Opinion
H044429
02-20-2020
In re M.R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. M.R., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 115JV41275)
After a contested jurisdictional hearing, the juvenile court sustained a wardship petition alleging that minor M.R. committed first degree residential burglary (Pen. Code, §§ 459, 460, subd. (a)). M.R. was continued as a ward of the juvenile court and returned to his parents' custody on probation. Following a contested restitution hearing, M.R. was ordered jointly and severally liable with his mother and his co-defendant H.C. for victim restitution in the amount of $66,991.
Unspecified statutory references are to the Penal Code.
On appeal, M.R. argues that his and H.C.'s confessions were involuntarily obtained, and his defense counsel was ineffective when she failed to object to the confessions on hearsay or confrontation clause grounds. He also raises multiple arguments about the juvenile court's restitution award.
We agree with M.R. that his trial counsel was ineffective when she failed to object to his confession on the grounds he now raises on appeal, requiring reversal of the judgment. Because we reverse the judgment, we also reverse the restitution order.
BACKGROUND
1. The Wardship Petition
On May 16, 2016, a juvenile wardship petition was filed under Welfare and Institutions Code section 602, subdivision (a) in Contra Costa County Superior Court alleging that M.R. committed first degree residential burglary (§§ 459, 460, subd. (a)). M.R. denied the allegation, and the matter proceeded to a contested jurisdictional hearing.
2. Evidence Adduced at the Contested Jurisdictional Hearing
A joint jurisdictional hearing was held for M.R. and his codefendant, H.C. H.C., like M.R., was charged with first degree residential burglary.
On November 20, 2015, Brenda H. lived in a corner house in San Ramon with her husband Martin H. Martin left the house at around 7:00 a.m., and Brenda left the house at around 7:30 a.m. Before Brenda left, the house was neat and "kept up" with beds made. When Brenda returned home at around 12:30 p.m., the house was in a state of disarray. The door to the kitchen and the door going from the side of the house to the garage were both open; $400 in cash, some coins, and jewelry were missing. Brenda called the police. Brenda did not know M.R. or H.C. and did not give them permission to enter her home that day.
San Ramon Police Detective Leysy Pelayo investigated the burglary at Brenda and Martin's house. Pelayo was able to identify M.R. and H.C. as suspects and interviewed them on separate occasions.
On January 19, 2016, Detective Pelayo interviewed M.R. outside his family's apartment in San Jose. Pelayo conducted the interview in her car, which she parked in M.R.'s apartment complex's parking lot. M.R. was not handcuffed during the interview, and he sat in the car's front passenger seat. Before the interview, Pelayo spoke with M.R.'s mother, told his mother that she needed to speak with M.R., and asked M.R. to come with her to her car. Once M.R. was in Pelayo's car, she read him his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 from her department-issued Miranda card. M.R. acknowledged that he understood his rights.
M.R. initially denied being in San Ramon. Detective Pelayo showed him some photographs of Brenda and Martin's house, and M.R. said that he and a friend, H.C., went to the house and stole jewelry. M.R. asked Pelayo if the house that was burglarized was a corner house. M.R. said that another juvenile by the name of "Win" or "Nguyen" (hereafter "Nguyen") assisted in the burglary, and H.C. and Nguyen sold the jewelry that they took. M.R. said he received $400 for his role in the burglary.
On March 15, 2016, Detective Pelayo interviewed H.C. at his family's apartment in San Jose. Pelayo spoke with H.C.'s mother first and told her why she was there. She spoke with H.C. in the apartment's common area at the dining table. H.C.'s mother was inside her bedroom during the interview. At no point during the interview was H.C. handcuffed, and Pelayo did not tell H.C. that he was being detained. Pelayo read H.C. his Miranda rights, and H.C. acknowledged that he understood his rights.
Detective Pelayo told H.C. that she was there to investigate a burglary that occurred in San Ramon. Initially, H.C. denied any involvement in the burglary. As the interview progressed, H.C. admitted that he, M.R., and Nguyen committed the burglary and stole money and jewelry from the house. H.C. said that he thought the house was in Dublin, not San Ramon. Pelayo showed H.C. a picture of the interior of a room taken from inside Brenda and Martin's San Ramon house, and H.C. indicated that they had taken money from that room. H.C. said that he and Nguyen sold the jewelry after the burglary, and each participant received around $400.
