People v. Markham

Page 262

224 Cal.Rptr. 262

Previously published at 198 Cal.App.3d 249

198 Cal.App.3d 249

The PEOPLE, Plaintiff and Respondent, v. Jerome Joseph MARKHAM, Defendant and Appellant.

Crim. B008283.

Court of Appeal, Second District, Division 6, California.

March 20, 1986.

As Modified April 17, 1986.

Review Granted June 26, 1986.

Kenneth J. Sargoy, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Marc E. Turchin and William T. Harter, Deputy Attys. Gen., for plaintiff and respondent.

STATEMENT OF FACTS AND ISSUE ON APPEAL

HINTZ, Associate Justice. ^*

Jerome Joseph Markham appeals from the judgment of conviction at a court trial held following the denial of his motion pursuant to section 995 of the Penal Code to dismiss the information charging him with robbery and burglary. Markham asserts that his conviction should be reversed because the trial court erred in admitting evidence of his admissions. Markham objected at the time that there was insufficient proof beyond a reasonable doubt that he had voluntarily waived his right to remain silent. The trial court overruled the objection on the ground that Proposition 8 mandated the use of the federal standard of proof by a preponderance of the evidence for determining the voluntariness of waivers; that the prosecutor had met that burden; but that if the state standard of proof beyond reasonable doubt was applicable, the prosecutor had not met that burden. The admissions were received and were, by our review of the record, important evidence resulting in the conviction.

We are thus confronted with the issue whether the standard of proof of voluntariness of waivers is proof beyond a reasonable doubt (People v. Jimenez (1978) 21 Cal.3d 595, 606, 147 Cal.Rptr. 172, 580 P.2d 672) or proof by a preponderance of the evidence (Lego v. Twomey (1972) 404 U.S. 477, 489, 92 S.Ct. 619, 626, 30 L.Ed.2d 618). The answer depends on the applicability of article I, section 28, subdivision (d) of the California Constitution, passed by the ballot initiative popularly known as Proposition 8, and referred to on this issue as the "truth in evidence law." ¹

ARGUMENTS ON APPEAL

Appellant claims that the state standard survived because the privilege against self-incrimination falls within the statutory privilege of Evidence Code section 940 ² and is therefore an exception to the "truth in evidence law." He relies on People v. Jacobs (1984) 158 Cal.App.3d 740, 204 Cal.Rptr. 849, and Ramona R. v. Superior Court (1985) 37 Cal.3d 802, 210 Cal.Rptr. 204, 693 P.2d 789 (modified 38 Cal.3d 453a), to support his position. To those cases we would add People v. Navarez (1985) 169 Cal.App.3d 936, 215 Cal.Rptr. 519, People v. Barrios (1985) 166 Cal.App.3d 732, 212 Cal.Rptr. 644; and People v. Clark (1985) 171 Cal.App.3d 889, 217 Cal.Rptr. 819, as providing additional support.

Respondent contends that Evidence Code section 940 ³ establishes no more than a testimonial privilege, citing the comments of the law revision commission at the time section 940 was proposed. ⁴ Respondent distinguishes Ramona R. factually, without citing the cases from the district courts of appeal.

SUMMARY OF CALIFORNIA CASES

In Ramona R. v. Superior Court, supra, 37 Cal.3d 802, 210 Cal.Rptr. 204, 693 P.2d 789, the juvenile defendant had been charged with murder. A hearing was held on the issue whether she was unfit for juvenile court proceedings. Because of the nature of the charge against her, she was presumed to be unfit for juvenile court treatment, and she bore the burden of proof to the contrary. She did not testify because there was no agreement that her testimony could not be used against her at a later trial. She was declared not to be a fit subject for juvenile court treatment. After murder charges were filed against her in superior court, she sought a writ of mandate to compel vacation of the order of unfitness. Her grounds were that the juvenile court refused to grant her immunity from use at trial of statements she made to her probation officer or of testimony she might have given at the fitness hearing.

The Supreme Court granted her writ, holding that section 940 allowed the continued use of state definitions of the scope of the privilege against self-incrimination; that "use immunities" were included in the scope of the privilege; that federal law was unsettled on the issue; that preexisting state law was still binding; and that a minor had a "use immunity" relating to testimony given at a fitness hearing.

