Brief Bank # B-767
B. Respondent Should Not Be Permitted To Avoid
The Express Language Of Proposition 8
Respondent seeks to avoid the express language of Proposition 8 by use of several strained and twisted arguments.
1. Evidence Code § 1150 Is A Rule Of Evidence
Respondent’s assertion that the legislature intended Evidence Code section 1150 to be a rule of substantive law rather than a rule of evidence is ludicrous. Everything about the statute indicates that it is a rule of evidence. It is in the Evidence Code. It is entitled “Evidence To Test A Verdict.” And, its express language ‑‑ which in the absence of ambiguity dictates legislative intent (People v. Kraft (1986) 41 Cal.3d 554, 559‑560) contains the terms “evidence may be received” and “no evidence is admissible.” Hence, there is no indication whatsoever that the statute was intended to promulgate a substantive rule of law rather than a rule of evidence.
If the legislature had intended Evidence Code section 1150 to be a rule of substantive law it could easily have worded the statute as a rule of substantive law and placed it in an appropriate provision of the Penal Code such as section 1181. Absent such action by the legislature, the substantive law remains defined by Penal Code provisions such as 1181 which require a new trial when “the verdict or finding is contrary to law or evidence . . .” (Penal Code § 1181(6).)
Therefore, a juror’s statement which indicates the verdict is contrary to the law or evidence is clearly relevant upon the material issues presented at a motion for new trial. Section 1150 does not make such evidence irrelevant, “it simply restricts its admissibility.” (People v. Taylor (1986) 180 Cal.App.3d 622, 630 [holding that Evidence Code section 790 “does not render evidence in support of defendant’s credibility irrelevant . . .”].
Moreover, the language of section 1150 is operatively analogous to the language of Evidence Code sections 786 and 790 which the Supreme Court has already identified as rules of evidence abrogated by Proposition 8. (See People v. Harris (1989) 47 Cal.3d 1047, 1081‑1082.)
Accordingly, respondent’s attempt to avoid the clear direction of Proposition 8 upon the wild assertion that section 1150 is a rule of substantive law should be rejected.
2. Section 1150 Is Not A Hearsay Exception
Respondent also erroneously contends that section 1150 should be viewed as a hearsay exception. Section 1150 does not address hearsay, it concerns any “otherwise admissible evidence.” Hence, the statute does not create an exception to the hearsay rule.
Moreover, a hearsay exception allows for the admission of otherwise inadmissible hearsay evidence. The portion of section 1150 at issue in the present case provides for the exclusion of evidence.
In sum, any purported analogy to the rules of hearsay is totally unfounded.
3. Proposition 8 Is Not Unconstitutional
Respondent’s last effort to avoid Proposition 8 asserts that Evidence Code section 1150 is indispensable to the defendant’s constitutional right to a fair trial. There are two obvious problems with this argument.
First, the constitutional right to a fair trial is the right of the defendant. Respondent has no standing to assert this right.
Second, respondent asks this court to assume a legislative function by balancing the policy considerations underlying the subjective impeachment prohibition of section 1150 with the underlying premise of Proposition 8 that all relevant evidence should be considered. Respondent’s contention that this balance weighs in favor of retention of the Evidence Code section 1150 limitation upon subjective impeachment should be addressed to the legislature — not to this court. If the legislature agrees with respondent it is perfectly free to reenact section 1150 pursuant to its authority to do so under California Constitution, Article I, Section 28 (d).
B. The Declarations Were Admissible in Their
Entirety Under Proposition 8
It is true that there are judicial (see, Maple v. Cincinnati, Inc. (1985) 163 Cal.App.3d 387) and statutory (Evidence Code Sec. 1150(a)) rules which require exclusion of juror affidavits which are offered to impeach the verdict or to show the “mental processes” of the jury. And under this authority the trial court excluded the juror declarations in the present case. (RT 2105‑2106.) However, these rules of evidence have been abolished by “Proposition 8” and, therefore, the juror declarations should be considered.
Article I, Section 28(d) of the California Constitution, adopted by voter initiative on June 8, 1982 (“Proposition 8”) provides in relevant part:
“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, . . . nothing in this section shall effect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code Sections 352, 782 or 1103 . . .” [Emphasis added.]
Additionally the ballot materials for Proposition 8 included the following statement: “Under current law, certain evidence is not permitted to be presented in a criminal trial or hearing . . . This measure generally would allow most relevant evidence to be presented in criminal cases subject to such exceptions as the Legislature may in the future enact by a two‑thirds vote.” [Emphasis added.] (Analysis by a legislative analyst, ballot pamp., Proposed Amends. to Cal. Const. with Arguments to Voters, primary elec., June 8, 1982, p. 32.)
Constitutional provisions adopted by the People are to be interpreted so as to effectuate the voters’ intent, and if the intent is clear from the language used, there is no room for further judicial interpretation. (People v. Callegri (1984) 154 Cal.App.3d 856, 867.) “The intent of the electorate that both judicially created and . . . statutory rules restricting admission of relevant evidence in criminal cases be repealed except insofar as Section 28(d) preserves them is manifest.” [Emphasis added.] (People v. Harris (1989) 47 Cal.3d 1047, 1081-1082.) Hence, with the enactment of the “right to truth in evidence” provision of Proposition 8 the California Constitution now commands that “relevant evidence shall not be excluded in any criminal proceedings. . .” (California Constitution, Article I, Section 28(d).)
As our Supreme Court observed, the “clearly stated command [of Section 28(d)] has only one apparent meaning”; that is, “[t]he express intent of Section 28(d) is to insure that all relevant evidence be admitted.” (In re Lance W. (1985) 37 Cal.3d 873, 886, 889.)
“The inclusion in section 28(d) of specified exceptions to its mandate that ‘relevant evidence shall not be excluded’ — i.e., later enacted statutes passed by two‑thirds of the Legislature; statutory rules relating to privilege or hearsay; and sections 352, 782, and 1103 of the Evidence Code ‑‑ affords further evidence of the intent to restrict exceptions to that command. ‘Under the familiar rule of construction, expressio unius est exclusion alterius, where exceptions to a general rule are specified by statute, other exceptions are not to be implied or presumed.’ (Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 195.” (People v. Harris, supra, 47 Cal.3d at 1082 (quoting In re Lance W., supra, 37 Cal.3d at 888.)
Accordingly, because Evidence Code Section 1150 was not specifically saved by Proposition 8, and because the Legislature has not re‑enacted that section since the passage of Proposition 8, it has been abolished. Under Section 28(d) appellants have an express state created right to admission of the juror declarations. The denial of this state created right would in itself constitute a denial of due process under the Fourteenth Amendment of the federal constitution. (See, Whalen v. U.S. (1980) 445 U.S. 684, 689, fn. 4; Hines v. Enomoto (9th Cir. 1981) 658 F.2d 667, 672.)
