People v. Johnson

Opinion

THOMPSON, J.

In these appeals from judgments of conviction of first degree attempted burglary entered on jury verdicts, appellants contend: (1) they were denied their right of confrontation of the principal witness against them because (a) the trial court received prior testimony of that

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witness at the preliminary hearing upon his failure to appear at trial despite a lack of diligence of the prosecution to secure his attendance, and (b) improper conduct of an interpreter at the preliminary hearing precluded meaningful cross-examination; (2) when hearing the motion to exclude the preliminary hearing testimony, the trial court erroneously excluded evidence that the appellants had not been afforded an opportunity of meaningful cross-examination because translation of questions and answers with respect to the absent witness testimony had not been accurate; (3) the trial court permitted improper cross-examination relating to uncharged crimes; and (4) the judgments are not supported by substantial evidence. Concluding that the trial court failed to follow the statutory mandate of Evidence Code section 750 that an interpreter “is subject to all the rules of law relating to witnesses” and improperly excluded defense evidence relevant to appellants’ claim of denial of due process through restriction upon a meaningful right of cross-examination at the preliminary hearing, we reverse the judgment.

Based almost exclusively upon the testimony of Jose Rubio given at appellants’ preliminary examination to the effect that appellants kicked at him and threatened him with a “barber’s knife” while asking for his money but were frustrated by his flight, a jury found appellants guilty of attempted first degree robbery. The jury rejected appellants’ theory that the charge against them was based upon mistaken identity motivated by racial tension and fighting in the area between Blacks and Chícanos.

Rubio testified at appellants’ preliminary examination in December 1973. He related the facts of the crime charged and answered in the affirmative concerning whether he would be available to testify at trial. On January 21, 1974, the district attorney mailed a subpena to Rubio seeking his attendance at trial. The subpena was unanswered and subsequent efforts failed to locate Rubio. Appellants moved to exclude his testimony from the trial on the merits arguing that the prosecution had not used due diligence to secure Rubio’s presence as a witness and that deficiencies in the English-Spanish translation of Rubio’s testimony' at the preliminary hearing had denied them the reasonable opportunity to cross-examine him. In connection with the motion, appellants offered evidence of the investigating officer involved in the matter who was totally fluent in Spanish and English and who was present throughout the preliminary hearing to the effect that there were significant errors in the translation. The trial judge refused to hear the testimony, basing his ruling upon his conception that translation by an interpreter is the equivalent of transcription by a court reporter so as not to be subject to