IN RE: JEFFREY M.

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Court of Appeal, Fourth District, Division 3, California.

IN RE: JEFFREY M., a Person Coming Under the Juvenile Court Law. The PEOPLE of the State of California, Plaintiff and Respondent, v. JEFFREY M., Defendant and Appellant.

G000386.

Decided: October 31, 1985

Ronald Y. Butler, Public Defender, Orange, William J. Kopeny, Asst. Public Defender, Richard Aronson and Thomas Havlena, Deputy Public Defenders, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Harley D. Mayfield, Asst. Atty. Gen., Robert M. Foster, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

Jeffrey Scott M. appeals after he was declared a ward of the juvenile court (Welf. & Inst. Code, § 602) because he committed a residential burglary (Pen. Code, § 459).   All his arguments on appeal attack the admissibility of incriminating statements he made to the police.   Among other things, he contends the Miranda warnings were inadequate.   We agree and reverse the judgment.

I

The home of Jeffrey's next door neighbor was burglarized.   A screen was pried and entry forced through a bedroom window.   Stereo equipment and a television were taken.

Jeffrey was arrested after another neighbor told the police he saw Jeffrey and another boy passing stereo equipment over the victim's fence.   At the police station Jeffrey confessed.

II

 The Miranda 1 advisement given Jeffrey was:  “Okay, you have the absolute right to remain silent.   Anything you say can and will be used as evidence against you in Court.   You have the right to consult with an attorney, to be represented by an attorney, and to have an attorney present before any questions are asked.   If you cannot afford and [sic ] attorney, one will be appointed by the Court, free if [sic ] charge to represent you before any questioning if you desire.” 2

Jeffrey was not told he had the right to the presence of an attorney during questioning.   Recently, a divided Ninth Circuit panel held a similar omission was fatal to the admissibility of post arrest statements in United States v. Noti (9th Cir.1984) 731 F.2d 610.   Noti was told only he had “the right to the services of an attorney before questioning․”  (Id., at p. 614.) 3  The Noti majority notes a split in the federal circuits on whether a specific advisement of the right to the presence of an attorney is indispensable to an adequate Miranda warning.  Noti holds it is, adopting the rationale of the Fifth Circuit.  “Merely telling [a defendant] that he [or she] could speak with an attorney ․ before he [or she] said anything at all is not the same as informing him [or her] that he [or she] is entitled to the presence of an attorney during interrogation ․”  (Windsor v. United States (5th Cir.1968) 389 F.2d 530, 533.)

For several reasons, we agree with the Noti majority and conclude a proper Miranda advisement must specifically include the right to an attorney present during questioning.4  The United States Supreme Court said as much in Miranda v. Arizona, supra, 384 U.S. 436, 86 S.Ct. 1602.   “[T]he accused must be adequately and effectively apprised of his [or her] rights.”  (Id., at p. 467, 86 S.Ct. at 1624.)  “[A]n individual held for interrogation must be clearly informed that he [or she] has the right to consult with a lawyer and to have the lawyer with him [or her] during interrogation.”  (Id., at p. 471, 86 S.Ct. at 1626, emphasis added.)  “No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings we here delineate have been given.”  (Id., at p. 470, 86 S.Ct. at 1626;  see also People v. Palmer (1978) 80 Cal.App.3d 239, 256, 145 Cal.Rptr. 466.)   The Supreme Court reiterated the requirement of an advisement indicating the right to an attorney present during interrogation in Fare v. Michael C. (1979) 442 U.S. 707, 717, 99 S.Ct. 2560, 2567–68, 61 L.Ed.2d 197.

As the Noti majority suggests, California v. Prysock (1981) 453 U.S. 355, 101 S.Ct. 2806, 69 L.Ed.2d 696 5 is often cited for the proposition there is a certain latitude permitted in the language of the advisement:  “If a defendant has been told the substance of his [or her] constitutional rights, it is not fatal if irrelevant words or words with no independent substance are omitted.  [Citation.]”  (United States v. Noti, supra, 731 F.2d 610, 614–615.)   But we cannot overlook the circumstances of Prysock itself.   Among other things, Prysock was told:  “You have the right to talk to a lawyer before you are questioned, have him present with you while you are being questioned, and all during the questioning.”  (California v. Prysock, supra, 453 U.S. at p. 356, 101 S.Ct. at 2808.)   The Prysock majority indicates a “talismanic incantation” of Miranda's language is not absolutely required, but also notes the question is “whether a criminal defendant was adequately informed of his right to the presence of appointed counsel prior to and during interrogation․”  (Id., at p. 360, 101 S.Ct. at 2810, emphasis added.)

There is a substantial difference between the right to counsel before questioning and the right to counsel during questioning.   Having not been told of both, the accused may feel he or she has the right to consult with counsel to decide whether to talk at all but not to aid during interrogation.   While being questioned, the accused may need counsel to decide whether to cease the interrogation or to clarify inquiries.  Miranda and its progeny note the coercive atmosphere inherent in the custodial interrogation process.   It is most coercive during interrogation.   These two aspects of the right to counsel are distinct, each important in its own way.   Jeffrey was not told of the right to counsel when he needed it most—while he was being questioned.

The prosecution contends advisement of the right “to be represented” coupled with the right “to have an attorney present before any questions” suffices.   We cannot agree—“representation” is too ambiguous a term to clearly communicate this crucial point.

