PEOPLE v. MAY (1987)

In People v. Disbrow (1976) 16 Cal.3d 101, 113, 127 Cal.Rptr. 360, 545 P.2d 272, we held that “the privilege against self-incrimination of article I, section 15, of the California Constitution precludes use by the prosecution of any extrajudicial statement by the defendant, whether inculpatory or exculpatory, either as affirmative evidence or for purposes of impeachment, obtained during custodial interrogation in violation of the standards declared in Miranda [v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694] and its California progeny.”  (Italics added.)   In so holding we overruled People v. Nudd (1974) 12 Cal.3d 204, 115 Cal.Rptr. 372, 524 P.2d 844, in which a bare majority of this court had adopted the rule laid down by an equally bare majority of the United States Supreme Court in Harris v. New York (1971) 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1—i.e., that statements inadmissible as affirmative evidence because of Miranda violation can nevertheless be used for impeachment if they are “voluntary”—and we declared that “Harris is not persuasive authority in any state prosecution in California.”  (16 Cal.3d at p. 113, 127 Cal.Rptr. 360, 545 P.2d 272.)

We granted review in this case to determine whether the Disbrow rule was nullified by article I, section 28, subdivision (d), of the California Constitution (hereinafter section 28(d)), adopted by the voters as part of Proposition 8 at the June 1982 Primary Election, and if it was not, whether we should readopt the Harris rule and accordingly overrule Disbrow.   For the reasons given below we conclude that the Disbrow rule survives the adoption of section 28(d) and should not be overruled.

I

In February 1983 Janice F. lived in a condominium on Milpas Street in Santa Barbara.   Seeking a roommate, she placed an advertisement in a local newspaper.   On Saturday, February 26, she spoke by telephone with a man about the rental, then briefly interviewed him at the condominium.   He gave “Dennis” as his first name and a one-syllable last name.

Later that day Laura Jestings drove to the Chili Factory in Santa Barbara to meet friends.   After she parked, a man walked briefly with her and mentioned that he was from Canoga Park, was in Santa Barbara for the weekend, and had previously been to the Chili Factory.   As she was returning to her car from the Chili Factory, she again saw the man.   She entered her car and locked the door.   He approached and tapped on the window, and she rolled it down.   After a brief discussion he pointed a gun at her and ordered her to open the door and move over.   He got into the driver's seat and placed the gun at her waist.   He directed her to put her hands behind her back so that he could handcuff her.   She resisted, jumped out of the car, and ran away.   The man fled, taking neither the car nor anything therein.

On the afternoon of the following day—Sunday, February 27—the man who had spoken with Janice F. about sharing her condominium called and asked if he could come and talk with her further about the matter;  she agreed.   After the man arrived, they had a brief discussion about the condominium.   Suddenly he grabbed her from behind, put his left hand over her mouth, placed a gun at her side, told her not to scream or to make him nervous, forced her up the stairs into a bedroom and handcuffed her behind her back.   He asked if she had anything valuable, and she said no.   He placed a bandana in her mouth as a gag and removed two rings she was wearing.   Next, he put her on the bed on her back, removed her pants and underpants, pushed up her sweatshirt and brassiere to expose her breasts, bit her around the nipple of her right breast, penetrated her with his finger, and raped her.   He then tied her hands and took off the handcuffs, replaced her pants and properly arranged the clothing on her upper body, and finally left.   At the time of the attack, he was wearing shoes that appeared to be brown with black tones.

In the course of their investigation into the two sets of crimes, the police arrested defendant.   Immediately after he was advised of his Miranda rights, he stated:  “Before I answer a thing I want an attorney present here․”  Without providing him with an attorney, however, the police interrogated him and elicited, in addition to denials of involvement in the crimes, various statements that had a tendency to show he was the perpetrator.   For example, he stated that he had visited the Chili Factory, was in Santa Barbara on February 26 and 27, 1983, owned handcuffs, and had owned handguns.

Defendant was charged with the following crimes against Janice F.:  burglary, sexual penetration with a foreign object, rape, robbery in an inhabited dwelling, assault with a deadly weapon, and false imprisonment.   He was also charged with the following crimes, among others, against Jestings:  assault with a deadly weapon and assault with intent to commit rape.   He pleaded not guilty.

Prior to trial defendant moved under Disbrow to bar any use of his statements to the police on the ground they were obtained in violation of his Miranda rights.   Insofar as the motion sought to bar the prosecution from using the statements in its case in chief, it was impliedly granted.   Otherwise, however, it was denied in the following ruling:

“It appears to the Court that under Proposition 8, the Federal law must be applied, and the Federal standard must be applied as to the use of statements in violation of the Miranda rule.

“․

“In this case, ․ there was a specific affirmative statement by the defendant that he wished to take advantage of his rights;  that is, have an attorney, and that is repeated later on in the conversation as well.   No question that it did not comply with Miranda․

“․

“The Court does find that the statements were not coerced;  that there is no indication of coercion in the statements by length of the interview, or by methods used, or promises made;  that there was no indication that if he talked, there would be a deal, that he would get off better if he did.

“․

“So the ruling of the court is that under Harris, using the federal test, they would be usable as impeachment testimony by the prosecution, if otherwise appropriately usable as impeachment testimony.”

After the ruling defense counsel stated that defendant “will not be testifying, then, under compulsion of the ruling.   We don't want to be subjected to the possibility of cross-examination on that particular statement.”

At trial each of the victims described the attack she had suffered;  Janice F. positively identified defendant as her assailant, and Jestings stated he looked very similar to the man.   Another woman, one Kathleen C., testified that in January 1983 she advertised in a local paper called Easy Ad for a roommate to share her apartment in San Luis Obispo;  a man responded and subsequently attacked her;  the incident was similar to that involving Janice F.;   and the assailant was defendant.

One Larry Slayton also testified on behalf of the prosecution.   On a Sunday in February 1983, defendant, who was carrying a gun, picked him up at his home and drove to Santa Barbara.   Defendant said he was going to see a woman there about an apartment and intended to rape her.   Arriving in Santa Barbara, he drove to a block on Milpas Street—which proved to be near Janice F.'s condominium—and parked.   He took out a pair of handcuffs and put them in his pocket.   As he got out of the car, he told Slayton that if anything happened he should go.   Slayton waited about five minutes and then left.   In the early morning of the following day, defendant telephoned him and asked to be picked up;  Slayton said he would, but did not.   Later that day defendant saw him, became very angry and tried to choke him.   He then displayed some rings and said, “This is all I got out of this, and if you would have been there, we could have got stereo components, stereo and a TV.”   Defendant told him they were going back to Santa Barbara to retrieve his gun, which he said he had had to “stash.”   Slayton ran;  defendant gave chase threatening to kill him, but Slayton eluded him.

Two experts testified for the prosecution.   A document examiner was of the opinion that defendant had signed a registration form, giving “Dennis Burke” as his name and “Canoga Park” as his place of residence, in order to obtain a room at the Hope Ranch Motel—which was located about 400 yards from the Chili Factory—for Saturday, February 26, 1983.   A serologist was of the opinion that seminal fluid stains found on the clothing worn by Janice F. and Kathleen C. at the time of attack could have been produced by defendant.

The prosecution also presented physical evidence linking defendant to the crimes, including two items found at his home:  a pair of brown shoes with black spots, and a pair of handcuffs.

In its case and through cross-examination of the prosecution's witnesses, the defense attacked the testimony linking defendant to the crimes and tried to show that Slayton was lying in order to implicate defendant and protect someone else.   Defendant did not take the stand.¹

Defendant was convicted of the crimes charged.   On appeal he contended, inter alia, that the court erred in denying his Disbrow motion insofar as it sought to bar the prosecution from using his extrajudicial statements for impeachment.   The Court of Appeal expressed doubt that the issue had been properly raised and preserved for appeal because defendant did not testify.   The court nevertheless rejected the point on the merits:  concluding that section 28(d) abrogated the Disbrow rule and thereby left Harris to govern the case, it held that the trial court did not err in ruling the statements admissible for impeachment.   Determining defendant's other contentions to be similarly without merit, it affirmed the judgment.

II

Defendant contends that under Disbrow the court erred in ruling his statements admissible for impeachment.   The Attorney General concedes that if Disbrow governs, the court committed error;  but he urges that the rule does not survive the adoption of section 28(d), and that if it does the Harris rule should be readopted in its place.   As we shall explain, we conclude that Disbrow bars the admission of defendant's statements, was not nullified by section 28(d), and remains good law.²

A

Under Disbrow, the ruling that defendant's statements were admissible for impeachment was error.   The court correctly concluded, and the Attorney General concedes, that the statements were obtained in violation of Miranda.   As we have said, “It is beyond dispute that once a defendant has asserted his right to counsel the interrogation must cease.”  (People v. Braeseke (1979) 25 Cal.3d 691, 702, 159 Cal.Rptr. 684, 602 P.2d 384.)   Or as the Supreme Court has declared, “If [the defendant] requests counsel, ‘the interrogation must cease until an attorney is present.’ ”  (Edwards v. Arizona (1981) 451 U.S. 477, 482, 101 S.Ct. 1880, 1883, 68 L.Ed.2d 378, quoting Miranda v. Arizona, supra, 384 U.S. at p. 474, 86 S.Ct. at p. 1628.)   It is clear from the record that immediately after being advised of his Miranda rights defendant requested an attorney:  he said, “Before I answer a thing I would want an attorney present here․”  In spite of this express invocation of the right to counsel, the police continued their interrogation and obtained the statements at issue.   Because those statements were obtained “during custodial interrogation in violation of the standards declared in Miranda and its California progeny,” the privilege against self-incrimination of the California Constitution precluded the prosecution from using them for any purpose whatsoever.  (People v. Disbrow, supra, 16 Cal.3d at p. 113, 127 Cal.Rptr. 360, 545 P.2d 272.

