Opinion
A151053
05-07-2018
In re J.K., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.K., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. JV26373A)
I.
INTRODUCTION
J.K. appeals from an order declaring her a ward of the court. (Welf. & Inst. Code, § 602.) J.K. was charged with misdemeanor vandalism (Pen. Code, § 594, subd. (b)(1)), for punching a hole in her bedroom wall. She contends the juvenile court failed to properly consider her motion to suppress her statement under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). She further argues her counsel was ineffective for failing to argue her statement was involuntary. Finally, she argues the probation condition prohibiting her from using non-prescription or illegal drugs is unconstitutionally vague. We modify the probation condition, but otherwise affirm the disposition order.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural Background
On November 7, 2016, the Marin County District Attorney filed a wardship petition charging then 14-year-old J.K. with misdemeanor vandalism. The court held a contested jurisdictional hearing on March 7, 2017 and found the allegation to be true. The court declared J.K. a ward of the court and placed her on probation with out of home placement.
B. Factual Background
On November 4, 2016, the Novato Police Department received a call about an "out-of-control" juvenile who was destroying property at her home. Officer Megan Hayashi arrived at the home and met with J.K.'s mother who took her to J.K.'s bedroom to show her damage to the wall. J.K. had been arguing with her mother and her mother's boyfriend. Officer Hayashi spoke to J.K. and attempted to calm her. When Officer Hayashi asked J.K. what had happened, J.K. admitted punching the wall. After J.K. calmed down, Officer Hayashi left the home but was called back because J.K. was arguing again. J.K. was taken into custody and she required medical attention because she had broken her right hand punching the wall.
C. Jurisdictional Hearing
Prior to the contested hearing, defense counsel filed a trial brief arguing the court should exclude J.K.'s statement to the police because it was obtained in violation of Miranda. Defense counsel requested the court hold a hearing pursuant to Evidence Code section 402 regarding the admissibility of the statement. J.K. argued one officer's body camera showed that the officers were blocking the doorway to J.K.'s room while they talked to her. After the officer stated: "What's going on? You did this to the wall?" J.K. admitted punching the wall. J.K. argued she was in custody when she was questioned and she was not advised of her Miranda rights.
The court held a hearing on the petition. Defense counsel requested an Evidence Code section 402 hearing about the admission of J.K.'s statement. The court admonished counsel that it would have been helpful if counsel had filed a motion requesting a hearing. The court denied the request for a hearing because counsel had failed to articulate sufficient grounds for a hearing.
Officer Hayashi testified she responded to a call about an "out-of-control juvenile." When Officer Hayashi arrived, J.K.'s mother told her that her daughter had punched a hole in her bedroom wall, was out of control, and they did not know what else to do.
Officer Hayashi went to J.K.'s room and J.K. was sitting on her bed crying. Officer Hayashi saw a large hole in the drywall, down to the studs. Officer Hayashi asked J.K. to tell her what happened to the room and how the hole got there. When the prosecutor asked what J.K. responded, defense counsel objected based on Miranda. The prosecutor asked Officer Hayashi if she was planning to take J.K. into custody and she responded: "Absolutely not." Officer Hayashi said she was speaking calmly to J.K. because J.K. was crying and she wanted J.K. to feel comfortable answering questions.
The prosecutor argued that there was no Miranda violation because J.K. was not in custody. She was in her own home and the officer was trying to obtain information, not arrest her. Defense counsel argued J.K. was in custody because there were two officers in the room and they blocked her egress. The officers were there to take J.K. into custody. The court overruled counsel's objection based on Miranda.
Officer Hayashi then testified that J.K. said she was upset with her mother and her mother's boyfriend. She said her parents did not trust her, thought she was using drugs, and she was not supposed to have contact with her mother's boyfriend. She stated she punched a hole in the wall because she was upset.
At the first visit, Officer Hayashi advised J.K. that if she could not calm down and the police had to come back, she would have to take her to juvenile hall. When Officer Hayashi was called back a second time, she arrested J.K.
At the conclusion of the hearing, the court summarized the facts presented: the officer went to the room, saw J.K. in a state of distress and J.K. admitted she punched a hole in the wall. The court found no violation of Miranda and no basis to exclude J.K.'s statement. The court found the allegation true.
The court ordered an indefinite term of probation with J.K. to attend the Lava Heights Academy in Toquerville, Utah, a boarding school and residential treatment program for a period of eight to eighteen months. As a condition of probation, the court ordered: "You're not to use, possess, consume alcohol or any illegal or nonprescription drugs." The written condition stated: "Not use, possess, consume and/or transport any non prescribed or illegal drugs and/or paraphernalia[.]"
III.
DISCUSSION
A. The Juvenile Court Adequately Evaluated the Admissibility of J.K.'s Statement and Properly Found There Was No Miranda Violation
We review a trial court's decision to admit evidence, whether made in limine or following a hearing pursuant to Evidence Code section 402, for an abuse of discretion. (People v. Williams (1997) 16 Cal.4th 153, 197 (Williams).)
