Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. J36776
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Anthony B. appeals from an order of the juvenile court finding he committed second degree robbery. He asserts the court erred in denying his motion to suppress his statement because he did not waive his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436) and his confession was involuntary. We agree the juvenile court erred and conclude the error was not harmless. We shall therefore reverse.
Factual and Procedural Background
On March 14, 2007, a wardship petition was filed alleging appellant committed second degree robbery on March 13, 2007. According to a probation report, the victim was riding his bicycle on a bike path at about 5:45 p.m. when four minors, including appellant, stopped him and asked him for money. When the victim said he did not have any money, the minors knocked the victim off of his bike, took $160 from him and punched and kicked him. The minors were arrested nearby. The police did not locate the victim’s money.
The juvenile court granted the prosecution’s motion to consolidate the cases against all four minors. The case proceeded to a contested jurisdictional hearing against only appellant and one other minor.
On March 14, 2007, two police officers conducted a recorded interview of each of the four minors, beginning with appellant. One of the officers, Mel Ferro, asked appellant if he remembered that the arresting officer had advised him of his Miranda rights. Appellant responded: “Uh. I don’t really . . . I really don’t remember what he was saying, but I remember a few things.” Appellant suggested that the officer may have explained the rights to some of the other minors. The following conversation took place:
The interview was recorded and transferred onto a CD, but was not transcribed. The CD is part of the record on appeal.
Ferro: Okay, let me read it to you. You have the right to remain silent. Do you understand?
Appellant: Uh huh.
Ferro: Anything you say may be used against you in a court of law, do you understand? Yes? No?
Appellant: Yes.
Ferro: Okay. You have the right to the presence of an attorney before and during questioning. You understand?
Appellant: Uh huh.
Ferro: Is that a yes?
Appellant: Uh huh.
Ferro: Okay. If you cannot afford to hire a lawyer one will be appointed, or a lawyer, if you cannot afford an attorney, one will be appointed free of charge before any questions. Do you understand that?
Appellant: Wait, what’s an attorney?
Ferro: A lawyer. A lawyer or attorney’s the same so that’s that. Do you understand that?
Appellant: Uh. This is my first time here, so I’m like. . . .
Ferro: Well, obviously, you and the other guys were identified, okay?
Appellant denied being involved. Ferro stated: “What if I were to tell you that a photo series has been put together and you guys are identified again? What would you say to that?” Ferro went on to explain that appellant, age 16, has two years to turn his life around because “once you’re 18 then it’s no longer in the juvenile hall. Then it’s the California Department of Corrections . . . . So what it comes down to is hey, it comes to a point in your life where you gotta say if you did it, I screwed up, I’ll take my lumps and let’s get out of here, out of the way so I can start a clean state. . . . So that’s why we’re here. You understand that?” When appellant responded “Yes, sir,” Ferro stated: “Okay. Tell me what happened that day.”
Appellant stated he was not involved in a robbery. Ferro stated: “Okay, here’s what you’re going to have to think about though, okay? Because this is not the same story everybody in your group said. What it’s gonna come down to now is . . . the district attorney is gonna read the report. And we as police officers, we don’t make any promises to anybody ‘cause we can’t do that. But the DA’s office will look at these reports. They may say hm, this person at least is being more honest than this person, that person. So sometimes they can meet with their attorney and say hey, this person might be a good witness in the case. So all I’m saying is what can happen a lot of times is . . . it goes to court and there’s four of you. Well, not everyone wants to hang on something like this, and one of them or two of them, they say hey, we were there but I’m going to testify against this guy for a lighter sentence. You understand how that works? . . . So I’m telling you that the stories aren’t the same. And I’m not gonna tell you who said what. In the same respect, if you told me what happened, I’m not gonna tell the other guys. What we talk about is between us. Goes in the report, but I’m not going to tell the other guys what you said. So is that the story you wanna stick with?”
Appellant responded that he was telling the truth. The other police officer stated, “We’ve been doing this for several years, okay? . . . We know you’re making it up as you go along, okay? What we meant by a clean slate is you need to be honest, okay? Because we already got enough evidence and other statements from your buddies that you’re going down for it. So let me say this. You’re 16 years old. You need to start manning up and telling the truth. All right? Before you do end up in the pen. ‘Cause you will. If you wanna keep playing it this way, you’ll end up in the pen. Because obviously you don’t want to be honest about what happened. All right? So you need to tell us what happened and stop giving us this crap. Because we know it’s crap. I mean, you’re not in here for no reason. We already know what happened. We’re just asking you to be adult about it. . . .”
