PEOPLE v. MAY (1985)

Appeal from prison sentences imposed upon convictions of appellant by jury of numerous felony offenses, including sex offenses against two women victims.   Appellant contends (1) the court erred in admitting evidence of an uncharged sex offense;  (2) the evidence is insufficient on one count;  (3) the court erred in ruling appellant's statements in violation of the Miranda rule were admissible for impeachment;  (4) the court failed to exercise discretion to strike a gun use enhancement.   We find no merit in any of these contentions and affirm.

Substantial Evidence Supports Conviction of Assault With Intent to Rape 1

Prior Offense Conduct Properly Admitted 1

Impeachment with Statements Taken in Violation of Miranda Rights

Appellant moved in limine for the suppression of any statements made by him to police for any purpose on the grounds the interrogation violated his Miranda ² rights and was otherwise coercive.   None of the statements constitute a confession, some could be construed as admissions but most would be irrelevant unless they were admissible under Evidence Code section 780, subdivision (h) as prior inconsistent statements.   The prosecution stated it had no intention of using any statement on its case in chief but might seek to admit them for purposes of impeachment in the event appellant testified and his testimony was inconsistent with his earlier statements to police.   The court found the statements were obtained in violation of Miranda after appellant requested an attorney.   It was found the statements were not otherwise coerced.

The court further held that the statements could be admitted if relevant for impeachment.   The appellant did not testify so the statements were not admitted.   The fact the evidence was not presented to the jury but was merely ruled conditionally admissible in limine would seem to raise serious questions about appellant's ability to claim such error on appeal.  Evidence Code section 353 provides, in pertinent part, “[a] verdict ․ shall not be set aside, nor shall the judgment ․ based thereon be reversed, by reason of the erroneous admission of evidence unless:  ․ (b) ․ the admitted evidence should have been excluded․”  (Emphasis added.)  Evidence Code section 354 similarly prohibits reversal on appeal based on a claim of erroneous exclusion of evidence unless the substance, purpose and relevance of the excluded evidence was made known to the trial court with exceptions not here applicable.

Here appellant predicates a claim of error on evidence which was not admitted as required by section 353 but merely tentatively ruled admissible for impeachment.   He claims the effect of the ruling was to exclude evidence, i.e., his testimony, even though he failed to comply with the requirements of section 354.   Since those sections alone or together would seemingly prohibit a reversal under these circumstances even if appellant's contentions were meritorious, it seems unnecessary to address the merit of the claim.

Notwithstanding those code sections, since appellant did not testify, any finding of prejudice from the ruling would be based solely on speculation.   It would be necessary to conclusively presume all of the following:  (1) but for the ruling, appellant would have testified, (2) the testimony would have been inconsistent with his statements to police, (3) the prosecution would have sought to impeach him with the statements, (4) an objection based on Evidence Code section 352, (a) would not have been made, or (b) would have been overruled, (5) the court would not have changed its original ruling of admissibility for impeachment, and (6) the admission of such evidence would have resulted in a miscarriage of justice under the appropriate standard of review.   However, as none of these problems are raised, briefed or argued, we do not decide the issue on this basis.

The trial court held the enactment of article I, section 28, subdivision (d) of the California Constitution (hereafter referred to as 28(d)) repealed the California exclusionary rule first set forth in People v. Disbrow (1976) 16 Cal.3d 101, 127 Cal.Rptr. 360, 545 P.2d 272, (Disbrow ).   In Disbrow the court held any statements obtained in violation of the standards set forth in Miranda were inadmissible for purposes of impeachment or rebuttal.

The Disbrow exclusion was based on independent state grounds under article I, section 15 of the California Constitution.   It is contrary to the federal rule under the United States Constitution as enunciated by the Supreme Court in Harris v. New York (1971) 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (Harris ).   The Harris court held that statements made to police under circumstances rendering them inadmissible under Miranda on the prosecution's case in chief could be admitted for purposes of impeachment of a testifying defendant whose trial testimony was inconsistent with the earlier statements.

 The issue here is whether the Disbrow exclusionary rule survived the 1982 amendment of the California Constitution by Proposition 8 which added article I, section 28, subdivision (d).   We find it did not.

