Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. J36938
Sepulveda, J.
The minor Devin H. was made a ward of the court, pursuant to Welfare and Institutions Code section 602, after the juvenile court sustained a petition alleging that he committed assault with intent to commit rape in violation of Penal Code section 220, following a contested jurisdictional hearing. The juvenile court ordered the minor placed in a foster home or institution. On appeal, the minor contends that the trial court erred in denying his motion to suppress statements that he made to the police department. We find no error and affirm.
I. Background
A petition was filed with the Solano County Juvenile Court alleging that the minor came within the provisions of Welfare and Institutions Code section 602, in that he committed assault with intent to commit rape, in violation of Penal Code section 220. At a contested jurisdictional hearing on this petition, evidence was adduced that on September 21, 2006, 16-year-old Myra V., an 11th grade student in Vallejo, was walking to her boyfriend’s house to get a ride to school when the minor approached her from behind and asked what time it was. The minor was wearing a red Old Navy sweatshirt, jeans and an earring. Myra looked at her cell phone and told the minor what time it was. The minor then asked her, “ ‘[c]an you show me some titties?’ ” He put his arm around her neck, and forced her to the ground. He struck her repeatedly with something held in his closed fist and tried to remove her pants. While struggling with the minor, Myra used speed dial to call her boyfriend on her cell phone and screamed to attract his attention. After struggling with the victim for a few minutes, the minor got up and ran away.
Myra told her boyfriend Chad to come to her immediately, and he met her on a nearby corner, followed by his mother in her van. Chad ran down the path that Myra had been walking on when attacked by the minor, trying to find him, but did not see anyone. Myra got in Chad’s mother’s van and told her what had happened. Chad’s mother called the police while they drove around the area looking for the minor. They then contacted an officer dispatched to meet them. Later, Myra, Chad, and his mother drove to Franklin Middle School as the minor had told Myra that he took the bus there. Myra saw a boy near the school, whose clothes were similar to those of her attacker. She told Chad’s mother, who then called the police once again.
Officer Hernandez of the Vallejo Police Department responded to a dispatch indicating that the suspect in Myra’s attack was in front of the Franklin Middle School. The officer was speaking to Chad’s mother when Myra pointed out the minor and said, “ ‘[t]here he goes.’ ” The minor was wearing a red sweater, green backpack, and blue jeans and was walking toward the field on the campus. Officer Hernandez approached a physical education teacher on the field, Kevin Hill, who told Hernandez that the minor was late to class and was wearing the clothing described by the officer; Hill had sent the minor to the office to obtain a truant pass. The minor fled the area, but when he returned, Officer Hernandez contacted him. The minor was no longer wearing his street clothes, but was dressed in his physical education clothes. Officer Hernandez asked the minor if he was involved in an assault earlier in the day, and the minor said he was not. Hernandez asked where the clothes were that the minor had been wearing, and the minor indicated that he put them behind a building on the campus; he led Officer Hernandez to the location and Hernandez retrieved the minor’s street clothes.
Officer Hernandez and the minor returned to the field, where another officer and Hill were standing. Hernandez told the minor “that he could be honest, tell me what happened this morning.” The minor asked to speak to Officer Hernandez alone; they walked some distance away from the others. Officer Hernandez then asked what happened and the minor then indicated that he saw a girl in the field that morning (motioning toward Myra, who was sitting in a patrol car nearby, when Hernandez asked him to clarify which girl), and asked her for the time. He then added, “I don’t know what happened but I just touched her.” Officer Hernandez asked where he touched her, and the minor said that he touched her leg. Hernandez asked if the minor ever got on top of her, and the minor indicated that he did, and that he then ran away. A third officer, Officer Patzer, was interviewing Myra, who pointed at the minor and identified him as her assailant. After speaking with Officer Patzer, Officer Hernandez placed the minor under arrest.
The minor was transported to the police station, where he was advised of, and waived, his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436 (Miranda)). Officer Patzer interviewed the minor at the station. During the first interview, Patzer was “kind of taken aback as to how matter of fact [the minor] was being” regarding what happened and he therefore interrupted the interview in order to video tape it. In the videotaped interview, the minor indicated that after getting the time of day from the victim, he “touched her butt” and asked to “see some [tittie].” He then “dipped” her (picked her up and dropped her to the ground) and lay on top of her. He tried to pull her pants down because he “[was] thinking of fucking her.” He put his had over her mouth to stifle her screams. The minor indicated he chose Myra because she was alone in the field and that he had a condom that he intended to use to prevent his identification through his DNA. He got up and ran away because he thought that Myra was calling the police on her cell phone. The minor went home and changed his shoes, and then went to school.
