Opinion
Review Granted June 27, 1985.
Opinions on pages 1127-1306 omitted.
E. Stephen Temko, San Diego, for hen Temko, San Diego, for defendant and appellant.
John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Harley D. Mayfield, Asst. Atty. Gen., John W. Carney and Robert M. Foster, Deputy Attys. Gen., for plaintiff and respondent.
[212 Cal.Rptr. 8]OPINION
SONENSHINE, Acting Presiding Justice.
Defendant Alfonso Cervantes was convicted of the sale of heroin (Health & Saf. Code, § 11352). On appeal, he argues he was denied his constitutional right to an interpreter. We agree but nonetheless affirm.
In his original brief, Cervantes' attorney requested this court to independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071. We subsequently asked for a supplemental brief on the "borrowed interpreter" issue.
Now renumbered article VI, section 13, the provision reads, "No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice."
* * *
On May 27, 1982, an undercover narcotics agent and an informant ate at Cervantes' restaurant. The informant asked Cervantes whether he was familiar with a man named Jesse Ybarra (a known narcotics dealer). Cervantes said he knew him, but he was "a crook." Whether Cervantes then initiated a conversation about narcotics is in dispute.
Subsequent telephone exchanges and meetings between Cervantes and the agent generally concerned the following subjects: (1) the agent's preference for buying "chiva" (heroin), (2) the agent's inability to "front" the money, and (3) Cervantes' difficulty in finding a seller who would agree to the agent's terms. Three of the telephone conversations were recorded. At one of the meetings Cervantes showed the agent a sample of what the agent thought to be cocaine. The agent told Cervantes he was more interested in buying "chiva."
Eventually a sale was arranged. On the day the transaction was to occur, Cervantes took the agent to the back of the restaurant and showed him a baggie with a brown chunk inside. The agent indicated he had to return to his car to get money. When he reentered, he was followed by several police officers. Cervantes was arrested and eventually described where he had hidden the baggie. A laboratory analysis determined the brown chunk to be more than half an ounce of heroin.
During trial, the defense called three witnesses: Cervantes, a character witness, and the informant. The prosecution's case included extensive testimony by the agent, relevant portions of the tape recordings, testimony by a police officer who was present at the arrest, and testimony by a laboratory analyst.
Cervantes' defense was he did not have the specific intent to sell. He claimed he had been pressured into the deal and was merely an agent for the buyer.
Throughout the trial, Cervantes had the assistance of his own sworn, certified interpreter. The sole exception occurred when the interpreter was "borrowed" to interpret for the informant.
Cervantes spoke only broken English.
I
Article I, section 14 of the California Constitution gives a criminal defendant who is unable to understand English the right to an interpreter throughout the proceedings. The "borrowing" of a defendant's interpreter, to translate for witnesses, is a denial of that right. (People v. Aguilar (1984) 35 Cal.3d 785, 791, 200 Cal.Rptr. 908, 677 P.2d 1198; People v. Romero (1984) 153 Cal.App.3d 757, 760, 200 Cal.Rptr. 404.) This is so even when the defendant's interpreter is borrowed for a defense witness, as opposed to a prosecution witness. (In re Dung T. (1984) 160 Cal.App.3d 697, 709, fn. 5, 206 Cal.Rptr. 772.) It follows Cervantes was denied his constitutional right to an interpreter when his interpreter moved to the witness stand to translate for the informant.
The state argues Cervantes' interpreter was "shared" rather than "borrowed." We do not see how this distinction is determinative. In People v. Romero, supra, 153 Cal.App.3d at p. 761, 200 Cal.Rptr. 404, this court noted "... [N]othing short of a sworn interpreter at defendant's elbow will suffice. [Citations.]" Cervantes clearly did not have a sworn interpreter "at [his] elbow" during the informant's testimony.