All subsequent references are to the Evidence Code unless otherwise identified.
J.K. argues the juvenile court should have conducted a hearing under section 402 regarding the admissibility of her statement to Officer Hayashi. She argues the failure to conduct such a hearing deprived her of due process.
The purpose of a section 402 hearing is to determine the admissibility of a confession outside the presence of the jury. (§ 402, subd. (b).) Here, the court was the trier of fact and there was no need for a separate hearing. The trial court has broad discretion on whether and how to decide admissibility questions. (Williams, supra, 16 Cal.4th at p. 196.)
J.K. has failed to cite any authority that the court was required to hold a separate section 402 hearing in this case. J.K. is correct that the court initially denied her request because counsel had failed to articulate sufficient grounds for a hearing. The court, instead, allowed defense counsel to voir dire the officer about J.K.'s statement during the officer's testimony. Based on the officer's description of the circumstances of the statement, the prosecutor argued there was no Miranda violation. Defense counsel argued J.K. was in custody and did not feel free to leave her bedroom. The court ruled there was no violation of Miranda and admitted the statement. At the conclusion of the hearing, the court again stated its finding that no violation of Miranda occurred and there was no basis to exclude J.K.'s statement.
Although the court did not formally conduct a separate hearing under section 402, the court did carefully evaluate the admissibility of J.K.'s statement and determine it was properly admitted.
J.K. relies on In re Juma P. (1988) 204 Cal.App.3d 1228, where Division Two of this court remanded for the juvenile court to determine if a minor's confession was voluntary. Juma was transported to the police station for questioning. (Id. at p. 1231.) Prior to the interrogation, the officer read Juma his Miranda rights and Juma admitted to committing three burglaries. (Ibid.) Juma's aunt testified that the officer told her Juma would not be in trouble if he made a statement and returned the stolen items. (Id. at p. 1232.) Defense counsel requested to voir dire the officer but failed to file a suppression motion before the court. (Id. at p. 1233.) The court admitted Juma's statement. (Ibid.)
A confession elicited by promises of leniency is involuntary and inadmissible. (In re Juma P., supra, 204 Cal.App.3d at p. 1234.) Division Two concluded the defense counsel adequately raised the issue of voluntariness and the court should have ruled on whether the statement was voluntary. (Id. at p. 1235.)
In re Juma P. is distinguishable from the present case because the Juma P. court failed to consider the issue of voluntariness, whereas here, the court did evaluate the issue of the admissibility of J.K.'s statement and make a finding.
J.K. next argues that the court erred in admitting the statement because she was in custody for purposes of Miranda. Miranda applies only to "custodial interrogation," which is questioning initiated by law enforcement officers after " ' " 'a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.' " ' [Citation.]" (People v. Ochoa (1998) 19 Cal.4th 353, 401.) Miranda is not involved if a "custodial interrogation" is lacking. (Ibid.) The test for whether an individual is in custody is objective, i.e., " '[was] there a "formal arrest or restraint on freedom of movement" of the degree associated with a formal arrest.' [Citation.]" (Thompson v. Keohane (1995) 516 U.S. 99, 112.)
J.K. was questioned in her own home and was never restrained or placed under arrest at the time her statement was made. Even accepting J.K.'s contention that the officers blocked the bedroom door, this does not transform the questioning in J.K.'s home, with her mother in the house, to custodial interrogation.
J.K. was not arrested until officers had to return to her home a second time that evening.
The case is analogous to In re Joseph R. (1998) 65 Cal.App.4th 954, where the court held a 14-year-old was not in custody for purposes of Miranda. A police officer was investigating two boys who were seen throwing rocks at a bus. (Id. at p. 956.) The officer spoke to the boys on the front porch and told them "they did not have to talk to him, but he wanted to ask a few questions." (Id. a p 957.) The officer told Joseph R. a witness had seen him throw a rock at a bus. (Ibid.) Joseph R. responded, "he had no idea what he was talking about." (Ibid.) The officer placed Joseph R. in handcuffs in the back of the patrol car for about five minutes. (Ibid.) When the officer returned, he took Joseph R. out of the car, removed the handcuffs, and began asking questions. (Ibid.) The officer said it was " 'a pretty stupid thing' to throw rocks at a bus," and Joseph R. responded " 'Yeah, it was a pretty dumb thing for us to do.' " (Ibid.) The court admitted Joseph R.'s response despite the absence of Miranda warnings because Joseph R. was not in custody. (Id. at p. 961.) Joseph R. had been released from any restraints, he was never told he would be arrested, and he was not arrested at that time. (Ibid.)
As in In re Joseph R., a reasonable person in J.K.'s situation would not feel that her freedom of action was restrained to a " 'degree associated with formal arrest.' [Citation.]" (Berkemer v. McCarty (1984) 468 U.S. 420, 440.) Officer Hayashi spoke in a "calm" tone, they engaged in conversation and J.K. was never restrained. J.K. was not arrested at the conclusion of their conversation. Under these circumstances no Miranda warning was required.
