People v. Kroncke

*1558 CORRIGAN, Acting P. J., Concurring and Dissenting.

I respectfully dissent from the conclusion of my learned colleagues with regard to appellant’s felony conviction. This case involves a very narrow issue: the scope of a motorist’s responsibility to stop and provide identifying information under Vehicle Code section 20003.

Vehicle Code section 20003 as enacted by the Legislature essentially requires a motorist involved in an accident causing death or injury to do two things, 1) stop at the scene and 2) provide identifying information about himself, the car and the owner. 1 The majority adds an additional requirement: the affirmative disclosure to a police officer that the motorist was involved in the accident. In amending the statute by judicial gloss, the majority ignores settled rules of statutory construction, violates the separation of powers and runs afoul of the Fifth Amendment.

I. Judicial Legislation

The first difficulty is that the majority seeks to make criminal something . the Legislature has not. The duly enacted law makes it a crime to fail to stop and provide identifying information. The majority would declare it a crime to fail to explicitly admit involvement in an accident resulting in death or injury. The majority asserts the statutory language demonstrates that the Legislature intended to require this admission. I disagree. In referring to “a driver involved in an accident” the statute defines the class of drivers compelled to stop and provide identification. It does not, by its' plain language, compel the explicit admission of involvement. If the language is ambiguous, standard rules of construction require that a statute imposing penal consequences be narrowly construed. (See generally, 1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Introduction to Crimes, § 28, pp. 37-38.) 2 When the government requires its citizens to do something under threat of penal consequence, its pronouncement must be clear. A citizen is *1559 not obligated to guess what conduct is required or suffer a criminal penalty if he divines wrongly. He is required to do what the law says, but no more. This concept is a venerable one. Over 100 years ago, Justice Bradley in Boyd v. United States (1886) 116 U.S. 616, 627 [ 6 S.Ct. 524, 530-531 , 29 L.Ed. 746 ] quoted Lord Camden who wrote a century before Boyd. In Entick v. Carrington and Three Other King’s Messengers (1765) 19 Howell’s State Trials 1029, 1066, Lord Camden wrote: “If it is law, it will be found in our books; if it is not to be found there, it is not law.” If the Legislature wants to clarify its requirement, it is certainly free to do so. We are not empowered to criminalize conduct by judicial ukase, or to punish that which the Legislature has not brought within its penal reach. To attempt to do so is a violation of the separation of powers provision of the California Constitution. (Art. HI, § 3; see also People v. Lim (1941) 18 Cal.2d 872 [ 118 P.2d 472 ]; Chapman v. Aggeler (1941) 47 Cal.App.2d 848, 853 [ 119 P.2d 204 ].) Even if the Legislature had passed the legislation proposed by the majority, it would run afoul of the protections of the Fifth Amendment.

It is the majority’s expansion of the statute that creates the constitutional infirmity, as will be discussed below. The statute as written is sound. We should construe the statute narrowly to achieve its purpose. The aim of the statute is to promote the satisfaction of civil liabilities arising from automobile accidents. (Maj. opn., ante, at pp. 1546-1547; California v. Byers (1971) 402 U.S. 424, 430 [ 91 S.Ct. 1535, 1539 , 29 L.Ed.2d 9 ] (Byers).) To achieve this purpose, the Legislature recognized that we live in an increasingly anonymous society. If motorists could leave the scene of an accident without identifying themselves, the satisfaction of civil liability would be made almost impossible. Thus, the law requires a motorist to stop and provide identification before receding into the nameless crowd. Armed with that identity, a civil litigant, or criminal investigator can conduct further investigation and seek appropriate legal redress. 3 The Legislature enacted a statute designed to secure identity. The majority rewrites it to be a statute which facilitates the building of a case.

The majority relies in part on People v. Monismith (1969) 1 Cal.App.3d 762 [ 81 Cal.Rptr. 879 ] (Monismith), the opinion of a two-judge panel. The *1560 case did reach the conclusion noted by the majority. However, the opinion is bereft of either apposite authority or compelling logic. The Monismith court accurately pointed out that the statute “is designed to prevent the driver of a car involved in an accident from leaving the scene without furnishing information as to his identity.” (Id. at p. 766, italics added.) The court then vaulted to a conclusion it did not even attempt to logically defend: “It seems equally clear that the driver of a vehicle involved in an accident can furnish such identification only by identifying himself as the driver of the vehicle involved in the accident.” (Ibid.) Such a conclusion is not clear at all.

A driver can comply with the statute by stopping and providing the statutorily required data. Such conduct would fulfill the statutory goal of preventing drivers from leaving the scene unidentified. If, having stopped and given the facts enumerated by statute, the driver’s involvement is evident, or later discovered, so be it. If not, “our accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by . . . compelling it from his own mouth.” (Miranda v. Arizona (1966) 384 U.S. 436, 460 [ 86 S.Ct. 1602, 1620 , 16 L.Ed.2d 694 , 10 A.L.R.3d 974 ].) The Monismith court, in its brief opinion, did not address the issue of testimonial communication in any way. The Monismith court did not do so because it recognized the immunity articulated by the California Supreme Court in Byers v. Justice Court (1969) 71 Cal.2d 1039 [ 80 Cal.Rptr. 553 , 458 P.2d 465 ]. (Monismith, supra, 1 Cal.App.3d at p. 767 .) Only later did the United States Supreme Court decide Byers.

