In re I.F.

Filed 3/19/18 (unmodified opinion attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Calaveras)
----
In re I.F., a Person Coming Under the Juvenile Court C080658
Law.
THE PEOPLE, (Super. Ct. No. 13JW5445)
Plaintiff and Respondent, ORDER MODIFYING
OPINION
v.
[NO CHANGE IN
I.F., JUDGMENT]
Defendant and Appellant.
THE COURT:
It is ordered that the published opinion filed herein on February 22, 2018, be
modified as follows:
1. At page 43 of the slip opinion, delete footnote 14 and renumber all subsequent
footnotes accordingly. (Current footnote 15 becomes footnote 14, footnote 16
becomes footnote 15, etc.)
1
There is no change in the judgment.
BY THE COURT:
/S/
MAURO, Acting P. J.
/S/
HOCH, J.
/S/
RENNER, J.
2
Filed 2/22/18 (unmodified opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Calaveras)
----
In re I.F., a Person Coming Under the Juvenile Court C080658
Law.
THE PEOPLE, (Super. Ct. No. 13JW5445)
Plaintiff and Respondent,
v.
I.F.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Calaveras County, Thomas A.
Smith, Judge. Reversed with directions.
Marcia C. Levine, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A.
McKenna and Angelo S. Edralin, Deputy Attorneys General, for Plaintiff and
Respondent.
1
Appellant I.F., then age 12, and his sister L.F., age 8, were home alone on the
morning of April 27, 2013. During the course of the morning, someone entered L.F.’s
bedroom and stabbed her to death. Later that day, and in the days that followed, I.F.
made a series of inconsistent and cumulatively incriminating statements to police.
On May 14, 2013, a petition was filed under Welfare and Institutions Code section
602 alleging that I.F. committed murder (Pen. Code, § 187, subd. (a)), 1 and personally
used a knife in the commission of the offense (§ 12022, subd. (b)(1)). Following a
contested jurisdictional hearing, the juvenile court sustained the petition and found true
the allegation that I.F. personally used a knife in the commission of the crime.
I.F. appeals, arguing the juvenile court erroneously admitted his pre-arrest
statements in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). We agree
that two of four challenged statements were inadmissible. Because the Miranda error
was not harmless beyond a reasonable doubt under Chapman v. California (1967) 386
U.S. 18 (Chapman), we reverse and remand for further proceedings.
I. BACKGROUND
B.F. and C.W. lived in Calaveras County with a blended family that included six
children, ranging from one to 15 years of age. 2 Most of the family attended a Little
League baseball game on April 27, 2013, leaving the house at approximately 7:00 a.m.
I.F. and his sister L.F. stayed home.
C.W. received a call on her cell phone from I.F. at 12:06 p.m. I.F. told her that
someone had come into the house, hit L.F., and then run out. C.W. and B.F. hurried
home, leaving the rest of the children at the baseball field with C.W.’s grandmother.
1 Undesignated statutory references are to the Penal Code.
2We refer to the parents by their initials to protect their privacy and the privacy of the
minor children. (Cal. Rules of Court, rules 8.90 and 8.401.)
2
C.W. called 911 on the way home. She told the 911 operator that the children were okay,
but “really scared.” The 911 operator dispatched police officers to the house, and then
called I.F. A recording of the 911 operator’s call to I.F. was admitted into evidence at the
jurisdictional hearing.
During the call, a distraught I.F. reported that he was in the bathroom when he
heard a door slam. He then heard someone yelling and banging on the bathroom door.
He emerged from the bathroom and saw a “Mexican” man running out the sliding glass
back door. The man had long gray hair and was wearing blue “work pants” or jeans and
a black shirt. Approximately 90 seconds into the call, I.F. told the 911 operator that the
man “stabbed [L.F.] a bunch of times,” adding, “she’s like dead.”
When they reached the house, I.F. was in the living room with a phone in one
hand and a baseball bat in the other. L.F. was lying on the floor of her bedroom. Her
legs were buckled as though she had collapsed. As B.F. approached, he saw that L.F. had
a bloody cut on her forehead and blood on her shirt. When he lifted L.F.’s shirt, he saw
multiple stab wounds. Although B.F. could see that L.F. was hurt, he did not know the
extent of her injuries—or realize that she had been stabbed—until he lifted her shirt.
B.F. scooped L.F. up and carried her down the hall and out the front door. There,
he was met by Calaveras County Sheriff’s Deputy Shawn Cechini, who instructed B.F. to
set L.F. down on the porch. Paramedics arrived, and determined that L.F., who was cool
to the touch, had no pulse and was not breathing.
While paramedics attempted to revive L.F., Cechini spoke with I.F. I.F. told
Cechini that he had been using the bathroom. He emerged from the bathroom and saw a
man running towards the sliding glass back door. I.F. said that he chased the man to the
back door, and then, upon hearing L.F. call out, turned around and went to check on her.
As they talked, Cechini noticed that there was blood smeared across I.F.’s right forearm.
3
L.F.’s lifeless body was transported to the hospital. An autopsy would later reveal
that L.F. suffered 22 stab wounds, mainly in the chest area. Three of the stab wounds
were potentially lethal.
A. The First Interview: At the Hospital on April 27, 2013
Detective Wade Whitney of the Calaveras County Sheriff’s Department responded
to the hospital on the day of the murder. Whitney contacted B.F. in the parking lot near
the ambulance bay. Whitney asked B.F. for permission to interview I.F., which B.F.
gave. At the time, police were trying to get additional information about the intruder,
who was already the subject of an intensive manhunt.
Whitney interviewed I.F. in the airlock vestibule between the emergency room and
the ambulance bay. The exterior doors leading to the ambulance bay are equipped with a
keypad combination lock. A combination, which is known to law enforcement, is
required to enter the airlock vestibule from the ambulance bay. No combination is
required to leave the airlock vestibule; the glass double doors open automatically when a
person stands in front of them. Both sets of doors, the interior doors leading to the
emergency room and the exterior doors leading to the ambulance bay, were open and
unlocked during the interview.
The interview lasted approximately 16 minutes. B.F. was present the entire time.
Whitney wore his detective’s uniform, which consists of a black polo shirt and khaki
pants. Whitney also wore a holstered gun and badge. Whitney did not handcuff I.F. or
direct his movements. Whitney did not tell I.F. he was under arrest or not free to leave.
During the interview, I.F. explained that he woke up between 9:00 and 9:30 a.m.
and made breakfast. I.F. and L.F. ate and then watched a movie. After the movie, L.F.
retired to her bedroom and I.F. went to the bathroom. While in the bathroom, I.F. heard a
door slam. He then heard someone yelling in heavily accented English, “ ‘Hey I know
you’re in here, come out.’ ” He then heard L.F. scream. Although I.F. told the 911
4
operator that the intruder struck the bathroom door, he did not mention this detail during
his conversation with Whitney.
I.F. said that he opened the door to the bathroom in time to see a man running
toward the sliding glass back door. I.F. told Whitney that he followed the man to the
door, and then realized that L.F. might need help. He stopped, turned around, and ran
towards his sister’s bedroom, grabbing a knife from the kitchen counter, “just in case
there’s anyone else.” When he reached the bedroom, I.F. saw L.F. lying on the floor, her
shirt covered in blood. He dropped the knife, and then picked it up. He then went back
to the kitchen, returned the knife to the counter, and called C.W.
Whitney showed I.F. photos of possible suspects, but none of them resembled the
alleged intruder. Whitney then said, “Okay. And I’m gonna tell your dad that I wouldn’t
be doing my job, if I didn’t ask this next question. And I will tell you, [I.F.], that you are
not required to answer this question. Do you understand that? Okay. [¶] You absolutely
have the right to say, ‘I’m not saying a word.’ And if you want . . . you know where I’m
going with this, right? Okay. You do not have to answer my question, do you
understand that? You’re not under arrest, you’re not in trouble. But I have to ask.
Okay? Okay. [¶] Did you do anything to harm your sister?” I.F. said, “no.” Whitney
then concluded the interview. After the interview, I.F. rejoined his family in the parking
lot.
B. The Second Interview: At the District Attorney’s Office on April 27, 2013
Later, while still at the hospital, Whitney asked B.F. for permission to interview
I.F. a second time. During the hearing on I.F.’s subsequent motion to suppress, Whitney
explained that the purpose of the second interview was to get more information about the
intruder. No one asked I.F. whether he wanted to submit to a second interview.
B.F. drove I.F. to the district attorney’s office, a short distance from the hospital.
Whitney and Gary Sims, an investigator with the district attorney’s office, showed I.F. to
an interview room in a portable trailer near the district attorney’s office. The interview
5
room was equipped with cameras and audio recording equipment, and was accessible by
means of two doors, one leading to an adjoining observation room and another leading
outside. Both doors were open during the second interview, which B.F. watched via
closed circuit television from the observation room. B.F. was not allowed to join I.F. in
the interview room. 3
As before, Whitney wore a black polo shirt and khaki pants, and a holstered gun
and badge. Sims wore jeans and a long sleeve shirt, with a gun and badge. Neither
Whitney nor Sims handcuffed I.F. or placed him under arrest.
The second interview lasted approximately 77 minutes. At the beginning of the
interview, Whitney explained: “[I.F.] we brought you here today because you witnessed
or were at home when your sister was . . . seriously injured. [¶] . . . [¶] Okay. So we
want to talk to you as a witness in that case. Please understand both of these doors are
open, you are not under arrest, you’re not being detained, you’re here on your free will.
So you can get up, walk out anytime you need to, if you don’t want to talk to us. Your
dad is in the other room okay?” Within the first fifteen minutes of questioning, a cat
entered or attempted to enter the interview room from outside. Throughout the interview,
Whitney, who took the lead in the questioning, encouraged I.F. to let them know if he
wanted to take a break. I.F. declined all such invitations.
During the second interview, I.F. reiterated that he was in the bathroom when he
heard a door open, followed by a man with an accent yelling, “ ‘Hey, I know you’re in
here, come out.’ ” As before, I.F. said he heard L.F. scream, and then opened the
bathroom door in time to see a man running towards the sliding glass back door. I.F.
3 During the jurisdictional hearing, Whitney testified that B.F. was not allowed to join
I.F. in the interview room because he had a tendency to answer questions for I.F.
6
estimated that he finished going to the bathroom and opened the door within 10 seconds
of hearing the man’s voice.
Once again, I.F. said that he chased the man to the sliding glass back door, then
turned and ran towards L.F.’s room, grabbing a recently washed knife from the kitchen
counter as he passed. During the second interview, I.F. emphasized that he did not enter
L.F.’s bedroom, but merely observed her prone body from the doorway. He then went
back to the kitchen, returned the knife to the counter, and called C.W. I.F.’s description
of the intruder was consistent with the description he offered during the first interview.
As before, I.F. omitted the detail about the intruder banging on the bathroom door.
After approximately 68 minutes, B.F. interrupted the interview to ask whether the
detectives could “wrap it up.” B.F. said that he understood the importance of allowing
the detectives to ask questions, but noted it was getting late, adding “there’s still a lot of
chaos to deal with tonight.” Whitney and Sims responded that they were almost done.
Although Whitney would later testify that he would have liked to continue the interview,
he concluded the questioning approximately nine minutes later. B.F. and I.F. left the
district attorney’s office shortly thereafter.
C. The Third Interview: At the District Attorney’s Office on April 29, 2013
Police interviewed I.F. a third time on April 29, 2013. That day, the family was
asked to come to the district attorney’s office to complete paperwork for the county’s
victim witness program. When they arrived, they were told that the victim witness
coordinator was running late, and asked (but not ordered) to wait. While they were
waiting, Calaveras County Sheriff Gary Kuntz appeared and asked B.F. for permission to
take I.F. to the family home for a walk-through of the crime scene. B.F. asked I.F. if he
wanted to go to the crime scene with Sheriff Kuntz, and I.F. said no. B.F. and police
respected I.F.’s wishes.
Later, Whitney appeared and asked the family to provide DNA samples, which
were taken by swabbing the insides of their cheeks. While collecting the samples,
7
Whitney explained that police wanted to conduct additional interviews, including another
interview of I.F. B.F. consented to the request, instructing I.F. to “speak clearly” during
the interview.
The third interview was conducted by Sergeant Tim Sturm and Detective Josh
Crabtree of the Calaveras County Sheriff’s Department. The interview took place in the
interview room described above. The doors were unlocked, but closed. Both detectives
wore black polo shirts emblazoned with sheriff’s stars and khaki pants. Neither carried a
weapon. I.F. was not handcuffed or placed under arrest.
The third interview lasted approximately 84 minutes. During the interview, I.F.
largely repeated the sequence of events described above, with two significant variations.
First, he reintroduced the idea that the alleged intruder had been banging on the bathroom
door, a detail he omitted from the first and second interviews. Second, he made no
mention of the knife he previously claimed to have grabbed from the kitchen counter.
