Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. J06-01982
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Appellant Brandon B. appeals from the juvenile court’s jurisdictional finding and dispositional order. We affirm.
Background
Appellant was born in August 1992. In the early morning hours of August 10, 2006, appellant and another minor, Jonathan R., were rear-seat passengers in a vehicle driven by 18-year old Nicholas Z. in Walnut Creek. Also in the vehicle were Jonathan’s minor sister and 18-year old Evan N. Jonathan was armed with a .22 rifle he took from his father’s gun safe and appellant was armed with a .22 rifle provided by Evan N.
We refer to all parties by first name in order to protect the identity of the minors involved.
At appellant’s suggestion, Nicholas Z. drove past the home of Tony D., with whom appellant had engaged in a prior conflict. Appellant and Jonathan stuck the rifle muzzles out of the vehicle windows and fired multiple rounds at Tony D.’s home as the vehicle drove past.
The group then drove to a neighborhood in Concord. There, Evan N. shot his .22 rifle at the home of his ex-girlfriend. Evan N. continued to shoot randomly from the car at parked vehicles as the group returned to Walnut Creek and dropped him off there. After that, Nicholas Z. drove Jonathan, Jonathan’s minor sister and appellant to another neighborhood in Walnut Creek with the idea of shooting at the home of an acquaintance of Jonathan and appellant. However, Jonathan and appellant could not get a proper angle of fire at their acquaintance’s house, so they shot at another home instead.
Other facts are adduced below where necessary to the issues discussed.
Based on these events, on November 7, 2006, the District Attorney of Contra Costa County filed a petition pursuant to Welfare & Institutions Code Section 602, alleging in two separate counts that appellant willfully discharged a firearm at an inhabited dwelling, in violation of Penal Code section 246. A contested jurisdictional hearing was held on April 20, 2007, at the conclusion of which the juvenile court sustained both counts of the petition.
Further statutory references are to the Penal Code unless otherwise noted.
At a dispositional hearing held on May 3, 2007, the court adjudged appellant a ward of court, removed him from the custody of his parents for suitable placement by the probation department, and set the maximum period of custody at eight years and eight months. Appellant filed a timely notice of appeal on May 4, 2007.
Discussion
A. Sufficiency of the Evidence—Knowledge of Wrongfulness
Section 26 provides that children under the age of 14 are not capable of committing crimes unless there is “clear proof that at the time of committing the act charged against them, they knew its wrongfulness.” (§ 26; see also In re Manuel L. (1994) 7 Cal.4th 229, 239 [concluding that “the standard of proof applicable to findings under Penal Code section 26 [for children under 14] is that of clear and convincing evidence, and that this standard comports fully with the due process requirements of the state and federal Constitutions]”.) Appellant contends that the prosecution did not prove by clear and convincing evidence that he understood it was wrong to discharge a firearm at an inhabited dwelling.
“When an appellant asserts there is insufficient evidence to support the judgment, our review is circumscribed. (Citation.) We review the whole record most favorably to the judgment to determine whether there is substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could have made the requisite finding under the governing standard of proof. (Citations.) The trier of fact, not the appellate court, must be convinced of the appellant’s guilt, and if the circumstances and reasonable inferences justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment. (Citation.) This standard of review applies with equal force to claims that the evidence does not support the determination that a juvenile understood the wrongfulness of his conduct. (Citation.)” (In re Jerry M. (1997) 59 Cal.App.4th 289, 298 [italics added].)
“In determining whether the minor knows of the wrongfulness of his conduct, the court must often rely on circumstantial evidence such as the minor’s age, experience, and understanding, as well as the circumstances of the offense, including its method of commission and concealment. (Citations.) Generally, the older a child gets and the closer he approaches the age of 14, the more likely it is that he appreciates the wrongfulness of his acts. (Citations.)” (In re James B. (2003) 109 Cal.App.4th 862, 872-873.)
The juvenile court here considered various factors in finding that appellant was aware of the wrongfulness of his actions. The court stated that appellant was “two weeks [away] from age 14 at the time that he did this horrendous act. I considered his actions, his father’s testimony, the specific actions, and in terms of some sort of misguided or perhaps [attempt at] revenge and the consciousness of guilt that I find in some of the way[s] he answered some questions.”
