In re J.S. CA1/3 ( 2016 )

Filed 4/22/16 In re J.S. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
In re J.S., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v. A143379
J.S.,
(San Mateo County
Defendant and Appellant. Super. Ct. No. JV81923)
This is an appeal from jurisdictional and dispositional findings and orders in a
juvenile matter. After the juvenile court sustained a charge of second-degree robbery,
appellant J.S. (minor) brought this challenge, asserting that his incriminating statements
during a custodial interrogation were admitted to his prejudice in violation of his
constitutional rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On September 5, 2014, a juvenile wardship petition was filed in San Francisco
Superior Court charging minor, age 15, with second-degree robbery (Pen. Code, § 211),
1
and felony assault with force likely to cause great bodily injury (Pen. Code, § 245, subd.
(a)(4)).1 This petition was based upon the following events.
On September 3, 2014, at about 2:45 p.m., two German tourists, Sebastian
Teschke and Vivian Weib (hereinafter, victims), were walking near the intersection of
Lombard and Jones Streets in San Francisco. As a silver Honda Civic approached, three
or four youths wearing back Neoprene masks exited the car and surrounded the victims.
One of the youths tried to grab the strap of a single lens camera hanging from victim
Teschke’s neck. The victims attempted to flee, screaming for help, but two or more of
the youths caught up with them. One of these youths, dressed in camouflage pants and
later identified as co-defendant O.F., knocked Teschke to the ground and kicked him.
Co-defendant W.R. pulled the camera out of Teschke’s hands. O.F. pulled the strap on
the camera bag until it broke from Teschke’s arm. The youths then returned to the Honda
Civic, which then sped up Jones Street towards Greenwich Street.
Officer James Lewis, who was on motorcycle patrol at the time, witnessed this
robbery as he approached the intersection of Lombard and Jones Streets. After reporting
the incident to police dispatch, Officer Lewis ordered the co-defendants to stop, but they
ignored him and sped off. Officer Lewis thus activated his lights and siren and pursued
them for about eight blocks. However, once the co-defendants reached the intersection of
Greenwich and Powell Streets, they jumped out of the car and ran off in separate
directions. The driverless Honda Civic continued to roll until eventually crashing into a
BMW travelling westbound on Greenwich.
Officer Jason Hui, responding to the scene on his motorcycle, arrived just in time
to see four boys tumble out of the Honda Civic and run away. Officer Hui chased three
of the boys, one of which was wearing a red shirt and two of which were wearing dark
clothing. Eventually, the boys ran into the office of the Joe DiMaggio Playground,
heading toward a south side exit door. By this time, however, Officer Hui had reached
this door, so the boys turned around and fled out the door they had entered. Shortly
1
Unless otherwise stated, all statutory citations herein are to the Penal Code.
2
thereafter, Officer Hui noticed three people hiding underneath nearby parked cars.
Officers pulled them out and took them into custody. Officer Hui later identified minor
in court as one of the boys that he had chased.
Sergeant Rich Jones was assigned to search the abandoned Civic and found a
Canon SLR camera lying on the right front passenger floorboard underneath a neoprene
mask. The camera was subsequently returned to the victim.
Witness Gareth Morris participated in “cold show” identification procedures at
about 4:20 p.m. on the day in question. Morris identified minor, who was handcuffed
and standing by himself next to a police car, as one of the robbery’s perpetrators.
Specifically, Morris identified minor based on his “Timberland boots and rigid jeans
. . . .” Morris also identified co-defendant O.F. based on his camouflage pants. Morris
could not, however, identify minor based upon a photograph taken of him at the time of
his arrest.
Following the “cold show” procedure, minor was taken to San Francisco’s Central
Police Station for booking. Just past 7:00 p.m., about four hours after being taken into
custody, minor was questioned by Sergeant Jones and Inspector Steve Paulson in the
station’s lunchroom. The officers asked minor whether he preferred to have a parent or
guardian present during the interview. Minor responded that he had been staying with his
mother, but did not have her telephone number and, thus, could not call her. When the
officers told minor he could chose to not answer their questions without the presence of a
parent, or to proceed with the interview by himself, minor responded that he was willing
to talk to them without anyone present. Thereafter, minor made incriminating statements,
including an admission that he had been with the co-defendants in the Honda Civic,
seated in the backseat behind the driver. About seven minutes into the interview,
however, minor opted to invoke his right to silence and the interrogation ended.
