In re John N.

Filed 9/27/06 In re John N. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

Following a contested jurisdictional hearing (Welf. & Inst. Code, § 602), the juvenile court found that 16-year-old John N. (the minor) committed first degree burglary (Pen. Code, § 459). The court placed the minor on probation and ordered him to comply with certain terms and conditions, which included the condition that he is not to associate with persons involved in gang activities. He was also ordered to pay $706.59 in victim restitution. The minor appeals, contending (1) the juvenile court erroneously denied his motion to exclude his confession as involuntary and obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda), (2) the juvenile court erroneously calculated victim restitution, and (3) the juvenile court abused its discretion in imposing the gang condition. We will reduce the amount of victim restitution but otherwise affirm the judgment.

Facts and Proceedings

At about 2:30 p.m. on January 13, 2005, Catherine N. looked out her bathroom window and saw four Asian young people across the street outside an Elk Grove home belonging to Judy Z. One boy was knocking on the front door of Judy Z.’s home while the three other people, two boys and a girl, stood in the driveway. When no one answered the knock on the door, the three boys went behind the house while the girl stood in front of the house looking up and down the street with her cell phone flipped open. Five minutes later, the boys appeared from behind the house and the foursome walked to a pink house two doors away and went in. Five to 10 minutes later, the foursome came out of the pink house and walked back to Judy Z.’s home. Two boys again went behind Judy Z.’s house and shortly thereafter the other boy and the girl joined them. Catherine N. called the police.

Catherine N. talked on the phone with the police dispatcher for about 10 minutes. The foursome came out from behind Judy Z.’s house all carrying plastic garbage bags containing something and again went into the pink house. About five minutes later, the police arrived. Officer Brandon Gomez went to the pink house, knocked on the door and an elderly Asian woman answered the door. John L. also appeared at the door. John L. told Officer Gomez that John L. was on probation. Officer Gomez searched the pink house and found a female Asian, Koy S., and the minor in a bedroom. In the bedroom closet, Officer Gomez found certain items later determined to belong to the victim, and a laptop computer and two bottles of wine. In the bedroom, Officer Gomez also found jewelry, a brand new set of bed sheets and a backpack, all belonging to the victim. Other items later identified by the victim were also found in the pink house including bead art, a video camera, an AC adapter, a CD writer and a computer mouse. Five juveniles were found in the pink house.

At Judy Z.’s house, Officer Gomez observed two plastic chairs under a second story window. The screen was missing from the window. Shoeprints were found on the chairs and the minor’s shoeprint matched one of the shoeprints on the chairs.

The minor was handcuffed and placed in a patrol car at 3:00 p.m. About 3:16 p.m., after advising the minor of his rights pursuant to Miranda, Officer Michael Xiong obtained the minor’s written waiver of his rights on a department advisement form. The minor agreed to speak with Officer Xiong and checked the “yes” box on the form confirming his willingness to speak to the officer. After Officer Xiong spoke with the minor for five to 10 minutes and took his statement (summarized in six sentences in the police report), the minor said that he “did not have anything more to say” to Officer Xiong. The minor was handcuffed in the patrol car during the conversation but the handcuffs were removed to allow him to sign the form.

In a field show-up at about 3:30 p.m., Catherine N. identified four out of the five juveniles, two positively, including the minor who had a distinctive haircut and a blue and white shirt.

Judy Z. found her home ransacked. Items stolen but not recovered from the pink house included an alarm clock, two stamp book collections, and a gold coin.

About 4:50 p.m., Officer Xiong drove the minor to the police station, which was about three miles away from the neighborhood where the burglary took place. Xiong put the minor in an interview room and handcuffed one of his arms to a railing. Officer Gomez again interviewed the minor beginning at 7:36 p.m. Officer Gomez had the form the minor signed for Officer Xiong and Officer Xiong told Officer Gomez that the minor had not invoked his rights. Officer Gomez asked the minor if he had understood his rights when Officer Xiong read them to the minor and the minor said he had. Officer Gomez reread the Miranda rights using the same department advisement form that Officer Xiong had used and the minor said he had no questions. The minor told Officer Gomez that he went to John L.’s house “to get him” and “[t]hat’s it.” Officer Gomez told the minor to “come clean” and that lying looked bad in court. Seven minutes into the interview lasting 30 minutes, the minor started crying when confronted with a photograph of the minor’s shoeprint and with what the officer had learned from the other juveniles, that is, the minor had stood on a chair and helped another juvenile through the window. The minor thereafter admitted he entered Judy Z.’s house through a sliding glass door in the back, wore gloves, and took the laptop computer.