The juvenile court’s ruling is supported by substantial evidence. Appellant’s father testified he had been responsible for teaching appellant “right from wrong,” that he had given his son enough insight to know that “shooting a gun at a person or house would be wrong,” and had taught his son that “guns are dangerous.” (Cf. In re Paul C. (1990) 221 Cal.App.3d 43, 53 [substantial evidence of knowledge of wrongfulness where mother testified “she had told [appellant] before the offense that touching younger persons in a sexual manner was ‘a bad thing to do’ ”). Additionally, appellant was only two weeks short of his fourteenth birthday when the events of conviction took place, increasing the likelihood that he understood the wrongful nature of his conduct. (See People v. Lewis (2001) 26 Cal.4th 334, 379 [[A]t the time of the murder appellant was nearly 14 years old, which makes it more likely that he understood the wrongfulness of his act.]; In re Marven C. (1995) 33 Cal.App.4th 482, 487 [substantial evidence of knowledge of wrongfulness included the fact that appellant was at least 13 years and 8 months old at the time of the shooting]; In re Paul C., supra, 221 Cal.App.3d at p. 53 [minor was 13 years and 4 months old at the time of the offense of oral copulation of another minor].)
Finally, knowledge of wrongfulness can be inferred from the circumstances of the offense, including its method of commission and concealment. (In re James B., supra, 109 Cal.App.4th at p. 872.) That appellant and his accomplices decided to fire into at least one of the houses as an act of revenge, and that they selected multiple targets in the course of their shooting spree provides substantial evidence of knowledge. Moreover, they accomplished this shooting spree while driving clandestinely around different neighborhoods in the early hours of the morning—the easier to escape detection as they discharged their weapons into inhabited dwellings while the occupants were asleep. (In re Marven C., supra, 33 Cal.App.4th at p. 487 [substantial evidence of knowledge where “appellant took three opportunities to fire at his intended victims”]; In re Paul C., supra, 221 Cal.App.3d at pp. 52-53 [evidence of concealment is a factor in meeting the requirements of Penal Code section 26].) In sum, we conclude the record reflects substantial evidence to support the juvenile court’s finding that appellant acted with knowledge of wrongfulness.
Miranda v. Arizona (1966) 384 U.S. 436.
1. Factual Background
Officer Keeler testified that he spoke with appellant at Walnut Creek Intermediate School on September 7, 2006, regarding the shootings. The interview took place in the principal’s office. The principal, Mr. Kevin Collins, was present, along with Detective Shawn Wallace. Earlier the same day, Keeler and Wallace had interviewed Jonathan R. at his school, and he had told them appellant fired a semi-automatic weapon from the car at the Tony D. residence. Officer Keeler was in police uniform and Detective Wallace was in plain clothes.
Officer Keeler also related that the principal’s room had two doors and at no time did either of the officers block the doors. Keeler told appellant that he was investigating some shootings that occurred in Walnut Creek. The officers told appellant that he was not under arrest, and explained to appellant that “he was not forced or obligated to speak” with them. Appellant was not searched before the interview nor was he handcuffed during the interview. Neither officer displayed a firearm during the interview. Appellant did not ask to speak to his father or to a lawyer. Appellant agreed to speak to the officers about the incidents of August 10, 2006, and the interview lasted about 15 minutes.
Officer Keeler stated that during the interview both doors to the principal’s office were closed. Keeler explained that the doors were closed because the principal’s office is next to the attendance office where staff, parents and pupils are coming and going, and he wanted the conversation to be private. He also said that he did not read appellant his Miranda rights before speaking with him. Officer Keeler stated that he had requested that appellant be brought from class to the principal’s office. The officers were already present in the room when appellant entered. Keeler did not remember if appellant entered by himself or accompanied by the principal. Detective Wallace explained to appellant that he was also a police officer. Officer Keeler was asked if “prior to the conversation when you got into the details of the incident, did you tell [appellant] he was free to leave the office?” Keeler stated that “as we began speaking about the incident, I never told him, ‘hey, you’re free to leave.’ ” Keeler did tell appellant that he was aware that appellant had already talked to the Concord police.
Officer Keeler also testified that during the interview, appellant “admitted his involvement in firing rounds at the [Tony D.] residence.” Appellant told Keeler he fired approximately six rounds at the house. He did so, he told Keeler, because Tony D. wanted to fight with him at an outdoor movie event, and also because a female friend of his was “receiving unwanted attention from one of Tony’s friends.” Appellant told Keeler that after shooting at the Tony D. residence, Nicholas Z. drove them to a residence in Concord where they retrieved a knife, and where he witnessed Evan N. shoot at another house. After dropping off Evan N., they drove back to Walnut Creek, where they shot at the K.’s residence. Appellant explained that the original intended target was Treaven D.’s house, but they couldn’t get an angle of fire on that house, so they shot at the K.’s residence instead. Appellant told Keeler that he had not told his father about the shootings.
