Opinion
G052344
02-28-2017
In re K.T., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. K.T., Defendant and Appellant.
Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Kristen Hernandez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. DL050575) OPINION Appeal from an order of the Superior Court of Orange County, Cheryl L. Leininger, Judge. Reversed. Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Kristen Hernandez, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
The juvenile court found true allegations that K.T., a minor (the minor), committed robbery by taking merchandise from a department store. On appeal, the minor claims the juvenile court erred by admitting a confession she made during a custodial interrogation. Having reviewed the record, we conclude the minor's confession was not voluntary, and that its admission was prejudicial. Significantly, the juvenile court made its determination of voluntariness based solely on the testimony of the investigating police officers, the audiotape and transcript of the minor's interrogation, and the Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) form signed by the minor; the minor had not testified at the time the court ruled on the motion to exclude her confession. Relying on the same evidence considered by the trial judge, we reverse the juvenile court's order.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
UNDERLYING EVENTS AT KOHL'S DEPARTMENT STORE
Monika Diaz, a loss prevention officer at Kohl's department store, saw the minor, then 14 years old, via surveillance video, quickly selecting items off a rack in the juniors' department without looking at the price tags. The minor was carrying a brown purse that appeared to be empty. Diaz saw the minor meet her mother, S.H. (mother), in the shoe department, where mother selected a pair of sandals. Diaz instructed Gerardo Herrera, another loss prevention officer, to clean out all the fitting rooms before the minor and mother entered; Herrera testified he did so. The minor and mother entered a fitting room together, and remained for 15 to 20 minutes. No other customer had entered that fitting room after Herrera had cleaned it out. Diaz observed mother trying to take the "hard tag" off a pair of underwear.
The minor exited the fitting room alone, and went to the restroom. She was carrying the brown purse, which appeared, to Diaz, to be larger than when the minor had entered the fitting room. Mother exited the fitting room a few minutes later. Herrera then entered the fitting room, and found tags ripped from Vans socks and Nike sandals, which merchandise was sold at that store.
Mother paid for some non-clothing items, and waited near the store exit. Several minutes later, the minor met mother, and they walked out of the store together.
Diaz and Herrera followed the minor and mother out of the store. Diaz approached the minor and mother, and identified herself as a loss prevention officer. Diaz said she needed to talk to them inside the store regarding merchandise that had not been paid for. The minor and mother said they did not steal anything, and mother walked toward her car. Diaz wrestled with the minor, who cried "mommy, mommy," and tried to bite Diaz's hand.
Herrera followed mother to the car. Mother grabbed something from her car, put it in her waistband and walked quickly toward Diaz, saying, "I got something for you guys." Herrera, who did not know what mother had in her waistband, told Diaz to "let it go." Diaz pushed the minor away and retreated into the store. The minor and mother jumped in their car and drove away. Herrera retrieved the tags from the fitting room, and Diaz filed a police report.
POLICE ACCOUNT OF ACTIONS REGARDING THE MINOR
As noted, all of the evidence described in this section is based on the testimony of the police officers, the audiotape and transcript of the minor's interrogation, and the Miranda form signed by the minor.
Later the same month, Detective Richard Ribeiro arrested the minor and mother at their home, and transported them to the police station. At her home, the minor was arrested and handcuffed by four police officers. Then, at the police station, the minor was placed by herself in a locked juvenile detention room. As the officers walked her to the detention room, one of them told the minor that they would ask her a few questions, and then she could go.
Ribeiro interviewed mother and obtained a statement from her. Ribeiro and another officer then interviewed the minor. Ribeiro read the minor her rights from a standard form, which was used for both adults and juveniles. When Ribeiro asked the minor if she understood each of the rights, she responded affirmatively, and Ribeiro wrote her responses on the form. Ribeiro never asked the minor if she wanted to waive those rights. The minor was handed the form and asked to sign it; Ribeiro stated: "Ok so here's what I'm about to do. Sign, sign this for me. This is everything I just read you right here sign yeah yeah you just sign right there where it says signature for me. We will explain it in more detail."