B

Section 28(d) reads as follows:  “Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, 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.   Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, Sections 352, 782 or 1103.   Nothing in this section shall affect any existing statutory or constitutional right of the press.”  (Italics added.)

Crucial to the question whether the Disbrow rule survives the adoption of section 28(d) is the effect of the emphasized savings clause, and especially the meaning of its phrase, “statutory rule[s] of evidence relating to privilege.”

We begin our analysis with certain observations on evidentiary privileges in general.   A privilege is itself not a rule of evidence but a principle of substantive law which exempts a person from the “general duty to give what testimony [he] is capable of giving․”  (8 Wigmore, Evidence (McNaughton rev. 1961) § 2192, p. 70 [hereinafter Wigmore];  see A Study Relating to the Privileges Article of the Uniform Rules of Evidence [hereinafter Study], Tent. Recommendation and Study Relating to the Uniform Rules of Evidence, art. V, Privileges (Feb. 1964) 6 Cal.Law Revision Com.Rep. (1964) [hereinafter Tent. Recommendation and Study], p. 309;  cf. McCormick, Evidence (3d ed. 1984), § 72, p. 172 [hereinafter McCormick] [“rules of privilege are of a different order than the great bulk of evidentiary rules”].)

A privilege may grant an exemption from the duty to take the stand, as where the person involved is a criminal defendant or the spouse of a party.  (Study, supra, 6 Cal.Law Revision Com.Rep. at p. 309;  8 Wigmore, supra, at §§ 2227–2245, pp. 211–265 [spouse], § 2268, pp. 406–410 [criminal defendant];  Evid.Code, § 930 [criminal defendant], § 971 [spouse].)   Or it may grant an exemption from the duty to give testimony on certain matters, such as facts that may tend to incriminate the witness or the substance of confidential communications in any of several protected relationships, including for example that of attorney and client.  (Study, supra, at p. 309;  8 Wigmore, supra, § 2260, pp. 369–378 [facts tending to incriminate], §§ 2290–2329, pp. 541–641 [attorney-client communications];  Evid.Code, § 940 [facts tending to incriminate], § 954 [attorney-client communications].)

The grounds on which exemption from the duty to testify rests have nothing to do with the search for truth, but rather involve the protection of important interests and relationships.  (Fross v. Wotton (1935) 3 Cal.2d 384, 394, 44 P.2d 350;  accord, McCormick, supra, § 72, p. 171.)   Such an exemption, therefore, is not provided to benefit any party to litigation.   (fross v. wotton, supra, at p. 394, 44 P.2d 350.)  “it follows that the claim of privilege can be made solely by the person whose privilege it is.   The privilege (as the common phrasing runs) is purely personal to himself.”  (8 Wigmore, supra, § 2196, p. 111, italics deleted.)

Even though a privilege is not itself a rule of evidence, there are rules of evidence that relate to privilege and, specifically, permit evidence to be kept from the trier of fact.   Some of these rules, which allow the holder to refuse to disclose certain information (e.g., Evid.Code, § 954 [attorney-client communications] ), are essentially the privilege transformed into a rule of evidence and hence are related to the privilege, as we may put it, “directly.”   Others, which may allow the holder to bar another from disclosing the information (e.g., ibid.) or may even require a person other than the holder to bar such disclosure (e.g., id., § 955 [attorney-client communications] ), operate to prevent the frustration of the policy of the privilege and hence are related to the privilege “indirectly.”

Turning to the privilege against self-incrimination, we agree with the United States Supreme Court that the guarantee “ ‘registers an important advance in the development of our liberty—“one of the great landmarks in man's struggle to make himself civilized.” ’  [Citation.]  It reflects many of our fundamental values and most noble aspirations:  our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt;  our preference for an accusatorial rather than an inquisitorial system of criminal justice;  our fear that self-incriminating statements will be elicited by inhumane treatment and abuses;  our sense of fair play which dictates ‘a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load,’ [citation];  our respect for the inviolability of the human personality and of the right of each individual ‘to a private enclave where he may lead a private life,’ [citation];  our distrust of self-deprecatory statements;  and our realization that the privilege, while sometimes ‘a shelter to the guilty,’ is often ‘a protection to the innocent.’ ”  (Murphy v. Waterfront Comm'n. (1964) 378 U.S. 52, 55, 84 S.Ct. 1594, 1596–1597, 12 L.Ed.2d 678, fn. omitted;  accord, People v. Coleman (1975) 13 Cal.3d 867, 875, fn. 5, 120 Cal.Rptr. 384, 533 P.2d 1024;  see generally People v. Bernal (1967) 254 Cal.App.2d 283, 288–294, 62 Cal.Rptr. 96.)

In view of these policies, the privilege “must be accorded liberal construction in favor of the right it was intended to secure.”  (Hoffman v. United States (1951) 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118 and cases cited.)   In other words, it “must not be interpreted in a hostile or niggardly spirit.”  (Ullmann v. United States (1956) 350 U.S. 422, 426, 76 S.Ct. 497, 500, 100 L.Ed. 511.)   The reason for this is plain:  “To apply the privilege narrowly or begrudgingly—to treat it as an historical relic, at most merely to be tolerated—is to ignore its development and purpose.”  (Quinn v. United States (1955) 349 U.S. 155, 162, 75 S.Ct. 668, 673, 99 L.Ed. 964;  accord, Board of Education v. Mass (1956) 47 Cal.2d 494, 503, 304 P.2d 1015 (conc. opn. of Carter, J.).)

Evidence Code section 940 (hereinafter 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.”

This important statute does two things.   First, it makes into a rule of statutory substantive law the privilege against self-incrimination that is enshrined in the federal and California Constitutions as construed by the courts.   The Law Revision Commission comment to the statute explains:  “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.  [Citations.]  Nor does Section 940 prescribe the exceptions to the privilege or indicate when it has been waived.   This, too, is determined by the cases interpreting the pertinent provisions of the California and United States Constitutions.”  (Recommendation Proposing an Evidence Code (Jan. 1965) 7 Cal.Law Revision Com.Rep. (1965) p. 170, italics added;  accord, People v. Barrios (1985) 166 Cal.App.3d 732, 742, 212 Cal.Rptr. 644;  Wilson v. Superior Court (1976) 63 Cal.App.3d 825, 829–830, 134 Cal.Rptr. 130;  see generally Note, Disbrow Confronts Proposition 8:  Will Miranda Violative Statements Be Admitted to Trial for Impeachment? (1986) 17 Pacific L.J. 1337, 1347–1356.)

Second, section 940—which is, of course, a provision of the Evidence Code—impliedly codifies the rules of evidence laid down by the courts as they have interpreted the privilege.  (See People v. Weaver (1985) 39 Cal.3d 654, 659, 217 Cal.Rptr. 245, 703 P.2d 1139;  Ramona R. v. Superior Court (1985) 37 Cal.3d 802, 808–811, 210 Cal.Rptr. 204, 693 P.2d 789;  People v. Marzett (1985) 174 Cal.App.3d 610, 617–619, 220 Cal.Rptr. 217;  People v. Clark (1985) 171 Cal.App.3d 889, 893–894, 217 Cal.Rptr. 819;  People v. Navarez (1985) 169 Cal.App.3d 936, 942–945, 215 Cal.Rptr. 519;  People v. Givans (1985) 166 Cal.App.3d 793, 800, 212 Cal.Rptr. 762;  People v. Barrios, supra, 166 Cal.App.3d at pp. 739–746, 212 Cal.Rptr. 644;  People v. Jacobs (1984) 158 Cal.App.3d 740, 750–751, 204 Cal.Rptr. 849.)   The Attorney General, in substance, admits as much:  in the June 10, 1982, supplement to his Guide to Proposition 8 (1982), he states that “Section 940 is a statutory rule of evidence relating to privilege deriving content from both the state and federal constitutions.”  (Id. at p. 4–52.)

 From the foregoing analysis it follows that the Disbrow rule falls within the savings clause of section 28(d) and hence outside the scope of the general declaration of that provision:  section 940 codifies, and thereby establishes as statutory rules, those rules of evidence that the courts have articulated relating to the constitutional privilege against self-incrimination;  in construing article I, section 15, of the California Constitution we laid down the rule of Disbrow as such a rule;  therefore, section 940 establishes that rule as a statutory rule relating to the privilege against self-incrimination.

As previously concluded by Courts of Appeal (People v. Marzett, supra, 174 Cal.App.3d at pp. 617–619, 220 Cal.Rptr. 217;  People v. Clark, supra, 171 Cal.App.3d at pp. 892–894, 217 Cal.Rptr. 819;  People v. Barrios, supra, 166 Cal.App.3d at pp. 736–747, 212 Cal.Rptr. 644), and by commentators (Note, supra, 17 Pacific L.J. at pp. 1345–1360), we therefore hold that section 28(d) does not nullify the Disbrow rule.

Against this conclusion the Attorney General and his amici make what comes down to two general arguments.   Neither, as we shall explain, is persuasive.

The first argument runs in essence as follows:  section 940 codifies the privilege against self-incrimination;  that privilege is a testimonial privilege and as such is implicated when a person takes the stand and is subject to legal compulsion to testify, not when he is questioned by the police;  section 940, therefore, does not codify the Disbrow rule.

