Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tulare County No. JJD062565. Valeriano Saucedo, Judge.
Alison E. Kaylor, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez and Stephen G. Herndon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Levy, J.
INTRODUCTION AND GENERAL FACTS
On the evening of October 13, 2007, a convenience store employee was robbed by two masked and armed males. They pointed their guns at him and demanded money. The employee took approximately $600 from the cash register and gave it to one of the males. Two days later, appellant was arrested. Appellant confessed to the arresting officer that he was one of the robbers.
Unless otherwise specified all dates refer to 2007.
A juvenile wardship petition was filed alleging that appellant committed a robbery, uttered criminal threats and used a weapon. (Welf. & Inst. Code, § 602, subd. (a); Pen. Code, §§ 211, 422, 12022, subd. (b)(1), 1192.7, subd. (c)(24).) Following a contested jurisdictional hearing, the court found all of the allegations to be true. Appellant was granted probation on specific terms and conditions.
Appellant argues that the juvenile court erred by denying two suppression motions. We are not convinced. Appellant also argues that a probation condition forbidding use of all intoxicants is overbroad. We agree and will modify the condition to exempt intoxicants that are legally prescribed for appellant by a licensed medical professional. Finally, appellant argues that he is entitled to two additional predisposition custody credits and that limited remand is required for the juvenile court to determine whether the criminal threats offense is a misdemeanor or a felony. Respondent correctly concedes these last two issues. We will modify the dispositional order, remand for a felony/misdemeanor declaration and affirm the judgment in all other respects.
DISCUSSION
I. Disputed Issues
A. The suppression motion based on involuntariness was properly denied.
1. Facts
Appellant filed a written motion to suppress statements he made to police officer Ryan Heinks on the day he was arrested. An evidentiary hearing was conducted, during which Heinks and appellant testified.
a. Heinks’s testimony
Heinks testified that he was dispatched to the convenience store after the robbery. He spoke with the employee and viewed a surveillance video that was taken during the robbery.
Two days later, Heinks was dispatched to a middle school concerning a juvenile who struck another student. He responded in full police uniform in a marked police vehicle. After walking through the front doors of the school, he saw appellant walking down the hallway. Four school officials were following appellant. One of the officials identified appellant to Heinks as the subject of the police call. Heinks noticed that appellant appeared similar to one of the robbers in the surveillance video.
Appellant received permission from a school official to use the bathroom. Heinks followed appellant into the restroom and waited until he was finished using the facilities. Heinks noticed that appellant’s shirt and shoes matched the clothing worn by one of the robbers. Heinks also noticed that appellant’s hair, build, height and weight appeared to be the same as one of the robbers. Because it was reported that a firearm was used in the robbery, Heinks asked appellant “if he had anything on him[?]” Noticing that appellant had a large bulge in one of his pockets, Heinks asked appellant “what it was[?]” Appellant replied that it was money. After receiving permission from appellant to remove it, Heinks removed a large roll of money from appellant’s pocket. Heinks patted down appellant. Heinks asked appellant how much money was in the roll and appellant replied that it was $230. Heinks asked appellant “where he got the money from, and [appellant] said that he got it from his friend [P.A.N.]”
Appellant walked out of the bathroom. Appellant, the principal and Heinks walked to the principal’s office. Heinks asked appellant about the money that was in his pocket. Appellant “stated he was going to the Chevron …, that he was walking to the store. His friend [P.A.N.] came running down the alleyway, and that [P.A.N.] threw him the money.” Heinks asked appellant to describe the Chevron station and appellant “gave basically a description of the location in which matched the location of the armed robbery.” Heinks told appellant that he believed he was involved in the robbery. Although no fingerprints had been obtained from the convenience store after the robbery, Heinks said that he “took fingerprints from the scene and we’d be matching up his fingerprints to this.” Heinks arrested appellant.
The convenience store sells Chevron brand gasoline.
Heinks drove appellant to the police station. Appellant was seated in the back seat of the patrol vehicle but he was not handcuffed. Heinks did not converse with appellant on the way to the police station.
When they arrived at the police station Heinks took appellant into his office and he asked appellant if he wanted a soda. Appellant declined. Appellant and Heinks sat in two chairs that were approximately three to five feet apart with a desk in between them. The room was longer than it was wide and had overhead fluorescent lighting. No lamps were switched on. Heinks started a tape recorder and read appellant his Miranda advisements. (Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). Heinks did not discuss the case with appellant prior to starting the tape recorder. Heinks asked appellant if he understood them and appellant answered affirmatively. Heinks began questioning appellant within five minutes of their arrival at the police station.
