Opinion
A146596
01-17-2017
In re SHANE H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. SHANE 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. SJ14023038)
Following the decision not to try an existing 17-year-old ward as an adult, and the denial of the ward's motion to suppress the confession allegedly obtained during a custodial interrogation in violation of Miranda v. Arizona (1966) 384 U.S. 436, the juvenile court sustained allegations that the ward, Shane H., had committed additional offenses, to wit: first degree robbery of one victim; second degree robbery of two other victims; the attempted robbery of a fourth victim with a deadly and dangerous weapon; and assault with a deadly weapon on a fifth victim. The juvenile court continued Shane as a ward, and ordered him committed to the Division of Juvenile Facilities, his maximum period of confinement being fixed at seven years and six months.
A notice of appeal is to be liberally construed in favor of its sufficiency. (Cal. Rules of Court, rule 8.405(a)(3).) Pursuant to that principle, the notice filed by Shane on October 26, 2015 from the "order of September 13, 2015" will be deemed to perfect a timely appeal from the order made on October 5, 2015 by the Alameda County Juvenile Court, which the Attorney General acknowledges is appealable.
The sole contention advanced by Shane concerns the denial of his suppression motion. He maintains it must be overturned on two grounds: (1) he made an unambiguous invocation of his rights when he "demanded to be taken to Juvenile Hall," at which point questioning should have, but was not halted; and (2) the ensuing confession was rendered involuntary, and thus offensive to due process, by reason of the interrogating officers' "pervasive use of threats and deceptive tactics."
Shane was given the Miranda admonitions twice: first, at the time he was arrested in Oakland; and second, when he was shortly thereafter interviewed at a San Francisco police station by San Francisco Police Sergeant Lozada, and Officers Yuen, Burke, and Thompson. The San Francisco interview lasted one hour and 48 minutes on the afternoon of August 12, 2014.
The issue was submitted for decision on the basis of brief testimony by Lozada and Thompson, and a recording of the interrogation. After listening to the recording, the juvenile court stated its ruling as follows:
"Under the voluntariness and totality of the circumstances standard, taking into consideration the factors of [Shane's] age and experience in criminal situations, I find the waiver was a valid confession and admissible. . . . [¶] Under the totality of the circumstances, it appears that the Minor knew what his rights were. He acknowledged that on page 4 of the transcript that he learned about his rights that was given to him when he was quote unquote grabbed.
"And, furthermore, the times that he talked about I'm done, let's go to YGC [Youth Guidance Clinic], it was equivocal. It suggests he was making a demand to—not suggested clear demand to stop the interrogation because it was couched in terms of where he was going to be taken and that he was asking to be taken to YGC not to be tried as an adult. [¶] With those equivocations, I don't think it was clear retrieval of his initial waiver of the rights, therefore I find that there is the waiver."
Our review of this ruling is de novo: "In reviewing the trial court's denial of a suppression motion on Miranda and involuntariness grounds" "[w]here, as was the case here, an interview is recorded, the facts surrounding the admission or confession are undisputed and we may apply independent review." (People v. Duff (2014) 58 Cal.4th 527, 551; see People v. Suff (2014) 58 Cal.4th 1013, 1068 ["Because defendant's statements are undisputed, we independently determine whether he unambiguously asserted his to right to counsel"].)
Although the Miranda issue is the first advanced in Shane's opening brief, we choose to begin with the issue of voluntariness, because it covers more ground. In addition, by considering it first, we may avoid repetition of details from the interrogation when addressing the Miranda issue.
Voluntariness
"The test for the voluntariness of a custodial statement is whether the statement is ' "the product of an essentially free and unconstrained choice,' " or whether the defendant's ' "will has been overborne and his capacity for self-determination critically impaired" ' by coercion." (People v. Cunningham (2015) 61 Cal.4th 609, 642.) The totality of circumstances approach looks to factors relating to the police questioning (e.g., length, location, continuity, deprivation of sleep, water, food) and to the person questioned (e.g., age, experience, physical condition, intelligence, past dealings with police). (Id. at pp. 642-643; People v. Lessie (2010) 47 Cal.4th 1152, 1169; People v. Neal (2003) 31 Cal.4th 63, 84.)
Shane argues he was coerced into confessing by "the officers' use of threats, deception, promise of benefit, and false concern" which "were obviously designed to strike fear in the heart of a minor unfamiliar with the law."
During the course of the interview, Shane admitted he had been "arrested back last summer," and was currently on probation. He was offered food and drink ("You want a bagel? Some coffee?"). When asked: "Why do you keep yawning?", Shane replied that he was not tired, just "irritated and annoyed" about "life, a lot of shit." The tone of his voice is not scared or cowed. When shown a video of one of the offenses and a jacket of his that appeared to match that worn by a person on the video, Shane was defiant: "I didn't do that shit, I don't recognize none of that . . . ." "[I]t's not me." When told how the video might figure in court, especially if "you get tried as an adult," his attitude did not waiver: "It is what it is. I still don't know who that is. I'm sticking to that." When asked if he wanted to see "the other videos because there's three more," including "the one with your tattoo," Shane replied: "Yeah. I want to see all that shit."