Discussion

I

Motion to Exclude Admissions

The minor first contends that the juvenile court erroneously denied his motion to exclude his admissions and confession. The trial court’s ruling on the motion was correct.

The trial court heard the motion at the same time the People presented their evidence at the jurisdictional hearing. The court reviewed the videotaped interview between Officer Gomez and the minor and heard the testimony of Officers Gomez and Xiong. After hearing arguments, the court found that the minor had not invoked his right to remain silent at the end of his interview with Officer Xiong when he stated that he did “not have anything more to say” to the officer. Finding the statement “almost identical” with the statement made in In re Joe R. (1980) 27 Cal.3d 496, 513 (Joe R.) [“‘That’s all I have to say’”], the juvenile court determined that the minor’s statement was not “a clear indication during questioning that he wished to remain silent, that he wished to invoke his Miranda rights.” The court decided that Officer Gomez had a “right to continue interrogating the minor” but that Officer Gomez had, in “an abundance of caution,” reread the rights pursuant to Miranda, showed the minor the form he had signed waiving those rights, asked whether the minor understood his rights, and received an affirmative response from the minor. The juvenile court further found that the minor’s confession was otherwise voluntary.

“In considering a claim that a statement or confession is inadmissible because it was obtained in violation of a defendant’s rights under Miranda v. Arizona, supra, 384 U.S. 436, we accept the trial court’s resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence. [Citation.] Although we independently determine whether, from the undisputed facts and those properly found by the trial court, the challenged statements were illegally obtained [citation], we ‘”give great weight to the considered conclusions” of a lower court that has previously reviewed the same evidence.’ [Citations.]” (People v. Wash (1993) 6 Cal.4th 215, 235-236 (Wash).) “‘[T]he trial court’s ruling on a Miranda issue may not be set aside by us unless it is “palpably erroneous.” A ruling palpably erroneous is one lacking support of substantial evidence.’ [Citations.]” (In re Eric J. (1979) 25 Cal.3d 522, 527.)

“To establish a valid waiver of an accused person’s right to counsel and to remain silent, the People must show, by a preponderance of the evidence, that the accused voluntarily, knowingly and intelligently waived such rights. [Citations.] The court determines the validity of the waiver from an evaluation of the totality of the circumstances. [Citation.] ‘This totality-of-the-circumstances approach is adequate to determine whether there has been a waiver even where interrogation of juveniles is involved.’ [Citation.]” (In re Bonnie H. (1997) 56 Cal.App.4th 563, 577.) In the case of a juvenile, the totality of the circumstances approach “includes evaluation of the juvenile’s age, experience, education, background, and intelligence, and into 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 [61 L.Ed.2d 197, 212].)

The minor may invoke his right to remain silent by words or conduct “reasonably inconsistent with a present willingness to discuss the case freely and completely.” (People v. Crittenden (1994) 9 Cal.4th 83, 129.) If the minor “‘indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.’ (Miranda, supra, 384 U.S. at pp. 473-474 [[16 L.Ed. at p. 723]].)” (People v. Musselwhite (1998) 17 Cal.4th 1216, 1238.) When the minor invokes his right, law enforcement must “‘scrupulously honor[]’” the minor’s decision and may not “fail[] to honor” the decision “by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down his resistance and make him change his mind.” (Michigan v. Mosley (1975) 423 U.S. 96, 104, 106-107 [46 L.Ed.2d 313, 321, 322] (Mosley).) If the minor ambiguously invokes his right, the officer may “‘continue talking with him for the limited purpose of clarifying whether he is waiving or invoking those rights.’ [Citations.]” (People v. Box (2000) 23 Cal.4th 1153, 1194.)

In Joe R., cited by the trial court, the minor was suspected of committing two robberies and, during the commission of one, his accomplice was shot by the victim. The minor waived his rights pursuant to Miranda and denied committing any offenses. (Joe R., supra, 27 Cal.3d at pp. 501-503.) When accused of lying and confronted with the evidence, he responded, “‘That’s all I have to say.’” (Id. at p. 516; see id. at p. 503.) Law enforcement officers continued questioning and the minor eventually confessed to the two robberies but not to the homicide. (Id. at p. 503.) Rejecting the minor’s assertion that he had invoked his right to remain silent, Joe R. concluded the minor’s statement was not an unequivocal invocation of his right but simply a statement to the effect of “That’s my story, and I’ll stick with it.” (Id. at p. 516.)

