            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                        NO. PD-0195-13

                            ROBERT RUBALCADO, Appellant

                                                 v.

                                   THE STATE OF TEXAS

         ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
               FROM THE ELEVENTH COURT OF APPEALS
                           ECTOR COUNTY

           K ELLER, P.J., delivered the opinion of the Court in which P RICE,
W OMACK, K EASLER, H ERVEY, C OCHRAN and A LCALA, JJ., joined. J OHNSON , J.,
concurred. M EYERS, J., did not participate.

       Appellant, arrested pursuant to an Ector County complaint, made bail and was released from

incarceration. Afterwards, at the behest of Midland County law enforcement, the complaining

witness in the Ector County case contacted appellant and elicited incriminating statements from him.

The question before us is whether appellant’s Sixth Amendment right to counsel was violated when

these statements were later used as primary evidence of guilt in the Ector County case. We conclude

that appellant’s right to counsel was violated with respect to the Ector County prosecution, and we

reverse the judgment of the court of appeals.
                                                                               RUBALCADO — 2

                                         I. BACKGROUND

                                               A. Facts

        In 2002, appellant began a romantic relationship with J.S.’s mother and moved into her home

in Midland, in Midland County. In 2004, the family moved to Odessa, in Ector County. J.S.

subsequently accused appellant of sexually abusing her, and on March 12, 2009,1 a complaint was

filed in Ector County that accused appellant of aggravated sexual assault of a child.2 The next day,

appellant was arrested pursuant to a warrant,3 and soon thereafter he was released on bail. A

criminal investigation also began in Midland County, and Midland police officers subsequently

asked J.S. to make pretextual phone calls to appellant in an effort to induce appellant to confess to

committing crimes against J.S.4

       1
        J.S. was seventeen years old at the time the complaint was filed and almost nineteen years
old when she testified at trial.
       2
          The complaint stated that appellant did “intentionally and knowingly cause the penetration
of the vagina of J.S. with his penis without the effective consent of J.S. a child younger than 17 years
of age.”
       3
         The probable-cause affidavit for the warrant recited that the abuse began with appellant
touching J.S.’s “privates” and that this conduct eventually progressed to appellant having sex with
J.S.
        4
            The following was elicited from J.S. during voir dire questioning by defense counsel:

        Q. The police officer asked you to call Robert?

        A. They asked me if I would like to. They didn’t tell me I had to.

        Q. Okay. But they asked you to call him; right?

        A. Yes.

        Q. And you acted on that question. You did call him; correct?
                                                                               RUBALCADO — 3

        J.S. agreed to make the phone calls. The Midland police department supplied recording

equipment that J.S. could connect to her cell phone and operate. J.S. connected the equipment

herself and called appellant on three different days: September 10th, 23rd, and 29th of 2009. At least

one Midland police officer was with J.S. during each call, but the police did not tell J.S. what to say.

        In all three phone calls, J.S. and appellant engaged in innocuous banter about how they were

doing and about their activities. Often, J.S. would just respond “yeah,” “right,” or “okay” to

comments made by appellant, but there were some occasions in which J.S. made comments that were

designed, or possibly designed, to elicit incriminating responses.

        In the first phone call, J.S. said, “I miss you,” and appellant responded, “I miss you too,

        A. Yes.

                                                 ***

        Q. But you did call – you do admit that you called him at their request?

        A. Yes.

        Q. And the purpose of that call was to get some sort of confession?

        A. Yes.

                                                 ***

        Q. And you made the call again at their request?

        A. Yes.

        Q. Okay. And the purpose of the call was to seek a confession?

        A. Yes.
                                                                               RUBALCADO — 4

baby.” J.S. followed with “I miss being with you,” and appellant responded, “I know. I miss you

being here too.” Later in the conversation, J.S. stated, “I want to go home already.” Appellant

responded, “Hmm?” J.S. repeated her statement, and appellant replied, “I know, baby. My phone

battery is low. You can call me back later on or tomorrow, okay?”

        In the second phone call, J.S. again said, “I miss you.” Appellant responded that he missed

her too, and he talked about God and asked J.S. to keep appellant in her prayers. J.S. responded, “I

really want to come home already.” Appellant responded that he would love to be around her,

especially when she graduates, that he missed her, and that he would help her any way he could. J.S.

asked, “Do you think I will be able to come home?” Appellant responded that a few steps would

have to be taken. J.S. replied, “What have I got to do?” Appellant told her that she needed to talk

to his lawyer. J.S. then asked, “What am I having to do when I get there?” Appellant asked, “Is

anybody around you?” J.S. responded negatively, and appellant launched into a long discussion that

included topics such as the need for J.S. to talk to his lawyer, various topics relating to God, and that

appellant and J.S. would work things out. This discussion included statements by appellant that,

“That thing that happened, nothing happened, I was mad,” “I will try my best, my very best to make

a house for you,” and “I want to make you your own room. I am going to fix it the way it should be

fixed for a girl. And I guarantee you, I will break my back for you to get what you want and need.”

Appellant also said that he missed her, loved her, wanted her to be around, and wanted to take care

of her like a father would. Near the end of this discussion, appellant also mentioned J.S. “dropping

the charges” so that she could come home.

        In the third phone call, after appellant had said he was “changing” and God was working on

him, J.S. said, “Also, you want me to talk to a lawyer.” Appellant responded that he wanted her to
                                                                               RUBALCADO — 5

if she were comfortable with it, “not because anybody is forcing you.” At some point, J.S. asked,

“So if I go back home, it will be different?” Appellant responded affirmatively and asked her to tell

him how different she would like it to be. After some further explanations from appellant, J.S.

repeated, “So things are going to be different if I go home?” Appellant responded, “Yes.”

       After some more discussion from appellant, J.S. asked, “Can I ask you a question?”

Appellant responded, “Sure.” J.S. then asked, “Can I ask why you were doing those things to me?”

Appellant responded, “Do what? What things?” J.S. replied, “The way you were touching me and

stuff like that.” Appellant responded that appellant, J.S., and J.S.’s mother would have to get

together and “see what is going on.” Then J.S. reiterated, “And if I go back home, everything is

going to be different?” Appellant responded that things would be different and that “we” had

“realized what our bad attitudes are” and that everyone—including appellant and J.S.’s mother and

brothers—needed to change. Then J.S. asked, “Can I ask you something else?” Appellant responded

affirmatively, and J.S. asked, “Why did you have sex with me?” Appellant responded evasively:

“We will get with your mom and see [inaudible] because I already got this thing over. If you don’t

want to do it - - I mean, if you want to come, I mean.” J.S. replied, “I do, but I want everything to

be different.” Appellant responded, “It is going to be different.”

       The discussion continued along that vein until J.S. said, “So what do I have to do to go talk

to a lawyer?” Appellant responded that she would have to talk to the district attorney and could try

to drop the charges, but appellant said that the district attorney might not drop the charges even if

J.S. wanted to. Appellant suggested that J.S. could tell the district attorney why she wanted to drop

the charges, but he said that he was not telling her what to do or say and that she should not do it if

she did not feel comfortable doing so.
                                                                               RUBALCADO — 6

       Further in the conversation, J.S. asked, “So it is going to be different, you have changed and

everything?” Appellant responded, “Yes.” J.S. then asked, “So then you won’t be doing anything

any more.” Appellant responded, “I am not going to do nothing but pray to God, like I done when

I was younger and everything.” Appellant then talked further about his relationship with God. At

some point, J.S. interjected, “I just wanted to make sure everything was going to be different, that

you change and won’t be touching or sex with me or anything like that.” Appellant responded, “We

all change. We all change. And we still have work to do, we still have God working on us, we still

have to pray for each other.”

       J.S. then engaged in the following colloquy in an attempt to elicit appellant’s agreement with

her allegations:

       J.S.: Do you agree with me?”

       APPELLANT: Agree with you?

       J.S.: I said, do you agree with that, what I said?

       APPELLANT: About what?

       J.S.: Do you agree that we have to change, that you can’t - -

       APPELLANT: Oh, yes.

       J.S.: - - have sex or no more touching?

       APPELLANT: Change. You are supposed to change. I mean, we all have to change.
       I mean, your mom has to change. Your mom has changed a whole lot, believe me.
       I feel it. [One of your brothers] has changed a little bit. You know, he still
       [inaudible], stuff like that.

Appellant then launched into a long discussion about God, talking to a lawyer, and people’s hearts.

This discussion included the statement, “And I can tell you from my part that I am sure on my
                                                                               RUBALCADO — 7

brother’s heart, you have nothing to be afraid of.”

       On November 16, 2009, appellant was indicted in Ector County for various sex offenses

against a child.5 During J.S.’s testimony in its case-in-chief, the State offered the three recorded

phone conversations.6 Defense counsel objected that the recordings violated the right to counsel.

