Gutierrez

*544 Opinion

Jorge Gutierrez appeals a judgment entered after a jury convicted him of kidnaping (Pen. Code, § 207) 1 and rape by force and by threats (former § 261, subds. (2) and (3)). Included among his contentions is his claim of prejudicial error resulting from the court’s evidentiary ruling barring any cross-examination of the investigating officer eliciting a response in Spanish. As we shall explain, we have concluded this limitation of cross-examination violated Gutierrez’ fundamental right of confrontation and cross-examination secured to him under the Sixth Amendment of the United States Constitution and article I, section 15 of the California Constitution. We therefore reverse the judgment.

Factual Background

Seventeen-year-old Lisa M. testified that in the early morning hours of June 7, 1980, Gutierrez forcibly raped her. Her testimony was corroborated by other witnesses and Gutierrez’ confession. Gutierrez described the sex as consensual love making.

Denial of Gutierrez ’ Sixth Amendment Right to Confront and Fully Cross-examine Officer Costello Requires Reversal.

Police officer Joe Gastello interviewed Gutierrez on June 9, 1980, at about 11 a.m. Vera Saldivar, a…

I concur in the well-reasoned views expressed by Justice Wiener and would add these further words in response to the concerns expressed by the dissent.

A simple reading of the colloquy between court and counsel quoted by the dissent makes reversal inevitable. The law is: “[W]here the gist of the case under consideration involves the uttering in a foreign language of certain words having a particular meaning in that language it may be necessary to have the actual words used in that language repeated in court by the witness who heard them, and in the same language in which they were spoken, and precisely as they were used in that language. ” (98 C.J.S. Witnesses, § 326, p. 27, and cases cited.) 5 Wigmore on Evidence, section 1393, page 146, agrees: “Moreover, the opponent is also entitled to cross-examine the interpreter so as to test the correctness of the translation . . . .” (Fns. omitted.) And the “interpreter may be required to repeat in the foreign language the words used by him,” citing Territory v. Kawano (1911) 20 Hawaii 469 ; Schnierv. People (1859) 23 111. 17 (Ibid.; fn. 5; italics added.)

*550 Thus the correctness of the interpretation may be challenged by a party and…

I must respectfully dissent.

Code of Civil Procedure section 185 states, “Every written proceeding in a court of justice in this state shall be in the English language, and judicial proceedings shall be conducted, preserved, and published in no other.” The wisdom of that section must be acknowledged when the court reporters try to transcribe foreign words they have never heard, much less understand, and when this reviewing court attempts to make sense out of a record of phonetically spelled meaningless (to us) foreign words. The trial court here did no more than seek compliance with this mandate. No constitutional right was abridged.

*551 The defendant was not confused or prejudiced by the court’s conduct. We need only look at the record to see the truth there was no denial of confrontation.

Earlier in the Evidence Code section 405 proceedings, the prosecutor asked Officer Joe Castello if he advised Gutierrez of his constitutional rights in English or Spanish and Castello replied it was done in Spanish. On cross-examination, Castello was asked what he said. The witness inquired whether the attorney wanted it repeated in Spanish and the attorney said yes. At this point, the…

Jorge Gutierrez appeals a judgment entered after a jury convicted him of kidnaping (Pen. Code, § 207) [1] and rape by force and by threats (former § 261, subds. (2) and (3)). Included among his contentions is his claim of prejudicial error resulting from the court's evidentiary ruling barring any cross-examination of the investigating officer eliciting a response in Spanish. As we shall explain, we have concluded this limitation of cross-examination violated Gutierrez' fundamental right of confrontation and cross-examination secured to him under the Sixth Amendment of the United States Constitution and article I, section 15 of the California Constitution. We therefore reverse the judgment.

Seventeen-year-old Lisa M. testified that in the early morning hours of June 7, 1980, Gutierrez forcibly raped her. Her testimony was corroborated by other witnesses and Gutierrez' confession. Gutierrez described the sex as consensual love making.

Police officer Joe Castello interviewed Gutierrez on June 9, 1980, at about 11 a.m. Vera Saldivar, a probation officer, was also present. Before starting his questioning, Castello first advised Gutierrez in Spanish of his…