Opinion
For Opinion on Hearing, see 146 Cal.Rptr. 358, 579 P.2d 7.
Opinions on pages 201-249 omitted.
HEARINGS GRANTED
[135 Cal.Rptr. 763]Wilbur F. Littlefield, Public Defender of Los Angeles County, John J. Gibbons, Patricia E. Rice, Albert J. Menaster, Deputy Public Defenders, for appellant.
Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Shunji Asari, Mark Alan Hart, Deputy Attys. Gen., for respondent.
ALLPORT, Associate Justice.
Michael Wayne C., a 16 year old minor, appeals from orders of the juvenile court made April 12 and May 10, 1976, sustaining the allegations of paragraph I of a petition filed by the county probation officer alleging Michael to be a person who came within the provisions of Welfare and Institutions Code section 602 for having killed one Robert Yeager in violation of Penal Code section 187 and adjudicating him to be a ward of the court committing him to the Youth Authority. The appeal lies. (Welf. & Inst.Code, § 800.)
Contentions
It is contended that his confession, obtained in violation of Fifth Amendment constitutional rights should have been excluded dictating reversal of the orders. (People v. Fioritto, 68 Cal.2d 714, 720, 68 Cal.Rptr. 817, 441 P.2d 625.)
It appears that absent the confession the evidence was insufficient to sustain the conviction. No argument to the contrary is presented by the People.
Discussion
It is argued that, by requesting the presence of his probation officer at the time of interrogation by police sergeant Stanley L. Miller, the minor invoked his privilege against self-incrimination rendering the confession thereafter obtained invalid. In this respect Sergeant Miller testified:
'BY MR. LEVITIN: [For People]
Q. Sergent Miller, during the course of your investigation, did you have a conversation with defendant Michael C . . .?
A. Yes, sir.
Q. And when and where did that conversation take place?
A. That occurred on February 4, 1976, at Van Nuys Police Station.
Q. During the course of that conversation, before initiating the conversation, did you advise defendant C . . . of his constitutional rights?
A. Yes, sir.
Q. What did you tell him in that regard?
A. I advised defendant C . . . from a card, L.A.P.D. Form 15.30.
Q. Did you read that card to him?
A. Yes, sir, I did.
Q. Would you read it to us now in the same manner that you read it to him?
A. I advised Michael C . . .:
'You have the right to remain silent. If you give up the right to remain silent, anything you say can and will be used against you in a court of law.
'You have the right to speak with an attorney and to have the attorney present during questioning.
'If you so desire and cannot afford one, an attorney will be appointed for you without charge before questioning.'
I asked Michael C . . ., 'Do you understand each of these rights as I have explained them to you,' and he stated, 'Yeah.'
[135 Cal.Rptr. 764]I said, 'Do you wish to give up your rights to remain silent,' and he said, 'Yes.'
I said, 'Do you wish to give up your right to an attorney, have him present?'
At that time, he asked if he could speak to his probation officer. I advised him he had a right to have an attorney present. I would not call his probation officer, and he stated he would talk to me without an attorney at that point.
Q. All right, now were there any other persons besides yourself and defendant C . . . present during this conversation?
A. Yes, Investigator Steinauer.
Q. And this conversation took place at the Van Nuys Police Station, one of the interview rooms?
A. Yes, sir.
Q. And was that conversation recorded?
A. Yes, sir.
Q. And did you cause or procure a transcript to be prepared of that recording?
A. Yes, sir.
Q. And have you reviewed the transcript and the recording?
A. Yes, sir.
Q. And is the transcript a true and correct copy of the recording, insofar as you are able to tell?
A. Yes, sir.
MR. LEVITIN: I'd like to have marked as People's next in order, People's
THE COURT: 16, Petitioner's 16.
MR. LEVITIN: --this transcript of michAel c . . . beArs the tape number of 61725.'
Then the following occurred:
MISS RICE: Your Honor, there are some additions that I believe the district attorney would agree to that are not contained in the transcript. Perhaps we should give them to the court at this time.
Line--On page 2, line 4, transcript reads: 'Yeah, I want to talk to you.' Should read, 'Yeah, I might talk to you.'
THE COURT: All right, my we correct by interlineation?
MR. LEVITIN: Petitioner so stipulates.
THE COURT: 'Yeah, I might talk to you.'
MISS RICE: Line 10
MR. LEVITIN: What page?
MISS RICE: This is page 2. 'How I know you guys won't pull no police officer in and tell me he is an attorney?'
MR. LEVITIN: So stipulated.
THE COURT: Will be amended by interlineation on line 10, page 2, to read: 'How I know you guys won't pull no police officer in and tell me he is an attorney?'
MISS RICE: Yes. Line 1 is then a repeat of line 10.
Your Honor, there may be one or two words different in the repeat, but it's in substance a repeat.
Line 13, 'Your probation officer is Mr. Christianson.' Line 15, 'Well, I am not going to call'--the word 'him' is not on the tape. It is really, 'Well, I am not going to call Mr. Christianson.'
