Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles No. NJ24159, Gibson W. Lee, Judge
(Retired Judge of the Los Angeles S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Stephen Borgo, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Sarah J. Farhat, Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
PERREN, J.
Shane D., a minor, appeals the judgment declaring him a ward of the juvenile court and placing him home on probation based on a sustained Welfare and Institutions Code section 602 petition alleging that he committed second degree robbery (Pen. Code, § 211) and misdemeanor battery (Pen. Code, § 242). He contends the court erred in admitting statements attributed to him that were obtained in violation of his Miranda rights. He also claims, and the People concede, that the dispositional minute order should be corrected to (1) reflect that the battery was declared to be a misdemeanor, and (2) strike the maximum term of confinement. We shall order the judgment amended accordingly. Otherwise, we affirm.
Miranda v. Arizona (1966) 384 U.S. 436.
STATEMENT OF FACTS
On October 22, 2008, Victor R. was walking to school with Edgar B. and Jeffrey M. and talking on his cell phone when a black truck pulled up. Someone got out of the truck, grabbed the phone from Victor, and ran back toward the truck. Victor identified appellant in court as the person who took his phone. Edgar and Jeffrey were also able to identify appellant as the perpetrator. When Edgar tried to stop appellant, he swung at Edgar and hit him in the face. As appellant got inside the truck, he accidentally dropped a cell phone on the ground. Edgar picked up the phone and discovered it was not Victor's.
Appellant was arrested at his high school that same day after it was determined that the phone left at the crime scene was his personal cell phone. He was handcuffed and transported to the police station, where he was interviewed by Long Beach Police Department Detective Rudy Romero and his partner. After the detectives verified that appellant knew how to read and write, they gave him a preprinted form regarding his constitutional rights. Detective Romero instructed appellant to read the form out loud and then place his initials after each statement if he understood them. Appellant complied and initialed every statement. Once the form was completed, appellant told Detective Romero that he had been driving around in a truck with some friends when they decided he should try to steal a Sidekick cell phone. Appellant then admitted that he took a phone from a boy and that his personal cell phone fell out of his pocket as he was getting back into the truck.
DISCUSSION
I.
Miranda
Appellant contends the court should have excluded his statements to the police because they were not preceded by a knowing and voluntary waiver of his Miranda rights. We disagree.
"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.]" (People v. Lewis (2001) 26 Cal.4th 334, 383.) "We make the same inquiry to determine the voluntariness of a Miranda waiver. [Citation.]" (People v. Guerra (2006) 37 Cal.4th 1067, 1093.) In other words, "the determination whether statements obtained during custodial interrogation are admissible against the accused is to be made upon an inquiry into the totality of the circumstances surrounding the interrogation, to ascertain whether the accused in fact knowingly and voluntarily decided to forgo his rights to remain silent and to have the assistance of counsel." (Fare v. Michael C. (1979) 442 U.S. 707, 724-725, citing Miranda v. Arizona, supra, 384 U.S. at pp. 475-477.) "This totality-of-the-circumstances approach is adequate to determine whether there has been a [Miranda] waiver even where interrogation of juveniles is involved." (Fare, supra, at p. 725.)
"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. [Citations.] However, if there is conflicting testimony on whether a defendant waived his Miranda rights, 'we must accept that version of events which is most favorable to the People, to the extent that it is supported by the record.' [Citation.]" (People v. Lewis, supra, 26 Cal.4th at pp. 383-384.) The prosecution bears the burden of establishing a valid Miranda waiver by a preponderance of the evidence. (In re Bonnie H. (1997) 56 Cal.App.4th 563, 577.)
Before Detective Romero testified at trial regarding appellant's statements, appellant's attorney moved to exclude those statements under Miranda and requested an Evidence Code section 402 hearing. Appellant testified at that hearing for the sole purpose of determining whether he had knowingly and voluntarily waived his right to counsel and to remain silent. Under questioning by his attorney, appellant testified that he "felt like" he "had to talk" to the detectives because he "felt bad about the situation." Counsel asked, "Did you feel like you could tell them, 'No, I don't want to talk to you?'" Appellant responded, "Yes." He then testified, however, that he believed he "didn't have any choice" but to talk to the detectives. On cross-examination, appellant acknowledged initialing every statement on the form he was given and signing the form at the bottom. He also answered yes to the prosecutor's question, "Did you feel you had to talk to the detectives because you wanted to give your side of the story?" On redirect examination, appellant expressed his understanding that he "could have stayed quiet." While he also claimed he did not understand the form when he was signing it and complained that "[t]he police were yelling at me the same time that I was signing the thing," he understood that he could have refused to initial the document. After appellant testified, "I was scared to be truthful," the court admonished his mother for "shaking her head," "mouthing answers," and "trying to coach [appellant] for the last five minutes." The court warned appellant's mother that she would be removed from the courtroom if her behavior continued.
