Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 04HF0311, Frank F. Fasel, Judge.
Mark L. Christiansen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, ACTING P. J.
A jury found defendant Spencer William Fox guilty of special circumstance murder during the commission of an attempted robbery (Pen. Code, §187, subd. (a); § 190.2, subd. (a)(17)(A); all statutory references are to the Penal Code unless noted). He argues the trial court erred by admitting a surreptitiously recorded conversation between defendant and his accomplice in violation of his right to counsel under the Sixth Amendment to the United States Constitution. (See Massiah v. United States (1964) 377 U.S. 201 (Massiah).) For the reasons expressed below, we affirm the judgment.
I Factual and Procedural Background
Around 2:00 a.m. on March 2, 2004, defendant, in need of money to support a methamphetamine habit, attempted with Travis Frazier to rob the cashier at an Irvine convenience store. Frazier hit the clerk, Suresh Dass, on the head with a flashlight and defendant jumped over the counter and stabbed Dass in the chest. Mortally wounded, Dass could not comply with demands for money and the would-be robbers fled after being unable to open the register. Store surveillance cameras captured the crime on videotape. Witnesses heard the assailants laughing as they fled.
Police arrested Frazier at a nearby apartment complex about 30 minutes after the crimes. They arrested defendant several hours later at a friend’s Anaheim apartment. Defendant’s DNA was recovered from clothing abandoned at the apartment complex where the officers found Frazier.
Sometime around 4:30 p.m. on the day of the arrests, officers placed defendant and Frazier in the backseat of a patrol car, left them alone, and recorded their conversation. Defendant said to Frazier, “I got away, last night I got away.” He also stated, “I was fucking clean I was doing fucking Rambo shit crawling through the Goddamn bushes and shit.” Frazier informed defendant the officers found him about four hours after the crime using a police dog. Defendant told Frazier, “Our bail’s probably high as shit.” Each told the other he did not know what charges they faced, but defendant guessed the charges would be “murder hate-crime?”
At trial, defendant denied committing the crimes, testifying he was at the Anaheim apartment when the attempted robbery and murder took place. The defense claimed the assailant depicted on the videotape was not defendant, and the presence of other DNA on the clothing demonstrated the prosecution did not prove beyond a reasonable doubt defendant was at the scene. Defendant’s mother testified she had kicked defendant out of her house for using drugs, he was living in his car, and she had given him $140 on the afternoon of the murder.
Following a trial in March 2008, the jury found defendant guilty. In April 2008, the court sentenced defendant to life in prison without the possibility of parole.
II Discussion
The Trial Court Did Not Violate Defendant’s Sixth Amendment Right to Counsel by Admitting Defendant’s Statements to Frazier
Defendant moved at trial to suppress his statements in the police car as a violation of his Sixth Amendment right to counsel. After police arrested and transported defendant to the Irvine police station, officers attempted to interview him, but he requested counsel after being advised of his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). Counsel appeared and spoke to defendant. Police officers subsequently placed defendant in a patrol car with Frazier and surreptitiously recorded their conversation. The trial court denied defendant’s motion.
At trial, the investigator explained officers put defendant and Frazier in separate holding cells. She installed tape recorders and microphones in the back of the patrol car and asked the custody officer to place the men in the car. The custody officer explained he was taking the men to the main jail.
As we explained in People v. Woods (2004) 120 Cal.App.4th 929, 939-940 (Woods), “Under Massiah, the prosecution may not use evidence obtained in violation of the defendant’s Sixth Amendment right to counsel. [Citation.] The United States Supreme Court has stated the right to counsel attaches only after the defendant has been subjected to adversarial judicial proceedings through formal charges, preliminary hearing, indictment, information or arraignment. [Citations.]... [Citation.] [¶] [I]n ‘determin[ing] when Sixth Amendment rights attach, the California Supreme Court follows the holdings of the United States Supreme Court.’ [Citation.] Thus far, the Supreme Court has recognized attachment of the right to counsel only ‘after the first formal charging proceeding.’” (Ibid.)