Defense counsel stated that “the officer”7 was informed in February of 2009 that appellant had an

attorney. Defense counsel also stated that, at the time of the recordings, appellant had been charged

by complaint and had made bail. Defense counsel also contended that J.S. acted as an agent of law

enforcement when she made the calls and law enforcement “couldn’t do it so she can’t do it for

them.” The prosecutor responded that the phone calls were orchestrated by the Midland Police

Department, not the Odessa Police Department, and that the Midland Police Department was “not

aware of counsel at that time.”8 The trial judge overruled appellant’s objection, and the recordings

       5
          Appellant was indicted for various forms of indecency with a child by contact, sexual
assault, and aggravated sexual assault. See TEX . PENAL CODE §§ 21.11(a)(1), (c), 22.011(a)(2),
22.021(a)(1)(B), (2)(B) (West 2014).
       6
         The court of appeals’s opinion erroneously states that the recordings were introduced
during the testimony of Midland Police Detective Kay Therwanger. See Rubalcado v. State,
2013 Tex. App. LEXIS 916, *10-11 (Tex. App.–Eastland January 31, 2013, pet. granted) (not
designated for publication).
       7
         At the time this statement was made, the record was unclear about which officer defense
counsel was talking about. Later testimony indicates that defense counsel was referring to Detective
Shelly Stanford of the Odessa Police Department.
       8
            The court of appeals’s opinion includes additional facts derived from Detective
Therwanger’s testimony. See id. at *27-28. This included her testimony that she knew that there
was an Odessa case but did not know whether appellant had an attorney. Id. at *28. We also
observe that Detective Therwanger testified that she and J.S. talked about what J.S. might say and
wrote some things down—just to prepare her. Detective Therwanger said that she told J.S. that
appellant might be suspicious, so J.S. needed to get appellant comfortable and slowly lead into what
happened between them. We note that Detective Therwanger had not yet testified at the time the
trial court made its ruling on the admissibility of the recorded phone conversations. When the
                                                                               RUBALCADO — 8

were played to the jury.

                                       B. Court of Appeals

       Appellant urged his right-to-counsel claim on appeal. He argued that, notwithstanding her

denial at trial, Detective Therwanger must have known that appellant had an attorney at the time of

the recordings. The detective must have known, appellant reasoned, because she was aware of the

pending Ector County case and, given her thirty years of law-enforcement experience, she should

have realized that he had an attorney in that case, even if she did not know who the attorney was.

Given the circumstances, appellant argued, the detective must have also known that appellant was

on bond and therefore had a lawyer. Appellant also pointed out that he referred to his attorney in the

second recording, so Detective Therwanger must have known that he had an attorney by the time of

the third recording. In further support of his contention that Detective Therwanger must have known

that he had an attorney, appellant noted that Midland and Ector Counties are contiguous jurisdictions

and that the criminal investigations in those counties involved the same alleged victim and

perpetrator.

       In the alternative, appellant argued that the Odessa Police Department’s actual knowledge

that he had an attorney should be imputed to the Midland Police Department. In support of this

contention, he cited Herron v. State.9 Appellant further argued that J.S. was an agent of both the

question is whether evidence was improperly admitted, an appellate court may consider only
evidence that was before the trial court at the time of its ruling unless the issue was consensually
relitigated at a later point in time. Black v. State, 362 S.W.3d 626, 631 (Tex. Crim. App. 2012);
Rangel v. State, 250 S.W.3d 96, 98 (Tex. Crim. App. 2008). However, we need not address whether
consensual relitigation occurred during Detective Therwanger’s testimony because her testimony
would not affect our holding in this case.
       9
           86 S.W.3d 621 (Tex. Crim. App. 2002).
                                                                               RUBALCADO — 9

Odessa and Midland police departments and that the recorded phone calls made by her were in

violation of his right to counsel.

        The court of appeals rejected appellant’s right-to-counsel claim.10 The court first rejected

appellant’s alternative argument that it should impute the knowledge of law enforcement in Ector

County to law enforcement in Midland County.11 The court of appeals observed that Herron was

a Fifth Amendment right-to-counsel case, that the Supreme Court’s decision in Michigan v.

Jackson12 is what had extended the Edwards13 initiation rule from the Fifth Amendment context to

the Sixth Amendment context, and that Michigan v. Jackson had subsequently been overruled.14 The

court concluded that the broad rule of imputation found in the Fifth Amendment context did not

apply outside the context of custodial interrogation because the danger of police badgering would

not be present.15

        The court of appeals also concluded that the rule advocated by appellant would unduly

burden law enforcement because it “would mean that separate law enforcement entities would have

to incur the burden of continuously checking with every other law-enforcement entity in every

investigation to see if a suspect has been arrested in another jurisdiction and, if so, on what charges,

        10
             Rubalcado, 2013 Tex. App. LEXIS 916 at *25-36.
        11
             Id. at *29-36.
        12
             475 U.S. 625 (1986).
        13
             Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981).
        14
             Rubalcado, 2013 Tex. App. LEXIS 916 at *29-35.
        15
             Id. at *35.
                                                                             RUBALCADO — 10

and then ascertain whether he or she is represented by an attorney.”16 Finally, the court concluded

that there was no evidence that the two police departments were coordinating their investigations.17

                                     C. Discretionary Review

       Appellant contends that the present case is governed by Massiah v. United States.18 He

further argues that the knowledge of law enforcement in Ector County should be imputed to law

enforcement in Midland County. And he contends that this case is governed by Thompson v. State,19

because the present case is an Ector County prosecution, to which his right to counsel had attached,

not a Midland County prosecution.

       The State contends that the phone calls were part of a Midland County investigation,

unrelated to the Odessa charges, and therefore the right to counsel had not attached. The State

further contends that Massiah is distinguishable because Massiah had been indicted at the time of

the incriminating statements while appellant had not been indicted in either Ector County or Midland

County at the time of the phone conversations. And the State contends that “the federal agencies that

initially investigated and charged Massiah and the ones that eavesdropped on his later incriminating

statements were one and the same” while the entity that charged appellant (Odessa law enforcement)

differs from the entity that eavesdropped on him (Midland law enforcement). The State also

contends that appellant’s position invites the courts to “open a Pandora’s box of claims from

defendants charged with similar crimes in different jurisdictions.”

       16
            Id.
       17
            Id. at *36.
       18
            377 U.S. 201 (1964).
       19
            93 S.W.3d 16 (Tex. Crim. App. 2001).
                                                                               RUBALCADO — 11

                                           II. ANALYSIS

                                             A. Massiah

        In Massiah v. United States, a co-defendant agreed to cooperate with the police in obtaining

information from Massiah after Massiah had been released on bail.20 Massiah was unaware of this

cooperation.21 The police installed a radio transmitter under the front seat of the co-defendant’s car

and secretly listened while the co-defendant elicited incriminating statements from Massiah.22 The

Supreme Court held that Massiah was denied the basic protections of his Sixth Amendment right to

counsel “when there was used against him at his trial evidence of his own incriminating words,

which federal agents had deliberately elicited from him after he had been indicted and in the absence

of his counsel.”23 That the interrogation was “indirect and surreptitious,” instead of being conducted

at the jailhouse, did not preclude the application of the Sixth Amendment.24 In fact, Massiah was

more seriously imposed upon . . . because he did not even know that he was under interrogation by

a government agent.”25

        Maine v. Moulton26 involved similar facts. Moulton and his co-defendant were on bail, the

co-defendant was secretly cooperating with the government, law-enforcement personnel secretly

        20
             377 U.S. at 202.
        21
             Id.
        22
             Id. at 202-03.
        23
             Id. at 206.
        24
             Id.
       25
           Id. (quoting United States v. Massiah, 307 F.2d 62, 72 (2d Cir. 1962) (Hays, J., dissenting))
(ellipsis in Supreme Court’s opinion).
        26
             474 U.S. 159 (1985)
                                                                             RUBALCADO — 12

recorded telephone conversations and an in-person meeting between the two, and the co-defendant

deliberately elicited incriminating statements from Moulton.27 The State argued that Massiah was

distinguishable because government agents set up the encounter in that case while Moulton initiated

the telephone calls and requested the in-person meeting.28 The Court rejected that argument, holding

that the identity of the party who instigated the meeting at which the incriminating statements were

obtained was not decisive or even important to its decision in Massiah.29 The Court observed that

the Sixth Amendment guarantees the accused, after the initiation of formal charges, the right to rely

on counsel as a “medium” between him and the State.30 The State has an affirmative obligation not

to act in a manner that circumvents this protection, and the knowing exploitation of an opportunity

to confront the accused without counsel is as much a breach of this obligation as the intentional

creation of the opportunity.31 “Accordingly, the Sixth Amendment is violated when the State obtains

incriminating statements by knowingly circumventing the accused’s right to have counsel present

in a confrontation between the accused and a state agent.”32

       In an amicus brief, the Solicitor General contended that Moulton’s case was distinguishable

from Massiah because the Maine police had other, legitimate reasons for listening to Moulton’s

       27
            Id. at 163-66.
       28
         Id. at 174. The State was also attempting to distinguish United States v. Henry, 447 U.S.
264 (1980), one of Massiah’s progeny. Moulton, 474 U.S. at 174.
       29
            Moulton, 474 U.S. at 174-75.
       30
            Id. at 176.
       31
            Id.
       32
            Id.
                                                                               RUBALCADO — 13

conversations with his co-defendant, namely, to investigate a possible plan to kill a witness.33 The

Supreme Court recognized the legitimate interest the State has in investigating new crimes but held

that such an interest was not sufficient to justify admitting incriminating statements relating to the

pending charges at the trial of those charges:

       To allow the admission of evidence obtained from the accused in violation of his
       Sixth Amendment rights whenever the police assert an alternative, legitimate reason
       for their surveillance invites abuse by law enforcement personnel in the form of
       fabricated investigations and risks the evisceration of the Sixth Amendment right
       recognized in Massiah. On the other hand, to exclude evidence pertaining to charges
       as to which the Sixth Amendment right to counsel had not attached at the time the
       evidence was obtained, simply because other charges were pending at that time,
       would unnecessarily frustrate the public’s interest in the investigation of criminal
       activities. Consequently, incriminating statements pertaining to pending charges are
       inadmissible at the trial of those charges, notwithstanding the fact that the police
       were also investigating other crimes, if, in obtaining this evidence, the State violated
       the Sixth Amendment by knowingly circumventing the accused’s right to the
       assistance of counsel.34

But the State was free to introduce incriminating statements pertaining to other crimes—those to

which the Sixth Amendment right had not yet attached—at the trial of those other crimes.35

       From this discussion, we conclude that the Massiah inquiry is whether, after the Sixth

Amendment right to counsel has attached, the government has knowingly circumvented the

defendant’s right to counsel by using an undisclosed government agent to deliberately elicit

incriminating information. We turn to the various Massiah issues implicated in the present case.

