The well crafted opinion of the majority has persuaded me that Mr. Ma did not have the right *1855to insist upon having counsel present at the proposed meeting with TRW’s security department. There is insufficient evidence to support the trial court’s finding that the interrogation would have been sufficiently custodial so as to trigger Mr. Ma’s Fifth Amendment right to counsel.
Ma’s subjective fears that he might lose his job, his security clearance or be subjected to criminal prosecution if he attended the interview do not, in themselves, convert the interview into a custodial situation without some objective indicia that, had he attended, he would have been deprived of his freedom of movement. There is nothing in the record from which I can conclude that, had the interview fulfilled Ma’s fears, he could not have simply declined to answer any further questions and left. I therefore concur in the disposition of the writ but I dissent from the majority’s conclusion that TRW was not a government actor.
The United States Supreme Court’s attempt to answer the question of when a private entity can be held to be a state actor has yielded a number of different tests and formulations. (See Lugar v. Edmondson Oil Co. (1982) 457 U.S. 922, 939 [73 L.Ed.2d 482, 495-496, 102 S.Ct. 2744].) Consistently, however, the court has emphasized that whatever test is used, the determination is necessarily a “fact-bound inquiry.” (Ibid.; Burton v. Wilmington Pkg. Auth. (1961) 365 U.S. 715, 722 [6 L.Ed.2d 45, 50, 81 S.Ct. 856] [“Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance.”]; Edmonson v. Leesville Concrete Co. (1991) 500 U.S. 614, 620-622 [114 L.Ed.2d 660, 673-674, 111 S.Ct. 2077, 2083].)
In the recent Edmonson case, the Supreme Court set forth a two-part inquiry for determining when a private entity can be deemed a state actor for purposes of a claimed constitutional deprivation. “We [ask] first whether the claimed constitutional deprivation resulted from the exercise of a right or privilege having its source in state authority, [citation]; and second, whether the private party charged with the deprivation could be described in all fairness as a state actor, [citation].” (Edmonson v. Leesville Concrete Co., supra, 500 U.S. at p. 620 [114 L.Ed.2d at p. 673, 111 S.Ct. at pp. 2082-2083].) With respect to the second inquiry, the court suggested certain principles of general application. “[I]t is relevant to examine the following: the extent to which the actor relies on governmental assistance and benefits, [citations]; whether the actor is performing a traditional governmental function, [citations]; and whether the injury caused is aggravated in a unique way by the incidents of governmental authority, [citation].” (500 U.S. at pp. 621-622 [114 L.Ed.2d at p. 674, 111 S.Ct. at p. 2083].) Applying these principles to the facts of this case, I would conclude that the trial court correctly found TRW to be a state actor for purposes of Ma’s claim that he was deprived of his Fifth Amendment right to counsel.
*1856With respect to the first part of the inquiry, it is clear that TRW’s investigation of Ma was pursuant to the exercise of a right originating in state authority. The requirement in paragraph 7(c) of the ISM that TRW initiate a preliminary inquiry to ascertain all the circumstances surrounding even the suspicion of the compromise of classified information was clearly a delegation of authority by the federal government to TRW in the defense of the country and its national security, an area over which the federal government exercises hegemony either directly or through its agents. (See Becker v. Philco Corporation (4th Cir. 1967) 372 F.2d 771 [defense contractor immune from libel suit of its employees for statements made by employer to United States under terms of a defense contract].)
With respect to the second part of the Edmonson inquiry, TRW’s status as a defense contractor and the nature of its investigative obligations under the ISM are of such a nature that TRW can be fairly described as a state actor. Edmonson directs our consideration to three subfactors, the extent the private authority relies on governmental assistance and benefits; whether the entity is performing a traditional governmental function; and whether the claimed inquiry is aggravated in a unique way by the incidents of governmental authority. (Edmonson Leesville Concrete Co., supra, 500 U.S. at pp. 620-622 [114 L.Ed.2d at pp. 673-674, 111 S.Ct. at p. 2083].) In effect, these subfactors can be collapsed into a single question: Is the private entity performing a function traditionally performed by government for which it reaps a benefit? The answer here is yes. TRW is a defense contractor and reaps a financial benefit from this status. It is true, of course, that, without something more, “[a]cts of such private contractors do not become acts of the government by reason of their significant or even total engagement in performing public contracts.” (Rendell-Baker v. Kohn (1982) 457 U.S. 830 841 [73 L.Ed.2d 418, 427, 102 S.Ct. 2764].) The something more in this case is that the nature of TRW’s work involves the defense of the country and its national security, a function traditionally the exclusive prerogative of the federal government. (San Francisco Arts & Athletics v. U.S.O.C. (1987) 483 U.S. 522, 544 [97 L.Ed.2d 427, 453, 107 S.Ct. 2971] [“This Court also has found action to be governmental action when the challenged entity performs functions that have been ‘“traditionally the exclusive prerogative” ’ of the Federal Government. [Citations.]” (Italics omitted.)]; Becker v. Philco Corporation, supra, 372 F.2d 771 [defense contractor immune from defamation action for statements made to the United States under defense contract].) Finally, the specific constitutional violation asserted by Ma of deprivation of his Fifth Amendment right to counsel flows from the investigative responsibilities imposed on TRW because the investigation was a first step that may have exposed Ma to federal criminal prosecution.
In this connection, I am not persuaded by the majority’s assertion that because paragraph 7(c) of the ISM did not specify how the preliminary *1857inquiry was to be conducted, the inquiry did not qualify as state action. This is a distinction without a difference in view of the undisputed fact that the end result of the inquiry might be criminal prosecution. Additionally, Rendell-Baker v. Kohn, supra, 457 U.S. 830, on which the majority relies, is easily distinguishable on its facts as is Blum v. Yaretsky (1982) 457 U.S. 991 [73 L.Ed.2d 534, 102 S.Ct. 2777]. In neither case did the private entity fulfill the kind of traditional governmental function that was involved here nor were they obligated to perform policing tasks on behalf of the federal government.
I therefore dissent on this issue.
A petition for a rehearing was denied July 21, 1994, and the petition of real party in interest for review by the Supreme Court was denied September 15, 1994.
*1858Pages 1316-1563:
(Armstrong World Industries, Inc. v. Aetna Casualty & Surety Co.1; People v. Amador2; People v. Swain3; California School Employees Assn. v. Mann Community College Dist.4; Bewley v. Franchise Tax Bd.5; Nahrstedt v. Lakeside Village Condominium Assn.6; Montrose Chemical Corp. v. Admiral Ins. Co.7; Griset v. Fair Political Practices Com.8; People v. Vaughan9; and People v. Canady10)
REVIEWS GRANTED
Reprinted without change in 30 Cal.App.4th 1117, to permit tracking pending review by the Supreme Court.
Reprinted without change in 30 Cal.App.4th 1247, to permit tracking pending review by the Supreme Court.
Reprinted without change in 30 Cal.App.4th 1461, to permit tracking pending review by the Supreme Court.
See 8 Cal.4th 333 for Supreme Court opinion.
Reprinted without change in 30 Cal.App.4th 1469, to permit tracking pending review by the Supreme Court.
See 8 Cal.4th 361 for Supreme Court opinion.
Reprinted without change in 30 Cal.App.4th 1474, to permit tracking pending review by the Supreme Court.
See 8 Cal.4th 851 for Supreme Court opinion.
Reprinted without change in 30 Cal.App.4th 1498, to permit tracking pending review by the Supreme Court.
Reprinted without change in 30 Cal.App.4th 1508, to permit tracking pending review by the Supreme Court.