California precedent reinforces our conclusion.   The court in People v. Stewart (1968) 267 Cal.App.2d 366, 73 Cal.Rptr. 484, held a Miranda waiver, defective in a different manner than the one at issue here, also did not apprise the accused of the right to counsel during interrogation.   As the court noted, “[t]he burden is on the People to show that warnings of all the constitutional rights were given, that defendant understood them, and that he thereafter voluntarily and intelligently waived the rights.   Ambiguities in the warnings must be resolved against the prosecution.”  (Id., at p. 378, 73 Cal.Rptr. 484.)   The warning here at best is ambiguous.   To hold it is adequate would contravene the foregoing principle, as well as the clear language of Miranda and its progeny.  (See also People v. Clark (1969) 2 Cal.App.3d 510, 520–521, 82 Cal.Rptr. 682, disapproved on other grounds;  People v. Hill (1974) 12 Cal.3d 731, 766, fn. 34, 117 Cal.Rptr. 393, 528 P.2d 1;  in turn overruled on other grounds in People v. DeVaughn (1977) 18 Cal.3d 889, 896, fn. 5, 135 Cal.Rptr. 786, 558 P.2d 872.   And DeLancie v. Superior Court (1982) 31 Cal.3d 865, 183 Cal.Rptr. 866, 647 P.2d 142 [see Donaldson v. Superior Court (1983) 35 Cal.3d 24, 32, 196 Cal.Rptr. 704, 672 P.2d 110].

 Moreover, the burden of establishing voluntariness is greater in the case of a juvenile.  (In re Abdul Y. (1982) 130 Cal.App.3d 847, 862–863, 182 Cal.Rptr. 146;  see also People v. Alfieri (1979) 95 Cal.App.3d 533, 544–545, 157 Cal.Rptr. 304;  see generally In re Linda D. (1970) 3 Cal.App.3d 567, 83 Cal.Rptr. 544.) 6  With a juvenile, even less ambiguity can be tolerated.7

 In sum, nothing in the advisement at issue here can be properly construed to satisfy this aspect of Miranda's requirements.   And, because the Miranda advisement was inadequate, Jeffrey's confession was erroneously admitted into evidence at the jurisdictional hearing.  (Miranda v. Arizona, supra, 384 U.S. 436, 86 S.Ct. 1602;  People v. Honeycutt (1977) 20 Cal.3d 150, 159, 141 Cal.Rptr. 698, 570 P.2d 1050.)   Improper introduction of a confession is reversible error per se.  (People v. Murtishaw (1981) 29 Cal.3d 733, 756, 175 Cal.Rptr. 738, 631 P.2d 446;  see also In re Albert R. (1980) 112 Cal.App.3d 783, 793–794, 169 Cal.Rptr. 553.)8  Our resolution of this issue makes it unnecessary to address the other issues he raises concerning his confession.

The judgment is reversed.

FOOTNOTES

1.   Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

2.   The interview was taped and transcribed.

3.   Arguably, the advisement here is superior to that in Noti, because here Jeffrey was told he had the right to have an attorney present before questioning.   Nevertheless, in neither case did the advisement include the right to an attorney during questioning.

4.   While this is a post Proposition 8 case, we need not assess its impact on the admissibility of incriminating statements.  (See Ramona R. v. Superior Court (1985) 37 Cal.3d 802, 210 Cal.Rptr. 204, 693 P.2d 789;  People v. May (1985) 172 Cal.App.3d 194, 218 Cal.Rptr. 152;  People v. Clark (1985) 171 Cal.App.3d 889, 217 Cal.Rptr. 819;  People v. Navarez (1985) 169 Cal.App.3d 936, 215 Cal.Rptr. 519;  People v. Barrios (1985) 166 Cal.App.3d 732, 212 Cal.Rptr. 644;  People v. Jacobs (1984) 158 Cal.App.3d 740, 204 Cal.Rptr. 849.)   The linchpin of our holding is Miranda, not an independent state constitutional doctrine.

5.   On remand see People v. Prysock (1982) 127 Cal.App.3d 972, 180 Cal.Rptr. 15.

6.   We note in passing the adequate Miranda warning and waiver in Linda D. (a juvenile) contained, among other things, the following:  The warning—“You have the right to talk to a lawyer before you are questioned, and have him present with you while you are being questioned.”   The waiver—“I know that I have the right to talk to a lawyer before I am questioned and to have him present while I am being questioned.”  (In re Linda D., supra, 3 Cal.App.3d 567, 574, 83 Cal.Rptr. 544.)

7.   The result here would be the same even were Jeffrey an adult.

8.   Even the People, in their brief, characterize Jeffrey's statement as a confession.   Were it merely an admission, it would not be reversible if the People could show beyond a reasonable doubt the introduction of the statement did not contribute to the verdict.   (People v. Murtishaw, supra, 29 Cal.3d 733, 756, 175 Cal.Rptr. 738, 631 P.2d 446.)   The other evidence of guilt was not convincing enough to satisfy this standard.   The People, after resting, obliquely demonstrated this by reopening their case in chief to introduce Jeffrey's statement.   Even the characterization of the statement as an admission would not save the judgment.

SONENSHINE, Associate Justice.

TROTTER, P.J., and WALLIN, J., concur.