Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J0401020
Haerle, J.
I. INTRODUCTION
Adam C. appeals from a dispositional order after a contested jurisdictional hearing in which the juvenile court found armed robbery charges to be true. On appeal, he challenges the admission of his confession as coerced and involuntary. Appellant also contends that remand is required for the juvenile court to determine expressly whether the offense of possession of a firearm by a minor (Pen. Code, § 12101, subd. (a)(1)) is a misdemeanor or a felony, as required by Welfare and Institutions Code section 702. We will remand solely for the juvenile court to make this determination, and in all other respects affirm the judgment.
All further unspecified statutory references are to the Penal Code.
II. FACTUAL AND PROCEDURAL BACKGROUND
On November 2, 2007, a supplemental wardship petition pursuant to Welfare and Institutions Code section 602 was filed in Contra Costa County Juvenile Court alleging that appellant committed second degree robbery (§ 211/212.5, subd. (c)) (count 1), while armed with a handgun (§ 12022, subd. (a)(1)), and was a minor in possession of a handgun (§ 12101, subd. (a)(1) (count 2).
A contested jurisdictional hearing was held on November 27 and 30, and December 7 and 14, 2007, and January 25, 2008, and the following evidence was adduced.
On the evening of September 12, 2007, Vui Tran was working for Pizza Guys in Antioch. He was sent to deliver an extra large pizza with chicken and bacon at 144 El Capitan Lane in Antioch. As requested by the person placing the order, Tran waited in a dead-end alley near a garage. Tran called the person, who said she would come out to get the pizza, but when no one came for over 20 minutes, Tran left. As he was driving back to Pizza Guys, Tran received a phone call from his manager who told him to return to El Capitan Lane to deliver the pizza.
When Tran got back, still no one came, so Tran called the cell phone number of the person who had ordered the pizza. The woman who answered the phone told him, “Wait there, I’m on my way there.” He saw a Black woman in a black top with beige pants approaching his car and talking on a cell phone. She used her cell phone to talk to Tran, and, standing about three feet from his car window, told Tran that she was getting the money ready for the pizza. She appeared to be about 17 or 18 years old.
As Tran turned to the passenger seat to get the pizza for her, he heard something to his left and turned back to see two men on the driver’s side of his car. Both men were Black: one was a “big tall guy” wearing a green jacket; the other was smaller and wore black clothes. The larger man reached through the open car window, unlocked and opened the door, and thrust a short black gun into Tran’s stomach and covered his mouth. The other man leaned into the car and searched Tran’s pockets. The men took money from Tran (about $100) and the pizza. Tran did not get a good look at the two men and could not identify appellant in the court room as a participant in the robbery.
Savannah Haines, appellant’s girlfriend at the time, lived with her grandfather and uncle on Lotton Street, but spent time at her mother and brother Shawn’s townhouse at 10 El Capitan Lane. Appellant sometimes stayed with Savannah at the El Capitan Lane house, and had done so the night of the robbery. Savannah and appellant had their own room at the house.
On the evening of September 12, 2007, Savannah was at her mother’s townhouse with appellant, her two children, her brother, her mother, her mother’s boyfriend, and two frequent visitors, Deleshia and Richard, known as “Skip.” Savannah was not feeling well that day; she believed that circumstance was due to her pregnancy. She stayed in the townhouse all day, leaving only to have a cigarette with Deleshia around 10:30 p.m. When Savannah returned to the townhouse, appellant and Skip had left. Shortly thereafter, she heard a “commotion.” She looked outside and saw Skip running toward the house and appellant standing near a 7-Eleven. Later, a large man named Carlos, known as “Los,” the boyfriend of a neighbor named Latoris Guillebeau, came to the house to ask Savannah’s mother for a ride. Los is a tall Black man, about 6’4” tall, and weighs about 300 pounds.
In September 2007, Guillebeau lived two doors down from Savannah’s mother’s home in the complex on El Capitan Lane. Guillebeau was the subscriber to the telephone number used to order the pizza from Pizza Guys. On the evening of September 12, 2007, Los asked to borrow her cell phone to order a pizza. She went outside to give her phone to Los, who was standing with Skip, Shawn, and appellant.
About an hour later, from her upstairs window, she saw Los take off his blue hoodie and throw it into his cousin’s back yard. When she met him at her door, he was perspiring although it was cold that night. Los told her “the pizza guy never came” and “started pulling money out of everywhere.” Guillebeau was surprised because “when I saw him earlier, he couldn’t even buy me a bag of chips because he was so broke.” Los gave her $15.
