Opinion
A130577 Solano County Super. Ct. No. J40106
11-30-2011
In re D.H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. D.H., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In the summer of 2009, 12-year-old D.H. allegedly placed his penis in or on his eight-year-old brother's buttocks while the two boys were watching television and wrestling at the younger boy's home late one night. The juvenile court acquitted the minor of sodomy, but found that he had committed a lewd act. The minor appeals from the court's orders adjudging him a ward of the court and placing him in his mother's custody under the supervision of the probation department. He argues that the orders must be reversed because there was insufficient evidence (1) to rebut the statutory presumption that he understood the wrongfulness of his conduct; and (2) to prove the requisite intent for a violation of Penal Code section 288, subdivision (a). He also argues that trial counsel was constitutionally ineffective for failing to object on various Miranda and involuntariness grounds to the admission of the minor's statement given during a police interview at his school. We affirm because we find substantial evidence supports the juvenile court's findings and the appellate record does not demonstrate ineffective assistance of counsel.
Miranda v. Arizona (1966) 384 U.S. 436.
By separate order we deny the minor's habeas corpus petition.
FACTUAL BACKGROUND
C.F. and D.H. are half-brothers, the sons of M.F. D.H. was born in April of 1997 to R.H., with whom the father M.F. had a brief relationship. Thereafter, M.F. had a relationship with and eventually married L.F., who had at one time been R.H.'s best friend. C.F. was born in September of 2000.
M.F. did not know of D.H.'s existence for at least the first four years of his son's life, and possibly longer. At some point, M.F.'s fatherhood was confirmed by a paternity test. The two boys began to see and play with each other, mainly on weekends. In the summer and fall of 2009, D.H. joined M.F.'s family on two vacation trips.
The Prosecution's Case
One summer night at approximately 11:30 p.m. in 2009, when C.F. was eight years old and D.H. was 12, and the two boys were watching television or playing video games in the front room of C.F.'s home in Benicia, D.H. "jumped on top of" C.F.'s back, or "just kind of fell onto [him] like a pancake, sort of like a wrestling move." C.F. was lying on the couch on his stomach. D.H. pushed C.F.'s head back with one hand on his forehead, and the other hand over his mouth. D.H.'s knees were on the couch. C.F. tried to dislodge D.H., but he could not move his legs out from under D.H.
C.F. also felt another of D.H.'s body parts (besides his hands) touching him, but he testified, "[I]'m not sure what it was. I just felt really weird" and not "normal." His pants were off, and he thought D.H. must have pulled them down before putting his hands over C.F.'s mouth and forehead.
C.F. surmised that he felt D.H.'s "thing[,]" "his penis" first on the outside and then on the inside of his "butt cheeks" for a couple of seconds. When asked how he knew it was a penis, C.F. replied, "I don't think that anything else could have happened besides that or anything else could have gone in but that." D.H.'s penis was hard, and D.H. was moving around. Although D.H.'s penis went inside C.F's anus for five to 10 seconds, he felt no pain at all. C.F. did feel wetness between his butt cheeks, but not in his anus.
On cross-examination, C.F. clarified that "a rectum is your butt hole and your anus is just your butt cheeks." He was then asked if the "anus is the butt hole we all have, and rectum is the cheek butt area, or is it inside the anus?" C.F. answered, "No, it's inside the anus."
Then D.H. "just stopped" and C.F. was so shocked "I just sat there." D.H. left the room. C.F. was awake for another two minutes and then he just fell asleep. When C.F. woke up, D.H. was gone and so were C.F.'s shoes and D.H.'s scooter. He woke up sort of wet, and the couch was wet.
C.F. did not see D.H. again until a family rafting trip several weeks later in which D.H. was included. C.F. was afraid that if he told on D.H. the trip would be cancelled. What happened that night had never happened before and never happened again. C.F. "sort of just forgot about it" until he watched a Law and Order show with his mother and "the show like brought it back to my mind." C.F. told his mother what happened after the show.
C.F. first heard the word "molest" when talking to Detective Criado. At the time of trial, C.F. was five feet, four inches tall and weighed about 125 pounds. In 2009, both boys were around five feet tall, and C.F. was probably a little heavier than D.H., but C.F. knew that D.H. was stronger than he was because he could not get D.H. off of him.
The Police Interview the Minor
On April 15, 2010, Benicia Police Detective Edward Criado interviewed C.F. at his home. On April 23, 2010, Detective Criado interviewed D.H. at his middle school in an administrative office. The interview lasted approximately 40 minutes. Criado informed D.H. of his Miranda rights before speaking to him. D.H. acknowledged understanding those rights. Criado then said he would like to talk to D.H. about some allegations that he had molested his brother.
Criado next went over with D.H. the police department's "Gladys R. questionnaire" which is "a series of questions you ask a juvenile to establish his knowledge of right from wrong and whether he has been taught right from wrong in the past." Specifically, he asked D.H. if he knew right from wrong, and if he could give the detective some examples of what would be right and what would be wrong. In response, D.H. answered that he did know right from wrong and "stated it would be wrong to molest your brother and doing drugs such as smoking weed or consuming alcohol." He also stated "it would be right not to molest a brother or do drugs" and it would be right to do homework. Detective Criado also asked D.H. if his parents had ever taught him right from wrong, if he is punished at home when he makes mistakes or does something wrong, and "what he had been taught about it being wrong to molest your brother and do drugs." D.H. said that his parents did teach him right from wrong, that he gets grounded, which means he stays home for two weeks at a time, for doing something wrong, and that he had been taught that doing drugs is damaging to his body, and that "he had been instructed that it is wrong [to molest someone] but it can happen."
