Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. J06-01983
Kline, P.J.
J.R. (appellant) appeals after the juvenile court sustained two counts of shooting at an inhabited building in a juvenile wardship petition (Welf. & Inst. Code, § 602), declared wardship, and ordered him into placement. On appeal, he contends the juvenile court erred when it denied his motion to suppress two statements made to police officers. Specifically, he argues the court should have suppressed the first statement because police subjected him to custodial interrogation without warning him of his Fifth Amendment rights and ignored his invocation of the right to remain silent, and because the statement was involuntary. He argues the court should have suppressed the second statement because the Miranda warnings were inadequate and his waiver of his rights was not voluntary, knowing, and intelligent. We shall affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Miranda v. Arizona (1966) 384 U.S. 436.
PROCEDURAL BACKGROUND
Appellant was charged in an original juvenile wardship petition, pursuant to section 602, with two counts of shooting at an inhabited building. (Pen. Code, § 246.)
At the conclusion of the jurisdictional hearing, the juvenile court sustained the petition on both counts.
At the June 14, 2007 dispositional hearing, the court adjudged appellant a ward of the court, removed him from the custody of his parents for suitable placement by the probation department, and deemed the maximum period of custody to be eight years eight months.
On July 11, 2007, appellant filed a notice of appeal.
FACTUAL BACKGROUND
At the contested jurisdictional hearing, it was stipulated that Kattie Diamond would have testified that, at about 1:00 or 2:00 a.m. on the morning of August 10, 2006, she heard “what sounded like some objects being knocked over on the stairs or living room of her house” at 529 Banyan Circle in Walnut Creek. She did not get up to investigate. As she left her house at about 9:45 a.m., she noticed several large holes in a bay window in her living room and called police.
Walnut Creek Police Officer Anthony Keeler observed four holes in the window at 529 Banyan Circle that were consistent with those that would be made by a .22 caliber rifle. Keeler also found several spent shell casings in the street and identified the bullets used in the shooting as .22 caliber.
It was stipulated that Jeanne Moore would testify that, at approximately 1:00 a.m. on the morning of August 10, 2006, she was awakened by “what sounded like a string of firecrackers exploding in front of her house” at 532 Banyan Circle in Walnut Creek. She ran outside, but did not see or hear anything else.
It was stipulated that Natalie Kilner would testify that, at approximately 2:00 a.m. on the morning of August 10, 2006, she was awakened by her dog barking. She then heard “several popping sounds.” When she got up later that morning, she saw several holes in the front window of her home at 810 Ashley Lane in Walnut Creek.
In the early morning hours of August 10, 2006, Concord police stopped the car of Evan Navarra in connection with a shooting at a nearby home. The investigation revealed the presence of three additional people in the car during the shooting in Concord, including appellant, another juvenile, B.B.; and Nicholas Zachary. Police later received permission from Zachary to search his vehicle. During the search, police found a slingshot, a .22 caliber bullet casing, and .22 caliber ammunition.
Walnut Creek Police Officer Shawn Wallace testified that, at the request of Officer Keeler who was the investigating officer, he interviewed possible suspects in the shooting case, including appellant. He met with appellant in the administrator’s office at the local high school on September 7, 2006. The office was small, with a desk and a door that led into the front office and a door that led outside toward the parking lot. Detective Wallace, who was dressed in a suit and tie, was in the office when appellant arrived; he told appellant he was a detective from the Walnut Creek Police Department and wanted to speak with him.
The first thing appellant said was, “ ‘My mother told me not to speak to the police.’ ” When Detective Wallace asked why she told him that, appellant said, “ ‘Because it’s illegal.’ ” Wallace responded, “ ‘Well, it’s not illegal to speak to us’—that we wanted to talk to him, that he was not under arrest and he was free to leave.” He further said “it was up to [appellant] if he wanted to speak with us” and then asked appellant “if he wanted to talk to us,” and appellant said, “Yeah.” Detective Wallace did not read appellant his Miranda rights because appellant was not in custody and was free to leave.