Ribeiro falsely told the minor that he had a video of her stealing clothes from Kohl's department store. He told the minor, "[a]nd like I said, we've already talked to your mom. We already know what's going on. We talked to your mom. Your mom told us everything she did so we're just trying to get your . . . ." He also told her, "[i]t's not the end of the world, I get it. You know I got, I got in trouble when I was a kid too, I stole some stuff, but talk to my parents I have come clean [sic]. I apologized. I apologized to the store, and that was it. You know what I'm saying? It's not the end of the world. It's just a store. Not a big deal." He also told the minor she was not going to get mother in trouble by admitting it was mother's idea to shoplift.
The minor told Ribeiro that she had stolen underwear, a sweater, and "I think" a shirt and a dress.
PETITION AND OBJECTION TO ADMISSION OF THE MINOR'S CONFESSION
A petition was filed against the minor, pursuant to Welfare and Institutions Code section 602, alleging second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)), and conspiracy to commit shoplifting (Pen. Code, §§ 182, subd. (a)(1), 459.5). Before the minor testified, defense counsel argued her statements to Ribeiro should be excluded because they were obtained in violation of Miranda, supra, 384 U.S. 436. The evidence discussed ante—the testimony of the police officers, the audiotape and transcript of the interrogation, and the Miranda form—was before the court. The minor did not testify in connection with the objection to admit her statements to Ribeiro while in custody. The juvenile court overruled the objection, and admitted the minor's statements.
At a disposition hearing, the juvenile court declared the minor to be a ward of the court, and placed her on supervised probation. The court ordered the minor to complete 150 hours of community service and to pay restitution, among other conditions.
STANDARD OF REVIEW AND DISCUSSION
"When a court's decision to admit a confession is challenged on appeal, 'we accept the trial court's determination of disputed facts if supported by substantial evidence, but we independently decide whether the challenged statements were obtained in violation of Miranda . . . .' [Citation.]" (People v. Lessie (2010) 47 Cal.4th 1152, 1169.) We review "'the totality of the circumstances surrounding the interrogation, to ascertain whether the accused in fact knowingly and voluntarily decided to forgo his rights to remain silent and to have the assistance of counsel.' Because defendant is a minor, the required inquiry 'includes evaluation of the juvenile's age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.' The prosecution bears the burden of demonstrating that the challenged waiver is valid by a preponderance of the evidence. [Citation.]" (Ibid.)
Senate Bill No. 1052 (2015-2016 Reg. Sess.), which would have required that a minor consult with legal counsel before waiving his or her Miranda rights, and would also have required the court to consider the lack of such consultation in determining whether any subsequent statements should be admissible, was recently vetoed by the Governor. (Sen. Bill No. 1052, vetoed by Governor, Sept. 30, 2016, Sen. Weekly Hist. (2015-2016 Reg. Sess.) Nov. 30, 2016, p. 403.) --------
In this case, when we consider the totality of the circumstances, we conclude that the prosecution failed to meet its burden of proving the minor's confession was voluntary. We first consider the minor's age and experience, as juveniles are more suggestible and more vulnerable to coercive interrogation techniques than are adults. (See In re Elias V. (2015) 237 Cal.App.4th 568, 578, 588, 595-596; J.D.B. v. North Carolina (2011) 564 U.S. 261, 269.) The minor was only 14 years old, had no history of illegal activity, and had never before been interviewed by the police. Although the minor was read the Miranda warnings by Ribeiro, she was never asked to waive her rights.
Significantly, Ribeiro's request that the minor "just sign right there" and continued statements that the shoplifting incident was "[n]ot a big deal" and "not the end of the world" make the voluntariness of the minor's confession highly suspect. The minor could have believed, based on Ribeiro's statements that he had shoplifted and it was not a big deal, that she would not be in trouble if she said she had stolen items from the store.
