PEOPLE v. TURNER

Reset A A Font size: Print

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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Billy Earl TURNER, Defendant and Appellant.

A023450.

Decided: July 25, 1986

Gary Kitajo, under appointment by the Court of Appeal, Oakland, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Robert R. Granucci, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

This is an appeal from a judgment of conviction entered on a jury verdict finding appellant guilty of four counts of first degree burglary (Pen.Code, § 459),1 one count of second degree burglary (§ 459), and one count of attempted burglary (§§ 459/664).   Appellant argues that the trial court committed reversible error by allowing introduction of evidence relating to his confession.   Appellant maintains that once a criminal charge was filed against him and counsel was appointed, appellant acquired an absolute, unwaivable right to counsel's presence at any subsequent interrogation on that or any uncharged offenses.   Therefore, appellant argues, his confession was unlawfully obtained, and introduction of the confession into evidence violated his rights under the Sixth and Fourteenth Amendments of the United States Constitution.2  For the reasons set forth below, we affirm.

Statement of the Facts and of the Case

On February 9, 1983, appellant was detained by Officer Bittner of the Pittsburg Police Department because of suspicious conduct in an area which had many recent burglaries.   Officer Hendricks arrived on the scene in response to a radio broadcast.   When informed of appellant's identity, Officer Hendricks told Officer Bittner to arrest appellant because his left palm print had been positively identified in a burglary (the O'Connor residence).

Officer Ronald Parker, an investigator for the Pittsburg Police Department, learned of appellant's arrest in connection with the burglary and contacted the court to arrange a meeting with him.   On February 11, 1983, the day appellant was to be arraigned on the O'Connor burglary charge, Officer Parker escorted appellant from the holding facility at the courthouse to the police department across the street.   Officer Parker told appellant that he wished to talk to him about the burglary and that appellant's left palm print found at the residence had been identified.   Officer Parker testified that he admonished appellant per Miranda (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) and that appellant signed a waiver which was witnessed by another officer.   Appellant denied being advised of his rights.

Officer Parker questioned appellant about the burglary for which he was to be arraigned and also asked him about a series of other burglaries in the area.   Appellant admitted involvement in some of them, although he could not recall the addresses.   Appellant agreed to accompany Officer Parker to the locations involved.   Appellant was then arraigned on the O'Connor burglary charge, and counsel was appointed.   The presiding judge agreed to allow appellant to visit the burglary sites following the arraignment.

Without readmonishing appellant, Officer Parker and Detective Lee drove him to the vicinity in which the burglaries had occurred.3  Appellant pointed out six residences which he had burglarized or attempted to burglarize.   However, when they drove by the O'Connor residence, appellant denied any involvement.   When informed that his palm print had been found at the O'Connor residence, appellant replied, “ ‘Well, I could have burglarized it.   I don't remember.’ ”

Appellant and the officers returned to the police station, whereupon Officer Parker prepared a statement.   Officer Parker read the statement to appellant, who declined to read it himself, and appellant signed it.

Appellant testified that he made his incriminating statements only after Officer Parker promised to “go talk to the Judge” about dropping all charges.   Officer Parker denied making any such promise.

A second complaint was filed charging the first burglary and the six counts of burglary or attempted burglary to which appellant had confessed.   Appellant pleaded not guilty.

At trial on May 23, 1983, appellant made a motion in limine to exclude his statements to the police on the ground that they were obtained in violation of his right to counsel.   The motion was denied.   Appellant was found guilty on six of the seven counts charged, including the O'Connor burglary, and this appeal followed.

Discussion

Our inquiry into the admissibility of appellant's statements begins with Massiah v. United States (1964) 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246.   In Massiah, government agents, while continuing to investigate defendant's narcotics activities after defendant had retained an attorney and was free on bail after indictment, secured an alleged confederate's consent to install a radio transmitter in the confederate's car.   Defendant was unaware of the surveillance activities.   A government agent was able to overhear defendant's damaging statements, which were used at trial over defendant's objection.  (Id., at pp. 202–203, 84 S.Ct. at pp. 1200–1201.)   The Supreme Court held that once defendant had been indicted, incriminating statements deliberately elicited from him by government agents, in the absence of his attorney, deprived defendant of his right to counsel under the Sixth Amendment.  (Id., at pp. 205–206, 84 S.Ct. at pp. 1205–1206.)

As early as 1968, the California Court of Appeal interpreted Massiah as mandating that “․ after 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 his [or her] counsel.”  (People v. Isby (1968) 267 Cal.App.2d 484, 494, 73 Cal.Rptr. 294.)   In People v. Boyd (1978) 86 Cal.App.3d 54, 60, 150 Cal.Rptr. 34, that particular right to counsel was found to be absolute and unwaivable.   As recently as 1981, the same court stated that “After filing of formal charges against a defendant and appointment of counsel to represent him [or her], police-initiated interrogation is absolutely barred out of the presence of counsel, even if defendant wishe[s] to permit such questioning.  [Citation.]”  (In re Michael B. (1981) 125 Cal.App.3d 790, 793–794, 178 Cal.Rptr. 291.)   It must be noted that Massiah and Isby concerned interrogations relating to the crimes charged, rather than to other suspected crimes.4

The questioning condemned in Massiah violates the right to counsel secured by the Sixth and Fourteenth Amendments because it interferes with representation of the defendant during the critical preliminary stage when protection may be most needed.  (In re Michael B., supra, 125 Cal.App.3d at p. 794, 178 Cal.Rptr. 291;  see Massiah v. United States, supra, 377 U.S. at p. 205, 84 S.Ct. at p. 1205.)  “Thus, the right protected by the Massiah rule differs from the exclusionary rule under the Fourth Amendment which focuses on prevention of police illegality in impermissible invasions of privacy [whereas Massiah focuses on the interference with defendant's attorney which may increase his or her difficulties in fashioning an effective defense].   It also differs from Miranda 's Fifth Amendment protection, which seeks to prevent undue pressure upon the defendant in order to establish the People's case out of the mouth of the accused.”  (In re Michael B., supra, at p. 794, 178 Cal.Rptr. 291.)

 Appellant does not challenge the adequacy of the Miranda warning, and the trial court found beyond a reasonable doubt that appellant was properly admonished prior to the arraignment, that it was not necessary to readmonish appellant after he was arraigned, and that appellant's statements and confessions were free and voluntary.5

Appellant relies on Brewer v. Williams (1977) 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 for the proposition that “․ the right to counsel granted by the Sixth and Fourteenth Amendments means at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him—‘whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’  [Citations.]”  (Id., at pp. 398–399, 97 S.Ct. at p. 1239 citing Kirby v. Illinois (1972) 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411.)   In Brewer, the defendant was arrested, arraigned and jailed in Davenport, Iowa, for abducting a 10-year-old girl in Des Moines.   Both his Des Moines lawyer and his lawyer at the Davenport arraignment advised defendant not to make any statements until after consulting with the Des Moines lawyer upon being returned to Des Moines.   The officers who were to drive defendant to Des Moines agreed not to question him during the trip.   On the way to Des Moines, one of the officers, who knew that defendant was a former mental patient and deeply religious, preyed on defendant's infirmities and religious convictions and solicited incriminating statements from the defendant, who eventually led the officers to the girl's body.  (Brewer, supra, 430 U.S. at pp. 390–393, 97 S.Ct. at pp. 1235–1236.)   The Supreme Court held that evidence of defendant's statements had been wrongly admitted at trial because he had been denied counsel.  (Id., at pp. 397–398, 97 S.Ct. at pp. 1238–1239.)6

There can be no doubt that where police wrongfully obtain incriminating statements in factual situations resembling Massiah and Brewer, the evidence may not be introduced at trial.  (People v. Isby, supra, 267 Cal.App.2d 484, 494–495, 73 Cal.Rptr. 294;  see also Maine v. Moulton (1985) 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481;  Michigan v. Jackson (1986) 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631.)   The present case, however, has both similar and different elements.   Here, formal proceedings had started on one count, with an attorney having been appointed on that charge, but other charges were still being investigated.  (See In re Michael B., supra, 125 Cal.App.3d 790, 178 Cal.Rptr. 291.)   The issue is whether the police should be able to initiate questioning on the uncharged offenses while defendant is in custody on the charged matter, out of the presence of defendant's attorney.  (Id., at p. 795, 178 Cal.Rptr. 291.)

The case of Michigan v. Mosley (1975) 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 is similar to the present case, despite the fact that Mosley considered the admissibility of incriminating statements in light of Miranda 's Fifth Amendment guarantees.   In Mosley, the defendant was arrested and in custody for robberies and, upon being cautioned per Miranda, stated that he did not wish to discuss the robberies.   More than two hours later, after giving Miranda warnings, another detective questioned defendant solely about an unrelated murder.   Defendant made an incriminating statement, which was later used in his trial for murder.  (Mosley, supra, at pp. 97–98, 96 S.Ct. at p. 323.)   The Supreme Court held that the admission in evidence of defendant's incriminating statement did not violate Miranda principles:  “․ a blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation, regardless of the circumstances, would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity, and deprive suspects of an opportunity to make informed and intelligent assessments of their interests.”  (Mosley, supra, at p. 102, 96 S.Ct. at p. 325.)

