THE PEOPLE, Plaintiff and Respondent, v. CHARLES CALEB HOUSTON, Defendant and Appellant, 42 Cal. 3d 595

Opinion GRODIN, J. On the basis of his confession and the transcript of his preliminary hearing, defendant was convicted in a court trial of selling cocaine (Health & Saf. Code, § 11352) and conspiracy to sell cocaine (Pen. Code, § 182). He was placed on probation with a condition that he serve nine months in jail. He urges that his confession should not have been admitted, even though he waived his Miranda rights, because the police thereafter held him incommunicado, deliberately keeping him ignorant that a lawyer retained by friends to assist him was at the police station attempting to consult with him.

A majority of the United States Supreme Court has recently concluded that such tactics do not contravene federal law. Nonetheless, we agree with defendant that the police conduct at issue here violated defendant’s Miranda rights as they apply in California, and also thwarted his separate California constitutional right of access to counsel at a “critical stage” of the proceedings against him. They vitiated defendant’s earlier waiver of counsel and rendered inadmissible any statements he made after his lawyer’s arrival at the station.

Like the trial court, we are unable to conclude beyond a reasonable doubt that defendant’s confession occurred before that time, Hence, it should have been excluded from evidence, and his conviction must be reversed. I. Facts On July 11, 1980, about 6 p.m., Walnut Creek police and state narcotics authorities arrested Robert Fitz-Stephens in a Gemco parking lot when he displayed two pounds of cocaine to an undercover agent who had agreed to purchase it. While purchase negotiations were proceeding, the police had twice followed Fitz-Stephens to a residence defendant shared with his fiancée, Patricia Jarvis.

During Fitz-Stephens’ second visit, in the late afternoon of July 11, defendant left the house and returned about 20 minutes later. Within a few moments, Fitz-Stephens departed and went directly to the Gemco lot where he was arrested with the cocaine. Persuaded that defendant had obtained the cocaine for Fitz-Stephens, the police arrested him shortly after 8 p.m. on July 11. They took him to the Walnut Creek police station and read him his Miranda rights, which he concedes he waived.

Sometime before about 9:20 p.m., defendant confessed in detail his involvement in the narcotics transaction and agreed to cooperate in “setting up" his supplier. Meanwhile, within minutes after defendant’s arrest, two friends, Michael Crosno and Crosno’s wife (who is Jarvis’s sister), had driven by defendant’s residence and noticed strange vehicles and people on the premises. They stopped and spoke briefly to Jarvis, who was still at the house but said she was also being taken into custody. Michael Crosno then called Attorney Brock Gowdy from a nearby pay phone.

Gowdy, a partner in the San Francisco law firm of Brobeck, Phleger and Harrison, knew both Crosno and defendant and had given defendant legal advice in the past. Crosno asked Gowdy if he would represent defendant and Jarvis. Gowdy agreed. Gowdy testified he called the Walnut Creek station at 8:40 p.m. and spoke with Sergeant Hennefer, who was one of the interrogating officers. Gowdy said he identified himself as an attorney and asked to speak to defendant and Jarvis. He requested that nothing further occur until he came to the station and said he would arrive shortly.

According to Gowdy, Hennefer said he was “not sure” defendant and Jarvis were there, but if they were, he would relay the message. Gowdy arrived at the station about 9p.m. He spoke, among others, with Hennefer and Eugene Williams, a state narcotics agent who was also involved in questioning defendant. Gowdy testified that he again identified himself as an attorney representing defendant and Jarvis; he asked to see them immediately. He was told questioning was not complete and was not permitted to speak to defendant for over an hour.

Defendant was not told during this period that Gowdy had called or come to the station. The trial court found beyond doubt that defendant’s confession was voluntary. It also accepted that Gowdy had called and come to the Walnut Creek police station on the night of July 11. It determined, however, that it “[did] not know” whether defendant’s confession came before or after Gowdy’s attempted intervention. “If,” said the court, “it must be proved by the People beyond a reasonable doubt and to a moral certainty, that inculpatory statements were completed before that occurred, the People have failed their burden.” II.

Discussion Defendant claims the police thwarted his constitutional right of access to his lawyer by rebuffing retained counsel’s efforts to see him and by failing to inform him that the attorney was at the station seeking to consult with him. A majority of courts have so held on similar facts.

These authorities conclude that when the police intentionally separate a suspect under interrogation from his lawyer who is trying to reach him, they interfere with the attorney-client relationship and directly breach the constitutional right to the assistance of retained or appointed counsel at all critical stages of a criminal prosecution. Further, the cases suggest, such tactics violate Miranda's premise that access to counsel during a custodial interrogation, unless freely and knowingly waived, is a necessary adjunct to the privilege against self-incrimination.

In May 1964, the United States Supreme Court first concluded that the Sixth Amendment right to counsel extended to “critical” pretrial phases of a criminal proceeding. (Massiah v. United States (1964) 377 U.S. 201, 204-206 [12 L.Ed.2d 246, 249-251, 84 S.Ct. 1199].) A month later, the court decided that police violated the right to counsel when they denied the request of a suspect under “accusatory” interrogation to consult with a retained lawyer who had come to the station to see him. (Escobedo v.

