Opinion
No. E036355.
May 23, 2006. DEPUBLISHED August 16, 2006.
Appeal from the Superior Court of Riverside County, No. RIF109693, Christian F. Thierbach and Vilia G. Sherman, Judges.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lilia E. Garcia, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
I. INTRODUCTION
Defendant R.T.P. appeals from his conviction of a violation of Health and Safety Code section 11352, subdivision (a), and his resulting sentence of 25 years to life under the "Three Strikes" law. Defendant contends that the trial court erred in denying his motion to dismiss on the ground of government misconduct. We conclude that the prosecutor committed misconduct, and we remand for the trial court to conduct further proceedings to craft an appropriate remedy. We therefore need not address defendant's additional contentions of error.
We recognize the Penal Code requirement under section 1236 that the identity of the parties remain the same as in the trial court on appeal. Further, Penal Code sections 953 and 989 require the use of the defendant's true name in trial proceedings. Thus, the practice of using the defendant's true name in appellate court proceedings appears to be compelled by law. Here, however, because of the fact that defendant is in custody and has testified against another individual in a gang-related homicide, we have grave concern for defendant and his family's safety were we to use his full name. We have asked the parties to brief the issue of identifying defendant by other than his true full name on appeal. The People have no objection to use of other than the full name, and defendant affirmatively requests that we use other than the full name. Therefore, we use defendant's initials to protect his identity.
II. FACTS AND PROCEDURAL BACKGROUND
A. Procedural History A jury found defendant guilty of violating Health and Safety Code section 11352, subdivision (a). In bifurcated proceedings, the trial court found true the allegations that defendant had suffered two prior strikes under Penal Code sections 667, subdivisions (c) and (e)(2)(A), and 1170.12, subdivision (c)(2). The trial court denied defendant's motion to strike one of the prior strikes in the interest of justice pursuant to Penal Code section 1385, and the court sentenced defendant to a term of 25 years to life. B. Facts of Current Offense In March 2003, Riverside Police Officer Chad Milby was working with Operation REGAIN, a program that targeted persons who were selling illegal drugs in the City of Riverside. On March 27, Milby participated in an undercover operation in the University Avenue area. He was in plain clothes, and he used an unmarked vehicle that was equipped with audio and video equipment to record contacts with suspects. His job was to attempt to purchase drugs from people selling on the street. Additional undercover officers were conducting surveillance in the area. At the corner of University and Comer, Milby made eye contact with defendant, who was standing in the parking lot of a market. Defendant nodded to Milby, who nodded back. Milby pulled into the parking lot, defendant got into Milby's car, and Milby asked if defendant knew where to purchase narcotics. Defendant said that he did. During the conversation, codefendant Darlene Lover approached the driver's side of the car and said, "What's up baby? Do you need something?" Defendant indicated to Lover that he was dealing with Milby, and defendant told her to go away. Milby said he was going to deal with defendant, but when Lover persisted, Milby gave her $20 for a piece of rock cocaine, and she left. Milby said he was going to get some cigarettes, and he entered the market, leaving defendant in the car. Once inside the market, Milby notified detectives about the purchase he had made from Lover. When Milby returned to his car, defendant directed him to drive to an alley where defendant pointed out a man who was standing with several others outside a garage. Milby parked the car, and the man approached the window and introduced himself as "D." Defendant told "D" that Milby wanted $40 worth of rock cocaine. "D" walked toward the garage, and defendant told Milby he thought he could get a better deal somewhere else. "D" returned to the car and eventually agreed to sell the substance for $35. Milby handed the money to defendant, who passed it to "D." "D" gave defendant four pieces of rock cocaine, which defendant gave to Milby. Defendant said he wanted to smoke some of the cocaine, but Milby gave him $10 instead. Milby dropped defendant off after they left the alley. Milby testified that defendant did not offer to personally sell drugs to him, and defendant never asked for money in exchange for showing Milby where he could purchase drugs. When Milby offered to compensate defendant, defendant said he did not want money, but he wanted drugs to use himself. The entire transaction was recorded, and the jury was shown a videotape of the incident and was provided with a transcript of the audio portion. The parties stipulated