Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. DL035838, Ronald P. Kreber, Judge.
Kristin A. Erickson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
The question remains whether 13-year old C.E. (the minor) was in custody when he was interrogated by the police at his middle school. We reverse.
I
FACTS
The juvenile court sustained the petition alleging the minor committed misdemeanor sexual battery and placed him on probation. One of the terms and conditions of probation was that the minor had to complete 10 days on the community work program.
The minor and the victim were classmates in middle school. The victim explained what happened: “That day I was sitting at my desk, and I was facing the wall with three of my friends... we were doing a worksheet, and he came from behind me and he scooped my right breast.” She said she saw him behind her and said hi, but he did not respond except to scoop her with his hand over her clothing. She explained what she meant by scoop: “It’s like grabbing someone in their private area.” After he touched her breast, the minor laughed and walked away. Others in the class laughed too.
The victim complained to the teacher “that the guys in that classroom were always harassing” her. That same day, another male classmate poked her breast with a pencil. One of the boys threw a sandwich at her. Boys were teasing her about having “Double D’s.”
A police officer in uniform asked the minor what happened. He did not inform the minor of his rights under Miranda v. Arizona (1966) 384 U.S. 436. While he interviewed the minor, the officer took notes. According to the officer, “right away” the minor said “he went and stood by the victim and tapped her breast.” He said he did not use the back of his hand and used the palm of his hand. He did not say he intended to do it. He did not say it was an accident. He said he thought it was funny. The minor told another boy in the class he had just scooped the victim.
During his testimony, the minor said that while he was speaking with the police officer for 45 minutes in the school assistant principal’s office, the officer “stood up pretty fast, which kind of scared me. And then he was kind of standing over me, looking down, which got me really scared. I almost started crying, but I didn’t want to.” The minor said he asked if he could have his mom there but the officer said “no.” While standing over him, according to the minor, the officer wrote notes on a clipboard. The minor said he told the officer he did not touch the girl’s breast. He said the officer yelled at him.
The officer was recalled and said he did not speak loudly to the minor, and did not recall speaking with him for 45 minutes. He said, “Maybe close to 15. I don’t know.” He said he arrived at the school around 11:24 a.m. and first went to the office, then spoke with three other students prior to speaking with the minor. After he spoke with the minor, the minor was told to wait in the office until his mother arrived. The minor waited there for five or 10 minutes. At some point after the officer started to speak with the minor’s mother, he turned on his recorder. The recording shows the beginning time at “1328 hours.” He explained why he did not record his conversation with the minor: “He wasn’t a suspect at that time. I was trying to find out what had happened at the school.”
The officer explained that he did not even think about whether or not he had recorded anything until he heard the mother’s testimony in juvenile court when he said to himself: “Did I activate my recorder? Because I did not want some type of false complaint.” He went into the station at 5:30 the next morning to look at a recording log and found that he had activated his recorder. The recording of the officer’s conversation with the minor’s mother was played in the juvenile court. But the recording was not made an exhibit, and no transcription of it is in the record on appeal. The juvenile court recognized there was “loud talk” on the recording, but that was after the interview with the minor was concluded.
II
DISCUSSION
The minor argues the juvenile court erred when it refused to exclude his statements to the police “because they were taken while he was in custody in violation of Miranda v. Arizona [(1966]) 384 U.S. 436 and because they were made involuntarily.”
“In Miranda v. Arizona [(1966) 384 U.S. 436], the United States Supreme Court ‘determined that the Fifth and Fourteenth Amendments’ prohibition against compelled self-incrimination require[s] that custodial interrogation be preceded by advice to the putative defendant that he has the right to remain silent and also the right to the presence of an attorney.’ [Citation.]” (People v. Bradford (1997) 14 Cal.4th 1005, 1033.) “A minor has a Fifth Amendment privilege against self-incrimination, which precludes admission of a minor’s confession obtained without the minor’s voluntary, intelligent, and knowledgeable waiver of his or her constitutional rights. [Citations.] To determine whether a minor’s confession is voluntary, a court must look at the totality of circumstances, including the minor’s age, intelligence, education, experience, and capacity to understand the meaning and consequences of the given statement. [Citations.] ‘The decision to confess cannot be of itself an indicium of involuntariness in the complete absence of coercive circumstances.’ [Citation.] A court should look at whether the minor ‘was exposed to any form of coercion, threats, or promises of any kind, trickery or intimidation, or that he was questioned or prompted by... anyone else to change his mind.’ [Citation.]” (People v. Lewis (2001) 26 Cal.4th 334, 383.)
Custodial interrogation “encompasses any situation in which ‘a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ [Citation.]” (People v. Mickey (1991) 54 Cal.3d 612, 648.) “Absent ‘custodial interrogation, ’ Miranda simply does not come into play. [Citations.]” (Ibid.) In People v. Lopez (1985) 163 Cal.App.3d 602, the Court of Appeal listed five objective indicia of custody for Miranda purposes: (1) formal arrest; (2) absent formal arrest, the length of the detention; (3) location; (4) the ratio of officers to suspects; and (5) the demeanor of the officer. (Id. at p. 608.)
“‘“[O]n appeal all presumptions favor proper exercise”’ of the trial court’s power to ‘“judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences”’ and its “‘findings—whether express or implied—must be upheld if supported by substantial evidence.”’ [Citation.]” (People v. Alexander (2010) 49 Cal.4th 846, 883.)
Minor’s counsel urged the court to exclude the minor’s incriminating statements, arguing: “[The minor] is 13 years old. He’s alone with Officer Rapp in a room with the window covered. He’s confused. He doesn’t know why he’s there. He’s denied lunch. He’s there — during the lunch period, he’s there. He asked to go to the bathroom; he’s not allowed to go to the bathroom. He asked for his mother; he’s told no. He testified that he was yelled at and he was — he kind of shut down and looked at the floor because he was scared. He saw a gun, and he — Officer Rapp was putting his hands on his handcuffs.”
Counsel continued: “You heard Officer Rapp’s tone of voice when he’s talking to the mother with people around. He was alone with [the minor] in a closed room with the window covered. [¶] [M]y client testified that he didn’t say any of the things that Officer Rapp said he said. Officer Rapp found it convenient to find a recording of a conversation he had with [mother], but there’s no recordings of any of the minors.”
When the juvenile court announced its decision, it stated: “The [Miranda] rules are no different in determining if a juvenile is in custody. The court found “the statements would be admissible under Miranda.”
Since this matter has been on appeal, the United States Supreme Court issued J. D. B. v. North Carolina (June 16, 2011, No. 09-11121) __U.S. __[2011 U.S. Lexis 4557]. In that opinion, the court remanded a case involving another 13-year-old boy to a state court to address the question whether or not that 13-year-old boy was in custody when police interrogated him. The court stated: “We remand for the state courts to address that question, this time taking account of all the relevant circumstances of the interrogation, including J. D. B.’s age at the time.” (Id., at p. __ [2011 U.S. Lexis 4557, at p *36].)
Based on J. D. B., we conclude the trial court erred in failing to take into account the minor’s age in determining whether he was in custody for Miranda purposes. On retrial, the juvenile court is to address all the relevant circumstances, including the minor’s age, and determine the question whether or not he was in custody during his interrogation by the police officer.
III
DISPOSITION
The judgment is reversed.
WE CONCUR: RYLAARSDAM, ACTING P.J., ARONSON, J.