On September 29, 2014, minor’s counsel joined in a motion filed by co-defendants
O.F. and W.R. to exclude statements made by the minors in their respective custodial
interviews after being arrested. Defense counsel argued minor’s custodial statements
3
were involuntary when made, and were not admissible pursuant to the Fifth Amendment
of the United States Constitution.
During the subsequent three-day jurisdictional hearing that began September 29,
2014, the juvenile court denied the co-defendants’ motion to suppress, leading to the
admission of minor’s incriminating statements. Specifically, the juvenile court
considered the following recorded interview of minor by Sergeant Jones and Inspector
Paulson in the lunchroom of San Francisco’s Central Police Station at about 7:00 p.m. on
the date in question:
“SERGEANT JONES: How old are you?
“[MINOR]: 15.
“SERGEANT JONES: 15. Sir, you have the right to remain silent. Do you understand?
“[MINOR]: Yes, sir.
“SERGEANT JONES: Anything you say may be used against you in court. Do you
understand?
“[MINOR]: Yes, sir.
“SERGEANT JONES: You . . . don’t have to call me ‘sir’. . . . Okay? You have the
right to the presence of an attorney before and during any questioning. Do you
understand?
“[MINOR]: Yes.
“SERGEANT JONES: If you cannot afford an attorney, one will be appointed to you
free of charge before any questioning, if you want. Do you understand?
“[MINOR]: Yes.
“SERGEANT JONES: Um, because you’re also a juvenile, you have the right to have
your parents here. Uh, do you want me to call Mom or Dad and have them sit here while
I speak to you?
“[MINOR]: I don’t know — my Mom’s the one taking care of me right now. Don’t
know her number.
“SERGEANT JONES: Okay. That . . . do you want an adult to sit in while I speak to
you or is it okay if I speak to you on your own?
4
“[MINOR]: I would like for my Mom to be here but there’s no way we can call her.
“SERGEANT JONES: Well, then, I don’t think I can speak to you . . . if that’s your
stance. Now . . . I’m not telling you to change your mind but . . . if you’re telling me you
want a parent or guardian here first, then there’s no way for me to speak to you. So what
would you like?
“[MINOR]: Talk.
“SERGEANT JONES: You want to speak to me. So do you want to speak outside of
....
“[MINOR]: There ain’t nothing to talk about though.
“SERGEANT JONES: Well, I’m gonna get to that. [¶] . . . [¶] Do you want to speak to
that outside . . . of the presence of a, uh, guardian then?
“[MINOR]: [T]hat’s fine.
“SERGEANT JONES: Okay. That’s a choice. Are you comfortable with that?
“INSPECTOR PAULSON: Yeah. You’re doing this by your own free will. We didn’t
coerce you into talking to us right . . . .
“SERGEANT JONES: . . . It should be noted we’re in, uh, Central Station’s lunchroom.
It’s approximately 15 feet by 15 feet wide. It’s illuminated by, uh, lots of lights, would
you say, [minor]? You have to say yes or not. I’m sorry, sir.
“[MINOR]: Yes.
“SERGEANT JONES: Okay. Uh, your current home address?
“INSPECTOR PAULSON: Hey, . . . so when I asked you . . . if we could converse, you
. . . shook your head ‘no.’ Is that correct?
“[MINOR]: What do you mean?
“SERGEANT JONES: Did we convince you to talk to us?
“INSPECTOR PAULSON: You’re doing it on your own free will, correct?
“[MINOR]: Yeah.
“INSPECTOR PAULSON: We just need a yes or no.
“SERGEANT JONES: It . . . is your choice, is what we’re gettin’ at. Do you agree with
that?
5
“[MINOR]: Yeah. I don’t know what’s going on.
“SERGEANT JONES: Well, I’m gonna get to that but we have to get to that point.
“[MINOR]: Okay.
“SERGEANT JONES: Okay, there’s a whole set of procedures I gotta follow. Right?
“[MINOR]: Yeah.”
Minor acknowledged being on probation in San Mateo County for “strong-arm
robbery,” and being the subject of an outstanding arrest warrant. He also acknowledged
having recently run away from home.
The colloquy then continued:
“SERGEANT JONES: Okay. . . . Let’s just talk about tonight. Right? So, um it’s
important that you not fib at all because it looks exceptionally poor for you. You
understand that? Yes or no, sir.
