IN RE: WAYNE ANTHONY H. (1978)

The juvenile court found that appellant was a person described by Welfare and Institutions Code section 602 in that he committed robbery (Pen.Code, s 211), and committed him to the Youth Authority.

At 9 p. m. on November 23, 1976, appellant, wearing a gold jacket like petitioner's exhibit 3 and a black knit cap like petitioner's exhibit 2, and holding a handgun like petitioner's exhibit 4, robbed a service station in Gardena of between $50 and $60 in 10's, 5's, and 1's. Minutes later, on information from other citizens, police officers observed appellant as a passenger in a certain vehicle. After nervously looking behind him at the police car, appellant threw the gun, petitioner's exhibit 4, out the window. The gun was retrieved and the suspect vehicle was stopped. Appellant was wearing the gold jacket, and on the passenger floorboard of the car were seen the black knit cap and $54 in currency in 10's, 5's, and 1's.

Appellant, who was then approximately 161/2 years old, was apparently jailed overnight at the Gardena Police Department. Officer Lynn of the Gardena Police Department interviewed appellant at 9:45 the next morning. After appellant was advised of and waived his constitutional rights, appellant denied involvement in the robbery or possession of the gun. He said he was getting a ride from the driver, after arriving from the Carson Mall on an RTD bus and eating at a hamburger stand. Officer Lynn testified no RTD bus operated in that area.

Appellant was transported to Los Padrinos Juvenile Hall, arriving approximately 8:10 p. m. on November 24. There he was interviewed by an intake investigator, Deputy Probation Officer Wright. After advice and waiver of his constitutional rights appellant admitted that he committed the robbery.

Appellant contends that his confession to the deputy probation officer should have been suppressed on a variety of grounds. Under Welfare and Institutions Code section 626 a police officer who takes a minor into custody must either (a) release the minor; (b) release the minor upon a written promise to appear; or (c) “take such minor without unnecessary delay before the probation officer.” Appellant was taken into custody at the Gardena Police Department at about 9:20 p. m. on November 23, 1976, and was transported to Los Padrinos Juvenile Hall at approximately 8:10 p. m. on November 24. Appellant contends this was an unnecessary delay in violation of section 626. The record contains no explanation why appellant was not transported to juvenile hall on the night of the 23d or the morning or afternoon of the 24th.

However, even assuming there was an unnecessary delay in taking appellant to the probation officer, this provides no basis for suppression of appellant's confession to the probation officer. The rule is well established under the analogous provisions of Penal Code sections 825 and 849, which require an adult suspect to be taken before a magistrate without unnecessary delay, that a violation of such provisions does not require reversal unless it is shown that the delay denied the defendant a fair trial or otherwise prejudiced him. (People v. Hill, 66 Cal.2d 536, 551, 58 Cal.Rptr. 340, 426 P.2d 908; People v. Combes, 56 Cal.2d 135, 142, 14 Cal.Rptr. 4, 363 P.2d 4.) Even a confession made during the period of unwarranted detention is not automatically excluded; the delay is merely a factor in determining whether the confession was voluntary. (In re Walker, 10 Cal.3d 764, 779, 112 Cal.Rptr. 177, 518 P.2d 1129; In re Rambeau, 266 Cal.App.2d 1, 5, 72 Cal.Rptr. 171; People v. Lee, 3 Cal.App.3d 514, 522-523, 83 Cal.Rptr. 715.)

Here the confession was not made until after appellant had been taken to the probation officer and thus removed from the presumably more hostile environment of the police station. There is no showing whatsoever that the delay prejudiced appellant or had any causal connection with his subsequent confession to the probation officer.

