Petition for Writ of Certiorari — Ray v. California

Supreme Court brief1994

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No. 94 713 OCT 1 519%

IN THE OEEICE OF JHE CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

KENT F. RAY, Petitioner

Vv.

THE STATE OF CALIFORNIA, Respondent

ON WRIT OF CERTIORARI TO THE

COURT OF APPEAL OF THE STATE OF

CALIFORNIA, THIRD APPELLATE DISTRICT

PETITION FOR A WRIT OF CERTIORARI

GEORGE L. MERTENS

Attorney at Law

P.O. Box 554

Lincoln, CA 95648

Telephone: (916) 645-9759

Attorney for Petitioner

Counsel of Record

nasi Rtaea nem i seme wate a

QUESTIONS PRESENTED

1. In a situation where an

officer is told by a third party that

petitioner consented to the search of his

home, does the officer have the minimal

burden of confirming that petitioner

actually did consent to such a search as

a predicate to a two hour exploratory

search of petitioner’s home while

petitioner remained asleep in an upstairs

bedroom?

2. Although evidence that

constitute exceptions to the hearsay rule

are not generally violative to the

Confrontation Clause, is the evidence in

this case that spanned three to five

levels of hearsay so unreliable that it

is repugnant to the Confrontation Clause

as its nature effectively makes

meaningful cross examination impossible?

Pit at oe 6 Cs Ei ee a

AUTHORITIES INVOLVED .... . 2

STATEMENT OF THE CASE. ..-+ +s ; - 3

I. Procedural Mistery ...i-«eve 8

IZ. Bwidemoe At Trial ...-.<«-e2e2e « 8

III. Petitioner’s Statement ..... 6

IV. Evidence Related To The Motion To

Suppress * 7: — 7 -_ — — — - * . a u

THIS COURT SHOULD GRANT THE WRIT TO

DETERMINE WHETHER PETITIONER’S "YES" IN

RESPONSE TO BEING INFORMED BY HIS SISTER

IN LAW THAT WAS BRINGING THE POLICE

TO LOOK AT THE STAIN ON THE CARPET

CONSTITUTED "UNEQUIVOCAL" AND "EXPRESS"

CONSENT AND IS A SUFFICIENT PREDICATE

UNDER THE FOURTH AMENDMENT TO SUPPORT A

TWO HOUR SEARCH OF HIS HOME ..,.. .- 15

A. Petitioner’s Right To Be Free From

Invasions Of His Home ......- 15

B. The Trial Court And The Court Of

Appeal Confused Consent With Assent 17

C. The Court Of Appeal’s Analysis Is

Constitutionally Flawed ..... 21

D. This Case Also Presents Two Important

Sumer iegeues «s+ + see ew eo eo ew oe 22

THIS COURT SHOULD GRANT REVIEW TO

DETERMINE WHETHER THE STATEMENT ADMITTED

INTO EVIDENCE ENCOMPASSING MULTIPLE

LAYERS OF HEARSAY EFFECTIVELY DEPRIVED

PETITIONER OF HIS CONSTITUTIONAL RIGHT TO

CONFRONTATION “2h a oe oe oe a 7 a ee ee

CONCLUSION . - «© «© © © © «© «© «© © «© «© 390

iii

TABLE OF AUTHORITIES

Cases

Bumper v. North Carolina

208 Wis BES CO ks et eee

California v. Green

390°0.8. 260 2400 Co. CCS. OCU

Illinois v. Rodriguez

407 Gi8. i984 as. te OM SO,

Latex Construction Company v.

Jacksonville Shipyards

442 F.2@ 490 (9th Cir. 1971) ...-s+ 17

O’Donnell v. R.G. Smith Company 528 A.2d

576 (Pa. 1987) e * * * se ° e * i = = 17

Ohio v. Roberts

666 U.8. BR tet. 6 ke cc es Ye Se

Payton v. New York

445 U.S. 573 (1980) . .....-+-- 215

People v. Borango 232 Cal.App.3d 378

(1991) es ° J * e * e 2 e a aa a +. a = 22

People v. Brooks 425 N.W.2d 555 (Mich.

1988) ~ _ . o a. e m +. a ao a = * - Ses — 17

People v. Jones 155 Cal.App.3d 653

(1984) * oa ° * « & ° ? ~ oe i e a * - 25

People v. Perez 9 Cal.3d 651 (1973) . 17

People v. Rios 163 Cal.App.3d 852

(1985) * ° ad o * = * - e 2 o oe * a? a 28

People v. Roman 227 Cal.App.3d 674

(1991) * > e 2 * a es - -” & 2 a ” * a 19

People v. Simmons 123 Cal.App.3d 677

i. << - ee 6 2b es 6 a eo «0 ae «6S

Robinson v. State 578 P.2d 141 (Alaska

1978) * — @ . a * 2 2 2 = — - ° 3 _ c 16

Schneckloth v. Bustamonte

Ole Mame wee taetee ee te et lth hl hl lt 16

Silverman v. United States

26S Wale BOS CERGRP « te et et te et le 15

Steagald v. United States

451 U.S. 204 (1981) . . «© «© «© « «© « « a3

United States v. Shaibu 895 F.2d 1291

ee ee a |

United States v. Whitfield 939 F.2d 1071

(D.C. Cir. 1991) se 6 6 2 @ + © © 4 19

statutes

26 U.8.C. mection i2S7(@) . « « «© «+s 2

California Evidence Code

section 352 ca e - 7 — + - .* = . — o — - 2

Co a a ee a eae Peer |

California Penal Code

errr. | gy ghee ee es et ee SS

—<

United States Constitution,

Sr a 5 4g ge « By 38, 29, 21, 23

United States Constitution, Amend. V2, 24

United States Constitution, Amend. XB 24

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

KENT F. RAY, Petitioner

THE STATE OF CALIFORNIA, Respondent

PETITION FOR WRIT OF CERTIORARI TO

THE COURT OF APPEAL OF THE STATE OF

CALIFORNIA, THIRD APPELLATE DISTRICT

Petitioner, KENT F. RAY,

respectfully prays that a writ of

certiorari issue to review the judgment

and opinion of the Court of Appeal of the

State of California, Third Appellate

District, filed April 26, 1994, affirming

petitioner’s conviction for first degree

murder in this case.

OPINION BELOW

The unpublished opinion of the

Court of Appeal of the State of

California, Third Appellate District is

reproduced in the Appendix at Al through

A37.

JURISDICTION

Petitioner invokes the

jurisdiction of this Court under 28

U.S.C. § 1257(a) on the grounds that his

rights under the Fourth, Sixth and

Fourteenth Amendments to the U.S.

Constitution were violated. The Court of

Appeal issued its decision rejecting

these claims on April 26, 1994. The

California Supreme Court denied review on

July 27, 1994.

INVOLVED | |

United States Constitution, Fourth

Amendment, Sixth Amendment, Fourteenth

Amendment; California Evidence Code

sections 352 and 1235; and California

Penal Code section 187. See Appendix at

A63 for verbatim statement of these

authorities.

STATEMENT OF THE CASE

I. Procedural History

On January 30, 1992, the

Sacramento County District Attorney filed

an Information in Sacramento County

Superior Court charging petitioner with

violation of California Penal Code

section 187, murder. On July 21, 1992, a

jury found petitioner guilty of first

degree murder following trial.

Petitioner appealed.

II. Evidence At Trial

Factually, this charge arose out

of the November 3, 1991 disappearance of

petitioner’s wife, Kwok Ray [hereinafter

"Mrs. Ray"]. Petitioner and Mrs. Ray

lived in Sacramento, California near Mrs.

Ray’s sister, Kwok Kin Yuen [hereinafter

"Kim"] and other family.

On the morning of November 5,

1991, police officers found Mrs. Ray’s

body in the trunk of her car. The

location was approximately ten minutes by

car from petitioner’s home. The medical

examiner determined that Mrs. Ray had

died by strangulation and she had died

55-60 hours before the officers

discovered the body.

Shortly before 1:00 a.m. in the

morning of November 3, 1991, Kim dropped

Mrs. Ray off at petitioner’s home after

work that evening. Petitioner was home

at the time. That was the last time any

witness saw Mrs. Ray alive. About 5:30

a.m., a neighbor heard a car start from

the direction of petitioner’s home. Mrs.

Ray’s friends and sisters came to the

home later that morning because they had

planned a trip for that day. While

there, they noticed a stain on the carpet

of the living room of the home. Later

that day Kim and a friend contacted the

police and asked them to come to the

house to look at the stain.

An officer came to the house later

that evening and Kim allowed him in with

her key. The officer examined the

Stained portion of the carpet and seized

fibers from it. The officer then called

for an evidence technician and they

conducted a two hour search of the house.

After the officers completed their

search, they knocked on the bedroom door

and petitioner answered. Petitioner

informed the officers that he did not

know the whereabouts of his wife.

The next day officers obtained a

search warrant based on the evidence

seized during the first search. They

seized portions of the carpet during this

search. The officers opined that the

carpet had been scrubbed in the interin.

Subsequent testing detected a minute

amount of blood of a type consistent with

Ms. Ray’s blood in the carpet and pad.

III. Petitioner’s Statement

The prosecutor introduced evidence

of a statement made by petitioner several

years before the disappearance of Mrs.

Ray. Petitioner’s girlfriend Jiang Jiang

[hereinafter "Jiang"] testified regarding

the statement. Petitioner objected to

the admission of the statement in limine

and the trial court conducted a hearing.

Jiang testified that during her

initial interview with a police

detective, the detective mentioned that ©

Jiang could be arrested if she did not

cooperate. The possibility of such an

arrest and the possible deportation to

China frightened Jiang, because of the

danger of retaliation for her prior

political activities in China.