Subdivision (d) of article I, section 28 provides in pertinent part as follows:  “Except as provided by statute hereafter enacted ․ relevant evidence shall not be excluded in any criminal proceeding․  Nothing in this section shall affect any existing statutory rule of evidence relating to privilege․”  Appellant argues that Evidence Code section 940 is an “existing statutory rule relating to privilege” which precludes the use of such extrajudicial statements.

Evidence Code section 940 provides as follows:  “To the extent that such privilege exists under the Constitution of the United States or the State of California, a person has a privilege to refuse to disclose any manner that may tend to incriminate him.”  Section 940, on its face, is a statutory recognition of the constitutional privileges against self-incrimination.   Even assuming arguendo section 940 is an “existing statutory rule of evidence relating to privilege” it is not helpful here.   The question is not whether the appellant had a constitutional right to refuse to disclose any information during the police interrogation which right could be waived only in the manner set forth in Miranda.   He clearly had such rights under both the state and federal constitutions.   The question is rather, given that appellant's constitutional privileges against self-incrimination and right to counsel were violated by the interrogation, what remedy is available to him?

In In re Lance W. (1985) 37 Cal.3d 873, 886–887, 210 Cal.Rptr. 631, 694 P.2d 744, the supreme Court held:  “What [the pertinent portion of] Proposition 8 does is to eliminate a judicially created remedy for violations of search and seizure provisions of the federal or state Constitutions, through the exclusion of evidence so obtained, except to the extent the exclusion remains federally compelled.”   The court went on to state at pages 888–889, 210 Cal.Rptr. 631, 694 P.2d 744 “․ that in the absence of express statutory authority therefor courts may not exclude evidence seized in violation of either the state or federal Constitution unless exclusion is compelled by the federal Constitution․  [¶]  Implicit in the limitation on the courts' power to exclude relevant evidence to the enumerated statutory exceptions is a limitation on the power of the court to create nonstatutory exclusionary rules, whether denominated rules of procedure, rules of evidence, or substantive rules, for the exclusion of unlawfully seized evidence if those rules afford greater protection to a criminal defendant than does the Fourth Amendment.   [Fn. omitted.]”

While In re Lance W. involved exclusionary rules for violation of search and seizure provisions of the constitutions rather than the state and federal constitutional rights to counsel and rights against self-incrimination involved here, its reasoning and result are equally applicable.   Both of the exclusionary rules are addressed to evidence obtained by police conduct in violation of constitutional provisions.   Both are based on the same rationales of deterring unlawful police conduct.

For example, Harris v. New York, supra, 401 U.S. 222, 222–224, 91 S.Ct. 643, 643–645, relies on Walder v. United States (1954) 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503, a case involving the Fourth Amendment exclusionary rules, to permit impeachment with evidence seized in violation of the Fifth Amendment.   Similarly in People v. Disbrow, supra, 16 Cal.3d 101, 107, 127 Cal.Rptr. 360, 545 P.2d 272, et seq., the court relies extensively on cases involving exclusion of evidence obtained in unlawful searches and seizures including People v. Brisendine (1975) 13 Cal.3d 528, 119 Cal.Rptr. 315, 531 P.2d 1099.   The holding in Brisendine which excluded illegally obtained evidence on independent state grounds was held to be abrogated by Proposition 8 in Lance W.   Since the issue here arises under the same constitutional amendment, the interpretation of that amendment by the Supreme Court is equally applicable in this case.   In both instances the relevant provision of Proposition 8 requires the abrogation of the judicially declared exclusionary remedy for a constitutional violation based on police misconduct.

We are cognizant that at least one case reached a directly contrary result by construction of the privilege exception contained in section 28(d) together with Evidence Code section 940.   In People v. Barrios (1985) 166 Cal.App.3d 732, 743, 212 Cal.Rptr. 644,³ an appellate court held:  “The scope of the state constitutional privilege against self-incrimination has been determined by the Supreme Court in Disbrow to preclude any use in a criminal proceeding of extrajudicial statements taken in violation of the Miranda rights of the defendant in that proceeding.”   The decision relies heavily on the Law Revision Commission comment to section 940 which provides in pertinent part as follows:  “Section 940 recognizes the privilege (derived from the California and United States Constitutions) of a person to refuse, when testifying, to give information that might tend to incriminate him․  [¶] Section 940 does not determine the scope of the privilege against self-incrimination;  the scope of the privilege is determined by the pertinent provisions of the California and United States Constitutions as interpreted by the courts․”  (West's Ann.Evid.Code (1966 ed.) § 940, p. 513.)

