P. v. Martinez

Filed 1/30/07 P. v. Martinez CA2/7

Opinion following rehearing

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from judgments of the Superior Court of Los Angeles County. Norman P. Tarle, Judge. Reversed.

John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant Jorge Estrada Martinez.

Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant Jorge Flores Sandoval.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.

___________________________________________

Jorge Flores Sandoval and Jorge Estrada Martinez appeal from judgments entered after a jury convicted each of them of one count of first degree felony murder and two counts of attempted robbery. Sandoval contends, among other things, the trial court committed reversible error by violating his right to have his own defense interpreter throughout the proceedings against him. Martinez joined this claim and also asserted the trial court erred in sentencing him.

In our initial opinion in this matter, we concluded any error with respect to the provision of Spanish language interpreters was harmless beyond a reasonable doubt. We granted Sandovals petition for rehearing, which Martinez joined, because Sandoval demonstrated his copy of the reporters transcript differed from this courts official copy regarding the identity and number of interpreters present at trial on a certain date. We ordered the trial court to resolve the discrepancy. Pursuant to a stipulation by the parties, the trial court determined Sandovals copy of the reporters transcript accurately reflected what occurred in court on that date: The trial court borrowed the defense interpreter to act as a witness interpreter for several Spanish-speaking witnesses, including appellants co-defendant Alejandro Quinares Viveros.

We find the trial court erred when it forced the three defendants to share one defense interpreter during trial without a valid waiver of their rights to individual interpreters. During the time the defense interpreter was borrowed to act as the witness interpreter, we cannot conclude the courts error was harmless beyond a reasonable doubt. Accordingly, we reverse the judgments.

FACTS AND PROCEEDINGS BELOW

I. The Charges

On December 17, 2002, attempted robberies occurred at Marces Hardware store and two victims were shot to death during the commission of the attempted robberies. An information charged Alejandro Quinares Viveros and appellants Jorge Estrada Martinez and Jorge Flores Sandoval with the murder[1]of store owner Claro Cortes (count 1) and the murder of store customer Vincent Fredricks (count 2). The information specially alleged the multiple murders[2]were committed while defendants were engaged in the commission of an attempted robbery.[3] In counts 3 and 4, defendants were charged with the attempted robbery[4]of Claro Cortes and the attempted robbery of Claros wife, Elvia Cortes, respectively. The information also alleged a principal was armed with a firearm during commission of the offenses,[5]and both Martinez and Sandoval personally used and personally and intentionally discharged a firearm causing death.[6]

During trial, the court granted defendants motion for judgment of acquittal on count 2 under section 1118.1, after the prosecutor conceded there was insufficient evidence Fredricks was shot by one of the defendants as opposed to victim Claro Cortes.

II. Evidence Presented at Trial About the Crimes

In the afternoon on December 17, 2002, Viveros drove Martinez and Sandoval to Marces Hardware store in his white Honda Accord. The store was located at the corner of 45th and Main Streets in Los Angeles. Viveros dropped Martinez and Sandoval off in front of the store and drove around the corner to park his car in a lot not affiliated with the hardware store. Viveros waited in the car. Martinez and Sandoval entered Marces Hardware. Martinez walked straight over to Elvia Cortes, who owned the store with her husband Claro. Elvia was working behind the cash register. Claro was standing in the aisle of the store where the screws, nuts and bolts were located. The sole customer in the store, Vincent Fredricks, also was in the back part of the store where Claro was working. Although Elvia would not be able to identify any defendant other than Martinez, she recalled one or two men who entered the store with Martinez walked to the back part of the store where Claro and Fredricks were located. Based on the other evidence presented at trial, Sandoval is the only man who entered Marces Hardware with Martinez that day.

Martinez told Elvia it was a robbery and demanded she open the cash register. He was standing about six inches away from her holding a gun. Because she was so frightened, Elvia was unable to open the register. She heard gunshots. Martinez took off for the back part of the store. Elvia heard more gunshots. The next thing she knew Claro came up to her and put his arms around her. She noticed he was bleeding from his arm. Elvia helped Claro lie down on the ground. Claro died as a result of gunshot wounds. At the time of the attempted robbery, Claro had on his person the gun he always carried with him. Fredricks also suffered a fatal gunshot wound at Marces Hardware.

