In re David T.

Filed 8/21/07 In re David T. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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Following a contested jurisdictional hearing, the juvenile court sustained a subsequent petition alleging the 17-year-old minor David T. was within the provisions of Welfare and Institutions Code section 602. The petition contained allegations he had committed a forcible lewd act against a child under the age of 14, forcible rape, attempted penetration with a foreign object, assault with intent to commit rape, petty theft, false imprisonment by force or menace, and forcible rape in concert. The court committed the minor to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities, for a maximum confinement period of nine years, not to exceed the age of 25.

On appeal, the minor contends: (1) statements were admitted against him in violation of Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694]; (2) assault with intent to commit rape, forcible rape, and false imprisonment are lesser included offenses of rape in concert; and (3) the commitment order incorrectly states the maximum confinement period.

We reverse the findings sustaining assault with intent to commit rape and forcible rape, order the juvenile court to correct the commitment order, and otherwise affirm the judgment.

BACKGROUND

One day after school, 13-year-old S.E. met up with her friends, Chanel C. and Kiara W., and decided to walk to S.E.s apartment complex together as was their custom. On the way the girls met about 10 boys, who included the minor, Shannon, who was also known as A.R., Corey, and Stank. The boys asked if they could come over to S.E.s place. S.E. said no, but Chanel told them yes.

S.E. testified that she and Chanel went into her apartment while the boys stayed outside and Kiara had gone home. The boys knocked on the door, but S.E. told them they could not come in. Kiara then called and asked for the girls to come outside. They went outside and S.E. was knocked down by some of the boys, who grabbed her keys and entered the apartment.

About 10 people were in the apartment. S.E. told them to leave, but the boys stayed. A boy she identified as Barlo asked her to come in the bathroom to mess with him, which she took to mean having sex. S.E. told Barlo no.

Later, S.E. was in the bathroom with the minor and a boy she identified as A.R. The minor sucked on her neck and kissed her, and S.E. kissed him back. He started to unbutton S.E.s pants while kissing her, which led S.E. to push the minor off of her. She then pulled away and walked out of the bathroom.

As S.E. left the bathroom, Kiara asked her what happened. S.E. did not say anything to Kiara. S.E. said this because the boys were right there and she did not want to say anything.

S.E. went from the bathroom to the living room. Kiara and most of the boys had left the apartment, leaving her alone with the minor, Corey, Stank, and A.R. S.E. then went to her parents bedroom, where Stank kept her from leaving, pushed her to the bed, and unsuccessfully tried to take her pants off.

The minor entered the bedroom and pulled off S.E.s pants. S.E. responded by trying to pull her pants up and telling the minor to stop. According to S.E., the minor then tried to have sex with her. He got on top of S.E. and attempted to put his penis in her vagina. S.E. screamed as he tried to push it in. Stank put his penis in her mouth and told her to suck me up, but she pushed it away. The minor got off of S.E. after the phone rang. S.E. then got up, put her pants on, and went into the living room. She also noticed that her panties had been ripped.

While S.E. was in the living room, Corey took her over his shoulder and carried her into the bathroom. One of the boys took her pants off and A.R. tried to put his penis in her vagina while Stank tried to penetrate her from behind. S.E. pushed them away and they eventually stopped.

S.E.s testimony was uncertain about the timing of some of the incidents. At some point the minor tried to put his fingers in her vagina while she was in the bathroom. The minor dragged S.E. to the bathroom at least one time, but she does not remember what happened at that time.

Before the remaining boys left the apartment, S.E. saw the minor with a DVD in his back pocket, which she pulled out. She saw Corey looking through her sisters wallet and jewelry box, and saw him taking some money and putting it in his pocket.

The apartment had been clean, but was a mess by the time the boys left. S.E. was afraid about what her father would say, so the boys offered to break a window to make it look like a burglary. Corey broke a window with a pole provided by S.E. for that purpose and then the boys left the apartment.

S.E. called her father at least twice while the boys were in the apartment. Her father answered the first time and her older sister answered the other time. The first call was made before the sexual assaults. She did not tell her father about the presence of the boys because they were near her during the call and S.E. was afraid her father would get mad. S.E. did not call the police out of fear of her father finding out what had happened. She called her sister a second time after the boys left and told her about the sexual assaults.

After the boys left, S.E. also made a call to her niece, Ivana V. Ivana testified that S.E. was crying when she called and told her something really bad had happened. S.E. recounted her story of being followed home by the boys who took her keys and entered the apartment without her permission. The boys then went inside and started taking things.