that the substance purchased from "D" consisted of .28 grams of a substance that contained cocaine base. Defendant was arrested after the transaction. Attorney Peter Scalisi was appointed to represent him. C. Defendant as Witness in Unrelated Homicide Case In February 2003, defendant had been an eyewitness to a double homicide (the "R.G." homicide case). On January 28, 2004, deputy district attorney Kelton Tobler informed Scalisi for the first time that defendant was a witness in the R.G. homicide case, and that defendant had been speaking with law enforcement. The preliminary hearing in the R.G. homicide case was held on January 30, 2004, before Judge Christian F. Thierbach. Tobler called defendant as a witness, and defendant appeared without counsel. Tobler started off by asking defendant questions about his criminal history, and defendant admitted the two prior robbery convictions that had been alleged as strikes in the current case. Tobler also established that defendant had been arrested for selling or aiding in the selling of cocaine in March 2003. During cross-examination, defense counsel in the homicide case questioned defendant further about his criminal history and established there had been no offer to defendant in the current case in exchange for his testimony in the homicide case. During redirect, defendant stated that he had discussed the possibility of a deal with the prosecutors, but they had not made any promises, although he was hoping for leniency. On recross-examination, defense counsel asked defendant about the facts of the current case, including asking if he had aided and abetted in transporting cocaine. Judge Thierbach told defendant that he did not have to answer the question, but defendant stated, "It don't matter. I have nothin' to hide. I'll answer them." Defendant then stated he had done nothing wrong, and that he had merely been present when a drug transaction had occurred. On further questioning, defendant stated, "Police picked me up, and I showed them where to get it at. That's all that was." The following exchange occurred: "[Defense counsel]: By you showing them, you said you were helping in that transaction; is that what you were saying? "A: If that's what you want to call it. "Q: So, you are admitting you actually aided and abetted in the transportation of rock cocaine? "THE COURT: You've got to be kidding. ¶ You answer that question . . . and I want to tell you, somebody from his office is gonna use that against you in your trial and do everything in their power to put you away for 25 years to life if you answer that question in the affirmative. If you answer it yes, that's in effect an admission that you're guilty of a felony. ¶ So, my strong advice to you, sir, is to not answer that question. My strong advice to you is to consult with an attorney before you answer any more questions in this area. "THE WITNESS: Okay." The court told the prosecutor that when defendant's attorney arrived, he would no doubt tell defendant "to keep his mouth shut and not say another word. As soon as he does that, this man, I think, has everything he said in here stricken as if he never testified." The prosecutor asked for an opportunity to research the issue, and the court replied, "Of course it's important. And why your office hasn't made the deal — that you're ultimately probably going to make with him — beforehand is absolutely beyond me. I just don't understand this procedure. ¶ But go ahead and do whatever research you want. But I think I know the law pretty well, too. And this man has, I think, already incriminated himself despite my warning not to. And I'm not gonna let him proceed any further until he's advised by counsel." Scalisi was temporarily unavailable, and another attorney was provided solely for the purpose of advising defendant on whether to testify further at the preliminary hearing. While the situation was being explained to the new attorney, the following exchange occurred: "THE COURT: What I fear has happened here is that [R.T.P.] has been called here to testify and that no notice of the D.A.'s intent to call him as a witness was communicated to Mr. Scalisi. I don't know if that's true or not." Tobler represented to the court, "That's not true, Your Honor. I spoke with Mr. Scalisi the other day. I explained to Mr. Scalisi I intended to speak with [R.T.P.] at the D.A.'s office, but that I wouldn't talk to him about his pending case, and that he would be a witness at the preliminary hearing. ¶ Mr. Scalisi asked me, [i]s there any kind of deal available with [R.T.P.]