Opinion
A145381
01-31-2018
THE PEOPLE, Plaintiff and Respondent, v. CHRISTIAN J. KAY, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. CR1305518)
Defendant Christian J. Kay appeals following his conviction by a jury of two counts of assault and one count of shooting a BB device in a grossly negligent manner, all misdemeanors. He contends his statement to his school principal admitting he shot two students with an air rifle should have been excluded because he was not advised of his rights under Miranda v. Arizona (1966) 384 U.S. 436, 444 (Miranda) before the principal questioned him. He further contends that additional evidence should have been excluded because his subsequent statements to law enforcement were obtained in violation of Miranda and his consent to the search of his apartment was not voluntary.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Eureka High School has an open campus, so students are allowed to leave campus for lunch. Around 1:00 p.m., on November 7, 2013, four students were walking back to campus after having gone off-campus to a nearby market for lunch when they heard shots. Two of the students were hit by pellets from a pellet gun. One boy, a freshman, was hit in the chest and began bleeding. A second boy, also a freshman, took off running and was hit in the back. The other students also ran away from the shots.
The four students returned to campus and reported the shooting to Eureka Police Officer Chris Jenkins. Jenkins was the school resource officer for the Eureka City Schools. He had an office at Eureka High School near the principal's office.
The same afternoon, Jenkins, along with Principal Rick Jordan and two other school administrators, went to where the students reported the shooting had occurred. The area was a greenbelt that ran between the 1500 and 1600 blocks of L Street about three blocks from campus. There, Jenkins noticed an advertising sign that appeared to have been shot many times by a pellet gun or air rifle of some kind. Jenkins next began knocking on doors at a large apartment two-story complex on the 1600 block of L Street, looking for possible witnesses to the shooting. At an apartment on the second floor of the complex, Kay answered the door. Kay told Jenkins he had not seen or heard anything in the area. Kay also said he was a student, he had come home for lunch, and he was not currently at school because he did not have a sixth period class.
A week after the shooting, on November 14, 2013, Principal Jordan called Kay to his office. Officer Jenkins and two school administrators were also present. Jordan told Kay he had received tips from students and knew that Kay had shot two students. Kay admitted he was the shooter but said it was an accident. Jordan asked Kay to write a statement about the shooting, which he did.
Officer Jenkins then questioned Kay about the shooting. Kay told Jenkins the rifle was in a storage locker in his apartment, and he gave Jenkins permission to search his apartment and storage locker. At that point, Jenkins ceased questioning Kay, told him he was under arrest for assault with a deadly weapon, and placed him in handcuffs.
Jenkins and Kay went to Kay's apartment and found an air rifle and small can of pellets in a storage room. Jenkins then drove Kay to the Eureka Police Department and took him to an interview room. Detective Ronald Harpham advised Kay of his Miranda rights and questioned him about the shooting in a recorded interview. Kay admitted he shot the two students. He said he was only trying to scare them and did not mean to hurt anyone.
Kay was charged with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); count 1), misdemeanor battery (§ 242; count 2), two counts of misdemeanor assault (§ 240; counts 3 and 4), and discharge of a BB device with gross negligence (§ 246.3, subd. (b); count 5).
Further undesignated statutory references are to the Penal Code.
Kay moved in limine to exclude statements Kay made in Principal Jordan's office on November 14, 2013, the physical evidence found after he consented to a search of his apartment and storage locker, and the recorded statements Kay made to Detective Harpham. Kay argued his statements and the rifle and pellets should be excluded because they were obtained as the result of "multiple custodial interrogations" without "a meaningful recitation of his Miranda rights." The trial court conducted a hearing under Evidence Code section 402 at which Jordan, Jenkins, and Harpham testified. Following the hearing, the trial court denied Kay's motion to exclude, finding that Kay was not in custody when he was questioned in the principal's office.
The case went to trial. The jury found Kay not guilty of the charged offense of assault with a deadly weapon but guilty of the lesser included offense of misdemeanor assault (count 1), not guilty of the charged offense of battery but guilty of the lesser included offense of misdemeanor assault (count 2), not guilty of the charged offenses of misdemeanor assault (counts 3 and 4), and guilty of the charged offense of shooting a BB device in a grossly negligent manner (count 5).
The trial court suspended imposition of sentence and placed Kay on three years' probation. Kay was also required to serve 30 days in jail.
