IN RE: MIGUEL L.

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Court of Appeal, Second District, Division 5, California.

IN RE: MIGUEL L., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. MIGUEL L., Defendant and Appellant.

Cr. 38623.

Decided: November 13, 1981

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Carole Morita, Deputy State Public Defender, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and Jesus Rodriguez, Deputy Attys. Gen., for plaintiff and respondent.

The juvenile court found appellant guilty of burglary and declared him a ward of the court pursuant to Welfare and Institutions Code section 602.

On December 17, 1979, the home of Mr. and Mrs. Ross in Whittier was burglarized, and five or six rifles and shotguns were taken.

On January 19 and February 8, 1980, Sergeant Anaya interviewed another minor, Arnaldo G. about this and other burglaries. Arnaldo told Sergeant Anaya how he and appellant had committed the Ross burglary. Arnaldo assisted the police by pointing out the house and taking the police to several locations where guns were recovered.

Called as a witness at the trial, Arnaldo had a change of heart. He did not want to testify against appellant.

“Q (Counsel for the People) Did you and Miguel (L.) go into anyone else's house that day? (P) A I just want to say this, I don't want nothing to happen to the guy, you know. (P) (Counsel for Defendant) Objection. (P) THE COURT: Overruled. (P) THE WITNESS: I don't want him to get sent to camp because, you know, they sent me to camp and I am doing the time, you know, so why, you know, go put the rap on somebody else, you know. (P) Q (By counsel for the People) Arnaldo, try to listen to the question and answer what I ask you. Did you and Miguel go into anyone else's house that day? (P) A I don't want to say. Do I have to say? (P) THE COURT: It is not a question of rapping on somebody. You don't have right not to testify. Your obligation is to just tell the truth. (P) THE WITNESS: That is what I want to say. I don't want to testify. (P) THE COURT: I understand, but you don't have that right not to testify. You have to answer the questions truthfully. (P) THE WITNESS: No. (P) THE COURT: Go ahead.”

Arnaldo thereafter answered “no” to a series of questions about the crime. On being shown a transcript of his tape recorded statement to the police, Arnaldo at first conceded that he had told the prosecutor the information on the transcript was true, but later claimed to the contrary.1

Arnaldo repeatedly denied making the statements on the tape, then said he did not remember making them.

At one point Arnaldo let slip out a small piece of direct testimony about the burglary. When asked whether he remembered telling the police that after entering the house appellant went into a little room that had a bar, Arnaldo testified, “Bar, no, we didn't break into no bar.”

After all questioning had ceased, Arnaldo said to the court, “THE WITNESS: Can I say something? (P) THE COURT: Sure. (P) THE WITNESS: Why have they got me up here? They didn't get nothing out of me. I ain't going to drop the dime or nothing on nobody, you know. I don't know why they got me up here, you know.”

Appellant contends (1) that Arnaldo's prior statement to the police should have been excluded from evidence because it was induced by promises of leniency; (2) that the statement should have been excluded from evidence on the ground it was the product of an unlawful arrest of Arnaldo; and (3) that even assuming admissibility of the statement, the evidence is insufficient to support the judgment.

Arnaldo's February 8, 1980, interview with Sergeant Anaya was tape recorded and the transcript of it was introduced into evidence. Arnaldo's attorney was present for that interview. At the commencement of the interview, the attorney stated his understanding that Arnaldo would discuss a number of burglaries and would not be charged as to any of those burglaries except three, including the instant burglary. Sergeant Anaya stated: “That is correct.” Appellant argues that Arnaldo's statement was induced by express or implied promises of immunity or leniency and that it therefore was inadmissible. This contention is without merit. Although a defendant's confession is inadmissible against him if induced by promises of leniency (People v. Jimenez, 21 Cal.3d 595, 611-613, 147 Cal.Rptr. 172, 580 P.2d 672), we are dealing here with the statement of a third person. A statement coerced from a third person is inadmissible against the accused (see People v. Underwood, 61 Cal.2d 113, 124, 37 Cal.Rptr. 313, 389 P.2d 937; People v. Gordon, 84 Cal.App.3d 913, 919, 925, 149 Cal.Rptr. 91), but this reasoning does not extend to render inadmissible the statements of an accomplice induced by a promise of leniency. It is well established that the fact that an accomplice gives testimony induced by a promise of immunity goes only to the weight of such testimony and does not render it inadmissible. (People v. Lyons, 50 Cal.2d 245, 265, 324 P.2d 556; People v. Gordon, 71 Cal.App.2d 606, 629-630, 163 P.2d 110; People v. Chambers, 276 Cal.App.2d 89, 107.) The same reasoning should apply to a prior statement admissible under Evidence Code section 1235. (See People v. Belton, 23 Cal.3d 516, 523-527, 153 Cal.Rptr. 195, 591 P.2d 485.) The inducement to the accomplice in such cases is obvious and can be evaluated by the trier of fact. It is not such coercion, however, as to render such evidence inadmissible. (See People v. Varnum, 66 Cal.2d 808, 812-813, 59 Cal.Rptr. 108, 427 P.2d 772.)