After approximately 42 minutes of non-confrontational questioning, Sturm
introduced the subject of DNA evidence, asking, “Do you think that . . . if we get the
DNA from the right person it’ll help us solve this crime?” Moments later, following a
brief discussion of television crime shows and the blood evidence in L.F.’s room,
Crabtree said, “So there’s a couple things that . . . that we know and that we . . . I think
maybe you . . . you’ve forgotten and I can understand that cuz this is a really big thing
right? And so there’s a couple things that we know about and I want to give you a few
minutes to kind of just relax okay? Cuz I could tell you’re upset and just think about
some stuff and then we’re gonna come back in okay? And then we . . . shouldn’t be
much longer. Okay? But just remember there’s things that we know, that we need you to
remember them cuz it’s really important. Okay? So we’ll be right back.” Crabtree and
Sturm then readied themselves to leave the room. As they did so, Sturm asked, “You
need anything? You want me to open the door? You want to step outside or anything?”
I.F. demurred. Sturm and Crabtree left the interview room, closing the door behind them.
8
The interview resumed after a brief interlude, during which I.F. sat virtually
motionless in his chair. Sturm apologized for the interruption, stating, “We’re going to
. . . we’re going to not take a break too long because you got family okay? So at the end
of this, you [get] to take off out of here with your family.” Sturm and Crabtree then
allowed, in empathetic tones, that they had both made mistakes as young people, which
had been forgiven. Following a discussion of the therapeutic benefits of unburdening
one’s conscience, Sturm said, “No matter what does get said today, you . . . you leave
with your parents no matter what. And when I say, ‘No matter what[,]’ I mean anything.
Okay? Ev . . . anything, you leave with your parents and you get to walk out [of] here
and be with your mom and dad and help them through this. Okay?”
Sturm then returned to the subject of forensic evidence, leading to the following
exchange:
“[STURM:] They’re still collecting evidence and the thing about the evidence is
. . . is that it tells the truth. And that’s why we . . . and that’s why we hope that everyone
involved in the investigation also tells the truth. And . . . and again, when I look at you, I
can tell that I . . . I think that you . . . I think that you want to tell the truth with us.
Because I . . . I think that there’s a . . . there’s a part of this that sits just right here. It’s
right at that back . . . back of your tongue and it’s just not quite coming out yet.
“[CRABTREE:] I can tell by looking at you, that you have something on your
mind. Can you just tell us?
“[I.F.:] Um . . . .
“[STURM:] You are going home with your mom and dad today. Okay? But we
need to know. There is no man that ran out of that house is there?
“[I.F.:] Yeah there is[,] I saw him.”
Shifting gears, Sturm confronted I.F. with the 911 recording, asking how I.F.
could have known that L.F. had been stabbed without entering the room, when B.F. was
9
not aware that she had been stabbed until he examined her closely. I.F. responded, “I
don’t know I . . . I could have seen it I guess.”
In the meantime, B.F., who was waiting outside, was growing increasingly
agitated. As B.F. would later testify, the family had not planned on spending the day at
the district attorney’s office. Rather, the family expected to complete the paperwork for
the victim witness program and be on their way. As the interview wore on, B.F. began to
feel as though he had been summoned to the district attorney’s office under false
pretenses.
B.F. knocked on the door of the trailer, which was closed and locked. One of a
number of law enforcement officers in the observation room opened the door. B.F.
asked, “ ‘How much longer? Is my son okay?’ ” The officer responded, “ ‘Yes, he is
fine. . . . Just be patient.’ ” B.F. waited approximately 25 minutes, and then knocked a
second time. A law enforcement officer opened the door, and B.F. asked, “ ‘Why is it
taking so long?’ ” The officer responded, “ ‘Just a couple more minutes,’ ” and closed
the door again. B.F. continued to wait.
Back in the interview room, Crabtree and Sturm stepped up their efforts to elicit a
confession. They intimated that they already had DNA evidence establishing I.F. as the
killer, and then pressed for an “explanation” or “reason” for the crime. They challenged
I.F.’s account of the events surrounding the murder, saying, “the evidence tells us,
obviously there was something bad that happened in that house. And the evidence
doesn’t tell us that there was a man, a great big man running through your house, with
you.” They urged I.F to admit his “mistake” so that he could “move[] on” and “feel
better.” They assured I.F. that his parents would love him “no matter what.” I.F.’s
responses—to the extent he responded at all—were short and frequently inaudible.
Outside, B.F.’s patience was growing thin. He knocked on the trailer door a third
time. A law enforcement officer opened the door and said, “ ‘a couple more minutes,’ ”
and then summarily closed the door, without giving B.F. an opportunity to speak. B.F.,
10
now furious, immediately knocked a fourth time, telling the officer that he “ ‘wanted to
take [I.F.] and leave.’ ” B.F. was then admitted into the observation room.
In the interview room, Crabtree confronted I.F. with Cechini’s observation that
there had been blood on his forearm on the day of the murder. As Crabtree questioned
I.F., Sturm received a message instructing him to leave the interview room. Sturm
excused himself, closing the door behind him. In the observation room, Sturm learned
that B.F. wanted to end the interview. Following a two-minute absence, Sturm returned
to the interview room, saying, “All right, we are done.” Crabtree promptly terminated the
interview, and I.F. left the district attorney’s office with his family. By the end of the
third interview, Crabtree had come to view I.F. as a suspect.
D. The Fourth Interview: At the District Attorney’s Office on May 9, 2013
Captain Jim Macedo of the Calaveras County Sheriff’s Department telephoned
C.W. on May 8, 2013. Macedo told C.W. that police wanted to conduct separate
interviews of each of the family’s surviving children. Specifically, he explained that
police wanted to show the children photographs of known sex offenders and discuss
family dynamics, such as which children played where, and with whom. Macedo added
that police prefer to interview children without parents present, as they tend to be more
forthcoming. C.W. and B.F. were concerned that being left alone for police interviews
might be too hard on the children, who were understandably traumatized by the death of
their sister. They agreed to the interviews on the condition that one or the other must be
allowed to observe.
The family appeared at the district attorney’s office the following day, May 9,
2013. B.F. and C.W. met with Macedo and Special Agent Chris Campion of the Federal
Bureau of Investigation (FBI). Campion renewed Macedo’s request to interview the
children individually, without parents present. B.F., sensing that Campion was
attempting to renege on the bargain he struck with Macedo, became irate. He told
Campion and Macedo that “he knew he didn’t have to be there, that he chose to be there
11
on that date and bring his family down, [and] that he could leave at any time.” Shortly
thereafter, B.F. got up and left the room, with C.W. in tow. He collected the children,
saying, “ ‘Let’s go, we’re leaving.” Together, the family left the district attorney’s office
and headed to their car. Macedo intercepted them in the parking lot. Following a brief
discussion, B.F. and C.W. agreed to stay on condition that they would be allowed to
observe the interviews, and Campion, who had offended B.F., would not be allowed to
participate.
The interviews took place in two locations: the above-described interview room
and another interview room in the Cal Works building, approximately one mile away. To
Macedo’s surprise, B.F. announced that C.W. would observe the interview of I.F., which
was to take place in the interview room, while B.F. would observe the interview of
another child in the nearby Cal Works building. As she ascended a ramp leading to the
door of the trailer, C.W. turned around, expecting to see I.F. following her. Instead, she
saw two law enforcement officers, a man and a woman, flanking I.F., and walking him
around the building. I.F. was not surrounded by uniformed officers, handcuffed, or
moved at gunpoint. Nevertheless, C.W. became alarmed. She called out, “ ‘Where are
you guys taking him? This wasn’t agreed to. He’s supposed to be here.’ ” One of the
officers responded that they were bringing I.F. into the trailer by means of another
entrance. C.W. saw I.F. again a short time later once officers in the observation room got
her viewing screen turned on, at which point the interview had already commenced. The
incident made her uncomfortable.
The fourth interview proceeded in two parts, both of which were conducted by
Crabtree and Special Agent Sam Dilland of the FBI. Crabtree wore a button-down shirt
and tie, with dress slacks, but no jacket. He did not carry a gun or badge. Dilland wore a
suit. The record does not disclose whether Dilland carried a gun or badge; however,
nothing suggests that she presented herself in a manner that would have been likely to
intimidate a young person.
12
The first part of the fourth interview lasted approximately 97 minutes. The
interview took place in the interview room, with the doors unlocked. The record is
ambiguous as to whether the doors were open or closed. During the jurisdictional
hearing, Crabtree testified that the exterior door continuously opened and closed due to
wind. On the video recording, Dilland can be seen standing as she says, “It’s getting
warm in here, (inaudible) door open a little bit.” Later, Crabtree can be seen standing to
close a door. Although Crabtree testified that the interior door leading to the observation
room was unlocked, neither Crabtree nor anyone else testified that the interior door was
open. On this record, we assume that the exterior door was open at some points and
closed at others, while the interior door remained closed.
Dilland began the interview by acknowledging that I.F. had already discussed the
events in question with Crabtree, adding, “If you don’t want to answer a question, just tell
me. ‘Sam I don’t want to answer it.’ That’s fine. Okay? If you don’t know an answer
say, ‘Hey I don’t . . . I don’t know’ and that . . . and that’s fine also.”
Dilland then engaged I.F. in small talk on a variety of subjects, including school,
video games, movies, friends and family. After approximately 27 minutes, Dilland rose
and opened the door. Shortly thereafter, Crabtree and Dilland, speaking over one
another, said:
“[CRABTREE:] You know there’s a door there and you know that door’s open
so . . .
“[DILLAND:] Yeah.
“[CRABTREE:] if you want bam, you just
“[DILLAND:] Yeah
“[CRABTREE:] leave you alone.”
I.F. nodded slightly, but did not say anything.
Dilland then turned to the events of April 27, 2013. As before, I.F. said that he
woke up and prepared breakfast for himself and L.F. I.F. and L.F. ate breakfast, and then
13
watched a movie. After the movie, L.F. went to her room. I.F. said that he could not
recall what he did immediately after the movie, but he eventually went to the bathroom.
While in the bathroom, I.F. said that he heard a door slam, and then a man yelling,
“ ‘Hey, I know you’re in here, come out.’ ” When asked whether the man “was banging”
or “just yelling,” I.F. responded, “Just yelling.”
I.F. said that he heard his sister scream, then quickly finished up in the bathroom
and opened the door in time to see a man run towards the sliding glass back door. I.F.
said that he chased the man to the door, then remembered L.F. and ran towards her room,
stopping at the doorway. I.F. said that he saw L.F. lying on the floor, her shirt bloody.
He then called C.W. I.F. did not say anything about a knife.
Throughout the interview, Dilland acknowledged how difficult her questions were,
noting that they required I.F. to relive the day of the murder. At one point, as Dilland
expressed her appreciation for I.F.’s willingness to answer questions, a door appears to
have opened, and Crabtree rose to close it. Moments later, following a brief discussion of
the 911 call, Dilland sympathized, “I can tell it’s hard for you to talk about. You know
and it’s understandable.” She sought and received confirmation that I.F. was okay before
proceeding.
Dilland then turned to the status of the investigation. She explained that police
had been canvassing the neighborhood, noting the presence of a map on the wall behind
her. At Dilland’s invitation, I.F. stood up and crossed the room so that he could find his
house on the map. Having done so, he returned to his seat.
Dilland and Crabtree explained that police interviewed all the neighbors, but no
one had seen anyone matching the description of the alleged intruder. Following a brief
discussion of television crime shows, Dilland volunteered that there was no forensic
evidence of an intruder, stating, “And in . . . in all of the work that has been done over the
past two weeks, there is . . . there’s been no evidence that we found of somebody leaving,
the way that . . . the way that you’re saying.”
14
Following an extended silence, Crabtree added that police had not found any tire
tracks leading away from the house either. Following another extended silence, Dilland
said, “You know and we’re . . . we’re trying you know we’re looking at . . . for ways to
explain [the absence of evidence of an intruder]. Can . . . and really it’s we have a lot of
evidence pointing to another story.”
Following yet another extended silence, Dilland continued, “So we had . . . so we
did the neighborhood search, they’re talking to everybody, looking you know, we had . . .
we had blood dogs in looking at concealed blood and going through to try to track and
they didn’t see the blood out of the house. There are no fingerprints in the house. No . . .
and we understand that you know accidents happen. Things happen. You know and so
we just kind of look at your story and see if there’s anything that you know you can add.”
When I.F. answered in the negative, Crabtree showed I.F. a photograph of a
Ghostbusters T-shirt that was recovered from the crime scene. Moments later, the
following exchange took place:
“[DILLAND:] You know how . . . how I’m talking about the dogs that came
in? Like the blood dogs that can kind of follow the scent of it around? They . . . they
were in [L.F.’s] room and then they moved went to your room and they went to the
hamper (inaudible) hamper and that shirt was what they signaled on.
“[I.F.:] I could have changed I guess I don’t remember.
“[DILLAND:] Okay. Tell me about the change. Like what did you change?
“[I.F.:] I don’t know I probably changed after I see her or something, when I
went . . .
“[DILLAND:] Okay so you changed, so you think you may have changed
after you saw her?
“[I.F.:] Yes I . . . maybe.
“[DILLAND:] Okay. So . . . so you would have changed because?
15
“[CRABTREE:] Is this . . . is this getting hard? You can go whenever you
want okay? But . . . but we are asking for your help. Because if we don’t have your help
we don’t have anybody’s help at all. And then we don’t want to have . . . so you think he
changed? Or you changed?
“[I.F.:] I don’t know yeah. I . . . I . . . .”
