The Ten Lawful Exceptions to Miranda

1 Apr 2017

LU Ref# CAB00054

The Ten Lawful Exceptions to Miranda

Robert C. Phillips
DDA (Retired)
April, 2017

When Chief Justice Earl Warren first announced the landmark case decision of Miranda v. Arizona[1] in 1966, delivering the opinion of a majority of the United States Supreme Court, law enforcement was outraged. Here was a man in a black robe with absolutely no street experience, backed by the slimmest of majorities in a five-to-four court decision, dictating to cops that when they arrest a person accused of crime—someone from whom the officer wants and often needs a confession—that the officer is first required to attempt to talk the accused out of talking to police by playing the part of an arrestee’s legal advocate, by warning that person of the dangers of talking at all. When you think about it, how ludicrous is that?

But it doesn’t do any good to cry over it. Miranda has been the law for over 50 years now, and has become so commonplace—popularized by television and the news media alike—that there is hardly an American citizen with any level of comprehension who isn’t familiar with at least the concept of the so-called “Miranda warnings.”

And the news isn’t all bad. Along with over five decades of fine-tuning the concepts behind the Miranda decision, the courts have developed at the very least ten recognized exceptions to the rule that in-custody suspects must first be advised of their rights to counsel and to remain silent. Police and prosecutors need to know when these exceptions apply. Below is a quick review.

1. Impeachment:

A defendant’s “non-coerced” statements made to the police, even though obtained in violation of Miranda, and while inadmissible in the People’s case-in-chief, may nonetheless be used for purposes of impeaching his untruthful testimony should he testify in his own behalf and change his story.[2] And while it is perhaps bad form to be encouraging law enforcement to purposely violate the rules of Miranda, it has been held that it matters not whether the Miranda violation was intentional. So long as not “coerced,” a defendant’s statements taken in violation of Miranda are admissible for impeachment purposes.[3]

However, statements obtained from an arrestee under circumstances that are determined to be “involuntary” or “coerced,” are inadmissible for any purpose.[4] “(T)here is no such thing as an impeachment exception for compelled, coerced, or involuntary statements.”[5] The problem is determining what the term “coerced” means.

The fact of a simple Miranda violation, or ignoring a suspect’s attempt to either refuse to answer questions or to invoke his right to counsel, does not “inherently constitute coercion,” at least without evidence of actual coercion or other circumstances bearing on the suspect’s free will.[6] Although courts do not like intentional Miranda violations,[7] and are quick to find coercion when it occurs,[8] even an intentional Miranda violation, so long as done without misleading the subject or using undue pressure, is not generally coercion as is commonly described by the courts.[9]

At one end of the spectrum, the court have consistently held that custodial interrogations involving overt physical, mental, or psychological constitute a Fifth and/or Fourteenth Amendment due process violation and will result in the suppression of the resulting statements.[10] Federal authority, for instance, generally talks of police tactics that “shock the conscience” as the type of coercion that invokes a due process violation.[11] The Ninth Circuit has specifically acknowledged Supreme Court authority to the effect that to constitute a substantive due process violation, coercive interrogation techniques qualify only where it is shown that “torture or its close equivalents are brought to bear.” “(O)nly the most egregious official conduct can be said to be ‘arbitrary in the constitutional sense and therefore a violation of substantive due process.’”[12]

In California, however, the threshold for what constitutes coercion seems to be much lower. For instance, an intentional Miranda violation, when combined with other aggravating circumstances such as officers ignoring a suspect’s repeated requests for counsel, may be sufficient to constitute a Fourteenth Amendment due process violation, making the resulting reinitiation of an interrogation involuntary, and the statements subsequently obtained from the defendant inadmissible for any purpose including impeachment.[13] Also, it has been held by California courts that an intentional violation plus nothing more than misleading the suspect as to the consequences of talking, or even minimal pressure, is coercive.[14]

Either way, the general rule can be summarized by recognizing that any police tactics that tend to “overbear the will of a defendant” will give rise to a coercion issue that threaten the use of a defendant’s statements either in the People’s case-in-chief, or, under this exception, for purposes of impeachment.[15]