A 13-year-old girl who lived across the street from Marces Hardware was watching television in her living room when she heard a noise which sounded like firecrackers. She looked out her window and saw two men exiting the hardware store. One man was running and the other man was limping behind him. The first man made it to the corner and entered the passenger side of a white car. The car moved forward a little bit and then the man who was limping also got in the passenger side of the car. The white car took off and the girl saw a police car follow it. The girl would later identify the white car she saw but not either of the two men. The girl also said she saw a third man, who was standing in front of the store, run toward the corner as the white car took off. Fredrickss friend, who was waiting in the parking lot next to the store, also heard loud noises. As he walked toward the store, he saw three men walking on the sidewalk near the store, one of whom had a gun.

Officers from the Los Angeles Police Department who were on duty near Marces Hardware heard the gunshots. They got in their patrol car and drove in the direction of the noises they heard. They saw witnesses pointing toward the corner of 45th and Main Streets. The officers saw a white car driving east on 45th Street. It was the only vehicle they saw leaving the area so they followed it. The car was not traveling at a high rate of speed, but it ran a red light, so one of the officers activated the lights and siren on the patrol car. After making a couple of turns, the white car pulled over. As it did so, someone tossed a gun out of the front passenger side of the vehicle.

The officers ordered three men out of the white car. Viveros was the driver, Martinez was in the front passenger seat and Sandoval was in the rear passenger seat. When they were searched, Viveros had $58 and some change on him, Martinez had $0.31 and Sandoval had no money. The police recovered a nine-millimeter Interarms handgun from the sidewalk near the right rear passenger door of the white car, and a nine-millimeter Beretta handgun from the front passenger seat. One of the officers noticed Sandoval was limping and there was blood on his pants. When the officer asked Sandoval to lift up his pant leg, the officer saw what appeared to be two gunshot wounds on Sandovals leg. Elvia Cortes was transported to the scene of the arrest and she identified Martinez as the man who showed her a gun and demanded she open the cash register. Elvia could not identify either of the other two men as persons who were at her store that day.

Inside Marces Hardware, police recovered eight spent nine-millimeter casings and six .38 caliber casings. A firearms examiner determined seven of the nine-millimeter casings came from the Beretta handgun. The location of the casings indicated the person firing the Beretta was moving toward the back of the store. A bullet recovered from the body of Claro Cortes was fired from the Beretta. One nine-millimeter casing came from the Interarms handgun. All of the .38 caliber casings came from a gun which belonged to Claro Cortes.

Viveros was the only defendant who presented evidence at trial. He testified and he called 11 other witnesses to testify on his behalf. Viveros said he did not know there would be an attempted robbery at Marces Hardware on December 17, 2002, and he did not participate in an attempted robbery. He barely even knew Martinez and Sandoval. He had wanted to get his white Honda Accord painted and an acquaintance put him in touch with Martinez. Martinez said he would paint the car and fix the spoiler on the back of the car which needed new screws. To reduce the price of the painting job, Viveros agreed to help Martinez sand the car. Martinez brought Sandoval on board for the job. On the day they set to begin the work, Viveros drove to pick up Martinez and Sandoval in his white Honda Accord. Martinez said they needed to purchase sandpaper and screws. The three men drove to Fernandos, a store Viveros was familiar with. Viveros gave Martinez $20 and he waited in the car while Martinez and Sandoval went into the store. When the two men returned, Martinez said the store did not have the right materials for the job. Martinez returned the $20 to Viveros.

Martinez directed Viveros to Marces Hardware. Martinez told Viveros to pull over in front of the store in an area where the curb was red. Martinez told Viveros to let him and Sandoval out of the car and park around the corner. Viveros complied. He parked the car and turned off the engine. While he was waiting in the car and trying to make a call on his cell phone, Viveros heard a noise which sounded like someone was hammering with a hammer. He saw some people look toward Main Street, but he didnt really think much of it. At some point, he looked in his rearview mirror and saw Martinez approaching the car. Martinez climbed in and said, Lets go, lets go. Viveros asked Martinez what was the matter. Martinez told him to start the car. Viveros noticed Martinez had a gun sitting on his knee. Viveros had not seen either Martinez or Sandoval with a gun up to that point.

