Filed 2/9/22 In re J.V. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

J.V. appeals from the juvenile court’s dispositional order placing him on probation under parental custody. The order was supported by jurisdictional findings sustaining two counts of second degree robbery arising out of J.V.’s role in the taking of two bicycles from two younger minors. (Pen. Code, § 211.) In a separate habeas proceeding, we vacated the jurisdictional findings sustaining the second of the two counts after the Attorney General acknowledged that J.V. received ineffective assistance of counsel in connection with a proposed plea deal. (In re J.V. (Dec. 16, 2021, A163008) [nonpub. opn.].)

As to the first count—the only count that remains at issue given the court’s decision in In re J.V., supra, A163008—J.V. argues that the juvenile court wrongly denied his motion to suppress a confession he made to police. He claims he was wrongly detained at the time of the confession, did not knowingly and voluntarily waive his Miranda[1] rights, and did not voluntarily confess. He also argues that the juvenile court erred by having an in-chambers conversation with counsel that was not transcribed. We reject these arguments and affirm the jurisdictional finding as to the first count. We nonetheless remand for the juvenile court to reconsider its dispositional order since we vacated the jurisdictional finding as to the second count in A163008.

I.
Factual and Procedural
Background

On September 12, 2020, two 13-year-old boys were riding their bicycles on the grounds of a Napa school. Two older boys, later identified as J.V. and A., approached the younger boys. J.V., who was 16 at the time, grabbed the handlebars of one of the 13-year-old’s bike and told him to “hop off the bike.” J.V. shoved the 13-year-old, and the two “elbowed” each other. J.V. told the 13-year-old, “Get off or things will get aggressive.” The 13-year-old said “okay” because he did not want to get hurt. After the 13-year-old got off his bike, J.V. took it. J.V.’s companion, A., took the other 13-year-old’s bike.

One of the 13-year-olds called his father and the police. The father came to the school and saw that two kids had already “jumped” one of the bikes over the school fence. They tried to get the other bike over the fence, but the father was able to retrieve it before they succeeded. The father saw J.V. walking nearby. As the father was looking for the person who took his son’s bike, he encountered police.

A Napa police officer was driving on a street about “five to six hundred yards” from the school, saw J.V. walking fast, and detained him. The officer was wearing a body camera, and his interaction with J.V. was recorded. He first told J.V., “Leave it—just sit your ass down,” and he explained, “We’re not playing games right now.” The officer asked J.V. if he knew why the officers were there, and J.V. said, “No.” When asked what was going on at the park, J.V. said, “Nothing bro I was just going to visit my cousin.” He then told the officer that he saw “some kids take a couple bikes and ran.”

The officer told J.V. that they were going to “investigate,” and he asked J.V. if he was on probation or parole, had anything in his pockets, or had any knives or weapons. J.V. responded in the negative. The officer explained to J.V. that he was being detained but was not under arrest, and the officer placed J.V. in handcuffs for J.V.’ s “safety as well as [his own] safety.” After a few preliminary questions, the officer read J.V. Miranda warnings. The officer then asked J.V. if he understood “each of the rights I’ve explained to you,” and J.V. said, “Yeah.”

The officer questioned J.V. further, and J.V. reiterated his story that some other kids stole the bikes. While the officer was questioning J.V., he indicated to someone with whom he was in apparent radio contact that “you’ll [want to] bring the victim this way.” A different officer in another patrol car drove up with an unidentified passenger and parked nearby, next to another parked patrol car. The officer questioning J.V. asked J.V. to walk closer to the patrol cars and to look at them. After the officer questioning J.V. “saw a thumbs up,” he said to J.V., “I [am going to] guess that you’re involved a little bit more than you’re telling me.” J.V. then asked about a passing ambulance, and the officer told him that he had a feeling that J.V.’s “buddy that stole the other bike . . . fell off the bike and broke[] his collarbone.” J.V. acknowledges that A. did fall off a bike and break his collarbone.

The officer reiterated to J.V. that he had been given his Miranda warnings, to which J.V. responded with a “Mm-hm,” and the officer said he would give J.V. another chance to be honest. The officer said that two other people were providing statements, that video footage from the schoolyard would be available, and that J.V.’s story was not lining up with the other evidence. At that point, J.V. admitted he “took one of them” and “gave it to [his] friends.” He also admitted he told the victim, “Give me the bike” and that he pulled the bike from the victim. J.V. stated that A. took the other bike. J.V. was subsequently arrested and transported to juvenile hall.

