People v. Avila

• Decision Date: 30 September 1999
• Docket Number: No. G022297.,G022297.
• Citation: 75 Cal.App.4th 416,89 Cal.Rptr.2d 320
• Parties: The PEOPLE, Plaintiff and Respondent, v. Gamaliel AVILA, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

89 Cal.Rptr.2d 320

75 Cal.App.4th 416

The PEOPLE, Plaintiff and Respondent, v. Gamaliel AVILA, Defendant and Appellant.

No. G022297.

Court of Appeal, Fourth District, Division 3.

September 30, 1999.

Rehearing Denied October 13, 1999.

Review Denied January 13, 2000.

Richard Jay Moller, Garberville, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Carl Horst and Craig S. Nelson, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

SILLS, P.J.

Gamaliel Avila was charged with attempted murder and related offenses¹ arising from a December 1996 shooting. While in custody following his arraignment, he confessed to an unrelated attack on a rival gang which occurred in November 1996. The prosecution responded by amending the original complaint to include charges from the earlier incident.² A jury found Avila guilty of all counts except the attempted murder.

On appeal, Avila asserts his statement regarding the November 1996 assault was taken in violation of his Miranda "right to counsel" and should have been suppressed. Based on the holdings of Miranda³ and its progeny, the prophylactic "right to counsel" stemming from the Fifth Amendment can be validly invoked by the suspect only when he is both in custody and under either the threat or influence of interrogation. Since Avila's Miranda rights were invoked long before the custodial interrogation resulting in his statement, his assertion was anticipatory and thus, meaningless.

Additionally, Avila contends a clerical error occurred in the abstract of judgment. As the Attorney General concedes the clerical error, the abstract of judgment must be modified to reflect the correct sentence of 18 years which was ordered by the court. Judgment affirmed as modified.

I Facts

In December 1996, police detective Brent Craft interviewed Avila, an admitted member of the Orange Krazy Malditos (OKM) gang, regarding a shooting incident that occurred the night before in which a woman was injured. Avila waived his Miranda rights and admitted he shot at the car but only intended to scare its occupants. A day later, Avila was arraigned on charges of attempted murder, shooting at an occupied motor vehicle and assault with a semiautomatic firearm.

The court appointed a public defender to represent Avila who tendered a written document invoking Avila's rights under the Fifth, Sixth and Fourteenth Amendments.⁴ Additionally, the clerk's minute order for that date displayed a stamp reading, "Defendant invokes the right to counsel and the right to remain silent."

A week after the filing of this form and while Avila was still in custody, Craft interviewed him again, regarding a separate, unrelated gang incident which took place on November 6, 1996. Avila did not ask to have his attorney present; moreover, he waived the Miranda rights again following Craft's recitation of them. Avila admitted that he, along with his OKM gang, were involved in the attack on Lloyd Madayag, a member of a rival gang.

The district attorney amended the complaint on January 24, 1997, to include counts arising from the November attack. At the jury trial, Avila was found not guilty of attempted murder but guilty of the lesser offense, shooting at an occupied motor vehicle, and all other counts and allegations. Avila was sentenced to 18 years.

II Discussion

Avila argues the police were prohibited from questioning him about any matter once his Fifth Amendment rights to counsel and against self-incrimination were invoked by his attorney at the arraignment. Avila contends his confession to Craft regarding the November 1996 assault should have been suppressed because it was taken after the invocation, in violation of what he refers to as his Fifth Amendment right to counsel.⁵

We note at the outset that a person's Fifth Amendment right to remain silent is a personal one; it cannot be vicariously asserted by counsel. (United States v. Nobles (1975) 422 U.S. 225, 233, 95 S.Ct 2160, 45 L.Ed.2d 141; see also Moran v. Burbine (1986) 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410; Fuentes v. Moran (D.R.I.1983) 572 F.Supp. 1461, 1469.) It is jurisprudentially untenable that an indirect protection of the right to remain silent— the Miranda right to counsel—can be vicariously invoked when the actual right cannot be. As we will set out, it cannot.

Prior to the passage of Proposition 8, the California Supreme Court regularly ruled the state's constitutional protections were broader than those founded on the federal constitutional rights protecting criminal defendants. As our Supreme Court explained in People v. Hannon (1977) 19 Cal.3d 588, 606, 138 Cal.Rptr. 885, 564 P.2d 1203, "[O]ur first referent is California law and the full panoply of rights Californians have come to expect as their due.... [D]ecisions of the United States Supreme Court defining fundamental civil rights are persuasive authority to be afforded respectful consideration...." In this paradigm, People v. Pettingill (1978) 21 Cal.3d 231, 145 Cal.Rptr. 861, 578 P.2d 108 was decided, reaffirming that any interrogation initiated by police officers after a defendant's invocation of any Miranda right is a constitutional violation. (Id. at pp. 238-241, 251, 145 Cal.Rptr. 861, 578 P.2d 108.)

