Brief Bank # B-772 Defense Theory That Failure To Provide Interpreter To Explain Duty To Register Violated Due Process
THE FAILURE OF THE PRISON OFFICIAL TO PROVIDE A COMPETENT SPANISH INTERPRETER TO EXPLAIN THE STATUTORY DUTY TO REGISTER AS A SEX OFFENDER AT HIS EXIT INTERVIEW VIOLATED APPELLANT’S RIGHT TO DUE PROCESS AS GUARANTEED BY THE CALIFORNIA CONSTITUTION AND THE FOURTEENTH AMENDMENT.
Section 290 subdivision (b) provides in pertinent part:
Any person who … is discharged … from a … prison where he or she was confined because of the commission or attempt to commit one of the offenses specified in subdivision (a) . . shall, prior to discharge, parole or release, be informed of his or her duty to register under this section by the official in charge of the place of confinement … and the official shall require the person to read and sign any form that may be required by the Department of Justice, stating that the duty of the person to register under this section has been explained to the person.
The California Constitution provides that “a person unable to understand English who is charged with a crime has a right to an interpreter throughout the proceedings.” (Cal. Const., art. 1, § 14,) Impairment of the right to a defense interpreter throughout the proceedings is fundamentally unfair and reversible error when the defendant can show prejudice. (People v. Rodriguez (1986) 42 Cal.3d 1005,1009-1013, People v. Bostick (1965) 62 Cal.2d 820, 824; People v. Baez (1987) 195 Cal.App.3d 1431.) Appellant maintains that based on the guilty plea form that showed a Spanish interpreter was required to translate the form, it was fundamentally unfair for appellant to be required to read and sign the Notice of Registration Requirement pursuant to Section 290 which is written in English without benefit of an interpreter. Government Code Section 68560 provides: “The Legislature recognizes the need to provide equal justice under the law to all California citizens and residents and the special needs of non-English-speaking persons in their relations with the judicial system.”
The need for a competent interpreter during the exit interview to inform the parolee of his duty to register as a sex offender is analogous to the need for such an interpreter during a probation interview, which is not a “proceeding” within the meaning of article 1, section 14 of the California Constitution, yet nevertheless relates directly to a critical phase of a criminal proceeding. “Although the same procedural safeguards required at trial on the issue of guilt are not required at probation hearings, ‘an applicant for probation is nevertheless entitled to relief on due process grounds if the hearing procedures are fundamentally unfair.’” (People v. Peterson (1973) 9 Cal.3d 717, 726 [Citation.].) In People v. Gutierrez (1986) 177 Cal.App.3d 92, 102, the court noted that “the probation interview would be reduced to a sham if it were conducted by an English-speaking probation officer with a non-English-speaking defendant without the aid of an interpreter.”
In this case appellant had the benefit of having a defense attorney whose native tongue was Spanish when he signed the change of plea form that resulted in his duty to register as a sex offender. (RT 27, 37.) The guilty plea shows that his attorney served as his Spanish interpreter. (RT 34.) The court imposed a sentence of three years for attempt to commit a lewd act on a child. (CT 74.)
Prior to his release from prison, appellant signed a Notice of Registration Form written in English. (CT 87.)
The correctional officer who was acting for the warden stated: “If somebody speaks Spanish, first thing I ask them, I ask them if they can speak a little bit of English. If he says yes, then I speak a little bit of Spanish. What I do is I tell them in Spanish that I don’t get paid by the state to speak Spanish, but I speak Spanish and if he doesn’t understand me to let me know and I will get somebody that speaks Spanish who is a certified interpreter. If he doesn’t speak any English at all then what I do is I get ahold (sic) of the Lieutenant and he sends me over a certified interpreter and I go over the conditions of his registration through the officer. Prior to completion of this, after we informed him of everything, we also ask him that if he understands every condition that we went over and I tell him to make sure that he understands that and if he doesn’t, to let me know and that we’ll go over it again. If he acknowledges that he does understand by saying yes, we don’t go by with a shake of the head, he has to respond by yes, then I tell him that signing this form is acknowledgment of (sic) he understands and after he signs it I date it and then I take his right thumbprint.” (RT 84.)
In Lambert v. The State of California (1957) 355 U.S. 225, a Los Angeles ordinance that prohibited any person convicted of a felony to remain in Los Angeles for more than five days without registering was challenged as being unconstitutional. Recognizing that states have great latitude to exclude elements of knowledge and diligence from the definition of a crime, the court noted that failing to register is conduct that is wholly passive. (Id. p. 228.) Although ignorance of the law will not excuse, “ingrained in our concept of due process is the requirement of notice. (lbid.) The United States Supreme Court held that because there was no proof that Lambert knew of the duty to register her conviction under the ordinance would not be consistent with due process. (Id. at pp. 229-230.) “Were it otherwise, the evil would be as great as it is when the law is written in print too fine to read or in a language foreign to the community.” (Emphasis added; Id. at p. 230.)
Appellant contends that Lambert v. State of California, supra, 355 U.S. 225, applies to this case because although this statute differs from the Los Angeles ordinance in that the sex offender must willfully fail to register, by failing to show on the Registration Form that the non-English speaking offender was provided an interpreter, having him sign a statement that he read the form has no meaning, Mr. Tamayo has processed hundreds of inmates pursuant to Section 290. (RT 89.) He has no recollection of what was said during appellant’s exit interview, nor does he have any memory of appellant. (RT 89, 98.) Because Section 290 makes no provision for the non-English speaking sex offender, the statute does not insure that proper notice will be given.