Later, Detective Pelayo's team conducted a search of M.R.'s and H.C.'s apartments but were unable to locate any of the stolen items. Pelayo also went to the jewelry store where H.C. said he sold the stolen jewelry. She looked through the store's receipts from around the time of the burglary but did not find any evidence related to the burglary. The store, however, did not keep detailed receipts and generally provided only a vague description of the items and the items' weight.
After hearing argument from counsel, the juvenile court in Contra Costa County sustained the wardship petition as to M.R. and transferred jurisdiction to Santa Clara County Superior Court for disposition.
The juvenile court also sustained the wardship petition as to H.C.
3. The Dispositional Hearing
On September 30, 2016, the juvenile court in Santa Clara County held a dispositional hearing and adopted the recommendations of the probation report with certain modifications. M.R. was continued as a ward of the juvenile court, placed on probation, and returned to his parents' custody. M.R. was further required to complete 40 hours of public service work. The matter was then set for a contested restitution hearing.
4. The Restitution Order
During the contested restitution hearing, the victims, Brenda and Martin, and an expert gemologist retained by M.R.'s counsel testified about the value of the stolen jewelry and several of the other items listed in the restitution reports. After considering the evidence that was presented, the juvenile court ordered M.R. jointly and severally liable with his mother and H.C. for victim restitution in the amount of $66,991.
DISCUSSION
On appeal, M.R. argues that his and H.C.'s confessions were involuntarily obtained, and his defense counsel was ineffective for failing to object to their admission on the grounds of voluntariness, the Confrontation Clause, or hearsay. He also makes multiple arguments about the juvenile court's restitution order.
1. M.R.'s and H.C.'s Confessions
a. Background
i. M.R.'s Confession and Defense Counsel's Miranda Objection
During the jurisdictional hearing, M.R.'s defense counsel objected to the introduction of M.R.'s confession, arguing that Detective Pelayo did not obtain a valid waiver of M.R.'s Miranda rights. Defense counsel subsequently examined Pelayo about the circumstances of the interview.
Detective Pelayo testified that she interviewed M.R. in her car, which she parked in the parking lot outside M.R.'s apartment complex. When Pelayo first arrived at M.R.'s apartment, M.R.'s mother and someone that may have been M.R.'s sibling were present. Pelayo was wearing jeans and a black polo shirt marked with a badge, her number, and name. She could not recall how she identified herself to M.R., but she normally identifies herself as "Detective Pelayo with San Ramon Police Department." Pelayo recorded the conversation that she had with M.R., which she began approximately five minutes after arriving at the apartment.
During M.R.'s interview, his mother was inside of their apartment approximately a hundred feet away. M.R. sat in the front passenger seat of Detective Pelayo's car. The car's doors were closed during the interview. Pelayo did not put M.R. in handcuffs at any point. When M.R. first got inside of Pelayo's car, she read him his Miranda rights from her department-issued Miranda card. Pelayo read each right and asked M.R. if he understood. After each right was read, M.R. responded, "Yes, ma'am."
Detective Pelayo had never met M.R. before she interviewed him. She did not know his reading comprehension level or his education level. She did not provide any additional discussion about each right after she read them from her Miranda card.
After questioning Detective Pelayo, defense counsel published "a portion of [M.R. and Pelayo's] conversation." The audio recording of the interview lasted approximately one minute and 43 seconds and encompassed the beginning portion of the interview where M.R. was advised of his Miranda rights.
We issued an order to the Contra Costa County Superior Court requesting that it transmit the defense exhibit that was admitted into evidence. (Cal. Rules of Court, rule 8.224(d).) In response to our request, the Contra Costa County Superior Court transmitted a copy of the audio file that was played for the juvenile court. This audio file, which is approximately one minute and 43 seconds long, appears to be an edited version of an audio file that we previously received from M.R.'s appellate counsel in conjunction with a motion to augment the record. The audio file transmitted by M.R.'s appellate counsel contains the complete interview between M.R. and Detective Pelayo and was obtained from the San Ramon Police Department after we directed the Santa Clara County Superior Court to prepare a settled statement about the recorded Miranda interview that was admitted into evidence during the jurisdictional hearing. In our recitation of facts, we rely on the edited audio file that was transmitted to us by the Contra Costa County Superior Court.
The audio recording reveals the following. Detective Pelayo first asked M.R. how old he was, and M.R. said he was 17 years old. Pelayo told M.R., "[r]ight now, I'm not going to arrest you." She also told M.R. that she was just there to talk to him. Pelayo asked M.R. how many times he had been arrested before, and M.R. said that he had been arrested twice.
