People v. Carreon

• Citation: 151 Cal.App.3d 559,198 Cal.Rptr. 843
• Decision Date: 31 January 1984
• Docket Number: Cr. 5839
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Francisco CARREON, Defendant and Appellant. /F753.

Page 843

198 Cal.Rptr. 843

151 Cal.App.3d 559

The PEOPLE, Plaintiff and Respondent, v. Francisco CARREON, Defendant and Appellant.

Cr. 5839/F753.

Court of Appeal, Fifth District, California.

Jan. 31, 1984.

Quin Denvir, State Public Defender, David Y. Stanley and Gabriel C. Vivas, Deputy State Public Defenders, Sacramento, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., and George Deukmejian, Former Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Roger E. Venturi and Willard F. Jones, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

WOOLPERT, Associate Justice.

Located in the central area of California where many non-English-speaking people live, we are not surprised by the number of recent appeals which have raised questions concerning the right of a defendant in a criminal case to a personal, sworn interpreter. Oral argument in three such cases having just been concluded, we publish this opinion and use it by reference in the others.

It is not disputed that defendant's first language is Spanish and that his grasp of English is sufficiently limited to have required the services of an interpreter. A defense interpreter ¹ was provided him at some, but not all, of the judicial proceedings. Of particular importance is the fact that at the preliminary examination, the appointed defense interpreter was borrowed to interpret witnesses' testimony for the court. The "Case of the Borrowed Interpreter" is a recurring problem which has already generated significant concern by two appellate courts of this state.

Generally, we agree with recent cases upholding the right to a personal defense interpreter throughout all phases of the criminal proceedings, without interruption, unless expressly waived on the record by the defendant after advice of the right. We differ in two important ways. First, the strict rule of Boykin-Tahl is inapplicable to this constitutional right. Second, we hold the failure to swear the defense interpreter is deemed waived unless brought to the attention of the court.

Defendant appeals from his conviction of robbery and simple kidnaping.

FACTS

The defendant and three other men allegedly used miscellaneous weapons to force a potential robbery victim into his own car. Once in the car, the victim's pockets were searched and some items were taken. The victim was driven around by the four for about 10 to 20 minutes. They stopped the car, told the victim to take off his clothes (which he did) and left him. The victim contacted the police and later that evening the vehicle was located and the four men inside were arrested. Defendant was one of these men. The defendant claims that the victim went willingly in the car and that no robbery occurred.

CONTENTIONS

Defendant challenges his conviction constitutionally and statutorily. He argues that because the record does not show the interpreter at the preliminary hearing was sworn, we must infer that no oath was given. Failure to give an oath, he continues, violates Evidence Code sections 750 and 751, ² the United States Constitution, and the California Constitution, by making the interpreter not "present." Defendant further argues that the simultaneous use of the interpreter provided at the preliminary hearing and at trial as both a defense and witness interpreter violates his constitutional rights, state and federal. Defendant also argues that he was not provided an interpreter throughout the preliminary hearing because the record reflected the interpreter was at least momentarily absent. Finally, defendant argues he did not waive the right to an oath requirement or to a separate interpreter by failing to object.

DUAL USE OF A COURT-APPOINTED INTERPRETER VIOLATES THE CALIFORNIA CONSTITUTION.

Defendant first contends the trial and preliminary hearing courts erred in appointing a single interpreter, both to assist defendant in communicating with defense counsel and to interpret the testimony of Spanish-speaking witnesses. The crux of his argument is that a separate interpreter should have been present throughout the proceedings to simultaneously translate all spoken English words and to facilitate communication between defendant and his non-Spanish-speaking attorney. We agree.

The municipal court was on notice the defendant would need a defense interpreter prior to the beginning of the preliminary hearing. Indeed, an interpreter was present for this purpose. Irrespective of this knowledge, the court borrowed the interpreter when interpreter services were needed for a witness.

Article I, section 14 of the California Constitution grants to non-English-speaking criminal defendants the distinct right to an interpreter "throughout the proceedings." It provides in pertinent part: "A person unable to understand English who is charged with a crime has a right to an interpreter throughout the proceedings." (Cal.Const., art. I, § 14.) The provision was adopted in 1974. Prior to enactment of this constitutional provision, courts had developed the rule that upon the defendant's showing of necessity, appointment of an interpreter was required as a matter of due process.