Before I.F. could finish, the door opened and C.W., who had been watching on the
monitors in the adjoining observation room, said, “Come on.” I.F. quickly rose from his
chair and left the room, bringing the first part of the fourth interview to an end.
During the hearing on I.F.’s subsequent motion to suppress, C.W. explained that
she grew increasingly alarmed as she watched from the observation room. C.W. recalled
that she watched with Calaveras County District Attorney Barbara Yook and several
detectives. The audio function on the closed-circuit television system was not working
properly, so the volume was turned down low, making it hard to hear the interview.
From C.W.’s vantage point, I.F. seemed “very stressed” and “nervous,” as though “he
was going to crawl out of his chair.”
After some time, C.W. announced that she wanted to end the interview. Yook
responded, “[Y]ou know, he’s free to go[.] [H]e’s not being held against his will.” C.W.
replied, “[H]e’s not free to go, he’s a 12[-]year old child in a room with closed doors and
officers, he doesn’t understand that point.” Moments later, one of the detectives said, “he
looks relaxed now, can we carry on?” C.W. reiterated that she wanted to end the
interview, but no one made a move to help her.
When Crabtree confronted I.F. with the photograph of the bloodstained T-shirt,
C.W. realized for the first time that police viewed I.F. as a suspect, not a witness. C.W.
said, “ ‘Is somebody going to end it or am I going to end it?’ ” Again, no one moved.
Taking matters into her own hands, C.W. went into the interview room and retrieved I.F.
No one attempted to stop her.
16
C.W. and I.F. left the district attorney’s office. C.W. asked to be taken to where
B.F. was. Macedo met C.W. and I.F. in the parking lot, and escorted them to the Cal
Works building. There, they met Deputy Sheriff Heather Gordon of the Calaveras
County Sheriff’s Office. Gordon asked C.W. why she ended the interview. C.W.
responded that she now realized I.F. was a suspect, and felt that it was not her place to
decide whether the interview should continue, since she is not I.F.’s guardian. C.W.
asked Gordon to fetch B.F., which she did.
B.F. and C.W. spoke with Gordon at the Cal Works building. Gordon urged B.F.
to allow the interview to continue, volunteering that evidence collected during the
investigation pointed to I.F. B.F. agreed to continue the interview on the condition that
he be allowed to confront I.F. As Gordon would later testify, “He explained that he
needed to be the one to confront I.F. with the information and was insistent to the fact—
to the point that either he was able to do that and confront him with the [incriminating]
information or it was not going to continue.” B.F., for his part, explained that he agreed
to continue the interview because he “wanted answers” and believed he was the only one
who could get them. As B.F. would later testify, “I always know when he’s lying or
hiding something, so I told [police] I can get [the truth] out of him if he’s hiding it.”
Gordon communicated B.F.’s terms to the law enforcement team at the district
attorney’s office. The law enforcement team agreed to continue the interview with B.F.
taking the lead. I.F. does not appear to have participated in any of these conversations.
C.W. drove I.F. back to the trailer near the district attorney’s office. B.F. chose to ride in
Gordon’s patrol car.
C.W. and I.F. rejoined B.F. and Gordon in front of the district attorney’s office.
Upon seeing B.F., I.F. became emotional and Gordon opined that he was on the verge of
17
admitting guilt. 4 B.F. asked I.F. whether he wanted to go back inside, saying, “we need
to go back in and talk about this, do you want to go back in and talk about this and get to
the bottom of it.” I.F. said no. B.F. insisted, saying, “we need to get to the bottom of
this, we need to find out what happened.” 5 B.F., C.W. and I.F. then joined Dilland and
Crabtree in the interview room.
The second part of the fourth interview was an emotional encounter that lasted
approximately 43 minutes. Following introductions, B.F. asked, “Is there a recorder or I
can just talk?” Crabtree responded: “Well we . . . we are gonna be recorded but I want to
let you know, no matter what happens today okay? You guys are gonna leave this
building. All three of you, okay? We . . . you . . . you’re free to go at any point. You
don’t want to talk about anything, you just stop and get up and go.” After stressing the
importance of open and honest communication, Crabtree reiterated, “So you guys
understand at any point you guys can get up and just walk out of here. Okay? No matter
what happens, you guys are all still gonna leave here. Okay? Do you understand that
B.F.?” B.F. responded in the affirmative.
Crabtree outlined the evidence against I.F., noting that “we have no evidence that
there was anybody else in that house, at all.” B.F. then addressed I.F., stating, “Okay.
This is the deal, they have evidence that it points back to you. So what I want to know or
what I want us to talk about is that for some reason there was an accident and for some
reason you, did hurt your sister, you got to talk to him. Now just tell him yes you did it
and what the deal is. We can’t move forward with this, without you either admitting to it
that you did it or they’re gonna get their evidence together and they’re still gonna come
4 It is not clear from the record whether Gordon offered this opinion in I.F.’s presence.
5 It is not clear from the record whether this exchange occurred in Gordon’s presence.
18
and eventually arrest you and it’s gonna be a big scene.” I.F. responded that he didn’t
remember anything.
Later, a tearful B.F. urged I.F. to come clean, saying, “If it’s bad enough I lose one
kid, if you did this, then I’m gonna lose you for a while. Okay? I’m not saying I’m
gonna hate you and never talk to you. But I need to know why, if . . . if this is what’s
going on. There’s no proof of nobody being in the house but you and your sister. Like I
said, I told um don’t arrest you unless they’re a hundred percent positive. So they’re
gathering evidence. If it’s something you did, you have to talk to um. If you lie to me,
and hide shit, you know that’s when I don’t support you, right? If you’re honest and talk
to um . . . I’ll . . . I don’t know if your family mad at you, if you’re afraid that you’re
going to disappoint me, don’t worry about none of that. You know I love both you guys
very much. I’ve been telling you that for year[s], right? We’re here to take care of you
right or wrong. Okay? So you need to talk to them. If you [did] something they need to
know, so they can move forward. Can’t move forward until you talk to um.” I.F.
responded that he didn’t do it.
Crabtree then took over the questioning, urging I.F. to “be honest about what
happened” and adding, “your dad is sitting here right now telling you that he’s gonna
[forgive] you but you [got] to tell the truth. And if it comes down to the other way,
where we got to show why we know what we know, you know it doesn’t sound like he’s
gonna be so forgiving on that side.” Moments later, Dilland interjected, observing that
“people make mistakes” and saying, “we just want to know your story and what
happened.” I.F. shook his head slightly and said, “I don’t (inaudible).” The following
exchange then took place:
“[DILLAND:] It’s . . . it’s okay. I mean your . . . your dad’s here, [C.W.]’s
here. They . . . they love you very much. They want what’s best for you. You know
they . . . they want to get you help; they . . . they want to figure out. They want . . . they
want to know what happened to [L.F.]
19
“[I.F.:] I can’t remember[.]
“[DILLAND:] You don’t remember okay. Okay. From . . . from what point
don’t you remember?
“[I.F.:] I don’t remember doing it. But I guess I did, I don’t know.”
Dilland and Crabtree confronted I.F. with the absence of evidence of an intruder
and that a Ghostbusters T-shirt with blood on it had been found in I.F.’s hamper. I.F.,
now crying, insisted he did not remember anything. Speaking softly, B.F. encouraged
I.F., saying, “Start to talk son, just got to be honest.” When I.F. repeated that he did not
remember, Crabtree said, “You leave here today no matter what happens. I promise you
that. You leave with your mom and dad no matter what you tell us. But you’ve got to
explain stuff.”
Crabtree confronted I.F. with the transcript of the 911 call, noting that I.F. knew
that L.F. had been stabbed, despite the fact that he claimed not to have entered her room.
Crabtree also noted that I.F. did not ask the 911 operator for an ambulance until B.F. and
C.W. arrived. Following an extended silence, B.F. asked, “You gonna talk to um?”
For the next several minutes, I.F. sat gripping the sides of his chair and staring
fixedly at the floor. He sniffled continuously and appeared to be fighting tears. Crabtree
and Dilland spoke in soft, soothing tones, offering assurances that B.F. would not be
angry. B.F., for his part, quietly and calmly urged I.F. to “be honest.” After more than
fifteen minutes, much of which passed in near silence, save the sound of his sniffling, I.F.
began to cry. B.F. rose from his chair and put an arm around I.F. I.F. stood and
embraced his father, weeping. The interview came to a pause as B.F. consoled a sobbing
I.F. Crabtree and Dilland rose and appeared to briefly leave the interview room. When
they returned, Crabtree urged I.F. to continue the interview, stating, “It’s all got to be laid
out. And your dad is not . . . he’s not gonna be mad.” B.F. interjected that he was not
mad, adding, “Come on let’s go, get this out.” Crabtree responded, “You guys are free to
20
do whatever you want. Like I said, you guys all want to leave together, yeah we’re not
going to keep you here.”
Following an informal discussion of the likelihood that I.F. would be tried as a
juvenile, Macedo entered the interview room. After introducing himself, Macedo said, “I
know it’s tough being twelve to understand how important this is. And your family
clearly understands how important this is. But we really need you to talk to us and just
tell us the truth of what happened bud. Okay?” Macedo continued, “I need you to be
brave for me okay? Can you do that for me? And I need you to talk. I know it’s tough
but I need you to talk.” Macedo then left the room.
Crabtree said, “[I.F.], you think you can talk about it?” I.F., now out of frame,
responded, “I don’t remember.” Moments later, B.F. said, “We’re done.” The interview
came to an end and B.F., C.W. and I.F. left the district attorney’s office together. I.F.
was arrested two days later, on May 11, 2013.
E. Juvenile Court Proceedings
On May 14, 2013, a wardship petition was filed pursuant to Welfare and
Institutions Code section 602, alleging that I.F. had committed an act which would be a
crime if committed by an adult. Specifically, the petition alleged that I.F. committed
murder (§ 187, subd. (a)), and personally used a knife during the commission of the
offense. (§ 12022, subd. (b)(1).) I.F. denied the allegations.
On June 9, 2014, I.F. filed a motion to suppress his statements to police during the
four interviews on Fourth Amendment grounds. On June 23, 2014, the juvenile court
denied the Fourth Amendment motion, stating, “The court finds that each of the four
separate interviews that are the subject of this matter were given entirely with the consent
21
of the father, as well as the minor himself. It was never—when the consent was
withdrawn in these cases, all interviews had stopped.” 6
A contested jurisdictional hearing took place over thirteen days from September
15 through October 6, 2015. On the first day of the hearing, I.F. filed another motion to
suppress, arguing the statements were made during custodial interrogations without the
required Miranda warnings. Following the close of evidence, the juvenile court denied
the Miranda motion, stating, “I’ll find that Miranda does not apply to any of the four
interviews in this case. The minor was simply not in custody. Miranda only applies
when there is an in-custodial interrogation designed to elicit the incriminating statement.
This was not an in-custodial interrogation. [I.F.] repeatedly was told in each of these four
interviews that he could terminate at any time, he could leave at any time he wanted. He
was shown the exits. A cat came in the one open door. So I find, again, that there was no
Miranda violation.” 7 (Italics added.) The juvenile court then heard closing arguments.
During closing argument, the prosecutor relied extensively on the inconsistencies
in I.F.’s various statements to police. The prosecutor outlined the discrepancies in I.F.’s
statements, offering a chart purporting to illustrate how I.F.’s story changed over time.
The prosecutor emphasized the “glaring differences, such as the banging on the door, that
seems to come and go, and very significantly . . . the knife.” The prosecutor also argued
that I.F. made “some very interesting admissions” in the course of the interviews,
namely: (1) I.F.’s concession during the third interview that he “could have seen” L.F.’s
bloody body before speaking with the 911 operator; (2) I.F.’s concession in the first part
6I.F. does not challenge the denial of the motion to suppress under the Fourth
Amendment.
7 As we shall discuss, substantial evidence does not support the juvenile court’s finding
that I.F. was “repeatedly told in each” of the four interviews that he could terminate and
leave.
22
of the fourth interview that he “could have changed” his T-shirt; and (3) I.F.’s concession
in the second part of the fourth interview that, “I don’t remember doing it. But I guess I
did, I don’t know.”
The prosecutor also relied on evidence that the murder weapon was a kitchen knife
recovered from the family home. Although the knife was new, there was evidence the
blade had been damaged and blood matching L.F.’s DNA profile was found in the space
between the metal tang of the blade and the handle. 8 The prosecutor also emphasized the
existence of other blood evidence pointing to I.F., including traces of L.F.’s blood on
I.F.’s Ghostbusters T-shirt, traces of L.F.’s blood on sneakers worn by B.F. and I.F. to do
yard work, and the absence of evidence supporting I.F.’s story that an intruder broke into
the house and murdered L.F.
Defense counsel countered that I.F.’s pre-arrest statements, though inconsistent in
some respects, were consistent in I.F.’s denials of guilt. Defense counsel argued that the
prosecution was engaged in an unfair parsing of I.F.’s statements, suggesting that any
inconsistencies could be explained by the fact that the statements were made by a child
who had just experienced a traumatic event. Defense counsel found nothing significant
in the fact I.F. told the 911 operator that L.F. had been stabbed, noting that he could have
inferred as much from the sounds he heard in the bathroom and the sight of L.F.’s bloody
body.