In People v. Weaver (1985) 39 Cal.3d 654, 217 Cal.Rptr. 245, 703 P.2d 1139, the court held that a defendant's testimony given at pretrial hearings for revocation of parole or probation was exempt from the "truth in evidence law." Ramona R. was affirmed so far as it held that use immunity survived the "truth in evidence law," but reservations were expressed about the "analysis and ramifications ..." of that decision. (People v. Weaver, supra, 39 Cal.3d at p. 659, fn. 2, 217 Cal.Rptr. 245, 703 P.2d 1139.)

In People v. Jacobs, supra, 158 Cal.App.3d 740, 204 Cal.Rptr. 849, the defendant was questioned during his trial testimony about his silence in the face of questioning after his arrest. The court noted the federal rule that post-arrest silence could be used for impeachment unless warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, were given before questioning. (See Fletcher v. Weir (1982) 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490.) After summarizing California case law, the court concluded that the California rule was that post-arrest silence could not be used, whether or not Miranda warnings were given. The court further stated, in dictum, that a defendant's right under the California Constitution is unaltered by the "truth in evidence law" because the privilege against self-incrimination is a statutory privilege under section 940, and is exempt.

In People v. Barrios, supra, 166 Cal.App.3d 732, 212 Cal.Rptr. 644, defendant was interrogated without benefit of advice of his Miranda rights. He made statements which were later admitted to impeach his trial testimony. The trial court relied on the "truth in evidence law" and the federal rule in Harris v. New York (1971) 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, to allow use of the statements. The appellate court held that People v. Disbrow (1976) 16 Cal.3d 101, 127 Cal.Rptr. 360, 545 P.2d 272, still controlled the decision because the privilege against self-incrimination is a statutory privilege under section 940 and is exempt from the "truth in evidence law." The court relied on Ramona R. and its own decision in Jacobs, ruling that because the statute contemplates that courts will determine the scope of the privilege, and the statute is exempt, the California court decisions determining the scope of the privilege are controlling.

In People v. Clark, supra, 171 Cal.App.3d 889, 217 Cal.Rptr. 819, the issue was the same as in Barrios, as were the analysis and the holding. The court interpreted Ramona R. as wholly exempting self-incrimination issues from the "truth in evidence law." The dissenting justice asserted his belief that the intent of the voters was to curtail any restrictions on the admissibility of evidence not mandated by federal constitutional standards.

In People v. Navarez, supra, 169 Cal.App.3d 936, 215 Cal.Rptr. 519, the defendant was advised of his Miranda rights and refused to waive them. Later he was readvised of his rights; he waived them; and he confessed. The court held that his confession was inadmissible based on People v. Fioritto (1968) 68 Cal.2d 714, 68 Cal.Rptr. 817, 441 P.2d 625; and People v. Pettingill (1978) 21 Cal.3d 231, 145 Cal.Rptr. 861, 578 P.2d 108, while recognizing that the federal rule articulated in Michigan v. Mosley (1975) 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313, would have permitted the admission of the confession. The court held that the "truth in evidence law" was inapplicable, citing Ramona R. and Jacobs for the proposition that the right against self-incrimination is an exempted privilege.

We do not read Ramona R. as other courts do. We do not read Ramona R. as declaring that all issues relating to the right against self-incrimination are exempt from the "truth in evidence law," based on the existence of a statutory privilege codifying some of the principles underlying this fundamental constitutional right. Ramona R. deals solely with the limited issue of use immunity as it affected a defendant's decision whether to testify. That is an issue covered by section 940 to which preexisting state law may be applied. We disagree with other interpretations of Ramona R. that would make all self-incrimination issues exempt from the mandates of the "truth in evidence law."

HOLDINGS

We hold generally that the provisions of article I, section 28, subdivision (d) of the California Constitution re-established the federal standard for testing the voluntariness of waivers of Miranda rights. Our opinion is based on separate and independent analyses of the issues actually involved in such waivers.

First, we hold that section 940 is concerned with the scope of the privilege against self-incrimination, and not with procedural matters such as the standards for determination of voluntariness of waivers of the privilege.

Second, we hold that a "legislative history" of Proposition 8 shows the voters' intent to make the "truth in evidence law" applicable to confessions, save only such exceptions as were specified in the initiative; and that as already noted, section 940 does not constitute an exception for procedural issues.

Third, we hold that even assuming that legislative history is insufficient to construe the meaning of the ballot initiative, the reasoning of In re Lance W. (1985) 37 Cal.3d 873, 210 Cal.Rptr. 631, 694 P.2d 744, is as applicable to confessions as it is to searches and seizures. Lance W. holds...