Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of San Luis Obispo Super. Ct. No. JV43328, Teresa Estrada-Mullaney, Judge.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, Taylor Nguyen, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
Roberto H. appeals a judgment sustaining the allegations of a Welfare and Institutions Code section 602 petition and finding that he committed premeditated murder (Pen. Code, §§ 189/187, subd. (a)), first degree residential burglary (§ 459), first degree residential robbery (§ 211), elder abuse (§ 368, subd. (b)(1)), and false imprisonment of an elder adult by violence (§ 368, subd. (f)). We conclude, among other things, that the court properly denied Roberto H.'s motion to suppress his confession and that substantial evidence supports the finding that he falsely imprisoned an elderly man. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
FACTS
After midnight, Roberto H., age 13, entered the trailer of Gerald O'Malley, an elderly man. He looked for O'Malley's car keys. When he found them, O' Malley woke up and confronted him. Roberto H. struck O'Malley's head four times with a skateboard. O'Malley fell to the floor, but was still breathing. Roberto H. grabbed O'Malley's wallet and credit cards. He then ran home, returned a short time later, and padlocked the door to O'Malley's trailer.
Days later, the police arrested Roberto H. and his friend Josh G. and put them in a patrol car. The vehicle is equipped with a recording device. While the officer was away, Roberto asked Josh, "Dude, if I were to be able to get out of this right now, and have not one cop see us, would you run? Josh said, "[W]hat about the fucking handcuffs." Roberto H. responded, "[A]nd you can't open the door for me. Damn it." Roberto H. said he tried to destroy O'Malley's credit cards by flushing them down the toilet in his home. But "they wouldn't flush" so he "pushed them down." Roberto H. said, "We couldn't use the credit cards." He told Josh, "[T]he bag had the keys in it. Hey, it's up on the roof, nobody will find it." He also said, "If there's a camera in this car, fuck you."
Larry Hobson, a district attorney investigator, testified that Roberto H. was advised of his Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436.) He understood and answered each component of the Miranda warning. He told police that he wanted to talk to assure them that "he didn't do anything wrong." The interviewers made no threats, there was no coercion, and no promises were made to Roberto H. The interrogation was videotaped. Hobson testified that during the interview, Roberto H. did not appear to be nervous and "understood the difference between right and wrong." He said, "At no time did he answer questions that he appeared to be confused about or did not understand. In fact, if he didn't understand them, he would ask us."
After waiving his Miranda rights, Roberto H. said he had never been in O'Malley's trailer. Later, during questioning, he admitted that he was there, he struck O'Malley four times with a skateboard, left, returned, and padlocked the door to O'Malley's trailer.
Viviana C., a friend of Roberto H.'s, testified at trial that Roberto H. told her he had hit O'Malley "over the head with his skateboard" twice but "he . . . wouldn't fall, so he hit him . . . three more times." He then admitted taking O'Malley's money, credit cards, car keys and putting a lock on O'Malley's trailer. She said that on a prior occasion Roberto H. asked her if O'Malley lived alone. He told her he planned to go to O'Malley's trailer, pretend that he needed to make a phone call and then try to take O'Malley's car keys.
Kerry W., a neighbor of O'Malley's, testified that she saw Roberto H. with O'Malley's car keys and asked him how he got them. He said he "hit the old man over the head with a skateboard and killed him."
Humberto A. testified he saw Roberto H. with O'Malley's car keys. Roberto H. told him he obtained them by hitting O'Malley "in the head with a skateboard." He showed Humberto a wallet with cash and credit cards.
Corina C., who was present with Humberto, said Roberto H. had the car keys and said that he hit "the old guy" with a skateboard.
Police detective Todd Bishop testified that after obtaining a search warrant he searched Roberto H.'s home. Police found O'Malley's credit cards at the residence in a toilet.
Dr. Fred Walker performed an autopsy. He said O'Malley received "multiple blows" and died as a result of "blunt head injury."
The Suppression Motion
Robert H. moved to suppress his confession claiming he lacked the ability to understand his Miranda rights because he had frontal-lobe brain damage and limited cognitive abilities.
The prosecution called Dr. David Fennell, a psychiatrist. He testified that he reviewed Roberto H.'s medical records, a Positron-Emission Tomography (PET) scan of his brain, his psychological tests, his school records and a transcript and videotape of the police interrogation. He said Roberto H. had some "minimal frontal-lobe dysfunction." But "there was still good preservation of overall frontal-lobe functioning, and executive reasoning." He had "an awareness of guilt" and understood self-incrimination as shown by his attempts to conceal evidence. During the police interrogation, Roberto H.'s responses and behavior demonstrated that he "understood what was at stake." Dr. Fennell said "to a degree of medical certainty" Roberto H. had the capacity to understand and waive his Miranda rights. He also noted that PET scan brain images may vary hourly for a patient. If a patient day-dreamed or dozed off, there would be a different PET scan image. It would therefore be "nonsensical to pluck out" one scan "and tie clinical significance to it."
