People v. Smith

RICHARDSON, J.

I respectfully dissent.

Despite the passage of Proposition 8 by the electorate in June 1982, and the consequent amendment to the California Constitution (art. I, § 28, subd. (d)) declaring that “relevant evidence shall not be excluded in any criminal proceeding,” more than a year later the majority continues to reverse criminal convictions solely in reliance upon the now abrogated state exclusionary rule. I strongly disagree with the majority’s continued refusal to give immediate effect to the people’s clear intent in adopting Proposition 8.

In the present case, apparently no one questions that defendant’s confession was admissible under federal constitutional principles (see Michigan v. Mosely (1975) 423 U.S. 96 [46 L.Ed.2d 313, 96 S.Ct. 321]). The majority bases its conclusion of inadmissibility entirely upon People v. Pettingill (1978) 21 Cal.2d 231, 249-251 [145 Cal.Rptr. 861, 578 P.2d 108], which rested on its own interpretation of the California Constitution. The majority of this court refused to follow the federal Mosely precedent. The majority continues to thwart the people’s unambiguous and demonstrable intent to “overcome” decisions such as Pettingill which had “created additional rights for the criminally accused and placed more restrictions on law enforcement officers” than were required under federal law. (See Ballot Pamp., Proposed Amends, to Cal. Const, with arguments to voters, Primary Elec. (June 8, 1982), argument in favor of Prop. 8, p. 34; Brosnahan v. Brown (1982) 32 Cal.3d 236, 248 [186 Cal.Rptr. 30, 651 P.2d 274].)

Because defendant’s alleged offenses occurred prior to the adoption of Proposition 8, the majority holds that none of the provisions of that measure is applicable to him. According to the majority, Proposition 8 applies “only *273to criminal proceedings arising out of offenses committed on or after the date it took effect.” (Ante, p. 262.) In other words, even as to defendants who are tried (or retried) after the adoption of Proposition 8, such defendants may continue to enjoy the shield of an abrogated state exclusionary rule if their offenses occurred before its passage. Contrary to the majority’s analysis, this holding is neither consistent with the purpose of those who drafted and voted for Proposition 8, nor compelled by constitutional ex post facto principles.

1. Intent: Full Retroactivity to All Cases Not Yet Final.

The ballot arguments supporting Proposition 8 stressed a “vital” need to reverse the trend of the appellate courts’ prior decisions which “For too long . . . have demonstrated more concern with the rights of criminals than with the rights of innocent victims.” (Ballot Pamp., supra, p. 34.) The supporters of Proposition 8 urged “decisive action against violent crime,” and promised that its adoption would result in “more criminal convictions, more criminals being sentenced to state prison, and more protection for the law-abiding citizenry.” (Ibid.)

There seems no reasonable doubt whatever that those persons who drafted and voted for Proposition 8 intended that its provisions (and especially the abrogation of a state exclusionary rule) would take effect as soon as constitutionally possible. The wording of new article I, section 28, subdivision (d), of the state Constitution reinforces that conclusion, for it provides that (with exceptions not pertinent here) “relevant evidence shall not be excluded in any criminal proceeding.” (Italics added.) This constitutional provision is not limited to, nor does it affect only, those criminal proceedings involving crimes committed on or after June 8, 1982. The restriction conjured by the majority is imaginary, lacking any basis either in the history of Proposition 8 or in general law.

Focusing upon isolated language in the preamble to Proposition 8, the majority suggests that “by declaring the purpose of Proposition 8 to be the deterrence of crime the voters must have intended the measure to apply only to offenses that could be deterred, i.e., that had not already been committed by the time Proposition 8 was adopted.” (Ante, pp. 258-259.) The argument is specious. The immediate application to “any criminal proceeding” of the provisions of Proposition 8, including its abrogation of the state exclusionary rule, would result in criminal convictions previously unobtainable by reason of the rule, and would obviously serve a maximum deterrent purpose. The state exclusionary rule, being judicially created and not constitutionally founded, most certainly is not beyond the people’s reach to remove it. Here, they have embedded this removal in their Constitution.

*274In the present case the majority holds that defendant’s conviction must be reversed because his confession was elicited in violation of state constitutional principles. Accordingly, should the People choose to retry defendant without the benefit of his confession of the crime, a conviction may be much more difficult to obtain. If Proposition 8 is applied, however, the conviction undoubtedly would be affirmed. Can there be any reasonable doubt regarding the probable intent of both the authors and voters as to the retroactive application of Proposition 8 in such a situation? Is it likely that either authors or voters would have favored the acquittal of a confessed robber merely because of a technical violation of the prophylactic rules which previously we had judicially created to “protect” such persons from police interrogation and which the people themselves had so recently abrogated?