When appellant said he was not going to lie, the officer stated: “You already lied to us already. You’re already in trouble. You’re right here. You’re in juvenile hall. You’re locked up. You’re already in trouble.” Ferro continued: “What it’s going to end up coming down to is if it goes to court and your friends start saying yea I was there but it was his idea, he’s the one that did it. . . There’s some guys’ stories in here that aren’t the same as yours. They are saying that . . . they’re . . . involved in this. . . . When it goes to court and they start pointing the finger at you saying hey, it was his idea, he told us to do it . . . Then it’s all going to lay down on you. Because I can tell you there are people – I’m not lying to you – in this report that are more forthcoming than you. . . . And you know what? We work a lot of cases. We’re giving you a chance but I’m not gonna waste a bunch of time in here with you. I’ll just talk to every other one of them and they say hey, it was Anthony, then that is what the report is going to indicate . . . . When it goes to court and . . . three guys are pointing the finger at you . . . it’s not gonna look good for you.”
Appellant admitted he was walking on a bike path when he was involved in a fight with a “Mexican guy.” He stated that he and two other minors tried to get a wallet and that he punched the victim and was punched in the stomach. He did not know whether anyone got a wallet. When Ferro asked appellant what he would like to say to the victim, appellant responded, “I’m sorry . . . for what I did.” Appellant said it was his first time in juvenile hall, and Ferro stated, “Yeah. You don’t want to be here obviously. So it takes more courage sometimes to man up and say, I screwed up, than it does to lie to us . . . . And we respect you more when you’re honest. . . .”
On April 17, 2007, defense counsel moved to suppress appellant’s statement on the grounds that the police did not obtain a Miranda waiver and the confession was involuntary. The recording of the interview was played for the court. The court took a five minute recess when appellant took the stand and started to cry. After the break, appellant testified he was “just real nervous, just like upset” during the interview. It was the first time he “had been in a room and been asked questions like this by the police.” He testified that he was trying to stay calm because he suffers from seizures. The parties stipulated that appellant was in custody during the interview. The juvenile court denied the motion to suppress and the case proceeded to a contested jurisdictional hearing.
The victim testified through an interpreter that he was attacked by four minors who asked him for money and took $160 from him. After the robbery, he went home and had his wife call the police because he does not speak English. When the police came, they took the victim two blocks down from his house to identify some people. On the first day of his testimony, the victim identified appellant’s co-defendant as being involved in the robbery but did not identify appellant. The second day he testified, the victim also identified appellant. He testified that he “only kind of saw” the minors and did not “look at them directly at that moment” because he was covering his face to avoid being hit.
The defense challenged the credibility of the victim and the reliability of his identification. It presented evidence that the victim had been arrested for possession of methamphetamine a few weeks after the robbery, had given the arresting officer a false birth date and address, and had told the officer that he used drugs. The defense elicited testimony from the victim’s fiancé that she believed the victim had a drug habit and that he had experienced symptoms of drug withdrawal in the weeks following the robbery. The defense also presented the testimony of an investigator who had presented a series of photographs to the victim. The investigator testified that the victim selected three of the photographs as depicting the minors involved in the robbery. The selected photographs did not depict any of the minors charged with the offense.
The juvenile court sustained the petition, adjudged appellant a ward of the court and placed him on probation subject to various terms and conditions. The court deemed the maximum term of confinement to be five years and credited appellant with 59 days for time spent in juvenile hall. In ruling on the petition, the court stated that the victim’s identifications were “suspect,” “troubling,” and contained “inconsistencies.” It stated that without the confession, it had not heard sufficient evidence that the victim accurately identified the juveniles. The prosecutor stated that “perhaps there is no case” without the confession, and acknowledged that it was the statement that “proved this case beyond a reasonable doubt.”
Discussion
Appellant did not voluntarily, knowingly and intelligently waive his Miranda rights.
Appellant contends the juvenile court erred in denying his motion to suppress his statement because he did not voluntarily, knowingly, and intelligently waive his right to counsel. We agree.