Officer Keeler was not present during the first part of this exchange, but came in during the last part of it.
Once Officer Keeler, who was wearing his full uniform, entered the room, Detective Wallace turned the questioning over to him.
Officer Keeler testified that he told appellant that police were investigating a shooting that had occurred in Walnut Creek a few weeks earlier. He did not inform appellant of his Miranda rights before speaking to him because appellant was not under arrest. At that time, he was uncertain whether appellant was a suspect.
Appellant’s mother testified that some weeks after the incidents, Officer Keeler contacted her and said he wanted to talk to appellant, who was 14 years old at the time. She told the officer she and her husband wanted to be present when he talked to appellant. The officer said he would have someone come to their house on the evening of September 5 or 6, 2006.
During the interview, appellant told Officer Keeler that, on August 10, 2006, he was in a car driven by a family friend named Nicholas Zachary. Other people in the car included appellant’s sister, K.R., Evan Navarra, and appellant’s friend, B.B. They drove to the Diamond residence on Banyan Circle. B.B. used a semiautomatic weapon to fire several rounds into the house. Appellant also admitted that he fired a couple of shots at the house using a Bolt Action .22 rifle that belonged to his father.
When the officer asked if they had damaged car windows in the past, appellant said that on a prior occasion, he had ridden in a car with Zachary and Navarra and used sling shots to fire projectiles at parked cars. Appellant also said that, on August 10, 2006, he may have also shot at some raccoons; the shots may have ricocheted and hit a house.
Officer Keeler arrested appellant later the same day at the high school and transported him to the police department, where he interviewed appellant a second time. Officer Keeler first read appellant his rights and appellant said he understood each of those rights as they were read to him. Officer Keeler told appellant “to consider his rights before speaking,” but appellant agreed to speak to the officer.
Appellant explained the events at the Diamond residence in essentially the same way as he did during the first interview. He also mentioned that B.B. did not like a boy who was part of the Diamond family and suggested going to that house. Zachary was driving. He also told about events at the Kilner residence during this second interview. Appellant said that, after dropping Navarra off, he, Zachary, K.R. and B.B. drove to the Kilner house on Ashley Lane. They had originally planned to shoot at another house but, for various reasons, they elected to shoot at the Kilner house. Appellant said he was in the back of the car and he fired two shots at the Kilner house. He said he aimed at areas other than windows.
It was stipulated that appellant’s sister, K.R., would testify that on the night of the shootings, she received a telephone call from appellant at about midnight. Later, Zachary picked her up in a car in which appellant and B.B. were passengers. Zachary drove around and appellant and B.B. shot at raccoons. Zachary then drove by a house, at which appellant and B.B. shot from the back of the car. K.R. “was in the front seat the entire time and could not see much.”
Dr. Andrew Pojman testified as an expert in assessing and evaluating adolescents. Dr. Pojman had examined appellant and assessed his psychological status. He described appellant as smart “in an intellectual way.” With respect to appellant’s maturity, Dr. Pojman believed that, while his age was chronologically 14, “his maturity waxes and wanes—in some areas he’s around 14, and in some areas [related to emotional maturity] he’s around 12 and 13 years of age.” Dr. Pojman opined that “in any situation where he is feeling a lot of feelings and he’s caught on the spot, as if you were like a deer in the headlights—I think it would be hard for [appellant] and most kids like [appellant] to respond in a clear-headed, assertive kind of manner.” In addition, “[a]s far as ‘speaking up’ in a clear way and saying, really, what he needed and what he thought, I think that would be difficult for [appellant]—and, quite frankly, most 14-year-olds that don’t have a history of a lot of involvement with the police.”
According to Dr. Pojman, appellant did have the capacity to understand what the words “attorney,” “silent,” and “right” mean.