Illinois (1964) 378 U.S. 478, 486-492 [12 L.Ed.2d 977, 983-987, 84 S.Ct. 1758].) Even though criminal charges had not yet been filed, the court noted, the police had interfered with defendant’s access to his counsel “‘at the only stage where legal aid and advice could help him.’” (Id., at pp. 484-485 [12 L.Ed.2d at p. 982], quoting Massiah, supra, at p. 204 [12 L.Ed.2d at p. 249], which in turn quoted Spano v.

New York (1959) 360 U.S. 315, 326 [3 L.Ed.2d 1265,1273,79 S.Ct. 1202] [cone. opn. of Douglas, J.].) Though the high court limited Escobedo to its facts, this court quickly applied its reasoning to conclude that the Sixth Amendment required the police to advise a yet-uncharged suspect under “accusatory” interrogation of his right to a lawyer, appointed if necessary. (People v. Dorado (1965) 62 Cal.2d 338, 353-354 [42 Cal.Rptr. 169, 398 P.2d 361].) Shortly after Dorado was decided, the United States Supreme Court issued its landmark decision in Miranda.

There the court ruled that an absolute right of access to counsel during an “inherently coercive” custodial interrogation is “indispensable” to protection of the Fifth Amendment privilege against self-incrimination. (384 U.S. at pp. 468-469 [16 L.Ed.2d at p. 720].) Miranda reasoned that the lawyer’s presence reinforces for the accused his right to silence in a way that formalistic warnings by adversary interrogators cannot. (Id., at p. 470 [16 L.Ed.2d at p. 721].) It assures him informed advice on whether to waive or exercise the privilege of silence. (See Fare v.

Michael C. (1979) 442 U.S. 707, 719 [61 L.Ed.2d 197, 208, 99 S.Ct. 2560], rehg. den., 444 U.S. 887 [62 L.Ed.2d 121, 100 S.Ct. 186].) And it minimizes the possibility that any subsequent confession will be involuntary, untrustworthy, or inaccurately reported at trial. (Miranda, supra, at p. 470 [16 L.Ed.2d at p. 721], see also Michael C., supra, at p. 719 [61 L.Ed.2d at pp. 208-209].) Because of the attorney’s “unique” and “critical” role during custodial questioning (Michael C., supra), Miranda required “fully effective means” of ensuring the suspect’s right of access to counsel.

The authorities must advise the individual before questioning of the rights to silence and to counsel, appointed if necessary. (384 U.S. at pp. 444, 471-473 [16 L.Ed.2d at pp. 706-707, 721-723].) Even if the suspect expressly waives these rights, as he must before questioning can proceed without counsel, he must be assured “a continuous opportunity” to invoke or reinvoke them.

Thus “[i]f... he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no [further] questioning” until a lawyer is provided. (Id., at pp. 444-445 [16 L.Ed.2d at p. 707], italics added; Edwards v.

Arizona (1981) 451 U.S. 477, 484-485 [68 L.Ed.2d 378, 386, 101 S.Ct. 1880], rehg. den., 452 U.S. 973 [69 L.Ed.2d 984, 101 S.Ct. 3128].) “Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.” (Miranda, supra, at p. 474 [16 L.Ed.2d at p. 723].) No statement obtained during a custodial interrogation is admissible unless the rights to silence and counsel were waived “voluntarily, knowingly, and intelligently.” (Id., at p. 444 [16 L.Ed.2d at p. 707]; see Escobedo, supra, 378 U.S. at p. 490, fn. 14 [12 L.Ed.2d at p. 986]; Johnson v.

Zerbst (1938) 304 U.S. 458, 464 [82 L.Ed. 1461,1466, 58 S.Ct. 1019,146 A.L.R. 357].) The basic Miranda warnings are an absolute prerequisite to a voluntary, knowing, and intelligent waiver in most cases, but they are not necessarily sufficient. As Miranda noted, “any evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege.” (384 U.S. at p. 476 [16 L.Ed.2d at p. 725], italics added.) An additional comment in Miranda also bears directly on the issue before us.

Analyzing the importance of counsel’s presence to help “dispel the compelling atmosphere of [a custodial] interrogation,” the Miranda majority recalled that the police in Escobedo had actually “heightened [the suspect’s] dilemma” by denying his express requests for counsel. Moreover, the court observed, “[t]he police also prevented the attorney [in Escobedo] from consulting with his client.

Independent of any other constitutional proscription, this action constitutes a violation of the Sixth Amendment right to the assistance of counsel and excludes any statement obtained in its wake. [Citation.]” (Miranda, supra, 384 U.S. at pp. 465-466, fn. 35 [16 L.Ed.2d at pp. 718-719], italics added.) Applying these principles, at least 12 state courts and 1 United States Court of Appeals panel have concluded at a minimum that when law enforcement officers thwart a suspect’s access to an attorney whom they know is legitimately attempting to consult with him, the suspect’s waiver of counsel is void, and his subsequent statements are inadmissible.

Even before Escobedo, the New York Court of Appeals, applying a Miranda-like analysis, had concluded as a matter of state law that the police may not prevent a lawyer retained by family or friends from consulting with a suspect under interrogation. (People v.