The argument is unsound.   To begin with, the privilege that section 940 codifies is not to be narrowly construed.   As we said in Ramona R. v. Superior Court, supra, 37 Cal.3d at page 808, 210 Cal.Rptr. 204, 693 P.2d 789, “the language of that provision is purposefully broad, and is meant to include within its reach judicial decisions relating to the privilege against self-incrimination.”   Commentators are in accord.  (Note, supra, 17 Pacific L.J. at pp. 1351–1354.)

Second and dispositive, the privilege does indeed go with a person into the police station.   We recognize, to be sure, that such an understanding of the privilege is contrary to the traditional scope of the privilege at common law:  the privilege was deemed not to apply on the ground that the police have no legal right to compel answers.  (E.g., 8 Wigmore, supra, § 2252, pp. 328–329.)   We also recognize this understanding may possibly be contrary to the opinion held by the Law Revision Commission when it made its tentative recommendation.  (Tent. Recommendation, supra, in Tent. Recommendation and Study, supra, 6 Cal.Law Revision Com.Rep. at pp. 216–217.)   Nevertheless, it is clear that the privilege, which has ever been a flexible doctrine (see, e.g., McCormick, supra, §§ 114–118, pp. 279–289), “today ․ applies to in-custody interrogation” (3 Wigmore, Evidence (Chadbourn rev.1970) § 823, p. 340 [federal constitutional law] ).

This is plainly so under article I, section 15, of the California Constitution:  “In California it is recognized that the privilege against self-incrimination goes to and is with the citizen in the police station.”   (People v. Clemmons (1957) 153 Cal.App.2d 64, 76, 314 Cal.Rptr. 142, and cases cited;  accord, People v. Navarez, supra, 169 Cal.App.3d at p. 944, 215 Cal.Rptr. 519;  People v. Barrios, supra, 166 Cal.App.3d at pp. 743–747, 212 Cal.Rptr. 644;  Study, supra, in Tent. Recommendation and Study, supra, 6 Cal.Law Revision Com.Rep. at p. 345;  Note, supra, 17 Pacific L.J. at p. 1353;  cf. Ramona R. v. Superior Court, supra, 37 Cal.3d at pp. 806–811, 210 Cal.Rptr. 204, 693 P.2d 789 [impliedly holding that the privilege is implicated in a minor's probation interview].)

It is also true under the Fifth Amendment.   In the words of the Miranda court, “all the principles embodied in the privilege apply to informal compulsion exerted by law-enforcement officers during in-custody questioning.   An individual swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion [at the disposal of the police] cannot be otherwise than under compulsion to speak.   As a practical matter, the compulsion to speak in the isolated setting of the police station may well be greater than in courts or other official investigations, where there are often impartial observers to guard against intimidation or trickery.”  (384 U.S. at p. 461, 86 S.Ct. at 1620–1621.)   Or as the same court stated more generally:  “the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves.”  (Id. at p. 467, 86 S.Ct. at 1624.) ³

 Finally, even if the scope of the privilege did not embrace custodial interrogation, it would not follow that section 940 does not codify the Disbrow rule.   As we have explained, section 940 does two things.   First, it declares the constitutional privilege as a matter of statutory substantive law.   Second and more important here, it codifies the rules of evidence laid down by the courts as they have interpreted the constitutional guarantees.   It is undisputed that the Disbrow rule is one of those rules of evidence.   It protects the privilege of a criminal defendant when he takes the stand.   Without the rule the prosecution would be able to confront the defendant with statements obtained in violation of Miranda, and thereby—to judge its likely effect on the jury—at one and the same time put into his mouth and compel him to disclose evidence linking him to the crime.  (Cf. People v. Disbrow, supra, 16 Cal.3d at p. 112, 127 Cal.Rptr. 360, 545 P.2d 272 [there is “considerable potential that a jury, even with the benefit of a limiting instruction, will view prior inculpatory statements as substantive evidence of guilt rather than as merely reflecting on the declarant's veracity”].)   Without the rule, therefore, one of the important policies of the privilege—to “ ‘․ requir[e] the government in its contest with the individual to shoulder the entire load’ ” (Murphy v. Waterfront Comm'n., supra, 378 U.S. at p. 55, 84 S.Ct. at p. 1597)—could be frustrated and the privilege itself rendered of little practical effect.   It follows, therefore, that in codifying judicially declared rules of evidence relating to privilege, section 940 codifies the Disbrow rule.

The second argument framed against our conclusion that the Disbrow rule survives the adoption of section 28(d) relies on the majority opinion in In re Lance W. (1985) 37 Cal.3d 873, 210 Cal.Rptr. 631, 694 P.2d 744, and runs in essence as follows:  section 28(d) declares generally that “relevant evidence shall not be excluded in any criminal proceeding”;  the savings clause exempts section 940 and consequently the substance of article I, section 15, from the operation of the provision, but not “remedies”—such as, assertedly, the Disbrow rule—created by the courts under the state Constitution;  thus, in its broad sweep section 28(d) impliedly abrogates the Disbrow rule.

The argument is without merit.   To begin with, In re Lance W. is plainly inapposite.   There, we were dealing—expressly—only with search and seizure provisions of the Constitution, which do not in precise terms confer on a person a right to exclude evidence and arguably do not come within the savings clause of section 28(d).  (In re Lance W., supra, 37 Cal.3d at p. 885, fn. 4, 210 Cal.Rptr. 631, 694 P.2d 744.)   Here, by contrast, we are dealing with the privilege against self-incrimination, which necessarily confers a right to exclude (see, e.g., People v. Rucker (1980) 26 Cal.3d 368, 390, 162 Cal.Rptr. 13, 605 P.2d 843;  People v. Disbrow, supra, 16 Cal.3d at p. 113, 127 Cal.Rptr. 360, 545 P.2d 272;  Dershowitz & Ely, Harris v. New York:  Some Anxious Observations on the Candor and Logic of the Emerging Nixon Majority (1971) 80 Yale L.J. 1198, 1214 [hereinafter Dershowitz & Ely] ), and indisputably comes within the savings clause.

More important, however, the argument is manifestly unsound.   Whereas the In re Lance W. majority held that the search and seizure provisions are within the broad sweep of the general declaration of section 28(d), the privilege against self-incrimination comes within the savings clause.   Under that clause are retained not merely section 940 and the substance of article I, section 15.   Also retained—expressly—are “statutory rule[s] of evidence relating to privilege.”   As we have explained, among such rules is included, through operation of section 940, the rule laid down in Disbrow.

 Because the language of section 28(d) is clear and unambiguous on this matter at least, we have no need to engage in constitutional interpretation and should not indulge therein.  (In re Lance W., supra, 37 Cal.3d at p. 886, 210 Cal.Rptr. 631, 694 P.2d 744.)   Yet if we could properly look to the ballot summaries and arguments, which “are accepted sources from which to ascertain the voters' intent and understanding of initiative measures” (id. at p. 888, fn. 8, 210 Cal.Rptr. 631, 694 P.2d 744), we would arrive at the same conclusion:  nowhere in those materials is the privilege even alluded to.   If we could properly cast our gaze further and consider the debate that raged over Proposition 8 in both legal circles and the community as a whole, we would not alter our conclusion.   In view of the multitude of altogether divergent and in many cases extravagant interpretations put forward, such materials are of dubious value:  they provide at least some support to all constructions, no matter how extreme and inherently unreasonable.

But even if we were allowed to construe section 28(d) on this point, we certainly could not adopt the interpretation now urged on us.   The “right/remedy” distinction is neither implied in the words of the provision nor suggested by any extrinsic aids.   More important, perhaps, the distinction appears alien to the law of privilege.   Whatever its validity in search-and-seizure jurisprudence—in which the constitutional guarantee is generally believed not to require the exclusion of evidence—the “right/remedy” distinction seems peculiarly out of place in the law of the privilege against self-incrimination—which, as we have observed, necessarily bars admission of certain evidence.

 The Attorney General and his amici urge us to readopt the Harris rule and accordingly overrule Disbrow.   For the two major reasons we give below we decline to do so.⁴

1

First, in formulating the Disbrow rule we proceeded cautiously and deliberately.   We are therefore reluctant to depart from the holding of that decision and the analysis on which it is based.

We began our discussion in Disbrow as follows:  “In Harris ․ the Supreme Court held that statements which were inadmissible as affirmative evidence because of a failure to comply with Miranda could nevertheless be used for impeachment purposes to attack the credibility of a defendant's trial testimony, as long as the statements were not ‘coerced’ or ‘involuntary.’  ․ [¶] In People v. Nudd (1974) 12 Cal.3d 204, 208 [115 Cal.Rptr. 372, 524 P.2d 844], a bare majority of this court ‘adopted’ the Harris rationale as the law in California.  [¶] In the present case we reexamine Nudd and its uncritical acceptance of the Harris rationale.”  (16 Cal.3d at pp. 106–107, 127 Cal.Rptr. 360, 545 P.2d 272.)

For the following five reasons we found the Harris-Nudd rule wanting.   First, we determined that the authority relied on in Harris itself, i.e., the general availability of an “impeachment exception” to the Fourth Amendment's exclusionary rule, was insufficient to support the rule.  (Id. at pp. 107–110, 127 Cal.Rptr. 360, 545 P.2d 272.)

