IN RE: STARVON J. (1994)

A wardship petition (Welf. & Inst.Code, § 602) alleging the minor (15 years of age) committed the murder of Anthony Ongansing (count 1), robbery of Ongansing (count 2) and Rigoberto Herrera (count 3), assault with a handgun upon Herrera (count 4), robbery of Ricardo Alfaro (count 5), Michael Kolby and Evangeline Nacionales (count 6), Bethleham Borrou and Theodore Demissie (count 7), Renaldo Rodriguez and Ignacio Vasquez (count 8), and Alfredo Lopez, Jaime Hernandez and Jung Lee (count 9) and, knowing a robbery had been committed by Albert Alexander, Ray Dailey and Anthony Carver, harbored, concealed and aided them in violation of section 32, Penal Code (count 10), and that in the commission of the murder and six robberies, a principal was armed, was sustained and the murder found to be of the first degree.   She appeals from the wardship order.

FACTS

Just before midnight on December 7, 1991, Anthony Ongansing was shot to death during the robbery of a 7–Eleven store in Santa Monica.

All of the crimes were committed during a robbery and shooting spree covering a two-and-a-half-hour span and a progression from Lawndale to Santa Monica in the late evening and early morning hours of December 7 and 8.

About 9:30 p.m. on December 7, Katrina Humphries drove a burgundy Honda carrying as passengers, Raymond Dailey, who sat in front with her, and Anthony Carver, the minor and Albert Alexander who were seated in the back, to the Best Western Hotel in Lawndale;  Carver and Alexander went in and approached the desk clerk, Ricardo Alfaro, who told them they had to be 21 years old to rent a room;  they wore coats, one bearing the emblem of Los Angeles Raiders, with hoods pulled over their heads;  they left.   In 15 minutes they returned with the minor who, they informed Alfaro, was 21;  Alfaro agreed to rent a room to the minor who told Alfaro she had to go outside to get her I.D., and left;  as Alfaro turned to select a key for the room, Carver and Alexander jumped over the counter and emptied the contents of the cash drawer, and forced Alfaro to unlock the petty cash box in the back room;  they removed a total of $815, forced Alfaro to the floor and left.  (Count 5.)

Just before closing time, 10 p.m., Dailey, accompanied by Humphries, entered the Sam Goody record store in Lawndale;  Humphries purchased some cassettes, and the couple left.   Five minutes later, Carver and Alexander came to the front door just as the manager, Michael Kolby, was about to lock up;  Carver flashed a twenty dollar bill, and Kolby opened the door;  Carver approached Kolby at the front register and Alexander walked over to the counter where a clerk, Evangeline Nacionales, was stationed;  Carver pointed a gun at Kolby ordering him to put up his hands then to place them flat on the counter;  Carver walked around the counter and placed a gun against Kolby's back, forced him to open the cash register and put the money on the counter, then put the money, cassette tapes and several Walkman radios in a store bag.   Carver forced Kolby to go to the video counter, where Nacionales was on the floor face down with Alexander pointing a gun at her, and unlock two cash registers, then lie on the floor;  a store alarm sounded and the two fled with the money, cassette tapes, four Walkman radios and two large boom box radios.  (Count 6.)

About 10 p.m., Carver, Dailey and the minor entered the Sizzler Restaurant in Culver City, approached the cashier, Beth Borrou, and ordered something to eat;  in a few minutes, the minor left the restaurant to get some pills in her car for a stomach ache;  Dailey pointed a gun at Borrou demanding the money in the cash register which she opened;  being told that she did not know the code number and could not open other cash registers, Carver and Dailey left.  (Count 7.)

About 11 p.m. Alexander, Carver and Dailey entered the Trading Post Liquor Store in Venice;  pointing a .38 caliber revolver at him, Alexander approached the security guard, Jaime Hernandez, disarmed him of his .357 magnum and threw him to the floor;  Carver approached Alfredo Lopez, the cashier, held a pistol to his head, forced him to open the cash register then made him lie on the floor;  Carver and Dailey jumped over the counter, took the money out of the cash register, picked Lopez off the floor and demanded more money;  when Lopez told them there was no more money, Carver again threw him to the floor;  meanwhile Yu Whan Lee, the store owner, came out of her office and Carver ordered her to the floor;  when the three men left they took $200 to $250 in small bills and coins, food stamps, a can of beef jerky and a bottle of Hennessey.  (Count 9.)

At 11:30 p.m., Carver and Alexander entered the Subway Sandwich Shop in Marina Del Rey and ordered sandwiches from Renaldo Rodriguez and Ignacio Vasquez;  when Rodriguez opened the cash register to receive payment, Carver and Alexander jumped over the counter;  pointing their guns at Rodriguez, they took all of the money from the register, a telephone, a coin box, some meat, a fax machine, and the wallets of Rodriguez and Vasquez, and fled.  (Count 8.)

Just before midnight, the minor entered a 7–Eleven store in Santa Monica;  it was cold and raining;  she asked Luis Herrera, working behind the cash register, for a large bottle of Clearly Canadian water;  she paid for another item but said she did not have enough money to pay for the water and would send someone else in to buy it;  three minutes later Carver, Alexander and Dailey entered the store;  Carver went to the coffee area, Dailey to the beer cooler and Alexander to the cash register;  suspicious, Herrera called Anthony Ongansing, another employee, who was in the office;  then Dailey paid for the water, Alexander and Carver pulled out revolvers and made Herrera open the cash register, and Dailey took the money;  Carver, in the front of the store, took money from each customer, and ordered each to leave;  Dailey and Alexander walked into the office and Herrera heard three loud bangs, like someone hitting the ice machines, followed by six rounds of automatic weapons fire;  Herrera ran, someone yelled, “Stop” and Carver fired a shot hitting him in the back;  Herrera fell to the floor, and blanked out but came to before police arrived.   (Counts 1, 3, 4.)

The robbery of 7–Eleven was recorded by a video camera in the store, and the tape was played for the court.

