Filed 12/6/18 In re Fernando S. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Robert J. Trentacosta, Ana Espana, and Edlene McKenzie, Judges. Affirmed.

Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.

The juvenile court found true an allegation that Fernando S. committed robbery (Pen. Code, § 211).[1] The court declared Fernando a ward of the court and imposed probation. On appeal, Fernando contends the dispositional order should be reversed because police violated Miranda[2] by failing to inform him of his right to appointed counsel before and during police questioning. Concluding that the police properly admonished Fernando, we affirm.

FACTUAL BACKGROUND

A. The People's Case

E.S., who was 16 years old, was riding the trolley when a short male (later identified as D.M.) asked him for the time; when E.S. took out his phone to check, the man grabbed E.S.'s phone. E.S. was about to demand the phone back when Fernando, then-17 years old, approached E.S. and told him to stay back. Raising his shirt, Fernando showed E.S. what looked like a gun handle. Fernando told E.S. he had a "strap," which E.S. understood to mean a gun.

Surveillance video from the trolley platform showed Fernando and D.M. exiting the trolley. E.S. identified Fernando as the person who showed him the gun handle.

In a police interview, Fernando initially denied being involved, having a gun, or telling E.S. that he was "strapped." However, later in the interview Fernando admitted approaching E.S. and telling him, "[d]on't do nothing" or "don't do shit."

B. Defense Case

On the day of the robbery, E.S. told police that "two black males" approached him on the trolley. He told police that a short Black male took his phone, and the person with the gun was a Black male, about six feet tall, 200 pounds, wearing a gray baseball cap and had braided hair coming down out of the hat. That description did not match Fernando, who is Hispanic.

In the police interview, Fernando told police he could not have had a gun because he was coming back from school. Only near the end of about 30 minutes of interrogation did Fernando admit that he told E.S., "Don't say shit." Fernando told police he was intoxicated on the day of the incident and did not remember what happened.

A woman who was riding on the trolley testified that Fernando told D.M. to return the phone to E.S. She did not see anyone threaten E.S. Another witness testified that two African-Americans took E.S.'s phone and that Fernando did not participate. D.M. testified that he acted alone.

C. Order

The court found insufficient evidence to support the allegation that Fernando used a firearm. However, stating, "I found the victim to be credible," the court made a true finding that Fernando committed robbery as alleged. The court adjudged Fernando as a ward and imposed probation on various terms and conditions, none of which are challenged on appeal.

DISCUSSION

I. POLICE PROPERLY ADVISED FERNANDO OF HIS MIRANDA RIGHTS

A. Additional Factual and Procedural Background

Before trial, Fernando's lawyer brought a motion "to exclude statements that were taken in violation of Miranda." Fernando's lawyer argued that Fernando "did not waive his rights in a knowing or intelligent manner" because police never asked "the standard question: do you wish to speak with us?" (Boldface omitted.) Defense counsel also argued that Fernando did not "voluntarily waive his rights" because police suggested that Fernando "would not be in trouble" if he answered their questions.

In response, the prosecutor quoted the Miranda warnings police gave Fernando, as follows:

"[Prosecutor]: The People believe the officer sufficiently read the minor his rights and that there . . . has been no constitutional violations here. The officer went through each of the rights.

" . . . Question 1: You have the right to remain silent. Do you understand? [¶] . . . The minor says, Yeah. . . . [¶] . . . [¶]

"Further, he went on, [A]nything you say may be used against you in court. Do you understand? The minor responded, Yeah.

"The officer went on and said, You have the right to the presence of an attorney before and during any questioning. Do you understand? The minor said, Yes."

The court noted that police also gave the additional Miranda warning, "[I]f you cannot afford an attorney, one will be appointed for you, again, free of charge before any questioning."

The court ruled that "[b]ased on the totality of the circumstances," there was no Miranda violation.

B. The Miranda Warnings

"To give force to the Constitution's protection against compelled self-incrimination, the [United States Supreme] Court established in Miranda 'certain procedural safeguards that require police to advise criminal suspects of their rights under the Fifth and Fourteenth Amendments before commencing custodial interrogation.' [Citation]. Intent on 'giv[ing] concrete constitutional guidelines for law enforcement agencies and courts to follow' [citation], Miranda prescribed the following four now-familiar warnings: '[A suspect] must be warned prior to any questioning [1] that he has the right to remain silent, [2] that anything he says can be used against him in a court of law, [3] that he has the right to the presence of an attorney, and [4] that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.' " (Florida v. Powell (2010) 559 U.S. 50, 59-60 (Powell).)

