# People v. Kelly

> California Supreme Court · November 26, 1990 · 51 Cal. 3d 931

URL: https://www.frixlaw.com/law-library/cases/9792486

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. HORACE EDWARDS KELLY, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** November 26, 1990
- **Citations:** 51 Cal. 3d 931; 275 Cal. Rptr. 160; 800 P.2d 516; 90 Cal. Daily Op. Serv. 8544; 1990 Cal. LEXIS 5814
- **Precedential status:** Published
- **Opinion:** Concurrence by Mosk
- **Judges:** Arabian, Mosk
- **Cited by:** 132 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
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## Opinion text

MOSK, J.
I concur in the judgment. After review, I have found no error warranting reversal.
I write separately, however, to express my strong disapproval of serious police misconduct during the interrogation prior to defendant’s confession: in an effort to secure a statement, the officers deliberately played on defendant’s religious beliefs in violation of principles underlying the First Amendment to the United States Constitution and article I, section 4, of the California Constitution.
Prior to trial, defendant moved to suppress his confession. One of his claims was that the statement was involuntary because it was obtained by the exertion of improper influence by the police, viz., by playing on his religious beliefs. The court denied the motion, determining, inter alia, that the confession was voluntary beyond a reasonable doubt. 1
The law that is applicable here is clear and well settled.
An involuntary confession is inadmissible under the due process clauses of both the Fourteenth Amendment to the United States Constitution (e.g., Jackson v. Denno (1964) 378 U.S. 368, 385-386 [ 12 L.Ed.2d 908 , 84 S.Ct. 1774 , 1 A.L.R.3d 1205 ]) and article I, sections 7 and 15, of the California Constitution (e.g., People v. Ditson (1962) 57 Cal.2d 415, 438-439 [ 20 Cal.Rptr. 165 , 369 P.2d 714 ] [decided under the predecessor of Cal. Const., art. I, § 15]). (See, e.g., People v. Boyde (1988) 46 Cal.3d 212, 238 [ 250 Cal.Rptr. 83 , 758 P.2d 25 ], affd. sub nom. Boyde v. California (1990) 494 U.S. 370 [ 108 L.Ed.2d 316 , 110 S.Ct. 1190 ].)
A confession is involuntary under the federal (e.g., Malloy v. Hogan (1964) 378 U.S. 1, 7 [ 12 L.Ed.2d 653 , 84 S.Ct. 1489 ]) and state (e.g., People *973 v. Trout (1960) 54 Cal.2d 576, 583 [ 6 Cal.Rptr. 759 , 354 P.2d 231 , 80 A.L.R.2d 1418 ]) guaranties of due process when it “was ‘ “extracted by any sort of threats or violence, [or] obtained by any direct or implied promises, however slight, [or] by the exertion of any improper influence[]” ’ ” (Hutto v. Ross (1976) 429 U.S. 28, 30 [ 50 L.Ed.2d 194 , 97 S.Ct. 202 ] (per curiam)). (See People v. Berve (1958) 51 Cal.2d 286, 290 [ 332 P.2d 97 ].) “[C]oercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ . . . .” (Colorado v. Connelly (1986) 479 U.S. 157, 167 [ 93 L.Ed.2d 473 , 107 S.Ct. 515 ].) That is the law under the Fourteenth Amendment. (Ibid.) It is also the law, in my view, under article I, sections 7 and 15, of the California Constitution.
A confession is “obtained” by governmental conduct within the meaning of the federal and state due process guaranties if and only if conduct and confession are linked, as it were, by “proximate” causation. This is certainly true for the federal right. The requisite causal connection must be more than “but for”: causation-in-fact is insufficient. (Hutto v. Ross, supra, 429 U.S. at p. 30 [ 50 L.Ed.2d at p. 197 ] (per curiam).) “If the test was whether a statement would have been made but for the law enforcement conduct, virtually no statement would be deemed voluntary because few people give incriminating statements in the absence of some kind of official action.” (U.S. v. Leon Guerrero (9th Cir. 1988) 847 F.2d 1363, 1366, fn. 1 .) The foregoing is also true for the state right. It is the rule in California that the conduct must be “a motivating cause of the confession.” (People v. Brommel (1961) 56 Cal.2d 629, 632 [ 15 Cal.Rptr. 909 , 364 P.2d 845 ], italics added; accord, People v. Hogan (1982) 31 Cal.3d 815, 838 [ 183 Cal.Rptr. 817 , 647 P.2d 93 ].) Manifestly, the rule is rooted in principles that are of state constitutional dimension.