While Guillebeau was talking with Los, she received two calls on her cell phone, one from a police officer who informed her that the phone was used in a robbery. She turned off her phone, gave the money back to Los and told him to leave. She then called Savannah to tell her what had happened. Savannah did not seem surprised and told Guillebeau that she did not have to tell the police anything.
The next day, Guillebeau got a threatening phone call from Skip. Los also called her that morning to tell her that “he wasn’t turning himself in because he didn’t have anything to do with it.” Guillebeau told him she thought she was “set up” because they used her cell phone to order the pizza even though “everybody had a phone.”
Also on the day after the robbery, Antioch police officers conducted a probation search of 10 El Capitan Lane, an inspection justified by Shawn’s probation status. They found appellant and a piece of half-eaten pizza, which appeared to be topped with chicken and bacon, in Shawn’s room. Shawn denied knowing anything about the pizza. Shawn told Detective Santiago Castillo that he was not involved in the robbery but that he had heard appellant and Los talking about it. Shawn said appellant admitted to him that “he robbed a pizza guy, and he got money out of it.” At the hearing, Shawn denied making this statement.
A search of Savannah’s room uncovered a loaded.38 caliber revolver under a mattress next to a crib and three boxes of.38 caliber ammunition in a backpack. Savannah testified that the backpack was appellant’s. Detective Marty McCann questioned Savannah. She told him that appellant and Los took delivery of the pizza, and that appellant had money later that evening after not having any earlier in the day. Savannah denied making these statements.
Police arrested appellant and took him to the police station. Advised of his Miranda rights, after about an hour of questioning, appellant admitted he was present when Los robbed Tran, but denied active participation. He insisted that he “tr[ied] to get [Los] not to do it whatever but once I seen that he was really, really eager to do it that’s when I turned and went the other way.” Appellant said that he was not present “when they called the pizza guy, ordered the pizza, none of that.” He said he stood in the carport when the delivery car arrived and was about five feet away when it stopped. When the driver tried to evade the robbery, Los “pulled the gun on him [and] that’s when he would have seen me standing right there.”
Although appellant admitted that the gun was his, he said he did not “touch” the gun during the robbery. He believed that Skip, who knew where he kept the gun, took it to give to Los. After the robbery, Los told Skip to return it to Savannah’s house. Appellant told the police that he received only $10 from Los. He took the money because he needed to buy food for Savannah.
On January 25, 2008, following the hearing, the juvenile court sustained both counts and the enhancement.
On February 8, 2008, at the dispositional hearing, the juvenile court adjudged appellant a ward of the court with no termination date, removed him from the custody of his parents pursuant to Welfare and Institutions Code section 726, subdivision (a)(3), and ordered him placed in the custody of the probation officer for placement in a court-approved home or institution.
Appellant timely filed a notice of appeal on February 15, 2008.
III. DISCUSSION
A. Appellant’s Motion to Exclude His Confession.
Appellant contends that his statements to police were given involuntarily, in violation of his due process rights under the United States and California constitutions. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 15.)
1. Factual background.
Detectives McCann and Castillo interviewed appellant at the Antioch police station the day after the robbery. The interview was recorded on DVD. Castillo informed appellant of his Miranda rights and the detectives began the interview by obtaining personal information from appellant, such as his full name, address, physical characteristics, and prior criminal record.
Detective Castillo then told appellant that “you’re here because I’ve got evidence against you” and “right now would be your best opportunity to come clean and tell me about your case.” Appellant asked what kind of evidence they had against him, and Castillo responded, “All kinds, including statements from your girlfriend, okay. Let’s just think of it this way, okay, you’ve got a little kid already, and you’ve got your girlfriend who’s pregnant. Okay. She don’t need you to be lying, getting tied up in shit, you need to be with her, bottom line. Okay, so you need to think about that.” McCann said to appellant, “I’m trying to get to the truth, and the faster we get that done the better it is for everybody.” McCann also told appellant that “he had to be extra careful with the way he handled himself because of his past and because he knows they’re probably not going to screw around with Byron [Orin Allen Youth Rehabilitation Center in Byron, California] again, that he’s probably looking at YA....” Castillo told appellant that he could be charged as an adult.