One of the officers stated: "A jury is going to see these videos and be like oh yeah, that's him whether you say it or not, right. We have all the evidence. We've got your jacket that we got from your house. We've got the shoes that we got from your house, we got the video that shows your face."
Approximately 24 minutes into the interrogation, Officer Thompson—who at that point was doing most of the speaking to Shane—took up a comment by Officer Yuen "we've got all the evidence" they needed to convict Shane. Officer Thompson stated "We're not even here to try to prove it's you. The thing is that now the position you're in is to try to make someone" understand why Shane had taken to armed robbery that involved injuring the intended victim. The following then occurred:
"[SHANE]: All right, well I'm ready man, I'm done. You all going to take me to YGC now? Why ain't, why ain't I going to Alameda County?
"OFF. YUEN: Because these crimes occurred in San Francisco.
"OFF. THOMPSON: Blood, this didn't happen—we just showed you the MUNI [video], that ain't Alameda County.
"[SHANE]: But I'm going to get transferred to Alameda County though, right?
"OFF. YUEN: No, you're going to get tried, you're going to get tried here in San Francisco.
"[SHANE]: And then I'll go to
"SGT. LOZADA: So what I'm pushing for is that you be tried as an adult . . . .
"[SHANE]: So you're going to try to push me and then [unintelligible]
"SGT. LOZADA: You're so close to an adult and these crimes are so vicious that I'm personally going out to petition George Gascon tomorrow to have you tried as an adult so this is not going to get transferred to Alameda County and because the, the evidence against you is so damning you can't take a plea as a juvenile you can't take a plea, you can't say 'hey, you know what, I plead no contest, give me six months,' you can't do that, right. You don't have a defense. I don't know ain't going to fly so what's going to happen is it's going to go straight to trial, straight to trial, right, so that means it's going to be you and me and twelve jurors and all I've got to do is play that video, the video that shows you getting on the bus, show the video of you . . . putting your hood one [sic], and then dragging that woman off the bus. That will be the first video I show and then I'm going to show the video from the 26th, and then I'm going to show the videos from the 28th and the video from the 2nd. I'm going to show the jury this woman that you shot in the face."
After a little more of this, Shane said facetiously "All right, say no more, I did it, all right, say no more. Sure I did." Officer Thompson responded: "Convince me. Convince me." Shane asked: "So you're saying they're going to try me as an adult, so you're going to try to lock me up for ten, twenty years?" Officer Thompson replied: "It's a grown-ass crime. I mean this is not stealing candy." Shane then stated: "I'm ready to go to YGC, come on, take me. That nigger say going to try me as an adult. So what you trying to do to everybody else? You trying everybody else as an adult?"
Officer Yuen told Shane "You're the one robbing people." Officer Thompson told Shane he wanted to know "why would you do something like that?" There followed some comments about the prevalence of cell phone cameras, with Officer Thompson stating: "There's cameras everywhere . . . catching people doing wrong and you happen to be one of them." Shane continued to insist "I know that ain't me."
Answering a comment by Officer Thompson, Shane stated: "So you all got me on video . . . shooting this lady in her face, let me see that, let me see that, I want to see that. [¶] . . . [¶] I want to see that right now bro. I want to see that right now. You ain't got it blood because I know for a fact I didn't do that nigger. You ain't got no video of me shooting nobody in nobody's face nigger. Nigger is up here lying trying to put that shit on me. Lucky I ain't no snitch, nigger. Come on, man, just take me to jail [simultaneous comments]. Come on, take me to jail. Let's go, bro. That nigger say you going to try me as an adult: . . . Come on bro." "I didn't do nothing."
After 32 minutes of the interview, Officers Yuen and Thompson asked Shane what he did to get on probation. This is what ensued:
"[SHANE]: Dude took the phone and I ran.
"OFF. THOMPSON: And they caught you?
"[SHANE]: And they caught both of us.
"OFF. YUEN: What'd you get charged with?
"[SHANE]: Uh. Something like—I forgot, they dropped it and changed it to some other shit.
"OFF. THOMPSON: Dropped it to a misdemeanor.
"[SHANE]: Yeah, something like that.
"OFF. YUEN: Did you work with the cops last time? Right, told the truth, right? Did you tell the truth? Tell them what happened?
"OFF. THOMPSON: At least enough of it.
"OFF. YUEN: At least enough of it.
"OFF. THOMPSON: At least enough of it to get you down to a misdemeanor.