The majority writes that “Monismith has been the law of this state for nearly 30 years without drawing criticism from any published case.” (Maj. opn., ante, at p. 1546.) In the 30 years since Monismith was decided it has also never been cited as authority for the majority’s proposition. Indeed, it has been cited in a grand total of one published decision. People v. Bautista (1990) 217 Cal.App.3d 1 [ 265 Cal.Rptr. 661 ], referred to Monismith in deciding whether a Vehicle Code section 20001 conviction was a crime of moral turpitude which could be used to impeach an accused burglar. It must be remembered that Monismith was decided when the law of California, recognizing the Fifth Amendment problem, extended use immunity to one who admitted he had been in an accident. The case has not been tested in the 30 years since its publication. Its vitality in the wake of Byers is suspect at best. Monismith is far too slender a reed to support the significant constitutional conclusion the majority seeks to build upon it.

II. The Fifth Amendment

It should be noted at the outset that this kind of case will arise but rarely. In the vast majority of instances, if a driver stops his car at the scene of a *1561 death or injury-causing accident, it will be evident from the observable circumstances such as body damage, paint transfers and so on that the car was, indeed, involved in the accident. Other witnesses may have seen the accident; so involvement will be clear and the only outstanding question will be identity. Here we deal with the unusual case in which the involvement is not evident. In such a case, can the statute require a motorist to provide law enforcement with the majority’s compelled admission? Resolution of the question turns on the extent of the Fifth Amendment’s protection against self incrimination. This inquiry, in turn, revolves around whether such a disclosure is testimonial in nature and whether it involves a substantial risk of self-incrimination.

A. Testimonial Communications

The United States Supreme Court has addressed the testimonial question in a number of different contexts. Examination of this body of precedent reveals that the disclosure in question here is testimonial.

In Malloy v. Hogan (1964) 378 U.S. 1 [ 84 S.Ct. 1489 , 12 L.Ed.2d 653 ], the court held the Fifth Amendment limitations on governmental action apply to the states under the authority of the Fourteenth Amendment. In doing so the court observed: “Governments, state and federal, are thus constitutionally compelled to establish guilt by evidence independently and freely secured, and may not by coercion prove a charge against an accused out of his own mouth. Since the Fourteenth Amendment prohibits the States from inducing a person to confess through ‘sympathy falsely aroused,’ [citation], ... it follows a fortiori that it also forbids the States to resort to imprisonment, as here, to compel him to answer questions that might incriminate him.” ( 378 U.S. at p. 8 [ 84 S.Ct. at p. 1493 ].) The court went on to observe: “The Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement — the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty ... for such silence.” (Ibid.)

The Supreme Court examined the scope of the privilege two years later in Schmerber v. California (1966) 384 U.S. 757 [ 86 S.Ct. 1826 , 16 L.Ed.2d 908 ] (Schmerber). Following an accident, Schmerber had been arrested for drunk driving. Schmerber’s blood was drawn, without his consent,' at the direction of a police officer. The blood sample revealed the presence of alcohol. Schmerber argued that compelling him to give a blood sample violated his Fifth Amendment privilege. In ruling to the contrary the court held: “[T]he privilege protects an accused only from being compelled to *1562 testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature, . . (Id. at p. 761 [86 S.Ct. at p. 1830].)

Doe v. United States (1988) 487 U.S. 201 [ 108 S.Ct. 2341 , 101 L.Ed.2d 184 ] turned squarely upon an interpretation of the meaning of the term “testimonial.” Doe claimed the Fifth Amendment prevented the government from requiring that he sign a release authorizing foreign banks to turn over certain records. The court concluded that the signing of the release was not a “testimonial communication.” Justice Blackmun explained: “[I]n order to be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.” ( 487 U.S. at p. 210 [ 108 S.Ct. at p. 2347 ].) “It is the ‘extortion of information from the accused,’ [citation], the attempt to force him ‘to disclose the contents of his own mind,’ [citation], that implicates the Self-Incrimination Clause. [Citation.]” (Id. at p. 211 [ 108 S.Ct. at p. 2348 ].) “These policies [upon which the privilege is founded] are served when the privilege is asserted to spare the accused from having to reveal, directly or indirectly, his knowledge of facts relating him to the offense or from having to share his thoughts and beliefs with the Government.” (Id. at p. 213 [ 108 S.Ct. at p. 2349 ], italics added.)