8 Webster’s Third New International Dictionary defines “tang,” in part, as “a piece that
forms an extension from the blade or analogous part of an instrument (as a table knife or
fork, file, chisel, or sword) and connects with the handle and that may be a thin flat plate
on each side of which a rounded piece is secured to form the handle or that may be a
tapered piece inserted in the haft or handle.” (Webster’s Third New Internat. Dict. (1993)
p. 2336, col. 3.) The knife believed to have been the murder weapon had a full metal
tang.
23
Defense counsel dismissed the prosecution’s forensic evidence as ambiguous,
noting that Medical Pathologist Robert Lawrence originally excluded the damaged knife
as the murder weapon, but subsequently revised that conclusion at the prosecution’s
request. Defense counsel also stressed the absence of forensic evidence tying I.F. to the
crime. Although there were traces of L.F.’s blood on the Ghostbusters T-shirt and the
tang of the knife, defense counsel maintained that the stabbing would have produced
large quantities of blood spatter and cast-off blood, such that “the killer had to have blood
all over them.” And even assuming the blood could have been cleaned up, defense
counsel argued, there should have been evidence of a clean up, such as “bleach-soaked
cloths or towels.” And even then, defense counsel continued, the defense had presented
expert testimony that such a clean up would have been beyond the abilities of most 12
year olds, particularly one with I.F.’s hygiene and organizational skills. Defense counsel
also noted that there were stains on the outside of the knife containing DNA attributable
to multiple contributors (including I.F. and L.F.), suggesting that the knife was not part of
a clean up effort.
Defense counsel also pointed to the existence of evidence supporting an intruder
theory. Of greatest significance, defense counsel noted that a long hair had been found
on the surface of L.F.’s skin, near the cleft of her buttocks. 9 A male DNA profile was
obtained from the root of the hair. The DNA was not identified, and was likely deposited
by way of some bodily fluid, such as blood, semen, or saliva. Defense counsel also noted
that two latent fingerprints had been recovered from the doorframe leading to L.F.’s
room. Although the prosecution suggested that the fingerprints may have been L.F.’s,
they were never conclusively matched, raising the possibility that they may have been left
9 During the jurisdictional hearing, criminalist Gordon Wincott testified that the hair
belonged to L.F.
24
by an intruder. Defense counsel also noted that there had been several reports of
suspicious people in the area around the time of the crime, though none of those people
matched I.F.’s description of the intruder.
Following closing arguments, the juvenile court ruled from the bench, stating,
“We have before us a very bright young man. He is the top 10 percent of the intelligent
students in his class, although he is an underachiever. [¶] He has given numerous
inconsistent statements.” The juvenile court touched upon some of the inconsistencies in
I.F.’s statements, reiterating that I.F. “told several stories about what happened.” The
juvenile court concluded that the evidence of L.F.’s blood inside the damaged knife was
“the strongest evidence because the statements of [I.F.] just don’t make sense.”
Accordingly, the juvenile court found the allegations of the petition true beyond a
reasonable doubt.
At the dispositional hearing, I.F. was made a ward of the court and committed to
the Department of Corrections and Rehabilitation, Division of Juvenile Justice, for a
maximum of 16 years to life, with credit for 908 days.
I.F. filed at timely notice of appeal.
II. DISCUSSION
I.F. argues the juvenile court erred in refusing to suppress his statements to police.
Specifically, he argues the statements should have been suppressed because (1) the
interviews constituted custodial interrogations within the meaning of Miranda, and (2) as
the father of the victim, B.F. was burdened by a conflict of interest that rendered him
incapable of adequately protecting I.F.’s legal interests. I.F. also argues that the juvenile
court erred in refusing to admit exculpatory polygraph evidence over the prosecution’s
objection.
We conclude that the third and fourth interviews were custodial and should have
been suppressed. We reject I.F.’s argument that B.F.’s conflict of interest required the
25
suppression of his pre-arrest statements, and decline to reach his argument that the
juvenile court should have admitted the polygraph evidence.
A. Miranda
Police officers are not required to give Miranda warnings to everyone they
question. (Oregon v. Mathiason (1977) 429 U.S. 492, 495.) Rather, an officer’s
obligation to administer a Miranda warning arises only when a person is “in custody.”
(Ibid.) “ ‘Absent “custodial interrogation,” Miranda simply does not come into play.’ ”
(People v. Ochoa (1998) 19 Cal. 4th 353, 401.) For purposes of Miranda, a person is in
custody when there is “ ‘a “formal arrest or restraint on freedom of movement” of the
degree associated with a formal arrest.’ ” (Thompson v. Keohane (1995) 516 U.S. 99,
112, superseded on other grounds by statute, 28 U.S.C. § 2254(d); People v. Ochoa,
supra, at p. 401.) But he is not in custody if, under the circumstances, “ ‘ a reasonable
person in [his] position would have felt free to end the questioning and leave.’ ” (People
v. Leonard (2007) 40 Cal. 4th 1370, 1400.)
“Custody determinations are resolved by an objective standard: Would a
reasonable person interpret the restraints used by the police as tantamount to a formal
arrest? [Citations.] The totality of the circumstances surrounding an incident must be
considered as a whole.” (People v. Pilster (2006) 138 Cal. App. 4th 1395, 1403, fn.
omitted.) Courts have identified a variety of circumstances to be considered as part of the
custody determination. Among them are “whether contact with law enforcement was
initiated by the police or the person interrogated, and if by the police, whether the person
voluntarily agreed to an interview; whether the express purpose of the interview was to
question the person as a witness or a suspect; where the interview took place; whether
police informed the person that he or she was under arrest or in custody; whether they
informed the person that that he or she was free to terminate the interview and leave at
any time and/or whether the person’s conduct indicated an awareness of such freedom;
whether there were restrictions on the person’s freedom of movement during the
26
interview; how long the interrogation lasted; how many police officers participated;
whether they dominated and controlled the course of the interrogation; whether they
manifested a belief that the person was culpable and they had evidence to prove it;
whether the police were aggressive, confrontational, and/or accusatory; whether the
police used interrogation techniques to pressure the suspect; and whether the person was
arrested at the end of the interrogation. [Citations.] [¶] No one factor is dispositive.
Rather, we look at the interplay and combined effect of all the circumstances to
determine whether on balance they created a coercive atmosphere such that a reasonable
person would have experienced a restraint tantamount to an arrest.” (People v. Aguilera
(1996) 51 Cal. App. 4th 1151, 1162 (Aguilera).)
In juvenile cases, the same factors still apply, but with an added consideration. In
J.D.B. v. North Carolina (2011) 564 U.S. 261 (J.D.B.), the U.S. Supreme Court
concluded that a child’s age may be considered in the Miranda analysis, “so long as the
child’s age was known to the officer at the time of police questioning, or would have
been objectively apparent to a reasonable officer.” (Id. at p. 277.) The Court recognized
that, “a reasonable child subjected to police questioning will sometimes feel pressured to
submit when a reasonable adult would feel free to go.” (Id. at p. 272; see also Haley v.
Ohio (1948) 332 U.S. 596, 599 [in the context of police interrogation, events “[t]hat
would leave a man cold and unimpressed can overawe and overwhelm a lad in his early
teens”].) Although age may not be a significant factor in every case, the Court observed,
common sense dictates that “children cannot be viewed simply as miniature adults.”
(J.D.B., supra, at pp. 262 & 274.) Accordingly, the Court concluded that “a child’s age
properly informs the Miranda custody analysis.” (Id. at p. 265.) Here, the parties appear
to agree that police were aware of I.F.’s age at the time of the interviews. We therefore
take I.F.’s age into consideration in deciding whether he would have felt free to leave.
(Id. at p. 277.)
B. Standard of Review
27
The custody inquiry presents a mixed question of law and fact. (People v. Moore
(2011) 51 Cal. 4th 386, 395.) The trial court’s factual findings regarding the
circumstances surrounding the interrogation are reviewed for substantial evidence and we
independently decide whether, given those circumstances, a reasonable person in minor’s
position would have felt free to end the questioning and leave. (Ibid.) The prosecution
bears the burden of proving that the defendant was not in custody in order to use his
statements against him. (People v. Ochoa, supra, 19 Cal.4th at p. 401.)
C. B.F.’s Conflict of Interest
Before we examine the circumstances surrounding each interview, we consider
I.F.’s argument that his father, having lost a child, was burdened by an intolerable
conflict of interest. I.F. raises two alternative arguments with respect to B.F.’s conflict of
interest. First, he argues the conflict of interest must be factored into our consideration of
the totality of the circumstances. Second, he argues that B.F.’s conflict of interest
effectively deprived I.F. of rights guaranteed by the Fifth, Sixth and Fourteenth
Amendments. We consider these arguments momentarily.
We can easily see how a grieving parent’s search for answers could bring him into
conflict with his child. A parent who has lost a loved one as a result of a crime, as B.F.
did, might be powerfully motivated to encourage cooperation with police where another
parent might counsel silence. (See Farber, The Role of the Parent/Guardian in Juvenile
Custodial Interrogations: Friend or Foe? (2004) 41 Am. Crim. L.Rev. 1277, 1294
(Farber) [observing that, in situations where the parent or other interested adult has a
relationship with the victim, “the adult may operate, consciously or subconsciously, as
more of a fact-finder or inquisitor in order to determine how her loved one was
harmed”].) By encouraging cooperation, such a parent could unwittingly interfere with
the thoughtful exercise of the child’s constitutional rights, or even contribute to a false
confession.
28
There may be other circumstances in which a parent might be motivated to
encourage cooperation with police to the detriment of his child’s legal interests. For
example, the parent may be the victim of the crime, or may himself be a suspect. (See
Farber, supra, 41 Am. Crim. L.Rev. at p. 1295.) Less obviously, a parent may urge
cooperation with law enforcement as a matter of moral responsibility. (Id. at p. 1305.)
Some parents, believing their children to be innocent, may encourage cooperation out of
a desire to promote good citizenship or to aid in the investigation of a crime. Others,
believing their children to be guilty, may urge cooperation out of a desire to teach their
children life lessons about personal responsibility or respect for authority. Suffice to say,
there may be any number of circumstances in which a parent may urge cooperation with
law enforcement, raising the possibility that the parent’s interests may conflict with those
of his child given the adversarial structure of our criminal justice system.
Parental conflicts of interest pose a unique challenge in the interrogation setting,
where children are especially vulnerable. Children “ ‘generally are less mature and
responsible than adults,’ . . . they ‘often lack the experience, perspective, and judgment to
recognize and avoid choices that could be detrimental to them,’ . . . they ‘are more
vulnerable or susceptible to . . . outside pressures’ than adults” (J.D.B., supra, 564 U.S. at
p. 272), they “have limited understandings of the criminal justice system and the roles of
the institutional actors within it” (Graham v. Florida (2010) 560 U.S. 48, 78), and they
“characteristically lack the capacity to exercise mature judgment and possess only an
incomplete ability to understand the world around them” (J.D.B., supra, at p. 273; see
also In re Elias V. (2015) 237 Cal. App. 4th 568, 588 (Elias V.) [“children and adolescents
are much more vulnerable to psychologically coercive interrogations and in other
dealings with the police than resilient adults experienced with the criminal justice
system”]).
Recognizing that children are especially vulnerable to suggestive questioning,
some jurisdictions have adopted special safeguards requiring the presence of a parent or
29
adult ally in custodial interrogations. (In re Joseph H. (2015) 367 P.3d 1, 4-5 (review
den., dis. statement of Liu, J.) [collecting cases and statutes].) These safeguards, whether
statutory or jurisprudential, generally assume that parents will play a supportive role in
custodial interrogations, acting as a buffer between the child, on the one hand, and police,
on the other. (See, e.g., State v. Presha (2000) 163 N.J. 304, 314 [748 A.2d 1108, 1113]
[“The role of a parent in the context of a juvenile interrogation takes on special
significance. [Citation.] In that circumstance, the parent serves as advisor to the
juvenile, someone who can offer a measure of support in the unfamiliar setting of the
police station”].)
But it is also true that parents can play a coercive role in custodial interrogations.
(See, e.g., State ex rel. A.S. (2010) 203 N.J. 131, 136 [999 A.2d 1136, 1138] [holding the
minor’s confession inadmissible where her adoptive mother, whose grandson was the
victim of the offense, misstated the minor’s rights when police had her read them to the
minor, badgered the minor in front of police and “became a de facto agent of the police”];
In re D.W. (1982) 108 Ill.App.3d 1109, 1111 [440 N.E.2d 140, 141] [holding the minor’s
confession inadmissible where his mother “was used as an agent of the police” and
insisted he tell the police what happened].) Thus, the mere presence of a parent may be
insufficient to protect a child’s legal interests, as presence alone does not guarantee that
the parent will act with the child’s interests in mind. (State ex rel. A.S., supra, at
p. 1146.)
“Whether a child likes it or not, parents have broad authority over their minor
children.” (Brekke v. Wills (2005) 125 Cal. App. 4th 1400, 1410.) Parents can “direct and
control” their children’s activities (ibid.), compel their attendance at school (Ed. Code,
§ 48293), and decide who may spend time with them (Brekke v. Wills, supra, at p. 1410).
It requires no stretch of judicial imagination to see that a parent’s broad authority could
easily extend into the interrogation room, combining with police authority to produce a
30
coercive atmosphere. Where, as here, a parent labors under a serious conflict of interest,
the risk of coercion is even greater.