Although she did not recall

precisely what she said to the detective

during a later interview, she remembered

that she qualified her statement telling

the detective that she was stating what

her girlfriend had told her she, Jiang,

had previously said. (RT 210, 212,222-

223, 227.) Indeed, Jiang testified that

she did not even recall or believe she

had the conversation that her girlfriend

told her she had. (RT 228-229, 246.)

The trial court found the

statement admissible applying an

California Evidence Code section 352

analysis. Additionally, the trial court

found that Jiang’s statements to the

officers were inconsistent with her

testimony at the hearing and at trial.

To reiterate for clarity, pursuant

to Jiang’s testimony on the motion and at

trial, the statement represented four

levels of hearsay: 1) Jiang said; 2) that

her friend said; 3) that Jiang said; 4)

that petitioner said [details of

statement]. (See A29-A30.)

IV. Evidence Related To The Motion To

Suppress

In limine, petitioner moved to

suppress the items seized during both

searches of his home. The trial court

heard testimony out of the presence of

the jury regarding this motion.

Kim testified that she could not

find Mrs. Ray on the morning of November

3. As a result, she visited Mr. Ray’s

house twice that morning trying to locate

her sister. After attempting to call the

police from Mr. Ray’s phone, she went

home and met with Elaine Rice. Elaine

Rice testified that she got a call from

Paula [Kim’s other sister] at

approximately 2:30 p.m. on November 3,

1991. Because of the call, she drove

immediately to petitioner’s house

arriving at approximately 2:40 p.m. At

the house, she spoke to petitioner for

about fifteen minutes, but did not go in.

Ms. Rice then went to Paula’s house,

talked to Paula briefly and both Ms. Rice

and Paula returned to Mr. Ray’s house.

They arrived at Mr. Ray’s house at

approximately 3:00 p.m. They looked

around Mr. Ray’s house and Paula pointed

out a large stain about the size of a

body just inside the entryway to the

home.

Kim and Ms. Rice called the police

several times to attempt to persuade the

police to send an officer to look at the

spot in the carpet. Later, they called

petitioner to give him the police report

number. Because of Kim’s difficulty with

English, Kim passed the phone to Ms.

Rice. Ms. Rice testified that she

"explained to [petitioner] I was trying

to get the police to come out to the

house to look at the stain." (RT 26.)

According to Ms. Rice, "He said ‘yes.‘"

(RT 26.) Petitioner said nothing more

than that. (RT 27.) This first call to

petitioner took place at approximately

6:00 p.m.

Later that evening, they called

petitioner again. Ms. Rice testified

that she told petitioner: "The police

said they would be out in an hour to look

at the carpet. I just wanted to let you

know that." (RT 27.) In response,

petitioner said only "yes." (RT 27.)

This second call took place at

approximately 6:30 p.m.

Ms. Rice later called again to

inform petitioner that the police were

going to be delayed. (RT 28.) During

that conversation, Ms. Rice either said

"Kim has a key, can we let ourselves in?’

or Ms. Rice said "Kim has a key, would:

you mind letting ourselves in?" (RT 29-

30.) Ms. Rice did not remember precisely

what she said. In response, Mr. Ray said

"yeah" or “yes." (RT 28, 29, 40, 59.)

Ms. Rice also told petitioner they would

try not to wake him. This third call

took place at approximately 7:50 p.m.

Later, Kim and Ms. Rice went to a

corner near petitioner’s house and met

Officer Skip Buck. At the corner, with

Ms. Rice acting as an interpreter for

Kim, they told Officer Buck about their

problems in locating Mrs. Ray and

concerns about the stain on the carpet.

Officer Buck testified that Kim and Ms.

Rice said: "[they] had apprised

[petitioner] that [they] were going to be

contacting law enforcement to come to the

residence to check on this." Officer

Buck understood Kim and Ms. Rice to say

that petitioner had told them that it

would be "okay" if the police came to

look at the carpet. (RT 113-114.)

Still, the officer testified that they

had not told the officer when and how

many times they had spoken to petitioner

that day. Nor did Kim and Ms. Rice say

specifically they had obtained permission

from petitioner to let the officer into

the home.

After the conversation at the

corner, Kim, Ms. Rice and Officer Buck

went to petitioner’s house where Kim

opened the door with her key. They did

not knock. They went in the house at

approximately 8:43 p.m.

At the time he entered

petitioner’s home, the officer believed

Kim had access to the residence, the

occupants were aware that he would be

arriving there and that he had authority

to enter the house. Officer Buck said

that he was never directly told of

authority, but inferred it from his

understanding that the occupants of the

house knew he was coming and that he

would be let into the house with a key.

SY AMIN, Mon HY SO

(RT 100-105, 126-128, 131.) He was aware

that petitioner would be asleep in the

house. (RT 132.) Although not told

directly, Officer Buck also understood

that Kim was petitioner’s sister-in-law

and the sister of Mrs. Ray. Kim did not

live at the house.

The officer looked at the stain on

the carpet. He noticed discoloration and

removed several fibers from the carpet,

because he felt they might have dried

blood on them. He also examined the

vacuum cleaner in the dining room. The

officer removed the vacuum cleaner bag

and inspected it. He found the vacuum

cleaner bag to be damp. Officer Buck

also looked through the laundry area of

the house, one of the closets and the

garage of the house. At the officer’s

request, other officers and an evidence

technician came to the house.

After approximately two hours,

Officer Buck knocked on petitioner’s

bedroom door. Up to this point,

petitioner remained asleep. It took

approximately thirty seconds for

petitioner to get up to answer his

bedroom door. The officer informed

petitioner of what had taken place.

According to the officer, petitioner

responded by saying "uh-huh." The

officer then asked him some general

questions about Mrs. Ray’s disappearance

and left. The officer never specifically

asked petitioner if he gave his

permission to take anything.

The affidavit for the November 4

search alleged probable cause based

almost exclusively on the items seized

and viewed during the November 3 search

of Petitioner’s home.

REASONS FOR GRANTING THE WRIT

THIS COURT SHOULD GRANT THE WRIT TO

DETERMINE WHETHER PETITIONER’S

"YES" IN RESPONSE TO BEING INFORMED

BY HIS SISTER IN LAW THAT SHE WAS

BRINGING THE POLICE TO LOOK AT THE

STAIN ON THE CARPET CONSTITUTED

"UNEQUIVOCAL" AND "EXPRESS" CONSENT

AND IS A SUFFICIENT PREDICATE UNDER

THE FOURTH AMENDMENT TO SUPPORT A

TWO HOUR SEARCH OF HIS HOME

A. Petitioner’s Right To Be Free From

Invasions Of His Home

This Court has explained that

"(a)t the very core [of the Fourth

Amendment] stands the right of a man to

retreat into his own home and there be

free from unreasonable governmental

intrusion." (Silverman v. United States

365 U.S. 505, 511 (1961).) "(T)he Fourth

Amendment has drawn a firm line at the

entrance of the house." (Payton v. New

York 445 U.S. 573, 590 (1980).) For

these reasons, such searches are

presumptively illegal in the absence of a

warrant, proof of consent or exigency.

(E.g., Steagald v. United States 451 U.S.

204, 211 (1981).)

It is basic that petitioner’s

Silence and failure to affirmatively

object cannot establish consent. "To do

SO would be to justify entry by consent

and consent by entry. ‘This will not

do.’ We must not shift the burden from

the government -- to prove ‘unequivocal

and specific’ consent -- to the defendant

. . - a Gefendant’s failure to object to

such entry is not sufficient to establish

free and voluntary consent." (United

States v. Shaibu 895 F.2d 1291, 1294 (9th

Cir. 1990) [citation omitted]; see also

Robinson v. State 578 P.2d 141, 143-144

(Alaska 1978).) This Court has held that

the burden is on the state to prove that

consent was voluntarily given by

petitioner. (E.g., Schneckloth v.

Bustamonte 412 U.S. 218, 248-249 (1973);

(Bumper v. North Carolina 391 U.S. 543,

548 (1968).)

B. The Trial Court And The Court Of

Appeal Confused Consent With Assent

It is basic that "’(c)onsent, in

law, means a voluntary agreement by a

person in the possession and exercise of

sufficient mentality to make an

intelligent choice, to do something

proposed by another. ‘Consent’ differs

very materially from ’assent.’ The

former implies positive action and always

involves submission. The latter means

mere passivity or submission, which does

include consent.’" (People v. Perez 9

Cal.3d 651, 658-659 (1973) [citations

omitted]; see also Latex Construction

Company v. Jacksonville Shipyards 442

F.2d 450, 453 (9th Cir. 1971); People v.

Brooks 425 N.W.2d 555, 557 (Mich. 1988);

O’Donnell v. R.G. Smith Company 528 A.2d

576, 580 (Pa. 1987) [cases finding

response of "okay" inherently

ambiguous ]. )

The trial court and court of

appeal found petitioner’s "yes" in

response to Ms. Rice’s announcement that

she would be bringing the police to his

house constituted "consent." The trial

court made that determination without

reference to the related, but distinct

concept of “assent." The court of appeal

mentioned it but baldly rejected the

argument. Still, the testimony on the

motion at the hearing did not establish

an agreement, but only petitioner’s

assent to Ms. Rice’s stated intent to

bring the police to his home.

Petitioner never gave Officer Buck

consent, nor was he ever asked for it.

Kim’s representations that petitioner had

agreed to the search is an inadequate

substitute. In the context of trial

rights, this Court has explained:

Vedannben

petitioner for some clear consent.

e.g., United States v. Whitfield 939 F.2d

1071, 1074-75 (D.C. Cir. 1991); People v.

"We would assuredly not permit,

therefore, evidence seized in

violation of - the Fourth

Amendment to be introduced on

the basis of the trial court’s

mere ‘reasonable belief ’-derived

from statements by unauthorized

persons-that defendant has

waived his objection."