2. Fruit of the Poisonous Tree:

The so-called “fruit of the poisonous tree” doctrine, as it relates to Fourth Amendment search and seizure violations, generally requires the suppression of any evidence that is recovered as the direct product of a constitutional violation.[16] The fruit of the poisonous tree doctrine, however, does not apply to a Miranda violation.[17]

In other words, and as an illustrative example, should law enforcement locate the murder weapon in a homicide case as a result of a defendant telling police where it is, the defendant’s admission being made as a product of a violation of the person’s Miranda rights, that weapon is not subject to suppression.[18] This is because Miranda violations are not the same as a constitutional Fifth Amendment violation, but rather a violation of Miranda’s “prophylactic” rules only.[19] Such “(a) mere violation of Miranda’s ‘prophylactic’ procedures does not trigger the fruit of the poisonous tree doctrine.”[20]

California authority is in accord.[21]

As an off-shoot of this rule, it has similarly been held that statements that are a product of a violation of Miranda, so long as otherwise voluntary, may be used as probable cause in a search warrant affidavit.[22] Also, statements in violation of Miranda may be used as probable cause to arrest.[23] Statements in violation of Miranda may be used to establish consent to search.[24] And lastly, statements in violation of Miranda can be used to violate a suspect’s parole or probation.[25]

3. Public Safety Exception:

It is universally accepted that questions asked of an in-custody suspect for the purpose of relieving a situation which poses a threat to public safety do not require a Miranda admonishment or waiver to make the responses admissible.[26] Per the United States Supreme Court; “[T]he need for answers to questions in a situation posing a threat to the public safety, outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination.”[27]

The standard test for when this exception applies is whether there was an “objectively reasonable need to protect the police or the public from any immediate danger.”[28] “(T)he police must reasonably believe that there is a serious likelihood of harm to the public or fellow officers.”[29] However, it also applies despite the fact that the interrogating officer’s intent in asking the questions might have been something other than the safety of the public. It might even have been to obtain incriminating responses. The officer’s intent in asking the questions is irrelevant.[30]

Most commonly, the public safety exception involves situations where a suspect has discarded a firearm—or firearms are otherwise involved in a situation—which the officer reasonably feels must to be located and secured before someone else finds it and either uses it or hurts himself.[31] However, this exception is not limited to firearms. Any dangerous weapon,[32] such as a knife, may trigger the public safety exception.[33]

The public safety exception has also been used to justify unwarned questions when necessary to determine the location of a bomb,[34] to neutralize the threat of explosion from a methamphetamine lab,[35] and to talk a suspect into surrendering during a SWAT standoff with him holding a hostage[36] or to determine the nature of a hostage situation.[37]

Closely related to the above, the rule has been extended to allow officers to ask questions relative to their own safety. For instance, it has been held that prior to serving a search warrant for any substantial quantity of illegal drugs, with an expert officer’s testimony concerning the likelihood of encountering firearms at the scene, asking an in-custody resident about the presence of firearms on the premises does not require a Miranda admonishment for his responses to be admissible in evidence.[38] Also, an officer asking a suspect about the possible presence of a syringe in his pockets before searching him incident to arrest, to prevent the officer from injuring himself, does not require a Miranda admonishment.[39]

The need to protect an officer’s safety has also been used to justify the asking of unwarned questions when the officer needs to determine in a hurry whether other suspects in a violent crime are at large, out of concern for the officer’s own safety,[40] or to expediently determine who is the victim and who is the perpetrator at the scene of a shooting, and whether there are other suspects who might pose a danger to the responding officers.[41]

Even if it is the defendant’s own safety which is at risk, asking questions related to his or her well-being without a Miranda admonishment may be appropriate, such as questioning defendant about his possible ingestion of drugs when done for the purpose of determining the need for medical intervention to prevent an overdose,[42] or to determine whether an inebriated subject intends to drive a motor vehicle.[43]

It is also important to note that the public safety exception has been used to make admissible a defendant’s statements whether the questions at issue were asked before or after a suspect’s invocation of rights.[44]

4. Rescue Doctrine:

Closely related to the public safety exception, it has been held that questions necessitated by the need to save a victim from death or serious harm need not be impeded by a Miranda admonishment or waiver.[45]

Typically, a kidnapping suspect is arrested under circumstances where his victim is missing and concerns center on whether the victim may still be alive and can be saved. As noted by at least one state court; “When life hangs in the balance, there is no room to require admonitions concerning the right to counsel and to remain silent.”[46]

