PEOPLE v. BAEZ (1985)

An information charged Pedro Ramon Baez with fatally shooting his wife Tomasa on November 2, 1981 (Pen.Code, §§ 187, 12022.5)¹  Baez pleaded not guilty and not guilty by reason of insanity.   A jury found him guilty of second degree murder and sane at the time of the offense.   Baez unsuccessfully moved for a new trial and was sentenced to prison for an indeterminate term of 17 years to life.

 Baez appeals contending the judgment should be reversed because the court prejudicially erred in (1) “borrowing” his interpreter to serve as a witness interpreter (2) permitting the introduction of his statement to the detective, the prosecution-hired psychiatrist, and the prosecutor's investigator, and (3) refusing to pay for testing necessary to establish his defense.   We agree with Baez' first argument and hold the “borrowing” of his interpreter to serve as the interpreter for five prosecution witnesses and one defense witness requires reversal.   We therefore reverse the judgment of conviction.²

FACTUAL AND PROCEDURAL BACKGROUND

A

Baez, born in 1929 in Puerto Rico, immigrated to and lived in New York for 22 years.   He left his wife and his five children, came to San Diego in 1974 and eventually secured work as a janitor at Triple A Shipyard.   In 1979 a friend introduced him to Tomasa, a Mexican national who lived and worked in Tijuana.   Baez married Tomasa two months later.   Their brief marriage was hardly tranquil.   They had many problems.   Tomasa refused to sleep with Baez;  he hit her and threw her down.   They called each other names—Baez called Tomasa and her family “Mexican pigs; ”  Tomasa called Baez a “dog.”   Finally Tomasa left Baez and petitioned to dissolve their marriage.   Baez wanted his wife to return.   She refused.   Baez then loaned her money to help her buy a car and house, the latter on her promise to reconcile.   After having Baez deed the property to her she still refused to reconcile.

Baez was laid off from work in June 1981.   By September or October his money was running out, his unemployment insurance was about to expire, and he was depressed.   Tomasa offered to let Baez stay at her house.   In October 1981 Baez bought a gun.   On October 27 or 29 he bought bullets.

On November 1, Baez visited Tomasa at her mother's house in Tijuana.   There was a suggestion she might reconcile.   She was to contact him about 7 a.m. the next day to talk about getting back together.   Between 6 and 7 a.m. on November 2, Tomasa called her sister Maria Ramirez and said she was late getting to work and could not go to Baez' house.   About 7 a.m. Tomasa called Baez and told him the same thing.   She said he could see her about 8:30 a.m. near her work where she parked her car.   Baez loaded his gun.   He then went to meet Tomasa.   Her car was parked near a playground or park in Chula Vista.   Baez sat in the front seat.   Tomasa in the rear.   They talked for five or six minutes.   He asked her to return to him.   Tomasa refused.   She said she would sleep with a black man or a dog before she would return to him.   Standing outside the car Baez pulled out his gun, “lost his head” and fired several shots.   He then tried to shoot himself but was unable to do so.   He told some people in the park to call the police because he had just shot his wife.

B

At trial Baez had a court-appointed interpreter.   The need for a Spanish speaking interpreter was more than a formality.   It was clear Baez required someone to translate from English into Spanish.   Fred Godwin, the personnel manager at Triple A testified Baez could not speak English “very well at all” and had a difficult time making himself understood.   Someone usually translated Godwin's English statements into Spanish for Baez.   Two other employees from Baez' place of employment testified similarly.   Gerald Blank, Baez' lawyer confirmed Baez' difficulty to communicate in English.   When Blank spoke Spanish he was able to communicate with his client.   Blank decided Baez simply could not speak or understand enough English to permit him to communicate in English.   In order for Baez to understand Blank had to speak Spanish.

