1 of 824 DOCUMENTS THE PEOPLE, Plaintiff and Appellant, v. DOMINIC D. SLAYTON, Defendant and Respondent. E023001 COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION TWO 77 Cal. App. 4th 564; 91 Cal. Rptr. 2d 785; 2000 Cal. App. LEXIS 16; 2000 Cal. Daily Op. Service 340; 2000 Daily Journal DAR 413 January 11, 2000, Filed NOTICE: [***1] NOT CITABLE - SUPERSEDED BY GRANT OF REVIEW SUBSEQUENT HISTORY: Review Granted April 19, 2000 (S086153), Reported at: 2000 Cal. LEXIS 3343. Reprinted without change in the Review Granted Opinions Cumulative Supplement (July 2000) to permit tracking pending review and disposition by the Supreme Ct. Reprinted without change in the January 2001 Review Granted Opinions Pamphlet to permit tracking pending review and disposition by the Supreme Ct. PRIOR HISTORY: APPEAL from the Superior Court of San Bernardino County. Super. Ct. No. FWV15073. J. Michael Welch, Judge. DISPOSITION: Affirmed. CASE SUMMARY: PROCEDURAL POSTURE: Plaintiff State appealed a judgment of the Superior Court of San Bernardino County (California) granting defendant's motion to dismiss car theft and burglary charges against him. OVERVIEW: A police officer interviewed defendant regarding a residential burglary while defendant was in jail, following an arraignment and appointment of counsel, on a car theft charge. The two crimes were related in that the key to the stolen car was taken during the burglary, although the car was not stolen until several days later. During the interview, and after defendant waived his Miranda rights, defendant confessed his participation in both crimes. The trial court dismissed both charges, finding defendant's confession was obtained in violation of his Miranda rights. On appeal, the court affirmed, but used different reasoning. The court held defendant's confession regarding the burglary was obtained in violation of his U.S. Const. amend. VI right to counsel. It concluded the burglary and car theft were so inextricably intertwined that defendant's right to counsel on the car theft charge could not constitutionally be isolated from his right to counsel on the burglary. OUTCOME: Judgment affirmed; questioning of incarcerated defendant about a burglary charge while he was represented by counsel on a car theft charge violated defendant's Sixth Amendment right to counsel because the two charges were inextricably intertwined and not logically distinct. CORE TERMS: burglary, right to counsel, inextricably intertwined, car theft, uncharged offense, questioning, logically, arson, charged offense, appointed, district attorney, uncharged, isolated, police officer, pending charge, victim's home, offense-specific, inadmissible, confession, admissible, interview, factually, attach, murder, apartment, burglary charges, residential burglary, interrogation, interviewed, questioned LexisNexis(R) Headnotes Constitutional Law > Bill of Rights > Fundamental Rights > Criminal Process > Assistance of Counsel Criminal Law & Procedure > Interrogation > Miranda Rights > Right to Counsel During Questioning Criminal Law & Procedure > Counsel > Right to Counsel > Preliminary Proceedings [HN1] Once the right to counsel has attached, a defendant's subsequent waiver of that right in a police-initiated interview is ineffective. The right to counsel attaches when formal charges have been filed. Even after the defendant has an attorney with respect to a particular charge, the police may question the defendant, subject only to Miranda advisements and waivers, about uncharged crimes. In other words, the U.S. Const. amend. VI right to counsel is "offense specific." It only attaches to offenses as to which adversary judicial criminal proceedings have been initiated. An exception to the offense-specific requirement of U.S. Const. amend. VI occurs when the pending charge is so inextricably intertwined with the charge under investigation that the right to counsel for the pending charge cannot constitutionally be isolated from the right to counsel for the uncharged offense. Constitutional Law > Bill of Rights > Fundamental Rights > Criminal Process > Assistance of Counsel Criminal Law & Procedure > Counsel > Right to Counsel > General Overview [HN2] The exception to the offense-specific requirement of U.S. Const. amend. VI for inextricably intertwined offenses does not apply when the uncharged offenses are "logically distinct" from the charged offense. Constitutional Law > Bill of Rights > Fundamental Rights > Criminal Process > Assistance of Counsel [HN3] The determination whether criminal offenses are "inextricably intertwined" or "logically distinct" focuses on whether the charged and uncharged offenses occurred at the same place and time and involved the same parties. COUNSEL: Dennis L. Stout, District Attorney, Grover D. Merritt, Lead Deputy District Attorney, and William Lee, Deputy District Attorney, for Plaintiff and Appellant. Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Respondent. JUDGES: McKINSTER J. I concur: WARD J. RAMIREZ P.J., dissents. OPINION BY: McKINSTER OPINION [*566] [**787] This is an appeal by the District Attorney of San Bernardino County from the trial court's order granting defendant's Penal Code section 995 motion to dismiss car theft and burglary charges. Defendant moved for dismissal on the ground that an Upland police officer had violated defendant's Sixth Amendment right to counsel when he interviewed defendant regarding a residential burglary in Upland while defendant was in jail, following arraignment and appointment of counsel, on a car-theft charge in Riverside County. The two crimes were related in that the key to the car that was the subject of the Riverside [***2] charge was taken during the Upland burglary, although the car was not actually stolen until several days later. Defendant was arrested while driving the stolen car in Riverside County. During the interview by the Upland police officer, and after defendant waived his Miranda rights, 1 defendant confessed his participation in both the burglary and the subsequent theft of the car. 1 Miranda v. Arizona (1966) 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. In moving to dismiss both charges, defendant argued that the car theft and burglary were such "closely related" crimes that the police violated defendant's Sixth Amendment right to counsel by interviewing defendant without his appointed counsel on the car-theft charge being present. The trial court granted defendant's motion, although the court found that defendant's confession was obtained in violation of his Miranda rights, and on that basis dismissed the charges. 2 2 Because defendant relied entirely on the Sixth Amendment issue as the basis for his motion, we assume the trial court simply misspoke when it cited Miranda as the reason for granting defendant's motion and dismissing the charge. [***3] We conclude, as we explain below, that the trial court reached the correct result, i.e., suppressing defendant's confession and dismissing the related charges, even though the trial court appeared to base that result on the wrong [*567] reason. Defendant's confession was not obtained in violation of his Miranda rights because defendant was advised of and waived those rights before the Upland police officer questioned him regarding the burglary. Instead, defendant's confession regarding the burglary was obtained in violation of his Sixth Amendment right to counsel. We, therefore, will affirm the order dismissing the charges. DISCUSSION The district attorney contends that the "closely related" charges concept that defendant relied on in the trial court has been abandoned and, therefore, the trial court erred in applying that principal [**788] and dismissing the charges in this case. 3 We agree that the courts have abrogated the concept; however, we do not share the district attorney's view that the abrogation requires reversal in this case. As we now explain, the relationship between the charged and uncharged offense is relevant in determining whether the crimes are so inextricably [***4] intertwined that they come within an exception to the general rule that the Sixth Amendment right to counsel is offense specific and attaches only after charges have been filed. 3 The dissent's discussion suggests there is disagreement over the appropriate remedy. (Diss. pp. 2-3.) There is no disagreement. The remedy for a violation of the defendant's Sixth Amendment right to counsel is to suppress the improperly obtained statement and proceed, if possible, on the remaining evidence. The parties conceded during oral argument that there was insufficient evidence to proceed without defendant's statement and, therefore, dismissal of the charges was warranted. Under Massiah v. United States (1964) 377 U.S. 201, 205, 12 L. Ed. 2d 246, 84 S. Ct. 1199, [HN1] once the right to counsel has attached, a defendant's subsequent waiver of that right in a police-initiated interview is ineffective. The right to counsel attaches when formal charges have been filed. ( People v. Bradford (1997) 15 Cal. 4th 1229, 1312, 939 P.2d 259.) [***5] Even after the defendant has an attorney with respect to a particular charge, the police may question the defendant, subject only to Miranda advisements and waivers, about uncharged crimes. ( Id., at p. 1313, citing McNeil v. Wisconsin (1991) 501 U.S. 171, 175-177, 115 L. Ed. 2d 158, 111 S. Ct. 2204.) In other words, "The Sixth Amendment right to counsel . . . is 'offense specific.' [Citation.] That is to say, it attaches to offenses as to which adversary judicial criminal proceedings have been initiated -- and to such offenses