                                          B. Attachment

                                   1. Attached in Ector County

       33
            Id. at 178.
       34
            Id. at 180.
       35
            Id. at 180 n.16.
                                                                              RUBALCADO — 14

       The Sixth Amendment right to counsel does not apply until it has attached, and it attaches

when the prosecution has commenced.36 The prosecution commences for Sixth Amendment right-to-

counsel purposes “at the first appearance before a judicial officer at which the defendant is told of

the formal accusation against him and restrictions are imposed on his liberty.”37 Under this test for

attachment, appellant’s Sixth Amendment right to counsel with respect to the Ector County charges

had attached before the recorded phone conversations took place.

                           2. Not Attached to Midland County Offenses

       But the Sixth Amendment right to counsel is “offense specific.” It attaches only to an offense

for which a prosecution has been initiated.38 This offense-specific rule of attachment applies in the

Massiah context.39 The question, then, is whether the recorded conversations in this case involved

offenses that were separate from the Ector County charges, and if so, to what extent.

       In determining what constitutes an “offense” for Sixth Amendment right-to-counsel purposes,

and consequently, whether separate offenses are involved, the Supreme Court has resorted to double-

jeopardy law.40 The Court has explained that this means that offenses are considered separate for

       36
            Rothgery v. Gillespie County, 554 U.S. 191, 198 (2008).
       37
            Id. at 194.
       38
            Texas v. Cobb, 532 U.S. 162, 167-68 (2001).
       39
         Moulton, 474 U.S. at 179-80 & n.16. See also United States v. Holness, 706 F.3d 579,
589-91 (4 Cir. 2013); Henderson v. Quarterman, 460 F.3d 654, 664 (5th Cir. 2006).
            th

       40
           Cobb, 532 U.S. at 172-73 (“[W]e have recognized in other contexts that the definition
of an ‘offense’ is not necessarily limited to the four corners of a charging instrument . . . . We see
no constitutional difference between the meaning of the term ‘offense’ in the contexts of double
jeopardy and of the right to counsel.”).
                                                                               RUBALCADO — 15

right-to-counsel purposes if they would be considered separate under the Blockburger41 same-

elements test, i.e. each statutory provision proscribing the respective charges requires proof of a fact

that the other does not.42

        The Blockburger same-elements test is not the only tool for evaluating whether offenses are

separate for double-jeopardy purposes, and it is legitimate for right-to-counsel purposes to examine

whether the offenses at issue would be considered separate under other double-jeopardy doctrines.43

Offenses that have the same elements under the Blockburger test are nevertheless separate if they

involve separate allowable units of prosecution.44 Separate instances of sexual assault are separate

offenses.45 The same is true of the offense of indecency with a child by contact.46 To the extent that

multiple incidents conform to the charges, however, they are subsumed by the charges for double-

jeopardy purposes until and unless the State timely elects what specific offense is being charged.47

        41
             Blockburger v. United States, 284 U.S. 299 (1932).
        42
             Cobb, 532 U.S. at 173. See also Blockburger, 284 U.S. at 304.
        43
          See Holness, 706 F.3d at 590 (observing, in Massiah context, that “federal and state crimes
are not the same offense, no matter how identical the conduct they proscribe”).
        44
           Blockburger, 284 U.S. at 302-03 (second illegal drug sale “was not the result of the
original impulse, but of a fresh one—that is to say, of a new bargain”); Sanabria v. United States,
437 U.S. 54, 69-70 (1978) (discussing concept of “allowable unit of prosecution”); Ex parte
Hawkins, 6 S.W.3d 554, 556-57 & n.8 (Tex. Crim. App. 1999) (for a double-jeopardy violation
to occur, offenses must be the same both in law and in fact, the latter being an allowable-unit-of-
prosecution inquiry).
        45
             Ex parte Goodbread, 967 S.W.2d 859, 861 (Tex. Crim. App. 1998).
        46
          See Pizzo v. State, 235 S.W.3d 711, 719 (Tex. Crim. App. 2007) (holding the offense
of indecency with a child by contact is a conduct-oriented offense and analyzing it in the same
way as the offense of sexual assault).
        47
          Dixon v. State, 201 S.W.3d 731, 735 (Tex. Crim. App. 2006); Goodbread, 967 S.W.2d
at 861 & n.3.
                                                                             RUBALCADO — 16

So, multiple incidents in Ector County would be included in the Ector County complaint and arrest

warrant, but any sexual offenses committed solely48 in Midland County would be separate, for

double-jeopardy purposes, from the sexual offenses that were the subject of prosecution in Ector

County. No one contends that a prosecution was pending in Midland County at the time of the

recorded phone conversations. The Sixth Amendment right to counsel, therefore, had not attached

to any offenses committed solely in Midland County.

                                   3. Ector County Prosecution

         But the present case involves an Ector County prosecution, not a Midland County

prosecution. We held in Thompson that the right to counsel may be violated by the elicitation of

evidence of extraneous offenses if that evidence is used in the prosecution for which charges had

been pending. In Thompson, the defendant had been charged with capital murder when law

enforcement learned that he might be attempting to solicit the murder of one of the witnesses against

him.49 An investigator for the District Attorney’s office posed as a hit-man and engaged in

discussions with the defendant that were secretly recorded.50 The investigator was aware that

appellant was represented by counsel in connection with the capital-murder charge.51 At the

punishment phase of the defendant’s capital-murder trial, the State introduced the recording, which

       48
          We do not address the offense of continuous sexual abuse of a young child, in which it is
possible for some of the elements to be committed in more than one county. See TEX . PENAL CODE
§ 21.02.
       49
            93 S.W.3d at 22.
       50
            Id. at 22-23.
       51
            Id. at 23.
                                                                             RUBALCADO — 17

contained statements about the extraneous crime of solicitation of murder.52 We explained that a

Sixth Amendment violation occurs if an undercover police agent interrogates the defendant, without

counsel, on matters that the police knew or should have known would elicit incriminating evidence

pertaining to the pending charges.53 We concluded that the defendant’s right to counsel was violated

because, though the defendant’s incriminating statements related solely to an extraneous offense,

they were used against him at the capital murder trial:

        The information was elicited by an agent of the State, without notifying appellant’s
        counsel, and was then used at appellant’s capital murder trial to help the State
        establish that appellant posed a continuing threat to society. The State knew the
        capital murder charges were pending against appellant at the time, and that any
        evidence incriminating appellant in another offense would probably be used against
        him in the capital punishment phase. We hold appellant’s Sixth Amendment right to
        counsel was violated by the State’s actions in soliciting the tape recorded
        conversation between appellant and Johnson and using it against appellant in the
        punishment phase of his capital murder trial, the charges of which were pending at
        the time of the conversation.54

Under this reasoning, even if the Midland County offenses are separate offenses from the Ector

County offenses, the recorded statements could not be used against appellant in the Ector County

case.

        However, our holding in Thompson may have been called into question by the later Supreme

Court decision in Kansas v. Ventris,55 which articulated views similar to those held by the dissents

in Thompson. The dissent on original submission in Thompson argued that the Court had

        52
             Id.
        53
             Id. at 25.
        54
             Id. at 27.
        55
             556 U.S. 586
                                                                               RUBALCADO — 18

expansively interpreted the Sixth Amendment right to counsel at odds with the Supreme Court’s

decision in Cobb.56 The dissent contended that whether “the extraneous offense [had] probative

value in a prosecution for the charged offense is immaterial because it is still an extraneous offense”

to which the “right to counsel had not attached.”57 In a dissent to the refusal to grant rehearing,

Judge Keasler contended that any “Sixth Amendment violation occurs at the moment that the

statements are obtained.”58 “If such a violation occurs,” Judge Keasler maintained, “the statements

are inadmissible at trial—at any trial—of the accused for any offense.”59 “Conversely,” Judge

Keasler continued, “if the statements are legally obtained, they are admissible, if relevant, at any trial

of the accused for any offense.”60

        In Ventris, the Supreme Court acknowledged that Massiah had been equivocal about whether

the right to counsel was violated at the moment of questioning or only when the evidence was used

against the accused at trial.61 When, exactly, the violation occurred was not important to the decision

in Massiah.62 When confronted with that question in Ventris, the Supreme Court concluded that “the

Massiah right is a right to be free of uncounseled interrogation, and is infringed at the time of

interrogation”:

        56
             Thompson, 93 S.W.3d at 30-31 (Keller, P.J., dissenting).
        57
             Id. at 31.
        58
           Thompson v. State, 108 S.W.3d 269, 270 (Tex. Crim. App. 2003) (Keasler, J., dissenting
to refusal to grant rehearing)
        59
             Id.
        60
             Id. at 270.
        61
             556 U.S. at 591-92.
        62
             Id. at 592.
                                                                               RUBALCADO — 19

       It is illogical to say that the right is not violated until trial counsel’s task of opposing
       conviction has been undermined by the statement’s admission into evidence . . . . We
       have never said . . . that officers may badger counseled defendants about charged
       crimes so long as they do not use information they gain. The constitutional violation
       occurs when the uncounseled interrogation is conducted.63

But even if Ventris undermines this Court’s holding in Thompson, the present case is different from

Thompson in a way that is adverse to the State.