In re Gladys R. (1970) 1 Cal.3d 855 Gladys R.).
Next, Detective Criado told D.H. that he was investigating a report that he had sexually molested his brother. D.H. became emotionally upset and said he did not do it. D.H. also said that "[C.F.] must be saying it because of some type of child support issue."
At one point, D.H. wanted to know if Criado was going to take him to jail, and Criado asked him why he was worried about jail. D.H. responded that he didn't want to get his brother in trouble, to which Criado replied that C.F. was not in trouble, but he "was potentially in trouble." To Criado, "[i]t was clear that [D.H.] couldn't leave, that we had business to take care of, but it was clear that he wasn't going to jail. I made it clear that we needed to discuss the truth so I could make that determination." At some point during the interview, Criado did tell D.H. he would be going to juvenile hall.
When asked if he wanted to tell the detective about something that may have occurred between him and his brother the previous summer, D.H. responded, "[C.F.] touched me. He touched my penis." In response to further questioning, D.H. said that C.F. "touched my penis, my ass, and my face." Because D.H. was "very upset throughout [the] interview," there were pauses to let him collect himself, but D.H. stated that C.F. did these things to him one evening when he was spending the night at C.F.'s house, that it was late at night while they were watching a Disney program on the television and C.F. said he wanted to watch some pornographic material on the internet. At this point, D.H. became upset and said he wanted to talk to his mom.
Criado "paused the interview and had the school resource officer contact the mom to have her respond so that she could be there for the interview." However, Criado told D.H. that his mother could not interfere in the investigation. D.H. seemed shocked by that.
When D.H.'s mother could not be reached, messages were left for her and Criado resumed the interview. By the time Criado came back, D.H. had calmed down, and Criado waited until D.H. gathered himself. Then Criado said, "[D.H.], let's start again. Tell me about how this happened in this incident." D.H.'s story began similarly, at the same location—the living room with two couches at C.F.'s house. D.H. recounted that he and his brother were wrestling and playing "cowboy," a game in which he would be the bull, because he was stronger, and C.F. would "ride" him, and he would try to "buck" C.F. off. While they were bucking, he accidentally touched C.F.'s groin. D.H. admitted that he had lied about watching pornography with C.F. and became emotionally upset again. Asked by Criado why he would lie about that, D.H. said "I'm just scared. People lie when they are scared."
On cross-examination, Detective Criado testified that D.H. "went back and forth on whether he was lying about that or not."
Criado "asked him if there was something that he wanted to tell me that he hadn't told me or that he's not telling me." According to Criado, D.H. replied that there was something, but "it was hard to say, and he didn't want to talk about it." Criado did not stop the interview at that point. In Criado's opinion, those statements "came out emotionally." Instead, Criado asked, "Because you are uncomfortable?" D.H. responded, "Yeah, I'm really uncomfortable."
D.H. said, "I touched him, and he touched me, and that's all that happened." D.H. added, on further questioning, "He touched my leg; I touched his leg. And that's all that happened." Then D.H. described a second incident, which he said occurred in the bushes outside C.F.'s home two or three weeks later, when he and C.F. were playing "army." While D.H. was being a wounded soldier and C.F. was attending to a wound on his leg, C.F. placed his hand over D.H.'s groin. D.H. told C.F. to stop and he did.
When Criado told D.H. that it was important to be truthful, D.H. said that in the first incident, C.F. touched his thigh over his clothes, and D.H. touched C.F.'s thigh over his clothes, and that was it. When Criado asked D.H. about the touching of his penis, his ass, and his face, D.H. "didn't want to talk anymore." After asking D.H. "why history was changing," Criado told D.H. what C.F. said had happened. D.H. responded, "You got nothing buddy. I love my brother, but not like that."
It was Criado's impression that the first incident described by D.H. was the same one described by C.F. because "[D.H.] described it occurred in the summer, approximately the same time period, and he did describe some details that I had not shared with him." D.H. also described the same room and said that after the leg-touching incident he decided to go home. "[I]nitially he called Mom to come pick him up, and then he left. And then it changed to he just left," taking C.F.'s shoes. It was also Criado's belief that D.H. seemed to understand what Criado was asking about when he spoke of "molesting your brother and sexual abuse," because D.H. said he knew right from wrong and, after Criado described what C.F. had reported, D.H. was upset and made the statement that he loved his brother but not like that. He also said he would never molest his brother "and that that's wrong."
Criado testified that at one point in the interview D.H. said he spent the rest of the night there and in the morning got up and went home, and at another point said, "No, I actually had my mom pick me up. I'm homesick. I don't like to be away from home."
The transcript of D.H.'s interview by Detective Criado was marked for identification and was used for impeachment, but was not admitted into evidence, as its salient points were presented through Detective Criado's testimony.