DISCUSSION
I. Kay's Statements to Principal Jordan
Kay contends his oral and written statements made to Principal Jordan in his office on November 14, 2013, should have been excluded as violative of Miranda.
A. Applicable Law
In Miranda, the United States Supreme Court established that a suspect subject to "custodial interrogation" must be given the now familiar admonitions "that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." (Miranda, supra, 384 U.S. at p. 444; People v. Elizalde (2015) 61 Cal.4th 523, 530.)
"An interrogation is custodial, for purposes of requiring advisements under Miranda, when 'a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.' [Citation.] Custody consists of a formal arrest or a restraint on freedom of movement of the degree associated with a formal arrest. [Citations.] When there has been no formal arrest, the question is how a reasonable person in the defendant's position would have understood his situation. [Citation.] All the circumstances of the interrogation are relevant to this inquiry, including the location, length and form of the interrogation, the degree to which the investigation was focused on the defendant, and whether any indicia of arrest were present." (People v. Moore (2011) 51 Cal.4th 386, 394-395 (Moore).)
"Absent 'custodial interrogation,' Miranda simply does not come into play" and no Miranda advisement is necessary. (People v. Mickey (1991) 54 Cal.3d 612, 648.) The prosecution bears the burden of proving there was no custodial interrogation. (People v. Whitfield (1996) 46 Cal.App.4th 947, 953.)
"Whether a defendant was in custody for Miranda purposes is a mixed question of law and fact. [Citation.] When reviewing a trial court's determination that a defendant did not undergo custodial interrogation, an appellate court must 'apply a deferential substantial evidence standard' [citation] to the trial court's factual findings regarding the circumstances surrounding the interrogation, and it must independently decide whether, given those circumstances, 'a reasonable person in [the] defendant's position would have felt free to end the questioning and leave' [citation]." (People v. Leonard (2007) 40 Cal.4th 1370, 1400.)
B. Background
As we have mentioned, Principal Jordan, Officer Jenkins, and Detective Harpham testified at the Evidence Code section 402 hearing on Kay's motion to exclude his statements and the physical evidence found in his apartment.
Jordan testified that Eureka High School investigated the shooting because it occurred near campus during the school day and the victims were students. In his investigation, Jordan spoke to about a dozen students, and two students said Kay was the shooter.
Prior to questioning Kay about the shooting, Jordan did not speak with Jenkins or any other Eureka police officer about what questions to ask Kay. Jordan asked Jenkins to attend the interview because he "did not feel particularly safe in [his] office with" Kay and "obviously, there is a—a Penal Code violation in the situation, as well." Jordan testified, "My questions were intended to ultimately move to an expulsion, and, so . . . I wasn't asking questions that could result to—to this situation [i.e., criminal charges and trial]. That's not my job."
Jordan interviewed Kay on November 14, 2013. He and Associate Principal Kathleen Honsal took Kay out of his fifth period class and escorted him to the principal's office. Jordan sat at his desk, and Kay was seated facing him. Honsal, another school administrator, and Officer Jenkins sat at a table behind Kay. At the beginning of the interview, Jordan gave Kay an index card that read "Easy" on one side and "Hard" on the other. Jordan testified that he often used this index card when questioning students; he would tell the student, "we can do it the easy way where you work with us or you can do it the hard way where we continue to work the investigation." He would explain that "the hard way inevitably pits friends against friends."
Jordan told Kay that a student reported that he had seen a pellet gun in Kay's apartment. Jordan also talked about the victims of the shooting. He then gave Kay a chance to tell his side of the story. The first thing Kay said was "something to the effect of [he] didn't mean to hurt anybody." Kay told Jordan he went home for lunch and went out onto his balcony with his pellet gun. He had set up apples on the fence line across the street and he was shooting apples. Kay said the boys got into his line of fire and he hit them accidentally. Jordan asked Kay to write a statement about the shooting because he was thinking about expelling Kay. Jordan had participated in a number of expulsion hearings, and he knew that a "student's statement is an important part of that process." Kay's demeanor was "calm and attentive" during Jordan's questioning.
Officer Jenkins testified that, when working at Eureka High School, he wore his full police uniform with a duty belt that includes a firearm, pepper spray, handcuffs, and a baton; he also drove a marked police car. It was common for Jenkins to be present when a school administrator, including Principal Jordan, questioned students on disciplinary matters. When he sat in on a school administrator questioning a student, Jenkins sometimes asked questions of the student, too. It was Jenkins' practice to advise students of their Miranda rights when he arrested or detained them.