The fallacy in the reasoning and result reached in Barrios is that Disbrow did not define the scope of the California constitutional privilege against self-incrimination now set forth at article I, section 15.   In Disbrow, as in People v. Brisendine, supra, 13 Cal.3d 528, 119 Cal.Rptr. 315, 531 P.2d 1099, on which it relied, the court judicially created a rule which related to remedy rather than the scope of the substantive rights protected by the constitution.  (See In re Lance W., supra, 37 Cal.3d 873, 886–887, 210 Cal.Rptr. 631, 694 P.2d 744.)   Consequently, section 940 which relates only to substantive, not remedial, rights cannot be relied upon to save the exclusionary rule set forth in Disbrow.

The Barrios court also relied in part on the Supreme Court's recent decision in Ramona R. v. Superior Court (1985) 37 Cal.3d 802, 210 Cal.Rptr. 204, 693 P.2d 789 (hereafter Ramona R.).   Such reliance is misplaced.   Ramona R. involved legislatively compelled self-incriminatory statements or testimony in contrast to merely Miranda violative statements.   In Ramona R. the question was whether the juvenile court erred in failing to grant her immunity from use at trial of any statements she made to her probation officer or to the court in the fitness hearing.   The issue was whether the requirement of such use immunity based on pre-Proposition 8 decisional law survived the passage of article I, section 28, subdivision (d).   The court held that the use immunity privilege was compelled by the California constitutional privilege against self-incrimination.   That privilege was codified in section 940.   It consequently was a privilege specifically exempted from the all-relevant evidence provision of section 28(d).

Ramona, a juvenile, was charged with murder.   The prosecution sought to prosecute her as an adult under the provisions of Welfare and Institutions Code section 707 (hereafter 707).   Since the charge was one specified by section 707, subdivision (b), pursuant to subdivision (c) the minor was statutorily presumed to be unfit for juvenile court treatment.   This statutory rebuttable presumption of unfitness effectively compelled the minor to produce evidence at the fitness hearing or in her pre-hearing interview with a probation officer which would be self-incriminating on issues relating to guilt.

Neither can legislatively compelled testimony be used against the testifier for any purpose under the federal Constitution.  (New Jersey v. Portash (1979) 440 U.S. 450, 458–459, 99 S.Ct. 1292, 59 L.Ed.2d 501, (hereafter Portash ).)   Testimony may be constitutionally compelled by statute only if the person testifying is protected to the same extent as if they had not spoken at all.   Therefore, the prosecution must be precluded from making any use of such testimony against that person.   The scope of the immunity is as broad as the privilege against compulsory self-incrimination.  (Id.)  Neither Ramona R. nor Portash purport to deal with evidence seized in violation of the right against self-incrimination.   They deal with the scope of the right itself rather than a remedial device to cure a constitutional violation.

 Appellant's only sentencing error contention is meritless.   He contends the record fails to demonstrate the court knew it had discretion to strike the sentence on the enhancement found pursuant to Penal Code section 12022.5 based on appellant's use of a gun.   Assuming arguendo that a record must reflect why discretion is not being exercised, we note nothing in the record which called for any exercise of discretion to strike the sentence on the gun use enhancement.

Appellant's only argument was that imposition of a discretionary consecutive sentence under Penal Code section 667.6, subdivision (c), precluded the imposition of any gun use enhancement.   He neither requested nor argued for a stay of the sentence on the use enhancement.   Additionally, the court referred to the provisions of Penal Code section 1170.1, subdivision (d) which permits the striking of such enhancement under specified circumstances.  (See also Cal.Rules of court, rules 445 and 423.)   Such reference clearly shows an awareness of the power therein conferred.

The judgment is affirmed.

FOOTNOTES

1.   See footnote *, ante.

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

3.   People v. Jacobs (1984) 158 Cal.App.3d 740, 204 Cal.Rptr. 849 also addressed the issue.   In Jacobs the court was concerned with the use of appellant's post-arrest statement to impeach his direct testimony.   The constitutional question addressed was unnecessary to the decision as its admission clearly violated Evidence Code section 352.   The case was also decided prior to the Supreme Court decision in In re Lance W.

ABBE, Associate Justice.

STONE, P.J., GILBERT, J., concur.