? ¶ And I said, [n]o, there isn't. I can't make any promises because [R.T.P.]'s testimony is worthless to me if it's in exchange for a deal. So, I'm sorry. I can't make any kind of a deal with you. ¶ Mr. Scalisi said, I understand that. ¶ And that was the extent of our conversation." The court stated its belief that a Massiah violation had occurred because it should have been foreseen that defendant would be subjected to cross-examination with respect to the current charges. On the advice of counsel, defendant refused to testify any further at the preliminary hearing in the R.G. homicide case. The court asked defendant if he had had any conversation with Scalisi about coming to court and testifying, and defendant said he had not. The hearing was continued until February 5, at which time Scalisi was present. Defendant confirmed his intention to assert his Fifth Amendment privilege as to any further testimony. The court asked Scalisi if he had known defendant was being called as a witness, and Scalisi replied that he had not. The following exchange ensued: "THE COURT: All right. Mr. Tobler had indicated last week that he contacted you sometime before this preliminary hearing and told you that he wanted to talk to your client, and also that he intended to call him as a witness in a preliminary hearing. Did he in fact contact you? "MR. SCALISI: He did contact me. That part of it is correct. "THE COURT: Had you had a chance to meet [R.T.P.] at that point? "MR. SCALISI: It's correct Mr. Tobler contacted me Wednesday of last week by phone and told me that [R.T.P.] wanted to continue speaking to them about this case. I was not told that [R.T.P.] was about to be called as a witness in two days in a preliminary hearing. I was not told that. And [R.T.P.] himself told me yesterday in the jail he didn't even know that he was going to be called as a witness. He was awakened Friday morning in his bunk and told to come to court. He didn't know that he was being brought over to testify in this case. "THE COURT: [R.T.P.] told us last week, when he was testifying, that he had never talked to you as yet, hadn't met you, hadn't talked to you as yet. Had you met with him prior to testifying? "MR. SCALISI: Yes, of course. But we had not talked about the [R.G.] case. And when Mr. Tobler called me on Wednesday, I didn't know that there was [an R.G.], that he had been charged, what he had been charged with, and the stage in the proceedings at which the [R.G.] case was. ¶ From the phone conversation, it sounded as though there was some defendant out there who may or may not have even been arrested. I didn't know how immediate the situation was." Tobler represented to the court, "My recollection of my telephone conversation with Mr. Scalisi differs sharply from his. ¶ As I recall it, I telephoned Mr. Scalisi on Wednesday, sometime Wednesday afternoon, and I explained that I was calling regarding his client [R.T.P.] and that I was going to bring [R.T.P.] over to the D.A.'s office to talk to him on Thursday afternoon in advance of his testimony and preliminary hearing on Friday morning. I was surprised that Mr. Scalisi told me that he didn't know that [R.T.P.] was a potential witness in this case because it had been my understanding from talking with Stephanie Weissman, who was prosecuting [R.T.P.], that this was — that his potential as a witness in this case was something — and the fact that his current case was being continued until after the preliminary hearing in this case had been communicated to Mr. Scalisi. Otherwise, I don't know what she's been telling him about why she wants to continue the preliminary hearing, because I wanted his case not to go to trial until after the preliminary hearing in this case. So, I understood that Mr. Scalisi was fully informed about this. ¶ But be that as it may, when I talked to Mr. Scalisi on the phone, I told him that, as I said, that I was gonna talk to him in the D.A.'s office in advance of his testimony. And Mr. Scalisi asked me, [w]ell, is there any deal available for my client? ¶ And I said, [n]o, Pete, there isn't. His testimony is worthless to me if it's given in exchange for a deal, so, no, there isn't. ¶ I did not anticipate, and Mr. Scalisi did not anticipate, that the subject of his current pending case would come up at the preliminary hearing, and I mentioned that. I said, I'll be talking to him about everything, but, of course, not the facts of his current case. I won't be —" The court responded, "How could it not occur to you that it wouldn't come up? I mean, that's just — that's Defense Counsel 1A, for crying out loud. A defense attorney has the right to cross-examine a witness with regard to crimes of moral turpitude in an effort to impeach him. You had to anticipate that would be a possible subject area of cross-examination." Tobler then described his conversation with defendant, in which defendant asked for a plea bargain, and Tobler told defendant he could not promise anything. The court and counsel discussed the R.G. homicide case, whether defendant had the right to refuse to testify, and the ramifications for that case if defendant did refuse to testify. The trial court stated, "So, I am not at all surprised that the D.A.'s office — and understandably so, takes a closer look at the cases and is reluctant to make deals with people who are facing sentences such as [R.T.P.] here, life sentences in exchange for testimony. ¶ I told you last week I fully expect — and I think we all do — that somewhere down the line