IN RE: GREGORY Z.

Reset A A Font size: Print

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

IN RE: GREGORY Z., A Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. GREGORY Z., a Minor, Defendant and Appellant.

Crim. 44973.

Decided: April 09, 1987

Corrine S. Shulman, Hydesville, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Gary R. Hahn and Edward T. Fogel, Jr., Deputy Attys. Gen., for plaintiff and respondent.

ISSUE

When a parent is seeking to speak with or see a minor taken into custody, and absent a request by the minor to speak with or see his parents, are arresting authorities under a duty to advise the minor of a right to have an available parent present before or during an interrogation?   We hold that they are not.

PROCEDURAL HISTORY

In a petition filed by the district attorney of Los Angeles County it was alleged that Gregory Z., a minor, aged 15 years, murdered John Mendoza, a violation of Penal Code section 187.   At the detention hearing which followed, the minor denied the allegations of the petition.   A motion under Evidence Code section 402 to suppress evidence of his confession was heard and denied.   The court sustained the petition, found appellant committed murder in the second degree, and determined that he was a person falling within the meaning of Welfare and Institutions Code section 602.   The court declared appellant to be a ward of the court, found some other offenses on a different petition to be misdemeanors and committed appellant to the California Youth Authority for a period not to exceed 15 years.   Appellant appealed.

On September 21, 1984, 160 Cal.App.3d 235, 206 Cal.Rptr. 511, this Court affirmed the order of wardship.   On December 20, 1984, the California Supreme Court granted appellant's petition for a hearing and on January 27, 1987, 234 Cal.Rptr. 213, 731 P.2d 571, transferred the cause back to this Court for reconsideration in light of People v. Houston (1986) 42 Cal.3d 595, 230 Cal.Rptr. 141, 724 P.2d 1166.   We have examined Houston and have determined it is not relevant to the facts of the instant case.1  Therefore, we again affirm the judgment (order of wardship) and republish the remainder of this opinion as originally written.

STATEMENT OF FACTS

On April 22, 1983, a group of “Colonial Watts” gang members were at a party on East 130th Street in the Willowbrook area of Los Angeles County when a group of “Largo” gang members drove up and a fight ensued.   Appellant and five or six other “Largos” were observed chasing the victim, a “Colonial Watts” member, down the street.   The victim's body was found by the police in an area approximately 100 to 125 yards from the East 130th Street location, with 14 stab wounds which were the cause of his death.

On April 28, 1983, appellant's mother was working as an instructional aide at Ralph Bunche Junior High School where appellant was a student.   On that date she was summoned from the classroom and told that two officers wanted to see her.   She recognized one of the deputies as Dave Martinez.   Martinez asked her, “What happened this morning with Greg?”   She replied that a black student or a black person had hit him.   The detective inquired whether she would bring him to school.   She replied by asking, “What do you want him for?”   The detective indicated he wanted to talk about the incident so that Gregory could identify the perpetrators.   He said, “We will have a little conference, Greg, myself, you and the principal, if you'd like.”   Appellant's mother left to pick him up.   She brought him back to the school and parked in front of it as Detective Martinez had indicated he would be in that area.   An undercover deputy sheriff then drove up.   The deputy ordered appellant out of the car, searched him and told appellant's mother he was ordered to “take him in.”   Shortly thereafter, Detective Martinez drove up in another vehicle, took appellant into custody and placed him into his own car.   Appellant's mother told Detective Martinez she thought they were going to have a conference.   Martinez replied, “He goes.   I'm taking him in.”   During the trip, Martinez advised appellant of his Miranda 2 rights, but did not ask for a waiver of them or whether appellant understood them.

At the police station, Detective Brian Wines effected the booking procedure.   During that process, he told the appellant, “You have the right to make some phone calls.   Would you like to make some phone calls?”   Appellant told Wines that he did want to make a phone call.   The detective asked to whom and appellant replied to his aunt, Ginnie Sandoval.   Detective Wines wrote on the back of the booking slip the letter “R,” for relative, the phone number appellant gave him, the time 10:50 a.m., the date of the phone call and his own serial number.   Wines then dialed the number himself and heard a female voice on the other end of the line say “hello.”   He handed the phone through the window to appellant and heard appellant say, “They got me for murder.”   The detective walked away.

