Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BA277019, Michael Johnson, Judge.
Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
Robert Luna appeals his conviction for first degree murder. He claims his confession to his parole officer was introduced at trial in violation of his Sixth Amendment rights. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
In January 2005, appellant shot and killed his half brother Edward Ramirez because he was jealous of Ramirez’s relationship with a particular woman. Appellant also killed Roger Martinez because he witnessed the murder of Ramirez. Appellant was subsequently arrested and charged with murder.
After charges had been filed, appellant was visited in jail monthly by his juvenile justice division parole officer, Lisa Flanagan, who had replaced his previous parole officer in March 2005. The purpose of her visits was to check on appellant’s health and safety and to confirm that he was still in custody. When Ms. Flanagan visited him in June 2005, appellant asked her to contact the district attorney’s office and tell them that he “did it.” She told him she did not think she should be talking with him about that, but he said he did not care and he wanted to “get it over with.” She contacted her supervisor after the visit, and he advised her to tell the district attorney what appellant had told her. She did so.
At trial, appellant moved to exclude his statement to Ms. Flanagan on the grounds that it was taken in violation of his right to counsel under the Sixth Amendment. The court ruled there was no Sixth Amendment violation, but excluded the statement under Evidence Code section 352 instead. Appellant subsequently testified on his own behalf, and the court allowed the introduction of his statement to Ms. Flanagan as impeachment evidence. Appellant was convicted and sentenced to life without possibility of parole. This appeal followed.
DISCUSSION
Appellant contends that the state impermissibly exploited an opportunity to confront him without the assistance of counsel, in violation of Massiah v. United States (1964) 377 U.S. 201 (Massiah), when Ms. Flanagan visited him in custody. We disagree. Appellant also argues that a statement taken in violation of the Sixth Amendment cannot be used for impeachment. Because we hold that there was no Sixth Amendment violation, we do not reach that issue.
Under Massiah, an accused is denied the basic protections of the Sixth Amendment “‘when there [is] used against him at his trial evidence of his own incriminating words, which federal agents . . . deliberately elicited from him after he had been indicted and in the absence of his counsel.’” (Fellers v. United States (2004) 540 U.S. 519, 523, quoting Massiah, supra, 377 U.S. at p. 206.) A Massiah violation occurs when the state obtains incriminating statements by knowingly circumventing the accused’s right to have counsel present in a confrontation between the accused and a state agent. (Maine v. Moulton (1985) 474 U.S. 159, 176 (Moulton).) The essential inquiry is whether the government intentionally created a situation likely to induce the accused to make incriminating statements without the assistance of counsel. (People v. Frye (1998) 18 Cal.4th 894, 993.)
Relying on Moulton, appellant maintains that the state knew or should have known that it was circumventing his right to counsel when Ms. Flanagan visited him in jail. In Moulton, the police fitted a codefendant with a recording device before he and the defendant met to discuss their impending trial. During their conversation, the defendant made several incriminating statements which were later used against him at trial. The Supreme Court held the police knowingly circumvented his Sixth Amendment right to counsel under Massiah. (Moulton, supra, 474 U.S. at p. 176.) The court also noted that “knowing circumvention” includes situations where the state must have known that its agent was likely to obtain incriminating statements in the absence of counsel. (Ibid., fn. 12.)
Appellant cites United States v. Henry (1980) 447 U.S. 264, 274 for the proposition that “the mere fact of custody imposes pressures on the accused; confinement may bring into play subtle influences that will make him particularly susceptible to the ploys of undercover Government agents.” Given the “pressures” and “subtle influences” he faced in custody, he argues, Ms. Flanagan should have known that she was likely to hear incriminating statements when she visited him. For support, appellant claims that the trial court “implicitly found [Ms. Flanagan’s] questioning could lead to incriminating statements.” He points to a comment by the trial court: “[w]hy is she there talking with him about matters that could invite comments about this case[?]”
The facts do not support appellant’s argument. “‘[W]e accept the trial court’s factual findings, based on its resolution of factual disputes, its choices among conflicting inferences, and its evaluations of witness credibility, provided that these findings are supported by substantial evidence.’” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 55, quoting People v. Mayfield (1997) 14 Cal.4th 668, 733 [issue arose in context of claimed violation of Miranda v. Arizona (1966) 384 U.S. 436].) The trial court found that Ms. Flanagan was visiting appellant as part of her official duties as a parole officer, and that his statement to her was unsolicited. She was responsible for meeting with him monthly in order to ensure that he was in custody and healthy. This involved asking him questions such as “how are you doing?” and “does your family visit you?” On her first visit in March 2005, she asked him if he wanted to talk about his case, and he said no. Thereafter, she did not ask him about his case or solicit any comments from him about it. At some point during her June visit, he spontaneously blurted out that he did it and he wanted to get it off his chest. She told him that he should not be talking to her about the matter, and she did not ask him any further questions about his case. Nothing else in the record suggests she tried to elicit statements from him about his case. Since there is substantial evidence to support the trial court’s factual finding, we will not disturb it on appeal.