The minor testified at the jurisdictional hearing and denied that he attempted to rape the victim, claiming that he had never seen her before the hearing. He explained his confession to the police by indicating that he confessed because they “kept asking me questions,” and because he was “scared” and “didn’t know what to do.” He indicated that, if his recollection were correct, the officers cuss[ed] at him.
The juvenile court sustained the petition and, following a contested dispositional hearing, declared the minor to be a ward of the court and ordered that he be removed from his home and placed either in a foster home or an institution. This timely appeal followed.
II. Discussion
A. The Minor’s Statement to Officer Hernandez.
The minor first contends that his statement to Officer Hernandez was taken in violation of Miranda, supra, 384 U.S. 436, as he was subjected to custodial interrogation without being given his Miranda warnings. We disagree.
Miranda, supra, 384 U.S. 436, requires that warnings be given, prior to any custodial interrogation, in order to assure that a suspect’s Fifth Amendment rights are not violated, due to what the court felt was the inherently coercive atmosphere created by custodial interrogation. While Officer Hernandez did ask questions of the minor in the field, thus subjecting him to interrogation (see Rhode Island v. Innis (1980) 446 U.S. 291, 301), the minor was not in custody, as defined for purposes of Miranda. A suspect is in custody for purposes of Miranda if a reasonable person in his situation would feel that his freedom of movement has been restricted to the degree associated with formal arrest. (Yarborough v. Alvarado (2004) 541 U.S. 652; Berkemer v. McCarthy (1984) 468 U.S. 420; California v. Beheler (1983) 463 U.S. 1121, 1125.) Individual characteristics of the suspect, such as his age and experience with law enforcement, are not relevant to this objective test. (Yarborough v. Alvarado, supra, at p. 668.) Mere detention for investigative purposes is not custody requiring the giving of Miranda warnings prior to questioning of a suspect. (Berkemer v. McCarthy, supra, at p. 440.)
This issue is not contested by the respondent.
The determination of whether a suspect is in custody for purposes of Miranda is a mixed question of law and fact. As to the factual circumstances of the interrogation, we review the juvenile court’s findings under the deferential substantial evidence standard. As to the issue of whether a reasonable person under those circumstances would have felt his freedom of movement was restricted to the degree associated with formal arrest, we review the issue de novo. (People v. Ochoa (1998) 19 Cal.4th 353, 401-402.)
The interrogation by Officer Hernandez took place on the playing field of the minor’s school. Initially Hernandez approached the minor and asked if he had been involved in an assault earlier that morning; the minor said that he had not. The minor then showed Officer Hernandez where his street clothes were hidden. After retrieving the clothes, Hernandez again questioned the minor. Although two other officers were in the general area, only Hernandez was present when the minor responded to Hernandez’s questions by admitting he assaulted the victim. Officer Hernandez asked few questions, basically admonishing the minor to be honest and asking him to explain to him what had happened. The minor then admitted that he touched the victim, got on top of her, and then ran off.
These limited questions by Officer Hernandez at the scene occurred during the initial stages of the investigation. They did not occur in the inherently coercive atmosphere of the police station. The minor was not under arrest, in handcuffs, or otherwise restrained. The officers had not drawn their weapons or otherwise displayed any use of force. Basically the only inquiry by Officer Hernandez was to ask the minor what happened. This questioning was no more than the general on-the-scene inquiry of a preliminary investigation and Miranda warnings were not required. No reasonable person in the minor’s position would have felt that his freedom of movement was restricted to the degree associated with formal arrest.
B. The Minor’s Statements at the Police Station.
Assuming that his statement to Officer Hernandez was taken in violation of Miranda, the minor next contends that his subsequent statements to Officer Patzer at the police station should be suppressed under Missouri v. Seibert (2004) 542 U.S. 600 (Seibert). This argument is similarly without merit.
