Brief Bank # B-550b
PHILLIP R. JOHNSON
24425 PEPPERMILL DRIVE
MORENO VALLEY, CA 92557
BAR No. 156738
Telephone/fax: (909) 242‑1956
Attorney for Defendant/appellant
GARY D. R.
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
COUNTY OF RIVERSIDE APPELLATE DEPARTMENT
THE PEOPLE OF THE STATE OF ) APP ‑ 1990
CALIFORNIA ) CASE NO. H93 3075
Plaintiff/Respondent ) PETITION FOR REHEARING
) AND APPLICATION FOR
vs. ) CERTIFICATION
GARY D. R., ) Cal Rules of Court 62, 63, 107
Undersigned counsel for defendant/appellant GARY D. R. respectfully petitions this Honorable Court for a rehearing in the above-entitled matter. Alternatively, Appellant requests that this matter be certified for transfer to the Court of Appeal pursuant to California Rules of Court 62 and 63(a).
“The superior court, on application of a party or on its own motion, may certify that the transfer of a case to the Court of Appeal appears necessary to secure uniformity of decision or to settle important questions of law. The certification may be made by a majority of the judges of the appellate department.” (Rule 63(a).)
(e) “The certification shall contain a brief statement setting forth any conflict of decision (with citation of or reference to decisions creating the conflict, if there is no written opinion by the superior court) or important question of law to be settled and shall state whether there was a judgment…
But the jury did not have the option of applying them under the “consciousness of guilt” instruction, because it was not given; appellant’s statements could not be taken for the truth of the matters contained, because they were inconsistent. They were in because of their impeachment value and because they were incredible, thus tending to prove his guilt. Therefore, they were “admissions” under the definitional authority of CALJIC 2.71 and People v. Brackett.
BECAUSE APPELLANT MADE “ADMISSIONS” TO THE JURY,
THE TRIAL COURT SHOULD HAVE EXPLAINED SUA SPONTE
TO THE JURY THE PURPOSE THEY WERE TO SERVE
IN ORDER TO COMPORT WITH FEDERAL DUE PROCESS.
Appellant contends the court should have given CALJIC 13 2.13.1. on its own motion to comport with Federal mandate and due process. A review of the jurisprudence on the issue reveals that (1) there is a serious conflict among the intermediate appellate courts and (2) the Harris federal sua sponte jury instruction rule espoused by Duncan is a better-reasoned principle of law.
A. WHAT THIS CASE IS NOT.
This petition is not about the constitutional propriety of impeachment, nor a debate about the need to balance an accused’s proclivity for perjury against the constable’s penchant for overzealous ferreting out crime. (See, generally, Harris v. New York (1971) 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d. 1; People v. Baker (1990) 220 Cal.App.3d 574, at 579.)
B. IT ALL STARTED WITH PEOPLE V. NUDD
AND EVIDENCE CODE SECTION 355.
Our California high court has adhered to an “independent and adequate state grounds” doctrine which is, however, of , “recent vintage and shallow draft”, Ira Reiner and George-Glenn Size, The Law through a Looking Glass: Our Supreme Court and the Use and Abuse of the California Declaration of Rights, 23 Pacific Law Journal 1183, at 1239 (1992.) Always in the vanguard of states’ rights since the 1960s to distinguish California’s constitutional rights from the federal ones, a deeply divided Supreme Court tacitly recognized Harris’s exception to the exclusionary rule in its People v. Nudd (1974) 12 Cal.3d 204 decision, but hybridized it by holding, 4-3, that the defense had to request the Harris limiting instruction, citing Evidence Code section 355.
Two years later in People v. Disbrow (1976) 16 Cal.3d 101, the same high court, again in a 4-3 decision, reversed course and retreated from Harris altogether, citing California Constitution article 1, section 15 as an “independent state rule” for holding that Miranda‑violative statements could not be used for any purpose. (Id. at 113.) It expressly overruled Nudd in declaring that “Harris is not persuasive authority in any state prosecution in California”. (Ibid.; People v. May (1988) 44 Cal.3d 309, 327-328. (Mosk, dis.)