(Illinois v. Rodriguez 497 U.S.

177, 183 (1990).)

This reasoning is analogous to the

instant case considering the high public

interest in protecting homes from

invasions of the state as against the

minor societal cost of Officer Buck being

required simply to wake and ask

(See

Roman 227 Cal.App.3d 674 (1991)

[discussing officer’s duty to inquire

with third party consent].) Petitioner

submits that under any reasonable

cost/benefit analysis of the application

of the exclusionary rule, the burden of

Clarifying the purported consent by

simply asking petitioner who was present,

but asleep, was profoundly outweighed by

the invasion by the police into

petitioner’s home.

The state could not meet its

burden on this issue on these facts. The

only time that petitioner spoke directly

to Officer Buck was when he said "uh-huh"

following the officer waking petitioner

and informing him that they just

completed a two hour search of his home

and were taking various items. As such,

the evidence did not establish a direct

waiver by petitioner of his right to be

free of the warrantless intrusion by

Officer Buck. Thus, under this Court’s

analysis in Rodriguez and considering

applicable policy considerations, the

trial court erred in finding petitioner

expressly consented to the search.

C. The Court Of Appeal’s Analysis Is

Constitutionally Flawed

With only a passing reference to

the authority discussed above, the Court

of Appeal finds that Kim specifically

asked petitioner "can we let ourselves

in?" According to the Court of Appeal,

petitioner’s answer "‘’yes’, could not be

more unequivocal." (See A23.) The Court

of Appeal’s bare reasoning in this

context is flawed for several reasons.

First, the Court of Appeal fails to even

mention the context of this "yes." More

importantly, the Court of Appeal does not

even address the issue of how "express"

consent can be conveyed to Officer Buck

from Kim through the interpreter and made

only vaguely clear to the officer. This

Court has repeatedly recognized that

protection of one’s home from the state’s

invasion is at the heart of the Fourth

Amendment. To avoid the circumvention of

the Fourth Amendment’s protection of

one’s home by vague "consent" through

third parties literally unlocking the

door for the state, this Court should

intervene by granting this writ and

establishing that more is needed than

took place here to establish consent for

an extended police invasion of one’s

home.

D. This Case Also Presents Two Important

Sub-Issues

If this Court addresses the issue

described above, this Court would then

have the opportunity to address the scope

and third party consent issues that were

also addressed in the lower courts. (See

People v. Borango 232 Cal.App.3d 378,

387-393 (1991) [survey of cases on scope

of consent] & (Illinois v. Rodriguez,

supra [case setting guidelines for

"apparent consent" cases].) Thus, this

Court could use this case as a: vehicle to

address several very important and

complex aspects of the application of the

Fourth Amendment.

aoe

THIS COURT SHOULD GRANT REVIEW TO

DETERMINE WHETHER THE STATEMENT

ADMITTED INTO EVIDENCE ENCOMPASSING

MULTIPLE LAYERS OF HEARSAY

EFFECTIVELY DEPRIVED PETITIONER OF

HIS CONSTITUTIONAL RIGHT TO

CONFRONTATION

The admission of this evidence

denied petitioner his right to

confrontation under the Sixth and

Fourteenth Amendments to the United

States Constitution. California Evidence

Code section 1235 allows a prior

inconsistent statement to be used as

substantive evidence. Petitioner

acknowledges that section 1235 has been

upheld when generically challenged as

violative of the constitutional right to

confrontation. (See California v. Green

399 U.S. 149 (1970).) However, in the

particular circumstances of the statement

at issue in this case, admission of the

statement denied petitioner the right to

confrontation. Unlike the circumstances

of Green, in this case, Jiang did not

oi a a RO AR et

acknowledge the statement. (Cf., 399

U.S. at p. 164.) Because of the nature

of the evidence that presented the

statement to the jury, in these

circumstances, petitioner’s alleged

statement could not be reasonably

characterized as having sufficient

indicia of reliability to justify its

admission through Jiang’s inconsistent

testimony. (See Ohio v. Roberts 448 U.S.

56, 66 (1979).)

The policy considerations

underlying the hearsay rule and

confrontation clause frequently overlap

and are very similar. Still, "the two

are not coterminous; a statement

otherwise admissible under the hearsay

rule may be prohibited from introduction

into evidence by the confrontation

clause." (People v. Jones 155 Cal.App.3d

653, 663 (1984).) Specifically, with

regard to prior inconsistent statements,

this Court has found that, in the context

of inconsistent preliminary hearing

testimony, that examination at trial

provides "trier of fact a satisfactory

basis for evaluating the truth of the

prior statement." (California v. Green,

supra, 399 U.S. at p. 161.) In Green,

this court’s reasoning rested on the

assumption of "meaningful" trial

confrontation to provide ‘most of the

lost protections [of contemporaneous

cross-examination such as oath,

observance of demeanor and cross-~

exentné&iaind* (People v. Simmons 123

Cal.App.3d 677, 681 (1981) quoting 399

U.S. at p. 158 [brackets in Simmons].)

Thus, even in circumstances where a

witness testifies and others that heard

the prior statement testify, the

confrontation clause can be violated

where "meaningful" cross exanihation is

impossible.

For example, an amnesiac witness

who testifies that he does not remember

cannot be meaningfully cross examined.

(People v. Simmons, supra, 123 Cal.App.3d

at pp. 681-682.) Similarly, the Court of

Appeal held that a prior statement cannot

be used in the event of a witness that

simply refuses to answer questions or

"stonewalls" with no claim of privilege.

(People v. Rios 163 Cal.App.3d 852

(1985).) The Rios court reasoned that

cross examination is meaningless and

violative of the right to confrontation

despite the witness’ appearance undex

oath.

This reasoning is directly

applicable to the case at bar. Although

Jiang and the detective testified,

petitioner was deprived of any meaningful

cross-examination in this case. Jiang

never varied from her testimony that she

did not remember petitioner making the

purported statement and insisted that she

told the detective that she did not

remember, but was simply reminded of the

statement by her friend. Despite the

Court of Appeal’s contrary conclusion,

Jiang’s testimony was materially the

equivalent of the "stonewalling" in Rios.

Thus, petitioner could not cross-examine

Jiang on the details of what petitioner

purportedly said. Under the unusual

circumstances of this case, the only

person that could be meaningfully cross-

examined on petitioner’s purported

statement would have been Jiang’s friend

and she did not testify.

Jiang made her statements under

the stress of a police interrogation and

the benefit of cross examination or even

making the statement under oath was

absent. There was no inherent

trustworthiness in the interview

statements.

NL ne) A A tN it ha aE Rei

Because this form of error so

totally undermines a defendant’s right to

confrontation and there is little

guidance for the courts of this country

on the proper approach to this common

evidentiary situation, it is a very

important issue of law deserving this

Court’s attention.

CONCLUSION

For the reasons set out above,

petitioner respectfully requests that

this petition be granted and this Court

address those important issues of law.

DATED: October 10, 1994

Respectfully submitted,

GEORGE L. MERTENS

Attorney at Law

P.O. Box 554

Lincoln, CA 95648

Telephone: (916) 645-9759

Attorney for Appellant

Counsel of Record

APPENDIX

Unreported Decision Dated April 26, 1994 Of

The California Court Of Appeal, Third

Appellate District In People of The State Of

California, Plaintiff and Respondent v. Kent

F. Ray, Defendant and Appellant, 3 Crim.

C014582

A jury convicted defendant of murder in

the first degree. (Pen. Code, §§ 187, 198.)

Defendant was sentenced to prison for 25 years

to life.

On appeal, defendant contends,

principally, that there is no substantial

evidence to support his murder conviction or,

at the least, no substantial evidence to

support a finding of premeditation and

deliberation. Additionally, defendant

contends the trial court erred (a) in denying

his motion to suppress evidence (Pen. Code, §

1538.5), (b) in allowing the impeachment of

defendant’s girlfriend with prior inconsistent

statements, and (c) in refusing defendant’s

requested instructions. None of defendant’s

arguments has merit. We shall affirm.

On the morning on November 5, 1991, the

victim, Kwok Chi Ray, was found dead, lying

face down in the trunk of her automobile. The

victim had a laceration on the right side of

her head. This injury was the result of a

blow from a blunt instrument. The head

laceration would have bled profusely. Such a

blow could have rendered the victim

unconscious. However, the cause of death was

ligature strangulation with an instrument such

as a rope. Marks on the victim’s neck

indicated constant pressure had been applied

and death would have occurred in 3-5 minutes.

According to medical testimony, the victim

died 55-60 hours before her body was

discovered, placing her death at sometime

between 11 p.m. on Saturday, November 2, and 4

a.m. Sunday, November 3. No murder weapon was

found.

The victim and her sisters Paula and

Kwok Kin (Kim) all resided in close proximity

to each other in the Land Park area of

Sacramento. Kim was a daily visitor to the

victim’s house ("the residence"). Every

morning Kim went to the residence for

breakfast and Kim often took naps there in the

afternoon. Kim had a key to the residence

which she used on a regular basis.

At the time of her death, the victim

had been married to defendant for 12 years.

In 1986 they had a son, Nelson. The victim

and defendant were part owners of a local

restaurant. The other owners were Kim and

Kim’s husband, Michael. The victim and Kim

worked at the restaurant as waitresses.

Michael worked as a cook and defendant was

responsible for maintenance and housekeeping.

It was no secret to family members and

close friends that the victim and defendant

were having marital problems. Defendant had

begun a romantic relationship with Jiang

Jiang, a student he met at California State

University, Sacramento. The victim was aware

of the affair. Three months before the

victim’s death, defendant filed for divorce.

The victim did not want a divorce because she

did not want another woman raising Nelson.

Despite their marital problems, the victim and

defendant continued to live together in the

residence.