Castillo told appellant that he had been identified by the victim and “snitched out” by his girlfriend. Castillo advised appellant that if he lied to the detectives, “it would make him look bad in court.” The “best route for him,” the detective said, “was to come clean” and “turn a new chapter in his life.” Castillo explained that this was “the last chance he would probably get as a kid before everything would start sticking [with him] for the rest of his life.” Appellant acknowledged being aware of the robbery, stating, “I don’t know, it’s like a couple days ago or whatever they was talking about trying to rob a pizza man or whatever, and everybody [unintelligible] and I’m like[.]”
Castillo repeated that “the pizza guy identified him” and his girlfriend “gave him up.” Castillo also told appellant that his girlfriend “could lose her kid for that.”
Castillo told appellant that the detectives were “not there to make things worse” for appellant and that they “wanted to minimize as much as possible what happened.” The detective explained that “the first step to showing remorse is accepting that he did something wrong, coming clean, and saying, ‘Look, I fucked up.’ ” “[The courts] look at that and they appreciate that,” Detective McCann stated. “Especially in juvenile court,” Detective Castillo added.
Castillo told appellant that Deleshia admitted that she made the phone call and watched appellant and others (“you guys”) commit the robbery. The detectives added that they knew that appellant did not have the gun, “but unfortunately you were there, okay. And you still haven’t admitted that yet, and you’re totally minimizing your participation[.]” Appellant responded, “I said I was there but I turned around before the actual robbery on a pizza man occurred, okay.”
Castillo informed appellant that the detective knew Los gave appellant money because Savannah told him. Appellant stated, “He only gave me like ten dollars.” Castillo suggested that appellant watched the robbery but did not want to be involved. Appellant replied, “Basically, I [unintelligible] basically try to get him not to do it whatever but once I seen that he was really, really eager to do it that’s when I turned and went the other way--” Appellant said he took the cash to buy food for his girlfriend. McCann said that the judge is “usually compassionate” and that taking money to buy food for loved ones rather than to buy alcohol or drugs would make appellant “look better.”
Castillo told appellant that the victim selected him and Los from a lineup. According to the victim, Castillo said, appellant did not have a gun but was “watching [the robbery].”
The detective advised appellant that the police had “more than you think” on appellant. Castillo repeated that his girlfriend “gave him up” because she loved him and wanted him to avoid “more trouble.” McCann added, “the faster we put this behind us, it’s going to be better for you as you get older.” Castillo informed appellant that he was “lucky” that he was still a juvenile, but said that he, Castillo, had “the option of filing this thing as an adult.” Appellant stated, “I know but the only thing I want to say, the only thing I’m really worried about is [unintelligible] a warrant, was like when I turned myself in like last time I had a warrant [unintelligible] and when I turned myself in like, I had a bag of weed in my shoe and that was the reason I ended up doing the whole 90 days in Byron or whatever. But this time [unintelligible -- long] be with my son, basically.” McCann told appellant that his juvenile status was a “plus” for him, adding that “if you were over 18 sitting in that chair, you’d be looking at a whole different thing, okay. So appreciate your position, and uh, as [Castillo] was saying, just let’s get the whole truth out, let’s go start to finish, and let’s not have to go back through it again, okay.”
Castillo again told appellant that Deleshia acknowledged she made the telephone call and the others “did this, this, this and this.” The detective said that he would “write the report and let the DA decide what he wants to do, the probation department decide what they want to do with it.” Castillo told appellant that “[y]ou need to... think what you want to do with your future, because your answers to me and the statement that I put in the report could dictate a lot of that.” McCann advised that the “next 5 or 10 minutes possibly could be the most important 5 or 10 minutes of your entire life because what you say and what you don’t say is going to come back.”
Castillo then told appellant that “I don’t think you’re a thug. I’m not going to portray you as that in my report. I’ll portray you as a father who loves his kid and loves his girlfriend and wants to provide for them, but you need to come clean and tell me your side of the story.” The detective asked appellant if he wanted to be seen as a “thug” who did not care about his actions or a compassionate person who loved his family but “fucked up.” “Make or break time, Bro.” Appellant stated, “I mean, I understand everything you all are saying, but one thing, the thing about is basically, my future, and I don’t want to have nothing to make it where it’s hard for me to end up getting out of juvenile hall [unintelligible].” Castillo stated, “I’m not asking you to admit something you didn’t do....[¶] What’s your involvement in this thing?” McCann added that it was the “bottom of the ninth inning” and it was his “last chance” to tell what happened.