Detective Pelayo told M.R. that because he was a juvenile, she had to go over his rights before she spoke with him. She also said that she would have to go over his Miranda rights if he was a victim or a witness to a crime. Pelayo told M.R. that she was not "here to jam [him] up." M.R. asked Pelayo, "I'm not going to get arrested?" Pelayo responded, "No, I'm not here to fuck with you, I'm just here to get some answers to some questions, okay?" Pelayo told M.R. that if he was honest with her, she would be honest with him. She further said that she did not like being lied to, and she was merely trying to get some questions answered. Pelayo told M.R. that she was not trying to "screw [him] over," and M.R. was just a "kid" and she had a "kid [M.R.'s] age."
Afterwards, Detective Pelayo advised M.R. of his Miranda rights. After she read each right, Pelayo asked M.R. if he understood the right, and M.R. replied yes each time. Pelayo then asked if M.R. knew where his probation officer was.
Based on the audio recording and Detective Pelayo's testimony at the jurisdictional hearing, M.R.'s defense counsel argued that Pelayo did not obtain a valid waiver of M.R.'s Miranda rights. The interview took place in Pelayo's car with the doors closed, and, since Pelayo was speaking to M.R. about an investigation that she was conducting, M.R. would not have felt free to leave. Defense counsel further argued that the way that Pelayo read M.R. his Miranda rights was "very matter of fact," and she "breeze[d] through them . . . very quickly." Defense counsel insisted that Pelayo "minimize[d] [the importance of the Miranda rights] by saying—by acting like, you know, this is just something I have to do, something I have to get through. . . . I would still have to do this if you're a victim or a witness, minimizing the importance of what she's about to do and the rights that she's giving and [not] really taking any time at all to make sure that [M.R. understood] the rights or even the words that she's saying." Moreover, Pelayo did not take the time to ascertain M.R.'s education or comprehension level.
After considering the parties' arguments, the juvenile court overruled defense counsel's objection. The juvenile court observed that M.R. had been arrested before and had experience with these types of situations. Moreover, M.R. was free to leave, the doors to the car were not locked, he was in the front seat, and he asked Detective Pelayo if he was going to be arrested after she made her preliminary statements to him.
The audio recording of the interview was admitted into evidence, but a transcript that had been previously marked as a defense exhibit was not.
The audio of H.C.'s recorded confession was not admitted into evidence.
During the jurisdictional hearing, H.C.'s counsel objected to the introduction of H.C.'s confession, raising the "same Miranda" objection that was raised by M.R.'s counsel with respect to M.R.'s confession. Subsequently, Detective Pelayo was examined about the circumstances of H.C.'s confession.
Detective Pelayo testified that she and her partner interviewed H.C. on March 15, 2016, at his apartment in San Jose. Initially, Pelayo called H.C.'s mother, told her she was investigating a burglary where H.C. was a suspect, and asked her if she could speak to H.C. at the police department. H.C.'s mother indicated that she did not have transportation for H.C. and asked Pelayo if she could come to their apartment to speak to H.C.
At the time, H.C.'s mother, brother, and an unidentified man were at H.C.'s apartment. Detective Pelayo was in dress-down uniform, wearing a polo shirt and jeans, similar to the clothes that she wore when she interviewed M.R. When Pelayo first arrived at H.C.'s apartment, she spoke with H.C.'s mother and told her why she was there. Pelayo spoke with H.C. at the dining room table. During her conversation with H.C., H.C.'s mother was in the bedroom. H.C. was not in handcuffs during the interview, and Pelayo never told him that he was being detained.
Detective Pelayo began her conversation with H.C. by telling him that she was not going to arrest him. She said that she needed to "go over this quick," then read him his Miranda rights. She told H.C. that she needed to review Miranda rights with anyone who was under the age of 18. H.C. indicated that he understood each individual right after they were read to him. Pelayo could not recall if she asked H.C. how old he was during the interview, but she knew that he was a minor based on the information that she had received. Pelayo did not ask H.C. or his mother whether H.C. was in special education.
During the interview, Detective Pelayo's partner indicated to H.C. that there were fingerprints that linked him to the burglarized home. Pelayo also told H.C. that his name came up while she was investigating the case, and there were witnesses who saw him in the area. At the jurisdictional hearing, Pelayo admitted that there were no fingerprints linking H.C. to the burglarized home, and aside from M.R., there were no witnesses that placed H.C. in the area.