If defendant had followed his regular

schedule he would have gone to the restaurant

on Sunday, November 3, to steam-clean the

oven. However, on the afternoon of Saturday,

November 2, the victim and defendant argued,

apparently because defendant refused any

longer to perform his responsibilities at the

restaurant.

Following the argument, the victim went

to work at the restaurant. During that

evening the victim, Kim, and another waitress,

Mei Wong, made plans to meet at the residence

at 10 o’clock the next morning to take a trip

to San Francisco.

Because of the their plans to go to San

Francisco, the victim and Kim remained after

the restaurant closed at 11 p.m. to clean up.

Among the tasks they performed was steam-

cleaning the oven.

Shortly after 1 a.m. on November 3, Kim

drove the victim home and watched as she

entered the residence and closed the door.

Kim did not observe the victim’s car, but this

was not unusual as it was usually kept in the

garage.

Later that morning, at about 5:30,

Dinah Fong, a neighbor of defendant and the

victim, was awake in bed when she heard the

sound of a car motor starting. According to

Fong, the sound was not very loud and appeared

to come from the direction of the residence.

Fong was certain the sound she heard was not

that of defendant’s truck.

On the morning of November 3, sometime

between 9:15 and 9:30, Kim telephoned the

residence to inform the victim she had changed

her mind about going to San Francisco.

Defendant answered and told Kim the victim was

not at home; that she was probably at the

restaurant steam-cleaning the oven. When Kim

informed the defendant they had steam-cleaned

the oven the night before defendant became

angry. Kim then asked defendant what time the

victim left the residence that morning.

Defendant answered he did not know. Kim then

called her father and Paula, but was unable to

locate the victim.

As the morning progressed, Kim and

Paula became worried because they could not

find the victim. Kim was especially worried

because she always knew where the victim was

and what she was doing. Kim went to the

victim’s house and questioned defendant as to

her sister’s whereabouts. Defendant again

replied he knew nothing. Nelson informed Kim

that he had not seen his mother at all that

day. According to Kim, defendant did not

appear concerned about his wife’s appearance.

Brenda Yuen, who earlier that morning

had left her two children at the residence wo

play with Nelson, returned to the residence

eee frm

around noon. At that time, Brenda’s oldest

son told her and Kim that there was a large

wet spot on the carpet and pointed it out to

then.

Kim and Brenda observed a large stain

which was lighter in color that the rest of

the carpet. The area was wet and smelled of

chlorine and bleach. Kim showed the carpet to

defendant, who stated he did not know what had

happened. Defendant denied he had cleaned the

carpet, and also denied the carpet had been in

that condition the previous day. Nelson

informed Kim the carpet had not been in that

condition the day before. Defendant suggested

the kids might have spilled something on the

carpet, but the children denied they had

spilled anything.

At approximately 2:00 p.m. Kim decided

to phone the police. Because she was nervous

and did not speak English well, Kim asked

defendant to speak to the officer. Defendant

did so, then informed Kim the police could not

do anything until the victim had been missing

for a longer time.

Later that afternoon, Elaine Rice, an

acquaintance of defendant, the victim and Kin,

went to the residence and spoke with

defendant. Defendant told Rice that he and

Nelson awakened at 6:30 that morning and his

wife was not at home. According to Rice,

defendant did not appear distressed or:

concerned.

Rice left the residence but returned a

short time later along with Paula to look at

the carpet. Rice described the stain as a

"sizable area about the size of a body that

was lighter that the rest of the carpet... ."

Rice inquired of defendant about the condition

of the carpet. Defendant repeated what he had

said earlier to Kim: he did not know anything

about the stain except that it was not there

the night before. According to Rice,

defendant appeared emotionless and

indifferent. Rice and Paula discovered one of

the victim’s purses in the pantry but noticed

the victim’s car was not in the garage.

Paula and Rice left a few minutes

later, but Kim and Rice returned after Rice

discovered she had left her sunglasses at the

residence. Upon arriving, no one was home, so

Kim used her own key to enter the residence.

Defendant drove up in his truck with

Nelson. It was approximately 4:30 p.m. Kim

told defendant that she and Rice were going to

file a report with the police.

Rice later spoke on the phone with a

police officer and reported the victim’s

disappearance and requested an officer be sent

out to examine the carpet. The officer stated

no'one could be sent out at that time. As the

afternoon turned into evening, Rice and Kim

made several additional calls to the police in

an effort to have an officer examine the

carpet.

Rice and Kim phoned defendant and

informed him of their conversations with the

police. In all, they spoke with defendant by

phone three times, asking him each time if the

police could come to the residence to examine

the carpet. Defendant responded affirmatively

each time but informed them he intended to go

to be at 9 p.m. and further intended to unplug

the telephone because it had been ringing all

day. Rice informed defendant the police would

probably not arrive before he went to bed.

Rice suggested that as Kim had a key, Rice and

Kim would simply let the police inside when

they arrived. Defendant agreed.

Officer Skip Buck arrived at the

residence at approximately 8:45 p.m. Rice and

Kim informed Buck of everything they had

learned, including the unusual condition of

the carpet. As they approached the front

door, it appeared no one was awake. Kim used

her key to let the officer and Rice inside.

Once inside the women showed Buck the

carpet. Buck observed part of the carpet was

blanched a stark white in contrast to the off-

white color of the rest of the carpet. On

closer inspection, Buck observed some darkened

areas of red-brown discoloration. The area

was wet and smelled of bleach. Buck noticed a

vacuum cleaner in the adjacent dining

room/play area. The vacuum bag was damp and

also smelled of bleach. Buck called for a

crime scene investigator to come to the house.

Officer Tomita arrived and took photographs of

the stained area.

Buck remained in the house for over two

hours, at one point removing fibers from the

discolored area on the stained carpet. Buck

also seized the vacuum cleaner bag.

Before leaving the residence, Buck went

to defendant’s bedroom door and knocked.

Defendant answered. According to Buck,

defendant stated he had no clue as to his

wife’s whereabouts, as the last time he saw

her was 4:30 p.m. the preceding day. When

defendant awoke at approximately 6:30 the next

morning, his wife was not at home. Defendant

All

had no explanation for the darkened spots

within the bleached area of the carpet, but

suggested the carpet might have been bleached

by chlorine from the pool and Jacuzzi.

Defendant repeated the carpet had not been

stained when he had gone to bed the previous

evening.

Police investigators contacted

defendant at his place of work on the .

following morning, November 4, 1991.

Defendant told the officers he was unsure if

his wife had come home Sunday morning.

Defendant surmised his wife probably did come

home but awakened early and left before

defendant awoke. He also acknowledged he and

the victim had argued about his duties at the

restaurant.

During the discussion, the officers

sought to obtain from defendant a photo of his

wife so that the media could alert the public

to her disappearance. The officers indicated

their request was urgent. Defendant stated he

Al2

could not get away from work until later that

afternoon. However, when the officers offered

to speak with defendant’s supervisor,

defendant agreed to leave with the officers

and return to his house to obtain a photo.

Upon arriving at the residence,

defendant refused to allow the officers to

enter and refused to sign a consent form.

Defendant entered and obtained a ghictograph of

the victim and gave it to the officers.

On the evening of November 4, the

investigating officers obtained a search

warrant for the residence. Additional

photographs were taken by officer Tomita and a

large section of the carpet and pad underneath

were cut out by criminalists Mary Hansen and

Cheryl Reynolds. Prior to executing the

search warrant, Hansen examined the carpet

fibers seized by Buck the night before.

Hansen concluded there was blood on the

fibers. At the residence, investigators

observed corresponding stains on the carpet

pad and the underlying cement slab. Tomita

also observed that when he returned to the

residence that evening, the stain appeared

slightly different than it had the night

before.¥

At approximately 10:50 the following

morning, November 5, Officer Smith was on

patrol in Oak Park approximately three and

one-half miles from the residence. He spotted

the victim’s blue Ford Taurus parked in front

of a no parking sign near the intersection of

38th Street and 9th Avenue. The victim’s body

was discovered in the trunk. The body was

lying face down, with the hands tied behind

the back. The keys were not in the car but it

contained no currency. Residents of the area

¥ Tomita testified that when he

entered the residence on the evening of

November 4, "the stained area...

appeared to be of a lighter contrast as

if it had been worked on." When asked by

the prosecutor what he meant by "worked

on," Tomita replied, "It appeared to me

as soon as I walked in the door that the

area that had been scrubbed or rubbed on

had gotten larger."

Al4

testified they had observed the car parked in

that location as early as Sunday morning,

November 3.

Following the discovery of the victim’s

body and vehicle, defendant was arrested.

While defendant was being booked, Detective

Stanfield observed three scratches on

defendant’s right wrist. These appeared to

Stanfield to be fingernail scratches.

Defendant explained the scratches were a

nervous rash.

Criminalist Hansen testified the carpet

fibers and the stains on the carpet and carpet

pad each contained type B blood. The victim

had type B blood. Defendant’s blood is type

A. Enzyme tests of the blood on the carpet

and carpet pad were consistent with tests of

the victim’s blood.

On November 15, 1991, defendant’s

girlfriend, Jiang Jiang, was interviewed by

Detective Tom Lee in the presence of Jiang’s

attorney. Jiang related a recent conversation

A15

ooo

she had with a friend, Irene Wang. Wang had

reminded Jiang that Jiang had previously told

her that defendant had stated to Jiang that he

wanted his wife killed and had described an

occasion two to three years earlier when he

had driven to an undisclosed location to meet

someone who offered to kill defendant’s wife.

Defendant had explained that he became scared

and never actually met with the prospective

killer. Wang reminded Jiang of these

statement of defendant several times,

beginning shortly after the discovery of the

victim’s body.

Defendant first argues there is no

substantial evidence he committed the murder.