Appellant responded, “Last night, I walked outside or whatever, and there was like, there was like something up. Carlos, Shawn and everyone like that was outside at the time. And me and Skip was in the house. So then I walked outside and I heard them mention something about uh robbing the pizza man or whatever, and everybody well who got the number [unintelligible] it was some pizza place Deleshia knew the number by heart. I don’t know if it’s the one they called or not or whatever. [Unintelligible] robbing the pizza guy or whatever, so I turned around and went back in the house. And then I came back outside or whatever and they was talking about the pizza guy was almost here or whatever, so we had all had went to the back, and when we went to the back there we had walked across path [?] of the pizza guy or whatever, and the pizza came on top of the car, and they had rolled up[.]” The detectives asked clarifying questions while appellant made his statement.
Castillo again told appellant that the victim identified him and that Savannah said he had $30 or $40. Savannah thought it was “odd,” according to McCann, that appellant had money soon after the robbery.
McCann told appellant that he, McCann, was “tired of... having you put all this shit on other people.” The detective asked appellant if he knew where 17-year-old armed robbers go until they’re 25 years old. “I think you do. It’s CYA.” McCann then asked if appellant “want[ed] to make it better for yourself [by showing] that you’re man enough to take this like a man.”
Castillo then told appellant what the detectives had learned from Savannah. According to Castillo, she said that appellant owned a gun used in the robbery and that he kept it in the bedroom. Appellant interjected, “My fingerprints are not on the gun, though[.]” Castillo continued: when the detectives showed her the gun, she said, “yeah, that’s his gun.” Savannah said appellant put the gun beneath the mattress two days before the robbery because “he didn’t want to get up and put it away.” When appellant responded that her statements were not true, Castillo replied that she would not lie because “she’s got so much to lose, I could go take her kids.” McCann added, “we could take them all to CPS.” McCann continued, “Every kid [could be] out of the house in an hour and a half.” “Just because that gun was in that room,” interjected Castillo. Castillo told appellant that he had the option of removing the children and terminating Savannah’s public housing assistance if appellant lied to them about the gun, but told appellant that he did not want to do that.
Appellant stated, “I had nothing to do with the robbery[.]” Castillo told appellant that he believed that appellant helped to plan the robbery and “that’s what I’m going to present to the court.” McCann added, “And what are they going to believe, come on[?]”
Castillo told appellant that his “only choice” was to “make yourself look better by telling the truth.” He added that appellant’s girlfriend and children would be the ones to suffer. Castillo asked appellant if he wanted to put his family through the embarrassment of having to testify against appellant. He advised appellant that his family could be called to testify, and “if they didn’t want to testify, [the detective] could issue warrants for their arrest until they did testify.” Appellant responded, “We walked back to the house or whatever, and then we went back and then we walked back to the house again and then we walked back there again, and that’s when he had ran around the corner with the gun and pulled it out on the dude and all this stuff.”
Appellant insisted that he was not lying. Castillo said he thought appellant was “minimizing” what he did, “telling a little bit of the truth, but not quite all of it[.] Finally, Castillo told appellant that he would probably go to CYA for awhile. McCann interjected, “a long while. Your kids will probably be old enough to write you letters.” Shortly thereafter, the transcript ended.
At the hearing, Castillo acknowledged that, at the time of the interview with appellant, the victim had not identified appellant or Los and had not selected them from a lineup. The victim did not say a person was standing nearby but not participating. Deleshia did not tell the detective that she had witnessed the robbery and that Los was the one with the gun. Savannah did not tell the detective that appellant had $30 or $40 or that the gun found in the bedroom was appellant’s. She did not tell Castillo that appellant kept a gun in the apartment or that she saw appellant hide the gun beneath the mattress. The detective did not show the gun to Savannah.
2. The juvenile court’s ruling.
During the jurisdictional hearing, the trial court reviewed the DVD and transcript of appellant’s interview. The court concluded that appellant’s statements were admissible, and that under “the totality of the circumstances,” the detectives’ “statements and tactics [did not] coerce[] the minor’s statements or overwhelm[] his freewill [sic].” The court observed that, at the time of the interview, appellant was 17½ years old, and was “a sophisticated young man, having been involved in the criminal justice system for over three years.” The interview lasted about an hour, during which he “appeared calm and in control.” Everyone was seated the entire time, and, for the most part, the officers did not raise their voices. Moreover, appellant “never fully confessed.” He admitted to being nearby, but “he never said he did it.”