I.F. argues that his father’s conflict of interest must be considered in determining
whether a reasonable child in I.F.’s position would have felt free to leave the interviews.
Although the People argue that B.F. was not an “agent” of the police (a point we take up
later), they do not appear to dispute the relevance of B.F.’s conflict of interest to our
examination of the totality of the circumstances. We observe that courts routinely
consider the presence or absence of a parent or guardian in deciding whether an
interrogation is custodial. (See, e.g., Alvarado v. Hickman (2002) 316 F.3d 841, 851,
revd. on other grounds sub nom. Yarborough v. Alvarado (2004) 541 U.S. 652 [“the issue
of parental involvement, at the behest of police officials, to arrange the police interview
with [the minor] and the subsequent refusal by police to let his parents attend the
interview are certainly relevant issues in the totality of the circumstances”]; In re Kenneth
S. (2005) 133 Cal. App. 4th 54, 65-66 [considering the fact that the minor was brought to
the police station by his foster parent as part of evaluation of totality of the
circumstances].) We conclude that we must also consider a parent’s conflict of interest,
provided the conflict has some bearing on how a reasonable child would perceive the
interrogation. (Fare v. Michael C. (1979) 442 U.S. 707, 725 (Fare) [in the context of
juvenile Miranda waivers, “The totality approach permits—indeed it mandates—inquiry
into all the circumstances surrounding the interrogation”].)
I.F. also argues that his father’s conflict of interest rendered him incapable of
providing “conflict-free advice and protection,” resulting in a violation of I.F.’s rights
under the Fifth, Sixth and Fourteenth Amendments. We acknowledge that B.F.’s conflict
of interest made him an imperfect guardian of I.F.’s legal interests. We struggle,
however, with I.F.’s suggestion that B.F.’s conflict of interest required the juvenile court
to suppress all of the interviews as a matter of constitutional law.
31
The U.S. Supreme Court has spoken of the need to exercise “special caution” in
assessing the voluntariness of juvenile Miranda waivers made in the absence of a parent,
lawyer, or other friendly adult. (In re Gault (1967) 387 U.S. 1, 45, 55 [urging that “the
greatest care” must be taken to ensure that a juvenile confession is voluntary, “in the
sense not only that it was not coerced or suggested, but also that it was not the product of
ignorance of rights or of adolescent fantasy, fright or despair”]; see Gallegos v. Colorado
(1962) 370 U.S. 49, 53-55 [observing that “a 14-year-old boy, no matter how
sophisticated, is unlikely to have any conception of what will confront him when he is
made accessible only to the police. . . . [¶] . . . He would have no way of knowing what
the consequences of his confession were without advice as to his rights—from someone
concerned with securing him those rights”]; Haley v. Ohio, supra, 332 U.S. at pp. 599-
601 [concluding that a juvenile confession was involuntary under the totality of the
circumstances, including the fact that the juvenile “had no friend or counsel to advise
him”].) But the Court has not said that the absence of a friendly adult is enough, in and
of itself, to require suppression of a juvenile confession. Rather, the Court has held that
the presence or absence of a friendly adult must be considered as part of the totality of the
circumstances analysis. (Fare, supra, 442 U.S. at p. 725.)
None of I.F.’s authorities support an exclusionary rule for statements by minors
with conflicted parents, even in the “inherently coercive” setting of custodial
interrogation. (J.D.B., supra, 564 U.S. at p. 269.) Little v. Arkansas (1978) 435 U.S. 957
(Little), on which I.F. relies, addresses the problem of parental conflicts of interest in a
dissent from the high court’s denial of certiorari. There, the minor, a 13-year old girl of
“low dull normal” intelligence, confessed to the murder of her father following a brief
meeting, alone, with her mother. (Id. at p. 957.) The mother, who had earlier been
questioned by police and believed herself to be a suspect, emerged from the meeting,
“ ‘[looking] as if she had been crying,’ ” and told police the minor wanted to confess.
32
(Id. at pp. 957, 958.) The minor was Mirandized and waived her rights. (Id. at p. 958.)
She was then convicted and sentenced to life in prison. (Id. at p. 957.)
The Court denied certiorari over the dissent of Justice Marshall, who was joined
by Justice Brennan. (Little, supra, 435 U.S. at p. 957.) In his dissent, Justice Marshall
explained that he would have granted the petition “to resolve the question whether, before
a juvenile waives her constitutional rights to remain silent and consult with an attorney,
she is entitled to competent advice from an adult who does not have significant conflicts
of interest.” (Ibid.) In the present case, Justice Marshall observed, the mother was
“plainly not in a position to provide rational advice with only the child’s interests in
mind, especially on the day of the murder.” (Id. at p. 959.) Under the circumstances,
Justice Marshall believed, “[the minor’s] contention that there was no valid waiver of her
rights deserves this Court’s plenary consideration.” (Id. at p. 961.)
I.F.’s reliance on Little is misplaced. As the People observe, statements
accompanying denials of certiorari have no binding or precedential value. The Supreme
Court itself has said that “all opinions dissenting from the denial of certiorari” are “totally
unnecessary” and “examples of the purest form of dicta.” (Singleton v. Commissioner
(1978) 439 U.S. 940, 944-945 (Stevens, J., respecting the denial of certiorari).)
Furthermore, in Little, though Justice Marshall was obviously troubled by the mother’s
conflict of interest, his dissent does not purport to offer guidance on evaluating such
conflicts. Consequently, we have no way of knowing whether Justice Marshall would
have endorsed a rule categorically excluding statements by minors with conflicted
parents, as I.F. would have us do, or the totality of the circumstances test, or something
else entirely. Regardless, we decline I.F.’s invitation to rely on Little.
Fare does not help I.F. either. In Fare, a 16 year old with an extensive criminal
history was interrogated in connection with a murder investigation. (Fare, supra, 442
U.S. at pp. 709-710.) After being Mirandized, the minor asked to speak to his probation
officer (id. at p. 710), which he subsequently argued was, in fact, an assertion of his Fifth
33
Amendment rights (id. at pp. 711-712). A divided Court rejected the minor’s argument
over bitter dissent, stating, “it cannot be said that the probation officer is able to offer the
type of independent advice that an accused would expect from a lawyer retained or
assigned to assist him during questioning. Indeed, the probation officer’s duty to his
employer in many, if not most, cases would conflict sharply with the interests of the
juvenile.” (Id. at p. 721, citing Miranda, supra, 384 U.S. at pp. 480-481.) The Court
concluded that the minor’s Miranda waiver was voluntary and intelligent, despite the fact
that the waiver was made without the presence of a friendly adult. (Fare, supra, at pp.
725-726.)
Far from requiring the presence of a conflict-free adult, Fare demonstrates that a
juvenile Miranda waiver will be evaluated under the totality of the circumstances,
regardless of the presence or absence of an adult. (Fare, supra, 422 U.S. at pp. 725-726;
see also King, Waiving Childhood Goodbye: How Juvenile Courts Fail to Protect
Children from Unknowing, Unintelligent, and Involuntary Waivers of Miranda Rights,
2006 Wis. L.Rev. 431, 448 (noting that in Fare, “the Court abandoned reliance on adult
guidance as the measure of the admissibility of a juvenile’s statement in favor of the
‘totality of the circumstances’ ”]; and see People v. Lara (1967) 67 Cal. 2d 365, 383 [“[A]
minor has the capacity to make a voluntary confession . . . without the presence or
consent of counsel or other responsible adult, and the admissibility of such a confession
depends not on his age alone but on a combination of that factor with . . . other
circumstances”].) Fare does not support a categorical rule excluding statements by
minors with conflicted parents.
“A minority of states responded to Fare by putting in place, via case law and
legislation, certain additional procedural ‘safeguards’ which must be adhered to in order
for statements made by a juvenile during interrogation to be admissible.” (Farber, supra,
41 Am. Crim. L.Rev. at p. 1287; see also In re Joseph H., supra, 367 P.3d at pp. 4-5 (dis.
statement of Liu, J.) [collecting cases and statutes].) One such state was West Virginia,
34
from which In the Matter of Steven William T. (1997) 201 W.Va. 654 [499 S.E.2d 876]
(Steven William T.) originates.
I.F. offers Steven William T. for the proposition that a minor has an independent
right to the advice and protection of a conflict-free adult during custodial interrogation,
separate and apart from the right to be free of coercive interrogation tactics. However,
the West Virginia court’s decision turned on a statute “requiring the presence and consent
of a parent or custodian for the taking of the statement of a juvenile under sixteen-years-
old.” (Steven William T., supra, 499 S.E.2d at p. 884, citing West Virginia Code § 49-5-
2(1) (1996).) California has no such statute. 10 Consequently, we have no basis on which
to recognize a comparable right. I.F.’s reliance on Steven William T. is unavailing.
I.F. has not cited, and we have not found, any authority that would support an
exclusionary rule for statements by minors with conflicted parents, even in the context of
a juvenile Miranda waiver. In the absence of any such authority, we apply the usual “in
custody” analysis, factoring B.F.’s conflict of interest into our examination of the totality
of the circumstances. (People v. Moore, supra, 51 Cal.4th at p. 395.) The totality of the
circumstances approach, though far from perfect, allows courts to assess the impact of a
parent’s conflict of interest on a case-by-case basis. As we have suggested, there are an
infinite variety of parental conflicts of interest, and some will naturally have a greater
impact than others. And even the same conflict of interest may present itself in different
ways, depending on the circumstances. As we shall see, B.F.’s conflict of interest was
10 We note, however, that the Governor recently signed Senate Bill No. 395 (2017-2018
Reg. Sess.), which adds section 625.6 to the Welfare and Institutions Code, requiring a
minor age 15 years or younger to consult with legal counsel prior to a custodial
interrogation and before any waiver of Miranda rights. (Welf. & Inst. Code, § 625.6,
subd. (a).)
35
not uniformly coercive, but rather, assumed a coercive character as the investigative
focus on I.F. intensified.
D. The Interviews
Having reviewed the relevant legal principles, we now consider the four sets of
statements said to have been improperly admitted: (1) the statements made during the
first interview at the hospital on April 27, 2013, (2) the statements made during the
second interview at the district attorney’s office on April 27, 2013, (3) the statements
made during the third interview at the district attorney’s office on April 29, 2013, and (4)
the statements made during the fourth interview at the district attorney’s office on May 9,
2013. In evaluating the circumstances surrounding each interview, we are mindful of the
fact that I.F. was not a seasoned juvenile delinquent. In fact, he does not appear to have
any experience with the criminal justice system prior to the day of the murder.
1. The First Interview Was Noncustodial
I.F. argues that a reasonable 12 year old would not have believed he was free to
leave the first interview. 11 He emphasizes that the interview took place in an “enclosed
entryway” which “is locked from the outside, with entry via keypad.” He also notes that
Whitney asked B.F. for permission to conduct the interview, but does not appear to have
asked him. He also notes that Whitney does not appear to have told him he was free to
leave. While these factors weigh in favor of a finding that I.F. was in custody at the time
of the first interview, other factors more convincingly support the opposite conclusion.
11 We reject the People’s contention that I.F. forfeited his challenge to the admission of
the first interview by failing to raise the issue in the juvenile court. Contrary to the
People’s suggestion, I.F. sought to exclude the first interview by means of both motions
to suppress, including the Miranda motion currently before us.
36
Of greatest significance, the interview took place in an airlock vestibule, a
transitional space that necessarily connotes ingress and egress. Here, though ingress may
have been restricted to law enforcement and emergency personnel, nothing in the record
suggests that egress was so restricted. To the contrary, Whitney testified that both sets of
doors—the exterior doors leading to the ambulance bay and the interior doors leading to
the emergency room—were open and unlocked. B.F., for his part, testified that the first
interview was repeatedly interrupted by people coming and going. As B.F. explained,
“the first interview [Whitney] was doing kept getting interrupted, people ke[pt] coming in
and out of that little airlock, whatever they keep calling it.” As a result, B.F. continued,
“it was a short—it was a short questioning by Detective Whitney. They didn’t have a lot
of time. Like I said, a lot of people coming in and out, so it wasn’t a real extensive
questioning from him.”
I.F. argues that B.F. only consented to the interview because he believed, based on
prior contacts with law enforcement, that “[a]nytime you’re told to do something by the
cops, it’s an order.” As previously discussed, the “in custody” test for Miranda purposes
is an objective one. (People v. Pilster, supra, 138 Cal.App.4th at p. 1403.) We do not
consider the “ ‘subjective views harbored by either the interrogating officers or the
person being questioned.’ ” (Yarborough v. Alvarado, supra, 541 U.S. at p. 663.) We
likewise decline to consider B.F.’s stated belief that he was powerless to refuse law
enforcement’s requests.
Although we do not consider B.F.’s subjective beliefs, we consider B.F.’s conduct,
for the reasons previously stated. At the time of the first interview, I.F. asserts, “[B.F.]
was cooperating in the attempt to find the person who murdered his daughter.” Although
B.F.’s cooperation would later take on a different cast, he does not appear to have
pressured I.F. to participate in the first interview or otherwise conducted himself in a
manner that contributed to the creation of a coercive atmosphere. If anything, B.F.’s role
in the first interview was neutral.