                                        4. Dual-Use Evidence

       In her questions on the recording, J.S. made no attempt to distinguish between the offenses

that occurred in Midland and those that occurred in Odessa. She was simply trying to get appellant

to admit that he had committed sexual offenses against her. Appellant’s evasive answers also failed

to provide any distinction between Midland and Odessa offenses. Just as the Moulton decision

recognized that some criminal investigations have “dual purposes,”64 relating to both charged and

uncharged crimes, we recognize that evidence elicited in criminal investigations can sometimes have

dual uses, being evidence of both charged and uncharged crimes. Judge Keasler recognized such a

possibility in his dissent in Thompson:

       Of course, if a statement incriminates a defendant with regard to two separate
       offenses simultaneously, one a charged offense and one an uncharged offense, then
       that particular statement could be inadmissible at one trial and admissible at the
       other.65

Judge Keasler’s hypothetical is exactly what occurred here. Consequently, appellant’s Sixth

       63
            Id.
       64
         474 U.S. at 179 n.15 (“We take what we feel is a more realistic view of police
investigations, and instead accept that dual purposes may exist whenever police have more than
one reason to investigate someone.”).
       65
            Thompson, 108 S.W.3d at 270 (Keasler, J., dissenting to refusal to grant rehearing).
                                                                              RUBALCADO — 20

Amendment right to counsel had attached with respect to the recordings insofar as they were relevant

to the Ector County prosecutions.

                                      C. Knowing Circumvention

       In Moulton, the Supreme Court indicated that a Massiah violation occurs only if the State

“knowingly circumvented” the right to counsel.66 The court of appeals’s opinion suggests that a

knowing circumvention did not occur because Midland law enforcement was unaware that appellant

had counsel. Appellant’s position is that the knowledge of Ector County law enforcement should

be imputed to Midland County law enforcement.

       Appellant has the better of the argument. In Michigan v. Jackson, the Supreme Court held

that the State is responsible, in the Sixth Amendment context, for the knowledge of all of its actors:

       Sixth Amendment principles require that we impute the State’s knowledge from one
       state actor to another. For the Sixth Amendment concerns the confrontation between
       the State and the individual. One set of state actors (the police) may not claim
       ignorance of defendants’ unequivocal request for counsel to another state actor (the
       court).67

In so concluding, the Supreme Court cited and quoted from Moulton, a Massiah case.68 It is true

that, in Montejo v. Louisiana,69 the Supreme Court overruled Jackson insofar as it imposed a

prophylactic rule forbidding interrogation once the accused has requested counsel.70 But the Montejo

decision expressly stated that it was not concerned with the substantive scope of the Sixth

       66
            See this opinion, ante.
       67
            475 U.S. at 634.
       68
            Jackson, 475 U.S. at 634 n.8.
       69
            556 U.S. 778 (2009).
       70
            Montejo, 556 U.S. at 780-81, 797, 799.
                                                                              RUBALCADO — 21

Amendment right to counsel, and in so saying it cited both Moulton and Massiah.71 We do not agree

with the court of appeals that the Supreme Court’s decision to overrule Jackson constituted an

abandonment of the rule of imputing knowledge to the State.72

                                      D. Government Agent

       Having determined that the right to counsel had attached with respect to the recordings and

that knowledge of that attachment, and that appellant had counsel, must be imputed to Midland law

enforcement, we now address whether J.S. was a government agent. The rule in Massiah applies

       71
          Id. at 791 (“Montejo contends that our decisions support his interpretation of the Jackson
rule. We think not. Many of the cases he cites concern the substantive scope of the Sixth
Amendment—e.g., whether a particular interaction with the State constitutes a ‘critical’ stage at
which counsel is entitled to be present—not the validity of a Sixth Amendment waiver. Since
everyone agrees that absent a valid waiver, Montejo was entitled to a lawyer during the interrogation,
those cases do not advance his argument.”) (citations omitted).
       72
            A different result may occur if the agent at issue worked for a different sovereign than
the one who conducts the prosecution—such as a different state or the federal government. See
Holness, 706 F.3d at 590. See also Ex parte Doan, 369 S.W.3d 205, 215-16 (Tex. Crim. App.
2012) (Keller, P.J., dissenting) (observing that the federal government, the various states, and
Indian tribes are separate sovereigns for double-jeopardy purposes, but cities are not separate
sovereigns). We do not have that situation here.
         The court of appeals and the State express concern that this rule will place an undue
burden on law enforcement in one county to know what other counties are doing, but we find
such a concern to be unpersuasive. Nothing in this opinion prevents a county from using
undisclosed agents to investigate uncharged crimes committed within that county and then using
such evidence in a later prosecution conducted by that county. The State’s suggestion that a
“Pandora’s box” of claims would be opened is misplaced. Defendants will not be able to lodge
successful Sixth-Amendment claims simply because they have been charged with similar crimes
in different jurisdictions. The Sixth Amendment was implicated here because the right to
counsel had attached in Ector County and because the statements on the recordings incriminated
appellant with regard to the Midland and Ector County offenses simultaneously. And even in
that situation, we are simply holding that the recordings would be inadmissible in Ector County.
Nothing in our opinion today prevents the State from admitting the recordings in a prosecution
for offenses occurring in Midland County.
                                                                               RUBALCADO — 22

only if the person who elicited statements from the defendant was a government agent.73

        In Manns v. State, we observed that there were some differences in the approaches of various

jurisdictions regarding this issue, but the jurisdictions were unified by at least one common principle:

“to qualify as a government agent, the informant must at least have some sort of agreement with, or

act under instructions from, a government official.”74 We were not required to specify in greater

detail what makes someone a government agent for Massiah purposes because the informant in

Manns had acted entirely on his own volition, without any promises, encouragement, or instructions

from the government, and was therefore not a government agent.75 We must now explore in more

detail the issue of what makes someone a government agent.

        As we observed in Manns, some of the federal circuits espouse a bright-line test that an

informant becomes a government agent “when the informant has been instructed by the police to get

information about a particular defendant.”76 The Supreme Court of California has suggested that an

informant becomes a government agent if he acts “under the direction of the government pursuant

to a preexisting arrangement, with the expectation of some resulting benefit or advantage.”77 The

Fifth Circuit held that the informant in one case was not a government agent because the evidence

       73
             Manns v. State, 122 S.W.3d 171, 178-89 (Tex. Crim. App. 2003).
        74
             Id. at 183.
       75
         Id. at 188 (The informant “was an entrepreneur who exploited [the defendant] for his own
gain. The government did nothing to encourage [his] behavior but merely accepted the
information.”).
        76
             Id. at 183.
        77
             People v. Dement, 53 Cal. 4th 1, 33, 264 P.3d 292, 318 (2011).
                                                                              RUBALCADO — 23

failed to show a quid pro quo and it failed to show instruction or control by the State.78 Because the

defendant had shown neither, the Fifth Circuit did not address whether both of those elements must

be shown in order to establish an agency relationship.79 Other jurisdictions have said that someone

was not a government agent if he was not instructed by the police or not promised something of

value for the information.80

       Citing Manns as a case that “surveyed the approaches of various jurisdictions,” the Supreme

Court of Kentucky concluded that the existence of an agency relationship depends upon the existence

of an agreement between the government and the informant at the time the information was

obtained.81 However, the Kentucky court rejected the notion that a quid pro quo must also underlie

the relationship.82 Similarly, the Ninth Circuit has held that an agreement to compensate the

informant for his services was not required.83 It is enough, the court held, that “the State made a

conscious decision to obtain [the informant’s] cooperation and that [the informant] consciously

decided to provide that cooperation.”84

       We conclude that J.S. was a government agent. The Midland police encouraged J.S. to call

appellant for the purpose of eliciting a confession. They also supplied J.S. with the recording

       78
            Creel v. Johnson, 162 F.3d 385, 394 (5th Cir. 1998)
       79
            Id.
       80
        See State v. Krause, 64 Haw. 522, 526, 644 P.2d 964, 968 (1982) (citing State v. Olson,
274 N.W.2d 190 (N.D. 1978)).
       81
            McBeath v. Commonwealth, 244 S.W.3d 22, 32 (Ky. 2007).
       82
            Id. at 33.
       83
            Randolph v. California, 380 F.3d 1133, 1144 (9th Cir. 2004)
       84
            Id.
                                                                               RUBALCADO — 24

equipment, and an officer was present during the calls. We do not attempt at this time to establish

a comprehensive rule for what makes an individual a government agent for Massiah purposes. We

hold simply that J.S. was a government agent under the facts of this case.

                                       E. Deliberately Elicit

       The next question is whether J.S. “deliberately elicited” incriminating statements from

appellant. In State v. Maldonado, we surveyed the Supreme Court’s cases regarding the meaning

of the Sixth Amendment’s “deliberately elicited” requirement and concluded that it encompassed

a broader range of activity than the Fifth Amendment concept of interrogation.85 Interrogation would

certainly qualify as deliberate elicitation for Massiah purposes, but it is not required.86 “Deliberate

elicitation” simply involves “some conduct designed to obtain incriminating statements.”87 Such

conduct has not occurred if the informant is merely a passive “listening post” who relates any

statements the defendant makes of his own volition.88 In Maldonado, we further concluded that a

police officer’s act of introducing himself was not sufficient to constitute deliberate elicitation.89

       There were times on the recording when J.S. engaged in explicit interrogation, such as when

she asked appellant why he had touched her and why he had sex with her. At other times, J.S. made

statements that fell short of interrogation but were nevertheless designed to invoke incriminating

responses. After all, the purpose of the calls was to elicit incriminating evidence. Although some

       85
            259 S.W.3d 184, 189-90 (Tex. Crim. App. 2008).
       86
            Id. at 190.
       87
            Id.
       88
            Id. at 191.
       89
            Id.
                                                                               RUBALCADO — 25

of the statements made by J.S. on the recordings were entirely innocuous, the incriminating relevance

of the recordings flowed from J.S.’s attempts to elicit incriminating admissions. We readily

conclude that deliberate elicitation has been shown.