The Defense Case
The defense called the vice-principal of D.H.'s middle school and three family friends who had known D.H. all his life to testify as character witnesses that D.H. was not violent and had no abnormal sexual interests. One testified that D.H. was also an honest child. A clinical psychologist testified that based on his assessment of D.H., he was of the opinion that D.H. had no sexual deviance or propensity for violence. A wrestling coach (who did not know D.H. personally) testified that the objective of wrestling is to get your opponent on his back, and it would be pretty easy for a child weighing 114 to 118 pounds who was on the bottom to get away from a 94-pound child on top of him, if he were afraid. Conversely, it would be a big challenge for the child on top to hold down the child on the bottom for one minute because the boy on the bottom could roll away.
D.H. testified on his own behalf. At the time of trial he was 13. He first met his father at the age of six, and he had mixed emotions about meeting him. At the time of trial, he was very angry at his father. He knew that in mid-March of 2010, his dad and his dad's wife went to court with his mother and came out angry and cussed at his mother.
D.H. has ADHD and over the years has been prescribed several drugs. At the time of trial, he was taking five drugs concurrently for ADHD, anger, anxiety, suicidal thoughts and insomnia. But in the summer of 2009 he was only taking one drug, and that was for his ADHD.
D.H. denied all sexual touching and said he had no thoughts about his brother's body. He testified he had never watched pornography, and had never run up a phone or cable bill to watch pornography. He admitted that he lied to Detective Criado about C.F. going on the internet to view pornography sites. He also lied when he told Criado that he and his brother touched each other on different occasions, and that his brother grabbed his crotch and he grabbed his brother's crotch.
When Detective Criado talked to him, he did know the specific night the detective was talking about. It was a regular night, and he and his brother played video games and watched television. He came home because he was sick. He did not understand his rights when Criado interviewed him. He was scared and just wanted to go home; he told the detective he wanted his mom "numerous times." He had a feeling he was going to juvenile hall. D.H. admitted that he liked wrestling more and was better at it than C.F., and that he was stronger than C.F.
The boys' father, M.F., testified that in 2010 his child support payments were in arrears and as a result his personal and business accounts had been frozen and his driver's license had been suspended. In April of 2010, he contacted child support services several times, and at one point was so upset he told the case worker they were starving one child to feed another, and asked if they were trying to drive him to suicide. Also in mid-April, C.F. told his mother that D.H. had molested him. M.F. authorized the police to arrest D.H. at his middle school without talking to D.H.'s mother. He lied when he told Criado that a caseworker had told him about D.H.'s arrest. In fact, on the day D.H. was arrested, M.F. had four conversations with child support case workers regarding D.H.'s removal from his home and placement in custody. He told one worker that D.H. was "going away for a long time."
D.H.'s mother confirmed that one night in July of 2009 D.H. came home on his scooter at 1:00 a.m. She denied that D.H. had run up a phone or cable bill with pornography, or that she had ever told M.F.'s wife he did so. She testified that in March of 2010, there was a court hearing on M.F.'s motion for modification of child support. It was denied, and M.F. and his wife were very angry. She got a message at work that her son had been arrested. He had never been physically violent, and as of the date of her testimony, D.H. had not yet entered puberty. He had no pubic or underarm hair. The summer before, he had no sexual nature; he was "just a little boy."
Rebuttal
C.F.'s mother testified that D.H.'s mother told her D.H. had run up a bill of $123 for pornographic movies.
PROCEDURAL HISTORY
In April of 2010, a juvenile wardship petition under Welfare and Institutions Code section 602 (section 602) was filed in the Solano County Juvenile Court alleging that the minor, D.H., had committed forcible sodomy (count one) and a lewd act on C.F., a child under the age of 14 (count two), the previous summer. (Pen. Code, §§ 286, subd. (c)(2), 288, subd. (a).) Following a contested jurisdictional hearing, the court sustained the petition as to count two only. At the disposition hearing in October of 2010, the court adjudged the minor a ward of the court, placed him on probation with various terms and conditions, including 86 days in juvenile hall, and returned him to his mother's home. The minor timely appealed.
DISCUSSION
1. The Trial Court's Finding That The Minor Appreciated The Wrongfulness Of His Conduct At The Time Of Its Commission Is Supported By Substantial Evidence.
Penal Code section 26 provides in relevant part: "All persons are capable of committing crimes except those belonging to the following classes: One—Children under the age of 14, in the absence of clear proof that at the time of committing the act charged against them, they knew its wrongfulness." Thus, California law "rebuttably presumes all minors under the age of 14 incapable of committing a crime, but does not totally exclude any child from criminal responsibility. Section 26 embodies a venerable truth, which is no less true for its extreme age, that a young child cannot be held to the same standard of criminal responsibility as his more experienced elders. A juvenile court must therefore consider a child's age, experience, and understanding in determining whether he would be capable of committing conduct proscribed by section 602." (Gladys R., supra, 1 Cal.3d at pp. 863-864.) "Clear proof means that "for a section 602 petition to be sustained, the People must prove by clear and convincing evidence that the minor appreciated the wrongfulness of the charged conduct at the time it was committed." (In re Manuel L. (1994) 7 Cal.4th 229, 232.)