C. Fernando's Contention

Before questioning Fernando, police gave him Miranda warnings as follows: (1) "You have the right to remain silent"; (2) "[A]nything you say may be used against you in court"; (3) "You have the right to the presence of an attorney before and during any questioning"; and (4) "[I]f you cannot afford an attorney, one will be appointed for you, again, free of charge before any questioning."

Fernando contends these warnings are defective because police advised that he had the right to an appointed attorney " 'before' " any questioning, but failed to advise him of his right to appointed counsel both before and during questioning.

D. Forfeiture

The Attorney General contends Fernando has forfeited this argument on appeal because defense counsel's Miranda challenge in the juvenile court was on different grounds—namely, that Fernando's waiver of Miranda rights was unknowing and involuntary. Asserting the trial court was, therefore, not provided an opportunity to address the adequacy of the Miranda warnings, the Attorney General contends Fernando has forfeited this issue on appeal.

However, although at trial defense counsel did not raise the adequacy of the Miranda warnings, the juvenile court did. Before ruling, the court made a finding that "the officer has made it pretty clear that [Fernando] does have the right to remain silent; that he does have the right to the presence of an attorney before and during any questioning—said [']do you understand that['] and the response was [']yes.['] [¶] And again, if you cannot afford an attorney, one will be appointed for you, again, free of charge before any questioning. Emphasizing 'before any questioning' on those last two questions the officer asked of the minor."

Citing People v. Scott (1978) 21 Cal.3d 284, 290, Fernando asserts that "an 'objection will be deemed preserved if, despite inadequate phrasing, the record shows that the court understood the issue presented.' " Here, the record shows the court considered the adequacy of the Miranda warnings. Accordingly, Fernando's appellate argument is not forfeited.[3]

E. The Standard of Review

On review of a Miranda claim, " 'we accept the trial court's resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence.' " (People v. Whitson (1998) 17 Cal.4th 229, 248.) We " 'independently determine whether, from the undisputed facts and those properly found by the trial court, if the challenged statements were illegally obtained [citation], " '[giving] great weight to the considered conclusions' " ' " of the trial court. (Ibid.)

F. Analysis

Miranda warnings need not be presented in any particular formulation of "talismanic incantation." (California v. Prysock (1981) 453 U.S. 355, 359 (Prysock).) The essential inquiry is simply whether the warnings reasonably " 'convey to [a suspect] his rights as required by Miranda.' " (Duckworth v. Eagan (1989) 492 U.S. 195, 203.) In determining whether police have adequately conveyed the four Miranda warnings, reviewing courts "are not required to examine the words employed 'as if construing a will or defining the terms of an easement. The inquiry is simply whether the warnings reasonably "convey to [a suspect] his rights as required by Miranda." ' " (Powell, supra, 559 U.S. at p. 60.)

Courts have held Miranda advisements were adequate in situations similar to that presented here—i.e., where a suspect was told that he had the right to appointed counsel before, but not during, interrogation. For example, in Powell, supra, 559 U.S. 50, officers told the suspect (1) he had the right to talk to a lawyer before answering questions, (2) a lawyer would be appointed before questioning, and (3) he had the right to " 'use any of these rights' " at any time during the interrogation. (Id. at p. 54.) The United States Supreme Court rejected the contention that these advisements were defective because they failed to convey the defendant's right to an attorney during questioning. (Id. at pp. 60, 62.) The court stated that to reach the opposite conclusion, a suspect would have to "imagine an unlikely scenario" in which "he would be obliged to exit and reenter the interrogation room between each query," an absurd conclusion that a reasonable person would not adopt. (Id. at p. 62.) Given a commonsense meaning, the warnings were sufficient. (Id. at p. 63.)

Similarly, in People v. Wash (1993) 6 Cal.4th 215, the defendant was advised, "[Y]ou have the right to have an attorney present before any questioning if you wish one, . . . if you cannot afford . . . an attorney[,] one will be provided to you at no cost before any questioning begins. . . ." (Id. at p. 236.) The California Supreme Court held that an admonition that the suspect has a right to appointed counsel "before" questioning complies with Miranda because it is unreasonable to believe that counsel would be provided before questioning, "and then summarily removed once questioning began." (Ibid.)