[212 Cal.Rptr. 9]4 The state contends Aguilar announced a new rule of law and should not be applied retroactively. We disagree. Aguilar does not represent the "clear break from the past" necessary to support a tenable argument its holding should be prospective. (Donaldson v. Superior Court (1983) 35 Cal.3d 24, 37, 196 Cal.Rptr. 704, 672 P.2d 110.) In Aguilar, the Supreme Court simply defines the parameters of a right which existed since the amendment of article I, section 14 of the California Constitution in 1974. Furthermore, prior to Aquilar, several courts of appeal, including this one, had already recognized the right to an interpreter discussed in Aquilar. (E.g., People v. Romero, supra, 153 Cal.App.3d 757, 200 Cal.Rptr. 404; People v. Carreon (1984) 151 Cal.App.3d 559, 198 Cal.Rptr. 843; People v. Menchaca (1983) 146 Cal.App.3d 1019, 144 Cal.Rptr. 691; People v. Chavez (1981) 124 Cal.App.3d 215, 177 Cal.Rptr. 306.) Romero, Carreon, Menchaca, and Chavez are consistent with Aguilar, which does not overrule or disapprove them.
II
We must determine what standard of review should be applied to a denial of the right to an interpreter. The threshold question is whether the issue was resolved by the Supreme Court in Aguilar. The Third Appellate District held Aguilar establishes a standard of reversible error per se. (In re Dung T., supra, 160 Cal.App.3d at p. 710, 206 Cal.Rptr. 772.) We disagree.
In Aguilar, the Supreme Court analyzed the right to an interpreter under article I, section 14 of the California Constitution, as amended, and found a violation had occurred. The court then stated, "A reversal is required unless the defendant waived the constitutional right we have described." (People v. Aguilar, supra, 35 Cal.3d at p. 794, 200 Cal.Rptr. 908, 677 P.2d 1198.) This language may create the impression the court applied a standard of reversible error per se, but there is no indication the issue was ever raised or considered. Since "[i]t is axiomatic that cases are not authority for propositions not considered.... [Citation.]" (People v. Gilbert (1969) 1 Cal.3d 475, 482, fn. 7, 82 Cal.Rptr. 724, 462 P.2d 580), we conclude Aguilar leaves open the question of what standard of review is to be applied. We turn, therefore, to the standards which are potentially applicable.
A rule of automatic reversal is generally based upon the fundamental character of the right invaded, or the impossibility of assessing prejudice. (People v. Bigelow (1984) 37 Cal.3d 731, 744-745, 209 Cal.Rptr. 328, 691 P.2d 994.) Neither of these reasons appears to justify application of a reversible per se standard to the denial of the right to an interpreter.
While we do not wish to denigrate the importance of the right to an interpreter, very few rights are said to be "fundamental" in the sense courts will reverse violations without a showing of prejudice. Indeed, not all federal constitutional rights are so fundamental in character as to require a rule of automatic reversal. (People v. Carreon, supra, 151 Cal.App.3d 559, 198 Cal.Rptr. 843.) Further, it will sometimes be possible to determine there is no prejudice resulting from the absence of an interpreter. (See People v. Nieblas (1984) 161 Cal.App.3d 527, 531, 207 Cal.Rptr. 695.) This is because an interpreter may be borrowed or absent for only a very brief period of time, or, as in the instant case, a combination of circumstances may lead to that conclusion. Therefore, we do not apply a reversible per se standard to the denial of Cervantes' right to an interpreter.
The usual standard of review for violation of state constitutional guarantees is the one enunciated in Watson. However, the Watson standard was rejected in Carreon as being "inappropriate, if not unworkable" in light of "the number and variety of other constitutional rights affected by the services of a defense interpreter...." (People v. Carreon, supra, 151 Cal.App.3d at p. 575, 198 Cal.Rptr. 843.) Instead, Carreon adopted the standard applicable [212 Cal.Rptr. 10] to the issue of effective assistance of counsel in multiple representation cases. It did so because "effective assistance of counsel [is] a primary concern ..." in a borrowed interpreter case. (Ibid.) To establish prejudice, Carreon held a defendant need only show "an informed speculation that [his or her] right to effective representation was denied...." (Ibid.) This standard was later modified in People v. Rioz (1984) 161 Cal.App.3d 905, 207 Cal.Rptr. 903 to require a defendant show "only informed speculation that [his or her] right to a fair trial has been compromised...." (Id., at p. 913, 207 Cal.Rptr. 903.)