Numerous cases have concluded that a variety of behaviors and disclosures are nontestimonial in nature. Thus, individuals may be required to provide fingerprints (People v. Bryant (1969) 275 Cal.App.2d 215 [ 79 Cal.Rptr. 549 ]), give blood samples ( Schmerber, supra, 384 U.S. 757 ), stand in a lineup (United States v. Wade (1967) 388 U.S. 218 [ 87 S.Ct. 1926 , 18 L.Ed.2d 1149 ]), produce handwriting exemplars (Gilbert v. California (1967) 388 U.S. 263 [ 87 S.Ct. 1951 , 18 L.Ed.2d 1178 ]), wear certain clothing (Holt v. United States (1910) 218 U.S. 245 [ 31 S.Ct. 2 , 54 L.Ed. 1021 ]; People v. White (1968) 69 Cal.2d 751 [ 72 Cal.Rptr. 873 , 446 P.2d 993 ]), and turn over records or other items (Fisher v. United States (1976) 425 U.S. 391 [ 96 S.Ct. 1569 , 48 L.Ed.2d 39 ]). An analysis of this body of authority teaches that a testimonial communication is one in which a person reveals knowledge or information from his own mind. Conversely, if all that is required is the production of “real or physical evidence” or noncommuni-cative conduct, the privilege is not violated. “[T]he protection of the privilege reaches an accused’s communications, whatever form they might take, . . .” (Schmerber, supra, at pp. 763-764 [86 S.Ct. at p. 1832].)

What the majority would require, under compulsion of fine or criminal confinement for failure, is the production of testimonial information, communicative information of the motorist’s “knowledge of facts relating him to the offense,” of the “contents of his own mind.”

*1563 The majority takes issue with the conclusion that a compelled admission that a driver was involved in an accident causing death or injury is a testimonial communication. “We fail to see how disclosing such identifying information is any less ‘testimonial’ than disclosing that he was the driver of a vehicle involved in an accident. . . . While any of this information could provide a link leading to criminal prosecution, the United States Supreme Court has concluded the Fifth Amendment does not make [the] statute[]. . . unconstitutional.” (Maj. opn., ante, at p. 1555.) The reality is thát merely providing identification is fundamentally different from admitting involvement in an accident causing death or injury. In Byers, Justice Burger classified such identifying information as “neutral.” (Byers, supra, 402 U.S. at pp. 431-432 [91 S.Ct. at pp. 1539-1540].) The majority cites not a single case holding that providing identification is a testimonial communication or implicates the Fifth Amendment.

On the contrary, numerous cases have upheld the compulsion of identification, even by those in custody and upon specific questioning by law enforcement. (See, e.g., People v. Hall (1988) 199 Cal.App.3d 914 [ 245 Cal.Rptr. 458 ] and People v. Powell (1986) 178 Cal.App.3d 36 [ 223 Cal.Rptr. 475 ].) The question in determining whether a disclosure is testimonial is not, as the majority implies, whether the disclosure facilitates further investigation of a crime. Standing in a lineup or providing fingerprints obviously does so. The question, as the Supreme Court has explained, is whether the state has compelled an individual “to disclose the contents of his own mind”; to reveal “his knowledge of facts relating him to the offense.” Indeed, it is difficult to imagine a more direct compulsion of one’s “knowledge of facts relating him to the offense” than to compel him to reveal he killed or injured someone while driving.

As the majority points out, 4 the act of stopping and providing identification carries with it some implicit meaning. Most conduct does. Of course, a motorist may stop and produce identification for reasons other than admitting culpability. He may stop as a witness. He may stop to aid the injured. He may stop out of curiosity. Even if one interpretation of such conduct supports an inference of involvement, it is not the only reasonable conclusion available. The majority would compel a motorist to remove all doubt by confessing involvement.

The majority quite rightly notes the Supreme Court’s several references to balance. It is precisely at the point between nontestimonial conduct and *1564 explicit admission that the court strikes the all-important balance. The majority’s central error is that they place the scales in the wrong place. Rather than acknowledging the court’s reliance on the long-standing concept of testimonial assertions, the majority sets the balance elsewhere, concluding that compulsion of an explicit admission is permissible if the motives are pure. No court has gone that far; nor should we.

The majority accurately observes: “By describing this disclosure as a ‘neutral act,’ the [Byers] court was merely saying that compulsory self-identification of a driver in an accident does not warrant protection under traditional Fifth Amendment jurisprudence.” (Maj. opn., ante, at p. 1551.) They go astray with their next sentence which contains the majority’s rationale, not that of the Supreme Court: “This is because such a compulsory disclosure, while it may reveal that the person was a driver involved in an accident, identifies, but does not necessarily implicate anyone in criminal conduct.” (Ibid.) The majority’s conclusion is an unsound extension of the Byers property damage scenario. A motorist legally compelled to admit he has just killed or injured someone directly implicates himself and runs a substantial risk of incrimination, bringing the Fifth Amendment into play.

The majority attempts to avoid the conclusion that producing identification is not testimonial by noting that doing so “could provide a link leading to criminal prosecution.” (Maj. opn., ante, at p. 1555.) As indicated earlier, a Fifth Amendment analysis often involves two issues: 1) whether the information is testimonial; and 2) whether its compulsory revelation presents a significant risk of incrimination. The “link in the chain” question relates to the risk of incrimination, not the testimonial nature of the information.

B. Risk of Incrimination

The Supreme Court has also visited the issue of whether a compelled disclosure presents a substantial risk of incrimination in a number of cases. One such case is Marchetti v. United States (1968) 390 U.S. 39 [ 88 S.Ct. 697 , 19 L.Ed.2d 889 ] (Marchetti) which dealt with statutes regulating taxation of wagers. Under the statutes, those who accept wagers were required to pay occupational taxes and to register with the local Internal Revenue director. Registrants were required to admit they were in the business of accepting wagers. The issue, as framed by Justice Harlan for the majority, was “whether the methods employed by Congress in the federal wagering tax statutes are, in this situation, consistent with the limitations created by the privilege against self-incrimination guaranteed by the Fifth Amendment.” (Id. at p. 44 [ 88 S.Ct. at p. 700 ].) The court concluded the statutes did violate the Fifth Amendment. In doing so, Justice Harlan observed that *1565 gambling is a highly regulated enterprise and numerous statutes impose criminal penalties for its pursuit. He also noted that the information acquired by the statutes at issue would be readily available to prosecuting authorities.