The court distinguished In re Shawn D. (1993) 20 Cal.App.4th 200 (Shawn D.), in which the minor was unsophisticated and suffered from post-traumatic stress disorder. The interview in Shawn D. was over three hours long; the minor was emotional and agitated; and the conduct of the officers was “much more severe.”
Here, the court continued, “the officers’ statements about Savannah weren’t really threats that if the minor did something Savannah would be treated differently. It was more that Savannah was going to have consequences based on her own actions.”
Addressing “lies” during the interview by the detectives, the court noted that it is a “common tactic, and I don’t find that they were so tremendous that they overcame [appellant’s] will.” The differences between the juvenile and adult criminal justice systems described by the detectives were “essentially accurate. And the officers basically continued to stress that it would be beneficial to [appellant] to confess and tell the truth. And that’s all true. As I said, [appellant] never did confess.”
3. Legal principles.
Both the United States Constitution and the California Constitution bar the prosecution from using any involuntary statement obtained from a criminal suspect by coercion. (People v. Massie (1998) 19 Cal.4th 550, 576.) A confession is voluntary if it is the product of the free will of the suspect, who has chosen to speak without any form of compulsion or promise of reward. (People v. Thompson (1980) 27 Cal.3d 303, 327-328.) Conversely, an involuntary or coerced confession is an incriminating statement “obtained by physical or psychological coercion, by promises of leniency or benefit, or when the ‘totality of circumstances’ indicates the confession was not the product of the defendant’s ‘free and rational choice.’ ” (People v. Cahill (1993) 5 Cal.4th 478, 482, fn. 1; accord, People v. Smith (2007) 40 Cal.4th 483, 501; see also Shawn D., supra, 20 Cal.App.4th at p. 208 [“A confession is involuntary if an individual’s will was overborne.”].) Voluntariness is determined from the totality of the circumstances, including the personal characteristics of the defendant and the details of the interrogation process. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 226; People v. Neal (2003) 31 Cal.4th 63, 79 (Neal); Shawn D., supra, 20 Cal.App.4th at pp. 208-209.)
“ ‘ “Among the factors to be considered are ‘ “the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity” as well as “the defendant’s maturity [citation]; education [citation]; physical condition [citation]; and mental health.” ’ [Citation.]” ’ ” (People v. Ramos (2004) 121 Cal.App.4th 1194, 1202 (Ramos).)
“ ‘Coercive police activity is a necessary predicate but does not itself compel a finding that a resulting confession is involuntary. [Citation.]...’ [Citation.]... ‘[S]uch activity must be, as it were, the “proximate cause” of the statement in question, and not merely a cause in fact.’ [Citations.]” (People v. Jablonski (2006) 37 Cal.4th 774, 814.) Therefore, a threat renders a statement involuntary “only if the threat actually induces defendant to make the statement.” (People v. Lucas (1995) 12 Cal.4th 415, 442.) Similarly, “an improper promise of leniency does not render a statement involuntary unless, given all the circumstances, the promise was a motivating factor in the giving of the statement.” (People v. Vasila (1995) 38 Cal.App.4th 865, 874.)
In the juvenile court, the People bore the burden of proving the voluntariness of appellant’s statements by a preponderance of the evidence. (People v. Sapp (2003) 31 Cal.4th 240, 267 (Sapp); People v. Markham (1989) 49 Cal.3d 63, 71.)
Where a defendant claims on appeal that his confession was involuntary, the appellate court reviews the record de novo and independently determines the issue of voluntariness. (People v. Benson (1990) 52 Cal.3d 754, 779; Ramos, supra, 121 Cal.App.4th at p. 1202.) We necessarily examine the totality of the circumstances surrounding the statements, including the details of the interview with the detectives and the characteristics of appellant. (Neal, supra, 31 Cal.4th at p. 80.) We must accept the juvenile court’s resolution of disputed or conflicting facts and related inferences, as well as the court’s determinations of credibility, so long as they are based on substantial evidence. (Sapp, supra, 31 Cal.4th at p. 267; Shawn D., supra, 20 Cal.App.4th at pp. 207-208.) The trial court’s findings as to the circumstances surrounding the confession are upheld if supported by substantial evidence. (People v. Boyette (2002) 29 Cal.4th 381, 411; Ramos, supra, 121 Cal.App.4th at p. 1202.)
