Opinion
F082765
09-14-2022
In re J.R., a Person Coming Under the Juvenile Court Law. v. J.R., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
Courtney M. Selan, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Cameron M. Goodman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Tulare County. No. JJD070286, John P. Bianco, Judge.
Courtney M. Selan, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Cameron M. Goodman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
In this appeal, minor J.R. challenges the juvenile court's denial of his motion to suppress a confession which he believes was obtained in violation of his Fifth Amendment right against self-incrimination. Minor also challenges the sentence he received arguing he should benefit from recent legislative changes requiring a different term than that imposed by the juvenile court, and that he is entitled to custody credit because he was required to wear an electronic ankle monitor before he was sentenced. Finally, minor questions a victim restitution award listed in the dispositional order inconsistent with the actual ruling made by the juvenile court. Based on the analysis provided below, we affirm the conclusion there was no Fifth Amendment violation but direct the juvenile court to modify the dispositional order consistent with the language provided in this opinion.
PROCEDURAL SUMMARY
Between December 2016 and December 2020, minor J.R. was the subject of six different juvenile wardship petitions pursuant to Welfare and Institutions Code section 602. The initial petitions alleged mostly misdemeanor crimes such as vandalism and resisting a peace officer. Later petitions alleged more serious crimes such as felony vehicle theft. Minor eventually admitted the allegations of each petition after which he was either placed on probation immediately thereafter or was detained for a short period of time then ordered home on probation. Many of these petitions were preceded by a notice of a probation violation.
All further statutory references are to the Welfare and Institutions Code, unless otherwise specified.
The first petition was amended five times, adding nine additional counts to that petition.
On March 5, 2021, a new notice was filed alleging minor violated various conditions of probation. Three days later on March 8, 2021, a new section 602 petition (the seventh petition) was filed against minor, alleging one count of second degree commercial burglary (Pen. Code, § 459; a felony).
On March 23, 2021, minor filed a motion to suppress evidence of a confession as having been obtained in violation of his Fifth Amendment right against self-incrimination, as expressed in Miranda v. Arizona (1966) 440 U.S. 934. This motion was denied on March 30, 2021, and a contested jurisdictional hearing followed. The juvenile court found the allegation minor committed a commercial burglary to be true beyond a reasonable doubt.
At the dispositional hearing held in April 2021, the juvenile court continued minor's status as a ward of the court, imposed a term of three years in custody, and committed him to 365 days in the Tulare County Mid Term Program. In addition to this sentence, the dispositional order reflected a restitution fine of $100, and an award of restitution to the victim, a cellular phone store, in the amount of $1,700.
FACTUAL SUMMARY
The facts relevant to the issues raised in this appeal were presented in the March 30, 2021, jurisdictional hearing. On the evening of March 4, 2021, City of Visalia Police Officer Thomas Higgens encountered the owner of a cellular phone store, who reported his business had been broken into. Higgens observed a large dual pane window that had been broken and cabinets near the broken window that were left open. The owner of the business reported several boxes containing cell phones were missing from those cabinets. When reviewing security camera footage with the business owner, Higgens observed an individual come through the broken window and "move throughout the inside of the building." This individual was seen removing boxes from the cabinets and placing them outside the window. Higgens testified that while he was still investigating the break-in, he was contacted by Officer Sanchez who was at another location. Sanchez told Higgens he might be in possession of some items from the burglary at the cellular phone store he discovered while responding to a runaway juvenile call.
When Higgens travelled to Sanchez's location, he walked up a driveway and into an already open attached garage. Sanchez pointed Higgens to a plastic grocery bag. Higgens testified that inside the bag were cell phones and cell phone accessories, some with the cellular phone store's labels still attached. Higgens eventually took these items back to the location of the commercial burglary. The owner of the cellular phone store was able to verify through serial numbers that the items in the bag had been taken from the store.
Because Sanchez was unavailable to testify at the jurisdictional hearing, the video from the body camera he wore on March 4, 2021, was played, and entered into evidence. The video showed Sanchez walking up a driveway to a house. At the end of the driveway was a garage where Sanchez observed a woman holding a plastic bag. This woman handed Sanchez the plastic bag and stated there were stolen items in the bag. The woman then asked minor to join them in the garage. When minor appeared, Sanchez asked him if he could ask a few questions. Minor appeared to agree.
