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PEOPLE v. MICHAEL ALLEN

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Court of Appeal, Second District, Division 2, California.

The PEOPLE of the State of California, Petitioner and Respondent, v. MICHAEL ALLEN J., a minor, Appellant.

Cr. 35892.

Decided: September 12, 1980

George Deukmejian, Atty. Gen., Beverly K. Falk, Deputy Atty. Gen., Los Angeles, for respondent People. Shan K. Thever, Torrance, for appellant.

Michael Allen J., a minor, was declared a ward of the court (Welf. & Inst.Code, § 602) pursuant to findings that he brought a handgun upon the grounds of Venice High School (Pen.Code, § 626.9) and that he attempted to murder Diann Smith (Pen.Code, §§ 664, 187).   He was committed to the California Youth Authority for a period not to exceed three–and–a–half years.

FACTS

On the morning of 26 April 1979 Robert Spencer, a teacher at Tri–City Boys Center, instructed one of his students, Sean M. to drive to Venice High School and pick up breakfast for his classmates.   Sean was joined by two other students, Bryce G. and co–minor Frank C.   When they arrived at Venice High School the Tri–City students were accosted by a group of 13 to 20 Venice High School students who harassed them about a gang–related matter.   When the Tri–City youths attempted to leave the Venice campus, the Venice students dragged Frank from Spencer's vehicle and beat him up.

When the Tri–City youths were finally permitted to leave, they drove to the residence of their friend Lavelle M. and his brother, Michael J., the minor at bench.   Michael and Lavelle joined Frank, Bryce, and Sean in Spencer's vehicle, and the group headed back towards Venice High School to seek revenge for Frank's beating.   En route they stopped to pick up a .38 caliber gun, and to let out Sean, who said he did not want to participate.   The remaining persons decided that the one who ran the fastest should carry the gun, which they then handed to Michael.   Bryce was to park the vehicle in an alley for the getaway.

About 10:30 a. m., Robert Kladifko, a Venice High School assistant principal, and James McCluskey, a school security agent, observed Michael, Frank, and a third person, (apparently Lavelle) approach a gate of the parking lot.   The invaders turned and walked away before they reached the gate.   Four or five minutes later they returned and “rushed the gate.”   Michael, standing in the middle, pulled a handgun from under his clothing, leaned his arms across the top of the fence, and fired four or five shots directly at a group of students standing between the gate and a campus building.   One of the bullets struck a student, Diann Smith, causing a neck wound which required 17 stitches.

Hearing the shots, security agent McCluskey immediately advanced toward the gate, identified himself, drew his own weapon, and ordered the intruders to freeze.   Michael turned and pointed his gun at McCluskey, prompting McCluskey to fire a shot at him.   Michael and his companions then jumped the fence and ran across Venice Blvd.   McCluskey also jumped the fence, and again ordered the invaders to freeze.   Michael turned and again pointed his gun at McCluskey, and McCluskey fired a second shot at him.   The three then split up.   McCluskey followed Michael down an alley and again ordered Michael to freeze.   Michael stopped and again pointed his gun at McCluskey, who fired a third round and then ducked behind a fence.   Michael disappeared.   McCluskey ran into the street and stopped a passing police officer.   The three suspects were eventually apprehended.   That afternoon a police officer found the gun concealed under an oil cloth on a table outside a house about five blocks from the high school.

The three youths were transported to the Venice Police Station, where Frank and Michael were interviewed by Officer William Ellis.   After receiving his Miranda rights, Michael told Ellis he and his companions had gone back to the high school to get the persons who beat up Frank.   When they were near the school, he took the gun, which another person had pulled from under the car seat, and placed it in his waistband.   When he and his friends approached the school grounds they saw some of the persons they thought might have participated in the earlier beating.   Michael then thought he saw one person in the school crowd reach into his pocket.   Thinking that person had a gun, Michael fired all the bullets in his gun.   Michael claimed he did not intend to hit anyone when he fired the gun, and that he had aimed “down” or “at the ground.”

On appeal, minor asserts as grounds for reversal:  (1) erroneous admission of the tape recording of Frank's conversation with Detective Ellis, (2) insufficiency of evidence that he brought a gun onto the Venice High School grounds, and (3) involuntariness of his confession to Ellis.   The People assert the juvenile court erred in setting Michael's maximum period of confinement at three–and–a–half years.

DISCUSSION

 1. Minor contends he was prejudiced by the admission into evidence of the taped statement of co–minor Frank, whose petition for wardship was adjudicated in a joint hearing.   Specifically, minor argues that Frank's taped statement contained references implicating him.   Because minor's counsel agreed that the tape recording would not be transcribed, it is impossible to determine at this juncture precisely how much of the tape was played.   However, the referee specifically stated he had stopped playing the tape because he could not understand what Frank was saying and that whatever comments he did hear did not contain any references which implicated the minor Michael.   Minor's contention that he was prejudiced by the playing of the tape is without substance.