Second, it was our view that persuasive language in the Miranda opinion supports a position contrary to the Harris-Nudd rule.  (Id. at p. 106, 127 Cal.Rptr. 360, 545 P.2d 272.)   In Miranda the Supreme Court stated:  “The warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant.   No distinction can be drawn between statements which are direct confessions and statements which amount to ‘admissions' of part or all of an offense.   The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner;  it does not distinguish degrees of incrimination.   Similarly, for precisely the same reason, no distinction may be drawn between inculpatory statements and statements alleged to be merely ‘exculpatory.’   If a statement made were in fact truly exculpatory it would, of course, never be used by the prosecution.   In fact, statements merely intended to be exculpatory by the defendant are often used to impeach his testimony at trial or to demonstrate untruths in the statement given under interrogation and thus to prove guilt by implication.   These statements are incriminating in any meaningful sense of the word and may not be used without the full warnings and effective waiver required for any other statement.”  (384 U.S. at pp. 476–477, 86 S.Ct. at pp. 1628–1629, italics added.)

We concluded, moreover, that “there are compelling reasons to disregard Nudd contained in the ratio decidendi of Miranda. ”   (disbrow, supra, 16 cal.3d at p. 110, 127 cal.rptr. 360, 545 P.2d 272.)   we reasoned:  “In People v. Fioritto (1968) ․ 68 Cal.2d 714, 717 [68 Cal.Rptr. 817, 441 P.2d 625], we said, ‘A principal objective of [Miranda] was to establish safeguards that would liberate courts insofar as possible from the difficult and troublesome necessity of adjudicating in each case whether coercive influences, psychological or physical, had been employed to secure admissions or confessions.’   The precision with which the Miranda court established not simply broad procedural guidelines but a precise manual for the conducting of custodial interrogations can be interpreted only as expressing an intention to create a single, uncomplicated, universally applicable test for determining whether a particular confession was coerced.   If proper warnings are given voluntariness is assured, at least in the absence of evidence of ‘traditional’ coercion.   Conversely, if an accused is inadequately informed of his rights involuntariness is assumed, and the statements are inadmissible at trial.

“The Harris-Nudd rule would resurrect the remains of the earlier voluntariness test.   Neither case by its terms would allow impeachment by use of statements which are ‘coerced or involuntary.’  [Citations.]  Thus under Harris-Nudd the following scenario can be anticipated:  a defendant will testify in a manner the prosecution considers contrary to his extrajudicial statement.   The defendant will contend that the statement is involuntary under one of the myriad pre-Miranda definitions of that term.   It will then be necessary to interrupt the proceedings, not only at mid-trial but at mid-examination, for an evidentiary hearing, the outcome of which will be subject to later review on appeal.   Only if the statement is ruled voluntary will it be admissible to impeach.   In time there will arise an impressive body of law on the voluntariness issue, rivaling that which presently exists in the area of search and seizure, as various appellate courts grapple on a case-by-case basis with the question of what is an involuntary statement.   This, we feel, is precisely the evidentiary thicket Miranda was designed to avoid.”  (Disbrow, supra, 16 Cal.3d at pp. 111–112, fns. omitted, 127 Cal.Rptr. 360, 545 P.2d 272.)

Our third reason for finding the Harris-Nudd rule wanting was as follows:  we believed there was “considerable potential that a jury, even with the benefit of a limiting instruction, will view prior inculpatory statements as substantive evidence of guilt rather than as merely reflecting on the declarant's veracity.   The theory of a limiting instruction loses meaning in this context․  To instruct a jury that they are not to consider expressions of complicity in the charged crime as evidence that the speaker in fact committed the charged crime, but only for the purpose of demonstrating that he was probably lying when he denied committing the charged crime, would be to require, in the words of Learned Hand, ‘a mental gymnastic which is beyond, not only [the jury's] power, but anybody else's.’  [Citation.]  It is thus clear that a defendant faced with the prospect of the jury hearing his admittedly illegally obtained confession if he testifies in his own behalf will be under considerable pressure to forego this most basic right of an accused.   Such a result is certainly not what Miranda envisaged.”  (Id. at p. 112, 127 Cal.Rptr. 360, 545 P.2d 272.)

Fourth, we determined that “to permit admissibility leaves little or no incentive for police to comply with Miranda's requirements․  In a case of notoriety with little independent evidence there may be irresistible pressures on law enforcement personnel to secure a confession.   If it is known that statements elicited in violation of Miranda may nevertheless be introduced at some point in the trial there would exist no sanction whatever against the use of overbearing interrogatory techniques, at least until the practices approached traditional levels of coercion.”  (Id. at p. 113, 127 Cal.Rptr. 360, 545 P.2d 272.)

Finally, we were persuaded of the unsoundness of the Harris-Nudd rule “by a significant rationale of the exclusionary rule itself.   In People v. Cahan (1955) 44 Cal.2d 434, 445 [282 P.2d 905, 50 A.L.R.2d 513], the landmark case in which this court adopted the rule for California two decades ago, we said, ‘the success of the lawless venture depends entirely on the court's lending its aid by allowing the evidence to be introduced․  Out of regard for its own dignity as an agency of justice and custodian of liberty the court should not have a hand in such “dirty business.” ’ ”  (Id. at p. 113, fn. omitted, 127 Cal.Rptr. 360, 545 P.2d 272.)

Thus, it was only after we carefully reexamined the Harris-Nudd rule that we enunciated, under the state constitutional privilege against self-incrimination, what has come to be known as the Disbrow rule and accordingly “overrule[d] Nudd and declare[d] that Harris is not persuasive authority in any state prosecution in California.”  (Id. at p. 113, 127 Cal.Rptr. 360, 545 P.2d 272.)

2

Our second major reason for declining to readopt the Harris rule and hence overrule Disbrow is our continuing conviction that the reasoning underlying the Harris rule is insufficient and altogether unpersuasive.   The Harris opinion, as is commonly recognized, has been “heavily criticized.”  (Comment, The Impeachment Exception to the Constitutional Exclusionary Rules (1973) 73 Colum.L.Rev. 1476, 1481;  accord, 3 LaFave, Search and Seizure (1978) § 11.6(a), p. 702 [hereinafter LaFave];  see, e.g., Dershowitz & Ely, supra, 80 Yale L.J. 1198;  Note, The Supreme Court, 1970 Term, Admissibility of Unlawfully Obtained Statement for Impeachment Purposes (1971) 85 Harv.L.Rev. 3, 44–53 [hereinafter admissibility ].)   For the reasons given below, we are compelled to agree with that criticism and to join in Professor LaFave's general assessment:  “The majority opinion in Harris is an incredibly bad one, fully deserving the harsh comments which have been made in reaction to it.   The result is a most unfortunate one․  Perhaps even more significant, however, is the fact that the opinion is an almost unbelievably bad piece of judicial draftsmanship.   The majority opinion in Harris not only misrepresented the record in the case before it, but also misstated the existing law․”  (3 LaFave, supra, § 11.6(a), pp. 702–703, fns. omitted.)

To begin with, as we strongly suggested in Disbrow, the Harris majority's treatment of precedent is unsound.  (Comment (1971) 39 Geo.Wash.L.Rev. 1241, 1245;  see, e.g., Dershowitz & Ely, supra, 80 Yale L.J. at pp. 1208–1218;  Admissibility, supra, 85 Harv.L.Rev. at pp. 45–53.)   The point is perhaps clearest insofar as Miranda is involved.

Before entering on its lengthy and precise analysis, the Miranda court summarized its conclusion in the following words:  “Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this:  the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.”  (384 U.S. at p. 444, 86 S.Ct. at p. 1612.)

Prior to Harris, both federal and state appellate courts had with virtual unanimity interpreted Miranda to bar the prosecution from using statements obtained in violation of its rule for the purpose of impeachment.  (United States v. Fox (2d Cir.1968) 403 F.2d 97;  United States v. Pinto (3d Cir.1968) 394 F.2d 470;  Breedlove v. Beto (5th Cir.1968) 404 F.2d 1019;  Groshart v. United States (9th Cir.1968) 392 F.2d 172;  Blair v. United States (D.C.Cir.1968) 401 F.2d 387;  Wheeler v. United States (10th Cir.1967) 382 F.2d 998;  People v. Barry (1965) 237 Cal.App.2d 154, 46 Cal.Rptr. 727, cert. den. (1967) 386 U.S. 1024, 87 S.Ct. 1382, 18 L.Ed.2d 464;  Velarde v. People (1970) 171 Colo. 261, 466 P.2d 919;  State v. Galasso (Fla.1968) 217 So.2d 326;  People v. Luna (1967) 37 Ill.2d 299, 226 N.E.2d 586;  Franklin v. State (1969) 6 Md.App. 572, 252 A.2d 487;  People v. Wilson (1969) 20 Mich.App. 410, 174 N.W.2d 79;  State v. Catrett (1970) 276 N.C. 86, 171 S.E.2d 398;  State v. Brewton (1967) 247 Or. 241, 422 P.2d 581, cert. den. 387 U.S. 943, 87 S.Ct. 2074, 18 L.Ed.2d 1328;  Commonwealth v. Padgett (1968) 428 Pa. 229, 237 A.2d 209;  Spann v. State (Tex.Cr.App.1969) 448 S.W.2d 128;  Cardwell v. Commonwealth (1968) 209 Va. 412, 164 S.E.2d 699;  Gaertner v. State (1967) 35 Wis.2d 159, 150 N.W.2d 370;  contra, State v. Kimbrough (1970) 109 N.J.Super. 57, 262 A.2d 232;  State v. Butler (1969) 19 Ohio St.2d 55, 249 N.E.2d 818;  State v. Grant (1969) 77 Wash.2d 47, 459 P.2d 639.)

In Harris, however, the majority summarily dismissed the Miranda holding in the first paragraph of its cursory two-page analysis:  “Some comments in the Miranda opinion can indeed be read as indicating a bar to use of an uncounseled statement for any purpose, but discussion of that issue was not at all necessary to the Court's holding and cannot be regarded as controlling.  Miranda barred the prosecution from making its case with statements of an accused made while in custody prior to having or effectively waiving counsel.   It does not follow from Miranda that evidence inadmissible against an accused in the prosecution's case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards.”  (401 U.S. at p. 224, 91 S.Ct. at p. 645.)