Justice Harlan explained the court’s analysis in this manner: “The central standard for the privilege’s application has been whether the claimant is confronted by substantial and ‘real,’ and not merely trifling or imaginary, hazards of incrimination.” (Marchetti, supra, 390 U.S. at p. 53 [ 88 S.Ct. at p. 705 ]). “In these circumstances, it can scarcely be denied that the obligations to register and to pay the occupational tax created for petitioner ‘real and appreciable,’ and not merely ‘imaginary and unsubstantial,’ hazards of self-incrimination. [Citations.] Petitioner . . . was required, on pain of criminal prosecution, to provide information which he might reasonably suppose would be available to prosecuting authorities, and which would surely prove a significant ‘link in a chain’ of evidence tending to establish his guilt.” (Id. at p. 48 [88 S.Ct. at pp. 702-703], fn. omitted.)

Application of the Marchetti principles shows the majority’s requirement would suffer the same infirmity. The statute, by its language, does not apply to the public at large, or even to all drivers. Its obligations fall on only those drivers involved in accidents that result in death or injury. The conduct of drivers who cause serious accidents is addressed by numerous penal provisions which punish unsafe driving. The required admission created by the majority would be given directly to a law enforcement officer and readily available to prosecuting authorities.

An officer, called to the scene of an accident in which someone is killed or injured, obviously investigates a very serious circumstance. Any driver “involved” in such an accident is necessarily and reasonably suspected of potentially criminal conduct. A significant proportion of these accidents will involve one or more Vehicle Code violations: speeding (Veh. Code, § 22348 et seq.), driving under the influence (Veh. Code, § 23152 et seq.), following too closely (Veh. Code, § 21703), changing lanes unsafely (Veh. Code, § 21658) or driving recklessly (Veh. Code, § 23103), to name but a few. If death results, vehicular manslaughter (Pen. Code, § 192, subd. (c)) might very well be charged, predicated upon a Vehicle Code violation. It is certainly true that a driver may drive perfectly and conform with every law and yet be blamelessly involved in a serious accident. What is important for our analysis is not that some conduct may be innocent, but rather, that much driving which causes death or injury will, indeed, be criminal. Further investigation is obviously needed to determine who, if anyone, is at fault. A driver so involved does not face a benign situation in which mere administrative details are at issue. Requiring a motorist to reveal his involvement *1566 in the accident when it is not otherwise apparent, requires him to provide factual information to the government which may very well be used later to prosecute him. One compelled to admit that he just killed or injured someone while driving faces far more than a “trifling or imaginary” risk of incrimination.

Based on long-standing United States Supreme Court jurisprudence the requirement imposed by the majority violates the Fifth Amendment. The admission they would compel is testimonial in nature. Its effect is that the person making such an admission runs a substantial risk of incrimination.

The Byers Cases

The majority relies heavily upon the analysis of Byers v. Justice Court, supra, 71 Cal.2d 1039 and Byers, supra, 402 U.S. 424 . In Byers the United States Supreme Court reviewed the California Supreme Court’s disposition in the same case. The celebrated Mr. Byers was in an auto accident and fled without providing the statutorily required identification. It was his failure to stop and produce identification that was at issue before both supreme courts.

The majority’s reliance on Byers is misplaced for three reasons. First, Byers did not resolve, or even address the judicially compelled admission that is at issue here. Second, the majority inaccurately apprehends the precedential value Byers does have. Third, they extend Byers beyond its holding.

Byers addressed a very precise issue. “This case presents the narrow but important question of whether the constitutional privilege against compulsory self-incrimination is infringed by California’s so called ‘hit and run’ statute which requires the driver of a motor vehicle involved in an accident to stop at the scene and give his name and address.” (Byers, supra, 402 U.S. at p. 425 [ 91 S.Ct. at p. 1536 ], italics added.) In answering the question Justice Burger, writing for the plurality, considered two factors: 1) what the statute required of a driver involved in an accident causing property damage; and 2) the degree to which those requirements presented a risk of incrimination.

In applying Byers it is important to be clear on what it considered. The case dealt only with the two statutory requirements as legislatively enacted: the duty to stop at the scene of an accident and the duty to provide identifying information. The plurality did not expend a syllable discussing whether the statute required the additional admission urged here.

It is also important to note that Byers dealt with a statute that applied to accidents involving property damage. It did not address a statute relating to *1567 accidents causing death or injury. Indeed, in a footnote to the plurality opinion, Justice Burger observes that in injury or death cases “. . . there is a statutory use restriction [Vehicle Code sections 20012, 20013] for these compelled disclosures.” (Byers, supra, 402 U.S. at p. 426, fn. 1 [ 91 S.Ct. at p. 1537 ].) The statutes Justice Berger cites do restrict admissibility of an officer’s written reports. Because Byers was not a death or injury case the plurality did not pursue further whether a driver’s oral statements would be admissible. (But see People v. Misner (1955) 134 Cal.App.2d 377 [ 285 P.2d 938 ].)