At the conclusion of the interview in the principal’s office, Keeler explained to appellant that he was under arrest, and transported him to the police station. Within a few minutes after the interview, Keeler placed appellant in handcuffs. At the police station, Keeler placed appellant in an unlocked interview room. Keeler then went to arrest Jonathan R. at Las Lomas High School. Approximately 45 minutes to an hour later, Keeler returned to the police station and interviewed appellant a second time after reading him his Miranda rights. According to Keeler, appellant appeared to understand his Miranda rights and agreed to waive them: he did not ask to speak to an attorney or to his father at any point.
In advising appellant of his Miranda rights, Keeler stated he read from “a laminated card issued by the Contra Costa County District Attorney’s office.” The following colloquy then ensued:
The Court: Do you have that card with you?
Keeler: I do not.
Prosecutor: Could you please paraphrase them as best you can, Officer?
Keeler: The Miranda admonition has to do with the arrestee’s rights to remain silent, and I ask them if they understand that right. It also has to do with the fact that any statements given to me after that point may be used against them in court. Then I ask them if they understand that right.
The Court: I don’t want to know what you ask them. I want to know what you asked this minor.
Keeler: I asked him, Brandon, if he understood that right. Then I read the right—gave him his right to have an attorney present during questioning. I asked Brandon if he understood that right. And then I asked him—or I informed him of his right to have an attorney represent him free of charge before any questioning. I asked him if he understood that right. After that I asked him. . . .
The Court: Did he say he did?
Keeler: Yes, he said that he understood each of those rights. And keep in mind I asked Brandon not for just a nod of the head. I asked him for a verbal response just so there’s no ambiguity or confusion. And after I read those rights to him and received his answers, um, I asked him if he would be willing to speak with me, and he said he was willing to speak with me. [¶] . . . [¶]
Prosecutor: After [appellant] agreed to speak to you after having been read his Miranda rights, did you again begin interviewing him in a question/answer method?
Keeler: I did.
Prosecutor: Did he again explain the events of August [10] to you? . . .
Keeler: Yes, he did.
Prosecutor: Was his account of the events more or less the same?
Keeler: It was.
2. The First Interview in the Principal’s Office
Raising various Miranda claims based on the above facts, appellant first contends that the statements he made to the police during the interview in the school principal’s office should have been excluded because the interview was a custodial interrogation without Miranda warnings. It is settled law that a defendant’s statements are inadmissible if they stem from a custodial interrogation unless the defendant was first advised of his or her Miranda rights. (See Berkemer v. McCarty (1984) 468 U.S. 420, 428-429, quoting Miranda, supra, 384 U.S. at p. 444.) Likewise, statements obtained from minors in violation of Miranda are inadmissible in juvenile proceedings held pursuant to Welfare and Institutions Code section 602. (In re Roderick P. (1972) 7 Cal.3d 801, 810-811.) The hallmark of custodial interrogation is “ ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ ” (Berkemer v. McCarty, supra, 468 U.S. at p. 428 .)
However, if there is no custodial interrogation, the Miranda rule “simply does not come into play,” and there is “ ‘no occasion to determine whether there ha[s] been a valid waiver.’ ” (People v. Mickey (1991) 54 Cal.3d 612, 648, quoting Edwards v. Arizona (1981) 451 U.S. 477, 486.) The existence or absence of custody is based upon an inquiry into “whether there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” (California v. Beheler (1983) 463 U.S. 1121, 1125 (per curiam), quoting Oregon v. Mathiason (1977) 429 U.S. 492, 495.) The issue of whether the person is “in custody,” “depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.” (Stansbury v. California (1994) 511 U.S. 318, 323 (per curiam).) It is determined by considering how a reasonable person in the suspect’s position would have understood his situation. (Berkemer v. McCarty, supra, 468 U.S. at p. 442.) In this regard, the fact that the interrogating officers suspected that appellant had committed a crime does not in itself render an interrogation custodial. (People v. Carpenter (1997) 15 Cal.4th 312, 384.)