Line 24, 'Yeah, I want to talk to you.'
MR. LEVITIN: In other words, the leadin words are unintelligible, and the 'I want to'
THE COURT: Those changes have been made by the court by interlineation.
MISS RICE: We began at page 3, line 3.
THE COURT: And it goes to what?
MISS RICE: Goes to line 11 or 13, I am not sure what I indicated to the court. I stopped at line 11.
THE COURT: And then as to page 14, this is simply going to be stipulation rather than listening to the tape, line 13 through 16.
MISS RICE: Your Honor, 'Hey, man,' something unintelligible, 'Tell nobody what I have been telling you, man.' The questioner would be the investigator--something unintelligible, 'No way, no way,' and then, 'I am going to get my coffee.'
[135 Cal.Rptr. 765]THE COURT: All right. Does that complete the preliminary matters on foundation as far as the petitioner's concerned, Mr. Levitin, or do you have anything additional you want to ask Sergeant Miller concerning foundation for C . . .'s statement?
MR. LEVITIN: That's all petitioner offers with regard to the foundational regard to C . . ..'
The clerk's transcript indicates that the transcript of tape no. 61725 (defendant) Exh. No. 16 and the tape itself Exh. No. 17 were marked for identification only on April 9, 1976, and that on April 12 Exh. 17 was received in evidence. The reporter's transcript shows that the transcript was 'marked' as Exh. 16. The index fails to disclose that either 16 or 17 were ever received in evidence. The trial court expressly referred to the transcript in ruling on the motion to exclude the confession.
In denying the motion to exclude the confession the trial court summarized the situation by saying:
'THE COURT: I think it is a factual question in each case as to whether the minor is indicating that he does not want to give up his right to remain silent or just what the purpose of the statement is.
I point out at page 2 of the transcript that prior to asking, 'Can I have my attorney or my probation officer here,' the minor does state, 'Yeah, I might talk to you.' It seems to me that the statement both before and after the question whether he can have his probation officer here indicates pretty clearly that the minor is willing to talk without the probation officer or without the attorney.
Here the court's quotation of the minor's question from the transcript is both improper and inaccurate, improper because the transcript was not in evidence and inaccurate because the minor did not in fact request presence of an attorney. At no place in the record before us is it disclosed that the minor ever asked for an attorney nor does he so contend on appeal. The court correctly quoted the minor's question in the next paragraph as 'Can I have my probation officer here.' We too have gone outside the record out of an abundance of caution in view of the confusion created by the record as presented on appeal in this case and the obvious assumption by all concerned that the transcript, which had been marked for identification was in fact in evidence.
Sergeant Miller apparently has gone on to--after the question, 'Can I have my probation officer here,' he gone on again to re-explain the right, 'If you don't want to talk to us, you don't have to. If you don't want to say something, if you want to say something, you can. If you don't want to say something, you don't have to. That's your right. Do you understand?'
The minor says, 'Yes.' He explains that, 'We can talk to the probation officer later, but I am not going to call him right now,' and it seems to me we are dealing here with a 16, 16 and a half year old minor who has been through the court system before, has been to camp, has a probation officer. We are not dealing with a young, naive minor with no experience with the courts. I just do not construe it in this case as an indication of the privilege.
In Burtion, [6 Cal.3d 375, 99 Cal.Rptr. 1, 491 P.2d 793] as you recall, the parent was present in the police station and had requested to see the minor, and the minor had several times requested to see the parents, and while they don't set forth the conversation or the interrogation that occurred in Burton, one certainly gets the impression from reading the decision that the minor was just kind worn down. I don't see that in this case at all. The statement, 'Can I have my probation officer present,' occurs right at the outside of the conversation. There is no evidence of any lengthy prior interrogation or anywhere keep having to--or they keep pursuing a substantive offense prior to a waiver of a right. It seems to me there is a clear waiver at the outset in this case.
The court denies the motion to exclude the conversation.'
Although it is subsequently argued that threats and promises by the police and the invocation of the right to silence invalidated the confession, we must conclude [135 Cal.Rptr. 766] that there was a knowing and intelligent waiver of the minor's Miranda rights unless it can be said that the request to speak to a probation officer was in and of itself sufficient to invoke his privilege against self-incrimination guaranteed by the Fifth Amendment.
These matters were resolved as factual matters adversely to the position taken on appeal. The trial court's findings in this respect are supported by the record before us and are binding on appeal. (People v. Duren, 9 Cal.3d 218, 238, 107 Cal.Rptr. 157, 507 P.2d 1365.)
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.