                                              E. Waiver

        The State cites Montejo and Pecina v. State90 for the proposition that a defendant who

invokes his right to counsel by requesting an appointed attorney from a magistrate can still waive

his right to counsel and talk to police during custodial interrogations. The State then points out that

appellant’s conversations with J.S. did not even amount to custodial interrogation, and the State

claims that appellant’s “conversations with J.S. were purely voluntary on his part and he would

certainly have been free to decline to speak to her at all.” In saying that appellant was free to decline

to speak to J.S., the State implicitly suggests that appellant waived his right to counsel by choosing

to speak to her.

        The Supreme Court, however, has indicated that waiver does not apply in the Massiah

context:

        [T]he concept of a knowing and voluntary waiver of Sixth Amendment rights does
        not apply in the context of communications with an undisclosed undercover
        informant acting for the Government. In that setting, [the defendant], being unaware
        that [the informant] was a Government agent expressly commissioned to secure
        evidence, cannot be held to have waived his right to the assistance of counsel.91

        Nevertheless, some courts have held or suggested that a waiver can occur when the informant

is the complaining witness. In Jenkins v. Leonardo, the Second Circuit held that the defendant

        90
             361 S.W.3d 68 (Tex. Crim. App. 2012).
        91
             Henry, 447 U.S. at 273.
                                                                               RUBALCADO — 26

waived his right to counsel when he called the complaining witness.92 The court acknowledged that

“a criminal defendant will not ordinarily be held to have assumed the risk that those to whom he

speaks (after his right to counsel has attached) are state agents.”93 But the court found that the

confluence of several factors showed that the defendant had effectively waived his right to counsel

in its case.94 First, the defendant had been given Miranda warnings, though the court gave this fact

little weight because the warnings had been administered several months before the conversation at

issue.95 Second, and more importantly, it was the defendant who initiated the phone call to the

complaining witness.96 The appellate court held that this was important, in part, because the

complaining witness’s status as a government agent was not undisclosed—because the defendant

knew that the complaining witness was cooperating with the government.97 In connection with this

point, the court also observed that appellant did not simply initiate contact, “he aggressively pursued

it, making repeated calls.”98 Thus, the defendant “brazenly made harassing phone calls to his rape

victim, fully aware that she had cooperated with the police in the past.”99 Third, the court found that

it was “absurd to suppose that [the defendant] wanted counsel to be present at—or even aware

       92
            991 F.3d 1033, 1037-39 (2d Cir. 1993).
       93
            Id. at 1037.
       94
            Id. at 1038.
       95
            Id.
       96
            Id.
       97
            Id. at 1037 & n.2, 1038. The appellate court observed that the trial court had made a
specific finding as to this fact. Id. at 1037.
       98
            Id. at 1039.
       99
            Id.
                                                                              RUBALCADO — 27

of—his conversations with [the complaining witness] because the purpose of [his] call was to scare

or bribe [the complaining witness] into changing her story.”100 Finally, the Second Circuit observed

that the defendant was “no stranger to the criminal justice system,” as he had been convicted of

several prior crimes.101

       In People v. Wojtkowski, a California appellate court held Massiah to be inapplicable where

the defendant called the complaining witness, his wife.102 The court explained that “no one twisted

[the defendant’s] arm to place telephone calls to his wife.”103 The defendant “knew that his wife was

a prosecution witness, and the very purpose of his call was to dissuade her from proceeding with the

prosecution.”104 Moreover, the complaining witness’s few references to the crime were in response

to the defendant’s suggestion that she discourage prosecution of the offense.105 The court concluded

that the wife “was not an agent provocateur.”106

       In State v. Berry, a Missouri court of appeals held Massiah to be inapplicable to statements

made to the complaining witness, though he occupied a cell adjacent to the defendant’s at the time.107

The court explained that (1) the complaining witness was neither a paid informant nor an agent for

       100
             Id.
       101
             Id.
       102
             167 Cal. App. 3d 1077, 1081-83, 213 Cal. Rptr. 846, 849-50 (1985).
       103
             Id. at 1082, 213 Cal. Rptr. at 849.
       104
             Id. at 1082, 213 Cal. Rptr. at 850.
       105
             Id. at 1082, 213 Cal. Rptr. at 849.
       106
             Id. at 1083, 213 Cal. Rptr. at 850.
       107
             658 S.W.2d 476, 478 (Mo. App. 1983).
                                                                              RUBALCADO — 28

the State, (2) the defendant and the complaining witness did not share a common plight, given that

the complaining witness was a victim of the defendant’s acts, and (3) the placement of the

complaining witness in an adjacent cell was inadvertent and the complaining witness was moved

within three to five minutes after the placement was realized.108 The court observed that the

defendant “was obviously aware that the witness . . . had a relationship with the prosecution that

made it certain that that witness would report anything that defendant said to [the] prosecution.”109

       We recognize that most cases involving alleged Massiah violations involve co-defendants

or jailhouse informants and do not involve an informant so obviously adverse to the defendant as the

complaining witness usually is. Only a few cases have addressed the application of Massiah to

statements that a complaining witness elicits from the defendant. But the few cases that have done

so, and found no Massiah violation, are readily distinguishable from the present case. Unlike the

defendants in Jenkins and Wojtkowski, appellant did not initiate the calls to the complaining witness.

The complaining witness initiated the calls, and she made statements during the calls that were

designed to lull appellant into believing that she was not adverse to him. And unlike the authorities

in Berry, the Midland police encouraged J.S. to contact appellant for the purpose of eliciting a

confession, and they provided recording equipment to her to memorialize any incriminating

statements. We conclude that appellant did not waive his right to counsel.

                                        III. DISPOSITION

       The recordings were made in violation of appellant’s right to counsel with respect to the

Ector County prosecution. We reverse the judgment of the court of appeals and remand the case to

       108
             Id.
       109
             Id.
                                                                   RUBALCADO — 29

that court for further proceedings consistent with this opinion.

Delivered: March 19, 2014
Publish


                               COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton, Judges Frank and McClanahan
Argued at Richmond, Virginia

RUSSELL MAURICE JONES
                                                             MEMORANDUM OPINION * BY
v.     Record No. 0968-08-2                               JUDGE ELIZABETH A. McCLANAHAN
                                                                    APRIL 21, 2009
COMMONWEALTH OF VIRGINIA

                  FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                               Walter W. Stout, III, Judge

                 Catherine S. Rusz, Assistant Public Defender, for appellant.

                 Leah A. Darron, Senior Assistant Attorney General (Robert F.
                 McDonnell, Attorney General, on brief), for appellee.

       Russell Maurice Jones appeals his conviction for operating a motor vehicle after having

been declared an habitual offender, subsequent offense. He contends the trial court erred in

denying his motion to suppress the evidence of his habitual offender status and argues he was

seized in violation of the Fourth Amendment. We affirm the trial court.

                                    I. STANDARD OF REVIEW

       To prevail on appeal Jones bears the burden to “show that the trial court’s denial of his

suppression motion, when the evidence is considered in the light most favorable to the prosecution,

was reversible error.” Whitfield v. Commonwealth, 265 Va. 358, 361, 576 S.E.2d 463, 464 (2003).

“The question whether the Fourth Amendment has been violated is always ‘a question of fact to be

determined from all the circumstances.’” Malbrough v. Commonwealth, 275 Va. 163, 168, 655

S.E.2d 1, 3 (2008) (quoting Ohio v. Robinette, 519 U.S. 33, 40 (1996)) (citation omitted).

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Although we review the trial court’s application of the law de novo, Kyer v. Commonwealth, 45

Va. App. 473, 479, 612 S.E.2d 213, 216-17 (2005) (en banc), we defer to the trial court’s findings

of fact taking care ‘“both to review findings of historical fact only for clear error and to give due

weight to inferences drawn from those facts by resident judges and local law enforcement officers.’”

Malbrough, 275 Va. at 169, 655 S.E.2d at 3 (quoting Reittinger v. Commonwealth, 260 Va. 232,

236, 532 S.E.2d 25, 27 (2000)) (citation omitted).

                                           II. BACKGROUND

        Deputies Jeffrey Feighner and Tom Mannes were working as private security officers for

Midlothian Village Apartments when they observed a four-door sedan parked in front of an

apartment building at 2:15 a.m. Jones, the driver of the vehicle, and another male exited the vehicle,

walked into the breezeway of an apartment building, then came back to the vehicle, opened its

trunk, and looked through the trunk for twenty to thirty seconds before walking back to the

apartment building. The deputies approached Jones and asked for identification. He had no

identification but gave them his name and date of birth. When the deputies asked his reason for

being there, Jones replied that his daughter was sick and it was an emergency. When the deputies

asked what apartment Jones was visiting, he was unable to give them an apartment number or

building number but vaguely pointed in the direction of one of the buildings. The deputies then

asked Jones to accompany them to the rental office to complete paperwork barring him from the

premises. After Jones agreed, they walked to the rental office, which was located fifty feet away.

While Deputy Mannes began processing paperwork, Deputy Feighner called the sheriff’s office to

run a check on outstanding warrants and Jones’ driving record. Upon learning his driver’s license

had been revoked, the deputies arrested Jones for operating a motor vehicle while being an habitual

offender.