Donovan (1963) 13 N.Y.2d 148 [193 N.E.2d 628, 629].) Donovan was cited with apparent approval in Escobedo. (378 U.S. at pp. 486-487 [12 L.Ed.2d at pp. 983-984].) After Miranda, the New York courts ruled that its protections, and those provided by Donovan, supra, could only be implemented if, “[o]nce an attorney enters the proceeding,” the suspect is permitted to reconsider his waiver in counsel’s presence. (People v. Hobson (1976) 39 N.Y.2d 479 [348 N.E.2d 894, 897]; People v.

Arthur (1968) 22 N.Y.2d 325 [239 N.E.2d 537, 539].) Other courts have not adopted New York’s later rule that the suspect must consult with any lawyer who seeks to enter the case. However, the great preponderance agree that, even after a Miranda waiver, the suspect’s continuing right to the assistance of retained or appointed counsel, if he so desires, prevents the authorities, who are responsible for his isolation, from employing tactics intended to interfere with the attorney-client relationship. (Burbine v. Moran (1st Cir. 1985) 753 F.2d 178, 187; Lodowski v.

State (1985) 302 Md. 691 [490 A.2d 1228, 1237-1244]; Elfadl v. State (1985) 61 Md.App. 132 [485 A.2d 275, 280], cert. den. (1986) — U.S. — [89 L.Ed.2d 715, 106 S.Ct. 1457]; Haliburton v. State (Fla. 1985) 476 So.2d 192, 193-194; Lewis v. State (Okla.Crim.App. 1984) 695 P.2d 528, 530; Weber v. State (Del. 1983) 457 A.2d 674, 685-687; People v. Smith (1982) 93 Ill.2d 179 [442 N.E.2d 1325, 1329], cert. den. (1983) 461 U.S. 937 [77 L.Ed.2d 312, 103 S.Ct. 2107]; State v. Matthews (La. 1982) 408 So.2d 1274, 1278; State v.

Haynes (1979) 288 Ore. 59 [602 P.2d 272, 278], cert, den. (1980) 446 U.S. 945 [64 L.Ed.2d 802, 100 S.Ct. 2175]; State v. Jones (1978) 19 Wn.App. 850 [578 P.2d 71, 73]; Davis v. State (Fla.App. 1973) 287 So.2d 399, 400; Commonwealth v. McKenna (1969) 355 Mass. 313 [244 N.E.2d 560, 566]; see also Commonwealth v. Hilliard (1977) 471 Pa. 318 [370 A.2d 322, 324] [pl. opn.].) The decisions invoke both Miranda and the independent right to assistance of counsel as rationales for their results.

A frequent theme is that, by withholding information “vital” to the suspect’s decision whether to seek counsel’s advice, the authorities have ensured that his Miranda waiver is not knowing and intelligent. (E.g., Weber, supra, at p. 685; Smith, supra, at p. 1329; Matthews, supra, at p. 1278; Jones, supra, at p. 73; see particularly Haynes, supra, at p. 278.) At the least, these decisions recognize that where the police mislead or bar the suspect’s attorney, while keeping the suspect ignorant that he has available counsel, they engage in an unconscionable evasion of his absolute right to consult with his available lawyer. (See, e.g., Burbine v.

Moran, supra, 753 F.2d at p. 187 [“deliberate or reckless misleading of an attorney . . . combined with a police failure” to inform the suspect]; Haynes, supra, at pp. 278-279 [“police interference with consultations between defendant and an attorney ‘constitutes a violation of the [constitutional] right to the assistance of counsel . . .’” (quoting Miranda, supra, at fn. 35)]; Jones, supra, at pp. 72-73 [condemning “custodial interrogation ... in planned absence of counsel” and holding that retained lawyer cannot be denied reasonable access to client]; McKenna, supra, at pp. 566-567 [suspect’s “‘implied waiver’ of his right to counsel did not survive the refusal of the police to admit counsel to him or ... to inform him that counsel were present”].) In Moran v.

Burbine (1986) 475 U.S. 412 [89 L.Ed.2d 410, 106 S.Ct. 1135], a majority of the United States Supreme Court has rejected the predominant lower-court view. There, an assistant public defender, Ms. Munson, was retained by the sister of a suspect taken into custody late the same afternoon on suspicion of burglary. Munson immediately telephoned the police station, and a male voice answered “Detectives.” Munson announced that she represented the suspect, Burbine, and wished to speak to him before any questioning. She was told the police were “through with” Burbine for the day.

Lulled by this representation, Munson did not go to the station. Meanwhile, the police read Burbine his Miranda rights but did not tell him that counsel had been retained or had attempted to reach him. After a Miranda waiver was obtained, interrogation began. During the evening, Burbine confessed to a murder. A divided Rhode Island Supreme Court affirmed Burbine’s conviction, holding that the police had no duty under Miranda to advise him of counsel’s availability or to honor Munson’s request for access.

Moreover, the court concluded, there was no convincing evidence of a purposeful, collusive attempt to deceive Munson. (State v. Burbine, supra, 451 A.2d at pp. 29-30.) The United States District Court denied Burbine’s petition for habeas corpus, but the First Circuit Court of Appeals reversed. The appeals court reasoned that the police had deprived Burbine of information “crucial” to his decision whether to consult counsel.