To protect a suspect’s privilege against self-incrimination, a suspect who is taken into custody “must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” (Miranda, supra, 384 U.S. at p. 479.) Once properly advised of Miranda rights, a suspect may waive them provided the waiver is voluntarily, knowingly and intelligently made. (Ibid.)
The prosecution has the burden of establishing, by a preponderance of the evidence, the voluntariness of an accused person’s waiver of his Miranda rights. (People v. Whitson (1998) 17 Cal.4th 229, 248.) The waiver of Miranda rights must be voluntary in the sense that it was the product of a free and deliberate choice, and was made with a full awareness of the nature of the right being abandoned and the consequences of the decision to abandon it. (People v. Smith (2007) 40 Cal.4th 483, 501-502.) “[A] valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.” (Miranda, supra, 384 U.S. at p. 475.)
To determine whether a juvenile’s waiver of his Miranda rights is voluntary, a court should consider the totality of the circumstances, including the minor’s “age, experience, education, background, and intelligence, and . . . whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.” (Fare v. Michael C. (1979) 442 U.S. 707, 725.) When a confession by a minor is involved and “counsel was not present for some permissible reason when an admission was obtained, the greatest care must be taken to assure that the admission was voluntary . . . .” (In re Gault et al. (1967) 387 U.S. 1, 55.) On review, the appellate court defers to the trial court’s factual findings if they are supported by substantial evidence but reviews de novo the ultimate question of whether a waiver was voluntary. (People v. Holloway (2004) 33 Cal.4th 96, 114; People v. Lewis (2001) 26 Cal.4th 334, 383.)
Here, the record does not show that appellant understood all of his Miranda rights and voluntarily, knowingly and intelligently waived them. Neither of the officers who questioned appellant determined whether appellant understood all of his rights. When Ferro asked whether appellant remembered being advised of his Miranda rights, appellant responded that he did not really remember what the arresting officer had said. This statement was credible in light of the fact that appellant was “very upset” and “was crying” at the time of his arrest. When Ferro advised appellant of his right to have an attorney appointed for him free of charge, appellant asked, “Wait, what’s an attorney?” Ferro responded that a “lawyer and attorney’s the same thing,” and asked appellant if he understood that. Appellant did not say that he understood the right. Instead, he started to respond by saying, “Uh. This is my first time here, so I’m like,” but was cut off by Ferro, who immediately began his questioning by saying, “Well, obviously you and the other guys were identified . . . .”
The People assert that reasonably construed, the conversation shows that appellant understood his rights, and that he was simply apologizing for not understanding what the word “attorney” meant. However, appellant’s comment following Ferro’s definition of the word – “Uh. This is my first time here, so I’m like. . . .” – does not show that he understood his right to have counsel present during questioning. Although an express waiver is not required where a suspect’s actions make clear that a waiver is intended (People v. Whitson, supra, 17 Cal.4th at p. 250), here, appellant’s actions did not clearly show that he was fully aware of “the nature of the right being abandoned and the consequences of the decision to abandon it” (see People v. Smith, supra, 40 Cal.4th at pp. 501-502).
Appellant’s age and his lack of experience with the criminal justice system further support our conclusion that appellant did not voluntarily, intelligently, and knowingly waive his rights. At the time of his interview, appellant was 16 years old. (See In re Anthony J. (1980) 107 Cal.App.3d 962, 971 [prosecutor’s burden to establish voluntariness is greater if the accused is a minor rather than an adult].) It was undisputed that it was the first time he was in custody, being questioned by police. He testified he was “just real nervous, just like upset” during the interview. He cried during his initial arrest and immediately after taking the witness stand. According to the probation report, appellant had no behavioral problems while in juvenile hall, was reported by his mother as being a “good child” who helped out around the home, and was not using alcohol or drugs.
The case is distinguishable from others in which no Miranda violation was found. For example, In re Charles P. (1982) 134 Cal.App.3d 768, 772, emphasized that the minor was “worldly,” was on probation and had previously been advised of his Miranda rights. In addition, there was nothing in the minor’s actions or words to suggest a lack of understanding of his rights. (Ibid.) In In re Frank C. (1982) 138 Cal.App.3d 708, 712, the minor “ha[d] been arrested innumerable times in the last couple of years,” was on probation at the time of questioning, and clearly indicated that he understood each of his Miranda rights. In In re Steven C. (1970) 9 Cal.App.3d 255, 268, the 16-year old minor was found to have waived his Miranda rights where the rights were clearly and concisely and in plain language explained to him, he had “a good deal of prior police contact,” and he had been given the Miranda warning on five prior occasions.