It was Principal Jordan's decision to speak to Kay about the shooting. Kay was a senior and 18 years old at the time. When Jenkins learned that Jordan wanted to question Kay, Jenkins asked him to "hold off for a while" so he could tell Detective Harpham what they had learned so far. Jenkins then informed Harpham that Jordan had heard from a couple students that Kay was the shooter. He also said that Jordan "ha[d] a very good way of talking with kids and getting them to tell the truth." Detective Harpham told Jenkins he could be in the room during the questioning of Kay but he should just be an observer.
Officer Jenkins did not talk to Jordan about what questions to ask prior to Kay's interview in the principal's office. Jenkins did tell Jordan before the interview that he (Jordan) would ask the questions and the questioning "would be from the school, not from law enforcement."
After Jordan questioned Kay and he admitted he was the shooter, Jordan told him he was turning the matter over to law enforcement. Then Jenkins spoke to Kay. He told Kay he was not under arrest and he "could leave when he wanted to" but Jenkins hoped to get a little more information from him. Kay agreed to talk with Jenkins and did not ask to return to class. The door to the principal's office was closed. Kay told Jenkins he shot his rifle about 10 or 11 times. He said he did not come forward to admit he was the shooter even though it was an accident because he was afraid he would get in trouble. Jenkins asked Kay if he would sign a consent form to search his apartment and his storage room. Kay agreed and signed the form. At that point, Jenkins formed the opinion there was probable cause to arrest Kay. Jenkins told Kay he was under arrest for assault with a deadly weapon. He did not advise Kay of his Miranda rights. Jenkins did not question Kay during the drive to his apartment or during the subsequent drive to the police department.
Detective Harpham testified that he was the lead investigator on the shooting. Before Principal Jordan interviewed Kay about the shooting, Harpham told Officer Jenkins to "let the school do what they have to do" regarding questioning Kay. He told Jenkins "to be a fly on the wall" during the interview and "to only involve himself if there's a confession, only to involve himself then after either a Beh[e]ler . . . admonishment or a Miranda."
California v. Beheler (1983) 463 U.S. 1121, 1122-1225 [where suspect voluntarily agreed to accompany police to the station house and was specifically told he was not under arrest, no Miranda warnings were required because suspect was not in custody].
The defense attorney asked Harpham whether he believed a Miranda advisement would be required if Jenkins asked questions of Kay. He responded, "Yeah, clearly. I was uncomfortable with that—with that taking place, yes."
The trial court found that Kay was not "in custody" when he was in the principal's office under the totality of the circumstances both when the principal questioned him and later when Jenkins questioned him "after telling him that he was not under arrest and was free to leave, that he could leave when he wanted." The trial court also found "there was no agreement or arrangement between the Principal or Eureka High School and law enforcement to obtain incriminating evidence for law enforcement." Accordingly, the court denied Kay's motion to exclude his statements to Jordan since no Miranda advisement was required.
C. Analysis
Kay argues Principal Jordan's questioning was "custodial" based on the following circumstances: Kay was obligated to be in school; he was made to sit at the principal's desk to face questions directly related to his role in the shooting; Jordan gave him an index card with the words "Easy" and "Hard" and told him they could do it the easy way or the hard way; the door to the principal's office was closed; Officer Jenkins was present in full uniform; and "Jenkins was the lead investigator into the shooting and had expressly authorized the questioning by Jordan for the sole purpose of trying to elicit a confession."
In fact, Detective Harpham was the lead investigator on the shooting, and it is not clear why Kay asserts the interview was "expressly authorized" by law enforcement. Jordan did testify that Officer Jenkins asked him to wait to talk to Kay until the detective was available. But Jordan did not testify that police "authorization" was required for him to interview Kay; nor does Kay explain why such authorization would be necessary.
Kay's argument fails under In re Corey L. (1988) 203 Cal.App.3d 1020, 1024 (Corey L.), in which this court recognized, "Questioning of a student by a principal, whose duties include the obligations to maintain order, protect the health and safety of pupils and maintain conditions conducive to learning, cannot be equated with custodial interrogation by law enforcement officers." In Corey L., a middle school principal removed a student from class and asked him if he was carrying drugs. The student denied having drugs but said the principal could search him. The principal did so and found cocaine in the pocket of the student's jacket. The student argued the principal should have advised him of his Miranda rights before questioning him. (Id. at pp. 1022-1023.)
