People v. May

• Citation: 729 P.2d 778,43 Cal.3d 436,233 Cal.Rptr. 344
• Court: United States State Supreme Court (California)
• Decision Date: 02 January 1987
• Parties: Previously published at 43 Cal.3d 436 43 Cal.3d 436, 729 P.2d 778 The PEOPLE, Plaintiff and Respondent, v. Michael Dennis MAY, Defendant and Appellant. Crim. 24991.

Page 344

233 Cal.Rptr. 344

Previously published at 43 Cal.3d 436

43 Cal.3d 436, 729 P.2d 778

The PEOPLE, Plaintiff and Respondent, v. Michael Dennis MAY, Defendant and Appellant.

Crim. 24991.

Supreme Court of California,

In Bank.

Jan. 2, 1987.

Rehearing Granted March 26, 1987.

[729 P.2d 779] [43 Cal.3d 438] Linn Davis, under appointment by the Supreme Court, for defendant and appellant.

Frank O. Bell, Jr., Public Defender, and George L. Schraer, Deputy Public Defender, as amici curiae on behalf of defendant and appellant.

John K. Van de Kamp, Atty. Gen., Mark Alan Hart, Gary R. Hahn and Shalene A. Honnaka, Deputy Attys. Gen., for plaintiff and respondent.

John J. Meehan, Dist. Atty., Alameda, Thomas J. Orloff and William M. Baldwin, Asst. Dist. Attys., and Christopher N. Heard, San Jose, as amici on behalf of plaintiff and respondent.

[43 Cal.3d 439] MOSK, Justice.

In People v. Disbrow (1976) 16 Cal.3d 101, 113, 127 Cal.Rptr. 360, 545 P.2d 272, we 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 [v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694] and its California progeny." (Italics added.) In so holding we overruled People v. Nudd (1974) 12 Cal.3d 204, 115 Cal.Rptr. 372, 524 P.2d 844, [729 P.2d 780] in which a bare majority of this court had adopted the rule laid down by an equally bare majority of the United States Supreme Court in Harris v. New York (1971) 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1--i.e., that statements inadmissible as affirmative evidence because of Miranda violation can nevertheless be used for impeachment if they are "voluntary"--and we declared that "Harris is not persuasive authority in any state prosecution in California." (16 Cal.3d at p. 113, 127 Cal.Rptr. 360, 545 P.2d 272.)

We granted review in this case to determine whether the Disbrow rule was nullified by article I, section 28, subdivision (d), of the California Constitution (hereinafter section 28(d)), adopted by the voters as part of Proposition 8 at the June 1982 Primary Election, and if it was not, whether we should readopt the Harris rule and accordingly overrule Disbrow. For the reasons given below we conclude that the Disbrow rule survives the adoption of section 28(d) and should not be overruled.

I

In February 1983 Janice F. lived in a condominium on Milpas Street in Santa Barbara. Seeking a roommate, she placed an advertisement in a local newspaper. On Saturday, February 26, she spoke by telephone with a man about the rental, then briefly interviewed him at the condominium. He gave "Dennis" as his first name and a one-syllable last name.

Later that day Laura Jestings drove to the Chili Factory in Santa Barbara to meet friends. After she parked, a man walked briefly with her and mentioned that he was from Canoga Park, was in Santa Barbara for the weekend, and had previously been to the Chili Factory. As she was returning to her car from the Chili Factory, she again saw the man. She entered her car and locked the door. He approached and tapped on the window, and she rolled it down. After a brief discussion he pointed a gun at her and ordered her to open the door and move over. He got into the driver's seat and placed [43 Cal.3d 440] the gun at her waist. He directed her to put her hands behind her back so that he could handcuff her. She resisted, jumped out of the car, and ran away. The man fled, taking neither the car nor anything therein.

