Opinion
A131246
12-22-2011
In re R.W., a Person Coming Under the Juvenile Court Law. THE PEOPLE OF THE STATE OF CALIFORNIA, Petitioner and Respondent, v. R.W., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. J10-01609)
One morning in November 2010, 15-year-old R.W. kicked in the front door of a neighbor's house in Richmond, and then he and some companions stole several items of electronic equipment. The juvenile court adjudged him an indefinite ward of the court under Welfare and Institutions Code section 602, after finding true an allegation he had committed first degree residential burglary, and committed him to a 180-day program at the Orin Allen Youth Rehabilitation Facility (OAYRF) to be followed by probation.
Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
R.W. appeals this order. He contends the court erred in denying his motion to suppress incriminating statements he made during an interview with a detective of the Richmond Police Department (RPD), on the ground his statements were involuntarily coerced through the detective's improper promises, threats, and deception. He additionally claims that one of the conditions of his probation, prohibiting gang associations, is unconstitutionally vague and overbroad, and that the court failed to credit him with the days of physical confinement he spent prior to his dispositional hearing.
As discussed below, we remand with directions to the juvenile court to modify the challenged condition of probation and to award appropriate precommitment custody credits. In all other respects, we affirm the challenged order.
BACKGROUND
R.W. was arrested on November 23, 2010, as a suspect in a burglary that occurred earlier that day. On November 29, the district attorney initiated this proceeding with a petition under section 602, subdivision (a), seeking to have R.W. adjudged a ward of the juvenile court for a felony violation of Penal Code sections 459 and 460, subdivision (a)—that is, first degree residential burglary. The district attorney subsequently filed an amended petition setting out four additional counts, which were based on separate referrals to the probation office (PO) received earlier in the year. R.W. denied the allegations against him.
On December 27, 2010, the juvenile court held a contested jurisdictional hearing. At the outset, the court granted a motion by the district attorney to dismiss without prejudice the counts added by the amended petition. The district attorney proceeded only as to the count for first degree residential burglary. We summarize below the evidence she presented.
On the morning of November 23, 2010, Officer Mitchell Peixoto of the RPD responded to a call about an alarm going off at a residential address on Robert Way. When still about a half-block away from the address, a passerby flagged him down, saying he had just seen five "suspicious" juveniles running, and pointed in the direction they had gone. Peixoto went in that direction, and, coming to the intersection of Robert Way and May Road, saw a group to his right, walking away. As he got a little closer, Peixoto saw there were five male juveniles "altogether"—three were walking a short distance behind two others. Peixoto asked them to stop, and detained the first three at the curbside. The two who were further away kept going down May Road and went into a house. One of the three juveniles who were stopped was carrying a Blu-Ray disc player and had two Wii remote game controllers in his pockets.
With the arrival of another officer, Peixoto went to the house the other two juveniles had entered. He knocked and, once inside, recognized the two he had seen going inside. One of them was R.W. He brought them both outside and detained them with the others. Another RPD officer later found a camera recorder and two iPods in bushes along the stretch of sidewalk between the point where Peixoto detained the first three juveniles and the point where R.W. and his companion had entered the house on May Road. That house, which was only a few blocks from the burglarized residence on Robert Way, was where R.W. lived with his brother—another of the five suspects—and their grandmother.
The burglary victim, who resided with his wife and children in the home on Robert Way, meanwhile returned home after hearing a report that his alarm had gone off. He found his front door "busted" open. While making sure no one was still inside the home, the victim's father-in-law arrived to report that he had seen "five kids down the street." Going around the corner to investigate, the victim found an officer detaining three juveniles on the curb on May Road. The victim recognized the Blu-Ray player and Wii game controllers, on the ground beside the suspects, as his property, taken from his home. He later confirmed the camera recorder and iPods recovered nearby were also his property taken from his home.
RPD Detective Jerred Tong interviewed R.W. later in the day on November 23, 2010. Tong read a Miranda warning to the minor, who responded that he understood.
Miranda v. Arizona (1966) 384 U.S. 436.
R.W.'s trial counsel interrupted Detective Tong's direct testimony at this point, seeking to voir dire the officer concerning the "voluntariness" of the statements he elicited from R.W. during the interview, and further asking the juvenile court to view the RPD recording of the interview. The court concluded it had "better see the tape"— marked as the minor's Exhibit A—and recessed briefly to do so.
During his opening statement, minor's counsel said he would be making an oral motion to suppress the statements R.W. made to Detective Tong, based on their involuntary nature.
