PEOPLE v. HERNANDEZ (1985)

OPINION

Defendant was convicted of a violation of Health and Safety Code section 11352 (sale of heroin).   He alleges that the trial court erred in permitting the use of an interpreter as both a defense interpreter and witness interpreter to translate the testimony of two defense witnesses.   He also contends the court erred in instructing the jury regarding aiding and abetting the perpetration of a crime.

FACTS

On February 22, 1983, Fresno County Sheriff's Detectives Trevino and Mercado, operating undercover, met with defendant (who identified himself as Ramiro Hernandez), Gregario Oropeza and defendant's sister, Lupe Hernandez, at a restaurant in Fresno.   The five discussed the purchase by the officers of heroin, with Detective Trevino and Oropeza doing most of the talking, but with the others occasionally interjecting comments.   The undercover officers were provided with two samples of heroin, which they were supposed to test;  if found acceptable, larger transactions would be arranged later.

On March 13, 1983, defendant telephoned the officers, identified himself again as Ramiro, and offered to sell them two ounces of concentrated heroin for $6,500 per ounce.   It was ultimately agreed, via various telephone conversations, that the sale would take place on March 16, 1983, at the same restaurant where the parties had met before;  defendant was to bring along a friend who was his contact with the suppliers of the heroin.   All of the negotiations between Detective Trevino and defendant were conducted in Spanish.

When Detectives Trevino and Mercado, and five other officers, arrived at the restaurant on March 16, 1983, they observed a red El Camino, which was one of three possible vehicles in which defendant had indicated he might arrive, parked next to Lupe Hernandez' vehicle in the parking lot.   Defendant, Lupe, and a third person (subsequently identified as Jesus Toscano) were standing near the rear of the two vehicles.   While Detective Mercado stayed in the undercover vehicle, Detective Trevino approached the three, shook hands with defendant, and asked if he had the heroin, to which defendant replied affirmatively.   Defendant suggested that they complete the transaction at Lupe's house, but eventually agreed to go ahead with it in the parking lot.

Defendant told Trevino that the heroin was in Lupe's car, and pointed in that direction, whereupon Lupe and Trevino went to her car, where Trevino was handed a tinfoil package containing a dark substance.   After examining the substance, Trevino gave a signal, and the three suspects were taken into custody.   The package handed to Detective Trevino contained 1.6 ounces of concentrated heroin.

Following defendant's arrest, Detective Trevino approached defendant and asked whether he would be willing to introduce undercover officers to other heroin sellers for the purpose of making additional arrests.   Defendant eventually agreed to work with the officers in that manner, admitting his involvement in the charged heroin sale and stating that he was “sorry about the whole thing.”   Detectives Trevino and Mercado later determined that there was too great a risk that defendant would flee to Mexico if released as an undercover agent, and so did not pursue further discussions.

Defense Case

Defendant testified that he first arrived in Fresno on March 13, 1983, from his sister Baudela's residence in El Monte, California.   He had been staying there since coming to California from his home in Mexico about a month earlier.   He got a ride to Fresno from Jesus Toscano.

Defendant had intended to visit his sister Beatriz in Selma, but Toscano went instead to defendant's sister Lupe's home in Fresno.   Lupe and Toscano invited defendant to accompany them to a restaurant, where he was approached by Detective Trevino and addressed as “Ramiro.”   Defendant shook hands with Trevino “because right away he went like this ‘hello, Ramiro’ and I thought he was talking about—was something that involved my brother Ramiro.”   Defendant told Trevino that his name was not Ramiro.   He denied that he had ever been in Fresno prior to March 16, 1983, denied that he had ever met or had any conversation with Detective Trevino prior to March 16, and denied that he knew of any heroin being present in Lupe's car on that date.

Defendant's sister, Baudela Hernandez, corroborated that he visited her in El Monte until March 13, 1983.   She further stated that defendant resembled his younger brother Ramiro.   Defendant's sister Beatriz Hernandez also testified that he resembled his younger brother Ramiro.   Both sisters identified a photograph on an identification card introduced into evidence as being that of Ramiro Hernandez.   The defendant testified the identification card was in his possession when he was arrested because Ramiro, whom defendant had seen at Toscano's home in southern California, had given defendant the wallet as a present a few days earlier.