“[MINOR]: Yeah.
“SERGEANT JONES: Ok. Yes? . . . ‘yeah’ really bothers me. It’s just a personal thing.
“[MINOR]: Uh, yes.
“SERGEANT JONES: Thank you very much. Um. Where were you sitting in the car?
“[MINOR]: Left side.
“SERGEANT JONES: Left, back? Or, driver.
“[MINOR]: Behind the driver.
“SERGEANT JONES: So in the back seat on the far left? Is that correct?
“[MINOR]: Yes.
“SERGEANT JONES: Thank you. When they stopped the car, did you get out wearing
your mask? You’re swinging your head . . . indicating no. . . . But for the tape, then? . . .
“[MINOR]: No.
“SERGEANT JONES: So were you wearing your mask
“[MINOR]: No.
“SERGEANT JONES: Did you put a mask on after that?
“[MINOR]: No.
“SERGEANT JONES: Okay. Did you have a hoodie?
6
“[MINOR]: No.
“SERGEANT JONES: What were you wearing?
“[MINOR]: My jacket.
“SERGEANT JONES: Your jacket. What color is your jacket, sir?
“[MINOR]: Black.
“SERGEANT JONES: What kind of jacket?
“[MINOR]: Columbia. [¶] . . . [¶] Like a North Face. [¶] . . . [¶]
“SERGEANT JONES: The . . . nylon ones, right? Okay. Um. Did you make it all the
way across the street?
“[MINOR]: Yes.
“SERGEANT JONES: Yes. You didn’t take the camera. Just the camera. Just the
actual, physical camera. Is that correct?
“[MINOR]: Yes.
“SERGEANT JONES: Yes, you did not take it? That was a convoluted question. Let me
re-word it so that you don’t get confused. Did you take the camera itself?
“[MINOR]: No.
“SERGEANT JONES: No. You just took the bag. Is that correct?
“[MINOR]: No bag.
“SERGEANT JONES: The black bag, that you handed over? You didn’t take it?
“[MINOR]: Huh-uh.
“SERGEANT JONES: Oh, okay. Did you see who took it? I’m not asking for names.
Okay. Did you see that it was taken?
“[MINOR]: No.
“SERGEANT JONES: Oh, you weren’t there.
“[MINOR]: No.
“SERGEANT JONES: Oooh.
“[MINOR]: I didn’t see what happened.”
Following this exchange, minor denied getting out of the car to participate in the
robbery, and suggested his co-defendants were liars. Minor then asked for an attorney,
7
and the interview immediately ended.
On October 1, 2014, the juvenile court sustained the second-degree robbery charge
against minor (as well as co-defendants O.F. and G.E.), and dismissed the felony assault
charge.2 The juvenile court then declared the maximum term of minor’s confinement to
be five years, four months, and transferred the matter to San Mateo County juvenile court
for disposition.
On October 9, 2014, the San Mateo County juvenile court accepted transfer before
accepting minor’s admission of a notice of probation violation filed June 27, 2014, for
leaving his mother’s residence and posting photographs of himself holding a gun on
social media. On October 23, 2014, the juvenile court continued minor’s wardship and
committed him to Camp Glenwood, a residential juvenile program in San Mateo County,
subject to various terms and conditions. This timely appeal followed.
DISCUSSION
The primary contention raised by minor on appeal is that the juvenile court
violated his constitutional rights under the Fifth Amendment of the United States
Constitution by admitting into evidence incriminating statements improperly obtained
from him by police officers during a custodial interrogation. Specifically, minor
contends the court committed prejudicial error by denying his motion to suppress these
statements because the interrogating officers failed to adequately apprise him of his
Miranda rights, or to obtain his knowing and voluntary consent to waive these rights. In
a related argument, minor contends his trial counsel provided ineffective legal assistance
to the extent counsel failed to properly preserve these issues for review on appeal. We
address minor’s contentions below to the extent appropriate.
Admission of Minor’s Custodial Statements During His Police Interview.
The law of Miranda is well-established. “[U]nder the due process clause of the
Fourteenth Amendment to the United States Constitution . . . an involuntary statement
obtained by a law enforcement officer from a criminal suspect by coercion is
2
Co-defendant W.R. was acquitted of all charges.