Afterwards, the juvenile court ruled Detective Tong had not "overborne" R.W.'s will, by either physical or psychological coercion, and determined the incriminating statements R.W. had made during the interview would "stand." The parties then stipulated that the court should simply consider the statements R.W. made during the interview—as recorded by the RPD—in lieu of recalling Tong for further testimony. The court, accordingly, admitted the DVD recording into evidence.
In the DVD recording, R.W. admitted he and his younger brother decided to break into the house. R.W. had thrown a football into the yard before knocking on the front door, so he could simply ask permission to retrieve the ball if anyone was home. The alarm went off and the two ran away, but returned after it stopped. R.W. kicked in the front door, he and his brother entered, and R.W. grabbed a Blu-Ray disc player and two Wii remote game controllers. R.W. insisted no one else had been involved in the incident, expressing concern for two of the other suspects who were not minors and whose potential criminal liability was far greater than his.
Based on the foregoing evidence, the juvenile court found true beyond a reasonable doubt the allegation that R.W. had committed first degree residential burglary, a felony violation of Penal Code sections 459 and 460, subdivision (a). In reaching its conclusion, the court noted there had been "plenty" of corroborating evidence in addition to R.W.'s recorded confession.
At the dispositional hearing on January 10, 2011, the district attorney initially noted her office had filed a supplemental petition restating the allegations the juvenile court had previously dismissed without prejudice. The minor's counsel explained to the juvenile court that R.W. had agreed to admit to a misdemeanor violation of Vehicle Code section 10851, subdivision (a)—for unlawfully taking his grandmother's vehicle in June 2010—in exchange for dismissal of the remaining allegations of the supplemental petition. After informing R.W. of his rights, the court accepted R.W.'s admission, dismissed the remaining allegations, and proceeded to disposition on the misdemeanor violation, as well as the felony violation of Penal Code sections 459 and 460, subdivision (a).
After hearing statements from the burglary victim and his wife, and from R.W. and his grandmother, following closing argument, the juvenile court indicated it would follow the recommendations set out in the PO report prepared for the dispositional hearing. The court adjudged R.W. an indefinite ward of the court under section 602, and committed him to the OAYRF for 180 days plus an additional 90-day conditional release/parole period.
This appeal followed. (§ 800, subd. (a).)
DISCUSSION
I. The Recorded Interview
R.W. essentially contends Detective Tong "impermissibly induced" him into confessing to the residential burglary. When the voluntariness of a confession is raised on appeal, the reviewing court examines the undisputed facts to determine independently whether the prosecution met its burden and proved the statements were voluntarily given without previous inducement, intimidation, or threat. (People v. Hogan (1982) 31 Cal.3d 815, 835, overruled on another ground in People v. Cooper (1991) 53 Cal.3d 771, 836; see also In re Shawn D. (1993) 20 Cal.App.4th 200, 207-208, citing People v. Anderson (1990) 52 Cal.3d 453, 470.) If the facts are in conflict, we must accept the version of events most favorable to the prosecution to the extent it is supported by the evidence. (People v. Hogan, supra, 31 Cal.3d at p. 835.) Here, as we have noted, the interview was recorded by the RPD and the recording was admitted into evidence under a stipulation that it was to stand as the sole evidence of R.W.'s statements and the context in which they were made. With the evidence thus undisputed, we have viewed the DVD recording independently to determine the voluntariness of R.W.'s statements. (See People v. Vasila (1995) 38 Cal.App.4th 865, 873.)
In particular, we have carefully reviewed the period of the interview between the moment when Tong began the interview after advising R.W. of his Miranda rights and the moment when R.W. began to make the incriminating statements summarized above. R.W. initially denied involvement in the burglary, and Tong asked, "So what's the reason that I have video footage show[ing] all five of you guys in the house?" This exchange continued perhaps two minutes, with R.W. continuing to deny his involvement and Tong continuing to suggest he had been caught by a surveillance camera. Tong said he understood that R.W. "want[ed] to deny and stuff," but he had R.W. "red-handed." Tong told R.W. he would have to write a report stating R.W. had denied any involvement, despite being given "several opportunities to talk." Under this scenario, Tong expressed certainty that R.W. would be sent to the "boys' ranch." Tong said he "could help," however, if instead he was able to write a report stating R.W. had been "honest," was "sorry for it," and would like "the lowest sentence as possible." In that instance, Tong said he could go to the district attorney's office and "fight" for R.W.
Detective Tong then asked R.W. to tell him "how it rolled," but R.W. continued to deny being at the house, saying he was "waiting down the street." Tong said that was not possible, "because your face is looking in the video camera."
