellant's counsel asked that “the interpreter be sworn,” and this was done without discussion.   At the commencement of trial, the court simply stated, “Swear the interpreter, please,” and again this was done without discussion.

The first indication of any question about use of the interpreter occurred during the district attorney's cross-examination of appellant, who testified through an interpreter.   The following colloquy occurred:  “MR. CURTIS [district attorney]:  Q.   Mr. Gomez, you understand some English, don't you?

“A Little bit, not too much.

“Q Well, during most of the trial the interpreter wasn't interpreting to you what was happening in the courtroom.

“MR. PANELLI [defense counsel]:  Your Honor, that was at my request and I didn't want the interpreter interpreting every word because I didn't want me to be bothered when I heard the witness.

“THE COURT:  All right.

“MR. CURTIS:  There is a question pending.

“MR. PANELLI:  I will stipulate to that.

“THE COURT:  Well, I'm sure everybody could observe what was happening.   Next question.

“MR. CURTIS:  Q.   Do you understand what was being said when the interpreter wasn't interpreting to you?

“A What you are asking me?

“Q No.   While other witnesses were testifying in English, did you understand what they were saying?

“A No.”

A moment later, during cross-examination about benefits appellant was receiving from his former employer, this exchange took place:  “Q Is that $140 a month?

“A No.   Every 15 days.

“Q So that's $140, roughly, every two weeks, right?

“A Yes.   It's 140 every two weeks.

“Q Mr. Gomez, you just shook your head before the interpreter asked you that question.   Did you understand what I said?

“A What you are asking me, I understood.”

After the jury returned its verdicts finding appellant guilty and Ms. Ruiz not guilty, appellant retained new counsel, Joaquin Celaya, who prepared and filed a motion for new trial, arguing, as he does on appeal, that appellant was deprived of his right to an interpreter throughout the proceedings and that he was deprived of his right to counsel because his trial attorney did not make effective use of the interpreter.

A. Propriety of Raising the Issue by Motion for New Trial

Section 1181 of the Penal Code lists nine bases upon which the trial court may grant a new trial, and it states that these are the “only” grounds for such ruling.   Deprivation of the right to an interpreter throughout the proceedings is not enumerated, and we have found no decision discussing the point.  (E.g., People v. Aguilar (1984) 35 Cal.3d 785, 200 Cal.Rptr. 908, 677 P.2d 1198 [no indication of motion for new trial];  People v. Carreon (1984) 151 Cal.App.3d 559, 198 Cal.Rptr. 843 [no indication];  People v. Chavez (1981) 124 Cal.App.3d 215, 177 Cal.Rptr. 306 [appeal after guilty plea].)  However, in one case, People v. Larrios (1934) 220 Cal. 236, 30 P.2d 404, the Supreme Court considered (and rejected) a claim raised on motion for new trial that the sheriff or jailer had refused to permit counsel to interview his client through an interpreter of his own choice.  (Id., at pp. 249–250, 30 P.2d 404.)

We find more recent persuasive authority from our Supreme Court that a new trial motion is the appropriate and preferred method of raising this issue.   In People v. Fosselman (1983) 33 Cal.3d 572, 189 Cal.Rptr. 855, 659 P.2d 1144, the court considered a similar question regarding the right to effective assistance of counsel.   Noting that deprivation of that right was not one of the enumerated grounds for granting new trial, the court held that the point should have been considered by the trial court on the defense motion for new trial.   The discussion was as follows:  “Penal Code section 1181 enumerates nine grounds for ordering a new trial.   It is true the section expressly limits the grant of a new trial to only the listed grounds, and ineffective assistance is not among them.   Nevertheless, the statute should not be read to limit the constitutional duty of trial courts to ensure that defendants be accorded due process of law.  ‘Upon the trial judge rests the duty of seeing that the trial is conducted with solicitude for the essential rights of the accused.’  (Glasser v. United States (1942) 315 U.S. 60, 71 [62 S.Ct. 457, 465, 86 L.Ed. 680] ․;  see also Powell v. Alabama (1932) 287 U.S. 45, 52 [53 S.Ct. 55, 58, 77 L.Ed. 158] ․;  People v. Davis (1973) 31 Cal.App.3d 106, 110 [106 Cal.Rptr. 897] ․;  Schwarzer, Dealing With Incompetent Counsel—The Trial Judge's Role (1980) 93 Harv.L.Rev. 633, 639, fn. 27, 649.)   The Legislature has no power, of course, to limit this constitutional obligation by statute.  (People v. Davis, supra, 31 Cal.App.3d at p. 110 [106 Cal.Rptr. 897].  It is undeniable that trial judges are particularly well suited to observe courtroom performance and to rule on the adequacy of counsel in criminal cases tried before them.  (See McMann v. Richardson (1970) 397 U.S. 759, 771 [90 S.Ct. 1441, 1449, 25 L.Ed.2d 763] ․)  Thus, in appropriate circumstances justice will be expedited by avoiding appellate review, or habeas corpus proceedings, in favor of presenting the issue of counsel's effectiveness to the trial court as the basis of a motion for new trial.   If the court is able to determine the effectiveness issue on such motion, it should do so.   The court should have done so in the case at bar.”  (People v. Fosselman, supra, 33 Cal.3d at pp. 582–583, 189 Cal.Rptr. 855, 659 P.2d 1144, fn. omitted.)