On the afternoon of the following day--Sunday, February 27--the man who had spoken with Janice F. about sharing her condominium called and asked if he could come and talk with her further about the matter; she agreed. After the man arrived, they had a brief discussion about the condominium. Suddenly he grabbed her from behind, put his left hand over her mouth, placed a gun at her side, told her not to scream or to make him nervous, forced her up the stairs into a bedroom and handcuffed her behind her back. He asked if she had anything valuable, and she said no. He placed a bandana in her mouth as a

gag and removed two rings she was wearing. Next, he put her on the bed on her back, removed her pants and underpants, pushed up her sweatshirt and brassiere to expose her breasts, bit her around the nipple of her right breast, penetrated her with his finger, and raped her. He then tied her hands and took off the handcuffs, replaced her pants and properly arranged the clothing on her upper body, and finally left. At the time of the attack, he was wearing shoes that appeared to be brown with black tones

In the course of their investigation into the two sets of crimes, the police arrested defendant. Immediately after he was advised of his Miranda rights, he stated: "Before I answer a thing I want an attorney present here...." Without providing him with an attorney, however, the police interrogated him and elicited, in addition to denials of involvement in the crimes, various statements that had a tendency to show he was the perpetrator. For example, he stated that he had visited the Chili Factory, was in Santa Barbara on February 26 and 27, 1983, owned handcuffs, and had owned handguns.

Defendant was charged with the following crimes against Janice F.: burglary, sexual penetration with a foreign object, rape, [729 P.2d 781] robbery in an inhabited dwelling, assault with a deadly weapon, and false imprisonment. He was also charged with the following crimes, among others, against Jestings: assault with a deadly weapon and assault with intent to commit rape. He pleaded not guilty.

Prior to trial defendant moved under Disbrow to bar any use of his statements to the police on the ground they were obtained in violation of his Miranda rights. Insofar as the motion sought to bar the prosecution from using the statements in its case in chief, it was impliedly granted. Otherwise, however, it was denied in the following ruling:

"It appears to the Court that under Proposition 8, the Federal law must be applied, and the Federal standard must be applied as to the use of statements in violation of the Miranda rule.

"...

[43 Cal.3d 441] "In this case, ... there was a specific affirmative statement by the defendant that he wished to take advantage of his rights; that is, have an attorney, and that is repeated later on in the conversation as well. No question that it did not comply with Miranda....

"...

"The Court does find that the statements were not coerced; that there is no indication of coercion in the statements by length of the interview, or by methods used, or promises made; that there was no indication that if he talked, there would be a deal, that he would get off better if he did.

"...

"So the ruling of the court is that under Harris, using the federal test, they would be usable as impeachment testimony by the prosecution, if otherwise appropriately usable as impeachment testimony."

After the ruling defense counsel stated that defendant "will not be testifying, then, under compulsion of the ruling. We don't want to be subjected to the possibility of cross-examination on that particular statement."

At trial each of the victims described the attack she had suffered; Janice F. positively identified defendant as her assailant, and Jestings stated he looked very similar to the man. Another woman, one Kathleen C., testified that in January 1983 she advertised in a local paper called Easy Ad for a roommate to share her apartment in San Luis Obispo; a man responded and subsequently attacked her; the incident was similar to that involving Janice F.; and the assailant was defendant.

One Larry Slayton also testified on behalf of the prosecution. On a Sunday in February 1983, defendant, who was carrying a gun, picked him up at his home and drove to Santa Barbara. Defendant said he was going to see a woman there about an apartment and intended to rape her. Arriving in Santa Barbara, he drove to a

block on Milpas Street--which proved to be near Janice F.'s condominium--and parked. He took out a pair of handcuffs and put them in his pocket. As he got out of the car, he told Slayton that if anything happened he should go. Slayton waited about five minutes and then left. In the early morning of the following day, defendant telephoned him and asked to be picked up; Slayton said he would, but did not. Later that day defendant saw him, became very angry and tried to choke him. He then displayed some rings and said, "This is all I got out of this, and if you [43 Cal.3d 442] would have been there, we could have got stereo components, stereo and a TV." Defendant told him they were going back to Santa Barbara to retrieve his gun, which he said he had had to "stash." Slayton ran; defendant gave chase threatening to kill him, but Slayton eluded him

Two experts testified for the prosecution. A document examiner was of the opinion that defendant had signed a registration form, giving "Dennis Burke" as his name and "Canoga Park" as his place of residence, in order to obtain a room at the Hope Ranch Motel--which was located about 400 yards from the Chili Factory--for Saturday, February 26, 1983. A serologist was of the opinion that seminal fluid [729 P.2d 782] stains found on the clothing worn by Janice F. and Kathleen C. at the time of attack could have been produced by defendant.

The prosecution also presented physical evidence linking defendant to the crimes, including two items found at his home: a pair of brown shoes with black spots, and a pair of handcuffs.

In its case and through cross-examination of the prosecution's witnesses, the defense attacked the testimony linking defendant to the crimes and tried to show that Slayton was lying in order to...