IN RE: ALBERT R.

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Court of Appeal, Second District, Division 1, California.

IN RE: ALBERT R., a Minor. The PEOPLE, Petitioner and Respondent, v. ALBERT R., a Minor, Appellant.

Cr. 34622.

Decided: June 06, 1980

Paul A. Turner, Encino, under appointment by the Court of Appeal, for appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Juliet H. Swoboda and Cynthia Sonns Waldman, Deputy Attys. Gen., for petitioner and respondent.

The juvenile court sustained petition (Welf. & Inst.Code, § 602) charging the minor with receiving stolen property and grand theft. He appeals from order of commitment to the California Youth Authority. The sole appellate issue is the admissibility of his extrajudicial statement.

We view the evidence in a light most favorable to the findings of the juvenile court (In re Dennis B., 18 Cal.3d 687, 697, 135 Cal.Rptr. 82, 557 P.2d 514). In April of 1978 a brown 1976 two-door Volkswagen sedan was stolen from Eric Rosenberg. In August of 1978, California Highway Patrol Officer Ortiz received information that a silver Volkswagen, then in the possession of James Hackett, had been sold to Hackett by appellant and was possibly a stolen vehicle on which the vehicle identification number (VIN)[FN1] had been switched with that of another vehicle.

Hackett purchased the Volkswagen from appellant on May 23, 1978, for $1,500, at which time appellant told him that he “had owned the car four years.” After examining the vehicle, Officer Ortiz concluded that it was a disguised stolen automobile, a “bellypan switch” had been effected and the VIN plate in the luggage compartment had been removed. Officer Ortiz subsequently traced the VIN number on the bellypan and the license number on Hackett's vehicle to a Volkswagen registered to appellant; later he traced the engine identification number on Hackett's vehicle to the engine number for the stolen Rosenberg Volkswagen. Rosenberg subsequently positively identified the automobile in Hackett's possession as the one which he had reported stolen.

On January 2, 1979, after attempting to locate appellant for several months, Officer Ortiz received information that appellant was at his girl friend's house; he proceeded there and waited; when appellant left, Officer Ortiz had a black and white patrol car stop and arrest him.

Appellant did not take the stand, but his aunt testified that in March 1978 he had a Volkswagen fall on his head and thereafter he had blackouts and appeared to be in a daze.

Concerning the extrajudicial statement of appellant, Officer Ortiz testified that appellant was arrested at 6:45, and shortly thereafter on the freeway in the back seat of the patrol car, he read to appellant his Miranda rights; appellant said he understood them; asked by Officer Ortiz if he wished to answer questions regarding the case without an attorney present, appellant responded “he didn't have anything to add or to say.”;[FN2] at this point Officer Ortiz immediately ceased all efforts to talk to appellant and discontinued questioning him; during the next hour he transported appellant to the highway patrol station where he was fingerprinted and photographed, then to the county jail where he was booked; he had no intention of questioning appellant or “of seeing if he would later make a waiver.”

En route to the highway patrol station there was some conversation between them, “just talking”; there was no intention of eliciting any incriminating responses from him; the conversation was “just chitchat with him”; at the patrol station appellant was photographed and fingerprinted. Officer Ortiz then transported appellant to the county jail for booking because he was 18; at no time did he decide to attempt to start interrogation or to attempt to probe information concerning the offense from appellant; his conversation with appellant was only chitchat and he made no attempt to “soften him up” in any way; they were “just talking back and forth”; appellant asked him “what was going to happen once we went to county jail”; Officer Ortiz explained “that he would be booked; that he would be in county jail for a while; that subsequently we would file charges; that he would go to court”; Officer Ortiz talked about appellant's background, about his record, and told him he wasn't very smart because he kept getting caught, “he was just a terrible person,” not very bright at that because he kept committing crimes and kept getting caught and his big mistake and the way they caught him this time was having the same girl friend and returning to her; referring to and “basically talking about his background,” he said “That was a cold thing you did to Jim Hackett, selling him that hot car”; this statement was made in the same tone and in the same manner that he was testifying in court, basically conversational and not intended to have a question mark at the end in “a question type fashion,” and it was “just conversation”; appellant said “Yes, but I made the money last. I'm using the last of it now.”

“Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” (Miranda v. Arizona (1966) 384 U.S. 436, 473-474, 86 S.Ct. 1602, 16 L.Ed.2d 694.) At the outset, in stating to Officer Ortiz that he didn't have anything to say or to add, appellant expressed his unwillingness to discuss the case with Officer Ortiz “at that time” (People v. Randall, 1 Cal.3d 948, 956, 83 Cal.Rptr. 658, 464 P.2d 114); and clearly invoked his right to remain silent. (People v. Fioritto, 68 Cal.2d 714, 718-719, 68 Cal.Rptr. 817.) Having done so, appellant was entitled to and in fact did have all interrogation efforts cease (People v. Pettingill, 21 Cal.3d 231, 240-241, 145 Cal.Rptr. 861, 578 P.2d 108; People v. Enriquez, 19 Cal.3d 221, 238, 137 Cal.Rptr. 171, 561 P.2d 261; People v. Superior Court (Keithley) 13 Cal.3d 406, 410, 118 Cal.Rptr. 617, 530 P.2d 585), as well as any new efforts of Officer Ortiz to get him to communicate with him about the case. (People v. McClary, 20 Cal.3d 218, 226, 142 Cal.Rptr. 163, 571 P.2d 620.)