People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.
We agree the Watson standard is inappropriate. However, we think the Chapman test should be applied to the denial of the right to an interpreter, rather than the "informed speculation" standard adopted in Carreon and applied in Rioz and in People v. Resendes (1985) 164 Cal.App.3d 812, 210 Cal.Rptr. 609. We recognize the Chapman test and the "informed speculation" standard are substantially the same (see People v. Chacon (1968) 69 Cal.2d 765, 776, fn. 3, 73 Cal.Rptr. 10, 447 P.2d 106), but we see no reason to make the standard of appellate review more confusing by applying the Chapman test under a different name.
Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.
The "informed speculation" standard was apparently created in Shelton v. United States (D.C.Cir.1965) 343 F.2d 347, a case dealing with the absence of counsel at a preliminary hearing. It was later applied in a case involving lack of counsel at arraignment. (Anderson v. United States (D.C.Cir.1965) 352 F.2d 945.) In Lollar v. United States (D.C.Cir.1967) 376 F.2d 243, the "informed speculation" standard was applied to the issue of conflict of interest due to joint representation. The Lollar court noted it was in effect adopting the Chapman test, and the dissent stated the majority was relying upon Chapman. The "informed speculation" standard was eventually applied in California to cases involving possible conflicts of interest due to joint representation. (See Maxwell v. Superior Court (1982) 30 Cal.3d 606, 180 Cal.Rptr. 177, 639 P.2d 248.) Apparently the standard is now being interpreted in a different manner than it was originally, because the Carreon court suggests the "informed speculation" standard is less stringent than the Chapman test. (See People v. Rioz, supra, 161 Cal.App.3d 905, 913, 207 Cal.Rptr. 903.) In order to avoid this sort of confusion, we believe the more familiar Chapman test should be applied in borrowed interpreter cases.
The Chapman test is required "[w]here federal constitutional error is involved.... [Citation.]" (People v. Taylor (1982) 31 Cal.3d 488, 499, 183 Cal.Rptr. 64, 645 P.2d 115.) Although the denial of the right to an interpreter is not itself a federal constitutional error, it may directly affect a number of federal constitutional rights. These rights include a defendant's right to be present in the courtroom, the right to a fair trial (People v. Romero, supra, 153 Cal.App.3d at pp. 760-761, 200 Cal.Rptr. 404), the right to confront witnesses, and the right to effective assistance of counsel (People v. Carreon, supra, 151 Cal.App.3d at p. 574, 198 Cal.Rptr. 843). We find the potential impact on these basic federal constitutional rights warrants application of the test which the United States Supreme Court held necessary for review of federal constitutional error. (Chapman v. California, supra, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.)
The concurrence suggests when there has been a denial of the right to an interpreter we need only determine whether any other constitutional rights have been violated as a result. It is proposed we apply a reversal per se standard in cases where the right to consult with counsel has been infringed. It is unclear what standard of review is to be applied to invasions of the other federal constitutional rights.
[212 Cal.Rptr. 11]Under the Chapman test, an error cannot be held harmless unless the reviewing court is "able to declare a belief that it was harmless beyond a reasonable doubt." (Chapman v. California, supra, 386 U.S. at p. 24, 87 S.Ct. at 828.) The court "must weigh the impact of the error not only on the decision of the jury, but also on the course of the trial. [Citation.]" (People v. Stritzinger (1983) 34 Cal.3d 505, 520, 194 Cal.Rptr. 431, 668 P.2d 738.) The burden is on the beneficiary of the error to show there was no injury. (Ibid.)