8
inadmissible in a criminal proceeding.” (People v. Neal (2003) 31 Cal. 4th 63, 67.) As
such, a statement obtained by an officer from a suspect during a custodial interrogation
“may be admitted in evidence only if the officer advises the suspect of both his or her
right to remain silent and the right to have counsel present at questioning, and the suspect
waives those rights and agrees to speak to the officer.” (Ibid.) If at any time the suspect
indicates that he does not wish to speak, or to continue to speak, to the officer, the
interrogation must end and may not resume unless and until counsel is present or the
suspect voluntarily initiates further contact. (Ibid.)
The prosecution bears the burden of proving the defendant’s waiver of rights and
subsequent incriminating statements were voluntarily, knowingly and intelligently made.
(People v. Whitson (1998) 17 Cal. 4th 229, 248.) A showing of voluntariness must be
based on “all the surrounding circumstances. . . .” (Schneckloth v. Bustamonte (1973)
412 U.S. 218, 226.) “[I]n determining whether a juvenile has knowingly and voluntarily
waived his or her rights under Miranda, the court should consider the totality of the
circumstances surrounding the confession, including the juvenile’s age. (See Fare v.
Michael C. (1979) 442 U.S. 707, 720-723 . . . (Fare) [finding 16 year old’s request to
speak with his probation officer was not invocation of right to remain silent, reviewing
totality of the circumstances of interrogation]; People v. Lessie (2010) 47 Cal. 4th 1152,
1169-1170 . . . [applying totality of circumstances test to find that 16 year old had not
invoked 5th Amend. rights when he asked to speak with his father during
interrogation].)” (In re Art T. (2015) 234 Cal. App. 4th 335, 351.) “Where the age and
experience of a juvenile indicate that his request for his probation officer or his parents is,
in fact, an invocation of his right to remain silent, the totality approach will allow
the court the necessary flexibility to take this into account in making a waiver
determination. At the same time, that approach refrains from imposing rigid restraints on
police and courts in dealing with an experienced older juvenile with an extensive prior
record who knowingly and intelligently waives his Fifth Amendment rights and
voluntarily consents to interrogation.” (Fare, supra, 442 U.S. at pp. 725-726.)
9
On appeal, we “must accept the trial court’s resolution of disputed facts and
inferences, and its evaluations of credibility, if they are substantially supported.
[Citations.] However, we must independently determine from the undisputed facts, and
those properly found by the trial court, whether the challenged statement was illegally
obtained. [Citation.]’ ” (People v. Johnson (1993) 6 Cal. 4th 1, 25.)
A. Adequacy of the Miranda warnings Received by Minor.
We turn first to the issue of the adequacy of the Miranda warnings provided to
minor. Significantly, minor concedes the admonition delivered by Officer Jones was
“technically correct.” Minor argues, nonetheless, that the officer’s delivery failed to
“effectively apprise[]” him of his Miranda rights because it was too fast and too casual,
and because the officer failed to take extra steps to either modify the admonition in a
more age-appropriate fashion, or to “read each warning slowly, stopping to ask [him]
after each individual warning to explain it back in his . . . own words.”
We reject these arguments. First, we know of no case law requiring these extra
measures to be employed when Miranda warnings are given to a juvenile, particularly
one, like minor, who was nearly 16 years old at the time of the interrogation and, as
reflected by his substantial juvenile record, had numerous past experiences with custodial
interrogations by police officers. Moreover, our review of the transcript from minor’s
interrogation in this case clearly reflects that the officers appropriately delivered each
individual warning, and waited for minor’s affirmation that he understood the warning,
before proceeding to the next warning. Under these circumstances, we find no
inadequacy in the officers’ delivery of the admonition required by Miranda,
notwithstanding minor’s juvenile status.
B. Voluntariness and Intelligence of Minor’s Waiver.
Next, with respect to whether minor’s waiver of his Fifth Amendment rights was
knowing, intelligent and voluntary, we find numerous factors in this record weighing in
favor of the juvenile court’s affirmative finding. We identify the most relevant of these
factors, beginning with minor’s personal characteristics and his lengthy involvement in
10
the juvenile justice system. Specifically, as just mentioned, minor was nearly 16 years
old at the time of his arrest; he had at least three prior arrests, dating to 2011, including
one for attempted robbery of a tourist that had many commonalities with the current
offense; he was already a ward of the juvenile court and, in fact, was on formal juvenile
probation at the time of arrest in this case; he had received Miranda warnings while in
custody at least three times previously; he had known gang associations; and he was
enrolled in high school in the general (non-special needs) program.