                                                -2-
        Jones filed a motion to suppress the evidence regarding his habitual offender status arguing

he was seized in violation of the Fourth Amendment. The trial court denied the motion and a

subsequent motion to reconsider, finding the encounter was consensual. Jones entered a conditional

plea of guilty.

                                          III. ANALYSIS

         “Police officers are free to engage in consensual encounters with citizens, indeed, it is

difficult to envision their ability to carry out their duties if that were not the case.” Malbrough,

275 Va. at 169, 655 S.E.2d at 4. “Law enforcement officers do not violate the Fourth

Amendment’s prohibition of unreasonable seizures merely by approaching individuals on the

street or in other public places and putting questions to them if they are willing to listen.” United

States v. Drayton, 536 U.S. 194, 200 (2002). “[A] consensual encounter does not require any

justification,” White v. Commonwealth, 267 Va. 96, 104, 591 S.E.2d 662, 666 (2004), and

remains consensual “‘as long as the citizen voluntarily cooperates with the police,’” Payne v.

Commonwealth, 14 Va. App. 86, 88, 414 S.E.2d 869, 870 (1992) (quoting United States v.

Wilson, 953 F.2d 116, 121 (4th Cir. 1991)).

        Lawful consensual encounters are limited “to such encounters . . . in which a reasonable

person would feel free to disregard the police and go about his business.” Reittinger, 260 Va. at

236, 532 S.E.2d at 27 (quoting Florida v. Bostick, 501 U.S. 429, 434 (1991)) (internal citations

and quotation marks omitted). The reasonable-person test “presupposes an innocent person,”

Bostick, 501 U.S. at 438 (emphasis in original), “rather than one laboring under a consciousness

of guilt,” Malbrough, 275 Va. at 169, 655 S.E.2d at 4. “The consensual encounter becomes a

seizure ‘[o]nly when the officer, by means of physical force or show of authority, has in some

way restrained the liberty of a citizen.’” Id. (quoting Bostick, 501 U.S. at 434).

                                               -3-
       Various factors have been identified as relevant in determining whether an officer “by

means of physical force or show of authority” would cause a reasonable person to feel seized.

United States v. Mendenhall, 446 U.S. 544, 553-54 (1980). These factors include the

threatening presence of several officers, the display of weapons by officers, physical contact with

the citizen, and an officer’s language or tone of voice compelling compliance. Id.; see also

Harris v. Commonwealth, 266 Va. 28, 32, 581 S.E.2d 206, 209 (2003), and Londono v.

Commonwealth, 40 Va. App. 377, 398-99, 579 S.E.2d 641, 651 (2003) (citing Mendenhall, 446

U.S. at 554). “The decision whether the encounter was consensual must be made based on the

totality of the circumstances.” Harris, 266 Va. at 32, 581 S.E.2d at 209.

       Concluding the encounter between Jones and the deputies was consensual, the trial court

found that the deputies approached Jones with “no guns drawn” and engaged in “normal

conversation.” The trial court further found Jones was “cooperative” and there was “no evidence of

any coercion or overbearing his will in any way.” According to the trial court, “it took no time at

all” 1 and “[Jones] consented to [go with them].” As the Supreme Court recently observed:

                There is good reason for the rule that appellate courts must defer to the
           factual findings of the trial judge in Fourth Amendment cases. The fact
           patterns in such cases arrive in infinite variety, seldom or never exactly
           duplicated. Moreover, they involve consideration of nuances such as tone
           of voice, facial expression, gestures and body language seldom discernable
           from a printed record. The controlling inquiry [in determining whether a
           person was seized] is the effect of such matters on a reasonable person in
           the light of all the surrounding circumstances.

Malbrough, 275 Va. at 171, 655 S.E.2d at 5.

       According deference to the trial court, we cannot say its finding was plainly wrong or

unsupported by the evidence. The record demonstrates “no application of force, no intimidating

movement, no overwhelming show of force, no brandishing of weapons, no blocking of exits, no

       1
         The encounter lasted approximately ten minutes from the time the deputies approached
Jones to the time they arrested him.
                                           -4-
threat, no command, 2 not even an authoritative tone of voice.” Drayton, 536 U.S. at 204

(footnote added). Although the deputies were armed and wearing clothing identifying them as

members of the sheriff’s office, “mere presence of officers who are uniformed and armed does

not constitute a ‘show of authority’ that transforms a consensual encounter into a seizure” under

the Fourth Amendment. Dickerson v. Commonwealth, 266 Va. 14, 18, 581 S.E.2d 195, 197

(2003) (citation omitted). “That most law enforcement officers are armed is a fact well known to

the public. The presence of a holstered firearm thus is unlikely to contribute to the coerciveness

of the encounter absent active brandishing of the weapon.” Drayton, 536 U.S. at 205.

       Accordingly, because we find Jones did not carry his burden of showing the trial court

committed reversible error, we affirm the trial court’s judgment. 3

                                                                                Affirmed.

       2
         Deputy Feighner testified that although Jones accompanied them to the rental office
voluntarily, he would not have been free to leave had he tried. “An officer’s subjective
evaluation of the situation is not binding on this Court.” McLellan v. Commonwealth, 37
Va. App. 144, 154, 554 S.E.2d 699, 703 (2001) (detective’s subjective determination
unexpressed to defendant that he was not free to leave irrelevant). Since Deputy Feighner never
told Jones he was not free to leave, his subjective intent was irrelevant. Id.
       3
          Although Jones also argues the deputies were not acting in a private capacity, given our
holding, we need not reach that issue. We note, however, in its ruling on reconsideration of the
motion to suppress, the trial court declined to determine whether the deputies were acting in a
private capacity and the Commonwealth does not argue on appeal that the deputies were acting
in a private capacity.
                                               -5-