Courts consider a number of circumstances in determining whether an interrogation is custodial. These include: “[W]hether 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 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 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.” (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162 [Aguilera].) However, no single 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. (Citation.)” (Aguilera, supra, 51 Cal.App.4th at p. 1162.)
We acknowledge that several aspects of appellant’s first interview in the school principal’s office suggest it was custodial in nature. The police initiated contact, not appellant. There is no evidence that appellant voluntarily agreed to the interview; rather, the officers requested that he be removed from class by school officials and brought to the principal’s office. Also, it does not appear from the record that appellant was specifically informed that he was free to terminate the interview and leave at any time. More than one officer participated in the interview. Lastly, the minor was, in fact, arrested at the conclusion of the interrogation. These factors point to the interview as custodial.
On the other hand, there are a number of factors identified in Aguilera, supra, which support the opposite conclusion that the interrogation was non-custodial. The officers specifically told appellant at the outset of the interview that he was not under arrest, and that he was under no obligation to talk to them. The officers did not tell appellant that they had spoken to his co-responsible, Jonathan R., earlier that morning, or in any way suggest they had information tying him to the crime. Rather, the officers simply told appellant that they were “investigating some shootings that had occurred in Walnut Creek.” (See People v. Bellomo (1992) 10 Cal.App.4th 195, 199 [fact that suspect is the “focus of the investigation” by the police not germane, unless that fact is communicated to suspect].) The setting of the interview — the principal’s office at appellant’s school—was a less coercive environment than a police station. Moreover, there were no particular restrictions on the minor’s freedom of movement during the interview. Also, the record contains no indication that the two officers were in any way accusatory or confrontational in their examination of appellant, and the interview was quite short, lasting only about 15 minutes.
Our weighing of the Aguilera factors presents a close question on the ultimate determination of whether on balance the circumstances “created a coercive atmosphere such that a reasonable person would have experienced a restraint tantamount to an arrest. (Citation.)” (Aguilera, supra, 51 Cal.App.4th at p. 1162.) And although a person’s youth certainly does not trump all of the other Aguilera factors in the determination of whether he or she has been subjected to custodial interrogation (Aguilera, supra, 51 Cal.App.4th at p. 1162 [noting that “no one factor is dispositive”]), we have some reservations about whether a fourteen-year old youth would feel free to simply walk out of his principal’s office in the midst of an interview to which he had been summoned by the principal in person. However, we need not render an ultimate determination on whether the interview in the principal’s office was custodial, because, as explained below, we conclude appellant’s confession from the second interview at the police station is admissible.
Thus, even if the interview in the principal’s office was conducted in violation of Miranda, any error in admitting the confession from that interview was harmless.
3. The Second Interview at the Police Station
Appellant’s next Miranda-based contention is that the second statement he made at the police station after his arrest, and after Miranda warnings were administered, was obtained in violation of Missouri v. Seibert 542 U.S. 600 (2004) (Seibert). Seibert, however, has no application whatsoever to the facts presented here.
The pertinent facts in Seibert are as follows: Patrice Seibert feared charges of neglect after her 12-year old son Jonathan died in his sleep. She and her two other teenage sons concocted a plan to incinerate Jonathan’s body in the course of burning the family’s mobile home. They planned to leave Donald Rector, a mentally ill teenager who lived with the family, in the mobile home to avoid any appearance that Jonathan had been unattended. Seibert’s son Darian set the fire, in which Donald died. (Seibert, supra, 542 U.S. at p. 604.) Five days after the fire, police awakened Patrice Seibert at 3 a.m. at a hospital where Darian was being treated for burns, arrested her, then took her to the police station, where they strenuously interrogated her without Miranda warnings for about 30 to 40 minutes and accused her of planning that Donald should also die in his sleep in the fire. (Ibid.) After Seibert finally admitted she knew Donald was meant to die in the fire, the police gave her a 20-minute coffee and cigarette break, administered Miranda warnings, and got her to repeat the admission that she knew Donald was supposed to die in his sleep during the fire. (Ibid.)