C

During trial four of Tomasa's Spanish-speaking relatives were called by the prosecutor during the prosecution's case-in-chief:  Encarnacion Ortega DeLugo (Tomasa's mother) Maria Ramirez (Tomasa's sister) Felipe Enzo Ramirez (Maria's husband) and Encarnacion Ortega DeLugo Morris (Tomasa's sister.)   Ruben Rodriguez, who testified for the prosecution about Baez obtaining the gun, also spoke Spanish.   Before calling these witnesses it was agreed Baez' interpreter would also serve as the witnesses' interpreter.   The court explained to the jury:

“The next witness speaks Spanish.   We just have one interpreter so we're going to try to get by with one, probably have Mr. Baez move to where he could be sure to hear Spanish.   It will require a little bit of change here in the courtroom.  [¶ ] Mr. Baez, would you step forward and sit in this little green chair․”

While Baez was relocated to enable him to hear the questions and answers in Spanish his interpreter served as the interpreter for the five prosecution witnesses.   His interpreter was also called upon to read Baez' suicide note in English to the jury.   When Atanasia Melendes testified for the defense, Baez' interpreter also was borrowed.   On rebuttal the prosecutor recalled DeLugo, Maria Ramirez, Felipe Enzo Ramirez, and Ruben Rodriguez.   He also called Tomasa's sister, Alcelia DeLuga Ortega and two of Tomasa's friends, Maria Garcia and Maria Ellena Lopez Josso.   Baez' interpreter also served as the witness interpreter for these witnesses.

DISCUSSION

The court erred in borrowing Baez' interpreter.  Article I, section 14 of the California Constitution requires “a person unable to understand English who is charged with a crime has a right to an interpreter throughout the proceedings.”  (People v. Aguilar (1984) 35 Cal.3d 785, 790, 200 Cal.Rptr. 908, 677 P.2d 1198 (emphasis added).)   The more difficult question is how that error should be gauged.   At the present time there are what we can fairly describe as two uncertain standards of review.

In People v. Menchaca (1983) 146 Cal.App.3d 1019, 194 Cal.Rptr. 691, the court equated the denial of the state constitutional right to an interpreter throughout the proceedings as a denial of due process.  (Id., at p. 1023, 194 Cal.Rptr. 691.)   Thus, Menchaca in effect used a reversal per se standard.  (See also In re Dung T. (1984) 160 Cal.App.3d 697, 710, 206 Cal.Rptr. 772.)   When this same standard was used and reliance placed on Menchaca in People v. Rodriguez (1984) 159 Cal.App.3d 346, 353, 205 Cal.Rptr. 556, the California Supreme Court granted hearing.  (Crim. 24124, hg. granted November 1, 1984.)

People v. Carreon (1984) 151 Cal.App.3d 559, 198 Cal.Rptr. 843 adopted a different standard.   Rejecting reversal per se, the court held that borrowing of the interpreter assigned to the defendant is reversible error “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.”  (Id., at pp. 574–575, 198 Cal.Rptr. 843;  see also People v. Nieblas (1984) 161 Cal.App.3d 527, 530–531, 207 Cal.Rptr. 695;  People v. Rioz (1984) 161 Cal.App.3d 905, 913, 207 Cal.Rptr. 903;  People v. Resendes (1985) 164 Cal.App.3d 812, 210 Cal.Rptr. 609.)   When this standard was applied in People v. Hernandez (1985) 165 Cal.App.3d 413, 417, 418, 211 Cal.Rptr. 601 the California Supreme Court again granted hearing.  (Crim. 24492, hg. granted April 25, 1985.)   And to add further confusion the Supreme Court has granted review in People v. Cervantes (1985) 165 Cal.App.3d 1193, 212 Cal.Rptr. 6, rev. granted, ––– Cal.3d –––, 215 Cal.Rptr. 292, 700 P.2d 1294 (1985) in which the court rejected both the reversal per se standard and the “informed speculation” standard of Carreon, adopting the Chapman test.³  In light of the foregoing it is an understatement to suggest there is some uncertainty on the appellate standard to be applied where there is a partial denial of interpretive services.   We presume this issue will soon be clarified by an opinion from our Supreme Court.   In the interim we will try our hand at describing the standard which we believe should be applied.