In its proper context, the trial court’s comment does not imply what appellant claims. The trial court explicitly found that Ms. Flanagan “was not there with any intent to elicit any information from Mr. Luna about this case” and that “[h]is comments to her were unsolicited.” Appellant acknowledges this in his opening brief. In context, the court was explaining its reasons for initially excluding the statement under Evidence Code section 352. The full text of the court’s statement was:
“The defense objection is sustained. I will preclude Ms. Flanagan’s testimony. I do not find any Massiah violation or any infringement of Mr. Luna’s [Sixth] Amendment rights. I am satisfied that, although the reasons are difficult to understand, she was there following ordinary procedures. She was not there with any intent to elicit any information from Mr. Luna about this case. His comments to her were unsolicited. My ruling is based on Evidence Code [section] 352.
“In the first place, even as part of the June 21st conversation, the defendant is bringing up the concept of punishment; that it’s very serious. I think she said he was concerned about the penalty. I don’t recall if she said, but he mentioned the death penalty. It just seems to me if we open it up, that sort of thing will easily be presented to the jury. It can distract the jury. It can get them side-tracked.
“Also, it is – I think we’re just going to get all tangled up in why Ms. Flanagan was there. The defense would be entitled to get into that.
“I suppose I can understand there are some bureaucratic reasons for her to be there, but for anybody who doesn’t quite understand how government agencies like this work, I think it’s going to be very perplexing as to why she was there. She couldn’t really accomplish much. Why is she there talking with him about matters that could invite comments about this case?
“I think the defense would be entitled to get into that. We’re just going to get side-tracked into what her real purpose was there.”
The court was concerned that the jury would have difficulty understanding the “bureaucratic reasons” for Ms. Flanagan’s monthly visits, sidetracking the issues at trial. Whatever the court meant by the comment appellant cites, there was no Massiah violation because appellant blurted out his statement.
The Sixth Amendment is not violated whenever, by happenstance, the state obtains incriminating statements from the accused after the right to counsel has attached. (Kuhlmann v. Wilson (1986) 477 U.S. 436, 459.) Rather, the defendant must demonstrate that the police and their informant took some action, beyond merely listening, that was deliberately designed to elicit incriminating remarks. (Ibid.) Massiah applies only when incriminating statements are elicited by the state agent, rather than spontaneously made by the suspect. (People v. Lucero (1987) 190 Cal.App.3d 1065, 1068-1069.) Here, Ms. Flanagan did nothing to elicit anything incriminating from appellant; she merely heard what he said when he blurted it out. She then terminated the discussion.
Moreover, the circumstances under which Ms. Flanagan heard appellant’s statement do not suggest an attempt to get him to talk without counsel present. Prior to her June 2005 visit, she had no contact with either the police or the district attorney regarding his case. We do not read United States v. Henry, supra, 447 U.S. 264 for the proposition that being in custody rendered appellant so psychologically vulnerable that a mere monthly visit on legitimate business related to his parole constituted a ploy to pressure appellant into confessing.
Appellant’s case resembles People v. Arauz (1970) 5 Cal.App.3d 523 (Arauz) (disapproved on other grounds in People v. Chi Ko Wong (1976) 18 Cal.3d 698). In Arauz, the court held that there was no Massiah violation when Arauz’s confession to his parole officer was spontaneous, voluntary and not the product of any conduct designed to elicit a confession. (Arauz, at p. 530.) Following a juvenile hearing at which the parole officer testified, Arauz told him that he wished to speak to his mother. The officer took Arauz to a small room and allowed him to call his mother. Arauz had a brief conversation with her, then hung up and said “I killed him.” The officer immediately told Arauz that he had a right to a lawyer and that he did not have to say anything, but Arauz said his mother told him to tell the truth and he repeated his confession. The court noted that “[t]he fact appellant was suspected of involvement in other crimes did not terminate [the officer’s] relationship as a parole officer.” (Id. at p. 531.) “Certainly, [the officer] was not obliged to ignore appellant when he blurted, ‘I killed him,’ etc.” (Ibid.)
People v. Chi Ko Wong was overruled on other grounds in People v. Green (1980) 27 Cal.3d 1, which was abrogated on other grounds in People v. Martinez (1999) 20 Cal.4th 225.
As in Aruaz, the fact that appellant was being held for murder did not terminate Ms. Flanagan’s duty to check on his health and safety. Neither was she obliged to ignore him when he blurted, “I did it.” The circumstances in which she heard his confession gave rise to no Massiah violation.
Appellant also urges us to hold that a statement taken in violation of Massiah cannot be admitted even for impeachment of the defendant’s testimony. Our resolution of his Massiah claim obviates the need to consider that issue.
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, J., MANELLA, J.