Appellant next argues that his confession to the probation officer was involuntary. Part of Deputy Probation Officer Wright's function was to determine whether appellant should be detained pending adjudication. (Welf. & Inst.Code, s 628.) Mr. Wright also was to gather information relevant to a decision by his supervisor as to whether to seek a fitness hearing to have appellant tried as an adult. (Welf. & Inst.Code, s 707.) Mr. Wright indicated to appellant that their discussion would have a bearing on these issues. However, Mr. Wright did not tell appellant that it would be helpful for appellant to be forthright, or that appellant's cooperation would be influential in his decision. He did not tell appellant that appellant would be detained if he did not admit the robbery. Appellant at first denied involvement in the robbery. Subsequently when Mr. Wright informed appellant that he was ordering appellant detained and was going to make a recommendation that a fitness report be ordered, appellant admitted the robbery.

Appellant argues that the circumstances amounted to an implied threat that he would be detained and recommended as unfit for juvenile court if he did not admit the robbery, and an implied promise that he would be released and recommended fit if he did admit it. The record provides no support for this contention. The record shows that Mr. Wright did not tell appellant that it would be helpful for him to make a statement about the robbery or that he would be released if he did. The record further shows that the probation officer's determination was made prior to appellant's confession. In the absence of an express statement by the officer, it would be patently unreasonable for appellant to assume that an unfavorable recommendation would be changed to favorable by a subsequent confession that appellant did in fact commit the crime.

Appellant also argues that we should declare on the basis of “public policy” that any statement by a minor during the investigation to a probation officer who may determine whether the minor will be detained pending adjudication or recommended unfit for juvenile court treatment should be per se inadmissible in a subsequent juvenile adjudication hearing.

Appellant argues that if the minor refuses to discuss the offense with the probation officer he will appear uncooperative and risk an unfavorable recommendation on detention or fitness. While a minor's refusal to discuss the offense after having been adjudicated guilty of it might warrant unfavorable inferences as to disposition, the minor's declining to discuss the offense prior to adjudication would merely indicate he was exercising his rights. There is no basis for assuming that a probation officer would automatically make an unfavorable report on detention or fitness in such circumstances. The minor's statement about the offense, or lack thereof, is only one factor among many which must be considered by the probation officer in making such determinations. Appellant's argument is unsound and is not supported by existing case law. The rule sought by appellant would deprive the juvenile court of important relevant information it should have for purposes of adjudicating whether the minor committed the offense.

None of the cases cited by appellant supports such a rule. In In re Paul T., 15 Cal.App.3d 886, 893-894, 93 Cal.Rptr. 510, and in In re Garth D., 55 Cal.App.3d 986, 991-1000, 127 Cal.Rptr. 881, cited by appellant, the decisions holding statements inadmissible were based on other factors, and only mentioned in passing that the choice faced by the minor concerning whether to discuss the crime with the probation officer was difficult. Whether to make a statement to the police, to the probation officer, or to the court is a strategic consideration faced by every person accused of crime. The choice in some cases may be difficult, but it is not unfair, as contended by appellant. A person charged with a crime is not by virtue of that charge excused from making difficult decisions.

The instant case is not analogous to that of an adult defendant who, after his adjudication of guilt, discusses the case with a probation officer for preparation of a presentence report. (Pen.Code, s 1203.) In that case it is the rule that in order to achieve the purposes of section 1203, the defendant should be assured that his statements will not be used against him in any subsequent proceeding, although they will, of course, be admissible in the sentencing hearing. (People v. Harrington, 2 Cal.3d 991, 999-1000, 88 Cal.Rptr. 161, 471 P.2d 961; People v. Alesi, 67 Cal.2d 856, 862, 64 Cal.Rptr. 104, 434 P.2d 360; People v. Quinn, 61 Cal.2d 551, 554, 39 Cal.Rptr. 393, 393 P.2d 705.) The defendant's guilt already having been adjudicated, there is a public policy to encourage him to speak freely of the offense for sentencing purposes.

There is no similar public policy in the circumstances of this case. Here there had been no adjudication of guilt. The probation officer's consideration of the issues of detention and fitness was only incidental to the more basic question whether there was cause to believe that appellant committed an offense and whether proceedings in the juvenile court should be commenced. (Welf. & Inst.Code, ss 652, 653.) It would be contrary to public policy to hold that the results of the probation officer's investigation pursuant to Welfare and Institutions Code section 652 are inadmissible in juvenile court merely because the probation officer also had to consider whether to recommend detention or a fitness hearing.