We rejected the student's argument, noting that he offered "no authority holding that school officials must advise students of Miranda rights before questioning them about suspected violations of the law or school rules, and we [were] aware of no such authority." (In re Corey L., supra, 203 Cal.App.3d at p. 1023.) To the contrary, we cited many cases in which the court "held that school officials need not give Miranda warnings before questioning students about suspected violations of school rules or criminal activity on the grounds that this type of inquiry is not a custodial interrogation within the meaning of Miranda. (Id. at p. 1024, citing cases.) Likewise in this case, the circumstances Kay describes—a principal questioning a student about suspected criminal activity (which also subjected the student to expulsion) that occurred near the school grounds during school hours against other students who were allowed to be off-campus for lunch—do not amount to a custodial interrogation under Miranda.
Kay acknowledges that, under Corey L., Principal Jordan's questioning of Kay would not qualify as custodial interrogation within the mean of Miranda "[u]nder normal circumstances." He argues, however, that "when the police are present for the questioning and specifically utilize a non-law enforcement person in a position of authority to gather evidence and admissions in a custodial setting for the purpose of criminal investigation," Miranda comes into play because "the police presence brings added inherent pressures." However, he cites no authority that the mere presence of a school resource officer transforms the questioning of a student by a school administrator into a custodial interrogation, and he points to no other circumstances that convince us Principal Jordan's interview was akin to a formal arrest.
Kay relies on People v. Sanchez (1983) 148 Cal.App.3d 62, 70 (Sanchez), in which the court held it was improper for "an agent of the police" to interrogate a suspect after he had invoked his Miranda rights. There, a defendant was arrested for rape and advised of his Miranda rights. The defendant said he did not want to make a statement. An officer then took the defendant to a hospital that had a contract with the police department to examine rape victims and suspects for physical evidence. Informed that the defendant had not waived his Miranda rights, the doctor asked him, " 'So you have nothing to say, [defendant]?' " The defendant admitted he did it, and the doctor asked additional questions about the victim and where the rape occurred. (Id. at p. 67.) The lower court found that the doctor was acting as agent of the police when he questioned the defendant, and the appellate court concluded there was substantial evidence to support this finding. The court noted the contract between the police and the hospital "had the express purpose of obtaining incriminating evidence from either the rape victim or the rape suspect." (Id. at p. 69.) The court contrasted the doctor's role in Sanchez to an emergency room doctor who asks a defendant questions to obtain a medical history as part of standard hospital procedure. (Ibid., citing People v. Salinas (1982) 131 Cal.App.3d 925, 937.)
Kay claims there is similar "complicity" between Principal Jordan and Officer Jenkins in this case. We are not convinced. Here, the trial court found "no agreement or arrangement between the Principal or Eureka High School and law enforcement to obtain incriminating evidence for law enforcement" and "Principal Jordan was going to talk to Mr. Kay regardless of what the Eureka Police Department said." These findings, and the implicit finding that Jordan was not acting as an agent of the Eureka Police Department, are supported by substantial evidence. Jordan testified he was gathering evidence to expel Kay and he "wasn't asking questions that could result" in criminal prosecution because that was not his job. Jenkins testified that it was Jordan's decision to interview Kay and Jordan was "very intent" to do so. Harpham testified the school and the police department were conducting "parallel investigation[s]" (not a joint investigation), with the school interested in "bring[ing] normalcy back to the school" and the police interested in the "criminal aspect of it."
In summary, Kay was not in custody during his questioning by Principal Jordan under Corey L., and Sanchez is distinguishable from this case. The trial court did not err in denying Kay's motion to exclude his statements made to Jordan.
II. Kay's Subsequent Statements and Evidence Found at His Apartment
Kay further contends that all statements he made to law enforcement after Jordan's questioning and the pellet gun and can of pellets found in his apartment storage locker should have been excluded.
A. Statements to Officer Jenkins
Kay argues the questioning by Officer Jenkins that immediately followed Jordan's interview "was nothing more than a continuation of that prior custodial interrogation." As we have discussed, however, Jordan's interview was not custodial for purposes of Miranda.