In Seibert, therefore, the high court was presented with a “case which tests a police protocol for custodial interrogation that calls for giving no warnings of the rights to silence and counsel until interrogation has produced a confession.” (Seibert, supra, 542 U.S. at p. 604.) After obtaining a confession that would be inadmissible “since taken in violation of [Miranda], the interrogating officer follows it with Miranda warnings and then leads the suspect to cover the same ground a second time. The question here is the admissibility of the repeated statement” obtained via this two-step interrogation technique. (Ibid. [italics added].) On that question, a plurality of the high court concluded that “[b]ecause this midstream recitation of warnings after interrogation and unwarned confession could not effectively comply with Miranda’s constitutional requirement, we hold that a statement repeated after a warning in such circumstances is inadmissible.” (Ibid.)
Appellant offers a lengthy discussion of Seibert, notes the fragmented nature of the opinion, and “submits [that] the determinable holding of Seibert is the plurality opinion which envisions an objective inquiry from the perspective of the suspect and applies to intentional and unintentional two-step interrogations.” We decline to plumb the depths of Seibert in this manner because it is wholly inapposite to the facts at hand. Seibert involves a two-step interrogation procedure: In the first step, the suspect is arrested and then subjected to a custodial interrogation without Miranda warnings until a confession is obtained; in the second step, the suspect is given perfunctory Miranda warnings and then questioned until he or she repeats the confession which was obtained in the first step. In other words, the two-step interrogation technique in Seibert “reveal a police strategy adapted to undermine the Miranda warnings.” (Seibert, supra, 542 U.S. at p. 616 [plurality op., fn. omitted].) The police used this strategy to extract a confession from Seibert, which was inadmissible because it was obtained in a custodial setting absent Miranda warnings, and then attempted to sanitize the illegally-obtained confession by administering Miranda warnings after the fact and simply prompting Seibert to repeat the confession under further questioning without advising her that her prior statement could not be used. (Id. at pp. 605-606 [officer said he “made a ‘conscious decision’ to withhold Miranda warnings, thus resorting to an interrogation technique he had been taught: question first, then give the warnings, and then repeat the question ‘until I get the answer that she’s already provided once.’ ”].)
Under this scenario, the plurality in Seibert identified and analyzed a series of relevant factors that bear on whether Miranda warnings delivered in the midst of a two-step interrogation could be effective enough to accomplish their object of allowing an individual to make a “ ‘free and rational choice’ about speaking.” (Seibert, supra, 542 U.S. at p. 611 [plurality op.].) The factors identified by the plurality were “the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first.” (Id. at 615.)
An analysis of the Seibert factors is not required, however, because the facts here raise none of the concerns that exercised the high court in Seibert, supra. None of the egregious police conduct on display in Seibert is present here, for in Seibert the police actually devised and employed a protocol to deliberately circumvent a suspect’s right to Miranda warnings. True, we acknowledged above that it was a close question whether the officers should have given appellant Miranda warnings before the interview in the principal’s office. However, it requires a huge leap from there to conclude that the officers deliberately withheld those Miranda warnings in a cynical interrogation tactic to obtain an illegal confession that they intended to sanitize by subsequent warnings under Miranda. And on these facts we will not make such a leap. In Seibert, police arrested the suspect at 3 a.m., transported her directly to the police station, and strenuously interrogated her without Miranda warnings while accusing her all the while of planning that the victim should die in his sleep. (Seibert, supra, 542 U.S. at p. 604.) Here by contrast, appellant was not arrested. Indeed, the officers explicitly told appellant he was not under arrest, and further advised him that he was not obligated to talk to them. Appellant was not taken to the police station—he was interviewed at his school. The officers did not accuse appellant of involvement in a crime. Rather, they told appellant they were investigating some shootings in Walnut Creek, and so advised, appellant agreed to speak to the officers. Moreover, the interview in the principal’s office showed none of the features of the forceful interrogation police subjected the suspect to in Seibert. (Cf. Seibert, supra, 542 U.S. at p. 605 [“[Officer] Hanrahan questioned [the suspect] without Miranda warnings for 30 to 40 minutes, squeezing her arm and repeating ‘Donald was also to die in his sleep.’ ”].) In sum, in this case the police did not, as in Seibert, employ a two-step interrogation strategy intended “to undermine the Miranda warnings.” (Seibert, supra, 542 U.S. at p. 616 [plurality op.].) Rather, we conclude that the interview at the principal’s office and appellant’s subsequent interrogation at the police station following his arrest were separate and distinct segments of the police investigation. Accordingly, Seibert simply has no application here. Therefore, the Miranda warnings which appellant received before his interview at the police station allowed him to “make an informed choice” and “effectively advise[d] [him] that he had a real choice about giving an admissible statement at that juncture.” (Seibert, supra, 542 U.S. at p. 612.)
