PEOPLE v. SLAYTON

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Court of Appeal, Fourth District, Division 2, California.

The PEOPLE, Plaintiff and Appellant, v. Dominic D. SLAYTON, Defendant and Respondent.

No. E023001.

Decided: January 11, 2000

Dennis L. Stout, District Attorney, Grover D. Merritt, Lead Deputy District Attorney, and William Lee, Deputy District Attorney, for Plaintiff and Appellant. Steven A. Torres, under appointment by the Court of Appeal, Boston, MA, for Defendant and Respondent.

O P I N I O N

This is an appeal by the District Attorney of San Bernardino County from the trial court's order granting defendant's Penal Code section 995 motion to dismiss car theft and burglary charges.   Defendant moved for dismissal on the ground that an Upland police officer had violated defendant's Sixth Amendment right to counsel when he interviewed defendant regarding a residential burglary in Upland while defendant was in jail, following arraignment and appointment of counsel, on a car-theft charge in Riverside County.   The two crimes were related in that the key to the car that was the subject of the Riverside charge was taken during the Upland burglary, although the car was not actually stolen until several days later.   Defendant was arrested while driving the stolen car in Riverside County.   During the interview by the Upland police officer, and after defendant waived his Miranda rights,1 defendant confessed his participation in both the burglary and the subsequent theft of the car.

In moving to dismiss both charges, defendant argued that the car theft and burglary were such “closely related” crimes that the police violated defendant's Sixth Amendment right to counsel by interviewing defendant without his appointed counsel on the car-theft charge being present.   The trial court granted defendant's motion, although the court found that defendant's confession was obtained in violation of his Miranda rights, and on that basis dismissed the charges.2

We conclude, as we explain below, that the trial court reached the correct result, i.e., suppressing defendant's confession and dismissing the related charges, even though the trial court appeared to base that result on the wrong reason.   Defendant's confession was not obtained in violation of his Miranda rights because defendant was advised of and waived those rights before the Upland police officer questioned him regarding the burglary.   Instead, defendant's confession regarding the burglary was obtained in violation of his Sixth Amendment right to counsel.   We, therefore, will affirm the order dismissing the charges.

DISCUSSION

 The district attorney contends that the “closely related” charges concept that defendant relied on in the trial court has been abandoned and, therefore, the trial court erred in applying that principle and dismissing the charges in this case.3  We agree that the courts have abrogated the concept;  however, we do not share the district attorney's view that the abrogation requires reversal in this case.   As we now explain, the relationship between the charged and uncharged offense is relevant in determining whether the crimes are so inextricably intertwined that they come within an exception to the general rule that the Sixth Amendment right to counsel is offense specific and attaches only after charges have been filed.

 Under Massiah v. United States (1964) 377 U.S. 201, 205, 84 S.Ct. 1199, 12 L.Ed.2d 246, once the right to counsel has attached, a defendant's subsequent waiver of that right in a police-initiated interview is ineffective.   The right to counsel attaches when formal charges have been filed.  (People v. Bradford (1997) 15 Cal.4th 1229, 1312, 65 Cal.Rptr.2d 145, 939 P.2d 259.)   Even after the defendant has an attorney with respect to a particular charge, the police may question the defendant, subject only to Miranda advisements and waivers, about uncharged crimes.  (Id., at p. 1313, 65 Cal.Rptr.2d 145, 939 P.2d 259, citing McNeil v. Wisconsin (1991) 501 U.S. 171, 175-177, 111 S.Ct. 2204, 115 L.Ed.2d 158.)   In other words, “The Sixth Amendment right to counsel ․ is ‘offense specific.’  [Citation.]   That is to say, it attaches to offenses as to which adversary judicial criminal proceedings have been initiated - and to such offenses alone.  [Citation.]”  (People v. Clair (1992) 2 Cal.4th 629, 657, 7 Cal.Rptr.2d 564, 828 P.2d 705, citing McNeil v. Wisconsin, supra, at pp. 175-176, 111 S.Ct. 2204.)  “An exception to the offense-specific requirement of the Sixth Amendment occurs when the pending charge is so inextricably intertwined with the charge under investigation that the right to counsel for the pending charge cannot constitutionally be isolated from the right to counsel for the uncharged offense.”  (People v. Wader (1993) 5 Cal.4th 610, 654, fn. 7, 20 Cal.Rptr.2d 788, 854 P.2d 80, quoting U.S. v. Hines (9th Cir.1992) 963 F.2d 255, 257, internal quotes omitted.)   Although the Supreme Court did not apply the “inextricably intertwined” exception in Wader because the Court concluded that the defendant's crimes in that case were “logically distinct” (ibid.) it also did not specifically reject the exception.   We, therefore, adopt the “inextricably intertwined” exception as the pertinent test in this case.4