The Napa County District Attorney’s Office filed a petition under Welfare and Institutions Code section 602 alleging that J.V. had engaged in two counts of second degree robbery (Pen. Code, § 211).[2] Before the jurisdictional hearing began, defense counsel orally moved to suppress J.V.’s statements to the officer at the scene. The juvenile court denied the motion after reviewing the video from the officer’s body camera and considering the arguments. After hearing testimony from a number of witnesses, the court then sustained the two counts as charged.

The case was transferred to Solano County, where J.V. resided, for disposition. Before a dispositional hearing took place, however, the case was transferred back to Napa County to give J.V. the opportunity to move to set aside the jurisdictional findings. After his motion was denied by the juvenile court in Napa County, the case was once again transferred to Solano County. The dispositional hearing was held in late November 2020, and the juvenile court adjudged J.V. a ward of the court, and placed him on probation in his parents’ custody.

II.
Discussion

1. The Juvenile Court Properly Denied the Motion to Suppress.

1. J.V. Forfeited His Claim that He Was Unconstitutionally Detained.

J.V. first argues that the juvenile court improperly denied his motion to suppress because his confession allegedly occurred during an unconstitutional detention. In the juvenile court proceedings, however, J.V. never claimed that he had been unlawfully detained. As a consequence, little evidence was presented about the basis of J.V.’s detention, and the juvenile court did not consider or rule on its validity. We conclude that the issue was thus forfeited. (See In re Sheena K. (2007) 40 Cal.4th 875, 880.)

J.V. acknowledges that his motion to suppress “did not focus on the question of whether [he] was unconstitutionally detained,” but he urges us nonetheless to consider the issue on appeal because it raises a constitutional concern. We cannot do so because we lack an adequate record upon which to review the issue. “[O]nce the prosecution has offered a justification for a warrantless search or seizure, defendants must present any arguments as to why that justification is inadequate. [Citation.] Otherwise, defendants would not meet their burden . . . of specifying why the search or seizure without a warrant was ‘unreasonable.’ This specificity requirement does not place the burden of proof on defendants. [Citation.] As noted, the burden of raising an issue is distinct from the burden of proof. The prosecution retains the burden of proving that the warrantless search or seizure was reasonable under the circumstances. [Citations.] But, if defendants detect a critical gap in the prosecution’s proof or a flaw in its legal analysis, they must object on that basis to admission of the evidence or risk forfeiting the issue on appeal.” (People v. Williams (1999) 20 Cal.4th 119, 130, italics added.)

Here, the record provides some, but not all, relevant facts. We know that several witnesses, including the two victims and the father of one of them, interacted with the police at the school. We know that one of the 13-year-olds told one of the investigating officers that J.V. was one of the boys who took the bikes. We also know that when an officer stopped J.V., J.V. was near the school and “walking pretty fast.” Finally, we know that the officer who detained and questioned J.V. was receiving information about the incident because he knew, at a minimum, that other witnesses were giving statements, that there was video footage from the school,[3] and that A. had been injured in a bicycle accident. Still, we do not know exactly what information the officer had, or its source, when he stopped J.V.

Although the officer who questioned J.V. testified at the jurisdictional hearing, he was never asked about this information, most likely because J.V.’s counsel did not consider it to be inadequate. At the hearing, J.V.’s counsel essentially conceded that the officer who questioned J.V. had reason to believe that J.V. had been involved in the incident. Specifically, counsel stated, “Well, at this point[, i.e., the time of J.V.’s detention,] the officer has quite a bit of information and knows that he’s probably detaining one of the people that is accused of taking a bike.”

It is disingenuous for J.V. to complain on appeal that insufficient evidence was presented about the adequacy of the information the officer had at the time of the detention when his trial counsel acknowledged that the officer had “quite a bit of information,” did not claim that the information was inadequate, and failed to ask any questions about the information. If J.V.’s counsel believed, despite suggesting the opposite, that the officer lacked an adequate basis for the detention, it was incumbent on counsel to assert and explore the theory in the juvenile court. Because J.V.’s counsel failed to do so, we lack a developed record on the issue, and we must consider forfeited J.V.’s appellate claim that he was detained without adequate justification. (See People v. Linton (2013) 56 Cal.4th 1146, 1166 [defendant waived argument that confession was custodial because “the theory was not litigated and no opportunity was presented to the trial court to resolve any material factual disputes and make necessary factual findings”].)