37
Relying on Elias V., I.F. argues that the interviews as a whole were custodial
because police used the “Reid Technique,” an interrogation method that has been linked
to a high number of false confessions. (Elias V., supra, 237 Cal.App.4th at pp. 579-580
[describing the Reid Technique]; see also Birckhead, The Age of the Child: Interrogating
Juveniles After Roper v. Simmons (2008) 65 Wash. & Lee L.Rev. 385, 408-409
[discussing correlation between use of the Reid Technique and incidence of false
confessions in juveniles]; and see LaMontagne, Children Under Pressure: The Problem
of Juvenile Confessions and Potential Solutions (2013) 41 W. St. U. L.Rev. 29, 43-45
[same].) Elias V. involved a constitutional challenge to the voluntariness of a juvenile
confession. (Elias V., supra, at p. 577.) The court considered the use of the Reid
Technique in concluding the confession was involuntary, describing such psychological
tactics as “maximization,” which is designed to convey “ ‘the interrogator’s rock-solid
belief that the suspect is guilty and that all denials will fail,’ ” and “minimization,” which
is designed to “ ‘provide the suspect with moral justification and face-saving excuses for
having committed the crime in question.’ ” (Id. at p. 583.) We are not convinced that the
court’s discussion of specific interrogation techniques assists our analysis here. After all,
a juvenile confronted with “minimization” or “maximization” techniques may or may not
feel free to terminate the interview and leave, for reasons having nothing to do with the
use of the Reid Technique. We therefore focus on the overall tone and tenor of the
questioning, rather than the particular interrogation techniques that may have been used.
I.F. argues that the interviews were “lengthy, aggressive interrogations of someone
the detectives believed had committed the murder.” But the first interview was only 16
minutes long, and the overall tone of the questioning was low-key and conversational.
On this record, where the interview was conducted in the relatively public setting of the
entrance to the emergency room, with people coming and going, a reasonable 12 year old
subject to non-confrontational questioning by a single officer would feel free to terminate
38
the interview and leave. The juvenile court properly denied the motion to suppress the
first interview.
2. The Second Interview Was Noncustodial
Next, I.F. argues that a reasonable 12 year old would not have believed he was
free to leave the second interview because (1) B.F. agreed to the interview, raising an
inference that he expected I.F. to answer questions, (2) I.F. was separated from B.F.,
increasing I.F.’s sense of isolation and heightening his anxiety, (3) police used coercive
interrogation methods on I.F., asking him unnecessary and intrusive questions about his
activities on the morning of the murder, and (4) questioning continued for 10 minutes
after B.F. asked Whitney and Sims to “wrap it up,” suggesting that even a determined
adult would not have had the ability to terminate the interview and leave. We address
these arguments seriatim.
We are sympathetic to I.F.’s argument that a reasonable child, having been
delivered to police by a parent with the understanding that questioning would ensue,
would anticipate that the ensuing interrogation would be custodial, regardless of the
parent’s contrary understanding. 12 As we shall discuss, B.F.’s understanding of the
nature of the interviews, though relevant, is not dispositive of the ultimate issue of
whether a reasonable 12 year old would have understood he was free to leave. (See
Section II.D.3, post.) But even assuming arguendo that I.F. expected to be subjected to
12 Relying on Welfare and Institutions Code section 601, subdivision (a), I.F. argues that
he was legally required to obey B.F.’s “reasonable and proper orders.” We take I.F.’s
point that B.F. exercised significant authority and control over him. (Brekke v. Wills,
supra, 125 Cal.App.4th at pp. 1410-1411.) We do not understand I.F. to argue that
Welfare and Institutions code section 601 has any other relevance to the “in custody”
analysis. To the extent I.F. does so argue, we treat the argument as waived. (See Benach
v. County of Los Angeles (2007) 149 Cal. App. 4th 836, 852 [conclusory presentation in
brief without argument or application of pertinent law to the circumstances of the case
was inadequate, and unsupported contentions would be deemed waived].)
39
custodial interrogation when he arrived at the district attorney’s office, he was
immediately informed that, “both of these doors are open, you are not under arrest,
you’re not being detained, you’re here on your [own] free will.” He was then told that he
could “get up” and “walk out anytime.” These admonitions, which I.F. appears to have
heard and understood, would have alerted a reasonable 12 year old that he was free to
terminate the interview and leave. (See, e.g., In re Kenneth S., supra, 133 Cal.App.4th at
p. 66 [minor brought to the police station by foster parent and “immediately informed
that he was not under arrest and was free to leave” was not in custody for purposes of
Miranda].) And lest there was any doubt as to I.F.’s freedom of movement, the sight of a
cat entering (or attempting to enter) the interview room moments later would have
reassured a reasonable child that his movements were not restricted. Thus, even
assuming that B.F.’s behavior could have led a reasonable child to expect that the
interrogation would be custodial, Whitney’s admonition would have reassured the same
child that he was free to terminate the interview and leave.
We reject I.F.’s contention that a reasonable child would have experienced the
second interview as custodial by virtue of having been temporarily separated from his
father. Here, though B.F. was not allowed to join I.F. in the interview room, he watched
the interview from the adjoining observation room. Whitney showed I.F. the open door
leading to the observation room, let I.F. know that B.F. was watching on the monitors,
and invited I.F. to take a break to speak with B.F. if he wished. Thus, I.F. would have
understood that B.F. was accessible and available, if needed. On this record, we
conclude that a reasonable child in I.F.’s position would not have experienced the
separation from his parent as custodial. (See In re Kenneth S., supra, 133 Cal.App.4th at
pp. 59 and 65 [no custody where, with foster parent’s consent, minor was interviewed
alone in a small room at the police station with a partially open door, and foster parent
seated 10 feet away].)
40
We likewise reject I.F.’s contention that the second interview was custodial due to
the nature of the questioning. Arguing that the interviews as a whole were “increasingly
aggressive, confrontational, and accusatory,” I.F. claims that Whitney asked unnecessary
and intrusive questions regarding his activities on the morning of the murder. Although
Whitney asked I.F. about the movie he watched and his activities in the bathroom, these
questions followed naturally from I.F.’s account of the events of the morning, and were
necessary to establish a timeline for the murder. Having reviewed the video recording,
we conclude that Whitney’s tone was professional and appropriate. Although some of
the questions may have caused a reasonable child to experience momentary
embarrassment, they would not have caused such a child to experience a restraint on
freedom tantamount to a formal arrest.
Finally, we reject I.F.’s contention that a reasonable child would have experienced
the second interview as custodial because questioning continued for approximately 10
minutes after B.F. asked Whitney and Sims to “wrap it up.” Our review of the record
reveals that B.F.’s interruption, though determined, was more in the nature of a request to
bring the questioning to a conclusion within a reasonable time, rather than a demand to
terminate the interview immediately. 13 That questioning continued for another 10
minutes was consistent with the open-ended nature of B.F.’s request, rather than a signal
that B.F. was powerless to terminate the interview. A reasonable child would not
interpret the continued questioning as an indication that the second interview was
custodial, notwithstanding Whitney’s unambiguous assurances to the contrary.
13 On the video recording, B.F. can be heard saying, “Can we wrap it up? I know you
guys have got some questions. (inaudible) they got.” Whitney responds, “We’re almost
there,” and B.F. continues, “Okay cuz I got a couple kids in Stockton[,] there’s still a lot
of chaos to deal with tonight [¶] . . . [¶] and it’s getting late and I want (inaudible)
hospital. I . . . I mean you guys are doing fine I don’t . . . you know what I mean?
Nothing about that I just . . . it’s getting late it’s been over an hour already.”
41
Based on our independent review of the totality of the circumstances, we conclude
a reasonable child in I.F.’s position, having heard Whitney’s admonition that he was free
to leave, having been assured that his father was in the next room, and having seen a cat
enter (or attempt to enter) the interview room, would understand that he was free to
terminate the interview and leave. The juvenile court properly denied the motion to
suppress the second interview.
3. The Third Interview Was Custodial
Next, I.F. argues that a reasonable 12 year old would have believed the third
interview was custodial because (1) his father agreed to the interview, raising an
inference that he expected I.F. to answer questions, (2) I.F. was separated from his parent,
increasing I.F.’s sense of isolation and heightening his anxiety, and (3) Sturm and
Crabtree used coercive interrogation techniques. The People respond that (1) the family
appeared at the district attorney’s office voluntarily, (2) the doors of the interview room
were unlocked, (3) I.F. was offered an opportunity to leave the interview room during a
break, (4) B.F. came in and out of the adjoining observation room and was admitted into
the interview room, and (5) the tone of the interview was friendly. Having independently
considered the totality of the circumstances surrounding the third interview, we conclude
that a reasonable 12 year old in I.F.’s position would not have felt free to leave.
As previously discussed, the family arrived at the district attorney’s office on
April 29, 2013, expecting to sign some papers and be on their way. Upon arriving, they
were asked to wait. Although B.F. testified he understood he was there voluntarily,
nothing in the record suggests that I.F. shared B.F.’s understanding. Because the ultimate
issue is whether a reasonable child in I.F.’s position would have understood he was free
to leave, we cannot impute B.F.’s subjective understanding of the circumstances of the
interview to I.F. (See U.S. v. IMM (2014) 747 F.3d 754, 767.)
While waiting, Sheriff Kuntz appeared and asked B.F. for permission to take I.F.
to the now vacant family home for a walk-through of the crime scene. B.F. asked I.F. if
42
he wanted to go, and I.F. declined. Later, Whitney appeared and explained that police
wanted to reinterview I.F. This time, I.F. was not asked what he wanted to do. Instead,
B.F. agreed to the request, instructing I.F. to “speak clearly” during the interview.
Standing alone, B.F.’s role in accepting the request and instructing I.F. to “speak clearly”
do not lead us to believe that he placed undue pressure on I.F. to participate in the
interview. Nevertheless, having been offered a choice with respect to the walk-through,
it is unlikely that a reasonable 12 year old would have felt free to refuse the interview, as
to which no choice was offered.
The third interview was conducted in the now familiar interview room, by two
uniformed officers. 14 Although Crabtree and Sturm were not armed, they nevertheless
had an unmistakable police bearing. The doors to the interview room were closed.
Although the doors may have been unlocked, nothing in the record indicates I.F. was
informed of this fact. Furthermore, though Crabtree and Sturm offered to open the door
during a break and invited I.F. to step outside, they never said anything to suggest that he
was free to terminate the interview and leave. 15 If anything, Crabtree and Sturm’s
assurances, such as they were, would have led a reasonable 12 year old to believe that he
did not have the right to leave the interview room, except to “step outside” momentarily.
Likewise, Crabtree and Sturm’s assurances that I.F. would be allowed to leave with his
family when the interview was over would have led a reasonable 12 year old to believe
14 The People argue that, “The interview room was kid-friendly, featuring several
posters of famous Disney cartoon movies.” To the contrary, the video recording reveals
that the interview room featured movie posters from classic films such as Casablanca and
Gone With The Wind.
15 In denying I.F.’s Miranda motion, the juvenile court found, “[I.F.] repeatedly was told
in each of these four interviews that he could terminate at any time, he could leave at any
time he wanted.” As we suggest in the text, the juvenile court’s finding, so far as the
third interview was concerned, was not supported by substantial evidence.
43
he had no right to leave before the interview was over, or decide for himself when the
interview would end. Crabtree and Sturm’s failure to inform I.F. that he was free to
terminate the interview and leave strongly supports the conclusion that the third interview
was custodial.
During the questioning, Crabtree and Sturm repeatedly alluded to “things that we
know,” hinting that they had forensic evidence tying I.F. to the crime. They urged I.F. to
“tell the truth” and admit his “mistake.” They challenged his account of the morning of
the murder, saying, “There is no man that ran out of that house is there?” Although
Crabtree and Sturm were courteous and polite, even sympathetic, their questions clearly
manifested a belief that I.F. was culpable and they had evidence to prove it. (Aguilera,
supra, 51 Cal.App.4th at p. 1162.) A reasonable 12 year old, confronted with the
possibility that police viewed him as a suspect, would not have felt free to terminate the
interview and leave. 16
The People argue that the third interview was noncustodial because B.F. “was in
and out of the adjacent observation room with Captain Macedo,” and “knocked on the
door to the interview room and was granted access.” The People also observe that
Crabtree and Sturm terminated the interview at B.F.’s request. The People
mischaracterize the record. Although B.F. may have been in the observation room for
part of the third interview, the record suggests that he was outside, and unavailable, for
16 I.F. also argues that Sturm and Crabtree used the “minimization” and “maximization”
tactics associated with the Reid Technique in the third interview. (See Elias V., supra,
237 Cal.App.4th at p. 583 [discussing the “minimization” and “maximization” tactics].)
Although we perceive elements of the Reid Technique in the third interview, we reiterate
that Elias V. concerned the voluntariness of a juvenile confession, not the “in custody”
question before us. Rather than concern ourselves with specific interrogation techniques,
we focus on the overall tone and tenor of the questioning, and whether or not they would
have led a reasonable child to believe his liberty was restrained.