alone. [Citation.]" ( People v. Clair (1992) 2 Cal. 4th 629, 657, 828 P.2d 705, citing McNeil v. Wisconsin, 501 U.S. at pp. 175-176.) "An exception to the offense-specific requirement of the Sixth Amendment occurs when [*568] the pending charge is so inextricably intertwined with the charge under investigation that the right to counsel for the pending charge cannot constitutionally be isolated from the right to counsel for the uncharged offense." ( People v. Wader (1993) 5 Cal. 4th 610, 654, fn. 7, 854 P.2d 80, quoting U.S. v. Hines (9th Cir. 1992) 963 F.2d 255, 257, [***6] internal quotes omitted.) Although the Supreme Court did not apply the "inextricably intertwined" exception in Wader because the Court concluded that the defendant's crimes in that case were "logically distinct" (ibid.) it also did not specifically reject the exception. We, therefore, adopt the "inextricably intertwined" exception as the pertinent test in this case. 4 4 The dissent rejects the exception but does not offer an alternative. (Diss., fn. 5, pp. 3-4.) Consequently, the dissent effectively holds that there is no circumstance in which crimes may be so closely related that questioning a defendant about one may violate the defendant's Sixth Amendment right to representation of counsel on another offense. The issue we must resolve is whether the pending car theft charge is so inextricably intertwined with the burglary charge that defendant's right to counsel on the car theft cannot be constitutionally isolated from his right to counsel on the burglary. That determination depends, [***7] at least initially, on the particular facts of the crimes in question. As our Supreme Court noted in People v. Wader, supra, the [HN2] exception for "inextricably intertwined offenses does not apply when the uncharged offenses are 'logically distinct' from the charged offense. [Citation.]" ( People v. Wader, supra, 5 Cal. 4th at p. 654, fn. 7, quoting U.S. v. Hines, supra, 963 F.2d at p. 257.) In other words, if the offenses are "logically distinct," they cannot be inextricably intertwined [**789] and, therefore, the noted exception does not apply. [HN3] The determination whether the offenses are "inextricably intertwined" or "logically distinct" focuses on whether the charged and uncharged offenses occurred at the same place and time and involved the same parties. (See U.S. v. Hines, supra, 963 F.2d at p. 257, which held the crimes there at issue were "separate and distinct," and therefore not inextricably intertwined, because "the place, time and persons involved were all different"; see also People v. Wader, supra, 5 Cal. 4th at p. 654, fn. 7, which noted that the robberies at issue in that case "were [***8] distinct from the charged offenses; the places, times and victims were all different.") Similarly, in In re Michael B. (1981) 125 Cal. App. 3d 790, 178 Cal. Rptr. 291, Division One of this court focused on the time, place, and parties involved in order to reject a claim that three separate residential burglaries committed in the same locale, close in time to each other, and involving the same modus operandi but different victims were "closely related" such that once the defendant was charged with one of the burglaries and counsel was appointed to represent him, the police could not question the defendant about the other two crimes without the [*569] defendant's attorney being present. In rejecting the defendant's argument, the court relied, in part, on People v. Boyd (1978) 86 Cal. App. 3d 54, 150 Cal. Rptr. 34, which was then and is now the only California case that involves "facts showing a close relationship of the charged and uncharged offenses (nearly contemporaneous burglary and arson of the same premises.)" ( In re Michael B., supra, at p. 795.) According to the Michael B. court, "In Boyd, where the facts of the burglary, the charged [***9] 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." (125 Cal. App. 3d at p. 797.) The defendant in Boyd had burglarized the victim's home several times over the course of many days. A fire broke out during what turned out to be the final burglary. When questioned by the police, the defendant admitted taking items from the victim's home without the victim's consent. As a result of that admission, the police arrested the defendant both for burglary and arson. The district attorney only charged the defendant with burglary. Following his arraignment and appointment of counsel on the burglary charge, the police interviewed the defendant twice more regarding the fire. During the second interview, the defendant made statements in which he implicated himself in the arson and, as a result, the district attorney charged the defendant with that crime. At trial, the defendant moved to exclude the statements he made during the two post-arrest interviews