DISCUSSION
I. The First Statement
In ruling on appellant’s motion to suppress his first statement to police, the juvenile court first noted, with respect to the parents’ wish to be present at the interview, that it is the minor’s right to have the parents’ present, not the parents’ right to be present. It then found that the officers made clear to appellant that he did not have to speak to them and that he was free to leave. It also found that appellant was of above-average intelligence and over the age of 14 at the time of the interview. Based on these facts, the juvenile court found that the interview was not a custodial interrogation and was admissible.
A.
Appellant contends the juvenile court should have suppressed his first statement to police because the officers subjected him to custodial interrogation without warning him of his Fifth Amendment rights and ignored his invocation of the right to remain silent.
“ ‘Before being subjected to “custodial interrogation,” a suspect “must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” ’ [Citations.] . . . .
“An interrogation is custodial when ‘a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ [Citation.] Whether a person is in custody is an objective test; the pertinent inquiry is whether there was ‘ “ ‘a “formal arrest or restraint on freedom of movement” of the degree associated with a formal arrest.’ ” ’ [Citation.]
“Whether a defendant was in custody for Miranda purposes is a mixed question of law and fact. [Citation.] When reviewing a trial court’s determination that a defendant did not undergo custodial interrogation, an appellate court must ‘apply a deferential substantial evidence standard’ [citation] to the trial court’s factual findings regarding the circumstances surrounding the interrogation, and it must independently decide whether, given those circumstances, ‘a reasonable person in [the] defendant’s position would have felt free to end the questioning and leave’ [citation].” (People v. Leonard (2007) 40 Cal.4th 1370, 1399-1400.)
Appellant argues that he was in custody during the first interview at his school because he was only 14 years old and was kept “in a police-dominated environment isolated from his family and friends.”
Neither the United States Supreme Court nor the California Supreme Court has decided whether factors such as age should be considered in determining whether a suspect is in custody. (See People v. Leonard, supra, 40 Cal.4th at p. 1400, citing Yarborough v. Alvarado (2004) 541 U.S. 652, 666-668.) Even assuming appellant’s age is a factor that we may consider, the juvenile court found that appellant was of above-average intelligence and that his maturity level was not a major issue. Detective Wallace specifically told appellant that he was not under arrest, was free to leave, and that it was up to appellant if he wanted to speak to the officers. When Detective Wallace then asked appellant if he wanted to speak to them, appellant responded in the affirmative. Officer Keeler explained that police were investigating a recent shooting, but never told appellant that he was a suspect. After the interview, the police departed and appellant remained at school. In light of this evidence, we do not believe that appellant’s age precluded him from understanding the detective’s clear statements that appellant was not under arrest and did not have to speak to police. (See People v. Leonard, at pp. 1401, 1427 [finding no custodial interrogation where defendant, a 21-year-old with low intelligence, chronic and uncontrolled epilepsy, brain damage, and mental illness who was interviewed at police station, was repeatedly told “that he was not under arrest and was free to end the questioning at any time and leave”].)
Nor do we believe that the fact that the interview took place in an administrative office at appellant’s school was inherently coercive. Appellant remained in the familiar environment of his school and was clearly informed that he could leave the office if he wished to do so. That the interview did not take place at appellant’s home in the presence of his parents does not change our conclusion. Appellant’s mother told Officer Keeler that she wanted appellant to be interviewed with his parents present and Officer Keeler agreed that he would return to the home to conduct the interview in the evening. The juvenile court found reasonable Officer Keeler’s testimony that logistics and staffing led him to interview appellant during the day at school instead of in the evening at appellant’s home. Moreover, even assuming holding the interview in the school office suggested some level of coercion, the United States Supreme Court has stated that a noncustodial situation is not converted into a custodial situation simply because “ ‘the questioning took place in a “coercive environment.” ’ ” (California v. Beheler (1983) 463 U.S. 1121, 1124; see also, e.g., People v. Leonard, supra, 40 Cal.4th at p. 1401 [defendant was not in custody even though he was interviewed in an interrogation room at police station].)
