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PEOPLE v. JACOBS

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Court of Appeal, First District, Division 3, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Chemista JACOBS, Defendant and Appellant.

A026678.

Decided: May 30, 1986

Marcia M. Taylor, San Francisco, for defendant and appellant (under appointment by the Court of Appeal). John K. Van de Kamp, Atty. Gen., Ronald E. Niver and John H. Sugiyama, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

I.

A jury found appellant Chemista Jacobs guilty of six counts of robbery (Pen.Code, § 211 1) and that various enhancements for being armed with a knife (§ 12022, subd. (b) ) and using a firearm (§ 12022.5) were true.   The trial court sentenced him to a term of nine years in prison.   This timely appeal followed.   In the published portion of this opinion we uphold the trial court's determination that a brief statement made by appellant to a police investigator after compliance with Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 was properly admissible for impeachment purposes under Harris v. New York (1971) 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, even though it was taken in violation of Massiah v. United States (1964) 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246.   We affirm the judgment.

II. Facts

On Saturday, August 6, 1983, at 2:20 p.m., appellant entered the Blue Cross Pet Hospital in San Francisco and mumbled something to the secretary/receptionist Grace “Liz” Dobie.   She told him the doctor would be with him in a moment.   When Dr. Sherman Wong came out to the reception area, appellant put a knife to his throat and demanded money.   Dr. Wong led appellant to the cash box.   Appellant took the money from inside it and asked for more.   Dr. Wong said that was all they had, and appellant fled after a secretary interrupted the robbery.

On Friday, August 26, 1983, at 3:10 p.m., appellant appeared at the front window of the Blue Cross Pet Hospital with a gun in his hand.   Dr. Wong saw him and instructed his staff and clients not to open the door between the waiting room and the reception area.   Appellant kicked in the door and rushed into the reception area, pointing the gun at the six people inside and ordering them to raise their hands.   Everyone complied.   Appellant threw a blue knit ski cap on the counter and ordered the victims to put their money and wallets in the cap, which they did.

Appellant then took the money from the cash box and ordered everyone onto the floor, where they were to stay for five minutes.   Appellant waved his gun and said, “if you don't think I'll use it, just try me.”   Everyone fell to the floor, and appellant ran out the door, repeating his warning.2

III. Consolidation **

IV. Expert Testimony **

V. Impeachment by Prior Statement

On the morning of September 19, 1983, appellant was arraigned, and counsel was appointed to represent him.   Later that morning Inspector Armond Pelissetti was informed that appellant was in custody.   He was under the mistaken impression that appellant would be arraigned later that day.   Acting on this error, Inspector Pelissetti contacted appellant at county jail.   He advised appellant of his Miranda rights (Miranda v. Arizona, supra, 384 U.S. 436, 86 S.Ct. 1602), which appellant waived, stating he wished to talk.   Inspector Pelissetti asked, “ ‘Do you want to tell me about these robberies․' ”  Appellant answered, “ ‘I did do a couple of these robberies, but I would like to talk to a lawyer before I talk about all of them.’ ”   Inspector Pelissetti immediately terminated the conversation, stating, “ ‘Well, that's it.’ ”   Appellant tried to continue the conversation and at some point revealed that he had been to court that morning.

At the hearing held out of the presence of the jury on admissibility of appellant's statement, appellant testified ambiguously that he told Inspector Pelissetti, “I was not guilty of all those charges․”  Appellant testified further that after the inspector indicated appellant might be eligible for probation, appellant admitted that he “did do a couple” of the robberies.   He said he made the statement because he hoped for probation and was afraid of a long prison sentence.

Based upon this evidence, the trial court found that no Miranda violation had occurred, but that the statement was taken in violation of appellant's Sixth Amendment right to counsel under Massiah v. United States, supra, 377 U.S. 201, 84 S.Ct. 1199.   Following Harris v. New York, supra, 401 U.S. 222, 91 S.Ct. 643, the court ruled that the statement could not be used by the People in their case-in-chief, but that it could be used to impeach appellant if he were to take the stand.   Appellant did not testify.

