PEOPLE v. DeWESTER (1981)

OPINION

We are called upon to review the propriety of a sentence to prison for 25 years to life (with a consecutive term of 2 years for the use of a firearm) for a first degree murder without special circumstances by a 17-year-old girl without a criminal or juvenile record.   Her victim was a mother of three.

FACTS

In December 1978, near the time of her 17th birthday, defendant Jeanice Annette DeWester moved into the Modesto trailer home of Nancy Anson, who was aged 26.   Shortly thereafter Anson discussed marriage with Jack Von Gunten, aged 27.¹  There was an impediment to marriage in the form of Jack's wife, Patricia Von Gunten.   The solution was murder, which would simultaneously free Jack from his wife and give him custody of their three children.   This was discussed at some length by the defendant and the betrothed and was shared with another person—a friend of Nancy.   Part of the plan was that defendant would make Nancy's wedding dress.   Defendant also indicated that she wanted to get revenge for a beating which Mrs. Von Gunten had given her several years earlier.

On January 23, 1979, Nancy Anson brought home a 20-year-old hitchhiker, Dennis Broome, for companionship for defendant.   The next day Dennis joined the plot.   He was told that the plan was that Jack would cause his wife to step out of their home by telling her that he had a surprise for her in the car.   Defendant, waiting outside with a gun, would then shoot her.

Shortly after disclosing the plan to Dennis, defendant said she could get a gun and left Nancy's trailer.   She broke into the nearby home of her former boyfriend and stole a .22 caliber rifle.   Defendant and her three companions then drove to a nearby dump where defendant test-fired the rifle.   After she successfully hit a Pepsi bottle at a distance of 30 feet, Jack drove to his residence and defendant, Nancy and Dennis followed in Nancy's car.   The three drove to a canal bank not far from the Von Gunten residence and parked.   They got out of the car and headed toward the house with defendant carrying the rifle.   Upon reaching a camper shell in the backyard, defendant crouched down behind it with the gun and remained in this position for a while, waiting for Mrs. Von Gunten to appear.   After about 10 minutes Jack came out and said he was unable to get his wife to come outside according to the prearranged plan.   After a short discussion between Jack and defendant in which she asked Jack if he had cut the telephone lines in the house, they agreed that Jack would go back into the house and in half an hour a fake robbery would be staged as a cover for the killing of Mrs. Von Gunten.

When approximately half an hour had elapsed, defendant, Nancy and Dennis entered the Von Gunten residence with defendant still carrying the rifle.   Jack was on the bed, fully dressed, and Mrs. Von Gunten was under the covers, undressed, watching television.   Defendant pointed the rifle at Mrs. Von Gunten and ordered her to get money and jewelry.   While Mrs. Von Gunten got dressed and retrieved some money from another room, defendant ordered Jack to leave the house.   Jack and Dennis stepped onto the back porch and waited.   Mrs. Von Gunten placed some money on the kitchen table, and then defendant ordered her to lie face down on the bed.

Defendant told Mrs. Von Gunten she was going to shoot her either because she had seen defendant's face or because of the alleged beating of defendant by Mrs. Von Gunten on a previous occasion.²  Mrs. Von Gunten got up from the bed, on the other side of the bed from defendant, and began to plead for her life.   Defendant shot her once in the chest, and ran from the house saying, “I did it, I did it.”

Following the shooting, defendant, Nancy, Dennis and Jack drove to the nearby residence of William Albert, a friend of defendant, where she dropped off the rifle, explaining to him that she would be taking a trip and could not take the rifle with her.   Nancy and Jack then drove defendant and Dennis to a nearby freeway.   Defendant and Dennis planned to hitchhike to Texas, and it was agreed that the four would meet in Reno for the marriage ceremony on the 14th of February.

Thereafter, Jack and Nancy returned to the Von Gunten house, took Mrs. Von Gunten's purse and buried Mrs. Von Gunten under the carport at the Von Gunten house.