Finally, on appeal the trial court’s determination of voluntariness is subject to independent review. (E.g., Davis v. North Carolina (1966) 384 U.S. 737, 741-742 [ 16 L.Ed.2d 895, 898 , 86 S.Ct. 1761 ] [reviewing federal constitutional claim]; People v. Sanchez (1969) 70 Cal.2d 562, 571-572 [ 75 Cal.Rptr. 642 , 451 P.2d 74 ] [apparently speaking of review of both federal and state constitutional claims].)
I now turn to the case at bar. It is plain that the police exerted improper influence on defendant during interrogation in an attempt to obtain a confession. As the facts set out by the majority demonstrate, the officers played on defendant’s religious beliefs, and did so in a deliberate fashion. Such conduct was altogether improper under the First Amendment and—separately and independently—under article I, section 4, of the California Constitution. In People v. Adams (1983) 143 Cal.App.3d 970 [ 192 Cal.Rptr. 290 ], the Court of Appeal put it thus: “Religious beliefs are not matters to *974 be used by governmental authorities to manipulate a suspect to say things he or she otherwise would not say. The right to worship without fear is too precious a freedom for us to tolerate an invasion and manipulation by state officials of the religious beliefs of individuals, including those accused of crime.” (Id. at p.989.)
The majority are evidently of the opposite view. To be sure, they agree that the police may not play on religious beliefs, stating that “the tactic of exploiting a suspect’s religious anxieties has been justly condemned” and citing to People v. Adams, supra, 143 Cal.App.3d 970 . (Maj. opn., ante, at p. 953.) But they disagree that the officers in this case acted improperly: “none of the police comments here appear to have been calculated to exploit a particular psychological vulnerability of defendant; no acute religious anxiety or sense of guilt was apparent from prior questioning . . . .” (Ibid.) Perhaps no religious sensitivity was evident earlier in the interrogation. But it plainly became evident in its course. And as soon as it did, it was purposely exploited.
Although the police exerted improper influence on defendant by deliberately playing on his religious beliefs, on this record the confession cannot be held to have been obtained by the exertion of such influence. I recognize that the evidence allows an inference that but for the officers’ misconduct, defendant would not have confessed. But it simply does not allow an inference of a causal connection that is more direct and substantial. And as explained above, causation-in-fact is insufficient.
Therefore, after independent review, I conclude that the trial court did not err when it determined that defendant’s confession was voluntary beyond a reasonable doubt.
Accordingly, having found no error on this point—and no error on any other warranting reversal—I concur in the judgment.
Broussard, J., concurred.
Appellant’s petition for a rehearing was denied February 14, 1991.
The court applied the reasonable-doubt standard evidently in reliance on People v. Jimenez (1978) 21 Cal.3d 595, 602-609 [ 147 Cal.Rptr. 172 , 580 P.2d 672 ]. But since the crimes herein were committed after June 9, 1982, the effective date of article I, section 28, subdivision (d), of the California Constitution (People v. Smith (1983) 34 Cal.3d 251, 257-263 [ 193 Cal.Rptr. 692 , 667 P.2d 149 ]), Jimenez did not govern, and the applicable standard was preponderance of the evidence. (People v. Markham (1989) 49 Cal.3d 63, 71 [ 260 Cal.Rptr. 273 , 775 P.2d 1042 ].)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9792486. Public record. Not legal advice.