Robert H. called several experts. Dr. Joseph Chong-Sang Wu testified the PET scan showed frontal-lobe abnormalities, indicating that Roberto H. had "a high probability of having problems learning, and with general intelligence." On cross-examination, Dr. Wu said he could not correlate "with a hundred percent certainty" that a PET scan will predict "specific behavior abnormalities." He could not determine intelligence quotient (I.Q.) from a PET scan.
Dr. Rahn Minagawa, a clinical psychologist, opined that based on Roberto H.'s cognitive abilities he could not understand a Miranda warning. On cross-examination, he said he administered a 400-question "MMPI" test to Roberto H. He said Roberto H. understood most of the questions and did not hesitate asking about things he did not understand. Dr. Minagawa conceded that a person may do poorly on an I.Q. test, but may have "street smarts" and "be very smart in their environment." During the police interview, Roberto H. was both alert and responsive. Dr. Minagawa said that Roberto H.'s efforts to minimize his role in the crime during police questioning showed that he had engaged in "logical cognitive functioning."
Dr. Thomas Wylie, a clinical psychologist, testified that Roberto H. "by and large" understood his Miranda rights. But as to whether he could make "an effective . . . decision based on that information, . . . I would say probably not." He said Roberto H.'s I.Q. was 84 which is "low average." On cross-examination, he said Roberto H. was within "the average range" on school reading and math tests. He showed "some higher level" of cognitive functioning by his ability to plan crimes.
The trial court denied the motion. It found that Roberto H. had the capacity to understand his Miranda rights and that he knowingly and intelligently waived them.
DISCUSSION
I. Denying the Suppression Motion
Roberto H. contends he did not knowingly and intelligently waive his Miranda rights, and therefore the trial court erred by admitting his confession and denying his suppression motion. We disagree.
"In reviewing Miranda issues on appeal, we accept the trial court's resolution of disputed facts and inferences as well as its evaluations of credibility if substantially supported, but independently determine from undisputed facts and facts found by the trial court whether the challenged statement was legally obtained. . . . [Citations.]" (People v. Smith (2007) 40 Cal.4th 483, 502.) The waiver of Miranda rights must be "'. . . voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. . . .'" (Id. at 501.) It must also be made with full awareness of the nature of the right being abandoned and the consequences of the decision to abandon it. (Id. at pp. 501-502.) We review the all the circumstances surrounding the interrogation to determine if there was an uncoerced choice and the requisite level of comprehension by the defendant. (Id. at p. 502.) "[W]hile mental condition is relevant to an individual's susceptibility to police coercion, a confession must result from coercive state activity before it may be considered involuntary." (Ibid.)
Here the trial court found, there was no evidence of coercion, intimidation, threats, promises, or improper deception by the police. It said Roberto H. "was a defiant, arrogant, 13 year old, who was clearly contemptuous of the police, not intimidated by them." It found that he was "intelligent and aware of the consequences" of self-incrimination as shown by his initial "attempt to deceive investigators," and his Miranda rights waiver was voluntary. Dr. Fennell testified that Roberto H. had the capacity to understand and waive his Miranda rights. Hobson said Roberto H. understood and answered each component of the Miranda warning and the police made no promises. Dr. Minagawa, one of Roberto H.'s experts, testified that the videotape showed that the police did not use any coercion or threatening behavior.
Roberto H. claims that his medical experts established that he was "not able to knowingly waive" Miranda rights. But their testimony supports conflicting inferences. The trial court found Dr. Wylie was not credible. Dr. Wylie opined that Roberto H.'s ability to understand language was at a four-year-old level. Later, however, he said his I.Q. was 84 which is low average and that "by and large" he understood his Miranda rights. He conceded that Roberto H. performed within the average range on school tests for reading and math and his ability to plan crimes shows some higher level of cognitive functioning. Dr. Wu conceded that he was unable to determine Roberto H.'s I.Q. with a PET scan. Dr. Minagawa said Roberto H. engaged in logical cognitive functioning during police questioning. He was both alert and responsive.
Roberto H. claims the trial court improperly rejected the conclusions of his experts which supported his position about his cognitive abilities. But the court could reasonably find their conclusions were impeached on cross-examination, and credibility is a matter for the trier of fact. (In re Anthony J. (1980) 107 Cal.App.3d 962, 973.)
Relying on a law review article, Roberto H. contends that "'juveniles, as a group, lack the psychological maturity and cognitive capacity to waive Miranda rights.'" But the courts have rejected this claim. (Fare v. Michael C. (1979) 442 U.S. 707, 725; People v. Lara (1967) 67 Cal.2d 365, 378-379.)
"[A] minor can effectively waive his constitutional rights." (People v. Prysock (1982) 127 Cal.App.3d 972, 989.) "Minority itself does not invalidate a minor's confession obtained after a recitation of Miranda rights and waiver by the minor of his privilege against self-incrimination and the right to consult with counsel. . . . [¶] . . . Whether a minor has waived his rights intelligently and knowingly is a question of contextual fact. [Citations.]" (In re Anthony J., supra, 107 Cal.App.3d at pp. 971-972.)
