IN RE: DANA M.

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

IN RE: DANA M., A Person Coming Under the Juvenile Court Law. The PEOPLE of the State of California, Petitioner and Respondent, v. DANA M., Minor, Appellant.

Cr. 38385.

Decided: September 01, 1981

Wilbur F. Littlefield, Public Defender of Los Angeles County, Kenneth I. Clayman, Mark Borden, Jack T. Weedin, Jr., and Henry J. Hall, Deputy Public Defenders, for minor/appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Robert F. Katz and Jane M. Began, Deputy Attys. Gen., for petitioner and respondent.

Appellant Dana M., a minor, appeals from an order declaring him a ward of the juvenile court (Welf. & Inst.Code, § 602) and placing him on probation in the home of his foster mother following a finding that he had received stolen property (Pen.Code, § 496).

FACTS :

Dennis Averill's home in Long Beach was burglarized on January 18, 1980.   Missing from Averill's safe, which had been pried open with a screwdriver, were numerous coins, including three rolls of silver dollars and a variety of silver coins valued at $250.   Averill mentioned the burglary to Bob Foster, who owned a coin shop in Long Beach, and described the coins taken.   The two men had been doing business with each other for some 15 years.

A few days after the burglary, Dana, then 15 years old, entered Foster's Coin Shop and offered for sale two New Zealand half crowns, one 1953 New Zealand crown, and one Greenland brass coin.   As similar crowns had been taken during the burglary of the Averill home, Foster became suspicious and, on the pretext of having to look up the value of the coins, pressed a silent alarm.   When an officer responded, Foster told him he suspected that the coins the minor had offered for sale had been taken in a recent burglary.   The officer then took Dana outside and, after talking to him, arrested him.

At the police station, following advisement and waiver of his constitutional rights, Dana told Sergeant Jones that he had received the coins from one Charlie Farrell and knew them to be stolen.

ISSUES ON APPEAL :

Dana claims his confession was inadmissible because it was the product of an illegal detention.   He argues that he was detained at the police station for 22 hours, in violation of the statutory directives on the processing of minors who have been taken into custody by a police officer.   He also contends his confession was inadmissible because it was made after the police had failed to honor his request to see his foster mother, and because the police failed to inform him of his statutory right to make two telephone calls while in custody (Welf. & Inst.Code, § 627).

DISCUSSION :

The facts relevant to Dana's contention of an improperly long detention at the police station are as follows:

Dana's arrest occurred at 11:20 a. m. on a Friday.   He was booked at 11:30 a. m. at the juvenile division of the Long Beach Police Station.   There, Officer Richard K. Jones, assigned to the juvenile burglary detail, did not question Dana until 10 a. m. the next day, Saturday.   The officer testified he was unable to question Dana sooner because he did not get the burglary report until late Friday afternoon, shortly before his shift ended at 5:30 p. m., after which time no investigating officers were available in the juvenile division of the police station.   Also, he did not receive Dana's arrest report until 7 a. m. on Saturday and was unable to question Dana before 10 a. m. that day because of his involvement in other investigations and his handling of administrative duties.   After his confession, Dana was released into the custody of his foster mother, who came for him at the police station.

 Welfare & Institutions Code section 626 1 provides that after taking a minor into temporary custody, the police must decide whether (a) to release the minor outright, (b) to release the minor subject to his appearance before the probation officer, or (c) to take the minor before the probation officer “without unnecessary delay.”   Dana contends his 22-hour detention at the police station was in violation of section 626, subdivision (c).   We note that, following questioning, Dana was released directly into the custody of his foster mother, not the probation officer.   In any event, even if subdivision (c) were applicable here, it did not render Dana's confession inadmissible, as we shall discuss below.

