RAMONA v. PEOPLE (1983)

Petition was filed in the juvenile court pursuant to section 602, Welfare and Institutions Code alleging jurisdiction arising out of the minor's violation of section 187, Penal Code (murder).   Thereafter petition to have the minor declared unfit for juvenile court proceedings was filed and, pursuant to section 707, subdivisions (b) and (c), Welfare and Institutions Code, the probation officer submitted a report alleging, among other things, the age of the minor (17 years) and that she killed her guardian in their residence over friction caused by her involvement in drugs and prostitution by shooting him in the head and shoulder, repeatedly stabbing him with a knife then cutting him with an ax.   Further, the probation officer reported that the next day the minor turned herself in;  she denied killing the victim and volunteered to take a polygraph test;  although the test results are inconclusive because of her erratic behavior during the test, they reveal that she was deceptive in key questions concerning whether or not she killed the victim;  she confided to both detectives and to the polygraph tester that she was at the scene of the killing “metaphysically”;  however, other information discloses that a witness observed her near the victim's residence about the time of the homicide and observed her to be pale and nervous and have blood on her wrist.   On the advice of her counsel, the minor did not submit to interview by and made no statement to the probation officer.   Because the minor appeared to be unamenable to the juvenile court law under three criteria of section 707, subdivision (c), the probation officer made a recommendation of unfitness.

After the fitness hearing at which the minor presented no evidence,¹ the court found her unfit based upon the circumstances and gravity of the offense (§ 707, subd. (c)(5)) and the fact she could not be rehabilitated prior to the expiration of the juvenile court jurisdiction (§ 707, subd. (c)(3)).   Thereafter the minor was charged by felony complaint with murder and certain special enhancements upon which she was arraigned.   She then filed this petition for writ of mandate seeking to overturn the finding of unfitness and an order directing respondent court to conduct a new fitness hearing.   Thereafter we issued alternative writ of mandate.

Petitioner's main contention, and one made and rejected at the fitness hearing, is that section 707, subdivisions (b) and (c) is unconstitutional in light of the passage of Proposition 8 adding section 28 to article I of the California Constitution, subdivision (d) of which is known as the Truth-in-Evidence provision.   She argues that it has abrogated the judicially declared rule of evidence prohibiting a minor's testimony given at the fitness hearing from being used against him at a subsequent adjudication hearing or criminal trial leaving him with the dilemma of having to choose between giving up his due process right under the Fourteenth Amendment to testify on his own behalf at the fitness hearing or give up his Fifth Amendment right against self-incrimination.

Section 707, subdivision (c) places the burden of proving fitness for the juvenile court law upon the minor.   A minor 16 years or older, charged with any offense listed in subdivision (b), i.e., murder, is presumed not a fit and proper subject to be dealt with under the juvenile court law unless the juvenile court concludes to the contrary based upon an evaluation of each of five criteria:  (1) the degree of criminal sophistication exhibited by the minor;  (2) whether the minor can be rehabilitated prior to the expiration of the juvenile court's jurisdiction;  (3) the minor's previous juvenile history;  (4) success of previous attempts by the juvenile court to rehabilitate the minor;  (5) the circumstances and gravity of the offenses alleged to have been committed by the minor.   To find the minor a fit and proper subject to be dealt with under the juvenile court law the juvenile court must find the minor is fit and proper under each of the five criteria.  (§ 707, subd. (c).)

Prior to the passage of Proposition 8, our courts having recognized the minor's dilemma in choosing between two constitutional guarantees, declared a rule of evidence that statements made by a juvenile to a probation officer are not admissible as substantive evidence or for impeachment in any subsequent proceeding to determine criminal guilt, whether juvenile or adult, although they may be admitted and considered in hearings on the issue of detention and fitness for juvenile treatment.  (In re Wayne H., 24 Cal.3d 595, 602, 156 Cal.Rptr. 344, 596 P.2d 1 [minor's statement to probation officer in section 628 interview];  Bryan v. Superior Court, 7 Cal.3d 575, 586–589, 102 Cal.Rptr. 831, 498 P.2d 1079 [minor's admissions in juvenile jurisdictional hearing].)  Based on In re Wayne H., Bryan, and People v. Coleman, 13 Cal.3d 867, 889, 120 Cal.Rptr. 384, 533 P.2d 1024,² which declared a rule of evidence that upon objection, testimony of a probationer at a probation revocation hearing is inadmissible against him at subsequent proceedings on related criminal charges except for a specified purpose of impeachment, this court in Sheila O. v. Superior Court, 125 Cal.App.3d 812, 178 Cal.Rptr. 418, declared, “a rule of evidence that testimony given by the juvenile at the fitness hearing is inadmissible at the jurisdictional hearing except for the purpose of impeachment.”  (P. 817, 178 Cal.Rptr. 418.)

