However, the rule of Edwards applies to instances of continuous custody. Several Federal cases have determined that the police may initiate interviews with suspects after they are released from custody, quote: [']Courts of Appeal[s] have held that even when the police unlawfully ignore a defendant's request for counsel, subsequent confessions obtained from them, even if the police initiated the interrogation, are admissible if there has been an intervening break in custody.['] [( Dunkins v. Thigpen (11th Cir. 1988) 854 F.2d 394, 397; also McFadden v. Garraghty (4th Cir. 1987) 820 F.2d 654, 661; U.S. v. Fairman (7th Cir. 1987) 813 F.2d 117, 125; U.S. v. Skinner (9th Cir. 1982) 667 F.2d 1306, 1309.)] [¶] California recently found these cases were persuasive and adopted the same position. [( People v. Scaffidi (1992) 11 Cal.App.4th 145, 152 [ 15 Cal.Rptr.2d 167].)] Here, the minor was out of custody after May of 1995.
While the high court has never directly addressed whether a break in custody vitiates the Edwards no-recontact rule, California cases uniformly have held or assumed that the rule barring police recontact after a Miranda request for counsel applies only during continuous custody. ( In re Bonnie H. (1997) 56 Cal.App.4th 563, 579-585 ( BonnieH.); People v. Scaffidi (1992) 11 Cal.App.4th 145, 152-153 ( Scaffidi); see Cunningham, supra, 25 Cal.4th 926, 992-993 [citing McNeil]; Peoplev. Crittenden (1994) 9 Cal.4th 83, 128 [citing McNeil].
We will address the merits, infra, to the extent necessary to determine his claim of ineffective assistance of trial counsel. (People v. Ochoa (1998) 19 Cal.4th 353, 431; People v. Scaffidi (1992) 11 Cal.App.4th 145, 151 & fn. 2 (Scaffidi).) 3.
To forestall the claim of ineffective assistance of trial counsel, we will dispose of the contention on the merits. (People v. Scaffidi (1992) 11 Cal.App.4th 145, 151, fn. 2 (Scaffidi).) The court in Scaffidi explains that the test for ineffective trial counsel set out in Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693-699] (Strickland) involves two prongs: (1) to determine whether counsel failed to give reasonably effective assistance, and (2) to determine whether it is reasonably probable that a different outcome would have resulted had the attorney acted competently.
Nevertheless, to forestall a claim of ineffective assistance of trial counsel, we address the claim on the merits. (People v. Scaffidi (1992) 11 Cal.App.4th 145, 151.) b. The merits.
However, in order to forestall a claim of ineffective assistance of counsel, we consider that claim on the merits. (See People v. Scqffidi (1992) 11 Cal.App.4th 145, 151 [ 15 Cal.Rptr.2d 167].) 2. Riazati's instructional error claim is unavailing on the merits
Viewed individually, and as a whole, defendant's questions and statements did not constitute a sufficiently unequivocal invocation of his right to have an attorney present during questioning to require cessation of the interrogation. (See People v. Stitely (2005) 35 Cal.4th 514, 535-536 [ 26 Cal.Rptr.3d 1, 108 P.3d 182]; People v. Gonzalez (2005) 34 Cal.4th 1111, 1126-1127 [ 23 Cal.Rptr.3d 295, 104 P.3d 98]; People v. Sapp (2003) 31 Cal.4th 240, 268 [ 2 Cal.Rptr.3d 554, 73 P.3d 433]; People v. Cunningham (2001) 25 Cal.4th 926, 993 [ 108 Cal.Rptr.2d 291, 25 P.3d 519]; People v. Roquemore (2005) 131 Cal.App.4th 11, 24-25 [ 31 Cal.Rptr.3d 214]; People v. Scaffidi (1992) 11 Cal.App.4th 145, 152-154 [ 15 Cal.Rptr.2d 167]; U.S. v. De La Jara (9th Cir. 1992) 973 F.2d 746, 750; Robinson v. Borg (9th Cir. 1990) 918 F.2d 1387, 1391-1393; Shedelbower v. Estelle (9th Cir. 1989) 885 F.2d 570, 571-573.) Accordingly, defendant's statements were not the product of a Miranda violation and the trial court did not err in denying defendant's motion to exclude the statements on that ground.