In part I of Byers the plurality considered the risk of incrimination as a factor implicating the protections of the Fifth Amendment. Justice Berger pointed out: “Whenever the Court is confronted with the question of a compelled disclosure that has an incriminating potential, the judicial scrutiny is invariably a close one. Tension between the State’s demand for disclosures and the protection of the right against self-incrimination is likely to give rise to serious questions. Inevitably these must be resolved in terms of balancing the public need on the one hand, and the individual claim to constitutional protections on the other; neither interest can be treated lightly.” ( 402 U.S. at p. 427 [ 91 S.Ct. at p. 1537 ].) The plurality then concluded that merely stopping at the scene of an accident causing property damage and identifying oneself does not entail a sufficient risk of criminal inculpation to infringe upon by the Fifth Amendment. “A name, linked with a motor vehicle, is no more incriminating than [a] tax return, linked with [a] disclosure of income [citation]. It identifies but does not by itself implicate anyone in criminal conduct.” (Id. at pp. 433-434 [91 S.Ct. at pp. 1540-1541].)

In the second part of Byers the plurality concluded that the statute’s requirements did not violate the Fifth Amendment because the information required by the statute was not testimonial. Justice Berger explained the plurality’s view: “The act of stopping is no more testimonial — indeed less so in some respects — than requiring a person in custody to stand or walk in a police lineup, to speak prescribed words, or to give samples of handwriting, fingerprints, or blood. [Citations.] Disclosure of name and address is an essentially neutral act.” (402 U.S. at pp. 431-432 [91 S.Ct. at pp. 1539-1540].)

The four-member plurality needed Justice Harlan’s concurrence to resolve the case. Justice Harlan did not agree with the plurality’s conclusion in part I. In Justice Harlan’s view even the limited requirements at issue, even in a property damage case, created a substantial risk of inculpation. He acknowledged the holding in United States v. Wade, supra, 388 U.S. 218 , that *1568 a person could be compelled to stand in a lineup. He distinguished Wade , however, by noting that in such a situation the compulsion operated after the state had independently focused on a defendant. (Byers, supra, 402 U.S. at p. 436 [91 S.Ct. at pp. 1541-1542] (cone. opn. of Harlan J.).) In Justice Harlan’s view the Byers requirements, even without the gloss the majority would add here, impermissibly compelled a motorist to focus the investigation on himself. {Ibid.)

Justice Harlan reviewed the extant Supreme Court jurisprudence and acknowledged that the cases hold the presence of a substantial risk of self-incrimination triggers Fifth Amendment protections. (Byers, supra, 402 U.S. at pp. 437-439 [91 S.Ct. at pp. 1542-1544] (cone. opn. of Harlan, J.).) He went on to suggest a modification of that standard. Without the concurrence of any other justice, he took the position that the presence of a substantial incriminatory risk should not be a sufficient basis, standing alone, to support a Fifth Amendment invocation. {Id. at p. 453 [91 S.Ct. at pp. 1550-1551] (cone. opn. of Harlan, J.).) Instead, Justice Harlan proposed a balancing test which would take into account the purpose of the regulatory statute, the necessity for self-reporting to effectuate the regulatory purpose, and the nature of the disclosures compelled. Applying his test to the Byers facts, Justice Harlan concluded that the Fifth Amendment did not require use immunity to justify the compelled disclosures. Again, it is important to note that no other member of the court joined Justice Harlan in his suggestion that the court retreat from its previous rulings. The rule remains; a statute compelling an admission that creates an appreciable risk of self-incrimination violates the Fifth Amendment, regardless of the statute’s purpose.

The Supreme Court was very clear on what “narrow question” it was deciding. Byers stands for the proposition that a driver involved in an accident that causes property damage can be compelled to stop and provide identification to another driver. It did not address whether a driver could be compelled to make any disclosures to a law enforcement agent. It did not consider whether the rule would be different if death or injury were involved, rather than property damage. It decidedly did not contemplate the admission the majority imposes here.

The majority ignores the limited nature of the plurality’s inquiry. They seek to expand the “central reasoning” of Byers beyond the circumscriptions both the plurality and concurrence carefully note. (See, maj. opn., ante, at p. 1550). It is a fundamental rule of precedential analysis that a case decides that which it decides. Attempts to expand a case’s precedential authority beyond its facts are dangerous expeditions, particularly in the absence of the explicit pronouncement of a broader rule. The expedition proves fatal when the court takes care to affirmatively limit its holding, as is the case here.

*1569 There is an even more fundamental problem with the majority’s attempt to rely on Byers. In arguing that “the central teaching of California v. Byers is that [the disclosure statutes do not violate the Fifth Amendment because] ‘disclosures with respect to automobile accidents simply do not entail the kind of substantial risk of self-incrimination involved in [other cases]’ . . . .” (maj. opn., ante, at p. 1553), the majority makes a crucial error. Justice Harlan, the necessary fifth vote, did not join in that conclusion. Only the four-justice plurality held that view, based on the narrow facts. Because the conclusion did not command a majority, it cannot be the “central teaching” of the case and cannot stand as precedent. 5 If Byers teaches anything, it instructs that the majority’s conclusion is legally unsound because it was rejected by five of the nine justices.

