IN RE: Dennis Arthur MEDINA

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Court of Appeal, Third District, California.

IN RE: Dennis Arthur MEDINA, a Person Coming Under the Juvenile Court Law. Warren E. THORNTON, Probation Officer of the County of Sacramento, Plaintiff and Respondent, v. Dennis Arthur MEDINA, Defendant and Appellant.

Civ. 11567.

Decided: November 08, 1967

Kenneth M. Wells, Public Defender, by Michael Sands, Asst. Public Defender, Sacramento, Code sections 192 (Manslaughter), 245 (Assault with a Deadly Weapon), and 484 Thomas C. Lynch, Atty. Gen., by Edsel W. Haws and Raymond M. Momboisse, Deputy Attys. Gen., Sacramento, for respondent.

By petitions filed in the juvenile court of Sacramento County under section 602 of the Welfare and Institutions Code, appellant Dennis Medina, a minor aged 15 years, was charged with violations of Penal Code sections 192 (Manslaughter), 245 (Assault with a Deadly Weapon), (Theft of Revolver); and with a violation of Vehicle Code section 10851 (Automobile Theft). At his hearing, which commenced September 16, 1966, appellant, represented by the public defender admitted the revolver theft but denied the manslaughter and vehicle theft charges. The assault charge was dismissed on the motion of the probation officer.

The court found that appellant had stolen the automobile and revolver; and had been guilty of involuntary manslaughter in that on August 28, 1966, he ‘unlawfully killed Yolanda Gonzales, * * * without malice, involuntary [sic], without due caution and circumspection * * *.’ Appellant was again declared a ward of the juvenile court and was committed to the Youth Authority.1

On this appeal appellant attacks only the finding of involuntary manslaughter. He contends that his extrajudicial oral admissions given to sheriff's officers, and a highly incriminating statement he had given the district attorney, all of which had been received in evidence at the hearing over the objection of his counsel, cannot be utilized to support the finding of involuntary manslaughter and that without them the record does not support that finding.

Section 701 of the Welfare and Institutions Code describes in detail the method of conducting a hearing of the kind here under review under the California Juvenile Court law: ‘At the hearing, the court shall first consider only the question whether the minor is a person described by Sections 600, 601, or 602, and for this purpose, any matter or information relevant and material to the circumstances or acts which are alleged to bring him within the jurisdiction of the juvenile court is admissible and may be received in evidence; however, a preponderance of evidence, legally admissible in the trial of criminal cases, must be adduced to support a finding that the minor is a person described by Section 602, * * *.’ Concerning the meaning and operation of this section in a proceeding under 602, the court in In re Castro, 243 Cal.App.2d 402, at page 411, 52 Cal.Rptr. 469, at page 4274 said:

‘Thus, by the well-considered and specific provisions of the code section regulating the receipt of evidence at the hearing, the trial court is directed to permit all evidence which bears on the question whether the minor is a person described in section 602 of the Welfare and Institutions Code, but at the same time the court is specifically prevented from making a finding of wardship in a case of this kind unless there is a preponderance of evidence to that effect, which would have been legally admissible on the trial of a criminal case of this kind. All evidence bearing on the questions at issue is admissible by the express provisions of the section, but the utilization of the evidence by the court is strictly controlled. In determining whether Castro should be named as a ward of the court, it was essential that the judge completely disregard all of the evidence relative to confessions to the police officers, because such confessions would not have been legally admissible on the trial of the case if a criminal charge against Castro had been brought in the adult court. There remains, therefore, the question whether entirely apart from this excluded evidence there was a preponderance of evidence legally admissible on the trial of an adult criminal in a case of this kind, which showed the commission of crime by Castro.’ (Emphasis added.) (See also In re Acuna, 245 Cal.App.2d 388, 53 Cal.Rptr. 884; In re Buros, 249 A.C.A. 61, 57 Cal.Rptr. 124.)

By the specific language of the statute and under its interpretation and application in the cases cited, the evidence concerning the statements made to officers and to the district attorney by appellant were admissible at this hearing even though, as is claimed, they would have been inadmissible under the strict rules of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. However, in determining the sufficiency of the evidence to sustain the challenged finding of guilt of involuntary manslaughter, the court was bound to ignore the evidence as to such statements if they would have been, under the facts here, inadmissible under Miranda. We hold they were inadmissible.