S.E. told Ivana that one of the boys took her into the bathroom and tried to finger her and after she left the bathroom she was taken into her mothers bedroom where they tried to have sex with her. She told Ivana they tried to stick it in but he didnt go all the way. The boys stopped after a while because she wouldnt let them and finally they left.

S.E. was crying throughout the conversation with her niece. She told Ivana that there were five boys who assaulted her, and that they had pulled her pants off and ripped her underwear off.

Chanel testified that she walked to S.E.s apartment after school with S.E., Kiara, and a group of boys. S.E. got the apartment keys out, but the minor took the keys from her and she fell. He then opened the door and the boys entered. Chanel stayed outside and called her mother, who picked her up.

Kiara testified to going to S.E.s apartment complex after school with S.E., Chanel, and the group of boys. After dropping her things off at her apartment, Kiara went to S.E.s apartment where she found S.E.s apartment keys being passed around by the boys. She told the boys leave her alone. She doesnt want you guys in her house. The door was opened and they went upstairs. After going out of the apartment to see Chanel, Kiara went back in and entered the apartments master bedroom.

Kiara did not find S.E. in the bedroom, but heard her yelling from the bathroom. Hearing S.E.s screams, Kiara banged on the bathroom door. A boy named DAndre said leave them alone and tried to block her. When S.E. came out of the bathroom, she was red and her eyes were wet and her hair was messed up. The minor had been in the bathroom with S.E. along with another boy whom Kiara could not identify. S.E. told Kiara that she was okay, that she kissed the minor and he kissed her back.

Kiara left the apartment and went home, where she took a shower and then called S.E. A boy answered the phone and hung up, so Kiara went back to S.E.s apartment. The apartment was messy, and S.E. was trying to figure out what to say to her parents because she was afraid of getting into trouble. S.E. waited until she was at or going to the hospital to tell Kiara about the assaults.

When S.E.s father came home, she told him the house had been burglarized. The apartment was a mess, and jewelry, phones, cash, and other items totaling over $2,700 were taken from the apartment. He found a condom wrapper in one of the bedrooms, another condom wrapper in the showers, and a condom in the trash near the master bedroom.

The police were eventually called and S.E. was taken to the U.C. Davis Medical Center for a sexual abuse exam. The examining nurse found blood blisters on the external surface of the hymen and lacerations in the shallow place below the hymen. S.E. had two hickeys on her neck and a bruise on the right thigh above the knee.

The nurse testified that the injuries to the hymen were caused by a forceful object against it. The vagina might not have been completely penetrated because the muscles were clinched in fear or resistance. S.E.s injuries were consistent with either consensual sex or a sexual assault.

Sacramento City Police Detective Mark Tyndale interviewed S.E. after responding to a call about the incident. She appeared to be in a state of shock, not focusing on anybody, staring forward, and talking in a monotone voice. He interviewed her a second time about a month later, when she identified the minor and her other assailants in a photographic lineup.

Detective Tyndale interviewed the minor at the police station. He administered Miranda v.Arizona(1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda) warnings, which the minor affirmed understanding. The minor never expressly waived his rights but also never stated that he did not want to answer any questions.

At the conclusion of the Miranda warnings, the minor asked Detective Tyndale to call his probation officer.^[1] The minor did not know his probation officers phone number, but told the detective that her name was Geneva. Detective Tyndale informed the minor he knew this person. After a discussion about where he went to school, the minor said, I aint got nothin to do with nothin, man. Thats why I want to call my PO and let her know. Detective Tyndale said, OK.

The minor then asked the detective, What was all that you were saying about me gettin arrested. Detective Tyndale explained to the minor that they always advise the juvenile of his or her rights in juvenile cases. The detective continued, Im not saying youre not going to be arrested. Just depends on everything else we uncover.

The minor replied, Do you know how long Im gonna be stayin up here . . . cause I gotta . . . or could I contact my mom or something . . . cause I been up at school so schools already out I need to let her know where Im at . . . .

Detective Tyndale asked the minor for his mothers phone number, but the minor said she did not have one. The detective then asked for a neighbors phone number and the minor answered that he did not have a neighbors phone number, asking [i]f you could get her or something and let her know. . . . Theres some more other stuff, man, for real . . . . Detective Tyndale then asked the minor if he would take a lie detector test, and the questioning about the incident commenced.