As cited by the Attorney General, several other courts confronted with similar ambiguous statements have decided the right to remain silent had not been invoked (Wash, supra, 6 Cal.4th at pp. 238-239 [“‘I don’t know if I wanna talk anymore’” not an invocation of right]; People v. Jennings (1988) 46 Cal.3d 963, 977-979 [“‘I’m not going to talk. . . [t]hat’s it’” and “‘I shut up’” not an invocation of right but rather “only momentary frustration and animosity” towards one of the questioning officers]; People v. Silva (1988) 45 Cal.3d 604, 629-630 [“‘I really don’t want to talk about that’” not an invocation of right but desire not to talk about whether he was driving]; People v. Davis (1981) 29 Cal.3d 814, 823-824 [during polygraph, accused’s failure to respond to all but one question not an invocation of right].)

Here, the minor agreed to speak to Officer Xiong; he said he understood his rights and waived them, in writing, on a police department advisement form. The officer interviewed the minor for five to 10 minutes and summarized the minor’s statement in six sentences in the police report. The prosecutor did not introduce into evidence the minor’s statements to Officer Xiong. It can be inferred that the minor made no admissions or confession. The minor then stated that he “did not have anything more to say” to the officer. As the juvenile court concluded, the minor’s statement that he had nothing more to say meant simply that he had nothing further to add to the story he had already told, not that he was invoking his right to remain silent.

The minor places his reliance on People v. Porter (1990) 221 Cal.App.3d 1213. That is misplaced. In Porter, the defendant waived his rights, admitted knowing about a car and a burglary but that he was not “‘gonna say any more than that,’” and when questioned further, he asked about extradition and said he would “‘save it for when I get there and . . . cause I wanna decide what I want to do.’” (Id. at p. 1217.) Porter found that the defendant’s inquiry concerning extradition and his repeated statement that he would not say any more and save it for later were ambiguous statements which, when resolved in the defendant’s favor, constituted an invocation of his right to remain silent. (Id. at pp. 1218-1220.)

Even assuming the minor invoked his right to remain silent, Officer Xiong “scrupulously honored” the minor’s invocation and stopped all questioning. (Mosley, supra, 423 U.S. at pp. 104, 106 [46 L.Ed.2d at pp. 321, 322].) But Officer Gomez was not thereafter precluded from resuming the questioning where the minor’s statement to Officer Xiong was ambiguous and equivocal. “Ideally, the Miranda warnings should be repeated before reinitiating the interrogation of a suspect who has invoked the right to remain silent, but the failure to do so is not fatal if the ‘totality of the circumstances’ shows the suspect’s waiver remains voluntary, knowing and intelligent.” (People v. Riva (2003) 112 Cal.App.4th 981, 993 (Riva).) Factors to consider in the totality of the circumstances examination include the amount of time between interrogations, a change in location or interrogator, any readvisement, the suspect’s past dealings with police officers, and “any indicia that he subjectively understands and waives his rights.” (People v. Mickle (1991) 54 Cal.3d 140, 170; see also People v. Lewis (2001) 26 Cal.4th 334, 386-387.)

Officer Xiong interviewed the minor in the patrol car and then took the minor to the police station. They arrived at 4:50 p.m. and Officer Xiong handcuffed the minor to a rail in an interview room. At 7:36 p.m., Officer Gomez began to reinterview the minor. According to Officer Gomez, Officer Xiong told him that the minor had not invoked his rights. Officer Gomez reviewed the department waiver form the minor had signed and asked the minor whether he understood his rights when read to him earlier. The minor answered affirmatively. Officer Gomez readvised the minor, reading the rights from the department form. The trial court determined that Officer Gomez reread the minor’s rights pursuant to Miranda as set forth on the written waiver form in “an abundance of caution.” We agree with the trial court. Under the circumstances here, the Miranda warnings by Officer Gomez were adequate to assure that the minor continued to understand his rights. The minor said he had no questions and began answering Officer Gomez’s questions. The minor thus chose to speak to Officer Gomez. The minor presumably had past dealings with the police; he was already a ward of the court, having committed a prior felony offense.