In the past, trial courts had been afforded broad discretion in determining whether a defendant's comprehension of English was minimal enough to render interpreter services "necessary." (People v. Annett (1967) 251 Cal.App.2d 858, 861-862, 59 Cal.Rptr. 888, cert. den., Annett v. Califor nia (1968) 390 U.S. 1029, 88 S.Ct. 1421, 20 L.Ed.2d 287; People v. Estany (1962) 210 Cal.App.2d 609, 611, 26 Cal.Rptr. 757; In re Muraviov (1961) 192 Cal.App.2d 604, 606, 13 Cal.Rptr. 466; and People v. Hernandez (1957) 150 Cal.App.2d 398, 400, 309 P.2d 969; see also People v. Benavidez (1967) 255 Cal.App.2d 563, 566, 63 Cal.Rptr. 357.) Nothing in the new constitutional provision changes this well established requirement of a finding of necessity by the trial court. Indeed, the provision specifically states that the right to an interpreter is contingent upon a person's being "unable to understand English." (Cal.Const., art. I, § 14.) Prior to the right being spelled out in the state Constitution, the court's failure to appoint an interpreter upon a proper showing of need was deemed violative of fundamental fairness and sometimes required reversal of the defendant's conviction. (People v. Annett, supra, 251 Cal.App.2d at pp. 861-862, 59 Cal.Rptr. 888.)

Various courts and commentators have noted denial of interpreter services impairs not only the defendant's due process rights, but also his rights to confront adverse witnesses, to the effective assistance of counsel, and to be present at his own trial. (See, e.g., United States ex rel. Negron v. State of New York (2d Cir.1970) 434 F.2d 386, 389, due process, confrontation, and effective assistance of counsel; Baltierra v. State (1979) Tex.Cr.App., 586 S.W.2d 553, 556-559, confrontation, presence at trial, and communication with counsel; Commonwealth v. Pana (1976) 469 Pa. 43, 49, 364 A.2d 895, 898, confrontation, consultation with attorney, and presence at trial; State v. Natividad (1974) 111 Ariz. 191, 194, 526 P.2d 730, 733, effective assistance, presence at trial; Chang & Araujo, supra, 63 Cal.L.Rev. at pp. 812-820, confrontation, effective assistance of counsel; see generally Annot., Right of Accused to Have Evidence or Court Proceedings Interpreted (1971) 36 A.L.R.3d 276; 6 Wigmore, Evidence (3d ed. 1940) § 1393, p. 117.)

Regarding the rights to effective assistance of counsel and to effective presence at trial, courts frequently have echoed the words of the United States Supreme Court that a criminal defendant must possess "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding." (Dusky v. United States (1960) 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824, per curiam, quoted in United States ex rel. Negron v. State of New York, supra, 434 F.2d at p. 389, and in Baltierra v. State, supra, Tex.Cr.App. at 586 S.W.2d at p. 556.)

Recently, in People v. Menchaca (1983) 146 Cal.App.3d 1019, 194 Cal.Rptr. 691, after

quoting article I, section 14 of the California Constitution, the court succinctly stated, then answered, the question before it:

"The essence of the issue presented is whether the presence of an interpreter who is facilitating communication between witnesses testifying in defendant's native language, counsel and the trial court fulfills the constitutional mandate; we think not." (Menchaca, supra, at pp. 1023-1024, 194 Cal.Rptr. 691.)

The court took judicial notice of the fact that an interpreter interpreting for a witness is often sitting near the witness. As a result, helping the defendant is difficult.

The court was further concerned that in such a case the defendant often has difficulty hearing the translated questions. Like Menchaca, the defendant in the case at bench would have had to hear the questions translated into Spanish to effectively understand the answers. Unlike the present case, however, defense counsel in Menchaca pointed out this difficulty to the court. (Id., at p. 1024, 194 Cal.Rptr. 691.) There was also difficulty on the part of defense counsel in Menchaca in understanding the translations. No such difficulty was expressed by counsel in the present case.

Critical to the case at bar, however, is the analysis set forth by the Menchaca court when it found that even assuming "defendant could hear and understand the answers given in Spanish, ... it is not thereby established that he spontaneously understood the testimony. As is generally the case, the record is replete with monosyllabic witness answers. Without a clear understanding of the questions, such testimony is essentially meaningless." (Ibid., original italics.) The record of the preliminary hearing in this case likewise contains monosyllabic witness answers.

In Menchaca, the unavailability of a second interpreter to assist the...