Appellant's mother testified that after her son was driven away by the sheriff's deputies, she had gone to the home of her sister Ginnie Sandoval.   She saw Ginnie answer the telephone and heard her mention appellant's name.   Ginnie told appellant's mother that her son wanted to speak to her, but when she got to the telephone it was dead.

After that phone call was completed Detective Wines again asked appellant if he would like to make another phone call.   Appellant said, “No.”   Wines then wrote down the letter “W,” meaning that he had waived the second phone call.   He then advised appellant to place his initials to the right of the box marked with the capital “X” to indicate that he had been advised of his phone calls and that he did get them.   Appellant initialed both the original call to Ginnie and the waiver of the second phone call.

About a half hour after appellant's call, at approximately 11:30 a.m., appellant's mother called the Lynwood station and asked for the gang unit.   She spoke to Detective Martinez, and told him she wanted to be present when appellant was questioned.   She next telephoned an attorney and spoke with his secretary about the case.   She again telephoned the Lynwood Station.   Reaching Detective Martinez once more, she asked if the homicide detectives were there yet.   Martinez replied that they were not but they would call her.   Subsequently the attorney whom she had contacted called her and she discussed the case with him.   She then drove to the Lynwood Sheriff's station arriving at 2:00 p.m.   She identified herself to an officer and asked to see appellant.   She demanded to see her son in accordance with the lawyer's instructions, but at no time was she permitted to see or speak to him.   She stayed at the Lynwood Station for about a half hour and then went home.   She kept telephoning the station, to inquire about her son since she wanted to be present when he was questioned.

Meanwhile, however, at 12:06 p.m., Los Angeles County Deputy Sheriff Dale R. Christiansen of Homicide Bureau Investigations, and his partner Sergeant Miriam Travis, were preparing to speak with appellant.   Prior to any conversation, Deputy Christiansen read appellant his constitutional rights from a Miranda card.   He advised appellant of his right to silence, that anything he said would and could be used against him in a court of law, that he had the right to a lawyer before talking and during any conversation, and that an attorney would be appointed free if necessary.   He asked appellant if he understood each of those rights and if he wanted to talk about the case.   Appellant replied affirmatively to both inquiries.   Christiansen asked appellant if he wanted a lawyer.   Appellant said “no” and signed the waiver form.   Appellant did not ask to speak with his mother, his father, or any other adult.   No threats or promises were made to appellant in order to induce a conversation.

In a statement which appellant made to Christiansen, he admitted chasing and catching the victim, knocking him to the ground, repeatedly striking him with his fists;  he also admitted that he and his companions held the victim on the ground while one Tony Mendoza stabbed the victim approximately six times with a Buck knife.

After a hearing under section 402 of the Evidence Code, the trial court found that appellant's mother tried to contact the police and was given the “runaround” by them.   The court stated it had no doubt that Detective Martinez was trying to be evasive and kept appellant and his mother from talking to each other.   However, the court determined that appellant had not made a request to speak to his mother in the context of invoking his Fifth Amendment rights.   The court ruled that the case law did not mandate that the interrogating officers contact the minor's parents or other responsible adult in the absence of any request for them by the minor.   It ruled further that the admissibility of a confession is determined from the totality of the circumstances existing at the time the confession took place.   Accordingly, the court held that appellant was properly advised of his rights, that he understood his rights, that he made a knowing and intelligent waiver of his rights and thus gave an admissible confession.

DISCUSSION

Appellant contends that he should have been informed that he could speak to his mother, who had requested to see him, prior to his interrogation and absent that advice, the introduction of his confession constituted reversible error per se.  (See People v. Burton (1971) 6 Cal.3d 375, 99 Cal.Rptr. 1, 491 P.2d 793.)