A three-part test for the applicability of the Rescue Doctrine was first announced in People v. Riddle:[47]

1. Urgency of need in that no other course of action promises relief;

2. The possibility of saving human life by rescuing a person whose life is in danger; and

3. Rescue as the primary purpose and motive of the interrogators.

However, the relevance of the interrogator’s subjective motives is no longer a consideration. Per the California Supreme Court, citing from the United States Supreme Court decision of New York v. Quarles,[48] the test is an “objective” one, ignoring the subjective motives of the interrogator.[49]

It must be noted however that there may be time limitations that should be taken into consideration and may affect the applicability of this exception. For instance, it has been held in one case that the passage of time (4 days) did not detract from the urgency of the situation and thus detracting from the need to ask the defendant about whether the victim was still alive. “(T)he length of time a kidnap victim has been missing is not, by itself, dispositive of whether a rescue is still reasonably possible.”[50] Also, in another case, even though the victim had been missing for a week, and the likelihood of finding her was slim, “this passage of time lessen(ed) but by no means eliminate(ed) the possibility that she remained alive.”[51]

A time lapse, however, is a factor that cannot be ignored. At some point it will no longer be reasonable to argue that there remains any possibility that a missing victim might still be alive. When that outer boundary may be reached, however, has not yet been discussed by any known case decision.

Also note that it has been held to be okay to ask about the whereabouts of a victim who had not yet been found despite the defendant’s prior invocation of his rights under Miranda. The defendant’s incriminating responses will still be admissible.[52]

5. Subject Reinitiates Questioning:

A suspect who has invoked his Miranda rights may certainly reinitiate questioning if he or she chooses to do so.[53] “After a suspect has invoked the right to counsel (or to remain silent), police officers may nonetheless resume their interrogation if “the suspect ‘(a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked.”[54]

However, once the subject has invoked, his decision to reinitiate the conversation with police must be “clearly and unequivocally” indicated, with a heavy burden being placed on the prosecution to show that no one pressured the subject into doing so.[55] Any reopening of the dialogue about the facts of the case by the police, resulting in the suspect changing his mind, for instance, will not likely result in admissible statements.[56]

Therefore, a new Miranda admonishment is not always legally necessary. A waiver of the suspect’s rights may be inferred from the circumstances.[57] However, it is strongly recommended that when an in-custody suspect re-contacts his interrogators telling them that he has changed his mind, and that he now wants to talk with the police, at the minimum, a new Miranda admonishment should be given and an express waiver obtained.[58] Absent such a readmonishment and waiver, a court might may very well conclude that under the circumstances of a particular case, a reinitiation of questioning was in fact not voluntary.[59]

Just as an invocation of one’s Miranda right to counsel applies to all pending cases, the suspect’s reinitiation of questioning also applies to all cases, at least absent law enforcement coercion or badgering, or other evidence of the suspect’s contrary intent.[60]

6. Subject Released from Custody:

Once an in-custody suspect effectively invokes his right to an attorney (as opposed to his right to silence; see below), police officers may not, as a general rule, reinitiate questioning about that case or any other case so long as the subject remains in custody.[61] However, a break in custody generally allows for a renewed attempt to obtain a waiver and to conduct an interrogation no matter which right (to an attorney or to remain silent) was invoked.

The whole purpose of a requiring a Miranda admonishment and waiver in the first place is to relieve or minimize the inherent coerciveness or pressure on an in-custody suspect of an incommunicado—sometimes referred to as a “station house”—interrogation.[62] This being the case, the courts have told us that when the pressure is relieved, police should be able to start all over even though the subject has previously invoked. For this reason, it has been held that releasing the suspect from custody, giving him a reasonable opportunity to contact and seek the advice of friends, relatives and counsel, as well as consider his own predicament, opens him up to another attempt at interrogation. “(A) non-contrived, non-pretextual break in custody where the defendant has reasonable opportunity to contact his attorney dissolves an Edwards (v. Arizona, invocation) . . . claim.” [63] Once we satisfy the requirements of this exception, the subject is open to questioning not only about other cases but even the same case for which he was originally arrested.[64]