Following some discussion about where minor was that night, minor told Sanchez that he saw a homeless man named "Frankie" throw a rock through the store's window. Eventually, minor confirmed that the cellular phone store was the store he was talking about. For the next few minutes, Sanchez and minor talked more about what happened at the cellular phone store, and who "Frankie" was. Minor initially insisted that only "Frankie" went into the business after breaking the glass.
The body camera video eventually shows Higgens's arrival at the home and how he was directed by Sanchez to look through the plastic bag. Higgens recognized various items that were consistent with what the store owner said had been taken. Higgens then turned his attention to minor, who he observed was wearing pants that had been ripped. Higgens asked minor how he ripped his pants. Higgens eventually informed minor he had seen surveillance video from the store and told him he "needed to come clean." Minor then admitted he was the one who went into the store and collected all the items, handing them off to "Frankie." Minor then stated to both Sanchez and Higgens that he "messed up." At this point, both Sanchez and Higgens appear to place minor under arrest. A further discussion resulted in an admission from minor that he was the one who went through the window, with a description of what he took from the business.
At the time of the incident and when he was arrested, minor was wearing an ankle monitor. This monitor was related to a prior section 602 petition alleging he stole a truck. During the entire interaction between minor, Sanchez and Higgens, a door to the house remained open, along with the garage door leading to the driveway.
DISCUSSION
I. There Was No Violation of Minor's Miranda Rights
A. Applicable Law
Miranda warnings are only required when police engage in questioning that is considered custodial. (Oregon v. Mathiason (1977) 429 U.S. 492, 495; People v. Ochoa (1998) 19 Cal.4th 353, 401.) Someone is not "in custody" if a reasonable person in that same position would feel they could leave or simply end the questioning. (People v. Leonard (2007) 40 Cal.4th 1370, 1400.) An objective test must be applied when deciding whether a person is in custody, or more specifically, under arrest or restrained in their ability to move away from the questioning. (Ibid.) Consideration of this issue involves mixed questions of law and fact. (People v. Moore (2011) 51 Cal.4th 386, 395.)
Because minor was 16 years old at the time of the burglary at the cellular phone store, section 625.6 would have applied to any discussion that was categorized as "custodial." The language of this statute provides that before a custodial interrogation occurs, and before any Miranda rights can be waived, "a youth 17 years of age or younger shall consult with legal counsel in person, by telephone, or by video conference." (§ 625.6, subd. (a), italics added.)
When engaging in this analysis, we must look to the totality of the circumstances, including, but not limited to, who made the initial contact, where the contact occurred, and whether the individual being questioned was viewed as a witness or a suspect. (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162.) The totality of the circumstances approach is appropriate even when the interrogation involves a juvenile. (In re Joseph H. (2015) 237 Cal.App.4th 517, 533; see also J.D.B. v. North Carolina (2011) 564 U.S. 261.) While courts recognize a minor's age might make him more susceptible to outside pressure or influence, they also recognize a minor "has the capacity to make a voluntary confession." (In re Jessie L. (1982) 131 Cal.App.3d 202, 215; In re Elias V. (2015) 237 Cal.App.4th 568, 586-587.) For this reason, the admissibility of statements made by a juvenile depends not only upon his age, but on a "combination of that factor with other circumstances such as his intelligence, education, experience, and ability to comprehend the meaning and effect of his statement." (In re Jessie L., supra, at p. 215.)
The trial court's factual findings regarding the circumstances surrounding the interrogation are reviewed for substantial evidence and we independently decide whether a reasonable person in minor's position would have felt free to end the questioning and/or leave. (People v. Moore, supra, 51 Cal.4th at p. 395.)
A. Application of This Standard to Our Facts
At the time this incident occurred, minor was 16 years old, was the subject of six prior wardship petitions of increasing seriousness and was wearing an ankle monitor because he was on probation. This was not minor's first contact with law enforcement. After hearing the testimony offered by Higgens and viewing the video from Sanchez's body camera, the juvenile court judge stated:
"The Court has to look to the totality of the circumstances to determine whether or not a reasonable person would have felt that he or she was not at liberty to terminate the interrogation. [¶]
"Of importance is the fact that this took place in the minor's residence and the minor's garage. As indicated, the minor had stepped out from the house. There was an open garage and an open side door. The majority of the interview took place with only the one officer, Officer Sanchez, present. And contrary to minor's counsel's argument, I did not feel that the officer was in any way confrontational in his questioning of the minor.
"It appeared from the video that the officer was attempting to gain further information from the minor as to how he came in possession of the items. The minor responded. The officer then attempted to confirm the minor's facts by contacting other officers who were located, who were doing an investigation to confirm the minor's statements.