The record supports the conclusion that appellant did not voluntarily, knowingly, and intelligently waive his right to counsel.
Appellant additionally contends that Ferro violated Miranda when he stated that anything he says “may” be used against him, instead of stating that anything said “can and will” be used against him. In light of our conclusion that appellant’s Miranda rights were otherwise violated, we will not address this contention.
Appellant’s confession was not voluntary.
We also agree that appellant’s confession was not voluntary. A confession is the accused person’s indication of his intentional participation in a criminal act. (People v. Engert (1987) 193 Cal.App.3d 1518, 1527.) In order for a confession to be admissible as evidence, the prosecution must show, by a preponderance of the evidence, that the confession was voluntarily made, without coercion. (In re Shawn D. (1993) 20 Cal.App.4th 200, 208 [“Admitting an involuntary confession as evidence against a defendant violates his due process rights under both the California and United States Constitutions.”]; see also People v. Whitson, supra, 17 Cal.4th at p. 248.)
In determining whether a confession was involuntary, courts examine “all the surrounding circumstances – both the characteristics of the accused and the details of the interrogation.” (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 226; see also People v. Hogan (1982) 31 Cal.3d 815, 838, overruled on other grounds in People v. Cooper (1991) 53 Cal.3d 771, 836.) Relevant characteristics of the accused include the accused’s age, sophistication, prior experience with the criminal justice system and emotional state. (In re Shawn D., supra, 20 Cal.App.4th at p. 209.) Courts may also consider whether the police lied to the defendant during questioning. “While the use of deception or communication of false information to a suspect does not alone render a resulting statement involuntary [citation], such deception is a factor which weighs against a finding of voluntariness [citation].” (People v. Hogan, supra, 31 Cal.3d at pp. 840-841.) Further, ‘ “ ‘[i]t 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.” ’ ” (In re Shawn D., supra, 20 Cal.App.4th at p. 210.)
In People v. Brommel (1961) 56 Cal.2d 629, 633, overruled on other grounds in People v. Cahill (1993) 5 Cal.4th 478, 509, fn. 17, for example, the police told the suspect that unless he changed his story to say that he had committed the crime, the officers would write the word “liar” on their report to the judge. According to the court, this conduct constituted both a threat and an implied promise of leniency that rendered the subsequent confession inadmissible. (Ibid.) In People v. Jimenez (1978) 21 Cal.3d 595, 611, overruled on other grounds in People v. Cahill, supra, 5 Cal.4th at p. 510, fn. 17, a confession was inadmissible where the police made an implied promise to the defendant by saying that if the defendant talked about the case, the police would tell the jury to “go lighter” on the defendant.
Where the voluntariness of a confession is raised on appeal, the reviewing court examines the undisputed facts to determine independently whether the juvenile court’s conclusion of voluntariness was proper. (In re Shawn D., supra, 20 Cal.App.4th at p. 207.) We accept the juvenile court’s resolution of disputed or conflicting facts and related inferences, as well as its determinations of credibility, so long as they are based on substantial evidence. (People v. Sapp (2003) 31 Cal.4th 240, 267.) However, where, as here, there is a recorded interview and “the facts surrounding the giving of the statement are undisputed . . . the appellate court may independently review the trial court’s determination of voluntariness.” (People v. Vasila (1995) 38 Cal.App.4th 865, 873.)
We have carefully reviewed the record, including appellant’s recorded interview, and conclude his confession was involuntary. First, the police made an implied promise of leniency by stating that appellant was likely to receive a lighter sentence if he told the truth. Although Ferro stated that he and his partners, as police officers, could not make any promises, he also stated that the district attorney’s office was going to review their report to determine whether anyone was being honest and would be able to testify against another minor “for a lighter sentence.” He also indicated that if appellant admitted he “screwed up,” he could “take his lumps and . . . get out of here . . . so [he could] start a clean slate.”