In Oregon v. Elstad (1985) 470 U.S. 298 (Elstad), the Supreme Court determined that if a statement is taken in violation of Miranda, due to a failure to warn prior to custodial interrogation, a subsequent warned and voluntary statement is nevertheless admissible. Although the initial, unwarned statement must be suppressed, the subsequent statement is not considered fruit of the poisonous tree which must also be suppressed. In Seibert, supra, 542 U.S. 600, the court somewhat limited the application of Elstad, and determined that under certain circumstances, the Miranda warnings given to a suspect prior to questioning, following on the heals of previous unwarned statement, would not be effective to accomplish the purpose of Miranda warnings. In Seibert, a detective took a detailed statement from the suspect, during a 30- to 40-minute interview at the police station, without giving her Miranda warnings. In response to this questioning, the suspect made incriminating statements. After a 20-minute break, this same officer obtained a Miranda waiver from the suspect, confronted her with her prior incriminating statement, and obtained a subsequent statement that was largely a repeat of her previous unwarned statement. The court determined that when interrogators question first and warn later, as occurred under the facts of that case, the threshold issue is whether it “would be reasonable to find that in these circumstances the warnings could function ‘effectively’ as Miranda requires. Could the warnings effectively advise the suspect that he had a real choice about giving an admissible statement at that junction? Could they reasonably convey that he could choose to stop talking even if he had talked earlier?” (Seibert, at pp. 611-612.)
An officer of the involved police department frankly admitted that this was a purposeful tactic promoted by his department and others, to obtain a defendant’s confession.
The court in Seibert did not, however, overrule its prior ruling in Elstad. How then to reconcile these cases? The Seibert court indicates that the following factors are relevant in determining whether midstream Miranda warnings are effective, as they were found to be in Elstad, or ineffective, as they were determined to be in Seibert: “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.” (Seibert, supra, 542 U.S. at p. 615.) Looking to these factors, we find the current case almost a mirror image of Elstad and remarkably dissimilar from Seibert, and therefore conclude (as the court remarked in Seibert) that here as “[i]n Elstad, it was not unreasonable to see the occasion for questioning at the station house as presenting a markedly different experience from the short conversation . . . [in the field]; since a reasonable person in the suspect’s shoes could have seen the station house questioning as a new and distinct experience, the Miranda warnings could have made sense as presenting a genuine choice whether to follow up on the earlier admission.” (Seibert, at pp. 615-616.)
The first round of interrogation by Officer Hernandez in the field was short, typical on-the-scene, investigative questioning. He basically asked the minor what happened, and nothing more. No detail was elicited. This was quite similar to the facts in Elstad, where the initial, unwarned interrogation consisted of the police telling the suspect (in his home) that they felt he was involved in a recent burglary, and the suspect admitted that he was there. The exchange in Elstad was thus brief, and as the court emphasized, the failure of the officer to give Miranda warnings was an oversight. Here the exchange was brief, and the failure of Officer Hernandez to warn the suspect of his Miranda rights, if he even had a duty to do so, was apparently an oversight and may have resulted from his confusion as to whether or not the minor was in custody for purposes of Miranda.
The content of the two statements by the minor here overlapped only to the extent that he admitted assaulting the victim. In his brief statement to Officer Hernandez in the field, the minor said that he touched the victim’s leg, got on top of her, and then ran away. Later in his detailed statement to Officer Patzer at the station, the minor gave many more details of the assault, indicating that he touched the victim’s butt and asked to “see some [tittie].” He indicated that he “dipped” her (picking her up and dropping her to the ground). He said that he lay on top of her and tried to pull down her pants, as he “[was] thinking of fucking her.” He put his hand over her mouth to stifle her screams. He chose the victim because she was alone in the field, and he had a condom to use so that he would not be identified as her attacker based upon his DNA. He stopped his attack because he was afraid that the victim was calling the police on her cell phone. After going home and changing his shoes, he went to school. The stationhouse interview was much more complete than the few questions asked by Hernandez in the field and elicited many more details; there is very little overlap between the content of the two statements by the minor.
The first interview of course took place on the school campus; the second was at the police station and occurred some time later. As to the continuity of police personnel, here there was none. Officer Hernandez spoke to the minor in the field; Officer Patzer conducted the stationhouse interview. Finally, Officer Patzer’s questions in no way treated the second interview as continuous with Officer Hernandez’s in-field questions. Based upon these factors, we find this case factually similar to Elstad. The present facts bear little resemblance to those in Seibert, and we therefore conclude that the Miranda warnings administered by Officer Patzer at the police station were effective enough to accomplish their objective.
The timing of the interviews is not clearly established in the record. The videotaped interview began at approximately 10:06 a.m. The in-field interview apparently concluded shortly before the minor’s arrest at approximately 9:00 a.m.
Having reached this conclusion, we need not enter the fray of the parties’ debate regarding whether or not Seibert requires a finding that the officers’ conduct in taking an un-Mirandized statement first, followed by a Mirandized statement, was a purposeful tactic of “question first, warn later” intended to accomplish an end-run around Miranda. As Justice Souter indicated in the plurality opinion in Seibert, because “the intent of the officer will rarely be as candidly admitted as it was here . . . the focus is on facts apart from intent that show the question-first tactic at work.” (Seibert, supra, 542 U.S. at p. 616, fn. 6.) None of those facts were present here. We do note, however, that there was also absolutely no evidence of such a nefarious intent on the part of Officer Patzer.
