Valdivia

Is a Miranda warning necessarily defective for failure to specifically include an advisement of a right to an attorney during, as well as before, questioning? 1 To this and several related issues, we conclude not.

I

The bullet-punctured corpse of a male adult was found on the sidewalk in front of the Siete Leguas Bar in Santa Ana in the early morning hours of October 1, 1983. A white Chevrolet was parked nearby. The barmaid told investigating officers the driver of the vehicle had a gun and argued with the victim that evening. She was able to give them a physical description of the man, but not his name. The victim’s roommate identified the car’s owner as Jose Valdivia, however, and said he worked in the same pizza restaurant as the victim.

A Department of Motor Vehicles check confirmed the vehicle was registered to a Jose Valdivia, and the manager of the restaurant where he was employed gave officers a photograph of him. They also obtained several possible addresses from different sources. None proved fruitful until they were invited into the home of Juan Roman, who officers believed was Valdivia’s brother. Just as they were explaining to Roman why they were there,…

This opinion presents the second opportunity for our court to review the adequacy of a Miranda warning in *665 light of United States v. Noti (9th Cir. 1984) 731 F.2d 610 [77 A.L.R.Fed. 111]. In the first case I reluctantly agreed to follow Noti and concurred in a result holding a warning similar to the one given to Valdivia was insufficient. I now note my previous reluctance to accept Noti mirrors the view of Justice Crosby. Since the Supreme Court, without explanation, decertified our prior opinion which followed Noti , I assume my original reluctance is shared by others and concur in affirming this judgment.

I concur in the judgment and the majority’s reasoning with the exception of Part III (majority opn., ante, pp. 662-664).

A Miranda 1 waiver is not sufficient unless it informs a suspect he or she has a right to the presence of an attorney during questioning. Hence, I agree with the majority in United States v. Noti (9th Cir. 1984) 731 F.2d 610 [79 A.L.R.Fed. 111] and the court in Windsor v. United States (5th Cir. 1968) 389 F.2d 530 .

I, too, turn to the language of Miranda: “[A]n individual held for interrogation must be clearly informed that he [or she] has the right to consult with a lawyer and to have the lawyer with him [or her] during interrogation. ” (Miranda v. Arizona, supra, 384 U.S. 436, 471 [ 16 L.Ed.2d 694, 722 ], italics added.) “No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings we here delineate have been given.” (Id., at p. 470 [ 16 L.Ed.2d at p. 721 ].)

California v. Prysock (1981) 453 U.S. 355 [ 69 L.Ed.2d 696 , 101 S.Ct. 2806 ] 1 2 is often cited for the proposition latitude is permitted in the language of the advisement: “If a defendant has been told the substance of his [or her]…