Additionally, defendant argues there is no

substantial evidence the murder was

deliberated and premeditated.

The test on appeal is whether

substantial evidence supports the conclusion

of the trier of fact. (People v. Wright

A16

eS a | ae

“TT

(1985) 39 Cal.3d 576, 592.) In making this

determination, we must review the whole record

in the light most favorable to the judgment

and presume in support thereof the existence

of every fact the trier could reasonable

deduce from the evidence. (People v. Towler

(1982) 31 Cal.3d 105, 117-118; People v.

Johnson (1980) 26 Cal.3d 557, 576-577.)

The standard of review remains the same

in cases where the People rely primarily on

circumstantial evidence. (People v. Perez

(1992) 2 Cal.4th 1117, 1124.) “Although it is

the duty of the jury to acquit a defendant if

it finds that circumstantial evidence is

susceptible of two interpretations, one of

which suggests guilt and the other innocence

[citations] , it is the jury, not the

appellate court which must be convinced of the

defendant’s guilt beyond a reasonable doubt.

‘"If the circumstances reasonably justify the

trier of fact’s findings, the opinion of the

reviewing court that the circumstances might

Al7

also be reasonably reconciled with a contrary

finding does not warrant a reversal of the

judgment."’ [Citations.]" (People v. Bean

(1988) 46 Cal.3d 919, 932-933; People v.

Perez, supra, 2 Cal.4th at p. 1124.)

There is no question the victim was

murdered by someone. The question is who. As

we view the record, a reasonable jury could

conclude the evidence establishes defendant’s

guilt beyond a reasonable doubt.

The most compelling evidence is the

carpet which was stained with blood

indistinguishable from that of the victim.

This evidence suggests the victim was murdered

at home. When Kim dropped the victim off at

the residence at 1 o’clock on the morning of

November 3, only defendant and Nelson were

there. Certainly, there is no evidence,

direct or circumstantial, that the victim

encountered an intruder inside the residence.

There was no evidence of forced entry.

Moreover there was no evidence the victim had

Ais

any enemies who might have entered and lain in

wait for her at the residence. The time of

death was between 1-4 a.m. on November 3. The

only individuals in the residence when the

victim was murdered were defendant and Nelson,

who at age 5 is not a viable candidate for

matricide. Thus the evidence strongly points

to defendant as the only person who had the

opportunity to kill the victim when she

returned home on the morning of November 3.

The carpet stain points to defendant as

the killer for a second reason. The medical

testimony established the blow to the victim’s

head would have caused profuse bleeding. It

is a reasonable inference the blow to the

victim’s head was administered in the

residence and blood therefrom spilled on the

carpet; the carpet the killer attempted to

clean up the blood by applying bleach to and

then vacuuming the carpet. It is not

reasonably plausible that an intruder who

attacked the victim in her home would have

—————oOOOOOOOOOOOeEeVOmO

made any attempt to clean the blood from the

carpet. It is even less plausible to suppose

an intruder would have vacuumed the carpet

while defendant and Nelson were asleep in the

bedroom. The evidence points to defendant as

the only possible killer with the motive to

cover up the evidence of a murder.

The cause of death also points to the

defendant as the killer. The manner of the

killing, a blow to the head to stun the victim

or to render her unconscious, followed by

ligature strangulation for 3-5 minutes,

suggests the crime was committed by one with

strong hands. He also had marks on his wrist

which appeared to an officer to be fingernail

scratches.

Defendant’s conduct following his

wife’s disappearance supports the inference he

was the killer. Various witnesses described

defendant as indifferent, almost casual, in

his reaction to his wife’s apparent

disappearance. Moreover, he was uncooperative

A20

with investigating officers, responding only

grudgingly to their request for a photograph

of his wife. On this occasion defendant

asserted he was too busy to help and only

cooperated when the officers offered to speak

with his employer.

Defendant’s statements following his

wife’s disappearance are also circumstantially

inculpatory. Defendant repeatedly stated to

friends, relatives and law enforcement

officials the carpet had not been stained when

he went to bed the evening of November 2.

Defendant was unable to offer a plausible

explanation for how the carpet might have

become stained while he was asleep in the

house. He first suggested that the children

had spilled something on the carpet, but the

children denied it and there was no evidence

they were playing with bleach on the morning

of November 3. Defendant then suggested the

carpet might have become stained with bleach

from the outside pool or Jacuzzi. Yet, there

A21

was no evidence anyone had used the pool or

Jacuzzi that morning. Finally, when asked if

he could offer any explanation for his wife’s

disappearance other than that she might have

returned to the restaurant, defendant

suggested that his wife might have driven to

Paradise to retrieve some of her personal

possessions. Yet uncontroverted evidence

indicated the victim did not like to drive,

seldom drove her own vehicle--Kim often drove

the victim’s vehicle for her--and seldom if

ever drove on the freeway.

Defendant had a motive for killing his

wife. He had been having an affair with Jiang

for some time and had talked with her about

getting married and in fact did so two months

after his wife’s murder. He had made some

statements to Jiang about a previous effort to

have his wife killed.

In his opening brief, defendant makes

numerous concessions with regard to the

evidence against him. He argues, however, the

A22

Pea NF lteen SHS hee NY PERE ERI ae aa eae

People failed to prove directly or by

reasonable inference the date of the carpet

stain or any connection between the carpet

stain and the victim’s death. We disagree.

Defendant’s assertion the People failed

to prove the date of the stain is belied by

his own repeated statements to several people,

including the police, that the carpet was not

stained when he went to bed on the evening of

November 2. Defendant later suggested the

children might have spilled something or that

the stain came from chlorine used in the

outdoor pool and/or Jacuzzi. Yet the children

denied spilling anything on the carpet, and

there is nothing in the record to suggest

anyone had brought bleach or chlorine into the

house on the morning of November 3.

Defendant’s Claim the People failed to

prove any nexus between the carpet stain and

the victim’s death is likewise bootless. The

medical testimony established the blow which

lacerated the victim’s head would have caused

A23

sustained." (People v. Werner (1952) 111

Cal.App.2d 264, 270.) "No rule can be laid

down as to the character or amount of proof

necessary to show deliberation and

premeditation, and each case must depend upon

its own facts. [Citations.] The required

deliberation and premeditation need not be

directly shown by the evidence but may be

inferred from facts and circumstances which

furnish a reasonable foundation for such a

conclusion. [Citations.]" (Id., at p. 271.)

To generalize, there are three types of

evidence from which an inference of

premeditation and deliberation may be drawn:

(1) facts showing the defendant engaged in

planning activity before the killing; (2)

proof of defendant’s prior conduct with the

victim from which the jury might infer a

motive for a planned killing; and, (3)

evidence the manner of the killing was so

particular and exacting the jury could

conclude it was carried out according to a

A26

heise hehe eb ints Siu

preconceived design and for a specific reason.

(People v. Anderson (1968) 70 Cal.2d 15, 26-

27.)

In this case there is substantial

evidence of all three of the Anderson factors.

Prior threats by the killer to do violence to

the victim tend to show premeditation and

deliberation. (See United States v. Brown

(7th Cir. 1975) 518 F.2d 821, 828.) Here

defendant discussed marital problems with

Jiang, told her he wanted to have his wife

killed, and described steps he once took in an

abortive effort to accomplish that end. This

evidence tends to show premeditation and

deliberation.

From evidence of the victim’s daily

work routine at the restaurant, her

responsibilities as a wife and a mother, and

her cultural obligation to assist and help

other family members, it may be inferred there

was seldom a time when defendant, Nelson, or

members of the victim’s extended family were

A27

not either with her or did not know where she

was and what she was doing. The fact the

murder was committed in the early morning

hours indicates defendant planned the crime

for the only time when there would be an

opportunity to kill the victim and dispose of

the body. (Cf. People v. Werner, supra, 111

Cal.App.2d at p. 271 ["The mere fact that no

eyewitnesses saw the killing or heard the

defendant say what was in his mind at the time

in question does not necessarily preclude a

finding of deliberation and premeditation."].)

Evidence of planning activity may also

be inferred from the fact defendant claimed he

had an "argument" with the victim on the day

before she was killed ostensibly over his

refusal any longer to discharge his

maintenance responsibilities at the

restaurant. His refusal would require the

victim to perform those duties in defendant’s

stead, going to the restaurant Sunday morning

to do which included steam-cleaning the oven.

A28

This allowed defendant to claim his wife must

have returned to the restaurant early Sunday

before he awoke, and thus to plant the

inference she met her demise at or enroute to

or from the restaurant.

The "argument" would have provided

defendant with a plausible explanation for his

wife’s absence from home when he awoke Sunday

morning had not his wife and Kim unexpectedly

made plans to go to San Francisco that

morning, thus causing them to remain after

Saturday night closing to clean the

restaurant. When on Sunday morning defendant

was informed by Kim that she and the victim

had done the steam-cleaning the previous

evening, he reacted angrily. The jury could

reasonably infer defendant became angry

because this unforeseen circumstance had

shifted the suspected locus of the murder from

the restaurant and environs to the residence.

There is an abundance of substantial

evidence of motive. Defendant and the victim

A29

were having marital problems. Defendant and

Jiang had discussed getting married several

months before the victim was murdered.

Although defendant filed an action to dissolve

the marriage, the victim did not want a

Gissolution, as she was concerned about

custody of their son. There was also

complicated financial arrangements relating to

the business which would have to be resolved

in the dissolution proceedings. Defendant was

the beneficiary of a $70,000 policy of life

insurance on his wife. Defendant benefitted

financially from the death of the victim and

her death also removed all immediate

impediments to his marrying Jiang, which he

did two months after his wife’s murder.