Article I, section 28, subdivision (d), California Constitution provides that “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.”   Under section 210, Evidence Code, “ ‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having a tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.”

There is merit in petitioner's argument that article I, section 28, subdivision (d), as a constitutional provision, takes precedence over and thus nullifies the judicially declared rules of evidence established in In re Wayne H., 24 Cal.3d 595, 156 Cal.Rptr. 344, 596 P.2d 1 and Sheila O. v. Superior Court, 125 Cal.App.3d 812, 178 Cal.Rptr. 418, resulting in a loss of protection afforded her by the Fifth and Fourteenth Amendments of the United States Constitution by permitting her statements to the probation officer and/or testimony at the fitness hearing to be used against her at a subsequent adjudication hearing or criminal trial.

In People v. Coleman, 13 Cal.3d 867, 120 Cal.Rptr. 384, 533 P.2d 1024, the Supreme Court exercised its “inherent supervisory powers” (p. 872, 120 Cal.Rptr. 384, 533 P.2d 1024) to formulate a judicial rule of evidence.   This approach was used to support a similar rule of evidence in Sheila O. v. Superior Court, 125 Cal.App.3d 812, 817, 178 Cal.Rptr. 418.  Article I, section 28, subdivision (d) clearly eliminates judicial supervisory rule-making powers using statutory law and the state Constitution as a basis for the exclusion of evidence.   Thus the use restriction created by People v. Coleman, 13 Cal.3d 867, 120 Cal.Rptr. 384, 533 P.2d 1024 and its progeny, can survive only if it is compelled by the United States Constitution.   We conclude that the federal Constitution as interpreted by the United States Supreme Court provides a constitutional basis for an evidentiary rule such as those judicially declared in In re Wayne H. and Sheila O.

The United States Supreme Court in Simmons v. United States (1968) 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, in the context of the Fourth Amendment found a constitutional basis for a use-immunity rule not unlike that in Wayne H. and Sheila O.   The high court held “that when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection.” ³  (P. 394, 88 S.Ct. p. 976;  see also Brown v. United States (1973) 411 U.S. 223, 228, 93 S.Ct. 1565, 1568, 36 L.Ed.2d 208;  United States v. Salvucci (1980) 448 U.S. 83, 89–90, 100 S.Ct. 2547, 2551–2552, 65 L.Ed.2d 619.)

Fifth Amendment interests were involved in Estelle v. Smith (1981) 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359, and the court discussed the provision for immunity for statements made by a defendant during a mental competency hearing.   Smith was indicted for murder and at a court ordered psychiatric examination to determine his competency to stand trial, gave the psychiatrist certain incriminating information;  the doctor concluded he was competent to stand trial and Smith was convicted.   On the penalty phase the doctor testified to matters based on defendant's incriminating statements to him.   The Supreme Court held the admission of evidence of statements made by defendant at a mental competency examination at the penalty phase violated defendant's Fifth Amendment privilege unless he was advised of and waived his Miranda rights, then stated, “If, upon being adequately warned, respondent had indicated that he would not answer Dr. Grigson's questions, the validly ordered competency examination nevertheless could have proceeded upon the condition that the results would be applied solely for that purpose.”  (P. 468, 101 S.Ct. p. 1876.)   This rule, the court stated, would apply to the guilt phase as well as to the penalty phase, that there is no distinction between the two “so far as the protection of the Fifth Amendment privilege is concerned.”  (Pp. 462–463, 101 S.Ct. pp. 1872–1873; ⁴  fn. omitted.)