Following his arrest, defendant was approached by Detective Trevino, who offered to let defendant go and pay him money if he would turn in his brother Ramiro.   Defendant refused to accept this deal.

DISCUSSION

I. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN PERMITTING THE USE OF AN INTERPRETER AS BOTH A DEFENSE INTERPRETER AND WITNESS INTERPRETER FOR TWO DEFENSE WITNESSES?

Defendant's trial counsel represented at the commencement of trial that defendant required the services of an interpreter, and a Spanish-English interpreter was provided.   No issue is raised on appeal concerning defendant's need for an interpreter, nor is it disputed that the interpreter was borrowed to translate for defendant's two sisters when they took the stand as defense witnesses.

It is defendant's contention that the California Supreme Court in People v. Aguilar (1984) 35 Cal.3d 785, 200 Cal.Rptr. 908, 677 P.2d 1198 has decided that the borrowing of an interpreter assigned to translate for a defendant to perform other translating chores constitutes reversible error per se, and that accordingly we should reverse the judgment of conviction in the instant case.

Mindful of the fact this court held in People v. Carreon (1984) 151 Cal.App.3d 559, 198 Cal.Rptr. 843 that “A violation of [the right to a defense interpreter] is reversible error only if an informed speculation by the reviewing court reveals that the defendant's right to effective representation was prejudicially affected under the peculiar facts of the case,” (id., at p. 582, 198 Cal.Rptr. 843) defendant argues alternatively that application of the standard developed in Carreon to the instant case also mandates reversal.

Since it is clear to us that Aguilar, which was decided three months after the decision in Carreon was filed, does not address the issue of the standard of review in cases involving deprivation of interpreter services, we decide the issue before us based upon the “informed speculation” standard we have previously enunciated.

The Aguilar court pointed out that interpreters may be used in court in three different capacities:  as witness interpreters, making it possible to question a non-English speaking witness;  as proceedings interpreters, assisting the non-English speaking defendant's understanding of discussions between counsel, the witness and the judge;  and as defense interpreters, enabling the non-English speaking defendant to talk with his English-speaking attorney.  (People v. Aguilar, supra, 35 Cal.3d at p. 790, 200 Cal.Rptr. 908, 677 P.2d 1198.)

“The defendant's right to understand the instructions and rulings of the judge, the questions and objections of defense counsel and the prosecution, as well as the testimony of the witnesses is a continuous one.   At moments crucial to the defense—when evidentiary rulings and jury instructions are given by the court, when damaging testimony is being introduced—the non-English speaking defendant who is denied the assistance of an interpreter, is unable to communicate with the court or with counsel and is unable to understand and participate in the proceedings which hold the key to freedom.”   (Id., at pp. 790–791, 200 Cal.Rptr. 908, 677 P.2d 1198, fn. omitted.)

We do not deal here with a deprivation of interpreter services at a crucial moment as defined by Aguilar, for as we shall see, no evidentiary rulings or jury instructions were accomplished while the interpreter was translating for the defense witnesses, nor was damaging testimony being introduced.   Indeed the testimony being proffered was beneficial to the defense.   However, that fact does not obviate the necessity of examining the factual circumstances of the case to determine whether reversible error occurred.

Baudela Hernandez testified as the first witness on the morning of the second day of trial.   Her testimony that defendant stayed with her in El Monte from the beginning or middle of February until March 13, 1983, was not challenged by the respondent either by way of cross-examination or by rebuttal witness.   She also testified a brother named Ramiro Hernandez—whose picture she identified—looked quite a bit like defendant.   Using the photograph she explained what facial differences existed between the two brothers which allowed her to tell them apart although they looked like twins.   The People did not subject Baudela to extensive cross-examination and did not offer rebuttal evidence to cast doubt upon her testimony.

Beatriz Hernandez testified immediately after Baudela at the same court session.   She testified regarding the ages of defendant and his brother, Ramiro, identifying their birth certificates.   The point of that testimony was to demonstrate that the brothers were born within two years of each other.   After a recess was called by the court, she was cross-examined briefly by the prosecutor.   There was no redirect examination by trial defense counsel.   It does not appear from the record that the cross examination was designed to demonstrate the witness was lying, nor were any witnesses called to rebut the testimony of Beatriz.