Appellant argues that California has rejected Mosley.  (See People v. Smith (1983) 34 Cal.3d 251, 264–265, 193 Cal.Rptr. 692, 667 P.2d 149;  People v. Pettingill (1978) 21 Cal.3d 231, 248–250, 145 Cal.Rptr. 861, 578 P.2d 108.)   Prior to Proposition 8, appellant's argument would have had merit.   The criminal acts now under consideration occurred after Proposition 8's effective date.   Consequently, we must follow the United States Supreme Court's reasoning.7

Appellant also maintains that because all the burglaries were “closely related,” appellant had a right to counsel during the interrogation concerning them.  (See People v. Boyd, supra, 86 Cal.App.3d at p. 61, 150 Cal.Rptr. 34.)   In Boyd, the court applied the Isby rule (People v. Isby, supra, 267 Cal.App.2d 484, 73 Cal.Rptr. 294) of nonwaivable right to be questioned only in the presence of counsel because the two crimes (nearly contemporaneous burglary and arson of the same premises) presented an inseparable factual situation upon which formal adversary proceedings had commenced.  (Boyd, supra, 86 Cal.App.3d at p. 62, 150 Cal.Rptr. 34.)   As will be shown below, the burglaries under consideration are not “closely related.”

Appellant's reliance on People v. Marbury (1965) 63 Cal.2d 574, 47 Cal.Rptr. 491, 407 P.2d 667 is misplaced.   In Marbury, defendant confessed to robbery and murder.   The confessions occurred while defendant was in custody for another robbery for over 24 hours, without having been read his rights, and was interrogated intermittently to elicit a confession of the other crime.   About 15 minutes before he confessed, he was confronted with evidence of attacks on two people and accused of the attacks.  (Id., at pp. 577–578, 47 Cal.Rptr. 491, 407 P.2d 667.)   In the instant case, the trial court found that appellant was properly admonished, a finding which appellant does not challenge.

All the cases which permit voluntary interrogation on one charge out of the presence of counsel appointed on a different charge base their holdings on either the lack of proximity of the offenses, the discrepancy in the seriousness of the offenses, with consequent unlikelihood of the same attorney representing defendant on both, or on a combination of such factors plus the fact that full Miranda warnings were given and the waiver was wholly voluntary.  (See In re Michael B., supra.,  125 Cal.App.3d 790, 178 Cal.Rptr. 291, and cases cited therein, pp. 795–797, 178 Cal.Rptr. 291.)

In re Michael B., supra, 125 Cal.App.3d 790, 178 Cal.Rptr. 291, is a case almost identical to the present factual situation.   Michael B. was charged with burglary of the Loper residence.   Following his detention hearing, after an attorney had been appointed to represent him, he confessed during a police-initiated interrogation to the Loper burglary and to two other burglaries.   He was then charged with the two additional burglaries.   In a jurisdictional hearing, the court excluded from evidence the confession of the Loper burglary because it was the product of police questioning after the filing of formal charges at a time when Michael had counsel, in accordance with the rule of Massiah v. United States, supra, 377 U.S. 201, 84 S.Ct. 1199.   In his appeal, Michael claimed that all of his confessions were inadmissible.  (In re Michael B., supra, 125 Cal.App.3d at p. 792, 178 Cal.Rptr. 291.)   The court held that the confessions of the other two burglaries were properly admitted into evidence:  “The crimes are the same—three burglaries, close in time, same modus operandi, same general locale.   In this sense, the crimes are ‘closely related.’   Probably, the same attorney would have been appointed to represent Michael on all charges had they been filed at the same time.   Even with the filing of the charges at different times, the likelihood of a different attorney representing Michael on the uncharged offenses is slight.   Nevertheless, the record does not reveal in what manner interrogation of Michael on the charged offense interfered with effective representation of him on the uncharged offenses.   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.   Here, there is not that same intertwining of facts which will dilute effective representation either in preparing for trial or at trial.   In addition, evidence relating to the first charged offense can be totally excised at trial without prejudice to Michael.   Accordingly, in the context of Sixth Amendment, Massiah protection, ‘closely related’ charges therefore must be restricted to only those charges which are so interconnected that separation of the charges and representation by counsel on one distinct from the others cannot be accomplished.  (See People v. Boyd, supra, 86 Cal.App.3d 54, 62, 150 Cal.Rptr. 34.)   We conclude the court's evidentiary ruling admitting the confessions of the August 4 and 8 burglaries was correct.”  (In re Michael B., supra, 125 Cal.App.3d at pp. 797–798, 178 Cal.Rptr. 291.)

 Just as in In re Michael B., the burglaries involved in the instant case were close in time, involved the same modus operandi, and occurred in the same general area.   The same attorney probably would have been appointed to represent appellant on all charges had they been filed at the same time.   However, there is no evidence that the interrogation of appellant on the charged offense would have interfered with effective representation of him on the uncharged offenses.   There is no intertwining of facts which would jeopardize effective representation.   Consequently, the crimes were not closely related in the context of Massiah 's Sixth Amendment protection.   Therefore, appellant was not denied his rights under the Sixth and Fourteenth Amendments as to the uncharged burglaries about which he was interrogated.

 The trial court erred in denying appellant's motion to exclude the evidence relating to his statement as to the burglary of the O'Connor residence for which he was first arraigned.   Although the improper introduction of a confession is considered reversible per se (People v. Randall (1970) 1 Cal.3d 948, 958, 83 Cal.Rptr. 658, 464 P.2d 114), the wrongful introduction of an admission is not reversible if the People can show beyond a reasonable doubt that the error complained of did not contribute to the verdict.  (People v. Murtishaw (1981) 29 Cal.3d 733, 756, 175 Cal.Rptr. 738, 631 P.2d 446;  People v. McClary (1977) 20 Cal.3d 218, 230, 142 Cal.Rptr. 163, 571 P.2d 620;  see Chapman v. California (1967) 386 U.S. 18, 23–24, 87 S.Ct. 824, 827–828, 17 L.Ed.2d 705.)   In McClary, the state Supreme Court described “․ a confession as amounting to a declaration of defendant's intentional participation in a criminal act, whereas an admission is merely the recital of facts tending to establish guilt when considered with the remaining evidence in the case.”  (Id., 20 Cal.3d at p. 230, 142 Cal.Rptr. 163, 571 P.2d 620.)   Here, defendant's statement concerning the O'Connor burglary amounted at most to an admission:  “The house Det. Parker showed to me at 4294 Goldenhill Dr., I was not sure if I broke into it or not.   I don't remember.”

 The improper admission of this statement does not constitute reversible error.   Latent prints of defendant's palm, lifted at the scene of the O'Connor burglary, were positively identified and introduced into evidence.   At no time did defendant affirmatively declare that he had burglarized the O'Connor residence.   The evidence of defendant's presence at the scene of the burglary was conclusive, and his statement in no way tipped the scale in favor of conviction.   Consequently, the error was harmless.

Conclusion

For the foregoing reasons, the judgment is affirmed.

Respectfully I dissent.   This court's lead opinion (at p. 479) states, when relating the facts, that “[a]ppellant was then arraigned on the O'Connor burglary charge, and counsel was appointed.   The presiding judge agreed to allow appellant to visit the burglary sites following the arraignment. ”   (Emphasis added.)   These facts are provocative, compelling, I think, this court's scrutiny.   Actually, as the record set forth in the margin reveals,1 appellant's visit to the burglary sites after his arraignment came to pass because of a prior “arrangement” between Judge Rose, then Presiding Judge of Delta Municipal Court, and Detective Parker, made, one assumes, in the court's chambers in appellant's absence.   It is also reasonable to assume that Detective Parker's impromptu visit and request probably caught Judge Rose “off his guard,” so to speak;  elsewhere the record reflects that the time was 10:30 a.m. or shortly after, immediately prior to the court taking the bench to preside over an unusually “heavy” arraignment calendar.   Reasonable assumptions notwithstanding, this court, I think, must withhold approval of both the meeting between the state executive and judicial officer and their “arrangement.”   Basic is the duty of the trial judge “to prevent ex parte discussions of a pending case.”  (ABA Project On Standards Relating to the Function of the Trial Judge (Approved Draft, 1972) std. 1.6 at p. 8.)2  Promulgated in order to assure the fair administration of our adversary judicial criminal justice system, ABA Standard 1.6, supra, I think, requires a finding that Judge Rose erred in that he did not direct Detective Parker to make his request formally, via the prosecuting attorney, in open court, for example, at appellant's arraignment appointing counsel.3  Clearly, at the time, the charged O'Connor burglary was a “pending case.”