 Appellant cites this ruling as error.   We do not agree.3  Massiah held that it was a violation of the Sixth Amendment right to counsel for the government intentionally to elicit a statement from a defendant after indictment.  (Massiah v. United States, supra, 377 U.S. at pp. 205–206, 84 S.Ct. at 1202–03;  see Michigan v. Jackson (1986) 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631.)   California courts state the rule in this way:  “[A]fter a criminal charge has been filed against a defendant and he [or she] has counsel, he [or she] may not be subjected to an interrogation instigated by law enforcement officers for the purpose of eliciting incriminatory statements without effective aid of ․ counsel.”  (People v. Isby (1968) 267 Cal.App.2d 484, 494, 73 Cal.Rptr. 294.)   The rule barring interrogation is absolute, even if a defendant wishes to waive it.  (In re Michael B. (1981) 125 Cal.App.3d 790, 793–794, 178 Cal.Rptr. 291.)   And it does not matter that, as here, the officer is acting “perfectly properly.”   (Id., at p. 794, 178 Cal.Rptr. 291;  see Michigan v. Jackson, supra, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631.)   It follows that the trial court correctly found a Massiah violation in this case.

Neither did the trial court err in finding no Miranda violation.   We have independently reviewed all of the evidence (People v. Davis (1981) 29 Cal.3d 814, 824, 176 Cal.Rptr. 521, 633 P.2d 186), including appellant's testimony, which arguably contradicted that of the police, and we conclude that the trial court properly found that the prosecution had shown that appellant had been given his Miranda rights and that he understood them and made a knowing and intelligent waiver of them.4

In Harris v. New York, supra, 401 U.S. 222, 91 S.Ct. 643, the United States Supreme Court “held that statements which were inadmissible as affirmative evidence because of a failure to comply with Miranda could nevertheless be used for impeachment purposes to attack the credibility of a defendant's trial testimony․”  (People v. Disbrow (1976) 16 Cal.3d 101, 106, 127 Cal.Rptr. 360, 545 P.2d 272.)   In Disbrow the California Supreme Court rejected Harris and held that statements taken in violation of Miranda could not be used as affirmative evidence or for impeachment.  (Disbrow, supra, at p. 113, 127 Cal.Rptr. 360, 545 P.2d 272.)

 Although we have found no California decision addressing the applicability vel non of Harris to Massiah, several federal cases have applied it.   For example, in United States v. McManaman (10th Cir.1979) 606 F.2d 919, the court found a clear Massiah violation, but held the resulting statement admissible for impeachment purposes.  (McManaman, supra, at pp. 924–925.)   The court recognized that Harris and its progeny did not deal with a Massiah problem, but stated, “Nevertheless we feel that the same reasoning applies here.   We hold that the statements were not rendered unavailable for impeachment because of the violation of the Massiah rule.”   (McManaman, supra, at p. 925;  see also United States v. Frank (2d Cir.1975) 520 F.2d 1287, 1291, cert. den. sub nom., Frank v. United States (1976) 423 U.S. 1087, 96 S.Ct. 878, 47 L.Ed.2d 97.)

The purpose of the rule of Disbrow is the preservation of the integrity of the privilege against self-incrimination.   The Disbrow court viewed Harris as undermining that goal.  (People v. Disbrow, supra, 16 Cal.3d at pp. 112–113, 127 Cal.Rptr. 360, 545 P.2d 272.)

The Massiah rule, however, does not grow out of the privilege against self-incrimination or any other privilege, statutory or otherwise.   It is a product of the Sixth Amendment right to counsel.   It is not intended to prevent police misconduct, as is Miranda-Disbrow.   Since it applies where the police act properly, following a Harris approach would not encourage police misconduct, but will simply prevent criminal defendants from feeling free to commit perjury, relying on the government's inability to challenge their credibility because its rebuttal evidence was improperly secured.   (See United States v. McManaman, supra, 606 F.2d at p. 925;  see also Michigan v. Jackson, supra, 475 U.S. at pp. ––– – –––, 106 S.Ct. at pp. 1412–1414, 89 L.Ed.2d at pp. 643–647 (conc. opn. of Rehnquist, J.).)   Therefore, even assuming that Disbrow survives Proposition 8, it does not apply to Massiah violations.