After Officer Swarez arrived at 7–Eleven, within four minutes of the 911 call, Carver ran out of the store towards him;  Carver matched the description given of one of the robbers and was carrying a bag and some money in his right hand and a gun in his left;  Officer Swarez fired at Carver killing him;  the gun Carver wielded was the .357 magnum taken from Jaime Hernandez from the Trading Post Liquor Store robbery.   Other officers apprehended Dailey and Alexander around the corner alley at 16th Street and Broadway;  Officer Barbee shot Alexander who then tossed his gun away from him, and Dailey was captured by police and a police dog.   Officer Plue found the body of Ongansing in a chair in the backroom;  he had been shot in the chest while making a 911 call to report a robbery in progress.   A bullet removed from Herrera had been fired from the .357 magnum found in Carver's hand;  bullets taken from Ongansing's body were fired from handguns used by Alexander, Carver and Dailey.

The following evidence relates to the minor's conduct immediately after the 7–Eleven robbery/homicide, and her detention and later arrest:

Officers Catherine Rutan, Ronald Baker, Fred Rutan and Donna Southern arrived at 7–Eleven about five minutes after midnight, within minutes of the robbery;  a perimeter around 7–Eleven at 15th Street and Santa Monica Boulevard had been sealed off because police thought an armed Black suspect was still in the area;  officers were assigned to control traffic at the intersection of 15th and Santa Monica and 16th and Santa Monica.   When they arrived at 15th and Santa Monica, Officers C. Rutan and Baker saw the minor walking north on 15th toward Santa Monica Boulevard;  she appeared to be upset and crying, and waved over Officer Rutan who asked if there was a problem;  the minor told her that her aunt had gone to 7–Eleven, she heard some gun fire, since then her aunt had not returned and she was concerned for her aunt's safety;  Officer Rutan ascertained from the minor where she was supposed to meet her aunt, and since she had no information any females had been hurt in the robbery, suggested the minor stay at the place she was to meet her aunt—under a street light by a tree next to a car.   Five minutes later, Katrina Humphries joined the minor on the sidewalk and they both got into a burgundy Honda, and Humphries started to drive away;  Officer Rutan approached and the minor rolled down the window and told her she was okay and had found her aunt;  Humphries drove away arriving later at the home of the minor's grandmother where the minor unloaded the loot taken in the prior robberies and took it to her room, leaving a few items in the Honda, then drove the Honda to her own home on 67th Street in Los Angeles.

About 45 minutes later, the minor and Humphries returned to 15th and Santa Monica;  this time Humphries was driving another car, a black Nissan Sentra;  the minor rolled down the window and told Officer Baker, who had witnessed her contact with Officer Rutan, she had lost her I.D. card in front of an apartment building in the middle of the block between Santa Monica Boulevard and Broadway and wanted to pass through the cordoned-off area to retrieve it;  Officer Baker told her he could not permit them to enter the area because it was restricted, and asked them to come back later and he would be happy to help her look for her I.D. with his flashlight;  they left.

An hour later, the minor and Humphries returned in the black Nissan and asked Officer Baker if they could now go into the area beyond the control point on 15th Street;  he said no, they asked why, and he told them there had been some police activity at 16th and Santa Monica and police were looking for some people, whereupon the minor and Humphries left.

A short time later, Officer Rutan saw the minor and Humphries in the black Nissan and asked them what they were doing;  the minor told her they had come to find her lost identification card.

Meanwhile officers interviewed Herrera at UCLA Hospital, and found out that a Black female had been in the store just before the 7–Eleven robbery and was a possible witness.   Officer Baker then heard this on a radio broadcast;  the minor fit the general description and wore the distinctive clothing of the person described in the broadcast.

Fifteen minutes later the minor and Humphries returned in the black Nissan;  the minor asked Officer Baker what had happened and he replied he was not sure because he had been out on the street corner all night;  the minor again asked if she could go through so she could go to her aunt's house to retrieve her identification;  he told her no, but said he would help her look for the identification as soon as the restriction was lifted, then asked where her aunt lived;  the minor told him on the east side of 15th Street in the middle of the block between Santa Monica and Broadway;  it was raining and they discussed the rain, then, recalling the police broadcast and that a Black female had been mentioned, and beginning to suspect the minor and Humphries might possibly be involved in criminal activities, Officer Baker requested assistance.

At 2:45 a.m. Officers Bonar, Southern and Fred Rutan arrived at the corner of 15th and Santa Monica where Officer Rutan conducted a field interview.   Humphries and the minor were still seated in the Nissan;  Officers Southern and Rutan did not ask them to get out of the car and they did not do so;  the minor was not a suspect.   Officer F. Rutan asked the minor her name and address and what she and Humphries were doing there;  the minor told him she had returned from Los Angeles to retrieve a California identification card she had dropped or lost while talking to a friend in front of a liquor store at 15th Street and Santa Monica.   Officer Rutan conducted a thorough search of a 40 square yard area around the curb, sidewalk and parkway on 15th Street the minor had pointed to, and found nothing.   Meanwhile, Officer Southern talked to Humphries taking her name and address;  Humphries said she and the minor had been in the area looking for a friend's house where she had earlier visited, but did not know exactly where it was, but knew it was on 15th or 16th Streets south of Santa Monica, and she would recognize it.

All of the foregoing information was conveyed to Lieutenant Bonar who asked the officers to transport the minor and Humphries to the police station;  at no time, in the field or on the way to the station, did the officers ask them any questions concerning the 7–Eleven robbery although they were taken to the station “for questioning pertaining to the robbery/homicide at the 7–Eleven”;  no handcuffs were used;  the minor was not under arrest or in custody;  the officers did not necessarily consider them to be suspects in the robbery, but thought they might have been witnesses or might be trying to reach the crime scene to conceal or destroy evidence or in some way assist the culprits;  as the minor and Humphries were waiting to be interviewed, they were seated but not allowed to speak to each other;  they were offered food and water.