Upon reviewing this record, one can readily understand that Detective Parker's informal visit to the court's chambers was his way of reacting to certain time and jurisdictional restraints blocking his investigation.   Mr. Turner was not his prisoner.   Clearly, his imminent confessions were an imperative.   Consequently, the court's assistance was needed.   It is my view, however, that Detective Parker's resourcefulness ultimately disserved the state's interest.   The “arrangement” does not pass muster when subjected to both statutory and constitutional scrutiny.

Mr. Turner's status was prescribed by statute.  (See section 4 4000 5 .)  Appellant, at the time, was a person detained in the Martinez County jail charged with the O'Connor residence burglary, having been arrested upon probable cause based on a latent lift found at the crime scene, allegedly identified to be his left palm print.   The government, personified by Detectives Parker and Lee, had both the interest and duty to thoroughly investigate the O'Connor burglary.   In addition, the state's interest and duty extended to some “15 or 20” unsolved burglary reports assigned to Detective Parker for investigation.   Obviously, when subjected to custodial interrogation in Parker's office about any crime charged or uncharged, appellant's 5th and 14th Amendment privilege against self-incrimination was safeguarded by Miranda's right to remain silent, or, if he opted to speak, a right to have appointed counsel present.   In addition, appellant's 6th and 14th Amendment right to the assistance of counsel was firmly attached as to the charged burglary, i.e., the O'Connor residence.

Parker testified (motion in limine to exclude admissions and confessions at “sites”) that prior to undertaking custodial interrogation in his office, he, from a “form,” read appellant his Miranda rights, that appellant “appeared to understand the ‘advice’ given as regards his rights” when saying “he would talk to me,” that he signed, as regards his “Miranda rights,” a “waiver” form.6

However, it clearly appears that Detective Parker's initial custodial interrogation conducted in his office did not ipso facto satisfy the state's interest.   Parker's expert questioning exposed appellant's ability to recall his crimes to be nil for all practical purposes, predictably insufficient to insure proving his “guilt” at trial by a court or jury.   Including the O'Connor burglary, appellant simply couldn't remember which, if any, of Parker's “15 to 20” burglary reports were his handiwork and criminal responsibility;  recitation of dates and addresses totally failed to adequately refresh his memory.   Detective Parker testified that Mr. Turner remained “cooperative,” however, willing to accompany the police officers on Parker's proposed visit to the burglary sites.   Undoubtedly, Parker reasoned that once there, appellant would recall and confess his recent residential thefts.   Incident therewith, of course, Mr. Turner would also effectively reduce his trial for burglaries charged and all but charged to a mere formality.

As I see it, Detective Parker knowing or presumed to know the law, the government faced a problem of crisis proportions resulting from appellant's inconclusive statements in the office.   Appellant's needed physical custody was placed by statute beyond Parker's lawful jurisdiction and effective control for his purpose by virtue of sections 4000 and 4004,7 the latter section confining appellant to the county jail in custody of the sheriff unless and until permitted to go at large out of jail by virtue of legal order or process, and then only in the custody of the sheriff.   The presented situation, then, although calling for court action, apparently differed markedly statute-wise from one when applying ex parte to the magistrate for an arrest or search warrant upon probable cause, a statutory process for obvious considerations not requiring notice to the accused or his or her counsel.8  In contrast, section 4004 on its face would appear to be an obstacle delaying, if not blocking, accomplishment of Parker's immediate goal.   Section 4004 required Parker to use the services of the prosecuting attorney, contemplating as it does an open court hearing, a showing of good cause upon notice to appellant, appearing and heard with assistance of counsel.   Apparently the thought never occurred to Parker or the court that even in the absence of section 4004, “due process,” though a variable concept, would require no less.9  At the time, it bears repeating, the 6th Amendment right to counsel had “attached” when the formal complaint charging the O'Connor burglary was filed.  (See United States v. Wade (1967) 388 U.S. 218, 224–225, 87 S.Ct. 1926, 1930–1931, 18 L.Ed.2d 1149;  United States v. Gouveia (1984) 467 U.S. 180, 189, 104 S.Ct. 2292, 2298, 81 L.Ed.2d 146.)

In any event, Miranda's procedural safeguards presented Parker with a foreboding prospect from his perspective, if not experience.   Appellant, even assuming that he had validly waived his privilege not to incriminate himself and incident thereto his Miranda (5th Amendment) right to have counsel present during custodial interrogation, he still enjoyed the right under Miranda to “cut off” Parker's proposed custodial incommunicado visit to the burglary sites to obtain his uncounseled confessions, not an unlikely probability if he counseled with a competent attorney when afforded a section 4004 hearing or its nonstatutory equivalent.   Moreover, appellant, indigent and for two days past imprisoned in Martinez County jail without the benefit of a lawyer's helpful word and sound legal advice, was on calendar for arraignment.   Undoubtedly the public defender would be appointed to assist and defend appellant's interest.   However, appellant normally would thereafter be forthwith returned by the county sheriff's bus to the county jail in Martinez, approximately a thirty (30) minute drive from the Delta Municipal Court.   Appellant, even when returned, would not consult with a deputy public defender until practicable, although predictably with dire consequences to Parker's immediate interest in appellant.   Truly, then, the criminal justice process was at its most critical stage for both adversaries.   The government's right to obtain evidence demonstrating Mr. Turner's “guilt” of burglaries charged and uncharged, appellant's lawful defense thereto, i.e., “silence,” and the vindication of the victims' rights teetered precariously in the balance.   Obvious to anyone, particularly to Detective Parker, time and timing were of the essence.   If Parker's needs of appellant were ever to be realized, “now,” before arraignment, was the ideal time.   As it developed, Parker had no choice but to settle for Judge Rose's solution.

It is my view that Detective Parker's resourceful and pragmatic plan solving the government's problem, though not fail safe, appeared to him to win the battle;  actually, as I see it, the “arrangement” lost the war, so to speak.   Parker's impromptu visit with Judge Rose paid dividends, or so it appeared.   The “arrangement” imposed by the court notifying the police immediately upon completion of Mr. Turner's arraignment allowing Parker to “․ go ahead and take care of him from there ․,” from a pragmatist's perspective did not materially lessen the government's chances of obtaining Mr. Turner's contemplated confessions before he, on advice of counsel, exercised his Miranda right to “cut off” Parker's further questioning.   As a rule during a “heavy” arraignment calendar, seldom, if ever, does the busily occupied calendar deputy public defender have an opportunity to meaningfully interview the indigent client at or during the arraignment calendar;  as aforestated, the initial in-depth interview normally occurs later in Martinez at the county jail.   Thus, the court's in chambers decision to first “arraign,” then to “notify” and then to “release” (see fn. 1, ante ), if executed as planned, effectively removed appellant's opportunity of right to consult with counsel prior to further questioning, and to have counsel present during any post-arraignment questioning if appellant so desired.

VALID WAIVER?

As I see this case, the critical issue presented to the trial court was whether the prosecution proved appellant made a valid waiver of his right to counsel.   It is clear that appellant's right to counsel afforded him both a reasonable opportunity to confer with the public defender before going with Parker to visit burglary sites, and, according to his will, the right to have the public defender present and overseeing his interests during that post-arraignment custodial investigation.   Appellant's right to counsel was but a single right emanating from two sources, both based in the Bill of Rights, and both well known to judges, lawyers and policemen.   One source was created judicially in Miranda v. Arizona (1966) 384 U.S. 436, 470, 86 S.Ct. 1602, 1625, 16 L.Ed.2d 694 as one of several procedural admonitions designed to protect the individual's Fifth Amendment privilege against compulsory self-incrimination.  “The Fifth Amendment right identified in Miranda%i is the right to have counsel present at any custodial interrogation.”   (Edwards v. Arizona (1981) 451 U.S. 477, 485–486, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378.)   The second source, of course, is visible to the naked eye, it is expressly guaranteed by the Sixth Amendment of our federal Constitution.   “The Sixth Amendment guarantee of the assistance of counsel also provides the right to counsel at post-arraignment interrogations.”  (Michigan v. Jackson (April 1, 1986) 475 U.S. ––––, ––––, 106 S.Ct. 1404, 1407, 89 L.Ed.2d 631.)   Constitutional case precedents recognize, indeed they have established, subtle distinctions between the right to counsel incident to the Fifth Amendment and the counsel right expressly guaranteed by the Sixth Amendment.   Principles of law have resulted that the average person does not fully comprehend.   Appellant, indigent and a high school dropout, is a case in point.   While in his office Parker apparently informed appellant that he had the right to an attorney and to have that attorney present during interrogation, that if unable to afford an attorney the court would appoint him one.   For some reason appellant at that time decided he did not want an attorney's advice and/or presence.   Minutes later the court presumably informed him of his “right to have counsel's assistance before being arraigned.”10  In court, appellant changed his mind, then deciding that he did desire the assistance of a lawyer and Judge Rose responded by appointing him the public defender.   I think it is reasonable to assume that appellant's skills did not include the science of the law, but he did know that he now had for his defense the court-appointed attorney that Parker had, in effect, offered him.   Appellant could not know whether he was “invoking” his Fifth Amendment based right to counsel constituting two of Miranda's procedural safeguards or only “asserting” his Sixth Amendment based right.   Foremost in appellant's mind, I would think, was the visit to the burglary sites.   Knowing that Parker had told him that anything he said there would be used against him in court, all he wanted was a lawyer's sound legal advice and helping hand before dealing further with Parker's questioning.11  The court “gave” him an attorney.   Given his socio-economic status, what more could he reasonably expect, certainly not two attorneys when one would do nicely.