Our holding is in keeping with the Supreme Court's stated view of the effect of Proposition 8:  “The explicit language of section 28(d) providing that ‘relevant evidence shall not be excluded in any criminal proceeding’ with limited, enumerated, exceptions to that command, coupled with the explanation of the Legislative Analyst that unlawfully seized evidence would become admissible except to the extent that the federal Constitution forbids its use, supports the People's argument that in the absence of express statutory authority therefor courts may not exclude evidence seized in violation of either the state or federal Constitution unless exclusion is compelled by the federal Constitution.   The inclusion in section 28(d) of specified exceptions to its mandate that ‘relevant evidence shall not be excluded’—i.e., later enacted statutes passed by two-thirds of the Legislature;  statutory rules relating to privilege or hearsay;  and sections 352, 782, and 1103 of the Evidence Code—affords further evidence of the intent to restrict exceptions to that command.  ‘Under the familiar rule of construction, expressio unius est exclusio alterius, where exceptions to a general rule are specified by statute, other exceptions are not to be implied or presumed.’  (Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 195 [132 Cal.Rptr. 377, 553 P.2d 537]․)”  (In re Lance W. (1985) 37 Cal.3d 873, 888, 210 Cal.Rptr. 631, 694 P.2d 744.)

We conclude that the trial court's ruling was correct.

The judgment is affirmed.

I respectfully dissent.   In Miranda (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, the Warren Court struck a blow seeking to put an end to forced confessions obtained in the course of behind closed doors custodial interrogation, for years an often sordid police practice mainly impacting, as illustrated by the vast majority of confession cases adjudicated, upon those individuals unable to afford counsel, i.e., the indigent.   For years, years best to be remembered rather than revisited, the Fifth Amendment's privilege against compulsory self-incrimination had been excluded from the local police stationhouse.  Miranda, as we all know, worked a much needed revolution hopefully eradicating for all time inquisitorial and overzealous police custodial interrogation practices.   Prior to Miranda, the admission of confessions in the state courts was measured by the due process standard of “free and voluntary.”  (Malloy v. Hogan (1964) 378 U.S. 1, 7, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653.)  Miranda imposed additional safeguards requisite to finding a valid waiver of the right to remain silent and to the presence of counsel in the face of custodial interrogation.

“Echoing the standard first articulated in Johnson v. Zerbst, 304 U.S. 458, 464 [58 S.Ct. 1019, 1023, 82 L.Ed. 1461] (1938), Miranda holds that ‘[t]he defendant may waive effectuation’ of the rights conveyed in the warnings ‘provided the waiver is made voluntarily, knowingly and intelligently.’  384 U.S., at 444, 475 [86 S.Ct., at 1612, 1628].  The inquiry has two distinct dimensions.  Edwards v. Arizona, supra, [451 U.S. 477] at 482 [101 S.Ct. 1880, at 1883, 68 L.Ed.2d 378];  Brewer v. Williams, 430 U.S. 387 404 [97 S.Ct. 1232, 1242, 51 L.Ed.2d 424] (1977).   First the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception.   Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.   Only if the ‘totality of the circumstances surrounding the interrogation’ reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.  Fare v. Michael C., 442 U.S. 707 725 [99 S.Ct. 2560, 2572, 61 L.Ed.2d 197] (1979).   See also North Carolina v. Butler, 441 U.S. 369, 374–375 [99 S.Ct. 1755, 1758, 60 L.Ed.2d 286] (1979).”  (Moran v. Burbine (Mar. 10, 1986) 475 U.S. 412, –––, 106 S.Ct. 1135, 1141, 89 L.Ed.2d 410.)