on the ground that the [***10] police obtained those statements in violation of defendant's Sixth Amendment right to counsel because the burglary and arson were part of a continuing and related course of criminal conduct. The trial court ruled that statements related to the burglary were inadmissible but the defendant's statements regarding the arson were admissible because that charge had not been filed at the time of the police interviewed the defendant and obtained the challenged statements. ( People v. Boyd, supra, 86 Cal. App. 3d at p. 59.) The appellate court reversed and held that where a defendant has been charged and counsel appointed in a "closely related offense," the Isby rule 5 applies ( People v. [**790] Boyd, supra, 86 Cal. App. 3d at p. 61) and "the accused acquires an absolute, unwaivable right to counsel's presence at any subsequent police interrogation." ( Id., at p. 60.) In holding that the burglary and arson were "closely related" the court cited the following facts: both crimes [*570] involved the same premises, the same victim, and were closely connected in time. ( Id., at p. 62.) Although the "closely related" concept [***11] is now disfavored, if not completely abrogated, the focus on the factual relationship between the offenses in terms of time, place, and participants nevertheless is pertinent in determining whether the crimes are "inextricably intertwined" such that the Massiah rule applies. 5 Referring to the 1968 decision of this court that applied the Massiah rule to state court proceedings and held that once a defendant has been arraigned and counsel appointed, " . . . [the] defendant [is] entitled to the effective aid of counsel at any interrogation instigated by the law enforcement officers." ( People v. Isby (1968) 267 Cal. App. 2d 484, 495, 73 Cal. Rptr. 294.) The facts in this case reveal that the uncharged burglary about which the Upland police officer questioned defendant was factually connected to the charged car theft in that the burglary and the car theft involved the same victim and the same location. In addition, the key that later was used to steal the car was taken during [***12] the burglary. The two crimes are factually distinct and unrelated only in that they occurred on different days. Had defendant taken the car immediately after he committed the burglary, there would be no question but that the two crimes were "inextricably intertwined" such that defendant's representation by counsel on the car theft charge would preclude the police from questioning defendant about the burglary except in the presence of his attorney. Thus, we must decide whether the separation in time between the burglary and the car theft renders those two crimes "logically distinct" for purposes of the Sixth Amendment. We think not. Although the two crimes are temporally distinct from each other they are not logically distinct in that the separation in time does not make the two crimes unrelated in terms of the Sixth Amendment. Because the concern here is the defendant's Sixth Amendment right to effective representation of counsel, the dispositive inquiry is whether questioning defendant about the burglary necessarily impinged on defendant's right to effective representation of counsel in the car theft case. Resolution of that question does not depend on the timing of the two offenses [***13] but, rather, on whether the offenses were so otherwise factually related that the defendant could not openly and honestly discuss the offense under investigation without also implicating himself in the charged offense and vice versa. While we recognize that Massiah is not concerned with issues of self-incrimination under the Fifth Amendment, the fact defendant would implicate himself in one offense by talking about the other is relevant in determining whether the police-initiated questioning necessarily impinged upon defendant's right to effective representation such that the charged and uncharged crimes cannot be viewed as "constitutionally isolated." For the reasons discussed, we conclude that the burglary and car theft at issue in this case were so inextricably intertwined that defendant's right to counsel on the car theft charge cannot constitutionally be isolated from his right to counsel on the burglary. (U.S. v. Hines, supra, 963 F.2d at p. 257.) [*571] Thus, questioning defendant about the burglary while he was represented by counsel on the car theft violated defendant's Sixth Amendment right to counsel. Although the trial court incorrectly held that the police violated [***14] defendant's rights under Miranda v. Arizona, the trial court nevertheless reached the right result -- defendant's statements were inadmissible, albeit, because they were obtained in violation of his Sixth Amendment right to counsel. ( People v. Plyler (1993) 18 Cal. App. 4th 535, 546.) Accordingly, we conclude [**791] the trial court properly granted defendant's motion to dismiss the charges in this case. DISPOSITION The judgment of dismissal is affirmed. McKINSTER J. I concur: WARD J. DISSENT BY: RAMIREZ DISSENT I respectfully dissent from the opinion of the majority. First, even assuming Slayton's Sixth Amendment rights were violated by the interrogation, the remedy called for by the majority opinion is contrary to binding precedent. When such a violation occurs, the remedy is to not admit the statements in the trial of the charge for which counsel has been appointed, although "incriminating statements pertaining to the other uncharged criminal activity would be admissible at a trial of such other crimes." ( In re Wilson (1992) 3 Cal. 4th 945, 952, 838 P.2d 1222, citing Maine v. Moulton (1985) 474 U.S. 159, 179-180, 88 L. Ed. 2d 481, 106 S. Ct. 477.) [***15] Thus, Slayton's statements would not have been admissible in the prosecution in Riverside County of his violation of Vehicle Code section 10851 that occurred in that county. However, they would have been admissible, to the extent they comprised statements pertaining to uncharged criminal activity, in a prosecution in San Bernardino County. Even if, somehow, Slayton's violation of Vehicle Code section 10851 that occurred in Riverside County could be viewed as identical to his violation of the same section that occurred in San Bernardino County, a point I do not concede, 1 the prosecution, under Wilson and Mouton, should have been able to proceed, if it desired, using those portions [*572] of his statements that related purely to the residential burglary and not to the Vehicle Code violations. 2 1 See People v. Perez (1962) 203 Cal. App. 2d 397, 399, 21 Cal. Rptr. 422; see also People v. Allen (1999) 21 Cal. 4th 846, 851, 984 P.2d 486 [". . . Vehicle Code section 10851 can be violated either by taking a vehicle with the intent to steal it or by driving it with the intent only to temporarily deprive its owner of possession . . . ."] [***16] 2 Those portions are as follows: Slayton told the detective that another man had told him that he had just broken into an apartment on East 9th Street. The man asked Slayton to return to that apartment with him, which Slayton did. Slayton noticed that a window to the apartment had been broken. Both entered the apartment. Slayton took a set of keys that were in a dish on a shelf inside the front door. The other man told Slayton to go outside and act as a lookout. Slayton saw that the man had items in a pillowcase, but he did not know what the items were. Slayton, at some point, no longer wished to be a lookout and left. I also disagree with the majority's reliance upon cases which construed the since- repudiated "closely related" concept. (See People v. Clair (1992) 2 Cal. 4th 629, 657, 828 P.2d 705; People v. Plyler (1993) 18 Cal. App. 4th 535, 547.) As the majority correctly points out, the Sixth Amendment right is offense specific, the "precise boundaries" of which have not yet been spelled out, except to the extent that Clair holds that offenses [***17] which are "completely unrelated" are not within those boundaries. (Ibid.) Other than this statement in Clair, we have no binding precedent concerning the precise boundaries of the offense-specific rule. 3 I do not [**792] believe that the facts of this case should be within those still undefined boundaries. I propose the following hypothetical: Slayton breaks into the victim's car in San Bernardino County, takes a key which turns out to unlock the victim's home in Riverside county, and, days later, uses that key to gain admission to the victim's home, where he murders the victim. Would law enforcement in Riverside County be prohibited from questioning Slayton about the residential burglary and murder once Slayton is appointed counsel in the auto burglary [*573] case? How different is this scenario from the one we now face? I do not view the existence of the key in this case, which is all that ties the Upland burglary and the Riverside illegal taking/driving of a vehicle together, as so important a factor that law enforcement should be hampered in their efforts to investigate the former. 