People v. Aguilar, supra, 35 Cal.3d 785, 200 Cal.Rptr. 908, 677 P.2d 1198 is a powerful case.   It describes in a clear and forceful fashion the non-English speaking defendant's right to have a “․ sworn interpreter at [his] elbow” throughout the proceedings.  (Id., at pp. 791–792, 200 Cal.Rptr. 908, 677 P.2d 1198.)   Of course, Aguilar interprets a provision of the California Constitution and thus must be squared with article VI, section 13 of that same document:

“No judgment shall be set aside, or new trial granted, in any cause ․ for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”

Interpreting this provision, the Supreme Court explained in People v. Watson (1956) 46 Cal.2d 818, 835, 299 P.2d 243 that “error involving the infringement of a constitutional right, like any other error, requires a further determination whether the defendant has been prejudiced ․”  Thus, a standard of per se reversal appears to be inconsistent with the same Constitution which establishes defendant's “right to an interpreter throughout the proceedings.”  (See art. I, § 14.)

In People v. Watson, supra, the Supreme Court articulated the general standard for determining whether a “miscarriage of justice” had occurred as a result of an error.   The Watson court explained,

“[T]hat the test generally applicable may be stated as follows:  That 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.”  (Id., at p. 836, 299 P.2d 243.)

We are unaware of any cases in which the Supreme Court has had occasion to discuss any exceptions to the “generally applicable” Watson test other than those mandated by the federal constitution.  (See Chapman v. California, supra, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705;  People v. Garcia (1984) 36 Cal.3d 539, 205 Cal.Rptr. 265, 684 P.2d 826.)   We observe that while Watson 's focus on the probability of a different result works reasonably well when applied to errors such as the improper admission and exclusion of evidence or incorrect jury instructions which affect the substance of the trial, errors of procedure such as that analyzed in Aguilar pose a difficult problem.   For instance, Aguilar emphasizes that the borrowing of an interpreter may preclude or significantly inhibit communication between the defendant and his English-speaking attorney for that period of time during which the interpreter is translating for witnesses.  (35 Cal.3d at p. 793, 200 Cal.Rptr. 908, 677 P.2d 1198.)   Where such a breakdown in the attorney-client relationship occurs, it is impossible to say how communications which did not take place would have affected the outcome.   Similarly, Aguilar also points out that the failure to provide a separate defense interpreter may result in the defendant being unable to hear and understand either the questions posed to the witness or both the questions and the answers.  (Id., at p. 792, 200 Cal.Rptr. 908, 677 P.2d 1198.)   It is exceedingly difficult to gauge how the defendant's failure to completely understand the evidence against him might have affected the trial proceedings.

 We are thus “of the opinion” that the denial of a separate defense interpreter results in a “miscarriage of justice” within the meaning of article VI, section 13 unless it can be affirmatively shown that the defendant suffered no prejudice as a result of the error.   This standard effectively creates a presumption of prejudice flowing from Aguilar error which must be rebutted by the People in order to avoid reversal.   We believe this shifting of persuasion at the appellate level to the People is appropriate in this limited circumstance where there may be no way of discerning how the lack of Aguilar error would have changed the result.   The burden is thus on the People to negate the possibility of prejudice by showing the lack of a separate interpreter did not affect counsel's representation and did not materially interfere with defendant's understanding of the substance of the trial.

Applying this standard, we address the People's arguments that no prejudice occurred in this case.   First, they rely on the fact that Baez' counsel agreed to the borrowing of the interpreter.   This argument was rejected in Aguilar, the court holding that the defendant must personally and knowingly waive his right to an exclusive interpreter.  (35 Cal.3d at p. 794, 200 Cal.Rptr. 908, 677 P.2d 1198.)   The record here is devoid of any indication that Baez understood his right to have an independent interpreter throughout the proceedings or any statement by Baez that would suggest a personal waiver.