Detective Pelayo told H.C. that her biggest concern was getting the victims' property back. She explained to H.C. that there were two ways that the situation could be viewed—H.C. was cooperating and helping the victims recoup the stolen items, or H.C. was not cooperating and was remorseless. Pelayo's partner told H.C. that he would have been arrested if he was over 18, but they were giving him an opportunity to "make this right." Pelayo's partner stated that "no one there gives . . . any breaks unless you tell the truth." Pelayo's partner also explained that the officers were not "here to take [H.C.] out in cuffs; [they were there] to try to resolve the situation" and asked if H.C. wanted to help himself by being truthful.
Before Detective Pelayo gave H.C. Miranda warnings, she had a conversation with him about being of Mexican descent. After she gave him Miranda warnings, she said that she wanted to work with him because the victims just wanted their property back. During the interview, H.C. told Pelayo that he was 17 years old. He also told Pelayo that he had been arrested before. Pelayo could not recall if she asked H.C. if he had ever been given Miranda warnings.
H.C.'s counsel argued that given the coercive nature of the interview, H.C. did not voluntarily waive his Miranda rights. H.C.'s counsel insisted, "[i]n this particular case, peppered throughout this conversation with [H.C.] were indications that were he to confess, this would be written up in a different way . . . implying . . . to a 17-year-old that if you just tell the truth, we're not going to arrest you . . . . [¶] . . . and if you just tell us where the property is, tell us what happened, then we'll [have] resolved this issue. If we've gotten the property back, you won't face charges. I think that's certainly implied in those statements." Counsel also argued that the police employed deceptive tactics when they told H.C. that his fingerprints were found inside the house and that he had been identified by other witnesses at a scene.
After considering the parties' arguments, the trial court overruled the objection to the admission of H.C.'s confession, determining that the People had met their burden of proof by a preponderance of the evidence to show that the confession was voluntary.
b. Admissibility and Voluntariness of H.C.'s Confession
We first address M.R.'s argument that H.C.'s confession was inadmissible against him and should have been excluded. M.R. claims that H.C.'s confession was hearsay under Bruton v. United States (1968) 391 U.S. 123 (Bruton) and People v. Aranda (1965) 63 Cal.2d 518 (Aranda), was barred by the Confrontation Clause of the Sixth Amendment under Crawford v. Washington (2004) 541 U.S. 36, and was obtained involuntarily in violation of due process.
Preliminarily, we agree with M.R. that it would have been erroneous for the juvenile court to consider H.C.'s confession as evidence of M.R.'s guilt. The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." A problem arises when an out-of-court confession implicates not only the defendant but a codefendant who has invoked his or her Fifth Amendment right against self-incrimination and declines to testify. Under the Aranda-Bruton rule, "admission of such a confession at a joint trial generally violates the confrontation rights of the nondeclarant." (People v. Fletcher (1996) 13 Cal.4th 451, 455; Bruton, supra, 391 U.S. at pp. 126-137; Aranda, supra, 63 Cal.2d at pp. 528-530.) Thus, as described in Aranda, a codefendant's extrajudicial statement must be redacted to eliminate direct or indirect references to the defendant before it may be admitted against the defendant. (Aranda, supra, at pp. 528-531.) Here, H.C. did not testify at his joint jurisdictional hearing with M.R. Thus, admission of his nonredacted confession to ascertain M.R.'s guilt would violate M.R.'s Sixth Amendment rights.
However, there is nothing in the record to indicate that the juvenile court considered H.C.'s confession as evidence of M.R.'s guilt. M.R.'s jurisdictional hearing was held before the juvenile court. Unlike a jury, we presume that a trial judge knows and applies the governing law, and, as a result, we presume that it applied the Aranda-Bruton rule. (People v. Thomas (2011) 52 Cal.4th 336, 361 ["we presume that the court 'knows and applies the correct statutory and case law' "].) In fact, appellate courts have concluded that the procedures prescribed by Aranda-Bruton are inapplicable to court trials (People v. Walkkein (1993) 14 Cal.App.4th 1401, 1406-1409) and to juvenile proceedings (In re Jose M. (1994) 21 Cal.App.4th 1470, 1479, 1481).