Heinks asked appellant “what happened” and appellant “went into a narrative” about the robbery. Heinks sat down during the entire conversation. He spoke to appellant “in the same voice I am speaking with you now.” Heinks did not find it necessary to employ any interrogation techniques to encourage the minor to be honest. He did not make any promises to appellant in exchange for his speaking with him. He did not articulate to appellant any benefits for speaking with him or any negative consequences if he did not do so. At the conclusion of the interview, Heinks asked appellant if he was being honest with him and appellant replied affirmatively. Then he asked appellant if he threatened him at any time during the interview and appellant replied negatively.
Heinks testified that did not leave appellant by himself at any time in the police station. He specifically denied leaving appellant alone in a room for about an hour. Heinks denied showing appellant the surveillance video during this interview. He did not say to appellant, “Don’t bullshit me, I don’t want you to bullshit me.” Heinks denied saying to appellant that he would charge him as an adult if he did not tell him the truth. He denied saying, “I will charge you 25 years to 30 years unless you admit.” Heinks testified that appellant did not tell him in the bathroom that he obtained the $230 by “slanging”, which is a colloquial term for selling drugs. Heinks said that he is unfamiliar with this word.
Heinks testified that he subsequently conducted another interview with appellant to obtain information about the second robber. During the second interview, Heinks showed appellant the surveillance video.
b. Appellant’s testimony
Appellant testified that after he was finished using the restroom, Heinks patted him down and found a roll of money. Heinks asked him where the money came from and he told the officer the “I was slanging.” They walked to the principal’s office. Heinks put the money onto the principal’s desk and accused him of being involved in a robbery. Heinks drove him to the police station, put him in a little room and left him alone in the room for at least an hour. Then Heinks returned and took him to his office. Heinks showed him the surveillance video. Heinks asked if he was one of the people in the surveillance video. Appellant denied it. Heinks said, “If you don’t tell me the truth, I got fingerprints.” Also, Heinks said, “If I don’t tell him the truth, he’ll charge me like an adult, I’ll get 25 to 30 years.” Heinks said that he “better not bullshit him.” Heinks asked him to identify the second person in the surveillance video and told him that he would put all the blame on him if he did not confess. Appellant was scared. He told Heinks that he and P.A.N. robbed the store. Appellant would not have confessed if Heinks had not threatened to charge him as an adult and said that he had fingerprints and was going to use them against him. All of this occurred before Heinks turned on the tape recorder.
c. The juvenile court’s ruling
The court denied the suppression motion. It found that Heinks’s testimony was credible and that appellant’s testimony was not credible. To explain this credibility determination, the court stated that Heinks’s demeanor supported Heinks’s testimony that he was unfamiliar with the term “slanging.” Also, Heinks admitted falsely telling the minor that fingerprints had been taken from the scene. The court reasoned that “if the officer were to decide to be less than truthful, [then] he would have engaged in a way of testifying where he would have denied everything.” Furthermore, at the conclusion of the recorded interview appellant responded affirmatively to Heinks’s question whether he had been truthful with him and responded negatively to Heinks’s question whether he had threatened him. Appellant’s responses to these questions were not equivocal. Then the court determined that in light of the totality of the circumstances the evidence was sufficient to show that appellant’s statements to Heinks were voluntary. It determined that Heinks’s false statement concerning fingerprints did not amount to coercion because it would not have overborne appellant’s will and caused him to involuntarily make statements against his interests.
2. The statements were voluntary.
When a defendant’s statements are challenged as involuntary, they are inadmissible unless the prosecution proves by a preponderance of evidence that they were voluntary. (People v. Maury (2003) 30 Cal.4th 342, 404 (Maury).)
“In reviewing the voluntary character of incriminating statements, ‘“[t]his court must examine the uncontradicted facts surrounding the making of the statements to determine independently whether the prosecution met its burden and proved that the statements were voluntarily given without previous inducement, intimidation or threat. [Citations.] With respect to the conflicting testimony, the court must ‘accept that version of events which is most favorable to the People, to the extent that it is supported by the record.’” [Citations.]’ …
“A statement is involuntary if it is not the product of ‘“a rational intellect and free will.”’ [Citation.] The test for determining whether a confession is voluntary is whether the defendant’s ‘will was overborne at the time he confessed.’ [Citation.] ‘“The question posed by the due process clause in cases of claimed psychological coercion is whether the influences brought to bear upon the accused were ‘such as to overbear petitioner’s will to resist and bring about confessions not freely self-determined.’ [Citation.]” [Citation.] In determining whether or not an accused’s will was overborne, “an examination must be made of ‘all the surrounding circumstances -- both the characteristics of the accused and the details of the interrogation.’ [Citation.]” [Citation.]’ [Citation.]