Byers, supra, 402 U.S. 424 , explicitly dealt with the language of the statute. The plurality opinion is replete with references to “the statute.” Likewise, Justice Harlan’s concurrence is limited in its scope. Justice Harlan discusses at length the need to balance legitimate governmental interests with the constitutional protections of the Fifth Amendment. (Id. at pp. 435-455 [91 S.Ct. at pp. 1541-1552] (cone. opn. of Harlan, J.).) He concludes: “[W]e must deal in degrees in this troublesome area.” (Id. at p. 454 [ 91 S.Ct. at p. 1551 ] (cone. opn. of Harlan, J.).) He notes that courts must “take cognizance of the level of detail required in the reporting program.” (Id. at p. 456 [ 91 S.Ct. at p. 1552 ] (cone. opn. of Harlan, J.).) He ends by saying that considering, among other factors, “the nature of the disclosures involved,” he cannot conclude the Fifth Amendment requires the use restriction articulated by the California Supreme Court’s opinion. (Id. at p. 458 [ 91 S.Ct. at p. 1553 ] (cone. opn. of Harlan, J.).)

A fair reading of the plurality opinion and the Harlan concurrence reveals the justices were aware of the delicate balance they sought to strike. A more expansive reading is not justified by the text. The majority’s conclusion that the Supreme Court would have upheld a statute such as the one the majority crafts is a prognostication in which I cannot join. Worse than being merely an unsupported assertion it is definitively inconsistent with the carefully drafted and limited opinions of the plurality and Justice Harlan. 6

*1570 The majority also seeks to separate part I of the Byers opinion, dealing with risk of incrimination, from part II, addressing the testimonial question. By this analytical device the majority seeks to avoid discussion of the concept of testimonial communications in Fifth Amendment jurisprudence. Part I of the plurality opinion does not discuss the concept in any way. This omission is not surprising because of the limited nature of the court’s inquiry: whether a statute can compel a motorist to stop and provide identifying information. Because both requirements are nontestimonial part one of the opinion omits such a discussion. It is this very point that part II makes clear. A reading of the entire opinion is necessary to understand the extent, and limitation, of the high court’s ruling. Further, as noted above, part one of the opinion cannot stand alone, because its reasoning did not command a majority of the court.

The testimonial nature of the majority’s compelled admission and the risk of incrimination it presents are the factors which place it at odds with the Fifth Amendment. The majority seeks to avoid this conclusion by defining the issue differently. They conclude “[i]t is the context in which the disclosure is required and the underlying purpose of the disclosure” that are determinative. (Maj. opn., ante, at p. 1553.) The Supreme Court, however, has held that the “availability of the privilege does not turn upon the type of proceeding in which its protection is invoked, but upon the nature of the statement or admission and the exposure which it invites.” (In re Gault (1967) 387 U.S. 1, 49 [ 87 S.Ct. 1428, 1455 , 18 L.Ed.2d 527 ], italics added.) Indeed, as noted, the concurrence by Justice Harlan in Byers explicitly refers to the “nature of the disclosures involved.” ( 402 U.S. at p. 458 [ 91 S.Ct. at p. 1553 ] (cone. opn. of Harlan, J.).)

The majority interprets Byers to say that context and purpose are the primary focus of a Fifth Amendment analysis, rather than substance or effect. (See maj. opn., ante, at p. 1553.) Such a conclusion flows from a fundamental misreading of Byers. The Byers plurality directly considered whether the statutory requirements presented a risk of incrimination. That is, they first considered the effect of the disclosure. The plurality then analyzed whether a testimonial assertion was required. In doing so they evaluated the substance of the requirements. Because they decided that neither the effect nor the substance of the requirements implicated the Fifth Amendment, the Byers plurality was free to focus on context. Here, the majority tosses aside both substance and effect to claim that context and purpose are all. Not only do the majority put the cart before the horse, they disengage the cart and run the horse from the field.

*1571 The Byers court dealt with a statute designed to ensure identification would be provided, as Justice Burger phrased it, “[a] name, linked with a motor vehicle.” (Byers, supra, 402 U.S. at pp. 433-434 [ 91 S.Ct. at p. 1540 ].) The majority’s new statute changes the aim, from a statute designed to insure identification to one which facilitates an investigation. Under the majority’s statute, we now achieve “a name, linked with a motor vehicle, linked with a compelled admission of involvement.”

The majority defends their expansion of the statute by asserting: “The Fifth Amendment was never intended to be a refuge for those facing civil liability. It was not intended to force investigating agencies, or citizens, to invest time and energy puzzling out who was driving when injury accidents occur . . . .” (Maj. opn., ante, at p. 1557.) What the majority fails to acknowledge is that those who kill or injure others while driving will frequently face both civil and criminal liability. The “investigating agencies” to which they refer are law enforcement agencies investigating crimes.