As a result, we do not reach M.R.'s claim that H.C.'s confession was involuntary because we presume, in the absence of contrary evidence, that the confession was not considered by the juvenile court when it determined M.R.'s guilt.
c. Voluntariness of M.R.'s Confession
Next, M.R. argues that his confession was coerced under a totality of the circumstances and alleges that Detective Pelayo used deceptive interrogation tactics and impliedly promised him leniency in exchange for his confession.
i. Forfeiture
Below, M.R.'s defense counsel argued that Detective Pelayo did not obtain a valid waiver of M.R.'s Miranda rights based on the setting of the interview, Pelayo's rapid recitation of Miranda rights, and her failure to ascertain whether M.R. understood the rights that were being described to him. On appeal, M.R. does not solely challenge his waiver of Miranda rights. Instead, he argues that under the totality of the circumstances, his subsequent confession was involuntarily obtained. This argument was not raised below, and the admissibility of M.R.'s confession due to a lack of a voluntary Miranda waiver is a distinct claim from an argument that M.R.'s confession was obtained through coercive police tactics that occurred later during the interview. As a result, defense counsel's failure to raise these additional arguments below has forfeited the claims on appeal. (Evid. Code, § 353; People v. Williams (2010) 49 Cal.4th 405, 435.)
ii. Ineffective Assistance of Counsel
Alternatively, M.R. argues that defense counsel was ineffective for failing to object to the admission of his confession on the voluntariness grounds that he now raises on appeal.
A. Matters Outside the Appellate Record
Preliminarily, we observe that M.R.'s claim of ineffective assistance of counsel with respect to his confession references matters that are outside the appellate record.
The audio of the interview admitted as evidence during the jurisdictional hearing does not contain M.R.'s entire confession; the audio contains only the beginning portion of the interview where M.R. was read his Miranda rights. This audio file was transmitted to this court from the Contra Costa County Superior Court.
M.R., however, relies on the audio recording of M.R.'s entire police interview when formulating his appellate arguments. This longer recording, which was provided by the San Ramon Police Department, was lodged with this court after the Santa Clara County Superior Court completed a settled statement about the "recorded Miranda interrogation of minor . . . that was admitted into evidence." We later granted M.R.'s motion to augment the record with this longer audio file.
The Attorney General acknowledges that the audio file that was admitted into evidence during the jurisdictional hearing included only the beginning portion of M.R.'s interview. In his reply brief, M.R. recognizes that the Attorney General asserts that "the record includes only the portion of the recorded interview wherein Detective Pelayo read [M.R.] his Miranda rights" but suggests that since this court granted his request to augment the record with the audio recording of M.R.'s entire interview, the entire interview is now a part of the appellate record.
We disagree with M.R.'s conclusion that the entire interview is now a part of the record on appeal. Under California Rules of Court, rule 8.155(a), a reviewing court may order the record augmented to include documents filed or lodged in the case in the superior court. Only the beginning portion of M.R.'s interview was filed and lodged with the juvenile court below. Our decision to grant M.R.'s motion to augment the record should not be interpreted as augmenting the record to include evidence that was not otherwise before the juvenile court at the jurisdictional hearing. If so construed, our augmentation order would improperly expand the scope of the appellate record. The settled statement that we directed the Santa Clara County Superior Court to make specifically requested the recorded interrogation "that was admitted into evidence" in Contra Costa County Superior Court, and the entire police interview was not admitted into evidence. (Italics added.)
Thus, we disregard M.R.'s arguments to the extent that they reference matters that were not admitted into evidence at the jurisdictional hearing. Specifically, we do not consider his arguments pertaining to the portions of the interview that occurred after Detective Pelayo read M.R. his Miranda rights.
M.R. should proceed by filing a petition for a writ of habeas corpus to the extent that he wishes to address issues that are outside the appellate record. (See People v. Jenkins (2000) 22 Cal.4th 900, 952-953.)
B. Standard of Review
"Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215.) To prevail on a claim of ineffective assistance of counsel, a criminal defendant must establish both that his counsel's performance was deficient and that he suffered prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) The deficient performance component of an ineffective assistance of counsel claim requires a showing that "counsel's representation fell below an objective standard of reasonableness. [¶] . . . under prevailing professional norms." (Id. at p. 688.)
With respect to prejudice, a defendant must show "there is a reasonable probability"—meaning "a probability sufficient to undermine confidence in the outcome"—"that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland, supra, 466 U.S. at p. 694.) We "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." (Id. at p. 697.)