 The issue we must resolve is whether the pending car theft charge is so inextricably intertwined with the burglary charge that defendant's right to counsel on the car theft cannot be constitutionally isolated from his right to counsel on the burglary.   That determination depends, at least initially, on the particular facts of the crimes in question.   As our Supreme Court noted in People v. Wader, supra, the exception for “inextricably intertwined offenses does not apply when the uncharged offenses are ‘logically distinct’ from the charged offense.  [Citation.]”  (People v. Wader, supra, 5 Cal.4th at p. 654, fn. 7, 20 Cal.Rptr.2d 788, 854 P.2d 80, quoting U.S. v. Hines, supra, 963 F.2d at p. 257.)   In other words, if the offenses are “logically distinct,” they cannot be inextricably intertwined and, therefore, the noted exception does not apply.

 The determination whether the offenses are “inextricably intertwined” or “logically distinct” focuses on whether the charged and uncharged offenses occurred at the same place and time and involved the same parties.  (See U.S. v. Hines, supra, 963 F.2d at p. 257, which held the crimes there at issue were “separate and distinct,” and therefore not inextricably intertwined, because “the place, time and persons involved were all different”;  see also People v. Wader, supra, 5 Cal.4th at p. 654, fn. 7, 20 Cal.Rptr.2d 788, 854 P.2d 80, which noted that the robberies at issue in that case “were distinct from the charged offenses;  the places, times and victims were all different.”)   Similarly, in In re Michael B. (1981) 125 Cal.App.3d 790, 178 Cal.Rptr. 291, Division One of this court focused on the time, place, and parties involved in order to reject a claim that three separate residential burglaries committed in the same locale, close in time to each other, and involving the same modus operandi but different victims were “closely related” such that once the defendant was charged with one of the burglaries and counsel was appointed to represent him, the police could not question the defendant about the other two crimes without the defendant's attorney being present.   In rejecting the defendant's argument, the court relied, in part, on People v. Boyd (1978) 86 Cal.App.3d 54, 150 Cal.Rptr. 34, which was then and is now the only California case that involves “facts showing a close relationship of the charged and uncharged offenses (nearly contemporaneous burglary and arson of the same premises).”  (In re Michael B., supra, at p. 795, 178 Cal.Rptr. 291.)   According to the Michael B. court, “In Boyd, where the facts of the burglary, the charged offense, and arson of the same premises at or about the same time, were so inextricably enmeshed that factually and conceptually it was virtually impossible to distinguish the events, questioning on one crime necessarily impinged upon the effective representation on the other.”  (Id., at p. 797, 178 Cal.Rptr. 291.)

The defendant in Boyd had burglarized the victim's home several times over the course of many days.   A fire broke out during what turned out to be the final burglary.   When questioned by the police, the defendant admitted taking items from the victim's home without the victim's consent.   As a result of that admission, the police arrested the defendant both for burglary and arson.   The district attorney only charged the defendant with burglary.   Following his arraignment and appointment of counsel on the burglary charge, the police interviewed the defendant twice more regarding the fire.   During the second interview, the defendant made statements in which he implicated himself in the arson and, as a result, the district attorney charged the defendant with that crime.   At trial, the defendant moved to exclude the statements he made during the two post-arrest interviews on the ground that the police obtained those statements in violation of defendant's Sixth Amendment right to counsel because the burglary and arson were part of a continuing and related course of criminal conduct.   The trial court ruled that statements related to the burglary were inadmissible but the defendant's statements regarding the arson were admissible because that charge had not been filed at the time of the police interviewed the defendant and obtained the challenged statements.  (People v. Boyd, supra, 86 Cal.App.3d at p. 59, 150 Cal.Rptr. 34.)

The appellate court reversed and held that where a defendant has been charged and counsel appointed in a “closely related offense,” the Isby rule 5 applies (People v. Boyd, supra, 86 Cal.App.3d at p. 61, 150 Cal.Rptr. 34) and “the accused acquires an absolute, unwaivable right to counsel's presence at any subsequent police interrogation.”  (Id., at p. 60, 150 Cal.Rptr. 34.)   In holding that the burglary and arson were “closely related” the court cited the following facts:  both crimes involved the same premises, the same victim, and were closely connected in time.  (Id., at p. 62, 150 Cal.Rptr. 34.)   Although the “closely related” concept is now disfavored, if not completely abrogated, the focus on the factual relationship between the offenses in terms of time, place, and participants nevertheless is pertinent in determining whether the crimes are “inextricably intertwined” such that the Massiah rule applies.