4. Sufficiency of Miranda Admonition
Appellant’s last Miranda-based contention is that the Miranda admonition he was given at the police station prior to his second interview was legally insufficient. However, this issue was not preserved for appeal.
During the course of argument in juvenile court on appellant’s Seibert motion, the court stated: “I guess there’s no issue as to the Miranda [issue] itself being valid, . . . the Mirandizing being accurate. I guess there’s no issue of that.” To which defense counsel responded: “I’m not raising that issue.” Subsequently, the court found that the police strategy did not “fall[] under Seibert whatsoever,” adding “[but] if you want to continue asking questions, and if there’s further objections coming as to the sufficiency of Miranda . . ., I’m open to that.” There then followed the colloquy set forth above involving the court, the prosecutor and Officer Keeler. But at no point did defense counsel object to the sufficiency of the Miranda admonition given to appellant. Accordingly, having failed to assert in juvenile court that the insufficiency of the Miranda admonition was a basis on which to exclude appellant’s second statement to the police, “appellant has waived the right to assert error on those grounds now.” (People v. Holt (1997) 15 Cal.4th 619, 667 [sufficiency of Miranda warning waived on appeal where appellant did not object in trial court on that basis].)
Anticipating this, appellant further asserts that his trial counsel was ineffective for failing to challenge the sufficiency of the Miranda admonition. Appellant’s claim fails under the familiar two-prong test for claims of ineffective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 686-687 [appellant must demonstrate the attorney’s deficient performance as well as resulting prejudice, defined as a reasonable probability that, but for counsel’s conduct, the appellant would have received a more favorable outcome].)
In the first place, “[c]ounsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile.” (People v. Price (1991) 1 Cal.4th 324, 387.) Regarding the Miranda admonition, Officer Keeler testified that that he read it to appellant from a plastic laminated card provided by the Contra Costa County District Attorney’s office and that appellant appeared to understand his Miranda rights and agreed to waive them. Although for some inexplicable reason Officer Keeler did not have the card with him in court, and therefore he could not recite word for word how he advised appellant, he paraphrased as best he could what he told appellant and stated that appellant “understood each of those rights. And keep in mind I asked Brandon not for just a nod of the head. I asked him for a verbal response just so there’s no ambiguity or confusion.” Moreover, Officer Keeler’s paraphrasing of his Miranda advisement contained all the essential elements because it covered appellant’s right to remain silent, the fact that any statement given could be used against him, and his right to counsel. (In re Kenneth S. (2005) 133 Cal.App.4th 54, 63 [noting elements of Miranda warnings].) Accordingly, counsel cannot be faulted for failing to object to an admonition that was sufficient.
Even if the sufficiency of Officer Keeler’s admonition could be found wanting in some respect, there is an entirely plausible explanation for defense counsel’s lack of objection to it—counsel may have thought it futile to object because the matter could simply have been deferred subject to Officer Keeler’s recall with the card in his possession. This is a separate and independent ground on which we reject appellant’s claim of deficient performance. (See People v. Anderson (2001) 25 Cal.4th 543, 569 [“[w]hen a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel’s challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation”] [italics added]; People v. Fosselman (1983) 33 Cal.3d 572, 581 [same].)
C. Did Counsel Provide Ineffective Assistance at Sentencing?
At the outset of the dispositional hearing held on May 3, 2007, the juvenile court stated: “The sustained charges are two counts of Penal Code 246, Shooting at an Inhabited Dwelling, as felonies. [¶] Maximum custodial time is eight years and eight months.”
On these facts, appellant contends his trial counsel was ineffective because she did not object to the court’s calculation of the maximum term, which reflects that the court imposed consecutive sentences on the two counts of conviction rather than concurrent sentences. Trial counsel’s performance was deficient, appellant continues, because she “expressed no awareness whatsoever that the court was inferentially imposing consecutive sentences and increasing [appellant’s] maximum [custodial] term [by] 20 months.” Appellant further asserts that he was prejudiced thereby because if counsel had objected there is a reasonable probability that the juvenile court would have imposed concurrent sentences. This claim lacks merit.