The logical conclusion of the majority’s assertion is that the Fifth Amendment must yield when to honor it would be inconvenient. To make such a point is to simultaneously refute it. The Fifth Amendment does not exist to facilitate law enforcement, it exists to protect citizens from governmental demands that they incriminate themselves. The majority does not point to another state in America that imposes an obligation such as theirs on its citizens. California should not lead this expedition. It takes us away from the hearthstone of the Fifth Amendment and into uncharted territory where the fundamental relationship between the people and their government can be altered without legislation to suit the convenience of the sovereign. This is not the arrangement the framers of the Constitution had in mind.

Appellant here has relied on People v. Bammes (1968) 265 Cal.App.2d 626 [ 71 Cal.Rptr. 415 ] {Bammes) for the proposition that admission of involvement is not required. The majority rejects Bammes by citing Byers v. Justice Court, supra, 71 Cal.2d 1039 . The reliance on Byers v. Justice Court is somewhat problematic in that its judgment was vacated by the United States Supreme Court in Byers, supra, 402 U.S. 424 .

As the majority notes, Justice Peters, in Byers v. Justice Court did observe: “First, although it is true that neither section 20001 nor section 20002 explicitly requires drivers involved in accidents to identify themselves as involved drivers, neither can fairly be read to require only that an involved driver identify himself as merely having been ‘at or near the scene of the accident when it occurred.’ ” (71 Cal.2d. at p 1045, italics in original.) What the majority fails to point out is the very next sentence: “Even if these *1572 statutes could be so read, it seems clear that in almost all circumstances it would be obvious to the person to whom the identification was made that the person supplying identification was a driver involved in the accident.” (Ibid., italics added.)

Three things then, are apparent. First, Byers v. Justice Court did not hold an explicit admission is required by the statute. It merely criticized Bammes for concluding that a driver could say something false, i.e., that he was merely at or near the scene, rather than the driver. Second, Byers v. Justice Court assumed the usual circumstance in which involvement is “obvious,” rather than the unusual circumstance we deal with here, in which involvement is not apparent. Third, the majority cannot have it both ways. They cannot fairly cite Byers v. Justice Court to support their interpretation of the statute without acknowledging that the case also concluded that their interpretation required the extension of immunity because it otherwise violated the Fifth Amendment. “We are satisfied that the privilege is applicable when a driver of a motor vehicle involved in an accident is confronted with a statutory requirement to stop and divulge his identity and reasonably believes that compliance with the statute will result in self-incrimination.” ( 71 Cal.2d at p. 1047 .)

The majority’s further reliance on Baltimore Dept. of Social Servs. v. Bouknight (1990) 493 U.S. 549 [ 110 S.Ct. 900 , 107 L.Ed.2d 992 ], is also unavailing. In Bouknight , Justice O’Connor concluded that a mother could not resist a court order to turn her young son over to child welfare authorities by relying on the Fifth Amendment. The analysis was based, however, on the fact that Ms. Bouknight had accepted a return of the child to her custody subject to a number of conditions to which she had agreed after the court had lawfully extended jurisdiction over the youngster. By resuming custody under conditions, she agreed to relinquish custody if the conditions were not met. She could not assert the privilege to avoid an agreement she had made. The Bouknight court went on to state that the “testimonial aspects” that might be involved in Bouknight’s production of the child, might well require a limitation on the use of those testimonial aspects in a subsequent criminal proceeding. (Id. at pp. 561-562 [110 S.Ct. at pp. 908-909].) This is the kind of . limitation articulated by our Supreme Court in Byers v. Justice Court, supra, 71 Cal.2d 1039 and which the majority agrees they might deem necessary were they writing on a clean slate. (Maj. opn., ante, at p. 1554.)

The majority asserts: “Similarly [to the court in Bouknight] we are not called upon to define the precise limitations on the state’s ability to use the ‘testimonial’ aspect of the required disclosures.” (Maj. opn., ante, at p. 1554). In fact the majority is called upon to address the use question. If their *1573 interpretation of the statute is to stand they must decide whether it violates the Fifth Amendment or requires the use immunity extended in Byers v. Justice Court , and suggested by Bouknight . The procedural posture of Bouknight allowed the court to defer this later consideration in a way that our case does not permit. All Bouknight resolved was that Ms. Bouknight had to release her son to authorities to protect his safety. If there was a future prosecution, the issue of immunity could be dealt with. Our case is different. Here, the majority seeks to punish the defendant for a completed course of conduct. There is no opportunity to extend immunity to him. He will be punished for not anticipating the majority’s statutory amendment regardless of the incriminating risk. The extension of immunity to some future litigant will be of cold comfort to him. 7 My learned colleagues rely on what they conclude is the law announced in Byers. They simply read Byers too broadly and extend its holding to encompass matters which both the plurality and Justice Harlan clearly exclude from the sweep of their ruling.

Conclusion

We cannot lose sight of the fact that we are dealing with a constitutional protection. Even well-intentioned limitations on such an essential guarantee are to be closely scrutinized. As Justice Bradley observed in Boyd v. United States, supra, 116 U.S. 616 : “It may be that it is [a limitation] in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. . . . It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.” (Id. at p. 635 [ 6 S.Ct. at p. 535 ].) This view was echoed by Justice Brandéis, dissenting in Olmstead v. United States (1928) 277 U.S. 438 [ 48 S.Ct. 564 , 72 L.Ed. 944 , 66 A.L.R. 376 ]: “The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” (Id. at p. 479 [ 48 S.Ct. at p. 573 ] (dis. opn. of Brandéis, J.).)