There matters stood until 1982. The swelling undercurrent of rebellious populism surfaced in Proposition 8, eliminating judicial legislation by mandating that “no relevant evidence shall be inadmissible” except under federal rules. (California Constitution Article 1, section 28, subdivision (d).) Six years later, the California Supreme Court recognized this mandate in May, supra at 328, and reinstalled the Harris impeachment rule in its Federal entirety ‑ or so it seemed.
The anomaly of the California high court completely reversing course on Harris in Disbrow on the grounds of embracing the elusive “independent state law” to preempt federal judicial meddling in state criminal procedure prompted Justice Richardson to presciently write:
“‘The persuasion of the United States Supreme Court decisions is particularly strong in the area of search and seizure and the exclusionary rule. California courts have for years spoken of the basis of the exclusionary rule as the Fourth Amendment. A sudden switch to a ground to avoid the impact of federal high court decisions invites the successful use of the initiative process to overrule the California decision with its concomitant harm to the prestige, influence and function of the judicial branch of state government.'” (Disbrow, supra at 283 (Richardson, dissenting, and quoting from People v. Norman (1975) 14 Cal.3d 929, 940‑42.)
C. THE NUDD-WYATT-BAKER LINE OF CASES CONVENIENTLY OVERLOOKS THE FEDERAL UNDERPINNINGS OF HARRIS AND PEOPLE V. DUNCAN.
Appellant advances the position that Nudd’s “must request” rule is at cross‑purposes with due process and self-incrimination clauses of the Federal Constitution, because it encrusts a federal substantive rights vessel with state procedural barnacles, contravening People v. May and Proposition 8’s intent.
California lower appellate decisions have been in turmoil since Prop 8 on this issue. (See, generally, People v. Duncan (1988) 204 Cal.App.3d 613, 617‑619; People v. Baker (1990) 220 Cal.App.3d 574, at 576.) Federal guidance has come in the form of Ninth Circuit decisions which have held that lack of sua sponte limiting instructions was Chapman error. (Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705; see, e.g., Hinman v. McCarthy (9th Cir. 1982) 682 F.2d 343, 349; United States v. Valle Valdez (9th Cir. 1977) 554 F.2d 911.) But except for Duncan, California cases have ignored federal decisions.
People v. Wyatt (1990) 215 Cal.App.3d 255 is the first decision in point. A deputy chased Wyatt down after seeing him throw suspected contraband and, without advising him first, asked him why he did it. At trial on cross‑examination, Wyatt denied uttering his damning answer, which was stipulated to be Miranda-violative. In rebuttal, the unobjected‑to, impeaching police report came in without any requested limitation. (Id. at 257.)
In holding that sua sponte did not apply, the Fourth District relied on the facts in Nudd and section 355:
“In Nudd, a prison inmate was charged with possession of narcotics. A prison [official] read the Miranda warnings, but the inmate did not waive [them]. The officer then elicited an incriminating statement “off the record”. (Id. at 258.)
The Wyatt decision overlooked the fact that there were no Miranda warnings, unlike Nudd, which had warnings yet cites it and section 355 as precedent for a “no sua sponte duty” to give 2.13.1.
This is a distinction with a difference, since Baker (which was a flagrant Miranda violation situation), also citing Wyatt, meekly followed the Nudd party line a year later with
“In light of our intermediate appellate role and the reemergence of Harris as the governing law, we believe the California Supreme Court’s statement in Nudd governs our decision on this issue.” (Baker, supra at 579.)
Finally, People v. Stelling (1991) 234 Cal.App.3d 561, a First District case, brought up the precedential queue, concluding that the request rule “remains binding precedent” and (unfairly) criticized Duncan for omitting Nudd. (Stelling, supra at 568.)
D. DUNCAN IS THE BETTER‑REASONED RULE, ESPECIALLY
IN CASES WHERE NO MIRANDA WAIVER EXISTS
Duncan hews more closely to the true “federalism” rationale espoused by the Disbrow dissenters and which became de rigueur via Proposition 8:
“In Harris, the [U.S. Supreme] [C]ourt permitted admissions … to impeach, but their introduction was “tolerated only because the jury had been instructed to consider the statements ‘only in passing on [the defendant’s] credibility and not as evidence of guilt.’ (citations omitted)”. (Duncan, supra at 619.)