At 2:50 a.m., Detective Talbot spoke with the minor;  he asked her why she happened to be in Santa Monica;  she told him she came to visit a friend somewhere in the area of 16th Street and Santa Monica, and had lost her identification card while at her friend's house, she did not know the address but she could find the place if she went there and she was willing to go with the officers to try to find the house.   Then at the request of Detective Talbot, Officers Baker and Southern drove the minor and Humphries up and down the streets in the vicinity of the 7–Eleven;  the officers asked the minor to direct them to where her aunt lived, and asked Humphries to direct them to the friend's house where she had been;  they drove very slowly up and down 14th, 15th, 16th, and 17th Streets for 30 minutes with the spot light shining on the buildings but the minor never identified her aunt's house, and no identification was ever made by Humphries.

Meanwhile, Officers Rutan and Barbaro spoke with Humphries's sister and learned that Humphries's boyfriend was one of the three who had committed the robbery/homicide at 7–Eleven on Santa Monica Boulevard.   At 5:30 a.m. Officer C. Rutan went to Humphries's home in Los Angeles and impounded the burgundy Honda;  inside the Honda were a partially empty bottle of Donald Duck orange juice, a can of beef jerky, a package of Danish buns, some cassette tapes (Sam Goody robbery), some coins, an empty coin roll and pieces of paper.   The officers then suspected that the minor had been lying about her “lost” identification and began to suspect she was in some way connected with the 7–Eleven robbery/homicide, but still did not know what her involvement was.   It was then 6:00 a.m.

While at the station, the minor was offered food, which she declined, she slept some of the time with her head on a table and watched television the rest of the time.   She made no request to leave;  she did not ask for any relative, and said that Humphries was her aunt;  she was not placed in a cell, the room in which she waited was the detective briefing room in which were two large tables, several chairs and a television.

After further investigation of the 7–Eleven robbery/homicide, Detective Talbot spoke to the minor in the interview room at 1:39 p.m., at which time he advised her of her constitutional rights which she said she understood and waived, then took her statements;  “she seemed as though she wanted to cooperate,” and “I got the impression she wanted to tell me something to get it over with.”   The interview was recorded on video tape, and the video recording was played to the juvenile court sitting as the finder of fact at the adjudication hearing.   The minor admitted she was in the car that evening with Alexander, Carver and Dailey, and that she was aware they were armed and were committing robberies, and that her purpose in going into the 7–Eleven was to “case” the store.

The minor testified she was never handcuffed or put in jail, and Officer Talbot never told her she was under arrest;  she thought she was at the police station for questioning and she wanted to cooperate with the police;  she never asked to talk to her mother, father or any of her relatives;  she had told Officer Talbot that Humphries was her aunt, but Humphries was not, but she said so because Humphries was three years older than she;  Officer Talbot gave her a glass of water and was nice to her;  prior to giving statements to the police, she was not locked up in jail, handcuffs were never put on her, she was offered food but had no appetite, and she slept and watched T.V.

Officer Talbot then drove the minor to her home where he found and seized numerous items stolen during the robberies committed the night before (Dec. 7), and items worn or used during these robberies—among them, the fax machine and meat (Subway Sandwich robbery), two compact discs, two portable radio and cassette players and some Walkman radios (Sam Goody robbery), a large amount of cash, a metal box containing rolled coins, a Raider's jacket with hood, and a .9 mm. caliber bullet.

I

EFFECTIVE ASSISTANCE OF COUNSEL

Appellant contends she received ineffective assistance of counsel because her attorney failed to move to suppress her statements made at the police station on the ground the police lacked probable cause to take her into custody.   Thus, she argues, her statements and the subsequent search of her home were the fruit of an unlawful arrest.   She complains there was no tactical reason for counsel's failure to file such motion to suppress, and it is reasonably probable that a different result would have occurred had counsel properly done so.

The record does not support an order suppressing the minor's statements as the fruit of an unlawful detention or arrest;  such a motion would not have prevailed, and the minor's counsel must have known this.   Appellant's Fourth Amendment claim is not meritorious.

“To establish entitlement to relief for ineffective assistance of counsel the burden is on the defendant to show (1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel's failings.  (People v. Pope (1979) 23 Cal.3d 412, 425 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1];  People v. Fosselman (1983) 33 Cal.3d 572, 584 [189 Cal.Rptr. 855, 659 P.2d 1144];  see also Strickland v. Washington (1984) 466 U.S. 668, 687–696 [80 L.Ed.2d 674, 693–699, 104 S.Ct. 2052, 2064–2069].)”  (People v. Lewis (1990) 50 Cal.3d 262, 288, 266 Cal.Rptr. 834, 786 P.2d 892;  In re Cordero (1988) 46 Cal.3d 161, 180, 249 Cal.Rptr. 342, 756 P.2d 1370;  People v. Rich (1988) 45 Cal.3d 1036, 1096, 248 Cal.Rptr. 510, 755 P.2d 960;  People v. Ledesma (1987) 43 Cal.3d 171, 216–218, 233 Cal.Rptr. 404, 729 P.2d 839.)

“Where defense counsel's failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice.”  (Kimmelman v. Morrison (1986) 477 U.S. 365, 375 [91 L.Ed.2d 305, 319, 106 S.Ct. 2574, 2583].)

At the adjudication hearing her counsel was vigorous and forceful in his representation of the minor.   He filed written motions to exclude evidence pursuant to sections 352 and 402, Evidence Code, and thereafter argued the motions to the court.   After the taking of substantial testimony, he interposed numerous objections.   He sought to suppress her statements on grounds they were not voluntary, obtained in violation of her privilege against self-incrimination (Fifth Amendment) and her right to counsel (Sixth Amendment), and moved to suppress the physical evidence seized at the minor's house as the tainted fruit of coercive interrogation, all of which the court denied after hearing the testimony of Officers Shane Talbot and David Rynski and the minor, and oral argument.   He renewed these challenges on his motion for a new trial;  appellant does not do so here.

