The opinion of the court was delivered by: Michael W. Fitzgerald United States District Judge
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND
RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, records on file, the Report and Recommendation of the United States Magistrate Judge, and Petitioner's Objections thereto. The Court has engaged in a de novo review of those portions of the Report and Recommendation to which Petitioner has objected. The Court accepts the findings and recommendations of the Magistrate Judge.
The Court notes that Petitioner's objections with respect to the asserted violation of the Sixth Amendment right to counsel is arguably meritorious. Petitioner's right to counsel had attached as to the Deng burglary, and Petitioner's statements related to the Rivera burglary. However, these (Rivera burglary-related) statements were introduced at trial on the Deng burglary, again as to which Petitioner's Sixth Amendment right had attached. On similar facts, the California Supreme Court in In re Wilson, 3 Cal. 4th 945, 13 Cal. Rptr. 2d 269 (1992), granted a petition for writ of habeas corpus and vacated the judgment against the defendant. Id. at 958 (granting relief on the basis of ineffective assistance of counsel); see id. at 951 ("Incriminating statements obtained in circumvention of a defendant's right to counsel with respect to a charged offense . . . are inadmissible at the trial of that charged offense even if they pertain to a new and uncharged crime." (emphasis in original)).
The Wilson court interpreted the United States Supreme Court decision of Maine v. Moulton, 474 U.S. 159, 106 S. Ct. 477, 88 L. Ed. 2d 481 (1985), as holding that "government agents may elicit incriminating statements from a defendant concerning suspected crimes other than pending charges, but that such statements are not admissible against the defendant at the trial of the pending charges, because, at the time such evidence was elicited, the defendant was entitled to the assistance of counsel with respect to those charges." Wilson, 3 Cal. 4th at 954 (emphasis in original). The Wilson court added: "In the present case, petitioner's remarks, although they do not refer directly to the charged offenses . . . , were highly incriminating as to the pending charges and were elicited in direct violation of petitioner's right to counsel with respect to those charges. Therefore, evidence relating these remarks was inadmissible at the trial of the pending charges." Id.
Nevertheless, it is not necessary for this Court to determine whether a Sixth Amendment violation actually occurred, or whether the decision of the Court of Appeal would be in contravention of Maine v. Moulton as controlling Supreme Court precedent. Even if Petitioner's statements were perhaps admitted in error, that error was harmless. The magistrate judge applied the correct standard for harmless error and catalogued the extensive evidence that makes Petitioner's guilt beyond dispute, even in the absence of the challenged statements.
IT IS ORDERED that Judgment be entered: (1) accepting this Report and Recommendation; and (2) directing that Judgment be entered denying the Petition and dismissing this action with prejudice.
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