In the words of one commentator, “Although dismissing [this language] as dictum ․ the Court in Harris does not directly confront the reasoning of Miranda.”  (Admissibility, supra, 85 Harv.L.Rev. at pp. 46–47.)   Specifically, as Professor Dershowitz and Professor, now Dean, Ely explain in the leading scholarly treatment of Harris:  “This summary of Miranda is misleading in two respects.   First, by stating that ‘some’ comments ‘can ․ be read’ to preclude the Harris result, the [Court] suggests that that is but one of several possible readings.   However, a pervasive and unambiguous aspect of Miranda was its explicit rejection of distinctions based on the manner in which a statement is used by the Government or the degree to which it is helpful to it․  Miranda's repeated references to ‘exculpatory’ statements were thus intended to cover precisely the kind of statement at issue in Harris and the specific use to which it was there put.   Nor did these references pass unnoticed.   They were the object of explicit and uncomplimentary reference in each of the three dissents filed in Miranda.   Accordingly, Miranda not only ‘can’ be read to require reversal of Harris's conviction, it can be read no other way!

“Second, it is of course technically accurate to say that Miranda's discussion of impeachment was not necessary to the Court's holding, since the statements in Miranda had been used as part of the prosecution's case in chief.   But Miranda did not purport to be an opinion limited to its precise facts․  Miranda purported to ‘give concrete constitutional guidelines for law enforcement agencies and courts to follow.’․   Moreover, the opinion said that it was part of its ‘holding’ that an uncounseled ‘exculpatory’ statement could not be used by the prosecution.”  (Dershowitz & Ely, supra, 80 Yale L.J. at pp. 1209–1210, italics in original, fns. omitted.)

Not only is the Harris majority's treatment of precedent unsound, their policy arguments are unconvincing as well.   The first runs as follows:  “the benefits of [the impeachment] process should not be lost, in our view, because of the speculative possibility that impermissible police conduct will be encouraged thereby.   Assuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief.”  (401 U.S. at p. 225, 91 S.Ct. at p. 645.)

We believe that if the benefit that flows from the use of statements obtained in violation of Miranda is placed into one pan of the balance and the deterrent effect of a broad exclusionary rule is placed into the other, the latter clearly outweighs the former.   First, the use of illegally obtained statements is of little marginal benefit to the prosecution in cross-examining a criminal defendant.   From our review of the thousands of criminal matters that come before us each year, we are convinced that the arsenal of weapons the skillful prosecutor has at his disposal for use in cross-examination is more than sufficient for the task and is not significantly affected by the presence or absence of illegally obtained statements.

Moreover, the Harris rule does not carry sufficient deterrence.   In cases in which the police believe they can obtain the evidence they seek only by violating the law, the Harris rule practically invites unlawful conduct by allowing the prosecution to use the evidence for impeachment.   By contrast, a broad exclusionary rule deters such improper police conduct by denying the prosecution any benefit that might flow therefrom.

The harm threatened by the Harris rule has not escaped the notice of commentators.   One has asserted that “Harris permits law enforcement officials to obtain confessions or statements directly related to the issue of guilt by illegal means and hold such evidence as a warning to the accused not to take the stand and contradict his prior utterance.”  (Comment, supra, 39 Geo.Wash.L.Rev. at p. 1246.)   Why the police may act in this fashion is plain:  “it is widely acknowledged that a defendant—at least one without a criminal record—who takes the witness stand and tells his story has a considerably better chance of acquittal than one who stands mute.”   (Dershowitz & Ely, supra, 80 Yale L.J. at p. 1220, citing authorities.)

The latter authors also observe that “The Miranda situation is ․ tailor-made for a sequential ‘try it legally—if you fail, try it illegally’—approach.   That is, the police can attempt to obtain a statement admissible in the case in chief by giving the required warnings.   If, however, the suspect requests a lawyer, they can then (instead of honoring the request and thereby losing the statement) go on—given Harris—to try for an uncounselled statement to use for impeachment.”  (Dershowitz & Ely, supra, 80 Yale L.J. at p. 1220, fn. 90.)

Still another commentator explains, “Harris is likely to undercut substantially Miranda's prophylactic effect.   The deterrent effect of Miranda depends primarily on whether statements obtained without giving Miranda warnings are of value to the police or prosecution.   Before Harris, it was generally thought that an unwarned statement could not be used in any manner in a prosecution of the suspect.   After Harris, police disregard of Miranda, if it results in an incriminating statement by the suspect, will give the prosecution a considerable advantage.   If authorities can produce enough independently obtained evidence to get to the jury—not a difficult task given the reluctance of most judges to dismiss on motion for acquittal—the defendant who has made an unwarned statement to the police will be placed in a dilemma.   If he does not take the stand, he runs a substantial risk of being convicted;  the jury, suspicious of his failure to explain events that are presumably within his knowledge, may conclude that the defendant has something to hide and infer that he is guilty of the crime charged.   Yet if he does choose to testify in his own behalf, he risks impeachment by the unlawfully obtained and possibly unreliable statement.   In either case, once an incriminating statement is obtained, conviction may be likely.   By thus restoring the value of statements obtained without warning suspects of their rights, Harris may well encourage police to ignore Miranda.”   (Admissibility, supra, 85 Harv.L.Rev. at pp. 51–52, fns. omitted.)

Regrettably, the fear that Harris may encourage unlawful police conduct has been fulfilled.  “During the period [that Harris-] Nudd controlled, there appeared to be a marked increase in police interrogation after a defendant had invoked his right to silence.   Undoubtedly, the police recognized that such a practice could only be beneficial.   If the police ceased questioning the defendant, there would be no statement;  continuing the interrogation might lead to an admission which would hamper the suspect's ability to testify in his defense at trial.”  (Simons, California's Rule of Vicarious Exclusion:  Who May Challenge the Constable's Errors? (1979) 19 Santa Clara L.Rev. 319, 327, fn. omitted.)

The second policy argument relied on by the Harris majority is as follows:  “Every criminal defendant is privileged to testify in his own defense, or to refuse to do so.   But that privilege cannot be construed to include the right to commit perjury.”  (401 U.S. at p. 225, 91 S.Ct. at p. 645.)   But as Dershowitz and Ely have explained, “the entire argument is a straw man.   Of course a defendant has no ‘right to commit perjury.’   But this was hardly [Harris's] argument.   Neither does a defendant have the right to commit murder, and yet the Government may not prove that crime by means of an illegally obtained statement.   Nor, indeed, could it introduce such a statement as part of its case in chief in a perjury prosecution.   Whether it should be permitted to use it to prove perjury in the context of a trial for a different crime is the question, and it is not answered by denying that there is a right that no one asserted.  [¶] The real issue, never addressed by the Court, is where to strike the balance between the state's interest in challenging the defendant's credibility and the defendant's interest in excluding illegally secured evidence.”  (80 Yale L.J. at pp. 1222–1223.)   The balance, we believe, must be struck in favor of the defendant:  the statement at issue has, by definition, been obtained in violation of the defendant's Miranda rights;  if the prosecution is precluded from using such evidence for impeachment, it is not significantly disadvantaged in undertaking its cross-examination.

The Harris majority's final argument runs as follows:  “Had inconsistent statements been made by the accused to some third person, it could hardly be contended that the conflict could not be laid before the jury by way of cross-examination and impeachment.”  (401 U.S. at pp. 225–226, 91 S.Ct. at p. 646.)   The point is simply immaterial.   Of course “inconsistent statements ․ made by the accused to some third person ․ could ․ be laid before the jury by way of cross-examination and impeachment”—and indeed could also be laid before them in the prosecution's case in chief.   The reason for this is plain:  the Fifth Amendment does not apply to statements made to private persons.   The statements at issue here, however, were made to the police, and are thus within the scope of the privilege against self-incrimination.

For the foregoing reasons we decline to readopt Harris and overrule Disbrow.⁵

III

 The trial court, we have concluded, erred in ruling defendant's extrajudicial statements admissible for purposes of impeachment.   But because defendant did not testify, we cannot intelligently weigh the prejudicial effect of the error.   To allow such review the judgment must be reversed with directions to permit defendant to make an offer of proof as to what his testimony would have been had he taken the stand, and then to weigh prejudice under the test of People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243, by determining whether it is reasonably probable that the error affected the result.  (Cf. People v. Collins, supra, 42 Cal.3d at pp. 393–395, 228 Cal.Rptr. 899, 722 P.2d 173 [Castro error].)

The judgment of the Court of Appeal is reversed with directions to reverse the judgment of the trial court with directions to follow the procedure set forth herein.

I concur fully in Justice Mosk's well-crafted opinion which holds that article I, section 28, subdivision (d) of the California Constitution does not nullify the rule of People v. Disbrow (1976) 16 Cal.3d 101, 127 Cal.Rptr. 360, 545 P.2d 272.   I would go one step further and hold that Luce v. United States (1984) 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 does not apply in this context.¹

Luce holds that the denial of a motion to exclude evidence of a prior conviction offered for impeachment is not reviewable on appeal if the accused has failed to testify.  (See maj. opn., ante, at p. 348, fn. 2 of 233 Cal.Rptr., at p. 782, fn. 2 of 729 P.2d.)   The Attorney General's claim that the Luce procedure should be adopted to preclude appellate review of Disbrow error misses the point.