Appellant's present contention is without merit.   She has failed to demonstrate that a reasonably competent attorney would have moved to suppress the challenged evidence on the ground advanced on this appeal.   We think it clear she would not have prevailed on the motion.

Appellant and the dissent make much of an 11–hour detention, but the record fails to confirm the time;  the record does show that while she was detained at 3 a.m., the minor was under arrest supported by probable cause at 6 a.m.   At most, she was detained for three hours.

It is significant that trial counsel relentlessly and at length argued, on the issue of the voluntariness of her statements, that the minor had been under detention for 11 hours under the conditions adopted by the dissent, and that the trial court rejected the argument finding that voluntariness was “overwhelming” and “beyond a reasonable doubt that it was a voluntary confession.”   In doing so, the court referred to a case in which a minor was held seven and a half hours and for four hours was questioned constantly, and the confession was held to be voluntary “notwithstanding some rather rigorous interrogation.”   The trial court further commented, “I don't think—that this [the minor] comes close to that one in approaching involuntariness,” and again found beyond a reasonable doubt the minor's statements were voluntary.

 The trial court concluded, “What we have been talking about so far is a detention, which is illegal by virtue of its prolongation,” but whether the detention was illegal ab initio was not before it.   It is clear that, while recognizing there might be a question of the initial legality of the minor's detention, by concluding her statements were voluntarily made, the trial court in effect found that her detention was not illegal by virtue of prolongation.   Its finding is amply supported by the record.   Thus, the real issue before us is the initial legality of the minor's detention and arrest.

First, as on the prior occasions, the last time the minor went to the area of 7–Eleven, she voluntarily approached the officer and initiated conversation with him;  it was obvious she was trying to get as much information as she could.   She asked what had happened, then if she could go through to her aunt's house.   As she sat in the black Nissan conversing with Officer Baker, the officers had the right, under all of the circumstances, to ask the minor her name, address and what she was doing there.  (In re James D. (1987) 43 Cal.3d 903, 911–912, 239 Cal.Rptr. 663, 741 P.2d 161;  Wilson v. Superior Court (1983) 34 Cal.3d 777, 784, 195 Cal.Rptr. 671, 670 P.2d 325;  People v. Gallant (1990) 225 Cal.App.3d 200, 207, 275 Cal.Rptr. 50.)   This time she responded that she dropped her I.D. while talking to a friend in front of a liquor store at 15th and Santa Monica;  Officer Rutan immediately tried to help her find it with his flashlight, without success.   Up to that time, it was a “consensual encounter.”  (Florida v. Royer (1983) 460 U.S. 491, 497–498, 103 S.Ct. 1319, 1323–1324, 75 L.Ed.2d 229, 235–237.)   The combination of circumstances made the officers suspicious, and they transported the minor and Humphries to the station.   This, then, rose to the level of a detention.   It was then about 3 a.m.

 Second, circumstances short of probable cause to make an arrest may justify a police officer to temporarily detain an individual for questioning or other limited investigation.   Each case must be decided on its own facts.  (In re Tony C. (1978) 21 Cal.3d 888, 892, 148 Cal.Rptr. 366, 582 P.2d 957.)   A detention is reasonable under the Fourth Amendment if the circumstances known or apparent to the police officer would have caused any reasonable police officer to form an articulable suspicion that a person has committed, is committing or is about to commit a crime.  (Florida v. Royer, supra, 460 U.S. at p. 498, 103 S.Ct. at p. 1324;  In re James D., supra, 43 Cal.3d at p. 914, 239 Cal.Rptr. 663, 741 P.2d 161;  People v. Gallant, supra, 225 Cal.App.3d at p. 207, 275 Cal.Rptr. 50.)  “The reasonable suspicion necessary to justify a detention is measured solely by an objective standard.   [Citations.]  ‘Whether a Fourth Amendment violation has occurred “turns on an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time,” ․ and not on the officer's actual state of mind at the time the challenged action was taken.’  [Citations.]  Thus, following the enactment of Proposition 8 and pursuant to Lance W., the prosecution no longer has the burden of showing a police officer actually suspected the individual detained was involved in criminal activity.   Rather, the focus is on whether the officer's conduct was objectively reasonable.”   (People v. Lloyd (1992) 4 Cal.App.4th 724, 733, 6 Cal.Rptr.2d 105, fn. omitted, emphasis in original.)   Here it was objectively reasonable for the officers to suspect the minor was either involved in the 7–Eleven robbery/homicide or about to commit the crime of accessory after the fact, and detain her.

Five times the minor tried to penetrate the crime scene perimeter established by police to aid in apprehension of those who might be at large and to secure the evidence, and was turned away.   All of these approaches and interactions with police were voluntary and initiated by the minor.   The record shows the minor's initial presence ostensibly to wait for her “aunt,” the departure of Humphries and the minor in the burgundy Honda, their return 45 minutes later in a different car, a black Nissan, and repeated returns thereafter during a two-hour period;  her inconsistent excuses for insisting between 2:15 and 2:45 o'clock in the morning in the rain that she enter the area of the 7–Eleven store where she knew shots had been fired and there was ongoing police activity;  the search made by the police in the area she claimed she lost her I.D. which produced nothing;  and she fit the description of the young Black female who had entered the 7–Eleven just before the robbery.

A robbery and a murder had just been committed;  the police arrived at 7–Eleven within four minutes of Ongansing's 911 call, for which he gave his life, and the police immediately cordoned off the area to prevent the escape of any of the robbers who might be at large, to conduct an investigation and to secure evidence.   It was objectively reasonable for the officers to suspect the minor was involved in the robbery/homicide;  or was trying to interfere with the police investigation, or impede the apprehension of the robbers, or distract the officers by conversation or search for her “lost” I.D.;   or wanted to destroy or conceal evidence or aid the escape of the robbers.   Too, by her questions of the officers, it was apparent the minor was trying to find out all she could about the police activity at 7–Eleven.