C. General Principles Governing the Voluntariness of Confessions
Admission of an involuntary confession violates the Fourteenth Amendment of the United States Constitution. (Arizona v. Fulminante (1991) 499 U.S. 279.) "To determine the voluntariness of a confession, courts examine ' "whether a defendant's will was overborne" by the circumstances surrounding the giving of a confession.' " (People v. Dykes (2009) 46 Cal.4th 731, 752.) " ' " 'A confession may be found involuntary if extracted by threats or violence, obtained by direct or implied promises, or secured by the exertion of improper influence. [Citation.] Although coercive police activity is a necessary predicate to establish an involuntary confession, it "does not itself compel a finding that a resulting confession is involuntary." [Citation.] The statement and the inducement must be causally linked. [Citation.]' [Citation.]" [Citation.] A confession is not rendered involuntary by coercive police activity that is not the "motivating cause" of the defendant's confession.' " (People v. Jones (2017) 7 Cal.App.5th 787, 810.) "Voluntariness turns on all the surrounding circumstances, 'both the characteristics of the accused and the details of the interrogation.' " (In re Elias V. (2015) 237 Cal.App.4th 568, 577 (Elias V.).)
The prosecution bears the burden by establishing by a preponderance of the evidence that a confession was voluntarily made. (People v. Carrington (2009) 47 Cal.4th 145, 169.) We independently review the trial court's finding for substantial evidence as to the voluntariness of a confession and review the trial court's factual findings as to the circumstances of the confession. (People v. Tully (2012) 54 Cal.4th 952.) "Admissions and confessions of juveniles require special caution, and courts must use special care in scrutinizing the record to determine whether a minor's custodial confession is voluntary." (In re Joseph H. (2015) 237 Cal.App.4th 517, 533-534.)
D. Deficient Performance
After carefully reviewing the record, we conclude that M.R. meets his burden to demonstrate that defense counsel's representation fell below an objective standard of reasonableness when she failed to challenge his confession on the grounds raised on appeal.
M.R. argues that the totality of the circumstances establishes that his confession was not voluntary. He argues that Detective Pelayo stated that her only purpose was to get some questions answered about the stolen property, implying a promise of leniency in exchange for his confession. M.R. further argues that Detective Pelayo's tactics were deceptive. M.R. points to the portions of the interview where Pelayo told M.R. that she was not there to "jam [him] up" or "screw [him] over." Pelayo also told M.R. that because he was a juvenile, she had to go over his rights before she spoke with him. She further explained that she would have to go over his Miranda rights even if he was a victim or a witness to a crime. Later, M.R. asked Pelayo, "I'm not going to get arrested?" Pelayo responded, "No, I'm not here to fuck with you, I'm just looking to get some answers to some questions, okay?"
Generally, a confession is involuntary and inadmissible if it is obtained by a promise of benefit or leniency. (People v. Holloway (2004) 33 Cal.4th 96, 115.) In this case, we believe that Detective Pelayo's comments to M.R. promised him leniency, rendering his confession involuntary. Here, Pelayo assured M.R. that he was not going to be arrested, and she was not going to "jam [him] up" or "screw [him] over" if he spoke to her. In other words, Pelayo told M.R. that he would not face legal consequences if he cooperated with the police and spoke to her about his involvement in the crime. (See People v. Perez (2016) 243 Cal.App.4th 863, 876 [finding confession involuntary after officer told the defendant he would not be charged with a crime if he was truthful and honest during interview]; People v. Brommel (1961) 56 Cal.2d 629, 633 [officers told defendant that if they wrote down he was a liar, defendant could go before the judge and " 'ask him for all the breaks in the world,' " but the judge would not believe him], overruled on a different point in People v. Cahill (1993) 5 Cal.4th 478, 509, fn. 17; In re Roger G. (1975) 53 Cal.App.3d 198, 202-203 [officers told minor defendant that they could not promise him parole but they would try to help him if he told them what happened]; Elias V., supra, 237 Cal.App.4th at pp. 570-587 [during interview of 13-year-old minor, detective repeatedly insisted on the minor's guilt, was relentless during questioning, threatened to subject minor to a lie detector test, and made false representations]; In re Shawn D. (1993) 20 Cal.App.4th 200 [detectives reminded minor that he could be tried as an adult and told minor that if he helped them retrieve stolen items, the detectives would speak with the district attorney or whoever worked on juvenile cases].)
