In re Tabari A.

Filed 9/19/07 In re Tabari A. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Tabari A. appeals from an order continuing him as a ward of the juvenile court and committing him to out-of-home placement. His counsel raises no issues and asks this court for an independent review of the record. (People v. Wende (1979) 25 Cal.3d 436.) Tabari was apprised of his right to file a supplemental brief but did not do so.

In May 2005, Tabari was declared a ward of the court under Welfare and Institutions Code section 602 and placed on in-home probation after he admitted to one count of carrying a concealed weapon (Pen. Code,  12025, subd. (a)(2)). In January 2006, a petition to revoke probation was filed alleging that Tabari had missed three consecutive probation appointments and had tested positive for marijuana. Tabari admitted to the alleged probation violations and was placed at Walden House.

On December 26, 2006, a second Welfare and Institutions Code section 602 petition was filed alleging that Tabari had possessed a handgun without the permission of a parent (Pen. Code,  12101, subd. (a)(1)). Tabari moved to suppress statements he made to the police after his arrest on the ground that the statements were acquired in violation of his rights under Miranda v. Arizona (1966) 440 U.S. 934 (Miranda). Tabari argued that although the officer read him his Miranda rights and asked him if he understood those rights, to which he responded affirmatively several times, he was not asked explicitly if he waived those rights. After reviewing the videotape of the interrogation, the juvenile court denied the motion. The court found that Miranda was satisfied based on the totality of the circumstances including Tabaris age (16 at the time), his intelligence, the lack of coercion during the interrogation and the fact that Tabari had exercised his right not to answer on a previous occasion.

On January 24, 2007, the court found the allegation in the petition true and on February 14, 2007, the court continued Tabari as a ward of the court. The court found that returning Tabari to his home would be contrary to his welfare and ordered the probation department to find a suitable out-of-home placement. Tabari filed a timely notice of appeal.

Tabari was represented by counsel throughout these proceedings. The court has reviewed the entire record, including the videotape of the interrogation which includes the explanation to Tabari of his Miranda rights and his acknowledgement that he understood them. There are no meritorious issues to be argued. The trial court did not err in denying Tabaris motion to suppress. A defendants waiver of his rights under Miranda need not be express where a defendants actions make clear that a waiver is intended. (People v. Whitson (1998) 17 Cal.4th 229, 250.)  If the totality of the circumstances surrounding the interrogation reveals both an uncoerced choice and the requisite level of comprehension  a court may properly conclude that the Miranda rights have been waived. (Id. at p. 247.)

Likewise, substantial evidence supports the juvenile courts finding that Tabari possessed a handgun without parental permission. The arresting officer testified that Tabari was standing with a group of youths and quickly and suspiciously walked away from the group as the officer approached. Tabari disappeared from the officers sight for a moment, then reappeared and began walking quickly down the street. The officer found the gun in a tree near the location at which Tabari had disappeared from his view. Tabari testified at the jurisdictional hearing that he found the gun on the street and placed it in the tree five minutes later so that the gun would not be found by young children that were playing in the area. There was no error in the disposition.

Disposition

The juvenile court orders are affirmed.

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Pollak, Acting P. J.

We concur:

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Siggins, J.

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Horner, J.*

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