Given the totality of these circumstances, we reject minor’s claims that his
Miranda waiver was unknowing, unintelligent and involuntary. To the contrary, minor,
who already had a lengthy juvenile record at age 15 and ten months, was approaching the
age of maturity while continuing to commit crimes that appeared to be increasing in
severity, despite being granted formal probation by the juvenile court in lieu of out-of-
home placement on several previous occasions. As such, his claims to have been coerced
or otherwise manipulated by the officers into giving up his Fifth Amendment rights on
this occasion ring hollow. (See Fare, supra, 442 U.S. at pp. 725-726 [concluding a
juvenile had voluntarily and knowingly waived his Fifth Amendment rights where the
record demonstrated he was 16½ years old at the time of the custodial interview, had a
wealth of prior experience with the juvenile justice system, including several prior arrests
during which he had his Miranda rights explained to him, and had clearly expressed his
understanding of, and willingness to waive, his Miranda rights during the most recent
interrogation]. Cf. In re Elias V. (2015) 237 Cal. App. 4th 568, 591 [“At 13 years of age,
Elias was a young adolescent, there is no indication in the record he was particularly
sophisticated, and he had no prior confrontations with the police. [The officer]
interrogated him in a small room at his school, with the school principal and a second
officer present, and another officer outside the door. There is every reason to believe the
aggressive, deceptive, and unduly suggestive tactics [the officer] employed would have
been particularly intimidating in these circumstances”].)
Further, we reject minor’s related contention that he effectively invoked his Fifth
Amendment right to remain silent by telling Officer Jones that he would like to talk to his
11
mother. The relevant record, set forth in full above, is not consistent with minor’s claim.
Specifically, the record reflects that, while minor did indicate to the officers that he
would like to speak to his mother, he also acknowledged not having her phone number
and, thus, not being able to contact her. Officer Jones then directly posed to minor the
choice to remain silent or to talk to them in the absence of either a parent or guardian,
telling minor: “[I]f you’re telling me you want a parent or guardian here first, then
there’s no way for me to speak to you. So what would you like?” Minor then quite
clearly responded: “Talk.”
Further, Officer Jones took the extra step to ask minor to clarify whether he would
be willing to talk to them “outside . . . of the presence of a, uh, guardian,” to which minor
responded, “that’s fine.”
Having considered this record as a whole and in proper context, we conclude there
is no basis to interpret minor’s initial statement that he would prefer to speak to his
mother as a clear and unambiguous invocation of his Miranda rights, which is what the
law requires. (People v. Gonzalez (2005) 34 Cal. 4th 1111, 1127 [“If ‘a reasonable officer
in light of the circumstances would have understood only that the suspect might be
invoking the right to counsel,’ questioning need not cease”]; People v. Bacon (2010) 50
Cal. 4th 1082, 1107 [“defendant’s invocation of the right to counsel must be clear and
unambiguous”]. Cf. Fare, supra, 442 U.S. at pp. 723-724 [“since a probation officer
does not fulfill the important role in protecting the rights of the accused juvenile that an
attorney plays, we decline to find that the request for the probation officer is tantamount
to the request for an attorney . . . [although] courts may take into account such a request
in evaluating whether a juvenile in fact had waived his Fifth Amendment rights before
confessing”].)
Accordingly, we affirm the juvenile court’s denial of minor’s motion to suppress
his custodial statements given the lack of any showing that his Miranda rights were
violated. Further, as result of our conclusion in this regard, we need not consider minor’s
contingent claim that he was prejudiced by the juvenile court’s admission of the
incriminating statements he made to the officers after his asserted invocation of Miranda
12
rights. Simply put, because the juvenile court’s admission of minor’s incriminating
statements was appropriate, any prejudice flowing from the incriminating nature of his
statements cannot be deemed undue. (See People v. Bacon, supra, 50 Cal.4th at p. 1108.)
And, finally, because we have fully addressed the merits of minor’s Miranda
claims, we need not address his alternative argument that he was denied effective
assistance of counsel due to his attorney’s failure to properly preserve these claims for
review on appeal. The judgment stands as is.
DISPOSITION
The juvenile court’s jurisdictional and dispositional findings and orders are
affirmed.
_________________________
Jenkins, J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Pollak, J.
13