“When notice is a person’s due, process which is a mere gesture is not due process.” Guerrero v. Carleson (1973) 9 Cal.3d 808, 811. This process is deficient because in a prison setting, an inmate may be fearful of stating that he does not understand what is expected of him upon his release from prison. Fearful that lack of understanding will be interpreted as being uncooperative. Fearful that he will not be released if he doesn’t understand. Furthermore, because no record is kept as to whether an interpreter was provided, the evidence that the inmate was made aware of his duty to register is the inmate’s signature on a piece of paper that he may not be able to read. (RT 97.)
Section 290 as enforced in this case, was violative of appellant’s right to due process, therefore appellant’s conviction for failure to register as a sex offender must be reversed.
APPELLANT DID NOT WAIVE THE ATTORNEY-CLIENT PRIVILEGE BY SIGNING A CHANGE OF PLEA FORM THAT STATED HIS ATTORNEY HAD EXPLAINED THAT AS A CONSEQUENCE OF THE PLEA APPELLANT MAY HAVE TO REGISTER AS A SEX OFFENDER.
“The exclusive means by which the attorney/client privilege may be waived are specified in Section 921 of the Evidence Code.” These are (1) when the holder of the privilege, without coercion, and in a nonconfidential context, discloses a significant part of the communication or consents to such disclosure by anyone, and (2) when there is a failure to claim the privilege in any proceeding in which the holder has the legal standing and opportunity to do so. (Blue Ridge Insurance Company v. Superior Court (1988) 202 Cal.App.3d 339, 346.) The attorney/client privilege continues even after the end of threat of punishment. (Littlefield v. Superior Court (1982) 136 Cal.App.3d 477, 483.) The purpose of the attorney/client privilege is to preserve the confidentiality of information. (City & County of San Francisco v. Superior Court (1951) 37 Cal.2d 227, 233.)
In a pretrial motion before Judge Richard Murphy, the People moved to call as a witness appellant’s defense attorney in the underlying conviction that resulted in appellant’s mandatory registration as a sex offender. (RT 3.) The People argued that the attorney’s testimony was necessary because based on the preliminary hearing testimony the defense was going to be that the defendant did not know he had to register, therefore it was not a wilful violation. (RT 11.) The defense argued that appellant was not seeking to invalidate his prior conviction and that he was not waiving the attorney/client privilege, Furthermore, the defense argued that it was the Department of Justice, Division of Law Enforcement Registration Unit who had the duty to inform appellant that he had to register as a sex offender. The defense noted that appellant did not waive time for trial. (RT B.) Because the defense attorney’s name was not on the witness list, if the court allowed him to be called as a witness, there would be a delay in the trial as appellant would have to be assigned a new attorney to avoid a conflict as his present attorney was from the same office as his previous attorney. (RT 22.)
The court refused to exclude the defense attorney because the trial might be delayed. The court noted that appellant could prevent that by waiving time. The court ruled that appellant waived his attorney/client privilege with regard to the limited discussion of registration as a sex offender. (RT 22-23.) On May 13, 1997, the case was sent back to have a new attorney appointed and for the trial to be recalendared.
The trial began before Judge Ehrenfreund on June 30, 1997. The first witness called was Arturo Herrera, an attorney from the Public Defender’s office who previously represented appellant. The defense raised the attorney/client privilege, (RT 27.) Out of the presence of the jury, the court ruled that the prosecution could question the witness about what the defendant said in open court. (RT 28-29.)
In People v. Tamborrino (1989) 215 Cal.App.3d 575, 582, the court held defendant’s testimony concerning facts that might have been previously related by him to his counsel is not equivalent to disclosure by him of the actual content of an attorney-client communication, and does not constitute a waiver of the privilege. (Citing Maas v, Municipal Court (1985) 175 Cal.App.3d 601, 606; Littlefield v. Superior Court, supra, 136 Cal.App.3d at p. 477, 483.) In Littlefield the defendant asserted the need to inquire into the attorney-client discussions of the prosecution witness who had negotiated a guilty plea to the underlying murder charges. The court found no merit whatsoever in the argument that a client’s testimony to facts that were possible a topic of confidential conversations with his defense counsel is equivalent to the client testifying to the actual contents of those attorney/client conversations. (ld. at p. 481, 484.)
Appellant contends that signing a Change of Plea form that contains the statement that his attorney informed him that as a result of the plea he may be required to register as a sex offender was not equivalent to disclosure by him pursuant to Evidence Code Section 912 of a significant part of the communication he had with his attorney regarding his need to register as a sex offender. Subdivision (d) of the Evidence Code Section 912, provides in pertinent part: A disclosure in confidence of a communication that is protected by a privilege provided by Section 954 (attorney-client privilege) … when such disclosure is reasonable necessary for the accomplishment of the purpose for the lawyer . . . was consulted, is not a waiver of the privilege. Although the Change of Plea form followed by the guilty plea were not made in confidence, the disclosures on paper and in court were necessary for the accomplishment of the purpose for which appellant consulted his attorney. Appellant did not waive his attorney/client privilege.
The violation of the attorney/client privilege denied appellant a right to counsel as guaranteed by the Sixth Amendment to the United States Constitution and article 1, section 15 of the California Constitution. By allowing the prosecution to call his former defense attorney as a witness, appellant was forced to have a new appointed attorney, because his present counsel was a Public Defender as was his former defense counsel. (RT 9.) Furthermore, appellants trial was delayed to allow the new attorney to prepare for trial. Appellant was faced with either going to trial with an unprepared attorney or delaying the start of the trial. (RT 11, 22-23.)
Because the error was related to Constitutional guarantees, the conviction must reversed if the error was not harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.) Mr. Huerra was the only native Spanish speaking person who may have told appellant of his duty to register. Jurors may have been doubtful that Mr. Tamayo made himself understood when he explained the duty to register to appellant, therefore it can not be said that the result would have been the same had the error not been made.
Appellant’s conviction for failing to register as a sex offender must be reversed.