Appellant argues that this case is similar to United States v. Lee (9th Cir. 1982) 699 F.2d 466, 467 (Lee), in which a murder suspect agreed to be interviewed in the car of two FBI agents, which was parked in front of the suspect’s house. The two agents told the suspect that he was free to leave the car or terminate the interview at any time and then proceeded to interview him in the closed car for over an hour while police investigators were in and around his house. (Id. at pp. 467-468.) The agents allowed him to repeat his exculpatory story and “then for 15 minutes confronted him with evidence of his guilt, and told him it was time to tell the truth, but did not advise him of his rights.” (Id. at p. 468.) The Ninth Circuit Court of Appeals concluded that, in such circumstances, “a reasonable innocent person could conclude that he was not free to leave” and found that suppression of the confession obtained as a result of the unlawful interrogation was proper. (Ibid.)
This case is not comparable to Lee. Unlike the agents in Lee, the officers here did not confront appellant with evidence of his guilt, but instead simply asked questions about appellant’s involvement in the shootings. Nor was appellant interviewed for an extended period while able to see investigators combing his home for evidence. (See U.S. v. Norris (9th Cir. 2005) 428 F.3d 907, 912-913 [where defendant voluntarily accompanied officers to police station; officers told him he was not under arrest, his cooperation was voluntary, and he was free to terminate interview at any time; and, at conclusion of interview, officers took him home, defendant was not in custody, distinguishing Lee].)
Lee has also been criticized as having been “ ‘decided under an outmoded standard of review.’ [Citation.] ‘Under Berkemer [v. McCarthy (1984) 468 U.S. 420], the question is not whether a reasonable person would believe he was not free to leave, [which was the question the Lee court asked], but rather whether such a person would believe he was in police custody of the degree associated with formal arrest.’ [Citation.]” (U.S. v. Jones (10th Cir. 2008) 523 F.3d 1235, 1242, fn. 2.)
Appellant further argues that the questioning should have ceased because he invoked his right to remain silent when he said, “My mother told me not to speak to the police.” According to appellant, this statement was analogous to a minor’s request to see his parents, which “must, in the absence of evidence demanding a contrary conclusion, be construed to indicate that the minor suspect desires to invoke his Fifth Amendment privilege.” (People v. Burton (1971) 6 Cal.3d 375, 383-384; but see Fare v. Michael C. (1979) 442 U.S. 707 [whether minor’s request to see his probation officer is an invocation of Miranda rights depends on totality of circumstances].)
However, it has never been held that a defendant may invoke his or her Miranda rights prior to custodial interrogation. (See McNeil v. Wisconsin (1991) 501 U.S. 171, 182, fn. 3 [“We have in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than ‘custodial interrogation’ ”]; see also People v. Calderon (1997) 54 Cal.App.4th 766, 770-771 [“ ‘To allow an individual to interpose Miranda in a situation outside the custodial interrogation context would represent an unwarranted extension of Miranda’s procedural safeguards, an extension best left to the discretion of the Supreme Court, which devised the Miranda safeguards in the first place and which has quite recently expressed disinterest in expanding them’ ”].) Thus, even assuming appellant’s comment about what his mother had said could otherwise be construed as an invocation of his Miranda rights, such an invocation had no effect in the absence of custodial interrogation.
We conclude that, under the totality of the circumstances, appellant was not in custody at the time of his first interview and, therefore, no Miranda warnings were required. (See People v. Leonard, supra, 40 Cal.4th at pp. 1399-1400.)
B.
Appellant contends the juvenile court should have suppressed his first statement to police because that statement was involuntary.