The minor contends there is insufficient evidence to prove clearly that, at the time of the offense, he appreciated the wrongfulness of the act. He argues that he had just turned 12, and was years away from puberty. He points out that a minor's knowledge of wrongfulness may not be inferred from the commission of the act itself, although he acknowledges that the circumstances surrounding the crime, such as preparation, method of commission, and concealment, may be considered. (In re Tony C. (1978) 21 Cal.3d 888, 900.) Here, he argues, "[t]here was no evidence of preparation for the offense, deliberate secreting, concealment, threats, or continued efforts after a negative reaction," and he discounts his statements to Detective Criado because they were made eight or nine months after the incident at issue.
In considering a sufficiency of the evidence claim in juvenile delinquency proceedings, this court applies the same standard of review that is applicable in criminal cases. (In re Roderick P. (1972) 7 Cal.3d 801, 808-809.) Thus, this "court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence. (In re James D. (1981) 116 Cal.App.3d 810, 813.) The same principles are applicable to a review on appeal of the sufficiency of the evidence to support the subsidiary, but necessary finding in a juvenile proceeding, by clear and convincing proof, that the minor appreciated the wrongfulness of his conduct at the time of its commission. (In re Paul C. (1990) 221 Cal.App.3d 43, 52 (Paul C.); In re James B. (2003) 109 Cal.App.4th 862, 872 (James B.).)
"A person under age 14 is not conclusively presumed incapable of committing a violation of Penal Code section 288. It is not all that unusual for mature children age 13 or younger sexually to molest children even younger than they knowing it is wrong to do so." (People ex rel. Eichenberger v. Stockton Pregnancy Control Medical Clinic, Inc. (1988) 203 Cal.App.3d 225, 248 (conc. opn. of Puglia, P.J.).) Applying the substantial evidence rule, we are satisfied that the record as a whole, including rational inferences drawn from the testimony, supports the juvenile court's implied finding that the minor appreciated the wrongfulness of his conduct at the time of its commission. First, the minor was 12 years and a few months old at the time, not five, or seven, or nine years old. "Generally, the older a child gets and the closer he approaches the age of 14, the more likely it is that he appreciates the wrongfulness of his acts." (James B., supra, 109 Cal.App.4th at pp. 872-873.) The trier of fact was entitled to infer that at his age, the minor was well along in his development of the moral sensibility that the law presumes is in place by the age of 14.
Second, the circumstances surrounding the incident suggest that the minor appreciated the wrongfulness of his conduct at the time. For example, there was evidence of some preparation. C.F. testified that D.H. went to the bathroom and emerged wearing either underwear or gym shorts and a T-shirt, prompting C.F. to ask D.H. what he was doing. There is also some evidence of secrecy, if not concealment, in that the incident occurred late at night, when the two boys were alone in the front room, after C.F.'s parents had gone to sleep. The minor then jumped on his brother, taking him by surprise, placed his hands over C.F.'s mouth and on his forehead, and immobilized C.F.'s legs, suggesting that he did not want his brother to make any sound or movement that might awaken his parents.
Finally, a minor's statements are also relevant to his appreciation of the wrongfulness of his actions. For example, in James B., supra, 109 Cal.App.4th 862, the appellate court considered the minor's statement to the police and his answers to the officer's Gladys R. questions, and concluded that they indicated that the minor possessed the requisite knowledge. (James B., supra, at p. 873.) In In re Richard T. (1985) 175 Cal.App.3d 248 (disapproved on another ground in In re Manuel L., supra, 7 Cal.4th 229, 239, fn. 5), the Court of Appeal found that the minor's attempt to shift blame was indicative of his awareness of the wrongfulness of stealing and breaking into cars. (Richard T., supra, at p. 254.)
Although the minor's statement to Detective Criado was made eight or nine months after the incident, the minor admitted at trial that when Criado talked to him, he did know the specific night that he was talking about. And, although he testified that it was a "regular" night of playing video games and watching television, and that he came home because he was sick, a rational trier of fact could have rejected that explanation and inferred instead that D.H. remembered that specific night because it was not a normal night, and he left because he did not want to be there in the morning when C.F. might decide to tell his parents what had happened. The entire tenor of D.H.'s ostensibly exculpatory statement, as described by Detective Criado, with its shifting blame and invented scenarios in which the younger brother initiated sexual contact and wanted to watch pornography, and both boys engaged in tentative touching of each other, strongly supported the inference that the minor came to the interview already burdened with a consciousness of guilt about the incident that had occurred the previous summer.
There was conflicting evidence on several points, and no one piece of evidence conclusively established the minor's moral aptitude. For example, there was evidence that the minor often called his mother to pick him up from sleepovers because he became homesick, although the minor's mother confirmed that, on this particular night, the minor rode home on his scooter at 1:00 a.m. And, while his mother testified that the minor had not reached puberty and had no sexual interest or curiosity, there was also evidence that he was very interested in pornography, and that he molested C.F. with an erect penis. It was the trier of fact's duty to make credibility determinations and resolve the conflicts in the evidence. It is our task to review the whole record in the light most favorable to the judgment below. Viewed from that perspective, we conclude that the record, taken as a whole, supplies substantial evidence found credible by the trial court to support the implied finding that the minor appreciated the wrongfulness of his act at the time of its commission.