Appellant's post-arraignment “admissions and confessions” were made available to the prosecution by the trial court's pretrial ruling.   The prosecution used appellant's incriminating statements in its case-in-chief notwithstanding the fact that the incriminating statements were “uncounseled,” and made while appellant was held by Parker “incommunicado” from his attorney at a time when such professional services were most needed.   Further, the “uncounseled” and “incommunicado” statements used to prove appellant's “guilt” were obviously the fruits of collusion between a judicial officer and the police, “collusion” that not only denied appellant his right to counsel but compromised the integrity of our adversarial judicial criminal justice system.

The margin sets forth the trial court's findings bottoming its ruling denying appellant's motion.12  Upon reviewing the court's findings, it is readily apparent that the trial court overlooked the significance of appellant's request at his arraignment for the assistance of a lawyer's helping hand and sound legal advice before any further confrontation with Detective Parker.   The federal Supreme Court, however, construes appellant's request for counsel at arraignment to be an “extremely important fact in considering the validity of a subsequent waiver in response to police-initiated [here, Parker's visit to the burglary sites] interrogation.”  (See Michigan v. Jackson/Bladel, supra, ––– U.S. at p. –––– fn. 6, 106 S.Ct. at p. 1409 fn. 6.)   It is also readily apparent, I think upon review, that the trial court misunderstood the requirement for finding a valid waiver of the right to counsel once an accused in custody (appellant) has clearly invoked the right.   The findings simply do not focus on whether appellant understood his right to counsel and “knowingly and intelligently” relinquished it.  (See Edwards v. Arizona, supra, 451 U.S. at pp. 482–485, 101 S.Ct. also see Moran v. Burbine (March 19, 1986) ––– U.S. ––––, ––––, 106 S.Ct. 1135, 1140, 89 L.Ed.2d 410.) 13  Edwards, as all members of this panel fully know, cut off, per Miranda, supra, 384 U.S. at pp. 473–474, 86 S.Ct. at p. 1627, custodial interrogation by “invoking” his counsel right by stating “I want an attorney before making a deal.”   However, the next day the police resumed their interrogation employing a technique, in effect, “badgering” Edwards to the point where he confessed his crimes previously charged by formal complaint, charged crimes on which he had not yet been arraigned.  Edwards v. Arizona, supra, is, then, a right to counsel decision under the Fifth Amendment as the operative facts occurred during the investigative stage of our adversarial criminal justice system, i.e., before Edwards had any opportunity to assert his Sixth Amendment based right to counsel at arraignment.   The Edwards court held that Edwards, an accused person in custody who had clearly stated his choice to deal with the police through the medium of his counsel, was not subject to further police questioning “until counsel [had] been made available to him, unless [Edwards initiated] further communication, exchanges, or conversations with the police.”  (Id., 451 U.S. at pp. 484–485, 101 S.Ct. at p. 1885, emphasis added.)   In Solem v. Stumes (1984) 465 U.S. 638 at pp. 646–647, 104 S.Ct. 1338 at p. 1343, 79 L.Ed.2d 579 the court acknowledged that Edwards, supra, 451 U.S. at p. 484, 101 S.Ct. at p. 1885, established a new bright line prophylactic rule safeguarding the Fifth Amendment based right to counsel, once invoked.   The Edwards court held that “when the accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.8”  (Edwards, supra, at p. 484, 101 S.Ct. at p. 1885, emphasis added.)

(Id., at p. 484, 101 S.Ct. at p. 1885;  fn. 8 is omitted, but notably it makes significant reference to Brewer v. Williams (1977) 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 423 and Massiah v. United States (1964) 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, both Sixth Amendment right to counsel cases in which the right to counsel had been asserted, occurred wherein the Court held that a valid waiver of the right to counsel should not be inferred from the mere response by the accused to overt or more subtle forms of interrogation or other efforts to elicit incriminating information in the absence of appointed or retained counsel.)

The Supreme Court in Michigan v. Jackson/Bladel, supra, agreed with the State of Michigan Supreme Court's application of Edwards' new bright line prophylactic rule in the Sixth Amendment context, i.e., where the accused charged with a specific crime requests the appointment of counsel at arraignment.   Both Jackson's and Bladel's post-arraignment confessions were held by the Michigan Supreme Court to be inadmissible at trial because they were obtained by the police in violation of the defendant's Sixth Amendment based right to counsel.   Notwithstanding the fact that both Jackson and Bladel were Mirandized and were apparently willing to talk in counsel's absence, their confessions were inadmissible at trial because the police, impermissibly ignoring their unequivocal request for counsel at arraignment, did not afford the defendants an opportunity to consult with their respective counsel before initiating further interrogation.   Both defendants had willingly made prior uncounseled statements following Miranda waivers before requesting counsel at arraignment.   The admissibility of the defendants' prearraignment statements was not challenged on appeal.

In appellant's case at bench, then, the trial court's ruling is clearly infirm, certainly as regards appellant's post-arraignment admission of the charged O'Connor burglary.   The prosecution simply did not prove, indeed it could not prove, a valid waiver of appellant's Sixth Amendment based right to consult with his court appointed counsel and have her present when visiting the burglary sites after arraignment.   The lead opinion agrees (see maj. opn. at p. 484);  my colleagues' analysis finds, in essence, a Massiah violation and delimits the trial court's error to the admission of appellant's uncounseled post-arraignment admission as regards the charged O'Connor burglary.   Because the incriminating statement is an admission and not a confession, the lead opinion concludes that the error is harmless.   As regards appellant's post-arraignment uncounseled and incommunicado statements demonstrably confessing to uncharged burglaries, however, the majority concludes that “appellant was not denied his rights under the Sixth and Fourteenth Amendments.”  (See lead opn. at p. 484.)

It is at this point that I part company with my learned colleagues.   The clear implication of the majority's position, of course, is that the prosecution proved that appellant, as regards his uncharged burglaries, validly waived, per Miranda's standard, his right to have an opportunity to confer with the public defender and have her present during his uncounseled, incommunicado and therefore ill-fated post-arraignment questioning in the field.   I find the law ludicrous if it permits in these shown circumstances a perception of appellant believing that he was capable of dealing with Parker in the field, uncounseled and single-handedly as regards six (6) of his burglaries but incapable of doing so as to one (1), i.e., the O'Connor burglary.

The lead opinion, at page 481, states the issue as being “whether the police should be able to initiate questioning on the uncharged offenses while defendant is in custody on the charged matter, out of the presence of defendant's attorney.”   My colleagues, reasoning from Michigan v. Mosley (1975) 423 U.S. 96, 102, 96 S.Ct. 321, 325, 46 L.Ed.2d 313, hold in effect that “yes” Parker could, as he did, subject appellant to post-arraignment, uncounseled, incommunicado questioning as regards his uncharged burglaries because prior to arraignment appellant waived his Miranda rights.  (See lead opn., pp. 482–483 fn. 7.)   Setting to one side the issue as to whether the trial court properly concluded that appellant validly waived his Miranda rights in Parker's office, I hold that common sense compels a finding that at his arraignment appellant simultaneously invoked and asserted his right to counsel's advice and presence, i.e., his counsel right under both the Fifth and Sixth Amendments.   Thereafter, in light of that fact, the prosecution did not, indeed could not, prove a valid waiver by appellant of his right to counsel.   In sum, then, it is my view that Edwards v. Arizona, supra, and not Michigan v. Mosley, supra, provides the decisive valid waiver principles in this case.

As I review this record in light of both Fifth and Sixth Amendments right to counsel principles, it becomes clear that there is no federal Supreme Court decision laying down a “bright line” rule deciding the issue which this case presents, i.e., whether in these shown circumstances appellant's request to Judge Rose for an attorney at arraignment implicated his Fifth Amendment right to counsel as to uncharged burglaries as well as it did his Sixth Amendment right to counsel as regards the charged O'Connor burglary.   However, it does appear that the federal Supreme Court is certainly aware of the issue, the Highest Court in Jackson/Bladel, supra, clearly signalled as much in footnote 4;  I quote 475 U.S. at p. ––––, 106 S.Ct. at p. 1408:

“The Michigan Supreme Court found that ‘defendants' request to the arraigning magistrate for appointment of counsel implicated only their Sixth Amendment right to counsel, 421 Mich., at 52, 365 N.W.2d at 62, because the request was not made during custodial interrogation.   It was for that reason that the Michigan court did not rely on a Fifth Amendment Edwards analysis.   We express no comment on the validity of the Michigan court's Fifth Amendment analysis.”

