Opinion

People v. Gutierrez

  • 137 Cal. App. 3d 542
  • 187 Cal. Rptr. 130
  • 1982 Cal. App. LEXIS 2117
Court
California Court of Appeal
Filed
Nov 19, 1982
Status
Published
Author
Staniforth
On the bench
Wiener, Staniforth, Cologne
Cited by
8 cases
Authority
More cited than 9.4%

The opinion

STANIFORTH, J.

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 “[independent evidence may be introduced to show that the interpreter’s version was incorrect, or the interpreter himself may be placed on the witness stand and cross-examined as to what the witness had said.” (2 Wharton, Criminal Evidence, § 404, p. 268; fn. omitted; see Annot. (1971) 36 A.L.R.3d 276 .) And where the arresting officer is called upon to interpret as to a defendant’s statement, there is an inherent possibility of bias and consequently a violation of the defendant’s due process. (Gonzales v. State (Del. Super. 1977) 372 A.2d 191, 192-193 , and cases cited.) The foregoing analysis of correct procedures follows logically from California Evidence Code section 750 to the effect that an interpreter “is subject to all the rules of law relating to witnesses.”

The foregoing authorities demonstrate that the rudimentary demands of a fair trial require Sixth Amendment rights to confrontation be preserved when the witness testifies in a foreign language. (See Wigmore, supra, § 1393, pp. 143-146, § 1397, p. 155.) Here Castello testified to inculpatory statements allegedly made by Gutierrez which would establish the forcible nature of Gutierrez’ conduct, an essential element of the prosecution’s case. Therefore, cross-examination as to the actual words used by Gutierrez was crucial to the defense. Had defense counsel been permitted to discover the exact words used by Gutierrez, in Spanish, not only would the literal meaning of defendant’s statement be presented to the jury, but the veracity and extent of Castello’s own linguistic interpretative abilities would be elicited.

Gutierrez was deprived of his right to confront Castello since Castello’s testimony was given under circumstances in which defense counsel was not afforded an opportunity for complete and adequate cross-examination. The error was constitutional, involving a violation of the Sixth and Fourteenth Amendments. (People v. Gibbs (1967) 255 Cal.App.2d 739, 746 [ 63 Cal.Rptr. 471 ].) To be denied the right of cross-examination on the most critical bit of evidence in the case resulted in an unfair trial. I join in the reversal of the conviction.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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