3 Contrary to the majority's view, I do not consider the footnote in People v. Wader (1993) 5 Cal. 4th 610, 654, 854 P.2d 80, to contain a binding declaration of the boundaries of the offense specific rule. In the body of that opinion, the California Supreme Court rejected the defendant's contention that statements he made, after he was charged with murder, about four robberies which had been committed before the murder were erroneously admitted at the penalty phase of his trial. The court held that for the statements to be inadmissible, the right to counsel must both attach and be invoked at the time they were made. However, the court concluded, no evidence showed the latter. In footnote 7, which the majority cites, the court said, in pertinent part: ". . . "Defendant also contends that this case comes within an exception to the offense-specific requirement of the Sixth Amendment, citing United States v. Hines (9th Cir. 1992) 963 F.2d 255. There, the Ninth Circuit held that 'an exception to the offense-specific requirement of the Sixth Amendment occurs when the pending charge is so inextricably intertwined with the charge under investigation that the right to counsel for the pending charge cannot constitutionally be isolated from the right to counsel for the uncharged offense.' ( Id. at p. 257.) This exception, however, does not aid appellant, because it does not apply when the uncharged offenses are 'logically distinct' from the charged offense. (Ibid.) Here, the robberies were distinct from the charged offenses; the places, times, and victims were all different." Clearly the Wader court was merely hypothecating. It was saying that if, as the defendant suggested, the rule annunciated in United States v. Hines (9th Cir. 1992) 963 F.2d 255 applied, the statements would still not be inadmissible. The court was not suggesting that the "exception" to the offense specific rule stated in Hines should be or is the law in California. [***18] RAMIREZ, P. J. FORMAT FOR CASE BRIEF Virtually all of the cases in this text (and all legal texts for that matter) are at an Appellate/Supreme Court level (not a trial court), where Issues of Law are resolved, as opposed to issues of fact which are resolved at the trial court level. This suggested format is a slight modification of an outline for Case Briefs used in the legal profession. (Example - Text Pg 4 - Case 1.1) Style of Case and Citation: Example - United States of America v. Martha Stewart and Peter Bacanovic U.S. District, LEXIS 12538 (2004) Court Rendering Final Decision: Example - U.S. 2nd Circuit Court Of Appeals Identification of Parties and Procedural Details: Who is the Plaintiff/Appellant? Who is the Defendant/Appealer? What is the cause of action? Who prevailed in lower court? Who is appealing to what court? Example - Original Defendants, Martha Stewart and Peter Bacanovic, are Appealing their conviction for Insider Trading in the Federal District Court by the U.S. Department of Justice, and asking for a New Trial based on a Claim of Perjury by the Prosecution's Expert Star Witness - Lawrence F. Stewart of the U.S. Secret Service. District Court found insufficient evidence for invalidating the Jury/Court Decisions, and Stewart and Bacanovic are Appealing to the U.S. 2nd Court of Appeals. Discussion of the Facts: Who did what to whom? What relief is being sought? Example - Defendants were trading ImClone Stock based on insider information one day prior to a Public Announcement of damaging financial information regarding ImClone Corporation. Both Defendants were also accused of lying to FBI Agents during an investigation of the Insider Trading Claim. Statement and Discussion of the Legal Issues in Dispute: What decision of the lower court is being challenged? What specific legal questions is the subject court being asked to address? Is the question about Common-Law? A Statute? Example - The Defendants are challenging the District Court's Denial of their right to a re-trial based on the presumed Perjury of the Expert Witness. This is a question of Federal Statutory Court Procedure, which did not require an investigation of the truthfulness of witnesses Testimony. Subject Court Final Decision: For Plaintiff? For Defendant? What happens next? Example - Ruling is in favor of U.S. Prosecutors. The conviction of Martha Stewart and Peter Bacanovic in District Court is Affirmed. Request for a New Trial is Denied. Summary of This Final Court's Reasoning: What is the legal basis for the court's decision? Be sure to include relevant Dissenting Opinions. Example - The Testimony of Lawrence F. Stewart was not reviewed for Perjury by the Court of Appeals because his Testimony was not successfully challenged in District Court, and was supported by three other witnesses. Even if Mr. Stewart had lied under oath, the Defendants' Conviction was supported by these other witnesses. Business Impact of the Case: How does the result affect US businesses and their policies and practices? How should management react to the decision in this case in order to avoid future problems, or take advantage of such a situations? Example - Given Multiple Witness Testimony supporting a certain key fact, a question of accuracy and/or Truthfulness of one witness' Testimony that has not been ruled a crime by the Lower Court, does not support a ruling to overturn a Jury Verdict and Grant a New Trial. 2