 2. Minor next contends there was insufficient evidence to support the juvenile court's finding that he brought a handgun onto the Venice High School grounds.  (Pen.Code, § 626.9.)   Robert Kladifko, the school's vice principal, testified that the spot where minor was standing when he fired the gun was technically part of the school's grounds and that nearby was a sign warning against trespass on school grounds.   Further, the evidence clearly shows that when minor fired the gun, his arms were extended over and inside the school gate, and that he jumped a second school gate in leaving the campus.   We think the evidence more than sufficient to support the juvenile court's finding that minor brought a gun onto the grounds of Venice High School.

 3. Minor asserts his confession to Ellis was not voluntary, and that therefore Ellis should not have been permitted to testify about it.

Minor first argues that before he was interviewed by Ellis, he was placed in a holding cell at the Venice Police Station when he should have been take to a probation officer (Welf. & Inst.Code, § 626(c)), and that his placement in a holding cell also violated the proscription against detaining a juvenile in a “jail or lock up.”  (Welf. & Inst.Code, § 207(a).)   But Welfare and Institutions Code section 625 authorizes a peace officer to take a minor into temporary custody if the officer has reasonable cause to believe that the minor has committed a crime.  Welfare and Institutions Code section 626 states that a minor who has been taken into temporary custody must subsequently be either released or taken to a probation officer.   A minor believed to have committed a misdemeanor must be delivered to the probation officer within 24 hours.   Nothing in these provisions denied the police an opportunity to conduct a reasonable investigation into the shooting to determine whether the minor should be released or detained.   Minor's interview with Ellis commenced about 1:45 or 2 p. m.   From the record it is not apparent when the minor was taken into custody, but since the shooting occurred about 10:30 a. m., minor could not have been in custody more than three hours when he was interviewed by Ellis.   Further, minor was not “detained” as that term is used in section 207(a), but was merely restrained under temporary custody.   Nothing in the record suggests any unreasonable delay on the part of the police in delivering the minor, who was believed to have committed several felonies, to a probation officer.

 Minor also contends there is no indication in the record he was informed of his right to make two phone calls (Welf. & Inst. Code, § 627(b)), or that his parents were notified about his temporary custody prior to the time of his interview with Ellis.  (Welf. & Inst.Code, § 627(a).)   Welfare and Institutions Code section 627(b) does not require advice about the right to make phone calls but merely establishes the right to make such calls.   There is no indication in the record that minor requested an opportunity to make phone calls or that he was denied his right to do so.   Welfare and Institutions Code section 627(a) requires the police to notify a minor's parents when the minor is taken “before a probation officer at a juvenile hall or to any other place of confinement.”   The focus of this provision is upon permanent detention at a juvenile hall or elsewhere, and not upon temporary custody at a police station.   Until the police officers have exercised their discretion under section 626 to take the minor to a probation officer and not release him, section 627(a) has not been violated.   Moreover, absent any request by a minor to speak to his parents, the failure of police to notify parents before an interview does not render a minor's confession involuntary.

 Finally, while admitting that Ellis had advised him of his Miranda rights, that he understood his rights, and that he agreed to waive them, minor contends he did so only because during the time he was in the holding cell four officers threatened that if he did not talk “they would talk to the judge and see that [he got] 14 years.”   When cross–examined, minor was unable to answer even the most elementary questions about the officers' physical appearance, such as their clothing, the presence of weapons, or the color of their hair and eyes.   His testimony was not credible.

After considering all evidence on the voluntariness of minor's confession, “including having heard the tape of the actual Miranda admonitions given to [minor] and his responses and tone of voice in response thereto” the referee found “beyond a reasonable doubt that [minor's] waivers and statement were freely and intelligently and voluntarily made.”   Our independent review of the record convinces us that the trial court's conclusion was correct.  (See People v. Jimenez (1978) 21 Cal.3d 595, 606, 608–609, 147 Cal.Rptr. 172, 580 P.2d 672.)

 4. The People contend the juvenile court erred in fixing minor's maximum period of confinement at three–and–a–half years, and argue that the order should specify as a maximum period of confinement the six–year upper term for assault with intent to commit murder.   The juvenile court does not have discretion to determine a minor's maximum term of commitment to the California Youth Authority, and it must designate as the maximum period of confinement the upper term applicable to adults who commit the same crime.   (Welf. & Inst.Code, § 726;  In re James A., (1980) 101 Cal.App.3d 332, 161 Cal.Rptr. 588;  In re Eugene R., (1980) 107 Cal.App.3d 605, 618, 166 Cal.Rptr. 219.)   The upper term for attempted murder is nine years.   (Pen.Code, § 664(1).) However, where there is no evidence of attempted murder except that which shows an assault with intent to commit murder, a defendant is entitled to receive the lower sentence for the latter crime.   (Pen.Code, § 217;  People v. Montano (1979) 96 Cal.App.3d 221, 158 Cal.Rptr. 47.)   The upper term for assault with intent to commit murder is six years.   Any additional commitment for bringing a gun onto school grounds would violate the proscription against double punishment for a single course of conduct.  (Pen.Code, § 654.)   Accordingly, minor's commitment order must be modified to reflect the maximum term for assault with intent to commit murder.

The order of commitment to the Youth Authority is modified to recite that the minor's maximum period of confinement may not exceed six years.   In other respects the order is affirmed.

FLEMING, Associate Justice.

ROTH, P. J., and BEACH, J., concur.

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