C. The Minor’s Videotaped Confession.
Officer Patzer, taken aback by the minor’s matter-of-fact attitude about the crime, interrupted his interview of the minor in order to videotape it. The minor contends on appeal that this videotaped confession was involuntary and therefore inadmissible. Specifically, the minor contends that because of his young age (13 years old), his lack of sophistication or previous contact with the criminal justice system, his poor education and “likely” intellectual deficits, and his “possibly” being under the influence of marijuana, along with “deceptive” behavior by the Vallejo police officers (argued to consist of questioning by Officer Hernandez without giving the minor his Miranda rights and deceptively leading the minor’s stepfather and the minor to believe that the minor could not have a parent present during questioning), and allegedly coercive conduct by Officer Patzer (the minor testified that Officer Patzer appeared to get angry with him and told the minor “Don’t bullshit me”), his confessions at the station house were involuntary.
While the heading of this section of the ARB refers only to the videotaped confession, the argument itself indicates that both the initial statement to Officer Patzer, as well as the videotaped confession, were involuntary.
A confession is involuntary if it is not the product of the suspect’s own free will; if his will is overborne by coercion on the part of the police, whether express or implied, the confession will be found to be involuntary. When determining whether or not a confession is involuntary, a court looks at the totality of the circumstances, including factors relating to the suspect as well as the circumstances of the interrogation. (Colorado v. Connelly (1986) 479 U.S. 157, 163; People v. Cahill (1993) 5 Cal.4th 478, 482, fn. 1.) We review the issue of the voluntariness of a confession de novo. (People v. Benson (1990) 52 Cal.3d 754, 779.)
Here, while it is true that the minor was only 13 years old, had no prior experience with law enforcement, and was doing poorly in school, there was no evidence that he suffered from “intellectual deficits.” While the minor said he smoked marijuana before assaulting the victim, there was no evidence that he was under the influence of marijuana at the time of the interview, nor was there any evidence of what effects the marijuana would have had on the minor if he was still under the influence of it. While the minor was arrested at the scene and there were three police officers present, and in uniform, there was nothing coercive about the manner in which the arrest took place. As this court has determined, Officer Hernandez was not required to advise the minor of his Miranda rights before asking him preliminary investigative questions in the field. Even if a Miranda advisement had been required, however, nothing indicates that the failure to give one in any way coerced the minor’s statement at the police station, where he was fully advised of his rights and waived them prior to being interviewed. The manner in which the interview at the stationhouse took place does not indicate any coercive action on the part of the police. While Officer Patzer may have raised his voice and may have told the minor not to “bullshit him,” he did not yell at the minor, threaten him, or physically hurt him in any way. Indeed, the minor himself testified that Officer Patzer did not threaten him or try to scare him. The interview was not unduly long, and no evidence was presented that the minor was denied food, drink, bathroom privileges, or sleep. No promises of leniency were made to the minor. Officer Patzer did not mislead the minor’s stepfather regarding whether or not the minor could have a parent present during questioning. The minor’s stepfather was contacted by telephone by the officer in order to complete a required questionnaire, and he asked where the minor was located. Officer Patzer told him that the minor was at the Vallejo Police Department and that the stepfather would be able to see him after he was booked into the Juvenile Detention Center in Fairfield. The stepfather did not ask the officer about being present during any questioning, nor did the officer tell the stepfather that he could not be present. The minor, if he overheard this telephone conversation, knew only that his stepfather would be able to visit him after he was booked. The officer had no affirmative duty to tell the minor, or his stepfather, that the minor had a right to have a parent present during questioning, if he requested. (In re Aven S. (1991) 1 Cal.App.4th 69, 76.) Indeed, the minor did not testify that he believed that his stepfather could not be present during questioning. There simply was no coercive conduct on the part of the police, a necessary prerequisite to a finding that a confession was involuntary. (Colorado v. Connelly, supra, 479 U.S. at 167.)
The prosecution thus demonstrated, by at least the required preponderance of the evidence, that under the totality of the circumstances, the minor’s statement was voluntary. (Seibert, supra, 542 U.S. at pp. 608-609.)
III. Disposition
The judgment is affirmed.
We concur: Ruvolo, P. J., Rivera, J.