44
most of it. Similarly, though B.F. knocked on the door of the observation room and was
eventually granted access, the record reveals that he was locked out, and forced to knock
several times. And, though Crabtree and Sturm ultimately terminated the interview at
B.F.’s request, the record can be fairly read to suggest that B.F. was prevented from
making the request earlier by virtue of the fact that he was locked out. These restrictions
on B.F.’s freedom of movement, if known to I.F., might reasonably have led a 12 year
old in I.F.’s position to feel more restricted than otherwise. We therefore reject the
People’s contention that B.F.’s conduct somehow demonstrates the noncustodial nature
of the interview.
Based on our independent review of the totality of the circumstances, we conclude
that a reasonable 12 year old in I.F.’s position, having been offered no choice as to
whether to participate in the interview and having received no assurance that he was free
to leave, would have perceived the interview as custodial. The juvenile court should have
granted I.F.’s motion to suppress the statements made during the third interview.
4. The Fourth Interview Was Custodial
Next, I.F. argues that the fourth interview was custodial because (1) his father
agreed to the interview, raising an inference that he expected I.F. to answer questions, (2)
I.F. was separated from his parent during the first part of the interview, increasing I.F.’s
sense of isolation and heightening his anxiety, (3) police used coercive interrogation
methods on I.F., and (4) his father repeatedly urged I.F. to confess during the second part
of the interview, thereby contributing to the creation of a coercive atmosphere. The
People respond that (1) the family appeared at the district attorney’s office voluntarily,
(2) Crabtree told I.F. he was free to leave and I.F. demonstrated that he understood he
was free to leave by leaving with C.W., (3) Crabtree told B.F. and I.F. that they were free
to leave when they returned for the second part of the fourth interview, and (4) B.F.
exercised control over the second part of the interview, suggesting that the interrogation
was not dominated by police. A reasonable 12 year old in I.F.’s position would have
45
experienced both parts of the fourth interview as a restraint on his liberty, albeit for
different reasons.
a. The First Part of the Fourth Interview
The fourth interview was the subject of extensive negotiations before anyone set
foot in the interrogation room. As noted, Macedo telephoned C.W. on May 8, 2013,
seeking permission to interview the children out of the presence of their parents. B.F.
and C.W. agreed to the interviews, on the condition that one or the other must be allowed
to observe. Despite the concern for who would speak with I.F., and on what terms, no
one appears to have asked I.F. whether he wanted to be interviewed.
B.F. and C.W. met with Macedo and Campion at the district attorney’s office on
May 9, 2013. Campion renewed the request to interview the children out of the presence
of parents, prompting an indignant B.F. to remind law enforcement officers that “he knew
he didn’t have to be there, that he chose to be there on that date and bring his family
down, [and] that he could leave any time.” Shortly thereafter, B.F. got up and left the
district attorney’s office with his family. Macedo caught up with the family in the
parking lot, and persuaded B.F. and C.W. to come back so the interviews could proceed
as originally agreed, only without Campion. Although B.F. clearly understood that he
was free to leave, nothing in the record suggests that I.F. agreed to an interview,
understood the interview to be voluntary, or understood B.F.’s role in making the
necessary arrangements. As previously discussed, we cannot impute B.F.’s
understanding of the circumstances of the interview to I.F. (U.S. v. IMM, supra, 747 F.3d
at p. 767.) So far as the record reveals, from I.F.’s perspective, he was brought to the
district office by B.F. and C.W., then told he was leaving, and then told he was staying.
Far from suggesting freedom of movement, these abrupt and evidently unexplained
changes in plan would have convinced a reasonable child that he had no choice but to go
along with whatever course might be set for him by adults.
46
As C.W. was walking towards the trailer, she turned, expecting to see I.F.
following her. Instead, she saw two law enforcement officers flanking I.F. and walking
him around the building. Although I.F. was not handcuffed or escorted at gunpoint, C.W.
was sufficiently unnerved that she was moved to call out, “ ‘Where are you guys taking
him?’ ” The officers responded that they were taking I.F. to the trailer by means of a
different entrance. A reasonable 12 year old in I.F.’s position would have experienced
the unexpected separation from an adult ally as a restraint on freedom.
Once inside, I.F. was introduced to an FBI agent, Dilland, who instructed him, “If
you don’t want to answer a question, just tell me. ‘Sam I don’t want to answer it.’ That’s
fine. Okay? If you don’t know an answer say, ‘Hey I don’t . . . I don’t know’ and that
. . . and that’s fine also.” Dilland’s admonition would have reassured a reasonable 12
year old that he could decline to answer specific questions; it would not have assured a
reasonable 12 year old that he was free to terminate the interview and leave. If anything,
by telling I.F. that he could refuse to answer specific individual questions, Dilland created
the impression that he could not refuse to answer any and all questions, suggesting that
I.F. was required to submit to questioning generally.
After approximately 30 minutes of small talk, Crabtree told I.F., “You know
there’s a door there and you know that door’s open so [¶] . . . [¶] if you want bam, you
just [¶] . . . [¶] leave you alone.” Although Dilland repeatedly sought and received
confirmation that I.F. understood he had the ability to refuse to answer specific questions,
and had the ability to pose questions himself, neither Dilland nor Crabtree sought
confirmation that I.F. understood the significance of the open door, or the ambiguous
invitation to “bam, you just [¶] . . . [¶] leave you alone.” We reiterate that Crabtree
delivered the invitation over crosstalk by Dilland, and note that the entire exchange
consumed approximately six seconds of a 97-minute interview. We question whether
Crabtree’s delivery was reasonably calculated to command a young person’s attention.
Regardless, a reasonable 12 year old, having been told in an earlier interview that he was
47
free to “step outside,” would not have understood the invitation to “bam, you just [¶] . . .
[¶] leave you alone” to mean that he was free to terminate the interview and leave.
During the questioning, Dilland and Crabtree repeatedly challenged I.F.’s account
of the morning of the murder, stating, “we have a lot of evidence pointing to another
story.” Although Dilland and Crabtree were polite and friendly, their questions
manifested a belief that I.F. was culpable and they had the evidence to prove it.
(Aguilera, supra, 51 Cal.App.4th at p. 1162.)
Towards the end of the first part of the fourth interview, Crabtree unambiguously
told I.F., “You can go whenever you want, okay?” By then, however, the first part of the
fourth interview was drawing to a close. Indeed, C.W. terminated the interview less than
one minute later. Significantly, C.W. asked law enforcement to end the interview several
times, without success. Although C.W. was able to seize the initiative and end the
interview herself, we doubt that a reasonable child would have been able to muster the
same resolve. Certainly, to the extent he was aware of it, a reasonable child would have
interpreted law enforcement’s muted response to C.W.’s attempts to end the interview as
an indication that he was not free to leave.
Having carefully reviewed the video recording and transcript, we conclude that a
reasonable 12 year old in I.F.’s position would not have felt free to terminate the first part
of the fourth interview and leave. Applying the Aguilera factors, I.F. was brought to the
district attorney’s office by B.F. and C.W., he was not given a choice whether to
participate in the interview, he was escorted to the interview room by law enforcement,
he was not clearly informed that he was free to terminate the interview and leave until the
first part of the interview was nearly over, he did not indicate an awareness of any such
freedom, and he was interrogated for 97 minutes by an FBI agent and detective who
manifested a belief that he was culpable and they had the evidence to prove it. It is true,
as the People observe, that I.F. was not handcuffed or held at gunpoint. It is also true that
one of the doors to the interview room appears to have been open for some period of
48
time, and detectives spoke to I.F. in sympathetic and respectful tones. Nevertheless, our
independent examination of the totality of the circumstances convinces us that they
combined to create a coercive atmosphere that a reasonable 12 year old in I.F.’s position
would have experienced as a restraint tantamount to an arrest. (Aguilera, supra, 51
Cal.App.4th at p. 1162.) The juvenile court should have suppressed the first part of the
fourth interview.
b. The Second Part of the Fourth Interview
After terminating the first part of the fourth interview, C.W. and I.F. drove to the
nearby Cal Works building. C.W. and B.F. spoke with Gordon while I.F. waited in the
car. Gordon explained that evidence collected during the investigation pointed to I.F.,
and the only way to resolve the matter was to continue the interview. B.F. agreed to
continue the interview, but only on the condition that he be the one to confront I.F.
Gordon communicated B.F.’s terms to the investigative team at the district attorney’s
office, and all agreed that the interview would continue, with B.F. taking the lead. No
one appears to have discussed this arrangement with I.F., and no evidence suggests that
I.F.’s participation in the second part of the fourth interview was voluntary. To the
contrary, the record reveals that when asked by B.F. if he wanted to go back and “get to
the bottom of this,” I.F. said he did not want to return to the interview room.
In the interview room, Crabtree assured the family that they would be leaving the
district attorney’s office together at the end of the interview. Crabtree also assured them
that, “You’re free to go at any point. You don’t want to talk about anything, you just stop
and get up and go.” Moments later, Crabtree reiterated, “So you guys understand at any
point you guys can get up and just walk out of here. Okay? No matter what happens,
you guys are still gonna leave here. Okay? Do you understand that [B.F.]?” Once again,
we question whether Crabtree’s assurances were reasonably calculated to inform I.F. that
he was free to terminate the interview and leave. We note that Crabtree’s remarks
consistently conflate the idea that I.F. would be leaving when the interview was over with
49
the idea that I.F. was free to leave at any time, creating an ambiguity as to the terms on
which I.F. might leave. We also note that Crabtree’s remarks appear to have been
directed towards B.F., not I.F. We conclude that a reasonable child in I.F.’s position
might have understood that B.F. had the right to terminate the interview and leave, but
would not have assumed that he possessed any such right, particularly in view of the fact
that B.F. ignored his desire to discontinue the interview only moments before.
Following a thumbnail sketch of the evidence against I.F., Crabtree turned the
floor over to B.F. B.F. then addressed I.F., stating, “Okay. This is the deal, they have
evidence that it points back to you. So what I want to know or what I want us to talk
about is that for some reason there was an accident and for some reason you, did hurt
your sister, you got to talk to him. Now just tell him yes you did it and what the deal is.
We can’t move forward with this, without you either admitting to it that you did it or
they’re gonna get their evidence together and they’re still gonna come and [eventually]
arrest you and it’s gonna be a big scene. We’ve talked at home before that whenever
you’re in trouble [it’s] better if you tell the truth, and we can work through it, [all right]?
It’s the same situation. You know I love your sister very much and it hurts me. You
know I love you very much; I sacrificed everything to take care of you guys, right? I
don’t understand how you could hurt your sister. So like I said[,] if there’s some kind of
accident, if I . . . I don’t know. Basically, they have clothes, your clothes with blood on
it, right? And no proof that anybody else has entered our home. So basically everything
comes back to you. Whether I did something wrong and you’re mad at me, so you did it.
Or you just freaked out. You did something we need to know, so they can get you help.
You won’t spend the rest of your life in prison, but you’ll have to be accountable for what
happened. Understand that? [¶] So can you talk to them and let um know if something
happened?” I.F. responded, “Yeah I do, but I don’t . . . I don’t remember doing it.”
Moments later, an emotional B.F. said, “If it’s bad enough I lose one kid, if you
did this, then I’m gonna lose you for a while. Okay? I’m not saying I’m gonna hate you
50
and never talk to you. But I need to know why, if . . . if this is what’s going on. There’s
no proof of nobody being in the house but you and your sister. Like I said, I told um
don’t arrest you unless they’re a hundred percent positive. So they’re gathering evidence.
If it’s something you did, you have to talk to um. If you lie to me, and hide shit, you
know that’s when I don’t support you right? If [you’re] honest and talk to um . . . I’ll . . .
I don’t know if your family mad at you, if you’re afraid that you’re going to disappoint
me, don’t worry about none of that. You know I love both you guys very much. I’ve
been telling you that for [years], right? We’re here to take care of you right or wrong.
Okay? So you need to talk to them. If you [did] something they need to know, so they
can move forward. Can’t move forward until you talk to um. And if you’re adamant that
you swear one hundred percent you never did nothing, the evidence will prove whether
you did or not. No matter what I say. Then they’re not gonna be so nice to you and
they’re gonna come get you. Okay? So if there was a . . . a[n] argument with you and
your sister, whether there was, whatever the case may be it doesn’t matter. None of it, no
matter what you guys argued, fought over or were upset about, none of it deserved this
right? So if there was a problem you need to talk to um.” I.F. responded, “There wasn’t
. . . I . . . I didn’t do it. I know I didn’t do it.”
With that, B.F. yielded the floor to Crabtree and Dilland. Although B.F. may have
entered the interview room thinking that he would be interrogating I.F., the video
recording and transcript reveal that he ceded control of the interrogation to Crabtree and
Dilland after approximately five minutes, most of which consisted of a lecture on the
importance of honesty, rather than questioning. For most of the interview, B.F. sat on the
sidelines, offering brief observations and tangential asides. Of greatest significance, B.F.
continuously urged I.F. to “talk to them,” “be honest,” and “tell the truth.” Indeed, B.F.
urged I.F. to cooperate no less than seventeen times over the course of the 43-minute
interview.
51
Although B.F.’s tone of voice was calm and supportive, and the questioning by
Crabtree and Dilland measured and professional, we cannot conclude that a reasonable 12
year old in I.F.’s position would have felt free to terminate the interview and leave. To
the contrary, our independent review of the video tape and transcript convinces us that a
reasonable 12 year old, having been brought to the district attorney’s office under protest
and continuously urged to confess by a grieving parent, would have experienced a
restraint tantamount to an arrest.