The law provides that if a minor “is removed from the physical custody of his or her parent or guardian as the result of an order of wardship . . ., the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court.” (Welf. & Inst. Code, § 726, subd. (c).) The “maximum term of imprisonment” means the longest determinate sentence provided for the offense, and the court may elect “to aggregate the period of physical confinement on multiple counts or multiple petitions,” in which case the maximum “shall be the aggregate term of imprisonment specified in subdivision (a) of Section 1170.1 of the Penal Code.” (Ibid.)
Section 1170.1 specifies that the aggregate term is the sum of the principal term and any subordinate terms, where the principal term is “the greatest term of imprisonment imposed by the court for any of the crimes” and the subordinate is “one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed.” (§ 1170.1, subd. (a).)
Here, the juvenile court imposed the aggregate term of eight years and eight months. This is composed of the principal term of seven years (the longest determinate sentence for section 246), plus the subordinate term of 20 months for the second count (one-third the mid-term of five years). (See § 246 [providing for determinate sentence of three, five or seven years]) Accordingly, as appellant points out, the juvenile court arrived at the maximum term of confinement by imposing consecutive sentences, because if it had imposed concurrent sentences the maximum term would have been seven years.
It is therefore apparent that the juvenile court, in specifying the maximum term of physical confinement, exercised its discretion under Welfare and Institutions Code section 726 to impose consecutive terms for each count. The record contains no indication that the trial court somehow imposed consecutive terms automatically because it was unaware of its discretion in the matter. (Cf. In re Jesse F. (1982) 137 Cal.App.3d 164, 168 [remanding for the court to exercise its discretion where the court “imposed consecutive terms expressing the view that it was compelled by section 726 to do so” [italics added].) Because the record does not indicate otherwise, we must assume the trial court properly understood the range of its discretion. (Evid. Code, § 664 [ “It is presumed that official duty has been regularly performed.”].) Moreover, when the juvenile court exercises its discretion to impose consecutive sentences, it need not state its reasons for doing so, because a “youthful offender is not ‘sentenced’ but ‘confined’ [and] [i]t would be meaningless to recite reasons for an indeterminate confinement, the true extent of which” remains to be seen. (In re Jesse F., supra, 137 Cal.App.3d at p. 169 [italics added].) In the context of juvenile proceedings, therefore, we cannot say that counsel’s performance was necessarily deficient where she did not object to the court’s discretionary decision to calculate the maximum period of confinement by aggravating the terms and the court was not required to state its reasons for doing so.
This is not a case in which the appellant was committed to the California Youth Authority (CYA). Where a court commits a minor to CYA, the juvenile court has the discretionary authority under Welfare & Institutions Code section 731, to set a maximum term of physical confinement at less than the statutory maximum “based on the facts and circumstances of the case.” (In re Sean W. (2005) 127 Cal.App.4th 1177, 1188 [remanding the matter to permit the court to make an informed determination of appellant’s maximum term of confinement to CYA under § 731].)
Moreover, even if counsel’s performance is deemed deficient in this regard, appellant cannot demonstrate prejudice. (See Strickland v. Washington, supra, 466 U.S. at pp. 686-687 [defendant must demonstrate both the attorney’s deficient performance as well as resulting prejudice].) The juvenile court was clearly concerned at the danger appellant posed to society and declined to consider a placement at a local, low security, “unlocked facility.” Rather, the court ordered appellant’s placement in a “court-approved home or institution.” This reflects the court’s view that a reduction in the maximum period of confinement was unwarranted, especially in view of the court’s scathing denunciation of appellant’s crimes as a “horrendous act.”
Appellant contends that counsel could have asked the juvenile court to consider certain mitigating factors relevant to the issue of whether consecutive or concurrent sentences are warranted, pursuant to California Rules of Court, rule 4.425 (“rule 4.425”). However, all the rule 4.425 factors relating to the crimes at issue point to appropriateness of consecutive sentencing in this case, including the facts that the shootings and their objectives were predominantly independent of each other (one was for revenge and one because it was an easy target), the shootings involved separate acts of violence, and the crimes were committed at different times or separate places with plenty of time for deliberation in the interval. (Rule 4.425(a)(1)-(3).) On these facts, appellant has failed to show that but for counsel’s conduct he would have received concurrent as opposed to consecutive sentences. Accordingly, his claim of ineffective assistance of counsel fails. (Strickland v. Washington, supra, 466 U.S. at pp. 694 [“defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different”].)
Disposition
The juvenile court’s jurisdictional finding and dispositional order are affirmed.
We concur: Pollak, Acting P. J., Siggins, J.