The California Supreme Court has upheld the validity of this rule. A defendant, after confessing to murdering his wife, during which confession he asked for the assistance of a lawyer, was released from custody. Two days later, he was re-contacted and asked to reiterate his explanation about how his wife had died. Defendant confessed a second time. His subsequent confession was used against him at trial. The California Supreme Court, while noting the lack of any direct authority from the U.S. Supreme Court at the time on this issue, found that the break in custody was sufficient to offset the prior invocation, making the defendant available for a second attempt at obtaining an admissible confession.[65]

The United States Supreme Court subsequently followed suit, but imposed a 14-day modification to the rule, at least where the invocation was for the assistance of counsel. In so holding, the High Court found that an already incarcerated child molest suspect who had invoked his right to the assistance of an attorney, but who, although still incarcerated, was later released back into the general prison population, may be interrogated any time after an arbitrarily-set 14 days.[66] Fourteen days “provides plenty of time for the suspect to get reacclimated to his normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody.”[67] The return of defendant to his normal life in prison was at the very least a break in “Miranda custody,” sufficient to allow for a second, police-initiated attempt to obtain a waiver and seek a confession.

The Supreme Court’s 14-day rule has been applied as well to the pre-conviction situation, where a suspect was released back out onto the street after having invoked his right to counsel, but was then rearrested and questioned again three hours later. Not having waited the mandatory 14 days to reinitiate questioning, his later statements were subject to being suppressed.[68]

7. Subject Invoked his “Right to Remain Silent” Only:

It is a well-settled rule that when an in-custody suspect invokes his “right to remain silent” (as opposed to his Fifth Amendment “right to an attorney”), police officers may lawfully reinitiate questioning themselves, at least as to a different case, despite the fact that the suspect has remained in continuous custody.[69]

The interesting issue is whether an officer, after an invocation of an in-custody suspect’s right to remain silent, can return and reinitiate questioning about the same case. The available case law has consistently ruled in the affirmative; i.e., that it is lawful to do so.[70] But the relevant cases look to the circumstances in finding that reinitiation of questioning was appropriate.

The factors the court can be expected to consider include, but are not necessarily limited to, whether the original interrogation was promptly terminated (i.e., his right to not answer questions was “scrupulously honored”), whether the interrogation was resumed only after the passage of a significant period of time (e.g., at least two hours, although less time has been upheld, but with waiting until the next day being a safer tactic), the suspect was given a complete, “fresh set” of Miranda warnings at the outset of the second interrogation, a different officer resumed the questioning, and where no “police trickery” was involved.[71]

While not all the above factors need apply, the courts uniformly stress the lack of any pressure on the suspect which might have the effect of overcoming his will to resist.[72] For instance, asking the in-custody suspect more than once to reconsider his prior invocation to silence might be held to be undue pressure by law enforcement. However, even repeated requests (e.g., three times) to “reevaluate his decision not to talk” may be excused so long as law enforcement’s exhortations to change his mind do not amount, under the circumstances, to undue pressure.[73]

This rule, however, only applies when the right invoked was his right to silence. If in invoking, the in-custody suspect specifically asks for the assistance of an attorney, he is off-limits to any further questioning about that case or any other case,[74] at least for the first 14 days of his incarceration. [75]

8. An Anticipatory Invocation:

Any attempt by a suspect to invoke his rights under the Miranda decision prior to that point in time where he is both in custody and an interrogation is either in progress or is imminent, is legally ineffective.[76] Neither “custody” nor “interrogation,” by itself, triggers the Miranda requirements of an admonition or a waiver. “It is the premise of Miranda that the danger of coercion results from the interaction of custody and official interrogation.”[77]

This is all based upon the theory that: “Most rights must be asserted when the government seeks to take the action they protect against.”[78] “We have in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than ‘custodial interrogation’ . . . .”[79]

A number of cases illustrate this rule to where it is no longer subject to any serious debate. For instance:

Being taken into custody for a “parole violation,” without telling the suspect more, but where he was suspected of an armed robbery, and then where the suspect responds “Well, I want a lawyer right now,” was held to be an anticipatory invocation and legally ineffective.[80]

Any attempt by defense counsel to invoke a criminal defendant’s Fifth or Sixth Amendment rights merely by filing a document in court purporting to do so is legally ineffective.[81] Similarly, a defense attorney’s oral demand at his or her client’s arraignment to be present at any further law enforcement questioning on other charges is equally a futile act.[82]