 We view the evidence in the light most favorable to respondent and presume in support of the order of the juvenile court the existence of every fact it could reasonably deduce from the evidence.  (In re Charles G. (1979) 95 Cal.App.3d 62, 67, 156 Cal.Rptr. 832.)   The admissibility of a confession depends upon the totality of the circumstances existing at the time the confession was obtained.  (People v. Robertson (1982) 33 Cal.3d 21, 39–40, 188 Cal.Rptr. 77, 655 P.2d 279;  People v. Sanchez (1969) 70 Cal.2d 562, 572, 75 Cal.Rptr. 642, 451 P.2d 74, cert. dismd., Sanchez v. California 394 U.S. 1025, 89 S.Ct. 1646, 23 L.Ed.2d 743.)   A minor can effectively waive his constitutional rights (People v. Lara (1967) 67 Cal.2d 365, 390–391, 62 Cal.Rptr. 586, 432 P.2d 202, cert. den. (1968) Lara v. California (1968) 392 U.S. 945, 88 S.Ct. 2303, 20 L.Ed.2d 1407), but age, intelligence, education and ability to comprehend the meaning and effect of his confession are factors in that totality of circumstances to be weighed along with other circumstances in determining whether the confession was a product of free will and an intelligent waiver of the minor's Fifth Amendment rights (Id., at pp. 385–387, 62 Cal.Rptr. 586, 432 P.2d 202).

 In People v. Lara, supra, 67 Cal.2d at p. 383, 62 Cal.Rptr. 586, 432 P.2d 202, the Supreme Court gave guidance as follows:  “[A] minor has the capacity to make a voluntary confession, even of capital offenses, without the presence or consent of counsel or other responsible adult, and the admissibility of such a confession depends not on his age alone but on a combination of that factor with such other circumstances as his intelligence, education, experience, and ability to comprehend the meaning and effect of his statement.”

Appellant requests a rejection of this “totality of circumstances” rule and suggests our adoption of one which requires the presence of a parent.   We decline this invitation.

Minors in California have substantial standing in conducting their affairs both under federal and state guarantees.   For example, a state may not condition a minor's decision to have an abortion on parental consent (Planned Parenthood of Missouri v. Danforth (1976) 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788);  nor may it because of youth restrict one's access to contraceptives (Carey v. Population Services International (1977) 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675).   It is established that minors have a liberty interest that entitles them to due process whenever a state initiates action to deprive them of liberty.  (In re Gault (1967) 387 U.S. 1, 13, 87 S.Ct. 1428, 1436, 18 L.Ed.2d 527, 538.)

Our Supreme Court held in In re Scott K. (1979) 24 Cal.3d 395, 155 Cal.Rptr. 671, 595 P.2d 105, cert. den., Fare v. Scott K. (1979) 444 U.S. 973, 100 S.Ct. 468, 62 L.Ed.2d 388, that in juvenile court proceedings, the trial court committed reversible error in determining that a warrantless search by a police officer of a 17–year old boy's locked toolbox containing a quantity of marijuana, without his consent, but with the consent of his father, was reasonable and valid.  (Id., at pp. 404–405, 155 Cal.Rptr. 671, 595 P.2d 105.)   At the time of the search the police knew that the father claimed no interest in the box or its contents, that the son was the owner, and that the son did not consent to the search.   Thus, the parent-child familial relationship collapsed when confronted by the minor-citizen versus officer-state conflict.   The minor's Fourth Amendment or privacy rights were given a higher level of deference than a parent's legitimate right to maintain a crime free home.   If such a minor can keep his father out of his toolbox, so too, can the minor manage his own affairs at the local station house and keep his mother out of his interrogation room.

Appellant's contention is not supported by California Supreme Court decisions.  People v. Burton, supra, 6 Cal.3d 375, 99 Cal.Rptr. 1, 491 P.2d 793, did not establish a requirement of a parental advisement.  Burton held that a minor's confession was unlawfully obtained after his invocation of Fifth Amendment rights by requesting to see his parents and having that request denied.  (Id., at pp. 383–384, 99 Cal.Rptr. 1, 491 P.2d 793.)   Those are not the facts here.   Appellant's first telephone call was completed and apparently so satisfactorily that he waived his second one.   He never indicated to the interrogating officers a desire to speak to anyone else.   His mother was present when he was taken into custody and knew he was going to be questioned.   He was not held incommunicado.   The interrogation was brief.   He gave no indication that he wanted it to cease.   He had earlier been given the opportunity to converse with his aunt and mother by telephone and knew they were nearby and could be summoned for aid and advice.   Nothing worthy of belief suggests an exposure to coercion, threat, undue influence, false promises, dishonesty, trickery, or improper inducements of any kind.