Viveros started the car and began to drive away slowly. Then he looked back and saw Sandoval climbing into the car. He did not see Sandoval carrying a gun. He heard Sandoval tell Martinez he was injured. Viveros drove to the corner and turned left. At some point as he was driving, he saw a patrol car behind him which had its lights and siren on. He pulled over. Viveros denied running a red light. He said when he stopped at a red light Martinez told him to go through it but he refused.

III. The Jurys Verdicts and Appellants Sentences

As to Viveros, the trial court declared a mistrial on all counts after the jury reported it was deadlocked. The jury found Martinez and Sandoval guilty of the first degree murder of Claro Cortes and guilty of two counts of attempted robbery. The jury found true the following special allegations: (1) the murder was committed while Martinez and Sandoval were engaged in the commission of an attempted robbery; (2) a principal was armed with a firearm during commission of the offenses; (3) Martinez and Sandoval personally used and personally and intentionally discharged a firearm; and (4) Martinez personally and intentionally discharged a firearm which proximately caused Claro Cortess death. The jury found not true the allegation Sandoval personally and intentionally discharged a firearm which proximately caused Claro Cortess death.

The trial court sentenced Martinez to life without the possibility of parole on the first degree felony murder count, plus a term of 25 years to life for the firearm enhancement under section 12022.53, subdivision (d).[7] The court imposed but stayed pursuant to section 654 a term of two years (the middle term) for each of the attempted robbery counts.[8]

The trial court sentenced Sandoval to life without the possibility of parole on the first degree felony murder count, plus a term of 20 years for the firearm enhancement under section 12022.53, subdivision (c).[9]The court imposed but stayed pursuant to section 654 a term of two years (the middle term) for each of the attempted robbery counts.[10]

DISCUSSION

The trial court appointed Spanish language interpreters to translate the court proceedings, to assist defendants in speaking with counsel, and to translate for Spanish-speaking witnesses. Sandoval contends the trial court committed reversible error by violating his right to have his own defense interpreter throughout the proceedings against him. Specifically, he argues the trial court erred when it forced the three co-defendants to share one defense interpreter and, on one occasion, when the court borrowed the defense interpreter to act as a witness interpreter for Spanish-speaking witnesses. Martinez joined this claim. In response, the People argue, among other things, Sandoval and Martinez waived this claim and any error was harmless beyond a reasonable doubt.

As the California Supreme Court explained in People v. Aguilar, Interpreters play three different but essential roles in criminal proceedings: (1) They make the questioning of a non-English-speaking witness possible; (2) they facilitate the non-English-speaking defendants understanding of the colloquy between the attorneys, the witness, and the judge; and (3) they enable the non-English speaking defendant and his English-speaking attorney to communicate . . . an interpreter performing the first service will be called a witness interpreter, one performing the second service, a proceedings interpreter, and one performing the third service a defense interpreter. [Citation.][11]

Our Supreme Court has made clear article I, section 14 of the California Constitution requires that when [a defense] interpreter is appointed for a non-English speaking accused, the accused has a constitutional right to the assistance of the interpreter throughout the entire proceeding.[12] [N]othing short of a sworn interpreter at defendants elbow, will satisfy the article I, section 14 guarantee to an interpreter throughout the proceedings. [Citation.][13] A trial court errs when it provides only one defense interpreter for a group of defendants.[14] Under these circumstances it is not realistic to expect defendant [] to be able to communicate with his lawyer at any time the need arises.[15] A shared interpreter situation could significantly inhibit attorney-client communication because a defendant might not feel comfortable (1) interrupting the proceedings each time he wants to use the interpreter to speak privately with counsel and/or (2) relay[ing] confidential communications to counsel through the interpreter for his codefendant with conflicting interests.[16] A defendants constitutional right to an interpreter also is violated where a trial court borrows the defense interpreter to act as a witness interpreter for another party.[17]

The record shows all three defendants shared one defense interpreter throughout the preliminary hearing and at trial (at those times a defense interpreter was present and not being borrowed to act as a witness interpreter).

I. NEITHER SANDOVAL NORMARTINEZ WAIVED HIS RIGHT TO HAVE A SEPARATE DEFENSE INTERPRETER.

On the day voir dire began, the trial court explained the process as follows: We have one interpreter thats interpreting for all of the defendants, using one of the electronic devices called an ALDEC, that permits the interpreter to speak into the microphone and each of the defendants to hear it though an earpiece. Immediately after this explanation, the following exchange took place between the trial court and defendants:

[The Court:] Mr. Martinez, do you agree that a single interpreter may be used for these proceedings?