Moreover, Officer Gomez began questioning the minor almost four hours after Officer Xiong had obtained the minor’s statement, “a significant period of time” between interrogations. (Mosley, supra, 423 U.S. at p. 106 [46 L.Ed.2d at p. 322].) As cited by the Attorney General, several cases have found that amount of time and substantially less to be “significant.” (Id. at pp. 104, 106 [46 L.Ed.2d at p. 322] [more than two hours]; United States v. Hsu (9th Cir. 1988) 852 F.2d 407, 408-409, 411-412 (Hsu) [within 30 minutes]; Grooms v. Keeney (9th Cir. 1987) 826 F.2d 883, 884 (Keeney) [four hours]; Riva, supra, 112 Cal.App.4th at pp. 987, 993-994 [one hour]; People v. Warner (1988) 203 Cal.App.3d 1122, 1130 (Warner) [overnight].) The fact that the questioning did not involve a different crime than had been the subject of the initial questioning by Officer Xiong (Mosley, supra, at p. 106 [46 L.Ed.2d at p. 322]; Hsu, supra, at p. 409; Keeney, supra, at p. 884; Riva, supra, 112 Cal.App.4th at pp. 986-987) is but one factor to consider in determining whether the right to remain silent had been “respected in the totality of the circumstances.” (Warner, supra, 203 Cal.App.3d at p. 1131; see also Riva, supra, 112 Cal.App.4th at pp. 987, 993-994; Keeney, supra, at p. 886.) Under the totality of the circumstances, the minor’s waiver remained voluntary, knowing and intelligent.

The minor claims that his statements were coerced by threats of a prolonged interrogation and the court’s anticipated reaction to lies. He says his statements were not a product of his free will in that he unequivocally responded “no” when the deputy asked whether he wanted to fill in the facts as the deputy told the story. We reject this interpretation of the interview. We have reviewed the videotape. Officer Gomez did not use coercive pressure. Officer Gomez used the statements from the other suspects and confronted the minor with their version of the facts as well as the minor’s shoeprint on one of the chairs. The statement was voluntary and Officer Gomez’s questioning appropriate. The trial court made the proper ruling.

II

Restitution

The minor submits and the Attorney General concedes that the victim restitution award should be modified, reducing the amount from $706.59 to $302.59. The court considered two probation reports filed on different dates but each reflected the victim’s claim for restitution for two stamp book collections, one coin collection and an alarm clock. The first report totaled the amounts for the items based on the victim’s oral claim of $404. The second report totaled the amounts based on the victim’s written claim of $302.59. The trial court added the amounts from the two reports together to reach the $706.59 amount. We accept the Attorney General’s concession and will order the victim restitution amount reduced to $302.59.

III

The Prohibition Against Gang Association

Finally, the minor contends that the juvenile court abused its discretion in imposing over defense counsel’s objection a condition of probation prohibiting the minor from associating with persons engaged in gang activities. He argues there is no evidence of gang activity in the record. We find no abuse of discretion.

The court ordered that the minor “[s]hall not associate with persons who the minor knows or reasonably should know to be involved in gang activities, wear clothing or display items or emblems reasonably known to be associated with or symbolic of gang membership, and shall not enter any gang/drug area and/or territory specifically so designated for him by the Probation Officer, and shall verbally advise the Probation Officer of any nickname or ‘street moniker’ he currently uses (Imposed 4/23/03).”

Reasonable conditions of probation may be imposed on a minor including those the court “determine[s] fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.” (Welf. & Inst. Code, § 730, subd. (b).) The minor need not be a member of a gang to impose gang conditions of probation and the same may be imposed if the court is concerned that the minor may be influenced by gang members and engage in future criminality. (In re Laylah K. (1991) 229 Cal.App.3d 1496, 1502.) The minor had a 1.84 grade point average and had been truant 11 times. The minor’s mother did not know the minor’s friends very well. In connection with a prior wardship, the mother previously claimed the minor was influenced by other juveniles. When he committed the current offense, the minor was a ward of the court for a prior commitment for a felony offense. This condition of probation was reasonably related to the minor’s future criminality. The juvenile court did not abuse its discretion. (In re Josh W. (1997) 55 Cal.App.4th 1, 5.)

Disposition

The judgment (dispositional order) is modified, reducing the amount of victim restitution to $302.59. As modified, the order is affirmed.

HULL , J.

We concur:

SIMS , Acting P.J.

CANTIL-SAKAUYE , J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.