2. J.V. Voluntarily Waived His Miranda Rights.

J.V. also claims his confession should have been suppressed because he did not knowingly, intelligently, and voluntarily waive his Miranda rights. We are not persuaded.

“To establish a valid waiver of Miranda rights, the prosecution must show by a preponderance of the evidence that the waiver was knowing, intelligent, and voluntary.” (People v. Nelson (2012) 53 Cal.4th 367, 374–375.) The analysis requires “ ‘an evaluation of the defendant’s state of mind’ [citation] and ‘inquiry into all the circumstances surrounding the interrogation’ [citation]. When a juvenile’s waiver is at issue, consideration must be given to factors such as ‘the juvenile’s age, experience, education, background, and intelligence, and . . . whether [the juvenile] has the capacity to understand the warnings given . . . , the nature of [the juvenile’s] Fifth Amendment rights, and the consequences of waiving those rights.’ ” (Id. at p. 375.) When, as here, “ ‘an interview is recorded, the facts surrounding the admission or confession are undisputed and [the reviewing court] may apply independent review.’ ” (People v. Leon (2020) 8 Cal.5th 831, 843.)

There is no question that J.V. was advised of his Miranda rights and responded that he understood them. But since he did not expressly waive those rights, the question is whether he impliedly waived them by answering the officer’s questions. (See People v. Lessie (2010) 47 Cal.4th 1152, 1169 [express waiver is not required when suspect is a minor].) We agree with the juvenile court that he did.

We have reviewed the video recording of J.V.’s detention, and it shows that the officer who questioned him was professional and courteous in his interactions with J.V. Nothing about the officer’s conduct was overbearing, threatening, or coercive. For his part, J.V. appears to be calm during the interaction, to understand why he is being detained, to comprehend the officer’s questions, and to be responsive to them. We disagree with J.V.’s characterization that the interaction “seems intellectually muddled.” Although J.V.’s story changed during the questioning, nothing in the recording suggests that J.V. was afraid or lacked the capacity for full comprehension.[4]

The officer who questioned J.V. directly advised him, “You have the right to remain silent. Anything you say can and may be used against you in a court of law. You have the right to talk to a lawyer and have him present with you while you’re being questioned. If you cannot afford to hire a lawyer one will be appointed to represent you before any questioning if you wish.” And the officer specifically asked J.V. if he understood “each of the rights,” and J.V. responded in the affirmative. Nothing in the record persuades us that J.V. failed to understand his rights to silence and counsel, or misunderstood the consequences of waiving those rights.

Furthermore, as the juvenile court pointed out, J.V. was not a stranger to criminal proceedings. He had been previously declared a ward of the Napa County Juvenile Court in 2017, and had completed probation in that matter. The preponderance of the evidence is that J.V. impliedly waived his rights by answering the officer’s questions and that the waiver was knowing, intelligent, and voluntary.

Having so concluded, we need not resolve the Attorney General’s alternative argument that, even if the confession was improperly admitted, the error was not prejudicial. We nonetheless observe that the question is close. Confessions admitted into evidence “often operate ‘as a kind of evidentiary bombshell which shatters the defense.’ ” (People v. Cahill (1993) 5 Cal.4th 478, 503.) When improperly admitted, a confession “is much more likely to affect the outcome of a trial than are other categories of evidence, and thus is much more likely to be prejudicial under the traditional harmless-error standard.”[5] (Cahill, at p. 503.) Still, a confession’s improper admission can be harmless when, for example, there are “numerous, disinterested reliable eyewitnesses to the crime whose testimony is confirmed by a wealth of uncontroverted physical evidence.” (Id. at p. 505.)

At the jurisdictional hearing, three witnesses—the two victims and the father of one of them—identified J.V. as the person who took one of the victim’s bike. No other witness or evidence hinted that anyone other than J.V. took the bike, and J.V.’s counsel never suggested such a possibility. Furthermore, no one at the hearing alluded to J.V.’s confession outside the context of the suppression motion, and neither the prosecution’s closing argument nor the juvenile court’s ruling referred to it. Thus, while we do not decide whether its admission was harmless, the confession played a seemingly negligible role in the juvenile court’s decision.

3. J.V.’s Confession Was Not Involuntary.

J.V. also claims that his confession was involuntary. Even if we assume that this claim was properly preserved, we are unpersuaded by it.

