People v. Clark

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…

I dissent. My disagreement with the majority opinion is directed to the conclusion that the use of a “non-Mirandized” statement for purposes of impeachment is reversible error. I view the essence of the majority conclusion, that use of a non-Mirandized statement falls within the statutory privilege exception to California Constitution, article I, section 28, subdivision (d), and survives the enactment of Proposition 8, as totally unsupportable in reason or law.

California Constitution, article I, section 28, subdivision (d), 1 is couched in clear, concise, unambiguous, and direct language. It states, “Right to Truth-in-Evidence. Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, 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. Nothing in this section shall affect any…

[Opinion certified for partial publication. [*] ]

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, subd. (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.

At approximately 9 p.m. on September 21, 1982, David Preszler robbed the Payless 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…