The Luce court was careful to limit its holding to the context of prior impeachment by the use of evidence of prior convictions.   Indeed, the majority distinguished prior cases, such as New Jersey v. Portash (1979) 440 U.S. 450, 99 S.Ct. 1292, 59 L.Ed.2d 501 in which the court allowed nontestifying defendants to appeal “preliminary ruling[s] on [ ] question[s] ․ reaching constitutional dimensions.”²  (See Luce, supra, 469 U.S. at pp. 42–43, 105 S.Ct. at pp. 463–464.)   In his concurrence in Luce, Justice Brennan explained this distinction.   He noted that where “the determinative [appellate] question turns on legal and not factual considerations, a requirement that the defendant actually testify at trial to preserve the admissibility issue for appeal might not necessarily be appropriate.   The appellate court's need to frame the question in a concrete factual context [is] less acute, and the calculus of interests correspondingly different․” (luce, supra, 469 U.s. at p. 44, 105 S.ct. at p. 464 (conc. opn. oF brennan, J.).)

State and federal courts have continued to permit nontestifying defendants to appeal trial court rulings in which statements taken in violation of the Constitution were admitted for the purpose of impeachment.   For example, in United States v. Jenkins (9th Cir.1986) 785 F.2d 1387, 1394, footnote 6, the court refused to read Luce to bar a nontestifying defendant's appellate challenge of an in limine ruling holding grand jury testimony admissible for impeachment.  (See also United States v. Sebetich (3d Cir.1985) 776 F.2d 412, 428;  United States v. McKinney (5th Cir.1985) 758 F.2d 1036, 1048.)

Last year, the Colorado Supreme Court ruled that Luce was “neither compelling nor applicable” to cases which raise “issue[s] of constitutional dimension․”  (Apodaca v. People (Colo.1985) 712 P.2d 467, 473–474, fn. 9.)   Significantly, the only issue on appeal in Apodaca was whether a prior conviction was constitutionally obtained ³ —a question which did not turn on the accused's potential testimony at trial.   It is for this reason that the Colorado high court wisely concluded that there was little reason to require an accused to testify to preserve the issue for appeal.⁴

As these cases illustrate, there is no legal support for extending Luce to deny a nontestifying defendant the opportunity to appeal a trial court ruling which rests solely on issues of law.

There is also no practical need for such an unprecedented holding.   A comparison of Disbrow-type cases with “Collins”-type cases ⁵ demonstrates that many of the concerns which motivated adoption of the Luce procedure are not present here.

Collins adopted the Luce procedure in part because the trial court should hear an accused's testimony before balancing the prejudicial versus probative impact of admitting a prior felony conviction.   An appellate court similarly needs this testimony to accurately determine whether the trial court properly exercised its discretion in ruling that the balance tipped in favor of probative value.  (Collins, supra, 42 Cal.3d at p. 384, 228 Cal.Rptr. 899, 722 P.2d 173.)

These concerns are not relevant here.   Where an accused contests the admissibility of un-Mirandized extrajudicial statements, the trial court's decision does not depend on any “balancing” analysis.   The admission of such statements either violates Disbrow or it does not.   No testimony by the accused in defense of the charge can bear on that determination.   Unlike the situation in Collins, a defendant's failure to testify in no way hinders the trial court's ability to make an informed Disbrow ruling.   Further, the appellate court has as complete a record as necessary to review the correctness of the lower court's decision.

The Collins court also reasoned that, without the accused's testimony, the possible “harm” arising from an erroneous in limine ruling admitting prior convictions would be “wholly speculative.”  (42 Cal.3d at p. 384, 228 Cal.Rptr. 899, 722 P.2d 173.)   As the Collins majority noted, the trial court could change its discretionary ruling as the evidence unfolds, the prosecution's case could be sufficiently strong to eliminate the need to impeach the defendant's testimony, or the prosecution might have better ways of impeaching a defendant so it may not elect to use “questionable priors.”   (Ibid.)

Few of these concerns are present here.   Since the propriety of the trial court's Disbrow ruling is purely a legal question, nothing revealed at trial could logically prompt a judge to change his or her ruling “as the evidence unfolds.”  (Collins, supra, 42 Cal.3d at p. 384, 228 Cal.Rptr. 899, 722 P.2d 173.)   Furthermore, since extrajudicial statements made by the accused are an extremely powerful impeachment tool, it is highly unlikely that a prosecutor would not use an un-Mirandized inconsistent statement in that manner.

After today's ruling, claims of “Disbrow error” will probably be rare.   Such error will occur from now on only in the unlikely event that a trial court (1) fails to apply today's ruling and, instead, adheres to the contrary federal law (see Harris v. New York (1971) 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1) or (2) finds that the accused's extrajudicial statements were not obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and the prosecution informs the accused in advance the statements will be used only for impeachment and not in the case-in-chief.

A far more likely scenario will be the following.   After a trial court rules that the accused's extrajudicial statements were not obtained in violation of Miranda, the statements will in fact be used for all purposes, not just for impeachment.   In such cases, the claim on appeal will not be Disbrow error, but Miranda error, and nothing in Luce would preclude appellate review.

Furthermore, as a practical matter, once Miranda error has occurred, there will be little incentive for an accused to withhold testimony, since the damaging statements will be admitted whether he or she testifies.

In those few cases where “pure” Disbrow error does occur, the “price” imposed on an accused by requiring him or her to testify to preserve the claim on appeal would be substantial, rather than minimal as it was in Collins.   (See 42 Cal.3d at pp. 386–387, 228 Cal.Rptr. 899, 722 P.2d 173.)   An important part of Collins's justification for adopting Luce was the fact that an accused has no per se “right” to be free of impeachment by priors (id., at p. 387, 228 Cal.Rptr. 899, 722 P.2d 173).   In any event, the chances of successfully challenging the trial court's discretionary balancing of prejudicial versus probative value are minimal in light of the great deference appellate courts give to such trial court determinations (ibid ).   Here, an accused does have a per se “right” to be free of impeachment by un-Mirandized extrajudicial statements.   The chances of success on appeal are far greater than in the Collins situation, since no deference is given trial courts on pure questions of law.   Loss of that right for an accused who elects not to testify would, therefore, be substantial.

The only argument left in support of applying the Luce procedure is that it would facilitate appellate determinations;  i.e., that the rule would enable an appellate court, in these very few cases of “pure” Disbrow error, to determine whether such error prejudiced the accused's right to a fair trial under the state Constitution.  (See art. VI, § 13;  People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243.)

While the state has some latitude in prescribing the procedure by which individuals may preserve constitutional claims for appeal, common sense and respect for our state charter dictate that the optimum procedure ought to be one which serves legitimate state interests without impairing the interests safeguarded by the individual's underlying constitutional claim.   (Cf. People v. Collins, supra, 42 Cal.3d at p. 397, fn. 3, 228 Cal.Rptr. 899, 722 P.2d 713 (conc. opn. of Grodin, J.);   Westen & Mandell, To Talk, To Balk or To Lie:  The Emerging Fifth Amendment Doctrine of the “Preferred Response” (1982) 19 Amer.Crim.L.Rev. 521, 526–527.)

The Luce rule falls far short of “an optimum procedure” in the Disbrow context.   Requiring an accused to testify and to submit to improper impeachment would clearly impair the constitutional interests safeguarded by Disbrow.   Even though today's opinion prohibits any use whatsoever of statements elicited in violation of Miranda,⁶ the state could “use” such statements as a tool to keep an accused from testifying.   Under the Luce procedure, a prosecutor, armed with an erroneous Disbrow ruling, could force the accused to decide whether (1) to testify and face impeachment in order to preserve the error for appeal, or (2) to remain silent and suffer the consequences of unanswered accusations.

By exercising the first option, an accused's decision to testify solely to preserve the issue for appeal might be tantamount to a concession of guilt.   In order to “preserve” a Disbrow claim, the accused might have to pay the heavy price of conviction and incarceration pending appeal.

If the Luce procedure were applied, an accused might well and wisely conclude that in the face of an erroneous Disbrow ruling, he or she would fare better by remaining silent and attempting to raise a reasonable doubt—through cross-examination of prosecution witnesses or the presentation of other affirmative defense evidence.   Yet, to exercise that option would be to forfeit all hope of vindicating the Disbrow error on appeal should a conviction result.

It is apparent, then, that the Luce procedure would not both serve legitimate state interests and safeguard an individual's underlying constitutional claim.   Another procedure could achieve that result.   An in camera presentation of the accused's testimony that he would have given had the prosecution not offered the extrajudicial statement for impeachment purposes could be required.   This offer of proof could then be sealed and, in the event of conviction, be made available to the appellate court to facilitate its evaluation of prejudice if it were held that the trial court had erred under Disbrow.  (See People v. Collins, supra, 42 Cal.3d at p. 394, 228 Cal.Rptr. 289, 722 P.2d 713.)   Such a procedure has been adopted as an interim procedure in Collins (see id., at pp. 393–395) and in this case (see maj. opn., ante, at pp. 358–359 of 233 Cal.Rptr., at pp. 792–793 of 729 P.2d).

The in camera procedure would satisfy the needs of the appellate court and at the same time protect the interests safeguarded by the Disbrow rule.   Since both of these goals can be accommodated, there is really no reason to adopt the harsh, one-sided Luce rule.

I respectfully dissent.

The majority holds that the rule of People v. Disbrow (1976) 16 Cal.3d 101, 127 Cal.Rptr. 360, 545 P.2d 272, was unaffected by the passage of Proposition 8, and the new “Truth-in-Evidence” provision (Cal. Const., art. I. § 28, subd. (d)) adopted by that measure.   Moreover, the majority concludes that Disbrow remains “good law” and should not be modified or disapproved.   I disagree on both grounds.¹  Additionally, although the majority opinion leaves open the question whether Luce procedure should apply in future cases of this kind (see Luce v. United States, supra, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443), the concurring opinion of Chief Justice Bird proposes that we reject Luce in this context.   As will appear, I disagree with that position.