Defendant Martinez: Yes.

The Court: Mr. Sandoval, do you also agree to a single interpreter in these proceedings?

Defendant Sandoval: Yes.

The Court: Mr. Viveros, do you also agree, sir?

Defendant Viveros: Yes.

As discussed above, defendants each had a right to have a separate defense interpreter at the preliminary hearing and at trial. The People claim Sandoval and Martinez waived this right. We disagree. A valid waiver of the defendants constitutional right to an interpreter requires a voluntary and intelligent waiver of the right by the defendant.[18] The record must support a conclusion that defendant knew he had a right to an interpreter throughout the proceedings.[19] In this case, the trial court did not apprise defendants of their right to have separate defense interpreters. The record does not show either Sandoval or Martinez was aware of this right. The People argue the trial courts questioning should have tipped defendants off to the fact they had a right to separate defense interpreters. The People assert, The fact that the court asked each defendant if he agreed to share an interpreter necessarily informed the defendants they did not have to share an interpreter. Without a full explanation by the trial court of the nature and scope of the right, we cannot find Sandoval or Martinez made a voluntary and intelligent waiver of this constitutional right.

II. THE TRIAL COURT ERRED WHEN IT ALLOWED ONE DEFENSE INTERPRETER TO ACT FOR ALL THREE DEFENDANTS AND, AT THE TIME THE COURT BORROWED THE DEFENSE INTERPRETER TO ACT AS A WITNESS INTERPRETER, THE ERROR WAS NOT HARMLESS BEYOND A REASONABLE DOUBT.

As we concluded in our initial opinion in this matter, it is clear the trial court erred. Not only did the three defendants share one defense interpreter with each other without a valid waiver of their rights to individual interpreters, but also, on the first day evidence was presented at trial, the court asked counsel if defendants would agree to share their defense interpreter with one of the people in the audience who was not identified on the record. Defense counsel all agreed.[20] The interpreter expressed some concern: Excuse me, Your Honor. If the attorneys wish to consult with their clients, they will have to do it not through the microphone then obviously. The trial court responded: That is correct. [] Unless they say it is okay. I mean if the attorneys have no problem having somebody else listen in [sic].[21] This certainly was an unorthodox practice to allow a spectator to share an interpreter with defendants, and one we do not condone.[22]

Having concluded the trial court erred, we now must determine whether the error is reversible. Recognizing circumstances may exist in which there could be no prejudice resulting from the absence of an interpreter,[23]the California Supreme Court chose to adopt a Chapman approach under which a federal constitutional error may be deemed harmless . . . if the appellate court is able to declare a belief that it was harmless beyond a reasonable doubt. [Citation.][24] The test is whether an actual material interference with the defendants rights [his ability to communicate or comprehend] has been shown or even asserted.[25]

Sandoval has stated any time the defense interpreter was assisting co-defendants Martinez and Viveros to communicate with their respective attorneys, [he] was left without means to speak with his own lawyer. He also has stated: And on whatever occasions the shared interpreter was available to Mr. Sandoval, it seems unlikely he would have relayed confidential information to his counsel through an interpreter he shared with Martinez not to mention a spectator in the audience. For his part, Martinez merely joined this claim. He did not argue how he was or might have been prejudiced.

In our initial opinion in this matter, we concluded the trial courts error in forcing the three defendants to share one defense interpreter without a valid waiver was not reversible. We found neither Sandoval nor Martinez had shown or even asserted an actual material interference with his ability to communicate or comprehend during the times he shared a defense interpreter with his co-defendants. We explained, This is not to say that such difficulties could not or even did not arise. The record simply is barren of any indication of actual interruption of either defendants communication or comprehension.[26] Neither counsel nor any of the parties ever expressed on the record an inability to communicate. In fact, the record indicates times when each of the three defendants communicated with counsel, either by using the interpreter or some other means.

On rehearing, however, we were apprised of facts which require us to conclude the trial courts error was not harmless beyond a reasonable doubt. Based on the settled statement the trial court issued to resolve the discrepancy between Sandovals and this courts copies of the reporters transcripts, we now know the trial court borrowed the defense interpreter to act as a witness interpreter for Spanish-speaking witnesses.