Finally, the manner of the killing was

such that the jury could infer it was carried

out according to a preconceived design and for

calculated reasons. It appears the victim was

strangled after she had been struck on the

head with force sufficient to have caused her

A30

to lose consciousness. The manner of death--a

blow to the head to incapacitate the victim

followed by strangulation--suggests evidence

of planning activity. (People v. Werner,

supra, 111 Cal.App.2d at p. 272.) Moreover,

it appears defendant chose a method which

would not disturb the sleep of his son, yet

one which his strength enabled him easily to

accomplish.

"As we have stated, the relevant

question on appeal is not whether we are

convinced beyond a reasonable doubt, but

whether any rational trier of fact could have

been persuaded beyond a reasonable doubt that

defendant premeditated a murder." (Italics in

original; People v. Perez, supra, 2 Cal.4th at

p. 1127.) Because there is substantial

evidence of each of the Anderson factors, we

conclude the evidence is sufficient to sustain

the jury’s finding of premeditation and

deliberation.

A31

Defendant argues the judgment must be

reversed because the trial court erroneously

denied his motion to suppress. (Pen. Code, §

1538.5.) Defendant makes numerous claims in

this regard but, as we shall explain, the

dispositive issues are defendant’s consent to

the search of his residence on November 3, and

police adherence to the scope of that consent.

When a search is conducted without a

warrant it must be justified under a

recognized exception to the warrant

requirement. Consent constitutes such an

exception. (People v. James (1977) 10 Cal.3d

99, 106.) The People have the burden of

establishing the consent upon which the search

was predicated was voluntarily give. (Ibid.;

People v. Hernandez (1988) 199 Cal.App.3d

1182, 1187.)

The voluntariness of consent is in

every case a question for the trier of fact

and must be determined by the totality of

circumstances. (People v. James, supra, 19

A32

Cal.3d at pp. 106-107.) On appeal, a

reviewing court examines the evidence in the

light most favorable to the trial court’s

finding of voluntariness. (People v. Ratliff

(1986) 41 Cal.3d 675, 686.) The trial court’s

findings, either express or implied, will be

upheld on appeal if they are supported by

substantial evidence. (Ibid.; People v.

James, supra, 19 Cal.3d at p. 107.)

The evidence at the special hearing

shows that throughout the day of Sunday,

November 3, many of the victim’s relatives and

friends were concerned for her safety. One

friend, Elaine Rice, acted as an interpreter

and liaison for Kim, who did not speak English

well, in alerting the police to the victim’s

disappearance and getting the police to come

to the residence to examine the carpet.

Rice testified that on the afternoon of

November 3, she telephoned the police and

reported the victim missing. Rice called back

a second time to report the license plate of

A33

ee Se ae a

the victim’s vehicle. In both conversations,

Rice requested an officer be sent out to

examine the carpet.

Thereafter, Rice telephoned defendant

and related her conversation with the police

to him. In particular, Rice informed

defendant that she and Kim had asked the

police to come to the residence to look at the

stain. Defendant responded “yes." Rice later

telephoned the police again, asking

specifically when an officer might be able to

come out to look at the stain. She was

informed by the police that they were busy and

that it might be some time before an officer

could be dispatched to the residence.

However, the police did promise an officer

would come out that evening. Rice again

telephoned defendant and told him the police

would be coming out to the house sometime that

evening to look at the stain. Defendant again

answered "yes."

A34

SAN Og RS 2 RR PES

Later that evening the police contacted

Rice and informed her they would be delayed

once again. Because defendant had previously

informed Rice he intended to unplug the

telephone and go to bed at 9 p.m., Rice was

concerned about police access to the

residence. Rice phoned defendant and told him

the police would be delayed. She also asked

if she and Kim could let the police into the

residence with Kim’s house key because

defendant would-most likely be asleep by the

time the police arrived. In response to

Rice’s request "can we let ourselves in?’"

defendant answered "yes."2’/ Rice informed

2/ At one point, Rice testified

she could not remember if she asked the

Gefendant "Can we let ourselves in?" or

something to the effect of "Do you mind

if we let ourselves in?" However, on

cross-examination, defense counsel

questioned Rice specifically on this

issue, asking her whether she said to the

defendant "’Can we let ourselves in?’"

Rice answered in the affirmative. She

then testified defendant’s answer to that

question was "‘Yes.’"

A35

defendant that they would do their best not to

awaken him.

At approximately 8:45 that evening

Officer Buck contacted Rice and Kim who

informed him the victim had last been seen at

approximately 1 o’clock that morning, and the

carpet in the house had a suspicious looking

stain. The women also informed Buck that

defendant had a Chinese girlfriend "who needed

to be married soon in order to secure

residency." Finally, the woman informed Buck

that Kim had a key to the house, that Rice had

spoken with defendant who said it was alright

for them to enter, and that defendant might

already be asleep. Buck, Kim and Rice then

went to the residence where Kim let them in

with her key. Defendant was apparently in bed

asleep. Once inside the women showed Buck the

wet and stained carpet.

Defendant argues his affirmative

responses to Rice’s twice repeated question

that she had asked the police to come over to

examine the carpet are ambiguous, and that at

most it shows the defendant may have given his

assent, but did not consent, to allowing the

police to enter his house. As we have noted,

the question of consent must be decided on the

totality of the circumstances. Here, in three

separate conversations with Rice, defendant

acknowledged Rice’s desire to have the police

look at the carpet and on each occasion

defendant acquiesced in Rice’s request. There

was no evidence that defendant at any time

raised any objection to the police entering

his home and examining the carpet.

During the final conversation, aware

that the police would probably not arrive

until after defendant went to bed, Rice asked

defendant, "can we let ourselves in?"

Defendant’s answer, "yes," could not be more

unequivocal. The trial court’s finding

defendant expressly consented to police entry

to his home is clearly supported by

substantial evidence.

A37

‘ et

Defendant next argues that even if he

gave consent to enter and examine the carpet,

the police exceeded the scope of that consent

by engaging in a general exploratory search of

the residence.

Buck testified that upon entering he

noticed part of the carpet was discolored.

According to Buck, the stained part of the

carpet was a blanched white in comparison with

the off-white color of the remainder. The

stained area was approximately two to three

feet in width and five feet long. The stained

area was depressed, damp and noticeably

different from the rest of the carpet. The

stained area also smelled strongly of a

cleaning solvent or bleach.

Buck took fiber samples from the rust-

colored spots because these fibers had the

appearance of having blood on them. Buck

placed the fibers in a paper bag he found

lying on a counter inside the house. Buck

also noticed a vacuum cleaner lying on its

A38

fH gD TERNS BAER rn Ra: etna ae apaanay Aap ARR A RIS EES ERR ES

pi aKa?

Ree te me rae

side in an adjacent room. From examining the

carpet, Buck believed it had been recently

vacuumed. He then examined the vacuum

cleaner, once again noticing the smell of the

cleaning solvent. Buck unzipped the vacuum

and seized the vacuum cleaner bag.

The evidence at the hearing indicates

Buck was in defendant’s house for

approximately two hours. He made and received

several phone calls, and at one point

requested additional officers be dispatched to

the residence. One of the responding officer

took photographs of the stained area.

Kim showed Buck where the garage was

located and pointed out the victim’s vehicle

was missing. The officer was also shown a

purse belonging to the victim. While in the

residence, Buck checked the laundry area where

he discovered bleach, gloves and other items

which Buck testified would be commonly found

therein.

A39

Defendant claims Buck made a general

exploratory search of the garage, laundry

area, and other places inside the house and

his search thus exceeded the scope of any

consent given by defendant. Defendant also

argues that as the search warrant issued the

following day was based in part on the items

Buck seized during his exploratory search,

those items seized pursuant to the search

warrant must also be suppressed.

The point missed by defendant is that

the only items seized by Buck during his

November 3 entry were properly seized because

they were within the scope of defendant’s

consent. Buck seized fibers from the carpet

as well as the bag from the vacuum cleaner

apparently used to vacuum the carpet all of

which were in the plain view of the officer.

(See Guidi v. Superior Court (1973) 10 Cal.3d

1, 10.) These were the only items seized

during Buck’s search. No other ‘observations

by Buck in the residence disclosed evidence

A40

4.) a Mane USS io eames eae ia a

Ce aCe

prentirin nates yi adie te 2 “43

unfavorable to defendant or formed the basis

for the search warrant which was subsequently

issued.

Because the search warrant was based

only on items properly and legally seized

during Buck’s consent search of the residence,

defendant’s claim the officer’s search exceed

the scope of his consent is unavailing.”

III

Defendant argues the trial court erred

in admitting into evidence Jiang’s testimony

of statements defendant made to her concerning

his marital problems and his desire to have

his wife killed. Although we find no merit in

defendant’s argument, a detailed explanation

is required.

Prior to trial, defendant moved in

limine to suppress statements made by Jiang to

the police with regard to an earlier

¥ In light of determination on

the issue of consent, defendant’s

remaining arguments relating to the

search need not be considered.

A4l

conversation she had with defendant wherein

defendant spoke of his marital problems and

his desire to have his wife killed.

The record reflects Jiang met with

Sacramento Police Detective Lee approximately

two days after the victim was reported

missing. During that conversation, Jiang

informed Lee that she had no information

concerning the victim’s disappearance.

Jiang later met with her friend Irene

Wang. Wang reminded Jiang of an earlier

conversation between them wherein Jiang

related statements made by the defendant

regarding his marital problems and his desire

to have his wife killed.

Following her conversation with Wang,

Jiang and her attorney arranged to speak again

with Detective Lee. The interview was

conducted on November 15, 1991 (the November

15 interview). During that interview, Jiang

informed Lee of her recent conversation with

Wang. Jiang then told Lee of statements

— ay.

A42

SSYis bids aca cub Lea etl ai oR heath

defendant had made with regard to his marital

problems and his desire to have his wife

killed. According to Jiang, defendant said

that someone had told him that he could have

his wife killed. Defendant mentioned having

driven to a location to meet this person, but

Said he became scared and decided not to leave

his vehicle.