Proposition 8 (see lead opn., pp. 482–483, fn. 6), I think, then, is of no consequence in our decision making herein, we write with a clean slate.  In re Michael B. (1981) 125 Cal.App.3d 790, 178 Cal.Rptr. 291 (see lead opn. at p. 483) is, I think, inapposite, the lawsuit's operative facts do not give rise to the waiver issue present at bench.   In appellant's case, as we know, he was in custody because of the charged O'Connor burglary.   Parker's investigation began by focusing in on appellant as to that charged offense.   Concurrent therewith Parker's investigation focused on appellant as the self-admitted sole suspect as regards his uncharged burglaries, but certain to be charged after appellant's confessions thereto at their respective sites.   At Judge Rose's insistence and direction, it was decided that appellant be arraigned before Parker could “go ahead and take care of him from there․”  In light of the executive and judicial officers' arrangement to hold appellant incommunicado until the state's legitimate interests were best served, appellant's arraignment was a very, very important event.   Appellant's appearance before Judge Rose during the course of custodial interrogation afforded him the opportunity to express his will to one party to the state's arrangement, i.e., that he did not wish to have any further dealings with Parker, the other party to the arrangement, until his right to his lawyer's advice and presence was scrupulously honored and respected.   Michael B.'s detention hearing, on the other hand, did not afford him the opportunity afforded appellant.   Michael B. was not questioned by the police as regards his burglaries charged and uncharged before his court appearance, at which detention hearing the court appointed him counsel.   It was not until the following day, while Michael B. was awaiting release per court order to parental custody, that the police circumvented his right to counsel and obtained his uncounseled confessions to three burglaries, one charged and two uncharged.   The court did not function in any way to aid and abet the police when circumventing Michael B.'s counsel rights during post-detention hearing custodial incommunicado interrogation, by way of prior “arrangement” or otherwise.   Even though the police properly Mirandized Michael B., the prosecution could not prove a valid waiver of Michael B.'s Sixth Amendment based right to his counsel's advice and presence when questioned and confessing as to his charged burglary.   However, because he was Mirandized, the Michael B. court implicitly reasoned that the police did prove a valid waiver of Michael B.'s Fifth Amendment privilege against compulsory self-incrimination as to two uncharged burglaries.   While arguably the learned Weiner, J.'s reasoning in Michael B. blinks at the realities of appointed defense counsel's function, the result reached is somewhat palatable essentially because Michael B., when afforded the opportunity, failed to invoke any of his Miranda rights, particularly his right to counsel's advice and presence.   My candid view, albeit immaterial, is that under the circumstances shown, the police were required to deal with Michael B. through the medium of his “appointed” attorney.

The bottom line reality in the case at bench is that Parker's right of custodial interrogation was actually a “privilege terminable at the will” of appellant.  (Moran v. Burbine, supra, 475 U.S. at p. ––––, 106 S.Ct. at p. 1140.)  “Through the exercise of his option to terminate questioning he [the suspect or accused] can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation.”  (Michigan v. Mosley (1975) 423 U.S. 96, 103–104, 96 S.Ct. 321, 326, 46 L.Ed.2d 313.)   When reasoning to uphold the trial court's ruling authorizing use of appellant's uncounseled post-arraignment confession of his uncharged burglaries, the lead opinion (see at p. 481) relies on Michigan v. Mosley, supra, but I think my colleagues' reliance is misplaced.   True, Mosley established that Miranda principles did not “create a per se proscription of indefinite duration upon any further questioning by any police officer on any subject, once the person in custody has indicated a desire to remain silent.”  (Id., at pp. 102–103, 96 S.Ct. at pp. 325–326, emphasis in original, fn. omitted.)   Mosley told one detective that he did not wish to discuss the robberies for which he had been arrested and the interrogation ceased.   Two hours elapsed and a different inspector from homicide re-read Mosley his Miranda rights obtaining a statement implicating Mosley in a robbery-murder.   Mosley was subsequently charged with felony robbery-murder, i.e., first degree.   Notably, the Mosley court found the robbery-murder to be unrelated to the recent robberies about which Mosley “cut off” questions.   The Mosley court upheld use of Mosley's inculpatory statement in his trial for murder, reasoning that the police had “scrupulously honored” his Miranda rights before and after he “cut off” questioning by expressing his will to remain silent.   The Mosley court carefully noted that Mosley at no time during questioning indicated a desire to consult with a lawyer.  (Id., at pp. 97, 98, 96 S.Ct. at p. 323.)

Michigan v. Mosley, then, is a Fifth Amendment based “right to remain silent” decision, i.e., the prosecution proved a valid waiver of the Fifth Amendment “privilege.”   In appellant's case, my conclusion, of course, is that we review a case in which appellant, as regards both his uncharged and charged burglaries, expressed his will or choice not to be compelled to further incriminate himself, if at all, until the state afforded him his fundamental counsel rights.   The undisputed evidence is that appellant, before his arraignment and while his will was uninfluenced by the “inherent compulsions of the interrogation process” (Miranda, supra, 384 U.S. at p. 467, 86 S.Ct. at p. 1624), communicated to Judge Rose his unfettered choice, i.e., he desired the assistance of counsel.  (See § 987, subd. (a), fn. 10, ante, p. 10.)   To find, as implicitly did the trial court, and, I fear, this court, that appellant's desire for counsel was in his mind limited to the charged O'Connor burglary while intending to exclude counsel's assistance as regards Parker's ongoing investigation of his uncharged burglaries, simply makes no sense.   From a waiver perspective, such a narrow finding impermissibly lightens the state's burden of establishing a valid waiver of appellant's Fifth Amendment “privilege,” a “privilege” personal to appellant and fundamental to our system of constitutional rule.   If it be argued that Miranda required of appellant that he, as regards his all but charged burglaries, state that he wanted an attorney during Parker's questioning (of Miranda, supra, at pp. 473–474, 86 S.Ct. at p. 1627) the reason for that requirement is met on this record.  Miranda's “aim,” of course, is “to assure that the individual's right to choose between silence and speech remains unfettered throughout the interrogation process” (Miranda, supra, at p. 469, 86 S.Ct. at p. 1625) by “assuring a continuous opportunity to exercise it․”  (Id., at p. 467, 86 S.Ct. at p. 1624.)   In order to avoid re-Mirandizing appellant following his appearance for arraignment, the prosecution submitted a theory of the facts, which the trial court found to be a “fact,” that Parker's custodial interrogation was for all intents and purposes continuous, appellant's court appearance, then, was but a brief respite to accomodate the court's need of appellant before Parker took “care of him from there․”  Viewing the evidence reasonably, then, the trial court erred in finding that “it was not necessary that the Defendant be admonished again after ․ he was in fact arraigned.”  (See fn. 12, ante, p. 483.)   The uncontradicted evidence shows that Parker knew, at law, that appellant requested and received a lawyer during the course of his continuous interrogation, even though he testified to the contrary.

In light of the fact that the state's judicial and executive officers were at the time acting in concert to accomplish the state's interest and need to subject appellant to uncounseled, incommunicado, custodial interrogation at the burglary sites, there is no rational reason for not transferring for use in the Fifth Amendment context the Sixth Amendment principles reaffirmed in Jackson, supra, 475 U.S. at p. ––––, 106 S.Ct. at p. 1409, principles that impute Judge Rose's knowledge to Inspector Parker.   Moreover, it blinks at reality to find that Parker knew and was estopped to deny knowing that appellant requested an attorney's assistance before questioning in the field as to the O'Connor charge, but that he did not possess the same knowledge as regards appellant's uncharged burglaries.   Moreover, it impermissibly exalts form over substance to hold that the trial court should have found that Parker was required to cease all interrogation as regards the O'Connor burglary until appellant consulted with his attorney, but that no such constitutional constraint existed as to the uncharged burglaries.   In any analysis of the evidence, it appears that only one unlawful visit to the crime sites was contemplated by the state's actors, i.e., Parker and Judge Rose.

