Opinion
A130777
11-18-2011
In re TIMOTHY F., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY F., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco City & County Super. Ct. No. JW076237)
The trial court adjudged defendant a ward of the court pursuant to Welfare and Institutions Code section 602, subdivision (a), after it found true allegations that defendant possessed a concealable firearm (Pen. Code, § 12101, subd. (a)(1)) and resisted a peace officer (§ 148, subd. (a)(1)). Defendant contends on appeal that the court prejudicially erred in finding that his admission to the police that he handled the firearm was made voluntarily. We conclude that the admission was not coerced.
All further unspecified code sections refer to the Penal Code.
BACKGROUND
On September 29, 2010, a petition under section 602, subdivision (a) was filed charging defendant in count 1 with felony possession of a concealable firearm (§ 12101, subd. (a)(1)), in count 2 with misdemeanor possession of live ammunition (§ 12101, subd. (b)(1), and in count 3 with misdemeanor resistance and obstruction of a police officer (§ 148, subd. (a)(1)). Defendant filed a motion to suppress his admission to the police on the basis that his admission was involuntary.
The trial court held a contested jurisdiction hearing on November 3, 5, and 8, 2010. The court took judicial notice of a search warrant establishing that defendant was on probation with a warrantless search condition at the time of his arrest on September 27, 2010.
At the hearing, Officer Jessie Ortiz testified that on September 27, 2010, he had been notified by two probation officers that defendant was at his girlfriend's apartment in public housing. About 11:00 a.m., on this date, Ortiz and other officers went to the residence of defendant's girlfriend to execute a no-bail arrest warrant for defendant. Ortiz saw defendant next to another person, later identified as Valentine Sua, in the entryway of the apartment. When defendant and Sua saw the officers they ran inside the apartment and out the back of it. The officers set up a perimeter around the building, and defendant eventually surrendered to the police. The police arrested him and transported him to the police station.
Defendant possessed keys to his girlfriend's apartment. The officers searched the apartment. They found a loaded semiautomatic in a laundry hamper inside a closet in the back bedroom.
Officer Robert McMillan interviewed defendant at the police station on September 27, 2010. McMillan testified that he provided defendant with his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436. McMillan stated that defendant initially denied any knowledge about the gun, but later admitted touching the gun that morning. Defendant never told the officer that the gun belonged to Sua. McMillan was not sure whether defendant saw the officers bring his girlfriend to the station for questioning.
Officer McMillan also questioned defendant's girlfriend. She indicated that defendant and she had a two-year-old child. McMillan testified that he might have told her that she could be evicted from the public housing if they determined the gun belonged to her.
By stipulation, the trial court listened to the 12-minute interview of defendant by Officer McMillan and Officer Sean Griffin. In the interview, defendant stated that he was aware of the juvenile warrant issued by probation. He stated that he had been staying at his girlfriend's apartment for more than one week, and that he did not know what the police had found in the house. He said that Sua also occasionally stayed at the apartment. When McMillan told defendant that a gun was found in the back bedroom, defendant said it was not his gun. McMillan asked whether it was his girlfriend's gun, and noted that his girlfriend's name was on the lease for the apartment and that she could get evicted. Defendant said it was not her gun. McMillan responded that defendant should "own up" if the gun belonged to him, but admonished that he was not telling defendant to say the gun was his if it was not his gun. Defendant repeated that it was not his gun.
Officer Griffin asked defendant when he had last touched a gun. Defendant replied that it had been about one year and that he had been locked up for it that time. Griffin told defendant that he was not saying the gun belonged to defendant, but the officers would find out if he had touched the gun because his fingerprints would be on the gun. Griffin asked defendant if they were going to find his fingerprints. Defendant said that he was not sure. Griffin said that touching the gun did not mean he had shot it and urged him to be honest. After a long pause, defendant denied touching the magazine, but added that he probably touched the handle that morning.
On November 5, 2010, the trial court denied defendant's motion to suppress his admission that he touched the gun. The court noted that Officer McMillan gave defendant his rights, including his right to have his parents present. The court stated that advising a defendant to tell the truth when there is no threat with the advisement did not render the confession involuntary. The court explained: "In this case the officer informed the minor what the legal rights are and there was a possibility that the girlfriend may be evicted. If he were lying about the possibility of eviction, then I think that it could turn the confession into an involuntary one. But here the officer was not lying and the interrogation and the tenor, the substance of his interrogation, his information, did not include any other threats or promises of benefits, that the court could find that minor's admission was involuntarily made. [¶] Officer was not doing any of the things that the courts have deemed to be inappropriate in the way it came down. . . ."
On this date, the court also denied defendant's motion to dismiss pursuant to section 1118.