1 However, even though appellant was in custody he had the option to change his mind and voluntarily make a statement (People v. McClary, 20 Cal.3d 218, 226-227, 142 Cal.Rptr. 163, 571 P.2d 620) and if he made a statement and “ ‘such (statement was) the result of (his) own initiative and did not arise in a context of custodial interrogation.’ ” (People v. Randall, 1 Cal.3d 948, 956, fn. 7, 83 Cal.Rptr. 658, 663, fn. 7, 464 P.2d 114, 119, fn. 7), it is not proscribed by Miranda.

In support of his objection to the admissibility of appellant's statement, his trial counsel advanced a “softening up” argument based on People v. Honeycutt, 20 Cal.3d 150, 141 Cal.Rptr. 698, 570 P.2d 1050, and the position that the conversation was “accusational.” Thus the juvenile judge had to determine the factual issue of whether or not appellant's statement was the result of a “softening up” process and whether or not it was made in the context of custodial interrogation. He heard the testimony of Officer Ortiz, and although appellant did not testify, he still had to determine the credibility of the witness, resolve any factual conflict in his testimony, weigh the evidence and draw factual inferences therefrom. This he did,[FN3] and found that appellant's statement was voluntary; we agree. On appeal all presumptions favor the proper exercise of the power of the trial judge to determine credibility and weigh the evidence; the lower court's findings, express or implied, must be upheld if supported by substantial evidence. (In re Dennis B., 18 Cal.3d 687, 689, 135 Cal.Rptr. 82, 557 P.2d 514; In re Roderick P., 7 Cal.3d 801, 808-809, 103 Cal.Rptr. 425, 500 P.2d 1.)

The situation herein simply is not similar to that in People v. Honeycutt, 20 Cal.3d 150, 141 Cal.Rptr. 698, 570 P.2d 1050. After his arrest Honeycutt was not advised of his Miranda rights; officers engaged him in a discussion about the victim degrading him as a homosexual for the express purpose of trying to get defendant to talk, in fact the officer testified “ ‘It was my duty to continue the efforts to try to get him to talk. And I was successful in it.’ ” (p. 158, 141 Cal.Rptr. p. 702, 570 P.2d p. 1054); three hours after his arrest Honeycutt was advised of his Miranda rights after he indicated he would talk about the homicide. Clearly the conversation was intended by the officer to elicit a confession from the very inception of the conversation, and Honeycutt's decision to waive his Miranda rights was induced prior to being given the Miranda admonitions. We cannot hold in the case at bench that there was any intention on the part of Officer Ortiz to “soften up” appellant[FN4] or that he made any statements to him or conducted himself in any manner that could be characterized as a “softening up” process.

Nor was appellant's statement made in the context of custodial interrogation. Officer Ortiz had not been interrogating appellant concerning the case, nor did he ask appellant if he wanted to or if he would discuss it. He made a flat statement during conversation concerning appellant's background and record. Appellant's statement was volunteered at a time when no query was made of him and when no process of interrogation intended to elicit inculpatory statements had commenced. It was admissible as a volunteered statement. (People v. McDaniel, 16 Cal.3d 156, 172, 127 Cal.Rptr. 467, 545 P.2d 843; People v. Randall, 1 Cal.3d 948, 955, 956, fn. 7, 83 Cal.Rptr. 658, 464 P.2d 114; People v. Tremayne, 20 Cal.App.3d 1006, 1019, 98 Cal.Rptr. 193.)

The juvenile court's finding that appellant's statement was voluntary and not the result of any subtle attempt to elicit incriminating statements is based on substantial evidence. We will not disturb the finding. (People v. McDaniel, 16 Cal.3d 156, 172, 127 Cal.Rptr. 467, 545 P.2d 843; Griffin v. Superior Court, 26 Cal.App.3d 672, 697, 103 Cal.Rptr. 379.)

The judgment is affirmed.

I dissent.

I disagree with the majority's conclusion that defendant's statement to the police officer an implied confession was a voluntary statement and not made in violation of defendant's Miranda rights. In my view the majority's opinion ignores reality and pays lip service only to the defendant's constitutional rights.

Here we have a situation in which defendant made it clear to the officer that he did not want to talk by responding to the Miranda advisement in unqualified language that “he didn't have anything to add or to say.” And yet within approximately one hour of defendant's exercise of his constitutional privilege, Officer Ortiz and defendant engaged in a conversation en route to Los Angeles County Jail. The officer testified that although he could not remember who started this conversation, it might have occurred because he told defendant what would happen to him in the jail, either spontaneously or in response to defendant's inquiry.