In the final analysis, again from a valid waiver perspective, the nature and extent of the subject matter constituting Parker's interrogation that appellant elected to subject to his counsel rights presented a question of fact required to be resolved in light of a standard that “ ‘indulge[s] every reasonable presumption against waiver’ of fundamental constitutional rights.”  (Johnson v. Zerbst, (1938), 304 U.S. 458 at p. 464, 58 S.Ct. 1019 at p. 1023.)   The Fifth Amendment privilege against compulsory self-incrimination and the Sixth Amendment right to counsel are constitutional rights extended to appellant subject to his personal choice to enjoy.   When determining appellant's intent as regards his Fifth Amendment based rights including his Miranda created counsel right (the right guaranteed him by the Sixth Amendment) it is settled that the trial court was required “to give a broad, rather than a narrow interpretation” to appellant's intent when he requested a lawyer at his court appearance, a respite during the course of Parker's custodial interrogation.   As we know, the trial court erred, in effect finding no intent on appellant's part;  this court's majority errs, in effect narrowly interpreting appellant's intent or will to cut off Parker's questioning to pertain solely to the charged O'Connor burglary.   Otherwise stated, contrary to the standard for assessing waivers of constitutional rights, the trial court and, I fear, this court's majority determines appellant's will or intent not in favor of but against protecting his constitutional privilege against self-incrimination at a critical time during the state's investigation when he sorely needed assistance of counsel.   Notwithstanding, “[d]oubts must be resolved in favor of protecting the constitutional claim,” herein the Fifth Amendment “privilege.”  (See, Jackson/Bladel, supra, 106 S.Ct. at p. 1409.)   Consequently, I would reverse the judgment;  appellant's request for a lawyer is entitled at law to a broad interpretation.   Appellant's request was not his only choice;  in light of Faretta v. California (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, appellant could have answered “No” to Judge Rose's inquiry.   Appellant said “Yes.”   To hold in effect that appellant intended thereby to assert only his Sixth Amendment right, and intended to continue waiving his Fifth Amendment privilege against compulsory self-incrimination is not only incongruous, it ignores the federal Supreme Court's teaching.   That lesson is that appellant by requesting a lawyer indicated that he no longer believed that he was sufficiently capable of dealing in the field at the burglary sites with his adversaries, Parker and Lee, singlehandedly.  (See fn. 11, ante, p. 483.)   Logically, appellant's expressed belief as to his incapabilities was not limited but extended to cover the entire subject matter of Parker's proposed interrogation.   It was the state's burden to prove otherwise.   However, by virtue of the prophylactic rule in Edwards v. Arizona, supra, Parker could not lawfully continue his post-arraignment, uncounseled, incommunicado interrogation;  and because appellant did not initiate the post-arraignment visit to the burglary sites, the prosecution could not carry its heavy burden requiring it to prove a valid waiver of appellant's relevant Fifth and Sixth Amendment rights.   The trial court's pretrial ruling is infirm and should be reversed.

“DUE PROCESS”

Also, the judgment should be reversed because the record reveals that when executed as planned, the “arrangement” between Parker and Judge Rose denied appellant due process of law.   As I see it, statutory law determines and regulates the time and manner the judiciary functions to accomodate the state's legitimate interests during the investigation stage of our adversary criminal justice system.   Even then, constitutional considerations require that the court remain neutral and detached in the competitive enterprise of ferreting out and solving crime.   Manifestly, in the case at bench, Judge Rose did not accomodate Parker's investigation pursuant to statute, i.e., section 4004.   I hold that appellant's uncharged offenses reached a “criminal proceedings” stage within the meaning of section 4004 when Parker solicited and received the arraignment court's assistance enabling him to continue his custodial interrogation, uncounseled and incommunicado in the field.   This state's policy contemplated that a deputy sheriff be present during that field trip pursuant to Judge Rose's order based on a finding of good cause after a hearing affording appellant fundamental due process.   A deputy sheriff was not present and the record does not reveal even a minute order authorizing the field trip that ultimately reduced appellant's trial of burglaries, charged and uncharged, to a mockery.14  The inescapable fact is that Parker's visit to the burglary site was illegal.  (See Lisenba v. California (1941) 314 U.S. 219, 235, 62 S.Ct. 280, 289, 86 L.Ed. 166.)   In Lisenba, there was a court order by virtue of which the sheriff's deputies took the accused from the jail to his former home.   However, the record revealed that the order was obtained without a section 4004 hearing.   Finding the procedure utilized by the state's actors to be “illegal,” Justice Roberts observed at page 235, “[i]t may be assumed this treatment of the petitioner also deprived him of his liberty without due process and that the petitioner would have been afforded preventive relief if he could have gained access to a court to seek it.”

We review, then, I think, a case of illegal incommunicado questioning resulting from an “arrangement” between the court and the police.   The “arrangement” also compromised the integrity of the adversarial judicial criminal process.   Judge Rose, even if he had thought to afford appellant the process due him (§ 4004) at his appearance for arraignment, could not have presided.   The court had predetermined that it would aid and abet the police function based upon Parker's exparte unsworn representations.   Implicitly Judge Rose found in appellant's absence that he had in Parker's office waived his Miranda rights without affording appellant a hearing on the issue.   The court's error is manifest.   Judge Rose simply should not have clandestinely agreed to appellant's post-arraignment release to Parker.   He erred judicially when he accepted as being true Parker's account of the events leading to appellant's alleged assent to visiting the burglary sites.   Chief Justice Burger's reasoning in United States v. Henry (1980) 447 U.S. 264, 274, 100 S.Ct. 2183, 2188, 65 L.Ed.2d 115, seems appropriate, I paraphrase, “confinement may bring into play subtle influences that will make [an individual] particularly susceptible to the ploys of undercover Government agents [and skilled police investigators]․”  Moreover, I think the magistrate should have received Parker's proposed incommunicado field excursion mindful of the fact that trial and appellate courts, in the tradition of the federal Supreme Court, view incommunicado questioning with the strictist scrutiny and deepest concern.   It bears repeating that “ours is an accusatorial and not an inquisitorial system,” requiring that the government's actions, even when responding to crime, “respect those liberties and rights that distinguish this society from most others.”  (Stevens, J. dissenting in Moran v. Burbine, supra, 106 S.Ct. at pp. 1147, 1148.)   Manifestly, if Judge Rose, when approached by Parker in chambers, had given the slightest thought to the shielding procedural safeguards and fundamental fairness, i.e., the due process which our system of law guarantees persons situated as appellant, he would have at least paused and said to himself, “I had better hear from the other side.”   It only troubles my conscience that Judge Rose did not reason in terms of Fourteenth Amendment due process considerations when approached by Parker, naturally I understand that we judges are not infallible and we do occasionally commit plain error.   However, I think Judge Rose's affirmative acts illegally aiding and abetting Parker's investigation rise unquestionably to the level of a due process violation, the magistrate's behavior violated canons fundamental to the traditions and conscience of our populace.  (See Moran v. Burbine, supra, 106 S.Ct. at p. 1147.)  “Representing the overriding social interest and charged with the obligation to do exact justice according to law, the judge, of course, is expected to be a neutral factor in the interplay of adversary forces.”  (ABA Project On Standards Relating to the Function of the Trial Judge (Approved Draft, 1972) Introduction, at p. 3.)

Herein the judiciary is revealed as deliberately abandoning its traditional role of neutrality, it actively sided with the state's interests and failed its sworn duty to honor and respect Mr. Turner's fundamental right to the assistance of counsel.   Unquestionably, the unattenuated result, as arranged by the court and the police, was Parker's uncounseled, incommunicado, post-arraignment custodial interrogation, the tainted products resulting are appellant's uncounseled admission and confessions to burglaries charged and uncharged.   Heretofore, I have concluded that appellant's inculpatory statements were unconstitutionally obtained, I would now hold that their use against appellant by the government at his trial denied him due process of law.

The role played by Judge Rose in which he is revealed compromising our adversary judicial criminal justice system's integrity by virtue of having cast aside the mantle of neutrality, not only offends and shocks the conscience, it contravenes fundamental fairness.  “[D]ue process requires fairness, integrity and honor in the operation of the criminal justice system, and in its treatment of the citizen's cardinal constitutional protections.”  (Stevens, J. dis. in Moran v. Burbine, supra, 106 S.Ct. at p. 1164.)   Justice O'Conner, after concluding in Moran v. Burbine, supra, 106 S.Ct. at p. 1147, that no due process violation occurred by virtue of the fact that the police conveyed false information to Burbine's attorney, did opine “[w]e do not question that on facts more egregious than those presented here police deception [misconduct] might rise to a level of a due process violation.”   On this record, I would hold, we have revealed that “more egregious” deception and misconduct.  “More egregious” essentially because the police, in the person of Parker, acted secretly in concert with the court, i.e., Judge Rose, to unlawfully subject appellant to post-arraignment, uncounseled custodial interrogation.   As I see it, our court unanimously agrees that the Parker-Judge Rose arrangement violated appellant's Sixth Amendment based right to counsel, and I have concluded that on this record appellant's Fifth Amendment privilege against compulsory self-incrimination was equally infringed upon by the state's actors.   In any view of the underlying facts of record, Judge Rose and Parker were, at law, required to honor appellant's choice to have the assistance of counsel.   Theirs was an “affirmative obligation to respect and preserve” appellant's choice and not to act in the manner that they did.   Instead of an “arrangement” destined to circumvent and render unavailable the professional services of a lawyer that appellant had a fundamental right to expect, Judge Rose's affirmative duty to honor, respect and preserve appellant's rights, I would hold, required that he, in open court, inform the appointed public defender as regards Parker's imminent game plan.   Forthwith thereafter, instead of notifying and releasing appellant's physical custody temporarily to Parker, the court's “affirmative duty,” I would hold, required Judge Rose to first afford appellant and his appointed public defender a reasonable time within which to confer.  (Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 483–487, 88 L.Ed.2d 481 (1985))  Concluding, in these shown circumstances, once the magistrate agreed to affirmatively act, aiding and abetting the police function during the investigative stage of the criminal process, “fairness, integrity and honor” required that the magistrate act equally affirmatively, affording appellant the essentials of his right to counsel.   As I see it, once Judge Rose sided with the state's interest, no other course restoring the judiciary's integrity and neutrality “in the interplay of adversary forces” was left open to the court short of it insuring that appellant in fact received the sound advice and helping hand of the public defender before appellant's interrogation at the “sites.”   Instead, the “arrangement,” when executed by the court, deceived appellant's appointed counsel.   Stevens, J., when concurring at page 415, 97 S.Ct. at p. 1247 in Brewer v. Williams, supra, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424, observed that “the lawyer is the essential medium through which the demands and commitments of the sovereign are communicated to the citizen.”   Per force, Judge Rose knew fully Parker's “demands and commitments” implicated by his plan to physically transport appellant to visit the burglary sites.   Moreover, the court knew it had agreed to aid and abet those “demands and commitments.”   I would hold that the court's duty required it to renege its prior “arrangement” with Parker by fully informing appellant's counsel of the total facts and circumstances giving rise to the state's postarraignment intentions as regards appellant's anticipated role in its investigation of his crimes of burglary, charged and uncharged.