2. Substantial Evidence Also Supports The Trial Court's Express Finding That The Minor Acted With The Requisite Intent.
The minor also contends that there is insufficient evidence to prove that he acted with the intent to arouse sexual desires, an essential element of Penal Code section 288, subdivision (a). In acquitting the minor of sodomy, but finding him guilty beyond a reasonable doubt of committing a lewd act on his brother, the juvenile court specifically stated: "I believe it was an actual act of [D.H.] engaged in sexualized behavior with his brother with an intention to gratify his own sexualized needs on that occasion, again as evidenced by his efforts to deflect that behavior to his brother." In our view, that finding is supported by substantial evidence, for many of the same reasons discussed above.
Comparing his own case to that of In re Jerry M. (1997) 59 Cal.App.4th 289 (Jerry M.), the minor argues strenuously that "there was no evidence that [he] had reached puberty. All the evidence was to the contrary. . . . There was no evidence of sexual arousal or even that [he] was capable of sexual arousal." He dismisses C.F.'s testimony that his penis was hard as "quite speculative," and baldly asserts without evidentiary support that "an erection can happen even before birth—it is simply the result of blood flow."
Jerry M. does not assist the minor. In that case, the appellate court observed: "[T]he younger the minor the less likely his acts are with the specific intent of sexual arousal. At some age younger than 14 years, which we need not determine in this case, the minor cannot as a matter of law have the specific intent of sexual arousal." (Jerry M., supra, 59 Cal.App.4th at p. 300.) Viewing the evidence before it in light of the circumstances found probative of intent in prior cases, the Jerry M. court concluded there was insufficient evidence of the minor's specific intent sexually to arouse himself because, among other reasons, the minor was 11 years old, there was no evidence that he had reached puberty and no evidence of sexual arousal. (Ibid.)Here, by contrast, the minor's age (12 years and a few months), C.F.'s testimony, which the trial court credited, about the nature of the act, D.H.'s movements, erection, and excretions, along with other evidence showing D.H.'s interest in pornography, together provide sufficient circumstantial evidence of D.H.'s sexual intent. (Paul C., supra, 221 Cal.App.3d at p. 54 [13-year-old minor's erection, alone, provided substantial evidence of his lewd intent].)
3. The Minor Has Not Demonstrated That Trial Counsel Rendered Ineffective Assistance By Failing To Challenge The Admissibility Of His Statements To Police.
The minor argues that counsel was constitutionally ineffective for failing to move for suppression of his statement to Detective Criado on Miranda and involuntariness grounds. Because we find on the present record that: (1) even if the minor was in custody, he was adequately Mirandized; (2) his request to call his mother was not an unambiguous invocation of his right to silence or an attorney; (3) he did not otherwise unambiguously invoke his right to silence; (4) his implied waiver of rights was both intelligent and voluntary; (5) his statements were voluntary, and (6) the record is silent as to counsel's tactical considerations, we reject the claim that counsel rendered constitutionally defective assistance by failing to challenge the admissibility of the minor's statement to Detective Criado. Before turning to our analysis of the merits of the minor's claim, we set forth the governing principles of law. The Standard For Ineffective Assistance of Counsel
Under state law, "[a] defendant seeking relief on the basis of ineffective assistance of counsel must show both that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates, and that it is reasonably probable a more favorable determination would have resulted in the absence of counsel's failings." (People v. Price (1991) 1 Cal.4th 324, 440; People v. Anderson (2001) 25 Cal.4th 543, 569.) The rule is the same under federal law. "To establish ineffective assistance of counsel 'a defendant must show both deficient performance by counsel and prejudice.' Knowles v. Mirzayance, 556 U.S. 111, ___, 129 S.Ct. 1411, [1419], 173 L.Ed.2d 251, 255 (2009) [Knowles]." (Premo v. Moore (2011) ___ U.S. ___; 131 S.Ct. 733, 739 (Premo).)In this context, " 'trial counsel's tactical decisions are accorded substantial deference [citations] ___' " (People v. Riel (2000) 22 Cal.4th 1153, 1185.) " '[A] reviewing court will not second-guess trial counsel's reasonable tactical decisions.' " (Ibid.; Strickland v. Washington (1984) 466 U.S. 668, 689 (Strickland) ["Judicial scrutiny of counsel's performance must be highly deferential."] ["[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable . . . ."] Strickland, supra, at p. 690.)
(a) Custody
In his reply brief only, the minor argues that he was in custody for Miranda purposes. Even if we assume for the sake of argument that an interview of a minor in an administrator's office at his or her middle school qualifies as a custodial interrogation for
Miranda purposes (see J.D.B. v. North Carolina (2011) ___ U.S. ___ 2011 U.S. Lexis 4557), at most, such a finding would mean that the minor was entitled to a Miranda warning. In this case, the minor was given a Miranda warning. Thus, whether or not the minor was in custody, this ground could not give rise to a duty to bring a suppression motion.
(b) Form of Miranda Warnings
Before questioning the minor, Detective Criado recited the Miranda warnings, as follows: "So you have the right to remain silent. Anything you say may be used against you in court. You have the right to a lawyer and to have a lawyer present both before and during any questioning. If you cannot afford to hire a lawyer, one will be provided to you free of charge if you wish to have one. Do you understand these rights?" The minor responded, "Yes, I do."
The minor claims that the warning was defective because Detective Criado used the word "may" instead of the words "can and will." We disagree. In Miranda itself, the United States Supreme Court held: "Prior to any questioning, the person must be warned that . . . any statement he does make may be used as evidence against him . . . ." (Miranda, supra, 384 U.S. at p. 444, italics added. See also Duckworth v. Eagan (1989) 492 U.S. 195, 201-202.) We discern no defect in Detective Criado's warnings; nor do we perceive how they would be misleading. In our view, the phrases "may be used" and "can and will be used" both convey the essential meaning of the Miranda warning.