4. Analysis.
Appellant argues his statements were involuntary because they were obtained by threats, promises of leniency, and lies. He relies principally on Shawn D., contending that this case is so similar that the same result, suppression of the incriminating statements, should obtain. For the reasons set forth below, we disagree.
Appellant points to several statements by the detectives during the interview that he contends constituted implied promises of leniency if he confessed, i.e., that: (1) his honesty or lies would be noted in the police report; (2) his girlfriend could get in trouble and her children could be taken away; (3) appellant already had a child, his girlfriend was pregnant, and appellant “needs to be with her, bottom line;” (4) “right now is your best chance to come clean” and “the faster we get [to the truth], the better it is for everybody;” (5) appellant could be charged as an adult for the crime; and (6) the juvenile court appreciates a showing of remorse while the adult court does not. Appellant contends the only reasonable interpretation of these statements is that appellant would receive favorable treatment in exchange for his cooperation or harsher punishment if he did not cooperate.
None of the statements identified by appellant was improper. Nothing in the record suggests that the detectives stated, or even implied, that appellant would receive more lenient treatment if he confessed. “[M]ere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent confession involuntary. [Citation.]” (People v. Jimenez (1978) 21 Cal.3d 595, 611, overruled on other grounds in People v. Cahill, supra, 5 Cal.4th at p. 510, fn. 17; People v. Higareda (1994) 24 Cal.App.4th 1399, 1409.) “When the benefit pointed out by the police to a suspect is merely that which flows from a truthful and honest course of conduct, we can perceive nothing improper in such police activity.” (People v. Hill (1967) 66 Cal.2d 536, 549.)
The detectives’ references to their report were neither threats nor promises. Castillo urged appellant to do some “soul searching,” and to tell the whole truth, not just a portion of it. He said he did not think appellant was “a thug,” but instead would portray appellant in his report “as a father who loves his kid and his girlfriend and wants to provide for them. But you need to come clean and tell me your side of the story.” Castillo made clear that, while he would write the report, it was up to the DA and probation department to decide what action to take. Notably, this portion of the interview occurred after appellant admitted being aware of the plan to rob the pizza delivery driver, after he admitted to being present at the scene but claimed he “turned around” before the actual robbery took place, and after he admitted that Los gave him $10 of the proceeds.
We similarly find no problem with the detectives’ informing appellant that he could be tried as an adult. This was a correct statement of the law. (Welf. & Inst. Code, § 707, subd. (b)(3), (c).) The detectives were cautioning appellant that, because of his past, he probably would not be sent to Byron again but rather would be facing a Youth Authority confinement. Considering the statement in context, there is no implication that appellant would be tried as an adult if he did not cooperate. The other statement with which appellant takes issue, that the juvenile court “appreciate[s]” a showing of remorse, is also no more than a correct statement of the law. (See Bryan v. Superior Court (1972) 7 Cal.3d 575, 587 [the juvenile court may consider “candor and contrition” in determining the proper disposition].)
Nor do we find that the detectives’ statements regarding appellant’s girlfriend put any undue pressure on him. In the course of obtaining background information from appellant at the beginning of the interview, the detectives learned that appellant was the “stepdad” to Savannah’s child and confirmed that she was pregnant. During the interview, the detectives referred to Savannah, telling appellant that, “She don’t need you to be lying, getting tied up in shit, you need to be with her, bottom line.” They also told him that the “best route” for him was to tell the truth “because you want to be a daddy, you want to be there for your kids.” There were no implicit promises or threats; the detectives were merely urging appellant to tell the truth.
Appellant further contends that the detectives threatened him “that his girlfriend could get in trouble for what he did, and lose her kids.” The following exchange took place:
McCann: “The people at the house gave you up.
Castillo: “Your girlfriend gave you up, for Christ sake, dude. She told us about it.
McCann & Castillo: [talk over each other]
Castillo: “She could lose her kid for that.
McCann: “We convinced her that the best thing to do was tell the truth and she realized that was the best thing to do, okay. That’s something you need to realize right now young man.”