"[SHANE]: Yeah.
"OFF. YUEN: Right, so it got dropped. That's what happens when you work with us."
When Officer Yuen told Shane "we're showing you hard evidence," his response was "Weak ass evidence" because "you ain't got evidence that it was me." The three officers then spent several minutes emphasizing the state of the evidence against him; how it would be perceived by a jury; and how he couldn't "just give up on yourself . . . . You owe it to your pops [father]," "to the people that helped you out."
Officer Yuen told Shane "I'm letting you know what we got and we're giving you a chance to explain yourself." Shane replied that "That nigga [Thompson] said he's gonna try me as an adult." Thompson interjected: "We don't have to. You're really still a juvenile." Shane told him: "But why would you all do that anyway? If you all obviously know it's me I'm saying no what, even if I say yeah it's not going to make no difference." "Now I'm going to get charged with something that I know I didn't do for a fact. Dumb. Dumb. Why you do that?"
Officer Thompson continued: "It looks worse than it is, you know what I'm saying, that, we saw this one [video] already. Let's just watch it. I want to know what's going on in that young man's head, why, it ain't even worth it." Shane's response was "I don't know why I did that." He then gave his motives: "To be honest bro I was just broke. And there we wasn't doing nothing."
Shane believes our recent decision in In re Elias V. (2015) 237 Cal.App.4th 568, is controlling, but there are dispositive differences. We characterized the minor there as "a young adolescent" of 13 with "no prior confrontations with the police." (Id. at p. 591.) By contrast, Shane was an experienced 16, and already a veteran of the juvenile court's quasi-criminal jurisdiction. We were influenced in Elias by "the absence of any evidence corroborating the truth of [his] incriminating statements, . . . and the presence of evidence suggesting they may be false." (Id. at p. 596.) Here, the officers had physical evidence (the shoes and jacket) incriminating Shane, and they were using detailed videos whose veracity Shane does not dispute. Shane points to nothing suggesting his actual innocence.
Shane makes no claim of physical mistreatment or deprivation. Confronting Shane with some of the evidence against him is neither deception nor coercion. Misrepresenting the amount of that evidence does not taint an ensuing confession unless the lie is the proximate cause of a confession, that is, the mistruth was of a type reasonably likely to induce a false confession. (See People v. Musselwhite (1998) 17 Cal.4th 1216, 1240-1241; People v. Thompson (1990) 50 Cal.3d 134, 167.) The mistruth here—that one of the videos depicted Shane actually shooting a victim—was not of that magnitude when considered it was just one of three videos depicting three of the offenses alleged against him. The jacket and shoes mentioned at the outset of the interview had in fact already been found in a search of Shane's home in Oakland. Moreover, Shane seemed singularly unimpressed by the exaggeration, demanding to see the other videos the officers claimed to have. And up to the moment he began his confession he was telling them: "Now I'm going to get charged with something that I know I didn't do for a fact. Dumb. Dumb. Why you do that?"
Urging a suspect to tell the truth is not improper. (People v. Williams (2010) 49 Cal.4th 405, 444.) Telling Shane he could be prosecuted as an adult was neither legally inaccurate nor an idle threat, as that is precisely what the probation officer and the district attorney subsequently, but unsuccessfully, tried to do.
The principles regarding promising leniency are firmly established: "It is well settled that a confession is involuntary and therefore inadmissible if it was elicited by any promise of benefit or leniency whether express or implied. [Citations.] However, mere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent confession involuntary. [Citation.] The distinction that is to be drawn between permissible police conduct on the one hand and conduct deemed to have induced an involuntary statement on the other 'does not depend upon the bare language of inducement but rather upon the nature of the benefit to be derived by a defendant if he speaks the truth as represented by the police.' [Citation.] Thus, '[when] the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct,' the subsequent statement will not be considered involuntarily made. [Citation.] On the other hand, 'if . . . the defendant is given to understand that he might reasonably expect benefits in the nature of more lenient treatment at the hands of the police, prosecution or court in consideration of making a statement, even a truthful one, such motivation is deemed to render the statement involuntary and inadmissible. . . .' [Citations.]" (People v. Jimenez (1978) 21 Cal.3d 595, 611-612.)