In People v. Burton, 6 Cal.3d 375, 99 Cal.Rptr. 1, 491 P.2d 793, a 16 year old minor was arrested, taken to the police station, booked and placed in a cell for questioning at which time he requested to see his parents (his father had arrived during the booking process but had been refused a request to see his son). Subsequently the minor was advised of his Miranda rights which he waived and then confessed to the crime. Concluding that the People had presented no proof that the minor did not intend to assert his privilege, the Supreme Court held at pages 383-384, 99 Cal.Rptr. at pages 6-7, 491 P.2d at pages 798-799 that:
'when, as in the instant case, a minor is taken into custody and is subjected to interrogation, without the presence of an attorney, his request to see one of his parents, made at any time prior to or during questioning, must, in the absence of evidence demanding a contrary conclusion, be construed to indicate that the minor suspect desires to invoke his Fifth Amendment privilege. The police must cease custodial interrogation immediately upon exercise of the privilege. The police did not so cease in this case, the confession obtained by the subsequent questioning was inadmissible, and, therefore, the admission of such confession was prejudicial per se and compels reversal of the judgment on all counts. (People v. Randall, supra, 1 Cal.3d 948, 958, 83 Cal.Rptr. 658, 464 P.2d 114; and cases there cited.) The admission of this confession constitutes reversible error even though it was subsequently preceded by a knowing and intelligent waiver of the privilege, as we held under identical circumstances in Fioritto, Ireland [People v. Ireland, 70 Cal.2d 522, 75 Cal.Rptr. 188, 450 P.2d 580] and Randall, because: 'After the initial assertion of the privilege, the defendant is entitled to be free of police-initiated attempts to interrogate him. Any statements made by a defendant in response to such questioning cannot be characterized as voluntary.' (People v. Randall, supra, 1 Cal.3d 948, 958, 83 Cal.Rptr. 658, 464 P.2d 114.)'
It is suggested that the holding in Burton be extended by this court to include a request to see his probation officer. This we decline to do.
While such an extension might, at first blush, appear logical, we believe a line must be drawn before a request for consultation with one's football coach, music teacher or clergyman, be deemed to invoke Fifth Amendment privileges. While we would draw the line even though there was 'nothing in the way of affirmative proof that defendant did not intend to assert his privilege', Burton, supra, page 383, 99 Cal.Rptr. page 6, 491 P.2d page 798, we find in the record before us the existence of a measure of such proof sufficient to factually distinguish Burton and support the lower court's action in so doing. Noting that Burton does not discuss People v. Lara, 67 Cal.2d 365, 62 Cal.Rptr. 586, 432 P.2d 202 (cert. denied, 392 U.S. 945, 88 S.Ct. 2303, 20 L.Ed.2d 1407) we believe the following from that opinion is instructive:
'We cannot accept the suggestion of certain commentators (see 7 Santa Clara Lawyer 114, 127 (1966); 40 Wash.L.Rev. 189, 200-201 (1965)) that every minor is incompetent as a matter of law to waive his constitutional rights to remain silent and to an attorney unless the waiver is consented to by an attorney or by a parent or guardian who has himself been advised of the minor's rights. Such adult consent is course to be desired, and should be obtained whenever feasible. But as we will explain, whether a minor knowingly and intelligently waived these rights is a question of fact; and a mere failure of the authorities to seek the additional consent of an adult cannot be held [135 Cal.Rptr. 767] to outweigh, in any given instance, an evidentially supported finding that such a waiver was actually made.'
'This, then, is the general rule: a minor has the capacity to make a voluntary confession, even of capital offenses, without the presence or consent of counsel or other responsible adult, and the admissibility of such a confession depends not on his age alone but on a combination of that factor with such other circumstances as his intelligence, education, experience, and ability to comprehend the meaning and effect of his statement. (See cases collected in Note, 87 A.L.R.2d 624.) Applying the 'totality of circumstances' test of Gallegos [Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.E.2d 325] such confessions have been held admissible when made by a minor of the age of fourteen, fifteen, sixteen, seventeen, eighteen, nineteen, or twenty. As the court concluded in State v. Carder (Ohio 1965) supra, 3 Ohio App.2d 381, 210 N.E.2d 714, 719, after reviewing the facts surrounding the murder confession of a 16-year-old youth. 'Under this 'totality of circumstances,' for his statements to be inadmissible we would have to told that any self-incrimination of a person under 18 years old is involuntary unless his parents or his attorney are present. We would also have to hold that such minor is not mature enough to make a voluntary confession or waive the presence of his parents or his lawyer during any conversation with the police. This is not the law.' (Italics added.)
Nor is it the law in California, where our courts uniformly follow the 'totality of circumstances' rule.' (Fns. omitted.) (Pp. 378-379, 383-384, 62 Cal.Rptr. pp. 596, 599, 432 P.2d pp. 212, 215.)
It appears that after having been told that he had a right to have an attorney but not his probation officer present, the 16 year old minor, characterized by the trial court as not being a young naive individual with no experience with the courts, agreed to talk to the officer. We conclude that the 'totality of the circumstances' affords sufficient 'affirmative proof' of an intent to waive the privilege to support the trial court's conclusions in the instant case.
The orders appealed from are affirmed.
COBEY, Acting P. J., and POTTER, J., concur.