Defense called Sua as a witness. Sua invoked his Fifth Amendment privilege against self-incrimination and refused to answer questions. Officers McMillan and Griffin had interviewed Sua and his interview was admitted as a statement against penal interest. Sua told the officers that he was on probation and was visiting his girlfriend when he spotted the police. He stated that his girlfriend is the sister of defendant's girlfriend. Sua asked what would happen to his girlfriend and defendant's girlfriend, and McMillan responded that they could be evicted. Sua insisted that the women did not know about the gun. He declared that a friend had given him the gun and asked him to fix it.
Defendant's girlfriend also testified as a defense witness. She stated that her son, her younger sister, and she were living in the apartment. She said that she had known defendant for four or five years and that he was the father of their son. She maintained that defendant had been at the apartment three or four times during the week, but she claimed they were not getting along and he was not sleeping there. She testified that on those occasions when defendant did stay in the apartment, he stayed in the front bedroom with her. After the house was searched on September 27, 2010, she explained that she was surprised to learn that the officers had found a gun in the back bedroom where her baby and younger sister slept. She testified that Sua also slept in the back room. She stated that the officers mentioned during her interrogation that she could be evicted if the gun belonged to her.
Defendant testified on his own behalf. He stated that he went to his girlfriend's apartment once in a while to pick up his son and sometimes he slept in his girlfriend's room. His probation officer obtained the warrant because he had failed to appear and had gone to San Francisco to help his girlfriend who was working and taking classes. He said that he had no knowledge of the gun. He maintained that he heard the police tell his girlfriend at the police station that she could be evicted because of the gun and heard them mention child protection services. He stated that his own family had been evicted after he had admitted his earlier gun charge. Defendant stated that he falsely "took the rap" in the interview with Officer McMillan because he did not want his girlfriend "to lose the house."
On cross-examination, defendant admitted that he told Officer McMillan that he had handled the gun that morning, and that his fingerprints would have been found on the gun if they tested it. He was then asked, "And that's the truth; isn't it?" Defendant said, "Yes." He was then asked, "So how long did you handle the gun that morning?" Defendant responded, "No, wait, wait. You got to back that up. You kind of caught me in the middle of that. Can you rephrase? Simplify that question." Defendant then agreed that he told McMillan that he handled the gun that morning, but when asked how long he handled the weapon that morning, he answered, "I never handled the weapon." He said that he had lied to McMillan to protect his girlfriend. Defendant admitted that he did not tell anyone that he had lied to McMillan during the five weeks between his admission and the jurisdiction hearing. Defendant later clarified that when he said "Yes," to the question about telling the truth, he thought the reference was to what he had told McMillan and not to whether he had touched the gun.
On November 8, 2010, the trial court stated that it found that defendant told the officers the truth when he said that he touched the gun and that he believed his fingerprints would be on the gun. The court explained: "I make this finding based on several factors. One, when a witness admitted to lying and when he comes back and professed to tell the truth, the story has to be very credible. [Defendant] gave very brief testimony, but his credibility came into question when he underplays his access to the apartment by saying he was only there once in a while to pick up his son. His girlfriend testified earlier that he was at the premises three to four times a week. He was, in fact, found eating his lunch at the apartment when the police came onto the scene. His clothes and shoes were in the room. [¶] Contrary to what he testified to, I believe he was staying in the apartment around the time he was arrested. His explanation that he tried to protect the girlfriend . . . is believable and I think this is the motivation that he decided to tell the truth to the inspector that he touched the gun. But the fact that he did not admit that he owned the gun is consistent with the fact that Val[entine] Sua owned the gun, but [defendant] had at some point in time access to it."
The trial court added: "Based on the evidence that the minor had a key to the entire apartment, none of the doors were locked, it appears that the minor had access to all the rooms including the room where the gun was found, which is his son's room, this coupled with his admission to the inspector supports a beyond a reasonable doubt finding that the minor had dominion and control over the firearm."
The trial court sustained count 1 of the allegation that defendant was in possession of a concealable firearm. The court concluded that it was not defendant's gun and he probably handled it in a limited time and manner, and the court therefore reduced the offense to a misdemeanor. The court found the count 2 allegation that defendant possessed live ammunition not true. As to count 3, the allegation that defendant did willfully and unlawfully resist and obstruct the officer from attempting to discharge the duty of his office, the court found this allegation true.
On December 8, 2010, at the disposition hearing, the trial court redeclared wardship and ordered defendant committed to the probation officer's custody for out-of-home placement.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends that the lower court committed prejudicial error when it found his admission that he handled the gun the morning of the incident was voluntary. He claims that the police coerced his admission by impliedly threatening him that his girlfriend and their son would be evicted for having the gun in the apartment unless he confessed. He asserts that the statement about the possible eviction of his girlfriend was especially coercive because his family had been evicted when he was younger due to his admission of a gun charge.
