PEOPLE v. McCARTHY (1986)

A jury convicted defendant of first degree murder (Pen.Code, § 187) and robbery (Pen.Code, § 211).   The jury further found defendant used a firearm (Pen.Code, § 12022.5) and the murder was committed during the commission of the robbery within the meaning of Penal Code section 190.2, subdivision (a)(17)(i).¹  Defendant appeals, contending statements obtained in violation of Miranda ² cannot be used for impeachment purposes.

FACTS

On March 6, 1984, defendant was visiting his grandmother and her husband, Dr. Ralph Moore (defendant's 83-year-old step-grandfather), at their home in Apple Valley.   Defendant expressed an interest in going to Hemet to collect money owed to him by Peggy Murphy Hamilton.   Hamilton is the mother of defendant's “common law” wife, Margo Murphy.   Dr. Moore insisted upon driving defendant.

Before leaving, defendant asked to borrow $10 from his grandmother.   His grandmother only had a $20 bill, so she obtained change from Dr. Moore.   She noticed Dr. Moore had at least a $50 bill in his wallet.   Dr. Moore “always carried money.”

Dr. Moore and defendant left for Hemet in Moore's white Honda.   Defendant carried a tote bag containing a revolver.   They drove into Bautista Canyon.   There, Dr. Moore was garotted and shot in the back of his neck.   Dr. Moore's wallet was found.   It contained a pair of old American $2 bills and a pair of Canadian $2 bills.

Following the killing, defendant drove to San Jacinto and purchased gifts totalling approximately $33.   He then drove to his “mother-in-law's” home to visit his wife.   The gifts were presented.   Subsequently, defendant and his wife spent the night at a motel ³ and drove the Honda to Tijuana the next day.   There defendant unsuccessfully tried to sell the car.   He and his wife returned to San Jacinto late in the afternoon on March 7.

That evening, the police arrived at Dr. Moore's home and disclosed Dr. Moore had been found shot.   The police then went to the Hamilton household, looking for defendant, but were told he was not there.   They returned a short time later and arrested him.

The police found a pair of defendant's pants and his wallet under his wife's bed.   Human blood was detected on the pants, although it could not be conclusively typed.   Defendant's wallet contained $14 and three live .38 caliber rounds.

Defendant told his wife and her mother he and Dr. Moore had gone to a shopping mall.   When defendant came out of the mall both Dr. Moore and the car were gone.   Defendant claims he searched for over an hour and ultimately found the car.   It had been moved to a different parking spot.   He could not find his grandfather.

DISCUSSION

Following defendant's arrest, he was questioned by the police.   Defendant asserted his right to have an attorney present, but the police continued the questioning.   Statements were elicited from defendant and the People concede defendant's Miranda rights were violated.⁴

The defense rested without defendant taking the stand.   Defense counsel stated defendant would have testified had the court not ruled illegally obtained statements elicited from defendant could be used for impeachment purposes.   Defendant contends his right to avoid impeachment by his pretrial statements, taken in violation of Miranda, arises out of his statutory privilege against self-incrimination.  (Evid.Code, § 940.) ⁵  Defendant relies upon People v. Disbrow (1976) 16 Cal.3d 101, 127 Cal.Rptr. 360, 545 P.2d 272.

 Prior to the passage of Proposition 8, the governing law was clear regarding whether statements taken in violation of Miranda could be admitted for impeachment purposes.   Under the federal Constitution, such statements could not be used as affirmative evidence by the prosecution during its case in chief.   However, they could be used for impeachment if the defendant voluntarily took the stand.  (Harris v. New York (1971) 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1.)   Under California law, such statements could not be used for impeachment.  (People v. Disbrow, supra, 16 Cal.3d 101, 127 Cal.Rptr. 360, 545 P.2d 272.)   The issue before us is whether the Disbrow exclusionary rule survives the 1982 amendment of the California Constitution by Proposition 8, which added article I, section 28, subdivision (d).⁶  We find it does not for two reasons.

First, assuming Proposition 8 does not alter the scope of Evidence Code section 940, defendant's reliance on Disbrow, however, is nevertheless misplaced.   The Disbrow court judicially created a rule which related to a remedy rather than the scope of the substantive rights protected by the Constitution.   Thus, Evidence Code section 940, which relates only to substantive rights, not remedial rights, cannot save the exclusionary rule established in Disbrow.   In our post-Proposition 8 regime, the federal remedy, as provided in Harris v. New York, supra, is now required.  (See In re Lance W. (1985) 37 Cal.3d 873, 886–887, 210 Cal.Rptr. 631, 694 P.2d 744.)