In this case, no prejudice resulting from the denial of the right to an interpreter is apparent. The informant's testimony was insignificant with respect to either the prosecution's or defense's case. Except for the first meeting, the informant was not privy to the conversations at the restaurant between the agent and Cervantes. He participated in several telephone exchanges, but his testimony regarding their content was restricted to the fact he did not mention Jesse's or anyone else's name to Cervantes. The remainder of his testimony largely covered the events of the arrest which were not disputed, and the way in which he was paid for his work.
The informant confirmed the agent's testimony that Cervantes initiated the topic of obtaining narcotics at the first meeting.
Notably, the borrowing of the interpreter was suggested by defense counsel and Cervantes agreed. The judge told the interpreter to translate the questions into the microphone so Cervantes could understand them. Cervantes was to inform the judge if there was anything he could not understand. The judge was bilingual and apparently monitored the accuracy of the interpretation. Defense counsel was also bilingual, which meant he could check the accuracy of the translation and Cervantes could communicate with him if he desired. The evidentiary objections raised while the informant was on the stand were probably not translated, but there were only six of them and they were not significant.
At least seven times the judge either approved, explained, or corrected the interpretation of the informant's and Cervantes' testimony.
Defense counsel stated he could speak Spanish well enough to communicate with Cervantes, and when Cervantes was testifying defense counsel questioned the interpretation several times.
The first three objections took place during direct examination, the fourth and fifth during cross examination, and the sixth during redirect examination. They are as follows:
[212 Cal.Rptr. 12]Because Cervantes could understand the questions put to the informant as well as his answers, and because he could communicate with defense counsel, the trial was not "reduced to 'a babble of voices'.... [Citation.]" (People v. Aquilar, supra, 35 Cal.3d at p. 794, 200 Cal.Rptr. 908, 677 P.2d 1198.) Only the evidentiary objections were possibly incomprehensible; however, they were few in number and unimportant. Finally, the tangential relevance of the informant's testimony to either the defense or the prosecution's case supports the conclusion no injury resulted from the error.
We do not mean to imply it would be proper for defense counsel to act as a defendant's interpreter. Defense counsel cannot fulfill his or her primary function if forced to interpret questions, objections, and open court colloquies. (See People v. Aguilar, supra, 35 Cal.3d at p. 791, fn. 5, 200 Cal.Rptr. 908, 677 P.2d 1198.) However, in this case defense counsel did not need to act as an interpreter. The major significance of his ability to speak Cervantes' language lay in the opportunity it gave Cervantes to communicate with him. This ability to communicate served to foster, rather than impede, defense counsel's primary role.
We believe the denial of Cervantes' right to an interpreter was harmless beyond a reasonable doubt. Therefore, the judgment is affirmed.
WALLIN, J., concurs.
CROSBY, Associate Justice, concurring.
Since the "borrowed interpreter" cases generally include an interruption in the defendant's ability to communicate with counsel, I believe In re Dung T. (1984) 160 Cal.App.3d 697, 710-711, 206 Cal.Rptr. 772 is correct in applying a per se or automatic reversal standard in the usual case (People v. Aguilar (1984) 35 Cal.3d 785, 200 Cal.Rptr. 908, 677 P.2d 1198): "Appellant was entitled to an interpreter at his side throughout the proceedings. '[T]he "borrowing" of the interpreter, the accused's only means of communicating with defense counsel and understanding the proceedings, was a denial of a constitutional right.' ( [People] v. Aguilar, supra, 35 Cal.3d at p. 791 [200 Cal.Rptr. 908, 677 P.2d 1198], fn. omitted.) The judgment must be reversed unless the record shows he made a knowing and intelligent waiver of this right. (At p. 794 [200 Cal.Rptr. 908, 677 P.2d 1198].)" (In re Dung T., supra, 160 Cal.App.3d at p. 709, 206 Cal.Rptr. 772, fn. omitted.)