“The use of an involuntary confession in a delinquency proceeding violates a minor’s Fourteenth Amendment rights.” (In re Anthony L. (2019) 43 Cal.App.5th 438, 452.) “ ‘ “[T]he question in each case is whether the defendant’s will was overborne at the time [the defendant] confessed.” ’ ” “ ‘The burden is on the prosecution to show by a preponderance of the evidence that the statement was voluntary.’ ” (People v. Delgado (2018) 27 Cal.App.5th 1092, 1107.) “We consider statements involuntary—and thus subject to exclusion under the Fifth and Fourteenth Amendments of the federal Constitution—if they are the product of ‘coercive police conduct.’ [Citation.] We evaluate this question by looking to the totality of the circumstances to determine ‘whether the defendant’s “ ‘will has been overborne and his capacity for self-determination critically impaired’ ” by coercion.’ [Citation.] The presence of police coercion is a necessary, but not always sufficient, element. [Citation.] We also consider other factors, such as the location of the interrogation, the interrogation’s continuity, as well as the defendant’s maturity, education, physical condition, and mental health.” (People v. Caro (2019) 7 Cal.5th 463, 492.) Again, because the officer’s interaction with J.V. was recorded, we apply an independent standard of review. (People v. Leon, supra, 8 Cal.5th at p. 843.)

Nothing in the recording of the officer’s interaction with J.V. can be fairly characterized as coercive. J.V. complains that the officer “spoke roughly to [him], telling him to ‘sit [his] ass down’ and ‘we’re not playing games right now.’ ” But the video recording reflects that these statements were delivered in a firm but non-threatening manner. J.V. also complains that the officer “confused” him “by handcuffing him but telling him that it was for his own safety and he was not under arrest.” But longstanding law authorizes the temporary use of handcuffs during a detention, and J.V. does not argue that his being handcuffed transformed the detention into an arrest. (See People v. Bowen (1987) 195 Cal.App.3d 269, 274 [“the fact that [the defendant] was handcuffed while detained awaiting the victim’s arrival does not mean that [the defendant] was under arrest during this time”].)

The officer encouraged J.V. to tell the truth, but there is nothing coercive in “officers urging defendant to tell the truth.” (People v. Linton, supra, 56 Cal.4th at p. 1178.) “ ‘[M]ere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent confession involuntary.’ ” (People v. Holloway (2004) 33 Cal.4th 96, 115.) We find nothing about the officer’s conduct, questioning, or behavior to have caused J.V. to make an involuntary or unreliable statement. (See People v. Ray (1996) 13 Cal.4th 313, 340.)

J.V. maintains that “the most striking feature” of the Attorney General’s argument is its failure to address In re T.F. (2017) 16 Cal.App.5th 202. But the case is inapposite. While it is true that in In re T.F. the court found a minor’s confession to have been involuntary, the circumstances were vastly different from the circumstances here. There, the minor had an acknowledged intellectual disability and was “interrogated in a small room at his school by two armed officers” for nearly an hour without being given a Miranda warning. (In re T.F., at p. 221.) During the interrogation the minor denied the crime “at least 23 times,” was “very emotional,” and “sobbed uncontrollably.” (Id. at pp. 208, fn. 8, 209, 221.) The officers then handcuffed the minor, placed him under arrest, and gave the Miranda warning in a “rapid recitation,” making it difficult to know if the minor understood each of his rights. (In re T.F., at p. 209.) The officers later subjected the minor to another round of an “accusatory interrogation” at the police station that was described as “dominating, unyielding, and intimidating.” (Id. at p. 218.)

Here, by contrast, the video recording of the officer’s interaction with J.V. depicts, as we have described, the officer being professional, courteous, and non-threatening. The officer’s detention and questioning were not coercive.

2. The Juvenile Court Did Not Err by Conducting Some Proceedings Off the Record.

J.V. also argues that the juvenile court erred by conducting some proceedings off the record. He acknowledges that this “was not necessarily prejudicial,” but he requests us to encourage the juvenile court to hold all proceedings on the record. We decline to do so.