Based on facts essentially similar to those presented in this case, this court (Div. Five) recently held in In re Michael E. (1980) 112 Cal.App.3d 74, 79, 169 Cal.Rptr. 62, that section 626, subdivision (c) was violated when the minor was detained by the police for some 16 hours before he was turned over to the probation officer.   In both In re Michael E., supra, and the present case, the arrest was effected by members of the Long Beach Police Department.   In In re Michael E., the minor was arrested on a Friday at 8:30 p. m. and taken to the juvenile section of the Long Beach Police Station, where he was questioned at noon the following day, after which he was turned over to the probation department.   The investigating officer in that case gave the following reasons for the delay in questioning the minor:  he did not get the minor's arrest report until 10 a. m. Saturday;  only two investigating officers were on duty on Saturdays;  and those officers were responsible not only for numerous other investigations, for which they had to study the arrest reports, but also for carrying out various administrative duties.   Based on those facts, the court held that the sole purpose for the delay in turning the minor over to the probation department was to question the minor.   Delay for the sole purpose of questioning, the court noted, citing various cases, had been held to be “unnecessary.”   Though the court held the 16-hour detention to be a violation of section 626 subdivision (c), it concluded the minor's confession was nevertheless admissible because of California's rejection of the rule followed in the federal courts that any confession obtained during an illegal detention is inadmissible, and because the minor was not challenging the validity of his initial arrest.   As in In re Michael E., there is no attack on the validity of the initial arrest in this case.   Moreover, at bench, the amount of time which passed before the minor's release did not itself make the detention unlawful.   The controlling statutes (Welf. & Inst.Code §§ 626 and 631) suggest that confinement up to 24 hours and 48 hours respectively is authorized in appropriate circumstances.

 We now turn to Dana's contention that his confession was inadmissible because it was obtained after the police had failed to honor his request to see his foster mother.   This, Dana argues, was tantamount to denying him his right to remain silent and therefore an impermissible violation of his constitutional rights as set forth in Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.)

Miranda, of course, requires that before commencing interrogation, the police must advise the suspect of four particular elements concerning his right to remain silent and to have the assistance of counsel.  (In re Roland K. (1978) 82 Cal.App.3d 295, 299, 147 Cal.Rptr. 96.)   After setting down these warnings, the Miranda court elaborated on the procedure subsequent to the giving of such warnings, as follows:  “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.  [Fn. omitted.]  At this point he has shown that he intends to exercise his Fifth Amendment privilege;  any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise․  If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.”   (Id. at pp. 473–474, 86 S.Ct. at 1627–28, 16 L.Ed.2d 694, 723.)   Dana argues that any time a minor requests to see a parent he is invoking his constitutional rights under Miranda.   In support, he cites People v. Burton (1971) 6 Cal.3d 375, 99 Cal.Rptr. 1, 491 P.2d 793, and In re Roland K., supra, 82 Cal.App.3d 295, 147 Cal.Rptr. 96.

In People v. Burton, supra, 6 Cal.3d 375, 99 Cal.Rptr. 1, 491 P.2d 793, the court held that the defendant's request to see his parents, made just prior to the commencement of interrogation and at a time when the defendant's father was at the police station, constituted an invocation of his Fifth Amendment rights.   In In re Roland K., the minor asked to see his parents after he had just been advised of his Miranda rights.   At bench, Dana testified he had asked to see his foster mother two hours or so after he had been taken into custody.   An officer, whom Dana could not identify, told him, “No.”   This does not indicate some intentional effort to wrongfully keep the minor incommunicado.   To the contrary, the record shows that in fact his mother had been told at 4:30 p. m. the day of his arrest that he was at the jail and that she could come and get him in the morning.   Later at 1 a. m. Dana asked the night officer, “Could I call my mother?   When is my mother going to come pick me up?”   The officer responded, “Just shut up and wait until in the morning.”   Irrespective of the seemingly curt responses, the minor's requests, one made two hours after being taken into custody and the other at 1 a. m., had nothing to do with any questioning either then going on or about to begin.   There is no evidence of any connection of these requests to the eventual questioning.   They were not a “cry for help” in interrogation.   There were no further requests by the minor to call or see his mother or anyone else after the inquiry by him at 1 a. m.

It was not until about 10 a. m., some nine hours after the 1 a. m. inquiry by the minor regarding calling his mother and her picking him up, that anyone sought to question the minor concerning the offense.   He was first fully advised of his Miranda rights and after a waiver thereof questioned.   At that time the minor did not ask to see his foster mother or anyone else.   Nor did he do so immediately before the questioning or ever after the Miranda warning had been given.   Nothing in the record shows that the minor's request to see his foster mother was ever made to anyone who interrogated him or whom he thought was about to interrogate him.