The instant case is not analogous to that of a juvenile who makes a statement in connection with juvenile proceedings which is later used in criminal court. In Bryan v. Superior Court, 7 Cal.3d 575, 586-588, 102 Cal.Rptr. 831, 498 P.2d 1079, which appellant cites, the court held only that where a minor made admissions to the juvenile probation officer and the juvenile court in connection with juvenile proceedings, such statements were not admissible in a subsequent adult criminal proceeding following a determination that the minor was unfit for juvenile court treatment.^[FN1] Nothing in that case indicates that the juvenile court should be deprived of the minor's statement for purposes of the original adjudication in the juvenile court. This is shown by the Supreme Court's later decision in In re Michael V., 10 Cal.3d 676, 683, 111 Cal.Rptr. 681, 517 P.2d 1145. There the minor had made statements to the probation officer which were included in the “jurisdictional facts” portion of the probation report, and the court held that the juvenile court had properly read and considered the statements for purposes of the adjudication hearing.^[FN2]

Finally, appellant contends that the interrogation by Mr. Wright violated appellant's right to counsel. At the time of appellant's interview with Mr. Wright, appellant had another case pending in juvenile court. That case involved a purse-snatch robbery committed July 30, 1976. At the time of the interview, appellant had been adjudicated to have committed that offense, but the disposition was still pending. Mr. Wright testified that he was aware that appellant had the other matter pending, but he did not discuss it with appellant.

Appellant argues that Mr. Wright should not have questioned him about the instant offense without ascertaining whether appellant was represented by counsel in the other case and contacting such counsel. This contention is without merit. Appellant had not yet been formally charged with the instant crime. (People v. Duck Wong, 18 Cal.3d 178, 185-187, 133 Cal.Rptr. 511, 555 P.2d 297.) The fact that he might have been represented by counsel on an unrelated matter does not prevent his effective waiver of the right to counsel in speaking to Mr. Wright about the instant offense. (People v. Booker, 69 Cal.App.3d 654, 663-664, 138 Cal.Rptr. 347; see also People v. Chen, 37 Cal.App.3d 1046, 1048, 112 Cal.Rptr. 894.) The authorities cited by appellant are not persuasive. In In re Paul T., supra, 15 Cal.App.3d 886, 893, 93 Cal.Rptr. 510, the interrogation involved the same offense for which the minor was already represented by an attorney. In In re Garth D., supra, 55 Cal.App.3d 986, 992, 997, 127 Cal.Rptr. 881, although the attorney had originally represented the minor on another matter, he had undertaken to advise the minor and the probation officer concerning the charges involved in the interrogation. Tidwell v. Superior Court, 17 Cal.App.3d 780, 789-790, 95 Cal.Rptr. 213, did not involve an interrogation after a waiver of Miranda rights but rather a request for consent to a search.^[FN3]

The orders appealed from are affirmed.

FOOTNOTES

1.  Actually, Bryan has little remaining relevance, since the basis of its holding was the assumption that a minor could be prosecuted as an adult after a prior juvenile court adjudication of wardship, without violating constitutional prohibitions against double jeopardy. That assumption was later disapproved by the United States Supreme Court and is no longer operative. (In re Bryan, 16 Cal.3d 782, 129 Cal.Rptr. 293, 548 P.2d 693.)

2.  In re Michael V., supra, was decided under the same version of Welfare and Institutions Code section 701 in effect at the trial in this case. A new version went into effect on January 1, 1977.

3.  An amicus curiae brief attempts to raise for the first time on appeal an issue as to which no objection was made at trial, and therefore this argument will not be considered. (In re Dennis M., 70 Cal.2d 444, 462, 75 Cal.Rptr. 1, 450 P.2d 296.)

ASHBY, Associate Justice.

KAUS, P. J., and STEPHENS, J., concur.