"The Court doesn't find that the minor was restricted in any of his freedoms. And as indicated, I don't find that the officer was aggressive or confrontational or accusatory in his questioning, nor did he engage in any maximum or minimum interrogation techniques of the minor.
"Based on the totality of the circumstances, I don't find that the minor was subject to a custodial interrogation, so I'll allow the minor's statements to be considered."
Later in the same hearing, the court made a further ruling specifically addressing the testimony of Higgens:
"The Court incorporates its previous[] findings. The only distinction the Court finds between the statements that were given to Officer Sanchez and the statements given to Officer Higgins, was his arrival. The fact there were two officers present doesn't change the Court's analysis based on the totality of the circumstances that a reasonable person would have felt that they were free to leave. So the motion to suppress the minor's statements are denied.
"As to the statements made to Officer Higgins, the Court had previously found statements made to Officer Sanchez were also admissible."
The evidence provided by Higgens in his testimony, and the video from Sanchez's body camera, supply substantial evidence supporting the juvenile court's ruling that the statements made by minor were not obtained in violation of his Fifth Amendment rights. The body camera video reveals Sanchez arrived at the home to address the report of a runaway juvenile. A review of the body camera video shows Sanchez's discussion with minor was at first purely informational and related to where he had been and why. Minor initially denied he went into a cellular phone store even though he came home with a bag of items from the store. Even when Higgens arrived, the tone of the discussion was not confrontational. Higgens noticed the rips on minor's pants, then told minor he saw a surveillance video from the store showing him in the store.
At this point, the tone of the discussion between Sanchez, Higgens, and minor changes, especially when minor states that he "messed up." However, even assuming the discussion then became custodial, the use of any information obtained after this point should be considered harmless beyond a reasonable doubt due to all the evidence already before the juvenile court. (Chapman v. California (1967) 386 U.S. 18, 24; In re Joseph H., supra, 237 Cal.App.4th at p. 532.) Higgens's own testimony at the jurisdictional hearing provided evidence that was unrelated to the discussion with minor. Higgens described what he observed at the cellular phone store and the video surveillance of the break-in. Higgens was also able to identify minor as the person who entered the store based on what he was wearing. Finally, Higgens was able to verify items in the plastic bag given to Sanchez when he arrived at minor's home contained items taken from the cellular phone store. Minor's admissions he "messed up" and went inside the store to take the items were not necessary for the juvenile court to conclude minor committed a burglary beyond a reasonable doubt. We do not believe a different result would have been reached if these admissions had been excluded.
II. Minor's Designated Term of Confinement Must be Modified
When considering a term of confinement for minor under the seventh wardship petition, the juvenile court stated the maximum time minor could be "secured" was three years. The three-year period is the aggravated term under Penal Code sections 461 and 1170, subdivision (h), for committing a commercial burglary. Because of recent legislative changes made impacting juvenile justice, the term imposed for minor must be modified here.
Two recent legislative enactments have made significant changes for minors deemed wards of a juvenile court. On September 30, 2020, Senate Bill No. 823 (2019-2020 Reg. Sess.) (Senate Bill 823) became effective, while on May 14, 2021, Senate Bill No. 92 (2021-2022 Reg. Sess.) (Senate Bill 92) became effective. Through these enactments, the Legislature reduced the maximum period of confinement a juvenile ward faces when committed to the Department of Corrections and Rehabilitation, Division of Juvenile Justice. Before this change, a ward could be committed for the maximum term an adult would face if convicted of the same offense. (Former § 731, subd. (c).) As a result of these changes, however, a ward shall not be committed "for a period that exceeds the middle term of imprisonment that could be imposed upon an adult convicted of the same offense." (§ 730, subd. (a)(2).)
Although the Legislature intends to close most, if not all, Division of Juvenile Justice facilities in the state by June 30, 2023, relevant statutes and juvenile courts continue to use this reference when sentencing juveniles.
Minor is entitled to a modification because his appeal was not yet final when these legislative changes went into effect. (In re Estrada (1965) 63 Cal.2d 740.) The juvenile court's order designating the maximum period of confinement for the commercial burglary must be modified to reference the middle term of two years. (See Pen. Code, § 1170, subd. (h)(1).)
