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: February 25, 1982

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.

Our original opinion herein was filed November 13, 1981.   The Supreme Court granted a hearing and remanded the matter for us to reconsider in light of People v. Ford, 30 Cal.3d 209, 178 Cal.Rptr. 196, 635 P.2d 1176, filed November 16, 1981.   We conclude that Ford supports our original determination and we again affirm.

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?  [¶] A I just want to say this, I don't want nothing to happen to the guy, you know.  [¶] [Counsel for Defendant]  Objection.  [¶] THE COURT:  Overruled.  [¶] 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.  [¶] 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?  [¶] A  I don't want to say.   Do I have to say?  [¶] 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.  [¶] THE WITNESS:  That is what I want to say.   I don't want to testify.  [¶] THE COURT:  I understand, but you don't have that right not to testify.   You have to answer the questions truthfully.  [¶] THE WITNESS:  No.  [¶] 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?  [¶] THE COURT:  Sure.  [¶] 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, 80 Cal.Rptr. 672.)   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, § 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, 354 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.)

 However, in People v. Chavez, 26 Cal.3d 334, 161 Cal.Rptr. 762, 605 P.2d 401, and People v. Ford, supra, 30 Cal.3d 209, 178 Cal.Rptr. 196, 635 P.2d 1176, the Supreme Court made clear that Gould and its progeny do not establish an absolute rule.  (People v. Chavez, supra, 26 Cal.3d, at p. 362, 161 Cal.Rptr. 762, 605 P.2d 401.)   Rather, the probative value of the prior statement depends both upon the circumstances under which it was made and upon the evidence produced at trial which explains any discrepancy between the trial testimony and the prior statement.  (People v. Chavez, supra, at pp. 363–364, 161 Cal.Rptr. 762, 605 P.2d 401;  People v. Ford, supra, 30 Cal.3d at pp. 213–214, 178 Cal.Rptr. 196, 635 P.2d 1176.)   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.”  (People v. Chavez, supra, 26 Cal.3d, at p. 363, 161 Cal.Rptr. 762, 605 P.2d 401;  People v. Ford, supra, 30 Cal.3d, at p. 215 & fn. 4, 178 Cal.Rptr. 196, 635 P.2d 1176.)

In both Chavez and Ford the Supreme Court found Gould inapplicable, and held there was sufficient evidence to sustain the findings of the jury.   Chavez involved a gang shooting, in which the defendant was accused of firing a rifle from a car.   Defendant was identified as the one firing the shot, by a member of the rival gang (1) in pretrial statements to the police and (2) at the preliminary hearing.   At trial, however, the witness testified that he had not seen who fired the shots.   Although the witness was never asked directly why his testimony at trial differed from his earlier statements and preliminary hearing testimony, there was evidence which both explained and discredited the trial testimony, namely, that the witness had previously indicated his unwillingness to testify since no one had been hurt by the shooting, and while on the stand he conceded that he did not want to testify because he thought the whole matter should be settled in the streets.   (People v. Chavez, supra, 26 Cal.3d at pp. 343, 364, 161 Cal.Rptr. 762, 605 P.2d 401.)   The Supreme Court indicated that although the witness' statement to the police would not by itself have been sufficient to support a firearm use finding, there were two factors which distinguished Chavez from the Gould line of cases:  (1) the witness had also identified the defendant in his sworn testimony at the preliminary hearing and (2) “Moreover, unlike the prior cases in which the record contained no concrete basis to credit the witness' prior identification over his trial testimony, the prosecution in the instant case presented evidence which both explained and discredited the witness' inconsistent testimony at the time of trial.”  (People v. Chavez, supra, 26 Cal.3d at p. 364, 161 Cal.Rptr. 762, 605 P.2d 401.)

In Ford, the victim of a robbery identified the defendant from police photographs and also at the preliminary hearing, but could not identify the defendant at trial.   The court applied Chavez and again distinguished the Gould line of cases, finding (1) the witness had ample opportunity to observe the defendant at the time of the robbery;  (2) the witness identified the defendant at the preliminary hearing;  (3) the witness' in-court testimony explaining his repudiation of his preliminary hearing testimony was not credible;  and (4) the defendant and his wife had a discussion with the witness prior to trial.  “And from these findings the jury could well have inferred, as in Chavez, that the reason for the witness's failure to make a positive identification at trial was simply that in the interim he had become reluctant to testify against this defendant.”  (People v. Ford, supra, 30 Cal.3d at pp. 214–215, 178 Cal.Rptr. 196, 635 P.2d 1176.)