As Shane views it, Officer Yuen's "that's what happens when you work with us" comment "in context impl[ied] that confessing could result in the charges being reduced." On the contrary, the context shows that the comment had no impact on Shane's position that that all the officers had was "Weak ass evidence." Likewise, Officer Thompson's "You're really still a juvenile" comment was utterly ineffective in budging Shane, as shown by his response: "Dumb. Dumb. Why you do that?" The context shows no promise, only pointing out the benefits of telling the truth. (See People v. Holloway (2004) 33 Cal.4th 96, 116 ["Hash's further suggestions that the killings might have been accidental or resulted from an uncontrollable fit of rage during a drunken blackout, and that such circumstances could 'make[] a lot of difference,' fall far short of being promises of lenient treatment in exchange for cooperation. The detectives did not represent that they, the prosecutor or the court would grant defendant any particular benefit if he told them how the killings happened. To the extent Hash's remarks implied that giving an account involving blackout or accident might help defendant avoid the death penalty, he did no more than tell defendant the benefit that might ' "flow[] naturally from a truthful and honest course of conduct" ' "].) Sergeant Lozada's earlier remark clearly advised Shane that the decision how he would be charged was not up to the officers, but would be decided by District Attorney George Gascon. The officers did not tell Shane what they wanted him to admit. (Cf. People v. Howard (1988) 44 Cal.3d 375, 398 ["The interrogating officers did not imply that the fate of defendant's son . . . depended on defendant stating what they wanted to hear."]; In re J. Clyde K. (1987) 192 Cal.App.3d 710, 722 ["The potential benefits that the boys could expect . . . were clearly and expressly spelled out by Officer Marovich"].)
Moreover, in light of Shane's unyielding responses, it is very difficult to view the officers' comments as constituting the proximate cause in Shane eventually deciding to confess. (See People v. Musselwhite, supra, 17 Cal.4th 1216, 1240-1241; cf. People v. Vasila (1995) 38 Cal.App.4th 865, 874 ["an improper promise of leniency does not render a statement involuntary unless, given all the circumstances, the promise was a motivating factor in the giving of the statement" italics added].)
Our independent review shows an alert teenager with some knowledge of the systems and procedures facing him. He was aware of the possibility of being tried as an adult. As already mentioned, his voice betrayed no sign of being browbeaten or overawed. On the contrary, he fully engaged the officers on their own terms. For more than half an hour, he held them at bay. The situation is close to that in In re Joe R. (1980) 27 Cal.3d 496, which we described as follows: "The minor, nearly 18 years old, denied participation in two robberies for the first 30 to 40 minutes of interrogation, then confessed after the interrogating officer accused him of lying 'loudly, emphatically, and with terse language (e.g., "bullshit")' and confronted him with incriminating evidence that had been discovered in the closet of his bedroom" "[T]he interrogation was preceded by an investigation that independently provided substantial inculpatory and corroborating evidence." (In re Elias V., supra, 237 Cal.App.4th 568, 594-595.)
Miranda
Shane does not deny that he was advised of his rights under Miranda when arrested and at the outset of the interview, or that he waived those rights and initially agreed to answer the officers' questions. Shane contends that his repeated demands to be taken to the Youth Guidance Clinic—which he equates with "Juvenile Hall"—and accompanying remarks were an invocation of his Miranda right to halt questioning that was not respected by the officers.
"In order to invoke the Fifth Amendment privilege after it has been waived, and in order to halt police questioning after it has begun, the suspect 'must unambiguously' assert his right to silence or counsel. . . . Faced with an ambiguous or equivocal statement, law enforcement officers are not required under Miranda . . . either to ask clarifying questions or to cease questioning altogether." (People v. Stitely (2005) 35 Cal.4th 514, 535; accord, e.g., Berghuis v. Thompkins (2010) 560 U.S. 370, 381-382; People v. Suff, supra, 58 Cal.4th 1013, 1068.) The rule, which is the same for juveniles as well as adults, employs an objective standard. (See People v. Nelson (2012) 53 Cal.4th 367, 376, 379-380.) "The question is not what defendant understood himself to be saying, but what a reasonable officer in the circumstances would have understood defendant to be saying." (People v. Gonzalez (2005) 34 Cal.4th 1111, 1126.)
Shane's demands to be taken to YGC (assuming the San Francisco officers recognized what the initials signified when used by a ward of the Alameda County Juvenile Court), come nowhere near an unambiguous invocation of his Fifth Amendment right to silence. Its first appearance—"You all going to take me to YGC now?"—was not even a demand, but an obvious question. That the question was preceded by the words "I'm done" is not dispositive, because Shane did not refuse to speak further, but instead engaged the officers on the issue of whether the proper jurisdiction was San Francisco or Alameda County. The second and final time—"I'm ready to go to YGC, come on, take me"—was buried in Shane's volubly dismissive response to Officer Thompson's "threat" to have him treated as an adult. Neither was followed by Shane reiterating or explaining what he meant. Neither was followed by Shane refusing to respond to the officers. Neither was followed by Shane unequivocally telling the officers he would answer no further questions. Thus, our independent review establishes that Shane's remarks, considered from the objective perspective of reasonable police officers, did not rise to the level of constituting an unequivocal or unambiguous invocation.
The order of commitment is affirmed.
/s/_________
Richman, J. We concur: /s/_________
Kline, P.J. /s/_________
Miller, J.