he's gonna receive some sort of benefit. I don't think he's gonna experience immunity, but I would expect to see a strike disappear somewhere down the line and something less than a life sentence imposed. That's pure educated speculation on my part. It may, may not happen." Several days later, the district attorney's office granted defendant immunity under Penal Code section 1324, and the court ordered defendant to answer questions. Defendant refused to testify, invoking his Fifth Amendment privilege. The trial court found him in contempt and sentenced him to five days in county jail. D. Motion to Dismiss Defendant, through newly appointed counsel, moved for dismissal of his case on the ground of government misconduct. Defendant argued that "a basic and fundamental principle in American jurisprudence: the right of representation by counsel at all critical stages of a criminal proceeding must be honored and followed without hesitation" and the failure of the district attorney's office to respect that right placed defendant's life in extreme danger because of the fear of retaliation from R.G. In support of the motion, Scalisi provided a declaration under penalty of perjury which stated: "6. On January 28, 2004, which was a Wednesday, I received a phone call from Deputy District Attorney Kelton Tobler of the Riverside County District Attorney's Office, which was the first time I had ever been told about the police involvement with [R.T.P.] about the [R.G.] case. Mr. Tobler did not tell me in the phone conversation that he intended to call [R.T.P.] to testify as a witness in [R.G.'s] preliminary hearing, which was set for the following Friday. "7. On January 30, 2004, the next Friday, without my knowledge that this would happen , Mr. Tobler had called [R.T.P.] to testify as a witness against [R.G.]. "8. When I learned that [R.T.P.] had testified, I was shocked. I would have never allowed a client to testify against a double homicide defendant without first obtaining a plea bargain with the District Attorney, and without first obtaining some protective measures for [R.T.P.] since he was in custody. Considering the fact that [R.T.P.] is facing twenty-five years to life for a nonviolent offense it would be improper for any criminal defense attorney to allow a client to testify without a plea agreement already in place. Further, [R.T.P.] had a Fifth Amendment privilege not to testify as he would be subject to cross-examination concerning his participation in selling cocaine as charged in this case. [Citation.] "9. I also became aware that once [R.T.P.] testified he went into the 'Protective Custody' section of the jail. It is common knowledge among professionals in criminal law that inmates who are in protective custody face very dangerous situations. Many inmates will attack and even kill protective custody inmates who they believe to be 'snitches' or who have testified against another inmate. In this case, considering the brutality of the murder that occurred and the fact that [R.G.] has well-documented ties to street gangs, it is without a doubt that [R.T.P.]'s life is in constant danger. And in fact, the Press Enterprise did publish an article about [R.T.P.] testifying for the Government about [R.G.]. "10. Had I known that the District Attorney planned on calling to the stand [R.T.P.], I would have never let that happen without first acquiring a plea bargain from the District Attorney. When I went to the District Attorney after [R.T.P.] testified to see if a plea bargain could still be reached for his testimony, I was informed by Mr. Tobler that he would recommend a deal for ten years for [R.T.P.] to his supervisors in the DA's office. Later, I was informed by Mr. Tobler the [R.T.P.] case had been 'staffed,' and that the DA's office was not going to convey any offers to [R.T.P.] except plead guilty and receive 25 years to life." The People filed an opposition to the motion to dismiss stating that Tobler had informed Scalisi that defendant "was a witness who was being questioned." The opposition further stated, "DDA Tobler has stated on the record in open court that he informed Peter Scalisi prior to January 30 that the defendant would be a witness at the preliminary hearing." However, the People did not provide any declaration under penalty of perjury to substantiate that statement. The People argued that they had a right to interview and examine defendant in an unrelated case, and doing so did not violate defendant's right to counsel in the current case. At the hearing on the motion, defense counsel again asserted that Tobler had called defendant as a witness at the preliminary hearing in the R.G. homicide case without Scalisi's knowledge, and the prosecutor did not contest that statement. Rather, the prosecutor reiterated the argument that the People had the right to interview and examine defendant as a witness in an unrelated case without violating defendant's right to counsel with respect to the current charges. Following a hearing, the trial court denied the motion to dismiss.