III. Minor is Not Entitled to Any Custody Credits For Simply Wearing an Electronic Monitor
Minor contends he was in a "home electronic monitoring program," entitling him to predisposition custody credits. However, while acknowledging the limiting language in In re Lorenzo L. (2008) 163 Cal.App.4th 1076, questioning the availability of custody credits for juveniles who wear electronic monitoring devices, minor fails to address the major problem posed. As a general proposition, the use of some form of electronic monitoring alone is not dispositive.
Section 726, subdivision (d)(5), which is specifically addressed in the Lorenzo L. opinion, defines physical confinement as "placement in a juvenile hall, ranch, camp, forestry camp or secure juvenile home." Just any home detention does not qualify.
Pursuant to Penal Code section 2900.5, subdivision (a), when a person has been in custody, including "days served in home detention pursuant to [Penal Code section] 1203.016 or 1203.018," that person shall receive credits for those days "upon his or her term of imprisonment." As an example, Penal Code section 1203.018, subdivision (d)(1), states that to qualify for custody credits, a participant in a program must "remain within the interior premises of the participant's residence during the hours designated by the correctional administrator." Being subject to an electronic monitoring program is not enough on its own since electronic monitoring is also used for work furlough or work release programs. (Pen. Code, § 1203.018, subd. (j)(2).) Electronic monitoring without home detention will, therefore, not automatically result in eligibility for custody credits.
For this court to consider the equal protection argument minor appears to be making, he needed to show he was required to wear the electronic monitor as it is contemplated in programs defined by Penal Code section 1203.016 or 1203.018, which require home detention. (See People v. Gerson (July 8, 2022, D076297) __Cal.App.5th __ .) The minor was also required, at a minimum, to provide evidence showing his use of an electronic monitoring device was" 'custodial or restraining.'" (Ibid.)
This point is actually driven home in the case of People v. Raygoza (2016) 2 Cal.App.5th 593, which minor cites. Minor, however, fails to acknowledge language in Raygoza, that programs authorized by Penal Code section 1203.018 must be read to require the award of custody credits only to "home-detained" defendants who participate in electronic monitoring programs. (Raygoza, at p. 601, italics added.) The defendant in Raygoza had a specific obligation to provide evidence of his home detention, not simply that he was part of a qualified program. (Id. at p. 601.)
In fact, the Raygoza opinion is easily distinguished as the trial court in that case required home detention for 24 hours a day," 'except for qualified medical and/or emergencies.'" (People v. Raygoza 2 Cal.App.5th at p. 597.)
In contrast here, the citations provided on behalf of minor do not support the conclusion home detention was a requirement of probation. There is no requirement laid out either by the court or the probation department stating minor must remain in his grandmother's house during defined hours of the day. The various orders cited only state he should remain on electronic monitoring. The document that comes closest to supporting the argument minor was detained at home is titled, "Home Supervision/Electronic Monitoring Report." In this report, submitted in July 2020, the probation officer stated:
"The youth's grandmother reported no behavioral issues with the youth, besides the youth leaving without permission. She advises him not leave, but he leaves anyways. The youth was admonished and directed not to leave his residents unless permission is granted."
Minor was not prohibited from leaving home detention, he just had to ask permission. There is no support in the record that minor was required to stay within the home for any defined period each day. In fact, prior probation reports reference the need to go to school, which would have required him to leave the confines of the home. Based on the record before this court, the use of the electronic monitor here lacked the necessary component of being custodial or restraining, and, therefore, was not enough to make minor eligible for custody credits. (See People v. Gerson, supra, Cal.App.5th [pp. 31-32].)
Without resolving the question of whether such credits are available to juveniles, the initial burden was on minor to establish he had earned and was entitled to presentence custody credits. (People v. Jacobs (2013) 220 Cal.App.4th 67, 81.) Minor has not met that burden here.
IV. The Disposition Order Requires Further Modification Addressing the Victim Restitution Award
The dispositional order notes minor must pay the cellular phone store $1,700 in restitution. However, a review of the transcript of the juvenile court hearing when this award was made shows the court intended to leave this matter open for a future determination. The dispositional order should, therefore, be modified to reflect the actual ruling made by the juvenile court on this issue.
DISPOSITION
Minor's maximum term of confinement is modified to two years. The award of victim restitution should also be modified to state the award is to be left open for a future determination. As modified, the order is affirmed. The juvenile court is directed to prepare an amended disposition order reflecting the modification to the maximum term of confinement and the award of victim restitution, then forward a copy of that order to the appropriate entities.
[*] Before Meehan, Acting P. J., Snauffer, J. and DeSantos, J.