We acknowledge that M.R. had previous experiences with law enforcement and was not a novice to the legal system. He had been arrested twice before and, as alluded to in the interview, was presently on probation. However, scrutinizing the voluntariness of confessions made by minors requires "special caution," and we must use "special care" when examining the record to determine the voluntariness of a minor's confession. (In re Joseph H., supra, 237 Cal.App.4th at p. 533.) It is undisputed that M.R. was still a minor when he spoke with Detective Pelayo. Moreover, M.R.'s subsequent confession was obtained only after he received an assurance that he would not be arrested if he answered Pelayo's questions.
The Attorney General argues that even if Detective Pelayo's statements are properly construed promises of leniency, the record does not support a finding that the statements proximately caused him to confess. (See People v. Linton (2013) 56 Cal.4th 1146, 1177 [confession is not rendered involuntary by coercive police activity that is not the motivating cause of the defendant's confession].) The Attorney General claims that in the portion of the interview that was not admitted into evidence, M.R. continued to offer exculpatory responses even after Pelayo made her allegedly deceptive statements. However, the prosecution bore the burden by establishing by a preponderance of the evidence that the confession was voluntarily made. (People v. Carrington, supra, 47 Cal.4th at p. 169.) There was no evidence introduced that demonstrated there was a significant time lapse between Pelayo's assurances and M.R.'s confession.
Furthermore, "[w]here the dominant focus of an interrogation is an implied promise of leniency and a confession ensues, absent adduction of countervailing evidence, e.g., a substantial time lapse between the implied promise and the incriminating statements, the confession must be attributed to that implied promise." (People v. Cahill (1994) 22 Cal.App.4th 296, 316.) Under the circumstances, it appears that M.R.'s willingness to speak with Detective Pelayo hinged on her assurance to him that he would not be arrested for the crime. As we previously described, in the beginning of the interview, M.R. specifically asked Pelayo, "I'm not going to get arrested?" Pelayo responded, "No, I'm not here to fuck with you, I'm just looking to get some answers to some questions, okay?" Logically, M.R.'s later confession is attributable to Pelayo's promise of leniency.
When we review a claim of ineffective assistance of counsel on direct appeal, a conviction will be reversed "only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation." (People v. Mai (2013) 57 Cal.4th 986, 1009.) This is a situation where we cannot conceive of a satisfactory explanation for defense counsel's failure to object to M.R.'s confession on the grounds he now raises on appeal. Thus, we conclude that M.R. has met his burden to demonstrate that defense counsel rendered ineffective assistance by failing to object to his confession on the ground that it was involuntarily obtained. (Strickland, supra, 466 U.S. at p. 688.)
E. Prejudice
Next, we turn to M.R.'s argument that he was prejudiced by defense counsel's failure to object to his confession below. Under Strickland, to demonstrate prejudice, a defendant must show "there is a reasonable probability"—meaning "a probability sufficient to undermine confidence in the outcome"—"that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland, supra, 466 U.S. at p. 694.)
In this case, M.R.'s guilt rested on his confession. As we explained in the preceding section of the opinion, the juvenile court could not have considered H.C.'s confession as evidence against M.R., and there was no physical evidence that tied M.R. to the burglary. Accordingly, M.R. has demonstrated that there is a reasonable probability that in the absence of defense counsel's errors, the result of his jurisdictional hearing would have been different. (Strickland, supra, 466 U.S. at p. 694.) Reversal of the judgment is therefore required.
Based on our conclusion, we do not need to reach M.R.'s claim that defense counsel also rendered ineffective assistance by failing to object to H.C.'s confession. --------
2. The Restitution Order
Following a contested restitution hearing, the juvenile court ordered M.R. jointly and severally liable with his mother and H.C. for victim restitution in the amount of $66,991. M.R. argues that the restitution order was not supported by substantial evidence, and he received ineffective assistance of counsel when defense counsel conceded certain restitution amounts, miscalculated the conceded amounts, failed to dispute unsubstantiated restitution amounts, and failed to object to the juvenile court's failure to make required findings. Because we reverse the judgment against M.R., we do not reach his restitution-related arguments. The sole basis for the restitution order is the jurisdictional finding that M.R. committed burglary. Thus, we must also reverse the restitution order.
DISPOSITION
The judgment and the restitution order are reversed.
/s/_________
Premo, J. WE CONCUR: /s/_________
Greenwood, P.J. /s/_________
Elia, J.