During the proceedings on February 17, 2004, the fourth day of trial, Viveross counsel informed the trial court all of his clients remaining witnesses required the services of a Spanish language interpreter. Prior to this announcement, William Yankes was serving as the defense interpreter for the three defendants and Jorge Villagra was serving as the court proceedings interpreter. The trial judge told counsel the court needed advance notice if someone required the services of an interpreter. Because there was not a third interpreter in the courtroom who could serve as a witness interpreter, the judge explained the court would have to call a recess and take a break until we can locate an interpreter.

When the court came back on the record after the recess, there was no further discussion about the interpreter situation. Viveross counsel called the next witness. William Yankes, who had been serving as the defense interpreter, suddenly was serving as a witness interpreter for four Spanish-speaking witnesses called that day by Viveros. Three of them were character witnesses who testified about Viveross peaceful nature. The fourth witness who required Yankess services as a Spanish language witness interpreter was co-defendant Viveros himself. There was no discussion on the record about the fact Yankes was being borrowed, or about what defendants were supposed to do without the services of their defense interpreter in the event they needed to consult with counsel. Jorge Villagra was still present and presumably continued to act as the court proceedings interpreter.

As set forth above, a defendants constitutional right to an interpreter is violated where a trial court borrows the defense interpreter to act as a witness interpreter for another party.[27] Here, the trial court called a recess because it knew it needed an additional interpreter to serve as a witness interpreter. Apparently it didnt find one. Its solution was to pull the defense interpreter away to act as a witness interpreter during the testimony of four witnesses, including the key testimony of co-defendant Viveros.

In the answer to the petition for rehearing, the People point out courts have stated one interpreter may serve the dual role of a court proceedings and a defense interpreter.[28] The People argue, So long as the defendants had access to one interpreter who was not acting as a witness interpreter, they had access to a defense interpreter. The People assert Jorge Villagra, who was serving as the court proceedings interpreter, was available to act as the defense interpreter. While he may have been available, there is nothing in the record which indicates Villagra actually assumed this additional role. Nor is there anything in the record which indicates defendants knew they could rely on Villagra for such services. The person who was acting as their defense interpreter was taken away, and the trial judge did not say anything on the record about who defendants could turn to as a replacement defense interpreter. We will not assume defendants understood Villagra was serving in both capacities, when there was no such announcement made on the record.

Even if Villagra did serve a dual role during the time Yankes was interpreting for the Spanish-speaking witnesses, there was still error. Assuming this scenario, the three defendants were supposed to share the services of one court proceedings interpreter who also was acting as a defense interpreter. Sandoval has asserted there was an actual material interference with his ability to communicate with his counsel during the time Yankes was acting as a witness interpreter (and Martinez has joined in this claim). Above, we noted the record reflects there were occasions when each of the defendants communicated with his counsel during the time they were sharing a defense interpreter. During the time Yankes was being borrowed to act as a witness interpreter, however, there is no indication in the record any of the defendants communicated with his counsel. Thus, Sandovals assertion of an inability to communicate with counsel during this time finds support in the record before this court.

During the time Yankes was borrowed to serve as a witness interpreter, co-defendant Viveros gave his direct testimony and was cross-examined by the prosecution. His testimony that day took up about 80 pages in the reporters transcript. Viveros said, as far as he knew, the three defendants were going to the hardware store to purchase sandpaper and screws, not to commit a robbery. Viveross testimony was central to each partys case. The prosecution asserted it was evident Viveros was the getaway driver and he was lying on the stand. Martinez and Sandoval urged the jury to believe Viveross story about why the three defendants ended up at the hardware store. But there were portions of Viveross testimony which the jury might have interpreted as inferences of Martinezs and Sandovals guilt.

For example, Viveros testified about a couple of times when Martinez and Sandoval went off alone before the robbery and Viveros was not privy to their conversations. According to Viveros, he initially drove the men to Fernandos, a hardware store he was familiar with. But Martinez later directed him to Marces Hardware (the scene of the crimes) and instructed him to park around the corner and to wait in the car. Moreover, when defendants were arrested neither Martinez nor Sandoval was in possession of money which would have enabled him to purchase sandpaper and screws. Viveros testified he had given Martinez $20 before Martinez and Sandoval went into Fernandos without him. Martinez came out of Fernandos and told Viveros the store did not have the materials they needed, so Martinez returned the $20 to Viveros. Martinez did not ask Viveros for any money before he and Sandoval went into Marces Hardware.