162 Cal.App.3d 427 (1984)
208 Cal. Rptr. 627
APPALACHIAN INSURANCE COMPANY, Petitioner,
v.
THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; UNION CARBIDE CORPORATION, Real Party in Interest.
Docket No. B006743.
Court of Appeals of California, Second District, Division Four.
December 5, 1984.
*430 COUNSEL
Antin, Stern, Litz & Grebow, Arthur Grebow, Edward Gartenberg, Dickstein, Shapiro & Morin, Sidney Dickstein, Michael E. Nannes and Howard M. Schiffman for Petitioner.
No appearance for Respondent.
Kelley, Drye & Warren, Shigeru Watanabe and Bruce L. Ishimatsu for Real Party in Interest.
OPINION
WOODS, P.J.
The issue in this case is whether a defendant can raise the doctrine of forum non conveniens after having agreed by contract to submit to the jurisdiction of any court of competent jurisdiction which the plaintiff requests. We hold that the contractual provision does not preclude application of the doctrine of forum non conveniens, which is designed to protect both the interests of the litigants and the public.
In May of 1984, plaintiff/real party in interest Union Carbide Corporation (Union Carbide) filed a complaint for declaratory relief in the Los Angeles *431 Superior Court regarding the construction and effect of an insurance policy issued to it by defendant/petitioner Appalachian Insurance Company (Appalachian).
Union Carbide is a New York corporation which has its principal place of business in Connecticut and conducts business in California. Appalachian is a Rhode Island corporation, which has its principal place of business in Rhode Island, and also conducts business in California.
According to the complaint, the parties entered into a special risk policy as of 1972, under which Appalachian agreed to provide Union Carbide with insurance for losses in excess of $500,000 per occurrence. A "Service of Suit" clause in that policy stated: "(a) It is agreed that, in the event of the failure of this Company to pay any amount claimed to be due hereunder, this Company, at the request of the Insured, will submit to the jurisdiction of any court of competent jurisdiction within the United States and will comply with all requirements necessary to give such court jurisdiction and all matters arising hereunder shall be determined in accordance with the law and practice of such court.
"(b) In any suit instituted against it upon this contract, this Company will abide by the final decision of such court or any appellate court in the event of an appeal.
"(c) Service of process in any such suit may be made: (1) upon the Company at its home office in Providence, Rhode Island; or (2) provided the Insured shall first notify this Company of its intention to sue, upon the highest officer having supervision of insurance (normally bearing a title such as Commissioner, Superintendent or Director of Insurance) in any State in the United States. Such officer is hereby authorized and directed to accept service of process on behalf of this Company in any such suit."
The complaint alleged that, in May of 1974, Kevin Haran and his father sued Union Carbide, based on Kevin's injuries when he burst into flames after being sprayed with Union Carbide's 6-12 Plus insect repellent. In April of 1984, about 10 days before the Haran trial, Union Carbide notified Appalachian of the pending claim. Appalachian told Union Carbide that further handling was subject to a complete reservation of its rights and that Union Carbide had breached its obligation by unreasonably failing to attempt to settle. In May of 1984, the Haran jury returned a verdict against Union Carbide for $2.75 million. Union Carbide asserted it was questionable whether Appalachian would fulfill its obligations under the policy in light of its reservation of rights.
*432 In June of 1984, Appalachian filed a notice of motion and motion to dismiss or stay the action on the ground of forum non conveniens. The motion added certain facts omitted from the complaint. Kevin Haran's injuries were sustained at his home in New York. The Haran trial took place in a New York state court. Union Carbide's insurer for the first $500,000 of liability per occurrence was American Motorists Insurance Company (AMI), an Illinois corporation. Union Carbide had refused a settlement offer near the close of trial of $650,000, despite Appalachian's unconditional offer to reimburse for the amount exceeding $500,000. After the verdict the Haran plaintiffs were granted the option to stipulate to a reduced verdict of $1.5 million or proceed to retrial on the damages issue.
Appalachian complained that Union Carbide had "selected this Court situated 2,500 miles from the locus of any act or person involved with the controversy solely to avail itself of a perceived benefit from the application of California law." It had recently filed against Union Carbide and AMI a complaint for declaratory relief in the United States District Court for the Southern District of New York, seeking a determination of coverage obligations for the Haran claim. It requested that the court dismiss Union Carbide's claim on the ground that California had no interest in the resolution of the controversy.
Appalachian filed with its motion the declaration of Arthur S. Barry, its assistant vice president responsible for claims administration of the Union Carbide policy. Mr. Barry detailed the progress of the Haran trial and settlement negotiations, indicating that all the witnesses were located either in New York or Connecticut. In his 18 years of experience, Mr. Barry had "come to understand that that [Service of Suit] clause was voluntarily developed by Lloyd's of London many years ago, as a response to competitor's arguments that Lloyd's was not amenable to process in the United States and that the potential customer should therefore place its business with a domestic company that was subject to service process." He further stated that he did not understand the clause as intended to give an insured the option of suing in a state bearing no relationship to the claim, and Appalachian certainly had not intended that result.
In opposing Appalachian's motion, Union Carbide relied on the service of suit provision and the fact that both parties had substantial business operations in California. A declaration by a Union Carbide employee indicated that the company had over $233 million in assets in this state in 1982 and paid over $1.8 million in franchise and property taxes here in 1983. Appalachian's financial statement showed that in the first quarter of 1984, it *433 had written direct premiums of over $1.38 million and paid direct losses of over $760,000 in California.
The trial court denied Appalachian's motion, finding: "Defendant agreed in the insurance contract that plaintiff could choose the forum. Implicit in the agreement was that absent an unreasonable choice, the selection should be honored. [¶] California may be inconvenient but it is no [sic] an unreasonable choice."
(1a) Appalachian sought mandate with this court, complaining that the trial court failed to apply the applicable criteria and abused its discretion.[1] We issued the alternative writ.
(2) As the United States Supreme Court explained in Gulf Oil Corporation v. Gilbert (1947) 330 U.S. 501, 507 [91 L.Ed. 1055, 1062, 67 S.Ct. 839]: "The principle of forum non conveniens is simply that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute." Both private and public interests are pertinent: "An interest to be considered, and the one likely to be most pressed, is the private interest of the litigant. Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforcibility of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, `vex,' `harass,' or `oppress' the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed. [¶] Factors of public interest also have a place in applying the doctrine. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at *434 home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself." (Id., at pp. 508-509 [91 L.Ed. at pp. 1062-1063].) (Italics added; fn. omitted.)
(3) In California, the doctrine of forum non conveniens is codified in Code of Civil Procedure section 410.30, subdivision (a) which states: "When a court upon motion of a party or its own motion finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may be just."
The doctrine "is typically applied to litigation where all of the parties are out-of-state residents and where the cause of action arose outside the forum state. [Citation.]" (Thomson v. Continental Ins. Co. (1967) 66 Cal.2d 738, 742 [59 Cal. Rptr. 101, 427 P.2d 765]; Judicial Council com. to Code Civ. Proc., § 410.30; 14 West's Annot. Code Civ. Proc. (1973 ed.) p. 493; Note, Forum Non Conveniens in California: Code of Civil Procedure Section 410.30 (1970) 21 Hastings L.J. 1245, 1247.)
(4) Like Gulf Oil, the California courts have recognized that the doctrine requires consideration of both public and private interests. Thus, in Price v. Atchison, T. & S.F. Ry. Co. (1954) 42 Cal.2d 577 [268 P.2d 457, 43 A.L.R.2d 756], the court stated: "[W]e are of the view that the injustices and the burdens on local courts and taxpayers, as well as on those leaving their work and business to serve as jurors, which can follow from an unchecked and unregulated importation of transitory causes of action for trial in this state ... require that our courts, acting upon the equitable principles and within the constitutional limits hereinabove stated, exercise their discretionary power to decline to proceed in those causes of action which they conclude, on satisfactory evidence, may be more appropriately and justly tried elsewhere. [Citation.]" (Id., at pp. 583-584.)
Similarly, in Goodwine v. Superior Court (1965) 63 Cal.2d 481, 485 [47 Cal. Rptr. 201, 407 P.2d 1], the Supreme Court said: "In determining the applicability of the doctrine, the court must consider the public interest as well as the private interests of the litigants."
(5a) The applicable criteria for ruling on a motion to dismiss or stay on the ground of forum non conveniens are set forth in Great Northern Ry. Co. v. Superior Court (1970) 12 Cal. App.3d 105 [90 Cal. Rptr. 461].
*435 The petitioner in Great Northern was a railway company with its principal place of business in Minnesota and general offices in Washington. It operated a small amount of track in California and maintained "off-line" offices here for solicitation of business. The decedent, a Washington resident, was a railway employee who was killed in Washington while performing his duties. The decedent's widow employed a California law firm to bring the wrongful death action against the railway. The law firm secured the appointment of its employee as the California administratrix of the estate, and filed a California action as her counsel. The trial court refused to dismiss on forum non conveniens grounds even though the decedent had no estate in California other than the cause of action, all the anticipated witnesses came from Washington, the California case would take longer to reach trial than a Washington case would, and it would cost the railway considerably more money.
(6) Great Northern recognized that application of the doctrine of forum non conveniens rests in the trial court's discretion, and that the plaintiff's choice of forum is rarely disturbed unless the balance weighs strongly in favor of the defendant. (12 Cal. App.3d at p. 110.) "Nevertheless, the exercise of such discretion may not be arbitrary; it must be exercised in conformity with the spirit of the law and in a manner to subserve and not impede the ends of substantial justice. [Citation.] Where the balance does weigh heavily in a defendant's favor it becomes the court's duty to apply the doctrine." (Ibid.)
Great Northern gave only "scant consideration" to the fact that the railway did some business in California, since that fact provided venue, but forum non conveniens allows a court to resist imposition on its jurisdiction even when venue is established. (12 Cal. App.3d at p. 112.) (5b) The opinion went on to list 25 legitimate factors which should be considered in determining the applicability of the doctrine. (12 Cal. App.3d at pp. 112-115.)[2]
*436 Weighing those factors, the Great Northern court found that the trial court had abused its discretion in failing to apply the doctrine of forum non conveniens, as "the ends of justice and fairness require that the action be tried in Washington where the accident occurred and where the real party in interest and the witnesses reside." (12 Cal. App.3d at p. 115.)
(1b) In the case at bench, Union Carbide has never controverted Appalachian's claims that 22 of the 25 Great Northern criteria weigh in favor of dismissal of this action. Union Carbide has emphasized only that both it and Appalachian maintain substantial business operations in this state. That fact does not automatically provide California with an interest in this dispute. (7) As we found in Gould, Inc. v. Health Sciences, Inc. (1976) 54 Cal. App.3d 687, 693 [126 Cal. Rptr. 726], the fact that a large national corporation conducts some business in this state does not bring it within the favored position, for forum non conveniens purposes, of a plaintiff residing solely in this state.[3]
*437 In Outboard Marine Corp. v. Superior Court (1976) 59 Cal. App.3d 434, 442 [130 Cal. Rptr. 642], the court held that a California trial court abused its discretion in denying a motion to dismiss on forum non conveniens grounds, where there was no legitimate interest to be served by a California trial, and "[t]he ends of justice and fairness to litigants, courts, and taxpayers require[d] that the action be tried in Wyoming." (1c) Similarly here, if the Great Northern criteria apply, the trial court abused its discretion in failing to grant Appalachian's motion. The issue is whether those criteria apply, given the service of suit clause in the insurance policy.
We find the logic of Plum Tree, Inc. v. Stockment (3rd Cir.1973) 488 F.2d 754, to be compelling.
Plum Tree discussed the effect of a forum selection clause on a motion to transfer pursuant to 28 United States Code section 1404(a), which provides: "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." The court stated: "[T]he existence of a valid forum-selection clause whose enforcement is not unreasonable does not necessarily prevent the selected forum from ordering a transfer of the case under § 1404(a). Congress set down in § 1404(a) the factors it thought should be decisive on a motion for transfer. Only one of these  the convenience of the parties  is properly within the power of the parties themselves to affect by a forum-selection clause. The other factors  the convenience of witnesses and the interest of justice  are third party or public interests that must be weighed by the district court; they cannot be automatically outweighed by the existence of a purely private agreement between the parties. Such an agreement does not obviate the need for an analysis of the factors set forth in § 1404(a) and does not necessarily preclude the granting of the motion to transfer." (Plum Tree, Inc. v. Stockment, supra, 488 F.2d at pp. 757-758.)
In Gould, Inc. v. National Union Fire Insurance Co. (N.D. Ill. Nov. 17, 1983, Dock. No. Civ. 82-C-3154 [Lexis Genfed library  cases file]), the court relied on Plum Tree in granting an insurance company's motion to transfer an action from an Illinois to a Missouri district court. Even though the policy contained a provision that the insurance company would submit at the insured's request to the jurisdiction of any court of competent jurisdiction within the United States, the third party or public interests had to be weighed by the trial court. The service of suit clause meant that the *438 convenience of the parties weighed in favor of suit in the forum chosen by the plaintiff, but transfer could be warranted by the remaining factors.
(8a) We agree with the Plum Tree-Gould reasoning. In California, as in the federal courts, the doctrine of forum non conveniens is designed to serve the interests both of the litigants and the public. (Price v. Atchison, T. & S.F. Ry. Co., supra, 42 Cal.2d at pp. 583-584; Goodwine v. Superior Court, supra, 63 Cal.2d at p. 485; Great Northern Ry. Co. v. Superior Court, supra, 12 Cal. App.3d at pp. 112-115.) Those public interests "cannot be automatically outweighed by the existence of a purely private agreement between the parties." (Plum Tree, Inc. v. Stockment, supra, 488 F.2d at p. 758.) (1d) The service of suit clause did not absolve the trial court from its duty to consider the effect of the Great Northern criteria on the case at bench.
(8b) Union Carbide has relied on a series of cases which denied insurance companies the right to transfer state court actions by insureds to neighboring federal courts due to "Service of Suit" clauses in the policies.[4] Those cases would be controlling here if we were considering an attempt by Appalachian to remove the litigation from the state court to the local federal court in California. This case involves something totally different: the propriety of trial in a distant forum which bears no connection to the events of the case. We see no reason why the taxpayers and courts of California should bear the burden of this lawsuit between two East Coast corporations respecting an East Coast claim. California courts do not throw their doors wide open to forum shopping. (Henderson v. Superior Court (1978) 77 Cal. App.3d 583, 593-594 [142 Cal. Rptr. 478].)
Our conclusion is further strengthened by the declaration of Appalachian's vice president, indicating that the service of suit clause was not intended to give Union Carbide the right to sue in a state bearing no relationship to the claim. (9) Such evidence is admissible to explain a meaning to which the language of a contract is reasonably susceptible. (Pacific Gas & E. Co. v. G.W. Thomas Drayage etc. Co. (1968) 69 Cal.2d 33 [69 Cal. Rptr. 561, 442 P.2d 641, 40 A.L.R.3d 1373], 37; 2 Jefferson, Cal. Evidence Benchbook (2d ed. 1984) Parole Evidence Rule, § 32.2, *439 pp. 1138-1140.) (8c) Union Carbide submitted no contrary declaration. We decline to give the service of suit clause a meaning which was not intended by the parties.
Finally, we stress the critical distinction between this case and cases which have enforced contractual clauses which achieve certainty and predictability by providing for a specific forum. (See generally, Note, Forum Selection Clauses in International and Interstate Commercial Agreements (1982) U. Ill.L.Rev. 133, 134.)
In The Bremen et al. v. Zapata Off-Shore Co. (1971) 407 U.S. 1 [32 L.Ed.2d 513, 92 S.Ct. 1907], an American and a German corporation had contracted that any disputes were to be resolved in the London Court of Justice. The Supreme Court enforced the clause, notwithstanding the absence of any connection between the dispute and Britain. Recognizing that forum selection clauses had not been favored historically, the court adopted the more modern view that "such clauses are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be `unreasonable' under the circumstances." (Id., at p. 10 [32 L.Ed.2d at p. 520].) Factors which could render such clauses unreasonable included fraud, undue influence, overwhelming bargaining power, or a showing that enforcement of the clause would effectively deprive a party of his day in court. (Id., at pp. 12, 18 [32 L.Ed.2d at pp. 521, 525].)
The difference between The Bremen and the case at bench lies in the type of forum selection clause involved. In The Bremen selection of the specific forum in London was "clearly a reasonable effort to bring vital certainty to this international transaction and to provide a neutral forum...." (407 U.S. at p. 17 [32 L.Ed.2d at p. 525].) Given the strong evidence that the clause was an important part of the agreement, the parties must have conducted their negotiations with the clause prominently in mind. (Id., at p. 14 [32 L.Ed.2d at p. 523].) It could therefore be said with reasonable assurance that any inconvenience had been contemplated when the parties entered the contract. It is "difficult to see why any such claim of inconvenience should be heard to render the forum clause unenforceable." (Id., at p. 16 [32 L.Ed.2d at p. 524].)
In contrast, the service of suit clause involved here provided no certainty, as it did not specify a particular forum. There is also no indication that the parties foresaw use of a forum bearing no relationship to the events; indeed, the declaration of Appalachian's vice president is to the contrary. "The remoteness of the forum [suggests] that the parties did not have the particular controversy in mind when they made their agreement." (The Bremen *440 et al. v. Zapata Off-Shore Co., supra, 407 U.S. at p. 17 [32 L.Ed.2d at p. 524].)
For similar reasons, this case is different from Smith, Valentino & Smith, Inc. v. Superior Court (1976) 17 Cal.3d 491 [131 Cal. Rptr. 374, 551 P.2d 1206], which enforced a clause under which each contracting party agreed to bring an action only in the other's home state. The Smith court found that "both [parties] reasonably [could] be held to have contemplated in negotiating their agreement the additional expense and inconvenience attendant on the litigation of their respective claims in a distant forum; such matters are inherent in a reciprocal clause of this type." (Id., at p. 496.) Such matters are not inherent in the type of forum selection clause involved here.[5]
The principle that the doctrine of forum non conveniens protects the public interest as well as that of the litigants is paramount in our determination that the forum selection clause in this contract does not preclude the application of the doctrine of forum non conveniens.
(1e) Code of Civil Procedure section 410.30, subdivision (a) authorizes either a stay or a dismissal on forum non conveniens grounds. Because California has no interest in the lawsuit and neither party is a California resident, dismissal is the appropriate remedy. (Archibald v. Cinerama Hotels (1976) 15 Cal.3d 853, 859 [126 Cal. Rptr. 811, 544 P.2d 947].)
Let the peremptory writ of mandate issue directing dismissal of the action.
Kingsley, J., and Arguelles, J., concurred.
NOTES
[1]  The petition indicates that AMI has filed its answer in the pending New York case and also has filed a counterclaim against Appalachian and a cross-complaint against Union Carbide.
[2]  Those factors are: 1. The amenability of the defendant to personal jurisdiction in the alternative forum.

