People v. Acuna, D006192

• Decision Date: 13 September 1988
• Docket Number: No. D006192,D006192
• Citation: 251 Cal.Rptr. 387,204 Cal.App.3d 602
• Parties: The PEOPLE, Plaintiff and Respondent, v. Luis Martinez ACUNA, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 387

251 Cal.Rptr. 387

204 Cal.App.3d 602

The PEOPLE, Plaintiff and Respondent, v. Luis Martinez ACUNA, Defendant and Appellant.

No. D006192.

Court of Appeal, Fourth District, Division 1, California.

Sept. 13, 1988.

Review Denied Dec. 15, 1988.

Neil Auwarter, San Diego, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Robert M. Foster, Supervising Deputy Atty. Gen. and Tim Nader, Deputy Atty. Gen., for plaintiff and respondent.

WORK, Associate Justice.

Luis Martinez Acuna appeals a judgment convicting him of unlawfully driving and taking a motor vehicle not his own, without the consent of the owner and with the intent to deprive the owner of its possession. (Veh.Code, § 10851, subd. (a).) He contends the trial court erred in denying his motion to dismiss because potentially material defense witnesses were released and deported by law enforcement officers pretrial in violation of his Sixth Amendment rights to compulsory process for obtaining witnesses and the assistance of counsel and his Fifth Amendment right to due process. We are satisfied Acuna had no Sixth Amendment right to consult with counsel before choosing whether to agree to the pretrial release of witnesses. Assuming, but not granting, Acuna was entitled to the assistance of counsel before this decision under independent state constitutional grounds, the record shows he knowingly and intelligently waived that assistance and elected to release the witnesses. Accordingly, we hold the trial court properly denied his dismissal motion and affirm the judgment.

I FACTUAL AND PROCEDURAL BACKGROUND

United States Border patrolmen stopped and arrested Acuna while driving a van loaded with 27 undocumented aliens. Within minutes the Border Patrol agent learned the van had been reported stolen. After being transferred to a nearby Border Patrol station, Acuna was advised of his Miranda rights in Spanish and he requested an attorney. Although after that request he was not questioned regarding potential charges, general biographical information was solicited from him. He was then given a printed Lujan-Castro waiver form, ¹ explaining in Spanish his right to have the undocumented aliens he was transporting detained as witnesses. Appearing comfortable and not under the influence of any substance, Acuna read the form for several minutes and advised a Border Patrol agent he did not understand its purpose. The agent explained the purpose of the waiver in Spanish to Acuna, commenting essentially he had the right to decide whether to detain or release all material witnesses and that they could be used against him if detained. Acuna stated he now understood and it was all right to release the 27 Mexican aliens. Both he and the agent signed the waiver form. ²

The trial court, in denying his motion to dismiss, found Acuna had knowingly and intelligently waived his right to the witnesses' presence at trial when he executed the written Lujan-Castro waiver form. The court found Acuna had read the form in Spanish, his native-tongue; inquired regarding its import; and then signed it, attesting no promises or threats had been made. The court further found the solicitation of general biographical data did not violate his right to remain silent or his right to counsel, because that information was " 'neither testimonial nor communicative....' " Moreover, the court emphasized the waiver form advised Acuna of his right to consult with a lawyer before determining whether to permit the witnesses to be released.

II ACUNA'S MOTION TO DISMISS WAS PROPERLY DENIED

Acuna argues that because he requested an attorney in response to the agent's Miranda admonitions, his Sixth Amendment right to counsel was later violated when the agent presented him with the Lujan-Castro waiver form. He contends his request for an attorney in response to the Miranda advisement invoked his Fifth and Sixth Amendment rights to counsel. Accordingly, he asserts his later signing of the Lujan-Castro form and waiver of counsel, regarding the determination whether to deport material witnesses, must be deemed involuntary because it was initiated by the Border Patrol agents after he had requested an attorney. Moreover, he asserts the waiver was invalid because it was not made knowingly and intelligently because he did not understand the waiver, the Border Patrol agent who explained it to him admitted his Spanish was limited and Acuna had not yet been informed of the crime with which he was to be charged. Relying on People v. Mejia (1976) 57 Cal.App.3d 574, 579, 129 Cal.Rptr. 192, and Cordova v. Superior Court (1983) 148 Cal.App.3d 177, 195 Cal.Rptr. 758, Acuna urges dismissal is mandated by due process and his constitutional right to a fair trial, because state action rendered material witnesses unavailable to his defense.