 Alternatively, as pointed out in People v. Clark (1985) 171 Cal.App.3d 889, 898–899, 217 Cal.Rptr. 819 (Evans, Acting P.J. dissenting):  “The portion of Disbrow, which implicated impeachment of a defendant-witness into California Constitution, article I, section 15 (self-incrimination) in order to exclude the use of non-Mirandized statements for impeachment, as prohibited by Harris, was annulled by Proposition 8 (art. I, § 28, subd. (d)).  [¶ ] As a consequence, Evidence Code section 940 now speaks only to self-incrimination and does not include by implication impeachment.   The privilege involved in this proceeding and referred to in article I, section 28, subdivision (d), is that privilege which protects against self-incrimination as specified in Evidence Code section 940.   The effect of Proposition 8 on article I, section 15, limits the privilege against self-incrimination to just that.”

“ ‘The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances․' ”  (People v. Clark (1985) 171 Cal.App.3d 889, 897, 217 Cal.Rptr. 819, quoting Harris v. New York, supra, 401 U.S. 222, 91 S.Ct. 643.)

Defendant improperly relies upon Romona R. v. Superior Court (1985) 37 Cal.3d 802, 210 Cal.Rptr. 204, 693 P.2d 789.   In Romona, the prosecution filed a murder charge against the defendant in juvenile court.   Thereafter, pursuant to Welfare and Institutions Code, section 707, the prosecution sought to try her as an adult.   Due to the nature of the charges, Romona was statutorily presumed unfit for juvenile court.   This statutory rebuttable presumption of unfitness effectively compelled Romona to produce evidence at a fitness hearing or pretrial interview with a probation officer which would likely be self-incriminating on issues relating to guilt.

At her fitness hearing, Romona presented no evidence.   She also declined to be interviewed by or make any statement to her probation officer.   She remained silent because she was advised any of her statements could be used against her at a subsequent criminal trial.   Romona was declared not to be a fit subject for juvenile court treatment.   Murder charges were filed against her in superior court and she sought a writ of mandate to compel vacation of the order of unfitness.   The Supreme Court reviewed whether the juvenile court erred in failing to grant her use immunity for any statements made to her probation officer or to the court in the fitness hearing.   The Court concluded use immunity was compelled by the California constitutional provision against self-incrimination, as codified by Evidence Code section 940.   It was therefore a privilege specifically excepted from Proposition 8 amendment.

While we agree with the Supreme Court's conclusion drawn in Romona, the issue in the present case is distinguishable.   Romona involved legislatively compelled self-incriminatory statements or testimony.⁷  Here we are concerned with the remedial use of evidence obtained in violation of the right against self-incrimination, not the scope of the right itself.

As the prosecution's burden was not impermissibly lightened, defendant was not subject to the “cruel trilemma” of self-accusation, perjury or contempt and the defendant was properly advised his statement could be used for impeachment purposes, we conclude no error flows from the trial court's ruling.   We find no justification for allowing a defendant to perjure himself in reliance on the government's disability to challenge his credibility, and we find no support for the proposition a defendant has a constitutional right to lie.

Judgment affirmed.

FOOTNOTES

1.   The enhancement for firearm use was merged into the life sentence and the sentence for the robbery was ordered stayed pending the completion of the life sentence.

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

3.   Defendant paid for the motel room with a $50 bill.

4.   Defendant did not admit to the killing.   He first stated he had not driven Dr. Moore to Bautista Canyon.   However, upon the police's claiming defendant was seen in the canyon, defendant admitted he had been there with Dr. Moore.   Defendant denied Moore exited the car in the canyon.   He asserted they drove to a San Jacinto Alpha Beta.

5.   Evidence Code section 940 provides:“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 matter that may tend to incriminate him.”

6.   Subdivision (d) provides in pertinent part:“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․”

7.   The Supreme Court expressly declined to reach the question whether testimony could be used for the purpose of impeachment.  (Romona at p. 807, fn. 2, 210 Cal.Rptr. 204, 693 P.2d 789.)

RICKLES, Acting Presiding Justice.

KAUFMAN and McDANIEL, JJ., concur.