Here's an obviously results-oriented decision, and I applaud Justice Gilbert's integrity for dissenting. Yes, I am darn confident Thoma's prior conviction (when he struck a pedestrian with his motorcycle) counts as a strike because it indeed caused the victim great bodily injury. But the record has to prove that fact, with admissible evidence. And there simply isn't any such evidence here.
As the majority (through Justice Yegan) admits, the only "evidence" that there was great bodily injury in the prior case is the fact that the trial judge said at the plea hearing in that case that the victim had lots of broken bones. But this is classic inadmissible hearsay, right? Not according to Justice Yegan. It's admissible because the defendant didn't respond to this statement, so defendant's silence is admissible to prove that it's true.
Two problems. First, as Justice Gilbert points out in his defense, there are lots of reasons to be silent, not the least of which is that attorneys repeatedly tell their clients to remain silent, even if a statement is untrue. Plus, even if he hadn't been told to shut up, why would defendant bother to correct to the judge's statement anyway -- or potentially hack the judge off by arguing the point -- since the judge's statement was connected only to a restition order that compelled the defendant to pay a whopping $5.20 a month to the victim? That's hardly something worth arguing much about. Plus, to top it all off, the silence that we're talking about is actually the silence of defendant's counsel. It's counsel who was silent in response to the judge's statement, and it's counsel's silence that we're making admissible against the defendant. This is yet another novel stretch of the hearsay exceptions by the majority. So I think Judge Gilbert gets this one right.
The second problem is one that Judge Gilbert doesn't discuss, but it's a biggie. In my view, there's a serious Fifth Amendment problem here. The court is clearly using Thoma's silence to incriminate him -- a classic Fifth Amendment no-no, especially when the silence is in response to an official (here, state judicial) inquiry. The majority's only response to this problem is to assert that the Fifth Amendment only applies when "there is evidence that, by remaining mute, the defendant was exercising his constitutional right to remain silent," and there's no such evidence here.
Are we reading the same Fifth Amendment? So when the police bust me for drug smuggling, and I refuse to respond to their questions because I was sleepy or thought they smelled or just didn't feel like responding, the police suddently get to use my silence against me? I think not. Regardless of whether you are "deliberately" invoking the Fifth Amendment, your silence in response to official inquiry simply can't be used against you -- indeed, it can't be used against you even if you didn't know that the Fifth Amendment existed! You have the right to remain silent; by remaining silent, you invoke that right. It's that simple. If Thoma's silence was deliberate, it was protected. Plus, don't forget, it's inadmissible hearsay anyway.
Yeah, I know that means that Thoma isn't subject to the three strikes statute even though we're all pretty darn sure that he indeed has a prior strike. For this reason, I understand why the majority is willing to distort the Evidence Code. But that still doesn't make it right.
P.S. - I can see from this dissent why Justice Gilbert has repeatedly won various "Appellate Justice of the Year" awards. Keep up the good work, Arthur!