B. J.K.'s Counsel Was Not Ineffective for Failing to Argue Her Statement Was Involuntary
J.K. argues her trial counsel was ineffective for failing to argue her confession was involuntary.
To demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was "deficient" because her "representation fell below an objective standard of reasonableness . . . [¶] . . . under prevailing professional norms." (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Prejudice is shown when there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.]" (In re Sixto (1989) 48 Cal.3d 1247, 1257.)
Our Supreme Court has held, " 'except in those rare instances where there is no conceivable tactical purpose for counsel's actions,' claims of ineffective assistance of counsel generally must be raised in a petition for writ of habeas corpus based on matters outside the record on appeal. [Citations.]" (People v. Salcido (2008) 44 Cal.4th 93, 172.)
We cannot conclude there was no "conceivable tactical" reason for trial counsel to fail to argue J.K.'s statement was involuntary. To the contrary, there was no evidence before the court that the confession was coerced or the police took any improper action in speaking to J.K.
The test for determining whether a confession is voluntary is whether the defendant's will was overborne at the time she confessed. (Lynumn v. Illinois (1963) 372 U.S. 528, 534; People v. Maury (2003) 30 Cal.4th 342, 404.) A totality of circumstances test is applied to determine the voluntariness of a confession. (People v. Massie (1998) 19 Cal.4th 550, 576.) "Among the factors to be considered are ' "the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity" as well as "the defendant's maturity [citation]; education [citation]; physical condition [citation]; and mental health." ' [Citation.]" (Ibid.) "A finding of coercive police activity is a prerequisite for a finding that a confession was involuntary under the due process clauses of the federal or state Constitution. [Citations.]" (People v. Clark (1993) 5 Cal.4th 950, 988, overruled on other grounds, People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
The record here shows J.K.'s statement was voluntary. There was no evidence of force, threats, or promises by Officer Hayashi. Officer Hayashi questioned J.K. in a "calm" voice in her own room with her mother present in the house. Officer Hayashi did advise J.K. that if she could not calm down and the police had to come back, she would have to take her to juvenile hall. This statement was made after J.K. admitted to punching a hole in the wall. Officer Hayashi testified that she knew a crime had been committed but she did her best to advise "all parties involved to try to maintain each other's distance, do what they can so I would not have to take her to Juvenile . . . Hall. And I did advise her, if I had to come back for continued behavior, that would be the option because I had an obvious crime, and the likelihood to continue would be my basis for arresting her at that time."
Officer Hayashi testified that at the first meeting she had "absolutely" no plans to take J.K. into custody. She was there to diffuse the situation and she wanted J.K. to feel comfortable answering questions. She did not threaten arrest or a trip to juvenile hall to elicit a statement from J.K.
Given the evidence before the court, we cannot conclude counsel was ineffective for failing to argue J.K.'s statement was involuntary. "Counsel's failure to make a futile or unmeritorious motion or request is not ineffective assistance. [Citation.]" (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 836.)
C. The Probation Condition's Use of the Word "Non-prescribed" Is Vague
J.K. argues that the probation condition prohibiting her from using, possessing, consuming, or transporting non-prescribed or illegal drugs is unconstitutionally vague. J.K. argues it does not provide fair warning of what substances are prohibited. The term "non prescribed" is vague and suggests that J.K. cannot possess over-the-counter medications like aspirin or heartburn medication.
"A probation condition 'must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,' if it is to withstand a challenge on the ground of vagueness. [Citation.]" (In re Sheena K. (2007) 40 Cal.4th 875, 890.) "[T]he underpinning of a vagueness challenge is the due process concept of 'fair warning[,]' [citation] . . . [which] 'prevent[s] arbitrary law enforcement and provid[es] adequate notice to potential offenders [citation].' " (Ibid.) A probation condition is unconstitutionally vague if persons " ' "of common intelligence must necessarily guess at its meaning and differ as to its application." [Citation.]' [Citation.]" (Ibid.)
As written, the condition prohibits J.K. from using non-prescribed drugs and this could include any medication. The Attorney General argues that a person of common intelligence would read the condition to not preclude over-the-counter medications.
However, the wording of the probation condition encompasses all drugs, both those that require a prescription and those that do not, rendering the condition ambiguous. The condition should be modified so it does not encompass over-the-counter medications. The challenged probation condition must be modified to read: "Not use, possess, consume, and/or transport any prescribed substances for which you do not have a current, valid prescription or any illegal drugs and/or paraphernalia, including marijuana, medical marijuana, and marijuana paraphernalia."
IV.
DISPOSITION
The probation condition is ordered modified to read: "Not use, possess, consume, and/or transport any prescribed substances for which you do not have a current, valid prescription or any illegal drugs and/or paraphernalia, including marijuana, medical marijuana, and marijuana paraphernalia." As modified, the disposition order is affirmed.
/s/_________
SMITH, J. We concur: /s/_________
STREETER, Acting P. J. /s/_________
REARDON, J.
Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------