 Appellant points out that in Chavez and Ford the witness had previously identified the defendant at a preliminary hearing, whereas here the pretrial identification was in a statement to the police.   We find nothing in Chavez and Ford, however, which narrowly limits their application to cases involving prior testimony.   The court in those cases focused upon two main factors:  (1) the circumstances under which the prior identification was made, as indicating its accuracy and trustworthiness and (2) the evidence which tended to explain the reasons for the inconsistencies in the witness' statements.2  The court did not say that only prior in-court testimony can qualify as having been given under circumstances indicating the trustworthiness of the prior statements.   Indeed, the major point made in Chavez was that a court should consider all the circumstances relevant to the reliability of the prior statement and should not attempt to fashion a literal and absolute rule based on language in Gould taken out of context.

We therefore analyze all the circumstances in this case to determine whether there is substantial evidence to support the judgment.

 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.3

In addition, the reliability 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, the tape recording, and the protestations of Arnaldo in court, the trial court could reasonably infer that Arnaldo's prior statements were true, and 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, 153 Cal.Rptr. 195, 591 P.2d 485;  In re Eugene M., supra, 55 Cal.App.3d 650, 657, 127 Cal.Rptr. 851.)

 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 inteviewed 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, § 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, 161 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, § 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.

I respectfully dissent.

This appeal stems from a wardship finding under Welfare and Institutions Code section 602, and the disposition imposed thereunder.

The facts are as follows:  Arnaldo G., a minor, testified about a burglary occurring on Beaty Street, in the City of Whittier, in which he participated.   In extrajudicial statements recorded by the investigating officers, Arnaldo stated that he and Miguel Angel L., appellant herein, burglarized the residence of Mrs. Ross and that some guns and other items were taken in the burglary.   Arnaldo assisted in obtaining the return of one or more of the guns.

The sole evidence connecting Miguel Angel to the crime were these statements made outside court.

In the trial, Arnaldo denied the veracity of the statements and even denied having given such information.1  He also specifically denied that Miguel Angel was a participant.

The statements by Arnaldo were not made under oath and they were not subject to cross-examination.2  In the face of Arnaldo's refusal to identify or otherwise involve this minor in the burglary, the reasoning of People v. Ford (1981) 30 Cal.3d 209, 178 Cal.Rptr. 196, 635 P.2d 1176;  In re Johnny G. (1979) 25 Cal.3d 543, 159 Cal.Rptr. 180, 601 P.2d 196;  In re Mitchell P. (1978) 22 Cal.3d 946, 151 Cal.Rptr. 330, 587 P.2d 1144;  People v. Gould (1960) 54 Cal.2d 621, 7 Cal.Rptr. 273, 354 P.2d 865, and In re Eugene M. (1976) 55 Cal.App.3d 650, 127 Cal.Rptr. 851, requires reversal.

In Ford the majority cited Gould as holding “that in the absence of other evidence connecting the defendant with the crime, an extrajudicial identification that the witness cannot confirm by an identification at trial is insufficient to support a conviction.”  (30 Cal.3d at p. 212, 178 Cal.Rptr. 196, 635 P.2d 1176).  People v. Chavez (1980) 26 Cal.3d 334, 364, 161 Cal.Rptr. 762, 605 P.2d 401, was cited in the same paragraph in Ford as establishing “that such a pretrial identification may nevertheless be sufficient when it is made by a witness testifying under oath at the preliminary examination and there is evidence from which the jury could have credited that testimony over his trial testimony.”   As stated, we are not here presented with the Chavez opportunity to weigh testimony given under oath.   (See the analysis extended in the concurring opinion in Johnny G., supra, 25 Cal.3d 543, 549–550, 159 Cal.Rptr. 180, 601 P.2d 196.) 3