The People observe that B.F. exercised a significant degree of control over the
second part of the fourth interview, adding that B.F.’s control demonstrates the
noncustodial nature of the interrogation. The People’s argument overstates B.F.’s control
and turns a blind eye to his conflict of interest. As noted, B.F. controlled the interview
for approximately five minutes, ultimately relinquishing control to Crabtree and Dilland.
Whatever his intentions may have been at the beginning of the interview, B.F. appears to
have settled into the role of exhorting I.F. to respond to Crabtree and Dilland’s questions.
That is not to say that B.F.’s participation was unimportant. To the contrary, B.F.’s pleas
for cooperation reveal the depth of his conflict of interest.
As we have discussed, B.F.’s interests as the father of a murdered child were
significantly misaligned with I.F.’s interests as a suspect in a murder investigation. (See
Section II.C, ante.) Although B.F.’s conflict of interest does not appear to have
influenced the earlier interviews, he was clearly moved to participate in the fourth
interview by an understandable need to make sense of his daughter’s death. It seems to
us equally clear that B.F.’s search for answers prompted him to urge cooperation with
police, placing B.F. on a collision course with I.F.’s Fifth Amendment rights, and
contributing to the creation of a coercive atmosphere. Far from demonstrating that the
interview was noncustodial, B.F.’s participation would have convinced a reasonable 12
year old that he had no choice but to submit to questioning.
52
Relying on Colorado v. Connelly (1986) 479 U.S. 157 (Connelly), the People
argue that B.F.’s participation does not implicate Miranda because “[B.F.] is not and
never was an agent of the government in his search for the truth as to what happened to
his daughter.” We have no quarrel with the People’s observation that Miranda protects
against official coercion, and does not reach conduct by a private citizen like B.F. (Id. at
p. 170 [“The sole concern of the Fifth Amendment, on which Miranda was based, is
governmental coercion”].) Although B.F. participated in the interview pursuant to an
agreement with law enforcement, we likewise accept, if only for the sake of argument,
the People’s contention that B.F. was not acting as an agent of the police. (In re Paul P.
(1985) 170 Cal. App. 3d 397, 401 [“Miranda is applicable only to questioning by law
enforcement officials, their agents and agents of the court while the suspect is in official
custody”].) Where we part company with the People is in their suggestion that the
second part of the fourth interview was primarily a private conversation, rather than a
police dominated interrogation.
In re Eric J. (1979) 25 Cal. 3d 522 (Eric J.), on which the People rely, illustrates
the distinction. In Eric J., the minor was suspected of stealing roller skates from one
roller skating rink, where he was employed, and selling them to another. (Id. at p. 526.)
Davis, a uniformed police officer, met with Morris, the manager of the first rink. (Ibid.)
Together, they drove to the second rink, where they met with Rhoda, a roller skating
instructor. (Ibid.) Rhoda suggested they summon the minor to the meeting, which was
held in her office. (Ibid.) During the meeting, Morris questioned the minor for 45
minutes to an hour, after which the minor confessed. (Ibid.) During the hearing on the
minor’s subsequent motion to suppress, Morris and Davis testified that “Morris
questioned [the minor] on his own initiative, that the officer [Davis] did not suggest or
arrange he do so, and that the officer, while present during the conversation between
Morris and [the minor], did not participate in it.” (Ibid.)
53
On appeal, the minor argued that his confession should have been suppressed
because he did not receive a Miranda warning. (Eric J., supra, 25 Cal.3d at pp. 526-
527.) Our supreme court disagreed, stating, “ ‘A private citizen is not required to advise
another individual of his rights before questioning him. Absent evidence of complicity
on the part of law enforcement officials, the admissions or statements of a defendant to a
private citizen infringe no constitutional guarantees.’ ” (Id. at p. 527.) Complicity exists
where the person questioning the defendant is acting “under any arrangements with the
authorities, at their direction, or with their approval.” (In re Deborah C. (1981) 30 Cal. 3d
125, 131.)
Here, unlike Eric J., the interview was initiated by law enforcement, not a private
citizen. Although B.F. insisted on being present, nothing in the record suggests that he
sought the interview in the first instance. Furthermore, though B.F. demanded a role, he
did not control the interview, as Morris did. To the contrary, the record reveals that B.F.
addressed I.F. for five minutes, and then turned the questioning over to Crabtree and
Dilland. Unlike Officer Davis, who passively observed as Morris questioned the minor
in Eric J., Crabtree and Dilland actively questioned I.F. Indeed, the most damning
statement elicited during the interview—I.F.’s equivocal admission that, “I don’t
remember doing it. But I guess I did, I don’t know”—was made in response to
questioning by Dilland, not B.F. And, though B.F. may not have been an agent of the
police, he questioned I.F. pursuant to an arrangement with authorities. (In re Deborah C.,
supra, 30 Cal.3d at p. 131.) In this respect, at least, law enforcement can be said to have
been complicit in B.F.’s interrogation of I.F., such as it was. (Cf. Eric J., supra, 25
Cal.3d at p. 527.) At a minimum, a reasonable 12 year old, having been separated from
B.F. during the preceding interviews, would have understood B.F.’s participation in the
second part of the fourth interview to have been sanctioned by police. We therefore
54
reject the People’s argument that B.F.’s participation turned the fourth interview into a
private conversation, beyond Miranda’s reach. 17
As previously discussed, courts routinely consider the presence or absence of a
parent in deciding whether a reasonable child would have felt free to terminate an
interview and leave. (See, e.g., Alvarado v. Hickman, supra, 316 F.3d at p. 849; In re
Kenneth S., supra, 133 Cal.App.4th at p. 66.) True, the presence of a parent is usually
seen as a supportive factor, weighing against a finding that an interrogation was
custodial. (Alvarado v. Hickman, supra, at p. 849.) But there is no reason the presence
of a parent could not contribute to the creation of a coercive atmosphere, as B.F.’s
presence did here. None of the People’s cases so hold, and we decline to exclude B.F.
from our consideration of the totality of the circumstances. 18
17 We acknowledge that the Court of Appeal for the Fourth District, Division 2, reached
a different conclusion in In re Joseph H. (2015) 237 Cal. App. 4th 517, a case not cited by
the parties. There, the minor argued that the presence of his stepmother (whom he
accused at trial of inducing him to commit the crime) created a coercive atmosphere in a
post-waiver interrogation. (Id. at p. 535.) The court reviewed the video tape and found
that the minor “frequently looked to his stepmother for support,” causing the court to
conclude that her presence was not coercive. (Ibid.) Additionally, the court concluded,
“the minor has not demonstrated any police coercion, a prerequisite to a finding of
involuntariness, so this argument fails.” (Ibid.)
In this case, by contrast, B.F.’s presence, however well-intentioned, was animated by
his search for answers, which caused him to join police in pressuring I.F. to confess.
Unlike the presence of the minor’s stepmother in In re Joseph H., B.F.’s presence was
coercive, not supportive or neutral. Furthermore, as demonstrated in the text, B.F.’s
presence was not the only factor that would have led I.F. to experience the second part of
the fourth interview as custodial. We therefore conclude that In re Joseph H. is
distinguishable.
18 If anything, Howes v. Fields (2012) 565 U.S. 499 (Howes), on which the People rely,
supports our conclusion that the presence of private parties may, in some circumstances,
render an interrogation more coercive rather than less. There, the high court rejected a
55
Having carefully reviewed the video recording and transcript, we conclude that a
reasonable 12 year old in I.F.’s position would have experienced the second part of the
fourth interview as custodial. The juvenile court should have suppressed it.
E. The Erroneous Use of I.F.’s Statements Was Not Harmless Beyond a Reasonable
Doubt
When statements are obtained in violation of Miranda, as they were in this case,
the error is reviewed under the federal “harmless beyond a reasonable doubt” standard set
forth in Chapman, supra, 386 U.S. 18. (People v. Johnson (1993) 6 Cal. 4th 1, 32, 33,
disapproved on another point by People v. Rogers (2006) 39 Cal. 4th 826, 879; In re Z.A.
(2012) 207 Cal. App. 4th 1401, 1422, 1423; Aguilera, supra, 51 Cal.App.4th at p. 1166.)
The People bear the burden of proving that the error was harmless under
Chapman. (People v. Johnson, supra, 6 Cal.4th at pp. 32-33.) In applying this standard,
“ ‘[t]he question is whether there is a reasonable possibility that the evidence complained
categorical rule that questioning an incarcerated prisoner in private outside the presence
of fellow inmates necessarily amounts to a custodial interrogation requiring Miranda
warnings. (Id. at p. 508.) In so doing, the court recognized that, outside the prison
setting, “isolation may contribute to a coercive atmosphere by preventing family
members, friends, and others who may be sympathetic from providing either advice or
emotional support. And without any such assistance, the person who is questioned may
feel overwhelming pressure to speak and to refrain from asking that the interview be
terminated.” (Id. at pp. 512-513.) “By contrast,” the court continued, “questioning a
prisoner in private does not generally remove the prisoner from a supportive atmosphere.
Fellow inmates are by no means necessarily friends. On the contrary, they may be hostile
and, for a variety of reasons, may react negatively to what the questioning reveals.” (Id.
at p. 513.) Just as the presence of fellow inmates could contribute to a coercive
atmosphere in a prison, so too could the presence of a conflicted parent contribute to the
creation of a coercive atmosphere in a police station.
With the exception of Eric J., discussed in the text, none of the People’s other cases
address the “in custody” analysis, as opposed to other aspects of Miranda.
56
of might have contributed to the conviction.’ ” (Chapman, supra, 386 U.S. at p. 23.) “To
say that an error did not contribute to the verdict is . . . to find that error unimportant in
relation to everything else the [trier of fact] considered on the issue in question.” (Yates
v. Evatt (1991) 500 U.S. 391, 403, disapproved on other grounds in Estelle v. McGuire
(1991) 502 U.S. 62, 72, fn. 4.)
We cannot say beyond a reasonable doubt that I.F.’s statements during the third
and fourth interviews did not contribute to the juvenile court’s finding that he was
responsible for the murder of L.F. (Chapman, supra, 386 U.S. at p. 23.) The prosecutor
emphasized the inconsistencies in I.F.’s statements in closing argument, calling particular
attention to the “very interesting admissions” made during the third and fourth
interviews, namely, (1) I.F.’s concession during the third interview that he “could have
seen” L.F.’s bloody body before speaking with the 911 operator, (2) I.F.’s concession in
the first part of the fourth interview that he “could have changed” his T-shirt, and (3)
I.F.’s concession in the second part of the fourth interview that, “I don’t remember doing
it. But I guess I did, I don’t know.”
The juvenile court was clearly struck by the inconsistencies in I.F.’s statements,
noting, at the very beginning of its ruling, that I.F. had “given numerous inconsistent
statements.” Later, the juvenile court observed, “[I.F.] told several stories about what
happened, none of which was a story about changing his shirt. During the last interview,
he kind of concedes he changed his shirt. He is missing details. Why would he change
his shirt?” The juvenile court found other evidence persuasive, including I.F.’s
admissible statements to the 911 operator and Whitney, and the damaged knife
containing L.F.’s DNA. But the juvenile court appears to have viewed all of the
evidence, including the knife, through the lens of I.F.’s inconsistent statements. Indeed,
the juvenile court’s concluding remarks suggest as much: “There has been no dispute
that this is the DNA belonging to [L.F.] hidden within that knife, it was exposed by the
57
scientist. And that is the strongest evidence because the statements of [I.F.] just don’t
make sense to this Court.”
Although the juvenile court properly relied on I.F.’s admissible statements to the
911 operator and Whitney, the court’s comments make clear that the court also relied on
I.F.’s inadmissible statements to Dilland and Crabtree during the first part of the fourth
interview, and leave open the possibility that the court may have relied on I.F.’s
inadmissible statements during the third interview and second part of the fourth
interview. Under the circumstances, we cannot say that I.F.’s inadmissible statements
were “unimportant” in relation to the prosecution’s other evidence. Nor can we conclude
beyond a reasonable doubt that their admission did not materially contribute to the
juvenile court’s finding that I.F. was responsible for the murder. Accordingly, we
conclude that the People have not shown that the admission of I.F.’s statements was
harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 23.) 19
III. DISPOSITION
The juvenile court’s jurisdictional findings and dispositional order are reversed.
The matter is remanded for a new adjudication hearing consistent with the views
expressed herein.
/S/
19 In view of our disposition, we decline to address I.F.’s contention that the juvenile
court erred in refusing to admit exculpatory polygraph evidence over the prosecution’s
objection. (See Evid. Code, § 351.1 [“Notwithstanding any other provision of law, the
results of a polygraph examination, the opinion of a polygraph examiner, or any reference
to an offer to take, failure to take, or taking of a polygraph examination, shall not be
admitted into evidence in any criminal proceeding . . . unless all parties stipulate to the
admission of such results”]; see also People v. Clark (2016) 63 Cal. 4th 522, 631
[“Evidence Code section 351.1 ‘generally bans the admission of polygraph test results in
criminal proceedings’ in the absence of a stipulation by the parties”].)
58
RENNER, J.
We concur:
/S/
MAURO, Acting P. J.
/S/
HOCH, J.
59