It also should be observed that, because of the majority’s holding, California courts henceforth must apply two different sets of evidentiary rules in criminal cases, depending solely upon the date of commission of the offense or offenses. Hereafter, a single search conducted after the adoption of Proposition 8 which may disclose evidence of multiple crimes could be ruled valid as to certain crimes, and invalid as to others. Such needless anomalies make no sense constitutionally or otherwise and lessen the public’s respect for our decisions.

2. Ex Post Facto Principles Are Inapplicable Here.

The majority assertedly declines a retroactive application of Proposition 8 in order to “avoid doubts” regarding the constitutionality of the measure as applied to crimes committed prior to its adoption. (Ante, p. 262.) With due respect to my colleagues, I suggest that the point is clearly frivolous. California cases, including our own, have uniformly held that ex post facto principles are not violated by the retroactive application of a statute which merely alters evidentiary rules by permitting the admission of previously inadmissible or incompetent evidence, and which does not lessen the amount or measure of the proof previously necessary to convict. (People v. Bradford (1969) 70 Cal.2d 333, 343-344, fn. 5 [74 Cal.Rptr. 726, 450 P.2d 46]; People v. Ward (1958) 50 Cal.2d 702, 710 [328 P.2d 777]; People v. Sobiek (1973) 30 Cal.App.3d 458, 473 [106 Cal.Rptr. 519].) A fortiori, a constitutional change in evidentiary rules does not invoke ex post facto principles. Moreover, it should be borne in mind that, despite the majority’s sweeping pronouncements and dicta regarding the retroactive effect of Proposition 8 as a whole, we deal here only with the application of the “truth-in-evidence” portion of the measure, embodied in new article I, section 28, subdivision (d), of our state Constitution. The sole effect of this provision is to permit the admission of relevant evidence in criminal proceedings. Under *275the foregoing authorities, such constitutional enactment properly may be given retroactive effect in cases not yet final.

Thus, in Ward we considered whether an amendment to the death penalty laws which permitted the introduction at the penalty phase of evidence in aggravation or mitigation of the offense (former Pen. Code, § 190.1) could be applied to a defendant whose offense occurred prior to its adoption. As in the present case, defendant in Ward argued that evidence of his jail and juvenile court records would have been inadmissible prior to the amendment and, accordingly, that the change in procedure altered the situation to his substantial detriment and constituted the enactment of an ex post facto law. (50 Cal.2d at p. 708.) In flatly rejecting his argument, we observed that “Changes of a similar nature had heretofore been approved as not constituting ex post facto laws in this state,” and discussed several California and federal cases on the subject, including Thompson v. Missouri (1898) 171 U.S. 380 [43 L.Ed. 204, 18 S.Ct. 922]. (Id., at pp. 708-709.) Thompson had held that “we cannot perceive any ground upon which to hold a statute to be ex post facto which does nothing more than admit evidence of a particular kind in a criminal case . . . which was not admissible under the rules of evidence ... at the time the offense was committed.” (P. 386 [43 L.Ed.2d at p. 207].)

Similarly, in People v. Bradford, supra, 70 Cal.2d 333, we again relied upon Thompson in concluding that “changes in the rules of evidence which broaden the class of persons competent to testify are not deemed ex post facto in operation.” (Pp. 343-344, fn. 5.) In Bradford, the defendant’s spouse was permitted to testify over his objection by reason of the adoption of Evidence Code section 970, a provision which was not in effect when the offense was committed. We again rejected defendant’s claim that the new statute could not be retroactively applied under ex post facto principles.

In light of our own holdings in Ward and Bradford, and the high court’s ruling in Thompson, it cannot fairly be said that the issue is so fraught with “uncertainties” (ante, p. 262) as to require a prospective application of Proposition 8. In my view, the lesson taught by the foregoing line of cases is crystal clear: Although the new law cannot permit a criminal conviction to be obtained with less evidence than was required when the act was committed, the new law properly may ease prior evidentiary restrictions, thereby permitting the admission of more relevant evidence than previously was allowed.

The people’s manifest intent in adopting new article I, section 28, subdivision (d), was to erase California’s exclusionary rule as soon as consti*276tutionally permissible. There is no constitutional impediment whatever to a retroactive application of the new provision with respect to criminal cases not yet final. Although we created the state exclusionary rule it ill behooves us to frustrate or delay its removal by the people themselves.

I would affirm the judgment.