Opinion
B163251
7-31-2003
In re TIMOTHY W., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY W., Defendant and Appellant.
Patricia Winters, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephen A. McEwen and Thien Huong Tran, Deputy Attorneys General, for Plaintiff and Respondent.
The juvenile court sustained a petition for felonious assault by means of force likely to cause great bodily injury (count 1), and misdemeanor false imprisonment (count 2). The court placed defendant home on probation. Defendant says his statement to a sheriffs deputy should not have been admitted into evidence. He attacks a condition of probation and says the trial court erroneously calculated the maximum confinement time. We modify the judgment and, as modified, affirm.
Defendant (13 years old) and classmate Kyle chased down the victim, also a classmate. Kyle picked up the victim, carried him to the brick wall of a residential yard, set him down on top of the wall, and then pushed him into the yard. A dog confined to the yard attacked the victim, who (yelling for help) managed to fend it off and start climbing back over the wall. As the victim tried to get over the wall, he grabbed defendants shirt in order to get some leverage coming over the wall. A laughing defendant pushed the victim back into the yard. This time the dog bit the victim on the leg, drawing blood and leaving a scar. The victim managed to get over the wall without further injury.
A sheriffs deputy went to defendants school and interviewed him. Defendants grandmother was present. The deputy advised defendant of his Miranda rights, but never secured an express waiver thereof. Defendants version of the incident agreed with the victims, except that defendant said he pushed the victim back into the yard because the victim took a swing at him as he tried to climb over the wall.
Defendant testified at trial and gave the same version he had given the deputy.
DISCUSSION
I
Defendant says the statement given to the sheriffs deputy was inadmissible because he did not expressly waive his Miranda rights. We conclude that defendant was not in custody at the time, so Miranda did not apply.
In People v. Stansbury (1995) 9 Cal.4th 824, 889 P.2d 588, police investigating the kidnapping, rape and murder of a 10-year-old girl focused on two ice cream truck drivers. Police focused on one of the drivers as the prime suspect and the other, Stansbury, as a potential witness. Four officers went to Stansburys home at 11:00 p.m. and knocked. They told Stansbury they thought he was a possible witness "and asked if he would accompany them to the police station to answer some questions." (Id. at p. 828.) At the station, officers questioned Stansbury without advising him of any rights. Both the United States Supreme Court (Stansbury v. California (1994) 511 U.S. 318, 128 L. Ed. 2d 293, 114 S. Ct. 1526) and the California Supreme Court (People v. Stansbury, supra, 9 Cal.4th 824, 889 P.2d 588) found this did not constitute a custodial interrogation.
One difference between Stansbury and the instant matter is that our defendant was a suspect. However, "in analyzing the question whether a defendant is in custody for the purpose of determining if admonitions required by Miranda . . . should be given, the subjective impressions of police officers regarding the defendants custody status or status as a suspect are irrelevant unless they were communicated to the defendant. [Citation.]" (People v. Stansbury, supra, 9 Cal.4th at pp. 827-828.)
Inasmuch as they are supported by substantial evidence, we defer to the trial courts factual findings. (People v. Clair (1992) 2 Cal.4th 629, 678, 828 P.2d 705.) We independently review the trial courts implied legal conclusion that defendant was not in custody during any part of the interview. (Ibid.) Defendant was at school, during the day, sitting in the vice-principals office, unrestrained and with his grandmother at his side. The deputy had closed the door for privacy. Nothing indicated a custodial setting. No one, including someone of defendants tender age, would have considered himself in custody. If the Stansbury defendant was not in custody, neither was our defendant.
We agree with the trial court that there was no Miranda violation.
II
One of the conditions of probation was that defendant "stay away from places where users congregate." Defendant mounts a detailed constitutional attack on the condition, all boiling down to the lack of a knowledge requirement. Plainly, a defendant can be found in violation of probation only for a willful violation. The condition thus plainly contains a knowledge requirement. However, in order to leave no doubt, we will modify the condition to read that defendant is to "stay away from places where users are known by defendant to congregate."
III
The trial court set a maximum confinement term of 4 years, 4 months, presumably 4 years for the assault and one-third of the misdemeanor term (4 months) for the false imprisonment. Defendant says Penal Code section 654 precludes a consecutive sentence for the false imprisonment. Respondent says it does not matter, because defendant was placed home on probation, so the confinement calculation is not yet in play. While respondents position has merit, we will make the correction to foreclose any claim in the future, should defendant be removed from the home, that 4 years, 4 months is law of the case.
The assault and false imprisonment arose out of the one act by defendant of pushing the victim into the yard. This was a single course of conduct with a single mindset. Accordingly, defendant cannot be punished separately for the false imprisonment. We will modify the maximum confinement term to 4 years.
DISPOSITION
That part of probation condition 21 reading, "stay away from places where users congregate" is modified to read "stay away from places where users are known by
defendant to congregate." The maximum confinement time is modified to 4 years. As modified, the judgment is affirmed.
We concur: SPENCER, P.J. 7 MALLANO, J. --------------- Notes: Miranda v. Arizona (1966) 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.