We disagree with appellant’s characterization of the record as showing that the detectives threatened to take Savannah’s children away if appellant did not confess. Rather, it appears that the detectives were emphasizing the seriousness of the situation and that Savannah faced consequences for her own involvement. We discern no threat that Savannah would be treated differently based on appellant’s cooperation or non-cooperation.
The detectives’ later statements regarding Savannah, that they could remove her children in an hour and a half and that she could lose her section 8 housing, would concern us more if they had occurred earlier in the interview. However, these statements took place well after appellant made the incriminating statements the trial court relied upon in finding the allegations to be true. Moreover, there is no indication in the record that these later statements had any influence on appellant, much less that they caused appellant’s will to be overborne. Nothing appellant said thereafter was of any evidentiary consequence.
Finally, appellant’s reliance on Shawn D., supra, 20 Cal.App.4th 200, is unavailing. Although appellant highlights the similarities between the two cases, the critical difference in police conduct there led to a different result. Shawn D. involved a 16-year-old minor who was charged with burglary. The Shawn D. court found certain aspects of the interrogation, including the officer’s lies to the minor about evidence the police had against him, references to the minor being tried as an adult, and statements that he was putting his girlfriend in a “precarious situation” by denying any wrongdoing, although “troubling,” to be insufficient alone to demonstrate that the minor’s will was overborne. (Id. at pp. 212-214.) Rather, the court held the confession was involuntary because of the repeated suggestions by the police that the minor would be treated more leniently if he confessed. (Id. at p. 214.) The coercive conduct included telling the minor that his honesty and cooperation would be noted in the police report; implying that if the minor “continued lying he would go to jail but that if he stopped lying, he would ‘get this squared away’ and would be able to see his girlfriend and baby;” using a hypothetical story that “plainly constituted a promise of leniency in exchange for telling ‘exactly what you did; ’ ” and, finally, strongly implying to the minor that he would not be tried as an adult if he confessed and helped to recover the stolen property. (Id. at pp. 214-216.) The Shawn D. court explained, “the officer continually raised this theme [leniency in exchange for a confession]—from the very beginning of the interrogation—to the comments about helping the police get the property back—to the statements about [defendant] being able to see his girlfriend and baby—to the hypothetical about the bank robber—to [the officer’s] statement that, ‘Seriously, you help us get the stuff back and I will personally talk to the D.A. or persons who do the juvenile.’ The promise of leniency in exchange for a confession permeated the entire interrogation.” (Id. at p. 216, italics added; see also People v. Musselwhite (1998) 17 Cal.4th 1216, 1236-1237.) This was clearly not the case here.
Next, appellant contends that the detectives repeatedly lied to him about the evidence they had against him, and that these coercive tactics rendered his incriminating statements involuntary. Specifically, the detectives told appellant that the victim had identified him and that his girlfriend and other witnesses had made statements against him. We find no impropriety. Although such deception is a factor to consider when determining the voluntariness of a confession, the “communication of false information to a suspect does not alone render a resulting statement involuntary... [citation].” (People v. Hogan (1982) 31 Cal.3d 815, 840-841, overruled on other grounds in People v. Cooper (1991) 53 Cal.3d 771, 836.) “Police trickery that occurs in the process of a criminal interrogation does not, by itself, render a confession involuntary and violate the state or federal due process clause. (People v. Thompson (1990) 50 Cal.3d 134, 167.).... [¶] So long as a police officer’s misrepresentations or omissions are not of a kind likely to produce a false confession, confessions prompted by deception are admissible in evidence. (People v. Jones (1998) 17 Cal.4th 279, 299; People v. Parrison (1982) 137 Cal.App.3d 529, 537.) Police officers are thus at liberty to utilize deceptive stratagems to trick a guilty person into confessing. The cases from California and federal courts validating such tactics are legion. [Citations.]” (People v. Chutan (1999) 72 Cal.App.4th 1276, 1280, and cases cited therein.) The misrepresentations here by Castillo and McCann were no more likely to produce a false confession than telling a suspect his fingerprints were found at the scene. In addition, as noted by the trial court, appellant never actually confessed; rather, he stuck with his story that he knew about, but did not actually participate in, the robbery.
Our consideration of the totality of the circumstances also includes factors related to the circumstances of the questioning. (See People v. Massie, supra, 19 Cal.4th at p. 576.) Here, we find nothing to cast doubt on the juvenile court’s finding of voluntariness. The Miranda warnings were given and appellant indicated that he understood them and chose to talk with the detectives. The interrogation lasted about an hour. The detectives asked appellant how he was doing, whether he wanted something to drink, and ascertained that he had slept the night before. Appellant was not denied food, drink, or the use of bathroom facilities. He did not request an attorney or a parent, and did not refuse to answer any of the detectives’ questions.