The Duncan court reviewed the judicial history of Harris and its influence on California evidence procedure. It concluded that Proposition 8 and May together place
“…the California rule no longer in doubt. If a defendant elects to testify in his own defense, he may be impeached … However, the federal rule clearly requires that … the trial judge must admonish and thereafter instruct the jury that such statements may only be used in passing upon the defendant’s credibility and not as evidence of his guilt”. (Id. at 620-621.) (emphasis counsel’s.)
Appellant knows of no reactivation principle of state law that can resuscitate Nudd on this issue, since the federal authority making adoption of the Harris standards on the use of illegally obtained statements mandatory supersedes state authority. Since May resurrected Harris, it must have raised it up in its federal entirety. State authority which has ignored Hinman and Duran v. Stagner (D.C. Cal. 1985) 622 F.Supp. 803 in the face of
“[F]ederal law must be applied, and the Federal standard must be applied as to the use of statements in violation of the Miranda rule. (May, supra at 313.)
… up to now must have been doing so on the “independent and adequate state law” principle and little else.
Appellant submits that failure to instruct the convicting jury in this case was prejudicial because it was informed, in effect, that it could consider the damaging statements as evidence of guilt. This is in violation of due process and his conviction should be reversed.
Appellant made pretrial statements to law enforcement that were inconsistent with his trial testimony and ostensibly Miranda-violative by definition. The jury was instructed what an “admission” was in deliberating on the issue of guilt or innocence
But appellant’s jury was permitted to consider these “admissions” in contravention of the federally mandated sua sponte limiting instruction rule of Harris. State court decisions circumventing the Harris rule and criticizing Duncan are inapposite and distinguishable on either the facts or the law. Cases citing the antiquated and vestigial “independent state law” doctrine supporting Nudd are not respectable authority making a defense request for CALJIC 2.13.1 necessary as a prelude to its inclusion in a package of jury instructions.
For the reasons cited, and to achieve uniformity and guidance, appellant respectfully requests that this court grant a….
 hereafter noted as “Looking Glass“
 Evidence Code section 355 provides that “[w]hen evidence is admissible … for one purpose and is inadmissible … for another, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.”
 Looking Glass, supra at 1247, fn. 183. Justice Wright switched sides between Nudd and Disbrow; his reasons are echoed in People v. Baker (1991) 220 Cal.App.3d 574, 579; he thought Disbrow was necessary to avoid evisceration of Miranda.
 Looking Glass, supra at 1248‑1249, fn. 186.
 See Baker, supra; People v. Wyatt (1990) 215 Cal.App.3d 255 and People v. Stelling (1991) 234 Cal.App.3d 561. All sided with the Nudd rationale, Stelling faulting Duncan for overlooking Nudd. (Stelling, supra at 567.)
The short answer is that, even if Duncan had given Nudd credit as authority under state law, that wouldn’t affect Duncan’s analysis, since it relied exclusively on federal cases ‑ a result originating in Harris, avoided by Disbrow because of the “independent state rule” doctrine, but remanded by May. (See Looking Glass, supra at 1246-1248.)
 Factual comparison: Harris, Hinman, Duncan, Wyatt and probably Stelling are all “constitutional” (no warning), as opposed to Nudd and Baker, which were “prophylactic rule” (violation) cases. But Wyatt’s reasoning was based on “prophylactic rule” principles. (Id. at 258.) Stelling, citing both Wyatt and Baker, denigrated Duncan because of its failure to cite Nudd, which was not a “no‑warning” case, so not on “all fours”. (Id. at 567‑568.)
 The state Supreme Court took six years to overrule Disbrow despite the authority of Prop 8, and it appears reluctant to review the state procedural device engrafted onto the Harris doctrine because of the “independent state law” proclivity. See, generally, Looking Glass, supra at 1243-1248.