(c) Invocation Of Rights: Asking For Mother
During the interview, after going through D.H.'s first version of the incident, Detective Criado asked the minor: "Okay, so then explain to me what happened next." The minor responded: "Well, we were watching iCarly and he said let's go on the internet and look at, you know, porn. And I was like okay cause I didn't. I don't like looking at that stuff. I, I honestly don't and he was going to this website. I'm not sure the name of it but I guess he got all happy or something. I don't know. (Crying) I hate talking about this, sir, I'm sorry. God. (Crying) God, I just wish my mom was here." At that point, Criado told the minor, "I can contact your mom." Then the following exchange occurred:
[D.H.]: "Okay.
[Criado]: "Okay.
[D.H.]: "I'd rather have my mom here.
[Criado]: "Okay, I can let her know what's going on but she can't really interfere with our, with our uh, with my initial investigation.
[D.H.]: "She can't?
[Criado]: "No, I have to talk to you."
Criado then left the room, presumably to call D.H.'s mother. When Criado returned, he told D.H. that he had told another officer to "call your mom and let her know that we're talking, okay. . . . [¶] Um, so she, you know, I don't know if she'll come here from work, but uh she's aware, okay, she'll be aware. . . ."
While Criado was gone, and D.H. was alone in the room, the minor said aloud to himself: "You never said that I did that because you did that to me. I don't know why you would do that to me. I have no clue, [C.], why you did that to me. Touched me on the penis. You grabbed my balls. You made me grab your penis. God, you grabbed me on the ass. (Unintelligible.) You bastard. Why, why did I have to have such a horrible brother. Why, God? Why? Why?"
The minor argues: "By asking to have his mom present, [D.H.] was invoking his right to silence and to the assistance of counsel." He posits that Criado should have ceased questioning until he had spoken with his mother. He also argues that Criado misled D.H. when he informed the minor, incorrectly and in effect, that "his mother would not be able to do anything for him," that his only right was to have her notified, and that his mother was both aware, and not aware, of his situation. We view matters differently.
Asking for a parent is no longer a constitutionally recognized invocation of the right to silence or an attorney in California. (People v. Lessie (2010) 47 Cal.4th 1152, 1167-1168, overruling People v. Burton (1971) 6 Cal.3d 375. See also Fare v. Michael C. (1979) 442 U.S. 707 [juvenile's request for his probation officer is not a per se invocation of his Fifth Amendment rights under Miranda, overruling In re Michael C. (1978) 21 Cal.3d 471].) Moreover, Miranda vests in the suspect—not in his or her attorney, or parent—the right to terminate questioning. "Miranda . . . [gave] the defendant the power to exert some control over the course of the interrogation. Declining to adopt the more extreme position that the actual presence of a lawyer was necessary to dispel the coercion inherent in custodial interrogation, . . . the Court found that the suspect's Fifth Amendment rights could be adequately protected by less intrusive means. Police questioning, often an essential part of the investigatory process, could continue in its traditional form, the Court held, but only if the suspect clearly understood that, at any time, he could bring the proceeding to a halt or, short of that, call in an attorney to give advice and monitor the conduct of his interrogators'" (Moran v. Burbine (1986) 475 U.S. 412, 426-427 (Moran), italics added.) Under Moran, Detective Criado's statement that D.H.'s mother could not interfere with the investigation was correct. Criado's later statement that D.H.'s mother was aware, or would be made aware, of his situation was not misleading, when it was clear that the detective had given orders that she be called, but he obviously did not know whether she had been reached.
Subsequent Invocations: "I Don't Want To Talk."
The minor also argues that later in the interview he expressly invoked his right to silence several times by saying he did not want to talk. "Whether defendant invoked his rights under Miranda is a question of fact to be resolved on the basis of the totality of the circumstances. [Citations.] Defendant contends his . . . 'I don't want to talk about it' statements must be treated as invocations of his Miranda rights. [¶] But invocations cannot be equivocal or ambiguous. (People v. Vance (2010) 188 Cal.App.4th 1182, 1211, citing Berghuis v. Thompkins (2010) 560 U.S. ___, [130 S.Ct. 2250, 2259-2260].)
Viewed in the context of the totality of the circumstances (including the minor's age, inexperience, and ADHD diagnosis), competent counsel could well have concluded that the minor's statements that he "didn't want to talk about it" were not unambiguous and unequivocal invocations of the right to silence. D.H. made these statements after he had already made several implied admissions by shifting the blame for sexualized conduct to his younger sibling and acknowledging that he had lied about his brother wanting to watch pornography on the internet. D.H. had just finished telling Criado that on the night in question, he and C.F. had been playing cowboys. He had been playing the bucking bull because he was the one who was pretty strong, and C.F. had "smacked [his] ass." D.H. said "stop" and they went to bed. Two weeks later, while C.F. was playing medic to D.H.'s soldier with a wounded leg in the bushes outside his house, C.F. had touched D.H.'s crotch. After Detective Criado emphasized the importance of telling the truth, the following exchange occurred:
[Criado]: "The facts I already know are different than what you're telling me. Okay? [D.H.]: "Okay.