1. Disbrow Is Unsound Law

First, for the reasons stated in Justice Richardson's dissent in Disbrow (16 Cal.3d at p. 117 et seq.), I believe that case was incorrectly decided.   A contrary rule had been expressed by the United States Supreme Court under the federal Constitution's self-incrimination clause (see Harris v. New York (1971) 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1), and no compelling policy reasons or circumstances peculiar to California required that we rely upon the “independent state ground” of the substantially identical state constitutional provision in order to avoid applying Harris.

As the Disbrow dissent explained:  “In the matter before us defendant is entitled to face a prosecution case against him stripped of any reference whatsoever to evidence obtained in violation of Miranda.   The exclusionary rule mandates this result and I fully concur both in its propriety and in its effect.   Must we in our search for truth, however, go the second mile and afford a defendant during his trial, additionally, with an impenetrable sanctuary, unavailable to all other witnesses, to which he may retreat enfolded with complete and continuing immunity from any disclosure that the evidence in question may prove him a liar?   What constitutional or policy consideration requires imposition of such a judicial artifice?   I suggest, none.   For it is at this point that the policy of procedural protection for defendant and the policy of full factual disclosure to the trier of fact must fall into a balance.   Lines must be drawn, and conflicting factors carefully weighed, in affording a defendant appropriate procedural protections while at the same time assuring to the trier of fact, within limits, the fullest possible access to relevant material evidence.”  (16 Cal.3d at pp. 122–123, 127 Cal.Rptr. 360, 545 P.2d 272.)

In short, Justice Richardson decried the adoption of a rule “which mandates concealment of perjured testimony from those charged under oath with the responsibility of discovering the truth․”  (Id. at p. 127, 127 Cal.Rptr. 360, 545 P.2d 272.)   I fully agree, and I would join three other members of this court in reconsidering and ultimately disapproving Disbrow.

2. Disbrow Has Been Abrogated

With the passage of Proposition 8 in 1982, Disbrow was effectively abrogated by the people, and the present majority's refusal to recognize that fact is very disquieting.   In the pages which follow, I adopt the cogent and convincing analysis of the Court of Appeal in this case, which refutes the majority's position regarding Proposition 8.   But before doing so, I would first make a few preliminary observations about this issue.

The “Truth-in-Evidence” provision of our Constitution was intended by the California voters to abrogate judicial decisions which previously had required the exclusion of relevant evidence solely to deter police misconduct in violation of a suspect's constitutional rights.   As we recently observed, “The people have apparently decided that the exclusion of evidence is not an acceptable means of implementing those rights, except as required by the Constitution of the United States.”  (In re Lance W. (1985) 37 Cal.3d 873, 887, 210 Cal.Rptr. 631, 694 P.2d 744, italics added.)   Given the primary aim of the voters in adopting this provision of Proposition 8, namely, to dispense with evidentiary exclusionary rules derived solely from the state Constitution, how likely is it that the California voters intended to preserve, in the form of a “statutory privilege,” a judicially created exclusionary rule expressly rejected by the United States Supreme Court under the federal Constitution?

The majority finds that Disbrow was unaffected by Proposition 8.   To the contrary, it seems very clear to me that Proposition 8 was itself crafted for the very purpose of abrogating Disbrow and similar cases which had elevated the procedural rights of the criminal defendant far above the level required by the federal Constitution, as interpreted by the United States Supreme Court.  (See Ballot Pamp. arguments in favor of Prop. 8 as presented to the voters, Primary Elec. (June 8, 1982) p. 34.)

With due respect, I fear the majority acts in total disregard of the realities underlying the passage of Proposition 8 when it purports to discern some “statutory privilege” which insulates and protects Disbrow.   That case neither concerned nor created any mere “statutory privilege.”   As Disbrow itself unambiguously declares, “We therefore hold that the privilege against self-incrimination of article I, section 15, of the California Constitution precludes use by the prosecution of any extrajudicial ․ statement by the defendant in violation of ․ Miranda․”  (16 Cal.3d at p. 113, 127 Cal.Rptr. 360, 545 P.2d 272.)   It was precisely this kind of reliance upon the state Constitution to avoid applicable decisions of the United States Supreme Court that Proposition 8 was intended to preclude.   The majority thus perpetuates its unfortunate trend of thwarting the obvious intent of the framers of, and voters for, Proposition 8.  (See People v. Fritz (1985) 40 Cal.3d 227, 233, 219 Cal.Rptr. 460, 707 P.2d 833 [dis. opn. by Lucas, J.];   People v. Castro (1985) 38 Cal.3d 301, 319 [dis. opn. by Grodin, J.], 323 [dis. opn. by Lucas, J.], 211 Cal.Rptr. 719, 696 P.2d 111.)

I adopt the following portion of Justice Abbe's opinion for the Court of Appeal in this case,^* which opinion correctly treats the issue:

The trial court held the enactment of article I, section 28, subdivision (d) of the California Constitution [] repealed the California exclusionary rule first set forth in [] [Disbrow].

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 [supra] 401 U.S. 222, 91 S.Ct. 643 (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).  [I] find it did not.

Subdivision (d) [] 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 matter 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 Lance W. [supra] 37 Cal.3d 873, 886–887, 210 Cal.Rptr. 631, 694 P.2d 744, [we] held:  “What [the pertinent portion of] Proposition 8 does is to eliminate a judicially created remedy for violations of the search and seizure provisions of the federal or state Constitutions, through the exclusion of evidence so obtained, except to the extent that exclusion remains federally compelled.”  [We] 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 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, 644–645, 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 et seq., 127 Cal.Rptr. 360, 545 P.2d 272, 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, [our] interpretation of that amendment [] 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.

[ ] [Contrary to the majority's analysis], 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 Lance W., supra, 37 Cal.3d 873, 886–887.)   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 majority also relies on] Ramona R. v. Superior Court (1985) 37 Cal.3d 802, 210 Cal.Rptr. 204, 693 P.2d 789.   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, subdivision (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.   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 prehearing 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, 1296–1297, 59 L.Ed.2d 501.)   Testimony may be constitutionally compelled by statute only if the person testifying is protected to the same extent as if [he] 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.  (Ibid.)  Neither Ramona R. nor Portash purports 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.   [] [End of Court of Appeal opinion.]

For all of the foregoing reasons, I would hold that Disbrow no longer should be followed.

3. Luce v. United States

Assuming that Disbrow remains good law, we should adopt the rule of Luce v. United States, supra, 469 U.S. 38, 105 S.Ct. 460, which holds that the denial of a motion to exclude a prior conviction offered for impeachment is not reviewable on appeal if the defendant fails to testify.   The Attorney General urges us to apply a similar rule when, as here, the defendant moves to exclude extrajudicial statements obtained during custodial interrogation allegedly in violation of Miranda.

In People v. Collins (1986) 42 Cal.3d 378, 228 Cal.Rptr. 899, 722 P.2d 173, we “adopt[ed] the Luce rule as a judicially declared rule of criminal procedure in California” for three reasons.  (Id. at p. 385, 228 Cal.Rptr. 899, 722 P.2d 173.)   First and most important, “we [found] the reasons given by the Supreme Court ․ to be sound and equally applicable to California practice” (ibid.)—viz., (1) “ ‘A reviewing court is handicapped in any effort to rule on subtle evidentiary questions outside a factual context’ ” (id. at p. 384, 228 Cal.Rptr. 899, 722 P.2d 173);  (2) “ ‘Any possible harm’ from ․ an [erroneous] in limine ruling is ‘wholly speculative’ ” (ibid.);   and (3) “when the trial court errs in ruling the conviction admissible the reviewing court cannot intelligently weigh the prejudicial effect of that error if the defendant did not testify” (ibid.).   Second, “we [were] ․ cognizant of the fact that the Luce decision was unanimous․”  (Id. at p. 385, 228 Cal.Rptr. 899, 722 P.2d 173.)   Finally, we were also aware that “the other states that [had] addressed the matter [had] been virtually unanimous in adopting the Luce rule as their own.”  (Ibid.)

Although not all the concerns present in the Luce-Collins context which support the rule are present here, a major concern is:  in the absence of such a rule a reviewing court would be unable to determine whether the error committed was prejudicial.   On this point both Chief Justice Burger's opinion for the court in Luce and Justice Brennan's concurrence are expressly at one.   The Chief Justice wrote:  “Were in limine rulings [on impeachment] ․ reviewable on appeal, almost any error would result in the windfall of automatic reversal;  the appellate court could not logically term ‘harmless' an error that presumptively kept the defendant from testifying.   Requiring that a defendant testify in order to preserve [his] ․ claims, will enable the reviewing court to determine the impact any erroneous impeachment may have had in light of the record as a whole;  it will also tend to discourage making such motions solely to ‘plant’ reversible error in the event of conviction.”  (469 U.S. at p. 42, 105 S.Ct. at p. 464.)   Justice Brennan wrote:  “if the defendant declines to testify, the reviewing court is handicapped in making the required harmless error determination should the ․ in limine ruling prove to have been incorrect.”  (Id. at p. 43, 105 S.Ct. at p. 464 (conc. opn. of Brennan, J.).)

At least in California, such a concern cannot properly be characterized as resting on interests of judicial convenience, but must be recognized as being rooted in the obligations imposed on the courts by our Constitution itself:  “No judgment shall be set aside, or new trial granted, in any cause, ․ 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.”  (Cal.Const., art. VI, § 13.)   Thus, California reviewing courts are generally prohibited from reversing a judgment unless prejudice appears.