The next question is whether Kay's presence in the principal's office became custodial once Jenkins began questioning him. Kay relies on the fact that he admitted he was the shooter before he talked to Jenkins. Essentially, he argues that Jenkins could have arrested him at that point but Jenkins chose to question him without advising him of his Miranda rights before arresting him. "But Miranda warnings are not required 'simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect.' " (Moore, supra, 51 Cal.4th at p. 402, quoting Oregon v. Mathiason (1977) 429 U.S. 492, 495.) Further, Kay acknowledges that "the 'subjective views harbored by either the interrogating officers or the person being questioned' are irrelevant" to whether an interrogation is "custodial" under Miranda. (J.D.B. v. North Carolina (2011) 564 U.S. 261, 271.) Thus, whether Jenkins believed he had probable cause to arrest Kay before he questioned him has no bearing on the analysis of whether Kay was in custody.
Similarly, it is irrelevant that Detective Harpham believed a Miranda advisement might be required if Jenkins were to talk to Kay. (See People v. Roquemore (2005) 131 Cal.App.4th 11, 27 ["subjective beliefs of Officer Ly and Detective Birdsall as to whether Miranda is applicable are irrelevant to the constitutional admissibility of evidence issue"].) --------
Instead, the question is whether " ' "a reasonable person in [the] defendant's position would have felt free to end the questioning and leave." ' " (Moore, supra, 51 Cal.4th at p. 395.) Here, the Attorney General points out that no added restrictions were placed on Kay's freedom "over and above the normal school setting" when Jenkins questioned him. Jenkins did not handcuff Kay, threaten him, or tell him he was required to submit to questioning. To the contrary, Jenkins told Kay at the outset that he was not under arrest and he was free to leave whenever he wanted. We believe a reasonable 18-year-old in Kay's position would have understood that he was free to leave and return to class. This means Kay was not in custody for purposes of Miranda when he was questioned by Jenkins, and the trial court properly denied Kay's motion to exclude his statements to Jenkins.
B. Evidence Found at Kay's Apartment
Kay next claims the search of his apartment and storage locker violated the Fourth Amendment because his consent to the search was not voluntary.
"The voluntariness of consent [to a search] is a question of fact to be determined from the totality of circumstances. [Citations.] If the validity of a consent is challenged, the prosecution must prove it was freely and voluntarily given—i.e., 'that it was [not] coerced by threats or force, or granted only in submission to a claim of lawful authority.' " (People v. Boyer (2006) 38 Cal.4th 412, 445-446.)
Kay's claim of involuntariness is based primarily on his assertion that he was detained when he gave his consent. Given our conclusion that a reasonable person in Kay's position would have understood that he was free to leave when Officer Jenkins questioned him, however, Kay was not under "detention" for purposes of Fourth Amendment analysis. (See People v. Parrott (2017) 10 Cal.App.5th 485, 492 ["The test for whether a police officer's conduct amounts to a detention is whether the officer's conduct would indicate to a reasonable person that he or she is not free to leave, or otherwise to terminate the encounter."].) Nor is there other evidence of duress or coercion. There was, for example, no testimony from Kay that he was threatened or otherwise pressured into consenting. (Cf. People v. Jenkins (2000) 22 Cal.4th 900, 973 [person who consented to search testified "her consent to the search was coerced by a threat to arrest her on an outstanding warrant if she refused to supply her consent"].) Officer Jenkins testified that he asked Kay for consent, and Kay agreed and signed a consent form. His testimony provides substantial evidence supporting the trial court's implied finding that Kay's consent was voluntary.
C. Statements to Detective Harpham
Finally, Kay argues the statements he made to Harpham after he was advised of his Miranda rights should be excluded because Harpham's questioning was part of an intentional two-step interrogation process disapproved by the United States Supreme Court in Missouri v. Seibert (2004) 542 U.S. 600 (Seibert). In Seibert, the court condemned the police practice of engaging in a custodial interrogation with no Miranda warning until the suspect confesses, then giving the Miranda warning and obtaining a second confession. The question before the court was whether the post-warning confession was admissible. The court held the answer was no: "Because this midstream recitation of warnings after interrogation and unwarned confession could not effectively comply with Miranda's constitutional requirement, we hold that a statement repeated after a warning in such circumstances is inadmissible." (Id. at p. 604.)
The first step of an impermissible two-step interrogation under Seibert is a custodial interrogation without a Miranda warning. (See Seibert, supra, 542 U.S. at p. 604.) But here Kay was not subject to a custodial interrogation when he admitted he was the shooter to Principal Jordan and Officer Jenkins. As a result, Seibert does not apply.
DISPOSITION
The judgment is affirmed.
/s/_________
Miller, J. We concur: /s/_________
Richman, Acting P.J. /s/_________
Stewart, J.