Miranda, of course, had, and continues to have, its detractors.   Notwithstanding, I am persuaded to the view that in Harris v. New York (1971) 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, the Burger Court made one of several “significant cutbacks in the area of criminal procedure.”  (See Tribe, American Constitutional Law (1978) § 16–40, p. 1108, fn. 10.)   Harris, supra, holds that statements obtained in violation of Miranda are admissible to impeach an accused who testifies at trial contrary to those statements, providing the statements meet the traditional standard of trustworthiness, i.e., voluntariness per Johnson v. Zerbst, supra.   The prosecution in Harris understood fully that a valid waiver of Harris' Miranda rights could not be shown, the police failed to warn Harris as to his Miranda right to counsel.   On the other hand, Harris' uncounseled statements were voluntary in the traditional sense.   Later, in Oregon v. Hass (1975) 420 U.S. 714 at page 723, 95 S.Ct. 1215 at page 1221, 43 L.Ed.2d 570, Mr. Justice Blackmun observed:  “․ the balance was struck in Harris, ” i.e., inadmissibility in the case-in-chief sufficiently deters police dishonoring the individual's Miranda rights, while admissibility for impeachment prevents defendant's false testimony in the search for the truth.   The Miranda court fully anticipated Harris and Hass and would have held their statements inadmissible at trial for any purpose.1  I share the “significant cutback” view of Harris because in my final analysis, Harris holds that obtaining statements during custodial interrogation in the absence of a valid waiver of the individual's Miranda rights, including the right to counsel that safeguards the Fifth Amendment “privilege,” is not a police violation of constitutional proportions if the statement obtained thereby is voluntary by legal standards.   If my analysis is said to be infirm, then Harris is an anomaly in the law of waiver.   Clearly, the Miranda court considered its warnings to be constitutional standards requisite to proving a valid waiver of the Fifth Amendment “privilege.”  (Miranda, supra, 384 U.S. at p. 476, 86 S.Ct. at p. 1629.)   In any case, I continue to believe that the rule in Harris rests on tenuous grounds.   A statement, as we all know, may be true as shown by subsequent investigation, and not trustworthy for use for any purpose in a court of law because involuntarily made, leaving for the court's determination the question more often decided in the state's favor than the suspect's.  (See for comparison, Mincey v. Arizona (1978) 437 U.S. 385 at pp. 396–402, 98 S.Ct. 2408 at pp. 2415–18, 57 L.Ed.2d 290.)

“While statements made by a defendant in circumstances violating the strictures of Miranda v. Arizona, 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694], are admissible for impeachment if their ‘trustworthiness ․ satisfies legal standards,’ Harris v. New York, 401 U.S. 222, 224 [91 S.Ct. 643, 645, 28 L.Ed.2d 1];  Oregon v. Hass, 420 U.S. 714, 722 [95 S.Ct. 1215, 1221, 43 L.Ed.2d 570], any criminal trial use against a defendant of his involuntary statement is a denial of due process of law.”  (Id., at p. 386, 98 S.Ct., at p. 2410;  emphasis in original.)

In any event, if the Harris court's expectation holds true today and the police religiously observe the individual's Miranda rights, I would think the rule in Harris is very limited in its application.   My view is that if allowed to exist, the rule in Harris should be confined to its facts, i.e., per Miranda omission, uncounseled statements obtained during the investigation stage of our adversarial criminal justice system.2

However, this court's majority decides today that the federal evidence rule in Harris is compelled in our state's criminal trials wherein the custodial interrogation implicates solely an accused person's Sixth Amendment based right to counsel.   My colleagues concede that, to date, the federal Supreme Court has not determined that the rule in Harris is applicable to an accused person's statements obtained by the police illegally during the “system's” accusatory stage, post-arraignment in violation of their Sixth Amendment based counsel right.  (See maj. opn. at p. 789.)   Given the viability of Sixth Amendment principles, there is no reasonable expectation that the Supreme Court will ever so determine.   Consequently, I find “Proposition 8,” i.e., article I, section 28, subdivision (d) of the California Constitution to be irrelevant to our considerations when reviewing the case at bench.   Regarding the search for truth, “[w]e are, after all, always engaged in a search for truth in a criminal case so long as the search is surrounded with the safeguards provided by our Constitution.”  (Mr. Justice Blackmun in Oregon v. Hass, supra, 420 U.S. at p. 722, 95 S.Ct. at p. 1221, delivering the Court's Opinion.)