In Woods we recognized that several critical encounters may occur before formal charges are filed, such as police interrogation of a suspect, or a suspect’s admissions to a cellmate. Here, investigators recorded damaging admissions defendant made to Frazier while seated in a patrol car before the prosecution filed formal charges. But “‘the possibility that the encounter may have important consequences at trial, standing alone, is insufficient to trigger the Sixth Amendment right to counsel. [U]ntil such time as the “‘“government has committed itself to prosecute, and... the adverse positions of the government and defendant have solidified,”’” the Sixth Amendment right to counsel does not attach...’” (Woods, supra, 120 Cal.App.4th at p. 940) and “‘[a]ny other [result] would be inconsistent with the United States Supreme Court’s recognition that, before the formal instigation of charges, the investigative functions of the police should not be “unnecessarily frustrate [d]” by overprotective application of the Sixth Amendment. [Citations.]’” (Id. at p. 941.)
Investigators recorded defendant’s admissions before charging defendant with a crime. Thus, the prosecution was still at the investigatory, fact-finding stage when the police taped the conversation. It therefore follows that defendant’s right to counsel under the Sixth Amendment had not attached.
Additionally, to fall within the Sixth Amendment proscription, the statement must be “deliberately elicited” by agents of the prosecution or police. (Massiah, supra, 377 U.S. at p. 206.) In People v. Champion (1995) 9 Cal.4th 879, 911 (overruled on other grounds in People v. Combs (2004) 34 Cal.4th 821, 860), after the formal instigation of charges, the prosecutor obtained an ex parte order allowing the joint transportation of both defendants from jail to court, separate from other inmates, and the taping of their conversations. The defendants claimed that by recording their conversations, the prosecution violated their right to remain silent and to counsel as guaranteed by the Fifth and Sixth Amendments to the United States Constitution. The Supreme Court rejected the argument. The court noted the Massiah line of decisions developed to curb secret interrogation by investigatory techniques that are the equivalent of direct police interrogation. But to show a violation of the right to counsel under Massiah, the defendant must demonstrate the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks. The court explained that an inanimate electronic device, unlike an informant, has no capability of leading the conversation into any particular subject or prompting any particular replies. “Here, the prosecution listened to defendants’ tape-recorded conversations, but did not question them; thus, it did not engage in ‘secret interrogation’ by any techniques that were ‘the equivalent of direct police interrogation.’” (Champion, at p. 911.) Champion is analogous here because officers did not deliberately elicit defendant’s admissions. Defendant’s attempts to distinguish Champion are therefore unpersuasive.
Defendant did not assert a Fifth Amendment or Miranda violation in the trial court and denies he is making one on appeal. But he relies on the Fifth Amendment cases of Edwards v. Arizona (1981) 451 U.S. 477 (Edwards) and Rhode Island v. Innis (1980) 446 U.S. 291, 297, contending that once he asked for a lawyer, he had a “right to the presence and assistance of counsel to stop ignorance of the law or police subterfuge.” He also claims “[p]lacing the two men together in the patrol car had the effect of creating an atmosphere coercive of conversation about their circumstances,” which he claims was the “‘functional equivalent’” of interrogation.
Edwards held once an in-custody defendant has expressed a desire to deal with the police only through counsel, he is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. (Edwards, supra, 451 U.S. at p. 485.) Here, defendant was not subjected to further interrogation by the authorities. The police honored defendant’s request by ceasing interrogation when he asked for a lawyer. Placing defendant and his accomplice in the same patrol car does not constitute interrogation: “The police merely put the two suspects [together] and let nature take its course.” (People v. Boulad (1965) 235 Cal.App.2d 118, 126.) Miranda does not forbid “strategic deception by taking advantage of a suspect’s misplaced trust in one he supposes to be a fellow prisoner” (Illinois v. Perkins (1990) 496 U.S. 292, 297) and is inapplicable to secret taping of a conversation between suspects (Champion, supra, 9 Cal.4th at p. 911; People v. Jefferson (2008) 158 Cal.App.4th 830, 840-841; People v. Jenkins (2004) 122 Cal.App.4th 1160, 1173). The stratagem of placing defendant and his cohort together was not the “‘functional equivalent’” of interrogation. The trial court did not err in denying defendant’s motion to suppress the statements.
III Disposition
The judgment is affirmed.
WE CONCUR: FYBEL, J., IKOLA, J.