Based on the foregoing, the officers acted reasonably in detaining the minor and removing her from the area while investigating the crime scene, and then later returning her with Humphries to assist the minor in finding the “lost” I.D. card, or the “friend's” house or the “aunt's” house.   They gave the minor every opportunity to substantiate her story for her reason for trying to penetrate the cordoned-off area, so that she could be released as soon as the officers' suspicions were allayed.  (Florida v. Royer, supra, 460 U.S. at p. 500, 103 S.Ct. at p. 1325.)   Such detention enables police to quickly determine whether the person detained is innocent of any wrongdoing and if so, to allow him to leave.   Placement in the police car did not ipso facto convert the detention into an arrest (In re Carlos M. (1990) 220 Cal.App.3d 372, 385, 269 Cal.Rptr. 447) nor, under the circumstances and the ongoing investigation at the crime scene, did the minor's transportation to the station.

The officers had not asked and did not ask any questions concerning the 7–Eleven robbery;  the minor was not under arrest and not in custody as such;  she was not handcuffed;  the officers thought she might have been a witness to the robbery/homicide, or might be trying to reach the crime scene to destroy or conceal evidence, or assist the perpetrators in some way by discovering evidence on the street that might link her or the three men to the crimes, or create a distraction to aid their escape.

 Third, when the minor, given ample opportunity, could not identify her “aunt's” house or her “friend's” house or locate her “lost” I.D. in the area of the 7–Eleven she was so anxious to enter, it became obvious to the officers that her presence there was far from innocent, and that she was lying about her “lost” identification card and using it as a ruse to enter the prohibited area.   She was returned to police headquarters but not released, for the officers at the station had learned that Humphries's boyfriend was one of the three who had participated in the 7–Eleven robbery/homicide, and a visit to her home revealed the parked burgundy Honda in which were items taken in the robberies.   The foregoing, in addition to the minor's persistent but futile efforts to enter the crime scene area, her conflicting reasons for insisting she be permitted to do so where she knew shots had been fired and there was ongoing police activity, the fact she fit the description of the Black female who was in the 7–Eleven just before the robbery/homicide and her false representation that Humphries was her aunt, then gave the officers a strong suspicion that the minor was involved, and while they did not know how she was involved, they thought at least as an accessory, if not, as an aider and abettor in the 7–Eleven robbery/homicide.   This elevated the minor's detention to an arrest (Dunaway v. New York (1979) 442 U.S. 200, 213, 99 S.Ct. 2248, 2257, 60 L.Ed.2d 824, 836) and constituted probable cause to arrest her.   “Probable cause has been generally defined as a state of facts that would lead a reasonable officer of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that a crime had been or is being committed.”  (People v. Mims (1992) 9 Cal.App.4th 1244, 1247, 12 Cal.Rptr.2d 335.)

We have found that the initial detention was legal and the arrest was supported by probable cause which fully distinguish this case from Brown v. Illinois (1975) 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416;  Dunaway v. New York, supra, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 and Taylor v. Alabama (1982) 457 U.S. 687, 102 S.Ct. 2664, 73 L.Ed.2d 314.   In each, evidence obtained following arrest was suppressed because the police lacked probable cause;  and in each the court held that the indirect fruits of an illegal search or arrest should be suppressed when they bear a sufficiently close relationship to the underlying illegality.  (New York v. Harris (1990) 495 U.S. 14, 19, 110 S.Ct. 1640, 1643, 109 L.Ed.2d 13;  see also, Wong Sun v. United States (1963) 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.)

 Even had there been a showing here that the initial detention was unlawful and the arrest was not supported by probable cause, appellant has failed to establish that her Fourth Amendment claim would have resulted in the suppression of her statement.   A voluntary statement obtained following an illegal detention is not automatically suppressed, but is admissible if it is shown that the connection between the illegality and the evidence subsequently obtained is so attenuated as to dissipate the taint (See United States v. Ceccolini (1978) 435 U.S. 268, 273–277, 98 S.Ct. 1054, 1058–1061, 55 L.Ed.2d 268;  Wong Sun v. United States, supra, 371 U.S. at p. 491, 83 S.Ct. at p. 419).

Our Supreme Court in People v. Boyer (1989) 48 Cal.3d 247, 256 Cal.Rptr. 96, 768 P.2d 610, gives us various factors to consider in this connection.   “The issue is whether ‘intervening events break the causal connection between the illegal [detention] and the [incriminating statement] so that the [statement] is “ ‘sufficiently an act of free will to purge the primary taint.’ ”  [Citations.]'  (Taylor v. Alabama [,supra,] 457 U.S. 687, 690, 102 S.Ct. 2664, 2667, 73 L.Ed.2d 314 ․, quoting Brown, supra, 422 U.S. at p. 602, 95 S.Ct. at p. 2261 ․, which in turn quotes Wong Sun v. United States [,supra ]․)  The important considerations are ‘[t]he temporal proximity of the [illegal seizure] and the [statement], the presence of intervening circumstances, ․ and, particularly, the purpose and flagrancy of the official misconduct.’  (Taylor, supra, 457 U.S. at p. 690, 102 S.Ct. at p. 2667 ․ quoting Brown, supra, 422 U.S. at pp. 603–604, 95 S.Ct. at pp. 2261–2262․)”  (People v. Boyer, supra, 48 Cal.3d at pp. 268–269, 256 Cal.Rptr. 96, 768 P.2d 610.)

The minor was advised of her constitutional rights and waived them;  she told police Humphries was her aunt giving them the right to believe a relative was there;  no coercion was used, no softening tactics;  her confession was free and voluntary and the trial court so found.   We conclude that the minor's statement was sufficiently an act of free will and that other circumstances were such as to purge any primary taint.

 A full examination of the record compels our conclusion that had the minor's counsel moved to suppress the evidence under section 700.1, Welfare and Institutions Code, the minor would not have prevailed.   Counsel cannot be faulted for not bringing futile or non meritorious motions.