Clearly, the Sixth Amendment right to the assistance of counsel for his defense safeguarded appellant during Pelissetti's impromptu, secret, post-arraignment, jailhouse interrogation.   The only meaningful question before the trial court was whether appellant waived that constitutional protection.  “It is clear, of course, that, absent a valid waiver, the defendant has the right to the presence of an attorney during any interrogation occurring after the first formal charging proceeding, the point at which the Sixth Amendment right to counsel initially attaches.  United States v. Gouveia, 467 U.S. 180, 187 [104 S.Ct. 2292, 2297, 81 L.Ed.2d 146] (1984);  Kirby v. Illinois, 406 U.S. 682, 689 [92 S.Ct. 1877, 1882, 32 L.Ed.2d 411] (1972) (opn. of Stewart, J.)   See Brewer v. Williams, 430 U.S., at 400–401 [97 S.Ct., at 1240].”  (Moran v. Burbine, supra, 475 U.S. at p. –––, 106 S.Ct. at p. 1145.)

The trial court found, then, that Pelissetti's post-arraignment incommunicado custodial interrogation of appellant was unconstitutional police conduct constituting a Massiah 3 (Massiah v. United States (1964) 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246) violation.   My colleagues agree (see lead opn. at p. 788) and so do I.   Impliedly, then, the trial court found that the prosecution did not prove a valid waiver of appellant's Sixth Amendment based right to counsel.   Pelissetti testified, however, that prior to eliciting and recording appellant's jailhouse admission, he read appellant his Miranda rights in full.   Further, he testified, in effect, that appellant voluntarily, knowingly and intelligently waived his Miranda rights, perforce including his judicially created Fifth Amendment based counsel right.   The trial court expressly found a valid waiver of appellant's Miranda rights to be the fact.   Again, impliedly, the trial court astutely, I think, recognized and found that appellant's waiver of his Miranda rights did not constitute a valid waiver of his Sixth Amendment right to the assistance of counsel for his defense.4

At his formal arraignment on charged crimes about which he was later to admit, in Pelissetti's testimony, “I did do a couple of these robberies, but, ․” appellant requested counsel and the court appointed a public defender.   Pelissetti testified that he was not aware of these facts, that by virtue of court custom and practice he fully expected that appellant's arraignment was scheduled for the following day, a Tuesday.

Obviously, the Supreme Court had not announced its most recent landmark Sixth Amendment decision, Michigan v. Jackson/Bladel, supra, (cited in lead opinion at page 10), consequently, the trial court's pretrial ruling finding a Massiah violation bears further acknowledgement for its astute application of Sixth Amendment principles, specifically “assertion,” “police initiated interrogation” and “waiver.”   In any case, this court's standard of review requires that we uphold as proper, the trial court's implied finding in this case that the prosecution could not prove a valid waiver of appellant's Sixth Amendment counsel right, Pelissetti is indisputably shown herein as having initiated the post-arraignment jailhouse conversation eliciting appellant's alleged admissions.   The Jackson/Bladel court, in order to safeguard the Sixth Amendment counsel right, extended the Fifth Amendment's prophylactic clear “bright line” rule announced in Edwards v. Arizona, supra, 451 U.S. at pages 484, 485, 101 S.Ct. at page 1885.  “If police initiate interrogation after a defendant's assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid.”  (Jackson/Bladel, supra, 475 U.S. at p. –––, 106 S.Ct. at 1411.)

