Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Ct. No. DL016965 Joy Wiesenfeld Markman, Judge.
Richard Schwartz berg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SILLS, P. J.
The juvenile court sustained a Welfare and Institutions Code section 602 petition after finding true allegations Angel C. committed felony assault and engaged in street terrorism. The court also found true an allegation Angel committed the assault for the benefit of, at the direction of, or in furtherance of the Varrio Viejo criminal street gang.
Angel contends the trial court violated his Fifth Amendment right to remain silent and his Sixth Amendment right to counsel by denying his motion to suppress a pretrial statement to police. We reject this contention because Angel made his confession to a police officer after hearing the standard Miranda (Miranda v. Arizona (1966) 384 U.S. 436) advisement, and there is no evidence of police coercion, promises of leniency, or mistreatment that would render an otherwise voluntary confession inadmissible. We conclude Angel’s implied waiver of rights is valid and affirm the trial court’s judgment.
I
FACTS
On October 11, 2006, Luis R., then a 14-year-old student of Capistrano Valley High School (CVHS), was assaulted in a school bathroom by several male students. Luis identified Edgar D., Francisco A., Jose R., and Angel as his attackers. He said three other young men, Javier B., German V. and Ricardo L., were present during the assault.
Luis walked into the bathroom during his lunch hour. Several people were already in the bathroom. Francisco asked Luis, “Do you want to join?” Luis thought Francisco meant joining a gang and he said, “No, I don’t.” He remembered Edgar had talked to him about the San Juan and Varrio Viejo criminal street gangs. With people surrounding him and the situation growing tense, Luis turned to walk outside. As he tried to exit the bathroom, Angel pushed him to the ground. While he was on the ground, Jose punched him in the eye, and Edgar and Francisco hit him in the eye, shoulder, legs and back. Edgar jerked a backpack off of Luis’ back and kicked him. When the beating stopped, Luis heard Ricardo and Francisco say, “You’re in.” Edgar threatened to stab him if he told anyone about the assault.
Luis went home with a swollen eye and bruises on his left shoulder, leg and back. He explained the injuries to his mother by saying he fell down some stairs. He did not tell his mother the truth or report the incident to school officials out of fear of retaliation. Luis stayed home from school for a couple of days after the beating, but he eventually told his mother what had happened, i.e., that he had been beaten up for refusing to join a gang. Luis and his mother reported the assault to the CVHS Assistant Vice Principal. Luis said he believed his assailants were members of the San Juan and Varrio Viejo criminal street gangs because of the way they dressed, they way they talked about the gangs, and because some of them drew gang-related pictures on their books and papers. He also heard them call Javier by a gang nickname, “Peewee.”
On October 17, 2006, Orange County Deputy Sheriff Craig Lang went to CVHS to investigate. He first talked to Ricardo. Ricardo confessed and identified Angel, Francisco, Jose, and Edgar as the other individuals involved in the beating. Ricardo said Angel pushed Luis to the ground and kicked him in the stomach, which was consistent with Luis’ recollection. At approximately 2:00 p.m., Lang detained and interviewed Angel. With one other officer present in a room at the school, Lang read from the standard Miranda advisement card. He told Angel, “You have the right to remain silent . . . do you understand?” Lang testified that Angel, “answered with yes.” Lang continued, “Anything you say may be used against you . . . do you understand that?” Angel replied, “Yes.” Lang said, “You have the right to an attorney before and during any questioning,” and asked if Angel understood this right. Angel answered, “Yes.” Finally, Lang told Angel, “If you cannot afford an attorney, one will be appointed for you before questioning . . . do you understand that?” Again, Angel answered, “Yes.”
Lang asked Angel what happened at school and told him that his friends had already talked to the police. Angel then explained to Lang that he, Francisco, and Edgar grabbed Luis’s backpack and guided him into the bathroom. He admitted hitting Luis twice in the chest, and said Luis fell down. Angel also said he and Edgar kicked Luis in the stomach while he was down on the ground.