[Criado]: "And I understand this is not easy to talk about and you may not—
[D.H.]: "(Unintelligible.)
[Criado]: "[A]nd it may not be something you want, you want to discuss or admit—
[D.H.]: "I don't want to. I don't want to talk about this stuff.
[Criado]: "But I'm not judging you.
[D.H.]: "I mean I feel like you are.
[Criado]: "No, I've heard a lot less, a lot worse and I understand this is something that's hard to talk about, but we need to talk about it and get it out in the open so we can deal with it. Okay? And this is your opportunity to be honest and get it out.
[D.H.]: "Okay."
At this point, D.H. said C.F. grabbed his crotch and he grabbed C.F.'s crotch; that that was all that happened, and he hit C.F.'s crotch accidentally. He went on to talk about how he went home with C.F.'s shoes. Then, the following exchange occurred:
[Criado]: "So what are we leaving out of this story, [D.H.]?
[D.H.]: "I'm not leaving out a lot. I don't remember a lot of it, okay.
[Criado]: "So is there some things that happened that you don't feel comfortable talking about?
[D.H.] "No. Some of it is, but not a lot.
[Criado]: "Okay. Something else happened. I believe something else happened.
[D.H.]: "It did, but I just don't want to talk about it, okay. I don't.
[Criado]: "Cause you're uncomfortable?
[D.H.]: "Yes, I'm really uncomfortable.
[Criado]: "Okay. I understand that.
[D.H.]: "All I wanted to do is go to lunch.
[Criado]: "Yeah, well lunch is not something we're going to do right now. If you get hungry later, we can get you food, okay.
[D.H.]: "How long is this going to take?
[Criado]: "Well, until we get the truth.
[D.H.]: "Dude.
[Criado]: "Or I believe you don't want to talk, that we're not going to get to the truth cause you don't want to talk about it and then we'll go to the next step, okay. But I'm not going to disappear and go home.
[D.H.] "I just want to go home. (Crying) Yesterday was a fight and now today's a (unintelligible)."
After further questioning and denials that anything more happened, Criado told D.H. that according to C.F., D.H. held him face down on the couch, covered his mouth, and put his penis inside C.F.'s rectum. D.H. denied it and said C.F. was saying this happened because of the fight between his parents and D.H.'s mother over child support. Crying, he said he would never do that to his brother. "You can even ask my mother." After more questions about viewing pornography, D.H. again said he wanted to go home.
Shortly thereafter, Detective Criado arrested D.H. and re-read him the Miranda warnings. D.H. again said he understood those rights. Criado then asked him if he wanted "to continue to talk about this." D.H. said, "No." Criado informed him that he was taking him to the police department and then to juvenile hall. D.H. protested, "Dude, I didn't even do this shit." Crying, he said, " I just want to talk to my mom for the last time, okay?" Criado informed him he would get a chance to see his mom again; he was not going to jail forever "right now." D.H. continued to banter back and forth with Criado. Finally, Criado asked, "You wanna, are you saying you want to keep talking or not? D.H. replied, "No" and the questioning ended.
" 'A defendant has not invoked his or her right to silence when the defendant's statements were merely expressions of passing frustration or animosity toward the officers, or amounted only to a refusal to discuss a particular subject covered by the questioning.' " (People v. Williams (2010) 49 Cal.4th 405, 433 (Williams).In Williams, our Supreme Court viewed the defendant's statement "I don't want to talk about it" as "an expression of defendant's frustration with [the officer's] failure to accept defendant's repeated insistence that he was not acquainted with the victim as proof that he had not encountered her on the night of the crime, rather than an unambiguous invocation of the right to remain silent." (Id. at p. 434.) Similarly, in this case, the minor's statements that he did not want to talk were made after Detective Criado indicated by his questions and express statements that he did not believe the minor's various versions in which C.F. initiated the touching or nothing happened. As such, the minor's statements in context can also be interpreted as mere expressions of frustration at the detective's disbelief.
Furthermore, we note that in both instances where the minor said he did not want to talk, he was echoing Criado's suggestions that the subject was one about which the minor might not want to talk or might feel uncomfortable. "In certain situations, words that would be plain if taken literally actually may be equivocal under an objective standard, in the sense that in context it would not be clear to the reasonable listener what the defendant intends. In those instances, the protective purpose of the Miranda rule is not impaired if the authorities are permitted to pose a limited number of followup questions to render more apparent the true intent of the defendant." (Williams, supra, 49 Cal.4th at p. 429, original italics.) In our view, Detective Criado's followup questions were both limited and permissible under Williams.
(d) Implied Waiver
The minor also argues that his implied waiver of rights was both involuntary and unknowing. (Berghuis v. Thompkins, supra, 130 S.Ct. at pp. 2260-2261.) Although the burden is on the prosecution to prove by a preponderance of the evidence that the defendant's Miranda waiver was voluntary and intelligent (People v. Dykes (2009) 46 Cal.4th 731, 751), "[t]he prosecution . . . does not need to show that a waiver of Miranda rights was express. . . . [A] waiver of Miranda rights may be implied through 'the defendant's silence, coupled with an understanding of his rights and a course of conduct indicating waiver.' [Citation.] Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused's uncoerced statement establishes an implied waiver of the right to remain silent." (Berghuis v. Thompkins, supra, 130 S.Ct. at pp. 2261-2262.) In our view, the record in this case demonstrates a voluntary and intelligent Miranda waiver by the minor.