Respondent correctly points out that appellant failed to raise the issue of the voluntariness of his first statement in the juvenile court. A claim of involuntariness generally will not be addressed for the first time on appeal. (See People v. Ray (1996) 13 Cal.4th 313, 339; Evid. Code, § 353.) Hence, the issue is waived.
Moreover, for the same reasons we concluded that no Miranda warnings were required during that first interview with Detective Wallace and Officer Keeler at his school, we would also reject any claim of involuntariness.
As the juvenile court found in this case, appellant at 14 years old was of above average intelligence and not particularly immature for his age. After appellant said that his mother told him not to talk to police, because it is illegal, Detective Wallace responded that it was not illegal for him to talk to police but also clearly told appellant that he did not have to speak to police and was free to leave. The interview took place at appellant’s own school, was not prolonged, and involved no coercion, threats, or promises. (See People v. Lewis (2001) 26 Cal.4th 334, 383 [to determine voluntariness, court looks at the totality of circumstances, including minor’s age, intelligence, education, experience, and capacity, as well as whether minor was exposed to coercion, threats, promises, trickery or intimidation].) Importantly, appellant was not in custody at the time of his first statement, and, under the totality of the circumstances, that statement was given voluntarily. (See ibid.)
II. The Second Statement
In ruling on appellant’s motion to suppress his second statement to police, the juvenile court found that the present case was not “even remotely similar to Seibert” in that the first interview took place at school and was not a custodial interrogation; appellant was free to leave and did not have to speak. Moreover, following the first interview, appellant was left at school and the officer returned a substantial amount of time later to arrest him. Hence, there was no “deliberate two-step strategy” employed by police. In addition, the juvenile court found no problem with respect to the voluntariness of the confession.
Missouri v. Seibert (2004) 542 U.S. 600, 613-614 (Seibert) in which United States Supreme Court concluded: “[W]hen Miranda warnings are inserted in the midst of coordinated and continuing interrogation, they are likely to mislead and ‘depriv[e] a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them.’ ”
A.
Appellant contends the juvenile court should have suppressed his second statement to police because the Miranda warnings he was given were inadequate under Seibert, supra, 542 U.S. 600.
In Seibert, the United States Supreme Court condemned “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.) In that case, police officers arrested the defendant; transported her to the police station; interviewed her for 30 to 40 minutes without Miranda warnings in a police interview room, during which an officer was “squeezing her arm and repeating ‘Donald was also to die in his sleep’ ”; gave her a 20-minute coffee and cigarette break; returned to the interview room and gave her Miranda warnings; and effectively cross-examined her regarding the information she had provided in her first, pre-Miranda warnings statement. (Id. at p. 605.) At the suppression hearing, the interviewing officer “testified that 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.’ ” (Id. at pp. 605-606.)
The plurality in Seibert discussed “a series of relevant facts that bear on whether Miranda warnings delivered midstream could be effective enough to accomplish their object: 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.) Justice Kennedy’s concurring opinion, in which he provided the fifth vote for reversal in Seibert, stated that he “would apply a narrower test applicable only in the infrequent case, such as we have here, in which the two-step interrogation technique was used in a calculated way to undermine the Miranda warning.” (Id. at p. 622 (conc. opn. of Kennedy, J.).) Federal courts, including the Ninth Circuit, have adhered to the narrower position of Justice Kennedy. (See, e.g., United States v. Williams (9th Cir. 2006) 435 F.3d 1148, 1157-1158.)
In the present case, there is absolutely no evidence that police employed an intentional two-step interrogation technique designed to undermine the Miranda warnings given to appellant before the second interview or that the Miranda warnings were in any way undermined by being given between the two interviews. Instead, the evidence shows that police first interviewed appellant at his school, at which time he was not in custody. (See pt. I.A., ante, of this opinion.) The officers then left to continue their investigation. They did not return to appellant’s school until after meeting with and arresting B.B. at the local intermediate school, at which time they arrested appellant and transported him to the police station. Once there, the officers read appellant his Miranda warnings before interviewing him again. Although the content of the interview overlapped with the first interview, appellant admitted for the first time at the second interview that he had also shot at the Kilner house.