For convenience we will state the facts relevant to the manslaughter charge apart from those facts contained in appellant's statements. About 8:30 p. m. on August 28, 1966, appellant called at the Sacramento home of a 15-year-old female acquaintance, Yolanda Gonzales. Yolanda joined him outside the family residence. Fifteen minutes later, while standing in front of her home with appellant, Yolanda was fatally shot. A .22 caliber bullet entered beneath her chin and pierced her brain. There were no powder burns; this indicated the firearm had been discharged when two or more feet from her head. Seconds later, Yolanda's father found appellant holding the wounded girl. No gun was visible in appellant's hand. Appellant said that a passerby, a Negro youth, had shot her; appellant then gave chase on his bicycle. With considerable embellishment as to details of the alleged assailant's appearance, appellant repeated his story to a deputy sheriff who had arrived at the scene to investigate the shooting before Yolanda was taken to the hospital, where she died a number of hours later. Before she died, the girl said that she did not know who shot her and that she and appellant had not been quarrelling. About 10:15 p. m. on the night of the shooting, Inspector Stamm and Detective Tobler of the sheriff's office went to the victim's home to talk to appellant, who was still there. They testified they wanted to talk to appellant because they felt the information he had given earlier as to the infliction of the wound that killed Yolanda might be false. Stamm stated that before he and Tobler went to the scene to interview appellant they had concluded—based on the earlier investigative reports—that appellant was responsible for the shooting and they wanted to investigate further. He stated further that they had not made up their minds yet to arrest him. When Stamm and Tobler arrived at the Gonzales' residence, Tobler searched a flower bed of a home next door and found a .22 caliber revolver. The cartridge chambers contained one empty shell. Ballistic tests were inconclusive that this was the death weapon. There was no evidence as to whether the gun had been recently fired before its discovery. No fingerprints were on it. It had a four-pound trigger pull on single action and over a ten-pound pull on double action and could not be accidentally fired. After Tobler found the revolver in the neighbor's flower bed, Stamm went to the victim's home and asked appellant to step outside.

The remaining facts in the case, relative to the charge of manslaughter, are derived from statements thereafter obtained from appellant. We turn now to these facts and to the manner in which the statements were obtained.

Inspector Stamm brought appellant out in front of the victim's home. He, Tobler and appellant were the only ones present. (The record does not reveal any attempt having been made to contact appellant's parents, though the officers were aware that appellant was 15 years old. It appears that an effort to locate his parents would have been successful.) As appellant stood with Stamm and Tobler at the scene of the shooting, Tobler showed him the revolver which had just been found in the flower bed. Then, according to Stamm, appellant was advised of his rights. Stamm read from a ‘pocket slip—with the listing of constitutional rights—on it per accordance with the Miranda decision.’ As Stamm read the contents of the pocket slip to appellant, he explained them. This pocket slip was not offered in evidence. Stamm and Tobler testified that appellant was notified of his right to remain silent and his right to the presence of a retained or appointed attorney at the interview, but there was no showing that appellant was warned by the officers that any statement he made might be used as evidence against him as required by Miranda. Stamm testified that what appellant told them was ‘voluntary’ and that he had not yet been arrested. Stamm said that they ‘wanted to advise him of his rights because we felt it was fair and that it would come to light, which it did.’ The record contains no explanation as to why the ‘slip,’ a copy of which appears to have been given to appellant at that time and retained by him, was not introduced in evidence. But it appears that the document was one prepared for use to comply with Miranda requirements.

Over objection by appellant's counsel predicated on nonwaiver, Stamm and Tobler were permitted by the court to testify that, following the reading and signing of the advisement slip, appellant was asked if he wanted to talk to the officers and replied that he had accidentally shot Yolanda. He was then arrested and placed in the officers' car, where he told them that he did not mean to shoot the girl; that it was an accident; that he did not know the gun was loaded; that he had been playing with the gun and had asked Yolanda if she wanted to see it, at which point it ‘just went off.’

While he was out in front of the victim's home, appellant asked for permission to talk to her family. He was not permitted to leave the vehicle, but one of the officers went to the house and brought Yolanda's sister to the car. Appellant asked her to tell Yolanda to write to him. Then, as her sister testified, ‘the detective told him to tell me the situation.’ She stated that appellant replied, ‘I'm sorry, but it was an accident, the gun went off. Tell Yolanda ‘I'm sorry.” About 12 o'clock the night of the shooting, appellant was taken to the sheriff's office, deputy district attorney was summoned, and a statement was taken which was introduced in evidence over objection. This statement had been reduced to writing. It has taken commencing shortly before midnight and about one and one-half hours after appellant had been arrested. There were present the appellant, the deputy district attorney, Inspector Stamm and Detective Tobler, and a statement reporter. Appellant's parents were not there. Substantially appellant's statements as reflected in the transcript amounted to this: that he had not meant to shoot Yolanda; that he thought he had taken all the ammunition out of the gun while talking to the girl; that he did not know the gun was loaded; that he pointed the gun up and pulled the trigger twice while he was hugging Yolanda; that it fired the second time he pulled the trigger; and that he immediately threw the revolver away.2