For the reasons discussed in footnote 1, we refer to the defendant in that case by his initials. R.G. was a local drug kingpin, and the victims had purportedly robbed one of his drug stashes. R.G. was a capital case.
Massiah v. United States (1964) 377 U.S. 201 [ 12 L.Ed.2d 246, 84 S.Ct. 1199].
The clerk's transcript in the present case does not show that the district attorney made any attempt to continue defendant's case. Defendant was arraigned on April 24, 2003. At the settlement conference on April 30, the matter was "continued at the request of Defense." At the settlement conference on May 14, the matter was again "[c]ontinued at the request of Defense." At the settlement conference on May 28, the court found "good cause exists TO CONTINUE PRELIM DUE TO UNAVAILABILITY OF CNSL." The preliminary hearing took place on June 20, and the information was filed on July 3. The arraignment on the information was set for July 7, but was "[c]ontinued at the request of Defense." Defendant was arraigned on July 15. A trial readiness conference was held on August 8, and the matter was set for trial on September 8. On August 27, the People moved to consolidate defendant's case with that of a codefendant. On September 4, defense counsel moved to continue the trial because he was engaged in another trial. On September 10, the court granted the motion to consolidate. At a trial readiness conference on October 3, the matter was set for trial on November 17. On November 14, defense counsel again moved to continue trial. On November 17, defendant waived time for trial until January 5, 2004, plus 15 court days. On January 5, the matter was set for trial on January 26. On January 26, defendant again waived time for trial, and the matter was set for trial on February 23. Thus, the record does not show a single instance where the prosecutor sought a continuance.
III. DISCUSSION
A. Prosecutorial Misconduct The People argue that no misconduct was committed because they had a right to interview defendant in an unrelated case without the presence of his attorney. It is true that a defendant is not entitled to representation of counsel when he is interviewed as a percipient witness in a matter wholly unrelated to the pending charges, nor is there any requirement that his appointed counsel in the current matter even be informed of such questioning. ( People v. Carter (2003) 30 Cal.4th 1166, 1209 [ 135 Cal.Rptr.2d 553, 70 P.3d 981].) Rather, the Sixth Amendment right to counsel is "'offense specific.'" ( People v. Clair (1992) 2 Cal.4th 629, 657 [ 7 Cal.Rptr.2d 564, 828 P.2d 705].) However, the People's argument completely misses the point. Defendant does not challenge the People's right to interview him as a witness in an unrelated case, but rather challenges (1) the prosecutor's discussions with him concerning possible concessions without the presence of his attorney, and (2) the prosecutor's calling defendant as a witness at the preliminary hearing without the presence of defendant's counsel, despite the near certainty that defendant would be cross-examined about the current charges and the danger to defendant's personal safety that his testimony created. Deputy District Attorney Tobler admitted that he had discussed the possibility of concessions with defendant — Tobler described his conversation with defendant on the day before the Friday preliminary hearing in the R.G. homicide case: "without going into the facts and circumstances of [R.T.P.]'s pending case, I explained to him there was no deal, that I was going to be asking him about that on the witness stand. And I explained to him and I asked him whether he was hoping for something down the line. He said yes. ¶ And I said, [y]ou understand I can't promise you that because it's not up to me. I don't make those decisions in my office. And even if I — Even if I tell people that I think you should get a deal, that's not necessarily going to happen. You have to understand that." This entire conversation was improper. It is well established that "[o]nce the right to counsel has attached and been asserted, the State must of course honor it. This means more than simply that the State cannot prevent the accused from obtaining the assistance of counsel. The Sixth Amendment also imposes on the State an affirmative obligation to respect and preserve the accused's choice to seek this assistance." ( Maine v. Moulton (1985) 474 U.S. 159, 170-171 [ 88 L.Ed.2d 481, 106 S.Ct. 477], fn. omitted.) In People v. Hayes (1988) 200 Cal.App.3d 400, 408-409 [ 246 Cal.Rptr. 750], the court addressed the importance of the representation of counsel during plea bargaining: "'The Sixth Amendment guarantees the accused, at least after the initiation of formal charges, the right to rely on counsel as a "medium" between him and the State.' ( Maine v. Moulton, supra, 474 U.S. at p. 176 [ 88 L.Ed.2d at p. 496, 106 S.Ct. at p. 487].) ¶ In this regard, the attorney plays a vital