This discussion is equally applicable when the issue is an alleged deprivation of the right to an interpreter.   In fact, because the right to interpretation encompasses a number of other constitutional rights, including due process, confrontation of witnesses, effective assistance of counsel, and presence at trial (People v. Carreon, supra, 151 Cal.App.3d at p. 567, 198 Cal.Rptr. 843), it is even more appropriate that it be raised by motion for new trial.   As will become apparent from our discussion below, the trial judge is particularly well suited to make a determination of whether an interpreter was used in such a way as to deprive the defendant of continuous interpretation.   Here, too, in appropriate circumstances justice will be expedited by such procedure.

 We therefore hold that where a criminal defendant contends that he or she has been deprived of the constitutional right to an interpreter throughout the proceedings, the point may and should be raised by motion for new trial.

B. Standard of Review

 It is often stated that a motion for new trial is addressed to the sound discretion of the trial court and that its decision will not be reversed unless a clear abuse of discretion is shown.  (E.g., People v. McDaniel (1976) 16 Cal.3d 156, 177, 127 Cal.Rptr. 467, 545 P.2d 843.)   While this rule is undoubtedly correct in the context of a statutory motion for new trial, the proper scope of review of the trial court's ruling on a nonstatutory motion based upon an allegation of denial of constitutional rights is not so simple.   We find the analogy to the procedures on motions to suppress evidence pursuant to Penal Code section 1538.5 compelling, and we hold that a similar two-step process is appropriate in this case.

 In the first step, the trial court must find the facts relevant to the question whether the defendant needed an interpreter and whether that need was met.   For example, of primary importance is the trial court's finding of whether, in the words of the constitution, the defendant “understand[s] English.”   Having made this finding, the court should make other pertinent findings based upon its own observations and the evidence presented to it.   On appeal, all presumptions favor the trial court's exercise of its power to judge the credibility of witnesses, resolve any conflicts in testimony, weigh the evidence, and draw factual inferences.   The trial court's factual findings, express or implied, will be upheld if they are supported by substantial evidence.  (See People v. Leyba (1981) 29 Cal.3d 591, 596–597, 174 Cal.Rptr. 867, 629 P.2d 961.)

 In the second step of the process, the trial court will have decided whether, on the facts which it has found, the defendant was deprived of his right to an interpreter.   Because this is a question of law, the appellate court is not bound by the substantial evidence rule, but has “ ‘the ultimate responsibility ․ to measure the facts, as found by the trier, against the constitutional standard ․’  [Citation.]  On that issue, in short, the appellate court exercises its independent judgment.”  (Id., at p. 597, 174 Cal.Rptr. 867, 629 P.2d 961, fn. omitted.)

C. Error As Not Reversible Per Se

 Where, after applying the above standard of review, the appellate court determines that defendant has been deprived of his right to an interpreter and that he did not waive the right,² the error is reversible “․ only when the defendant can show he suffered prejudice from the lack of defense interpreter services.   The prejudice, though, need not be actual, only an informed speculation that the defendant's right to effective representation was denied need be shown.  [¶] Due to the number and variety of other constitutional rights affected by the services of a defense interpreter, the standard test of prejudice involving violation of state constitutional guarantees in California seems inappropriate, if not unworkable.   [Citations.]  ․  [¶] The alternative standard we adopt today affords the defendant more protection, yet is flexible enough to deal with the various and complex situations intertwined with the right to defense interpreter services․”  (People v. Carreon, supra, 151 Cal.App.3d at pp. 574–575, 198 Cal.Rptr. 843.)

We find the reasoning of the Carreon court persuasive, and so we elect to follow it.³

D. Application of These Principles to This Case

The trial court herein followed the appropriate procedures which we have discussed.   It took evidence on the new trial motion, considered its own observations of the proceedings, made factual findings, and reached a legal conclusion with which we agree.

Some of the evidence on the interpreter issue was presented mid-trial and was set out at the beginning of our discussion.   Additional testimony was presented at the hearing on the motion for new trial.   We note that neither appellant nor his trial counsel testified in support of the motion.   Although the trial court did not mention this fact or indicate that it was influenced by it, we think it unlikely that a court could properly find the kind of prejudicial error claimed by appellant without hearing testimony from the defendant and/or his attorney regarding the need for an interpreter and whether lack of one interfered with adequate representation.