II

FINDING ON COUNT 10 MINOR WAS ACCESSORY TO ROBBERY PROPER

Count 10 alleged that, having knowledge that a robbery had been committed by Alexander, Daily and Carver, the minor willfully harbored, concealed and aided them with the intent that they might avoid and escape arrest, trial, conviction, and punishment for said felony in violation of section 32, Penal Code.¹

 Appellant contends she cannot be found guilty of both the robbery and accessory to robbery because the offenses were mutually exclusive (see People v. Prado (1977) 67 Cal.App.3d 267, 273, 136 Cal.Rptr. 521), and that the very same acts which established her guilt of the robbery also established her guilt as an accessory.   She bases this on the premise that “[f]or purposes of determining liability as an aider and abettor, the commission of robbery continues so long as the loot is being carried away to a place of temporary safety” (People v. Cooper (1991) 53 Cal.3d 1158, 1169–1170, 282 Cal.Rptr. 450, 811 P.2d 742), and argues that thus, all of her post robbery conduct distracting the officers and attempting to enter the secured area constituted aiding and abetting the robbery.   For the purpose of determining liability as an accessory and on the record before us, appellant's point is not well taken.

First, appellant does not challenge the sufficiency of the evidence to sustain the finding of the juvenile court on the accessory count, in fact, her trial counsel told the court, “Count X:  Certainly, I think that in that count there is ample evidence to support that count.”   Nor on this appeal does she urge the insufficiency of the evidence to support the findings on any of the other nine counts.

Second, this case is neither Cooper nor Prado.   The court in People v. Riley (1993) 20 Cal.App.4th 1808, 25 Cal.Rptr.2d 676, placed Prado in proper perspective, “We agree with the Mouton [People v. Mouton (1993) 15 Cal.App.4th 1313, 19 Cal.Rptr.2d 423] court, that Prado should be limited to its facts (i.e., to cases in which the two convictions rest on the same acts), and that ‘[n]othing in section 32, defining accessories, suggests the Legislature intended as a matter of law to exclude those who, having perpetrated or intentionally assisted in the commission of a felony, then act further to harbor, conceal or aid the escape of another of the principals.’  [ (Id. at p. 1323, 19 Cal.Rptr.2d 423.) ]”  (People v. Riley supra, 20 Cal.App.4th at p. 1816, 25 Cal.Rptr.2d 676, emphasis in original.)

Third, our record demonstrates “evidence of complete divorcement between the [robbery] and a subsequent [accessory after the fact].”  (People v. Jaramillo (1976) 16 Cal.3d 752, 759, fn. 8, 129 Cal.Rptr. 306, 548 P.2d 706.)   The factual bases for the true findings on counts 2 (robbery of Ongansing) and 3 (robbery of Herrera), referred to herein as the 7–Eleven robbery, and the true finding on count 10 (accessory) was “distinct and independent.”   (People v. Mouton, supra, 15 Cal.App.4th at p. 1324, 19 Cal.Rptr.2d 423.)   “Here, (unlike Prado ) the conviction as a principal and the conviction as an accessory depend upon entirely different conduct․”  (People v. Riley, supra, 20 Cal.App.4th at p. 1814, 25 Cal.Rptr.2d 676.)

Fourth, the offenses of principal and accessory and the state of mind required to be found in each, are not mutually exclusive.  (People v. Riley, supra, 20 Cal.App.4th at p. 1813, 25 Cal.Rptr.2d 676;  People v. Francis (1982) 129 Cal.App.3d 241, 251–252, 180 Cal.Rptr. 873.)   As recognized in Prado, “The requisite intent to be a principal in a robbery is to permanently deprive the owner of his property.   Thus, this is a totally different and distinct state of mind from that of the accused whose intent is to aid the robber to escape.”  (67 Cal.App.3d at p. 273, 136 Cal.Rptr. 521.)  “Nothing prevents a person from harboring both intents;  the intents are different and not overlapping.”  (People v. Riley, supra, 20 Cal.App.4th at p. 1814, 25 Cal.Rptr.2d 676.)   And so it is with aiding a co-perpetrator to escape apprehension (People v. Mouton, supra, 15 Cal.App.4th at p. 1324, 19 Cal.Rptr.2d 423), helping another to avoid arrest (People v. Wallin (1948) 32 Cal.2d 803, 806–807, 197 P.2d 734), and destruction or concealment of physical evidence.  (People v. Riley, supra, 20 Cal.App.4th at p. 1815, 25 Cal.Rptr.2d 676.)   All of these are present in the evidence here.

Fifth, the minor actively participated as a principal in the robberies by accompanying Humphries and Carver, Dailey and Alexander in the burgundy Honda to the robbery scenes knowing they were armed and that a robbery would take place, by going into the business premises first in order to “case” them or to buy or pretend to buy items for the purpose of putting the intended victims at ease before the three armed men entered, by acting as a lookout and by assisting the three in their getaway.

The minor's activities as an accessory did not begin until after Carver was shot to death as he ran out of 7–Eleven, Alexander was shot in a nearby alley and collapsed and Dailey was found just off the alley hiding under a plant.   Each of these males was armed and had cash in his possession.   The foregoing occurred within minutes of the arrival of police and near the 7–Eleven store.   It was during this time the minor was walking down 15th Street, away from the robbery scene, upset and crying and told Officer Rutan she had heard weapons fire at 7–Eleven and was fearful for the safety of her “aunt.”   The record demonstrates that the robbery was complete for the purpose of determining liability, even as an aider and abettor, before Humphries joined the minor and they got into the Honda.   In any case, as an accessory, the minor's intent to be a principal in the 7–Eleven robbery was a totally different state of mind from her intent to conceal or destroy physical evidence, assist a principal to avoid arrest and aid any of the robbers to escape apprehension.