By keeping Burbine in ignorance, and by their “blameworthy” misrepresentation to Munson, the police had undermined any claim that Burbine’s Miranda waiver was knowing and voluntary. (Burbine v. Moran, supra, 753 F.2d at pp. 184-187.) The Supreme Court granted certiorari and reversed the court of appeals. In a six-to-three decision, it held that federal law is satisfied when a suspect in preindictment custody understands and voluntarily waives his rights to remain silent, to prevent or stop questioning, and to consult counsel before and during questioning.

Unless the suspect requests counsel, the police need not inform him that a lawyer has been retained for him, nor need they allow the lawyer access to a suspect who has not asked for assistance. Justice O’Connor’s majority opinion reasoned that a suspect’s mere ignorance of events outside the interrogation room cannot influence or vitiate his voluntary decision to forego counsel and answer questions, so long as he is not coerced and fully comprehends the information included in the Miranda warning.

The majority acknowledged that the police may act unethically when they withhold information from the suspect or interfere with counsel’s attempts at communication.

However, it concluded, such misconduct is not the kind of “trick[ery]” which Miranda condemned as fatal to a valid waiver. (475 U.S. at p. —[89 L.Ed.2d at p. 423].) Miranda's, “subtle balance” between the interests of law enforcement and the suspect’s Fifth Amendment rights against self-incrimination would be undone, said Justice O’Connor, if the police were required to delay or interrupt questioning so that a suspect who had waived his Miranda rights could decide whether to speak with a lawyer retained for him by others. (Id., at p. — [89 L.Ed.2d at p. 424].) The majority also expressly rejected the claim that the independent Sixth Amendment right to counsel precludes police interference with the relationship between a retained lawyer and his client in custody.

The court reasoned as follows: Despite some contrary implications in Escobedo and Miranda, it is now settled that the Escobedo-Miranda rule rests solely on Fifth Amendment principles; Sixth Amendment rights attach only upon the filing of formal criminal charges. This is so regardless of whether counsel is retained or appointed. The Sixth Amendment right is to the assistance of a lawyer in adversary criminal proceedings.

It does not depend on the “fortuity” that counsel has been retained, nor does it protect a particular attorney-client relationship prior to formal charging. (Id., at pp.-- [89 L.Ed.2d at pp. 425-428].) Finally, the majority concluded, no federal due process violation had occurred on the facts before the court.

Even if the police had deceived Burbine’s lawyer to prevent her from reaching him before questioning, their conduct was not so egregious as to “[shock] the sensibilities of civilized society [and] warrant a federal intrusion into the criminal processes of the States.” (Id., at pp.-- [89 L.Ed.2d at pp. 428-429].) In a searing and scholarly dissent, Justices Stevens, Brennan, and Marshall took sharp issue with each of the majority’s premises. First, the dissent noted, Miranda had sprung from the traditional Anglo-American recognition that incommunicado police interrogation is inherently coercive.

For this reason, the government bears a heavy burden in showing that a suspect held for questioning by the authorities has waived his rights to silence and counsel voluntarily, and with full comprehension of the consequences. Miranda itself acknowledged that the warning it requires is essential to a valid waiver but may not be enough. Under Miranda, “[t]rick[ery]” or “cajol[ery]” by the police vitiate the requirements of voluntariness and full comprehension, even where the suspect heard a Miranda warning and purported to waive his rights.

There is no principled basis, the dissent urged, for distinguishing between police lies and police omissions, to the extent both bear critically on the wisdom of a decision to waive counsel. (Id., at pp.-- [89 L.Ed.2d at pp. 441-443].) Second, the dissent observed, the majority’s “balancing of interests” analysis was flawed. Any rule, such as Miranda, which gives effect to the suspect’s right to choose counsel carries the risk that the lawyer, once chosen, will persuade him not to talk. Yet we do not deny crucial rights and protections for fear that they will be used.

The majority, said the dissent, saw a compelling state interest in the very sort of lawyer-free “incommunicado interrogation” which Miranda deemed suspect. (Id., at pp.-- [89 L.Ed.2d at pp. 444-446].) Third, the dissent argued, the majority had overstated the case in suggesting that Miranda was intended as a final clarification of the limits on custodial interrogation. On the contrary, wrote Justice Stevens, that decision sought to clarify a suspect’s minimum rights in police custody and to assist courts in determining the voluntariness of confessions.

The majority’s conclusions represented a retreat from these minimum standards. (Id., at pp. — — [89 L.Ed.2d at pp. 446-447].) Fourth, the police efforts to mislead counsel in order to prevent communication with her client were tantamount to a deception of the client himself.

They abrogated his undisputed right, under either the Fifth or Sixth Amendment, to have access to a lawyer already retained. (Id., at pp. — — [89 L.Ed.2d at pp.,447-449].) Finally, the dissent asserted, “police interference in the attorney-client relationship is the type of governmental misconduct on a matter of central importance to the administration of justice that the Due Process Clause prohibits. . . .” As the police cannot lie to a suspect or conceal exculpatory evidence, “so [they] cannot conceal from [him] the material fact of his attorney’s communication.” Such conduct “violates the due process requirement of fundamental fairness.” (Id.., at pp. -- [89 L.Ed.2d at pp. 450-451].) “This case,” the dissent concluded, “turns on a proper appraisal of the role of the lawyer in our society.