People v. Carreon (1984) 151 Cal.App.3d 559, 198 Cal.Rptr. 843, embraced in substance by the majority, is deservedly criticized in Dung T. for its requirement that "an informed speculation that the defendant's right to effective representation was denied need be shown [before he is entitled to relief on appeal]." (Id., at p. 575, 198 [212 Cal.Rptr. 13] Cal.Rptr. 843.) Carreon reaches its dubious conclusion based in part on the following: "A violation of the right to consult with counsel is grounds for reversal only where it appears to have materially affected the regularity of the accused's trial and conviction." (Id., at p. 574, 198 Cal.Rptr. 843.) Three cases are cited to support this statement in Carreon: People v. Pope (1979) 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859; People v. Boyden (1953) 116 Cal.App.2d 278, 285, 253 P.2d 773; and People v. Lathrom (1961) 192 Cal.App.2d 216, 231, 13 Cal.Rptr. 325. They are poor authority. Pope is a landmark case; but it deals with ineffective assistance of counsel, not denial of counsel. Boyden deals with a jailer's refusal to permit counsel to visit a prisoner between arrest and arraignment, also considerably off the point before us. Lathrom is apt; but it supports the Dung T. result, not Carreon's.
In Lathrom the defendant was unable to communicate with counsel during part of the trial for the simple reason the prosecution had unexpectedly and improperly called his attorney as a witness. The Court of Appeal was less than pleased with this maneuver: "It was appropriately stated in Glasser v. United States [1942] 315 U.S. 60, 75[-]76 [62 S.Ct. 457, 467-468, 86 L.Ed. 680] that the right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from a denial. Here, too, there was prejudice to the defendant, deliberately brought about by the prosecution without necessity in the due prosecution of the case and we think under the circumstances, it was grossly unfair to the defendant. The case should have been tried as though section 4 1/2 of article VI of the Constitution of California never existed. 1 It is a dangerous state of mind to proceed upon the theory that the prosecution can chip away or erode some of the defendant's fundamental constitutional rights and then attempt to have the judgment of conviction affirmed upon the basis that although the defendant's constitutional rights were deliberately violated, nevertheless he should stand convicted and go to the state prison because the violation by the prosecution was not too serious in the opinion of the prosecution." (People v. Lathrom, supra, 192 Cal.App.2d at p. 231, 13 Cal.Rptr. 325.) The judgment was reversed.
According to Lathrom, "A basic part of the right [to counsel] is the ability to consult and confer whenever the defendant and the attorney deem it necessary and proper." (Id., at p. 229, 13 Cal.Rptr. 325.) And, in its latest expression on the subject, our Supreme Court has held denial of the right to counsel is reversible per se, because of "the impossibility of assessing the effect of the absence of counsel upon the presentation of the case." (People v. Bigelow (1984) 37 Cal.3d 731, 745, 209 Cal.Rptr. 328, 691 P.2d 994.) Consequently, the per se rule must apply in any borrowed interpreter case where communications between attorney and client are thereby cut off.
That is not this case, however. Here, counsel represented he spoke sufficient Spanish to communicate with his client, and he occasionally offered the definition of certain words in that language. The bilingual trial judge also assisted the interpreter. Indeed, it seems highly probable the defendant, who has lived in the United States since 1968 and during his testimony attempted to answer questions in English before they were translated into Spanish, was bilingual as well. Cervantes obviously had another way to communicate with counsel. Thus, it is plain there was no interference with the right to counsel.
Nor was there a significant violation of any of the other rights often implicated in the interpreter borrowing cases; and as to [212 Cal.Rptr. 14] them, I believe Carreon is correct: They are not absolutes which demand automatic reversal. (People v. Carreon, supra, 151 Cal.App.3d at p. 574, 198 Cal.Rptr. 843.) Confrontation with the informant was not affected here. The defendant was "present" in all senses of the word and was not, in effect, removed from the courtroom. He was not deprived of an understanding of the proceedings; everything was translated except for a few very minor evidentiary objections and rulings. Finally, the fairness of the trial was hardly impaired by the procedure, which was proposed by defense counsel and approved by Cervantes, albeit sans the niceties required of a Boykin-Tahl waiver. (Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274; In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449; see People v. Aguilar, supra, 35 Cal.3d at p. 794, 200 Cal.Rptr. 908, 677 P.2d 1198 and People v. Chavez (1981) 124 Cal.App.3d 215, 177 Cal.Rptr. 306.)