We next consider appellant's contention that even granting the admissibility of Arnaldo's prior statement, the evidence is insufficient to support the judgment. The rule that a criminal conviction cannot be had on the testimony of an accomplice unless it is corroborated by other evidence connecting the defendant with the crime (Pen.Code, s 1111) does not apply to hearings in juvenile court under Welfare and Institutions Code section 602. (In re Mitchell P., 22 Cal.3d 946, 949-953, 151 Cal.Rptr. 330, 587 P.2d 1144.) Appellant argues, however, that Arnaldo's in-court testimony did not incriminate appellant, and cites the principle that “an extrajudicial identification that cannot be confirmed by an identification at the trial is insufficient to sustain a conviction in the absence of other evidence tending to connect the defendant with the crime.” (People v. Gould, 54 Cal.2d 621, 631, 7 Cal.Rptr. 273, 854 P.2d 865; In re Johnny G., 25 Cal.3d 543, 547, 159 Cal.Rptr. 180, 601 P.2d 196; see also In re Eugene M., 55 Cal.App.3d 650, 657-659, 127 Cal.Rptr. 851.)

This principle was refined, however, in People v. Chavez, 26 Cal.3d 334, 362-364, 161 Cal.Rptr. 762, 605 P.2d 401. The court held that Gould and its progeny did not establish an absolute rule that a pretrial identification which is not confirmed by the witness at trial is never sufficient to sustain a conviction. The court pointed out that in Gould, Johnny G., and Eugene M., “the out-of-court statement's reliability was unsubstantiated and the record afforded no basis for concluding that the prior statement's probative value was any greater than the probative value of the witness' testimony in court.” (26 Cal.3d at p. 363, 161 Cal.Rptr. 762, 605 P.2d 401.) The court found a distinction in the facts of Chavez, in that the witness had previously testified at a preliminary hearing, and although reluctant to testify, had ultimately confirmed his identification of the defendant when pressed by the questioning of the preliminary hearing judge. Furthermore, at the superior court trial the prosecution had introduced evidence which both explained and discredited the witness' inconsistent testimony at the time of trial. The witness had indicated his unwillingness to testify in court, since no one had been hurt by the shooting, and while on the stand he forthrightly conceded that he had told the district attorney he did not want to testify because he felt the whole matter should be settled in the streets. (Id., at p. 364, 161 Cal.Rptr. 762, 605 P.2d 401.) The court held that in those circumstances, the evidence of the prior out-of-court statement that the defendant had personally used a firearm was sufficient to sustain a finding to that effect.

Thus under Chavez we must analyze the reliability of Arnaldo's prior statement. There was evidence in this case which both supported and detracted from the reliability of the statement.

The instant case is very similar to Chavez, in that portions of Arnaldo's in-court testimony corroborated the reliability of the prior statement. As in Chavez, Arnaldo was a reluctant witness who forthrightly stated that he did not want to testify because he did not want to be a snitch, and since he was already in camp, he saw no reason to “put the rap” on somebody else. The trial court was very impressed with this distinction.2

In addition, the credibility of Arnaldo's statement was supported by Sergeant Anaya's testimony about Arnaldo's truthfulness. Sergeant Anaya testified that he works with gangs, and has known Arnaldo for a couple of years. In Sergeant Anaya's experience, when Arnaldo is not in front of other gang members, he is very truthful and has given Sergeant Anaya truthful and reliable information in the past, whether about his own crimes or other activities in the area. In his relationship with Sergeant Anaya, Arnaldo has been basically honest, and in Anaya's opinion his veracity was fairly good.

Arnaldo's statement to Sergeant Anaya was tape recorded. The trial court had the opportunity to listen to the tape, and thus could assure itself of the content of the statement as well as the tone of voice of the witness.

From Sergeant Anaya's testimony and the protestations of Arnaldo in court, the trial court could reasonably infer that Arnaldo's prior statements were true, but that by the time he appeared in court Arnaldo either was intimidated by the presence of appellant or had decided that a code of conduct of his peers required him not to testify.