"Any involuntary statement obtained by a law enforcement officer from a criminal suspect by coercion is inadmissible pursuant to the Fourteenth Amendment to the federal Constitution and article I, section 7 of the California Constitution. [Citations.] 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.' [Citation.] In making this determination, courts apply a 'totality of the circumstances' test, looking at the nature of the interrogation and the circumstances relating to the particular defendant. [Citations.] With respect to the interrogation, among the factors to be considered are ' " 'the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity'. . . . " ' [Citation.] With respect to the defendant, the relevant factors are ' " 'the defendant's maturity [citation]; education [citation]; physical condition [citation]; and mental health.' " ' [Citation.] 'A statement is involuntary [citation] when, among other circumstances, it "was ' "extracted by any sort of threats . . . , [or] obtained by any direct or implied promises . . . ." ' " ' [Citation.]" (People v. Dykes (2009) 46 Cal.4th 731, 752.)
A confession is involuntary if it is obtained by overcoming the defendant's will, such as by threats or violence or any direct or implied promise. (People v. Cahill (1994) 22 Cal.App.4th 296, 310-311.) A confession elicited by promises of benefit or leniency is inadmissible. However, mere advice or pleas by the officer that it would be better for the suspect to tell the truth when unaccompanied by either threat or promise does not render a subsequent confession involuntary. (People v. Carr (1972) 8 Cal.3d 287, 296; People v. Sultana (1988) 204 Cal.App.3d 511, 522.)
The trial court's legal conclusion as to the voluntariness of a confession is subject to independent review on appeal. (See, e.g., People v. Dykes, supra, 46 Cal.4th at p. 752.) "The trial court's resolution of disputed facts and inferences, its evaluation of credibility, and its findings as to the circumstances surrounding the confession are upheld if supported by substantial evidence. [Citations.] The state bears the burden of proving the voluntariness of a confession by a preponderance of the evidence. [Citation.]" (Id. at pp. 752-753.)
Our review of the record, which includes listening to the recording of defendant's confession, establishes that defendant's confession was voluntary. Under the totality of the circumstances, we first look to the nature of the interrogation. (See, e.g., People v. Dykes, supra, 46 Cal.4th at p. 752.) Here, the interrogation was brief, about 12 minutes long. (Compare In re Anthony J. (1980) 107 Cal.App.3d 962, 968, fn. 5 [interrogation of 15-year-old for three and a half hours held not coercive] with People v. Alfieri (1979) 95 Cal.App.3d 533, 545 [interrogation of 17-year-old for over 20 hours held coercive].) The recording of the interrogation shows that defendant did not sound like he was particularly stressed; nothing indicates that his will was " 'overborne by the substance or manner of the interrogation.' " (People v. Bradford (1997) 14 Cal.4th 1005, 1042.) The officers did repeatedly tell him that they were simply trying to find out who was responsible for the gun, and indicated that his girlfriend could be evicted if the gun belonged to her. The detectives were not attempting to force defendant to talk, but were seeking his cooperation. There were no threats of punishment, promises of leniency, or harsh language on the part of the officers. (See People v. Holloway (2004) 33 Cal.4th 96, 113-116.) Indeed, defendant admitted handling the gun immediately after the officer told him that the gun would have his fingerprints if he had touched the gun.
Furthermore, in the present case, the statement about the possible eviction of defendant's girlfriend if she possessed the gun was a fact known to defendant. Defendant testified that his family had been evicted years earlier from the home after he confessed to possessing a gun. Thus, the officers could not threaten defendant with a true fact that was known to defendant.
In addition to the nature of the interrogation, we examine the particular characteristics of defendant. Here, defendant was 17 years old at the time of the incident, and the record does not indicate that he had any mental or physical characteristic that made him susceptible to coercive tactics. Nothing in the interrogation recording indicates a lack of intelligence. Defendant never claimed that he was unfamiliar with interrogation techniques or custodial settings. Indeed, he was a probationer on furlough from a ranch commitment and had previously confessed to a gun charge.
Defendant contends that the officers coerced his admission by impliedly threatening him that his girlfriend and their son would be evicted for having the gun in the apartment unless he confessed. He maintains that it is particularly egregious for police to exploit a defendant's concern for his child. (See Lynumn v. Illinois (1963) 372 U.S. 528, 534-535; United States v. Tingle (9th Cir. 1981) 658 F.2d 1332, 1336.) He claims that the officers knew that he was particularly concerned about the welfare of his son as he told them that he surrendered to the police because of concern for his son. Additionally, he asserts that his girlfriend was interrogated at the police station while he was there in handcuffs, and he may have seen her at the police station. He argues that, under the circumstances, he reasonably understood the officers' statements to be a threat that his son and his girlfriend would be evicted from their home unless he confessed. He concludes that the officers had no legitimate reason for bringing up the potential eviction and did so only when defendant claimed he had no knowledge of the weapon. He insists that the officers' statements were coercive because they were the motivating cause behind his inculpatory statement. (See People v. Rand (1962) 202 Cal.App.2d 668, 673.)