role, not just as a voice for an accused but as an agent 'through which the demands and commitments of the sovereign are communicated to the citizen.' [Citation.] While it may be a matter of controversy as to whether 'plea bargaining' is a necessary part of the criminal justice system, it is a reality of the system. '"The great majority of criminal cases are disposed of by pleas of guilty, and a substantial number of these pleas are the result of prior dealings between the prosecutor and the defendant or his attorney." [Citation.]' [Citation.] ¶ It is evident that in a system wherein the negotiating process plays such a major role that, as they would in any negotiating process, the experience, acumen and leverage of each side's representative is of paramount importance to the final agreement. It does not take any breadth of imagination to recognize the advantage that an experienced attorney or police detective may have in the negotiating process as opposed to an individual accused of a crime. Where a defendant is represented by counsel at the time of negotiations concerning his case, the state may not exploit this advantage by circumvention of the defendant's counsel without a violation of the defendant's Sixth Amendment rights. ¶ '[Knowing] exploitation by the State of an opportunity to confront the accused without counsel being present is as much a breach of the State's obligation not to circumvent the right to the assistance of counsel as is the intentional creation of such an opportunity.' ( Maine v. Moulton, supra, 474 U.S. at p. 176 [ 88 L.Ed.2d at p. 496].) ¶ (4) While the defendant might be no better off if his attorney negotiated for him or, perhaps, might even be worse off, the defendant is 'entitled to have him try.' [Citation.]'" In People v. Moore (1976) 57 Cal.App.3d 437 [ 129 Cal.Rptr. 279] ( Moore), the defendant sought out investigators with the district attorney's office and agreed to cooperate as a witness in other cases in exchange for consideration at sentencing. ( Id. at pp. 439-441.) The district attorney's office engaged in extensive negotiations with the defendant, without the knowledge of the defendant's attorney, and as a result of those negotiations, the defendant worked undercover for an extended period and testified in two trials. ( Id. at p. 440.) The defendant "was also led to believe if his efforts culminated in the arrest and conviction of [a certain individual], his case would be dismissed, his parole would be terminated, he would be relocated, and be given protection, a new identity, and $5,000-$10,000." ( Ibid.) The defendant was told not to inform his attorney about his dealings with the district attorney's office, and an investigator falsely told him that his attorney was inadequate and had been disbarred. ( Ibid.) The court held that the district attorney's conduct had violated the prohibition against directly negotiating a plea bargain with a defendant who is represented by counsel, and therefore dismissal was the appropriate remedy. ( Id. at p. 441.) The court stated, "The People contend there was no plea bargaining because no plea was reached. The argument is vacuous. The absence of a plea, and the meager benefits Moore received from his unaided bargaining, underscore the prejudicial effect of acting without counsel during crucial pretrial negotiations. It is idle to speculate whether Moore's counsel could have worked out a better deal with the district attorney. The point is, Moore was entitled to have him try. Lack of effective counsel at a critical stage of proceedings renders them constitutionally defective. [Citations.]" ( Id. at p. 442.) Here, Tobler's conversation with defendant deprived defendant of the opportunity to have his attorney attempt to negotiate concessions in return for defendant's cooperation and testimony in connection with the R.G. homicide case. The consequences to defendant in this case were particularly drastic, as the prosecutor should have recognized — defendant, as a result of his cooperation in a high visibility, gang-related homicide case, had to be placed in protective custody. Even the judge conducting the preliminary hearing in the R.G. homicide case recognized that it was highly unusual that defendant was not offered any concessions as a result of his cooperation in that case: "And why your office hasn't made the deal — that you're ultimately probably going to make with him — beforehand is absolutely beyond me. I just don't understand this procedure." The prosecutor's casual, if not cavalier, disregard of defendant's right to representation during a discussion of potential concessions and then calling defendant as a key witness at a preliminary hearing without the presence of his counsel is highly disturbing, as is the prosecutor's failure to recognize any impropriety in such discussions. The fact that the prosecutor stated to defendant that no concessions would be forthcoming exacerbates rather