If a lawyer is seen as a nettlesome obstacle to the pursuit of wrongdoers—as in an inquisitorial society—then the Court’s decision today makes a good deal of sense.

If a lawyer is seen as an aid to the understanding and protection of constitutional rights—as in an accusatorial society—then today’s decision makes no sense at all.” (Id., at p. — [89 L.Ed.2d at p. 451].) By its terms, Burbine leaves the states free to “[adopt] different requirements for the conduct of [their] employees and officials as a matter of state law. . . .” (Id., at p. — [89 L.Ed.2d at p. 425].) It is settled beyond debate, of course, that our state Constitution is “a document of independent force” (People v.

Brisendine (1975) 13 Cal.3d 528, 549-550 [119 Cal.Rptr. 315, 531 P.2d 1099]); unless a contrary intent is apparent, its guarantees “are not dependent on those [provided] by the United States Constitution.” (Cal. Const., art. I, § 24.) We sit as a court of last resort on the meaning of California’s Declaration of Rights. Our decisions cannot limit federal guarantees, but restrictive federal

interpretations of the United States Constitution do not preclude a finding that the Constitution of our state accords its citizens greater individual rights. (Pettingill, supra, 21 Cal.3d at p. 248.) Indeed, in the federal system, state charters offer important local protection against the ebbs and flows of federal constitutional

interpretation. (Bustamante, supra, 30 Cal.3d at p. 97; see, e.g., Mosk, The State Courts, in American Law: The Third Century (Schwartz edit.) 213, 217-220.) We do not depart lightly from clear United States Supreme Court rulings. The high court’s decisions defining fundamental rights and liberties are entitled to “respectful consideration.” But they are to be followed in California “only where they provide no less individual protection than is guaranteed by California law.” (People v.

Longwill (1975) 14 Cal.3d 943, 951, fn. 4 [123 Cal.Rptr. 297, 538 P.2d 753].) In appropriate cases, we have forthrightly rejected adherence to United States Supreme Court precedent (see fn. 2, ante), even where it was necessary to overrule our own prior decision adopting the federal rule. (Disbrow, supra, 16 Cal.3d at p. 106 et seq.) Applying these principles, we find ourselves unpersuaded by the majority opinion in Burbine.

For purposes of the California Constitution, we adhere in general to the reasoning adopted by the Burbine dissent, the American Bar Association (ABA), and the overwhelming majority of state courts which have addressed the issue. We therefore hold that, whether or not a suspect in custody has previously waived his rights to silence and counsel, the police may not deny him the opportunity, before questioning begins or resumes, to meet with his retained or appointed counsel who has taken diligent steps to come to his aid.

If the lawyer comes to the station before interrogation begins or while it . is still in progress, the suspect must promptly be told, and if he then wishes to see his counsel, he must be allowed to do so. Moreover, the police may not engage in conduct, intentional or grossly negligent, which is calculated to mislead, delay, or dissuade counsel in his efforts to reach his client. Such conduct constitutes a denial of a California suspect’s Miranda rights to counsel, and his independent right to assistance of counsel, and it invalidates any subsequent statements.

In the main, Justice Lucas’s dissent is an able statement of the United States Supreme Court majority’s reasoning in Burbine. We recognize, as did the Burbine dissent, that the issue in this case forces a choice between two irreconcilable views of a suspect’s rights to counsel and against self-incrimination. The pros and cons of each have been set forth at length; for the most part, we need not rehash them in the context of Justice Lucas’s opinion. Certain of the dissent’s observations, however, deserve comment.

The dissent urges that our ruling is unworkable since, even if a lawyer presents himself in person at the station, the police have only his word that he is an attorney with authority to represent the suspect. That hardly seems an insurmountable problem. A member of the State Bar is issued a card which identifies him as such, and any misrepresentation by an attorney is subject to discipline. (See Bus. & Prof. Code, §§ 6104, 6106.) Like the First Circuit, we foresee “no real danger of an influx of volunteering attorneys with no past or present relationship to the client. . . .” (Burbine v.

Moran, supra, 753 F.2d at p. 187.) The dissent suggests that our holding is somehow “unfair”—apparently because it denies “equal protection” to unrepresented suspects. He posits that our rule will benefit only affluent, sophisticated defendants whose retained counsel happen to arrive at the station soon enough to prevent inculpatory statements. (See also Kamisar, Brewer v. Williams, Massiah, and Miranda: What is “Interrogation” ?

When Does It Matter?, in Police Interrogation and Confessions (Kamisar edit. 1980) pp. 139, 220-221.) We fail to see, however, how an individual enmeshed in custodial interrogation can be kept from his own lawyer, retained or appointed, simply because other suspects under questioning do not yet have attorneys. The doctrine of equal protection is society’s shield against discriminatory treatment by the authorities. It is not a sword with which the authorities may deprive the accused of his counsel’s assistance.