There is no evidence that appellant’s Miranda warnings were “inserted in the midst of coordinated and continuing interrogation.” (Seibert, supra, 542 U.S. at p. 613.) Given this complete lack of evidence that police intended to manipulate the process, as well as the separation of time and place between the two interviews and the fact that appellant was not arrested until shortly before the second interview, we conclude that Seibert has no application here. Appellant’s post-warning statements were properly admitted into evidence. (See Oregon v. Elstad (1985) 470 U.S. 298, 314 [upholding admission of defendant’s Mirandized statements at police station even though defendant had made an earlier un-Mirandized statement at his home].)
B.
Appellant contends the juvenile court should have suppressed his second statement because his waiver of rights was not voluntary, knowing, and intelligent.
“A minor has a Fifth Amendment privilege against self-incrimination, which precludes admission of a minor’s confession obtained without the minor’s voluntary, intelligent, and knowledgeable waiver of his or her constitutional rights. [Citations.] To determine whether a minor’s confession is voluntary, a court must look at the totality of circumstances, including the minor’s age, intelligence, education, experience, and capacity to understand the meaning and consequences of the given statement. [Citations.] ‘The decision to confess cannot be of itself an indicium of involuntariness in the complete absence of coercive circumstances.’ [Citation.] A court should look at whether the minor ‘was exposed to any form of coercion, threats, or promises of any kind, trickery or intimidation, or that he was questioned or prompted by . . . anyone else to change his mind.’ [Citation.]” (People v. Lewis, supra, 26 Cal.4th at p. 383.)
“ ‘ “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.” ’ [Citation.]” (People v. Lewis, supra, 26 Cal.4th at p. 384 [confession found to be voluntary even though defendant was 13 years old and was subsequently diagnosed a paranoid schizophrenic]; see also In re Brian W. (1981) 125 Cal.App.3d 590, 602-603 [confession found to be voluntary even though 15-year-old defendant had an IQ of 81 and the mental age of an 11- or 12-year-old]; In re Norman H. (1976) 64 Cal.App.3d 997, 1002 [confession found to be voluntary even though defendant was a very unintelligent 15-year-old boy with an IQ of about a 7- or 8-year-old].)
On appeal, a reviewing court looks at the evidence independently to determine whether a defendant’s confession was voluntary, but will uphold the trial court’s findings of the circumstances surrounding the confession if supported by substantial evidence. (People v. Lewis, supra, 26 Cal.4th at p. 383.)
In the present case, the evidence shows and the juvenile court found that, at the time he confessed, appellant was a “smart” 14-year-old, whose maturity level was between that of a 12-year-old and a 14-year-old. He understood the meaning of the words used in the Miranda warnings. While Dr. Pojman believed it would be difficult for appellant to speak up for himself in his dealings with the police, Dr. Pojman thought many 14-year-olds would have the same trouble saying what they thought and needed.
The evidence further shows and the juvenile court found that, before questioning appellant at the police station, Officer Keeler read him his rights and appellant said he understood each of those rights as they were read to him. Officer Keeler further told appellant “to consider his rights before speaking,” but appellant agreed to speak to the officer. There is absolutely no showing of improper conduct, such as coercion, threats, or promises on the part of the police.
Consequently, under the totality of the circumstances, we conclude that appellant’s confession was voluntary, knowing, and intelligent. (See People v. Lewis, supra, 26 Cal.4th at p. 383.)
The juvenile court properly refused to suppress appellant’s two statements to police.
DISPOSITION
The juvenile court’s order is affirmed.
We concur: Lambden, J., Richman, J.
Officer Keeler acknowledged that he had made arrangements to interview appellant the previous night at his house, but said he met with him at school “simply was a matter of logistics: the way our investigation was going, and my work hours.”