Opinion
CARR, J.In a joint trial with his codefendant, Lloyd, a jury convicted defendant of robbery (Pen. Code, § 211), with a finding he was armed with a firearm during the commission of that offense. (Pen. Code, § 12022, siibd. (a).) After waiver by defendant of a jury trial as to two charged prior convictions, murder (Pen. Code, § 187) and assault with a deadly weapon (Pen. Code, § 245), the trial court found both prior convictions to be true. Defendant was sentenced to prison for a total term of five years.
On appeal, defendant contends: (1) error in the admission for impeachment of his un-Mirandized prearrest statements to Officer Ramirez; (2) error in permitting the prosecution to impeach him with his prior convictions; and (3) insufficiency of the evidence to sustain his conviction.
Facts
At approximately 9 p.m. on September 21, 1982, David Preszler robbed the Pay less Shoe Store in Stockton at gunpoint. The money, some of which was in a white bank bag, was placed in a brown paper bag with the words “Alpha Beta” printed on it. Preszler forced the two employees into the bathroom and escaped out the back door.
At about the same time, Officer Hatchard was in the parking lot of the shopping center in which the Payless Shoe Store was located, patrolling in an unmarked car for auto burglaries. The officer saw a person, later identified as codefendant Lloyd, running through the parking lot, clutching something to his chest. Lloyd entered a white car, which then was driven out of the parking lot. The officer, suspecting an auto burglary, followed.
The officer had followed the white car briefly when it accelerated in an apparent effort to escape. The car ran two stop signs and made a reckless turn across oncoming traffic. At that point, the officer activated his siren and interior red light. The chase continued until the white car went out of *892control and struck a tree on a traffic island. When the officer pulled up behind the car, both doors were open and the officer could see two people running away. The officer yelled “halt, police,” and one person turned to look, but both continued running. They jumped over a nearby fence, and the officer broadcast their descriptions. The defendant was arrested shortly thereafter. The crotch of his pants had been torn and he was breathing hard as if he had been running. The Alpha-Beta bag containing the white bank bag and the money was found 20 to 25 feet from where codefendant Lloyd jumped over the fence. Lloyd was also arrested in the immediate vicinity.
David Preszler was charged together with defendant herein and his co-defendant Lloyd with the robbery. Preszler pled guilty and at the joint trial of defendant and codefendant Lloyd testified that he was the sole perpetrator of the robbery, having escaped from the scene on a stolen bicycle, which he rode to the area where the bag of stolen money was found; that he dropped the bag of money at the place where it was found because he had disabled the bicycle on a speed bump and heard the police sirens, which alarmed him; that he had been a good friend of his codefendant when both were in prison and upon defendant’s release, Lloyd, who apparently had been released earlier, had written to him and visited with him in early 1982. Further that in the summer months of 1982, Lloyd had telephoned that he was very upset because Lloyd and his wife had separated. Defendant came to Stockton from his home in Redding to lend spiritual comfort and help to Lloyd. On the evening of the robbery, he had driven to the K-Mart parking lot with Lloyd, who left the car to investigate the Cameo Club; that Lloyd returned hurriedly and drove the car out of the parking lot stating he had seen some members of the Nuestra Familia, a prison gang with whom both defendant and Lloyd had had contact in prison and whom both feared. When they observed a car following them, they assumed it was a Nuestra Familia gang member and they accelerated in an attempt to lose their pursuer.
I
Defendant’s initial contention has merit and the error requires reversal.
During the prosecution case, the trial court ruled that any statement defendant made to police prior to receiving the warnings required by Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 Cal.Rptr. 1602, 10 A.L.R.3d 974] were inadmissible as part of the prosecutor’s case in chief.
Defendant testified on his own behalf. During his cross-examination, over objection, the court ruled that statements made by defendant prior to his Miranda advisement would be admissible for purposes of impeachment. The defendant then testified in response to questions by the prosecutor that he *893did not recall telling Officer Ramirez he had ripped his pants while jogging, that he did not know how he cut his hand, and that he did not know anyone named Lloyd. On rebuttal, Officer Ramirez testified defendant told him that he had torn his pants while jogging, did not remember how he cut his hand, and did not know codefendant Lloyd.