“A finding of coercive police activity is a prerequisite to a finding that a confession was involuntary under the federal and state Constitutions. [Citations.] A confession may be found involuntary if extracted by threats or violence, obtained by direct or implied promises, or secured by the exertion of improper influence. [Citation.] Although coercive police activity is a necessary predicate to establish an involuntary confession, it ‘does not itself compel a finding that a resulting confession is involuntary.’ [Citation.] The statement and the inducement must be causally linked. [Citation.]” (Maury, supra, 30 Cal.4th at pp. 404-405.)
The trial court is the exclusive arbiter of questions surrounding the respective credibility of witnesses. On appeal, the trial court’s credibility findings, both express and implied, will be upheld if they are supported by substantial evidence. (People v. Lawler (1973) 9 Cal.3d 156, 160.)
Measured against the applicable standard, we discern no error in the challenged ruling. Examining the totality of the circumstances, we agree with the juvenile court that Heinks did not engage in coercive conduct and that appellant’s statements were voluntary.
The court made a credibility finding in favor of Heinks. This credibility finding is supported by substantial evidence in the record and will not be disturbed. Heinks testified that he did not leave appellant alone in a room at the station, and that he did not threaten appellant or make any inducements in exchange for appellant’s confession. We accept the veracity of this evidence. Also, the interview at the police station was taped. Appellant stated at its conclusion that he had been truthful and that he had not been threatened. Furthermore, appellant was not subjected to lengthy interrogation. After brief exchanges in the bathroom and the principal’s office, appellant was transported to the police station. Upon arrival at the station, he was offered a drink and then interviewed in Heinks’s office for a reasonable duration of time. Although appellant was only 14 when he robbed the convenience store, no evidence was presented indicating that he was unfamiliar with the judicial system. Appellant evidenced some criminal sophistication when he used the term “slanging,” a street phrase for drug sales.
Appellant gives undue emphasis to Heinks’s lie concerning fingerprints. While deception by an officer is considered as a factor in assessing whether a confession is involuntary, it is not determinative. (People v. Farnam (2002) 28 Cal.4th 107, 182 (Farnam). Heinks’s single false statement is not of a type that was likely to produce a false confession. (Ibid.)
Appellant also argues that the suppression motion should have been granted because Heinks was required by Welfare and Institutions Code section 625 to provide Miranda advisements prior to speaking with him at the school. We are not persuaded. Failure to comply with sections of the Welfare and Institutions Code regarding temporary custody and detention do not affect the admissibility of a minor’s statements unless there is a due process violation. (In re Michael E. (1980) 112 Cal.App.3d 74, 78-79.) We have determined that appellant’s statements to Heinks were voluntary and his due process rights were not violated. Therefore, this contention fails.
B. The suppression motion based on Miranda violation was properly denied.
1. Facts
Appellant also motioned to suppress the statements he made to Heinks at the school based on a Miranda violation. With the consent of the parties, the juvenile court incorporated testimony taken at the suppression motion based on involuntariness into the record of this proceeding. Additional testimony was given by Heinks.
Heinks testified that he arrived at the school around 12:30 p.m. He was in full uniform and was armed. He spoke with the principal, who told him appellant hit another student in the head and was being uncooperative. Heinks followed appellant into the bathroom and asked appellant about the bulge in his pocket. Appellant gave Heinks permission to remove the money. Heinks did not have control over appellant while they were in the bathroom. However, appellant was not free to leave the school premises. Heinks did not arrest appellant because he wanted to talk to everyone involved in the fight. Heinks did not walk appellant to the principal’s office. The principal escorted appellant to her office and Heinks walked behind them. Heinks, appellant and the principal were in the office for approximately five minutes. Heinks asked for and received a printout containing appellant’s contact information. The principal talked with appellant but Heinks did not recall exactly what she asked appellant. It was not anything regarding this case.
The court denied the motion. It reasoned as follows:
“Counsel, the distinction that each of you draw is the difference between a detention and someone being in custody.
“And, in this instance, the Court is going to deny the minor’s motion. To the extent there was a detention, it was lawful under the circumstances of this case.