Likewise, Justice Harlan noted the same danger in his Byers concurrence. “If the technique of self-reporting as a means of achieving regulatory goals unrelated to deterrence of antisocial behavior through criminal sanctions is carried to an extreme, the ‘accusatorial’ system which the Fifth Amendment is supposed to secure can be reduced to mere ritual. And the risk that such a situation will materialize is not merely a function of the willingness of an *1574 ill-disposed officialdom to exploit the protective screen of ostensible legislative purpose to bypass the procedural limitations on governmental collection of information in the criminal process. The sweep of modem governmental regulation — and the dynamic growth of techniques for gathering and using information culled from individuals by force of criminal sanctions— could of course be thought to present a significant threat to the values considered to underpin the Fifth Amendment, quite apart from any supposed illegitimate motives that might not be cognizable under ordinary canons of judicial review.” (402 U.S. atpp. 453-454 [91 S.Ct. atpp. 1550-1551] (cone, opn. of Harlan, J.).)

By reaching out to impose an obligation not adopted by the Legislature, the majority commits three errors. First, they judicially legislate criminal conduct, which we are not empowered to do. Second, they judicially enact a statute which violates the Fifth Amendment of the United States Constitution and article I, section 15 of the California Constitution. 8 Third, they create a substantial anomaly in the law. Under the majority’s statute, if a man drives recklessly and accidentally kills another, he must confess his involvement. If the same man brandishes a gun and recklessly kills another, he may remain silent.

Commission of these errors is neither necessary nor constitutionally permissible. I would reverse the felony conviction. I would affirm the misdemeanor conviction and join in the majority’s analysis of the remaining issues.

Appellant’s petition for review by the Supreme Court was denied July 15, 1999. Mosk, J., was of the opinion that the petition should be granted.

Another provision, that the driver render aid to the injured, is not at issue here.

The majority mentions a number of cases in support of their expansive construction. (Maj. opn., ante, at pp. 1546-1547.) Several of them are civil cases and are distinguishable on that basis. The two criminal cases which they cite do not support the conclusion they would draw. In People v. Berry (1991) 1 Cal.App.4th 778 [ 2 Cal.Rptr.2d 416 ] the court interpreted a statute to exclude a defense claimed by Berry. It did not add a new criminal element, and does not stand for the proposition that courts may do so. The defendant in People v. Jimenez (1992) 11 Cal.App.4th 1611 [ 15 Cal.Rptr.2d 268 ] intentionally rammed another car, inflicting substantial injury on a passenger in the rammed vehicle. Among other charges, he was accused of violating Vehicle Code section 20001 because he did not stop at the scene and identify himself. Jimenez urged that he was not required to do so because he intentionally rammed the other car. Thus, he argued, the event was not an “accident” falling within the statute. The Jimenez court rejected this novel claim, concluding the term “accident” encompassed defendant’s behavior. Again, Jimenez did not add a new criminal element to the *1559 statute. Indeed, the court quoted the settled rule for interpretation of criminal statutes: “If a penal statute is susceptible of more than one meaning, the statute must be construed in a defendant’s favor unless such a construction would be unreasonable, absurd or contrary to the legislative intent underlying the statute. [Citations.]” (People v. Jimenez, supra, 11 Cal.App.4th at p. 1626 .)

Indeed, that is what happened here. Because they had his name and address, investigators later interviewed Kroncke, who ultimately admitted his involvement. It is true that Kroncke originally lied to investigators. That act was a crime for which he has properly been convicted. The law can punish someone who lies during an investigation. What it cannot do is force him to incriminate himself.

“One cannot ignore the implication of such conduct and disclosure by a driver, however. By leaving his name and address, the person depositing the information implicitly discloses he was the driver of a vehicle involved in the accident, the one who caused the damage.” (Maj. opn., ante, at p. 1551.)

The majority’s reference to Justice Harlan’s conclusion that a driver who complies with the statute as written admits involvement in the accident (maj. opn., ante, at pp. 1552-1553), suffers from the same analytical flaw. No other justice, including those in the plurality accepted that conclusion. It was Justice Harlan’s view alone, thus lacking precedential force.

The majority claims to “find further support” for their conclusion in the opinions of two cases from Virginia and New York. (Maj. opn., ante, at p. 1551, fn. 9, Banks v. Commonwealth (1976) 217 Va. 527 [ 230 S.E.2d 256 ] and People v. Samuel (1971) 29 N.Y.2d 252 [ 327 N.Y.S.2d 321, 328 , 277 N.E.2d 321 ].) Their reliance is as misplaced as their reliance on *1570 Byers. These foreign cases both involve drivers who did not stop or provide identification as statutorily required. They did not involve judicially compelled admissions of involvement. They are inapposite.

The majority says that defendant waived the privilege when he disclosed on November 3 that he had been the driver. (Maj. opn., ante, at p. 1557, fn. 13.) That conduct, however, was not the basis for his prosecution. He was prosecuted for his conduct a month earlier. The waiver analysis is inapplicable.

“Persons may not ... be compelled in a criminal cause to be a witness against themselves. . . .”