Applying the informed speculation standard to the circumstances surrounding the testimony of the two witnesses, it is difficult to develop a scenario which would trigger a finding of reversible error based upon the use of the interpreter to translate for Baudela and Beatriz.   Defendant was clearly aware of the nature of their testimony, for he took the stand immediately after Beatriz and his testimony built in part upon that of his sisters.   For example, he explained why at his arrest he was in possession of the identification card bearing Ramiro's picture which his sisters had authenticated.   He also gave identical testimony to that of Baudela concerning the duration of his visit with her.   We can confidently conclude defendant knew what his sisters had told the jury at the time he began giving evidence in his own behalf.   This is not surprising, since he had been afforded an opportunity to discuss the testimony they had given to the close of Beatriz' direct examination with his counsel and the interpreter during the court's recess.   The information thereafter elicited on cross-examination of Beatriz could not have affected his proposed testimony.   Indeed, as we have pointed out, it did not even trigger redirect examination by his attorney.

We next examine the record to determine whether any colloquies between court and counsel, or between the witnesses and the court occurred during the time defendant's interpreter was being used to translate for Baudela and Beatriz.

During the testimony of Baudela the court noted for the record she had identified the defendant as her brother, gave the prosecutor permission to approach the witness with an exhibit, and had the prosecutor identify for the record the two exhibits she was showing the witness.

While Beatriz testified, the court noted she had identified defendant as her brother, announced a 10-minute recess, and instructed the interpreter to translate defendant's Spanish birth certificate into English.¹  The only other nontestimonial activity which took place consisted of an objection by defense counsel that a question was ambiguous, whereupon the prosecutor withdrew the question.

Defendant argues on appeal that application of the Carreon standard requires reversal for the following reasons:

“․ [T]he testimony of appellant's sisters was critical to the defense since it corroborated appellant's defense as to his whereabouts on February 22 and pointed out that appellant and RAMIRO [sic ] were similar in appearance.   On cross-examination, both sisters were asked to look at a photograph of RAMIRO and to detail what differences in features enabled them to tell the brothers apart.   Both sisters gave non-specific answers․  If appellant understood the nature of the prosecution's questioning and had an opportunity to communicate with his attorney, he might have provided counsel with information concerning differences between RAMIRO and himself which could be brought out on redirect examination, thereby bolstering the credibility of the witnesses.”

As we have previously pointed out, the testimony of Baudela regarding the fact defendant stayed with her from early or mid-February until March 13 was not challenged on cross-examination.   The only question asked with regard to that part of her testimony was what day of the week March 13 fell on.   Neither did the prosecutor dispute her testimony in that regard in closing argument.   We have also pointed out that the defendant gave essentially identical testimony on his own behalf, thus corroborating the fact that he was aware of the nature of his sisters' testimony and that it had conveyed to the jury that which he desired to convey to the jury concerning the period of time in question.

With regard to the photograph of Ramiro, defendant ignores the fact that the photograph was in evidence, and the jury could make its own comparison between the picture and defendant.   Defendant's sisters explained how they could tell their brothers apart, but also testified they looked like twins.   Indeed, in view of the defense (that it was Ramiro, the look-alike brother who attended the meeting to set up the sale held on February 22), it behooved trial counsel to emphasize the near-identity of appearance of the two brothers and not to develop a list of appearance discrepancies which would have substantially weakened the argument that Detectives Trevino and Mercado mistook Ramiro Hernandez for defendant on February 22.

For all of the above reasons, an informed speculation does not reveal any prejudice to the defense stemming from the borrowing of defendant's interpreter to translate for his two sisters.   Consequently any error in allowing the interpreter to be utilized to translate for the two defense witnesses was harmless.

II. DOES THE TRIAL COURT'S ERROR IN INSTRUCTING THE JURY WITH REGARD TO AIDING AND ABETTING REQUIRE REVERSAL? ***

CONCLUSION

The judgment of conviction is affirmed.

FOOTNOTES

FOOTNOTE.  

1.   It is clear from the translation of the birth certificate and from the development of the case as a whole that the interpreter's translation of the birth certificate accurately reflected the material contained therein.   As we have pointed out, ante, the significance of the birth certificates in evidence was to demonstrate the close proximity of age of defendant and Ramiro Hernandez.

FOOTNOTE.   See *, ante.

RANDALL, Associate Justice.** FN** Assigned by the Chairperson of the Judicial Council.

WOOLPERT, Acting P.J., and MARTIN, J., concur.