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People v. Donaldson

7/3/1995

l Penal Code section 836, subdivision (a)(1). A police officer still is required (in order to make a valid warrantless arrest for a misdemeanor offense) to have reasonable cause to believe the offense occurred in the officer's presence. What Proposition 8 eliminated was the judicially created remedy for the violation of section 836, subdivision (a)(1). This means that evidence obtained incident to an arrest made in violation of Penal Code section 836, subdivision (a)(1) may not be excluded so long as exclusion is not federally compelled.


People v. Ewoldt, supra, 7 Cal. 4th 380, upon which Donaldson relies, is distinguishable. There, the court examined Evidence Code section 1101, a statute setting forth a substantive rule making inadmissible evidence of character to prove conduct on a specified occasion. In 1986, the Legislature amended the statute to add examples of matters that could be proved by evidence of other acts. Our Supreme court concluded that even if the adoption of section 28(d) abrogated Evidence Code section 1101, the Legislature, in amending the section by more than a two-thirds vote, excepted the rule from the ambit of Proposition 8. (Id. at p. 390.) In other words, the 1986 amendments had the effect of reviving a statute setting forth a rule for the exclusion of evidence.


The 1992 and 1993 amendments reenacting Penal Code section 836 had the effect of restating the rule that a warrantless arrest for a misdemeanor is valid only where the arresting officer has reasonable cause to believe the offense occurred, and the offense was committed in the presence of the officer. Neither section 836 nor the 1992 and 1993 amendments provided for the exclusion of evidence. Thus, although the amendments had the effect of reviving section 836, they did not act to revive the judicially created rule mandating the exclusion of evidence obtained incident to an arrest made in violation of section 836, subdivision (1)(a).


Donaldson points to Mercer v. Department of Motor Vehicles (1991) 53 Cal. 3d 753, 280 Cal. Rptr. 745, 809 P.2d 404, and Music v. Department of Motor Vehicles (1990) 221 Cal. App. 3d 841, 270 Cal. Rptr. 692, as evidence that Penal Code section 836 has survived the adoption of section 28(d). However, neither of these cases involved the admission of evidence in a criminal proceeding. The arrests in those cases were determined to be invalid for purposes of the administrative license suspension procedures contained in Vehicle Code section 23157. (Mercer v. Department of Motor Vehicles, supra, at p. 761; and Music v. Department of Motor Vehicles, supra, at p. 844.)


Donaldson also notes that Penal Code section 836, subdivision (a)(1) has been recognized and applied by the courts of this state since the adoption of Proposition 8. (See People v. Lively (1992) 10 Cal. App. 4th 1364, 1368; People v. Welsch (1984) 151 Cal. App. 3d. 1038, 199 Cal. Rptr. 87.) However, neither of these opinions that applied Penal Code section 836 since the adoption of section 28(d) examined the issue of whether the judicially created exclusionary rule mandating the exclusion of evidence obtained incident to an arrest made in violation

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