The Chief Justice's opposition to the Luce rule is based primarily upon the premise that it unconstitutionally or unfairly requires a person charged with crime to make a difficult judgment as to which course to follow—to exercise his right to remain silent or to exercise his right to appeal.   But “The criminal process, like the rest of the legal system, is replete with situations requiring ‘the making of difficult judgments' as to which course to follow.   [Citation.]  Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose.”  (McGautha v. California (1971) 402 U.S. 183, 213, 91 S.Ct. 1454, 1470, 28 L.Ed.2d 711.)

I am not convinced that the Constitution forbids requiring a criminal defendant to make the choice that the Luce rule demands of him.   The Constitution, it has long been held, is not offended by holding that a defendant who chooses to exercise his right to testify thereby surrenders his privilege against self-incrimination as to cross-examination on matters reasonably related to the subject matter of his direct examination.  (E.g., McGautha v. California, supra, 402 U.S. at p. 215, 91 S.Ct. at p. 1471.)   “It is not thought overly harsh in such situations to require that the determination whether to waive the privilege take into account the matters which may be brought out on cross-examination.”  (Ibid.)  Similarly, the Constitution is not offended by holding that a defendant who chooses to exercise his right to remain silent thereby surrenders his right to appeal—a right that is not even of constitutional dimensions (People v. Chi Ko Wong (1976) 18 Cal.3d 698, 709, and cases cited, 135 Cal.Rptr. 392, 557 P.2d 976).   Thus, it is not overly harsh to require that the defendant, in deciding whether to remain silent, must take into account the likelihood that an attack on the ruling—if he is convicted and chooses to appeal—will spell the difference between affirmance and reversal.  (See Westen & Mandell, To Talk, To Balk or To Lie:  The Emerging Fifth Amendment Doctrine of the “Preferred Response” (1982) 19 Amer.Crim.L.Rev. 521, 550–552.)

I would affirm the judgment of the Court of Appeal.

FOOTNOTES

1.   In light of the evidence presented by the prosecution, several of defendant's extrajudicial statements appeared more inculpatory than they had prior to trial.   Such statements include:  defendant had gone to Santa Barbara with Slayton, and had used Easy Ad to sell various items and, notably, to advertise for roommates.

2.   At the threshold, the Attorney General directs our attention to Luce v. United States (1984) 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443, which holds that the denial of a motion to exclude a prior conviction offered for impeachment is not reviewable on appeal if the defendant fails to testify, and urges us to adopt a similar rule to apply when, as here, the defendant moves to exclude extrajudicial statements obtained during custodial interrogation allegedly in violation of Miranda.   Because such a rule could not properly be applied to the case at bar and hence could not affect our decision, we decline to adopt it here.Adapting language we recently used in People v. Collins (1986) 42 Cal.3d 378, 388, 228 Cal.Rptr. 899, 722 P.2d 173, we observe that “Under our prior decisions on this question a defendant was not required to testify in order to preserve for appeal a claim of improper impeachment ․;  indeed, he was not even asked to make an offer of proof [citation]․  Thus [a] decision to adopt the ․ requirement [to testify would] establish[ ] a new rule of law when there was a previous rule in this state to the contrary;  in such circumstances we [would] have the option of giving it prospective effect on policy grounds.  [Citation.]  [¶]  Considerations of fundamental fairness [would] compel us to exercise that option.   To deny defendants their right to appeal on this issue because they failed to testify—after we repeatedly told them they need not do so—would be to change the rules after the contest was over.   When the contest is as serious as a criminal prosecution, such unfairness would be intolerable.”   Because we could not apply the rule here, we decline to reach the issue at this time.

3.   Although the Attorney General and his amici are far from clear on the point, they may also mean to argue that in spite of its plain language section 940 is narrower than the constitutional guarantee and, specifically, that it applies only on the witness stand.   If such is their argument, it is without merit for the reasons stated in People v. Barrios, supra, 166 Cal.App.3d at pages 743–745, 212 Cal.Rptr. 644.

4.   “Of course, we do not presume to interpret ․ federal decisions [discussed in the text that follows] in a manner contrary to that established by the United States Supreme Court as a matter of federal law.   We discuss these cases only in order to determine whether under state law they are persuasive authority for interpreting California cases ․ to furnish justification for an impeachment exception to the self-incrimination clause of article I, section 15, of the California Constitution.”  (People v. Disbrow, supra, 16 Cal.3d at p. 110, fn. 9, 127 Cal.Rptr. 360, 545 P.2d 272.)

5.   In rehearsing the dissenting opinion in Disbrow, the dissent here argues in substance that the Harris rule should be followed absent “compelling policy reasons or circumstances peculiar to California․”  If the United States Supreme Court so required, we would of course comply.   But as Chief Justice, then Justice, Rehnquist made clear in his opinion for a unanimous court in PruneYard Shopping Center v. Robins (1980) 447 U.S. 74, 81, 100 S.Ct. 2035, 2040–2041, 64 L.Ed.2d 741, under the doctrine of federalism the state has a “sovereign right to adopt ․ individual liberties more expansive than those conferred by the Federal Constitution.”The Attorney General argues that if we retain the Disbrow rule we should limit its applicability to inculpatory extrajudicial statements obtained during custodial interrogation in violation of Miranda.   Such a limitation, however, is without a principled basis and in fact is contrary to the reasoning presented by the Miranda court at pages 476–477 of 384 U.S., at pages 1628–1629 of 86 S.Ct.   In any event, the limitation the Attorney General urges on us would be of little use to him here:  defendant's statements are largely inculpatory.  (See fn. 1, ante.)

1.   The majority decline to resolve the Luce issue.   They reason that applying such a procedure here would be unfair since appellant was never warned that he could preserve the Disbrow issue only by testifying below.  (Maj. opn., ante, at p. 347, fn. 2 of 233 Cal.Rptr., at p. 781, fn. 2 of 729 P.2d.)   I believe, however, that it is important to explain why application of such a procedure would be ill-advised in all Disbrow cases.

2.   Portash involved an appeal by a nontestifying defendant from a pretrial ruling allowing the use of his immunized grand jury testimony for impeachment at trial.   The court permitted review of that ruling and concluded that the use of the statements violated the privilege against self-incrimination.

3.   In Apodaca, the accused sought the pretrial suppression of a prior military court conviction on the ground that it had been unconstitutionally obtained.   The trial court stated it would not rule on the motion until such time as the accused took the stand and the prosecutor moved to admit the prior for impeachment.   Rather than risk an adverse ruling, the accused elected not to testify.The Colorado Supreme Court held that it was error for the trial court to refuse a pretrial motion on the admissibility of the prior conviction.   (Id., at p. 473.)   The court reasoned that “[a] timely judicial ruling on a defendant's motion to suppress prior conviction evidence for the purpose of impeachment serves the vital function of providing the defendant with the meaningful opportunity to make the type of informed decision contemplated by the fundamental nature of the right to testify in one's defense.”  (Ibid.)

4.   In United States v. Weichert (2d Cir.1986) 783 F.2d 23, the court concluded that an accused who had not testified was precluded from appealing a trial court decision (under Fed. Rules Evid., rule 608(b)) to admit evidence of his 12–year-old disbarment.  Weichert reasoned that Luce applied because rules 403 and 608(b) of the Federal Rules of Evidence, like rule 609(a) (the rule at issue in Luce), require the trial judge to weigh the prejudicial versus the probative effect of admitting the challenged evidence—and the accused's testimony is an important and necessary part of this calculus.  (783 F.2d at p. 25.)   However, Weichert acknowledged that “a defendant who did not testify might possess standing for an appellate challenge where the trial court's decision to admit rested solely on the law.”  (Weichert, supra, 783 F.2d at p. 25, citing Luce, supra, 469 U.S. at p. 44, 105 S.Ct. at p. 464 (conc. opn. of Brennan, J.).)Weichert concluded that “[w]hether the [Supreme] Court will ultimately accord a nontestifying defendant standing to challenge in limine impeachment rulings resting solely on issues of law remains to be determined.”  (Weichert, supra, 783 F.2d at p. 25, fn. 2.)

5.   People v. Collins (1986) 42 Cal.3d 378, 228 Cal.Rptr. 899, 722 P.2d 173.

6.   Indeed, the Disbrow rule is derived from Miranda itself:  “ ‘[A] pervasive and unambiguous aspect of Miranda was its explicit rejection of distinctions based on the manner in which a statement is used by the Government․’ ”  (Maj. opn., ante, at p. 356 of 233 Cal.Rptr., at p. 790 of 729 P.2d, emphasis added.)  “ ‘Moreover, [Miranda] said that it was part of its “holding” that an uncounseled “exculpatory” statement could not be used by the prosecution.’ ”  (Maj. opn., ante, at p. 356 of 233 Cal.Rptr., at p. 790 of 729 P.2d, first emphasis in original.)

1.   I do concur with the majority to the extent it adopts the rule of Luce v. United States (1984) 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443, for determining the reviewability of pretrial rulings regarding the admissibility of impeachment evidence.

FOOTNOTE.   Brackets together, in this manner [ ], are used to indicate deletions from the opinion of the Court of Appeal;  brackets enclosing material (other than the editor's parallel citations) are, unless otherwise indicated, used to denote insertions or additions.  (Estate of McDill (1975) 14 Cal.3d 831, 834 [122 Cal.Rptr. 754, 537 P.2d 874].)

MOSK, Justice.

BIRD, C.J., and BROUSSARD, GRODIN and REYNOSO, JJ., concur.