At the in limine hearing, Jiang

testified that what she told Lee during the

November 15 interview was simply what she had

been reminded of by Wang. Jiang testified

that she had no independent recollection of

defendant having made any statements to her

regarding his marital problems or a desire to

have his wife killed, or even that she had a

conversation with Wang wherein Jiang repeated

these statements.

The trial court asked Jiang whether her

testimony was that she did not make the

statements to Wang or that she was unable to

recall making such statements to Wang. Jiang

A43

ca a

answered she did not know what she told Wang,

but that she did not think she had any such

conversation with Wang in which she repeated

statements by defendant about wanting to kill

his wife.

In ruling on the in limine motion, the

trial court found Jiang’s testimony at the

hearing inconsistent with what she had told

Lee as reflected in the transcript of the

November 15 interview. In the court’s view,

the transcript of the November 15 interview

indicated that Jiang was relaying to officer

Lee her own conversation with defendant and

not simply what she had been reminded of by

Wang.*’ The court further noted that it did

not believe Jiang’s in limine testimony that

she had no recollection of any such

conversation with defendant. (Cf. People v.

Peterson (1972) 23 Cal.3d 883, 892 [Trial

¥” Defendant’s trial counsel

concurred in the court’s assessment of

Jiang’s statements to Lee.

A44

court is entitled to doubt the genuineness of

a claim of memory lapse].)

The trial court concluded the

statements made by defendant to Jiang

constituted unambiguous statements against his

penal interest and thus were not barred by the

hearsay rule. (Evid. Code, § 1230.) The

court further concluded that if Jiang were to

testify at trial consistent with her in limine

testimony, the People would be allowed to

impeach her with the statements she made to

Lee during the November 15 interview. The

basis for this ruling was that Jiang’s

interview statements constituted prior

inconsistent statements and thus were not

barred by the hearsay rule. (Evid. Code, §

1235.) The trial court’s rulings were clearly

correct. (See People v. Earnest (1975) 53

Cal.App.3d 734, 741-743 [Multiple hearsay

consisting of a prior inconsistent statement

and an admission of the defendant properly

received into evidence]; see also People v.

A45

Zapien (1993) 4 Cal.4th 929, 952-953.) In so

ruling, the trial court evaluated the

trustworthiness of the statements in balancing

prejudice against probative value. (Evid.

Code § 352.) The court concluded the

probative value of the statements made by

defendant outweighed any prejudicial effect

because the statements demonstrated

circumstantial evidence of premeditation.

Subsequently, Jiang testified at trial

that defendant never told her he wanted to

kill his wife or that a few years earlier he

had taken steps in that direction. She

further testified that what she told Lee at

the November 15 interview was only what Wang

had told Jiang that Jiang had said on a

previous occasion. In light of the trial

court’s previous ruling, the People were

allowed to impeach Jiang with some of the

A46

statements she made to Lee during the November

15 interview.’

Defendant argues that if one considers

the entire November 15 interview, and not

various parts taken out of context, the only

conclusion that can be drawn is that Jiang is

relating to Lee what Jiang had been told by

~ Among those statements were the

following:

"[JIANG]): I remember something

[defendant] use to tell me. [Defendant]

wants, you know, he, and uh [defendant],

you know wants to kill his wife ....

"Between [defendant] and his

wife and uh his wife is a very, a person

-- a person is very strong opinion, yell

to him and whatever, and uh [defendant]

talk to a guy or whatever and the guy

said he could kill ...her....

"Yes, easy to kill her, you

know. And then -- I don’t exactly

remember between this part and the next.

I remember he told me... and uh

[defendant] went there and he was so

shaking, he was shaking and he could not

get out of the car, and then after while

he get a cool down and just drive back.

That the only thing I can remember...

"[Defendant) [g]ot nervous and

did not get out of the car, and he drive

back and then he decide to divorce."

A47

Wang. Thus defendant urges that the November

15 interview did not reflect Jiang’s

independent recollection of statements made to

her by defendant, but was simply an effort by

Jiang to inform Lee of those remarks of which

Jiang had been reminded by Wang.

The trial court carefully reviewed the

transcript of the November 15 interview. At

the in limine hearing Jiang reviewed the

transcript and conceded it was accurate.

Defense counsel likewise conceded the

transcript was accurate. The trial court

concluded the statements made by Jiang at the

November 15 interview were not simply based on

what Wang had told Jiang that Jiang had said

at some previous time, but instead constituted

Jiang’s independent recollection of her

conversation with defendant.

We have reviewed the tape and the

transcript and we believe they support the

trial court’s determination. Accordingly,

that part of the interview in which Jiang

A48

informed Lee of defendant’s statements about

his marital problems and his efforts toward

having his wife killed was properly admitted

to impeach Jiang after she testified she had

no recollection of any such statements.

(People v. Earnest, supra, 53 Cal.App.3d at

pp. 741-743.)

Defendant argues the admission of

Jiang’s prior inconsistent statements violated

his right of confrontation. Specifically,

defendant argues he was unable to cross-

examine Jiang about what she told Lee at the

November 15 interview because at trial Jiang

never acknowledged defendant had made any such

statements.

"The receipt in evidence of a prior

inconsistent. statement does not violate the

confrontation clauses of the federal and state

Constitutions where the declarant testifies at

trial and is subject to cross-examination.

[Citations.]" (People v. Zapien, supra, 4

Cal.4th at p. 955.)

A49

At trial, Jiang testified defendant

never told her he wanted to have his wife

killed or that he had taken any steps to

accomplish that goal. She further testified

that what she said to Lee during the November

15 interview was only what Wang told Jiang she

had said on a previous occasion. On both

direct and cross-examination, Jiang did not

refuse to answer any questions about her out-

of-court statements. Nor did she claim not to

have any recollection of her statements to

Lee. In fact, Jiang attempted to explain the

apparent inconsistency in what she told Lee at

the November 15 interview and her subsequent

trial testimony.

This is not a case where the witness

credibly convinced the trial court she did not

have an independent recollection of the

statements at issue. (See generally

California v. Green (1970) 399 U.S. 149, 168-

169 and fn. 18 [26 L.Ed. 489, 502-503 and fn.

18).) This likewise is not a case where the

witness refused to answer any questions, thus

stonewalling effective cross-examination.

(Cf. People v. Rios (1985) 163 Cal.App.3d 852,

860-861, 862-864.)

Here, the jury was presented with a

witness who attempted to explain the

inconsistency between her in-court testimony

and her previous out-of-court statements. The

weight to be afforded such testimony was for

the jury to determine. (People v. Zapien,

supra, 4 Cal.4th at p. 956; People v. Barnes

(1986) 42 Cal.3d 284, 303-304.) Defendant’s

trial right were fully protected. (Cf. People

v. Rios, supra, 163 Cal.App.3d at p. 865.)

Defendant’s final claim is of

instructional error. Defendant argues the

trial court erred in refusing to give his

modified version of CALJIC No. 2.03. It was

given in its standard form in relevant part as

follows: “If you find that before this trial

the defendant made a willfully false or

A51

deliberately misleading statement concerning

the crime for which he is now being tried, you

may consider such statement as a circumstance

tending to prove a consciousness of guilt.

However, such conduct is not sufficient by

itself to prove guilt, and its weight and

Significance, if any, are matters for your

determination."

Defendant requested the trial court

modify CALJIC No. 2.03 by adding the following

language to the instruction: "Before

considering the defendant’s statements, you

[must] determine the existence of the

following preliminary facts.

"1. Whether the defendant made the

statement; and

"2. Whether the defendant deliberately

lied to hide his complicity in the crime.

"3. Unless you find both of these

preliminary facts to exist, you must disregard

the statement.

"The defendant’s consciousness of

guilt, if any, is relevant upon the questions

of whether the defendant was afraid of being

apprehended and whether the defendant thought

he had committed a crime. Consciousness of

guilt may not be considered in determining the

degree of guilt or in determining which of the

charged offense the defendant committed."

Defendant argues the trial court erred

in refusing his modified instruction because

Evidence Code section 403, subdivision (c)

(1), gives him the statutory right to include

the additional language he proposed.”

2/ Evidence Code section 403

provides in relevant part: "(a) The

proponent of the proffered evidence has

the burden of producing evidence as to

the existence of the preliminary fact,

and the proffered evidence is

inadmissible unless the court finds that

there is evidence sufficient to sustain a

finding of the existence of the

preliminary fact, when: [4] (1) The

relevance of the proffered evidence

depends on the existence of the

preliminary fact; [4] (2) The

preliminary fact is the personal

knowledge of a witness concerning the

subject matter of his testimony; [4]

(3) The preliminary. fact is the

A53

Defendant’s claim fails for numerous reasons.

First, and dispositively, Evidence Code

section 403 applies only when the preliminary

fact is "disputed." (Evid. Code, § 402, subd.

(a).’ Defendant’s statements were received in

authenticity of a writing; [4] (4) The

proffered evidence is of a statement or

other conduct of a particular person and

the preliminary fact is whether that

person made the statement or so conducted

himself ... [4G] (c) If the court

admits the proffered evidence under this

section, the court: [4] (1) May, and on

request shall, instruct the jury to

determine whether the preliminary fact

exists and to disregard the proffered

evidence unless the jury finds that the

preliminary fact does exist. [q] (2)

Shall instruct the jury to disregard the

proffered evidence if the court

subsequently determines that a jury could

not reasonably find that the preliminary

fact exists."

&’” Evidence Code section 402

provides: "(a) When the existence of a

preliminary fact is disputed, its

existence or nonexistence shall be

determined as provided in this article.

