What is the burden of establishing that a defendant waived his Miranda right in a postarraignment interview?

The prosecution has the burden of establishing, upon the whole record, a knowing and voluntary waiver of Miranda rights. Where, as here, there is no conflict in the evidence, we review the trial court's finding of waiver independently. (People v. Duren (1973) 9 Cal.3d 218, 237-238, 107 Cal.Rptr. 157, 507 P.2d 1365.) In light of defendant's conduct, his request for counsel at the arraignment on the marijuana charge is not a clear expression of a desire that police interrogation on the murder charge cease until he had consulted with counsel. Because the officer was seeking merely to clarify defendant's earlier voluntary statement and reminded defendant of his Miranda rights, there was a continuing waiver of those rights extending to the postarraignment interview and statements and no Fifth Amendment violation. (See People v. Brockman (1969) 2 Cal.App.3d 1002, 1006, 83 Cal.Rptr. 70.)

Defendant's Sixth Amendment claim fares no better. In People v. Hovey (1988) 44 Cal.3d 543, 244 Cal.Rptr. 121, 749 P.2d 776, the defendant sought to suppress postarraignment statements he made to a fellow inmate, claiming that the inmate was a police agent whose conversation with him violated his Sixth Amendment right to counsel. We rejected his argument on the alternative ground that the information procured by the inmate related to an offense other than the offense with which the defendant had been charged. ⁷ Quoting Maine v. Moulton (1985) 474 U.S. 159, 180, footnote 16, 106 S.Ct. 477, 489, footnote 16, 88 L.Ed.2d 481, we observed: " 'Incriminating statements pertaining to other crimes, as to which the Sixth Amendment right has not yet attached, are, of course, admissible at a trial of those offenses.' " (44 Cal.3d at p. 561, 244 Cal.Rptr. 121, 749 P.2d 776.)