than minimizes the impropriety. As the court stated in Moore, defendant was "entitled to have [his attorney] try." ( Moore, supra, 57 Cal.App.3d at p. 442.) B. Remedy Defendant argues that the appropriate remedy for the prosecutorial misconduct is dismissal; the People argue that the remedy of exclusion of defendant's testimony from the preliminary hearing in the R.G. homicide case was sufficient to dispel any prejudice. In Boulas v. Superior Court (1986) 188 Cal.App.3d 422 [ 233 Cal.Rptr. 487] ( Boulas), the defendant, who was charged with the illegal sale of cocaine, hired an investigator to contact the police to determine if he could work as a drug informant in exchange for leniency. The district attorney told the defendant that such a deal was possible if the defendant fired his attorney and hired another attorney suggested by the prosecutor. The defendant did so and did provide useful information, but the district attorney decided not to offer a plea bargain. ( Id. at pp. 425-428.) The court found that law enforcement's interference with the defendant's right to counsel was outrageous, and the court ordered dismissal of the charges as a sanction. The court stated, "The remedy of exclusion of evidence is inadequate in instances of intentional subversion of the attorney-client relationship by governmental agents. 'An exclusionary remedy is not only ineffective as a deterrent, but the problems of proof inherent in the remedy when applied to violations of the right to counsel would be inadequate to assure that the prosecution does not benefit from the illegality.' [Citation.]" ( Id. at p. 434.) Similarly, in Moore, the court determined that a mere exclusionary sanction would not suffice. In Moore, the court stated, "Resort to a rule of evidence cannot reasonably remedy violations of Moore's right to counsel which go to the very conduct of his defense. It is not evidence which has been tainted, rather, it is Moore's right to due process." ( Moore, supra, 57 Cal.App.3d at p. 442.) Dismissal, however, is an extraordinary remedy to be reserved for the most egregious misconduct, such as was found in Boulas and Moore. "The power of a court to dismiss a criminal case for outrageous conduct arises from the due process clause of the United States Constitution. [Citations.]" ( Morrow v. Superior Court (1994) 30 Cal.App.4th 1252, 1259 [ 36 Cal.Rptr.2d 210].) "When conduct on the part of the authorities is so outrageous as to interfere with an accused's right of due process of law, proceedings against the accused are thereby rendered improper. [Citations.] Dismissal is, on occasion, used by courts to discourage flagrant and shocking misconduct by overzealous governmental officials in subsequent cases. [Citations.]" ( Boulas, supra, 188 Cal.App.3d at p. 429.) In United States v. Morrison (1981) 449 U.S. 361 [ 66 L.Ed.2d 564, 101 S.Ct. 665], the court discussed the appropriate remedy when there had been a violation of the Sixth Amendment right to counsel: "Our approach has . . . been to identify and then neutralize the taint by tailoring relief appropriate in the circumstances to assure the defendant the effective assistance of counsel and a fair trial. The premise of our prior cases is that the constitutional infringement identified has had or threatens some adverse effect upon the effectiveness of counsel's representation or has produced some other prejudice to the defense. Absent such impact on the criminal proceeding, however, there is no basis for imposing a remedy in that proceeding, which can go forward with full recognition of the defendant's right to counsel and to a fair trial. ¶ More particularly, absent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the violation may have been deliberate." ( 449 U.S. at p. 365, fn. omitted.) Here, the prosecutor's conduct was less flagrant than that in either Boulas or Moore, and we conclude that the sanction of dismissal is not required under the present circumstances. There was nonetheless a reasonable likelihood of a more favorable outcome for defendant if the prosecutorial misconduct had not occurred, and the assistance of counsel would have helped avoid that prejudice. We therefore believe that justice requires an unusual remedy. (See, e.g., State v. Ford (Utah 1990) 793 P.2d 397, 405-406 [holding that the possibility that the defendant could have gotten a better bargain if a plea bargain had been negotiated with the assistance of counsel required remand for factual findings to determine what that better bargain would have been].) We accordingly remand to the trial court with directions to hold an evidentiary hearing to consider whether and to what extent defendant was prejudiced by bargaining with the state without the presence of his appointed counsel. We note that "Where it appears that the state has engaged in misconduct, the burden falls upon the People to prove, by a preponderance of the evidence, that sanctions are not