There followed a significant period of silence when neither spoke for approximately 90 seconds. R.W. then asked what was "the longest sentence" he might get, and Tong replied, "It's up to the D.A.'s office." (Italics added.) Tong noted R.W. was already on some form of probation, which R.W. said was "pending." Tong then said, "Honestly, it's probably at least gonna be just an added year or something onto your probation. Nothing major, dude. It's a property crime. You're not raping someone or killing someone, you know?" (Italics added.) R.W. then asked Tong what would happen if he "just sa[id] nothing," and Tong replied, "[t]hey're gonna fight for you to go to [juvenile] hall or to the ranch." R.W. asked, "how long," and Tong answered, "[a] year easily, and I don't think you want to go for a year, do you?" Tong then said, "I don't want you to do a year there. I don't want you to do any time. [Y]ou know what? I picked to talk to you because . . . I looked through your criminal history, and I'm like man this kid, this guy, got a good shot. I think he can talk. He's willing to talk. [You] know, he made a simple mistake hanging out with the wrong group, okay? I know [one of the other suspects]. I know him very well." R.W. replied that the suspect Tong had named "wasn't in it," and Tong said, "Okay well . . . [t]his is a simple mistake right[]? So what happened in there?" At this point, R.W. made his first incriminating statement.
In determining whether a statement is voluntary under federal constitutional due process standards, the U.S. Supreme Court has observed that, while each determination of voluntariness turns on its own unique facts, those decisions that have found a confession to be involuntary have all involved a "substantial element of coercive police conduct." (Colorado v. Connelly (1986) 479 U.S. 157, 163-164.) An involuntary confession is one that is not "the product of a rational intellect and a free will." (Blackburn v. Alabama (1960) 361 U.S. 199, 208.) Thus, we focus on whether the law enforcement officer's behavior was such as to overbear the suspect's will to resist and bring about a confession not freely self-determined. (Rogers v. Richmond (1961) 365 U.S. 534, 544.) In determining whether or not the suspect's will was overborne, we examine all the surrounding circumstances, including both the details of the interrogation and the characteristics of the accused. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 226; People v. Hogan, supra, 31 Cal.3d at p. 841.)
R.W. argues Detective Tong induced his confession with promises of leniency in exchange for his confession, combined with threats of harsher punishment if he maintained his innocence. In his view, Tong improperly "bolstered" these promises and threats with the "likely lie" that a video surveillance camera had caught R.W. and his companions inside the burglarized home. R.W. asserts that against these factors, relating to Tong's behavior, we must weigh his own characteristics. Specifically, he urges he was only 15 years of age at the time, he had not had any significant experience with the justice system, he had been largely abandoned by his parents during his childhood, and he had substance abuse problems with marijuana and alcohol and may even have been impaired during the interview. Under all these circumstances, R.W. contends the juvenile court committed prejudicial error when it ruled his confession was voluntary and without coercion.
In a subsequent interview, R.W. told a probation officer he had been drinking "before the offense" and hence, "not really thinking clearly."
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We are not persuaded that Detective Tong's "likely" deception—that a surveillance camera had caught R.W. "red-handed"—was impermissible under the circumstances. It was simply not of a " ' "type reasonably likely to procure an untrue statement." ' " (People v. Jones (1998) 17 Cal.4th 279, 299, quoting People v. Thompson (1990) 50 Cal.3d 134, 167.) Nor do we find Tong's other statements to be promises or threats of such a coercive nature as to overbear R.W.'s will to resist when combined with Tong's deceptive statements. Tong, in effect, pointed out that it "could help" if he was able to submit a report to the district attorney that R.W. had been "honest," as opposed to a report that R.W. had denied any involvement. Having said this, Tong allowed R.W. to reflect in silence, and after a full 90 seconds R.W. spoke, not to blurt out an admission of guilt, but to ask about the "longest" sentence he might be facing. Tong said that was up to the D.A.'s office, although he again said the district attorney would push for physical confinement rather than probation if R.W. chose to "say nothing." As such, we find Tong's statements not to be coercive promises or threats so much as comments on the realities of R.W.'s situation, the options open to him, and the benefits that would naturally flow from an honest course of action. (See People v. Andersen (1980) 101 Cal.App.3d 563, 583.)