The primary issue on appeal is whether there is sufficient evidence to affirm.   The People argue that there is additional evidence corroborative of the extrajudicial statements, and thus People v. Chavez, supra, 26 Cal.3d 334, 161 Cal.Rptr. 762, 605 P.2d 401, is controlling.   In Chavez the author and two justices signed the majority opinion, Justice Clark authored a concurring and dissenting opinion, i.e., in effect concurring only in the result and not with the reasoning, with still another author and two justices concurring in a dissenting opinion.   The result of this divided court conflict depends on the teaching in Johnny G., supra, 25 Cal.3d 543, 159 Cal.Rptr. 180, 601 P.2d 196.   The strength of Chavez is that where testimony (possibly declarations) is made and subsequently confirmed under oath and the declarant is subjected to cross-examination about the statements, the pretrial statements of identity may sustain the finding.4  Also, in Chavez there was overwhelming evidence that the defendant participated in the crime;  the question of identity was limited to whether defendant had personally fired the gun.  (26 Cal.3d at pp. 362–364, 161 Cal.Rptr. 762, 605 P.2d 401.)

The record here does not contain an iota of corroborating evidence connecting the minor with the charged offense, hence, Arnaldo's extrajudicial identification, not supported by in-court identification, is insufficient to support the adjudication of wardship.

The sole “supportive facts” in the case before us are stated to be:  (1) The fact that Arnaldo was a reluctant witness, and gave his reason as not wishing to “snitch” or “put the rap” on someone else.   This “fact” does not connect the minor with any commission of the charge.   It falls far short of establishing pressure put upon the witness by the minor's own initiative or by others with his knowledge.   It cannot be considered against the minor as some sort of admission of the charge.

(2) Sergeant Anaya testified to Arnaldo's trustworthiness and reliability, that Arnaldo was basically honest and his veracity was fairly good.   This obviously does not even suggest a fact connecting the minor with the charge.

(3) Arnaldo's extrajudicial statement involving the minor was tape recorded and the judge listened to it.   This is not a fact connecting the minor with the charge.

How different the Chavez case where “[e]ven without Angel's pretrial identification of defendant, the record clearly contains sufficient evidence to support the convictions.”   There “numerous eyewitnesses at trial testified that after an initial exchange of gang names, shots were fired from defendant's car as it passed the parking lot where the Hazards were gathered and as it was being pursued by the police.   Defendant, of course, was arrested immediately thereafter when he left the car after it crashed.”  (26 Cal.3d at p. 362, 161 Cal.Rptr. 762, 605 P.2d 401, italics added.)

In sum, the record establishes that Arnaldo involved the minor at a time he was hopeful of beneficial treatment at the hands of authorities.   He recanted his accusations, albeit in an equivocal or save-face manner.   There was no supportive fact for Arnaldo's identification of the minor as a participant in the charged offense.

The order of the juvenile court should be reversed.

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.   Thus, in describing Chavez, the court in Ford said:  “Primarily, we stressed” the prior sworn testimony at a preliminary hearing, but also “[i]n addition, we pointed to evidence in the record” from which the jury could reasonably have chosen to discredit the trial testimony in favor of the prior testimony.  (People v. Ford, supra, at p. 213, 178 Cal.Rptr. 196, 635 P.2d 1176.)

3.   “[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.”

1.   The tape recording establishes the contrary.

2.   In California v. Green (1970) 399 U.S. 149, 153–164, 90 S.Ct. 1930, 1932–1938, 26 L.Ed.2d 489, it was held that right to confrontation was not violated by the introduction of prior out-of-court statements by a declarant who is called as a witness and subject to cross-examination.   (See Evid.Code, § 1235.)

3.   The similarity in result between this rule and the Penal Code section 1111 rule is that a person may not be convicted of an offense upon the uncorroborated testimony of an accomplice.   Despite this similarity in result, it is the rule in California that Penal Code section 1111 does not apply to juvenile court cases.  (In re R.C. (1974) 39 Cal.App.3d 887, 114 Cal.Rptr. 735 (but see dissent by Rattigan, J., pp. 897–899, 114 Cal.Rptr. 735).)

4.   In Chavez there was an admission of the making of the prior statements, but there was a recantation of the substance thereof at the trial.   Other witnesses testified contra to the statements.  (26 Cal.3d at pp. 342–344, 161 Cal.Rptr. 762, 605 P.2d 401.)   In the instant case we have an impeached denial even of the making of the statements.

ASHBY, Associate Justice.

HASTINGS, J., concurs.