Proposition 8 (Cal. Const., art. I, § 28, subd. (d)), however, abrogated the Pettingill rule, compelling California courts to apply only federal rules for exclusion of evidence under Miranda. (People v. Montana (1991) 226 Cal.App.3d 914, 930, 277 Cal.Rptr. 327; People v. Warner (1988) 203 Cal.App.3d 1122, 1126, 250 Cal. Rptr. 462.) Thus, the issue before us anew is whether under Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, an accused in custody on one charge can invoke his or her Miranda rights as to some other unrelated charge by a written "invocation of rights" form at an arraignment on the original charge. Based on the cases defining and clarifying Miranda, particularly the opinion of McNeil v. Wisconsin (1991) 501 U.S. 171, 111 S.Ct. 2204, 115 L.Ed.2d 158, we answer that question in the negative.

In Miranda, the Court sought to address the perils of custodial interrogation and "the evils it can bring." (Miranda v. Arizona, supra, 384 U.S. at p. 456, 86 S.Ct. 1602.) The Court's holding provided procedural safeguards to protect an accused's privilege against self-incrimination, specifically the right to remain silent and the right to consult with an attorney, while in custody. (Id. at pp. 478-479, 86 S.Ct. 1602.) The Court noted the "inherently compelling pressures" arising from custodial interrogation acting to "undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." (Id. at p. 467, 86 S.Ct. 1602.)

In Miranda, the Court sought to protect an accused's privilege against self-incrimination under the Fifth Amendment by incorporating certain aspects of the right to counsel into its crafted resolution to the problem of custodial interrogation. Under Edwards v. Arizona (1981) 451 U.S. 477, 484-485, 101 S.Ct. 1880, 68 L.Ed.2d 378, if Miranda rights are invoked by the suspect during custodial interrogation, police are precluded from any further discussion with an accused in custody unless he or she voluntarily approaches the police and initiates a discussion. In Arizona v. Roberson (1988) 486 U.S. 675, 687-688, 108 S.Ct. 2093, 100 L.Ed.2d 704, the Court extended the rule articulated in Edwards to prohibit custodial interrogation concerning all investigations, making an invocation of a suspect's Miranda rights non-offense specific.⁶

However, the latest statement on the related, but unconnected,⁷ Sixth Amendment right to counsel has diverged from such a broad interpretation. In McNeil v. Wisconsin, supra, 501 U.S. 171, 111 S.Ct. 2204, 115 L.Ed.2d 158, it was established the invocation of the Sixth Amendment's right to counsel does not trigger the Fifth Amendment's corollary right to counsel under Miranda. (McNeil v. Wisconsin, supra, 501 U.S. at pp. 173, 182, 111 S.Ct. 2204.) A footnote in the majority's decision stated, "[w]e have in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than `custodial interrogation'—which a preliminary hearing will not always, or even usually, involve.... Most rights must be asserted when the government seeks to take the action they protect against. The fact that we have allowed the Miranda right to counsel, once asserted, to be effective with respect to future custodial interrogation does not necessarily mean that we will allow it to be asserted initially outside the context of custodial interrogation, with similar future effect. Assuming, however, that an assertion at arraignment would be effective, and would be routinely made, the mere fact that adherence to the principle of our decisions will not have substantial consequences is no reason to abandon that principle." (Id. at p. 182, fn. 3, 111 S.Ct. 2204.)

This language, when coupled with the Court's consistency in holding that an invocation of the Miranda right to counsel must occur at the time of the custodial interrogation, undermines any attempt to assert the Miranda right to counsel at an arraignment. Such an act is ineffective to preclude officers from initiating a separate interrogation of the accused regarding unrelated crimes. Simply stated, the Miranda rights cannot be invoked except during the custodial interrogation against which they are being asserted.⁸ (Rhode Island v. Innis (1980)) 446 U.S. 291, 300-301, 100 S.Ct. 1682, 64 L.Ed.2d 297.) "The Fifth Amendment right identified in Miranda is the right to have counsel present at any custodial interrogation. Absent such interrogation, there would have been no infringement of the right that [the accused] invoked...." (Edwards v. Arizona, s...