Before Angel’s trial, Javier, Ricardo, German, and Francisco entered into plea agreements, admitted participating in a gang and their involvement in the incident. They all named Angel as a co participant. However, at Angel’s trial, they all denied gang membership and said Angel was not present during the beating of Luis. Angel claimed he had been pressured to admit his participation in the assault, but he did not really participate. In fact, Angel claimed that he never associated with any of the other students involved. However, evidence of Angel’s school disciplinary record was admitted, and it contained references to several prior instances when Angel, Edgar, Ricardo, and Francisco had blocked the entrance to the bathroom.
II
DISCUSSION
Angel argues the court violated his Fifth Amendment right against self-incrimination and Sixth Amendment right to counsel by denying his motion to suppress his pretrial statement to Lang. He contends Lang failed to obtain an express or implied waiver of his constitutional rights; therefore, his statement should have been suppressed and his conviction should be reversed. We find no basis for a reversal of the conviction.
“In reviewing the trial court’s denial of a motion to suppress evidence, we view the record in the light most favorable to the trial court’s ruling, deferring to those express or implied findings of fact supported by substantial evidence. [Citations.] We independently review the trial court’s application of the law to the facts. [Citation.]” (People v. Jenkins (2000) 22 Cal.4th 900, 969.) “We apply federal standards in reviewing defendant’s claim that the challenged statements were elicited from him in violation of Miranda. [Citations.]” (People v. Bradford (1997) 14 Cal.4th 1005, 1032-1033.) “The issue of whether a minor has waived his rights is a factual one for the trial judge. [Citations.] This determination by the judge will not be disturbed unless his judgment is grossly erroneous. [Citations.]” (In re Eduardo G. (1980) 108 Cal.App.3d 745, 756.) And, the accused may expressly or impliedly waive the rights afforded under the Miranda decision. (People v. Whitson (1998) 17 Cal.4th 229, 244, fn. 4.)
The Attorney General acknowledges that Angel did not expressly waive his Miranda rights. Instead, the Attorney General points to the record and contends Lang adequately advised Angel of his constitutional rights and Angel knowingly and voluntarily waived those rights by answering Lang’s questions. We agree.
Whether a minor has voluntarily, knowingly and intelligently waived his or her constitutional rights must be tested by the totality of the circumstances. (In re Eduardo G., supra, 108 Cal.App.3d at p. 755.) In In re Eduardo G., the appellate court articulated six factors that should be considered in determining whether a minor has waived his or he constitutional right to remain silent: (1) the minor’s prior exposure to police and the courts; (2) the admonition given before the confession; (3) the minor’s age and intelligence; (4) the length of the detention and interrogation; (5) the presence or absence of counsel or family; and (6) the minor’s physical and mental health. (Id. at pp. 756-757.)
Angel, who was 16 at the time of the offense, has been a ward of the juvenile court since June 2004. By the time the instant petition was filed in October 2006, Angel was at least somewhat familiar with police procedure and the court system. Lang stated he recited the standard Miranda advisement before Angel confessed, and that Angel said he understood his rights as they were read to him. The trial court considered Lang a credible witness and there is nothing in the record to undermine our confidence in his testimony. Furthermore, Lang questioned Angel for only 20 minutes, in the afternoon, and he did not deny Angel water or the use of a bathroom. Although Angel asserts he did not understand his rights because he has below average intelligence, nothing in the record suggests Angel’s poor school performance severely hampered his understanding of the standard Miranda advisement. As the trial court stated, “One can have poor reading skills, poor math skills, [and] poor communication skills in some way, but still be competent enough to waive [their rights].” As has been stated elsewhere, “Neither a low I.Q. nor any particular age of minority is a proper basis to assume lack of understanding, incompetency, or other inability to voluntarily waive the right to remain silent under some presumption that the Miranda explanation was not understood.” (In re Norman H. (1976) 64 Cal.App.3d 997, 1003.)
The record reveals Angel understood the constitutional rights being explained to him, and with that understanding Angel decided to tell Lang what happened. The statement that followed is a product of Angel’s free will. It is not the result of police coercion, mistreatment, or promises of leniency. There was no error.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: O’LEARY, J., FYBEL, J.