Although I concur with my colleagues' result, the search for yet another test on appeal seems unnecessarily divisive.
We believe this approach ignores the fact that denial of the right to an interpreter is an error in and of itself, independent from the federal constitutional rights it may affect. We note it will often be difficult to ascertain whether there has been a separate violation of the right to effective assistance of counsel, the right to be present at trial, the right to confront witnesses, or the right to a fair trial. We think there should be one standard of review for the denial of the right to an interpreter, and that standard should take into account the difficulty of assessing any impact on other rights.
However, if in a particular case it can be shown there was a substantial impairment of a federal constitutional right (such as the right to assistance of counsel), and if a substantial impairment of that right requires reversal, then presumably the case will be reversed. (Cf. People v. Lathrom (1961) 192 Cal.App.2d 216, 192 Cal.Rptr. 216.) Since the issue is not before us here, we do not address it further.
(1) "Q Do you know a number of people in Santa Ana who use drugs?
"Mr. Stern: Objection. Relevancy.
"The Court: If you can tie it into the case, I would allow the question. To the general question the objection will be sustained.
(2) "Q While you are working in the fields, are you trying to get information about drugs?
"Mr. Stern: Objection, your Honor. Relevancy at this point.
"The Court: Will be sustained. His role has been fairly well established.
(3) "Q Did you go to a police briefing before the arrest?
"A Yes
"Q Did you understand what was being said at that meeting?
"A Only a part.
"Q Do you remember anyone saying anything about looking for other people who might be involved?
"Mr. Stern: Objection. Calls for hearsay.
"The Court: It does, but in all fairness to the defense, that area has been fairly well explored. So even though you have a technically good objection, it's going to be overruled.
"Repeat the question for the interpreter, please.
"(Record Read.)
"The Witness: How is that?
"Q By Mr. Harris: Do you remember anything being said about looking for other people who might be involved in this case?
"A That some were looking for other people?
"Q Yes.
"The Interpreter: His chair was squeaking. I didn't hear.
"The Witness: They were looking for Mr. Ybarra.
(4) "Now, why did you go into the La Gloria Restaurant in May that first time before you had ever been in that before?
"A We wanted to eat Mexican food.
"Q And while you were there, is that when you also--or Mr. Nava decided to mention the name of Jesse to see if anything would happen?
"The Interpreter: Could you repeat the question?
"Mr. Harris: Excuse me, your Honor. I'd like to object to that as calling for speculation on someone else's frame of mind.
"Mr. Stern: I will repeat it in just his frame of mind, your Honor.
"Q By Mr. Stern: While you were in there eating, did you decide then yourself to mention the name Jesse, or was Jesse mentioned by Mr. Nava?
"A I mentioned it.
(5) "Q In fact, you only yourself made one phone call; isn't that true?
"A Only one I did alone.
"Q By yourself, and wasn't that just a day or two before the arrest occurred?
"Mr. Harris: Excuse me, your Honor. I have to object as being leading.
"Mr. Stern: It's cross examination.
"The Court: It's cross examination.
"Mr. Harris: It's a hostile witness. Okay. Never mind.
"The Court: It was your witness, so I think I have to give the prosecutor the latitude of cross examination.
"You may proceed, Mr. Stern.
"Mr. Stern: I don't think I quite finished the question.
"Q By Mr. Stern: Isn't it true that one phone call you made by yourself occurred just before the day of the arrest?
"A The day before.
(6) "Q Did you ever locate Jesse Ybarra?
"Mr. Stern: Objection. Vague as to time.
"The Court: Just answer yes or no.
"The Witness: No."