Given that appellant did not validly waive his constitutional “right” to the assistance of defense counsel, and Pelissetti circumvented appellant's right to counsel's presence thereafter deliberately eliciting his post-arraignment admission, I believe that this court is obliged to strike down the trial court's pretrial ruling analogizing to Harris as being, for that reason, erroneous, i.e., the ruling violates the state's affirmative duty imposed by the Sixth Amendment counsel right.  Jackson/Bladel, supra, at page –––, 106 S.Ct. at page 1410 makes clear that the police and the court are state co-actors.  Maine v. Moulton (Dec. 10, 1985) 474 U.S. 159, –––, 106 S.Ct. 477, 484–85, 88 L.Ed.2d 481, clearly defines the state's affirmative obligation under the Sixth Amendment as being a duty, in this case, to honor and respect by preserving appellant's choice, at law, to forego Pelissetti's custodial interrogation unless afforded the helping hand of counsel, whether by counsel's advice before or presence during questioning, or both.   Having correctly determined that Pelissetti violated the state's affirmative obligation, the trial court's pretrial ruling in a sense completes the circle of offending state actors by ruling so as to allow the prosecution to use appellant's uncounseled (post-arraignment) statement to impeach his testimony in the event he testified.   The record clearly shows appellant's counsel intended that appellant testify and but for the trial court's Harris ruling he would have testified.   Pelissetti, on this record, impermissibly bypassed appellant's lawyer's assistance when it was most needed.   Appellant, contrary to the state's implied promise at arraignment, was not afforded a meaningful or practical opportunity to consult with his lawyer.   Appellant's lawyer, in any event, was the essential medium through which Pelissetti was required to communicate with appellant.   I hold that the trial court was clearly required, via its pretrial ruling, to rectify Pelissetti's disrespectful circumvention of appellant's choice to rely on the assistance of counsel for his defense.   It is indisputable that the court was obligated not to compound that circumvention, even to a limited degree, by effectively diluting the constitutional protection afforded appellant at a most “critical stage” of his defense to crimes formally charged to him by complaint.   As to the prosecutor's duty, it is quite enought to observe that the People have no interest in obtaining a conviction at the expense of the defendant's fundamental rights guaranteed by both state and federal Constitutions.

The trial court's pretrial ruling, and perforce that of my colleagues, is, I fear, infirm.   True, appellant's admissions were voluntary in the legal sense, i.e., his admissions, like Harris', were not the product of intimidation, coercion or deception but of free and deliberate choice.   However, Mr. Justice Rehnquist's protestations to the contrary notwithstanding (see Justice Rehnquist dissent, joined by Powell, O'Conner, JJ. in Michigan v. Jackson/Bladel, supra, at ––– fn. 3, 106 S.Ct. at 1413 fn. 3, under these shown circumstances, appellant having “asserted” at arraignment voluntariness per Johnson v. Zerbst, supra, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 is not the appropriate standard for waiver of appellant's Sixth Amendment based right to counsel.  Solem v. Stumes (1984) 465 U.S. 638, at page 647, 104 S.Ct. 1338, at page 1343, 79 L.Ed.2d 579 decided that Edwards, supra, established “a new rule” utilizing a “per se” approach to waiver, replacing a case-by-case “surrounding circumstances” approach for establishing a knowing, voluntary, and intelligent waiver per Johnson v. Zerbst, supra.   Mr. Justice Powell, while concurring in the judgment in Solem v. Stumes, supra, holding that Edwards ' “per se” rule is not retroactively applied,5 observed that “[t]he Court now states clearly, relying in part on Bradshaw (Oregon v. Bradshaw (1983) 462 U.S. 1039 [103 S.Ct. 2830, 77 L.Ed.2d 405] ) that Edwards established a new per se rule and to that extent overruled Johnson v. Zerbst, supra. ”  (Id., at p. 652, 109 S.Ct. at p. 1346, fn. omitted.)  Solem v. Stumes, supra, like Edwards, is a Fifth Amendment case.  Edwards ' rule, in light of Jackson/Bladel, is equally the Sixth Amendment's waiver principle, applicable to appellant's case.