1. Additional Background.

As we have recounted, after the jurisdictional hearing the case was transferred from Napa County to Solano County because J.V. lived there. At the start of one of the first hearings in Solano County, the juvenile court stated it had engaged in an “extensive conversation with counsel before calling [the hearing] today, and so I know where we’re ultimately headed.” The conversation involved whether the adjudication sustaining the two counts of second degree robbery was the result of J.V. receiving ineffective assistance of counsel. J.V.’s attorney represented “that this case does need to go back to Napa to resolve what the underlying offenses will be.” The prosecutor concurred and “believe[d] that Napa needs to unwind this and do whatever it is they need to do, including resolve the minor’s custody.” The court directed that the minute order reflect that the court had been advised that the adjudication sustaining the two counts was the result of J.V. receiving ineffective assistance of counsel, and it directed the case to be returned to Napa to resolve the issue. The court stated it had been told “that the Napa County District Attorney may be willing to unwind the adjudications, so that is the jurisdiction that needs to resolve the matter.” The court ruled that it had “no objection [to the transfer] and [would] continue the order [allowing J.V. to] be released on electronic monitoring pending his transfer.”

2. Analysis.

J.V. argues that the in-chambers conversation “render[ed] the proceedings less transparent to the reviewing court,” and that J.V. and his parents had the right to be present for the conversations. Even assuming that this claim was properly preserved, we cannot conclude that the juvenile court erred. Neither party objected to the in-chamber procedure at the time, the court described on the record the essence of the in-chambers conversation, and J.V. does not argue that the court’s description was incorrect.

Nor can we find any possible prejudice to J.V. (See People v. Navarette (2003) 30 Cal.4th 458, 492 [defendant must show being excluded at a proceeding bore a reasonably substantial relation to the ability to defend].) To begin with, nothing in the record shows that J.V. and his parents were actually excluded from the in-chambers conversation. But even assuming they were, J.V. does not explain how their absence was detrimental. The record reflects that the purpose of the conversation was to discuss the need to transfer the case back to Napa County for the juvenile court to consider setting aside the jurisdictional findings. In other words, the transfer was for J.V.’s benefit, and both attorneys agreed to it. We cannot conclude that J.V. has sustained his appellate burden of showing that the trial court erred or that he was prejudiced thereby. (See id. at pp. 492–493 [vague speculation about the proceedings cannot establish a violation of a minor’s rights].)

III.
Disposition

The jurisdictional finding sustaining the first count is affirmed. The dispositional order is vacated, and the matter is remanded for the juvenile court to reconsider its dispositional order in light of our decision in In re J.V., supra, A163008, vacating the jurisdictional findings sustaining the second count. We express no opinion on how the court should exercise its discretion in reconsidering the dispositional order.

_________________________

Humes, P.J.

WE CONCUR:

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Banke, J.

_________________________

East, J.*

*Judge of the Superior Court of the City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

People v. J.V. A161626

[1] See Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

[2] J.V. does not challenge the prosecutors’ charging decisions, and we must extend “extraordinary deference” to them in any event. (Sundance v. Municipal Court (1986) 42 Cal.3d 1101, 1132.) Still, we cannot help but reflect on whether J.V. should have been charged so severely—i.e., with two felony counts that qualify as both violent and serious felonies and would qualify for a sentence of up to six years in prison if charged as an adult (Pen. Code, §§ 18, 667.5, subd. (c)(9), 1192.7, subd. (c))—given the facts and circumstances of this delinquency case. (See Josh Gupta-Kagan, Rethinking Family-Court Prosecutors: Elected and Agency Prosecutors and Prosecutorial Discretion in Juvenile Delinquency and Child Protection Cases (2018) 85 U.Chi. L.Rev. 743, 757–758 [calling for more review on whether prosecutors’ powers in delinquency cases “should be checked, and if so, how”].)

[3] J.V.’s appellate counsel breezily asserts that the “thumbs up” identification and the officer’s statements about the school video footage were “[m]ost likely . . . something [the officer] made up . . . to induce J[.V.] to confess.” As to the identification, nothing in the record suggests it was made up, and ample evidence suggests it was not. As to the statement about the school video, counsel contends it “apparently was not true” because “no such footage was introduced at the jurisdictional hearing.” The contention is specious. The juvenile court could not, and we cannot, presume that the officer lied about the school video simply because no such video was introduced into evidence.

[4] Our conclusion is not altered because the record reflects that that J.V. “had an active [Individualized Education Plan] for several years to address his [Attention Deficit Hyperactivity Disorder] diagnosis and classroom behavior” and may have been taking medication to manage his behavior.

[5] The erroneous admission of a defendant’s statements obtained in violation of Miranda “is reviewed for prejudice under the beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18.” (People v. Case (2018) 5 Cal.5th 1, 22.)