[@] (b) The court may hear and determine

the question of the

admissibility of evidence out of the

presence or hearing of the jury; but in a

criminal action, the court shall hear and

determine the question of the

admissibility of a confession or

admission of the defendant out of the

presence and hearing of the jury if any

A54

evidence without objection or dispute as to

the existence or not of a preliminary fact.

Thus, defendant’s statements were not admitted

by the court "under this section" 403. In

fact there was no evidence at trial disputing

the ‘preliminary fact" whether defendant made

the statements ascribed to him. Second, in

his opening brief defendant does not specify

to which of his statements the modification of

CALJIC No. 2.03 is applicable. He claims only

that his pretrial statements were innocent

whereas the People argue they showed a

consciousness of guilt.” In light of

defendant’s failure to specify those

party so requests. [4] (c) A ruling on

the admissibility of evidence implies

whatever finding of fact is prerequisite

thereto; a separate or formal finding is

unnecessary unless required by statute."

2/ In his reply brief, defendant

states only that Evidence Code section

403, subdivision (c) (1) "applies to the

multitude of statements that [defendant }

purportedly made to the prosecution

witnesses that the prosecutor argued

manifested [defendant’s] reluctance to

search for his wife and thereby

demonstrated a consciousness of guilt."

A55

statements as to which he asserts the modified

instruction would have been applicable, we are

unable to resolve this claim. Third,

defendant’s proposed modification is

argumentative and incorrectly states the law.

For example, defendant’s modification would

substitute for the phrase "deliberately

misleading," the phrase "deliberately lied."

But the rule stated in CALJIC No. 2.03 applies

both to statements that are willfully false

and deliberately misleading. (People v.

Breaux (1991) 1 Cal.4th 281, 303.)

Finally, we find ourselves in complete

agreement with the trial court that CALJIC No.

2.03 did not require any modification, let

alone the proposed modification, in order for

it to be understandable to the jury.

Accordingly, the trial court did not err in

refusing defendant’s instruction request.

Defendant also argues the trial court

erred in refusing his request the court give a

modified version of CALJIC No. 2.06. Instead,

A56

the court gave the instruction in its

unmodified form which states in relevant part:

"If you find that a defendant attempted to

suppress evidence against himself in any

manner, such as destroying evidence or by

concealing evidence, such attempt may be

considered by you as a circumstance tending to

show a consciousness of guilt. However, such

conduct is not sufficient by itself to prove

guilt, and its weight and significance, if

any, are matters for your consideration."

Defendant proposed modifying this

instruction to read as follows: "If you find

that a defendant attempted to suppress

evidence against himself in any manner, such

as by attempting to clean the stain off the

carpet, such attempt may be considered by you

as a circumstance tending to prove a

consciousness of guilt. However, such conduct

is not sufficient by itself to prove guilt,

and its weight and significance, if any, are

matters for your consideration.

A57

"The defendant’s consciousness of

guilt, if any, is relevant upon the questions

of whether the defendant was afraid of being

[apprehended] and whether the defendant

thought he had committed a crime.

Consciousness of guilt may not be considered

in determining the degree of defendant’s guilt

or when determining which of the charged

offense the defendant committed."

Defendant concedes his proposed

modification with regard to direct mention of

the carpet stain might be considered

argumentative. Defendant claims, however, the

trial court erred in not giving the second

paragraph of his proposed instruction. He

argues that even if the jury found he

suppressed evidence, thus showing a

consciousness of guilt at having committed the

crime, such consciousness of guilt would have

no legal significance with regard to his state

of mind at the time he committed the crime.

A58

The point ignored by defendant is that

CALJIC No. 2.06, in its standard form, does

not focus on defendant’s state of mind at the

time of the offense. (People v. Breaux,

supra, 1 Cal.4th at p. 304.) The same is true

for CALJIC No. 2.03. (Ibid.) "We addressed

the same two instructions and rejected the

identical due process argument in People v.

Crandell (1988) 46 Cal.3d 833 []: ‘The

instructions advise the jury to determine what

Significance, if any, should be given to

evidence of consciousness of guilt, and

caution that such evidence is not sufficient

to establish guilt, thereby clearly implying

that the evidence is not the equivalent of a

confession and is to be evaluated with reason

and common sense. The instructions do not

address the defendant’s mental state at the

time of the offense and do not direct or

compel the drawing of impermissible inferences

in regard thereto.’ (Id. at p. 871, italics

A59

added; see also People v. Nicolaus (1991) 54

Cal.3d 551, 579-580 [].)" (Ibid.)

Since CALJIC No. 2.06 does not address

a defendant’s state of mind at the time of the

charged offense, the trial court did not err

in refusing to give defendant’s modified

instruction.

Defendant challenges the

constitutionality of the reasonable doubt

instruction, CALJIC No. 2.90, premising his

argument on the grant of certiorari by the

United States Supreme Court in Sandoval v.

California, Dock. No. 92-9049. On March 22,

1994, the high court held that CALJIC No.

2.90, taken as a whole, correctly conveyed the

concept of reasonable doubt and consequently

there was no reasonable likelihood that the

jurors understood the instruction to allow a

conviction on proof insufficient to meet the

standards set in In re Winship (1970) 397 U.S.

358. (Victor v. Nebraska (Mar. 22, 1994) __

A60

ee eee

U.S. _.._—« [62 U.S.L.Week 4179}.) In the words

of the court, "in the context of the

instructions as a whole we cannot say that the

use of the phrase [’moral certainty’] rendered

the instructions given in Sandoval’s case

unconstitutional." (Id. at Dp. —... [62

U.S.L.Week at p. 4183.)

The judgment is affirmed.

Puglia, P.J.

We Concur:

Sparks, J.

Sims, J.

A6é1

Order Issued By the California Supreme Court

In People v. Ray, S049267 Dated July 27, 1994

Appellant’s petition for review DENIED.

Lucas, Chief Justice

A62

STATUTES AND CONSTITUTIONAL AUTHORITIES |

United States Constitution

Amendment IV

The right of the people to be secure in their

persons, and effects, against unreasonable

searches and seizures, shall not be violated,

and no Warrants shall issue, but upon probable

Cause, supported by Oath or affirmation, and

particularly describing the place to be

searched, and the persons or things to be

seized.

United States Constitution

Amendment VI

In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public

trial, by an impartial jury of the State and

district wherein the crime shall have been

committed, which district shall have

previously ascertained by law, and to be

informed of the nature and cause of the

accusation; to be confronted with the

A63

witnesses against him; to have compulsory

process for obtaining witnesses in his favor,

and to have the Assistance of Counsel for his

defence.

United States Constitution

Amendment XIV

Section 1. All persons born or

naturalized in the United States, and subject

to the jurisdiction thereof, are citizens of

the United States and of the State wherein

they reside. No State shall make or enforce

any law which shall abridge the privileges or

immunities of citizens of the United States;

nor shall any State deprive any person of

life, liberty, or property, without due

process of law; nor deny any person within its

jurisdiction the equal protection of the law.

Section 2. Representatives shall be

apportioned among the several States according

to their respective numbers, counting the

whole number of persons in each ‘State,

excluding Indians not taxed. But when the

A64

right to vote at any election for the choice

of electors for President and Vice President

of the United States, Representatives in

Congress, the Executive and Judicial officers

of a State, or members of the Legislature

thereof, is denied to any of the male

inhabitants of such State, being twenty-one

years of age, and citizens of the United

States, or in any way abridged, except for

participation in rebellion, or other crime,

the basis of representation therein shall be

reduced in the proportion which the number of

such male citizens shall bear to the whole

number of male citizens twenty-one years of

age in such state.

Section 3. No person shall be Senator

or Representative in Congress, or elector of

President and Vice President, or hold any

office, civil or military, under the United

States, or under any state, who, having

previously taken an oath, as a member of

Congress, or as an officer of the United

A65

States, or as a member of any state

legislature, or as an executive or judicial

officer of any State, to support the

Constitution of the United States, shall have

engaged in insurrection or rebellion against

the same, or given aid or comfort to the

enemies thereof. But Congress may by a vote

of two-thirds of each House, remove such

disability.

Section 4. The validity of the public

debt of the United States, authorized by law,

including debts incurred for payment of

pensions and bounties for services in

suppressing insurrection or rebellion, shall ~

not be questioned. But neither the United

States nor any State shall assume or pay any

debt or obligation incurred in aid of

insurrection or rebellion against the United

States, or any claim for the loss or

emancipation of any slave; but all such debts,

obligations and claims shall be held illegal

and void.

A66

Section 5. The Congress shall have

power to enferce, by appropriate legislation,

the provisions of this article.

California Evidence Code

Section 352

The court in its discretion may exclude

evidence if its probative value is

substantially outweighed by the probability

that its admission will (a) necessitate undue

consumption of time or (b) create substantial

danger of undue prejudice, of confusing the

issues, or of misleading the jury.

California Evidence Code

Section 1235

Evidence of a statement made by a witness is

not made inadmissible by the hearsay rule if

the statement is inconsistent with his

testimony at the hearing and is offered in

compliance with Section 770.

California Penal Code

Section 187

A67

(a) Murder is the unlawful killing of a

human being, or a fetus, with malice

aforethought.

(b) This section shall not apply to any

person who commits an act which results in the

death of a fetus if any of the following

apply:

(1) The act complied with the

Therapeutic Abortion Act, Chapter 11

(commencing with Section 25950) of Division 20

of the Health and Safety Code.

(2) The act was committed by a holder

of a physician’s and surgeon’s certificate, as

defined in the Business and Professions Code,

in a case where, to a medical certainty, the

result of childbirth would be death of the

mother of the fetus or where her death from

childbirth, although not medically certain,

would be substantially certain or more likely

than not.

A68

(3) The act was solicited, aided,

abetted, or consented to by the mother of the

fetus.

construed to prohibit the prosecution of any

person under any other provision of law.

A69

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.