On the state of the law then in existence, there being no viable rule of use-immunity in this circumstance, the minor's silence at the fitness hearing deprived her of the only effective means of controverting the statutory presumption and the People's proof on the issue of fitness, an issue she did not interject into this case.   Had she taken the stand at the hearing or made a statement to the probation officer in an attempt to sustain her burden of proof, she would have subjected herself to the use against her of any incriminating statements she might have made, at a subsequent adjudication hearing or criminal trial.   In the context of the Fifth Amendment privilege which is against “compelled” self-incrimination,⁵ the nature of the fitness hearing is significant.   Section 707, subdivision (c) in pertinent part provides:  “Following submission and consideration of the [probation] report, and of any other relevant evidence which the petitioner or the minor may wish to submit the minor shall be presumed to be not a fit and proper subject to be dealt with under the Juvenile Court Law unless the juvenile court concludes” otherwise based on the evidence.   This statutory presumption places upon the minor the burden of proof.   That the minor was found unfit, as she argues now, because she refused to be interviewed by the probation officer and presented no evidence at the fitness hearing, may or may not be true but the fact remains that an allegation that a 17-year-old minor committed a murder in the manner described is sufficient in itself to demonstrate unfitness, and she is presumed unfit unless the evidence shows she would be amenable to juvenile court treatment based upon evaluation of each of the five criteria mentioned in section 707, subdivision (c).   She well may have been able to present extenuating or mitigating circumstances ⁶ that would have convinced the juvenile court she would be amenable to juvenile court treatment.   Here the presumption of unfitness created by section 707, subdivision (c) resulted in an automatic finding of unfitness because the minor exercised her privilege to remain silent in much the same way that “automatic sanctions” were imposed by statute in various cases in which the United States Supreme Court found that the testimony was “compelled.”   Thus the finding of unfitness having been deemed to be an automatic sanction in these circumstances, those cases lead to the conclusion that use-immunity is constitutionally mandated.

In Lefkowitz v. Cunningham (1977) 431 U.S. 801, 97 S.Ct. 2132, 53 L.Ed.2d 1, Cunningham, holder of four unsalaried elective positions in the Democratic Party of New York state was subpoenaed to appear before a special Grand Jury investigating his conduct in these political offices;  he refused to obey the subpoena and to waive his Fifth Amendment privilege against self-incrimination.   For refusal of an office holder to testify, section 22, New York Election Law, provided for his removal from his position by the State of New York and barred him for five years from holding any other party or political office.   Because section 22 is self-executing Cunningham sued for injunctive relief on the ground that the statute was unconstitutional in that it violated his Fifth and Fourteenth Amendment rights.   The United States Supreme Court held the section unconstitutional, “when a State compels testimony by threatening to inflict potential sanctions unless the constitutional privilege is surrendered, that testimony is obtained in violation of the Fifth Amendment and cannot be used against the declarant in a criminal prosecution.”  (P. 805, 97 S.Ct. p. 2135;  see also Lefkowitz v. Turley (1973) 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274;  Gardner v. Broderick (1968) 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082.)   The foregoing cases “settle that government cannot penalize assertion of the constitutional privilege against compelled self-incrimination by imposing sanctions to compel testimony which has not been immunized.”  (Lefkowitz v. Cunningham, 431 U.S. at p. 806, 97 S.Ct. at p. 2136.)

 In response to petitioner's constitutional attack on the procedure set up in section 707, subdivisions (b) and (c), Welfare and Institutions Code, and based upon the federal Constitution as interpreted by the United States Supreme Court, we declare a rule of evidence that statements made by a juvenile to a probation officer for use in and testimony given by a juvenile on the fitness hearing are inadmissible in any subsequent juvenile adjudication hearing or any subsequent adult proceeding to determine guilt except for the purpose of impeachment.