Defendant urges that statements taken in violation of Miranda are inadmissible for impeachment purposes under the rule established in People v. Disbrow (1976) 16 Cal.3d 101, 113 [127 Cal.Rptr. 360, 545 P.2d 272]. The People assert that enactment of article I, section 28, subdivision (d) of the California Constitution has abrogated the Disbrow rule and substituted the federal standard of admissibility of impeachment evidence. That standard permits evidence of prior inconsistent statements of the defendant, if otherwise uncoerfced and voluntary, to be used for impeachment even though obtained in violation of Miranda. (Harris v. New York (1971) 401 U.S. 222, 224-225 [28 L.Ed.2d 1, 4, 91 S.Ct. 643].)
In People v. Disbrow, supra, 16 Cal.3d 101 the court acknowledged Harris v. New York, supra, 401 U.S. 222, 224-225 [28 L.Ed.2d 1, 4] but expressly rejected its holding and ruling on state grounds alone held “that the privilege against self-incrimination of article I, section 15, of the California Constitution precludes use by the prosecution of any extrajudicial statement by the defendant, whether inculpatory or exculpatory, either as affirmative evidence or for purposes of impeachment, obtained during custodial interrogation in violation of the standards declared in Miranda and its California progeny. Accordingly, we overrule Nudd and declare that Harris is not persuasive authority ... in California.”1 (16 Cal.3d at p. 113, italics added.)
The People do not contest that defendant’s statements to Officer Ramirez were obtained in violation of Miranda but urge article I, section 28, subdivision (d) (hereinafter 28(d)), while silent on the subject, must be interpreted as presuming supremacy of the federal law as such section implicitly acknowledges such supremacy.2 The subdivision provides in part that “[ejxcept as provided by statute hereafter enacted by a two-thirds vote of the membership of each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, . . . whether heard in juvenile or adult court. Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code sections 352, 782 or 1103.” (Italics added.)
*894The People’s argument founders on the explicit language of this subdivision. It states an exception to 28(d): “Nothing in this section shall affect . . . .” What is not affected by 28(d) is “any existing statutory rule of evidence relating to privilege.” That includes Evidence Code section 940, which provides: “To the extent that such privilege exists under the Constitution of the United States or the State of California, a person has a privilege to refuse to disclose any matter that may tend to incriminate him.” (See also Evid. Code, § 930.) What section 940 explicitly recognizes is the continued existence and viability of the constitutional provisions relating to self-incrimination. That being the case, these constitutional provisions, including the self-incrimination provisions of article I, section 15 of the California Constitution, are wholly exempted from the sway of 28(d). So much as been held by the California Supreme Court. (Ramona R. v. Superior Court (1985) 37 Cal.3d 802, 808 [210 Cal.Rptr. 204, 693 P.2d 789].)
Since People v. Disbrow (1976) 16 Cal.3d 101, 113 [127 Cal.Rptr. 360, 545 P.2d 272], is explicitly predicated upon article I, section 15 of the California Constitution it is unaffected by the provisions of article I, section 28(d). This case comes directly under Disbrow. We are compelled to apply it.
In Ramona R. v. Superior Court, supra, 37 Cal.3d 802, our Supreme Court recently held that “the language of that provision [Evidence Code section 940] is purposefully broad, and is meant to include within its reach judicial decisions relating to the privilege against self-incrimination.” (P. 808.) People v. Disbrow, supra, 16 Cal.3d 101 is such a judicial decision relating to the privilege against self-incrimination and, as noted, expressly rejected the use of extrajudicial statements secured during custodial interrogation in violation of Miranda.
In our view People v. Disbrow, supra, 16 Cal.3d 101, has not been rendered a nullity by enactment of article I, section 28(d) of our California Constitution but in fact remains preserved as a statutory exemption to the provisions of that section.3
II*
*895Conclusion
The judgment is reversed.
Blease, J., concurred.
People v. Nudd (1974) 12 Cal.3d 204, 208 [115 Cal.Rptr. 372, 524 P.2d 844], in a four to three decision, the majority adopted the rationale of the Harris case.
The provisions of Proposition 8 are applicable to the present oifense. (People v. Smith (1983) 34 Cal.3d 251, 257-258 [193 Cal.Rptr. 692, 667 P.2d 149].)
In People v. Jacobs (1984) 158 Cal.App.3d 740 [204 Cal.Rptr. 849], the court made a similar determination as to the use of a defendant’s pre- and postarrest silence during cross-examination.
See footnote, ante, page 889.