In the final analysis, then, the rule in Harris cannot find a resting place in appellant's cause, he simply did not waive his Sixth and Fourteenth Amendments' right to counsel's assistance for his defense at trial.   The corollary is that Pelissetti's acts, which violated appellant's fundamental right, constituted unlawful conduct of constitutional proportion rendering appellant's uncounseled statements unavailable for the prosecution's use at trial for any and all purposes.  Massiah, supra, so held.  (See 377 U.S. at pp. 206, 207, 84 S.Ct. at p. 1203.)   After holding that use of his incriminating statements against him at trial denied him “basic protections” constitutionally guaranteed, the Massiah court closed by holding that Massiah's “own incriminating statements ․ could not constitutionally be used by the prosecution as evidence against him at his trial.”  (Id., at p. 207, 84 S.Ct. at p. 1203.)   It is more than trivial, I think, to note that Mr. Justice Stewart delivered the opinion of the court in Massiah, and in Spano v. New York (1959) 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 he concurred stating “[w]hile I concur in the opinion of the Court, it is my view that the absence of counsel when this confession was elicited was alone enough to render it inadmissible under the Fourteenth Amendment.”  (Id., at p. 326, 79 S.Ct. at p. 1209.)

For my part, Massiah's holding ends the matter.   Mr. Justice Goldberg put it right for me in Escobedo v. Illinois (1964) 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977.6  I would afford appellant the opportunity that all constitutionally enjoy, i.e., the right to testify unfettered in their own defense.   That way, at least, the government will be perceived as abiding by its own laws and Constitution.   To paraphrase Stevens, J., 430 U.S. at page 415, 97 S.Ct. at page 1247 when concurring in Brewer v. Williams, supra, “[i]f, in the long run, we are seriously concerned about the individual's effective representation by counsel” this court's majority should reconsider its position taken herein.

I would reverse the judgment.

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

2.   The above evidence constituted the basis for appellant's robbery convictions.   The jury acquitted him of a charge of burglary which occurred at the same pet hospital on September 12, 1983.   Dr. Wong testified that on that date at 4:15 p.m. he was sitting in the reception area when he saw appellant looking into the hospital from outside the front window on Golden Gate Avenue.   Dr. Wong went to the rear of the facility and called the police.   While he was there he heard the same door being kicked in.   Dr. Wong rushed out into the street and saw appellant running away with the cash box, which, upon his return, he found to be missing.Appellant's brother and a friend testified that he was playing basketball with them on the afternoon of September 12.

FOOTNOTE.   Part III of this opinion is not certified for publication.  (See fn. *, ante.)

3.   We begin with the observation that because appellant did not testify, he might be viewed as having failed to preserve the issue on appeal.  (Luce v. United States (1984) 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443.)   Nevertheless, because of the uncertainty of applicability of Luce, we reach the merits of the issue.

4.   These findings are not inconsistent.  Miranda deals with improper coercive police conduct leading to involuntary statements;  Massiah applies the Sixth Amendment and has nothing to do with voluntariness.  (In re Michael B., supra, 125 Cal.App.3d 790, 794, 178 Cal.Rptr. 291;  People v. Whitt (1984) 36 Cal.3d 724, 742, 205 Cal.Rptr. 810, 685 P.2d 1161.)

1.   The Miranda court reasoned that:“The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner ․  [S]tatements merely intended to be exculpatory by the defendant are often used to impeach his testimony at trial․  These statements are incriminating in any meaningful sense of the word and may not be used without the full warnings and effective waiver required for any other statement. ”  (384 U.S., at pp. 476–477, 86 S.Ct., at 1629, emphasis added.)The Harris court characterized the above quoted words as being “some comments,” i.e., dictum;  thus did the rule in Harris come to be.   But see for comparison People v. Disbrow (1976) 16 Cal.3d 101, at pages 105–116, 127 Cal.Rptr. 360, 545 P.2d 272;  opinion by Mosk, J. for classic discussion rejecting Harris rule in California on independent state grounds.  (Cal.Const., art. 1, § 15.)   See further at pages 116–117, 127 Cal.Rptr. 360, 545 P.2d 272, concurring opinion by Wright, C.J., rejecting Harris rule on “fundamental fairness” grounds.