We are aware of In re Patrick W. (1980) 104 Cal.App.3d 615, 163 Cal.Rptr. 848, cert. den., California v. Patrick W. (1981) 449 U.S. 1096, 101 S.Ct. 893, 66 L.Ed.2d 824, which held that even absent a request, if grandparents are available and wish to speak to a minor in custody, police are under a duty to advise the minor of his right to see them before interrogation can take place.

However, in People v. Lara, supra, 67 Cal.2d at pp. 378–379, 62 Cal.Rptr. 586, 432 P.2d 202, the leading case on this subject, the Supreme Court stated:  “We cannot accept the suggestion of certain commentators (see 7 Santa Clara Lawyer 114, 127 (1966);  40 Wash.L.Rev. 189, 200–201 (1965)) that every minor is incompetent as a matter of law to waive his constitutional rights to remain silent and to an attorney unless the waiver is consented to by an attorney or by a parent or guardian who has himself been advised of the minor's rights.   Such adult consent is of course to be desired, and should be obtained whenever feasible.   But as we will explain, whether a minor knowingly and intelligently waived these rights is a question of fact;  and a mere failure of the authorities to seek the additional consent of an adult cannot be held to outweigh, in any given instance, an evidentially supported finding that such a waiver was actually made.”

Additionally, the Lara court held:  “To sum up, we have seen that a minor ․ does not lack the capacity as a matter of law to make a voluntary confession without the presence or consent of counsel or other responsible adult, ․ the issue is one of fact, to be decided on the ‘totality of circumstances' of each case.”  (Id., at p. 389, 62 Cal.Rptr. 586, 432 P.2d 202.)   Apparently, the Lara concept of feasibility was raised to the level of a duty under the Patrick W. reasoning.   Since the legislative and executive branches have never enacted such a requirement, we can well understand the reluctance of other intermediate courts to follow its holding.   However, rather than ignore it, we choose to posit that the perceived duty in Patrick W. is not the law of California.

CONCLUSION

 As required, we have applied our independent review under the “totality of circumstances” test and have strictly scrutinized the record.   The determination of the trial court on this issue will not be disturbed unless it is palpably erroneous.  (In re Anthony J. (1980) 107 Cal.App.3d 962, 972, 166 Cal.Rptr. 238.)

Failure to seek the consent of appellant's mother, cannot under these circumstances be found to outweigh an evidentially supported judicial finding that a proper waiver was made.  (Id., at p. 974, 166 Cal.Rptr. 238.)   Appellant, age 15, was a trouble maker at school and had been arrested twice within the prior week for weapons violations.   No stranger to danger, he chose to fend for himself.   Accordingly, it was not feasible to provide him with more service than required by law.

The record abundantly supports the trial court's finding that appellant's confession was freely and voluntarily made after a knowing and intelligent waiver of his rights.

DISPOSITION

The judgment (order of wardship) is affirmed.

This court is required to follow the decisions of our Supreme Court.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)   The court's decisions in People v. Houston (1986) 42 Cal.3d 595, 230 Cal.Rptr. 141, 724 P.2d 1166,1 and People v. Rivera (1985) 41 Cal.3d 388, 221 Cal.Rptr. 562, 710 P.2d 362,2 compel the following conclusions:  (1) a minor's request to speak to his or her parent is equivalent to a per se invocation of the right against self-incrimination;  and (2) a minor has a right to be informed of his or her parent's attempt to contact the minor prior to interrogation and cannot make a knowing and intelligent waiver of the right against self-incrimination and the right to counsel until such information is given the minor.

The majority does not equate the status of the minor's mother as equivalent to that of legal counsel for the purpose of invoking the minor's Fifth Amendment rights.  (Ante, fn. 2.)   However, the reasoning in Houston and Rivera indicates such an equivalent status.   Thus, under Houston and Rivera, the order declaring appellant a ward of the court should be reversed.