(e) Involuntariness of Statement
Finally, the minor argues that counsel should have challenged his statement to Detective Criado as involuntary, based on his age, ADHD, and fearfulness, and Criado's trickery and intimidation. "A statement is involuntary . . . when, among other circumstances, it 'was " 'extracted by any sort of threats . . . , [or] obtained by any direct or implied promises, however slight . . . .' " ' [Citations.] Voluntariness does not turn on any one fact, no matter how apparently significant, but rather on the 'totality of [the] circumstances.' [Citations.]" (People v. Neal (2003) 31 Cal.4th 63, 79.) Our review of the record reveals no basis for a challenge to the minor's statement on voluntariness grounds, including any asserted violation of Welfare and Institutions Code section 627, subdivision (b).
Welfare and Institutions Code section 627 provides in relevant part:
"(b) Immediately after being taken to a place of confinement pursuant to this article and, except where physically impossible, no later than one hour after he has been taken into custody, the minor shall be advised and has the right to make at least two telephone calls from the place where he is being held, one call completed to his parent or guardian, a responsible relative, or his employer, and another call completed to an attorney. The calls shall be at public expense, if the calls are completed to telephone numbers within the local calling area, and in the presence of a public officer or employee. . . ." (Italics added.) The minor's interview lasted 40 minutes.
(f) Tactical Considerations
The minor argues "there was no conceivable basis" for counsel's failure to move for exclusion of his statement to Detective Criado. We disagree. We have carefully reviewed the record for the purpose of discerning whether competent counsel could have decided not to make the arguments that appellate counsel, with hindsight, deems arguable and/or meritorious. However, the United States Supreme Court has recently re-emphasized that deference is to be accorded counsel's tactical decisions under Strickland. " ' "Surmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 559 U.S. ___, ___ [130 S.Ct. 1473, 1485, 176 L.Ed.2d 284, 297] (2010) . . . . [T]he Strickland standard must be applied with scrupulous care, lest "intrusive post-trial inquiry" threaten the integrity of the very adversary process the right to counsel is meant to serve. Strickland, 466 U.S., at [689-690]. Even under de novo review, the standard for judging counsel's representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge. It is "all too tempting" to "second-guess counsel's assistance after conviction or adverse sentence." [Citations.] The question is whether an attorney's representation amounted to incompetence under "prevailing professional norms," not whether it deviated from best practices or most common custom. Strickland, 466 U.S., at [690].' " (Premo, supra, ___ U.S. ___;131 S.Ct. at pp. 739-740.) "The Strickland standard is a general one, so the range of reasonable applications is substantial." (Premo, supra, at p. 740.)
Our own Supreme Court expressed that same view over 15 years ago in People v. Lucas (1995) 12 Cal.4th 415, when it observed, with respect to an appellate claim that counsel was ineffective for failing to challenge the defendant's statement to the police as involuntary: "The record is silent as to counsel's reasons for failing to challenge the statements. . . . Reviewing courts reverse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no rational tactical purpose for counsel's omissions. [Citation.] Here, the record does not demonstrate there could be no rational tactical reason for the omission. Counsel may have concluded there was little or no basis for the claim . . . . [A]n attorney naturally must assess his or her client's account of the interrogation in order to determine the plausibility of a claim that statements were involuntarily obtained. Counsel here may have concluded their client's account would not support such a claim in this instance." (Id. at p. 442.)
Here, too, the record is silent as to counsel's actual reasons for failing to challenge the admissibility of the minor's statements on various grounds. However, we discern several rational tactical considerations, besides lack of merit, to explain why counsel might have chosen not to raise any issue at all: (1) the minor had already made damaging admissions before asking for his mother or saying he did not want to talk; (2) even if the statement were ruled inadmissible on Miranda grounds, some parts of it would in all likelihood be admitted to impeach some parts of his testimony (Harris v. New York (1971) 401 U.S. 222, 224); and, perhaps most importantly, (3) if heard or read in its entirety by the juvenile court in connection with a motion to suppress, that court might have been less inclined to credit the minor's witnesses who impliedly vouched for his credibility, good character, and lack of sophistication. The Strickland standard is not satisfied by a "finding that counsel is deficient by declining to pursue a strategy where there is nothing to lose from pursuit of that strategy." (Knowles, supra, 129 S.Ct at p. 1419, fn. 3.) For all of the reasons discussed above, we conclude that the minor has not demonstrated ineffective assistance of counsel.
The statement in its entirety was not admitted into evidence, and Detective Criado's testimony presented an abbreviated summary of the interview.
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CONCLUSION
Substantial evidence supports the trial court's implied finding that the minor understood the wrongfulness of his conduct at the time of its commission. Substantial evidence also supports the trial court's express finding that the minor acted with the intent to arouse sexual desire. The appellate record does not demonstrate that counsel rendered constitutionally ineffective assistance by failing to challenge the admissibility of the minor's statement to Detective Criado on various Miranda, involuntariness and statutory grounds.
DISPOSITION
The juvenile court's orders are affirmed.
Marchiano, P.J. We concur: Margulies, J. Banke, J.