2.   In light of Edwards v. Arizona (1980) 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378, I would think that Oregon v. Hass, supra, would be decided differently.   Hass waived his Miranda rights, reconsidered and then asked for an attorney thereby invoking his “right” per Miranda.   His inculpatory statements used to impeach were made thereafter in response to further police interrogation.   The Edwards court would hold, of course, that Hass did not waive his Fifth Amendment based right to counsel by responding to further questioning.   My sense of Edwards ' prophylactic rule is that it prevents use at trial of the defendant's uncounseled statements for any purpose.

3.   The trial court thought Pelissetti's violation was “inadvertent” and my colleagues apparently conclude that Pelissetti acted “perfectly proper.”  (See maj. opn. at p. 788.)   I disagree on both counts.   The Sixth Amendment is not violated by luck or happenstance, it requires knowingly deliberate elicitation circumventing the defendant's right to counsel.   Pelissetti, I hold, had an affirmative duty to reasonably determine that appellant had not yet been arraigned before paying his jail visit.   The practice revealed herein, i.e., a footrace to interview a charged defendant before arraignment, is one I hold violates the Sixth and Fourteenth Amendments' right to counsel.   The right “attaches” when the complaint is filed.   I see no reason why the state should not honor that right before it is asserted at arraignment.

4.   “THE COURT:  You see, what we are dealing with is not the typical Miranda problem.   That is really what it is.   What we are dealing with really is the Sixth Amendment problem, and it is quite clear that the defendant had a lawyer at the time and didn't have a lawyer representing him at the time of the conversation with Inspector Pelissetti, irrespective of whether his rights were given, weren't given.   He wasn't represented by counsel.  [¶ ]  He has a right to counsel under the Sixth Amendment.   I don't have too much problem with this, and I think that—I believe it was clearly inadvertent, obviously.  [¶]  In my mind there's no question about it.   I think it was unfortunate, Inspector, it worked out in that fashion.  [¶ ]  I think you ought to be clear in your mind with respect to what your rights are after a Complaint is filed, however.”In Moran v. Burbine, supra, at p. –––, 106 S.Ct. at p. 1145, the Supreme Court elected not to decide whether waiver of the Fifth Amendment right to counsel necessarily waives the parallel right under the Sixth Amendment.   In Michigan v. Jackson (1986) 475 U.S. 625, –––, 106 S.Ct. 1404, 1411, 89 L.Ed.2d 631, the Court stated:  “In view of our holding that the Edwards rule applies to the Sixth Amendment and that the Sixth Amendment requires the suppression of the postarraignment statements, we need not decide either the validity of the Fifth Amendment waiver in this case, see n. 4, supra, or the general relationship between Fifth and Sixth Amendment waivers.”  (See for a discussion of the “problem area” with collected cases People v. Bladel (1984) 421 Mich. 39, 365 N.W.2d 56 at pp. 63–67.)

5.   Solem v. Stumes, supra, is a “collateral attack” case.   Shea v. Louisiana (1985) 470 U.S. 51, 105 S.Ct. 1065, 84 L.Ed.2d 38 held that the Edwards ruling applies to cases pending on direct appeal at the time Edwards was decided.

6.   Quoting Justice Goldberg, id. at pages 488–490, 84 S.Ct. at pages 1763–64:“We have learned the lesson of history, ancient and modern, that a system of criminal law enforcement which comes to depend on the ‘confession’ will, in the long run, be less reliable and more subject to abuses than a system which depends on extrinsic evidence independently secured through skillful investigation.

FOOTNOTE.  “We have also learned the companion lesson of history that no system of criminal justice can, or should, survive if it comes to depend for its continued effectiveness on the citizens' abdication through unawareness of their constitutional rights.   No system worth preserving should have to fear that if an accused is permitted to consult with a lawyer, he will become aware of, and exercise, these rights.   If the exercise of constitutional rights will thwart the effectiveness of a system of law enforcement, then there is something very wrong with the system.”   (Emphasis in original;  fns. omitted.)

BARRY-DEAL, Associate Justice.

SCOTT, J., concurs.

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