Several other factors, however, distinguish this case from the facts of Aguilar.   Chief among them is that Baez' counsel, Gerald Blank, is fluent in both Spanish and English.   Thus, the lack of a personal interpreter did not inhibit attorney-client communications since Baez could directly communicate with Blank.   Furthermore, the Aguilar court's concern with a check on the accuracy of the interpreter's translation (see 35 Cal.3d at pp. 793, 794, fn. 10, 200 Cal.Rptr. 908, 677 P.2d 1198) was also not a factor since Blank could and in fact did question the translation where he disagreed.   The People also point out that when the interpreter was borrowed, Baez was moved to a location in the courtroom where he could hear both the questions and answers in Spanish.  (Compare Aguilar, supra, 35 Cal.3d at p. 792, 200 Cal.Rptr. 908, 677 P.2d 1198;  People v. Menchaca, supra, 146 Cal.App.3d at p. 1024, 194 Cal.Rptr. 691.)   Thus, the record here strongly indicates Baez was able to understand the substance of the trial proceeding.

There remains, of course, the fact that the lack of an exclusive interpreter precluded Baez receiving a translation of the “open-court colloquy between bench and counsel and the rulings of the court.”  (Menchaca, supra, 146 Cal.App.3d at p. 1025, 194 Cal.Rptr. 691, quoted in Aguilar, supra, 35 Cal.3d at p. 792, 200 Cal.Rptr. 908, 677 P.2d 1198.)   Were this the only possible prejudice suffered by Baez, we would be hard-pressed to conclude that reversal of the conviction was mandated in view of the fact that even English-speaking defendants rarely understand to any significant extent the legal dialogue which occurs between court and counsel.   Moreover, we have reviewed the colloquy which took place in this case and cannot conceive that Baez' understanding or lack thereof could possibly have had any impact on the outcome.

There are, however, other facts which suggest more substantial forms of prejudice which the People have been unable to negate.   It is true that Baez was not unable to communicate with counsel due to a language barrier.   But in moving the defendant to a position in the courtroom where he could hear both the questions and answers in Spanish, it appears that Baez was separated from his counsel.   Thus, although not linguistically incapacitated, Baez was physically inhibited from communicating with his lawyer.   The fact that a defendant can arrange for consultation with counsel by interrupting the proceedings has been held to be insufficient to dispel prejudice.  (People v. Resendes, supra, 164 Cal.App.3d at pp. 816–818, 210 Cal.Rptr. 609.)

We also note that the witnesses who necessitated the borrowing of Baez' interpreter did not testify on collateral or insignificant issues.   Of the five Spanish-speaking witnesses who testified during the prosecution's case-in-chief (see ante, p. 158), four were questioned regarding prior threats made by Baez to kill Tomasa and one testified about selling Baez the gun used to kill Tomasa.   Under these circumstances, we cannot conclude that the People have rebutted the presumption of prejudice flowing from the Aguilar error.

DISPOSITION

Judgment reversed.

FOOTNOTES

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

2.   Because of our conclusion we do not address the effect of the court's error in using the “preponderance of the evidence” standard rather than the correct “beyond a reasonable doubt” standard in permitting the introduction of Baez' statements to law enforcement agents.   The correct standard will be applied to the facts upon retrial.   Baez is precluded, however, from reasserting his claim that his statements to district attorney investigator Boulden are inadmissible.   That claim based on Massiah v. United States (1964) 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, was resolved against him on conflicting evidence.   Substantial evidence supports the court's finding that the interrogation legitimately preceded the filing of the complaint.  (See People v. Reilly (1970) 3 Cal.3d 421, 425, 90 Cal.Rptr. 417, 475 P.2d 649.)   We also do not address the court's alleged error in refusing to authorize and pay for an electroencephalogram to confirm Baez had an alleged epileptic seizure during the shooting.   The record before us shows no abuse of discretion as the request was untimely, not warranted by the evidence and of speculative value.   When and if counsel should renew this motion in a timely manner on a sounder record the court can rule on this issue in a manner consistent with Baez' right to effective assistance of counsel.

3.   Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.

WIENER, Acting Presiding Justice.

WORK and BUTLER, JJ., concur.