“When the minor responded to the $240 [sic], the wad of money that was found, when he asked who -- when he responded, who had given money to him, [P.A.N.], and he gave, if I remember correctly, [P.A.N.’s] name as well, it was not known at that time whether [P.A.N.] was even a suspect or was even involved in the alleged robbery. And so it could have been innocuous information, it could have related to the event, and the officer was not in a position at that point to truly evaluate the truthfulness of that statement, or if it even related to the ongoing investigation.
“So, in this instance, the Court is going to find that it was a detention that was lawful, and that the minor was not in custody.
“The Court is also going to rule in the alternative, and that is that even if the minor was in custody, and that he was -- he did not receive the benefit of Miranda at that point, once he was taken to the police department, there was an effective Miranda warning given.”
2. Appellant was not in custody at the school.
Miranda prohibits use of statements stemming from a custodial interrogation unless the suspect has been given specified warnings designed to ensure that he or she is aware of the privilege against self-incrimination. Miranda warnings are not required when a person is temporarily detained. (Farnam, supra, 28 Cal.4th at pp. 179-180; People v. Clair (1992) 2 Cal.4th 629, 679-680.) The determinative question is whether a reasonable person in the defendant’s position would have felt that he or she was in custody. (People v. Stansbury (1995) 9 Cal.4th 824, 830.) The standard of appellate review is undisputed:
“The trial court’s determination that Miranda was not applicable … is reviewed thus: the conclusion itself is examined independently, the underlying findings are scrutinized for substantial evidence. [Citation.] A determination whether police conduct amounted to a temporary detention for investigation or something more is reviewed independently. [Citations.] By contrast, ‘findings on whether there was custodial interrogation … are reviewed for substantial evidence ….’ [Citation.] So too, it appears, are the underlying findings on whether there was ‘custody’ and ‘interrogation.’” (People v. Clair, supra, 2 Cal.4th at p. 678.)
Appellant asserts that he was in custody because he was not free to leave the bathroom or the principal’s office. We are not convinced. Appellant was constrained to remain at school by California’s compulsory education law. (Ed. Code, § 48200.) Students are not in custody for Miranda purposes simply because they are required by state law to remain at school. Detainees are not free to leave the area while an officer is investigating a situation and yet they are not in custody for Miranda purposes. (Farnam, supra, 28 Cal.4th at p. 180.)
Having considered the entirety of the circumstances, we conclude that appellant was detained at the school but he was not in custody. Heinks’s encounters with appellant in the bathroom and the principal’s office were brief investigatory contacts. At no time did Heinks draw his weapon or touch appellant without appellant’s permission. In the bathroom, Heinks asked appellant what was in his pocket. Appellant told him it was money and said that he obtained the money from P.A.N. Appellant walked out of the bathroom at this point. There is no evidence indicating that appellant asked permission from Heinks to leave the bathroom. This demonstrates that appellant did not feel that his freedom of action was curtailed in a significant way. Also, Heinks did not escort appellant to the principal’s office; he followed behind appellant and the principal. Inside the principal’s office, appellant said P.A.N. threw him the money in an alleyway by the Chevron station. This confirmed Heinks’s suspicion that appellant was involved in the robbery. He ceased questioning appellant and arrested him. Since appellant was not in custody at the school, Miranda advisements were not required. Accordingly, we conclude the juvenile court properly denied the suppression motion.
C. The probation condition proscribing possession or use of intoxicants is overbroad.
Appellant was granted probation on specified terms and conditions. Probation condition number 7 provides, as follows: “Not use, possess, or be under the influence of any alcoholic beverage or illegal or intoxicating substance, or possess any associated paraphernalia.” This condition was imposed without objection.
Appellant challenges the portion of this condition prohibiting possession of intoxicants. He contends that the proscription against intoxicants is overbroad because it does not exclude intoxicants that are lawfully prescribed by a licensed physician to treat a medical condition. We agree.
This challenge presents a pure question of law. Therefore, it may be raised for the first time on appeal. (In re Sheena K. (2007) 40 Cal.4th 875, 889.)
A juvenile court possesses broad discretion to select appropriate probation conditions. “The court may impose any reasonable condition that is ‘fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.’ [Citation.]” (In re Antonio C. (2000) 83 Cal.App.4th 1029, 1033.) “A probation condition is constitutionally overbroad when it substantially limits a person’s rights and those limitations are not closely tailored to the purpose of the condition. [Citation.]” (People v. Harrisson (2005) 134 Cal.App.4th 637, 641.)