At bottom, the dissent accuses us of “bad policy” in formulating a rule which is impractical, open to abuse, and “unfair” both to law enforcement and to unrepresented suspects. But a contrary result would encourage the police to emasculate Miranda and the constitutional right to counsel. California law enforcement agents would not fail to comprehend that, once a formally correct Miranda waiver had been obtained, they were free to interrogate a suspect in isolation, taking any necessary steps to prevent him from having contact with his own lawyer.

To conclude that vital rights can be so easily denied would be “bad policy” of the most basic kind. Finally, we do not accept the premise that defendant’s statements should be admissible if the “totality of circumstances” suggests he would have declined his lawyer’s offer of assistance.

When the suspect has the right to assistance of counsel, direct denial of that right always invalidates a subsequent confession, whether or not there is evidence that the suspect would have availed himself of its benefits. (See, e.g., Massiah, supra, 377 U.S.at p. 207 [12 L.Ed.2d at p. 251 ],Dorado, supra, 62 Cal.2d at pp. 353-354.) Moreover, as Miranda suggested, “any” evidence of police deception to induce a waiver of counsel will vitiate the waiver. (384 U.S. at p. 476 [16 L.Ed.2d at p. 725].) The same must be said for deception designed to prevent revocation of the waiver. “When the opportunity to consult counsel is in fact frustrated, there is no room for speculation what defendant might or might not have chosen to do after he had that opportunity.” (Haynes, supra, 602 P.2d at p. 280.) We apply these principles to the facts at hand.

Attorney Gowdy, retained by defendant’s friends, immediately called the station to ask that questioning cease until he could consult with his client. According to his testimony, he spoke to one of the interrogating officers, who claimed not to know whether defendant was at the station but promised to tell defendant of counsel’s entry into the case. Neither of these representations was true. Nonetheless, Gowdy came directly to the station, where he was denied access to defendant. Defendant was never told of Gowdy’s presence.

This course of conduct by the police directly thwarted defendant’s right of access to his counsel, who had taken every diligent step to assist him. The trial court employed the reasonable-doubt standard to determine whether defendant had completed his inculpatory statement before the police embarked on the conduct here condemned. We conclude it did so correctly.

Because of the importance of ensuring that coerced confessions are not admitted, and because of the tendency, under a preponderance-of-evidence standard, to accept the authorities’ self-serving account of events over the suspect’s, we have ruled that the reasonable doubt standard applies to the determination whether a confession was voluntary. (People v. Jimenez (1978) 21 Cal.3d 595, 602-608 [147 Cal.Rptr. 172, 580 P.2d 672]; see also People v.

Murtishaw (1981) 29 Cal.3d 733, 753 [175 Cal.Rptr. 738, 631 P.2d 446], cert. den. (1982) 455 U.S. 922 [71 L.Ed.2d 464, 102 S.Ct. 1280].) We think similar principles bear on a finding whether a confession was obtained in violation of the right to counsel. The court below found it could not say beyond a reasonable doubt that defendant’s interrogation had ceased before Attorney Gowdy arrived at the Walnut Creek station.

We cannot upset this finding of fact unless it is palpably erroneous. (See In re Eric J. (1979) 25 Cal.3d 522, 527 [159 Cal.Rptr. 317, 601 P.2d 549].) The most the record discloses with certainty is that the questioning was complete by about 9:20 p.m., when defendant made his first “set-up” call to his alleged supplier. Agent Williams, the principal interrogator, testified that he first saw defendant within a few minutes after the 8 p.m. arrest, and that “[f]rom the time I saw him until the time I completed [was] ...

I would say approximately total, 30, 35 minutes.” But defendant’s testimony suggests that the interview may not have begun until around 8:30, after which there was a further delay while Williams arranged for a search of defendant’s house pursuant to his consent. Gowdy arrived at 9 p.m. and was told he could not see defendant because they were “still talking” to him. Defendant testified he did see Gowdy after the questioning but before he made the telephone calls. Thus, the People have failed to show beyond a reasonable doubt that questioning was complete before Gowdy’s arrival.

His confession was therefore inadmissible, and his conviction must be overturned. Our analysis makes it unnecessary to address defendant’s remaining contentions. The judgment is reversed. Mosk, J., and Reynoso, J., concurred. Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]. The procedures required by Miranda and its progeny are deemed necessary to protect the privilege against self-incrimination set forth in both the state and federal Constitutions. The California provision, contained in

article I,

section 15 of our Constitution, declares that “[p]ersons may not... be compelled in a criminal cause to be a witness against themselves . . . .” We have not been bound by federal

interpretations of Miranda when applying it in the context of the state constitutional privilege. (See, e.g., People v. Pettingill (1978) 21 Cal.3d 231, 246-252 [145 Cal.Rptr. 861, 578 P.2d 108]; People v. Disbrow (1976) 16 Cal.3d 101, 113 [127 Cal.Rptr. 360, 545 P.2d 272].)