If Viveross testimony is credited, Viveros had no idea there would be a robbery. Martinez and Sandoval, on the other hand, engaged in behavior which the jury likely found indicated they were planning to rob Marces Hardware. In the end, the jury acquitted Viveros and convicted Martinez and Sandoval.

To the extent Martinez and Sandoval did not have adequate access to a defense interpreter, which limited their ability to communicate with counsel during this very significant testimony of their co-defendant, we cannot find this error to be harmless beyond a reasonable doubt. Accordingly, we must reverse the judgments.

DISPOSITION

The judgments are reversed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

JOHNSON, J.

I concur:

PERLUSS, P. J.

WOODS, J., Dissenting:

I respectfully dissent.

In a criminal trial involving a non-English-speaking defendant, at least two interpreters are required: one to interpret witness testimony for the court and the second to translate court proceedings and to assist the defendant in communicating with his or her counsel. (People v. Aguilar (1984) 35 Cal.3d 785, 793; see People v. Rodriguez (1986) 42 Cal.3d 1005, 1015, fn. 7 (Rodriguez) [single interpreter may serve as defense interpreter and proceedings interpreter].) On February 17, 2004, the fourth day of the murder-attempted-robbery trial of Jorge Flores Sandoval, Jorge Estrada Martinez and Alejandro Quinares Viveros, two Spanish-language interpreters were present in court: William Yankes, acting as the three co-defendants defense interpreter; and Jose Villagra, serving as court proceedings interpreter. Following a morning recess, and apparently because a third Spanish-language interpreter could not be found, the trial court utilized Yankes as a witness interpreter for several Spanish-speaking witnesses, including Viveros, who testified in his own defense. Villagra remained in the courtroom.

The majority may well be correct that, while the trial court borrowed Yankes to serve as a witness interpreter, Villagra continued to act as the proceedings interpreter only, impermissibly leaving Sandoval and Martinez without a defense interpreter. However, the record -- both as originally presented to us and as supplemented by the trial courts settled statement -- is silent on this critical point. As in Rodriguez, supra, 42 Cal.3d 1005, nothing in the record shows that at any point while this situation existed, either defendants ability to communicate or comprehend was impeded. (Id. at p. 1014.) Indeed, the majority acknowledges Villagra may have been available to Sandoval and Martinez as a replacement defense interpreter, but concludes it would be improper to assume defendants understood Villagra was serving in both capacities, where there was no such announcement made on the record.

With respect, I think the majority has it backward. The existence of error, not its absence, must be affirmatively shown: Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellants burden to affirmatively demonstrate error. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573; see People v. Nitschmann (1995) 35 Cal.App.4th 677, 684 [Error is never presumed and appellant has the burden to show error]; People v. Garcia (1987) 195 Cal.App.3d 191, 198 [We must indulge in every presumption to uphold a judgment, and it is defendants burden on appeal to affirmatively demonstrate error ‑‑ it will not be presumed].) The question before us, then, is not whether we must assume the best in order to conclude any error that occurred was harmless, but whether we may assume the worst, absent any support in the record for that assumption, to find there was error in the first place. The answer, of course, is we may not. (See Rodriguez, supra, 42 Cal.3d at p. 1016 [speculation that some material interruption in access to the interpreter may have occurred is not sufficient to require reversal].)

To the extent the majoritys fear about what may in fact have transpired in the trial court is well-founded, it must be supported by nonrecord information. Accordingly, Sandovals and Martinezs claim the trial court materially interfered with their constitutional right to a defense interpreter by borrowing Yankes to serve as a witness interpreter should be raised, if appropriate, in a habeas corpus proceeding. (See Rodriguez, supra, 42 Cal.3d at p. 1016 [habeas corpus may be utilized to offer any relevant evidence not appearing on the face of the record. If such evidence indicates restraints upon defendants free exercise of their right to counsel or infringement upon any other constitutional right, defendants may well be entitled to relief.].)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WOODS, J.

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[1] Penal Code Section 187, subdivision (a). All further statutory references are to the Penal Code.

[2] Section 190.2, subdivision (a)(3).

[3] Section 190.2, subdivision (a)(17).