A county jail inmate unsuccessfully attempted to invoke his right to counsel during a jail disciplinary hearing (a right that does not apply to that type of proceeding[83]). His attempted invocation was held (1) not to have been made during a custodial interrogation and (2) to be an unclear attempt at an invocation, thus making a sheriff deputy’s later (5 days) Miranda advisal something akin to merely seeking clarification, and lawful.[84]

Even when a criminal suspect clearly attempts to invoke his right to counsel in response to a Miranda advisal during an out-of-custody interview, such an invocation is considered to be an ineffective anticipatory invocation. A new attempt to interrogate him five days later after taking him into custody was held to be lawful.[85]

Note also, however, that it is not always necessary that the suspect have already been read his rights for an in-custody suspect to effectively invoke. So long as an interrogation is at least “imminent,” an otherwise valid invocation must be respected despite the lack of a Miranda admonishment.[86]

9. Routine Booking Questions:

Routine booking questions may, depending upon the circumstances, be an exception to the Miranda rule.[87] “(R)outine biographical information elicited during the booking process does not constitute interrogation under a Fifth Amendment Miranda-rights analysis.”[88]

For instance, where an officer’s comment to defendant during booking that he looked “like a traffic ticket,” prompting defendant’s unsolicited response that he was charged with murder which was followed up by an incriminating description of the crime, defendant’s statements, so long as he was not being questioned, were held to be admissible.[89]

However, there are exceptions. Anytime a booking officer’s questions are those that he (the booking officer) should have expected might elicit an incriminating response, then a Miranda admonishment and wavier can be expected to be a necessary prerequisite to the admissibility of the defendant’s resulting statements. For instance, it has been held that a booking officer purposely bringing up the subject of what the suspect is charged with (E.g., “Who are you accused of killing?”) may result in inadmissible responses.[90]

Generally, the “‘routine booking question’ exception . . . exempts from Miranda’s coverage questions (needed) to secure the ‘biographical data necessary to complete booking or pretrial services.’” They typically involve questions “reasonably related to the police’s administrative concerns.” The fact that the booking questions turn out to be incriminating does not, by itself, affect the applicability of the exception. But by the same token, the existence of this exception does not mean that all questions asked during the booking process fall within the exception. Supposed booking questions that are really just a pretext for eliciting incriminating information have been held to be improper.[91]

The courts have established a number of factors to consider in evaluating the potential trial admissibility of a defendant’s responses to booking questions:

The nature of the questions, such as whether they seek merely identifying data necessary for booking;
The context of the interrogation, such as whether the questions were asked during a non-investigative, clerical booking process and pursuant to a standard booking form or questionnaire;
The knowledge and intent of the government agent asking the questions;
The relationship between the question asked and the crime the defendant was suspected of committing;
The administrative need for the information sought; and
Any other indications that the questions were designed, at least in part, to elicit incriminating evidence and merely asked under the guise or pretext of seeking routine biological information.[92]

The California Supreme Court has rejected the use of these factors, however, when evaluating the asking of a prisoner’s gang affiliation as a part of the booking process, noting that the correct test in determining the admissibility of the prisoner’s response “must be measured under the general Innis test (citing Rhode Island v. Innis[93]) which defines as ‘interrogation’ questions the police should know are ‘reasonably likely to elicit an incriminating response.’”[94]

The circumstance described by the California Supreme Court involved a murder case where, while being booked, the defendant admitted his gang affiliation in response to a jail classification officer’s routine question. The trial court admitted defendant’s statement at his murder trial. The California Supreme Court held that this was error. In so ruling, the Court held that generally the prosecution may not use a defendant’s statements that stem from a custodial interrogation without the procedural safeguards of a Miranda advisement and waiver. Although there is an exception for booking questions, this exception is limited to answers regarding basic biographical data. While questions about gang affiliation have relevance to housing assignments, they are also reasonably likely to elicit an incriminating response and go beyond basic biographical data. “In-custody defendants generally retain their Fifth Amendment protections even if the police have good reasons for asking un-Mirandized questions.” So while it is not improper to ask about an inmate’s gang affiliation, the result are inadmissible in the People’s case-in-chief.[95]

Note also that the California Supreme Court specifically limited its decision in this gang-related murder case to booking questions concerning the inmate’s gang affiliations, declining to comment on the “scope” of the booking questions exception.[96] This leaves open the question whether the six-factor test cited above is valid for other types of booking questions, or whether the “reasonably likely to elicit an incriminating response” test is to be used for all booking questions.