Where the benefit pointed out by the police “is merely that which flows naturally from a truthful and honest course of conduct,” the statement will not be considered involuntarily made. (People v. Howard (1988) 44 Cal.3d 375, 398.) However, 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.” (People v. Hill (1967) 66 Cal.2d 536, 549.) In addition to making the comments regarding the district attorney’s office, Ferro said he was “giving [appellant] a chance” to tell the truth, and that if he did not, “it’s not gonna look good for you” because the others would implicate appellant and the report would indicate that “it was Anthony.” The other officer told appellant he was going to “end up in the pen” if he was not honest. From these statements, appellant could reasonably believe he would receive a harsher sentence if he did not tell the truth, and a lighter sentence if he did.
Second, the officers repeatedly lied to appellant. They said they had spoken to the other minors who were “more forthcoming” and that appellant’s story was “not the same story everybody in your group said,” when in fact appellant was the first of the four minors they interviewed. They suggested that a photo series had been put together and that appellant had been identified. They told appellant, “we already got enough evidence and other statements from your buddies that you’re going down for it,” when in fact they had no such evidence or statements. They told him that he was “not in here [juvenile hall] for no reason” and that they “already [knew] what happened.” They strongly suggested that appellant was going to “end up in the pen” unless he told them he was involved, stating: “If you wanna keep playing it this way, you’ll end up in the pen. . . . So you need to tell us what happened and stop giving us this crap. Because we know it’s crap.”
Third, the officers’ comments were threatening. They called him a liar and told him to “man[] up” and tell the truth because they already knew what happened. They threatened him with incarceration if he did not confess. Ferro said he had a lot of other cases and was not going go “waste a bunch of time in here with [appellant],” and that unless appellant confessed, he was going to “just talk to every other one of them,” and that “it’s not gonna look good for you” if “three guys are pointing the finger at you.” The People assert that “[r]easonably construed, the detective’s statement [regarding going to prison] amounted to a criticism of the way [appellant] had managed his life as reflected by his false responses during questioning. The officer warned appellant that if he continued to lie and failed to ‘act like a man,’ incarceration would be his inevitable consequence. As such, it was advice not a threat.” The People’s interpretation is not reasonable. The context in which the statement was made, and the tone with which the officer spoke, makes clear the officer was not providing appellant with advice about how to live his life. In fact, immediately after threatening incarceration, the officer referred to the incident, informing appellant that the officers already knew what happened, and that appellant needs to “stop giving us this crap.”
The present case is similar to In re Shawn D., supra, 20 Cal.App.4th at p. 216, in which the court concluded that the minor’s confession was involuntary and therefore inadmissible. There, the minor was also 16 years old at the time of interrogation. (Id. at p. 204.) The detective told the minor that he had spoken to a co-participant and others and knew what had happened. (Id. at pp. 204, 205, 206.) The detective asked the minor to be truthful, said he should admit his mistakes because he has a long life ahead of him, and that his honesty or dishonesty would be noted in the police report. (Id. at p. 204.) The detective said that if the minor continued to lie, he would go to juvenile hall or to jail, and suggested that the minor could also get his pregnant girlfriend in trouble. (Id. at p. 205.) The court considered the minor’s characteristics, noting he was 16 years old. (Id. at p. 213.) Although he had prior contacts with police, he was “unsophisticated” and “naïve,” suffered from posttraumatic stress disorder and had a difficult childhood. (Id. at p. 212.) The court noted that the detective lied to and misled the minor, used “tough talk,” including telling the minor to be a man, falsely suggested that appellant could get his girlfriend in trouble, and implied that he would be treated more leniently if he confessed. (Id. at p. 213.)
Similarly, here, in light of the totality of the circumstances, including the police officers’ lies, threats and implied promises, and appellant’s inexperience with the criminal justice system and his characteristics as described above, ante, page 8, we conclude that appellant’s confession was not voluntary and should not have been admitted.
The error was not harmless.
Appellant contends the error in admitting the confession, which was obtained in violation of his Miranda rights and was not voluntarily made, was not harmless beyond a reasonable doubt. The People do not respond to this contention, stating only that “it is not necessary to address his claim that its admission was prejudicial error” “[b]ecause appellant’s confession was admissible.” We agree with appellant, and with the juvenile court and the prosecutor’s comment that without the confession, there would have been insufficient evidence to sustain the petition. Therefore, the judgment must be reversed.
Disposition
The judgment is reversed.
We concur: McGuiness, P. J., Siggins, J.