People v. Robert E. (77 Cal. App. 4th 557, 2000)

Opinion

CROSBY, Acting P. J.

The juvenile court found Robert E. committed perjury when he testified in his own defense in a previous trial. In this single-issue appeal, he claims the court erred in admitting his confession to perjury because it was allegedly obtained in violation of his Sixth Amendment right to counsel.

I

At a December 3, 1997 juvenile court hearing, Robert testified concerning charges of vandalism and assault with intent to cause great bodily harm (with an added gang enhancement). In his testimony Robert denied tagging a garage door with the moniker “FTTR Huero” on April 24, 1997, or writing anything on the garage door at all. He denied having “blue staining” on his hands when the police approached him that day and said the only “marker” in his possession was a ballpoint pen. Robert testified he did not have a gang nickname and was not even a member of a gang. He claimed all the officers who testified otherwise were lying. Nevertheless, the court found the allegations true and ordered Robert’s detention in a juvenile facility for 180 days.

At Los Piños Juvenile Detention Camp, Robert was visited by Fullerton Police Officer John Siko and Detective Choceck on February 12, 1998, some 43 days after the dispositional hearing. After a Miranda warning, they interviewed him concerning his December 3 testimony. (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974].) The boy admitted testifying falsely at the jurisdictional hearing.

A subsequent petition alleging perjury was filed in the juvenile court on February 25. A defense motion to exclude Robert’s confession on Sixth Amendment right to counsel grounds was denied, and Officer Siko testified concerning the Los Piños interview. The court found the perjury allegation true and sustained the petition.

II

Robert argues his Sixth Amendment right to counsel with respect to the assault and vandalism petition had not terminated when the officers interviewed him on February 12 and necessarily protected him from police questioning concerning the trial of those allegations. Thus, he claims, it was Massiah error for the court to admit his confession in the perjury hearing.

The Sixth Amendment right to counsel attaches when adversary proceedings are initiated (McNeil v. Wisconsin (1991) 501 U.S. 171, 175 [111 S.Ct. 2204, 2207, 115 L.Ed.2d 158]), but when precisely does it terminate? Robert argues the right to counsel extended at least through the 60-day time period to file an appeal (Cal. Rules of Court, rule 31(d)) because trial counsel had a duty to at least explore the possibility of filing a notice of appeal. (See Pen. Code, § 1240.1, subd. (b); People v. Scott (1998) 64 Cal.App.4th 550, 563-564 [75 Cal.Rptr.2d 315].) However, California case law is scarce on the

The longevity of a defendant’s Fifth Amendment right to counsel has been more thoroughly examined in this state’s jurisprudence. Generally, the Fifth Amendment right applies to postconviction statements as long as a defendant’s right to appeal has not expired. (People v. Fonseca (1995) 36 Cal.App.4th 631, 635 [42 Cal.Rptr.2d 525]; In re Courtney S. (1982) 130 Cal.App.3d 567, 573 [181 Cal.Rptr. 843]; see also People v. Webster (1971) 14 Cal.App.3d 739 [93 Cal.Rptr. 260].) In Fonseca a codefendant, who had pleaded guilty, was permitted to assert his Fifth Amendment privilege against self-incrimination to avoid testifying in the defendant’s trial. The court concluded, “the privilege expires when the time to file an appeal has passed with no notice of appeal filed.” (Fonseca, supra, at p. 637.)

We agree that where an attorney continues to have a duty to represent the interests of a defendant in continuing judicial proceedings the Sixth Amendment right to counsel is maintained as to that prosecution. As Cahill v. Rushen (E.D.Cal. 1980) 501 F.Supp. 1219, affirmed (9th Cir. 1982) 678 F.2d 791 explains, “The guarantee of counsel, in addition to assuring equality in trial-like adversary confrontations, prevents the accused from being misled by his lack of familiarity with the law. [Citations] Application of Massiah to post trial statements when an appeal is not final, will protect th[e] right to ‘counsel,’ ‘assistance,’ ‘advice,’ and ‘shelter’ [encompassed in the Sixth Amendment right to counsel]. Moreover, a refusal to apply Massiah to the present facts would also frustrate the goal of an appeal—a second trial uncontaminated by constitutional or other reversible error. Errors in the first trial would permit the introduction of evidence obtained in violation of the defendant’s properly construed Sixth Amendment rights in a second trial.” {