2. The relative convenience to the parties and witnesses of trial in the alternative forum.
3. The differences in conflict of law rules applicable in this state and in the alternative forum.
4. The principal place of business of the defendant.
5. Whether the situation, transaction or events out of which the action arose exists, occurred in, or had a substantial relationship to this state.
6. Whether any party would be substantially disadvantaged in having to try the action (a) in this state or (b) in the forum in which the moving party asserts it ought to be tried.
7. Whether any judgment entered in the action would be enforceable by process issued or other enforcement proceedings undertaken in this state.
8. Whether witnesses would be inconvenienced if the action were prosecuted (a) in this state or (b) in the forum in which the moving party asserts it ought to be prosecuted.
9. The relative expense to the parties of maintaining the action (a) in this state and (b) in the state in which the moving party asserts the action ought to be prosecuted.
10. Whether a view of premises by the trier of fact will or might be necessary or helpful in deciding the case.
11. Whether prosecution of the action will or may place a burden on the courts of this state which is unfair, inequitable or disproportionate in view of the relationship of the parties or of the cause of action to this state.
12. Whether the parties participating in the action have a relationship to this state which imposes upon them an obligation to participate in judicial proceedings in the courts of this state.
13. The interest, if any, of this state in providing a forum for some or all of the parties to the action.
14. The interest, if any, of this state in regulating the situation or conduct involved.
15. The avoidance of multiplicity of actions and inconsistent adjudications.
16. The relative ease of access to sources of proof.
17. The availability of compulsory process for attendance of witnesses.
18. The relative advantages and obstacles to a fair trial.
19. The public interest in the case.
20. Whether administrative difficulties and other inconveniences from crowded calendars and congested courts are more probable in the jurisdiction chosen by plaintiff.
21. Whether imposition of jury duty is imposed upon a community having no relation to the litigation.
22. The injustice to, and burden on, local courts and taxpayers.
23. The difficulties and inconvenience to defendant, to the court, and to jurors hearing the case, attending presentation of testimony by depositions.
24. Availability of the forum claimed to be more appropriate.
25. The other practical considerations that make trial of a case convenient, expeditious and inexpensive.
[3]  A different situation would be presented if the litigants were incorporated in California or had their principal place of business here. (Holmes v. Syntex Laboratories, Inc. (1984) 156 Cal. App.3d 372, 387 [202 Cal. Rptr. 773]; Bechtel Corp. v. Industrial Indem. Co. (1978) 86 Cal. App.3d 45, 51 [150 Cal. Rptr. 29]; Brown v. Clorox Co. (1976) 56 Cal. App.3d 306, 311 [128 Cal. Rptr. 385].) Moreover, we see no significance to the fact Appalachian utilized the courts of this state in Appalachian Insurance Co. v. Rivcom Corp. (1982) 130 Cal. App.3d 818, 821 [182 Cal. Rptr. 11], as that case involved property in Ventura County.
[4]  General Phoenix Corporation v. Maylon (S.D.N.Y. 1949) 88 F. Supp. 502; Euzzino v. London & Edinburgh Insurance Company (N.D.N.C. 1969) 228 F. Supp. 431; Perini Corporation v. Orion Insurance Company (E.D. Cal. 1971) 331 F. Supp. 453; Wilson v. Continental Casualty Company (1966) 255 F. Supp. 622; Oil Well Service Company v. Underwriters at Lloyd's London (C.D. Cal. 1969) 302 F. Supp. 384; Capital Bank & Trust v. Associated Intern. Ins. (M.D. La. 1984) 576 F. Supp. 1522.
[5]  For the same reason, we reject the application of Pelleport Investors v. Budco Quality Theatres (1984) 741 F.2d 273, 280. Pelleport enforced a clause that disputes were to be litigated in Los Angeles Superior Court, finding that such clauses allowed "parties in routine commercial transactions to eliminate the uncertainties of where litigation will take place." The clause here was fraught with uncertainty. The same distinction applies to Furda v. Superior Court (1984) 161 Cal. App.3d 418 [207 Cal. Rptr. 646], in which the contract provided that any disputes were to be litigated in Michigan, one of the parties' home state.