Roberto H. contends a 13-year-old with an I.Q. of 84 does not have the capacity to understand Miranda waivers. But neither a low I.Q. nor any particular age of minority is a proper basis to assume inability to voluntarily waive Miranda rights. (People v. Lewis (2001) 26 Cal.4th 334, 384 [Supreme Court rejected claim that 13-year-old lacked capacity to waive Miranda rights]; In re Charles P. (1982) 134 Cal.App.3d 768, 772 [Court of Appeal upheld Miranda waiver by a 12-year old]; see also In re James B. (2003) 109 Cal.App.4th 862, 873 [12-year-old]; In Interest of Potts (1978) 58 Ill.App.3d 550, 555 [374 N.E.2d 891, 895] [12-year-old]; In re Goins (1999) 137 Ohio App.3d 158, 163 [738 N.E.2d 385, 388] [11-year-old]; People v. Abraham (1999) 234 Mich.App. 640, 655 [599 N.W.2d 736, 744] [11-year-old].)
In In re Norman H. (1976) 64 Cal.App.3d 997, the Court of Appeal upheld a Miranda waiver made by a 15-year-old with an I.Q. of 47. It noted that he was "very unintelligent" and "ignorant of the meaning of many words, . . . even some of the most simple and rudimentary." (Id. at p. 1002.) He had the mental age of a 7-or 8-year old. But the court held he still had the capacity to understand the waivers. It said, "A confession of a crime is not inadmissible merely because the accused was of subnormal intelligence . . . . [Citation.]" (Id. at p. 1001.)
In In re Anthony J., supra, 107 Cal.App.3d, page 970, the Court of Appeal upheld a Miranda waiver by a 15-year-old. The prosecution's expert testified the minor was functioning at the level of a 12-year-old. But she said the concepts related to Miranda waivers "involve very low-level abstractions," which younger children are able to understand. (See also People v. Watson (1977) 75 Cal.App.3d 384, 396-397 [defendant's Miranda waiver was valid even though he had organic brain damage, schizophrenia and an I.Q. of 65].)
In the above cases, the courts weighed a variety of factors in addition to age and I.Q. to determine the validity of the waivers. Here the trial court carefully weighed Roberto H's age and I.Q., along with expert testimony involving his cognitive abilities, his progress in school, his sophistication, his history, his medical records and the conduct of police officers. It heard testimony about the police questioning and reviewed a videotape of Roberto H.'s behavior during that interrogation. Based on the totality of the evidence in this record, there was no error.
Moreover, any error would be harmless beyond a reasonable doubt. (People v. Cahill (1993) 5 Cal.4th 478, 509-510.) The evidence of Roberto H.'s guilt is overwhelming. Viviana C., Kerry W., Humberto A. and Corina C. testified that Roberto H. told them that he attacked O'Malley. He asked Viviana C. whether O'Malley lived alone and told her he wanted to take O'Malley's car keys. Kerry W. heard him admit that he "hit the old man over the head with a skateboard and killed him." Roberto H. showed Humberto A. the wallet and cash. Kerry W., Corina C. and Humberto A. saw Roberto H. with O'Malley's car keys. The police found O'Malley's credit cards in Roberto H.'s home. They also found a skateboard. The medical evidence establishes that O'Malley died as a result of blunt force head injuries. The wounds were consistent with O'Malley having been bludgeoned with a skateboard. Roberto H.'s statements to Josh G. about destroying and hiding evidence were highly incriminating and showed his consciousness of guilt.
II. Substantial Evidence
Roberto H. contends there was no substantial evidence to support the finding that he falsely imprisoned O'Malley. We disagree.
In reviewing the sufficiency of the evidence we draw all reasonable inferences in support of the judgment. We do not weigh the evidence or decide the credibility of witnesses. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Poe (1999) 74 Cal.App.4th 826, 830.) False imprisonment involves the "unlawful violation of the personal liberty of another." (People v. Babich (1993) 14 Cal.App.4th 801, 806.) It is a felony to falsely imprison "an elder or a dependent adult by the use of violence, menace, fraud or deceit . . . ." (§ 368, subd. (f).) But a defendant may not be convicted of this offense where the victim dies prior to the commission of the crime. (People v. Hillhouse (2002) 27 Cal.4th 469, 498.)
Roberto H. contends that there is no evidence that O'Malley survived the attack or was alive when he padlocked the door. We disagree. Roberto H. told the police that he "thought [O'Malley] was still breathing" after the attack. He said he ran home and returned a short time later to place the padlock on the door. The trial court could reasonably infer that Roberto H. believed that he needed to lock O'Malley in because he was alive and might leave or call for help. Roberto H. suggests that O'Malley died immediately after falling down after the attack. But at the crime scene, police saw that blood "had been smeared" on the floor. This supports a reasonable inference that O'Malley was alive and continued to move after he had fallen. The evidence is sufficient.
The judgment is affirmed.
We concur: COFFEE, J., PERREN, J.