 Counsel for the minor has asserted in her petition that “but for the effect that Proposition 8, Article I, section 28(d) has had on fitness hearings he would have permitted his client to talk to the probation officer, and would have introduced the results of a psychiatric evaluation prepared for the fitness hearing.   But, given the fact that any statement made by the minor to the court, or to the probation officer about the offense, could be used against her in a subsequent adjudication in juvenile court, or trial in adult court, the minor could not testify.   Based on these same considerations, the minor did not talk to the probation officer about the offense at the time of the fitness interview, nor did she testify at the fitness hearing.”   We have no reason to doubt the good faith of counsel, and in light of his having raised the issue ⁷ at the fitness hearing and argued the cause before the juvenile court, we think the minor should not be deprived of the opportunity to present her evidence at the fitness hearing.

Let a peremptory writ of mandate issue directing respondent court to vacate its order of December 3, 1982, finding the minor not a fit and proper subject to be dealt with under juvenile court law, and thereafter to conduct a further fitness hearing to permit additional evidence to be presented on the issue of fitness provided, however, that if the minor does not present any evidence to respondent court on the fitness hearing, it shall reinstate its order of December 3, 1982.

FOOTNOTES

1.   In an abundance of caution minor's counsel advised her not to talk to the probation officer and not to testify at the fitness hearing, and he did not introduce the results of a psychiatric evaluation prepared for the hearing on the ground that if the minor made any statement of an incriminating nature article I, section 28, subdivision (d), California Constitution, would render it admissible against her in a subsequent adjudication proceeding or criminal trial on the issue of guilt.

2.   The California Supreme Court granted hearing in People v. Benny Jasper (S.F.Crim. 22663, Dec. 9, 1982).   This case presents the issue of whether Proposition 8 eliminates the judicially declared use-immunity rule established in People v. Coleman 13 Cal.3d 867, 120 Cal.Rptr. 384, 533 P.2d 1024.

3.   In Crampton v. Ohio sub nom. McGautha v. California (1971) 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711, the court explained the necessity and the factual basis for the use-immunity rule of Simmons:  “We concluded that to permit such use created an unacceptable risk of deterring the prosecution of marginal Fourth Amendment claims, thus weakening the efficacy of the exclusionary rule as a sanction for unlawful police behavior.”  (402 U.S. p. 211, 91 S.Ct. p. 1469)  The United States Supreme Court continued that the purely Fifth Amendment interests involved in Simmons were not substantial.  (P. 212, 91 S.Ct. p. 1469.)

4.   The California Supreme Court in People v. Arcega (1982) 32 Cal.3d 504, 186 Cal.Rptr. 94, 651 P.2d 338, said at the outset that there is a rule of immunity for all statements and fruits of a mental competency examination which prevents their use at the guilt trial, citing state authorities and Estelle v. Smith (1981) 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (32 Cal.3d at p. 518, 186 Cal.Rptr. 94, 651 P.2d 338).   Thus explicitly relying on both state and federal standards and quoting from Estelle v. Smith (1981) 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359, the court held that in the absence of a valid waiver of defendant's state Constitutional and Fifth Amendment privilege against self-incrimination, a psychiatrist's testimony based on defendant's statements to him during an examination to determine mental competency to stand trial, could only be used at the hearing on competency and “the admission of this testimony [at the guilt phase] violated appellant's Fifth Amendment rights ․”  (P. 525, 101 S.Ct. 1866, 68 L.Ed.2d 359.)

5.   The Fifth Amendment to the Constitution of the United States provides in pertinent part:  “[Section 1.]  No person shall be ․ compelled in any criminal case to be a witness against himself ․”

6.   Real party in interest complains that the minor made no offer of proof at the fitness hearing but we assume that her counsel did not wish to present any facts of an incriminating nature which conceivably could be used directly or indirectly against her in a subsequent proceeding on the issue of guilt.

7.   Although at the fitness hearing counsel for the minor did not contend for use-immunity but challenged the constitutionality of section 707, subdivisions (b) and (c) in light of article I, section 28, subdivision (d), the basis of his supporting argument was the same—that the Truth-in-Evidence provision prevented the minor from talking candidly to the probation officer and prevented her from testifying at the fitness hearing because any incriminating statements she might make would be admissible against her in a subsequent juvenile or criminal proceeding on the issue of guilt.

LILLIE, Acting Presiding Justice.

L. THAXTON HANSON and DALSIMER, JJ., concur.