The facts in this case reveal that the uncharged burglary about which the Upland police officer questioned defendant was factually connected to the charged car theft in that the burglary and the car theft involved the same victim and the same location.   In addition, the key that later was used to steal the car was taken during the burglary.   The two crimes are factually distinct and unrelated only in that they occurred on different days.   Had defendant taken the car immediately after he committed the burglary, there would be no question but that the two crimes were “inextricably intertwined” such that defendant's representation by counsel on the car theft charge would preclude the police from questioning defendant about the burglary except in the presence of his attorney.   Thus, we must decide whether the separation in time between the burglary and the car theft renders those two crimes “logically distinct” for purposes of the Sixth Amendment.

 We think not.   Although the two crimes are temporally distinct from each other they are not logically distinct in that the separation in time does not make the two crimes unrelated in terms of the Sixth Amendment.   Because the concern here is the defendant's Sixth Amendment right to effective representation of counsel, the dispositive inquiry is whether questioning defendant about the burglary necessarily impinged on defendant's right to effective representation of counsel in the car theft case.   Resolution of that question does not depend on the timing of the two offenses but, rather, on whether the offenses were so otherwise factually related that the defendant could not openly and honestly discuss the offense under investigation without also implicating himself in the charged offense and vice versa.   While we recognize that Massiah is not concerned with issues of self-incrimination under the Fifth Amendment, the fact defendant would implicate himself in one offense by talking about the other is relevant in determining whether the police-initiated questioning necessarily impinged upon defendant's right to effective representation such that the charged and uncharged crimes cannot be viewed as “constitutionally isolated.”

For the reasons discussed, we conclude that the burglary and car theft at issue in this case were so inextricably intertwined that defendant's right to counsel on the car theft charge cannot constitutionally be isolated from his right to counsel on the burglary.  (U.S. v. Hines, supra, 963 F.2d at p. 257.)   Thus, questioning defendant about the burglary while he was represented by counsel on the car theft violated defendant's Sixth Amendment right to counsel.   Although the trial court incorrectly held that the police violated defendant's rights under Miranda v. Arizona, the trial court nevertheless reached the right result - defendant's statements were inadmissible, albeit, because they were obtained in violation of his Sixth Amendment right to counsel.  (People v. Plyler (1993) 18 Cal.App.4th 535, 546, 22 Cal.Rptr.2d 772.)   Accordingly, we conclude the trial court properly granted defendant's motion to dismiss the charges in this case.

DISPOSITION

The judgment of dismissal is affirmed.

I respectfully dissent from the opinion of the majority.

First, even assuming Slayton's Sixth Amendment rights were violated by the interrogation, the remedy called for by the majority opinion is contrary to binding precedent.   When such a violation occurs, the remedy is to not admit the statements in the trial of the charge for which counsel has been appointed, although “incriminating statements pertaining to the other uncharged criminal activity would be admissible at a trial of such other crimes.”  (In re Wilson (1992) 3 Cal.4th 945, 952, 13 Cal.Rptr.2d 269, 838 P.2d 1222, citing Maine v. Moulton (1985) 474 U.S. 159, 179-180, 106 S.Ct. 477, 88 L.Ed.2d 481.)   Thus, Slayton's statements would not have been admissible in the prosecution in Riverside County of his violation of Vehicle Code section 10851 that occurred in that county.   However, they would have been admissible, to the extent they comprised statements pertaining to uncharged criminal activity, in a prosecution in San Bernardino County.   Even if, somehow, Slayton's violation of Vehicle Code section 10851 that occurred in Riverside County could be viewed as identical to his violation of the same section that occurred in San Bernardino County, a point I do not concede,1 the prosecution, under Wilson and Mouton, should have been able to proceed, if it desired, using those portions of his statements that related purely to the residential burglary and not to the Vehicle Code violations.2

I also disagree with the majority's reliance upon cases which construed the since-repudiated “closely related” concept.  (See People v. Clair (1992) 2 Cal.4th 629, 657, 7 Cal.Rptr.2d 564, 828 P.2d 705;  People v. Plyler (1993) 18 Cal.App.4th 535, 547, 22 Cal.Rptr.2d 772.)   As the majority correctly points out, the Sixth Amendment right is offense specific, the “precise boundaries” of which have not yet been spelled out, except to the extent that Clair holds that offenses which are “completely unrelated” are not within those boundaries.  (People v. Clair, supra, 2 Cal.4th at p. 657, 7 Cal.Rptr.2d 564, 828 P.2d 705.) Other than this statement in Clair, we have no binding precedent concerning the precise boundaries of the offense-specific rule.3  I do not believe that the facts of this case should be within those still undefined boundaries.   I propose the following hypothetical:  Slayton breaks into the victim's car in San Bernardino County, takes a key which turns out to unlock the victim's home in Riverside county, and, days later, uses that key to gain admission to the victim's home, where he murders the victim.   Would law enforcement in Riverside County be prohibited from questioning Slayton about the residential burglary and murder once Slayton is appointed counsel in the auto burglary case?   How different is this scenario from the one we now face?   I do not view the existence of the key in this case, which is all that ties the Upland burglary and the Riverside illegal taking/driving of a vehicle together, as so important a factor that law enforcement should be hampered in their efforts to investigate the former.