[4] Sections 211 and 664.

[5] Section 12022, subdivision (a)(1).

[6] Section 12022.53, subdivisions (b), (c) and (d).

[7] The court imposed but stayed a one-year term for the firearm enhancement under section 12022, subdivision (a)(1), a 10-year term for the firearm enhancement under section 12022.53, subdivision (b), and a 20-year term for the firearm enhancement under section 12022.53, subdivision (c).

[8] The court also imposed but stayed the firearm enhancements under sections 12022, subdivision (a)(1) and 12022.53, subdivisions (b) and (c).

[9] The court imposed but stayed a one-year term for the firearm enhancement under section 12022, subdivision (a)(1) and a 10-year term for the firearm enhancement under section 12022.53, subdivision (b).

[10] The court also imposed but stayed the firearm enhancements under sections 12022, subdivision (a)(1) and 12022.53, subdivisions (b) and (c).

[11]People v. Aguilar (1984) 35 Cal.3d 785, 790.

[12]People v. Aguilar, supra, 35 Cal.3d at page 787.

[13]People v. Aguilar, supra, 35 Cal.3d at page 792, quoting People v. Menchaca (1983) 146 Cal.App.3d 1019, 1025.

[14]People v. Rodriguez (1986) 42 Cal.3d 1005, 1013.

[15]People v. Rioz (1984) 161 Cal.App.3d 905, 911, 912 (It is clear from the record that one interpreter was employed for all four Spanish-speaking defendants. Each defendant was equipped with an earphone/headset).

[16]People v. Resendes (1985) 164 Cal.App.3d 812, 817-818.

[17]People v. Aguilar, supra, 35 Cal.3d at pages 789, 791; People v. Rioz, supra, 161 Cal.App.3d at page 912.

[18]People v. Aguilar, supra, 35 Cal.3d at page 794.

[19]People v. Aguilar, supra, 35 Cal.3d at page 794.

[20] This does not constitute a waiver. Only the defendant may waive the constitutional right to an interpreter, not counsel. (People v. Aguilar, supra, 35 Cal.3d at p. 794.)

[21] The People argue Sandoval did not show he needed a defense interpreter, given his counsel told the trial court he speaks Spanish. Therefore, the People contend there was no error as to Sandoval. Even if the record supported the Peoples claim about counsels Spanish-speaking abilities, which we do not believe it does, the trial court would not be off the hook. Where a defendant is forced to share a defense interpreter, his constitutional right to have his own interpreter is not protected simply by virtue of the fact his counsel may speak Spanish. (See People v. Aguilar, supra, 35 Cal.3d at p. 791, footnote 5.)

[22] Sandoval also complains about the fact there was only one interpreter present at several pre-trial hearings and not separate proceedings and defense interpreters. At pre-trial proceedings such as arraignments, changes of plea, uncontested motions, etc., it is permissible for a single interpreter to act as defense interpreter and proceedings interpreter for more than one defendant. However, in any proceeding at which witnesses are called and testimony taken, the fundamental rights of a defendant to understand the proceedings being taken against him and to immediately communicate with counsel when the need arises require that each non-English-speaking defendant be afforded an individual interpreter throughout the proceedings. (People v. Rioz, supra, 161 Cal.App.3d at pages 912-913.)

[23]People v. Rodriguez, supra, 42 Cal.3d at page 1011.

[24]People v. Rodriguez, supra, 42 Cal.3d at page 1012, quoting Chapman v. California (1967) 386 U.S. 18, 24; People v. Chavez (1991) 231 Cal.App.3d 1471, 1477 (After Rodriguez, the Chapman standard of harmless beyond a reasonable doubt applies); see also People v. Baez (1987) 195 Cal.App.3d 1431, 1433, 1435 (Chapman harmless error standard applies to the trial courts error in borrowing the defendants interpreter to act as a witness interpreter).

[25]People v. Rodriguez, supra, 42 Cal.3d at page 1014, footnote 6.

[26]People v. Rodriguez, supra, 42 Cal.3d at page 1014, footnote omitted.

[27]People v. Aguilar, supra, 35 Cal.3d at pages 789, 791; People v. Rioz, supra, 161 Cal.App.3d at page 912.

[28] See, e.g., People v. Rodriguez, supra, 42 Cal.3d at pages 1015-1016, footnote 7.