Nor do we find coercion in the other circumstances of the interview. R.W. was interviewed by a single officer. The period of the interview between Tong's Miranda warning and R.W.'s confession consisted of questions, answers, and comments lasting no more than 15 minutes, during which time Detective Tong was uniformly calm and reasonable in tone and demeanor. R.W. himself posed intelligent questions concerning his predicament, and gave no indication of being at a disadvantage due to his youth, inexperience, or impairment. The juvenile court judge, who had additional opportunity to observe R.W. during the jurisdictional hearing, found him to be "a very sophisticated 15-year-old almost 16-year-old young man." Although we review the evidence independently, we may allow great weight to such a considered conclusion by the lower court after it has reviewed the same evidence. (People v. Kelly (1990) 51 Cal.3d 931, 947.)
In light of all the factors disclosed by the undisputed evidence, we conclude that R.W's will was not overborne, and his confession was voluntarily given and not coerced.
The videotape of the interrogation demonstrates the manner and tone of the questioning, the promises of help, and the length of the process were far different from In re Shawn D, supra, 20 Cal.App.4th at pages 203-207, where defendant was questioned for three hours by two officers in tandem, suffered from posttraumatic stress disorder, was falsely threatened to be tried as an adult and sent to San Quentin; defendant's pregnant girlfriend, threatened with also being "locked up," was left with defendant to put pressure on him; and he was repeatedly promised leniency that permeated the entire interrogation.
II. The Probation Condition Against Gang Associations
The probation officer's report prepared for the dispositional hearing noted that a review of R.W.'s "adjustment record" disclosed the minor had "admitted to having a membership in a North Richmond gang," and that his probation file had indicated he was "a member of the Norteños." Among the probation conditions, recommended by the PO and adopted by the juvenile court, was one calling for "no gang associations, colors, clothing, insignias, signs, paraphernalia or activities."
R.W. contends this probation condition is overly vague in violation of his constitutional due process rights. He argues the condition fails to specify what colors, clothing, signs, or activities would violate the condition, and thus, fails to provide fair notice of noncompliance, either to himself or to any officer monitoring his compliance. In addition, he complains it is so overbroad that it interferes impermissibly with his right to choose his own clothing and overall appearance—particularly in its prohibition of unspecified gang " 'colors' " and " 'clothing.' "
The Attorney General concedes, and we agree, that the challenged condition must be modified. That is, the condition is constitutional only insofar as it prohibits "gang associations, colors, clothing, insignia, signs, paraphernalia, or activities" that are known to R.W. to be disapproved by the probation officer or other person having authority over the minor. (See In re Sheena K. (2007) 40 Cal.4th 875, 891-892.) Thus, the challenged probation conditions must be modified as follows: You are not to associate with any person whom you know, or whom the probation officer informs you, is a gang member. You are not to possess, wear, or display colors, clothing, insignias, signs, or paraphernalia that you know, or that the probation officer informs you, are evidence of affiliation with or membership in a gang. You are not to engage in activities that you know, or that the probation officer informs you, are gang related. For purposes of these conditions, the word gang means a criminal street gang as defined in Penal Code section 186.22, subdivisions (e) and (f). (Cf. In re Vincent G. (2008) 162 Cal.App.4th 238, 247-248.)
So modified, we conclude the probation condition is otherwise a permissible exercise of the juvenile court's rehabilitative function, to prevent future gang-related criminality. (See In re Vincent G., supra, 162 Cal.App.4th at p. 247; In re Laylah K. (1991) 229 Cal.App.3d 1496, 1500-1502, disapproved on another ground in In re Sade C. (1996) 13 Cal.4th 952, 962, fn. 2, 983-984, fn. 13.)
III. Precommitment Custody Credits
The juvenile court determined R.W.'s aggregate custody time to be six years four months. The record indicates R.W. was detained in the county's juvenile hall from the time of his arrest on November 23, 2010, up to the dispositional hearing held January 10, 2011.
R.W. points out he was entitled to credit for time spent in physical confinement prior to the dispositional hearing. (See In re Lorenzo L. (2008) 163 Cal.App.4th 1076, 1079.) He argues the juvenile court erred by failing to apply—as credit against his aggregate custody time—the 49 days he spent in juvenile hall prior to the hearing on January 10, 2011. The Attorney General concedes this point.
We note, moreover, the juvenile court's dispositional order directed that R.W. remain in juvenile hall until his delivery to his commitment at OAYRF. R.W. is also entitled to credit for this interim custodial period—between the dispositional hearing date and the date of his delivery to OAYRF. (In re J.M. (2009) 170 Cal.App.4th 1253, 1256.)
DISPOSITION
The proceeding is remanded to the juvenile court with directions to modify the probation condition regarding gang associations as specified above, and to award all appropriate precommitment custody credits consistent with this opinion. In all other respects, the dispositional order of January 10, 2011 is affirmed.
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Marchiano, P.J.
We concur:
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Dondero, J.
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Banke, J.