A. We are satisfied the Lujan-Castro waiver initiated when the Border Patrol agent submitted the waiver form to Acuna did not violate Acuna's Sixth Amendment right to counsel in spite of the earlier request for counsel in response to the agent's Miranda admonitions. ³ Under federal law, Acuna's Sixth Amendment right to counsel had not yet attached. The earlier request was in response to Miranda admonitions and thus limited to the aid and presence of counsel during further custodial interrogation to preserve his Fifth Amendment right against self-incrimination. (Hall v. State of Iowa (8th Cir.1983) 705 F.2d 283, 289, fn. 4.) Within this context, the right to counsel is not an independent right, but rather a prophylactic rule derived from Fifth Amendment principles (2 LaFave & Israel, Criminal Procedure (West ed. 1984) § 11.1(c), p. 11) and not from the Sixth Amendment right to counsel which attaches only upon the filing of formal criminal charges (Moran v. Burbine (1986) 475 U.S. 412, 106 S.Ct. 1135, 1145-1147, 89 L.Ed.2d 410). Indeed, it is firmly established under federal law the Sixth Amendment right to counsel attaches only " 'at or after the initiation of adversary judicial criminal proceedings--whether by way of formal charge, preliminary hearing, indictment,information, or arraignment.' [Citation.]" (United States v. Gouveia (1984) 467 U.S. 180, 188, 104 S.Ct. 2292, 2297, 81 L.Ed.2d 146; In re Grand Jury Subpoena Served Upon Doe (2d Cir.1985) 781 F.2d 238, 244.) ⁴ This is true even though the encounter may have significant consequences at trial. (Moran v. Burbine, supra, 106 S.Ct. at pp. 1146-1147; see, e.g., Kirby v. Illinois (1972) 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 [Sixth Amendment right to counsel does not attach to preindictment lineup].) Consequently, the agent's conduct in soliciting the Lujan-Castro waiver could not violate Acuna's Sixth Amendment right to counsel because it had not attached.

Moreover, under these circumstances, we believe the Sixth Amendment right to counsel does not attach to the decision of whether to waive one's Sixth Amendment right to retain deportable alien witnesses as established in United States v. Mendez-Rodriguez (9th Cir.1971) 450 F.2d 1, 4-5. The court in United States v. Lujan-Castro, supra, 602 F.2d at pages 878-879, declined the defendant's invitation to establish as a predicate for such a waiver the presence of a magistrate, a judge, or counsel, noting that rights of at least equal stature may be relinquished without the assistance of counsel or an appearance in court. ( Id. at p. 878.) Although we could theorize by analogy to Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, a derivative right to counsel designed to safeguard the Sixth Amendment right to compulsory process for obtaining witnesses, it is unlikely such a derivative right to counsel will be recognized federally (see 2 LaFave & Israel, Criminal Procedure, supra, § 11.1(c), p. 11) and, in any event, such a derivative right to counsel would not be violated by a Border Patrol agent's giving of a suspect a waiver form regarding the retention of deportable alien witnesses. ⁵

B. Alternatively, relying on article I, section 15 of the California Constitution, Acuna asserts California recognizes the separate and distinct state constitutional right of assistance of counsel at "critical stages," as well as the independent right against self-incrimination. ⁶

However, under the facts of this case, we need not determine whether Acuna was constitutionally entitled to the assistance of counsel when determining whether to waive his right to have deportable aliens retained as material witnesses. For even if independent state grounds apply, the Lujan-Castro waiver form advised him of his right to the assistance of counsel in determining whether to execute the waiver.

C. Finding the analysis in United States v. Lujan-Castro, supra, 602 F.2d at pages 878-879, persuasive regarding the validity of defendant's waiver of his right to retain deportable alien witnesses without the presence of counsel, the issue here evolves into whether law enforcement can seek a waiver of a defendant's right to the assistance of counsel at one "critical stage" immediately following defendant's request for the assistance of counsel within the context of another "critical stage," here a custodial interrogation. We conclude it can. Granted, within the Miranda context, once a suspect requests an attorney, law enforcement is prohibited from further conduct designed to extract a waiver of a suspect's rights to have an attorney present. (People v. Enriquez (1977) 19 Cal.3d 221, 238, 137 Cal.Rptr. 171, 561 P.2d 261.) Following the same underlying rationale, law enforcement would likewise be prohibited from seeking a waiver of one's right to the assistance of counsel in determining whether to release deportable alien witnesses once a defendant has specifically requested the assistance of counsel for help in that decision. However, it does not follow that law enforcement is prohibited from...