We will assume the issue is cognizable and decide it on the merits to forestall appellant's alternative claim that trial counsel was ineffective if he failed adequately to preserve the issue. (See People v. Riel (2000) 22 Cal.4th 1153, 1192 [ 96 Cal.Rptr.2d 1, 998 P.2d 969]; People v. Lewis (1990) 50 Cal.3d 262, 282 [ 266 Cal.Rptr. 834, 786 P.2d 892]; People v. Scaffidi (1992) 11 Cal.App.4th 145, 150-151 [ 15 Cal.Rptr.2d 167]; People v. Yorba (1989) 209 Cal.App.3d 1017, 1026 [ 257 Cal.Rptr. 641].) 2. Analysis
Nevertheless, we exercise our discretion to address the constitutional issue on the merits to forestall the claim that Goerlich's counsel provided constitutionally ineffective assistance by failing to raise the issue at trial. (See, e.g., People v. Williams (2009) 170 Cal.App.4th 587, 621; People v. Scaffidi (1992) 11 Cal.App.4th 145, 151.) The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to be confronted with witnesses against him.
.S. at 176-177, 111 S.Ct. at 2208 (emphasis added and citations omitted).See United States v. Barlow, 41 F.3d 935-945-946 (5th Cir. 1994), cert. denied, 514 U.S. 1030, 115 S.Ct. 1389, 131 L.Ed.2d 241 (1995), and cert. denied sub nom. Lebaron v. United States, 514 U.S. 1087, 115 S.Ct. 1804, 131 L.Ed.2d 730 (1995); United States v. Hines, 963 F.2d 255, 256-257 (9th Cir. 1992); Dunkins v. Thigpen, 854 F.2d 394, 397-398 (11th Cir. 1988), cert. denied 489 U.S. 1059, 109 S.Ct. 1329, 103 L.Ed.2d 597 (1989); McFadden v. Garraghty, 820 F.2d 654, 661 (4th Cir. 1987); United States ex rel. Espinoza v. Fairman, 813 F.2d 117, 125 (7th Cir. 1987) cert. denied, 483 U.S. 1010, 107 S.Ct. 3240, 97 L.Ed.2d 745 (1987); United States v. Skinner, 667 F.2d 1306, 1309 (9th Cir. 1982), cert. denied, 463 U.S. 1229, 103 S.Ct. 3569, 77 L.Ed.2d 1410 (1983); United States v. Drake, 934 F. Supp. 953, 962 (N.D.Ill. 1996); United States v. Garey, 813 F. Supp. 1069, 1073 (D.Vt. 1993), aff'd, 19 F.3d 8 (2nd Cir. 1994); People v. Scaffidi, 11 Cal.App.4th 145, 15 Cal.Rptr.2d 167, 170-171 (Cal.App. 4th Dist. 1992, review denied); People v. Trujillo, 773 P.2d 1086, 1091-1092 (Colo. 1989); Gonzalez v. State, 449 So.2d 882, 886 (Fla.App. 3rd Dist. 1984), petition for review denied, 458 So.2d 274 (Fla. 1984); Keys v. State, 606 So.2d 669, 671-672 (Fla.App. 1st Dist. 1992); State v. Bymes, 258 Ga. 813, 375 S.E.2d 41, 41-42 (Ga. 1989); Wilson v. State, 264 Ga. 287, 444 S.E.2d 306, 309 (Ga. 1994), cert. denied, 513 U.S. 988, 115 S.Ct. 486, 130 L.Ed.2d 398 (1994); State v. Norris, 244 Kan. 326, 768 P.2d 296, 301-302 (Kan. 1989); State in Interest of Wells, 532 So.2d 191, 195-197 (La.App. 3rd Cir. 1988); Commonwealth v. Galford, 413 Mass. 364, 597 N.E.2d 410, 413-414 (Mass. 1992), cert. denied, 506 U.S. 1065, 113 S.Ct. 1010, 122 L.Ed.2d 158 (1993); Willie v. State, 585 So.2d 660, 666-667 (Miss.