Reasonably read, the challenged probation condition prohibits possession, use or being under the influence of any intoxicating substance. We agree with appellant that the condition is overbroad because it does not contain a medical exemption. As written, the condition does not permit appellant to possess or use a medication that is intoxicating, even if it is lawfully prescribed for him. Generally speaking, the right to obtain medical treatment of one’s choice falls within the personal right to privacy protected by the Fourteenth Amendment of the Federal Constitution. (See Whalen v. Roe (1977) 429 U.S. 589, 603.)
Modification of a probation condition is a recognized remedy to cure overbreadth. For example, in In re Justin S. (2001) 93 Cal.App.4th 811, the court cured a constitutional deficiency in a probation condition prohibiting association with any gang members by adding a scienter requirement. (Id. at p. 816.) In this case, the overbreadth can be cured by modifying the condition to prohibit use or possession of intoxicating substances, unless they are legally prescribed for appellant by a licensed medical professional.
Appellant also contends that the prohibitions against possession of intoxicants and paraphernalia are invalid because it was not proved that they had any role in the robbery. This argument is based on the facts and circumstances of appellant’s individual case and does not present a pure issue of law that can be resolved without reference to the sentencing record developed in the juvenile court. Therefore, appellant was required to present it in the first instance to the juvenile court. Since he failed to object on this ground below, the claim was forfeited. (In re Sheena K., supra, 40 Cal.4th at p. 889.)
II. Conceded Issues
A. The juvenile court failed to determine the character of the criminal threat.
In relevant part, Welfare and Institutions Code section 702 provides: “If the 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.” When a court fails to make the formal declaration required under this section, remand is required unless the record as a whole establishes that the court was aware of its discretion to treat the offense as a misdemeanor and to state a misdemeanor-length confinement time. (In re Manzy W. (1997) 14 Cal.4th 1199, 1209.)
A criminal threat in violation of Penal Code section 422 is a “wobbler” offense that is punishable alternatively as a misdemeanor or a felony. Appellant asserts and respondent concedes that remand is necessary because the juvenile court failed to expressly determine whether the threat offense was a misdemeanor or a felony and it did not demonstrate any awareness of its discretion to make such a determination. After reviewing the record, we accept this concession.
At no point during the jurisdictional or dispositional hearings did the juvenile court orally indicate on the record whether the threat offense is a felony or a misdemeanor. At no point did the court indicate that it was aware of its discretion to make such a determination. Although the minute order memorializing the jurisdictional proceeding notes that the offense is a felony, this is not sufficient. Rendition of judgment is an oral pronouncement. (People v. Mesa (1975) 14 Cal.3d 466, 471.) When there is a discrepancy between the oral pronouncement of judgment and the minute order, the oral pronouncement controls. (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) Therefore, we agree with the parties that remand for a felony/misdemeanor determination is necessary.
B. Appellant is entitled to 66 predisposition custody credits.
A juvenile is entitled to predisposition credit for time spent in juvenile hall pending resolution of allegations contained in a wardship petition. (In re Eric J. (1979) 25 Cal.3d 522, 536.) Actual time in custody commences on the day of arrest and includes the day of sentencing. (People v. Smith (1989) 211 Cal.App.3d 523, 526.) The probation report specifies that appellant was in custody from October 15 to October 31 and from November 20 to the date of sentencing on January 7, 2008. This totals 66 days of custody. However, appellant was awarded only 64 custody credits. Appellant contends and respondent correctly concedes that he is entitled to two additional predisposition custody credits. (In re John H. (1992) 3 Cal.App.4th 1109, 1111-1112.)
DISPOSITION
The dispositional order is modified, as follows: (1) the minor is awarded 66 predisposition custody credits; and (2) probation condition number 7 is amended to provide, “Not to use, possess, or be under the influence of alcoholic beverages or illegal drugs or intoxicating substances, unless legally prescribed for the minor by a licensed medical professional; not to possess any associated paraphernalia.” The matter is remanded to the juvenile court for exercise of its discretion to determine whether the violation of Penal Code section 422 is a misdemeanor or a felony and to make the express declaration required by Welfare and Institutions Code section 702. If the juvenile court determines that this crime is a misdemeanor, it shall make any further orders that are necessary and proper under the circumstances. In all other respects, the judgment is affirmed.
WE CONCUR: Vartabedian, Acting P.J., Cornell, J.