Defendant contends that the lower court incorrectly based its ruling on the fact that the statement about his girlfriend's possible eviction was a truthful statement. He maintains that threats or promises are not permissible even if they are not falsely made. (See Lynumn v. Illinois, supra, 372 U.S. at p. 534 [defendant "had no reason not to believe that the police had ample power to carry out their threats" to take her children and cut off her state financial aid].) He argues that the lower court cited People v. Sultana, supra, 204 Cal.App.3d 511, but this decision, according to defendant, did not involve implied threats by police to punish the defendant's girlfriend and child, as is the situation in the present case.
"A threat by police to arrest or punish a close relative, or a promise to free the relative in exchange for a confession, may render an admission invalid." (People v. Steger (1976) 16 Cal.3d 539, 550; see, e.g., People v. Trout (1960) 54 Cal.2d 576, 585 [the defendant's wife was restrained by police without grounds for arrest and held in custody for purpose of securing defendant's confession as officers told the defendant that his wife's release depended upon the defendant's confessing to the crimes], overruled on other grounds in People v. Cahill (1993) 5 Cal.4th 478, 509; People v. Kelly (1990) 51 Cal.3d 931, 953 [exploited mother's fears that she would not see children without a confession]; People v. Mellus (1933) 134 Cal.App. 219, 225 [threatened to "lock up" the defendant's mother if he did not talk]; People v. Rand, supra, 202 Cal.App.2d at p. 674 [detective testified that he told the defendant if the defendant did not reveal an incriminating fact that the detective would have to take both the defendant and his wife to jail and he might have told the defendant that his children would go to juvenile hall]; In re Shawn D. (1993) 20 Cal.App.4th 200, 212-215 [interrogating officers repeatedly lied to the defendant and used deceptive tactics, including the suggestion that defendant would be treated more leniently and would be able to see his girlfriend and the baby if he confessed].) "However, where no express or implied promise or threat is made by the police, a suspect's belief that his cooperation will benefit a relative will not invalidate an admission." (People v. Steger, supra, at p. 550; see also People v. McWhorter (2009) 47 Cal.4th 318, 355-356 [standing alone, a statement by the police that another person suspected of participating in the crime with the defendant would be let go if their investigation failed to reveal evidence of his or her guilt does not suffice for an implied promise of leniency].) Here, there was no implicit threat that the police were going to do anything. Rather, they simply stated that defendant's girlfriend might be evicted if it was determined that she possessed the gun.
The People argue that the officer's statement regarding the possible eviction of defendant's girlfriend did not cause defendant to confess. Defendant responds that the lower court found that defendant's explanation that he confessed because he was trying to protect his girlfriend was believable. It is not clear how defendant's statement that he touched the gun would have benefitted his girlfriend, since defendant claimed that he did not know who owned the gun. Furthermore, it appears that defendant admitted touching the gun in response to the officer's comment that his fingerprints would be found on the gun if he had handled it. In any event, even if we presume that protecting his girlfriend was a motivating factor for defendant's admission, we conclude that under the totality of the circumstances the officers' statements regarding the possible eviction of his girlfriend were not coercive.
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Defendant cites Lynumn v. Illinois, supra, 372 U.S. 528. However, in Lynumn, the defendant confessed only after the police told the defendant that state financial aid for her infant children would be cut off, and her children taken from her if she did not cooperate. (Compare United States v. Tingle, supra, 658 F.2d at p. 1334 [the confession was coerced when the object of the interrogation was "to cause Tingle to fear that, if she failed to cooperate, she would not see her young child for a long time"] to People v. Kelly (1990) 51 Cal.3d 931, 952 [confession not coerced when officer stated: " 'I think it's . . . going to be a foregone conclusion you're going to be in prison for a lot of years. I don't know if your wife is going to stick around and wait for you. Okay. That's something you're going to have to work out with her"].) Here, the officers did not state that they would talk to the housing authorities or take any other action to have defendant's girlfriend evicted. They also did not indicate that they would arrest defendant's girlfriend if he did not confess.
Defendant argues that he may have noticed that his girlfriend had been brought to the police station for questioning. Nothing in the record indicates that the police brought defendant's girlfriend to the station for purposes of encouraging defendant to confess.
Under the totality of circumstances, we conclude that none of the interrogation techniques used by the officers was so coercive as to result in a statement that was involuntary. (People v. Ray (1996) 13 Cal.4th 313, 340 ["The courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable"].)
DISPOSITION
The juvenile court's orders are affirmed.
Lambden, J. We concur: Kline, P.J. Haerle, J.