Article I,

section 15 also separately guarantees that “[t]he defendant in a criminal cause has the right... to have the assistance of counsel for the defendant’s defense . . . .” Again, we have given force to this language independent of the corresponding provision of the federal Constitution. (See, e.g., People v. Bustamante (1981) 30 Cal.3d 88, 102 [177 Cal.Rptr. 576, 634 P.2d 927].) Application of the exclusionary rule in this case is not affected by Proposition 8 (see Cal. Const., art.

I, § 28, subd. (d), as adopted by Initiative on June 8, 1982), since the conduct on which the criminal charge is based is alleged to have occurred well before the passage of the initiative. (See People v. Smith (1983) 34 Cal.3d 251, 262-263 [193 Cal.Rptr. 692, 667 P.2d 149].) Gowdy said he told both the desk clerk and a uniformed officer she sent for that he was a lawyer “representing” defendant and Jarvis. Both Williams and Hennefer testified that Gowdy claimed to be present only as a family friend.

Two years later, citing footnote 35, the court again condemned the police practice of interrogating a suspect in isolation from attorneys who were attempting to consult with him. In Darwin v. Connecticut (1968) 391 U.S. 346 [20 L.Ed.2d 630, 88 S.Ct. 1488], the court concluded that a confession obtained before the decision in Escobedo and Miranda had been coerced.

It noted that the suspect had been held incommunicado for 30 to 48 hours before he made the inculpatory statements; the court particularly emphasized that “[t]he denial of access to counsel and the outside world continued throughout,” though “petitioner’s lawyers made numerous attempts to communicate with petitioner or with the officer in charge. (Cf., Escobedo . . ., Miranda . . ., supra, at 465, n. 35.). . .” (P. 349 [20 L.Ed.2d at p. 633].) The United States Supreme Court granted certiorari in Burbine and has recently reversed the court of appeals’s decision.

The Supreme Court opinions in Burbine are discussed in greater detail below. Lodowski, decided on federal grounds, was vacated by the United States Supreme Court and remanded for consideration in light of Burbine. (Maryland v. Lodowski (1986) — U.S. — [89 L.Ed.2d 711, 106 S.Ct. 1452], on remand Lodowski v. State (1986) 307 Md. 233 [513 A.2d 299].) See also State v. Jackson (La. 1974) 303 So.2d 734, 736-737.) See also Com. v. Sherman (1983) 389 Mass. 287 [450 N.E.2d 566, 570-571]; Commonwealth v.

Mahnke (1975) 368 Mass. 662 [335 N.E.2d 660, 678], cert. den. (1976) 425 U.S. 959 [48 L.Ed.2d 204, 96 S.Ct. 1740]; compare Com. v. Bradshaw (1982) 385 Mass. 244 [431 N.E.2d 880, 893]; Com. v. Hooks (1978) 375 Mass. 284 [376 N.E.2d 857, 864], “To pass up an abstract offer to call some unknown lawyer is very different from refusing to talk with an identified attorney actually available to provide at least initial assistance and advice. ...

A suspect indifferent to the first offer may well react quite differently to the second.” A smaller number of cases from other jurisdictions have concluded that the police violated no rights to counsel when they failed to assist a lawyer’s efforts to locate a suspect under interrogation or to advise the suspect of the attorney’s inquiries. (Fuentes v. Moran (1st Cir. 1984) 733 F.2d 176, 179-181; Hance v. Zant (11th Cir. 1983) 696 F.2d 940, 947, cert, den., 463 U.S. 1210 [77 L.Ed.2d 1393, 103 S.Ct. 3544]; State v. Burbine (R.I. 1982) 451 A.2d 22, 28, vacated on this issue, Burbine v.

Moran, supra, 753 F.2d 178, 187; Blanks v. State (1985) 254 Ga. 420 [330 S.E.2d 575, 579]; State v. Beck (Mo. 1985) 687 S.W.2d 155, 158159; State v. Blanford (Iowa 1981) 306 N.W.2d 93, 96; State v. Chase (1978) 55 Ohio St.2d 237 [378 N.E.2d 1064, 1070].) The majority specifically disclaimed a broad reading of language in Escobedo and Miranda which suggested that interference with an attorney’s attempts to reach his client necessarily violates the client’s constitutional rights. The Burbine majority noted that in Escobedo, cited in turn by Miranda, the suspect had requested counsel.

The debates at the constitutional convention of 1849 make quite clear that the language of the Declaration of Rights which comprises

article I of the California Constitution was not based upon the federal charter at all, but upon the constitutions of other states. (Reports of the Debates in the Convention of Cal. on the Formation of the State Const, (hereafter 1849 Debates), Sept. 7, 1849, at p. 31.) When the 1849 Constitution was adopted, of course, the Fourteenth Amendment to the federal Constitution, by which certain federal constitutional rights have been applied to the states, did not yet exist.

Indeed, a reading of both the 1849 and 1878 constitutional debates reflects a common understanding that it was the state Constitution, and not the federal, which would protect the rights of California citizens against arbitrary action by the state. (See Debates & Proceedings, Cal. Const.

Convention 1878-1879, p. 240; 1849 Debates, Sept. 7-8, 1849, at pp. 30-42.) Thus, we cannot accept Justice Lucas’s suggestion that state courts should generally adhere to federal precedent when interpreting state constitutions unless, in his ambiguous phrase, there is “some greater showing of an independent state interest needing additional protection. [Fn. omitted.]” (Post, at p. 624.) Standard 5-7.1 of the ABA Standards for Criminal Justice (2d ed. 1980) urges that a person in custody “be effectively placed in communication with a lawyer” at the earliest opportunity.