In this frame of reference, the minor, as an accessory, first removed and concealed physical evidence of the 7–Eleven robbery.   She immediately removed the burgundy Honda used in the robbery, from the 7–Eleven area in Santa Monica to Humphries's home on West 67th Street in Los Angeles, after stashing the loot from the earlier robberies at her grandmother's home.   This divorced Carver, Dailey and Alexander, as well as Humphries and the minor, from the burgundy Honda they had used to drive to 7–Eleven and in which they could have been seen by witnesses.   Further, having used the burgundy Honda in the robberies earlier in the evening, they could have been connected with those robberies through use of the Honda in the 7–Eleven robbery, and vice versa.   The minor's return to the area 45 minutes later was in an entirely different car—a black Nissan Sentra.   Second, the minor aided a principal in the 7–Eleven robbery avoid arrest by at all times referring to Katrina Humphries as her aunt.   From her first contact with the police (Officer Rutan) immediately after the robbery, each time she talked to the police, she concealed Humphries's identity and participation in the 7–Eleven robbery as the driver of the burgundy Honda.   At all times, the minor referred to Humphries as her aunt who lived near 7–Eleven.   Finally, the minor's repeated returns to the area, her conduct in distracting the officers by conversation and search for her “lost” I.D. and her persistent efforts to enter the secured area knowing of the ongoing police activity at 7–Eleven, amounted to attempts to assist those who might still be at large to escape apprehension and/or interfere with the police investigation.

The imposition of separate liability for these distinct and independent actions was proper, and we affirm all true findings on the petition.

DISPOSITION

The order is affirmed.

I respectfully dissent.

The issue here is whether law enforcement officers can detain a suspect for an 11–hour period while they seek to acquire sufficient probable cause to arrest that suspect.   Prior cases yield an obvious answer—no, they can't.   Indeed the maximum detention periods the courts allow are measured in minutes not hours.

Current constitutional interpretations allow officers to deprive citizens of their liberty in two circumstances.   If the officers possess enough evidence of guilt to qualify as “probable cause” they may place the citizen under arrest, generally a long term deprivation of liberty.   On the other hand, if they lack probable cause but have enough evidence to qualify as “reasonable suspicion” they may detain a citizen for a short period, generally for the purpose of conducting further investigation in quest of additional evidence which might supply probable cause.  (In re Tony C. (1978) 21 Cal.3d 888, 893, 148 Cal.Rptr. 366, 582 P.2d 957;  Terry v. Ohio (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889.)

The equation is straightforward.   A long term deprivation of liberty requires “probable cause,” a short term detention only “reasonable suspicion.”   But the question this case poses is how long is too long:  once officers possess reasonable suspicion and begin detaining a citizen, for how long may that detention continue.   In this case, the officers detained appellant and her friend, Katrina Humphries, at approximately 3 a.m. in the morning and took them to the police station.   They kept them under detention at the station until 1:30 p.m. the following afternoon.   Is a detention which lasts over 11 hours still a detention for constitutional purposes?

Since they represent an exception to the traditional constitutional requirement of full blown “probable cause,” the courts continually emphasize detentions must be brief.   Otherwise they become unconstitutional and any evidence procedured thereby is rendered inadmissible.  (People v. Gentry (1992) 7 Cal.App.4th 1255, 9 Cal.Rptr.2d 742.)   The constitutional test of brevity, in turn, requires the deprivation of liberty to be “reasonably brief under the circumstances.”  (United States v. Sharpe (1985) 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605.)

The courts have given content to what is “reasonably brief under the circumstances” by applying it to detentions of different lengths.   The lesson of these decisions is that “brief means brief.”   It does not mean “as long as it takes to obtain evidence to arrest or convict.”   Thus, courts have permitted detentions as long as 20 or 30 minutes (United States v. Sharpe, supra, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 [20–minute detention at scene reasonable where officers suspected suspect's vehicle carried contraband and officers proceeded diligently to confirm that suspicion];  In re Carlos M. (1990) 220 Cal.App.3d 372, 269 Cal.Rptr. 447 [30 minutes sufficiently brief when used to transport defendant to hospital for rape victim to identify];  People v. Gorak (1987) 196 Cal.App.3d 1032, 242 Cal.Rptr. 307 [20–minute detention in police car sufficiently brief when used to determine whether suspect was under influence of intoxicants].)   My research has not uncovered any case allowing detentions longer than a half hour, however.   On the other hand, detentions far shorter than the one in this case have been ruled to have exceeded the outer boundaries of reasonable brevity.   (People v. Gentry, supra, 7 Cal.App.4th 1255, 1266, 9 Cal.Rptr.2d 742 [three and one-half hour seizure was not a detention but an arrest]).

Duration is not the only constitutional limitation on detentions.   They also are limited in scope and purpose.  (In re James D. (1987) 43 Cal.3d 903, 914, 239 Cal.Rptr. 663, 741 P.2d 161.)   Officers are not allowed to transform an on scene detention into a custodial investigation at the station house.  (Dunaway v. New York (1979) 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824;  In re Dung T. (1984) 160 Cal.App.3d 697, 206 Cal.Rptr. 772.)   Yet this is precisely what the officers did in the instant case.   They arguably possessed grounds for reasonable suspicion.   This justified the initial brief detention at the scene when the officers questioned appellant and Humphries in the police car.   But it did not justify taking them in custody and transporting them to the police station.   Nor, of course, did it justify keeping them there for an additional 11 hours.

Respondent suggests appellant was not being detained while at the police station.   According to some of the officers' testimony, she was free to leave.   It is not what the law enforcement officers intended that counts, however, but what the suspect reasonably perceived to be her status.   A defendant is deemed to be in custody “if the suspect is physically deprived of [her] freedom in any way or is led to believe, as a reasonable person, that [she] is so deprived.”  (Green v. Superior Court (1985) 40 Cal.3d 126, 133–134, 219 Cal.Rptr. 186, 707 P.2d 248, italics added.   See also People v. Stansbury, 4 Cal.4th 1017, 1050, 17 Cal.Rptr.2d 174, 846 P.2d 756, Berkemer v. McCarty (1984) 468 U.S. 420, 442, 104 S.Ct. 3138, 3151, 82 L.Ed.2d 317.)