warranted because the defendant was not prejudiced by the misconduct. [Citations.]" ( People v. Zapien (1993) 4 Cal.4th 929, 967 [ 17 Cal.Rptr.2d 122, 846 P.2d 704].) The court should consider how important defendant's role was in the R.G. homicide case and what bargain defendant would likely have struck had competent counsel participated in the negotiations. In this regard, the court may find it helpful to hear testimony from experienced defense attorneys and from prosecutors with no direct stake in the outcome. Following the hearing, if the court determines that defendant would not likely have received a better deal with counsel's participation, the court may reimpose the previous sentence. If, however, the court determines that defendant would likely have obtained different sentencing recommendations or other concessions, then the court should sentence defendant as if such recommendations or concessions had been realized. Or, if the court determines that, in light of what the state needed in the R.G. homicide case and what defendant had to offer, competent defense counsel would likely have obtained a bargain permitting defendant to enter a plea to a lesser charge, then the court should set aside the conviction, provided defendant agrees to plead guilty to such lesser charge. The court should then receive defendant's guilty plea to that lesser charge and enter sentence accordingly. Similarly, if the court determines that defendant would likely have obtained a bargain leading to the dismissal of a strike allegation or allegations, the court should dismiss such strike allegation[s] and resentence defendant accordingly.
In People v. Carter, supra, 30 Cal.4th 1166, the defendant was in jail pending trial on a capital case, and counsel had been appointed to represent him in that capital case. The defendant became a suspect in a jailhouse stabbing, and a deputy interviewed the defendant about the stabbing incident without informing the attorney who represented him in the capital case. During the interview, the defendant made damaging admissions that were introduced against him at the trial of his capital case, and the defendant was convicted in that case. On appeal, the defendant argued that his counsel had been ineffective for failing to object to his statements to the deputy on the ground that those statements were obtained in violation of his Sixth Amendment right to counsel. The Supreme Court held, however, that an objection would have been meritless because there had been no Sixth Amendment violation. The court rejected as unworkable any rule that would require "that counsel previously appointed or retained in an unrelated case be notified whenever jail authorities seek to question an inmate about possible criminal acts committed while in custody." ( People v. Carter, at p. 1210.) The court stated that it "would be impracticable to require that counsel be advised and given the opportunity to participate in every such instance" in which jail personnel converse with a defendant "without engaging in interrogation about his or her charged offense." ( Id. at p. 1210, fn. 14; see also People v. Webb (1993) 6 Cal.4th 494, 527 [ 24 Cal.Rptr.2d 779, 862 P.2d 779] [finding no violation of the Sixth Amendment right to counsel in the use of an undercover agent to elicit incriminating statements from a defendant who "had already been charged, incarcerated, and appointed counsel on wholly unrelated offenses"]; People v. Wader (1993) 5 Cal.4th 610, 636 [ 20 Cal.Rptr.2d 788, 854 P.2d 80] [defendant's Sixth Amendment right had not attached to charges about which he was questioned because adversary criminal proceedings had not yet commenced, even though defendant had obtained counsel in an unrelated pending case].) A fortiori, defendant did not have a Sixth Amendment right to representation of counsel when he was questioned as a percipient witness in the homicide case.
At oral argument, the deputy attorney general argued at length that a question of fact exists, in that it was never specifically resolved which of the two diametrically opposed versions of the facts was true — i.e., whether, as Tobler represented to the court, he had informed Scalisi he intended to call defendant as a witness in the preliminary hearing in the R.G. homicide case, or whether, as Scalisi stated in his declaration, no such information was provided. We do not find it necessary to resolve the conflict — our ultimate conclusion would be the same under either scenario. If defense counsel had been informed that defendant would appear as a key witness in the R.G. homicide case, it is self-evident he failed to take appropriate steps to protect defendant's interests, and defendant received ineffective assistance of counsel to his extreme prejudice.
IV. DISPOSITION
Defendant's judgment of conviction is affirmed. The case is remanded for further proceedings consistent with this opinion. Richli, J., and Gaut, J., concurred.