In the course of that conversation, Officer Ortiz asked defendant where he had been during the months Ortiz had been looking for him. He told defendant that the latter's “big mistake and the way he got caught was having the same girlfriend and returning back to her.” Officer Ortiz continued “telling him that he wasn't very smart because he kept getting caught” and that “he had been a terrible person.” Officer Ortiz then stated, “(t)hat was a cold thing you did to Jim Hackett, selling him that hot car, to which appellant responded, ” (y)es, but I made the money last. I'm using the last of it now.“

1 By indicating that he had nothing to say to Officer Ortiz, defendant clearly invoked his right to remain silent. (People v. Fioritto (1968) 68 Cal.2d 714, 718-719, 68 Cal.Rptr. 817.) At that point, further conversation concerning his arrest or the charges against him should have ceased. (People v. Enriquez (1977) 19 Cal.3d 221, 237-238, 137 Cal.Rptr. 171, 561 P.2d 261.) Officer Ortiz' continued discussion with defendant amounted to interrogation calculated to result, as it in fact did, in the procurement of an inculpatory statement. (See People v. Honeycutt (1977) 20 Cal.3d 150, 159, 141 Cal.Rptr. 698, 570 P.2d 1050.)

I fully recognize that in denying the motion to exclude the statement, the trial court stated: “It certainly doesn't appear from what's been testified to that there was any subtle or psychological attempts to get this minor to attempt to talk further about this matter, and there were statements made, nothing further. He did not elicit any responses. Any responses given would have to be voluntary.”

Although we must view the uncontradicted evidence in the light most favorable to the order denying exclusion (In re Dennis B. (1976) 18 Cal.3d 687, 135 Cal.Rptr. 82, 557 P.2d 514), I must conclude that the trial court's ruling was erroneous. Its characterization of the officer's statement as not “subtle or psychological attempts to get this minor to attempt to talk further” is true. There was nothing subtle about the officer's statements to defendant. They were blatantly and flagrantly accusatorial and designed to obtain inculpatory statements from defendant. To characterize them as mere “chitchat” does violence to the whole purpose of Miranda and tends to eviscerate the underlying rationale of Miranda.

The majority's efforts to distinguish the instant case from Honeycutt, supra, lack persuasiveness and substantiality. The only difference is that in Honeycutt, the officer was honest enough to admit in his testimony that he was seeking to get the Honeycutt defendant to talk. In the case at bench, the officer's purpose was exactly the same; he simply didn't admit on the stand that such was his purpose. But the language used by Officer Ortiz can lead one to only one conclusion that his purpose was exactly the same as was the officer's purpose condemned in Honeycutt. The result, therefore, should be the same.

I turn next to a consideration of the standard by which the effect of the error herein involved will be considered as prejudicial or not. This standard looks to the question of whether the illegally obtained statement is tantamount to a confession or constitutes a mere admission. “A confession is defined as ‘a complete and express acknowledgement of the crime charged’ (citation), a statement in which the defendant ‘disclos(es) his guilt of the charged offense and exclud(es) the possibility of a reasonable inference to the contrary.’ ” (People v. Maynarich (1978) 83 Cal.App.3d 476, 481, 147 Cal.Rptr. 823, 826.) A confession erroneously received in evidence is deemed to be prejudicial per se and requires a reversal regardless of the other evidence of appellant's guilt. People v. Disbrow (1976) 16 Cal.3d 101, 115-116, 127 Cal.Rptr. 360, 545 P.2d 272.) Since the substance of defendant's statement in this instance impliedly admitted the elements of the crimes of which he was charged, it amounted to a confession.

I would reverse the order of wardship.

FOOTNOTES

1.  In a 1978 Volkswagen, the VIN number is found in two places: on a plate, referred to as a VIN plate riveted in the luggage compartment, and stamped into the bellypan of the vehicle which is located underneath the rear seat. The “bellypan switch” is one method used to disguise stolen vehicles.

2.  . In neither the court below nor on this appeal has appellant ever contended that he invoked his right to counsel. He asserts herein that his “inculpatory statement was made after he had asserted his constitutional right not to be questioned.” Thus it is clear that the only right appellant claims he invoked was the right to remain silent.

3.  The judge said: “It certainly doesn't appear from what's been testified to that there was any subtle or psychological attempts to get this minor to attempt to talk further about this matter, and there were statements made, nothing further. He did not elicit any responses. Any responses given would have to be voluntary.” The judge did properly find the facts and apply the law accordingly. Referring to Honeycutt, the judge said: “That's the law, and what we're concerned about is whether the facts occurring here can have that law applied to them and I don't find that to be the case. (P) On the basis of what is before me, I would have to characterize what was said as chitchat or it was getting close to the kind of problems that you raise, but I don't think it ever got there, not at this stage.”

4.  . Appellant was no naive inexperienced youth. He was over 18 and had previous police contacts; the officer discussed with him his “background” and “record” and it is apparent appellant had prior experience with police.

LILLIE, Associate Justice.

HANSON, J., concurs.