The Ninth Circuit Court of Appeal agrees with the California Supreme Court on the gang-affiliation issue, holding that questions about a defendant’s gang affiliation are reasonably likely to elicit an incriminating response even if federal RICO charges had not yet been filed. When a jail deputy asked defendant about his gang membership, defendant had already been arrested on charges of murder and related offenses and had invoked his right to silence. The Ninth Circuit held that even though the questions may have been asked in the general interest of inmate safety (i.e., for jail classification purposes), this fact does not mean that there was an urgent need to protect either the deputy or others against immediate danger. The narrow “public safety exception,” therefore, was also held not to make the defendant’s responses admissible.[97]

10. Counsel is Present:

A Miranda admonishment and waiver is not necessary when counsel accompanies the suspect.[98] Despite the commonly depicted television scenario of a police officer or even a prosecutor questioning a suspect in the company of the defendant’s often hapless attorney, an interrogation of a criminal suspect with an attorney present seldom occurs. But when it does, the presence of counsel at an interrogation, even when the suspect is already in custody, makes it unnecessary for the police to inform the suspect that whatever he says might be used against him.[99]

The Miranda decision itself states that an admonition is not necessary if some “other fully effective means (is) devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it . . .”[100] The U.S. Supreme Court then indicated that; “The presence of counsel . . . would be the adequate protective device necessary to make the process of police interrogation conform to the dictates of the privilege. His (the attorney’s) presence would insure that statements made in the government-established atmosphere are not the product of compulsion.” [101]

In a footnote, the Miranda Court also provides that when a suspect indicates a desire to remain silent, but has an attorney present, “there may be some circumstances in which further questioning would be permissible.” The Court, however, does not describe those circumstances except to say that; “In the absence of evidence of overbearing, statements then made in the presence of counsel might be free of the compelling influence of the interrogation process and might fairly be construed as a waiver of the privilege for purposes of those statements.”[102]

So while there’s not a lot authority on this issue, it is safe to assume that should a suspect agree to talk with police under circumstances where his attorney is present and assists, whether the suspect is in custody or not, a Miranda admonishment and waiver would be an idle act serving no real purpose.

Conclusion:

It can be seen from the exceptions described above that it is important to recognize that a Miranda admonishment not always necessary, and that even a suspect’s invocation is not always fatal to continuing an interrogation. Police officers and prosecutors alike must be familiar with these exceptions in order to lawfully maximize the evidence that may be obtained against any particular criminal suspect.

[1] (1966) 384 U.S. 436

[2] Harris v. New York (1971) 401 U.S. 222

People v. Peevy (1998) 17 Cal.4th 1184

People v. Neal (2003) 31 Cal.4th 63

People v. DePriest (2007) 42 Cal.4th 1, 29-36

People v. Demetrulias (2006) 39 Cal.4th 1, 29-30

[3] Pollard v. Galaza (9th Cir. 2002) 290 F.3rd 1030

[4] People v. Cahill (1993) 5 Cal.4th 478, 510-511

Brown v. Mississippi (1936) 297 U.S. 278, 285-286

Schneckloth v. Bustamonte (1973) 412 U.S. 218, 225

Pope v. Zenon (9th Cir. 1996) 69 F.3rd 1018, 1020.

[5] Cooper v. Dupnik (9th Cir.1992) 963 F.2nd 1220, 1247-1250

[6] People v. Davis (2009) 46 Cal.4th 539, 599

People v. Bradford (1997) 14 Cal.4th 1005, 1039-1040

[7] People v. Peevy, supra, a pp. 1202-1205

[8] See Henry v. Kiernan (9th Cir. 1999) 197 F.3rd 1021

[9] People v. Peevy, supra, at pp.1196-1198

Moran v. Burbine (1986) 475 U.S. 412, 424-425

People v. Whitfield (1996) 46 Cal.App.4th 947, 955

[10] See Cooper v. Dupnik, supra, at pp.1247-1250

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