Turning now to admissibility under Miranda, it is to be noted that the record is unclear as to the extent of the warning given by the sheriff's officers when they interviewed appellant prior to his being taken before the district attorney's deputy. The oral testimony as to the warnings given omitted the element concerning warning that anything he stated to the officers might be used in evidence against him. But the officers testified that they read to him a slip and retained a copy thereof. Nevertheranda type warnings,' and that these were explained to him and that he signed the slip and retained a copy theerof. Nevertheless, the warning slip was not introduced in evidence and we do not know what it contained. Going next, however, to the warnings given by the deputy district attorney, they complied with Miranda requirements. In any event as to all of the statements, the crucial question is as to waiver and it was upon this distinct ground that appellant's trial counsel placed his objections. We think it clear there is no proof of waiver. This boy was fifteen years of age, as was known to all concerned, he was without the aid of his parents and stood alone. He must have been without knowledge that he was facing adversaries preparing for an adversary proceeding. He had been a ward of the court for several years, had dealt with officers, including probation officers and their staffs, under proceedings statutorily designed to gain his confidence and to establish complete and friendly rapport. The deputy taking his statement, although complying with the requirements of Miranda, so far as is concerned the warnings to be given, laid no stress upon the question of whether or not he should waive. Having given the warnings, he proceeded immediately to ask for appellant's story, which appellant gave him. The record will not permit a conclusion that there was a knowing, intelligent, and considered waiver by appellant. There is no showing that appellant had any appreciation of the import of his constitutional rights, and it is affirmatively shown that no reasonable opportunity to reflect upon the advisability of waiver was afforded appellant. (See Miranda v. State of Arizona, supra, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; People v. Hill, 66 A.C. 531, 58 Cal.Rptr. 340, 426 P.2d 908.)

The question as to whether or not wardship, under section 602 of the Welfare and Institutions Code should be declared, is addressed in the first instance to the trier of fact, the judge of the juvenile court presiding at the hearing. On appeal we do not substitute our evaluation of the evidence for that of the trial court. We search the record to see whether or not there is substantial evidence in support of the determination made by that court. (In re Acuna, supra, 245 Cal.App.2d 388, 393, 53 Cal.Rptr. 884.) In the case before us the question is whether or not appellant acted with ‘due caution and circumspection.’ (Penal Code sec. 192, subd. 2.) In order to impose criminal liability for a homicide caused by negligence, “there must be a higher degree of negligence than is required to establish negligent default on a mere civil issue. The negligence must be aggravated, culpable, gross, or reckless, that is, the conduct of the accused must be such a departure from what would be the conduct of an ordinarily prudent or careful man under the same circumstances as to be incompatible with a proper regard for human life, or, in other words, a disregard of human life or an indifference to consequences.” (People v. Penny, 44 Cal.2d 861, 879, 285 P.2d 926, 937.) ‘The facts must be such that the fatal consequence of the negligent act could reasonably have been foreseen. It must appear that the death was not the result of misadventure, but the natural and probable result of a reckless or culpably negligent act.’ (People v. Penny, supra, at p. 880, 285 P.2d at p. 937.) In People v. Rodriguez, 186 Cal.App.2d 433, at page 440, 8 Cal.Rptr. 863, at page 868, the court said: ‘Criminal liability cannot be predicated on every careless act merely because its carelessness results in injury to another. * * * The act must be one which has knowable and apparent potentialities for resulting in death. Mere inattention or mistake in judgment resulting even in death of another is not criminal unless the quality of the act makes it so. The fundamental requirement fixing criminal responsibility is knowledge, actual or imputed, that the act of the accused tended to endanger life.’ Aside from appellant's statements, this record is barren of proof that the conduct of appellant measures up to the tests laid down in the cases cited. The fact of fatality alone will not support an inference that death was caused by criminal negligence.

The judgment is reversed as to involuntary manslaughter. In all other respects the judgment is affirmed.

FOOTNOTES

1.  It appears that appellant was and for sometime had been a ward of the juvenile court. It further appears that he had received supervision from the probation office, including a stay at the Sacramento County Boys' Ranch from which institute he had graduated several months before the occurrence of the incidents with which we are here concerned.