Justice O'Conner in Moran v. Burbine, supra, 106 S.Ct. at p. 1147, contemplated egregious deception and misconduct by the police that “might rise to a level of a due process violation.”   When reviewing this record, we review egregious facts that do rise to a level of a due process violation because the police misconduct denying appellant his Fifth and Sixth Amendments based right to counsel was both injudicially and unlawfully aided and abetted by the court.   The irony in it all is that the state's interest in investigating and solving appellant's burglary spree would not have been necessarily frustrated if appellant had been afforded due process of law protecting his right to counsel.   To be sure, our adversarial system of justice contemplates that competent counsel would have advised appellant to remain silent;  but that soundly competent advice, even in the majority's view, would not have frustrated the state's effective prosecution of the O'Connor burglary.   Prearraignment, appellant equivocated in light of the asserted palm print evidence, notwithstanding he did nevertheless admit.   Then, too, in light of Parker's sworn testimony to the effect that appellant contritely wanted to confess and cleanse his “sin-sick soul” by getting it all over and behind him, our adversary system of justice contemplates that its interest and that of both adversaries would have been better served, with or without a plea bargain and disposition resulting therefrom, if appellant's counsel had been present during the post-arraignment custodial interrogation.   Even if the visit to the burglary sites had not transpired per the “arrangement,” the record contains evidence that appellant would probably have bargained, clearing “the book” of his burglaries, a traditionally acceptable law enforcement procedure.   At the appellant's counsel's insistence, the evidence was not before the trial court.   However, it appears in appellant's probation report that on October 6, 1981, he was continued on wardship and committed to Boys Ranch based on his fingerprints being found at the scene of two residential burglaries in the City of Pittsburg, committed on January 12 and 22, 1981, respectively.   Significantly, the record then states “[f]ollowing his apprehension, the defendant cooperated with the Pittsburg Police in clearing thirty residential burglaries that he admitted committing between 1979 and 1981, and did so upon the agreement that no charges would be filed.”  (Emphasis added.)

The trial court, in the absence of the above probation report entry, understandably did not believe appellant's “police ploy” testimony.   But then again, even if the prosecution's offer to place prior probation records in evidence had succeeded, the court could have reasonably concluded that appellant's testimony revealed that he was experiencing a severe case of deja' vu', defined as “paramnesia.”   In any case, I do not find it necessary to decide upon independent review whether appellant voluntarily, knowingly and intelligently waived his Miranda rights.  (See People v. Braeske (1979) 25 Cal.3d 691, 702–703, 159 Cal.Rptr. 684, 602 P.2d 384;  Miller v. Fenton (December 3, 1985) ––– U.S. ––––, ––––, 106 S.Ct. 445, 453, 88 L.Ed.2d 405 [54 U.S.L. Week 4022].)   I simply would hold that the “arrangement” between the police and the magistrate made behind closed doors that was executed as planned without the knowledge of appellant's appointed counsel, constituted a tactic enabling the state to illegally elicit and obtain appellant's inculpatory statements that is inimical and foreign to the Fourteenth Amendment's broad constitutional boundaries guaranteeing that no person shall be deprived of liberty without fundamental fairness.   I would reverse the judgment.

FOOTNOTES

1.   All further statutory references are to the Penal Code.

2.   The dissent views the “critical issue” as whether the prosecution proved appellant made a valid waiver of his right to counsel (see dis. opn. of White, P.J., post, at p. 488 and discusses the two sources of that right, i.e., the Fifth and Sixth Amendments (see dis. opn. of White, P.J., post, at pp. 488–495.   We note that the trial court found that appellant's Fifth Amendment rights had not been violated, and appellant does not challenge that ruling on appeal.  (See infra, at p. 481.)   Our focus centers on whether appellant's Sixth Amendment right to counsel attached to the uncharged offenses.

3.   The dissent concludes that the “arrangement” between Parker and the judge which permitted Parker to take appellant to the various burglary sites denied appellant due process because section 4004 was not followed.   The issue was not raised on appeal, and we therefore decline to address it.

4.   In the present case, the interrogations relate to the charged crime, as well as to uncharged crimes.

5.   Before charges are filed, questioning out of the presence of an attorney who already represents the defendant is not absolutely barred, but is permitted, provided the Fifth Amendment waiver is valid.  (In re Michael B., supra, 125 Cal.App.3d at p. 794, 178 Cal.Rptr. 291, citing People v. Duck Wong (1976) 18 Cal.3d 178, 133 Cal.Rptr. 511, 555 P.2d 297.)

6.   The statements elicited by the police were excluded from the second trial.   Williams was convicted again, which conviction the Supreme Court affirmed on grounds not relevant to the present discussion.  (Nix v. Williams (1984) 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377.)

7.   In People v. Mattson (1984) 37 Cal.3d 85, 207 Cal.Rptr. 278, 688 P.2d 887, the California Supreme Court decided a case factually similar to Michigan v. Mosley, supra, 423 U.S. 96, 96 S.Ct. 321.   In Mattson, Nevada police arrested defendant in that state on suspicion of the kidnapping, rape, and armed robbery of a young woman in that state.   When advised of his rights, Mattson replied that he wished to remain silent and wanted an attorney.   More than a month later, Officer Reed of the Los Angeles Police Department interrogated Mattson in Nevada about certain crimes in the Los Angeles area.   Officer Reed was aware that Mattson had invoked his privilege against self-incrimination and had asked for counsel in connection with the Nevada charges.   The officer readvised Mattson of his rights.   Mattson agreed to talk and admitted committing the California crimes.  (Mattson, supra, 37 Cal.3d at pp. 88–89, 207 Cal.Rptr. 278, 688 P.2d 887.)The California Supreme Court determined that the confessions were inadmissible under People v. Pettingill, supra, 21 Cal.3d 231, 145 Cal.Rptr. 861, 578 P.2d 887, because once the defendant has invoked his privilege against self-incrimination, the police cannot question him again, even if they repeat the Miranda warnings.  (People v. Mattson, supra, 37 Cal.3d at pp. 90–91, 207 Cal.Rptr. 278, 688 P.2d 887.)Mattson is distinguishable from the present case.   We are not concerned with Miranda violations, because appellant waived his Miranda rights.   We address the admissibility of confessions of uncharged offenses elicited from a defendant who already has had counsel appointed on a charged offense.   Our focus is on the interference with defendant's attorney and not on the prevention of undue pressure in order to establish the People's case.  (In re Michael B., supra, 125 Cal.App.3d 790, 794, 178 Cal.Rptr. 291.)   Therefore, In re Michael B. is controlling.We also note that Mattson concerns crimes committed prior to the enactment of Proposition 8.   Because the present offenses occurred subsequent to the enactment, federal law applies.  (See People v. Smith, supra, 34 Cal.3d 251, 193 Cal.Rptr. 692, 667 P.2d 149.)