Justice Mosk's well-reasoned dissent in Rivera, supra, 41 Cal.3d at pages 396–407, 221 Cal.Rptr. 562, 710 P.2d 362, is more closely associated with the views to which I subscribe.   Justice Mosk stated at pages 401–402, 221 Cal.Rptr. 562, 710 P.2d 362:  “We have long held that the voluntary nature of a minor's confession must be judged by the totality-of-the-circumstances test.   In People v. Lara (1967) 67 Cal.2d 365 [62 Cal.Rptr. 586, 432 P.2d 202] ․, we held that ‘the issue [of whether a minor's waiver is knowing and intelligent] is one of fact, to be decided on the “totality of the circumstances” of each case.’  [Citation.]  ‘Among the circumstances emphasized by the courts as tending to show that the minor possessed the capacity required to make a voluntary confession are his prior experience with the police and courts [citations] and the fact that advice as to his legal rights was given to him before he confessed [citations]․’  [Citation.]   Also to be considered are factors such as the minor's age, ‘intelligence, education, experience, and ability to comprehend the meaning and effect of his statement.’  [Citation.]”

“A knowledgeable minor—and particularly a minor with vast experience with the police—is capable of giving a valid confession without his parents' consent or advice.   Nor is there a requirement that the police inform a minor that he has a right to see his parents before being interrogated.   Of course, if the police have purposely kept from a minor the fact that his parent is actively seeking to speak with him, such abusive tactics should feature prominently in any evaluation of whether the minor's confession was indeed voluntary. ”   (People v. Rivera, supra, 41 Cal.3d at p. 405, 221 Cal.Rptr. 562, 710 P.2d 362, emphasis added.)

In the present situation, the court made a factual finding of the voluntariness of the minor's confession without the benefit of the Houston and Rivera decisions which were issued subsequent to the trial court's ruling.   The facts indicate that the police purposely kept the minor and his mother apart and that the mother had persistently sought to speak with the minor.   On the other hand, the minor never specifically requested to speak to his parent.   Thus, the better view under People v. Lara (1967) 67 Cal.2d 365, 62 Cal.Rptr. 586, 432 P.2d 202 would be to remand the matter to the trial court for determination as to whether the minor's waiver of the rights against self-incrimination and counsel was voluntary in light of Houston and Rivera.

For these reasons, I cannot join in the majority's opinion.

FOOTNOTES

1.   In Houston, the Supreme Court held that “whether or not a suspect in custody has previously waived his rights to silence and counsel, the police may not deny him the opportunity, before questioning begins or resumes, to meet with his retained or appointed counsel who has taken diligent steps to come to his aid.”  (Id., at p. 610, 230 Cal.Rptr. 141, 724 P.2d 1166.)   The Supreme Court explained:  “If the lawyer comes to the station before interrogation begins or while it is still in progress, the suspect must promptly be told, and if he then wishes to see his counsel, he must be allowed to do so.”  (Ibid.)  In this case we refuse to equate the biological fact of parenthood with the status of legal counsel.

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

1.   In Houston, the majority of the court held a suspect may not be held incommunicado and deprived of the knowledge that an attorney retained by his friends to assist him was attempting to consult with him.   The suspect's confession in Houston was ruled inadmissible because of the conduct of the police in thwarting his right of access to counsel and the prosecution's failure to show beyond reasonable doubt that the interrogation was completed before counsel arrived at the station house.

2.   In Rivera, the court stated:  “A finding that defendant was requesting his father's presence would bring into play our decision in People v. Burton [1971] 6 Cal.3d 375 [99 Cal.Rptr. 1, 491 P.2d 793].   We held in Burton that ‘when, as in the instant case, a minor is taken into custody and is subjected to interrogation, without the presence of an attorney, his request to see one of his parents, made at any time prior to or during questioning, must, in the absence of evidence demanding a contrary conclusion, be construed to indicate that the minor suspect desires to invoke his Fifth Amendment privilege.   The police must cease custodial interrogation immediately upon exercise of the privilege․’  [Citation.]  Burton establishes a general or ‘per se’ rule that a juvenile's request to speak to his parent constitutes an invocation of his self-incrimination privilege, and, despite previous waivers, the police must cease questioning․  [¶]  Although Fare v. Michael C. [ (1979) 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197] suggests that the Burton rule—equating a juvenile's request to speak to a parent with the invocation of his privilege against self-incrimination—may not be compelled by the federal self-incrimination clause, Burton has been an established part of California jurisprudence for well over a decade and it is appropriate to recognize its holding as one component of the state constitutional privilege against self-incrimination.”  (People v. Rivera, 41 Cal.3d at pp. 394–395, 221 Cal.Rptr. 562, 710 P.2d 362, emphasis in original.)

ARABIAN, Associate Justice.

DANIELSON, J., concurs.