2.  The following are excerpts from the written statements made to the deputy district attorney and the two officers:‘Q. [By the deputy]: Dennis, my name is Tom Bell, I'm with the District Attorney's Office. This is Bob Gainsley over here, a statement reporter, and you know Inspector Stamm here, he already talked to you, I guess. I want to show you this form here, that has been shown to you, right? And is that your signature there? A. (Nodding head affirmatively). Q. The Inspector went over that with you and told you what your rights were? MR. STAMM: Dennis, would you show him the slip in your pocket, also, that will go along with this? (Note: The witness produced a small yellow slip of paper.) MR. BELL: Q. Now, you understand what these rights are, don't you, Dennis? I'm here to find out what your side of the story here is in this case and I'm ready to listen to you, and you've already been advised and I want to readvise you again that you've got a right to remain silent, you dont't have to talk to us if you don't want to. You've got a right to have an attorney present, either one of your own choice, or you can have the court appoint you one and have him present before or during any questioning about this particular incident, and if anything—if you say anything it can and will be used against you in a court of law, and in your case a juvenile court since you are fifteen years old. Now, with that in mind I'd like to ask you some questions about this case and to get your side of the story. Do you understand these rights? A. Yeah. Q. Would you still like to tell us your side of the story? A. I didn't mean to shoot her. Q. Well, what exactly happened? About what time did you get over to her place tonight? A. Well, about eight o'clock, something like that. * * * Q. And what did you do when you first got to her house? Did you meet her outside or—A. Outside. Q. Where, in the front yard? A. Yes. Q. Had you called up and said you were coming over? A. (Shaking head negatively). Q. You just drove over there? A. (Nodding head affirmatively). A. Did you drive or walk? A. On a bike, I was on a bike. * * * Q. Have you been going with this girl quite some time? A. About three and a half months. * * * Q. Well, what were you talking about? Did you have an argument or a fight or anything like this? A. I didn't even know it was loaded. Q. Well, what did you do, take it out and—did she ask you—did she notice the gun on your person, or did you say, ‘I've got a gun’ and went to show it to her? A. Yeah, I wanted to show it to her. Q. How did that come up? * * * A. I said, ‘I've got a gun, I'd like to show it to you.’ Q. What did she say? A. She didn't say nothing. * * * Q. You pulled it [the trigger] two times, the second time it shot? A. (Nodding head affirmatively). (Appellant stated the gun was pointed up, that Yolanda was away? A. We were together, like this, you know. I was hugging her. * * * Q. What were you pulling the trigger for? A. I don't know. * * * Q. Well, now you say you pulled the trigger twice and the second time it went off? A. (Nodding head affirmatively). * * * A. What was your reason—A. (Interrupting) I didn't think it was loaded. * * * Q. What did you do after it went off? A. Threw the gun like this and then her father came out. Q. What did he say? A. He said, ‘What happened?’ Q. What did you tell him? A. I said some colored guy went by and shot her. Q. Why did you tell him that? A. I don't know. * * * Q. Well, did you show the officers where the gun was right away? A. (Shaking head negatively). Q. You told them about this colored fellow? A. (Nodding head affirmatively). * * * Q. What kind of a description did you give them of the colored fellow? A. Green and white sweater, black pants and white tennis shoes. Q. About how tall? A. About five seven, five eight. Q. About how many pounds? A. About a hundred and twenty-five, something like that. Q. What color hair? A. Black. Q. What color eyes? A. No eyes. Q. What? A. I don't know. Q. (By Stamm): What did you give them in regard to the description of the hair? A. He had a big old—he had long hair. * * * combed back in the back and then this was sticking out, the way they have it. Q. That's the way they're wearing it now? A. (Nodding head affirmatively). * * * Q. You told them (Officers) about the colored boy, how soon is right away? A. Just like that. Q. Just like that? Yon gave them a description of the colored boy and—did you tell them where he went to? A. No. No, her father said, ‘Who was it?’ and I said, ‘It was a colored guy,’ and he starts saying, ‘Can you describe him?’ and I said, ‘Yeah.’ Q. And then you gave him a description of the colored boy? A. (Nodding head affirmatively). Q. How long of the colored boy that you told them you actually shot her accidentally? A. About ten minutes later. [The questioning here turns to the acquisition by appellant of the gun and it appears that he had gotten the gun about four months before, out of a car; that he got it out of the locked glove compartment by jimmying the compartment; that another boy was with him; that the two had stolen the car; that in addition to the revolver they had found a shotgun in the trunk of the car which they had taken out by means of breaking into the trunk compartment through the back seat; that the other boy took the shotgun and appellant took the revolver; that when appellant obtained the revolver it was loaded; that additional revolver ammunition was found and taken by appellant; that about two weeks before Yolanda was killed appellant had fired the revolver by shooting at targets.] Q. Well, had you checked the gun, Denny before you went over there this evening? A. (Nodding head affirmatively). Q. How many shells did it have in it, as best you can recall? A. It had about three. Q. Three sells in it? How many times did you pull the trigger over there when you were hugging this girl? A. One time. Q. One time? A. One or two times. Before that * * * I took all the bullets out, and then I didn't know if it was loaded or not. Q. Where did you take the bullets out? A. Right by her. Q. * * * Where did you put the bullets, in your hand or your pocket? A. My pocket. Q. Did you give the bullets to the officers? A. I threw them away. * * * Q. Well, when did you clear the revolver? When did you take the shells out? A. Right after I started talking to her. Q. How did you take the shells out? A. With my fingers.'

VAN DYKE, Associate Justice pro tem.

FRIEDMAN, Acting P. J., and REGAN, J., concur.