1.   City of Pittsburg Detective Parker, in relevant part, testified, inter alia, as follows:“Q. Did you go over the point of entry or means of entry with him on the cases on which you had reports before you?“A. Yes.   We really didn't get into the method of operation because he couldn't recall which ones he had done and which ones he hadn't done on some of these cases, so I asked him if he would go with me if I could arrange it for the Court to allow him to go with me and I would drive him and he would point out the areas where the burglaries were committed and he said he would.“Q. All right.   After this, what did you do?“A. I went over to Judge Rose at Delta Municipal Court, explained to him the circumstances, what I intended to do, whether it was allowable with him.   He said, ‘I'd like to arraign him first and then after arraignment I would release him into your custody.   Then you can go ahead and take care of him from there and see that he gets to County Jail.’“Q. See that he gets to County Jail?“A. Yes.   He would be released into my custody after arraignment.“Q. It would be your responsibility to get him to County Jail?“A. Yes.“Q. Not the Sheriff's transportation bus?“A. Right.“Q. All right.   So then did you take him over to the Delta Court for arraignment?“A. Yes, I did.“Q. And after he was arraigned, did you stay there during the arraignment?“A. No.“Q. You had some arrangement with Judge Rose?“A. Yes.   The Judge said he would notify me when he was arraigned so I could again escort him across the street for our detail.“Q. All right.   Were you so notified after arraignment?“A. Yes, I was.“Q. What happened after you were notified?“A. Detective Lee, Billy Turner, and myself got into a vehicle and drove into the area of Goldenhill and he pointed to several residences․”  (Emphasis added.)Officer Parker testified:“Q. Did you admonish Mr. Turner about his rights after the arraignment?“A. No, I didn't.“Q. Was this just a continuation of the interview with him that you started earlier that morning ?“A. Yes.“Q. Before the arraignment ?“A. That's correct.“Q. And was there any indication by Mr. Turner that the situation had changed after the arraignment ?“A. No.“Q. He was still cooperating with you 100 percent?“A. Yes.”  (Emphasis added.)Appellant's testimony reveals that which had escaped Detective Parker's attention by not attending the appellant's arraignment.   I quote:“Q. Okay.   Now after you talked with Detective Parker, you were taken back over to Court.   Is that right?“A. Yes.   I was taken back in the holding cell.“Q. Okay.   And then eventually you went into Court and appeared before Judge Rose?“A. Yes.“Q. And when you went back into Court, you were charged with one of the burglaries.   Is that right?“A. Yes.“Q. Okay.   And did Judge Rose ask if you wanted a lawyer?“A. Yes, he did.“Q. Okay.   Did you tell him that you wanted a lawyer?“A. Yes.“Q. Okay.   And then after that, did Detective Parker come and take you out again?“A. Yes, he did.“Q. Okay.   And that's when you drove around with him?“A. Yes.  “Q. Now during any of this time, did he talk to you about having a lawyer or not having to say anything and that this could all be used against you ?“A. No.”  (Emphasis added.)

2.   ABA Standards, Part I, Basic Duties:“1.6 Duty to prevent ex parte discussions of a pending case.“The trial judge should insist that neither the prosecutor nor the defense counsel nor any other person discuss a pending case with him [or her] ex parte, except after adequate notice to all other parties and when authorized by law or in accordance with approved practice.”  (Emphasis added.)

3.   “Very well, be in Court.   I will take the matter up then,”—familiar words to trial attorneys that would have sufficed, I think.   For a longer version, I offer—“Very well, Detective Parker, make your request in open court, preferably through the prosecuting attorney.   I will be arraigning Mr. Turner and appointing the Public Defender very shortly.   Make your showing then.   I'll hear counsel's objections, if any.   If I understand you correctly, Mr. Turner is amenable to your proposed field trip, but he may change his attitude after consulting with his attorney;  then again, he may not, who knows?   In any case, it seems to me he has a right to his attorney's advice, his attorney, in all fairness, should know about your proposal.   Whatever develops, I will hear the matter and rule appropriately.”  (End of visit.)

4.   All statutory references, “section,” refer to the California Penal Code, unless otherwise stated.

5.   Section 4000, in relevant part states:  “The common jails in the several counties of this State are kept by the sheriffs of the counties in which they are respectively situated, and are used as follows․  [¶] For the detention of persons charged with crime and committed for trial;  ․”

6.   During appellant's motion in limine, he contradicted Parker's testimony that his willingness to cooperate stemmed from a contrite attitude desiring to get it all behind him, that he only burgled in order to support his minor child.   Appellant testified that in effect he was duped by Parker's promise to go to the judge and get him to not press charges.   Parker, on re-direct examination, denied any such ploy inducing appellant's cooperation.Appellant testified that Parker did not read him his “Miranda rights,” further, that he was shown and signed the “form” after returning from the crime sites, that he did not read the form.   On cross-examination, appellant testified that he signed the “form” only after Parker threatened him.   The “form” reflects a time of 10:30 a.m.The trial court expressly found beyond a reasonable doubt that appellant's “statements and confessions ․ were free and voluntary,” referring, of course, to appellant's incriminating statements made during custodial questioning at the crime sites.   However, although the trial court found that Parker “properly admonished” appellant, the record is silent and contains no finding that appellant “knowingly and intelligently” waived his Miranda rights.  (See fn. 12, infra, p. 489.)

7.   Section 4004 provides:  “A prisoner committed to the county jail for examination, or upon conviction for a public offense, must be actually confined in the jail until he is legally discharged;  and if he is permitted to go at large out of the jail, except by virtue of a legal order or process, it is an escape;  provided, however, that during the pendency of a criminal proceeding, the superior court or an inferior court, as the case may be, before which said proceeding is pending may make a legal order, good cause appearing therefor, for the removal of the prisoner from the county jail in custody of the sheriff.   In judicial districts where there is a marshal, the marshal shall maintain custody of such prisoner while he is in the municipal court facility pursuant to such court order.   The superior court of the county may make a legal order, good cause appearing therefor, for the removal of prisoners confined in the county jail, after conviction, in the custody of the sheriff.”

8.   See section 813 et seq. authorizing issuance, form, contents, execution, etc. of arrest warrants.   See also section 1523 et seq. defining search warrants, grounds, issuance, contents of affidavits, form, execution, etc.

9.   “Our Constitution guarantees the assistance of counsel to a man [woman] on trial for his life [liberty] in an orderly courtroom, presided over by a judge, open to the public, and protected by all the procedural safeguards of the law.”  (See Stewart, J.'s concurring opinion in Spano v. New York (1959) 360 U.S. 315, at 327, 79 S.Ct. 1202, at 1209, 3 L.Ed.2d 1265.)

10.   Section 987, subdivision (a), states:  “(a) In a noncapital case, if the defendant appears for arraignment without counsel, he shall be informed by the court that it is his right to have counsel before being arraigned, and shall be asked if he desires the assistance of counsel.   If he desires and is unable to employ counsel the court shall assign counsel to defend him.”

11.   “We also agree with the comments of the Michigan Supreme Court about the nature of an accused's request for counsel:  [¶] ‘Although judges and lawyers may understand and appreciate the subtle distinctions between the Fifth and Sixth Amendment rights to counsel, the average person does not.   When an accused requests an attorney, either before a police officer or a magistrate, he does not know which constitutional right he is invoking;  he therefore should not be expected to articulate exactly why or for what purposes he is seeking counsel.   It makes little sense to afford relief from further interrogation to a defendant who asks a police officer for an attorney, but permit further interrogation to a defendant who makes an identical request to a judge.   The simple fact that defendant has requested an attorney indicates that he does not believe that he is sufficiently capable of dealing with his adversaries singlehandedly.’   [People v. Bladel ] 421 Mich., [39] at 63–64, 365 N.W.2d, [56] at 67.”   (Michigan v. Jackson, supra, ––– U.S. at p. ––––, fn. 7, 106 S.Ct. at p. 1409 fn. 7.)

12.   “THE COURT:  All right.   I will just address each of the points that you've raised, Miss Chapot.“I find that the Defendant was properly admonished and that is based on the testimony as well as a review of Defendant's Exhibit A.   The standard that I'm applying throughout is beyond a reasonable doubt.   I find that he was properly admonished and that that admonishment occurred prior to the arraignment.“I find that it was not necessary that the Defendant be admonished again after the officer went back to Court and picked the Defendant up after he was in fact arraigned.“I further find that there were no promises that were made and that the statements and confessions that were made by Mr. Turner were free and voluntary.   That is based on my evaluation of the testimony as well as Defendant's Exhibit B.“Consequently, the motion to exclude the Defendant's statement is denied.”(“Exhibit A” is the “admonishment” card;  “Exhibit B” is the “Statement of Defendant.”)

13.   “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.] at 482 [101 S.Ct. at 1883];  Brewer v. Williams 430 U.S. 387, 404 [97 S.Ct. 1234, 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, 2751, 61 L.Ed.2d 197] (1979).   See also North Carolina v. Butler, 441 U.S. 369, 374–375 [99 S.Ct. 1755, 1757–1756, 60 L.Ed.2d 286] (1979).  (Moran v. Burbine, supra, 475 U.S. 412, 106 S.Ct. at p. 1141.)

14.   The record reveals that when the prosecution rested its case, the defense likewise rested.

BARRY–DEAL, Associate Justice.

SCOTT, J., concurs.