People v. Valdivia (1986) 180 Cal.App.3d 657 considered the same type of issue. There, police advised the suspect that he had the right to " 'speak with an attorney and to have him present before any question,' " but did not state that he had the right to counsel during the interrogation. (Id. at p. 661.) The Valdivia court concluded, "[W]e are unpersuaded that the words were facially ambiguous or would have caused most people to believe that counsel would only be provided before questioning and then whisked away once it began. A far more reasonable interpretation of the disputed language is that Valdivia had the unfettered right to consult with and have counsel physically present before and at the interrogation . . . ." (Id. at pp. 663-664.)

Applying these principles here, police adequately Mirandized Fernando. Police gave all four of the crucial Miranda warnings: Fernando was informed of his right to silence, that anything he said could be used against him in court, that he had the right to an attorney, and that an attorney would be appointed for him if he could not afford one. Given that police advised Fernando that he had the right to an attorney "before and during any questioning," the next advisement—that if Fernando could not afford an attorney, "[O]ne will be appointed for you, again, free of charge, before any questioning," conveyed to Fernando when his right to appointed counsel became effective—namely, before he answered any questions at all. Nothing in the words used indicated that counsel's presence would be restricted or eliminated after the questioning commenced. (See Powell, supra, 559 U.S. at p. 63.)[4]

Disagreeing with this analysis, Fernando contends we should follow United States v. Noti (9th Cir. 1984) 731 F.2d 610, which found a Miranda warning inadequate because officers informed the suspect of his right to have an attorney's services before, but not during questioning. (Id. at p. 615.) However, the advisement in Noti differs significantly from the one here. In Noti, the defendant was only advised of the right to an attorney "before questioning."[5] (Noti, at p. 614.) In contrast here, police also advised Fernando of his right to an attorney before and during any questioning. In any event, even if Noti were factually analogous, we are bound by Wash. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Fernando's reliance on People v. Stewart (1968) 267 Cal.App.2d 366 is also unpersuasive. In Stewart, police told the defendant that " 'he could have his attorney here' " and had a right to have " 'the Public Defender appointed in case he couldn't afford an attorney.' " (Id. at p. 378, fn. 16.) That advisement was inadequate because "the warning could well have been interpreted to mean no more than that the court-appointed attorney would, at some future time, visit defendant in jail" and was "not the equivalent of telling him that the interrogation would suspend until the attorney arrived." (Id. at p. 378.) In contrast, here police advised Fernando that he had the right to an attorney "before and during any questioning" and that an attorney would be appointed for him "free of charge before any questioning." Thus, unlike the defendant in Stewart, Fernando was advised that he had the right to appointed counsel at any interrogation.

Fernando's reliance on People v. Bolinski (1968) 260 Cal.App.2d 705 is also unavailing. There, police admonished the defendant that " 'he was entitled to the counsel of an attorney' " and " 'if he was charged that he would be appointed counsel . . . .' " (Id. at p. 718.) That advisement violated Miranda because "the advisement that 'if he was charged' counsel would be appointed is not a substantial equivalent of an advisement that if he is indigent he is entitled to have appointed counsel present at the interrogation." (Id. at p. 720.) Later, before separate questioning, police advised Bolinski that if he could not afford an attorney, " 'a public defender would be furnished for him by the court.' " (Id. at p. 723.) This was insufficient because "[a]n advisement that counsel would be appointed by the court is not the equivalent of an advisement that counsel would be provided to be present at the interrogation." (Ibid.) Bolinski is factually off point because here, police advised Fernando that he had a right to an attorney "before and during any questioning" and that counsel would be appointed "before any questioning."

In sum, contrary to Fernando's contentions, the advisement here met Miranda requirements because it reasonably conveyed to Fernando his right to have an appointed attorney present before and during questioning. Because the advisement was adequate, we need not address whether evidence of Fernando's statements to police was prejudicial.

DISPOSITION

The order is affirmed.

NARES, Acting P. J.

WE CONCUR:

IRION, J.

GUERRERO, J.