To this end, it suggests, the police should furnish the suspect with access to a telephone, the telephone number of available counsel, “and any other means necessary to establish communication with a lawyer.” The ABA filed an extensive amicus brief in Burbine. The brief expressed the ABA’s “deep concern” that if the police can prevent communication between a lawyer and a suspect in isolation, “an important right to legal representation will be lost . . . .” (See dis. opn. of Stevens, J. 475 U.S. at p. —, fn. 14 [89 L.Ed.2d at p. 434].) In Bustamante, supra, we affirmed, contrary to Kirby v.

Illinois (1972) 406 U.S. 682 [32 L.Ed.2d 411, 92 S.Ct. 1877], that there is a state constitutional right to counsel at a lineup which occurs before formal criminal proceedings are begun. We adopted the premise initially expressed in Escobedo and Dorado that events which occur before formal charging can nonetheless be “critical stages” of the prosecution. (Bustamante, supra, 30 Cal.3d at pp. 98-102.) As those early decisions establish, an accusatory custodial interrogation is such a “critical stage,” and we adopt that rule for purposes of the California Constitution.

Tn so holding, we do not contravene the result in People v. Saidi-Tabatabai (1970) 7 Cal.App.3d 981 [86 Cal.Rptr. 866]. There the court found no obligation to cease questioning when the suspect’s counsel, who had reason to know the suspect was being interrogated, made only a telephone inquiry, did not ask that questioning be stopped, and never came to the station. There was no indication the authorities had misled the lawyer.

Presiding Justice Kaus, writing for the majority, noted that the police had no means of verifying whether the “voice on the telephone” was actually the suspect’s lawyer. (P. 985.) Nor is our ruling inconsistent with People v. Gott (1981) 117 Cal.App.3d 125 [173 Cal.Rptr. 469].

Gott held only that the police need not tell a suspect who has waived counsel that an unappointed public defender seeks to consult with him. (Pp. 128-130; distinguishing In re Brindle (1979) 91 Cal.App.3d 660, 678-681 [154 Cal.Rptr. 563] [police cannot prevent public defender, though not yet appointed, from exercising his legal and ethical responsibility to make himself immediately available to a suspect who requests his assistance].) The majority of lower-court decisions have assumed, correctly we think, that the attorney-client relationship is established for these purposes even when the lawyer has been retained by third parties not in custody, rather than by the suspect himself.

Indeed, this is the reality in many cases where an attorney “enters the picture.” A suspect without prior criminal experience or a preexisting attorney-client relationship is unlikely to be able, in police detention, to actually implement his right to retain counsel. Nor, for these purposes, should relatives alone have the power to seek a lawyer’s help. (But cf., Pen.

Code, § 825 [$500 damages to a prisoner prevented access to an attorney who seeks to visit with the prisoner “at the request of the prisoner or any relative of such prisoner . . .”].) We find nothing in either the ABA’s Model Code of Professional Responsibility or in the Rules of Professional Conduct adopted by the State Bar of California which precludes an attorney from intervening at the request of family or friends. (See generally, ABA Code Prof. Responsibility

(1979) DR 2-103, 2-104; Rules Prof. Conduct, rule 2-101.) The Supreme Court majority in Burbine made passing reference to a similar disparity; the dissent responded by noting that the premise fails to regard Miranda’s purpose of deterring police misconduct.

No such misconduct occurs, of course, when the police fail to advise an unrepresented suspect that he has counsel. (Burbine, supra, 475 U.S. at p. —, fn. 39 [89 L.Ed.2d at p. 442] [dis. opn. of Stevens, J.].) The dissent reminds us that the police have no obligation to provide a suspect with all information which might be “useful” to him in deciding whether to waive counsel or answer questions. (See, e.g., Oregon v. Elstad (1985) 470 U.S. 298, 317 [84 L.Ed.2d 222, 237, 105 S.Ct. 1285] [information about nature and quality of evidence not required]; United States v.

Washington (1977) 431 U.S. 181, 188-189 [52 L.Ed.2d 238, 246, 97 S.Ct. 1814] [no requirement of warning about possible “target” status as prerequisite to noncustodial questioning before grand jury].) However, as the Burbine dissent noted, “the police action at issue here is not simply a failure to provide ‘useful’ information; rather, it is affirmative police interference in a communication between an attorney and a suspect.

Moreover, the ‘information’ [withheld] by the police bears directly on the right to counsel that police are asking the suspect to waive. . . .” (475 U.S. at p. —, fn. 42 [89 L.Ed.2d at p. 443].) Since the alleged crime and confession occurred in 1980, we need not decide whether Proposition 8 precludes application of the California standard of proof even if it differs from that provided by federal law. (See Smith, supra, 34 Cal.3d at pp. 262-263; cf., Lego v. Twomey (1972) 404 U.S. 477 at pp. 488-489 [30 L.Ed.2d 618 at p. 627, 92 S.Ct. 619].)