The minor first denied going to S.E.s apartment but subsequently admitted to going there. He initially denied having sex with S.E., but later said he tried to have sex with her, stopping after she said no. He admitted kissing S.E. and giving her hickeys. The minor said he was in the living room when someone tried to take S.E.s pants off in the bathroom. He heard what the minor first called screaming and later called moaning from the bathroom. The minor was in the bathroom with S.E. because he had been locked in and S.E. was trying to help him get out. He once said that he never took his penis out of his pants, but later admitted to trying to put his penis in S.E.s vagina. The minor also told the detective that he tried to pull down S.E.s pants but stopped after she said no.

DISCUSSION

I

Miranda

Relying on his age and the requests to contact his mother and probation officer, the minor contends his statements to Detective Tyndale were taken in violation of Miranda v. Arizona, supra, 384 U.S. 436 because he never effectively waived his rights. We reject the contention, finding an implied waiver under the totality of the circumstances.

In reviewing constitutional claims of this nature, it is well established that we accept the trial courts resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence. We independently determine from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained. [Citations.] (People v. Cunningham (2001) 25 Cal.4th 926, 992.)

Under both federal and state law, courts must look at two issues to determine whether a defendant voluntarily, knowingly, and intelligently waived Miranda protections. First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the totality of the circumstances surrounding the interrogation reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. [Citations.] (Moran v. Burbine (1986) 475 U.S. 412, 421 [89 L.Ed.2d 410, 421].)

A suspect may make an effective implied waiver of Miranda rights by saying he understands them, then proceeding to answer questions. (People v. Sully (1991) 53 Cal.3d 1195, 1233, and cases cited.) A court must consider the totality of the circumstances surrounding an interrogation, including a defendants background and experience, in deciding whether he effectively waived his Miranda rights. (People v. Whitson (1998) 17 Cal.4th 229, 245-247.) The voluntariness of the suspects waiver and statement musty be proved by a preponderance of the evidence. (Id. at p. 248.)

The minor contends his request to contact his mother and the two requests to contact the parole officer are inconsistent with an implied waiver. In light of his youth, the minor contends he did not waive his rights, and his request for his mother was an indication that he wanted his mother present for questioning because of things that had and were occurring. We disagree.

We do not doubt that a juveniles request to speak to his or her parent must be considered as an indication that the minor wishes to invoke his or her Miranda rights. (People v. Hector (2000) 83 Cal.App.4th 228, 237 (Hector).) However, this is not a per se invocation of the minors rights under Miranda. Rather, a juveniles request to speak to a parent must be construed as an invocation of his or her Fifth Amendment privileges unless there is evidence demanding a contrary conclusion. [Citation.] (Ibid., original italics.)

The Court of Appeal in Hector found the minors request to talk to his mother did not invoke his rights under Miranda. (Hector, supra, 83 Cal.App.4th at p. 237.) The minor was a 17-year-old young man with substantial prior experience with police and police procedures. (Ibid.) He indicated he understood his rights after being given the Miranda warnings. (Ibid.) When detectives informed the minor that they were unable to reach his mother, but had left a message with her, the minor did not indicate he wished to stop speaking with the detectives, but instead readily continued to answer their questions. (Ibid.)

The circumstances of the minors interrogation compare favorably to those in Hector. The minor, 16 years old at the time, was on probation at the time, was familiar with the criminal justice system. He was read his Miranda rights, and allowed himself to be interrogated after indicating that he understood those rights. The minor asked for his mother and probation officer not to obtain their assistance during questioning, but to inform them of his whereabouts. Even though the minor was unable to give Detective Tyndale a phone number where his mother could be contacted, the minor never indicated he wished to stop questioning, but rather continued to answer the detectives questions.

Based on our review of the totality of the circumstances surrounding his interrogation, we conclude the minor did not invoke his Miranda rights when he asked Detective Tyndale to inform his mother and probation officer of his whereabouts. The juvenile court properly denied his motion to suppress the statement.

II

Lesser Included Offenses

The minor contends the true findings that the minor committed assault with intent to commit rape, forcible rape, and false imprisonment must be reversed as lesser included offenses of rape in concert. We agree with the minor regarding forcible rape and assault with intent to commit rape, but reject his contention with regard to false imprisonment.