This case is clearly distinguishable from the situation in In re Roland K., supra, 82 Cal.App.3d 295, 147 Cal.Rptr. 96, relied on by Dana.   There, the minor's request to call his parents was made after he had been advised of his constitutional rights, unlike the situation at bench, and thus could be deemed an invocation of the minor's privilege against self-incrimination.   Also distinguishable is People v. Burton (1971) 6 Cal.3d 375, 99 Cal.Rptr. 1, 491 P.2d 793, the other case relied on by Dana.   In Burton, the defendant's request to see his parents was made just prior to questioning.   Here, Dana's request to call his mother was not made “at or near the inception of interrogation”, as it was in Burton (Id. at p. 383, 99 Cal.Rptr. 1, 491 P.2d 793.) but instead some nine hours prior to any advisement of Miranda rights.   These factors, coupled with the fact that Dana in asking to call his mother told the officer he wanted to know when his mother was going to pick him up, demonstrates that Dana's request to call his mother was not a desire to ask for advice or help in how to conduct himself with the police, and thus not a manifestation of his intention to assert his privilege to remain silent.   The request to call his mother was in this case totally unrelated to the questioning and made many hours before the questioning began.   Being so removed in time from the advisement of his rights under Miranda, the request cannot reasonably be regarded as an implied invocation of the right to remain silent or as an implied request not to speak until after the opportunity to confer with his mother.

 Dana further contends that his confession was inadmissible because the police violated his rights under section 627, subdivision (b), which provides that an arrested minor must be permitted two telephone calls while in custody, to “his parent or guardian, a responsible relative, or his employer, and another call completed to an attorney.”   Dana testified he was not advised of his right to make two telephone calls.   His testimony was not controverted.   Officer Jones testified he did not advise Dana of his statutory right to make telephone calls.   Nothing in the record indicates that some other officer so advised Dana.

Dana claims “the effect of a violation” of section 627, subdivision (b) was discussed by the court in In re Michael E., supra, 112 Cal.App.3d 74, 169 Cal.Rptr. 62.   Not so.   The court in In re Michael E. never reached the merits of the minor's claim.   In that case, the minor contended that he should have been informed of his statutory right to make a phone call to his attorney and that had he been so informed he would have reached an attorney and would have been advised not to make any statements to the police.   In disposing of the contentions, the court said:  “While this argument poses a novel issue, we cannot reach it on the record before us which, as noted, is silent on whether Michael was advised of his right to a phone call and inconclusive on whether a call was made or attempted.”  (Id. at p. 80, 169 Cal.Rptr. 62.)   A claim such as that presented in In re Michael E. is not being made by the minor in this case.   His entire “argument” on the issue consists of the bare claim that the denial of his right to place two telephone calls rendered his confession inadmissible.   He makes no showing whatsoever that the denial of that right induced him to make the confession at issue here.   Dana, therefore, is not entitled to the relief he now seeks.   Of course, if the mandatory requirements of the statute in question are to be meaningful, some standard of enforcement is necessary apart from a showing of prejudice by the person alleging a violation of the statute.   The Legislature has provided for this in subdivision (b) of the statute, as follows:  “Any public officer or employee who willfully deprives a minor taken into custody of his right to make such telephone calls is guilty of a misdemeanor.”   Obviously, this provides some deterrent to ensure compliance with the statute.  (See People v. Stoner (1962) 205 Cal.App.2d 108, 113–116, 22 Cal.Rptr. 718, dealing with a violation of a similar statute (Pen.Code, § 851.5) and its effect on the defendant's confession.) 2

Although the minor's confession was properly received into evidence, even without the confession the other evidence was so ample and sufficient as to leave no reasonable doubt that the minor committed the offense of knowingly possessing the stolen coins.

The judgment is affirmed.

FOOTNOTES

1.   Further statutory references in this opinion are to the Welfare and Institutions Code.

2.   Since the detention in this case, the statute (Welf. & Inst.Code § 627(b)) now requires the custodial officer to advise the minor and within one hour of the right to make the telephone calls.   The Long Beach Police Department should adopt a standard operating procedure to assure compliance with this section as well as the general policy of prompt disposition of juvenile matters.

BEACH, Associate Justice.

ROTH, P. J., and FLEMING, J., concur.