FOOTNOTES

1.   Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

2.   Because defendant relied entirely on the Sixth Amendment issue as the basis for his motion, we assume the trial court simply misspoke when it cited Miranda as the reason for granting defendant's motion and dismissing the charge.

3.   The dissent's discussion suggests there is disagreement over the appropriate remedy.  (Diss. pp. 791-792.)   There is no disagreement.   The remedy for a violation of the defendant's Sixth Amendment right to counsel is to suppress the improperly obtained statement and proceed, if possible, on the remaining evidence.   The parties conceded during oral argument that there was insufficient evidence to proceed without defendant's statement and, therefore, dismissal of the charges was warranted.

4.   The dissent rejects the exception but does not offer an alternative.  (Diss., fn.3, pp. 791-792.)   Consequently, the dissent effectively holds that there is no circumstance in which crimes may be so closely related that questioning a defendant about one may violate the defendant's Sixth Amendment right to representation of counsel on another offense.

5.   Referring to the 1968 decision of this court that applied the Massiah rule to state court proceedings and held that once a defendant has been arraigned and counsel appointed, “ ․ [the] defendant [is] entitled to the effective aid of counsel at any interrogation instigated by the law enforcement officers.”  (People v. Isby (1968) 267 Cal.App.2d 484, 495, 73 Cal.Rptr. 294.)

1.   See People v. Perez (1962) 203 Cal.App.2d 397, 399, 21 Cal.Rptr. 422;  see also People v. Allen (1999) 21 Cal.4th 846, 851, 89 Cal.Rptr.2d 279, 984 P.2d 486 [“․ Vehicle Code section 10851 can be violated either by taking a vehicle with the intent to steal it or by driving it with the intent only to temporarily deprive its owner of possession․”]

2.   Those portions are as follows:  Slayton told the detective that another man had told him that he had just broken into an apartment on East 9th Street.   The man asked Slayton to return to that apartment with him, which Slayton did.   Slayton noticed that a window to the apartment had been broken.   Both entered the apartment.   Slayton took a set of keys that were in a dish on a shelf inside the front door.   The other man told Slayton to go outside and act as a lookout.   Slayton saw that the man had items in a pillowcase, but he did not know what the items were.   Slayton, at some point, no longer wished to be a lookout and left.

3.   Contrary to the majority's view, I do not consider the footnote in People v. Wader (1993) 5 Cal.4th 610, 654, 20 Cal.Rptr.2d 788, 854 P.2d 80, to contain a binding declaration of the boundaries of the offense specific rule.   In the body of that opinion, the California Supreme Court rejected the defendant's contention that statements he made, after he was charged with murder, about four robberies which had been committed before the murder were erroneously admitted at the penalty phase of his trial.   The court held that for the statements to be inadmissible, the right to counsel must both attach and be invoked at the time they were made.   However, the court concluded, no evidence showed the latter.   In footnote 7, which the majority cites, the court said, in pertinent part:“․“Defendant also contends that this case comes within an exception to the offense-specific requirement of the Sixth Amendment, citing United States v. Hines (9th Cir.1992) 963 F.2d 255.   There, the Ninth Circuit held that ‘[a]n exception to the offense-specific requirement of the Sixth Amendment occurs when the pending charge is so inextricably intertwined with the charge under investigation that the right to counsel for the pending charge cannot constitutionally be isolated from the right to counsel for the uncharged offense.’  (Id. at p. 257.)   This exception, however, does not aid appellant, because it does not apply when the uncharged offenses are ‘logically distinct’ from the charged offense.   (Ibid.) Here, the robberies were distinct from the charged offenses;  the places, times, and victims were all different.”Clearly the Wader court was merely hypothecating.   It was saying that if, as the defendant suggested, the rule annunciated in United States v. Hines (9th Cir.1992) 963 F.2d 255 applied, the statements would still not be inadmissible.   The court was not suggesting that the “exception” to the offense specific rule stated in Hines should be or is the law in California.

McKINSTER, J.

WARD, J., concurs.