At the conclusion of the hearing, appellant's attorney argued that he did not "really understand" that he had the right to remain silent because he believed that he had to speak to the detectives. The court denied the motion and allowed Detective Romero to testify regarding appellant's statements.
The court did not err. Appellant, who turned 17 less than a week after the incident took place, testified that he understood he had the right to refuse to talk to the police. Although he subsequently attempted to qualify this statement, for purposes of review we must accept his concession that his Miranda waiver was voluntary. (People v. Lewis, supra, 26 Cal.4th at p. 384.) Moreover, the record is devoid of any indication that appellant was of "insufficient intelligence to understand the rights he was waiving, or what the consequences of that waiver would be," or that he was "worn down by improper interrogation tactics or lengthy questioning or by trickery or deceit." (Fare v. Michael C., supra, 442 U.S. at pp. 726-727; In re Bonnie H., supra, 56 Cal.App.4th at p. 579 [quoting same].) Rather, appellant admitted that he agreed to talk to the police because he "felt bad about the situation" and wanted to tell his side of the story. Although appellant proceeded to give somewhat contradictory testimony, it is apparent that he did so at the prompting of his mother. Under the totality of the circumstances, it is clear that appellant fully understood his rights and freely chose to waive them.
Even if appellant could establish that his confession was admitted in violation of his Miranda rights, he fails to show how he was prejudiced thereby. Appellant's statement merely confirmed what had already been established by the evidence. Appellant was identified by the victim and both eyewitnesses as the perpetrator of the crimes he was charged with committing, and his identity was independently established when he inadvertently left his personal property at the scene of the crime. In light of this overwhelming evidence of his guilt, any error in admitting his confession would be harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18; People v. Bradford (1997) 15 Cal.4th 1229, 1314 [recognizing that the admission of statements obtained in violation of Miranda are subject to Chapman harmless error standard of review].)
II.
Sentencing Errors
Appellant asserts that the minute order from the dispositional hearing must be corrected to reflect that count 2 (battery) was declared to be a misdemeanor. He also contends the minute order's reference to a maximum period of confinement should be stricken because the court did not impose a maximum term and appellant was placed home on probation. The People concede both errors.
The People's concessions are well taken. The battery alleged in count 2 was charged as a misdemeanor. Although the minute order states that count 2 was declared to be a felony, the court made no such oral pronouncement at the dispositional hearing. Because the oral pronouncement of sentence prevails over the minute order (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2), the entry is a mistake and is subject to correction (People v. Mesa (1975) 14 Cal.3d 466, 471-472). The minute order's reference to a maximum term of confinement is erroneous because (1) the court made no such oral pronouncement, and (2) no maximum term applies where, as here, the minor is placed home on probation. While there is no disagreement that the trial court erred, there is a split of authority concerning the remedy. Our colleagues in Division Eight direct that the entry stating the maximum term be stricken because section 726, subdivision (c) of the Welfare and Institutions Code specifically provides that a term be set only when "the minor is removed from the physical custody of his or her parent or guardian...." (In re Matthew A. (2008) 165 Cal.App.4th 537, 541.) Earlier, our colleagues in the Third District had declared that since there was no legal effect to the order, the minor suffered no prejudice and no remand or corrective action was necessary. (In re Ali A. (2006) 139 Cal.App.4th 569, 574.)
We believe that findings and orders that are of no legal effect ought not to be left unaccounted for. While they may be of no consequence, they afford the possibility for confusion and mischief. Accordingly, we direct the trial court to strike the reference to the maximum term.
DISPOSITION
The juvenile court shall correct the dispositional minute order to reflect that count 2 was declared to be a misdemeanor. The court shall also strike the minute order's reference to a maximum term of confinement. In all other respects, the judgment is affirmed.
We concur: YEGAN, Acting P.J., COFFEE, J.