In any event, the claim appellant was not in custody and was free to leave seems a bit disingenuous given the realities of the situation.   Appellant was a 15–year–old girl, placed into a police car and transported to a precinct station in a distant neighborhood.   She had no automobile or other way of getting home.   The officers separated appellant and her friend.   The precinct assigned an officer to be with appellant at all times and to prevent her from speaking with this friend.   Respondents presented no evidence anyone in the precinct station advised appellant she was free to go or invited her to make a telephone call to obtain transportation.   They didn't even attempt to place her in contact with a parent or other guardian.   While it is true none of the officers were interrogating her during this time, it was apparent they were in the process of accumulating more evidence to determine whether to do so.   Under these circumstances, any 15–year–old—and probably any adult—would have considered themselves in custody.   And they would have been right.

During oral argument respondent's counsel relied principally on an alternative contention.   He argued the officers actually possessed sufficient evidence of appellant's guilt to qualify as “probable cause” during the time they were detaining her.   Thus, assuming appellant's detention to have passed beyond the boundaries of a “detention” and become an “arrest,” it still would be constitutional.

The problem with this position is the dearth of evidence the officers possessed at the time they converted this restraint on appellant's liberty from a short term “detention” into a “custodial investigation” by transporting her in a police vehicle to the precinct station.   What respondent claims in retrospect constituted “probable cause” seems very flimsy.   First, respondent points to the fact appellant returned to the barricade and asked the reason and when it would be removed.  (In this she was demonstrating a curiosity I suspect many patrons of this store and passersby alike would share.   One of the officers actually had suggested she return if she wanted to look for her lost identification.)   Second, a witness had said a black female was in the store a few minutes before the robbers and appellant is a black female.  (This is a description she shares with several hundred thousand other Los Angeles citizens.)   Finally, appellant gave different excuses for hanging around the barricade.   She was looking for her “aunt,” but when she found the “aunt,” she was looking for her identification that she thought she had left in the store but could not find with the help of the officers.

While these circumstances might qualify as “reasonable suspicion” for a brief on-site detention for purposes of questioning and other investigation, they fall far short of “probable cause” for an arrest.   If this is enough for “probable cause,” anyone who appears at a crime scene after the crime and is of the same sex and race as someone who was there a few minutes before the crime occurred and who gives more reason than one for being at the scene is eligible to be arrested, handcuffed and jailed.   That, I submit, is a dangerous precedent.  (It is true the officers did not handcuff and jail appellant, but that was because they were only “detaining” her.   Respondent is suggesting they had enough for “probable cause” and thus for an arrest.   If the courts hold this flimsy showing satisfies the “probable cause” requirement, then in the future that showing will support a full-fledged arrest and all its consequences—including handcuffs, jail, fingerprinting, booking, and all the rest.)

Respondent further argues the officers gained “probable cause” by 6 a.m. when they learned appellant's friend, Katrina Humphries, was the girl friend of one of the robbers they had arrested earlier.   There are two problems here.

First, this additional “evidence” came too late to justify this detention.   Appellant already had been in custody for three hours, far beyond the time periods ever found sufficiently brief to qualify as a detention.  (See cases cited and discussion on p. 2 ante.)   Evidence discovered after the detention begins, and certainly that which is discovered after the legitimate detention period is exceeded, cannot retroactively justify the initial detention on the grounds the new evidence constitutes probable cause for an arrest.

Second, this item of evidence added little to implicate appellant as a participant in this crime.   All it showed was appellant was a friend of a girl friend of one of the likely perpetrators.   This kind of attenuated connection gives “guilt by association” a bad name.  “Reasonable suspicion” maybe—if combined with the other three items.   But “probable cause”?   I seriously doubt it does.   That again would be a dangerous precedent.¹

Finally, respondent argues the officers were justified in detaining appellant to prevent her from returning to the scene and destroying evidence.   If this was a genuine concern, the officers should have secured the crime scene and prevented entry.   The detention exception to the probable cause requirement of the Constitution does not allow law enforcement to detain without probable cause and for long periods of time any and all citizens they think might destroy evidence if not held in custody.   If they have probable cause, officers can arrest a suspect and thus, among other things, deprive him or her of the opportunity to destroy evidence.   But without probable cause they cannot detain someone 11 hours—or anything approaching that period—merely because they have some suspicion that person otherwise might eliminate some evidence.

One can only shudder at the consequences of a contrary interpretation of the detention exception to the probable cause requirement of the United States Constitution.   After all, anyone about whom there is that minimal quantum of evidence of guilt, reasonable suspicion, can be deemed a possible threat to get rid of incriminating evidence if given the chance.   Consequently, under respondent's interpretation, nearly anyone who could be detained a few minutes for purposes of investigation of their guilt could be detained for hours or days to prevent them from getting free and destroying evidence of that guilt.   The detention exception could thus swallow the general rule probable cause is required for long term deprivations of liberty.

Because of these several concerns about the constitutional implications of the majority opinion, I feel compelled to dissent.

FOOTNOTES

1.   Section 32 provides, “Every person, who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory to such felony.”

1.   The majority opinion also argues an alternative ground for its result.   Assuming the detention was unlawful, the majority argues, the statement appellant gave was still admissible because “the connection between the illegality and the evidence subsequently obtained is so attenuated as to dissipate the taint.”  (Opn. at p. 479–480.)   While I feel this is a much closer question than the legality of an 11–hour detention, I am not convinced the connection between illegality and statement was so attenuated.   Actually, it was not attenuated at all.   The statement was elicited in immediate “temporal proximity” to the illegal detention and while appellant, a 15–year–old girl, was still “softened up” from a jailhouse detention that stretched from the wee hours of the morning to the middle of the next afternoon.   An 11–hour detention without probable cause is “flagrant” misconduct and there were no intervening circumstances.   The majority opinion cites evidence indicating this qualifies as a “voluntary” as opposed to “coerced” confession.   But that is a very different issue from whether the illegal detention infected appellant's statement and rendered it inadmissible, “voluntary” or not.

LILLIE, Presiding Justice.

FRED WOODS, J., concurs.