Further, Ribeiro and his partner used overbearing tactics when interrogating the minor. The location and circumstances of an interrogation, especially when the suspect is a minor, can affect the voluntariness of any ensuing confession. (In re Elias V., supra, 237 Cal.App.4th at p. 579.) In this case, the minor was arrested and handcuffed at her home by four police officers. She was separated from mother throughout the interrogation. The minor was placed in a locked detention room at the police station, where she remained by herself for a period of time up to two hours. Two police officers sat across a table from the minor while interrogating her, between the minor and the door. Ribeiro testified the minor was "nervous [and] scared." The officers never asked the minor if she wanted a parent to be with her.
The use of deception or the communication of false information is a factor weighing against a finding of voluntariness, especially when the suspect is a young adolescent. (People v. Hogan (1982) 31 Cal.3d 815, 840-841; In re Elias V., supra, 237 Cal.App.4th at p. 584; In re Shawn D. (1993) 20 Cal.App.4th 200, 209; People v. Engert (1987) 193 Cal.App.3d 1518, 1524.) Here, Ribeiro made deceptive statements indicating that mother had confirmed she and the minor were shoplifting, and that the minor would not get mother in any trouble by implicating her. Further, Ribeiro falsely stated there was video of the minor stealing underwear and shirts. The only tags found removed from merchandise, however, were those from sandals and socks. Significantly, when the minor confessed, she admitted to stealing the items that Ribeiro had mentioned, not the items from which tags had been removed. Though Ribeiro's deceptive statements to the minor were legal, in this case they tend to undermine our confidence in the voluntariness of the minor's confession, particularly when combined with the minor's confession to stealing items identified by the police, but not items for which some indication of theft was present.
An express or clearly implied promise of leniency or advantage, which motivates the suspect to confess, makes the confession involuntary and inadmissible. (People v. Boyde (1988) 46 Cal.3d 212, 238; In re Shawn D., supra, 20 Cal.App.4th at p. 210.) Ribeiro told the minor that shoplifting was "[n]ot a big deal" and that she could go home as soon as she confessed. This statement by Ribeiro, too, undermines our confidence in the voluntariness of the minor's confession.
For all these reasons, based on the standard of review, explained ante, and the evidence and authorities discussed, we conclude the objection to admission of the minor's confession should have been sustained.
The error in admitting the minor's confession was not harmless beyond a reasonable doubt. Neither Herrera nor Diaz saw the minor take any items from the store. Diaz testified that the minor's bag "appeared" fuller after the minor left the fitting room than before. No items were ever located, either when Diaz confronted the minor outside the store, or when Ribeiro arrested her. The only tags removed from store merchandise that Herrera testified he had found in the fitting room were those from sandals and socks, neither of which was addressed in the minor's confession. In the absence of the confession, there was not substantial evidence that the minor took anything.
TRIAL TESTIMONY
After the objection to the admission of her statements to the police was overruled, the minor testified on her own behalf and denied shoplifting from Kohl's department store. She testified at trial that none of the statements in her confession was true, but she had agreed with the officers because she believed it would mean she could leave sooner. She was upset and wanted to leave the police station.
As to her trial testimony, the juvenile court found "[the minor]'s appearance on the witness stand was very poised. She was mature. She was articulate. And she was composed." The court further found that her testimony at trial was not credible. "The court found that Ms. Diaz and Mr. Herrera's testimony was credible. I believed everything that they said. I did not find, unfortunately and sadly, that [the minor]'s testimony was credible. I did not think she was being honest with the court, nor did I think that [mother] was being honest with the court, and I found that very disappointing, to be honest with you." The court found the robbery allegations true beyond a reasonable doubt, but dismissed the conspiracy allegations due to insufficient evidence.
Thus, the juvenile court's evaluation of the minor's credibility was based on her trial testimony, not in connection with the objection to the admission of her confession. Accordingly, we do not consider that credibility determination with regard to our analysis of the ruling on the objection.
DISPOSITION
The order is reversed.
FYBEL, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.