The rule asserted by defendant, that a person cannot be convicted of both a greater and lesser included offense, has an obscure origin but has long been, and still is, the rule in this state. (People v. Ortega (1998) 19 Cal.4th 686, 692.) The test for determining whether an offense is a lesser included offense for purposes of this rule is simply whether one offense cannot be committed without necessarily committing the other. (Ibid.) In deciding whether multiple conviction is proper, a court should consider only the statutory elements. . . . [O]nly a statutorily lesser included offense is subject to the bar against multiple convictions in the same proceeding. An offense that may be a lesser included offense because of the specific nature of the accusatory pleading is not subject to the same bar. [Citation.]. (People v. Reed (2006) 38 Cal.4th 1224, 1229.) Accordingly, we look to the statutory elements of the offenses and unless all of the statutorily required elements of the lesser offense are also statutorily required elements of the greater offense, it is not a lesser included offense for this purpose. (Id. at p. 1227.)

The Attorney General concedes that assault with intent to commit rape and forcible rape should be reversed as lesser included offenses of rape in concert. We accept the concession.

The juvenile court expressly found that the forcible rape, assault with intent to commit rape, false imprisonment, and rape in concert occurred in the same course of conduct and were alternative statements. Assault with intent to commit rape is a statutorily lesser included offense of rape in concert, and a rape in concert requires a rape by force or violence. (In re Jose M. (1994) 21 Cal.App.4th 1470, 1476-1477.) Therefore, we reverse the convictions for forcible rape and assault with intent to commit rape as lesser included offenses of rape in concert.

False imprisonment is not a lesser included offense within the crime of rape in concert. Forcible rape in concert is sexual penetration, however slight, accomplished against the victims will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another in which the defendant acts in concert with another person. (Pen. Code, 263, 264.1.) Forcible false imprisonment is the unlawful violation of the personal liberty of another effected by violence, menace, fraud, or deceit. (Pen. Code, 236, 237, subd. (a).) A person can be raped in a place where she has chosen to be and wishes to remain. A person can be raped in concert in a place from which she cannot leave, such as in cases of lawful custody in jail or in a hospital.

A person can be raped in concert in a place from which she lacks the capacity to leave, such as in cases of an invalid or a person who has already been unlawfully restrained by another. False imprisonment may often accompany rape in concert, but it is not essential to the offense and thus is not a lesser included offense for purposes of the rule advanced by defendant.

III

Error in the Commitment Order

The juvenile court ordered the minor to be committed for [u]p to the age of 25 for the offense in Count Eight, a violation of Penal Code Section 264.1 a felony, for up to nine years. The minor was committed to the upper term of nine years based on the other offenses which were found true but for which the Court would not impose any consecutive sentencing. The juvenile court imposed concurrent terms for the forcible child molestation, attempted sexual penetration and petty theft counts, while staying the sentences for the forcible rape, false imprisonment, and assault with intent to commit rape counts. The court concluded the aggregate term . . . is nine years in the Division of Juvenile Facilities not to exceed the age of 25.

Both parties note that the minute order from the disposition proceedings contains two statements contradicting the juvenile courts oral pronouncement of judgment. The order first states that [t]he minor was advised and understood the maximum term of confinement, to wit: 12 years 10 months and not beyond the age of 25. It subsequently states that the commitment is for the maximum confinement term of 13 years 2 months, and is not to exceed the statutory limitation for such commitment to age 25.

As rendition of judgment is the oral pronouncement, the minute order or abstract cannot add to or modify the judgment which it purports to summarize. (People v. Mesa (1975) 14 Cal.3d 466, 471.) The disposition hearing minute order must be corrected, nunc pro tunc, to properly reflect the juvenile courts judgment committing the minor for nine years not to exceed his reaching 25 years of age. (See In re Candelario (1970) 3 Cal.3d 702, 705; People v. Borja (2002) 95 Cal.App.4th 481, 485.)

DISPOSITION

The juvenile courts findings sustaining the allegations that the minor committed forcible rape and assault with intent to commit rape are reversed. The court is directed to prepare a corrected disposition hearing minute order reflecting the minors maximum term of confinement is nine years or until he reaches the age of 25. In all other respects, the order of the juvenile court is affirmed.

NICHOLSON , Acting P.J.

We concur:

RAYE , J.

ROBIE , J.

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^[1] The Miranda hearing was conducted on an oral motion by the minor in the middle of the trial, so there was no formal transcript of the interrogation. A two-page transcript of what happened after the Miranda warnings were read was prepared and is found in an appendix to Appellants Opening Brief. Neither party contests the accuracy of this transcript.