Nevertheless, appellant attempted to make the requisite showing through testimony of others.   Mr. Hernandez, counsel for codefendant Ms. Ruiz, testified that on several occasions he acted as interpreter for appellant and his trial counsel, Mr. Panelli.   Sometimes appellant would indicate that he understood the English being spoken around him, but when asked in Spanish, he would state that he did not understand and would ask Mr. Hernandez to explain.   Mr. Hernandez opined, “[T]here were some communication problems [between appellant and Mr. Panelli].  The extent, I'm not sure of, but I would feel very nervous if I had that kind of communication problems with any client in trial.”

During cross-examination of Mr. Hernandez the court took “judicial notice” of the fact that Mr. Panelli had represented people accused of felonies and had them found not guilty on “many, many” occasions, at which point the witness interjected, “․ I would like to add ․ I don't feel that Mr. Panelli did a bad job.   I'm not saying that at all.”

The interpreter who had been appointed for the defense, Ms. Jessie Salgado, also testified.   She explained that early in the proceedings Mr. Panelli instructed her not to provide a literal translation to appellant, but only to interpret if he (Panelli) told her to or if appellant asked her a question.   Appellant did ask her “some questions,” which she answered.   For example, he would ask her about a witness' testimony, “ ‘What did he say?’ ” and Ms. Salgado would translate for him.

Detective Huff, called by the People, testified that from April 1981 through October 1982 he had 15 or 20 contacts with appellant.   Huff stated that he does not speak Spanish and that during each of the contacts, some of which were extensive, he talked to appellant and appellant talked to him in English.   He also stated that while he was testifying at trial he had watched appellant, who was not utilizing the interpreter at that time, and that his facial expression changed visibly to a frown.   Huff described appellant's language as “broken English.”

The court recalled the district attorney's admonishment to appellant not to answer until the interpretation was completed.   The court also stated, “․ I noticed the same thing going on myself, that he was understanding the questions being put prior to the translation.”

Upon denying the motion, the court found that appellant had “․ an ability in English.   It is certainly not the greatest ability, but appears to me that he has a level of understanding that I expect is comparable to people who speak English, but who are uneducated people․  And I could tell by facial expressions that I could see, his response to questions without the interpreter, that he has an ability.   Plus, there is evidence from the officers that he has an ability.”

The court also found that it had evidence of communication problems only in one “tiny little segment” of the entire context of the attorney-client relationship, and that upon such evidence it could not rule in appellant's favor on the motion.

“In the past, trial courts had been afforded broad discretion in determining whether a defendant's comprehension of English was minimal enough to render interpreter services ‘necessary.’  [Citations.]  Nothing in the new constitutional provision changes this well established requirement of a finding of necessity by the trial court.”  (People v. Carreon, supra, 151 Cal.App.3d at pp. 566–567, 198 Cal.Rptr. 843.)   Here, applying the principles discussed above, we hold that the trial court's factual findings were supported by substantial evidence.   The court was “․ particularly well suited to observe courtroom performance ․” and to rule on the question before it.   (People v. Fosselman, supra, 33 Cal.3d at p. 582, 189 Cal.Rptr. 855, 659 P.2d 1144.)

 Having upheld the trial court's finding that appellant had an adequate command of the English language as to render the need for continuous interpretation unnecessary, it follows, and we hold, that the court did not err in denying his motion for new trial predicated upon the contention that he was improperly denied the right to an interpreter and, concomitantly, to effective assistance of counsel.

The judgment is affirmed.

FOOTNOTES

1.   Article I, section 14, paragraph 3 of the California Constitution provides:  “A person unable to understand English who is charged with a crime has a right to an interpreter throughout the proceedings.”

2.   See People v. Aguilar, supra, 35 Cal.3d at pages 794–795, 200 Cal.Rptr. 908, 677 P.2d 1198.

3.   The Supreme Court has not held otherwise.   In People v. Aguilar, supra, 35 Cal.3d 785, 200 Cal.Rptr. 908, 677 P.2d 1198, having found error, the court simply said, “A reversal is required unless the defendant waived the constitutional right we have described.”  (Id., at p. 794, 200 Cal.Rptr. 908, 677 P.2d 1198.)   While it is true that this language might be read as indicating a reversible-per-se rule applies, there is no indication that the question was presented or considered.   “ ‘It is axiomatic that cases are not authority for propositions not considered.’  [Citation.]  ‘Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.’   [Citation.]”  (Canales v. City of Alviso (1970) 3 Cal.3d 118, 128, fn. 2, 89 Cal.Rptr. 601, 474 P.2d 417.)

BARRY–DEAL, Associate Justice.

SCOTT, Acting P.J., and ANDERSON, J., concur.