Appellant raises no arguments on appeal related to Miranda.
We further find that appellant’s personal characteristics did not undermine the juvenile court’s determination of voluntariness. At the time of the interview, appellant was 17½ years old and had completed the 11th grade. Although age may be a factor in determining the voluntariness of a confession (see, e.g., Shawn D., supra, 20 Cal.App.4th at p. 209), a juvenile can effectively waive his constitutional rights (People v. Lara (1967) 67 Cal.2d 365, 389-391; In re Aven S. (1991) 1 Cal.App.4th 69, 75). There was no suggestion or argument that appellant was vulnerable due to a mental health or physical condition. (See, e.g., Shawn D., supra, 20 Cal.App.4th at pp. 212-213 [16 year-old defendant was described as “unsophisticated” and “naïve;” suffered from post-traumatic stress disorder; and was emotional and visibly agitated at times during the three-hour interrogation].)
In addition, the juvenile court’s finding that appellant was “a sophisticated young man,” in the sense that he was familiar with the legal system, is amply supported by the record. In 2004, when he was 14 years old, appellant pleaded to one count of grand theft person and one count of attempted grand theft person, both felonies, arising out of an incident involving two 13-year-old victims. Appellant was placed on a home detention program with juvenile electronic monitoring (JEM). He tested positive for marijuana repeatedly in 2004 and 2005, and was referred to drug court. In March 2006, appellant tested positive for methamphetamine, MDMA/Ecstasy and THC. Appellant was detained and released on JEM. On June 16, 2006, a bench warrant was issued when appellant failed to appear at drug court. When appellant turned himself in at juvenile hall on June 19, staff discovered a baggie of marijuana in his shoe. Probation violations were sustained, and, in July 2006, appellant was ordered to a 90-day mandatory commitment at the Byron ranch facility. Appellant left the ranch in October 2006 and completed parole in January 2007. Appellant was found in violation of his probation on February 13, 2007, for failing to adhere to his curfew, failing to return home, failing to attend two meetings with probation, and failing to attend school the week of February 5, 2007, without excuse. The court ordered 45 days JEM and stayed a 180-day ranch commitment. On February 20, 2007, a JEM violation was filed and appellant failed to appear at the hearing. A bench warrant issued. On September 13, 2007, appellant was arrested for the present offense.
Upon independent review of the totality of the circumstances, we conclude that appellant’s statements were voluntary and therefore admissible.
B. Determination of Wobbler Offense.
Appellant next contends that the juvenile court erroneously failed to declare the offense of possession of a firearm by a minor (§ 12101, subd. (a)(1), charged in count two, to be a misdemeanor or a felony, as required by Welfare and Institutions Code section 702. Respondent concedes that the matter must be remanded.
Welfare and Institutions Code section 702 provides that if a minor is found “to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony.” This requirement “serves the purpose of ensuring that the juvenile court is aware of, and actually exercises, its discretion under [the statute].” (In re Manzy W. (1997) 14 Cal.4th 1199, 1207.)
Welfare and Institutions Code section 702 requires an express declaration by the juvenile court. Neither a description of the offense in the petition, a court’s commitment of the juvenile for a felony-length term, nor a minute order reciting that the offense is a felony, may substitute for the express declaration required by the statute. (In re Ricky H. (1981) 30 Cal.3d 176, 191; see also In re Manzy W., supra, 14 Cal.4th at p. 1209.)
A violation of section 12101, subdivision (a)(1), is a “wobbler” for purposes of Welfare and Institutions Code section 702. (In re Jose T. (1997) 58 Cal.App.4th 1218.) Although the offense here was charged as a felony, there was no judicial declaration at either the jurisdictional or the disposition hearing regarding whether the offense was found to be a felony or a misdemeanor. Nor did the court enter any written order containing such a finding. Accordingly, remand for this limited purpose is appropriate.
IV. DISPOSITION
The order appealed from is affirmed. The case is remanded for a declaration by the juvenile court as to whether count 2, possession of a firearm by a minor, is a felony or a misdemeanor.
We concur: Kline, P.J., Lambden, J.