Appellant cites certain other factors which detract from the reliability of Arnaldo's statement. First is the fact that Arnaldo was a self-declared accomplice, who attempted to minimize his own involvement in the burglary and who was promised immunity, at least as to some crimes, before giving his statement. Although Penal Code section 1111 is not applicable in juvenile proceedings, the inherent weaknesses in accomplice testimony may be considered in determining the probable reliability of Arnaldo's out-of-court statement. (See In re Mitchell P., supra, 22 Cal.3d 946, 951, 151 Cal.Rptr. 330, 587 P.2d 1144; People v. Belton, supra, 23 Cal.3d 516, 524-526, 59 Cal.Rptr. 108, 427 P.2d 772.)

Appellant also argues that Arnaldo made a statement January 19 after an unreasonably long police detention. Arnaldo was arrested about 10:30 p. m. on January 18 and was interviewed by Sergeant Anaya around 6:30 p. m. on the 19th. He had not yet been taken before a probation officer. (See Welf. & Inst.Code, s 626.) This is not determinative but is one factor to be considered. (In re Walker, 10 Cal.3d 764, 779, 112 Cal.Rptr. 177, 518 P.2d 1129.) However, the tape recorded statement introduced into evidence was made February 8, in the presence of Arnaldo's attorney. The interview of January 19 was sketchy and it was unimportant compared to the February 8 statement.

Appellant also contends Arnaldo's statement was unreliable because Sergeant Anaya wanted to “get” appellant and that this was an additional pressure on Arnaldo to make a false statement to the police. Sergeant Anaya admitted that he told appellant's mother that “I know her son has been responsible for a lot of burglaries and I will continue to investigate them until I prove them.” Sergeant Anaya denied the testimony of appellant's girl friend that Anaya had told her “I feel sorry for you because I have a number on Miguel and I am going to do a number on Miguel and I am going to do everything and anything to put him away no matter how long it takes.” Such conflicting evidence does not compel an inference of bias on the part of Sergeant Anaya. The alleged statements are equally consistent with attention to duty on Sergeant Anaya's part and his intention to secure evidence by proper means to confirm his suspicions.

Considering all the factors which both support and detract from the reliability of Arnaldo's pretrial statement, we conclude substantial evidence supports the judgment. (People v. Chavez, supra, 26 Cal.3d at p. 364, 127 Cal.Rptr. 762, 605 P.2d 401.)

Finally, appellant contends that the evidence of Arnaldo's prior statements should have been excluded as the product of an illegal arrest of Arnaldo.

According to Sergeant Anaya, Arnaldo was arrested about 10:30 on the night of January 18 because a “.45-caliber pistol was found in the vehicle that he was in.” Arnaldo admitted that he had stolen the gun in a burglary. It was stipulated the arrest was without a warrant.

Appellant contends the People failed to satisfy their burden of proving that the arrest without a warrant was lawful. The People contend the reason the evidence is sketchy as to the circumstances of the arrest is that appellant's trial counsel made no objection in the trial court on the specific ground that Arnaldo's statements were the product of an unlawful arrest, and therefore the argument cannot be raised on appeal. (People v. McDowell, 27 Cal.App.3d 864, 878-879, 104 Cal.Rptr. 181; Evid.Code, s 353, subd. (a).) In reply appellant cites four portions of the transcript at which he contends counsel made an adequate objection.

The four objections are indeed subject to criticism for lack of clarity and specificity. Assuming, however, that the second objection was adequate to preserve the issue, we find no reversible error. The January 19 interview following the January 18 arrest involved numerous burglaries and few details as to the instant crime. It was later, on February 8, that Arnaldo made the detailed tape recorded statement which was introduced into evidence and which was the focus for impeachment of Arnaldo at trial. Arnaldo's attorney was present at the February 8 interview. The interview commenced with a statement by the attorney as to the immunities being granted to Arnaldo. Thus, even assuming that the record fails to establish the lawfulness of Arnaldo's January 18 arrest, Arnaldo's February 8 statement was not the product of such illegality. (See People v. DeVaughn, 18 Cal.3d 889, 897-900, 135 Cal.Rptr. 786, 558 P.2d 872.)

The judgment is affirmed.

FOOTNOTES

1.  “Q (Counsel for the People) And did you tell me at that time that the information contained on that paper was true?“A I told you, yeah.““Q (By counsel) As you read the information on there now, Arnaldo, is the information contained on pages 1 through 4 true or not?“A No.“Q No, it is not true?“A It is true what is on there probably, yes.““Q Is that true or not true?“A Not true.”

2.  “(THE COURT): Arnaldo didn't claim here that he was lying concerning his previous statements or that he was coerced or that his statements were untrue. He just denied having made the statements because he didn't want to be a snitch or an informer at this point in the process, so I find the evidence is sufficient beyond a reasonable doubt to sustain the petition. It is found to be true. It is sustained.”

ASHBY, Associate Justice.

STEPHENS, Acting P. J., and HASTINGS, J., concur. Hearing granted; KAUS, J., did not participate.