Detective Walter Cline of the Merced County Sheriff's Department testified that on February 1, 1979, he interviewed defendant at the district attorney's office in San Antonio, Texas.³  At that time defendant had been in custody for a day following her apprehension by San Antonio police.   She made some admissions which will be discussed later.

Defendant's version of the events differs somewhat from that of the prosecution, but at the least established that she was guilty of felony murder (robbery).   She did deny, however, an intent to kill.

PROCEDURAL HISTORY

On May 17, 1979, after the defendant Jeanice DeWester had been found unfit for juvenile court trial, a jury found her guilty as charged of the first degree murder of Patricia Von Gunten and the use of a firearm in that offense (Pen.Code, § 12022.5).   On June 25, 1979, the trial court denied defendant's motion to remand her to the California Youth Authority (YA or Youth Authority) for evaluation and report pursuant to Welfare and Institutions Code section 707.2, and sentenced her to state prison for the term prescribed by law (25 years to life) on the murder charge and an additional 2 years for the firearm enhancement.   She was placed in the California Institute for Women at Frontera.   At the time of admission, she was the youngest inmate there.   Defendant filed her timely notice of appeal.   While that appeal was pending, defendant also filed a petition for writ of habeas corpus, challenging the refusal of the trial court to consider a Youth Authority disposition or to obtain a mandatory diagnostic evaluation, pursuant to Welfare and Institutions Code section 707.2.   This court granted the writ on November 21, 1979, but that order was vacated by a grant of hearing by the Supreme Court.

On October 20, 1980, the Supreme Court granted a writ.  (In re Jeanice D. (1980) 28 Cal.3d 210, 168 Cal.Rptr. 455, 617 P.2d 1087.)   The trial court was “directed to recall petitioner from state prison, to refer her to the CYA for evaluation and report, and thereafter to determine the appropriate disposition of the case pursuant to the provisions of section 707.2.”  (Id., at p. 221, 168 Cal.Rptr. 455, 617 P.2d 1087.)

Pursuant to the Supreme Court's order, Ms. DeWester was recalled from state prison and, on January 12, 1981, was remanded to the Youth Authority for evaluation pursuant to section 707.2.   The Youth Authority prepared an evaluation report that was filed in the superior court.   A supplemental probation report was then filed.   At the resentencing on April 16, 1981, the court again committed Ms. DeWester to state prison for an indeterminate term of 27 years to life.   Notice of appeal was timely filed from the April 16, 1981, judgment.

SENTENCING PROCEEDINGS

1. The Original Probation Report (June 1979)

The original probation report, filed on June 25, 1979, noted that defendant had no prior juvenile or adult criminal record, and only one traffic citation (for unlicensed driving).

The report discussed defendant's family background.   Her mother abandoned her when she was three months old and her father was in prison, so she was raised by various relatives until the age of six years.   Between the ages of six and twelve, she lived with her father and his common law wife.   When she was 13, she moved to California with a boyfriend and married him while she was 14, a few days after giving birth to their son.   Her husband was physically abusive toward defendant.⁴  When the baby was nine months old, the father took him out of state.   Defendant has not seen the baby or her husband since then.

Defendant had quit school at the age of 13, after completing the fifth grade.   Mental health testing indicated she had sixth grade level academic ability.

The report noted that she “has been very sociable and cooperative with all of the agencies assigned to work with her, and has freely given information about her background.   Most of those who have had contact with her, however, are struck by what appears to be a lack of remorse or anxiety regarding the offense.” ⁵  The report also notes a history of alcohol and drug abuse and concludes that “[i]t is very difficult to recommend a disposition that would result in the incarceration of a teenager until she reached middle age, but it is felt the protection of society must be a primary consideration.”   The probation officer recommended state prison commitment primarily because of the need for the protection of society.

The original probation report included psychological reports by Dr. William Boblitt and other social workers.⁶  Dr. Boblitt noticed that on some of the psychological tests, “[t]here were indications of a systematic attempt to manipulate the responses in such a way as to ‘fake normal.’  ․ There was no evidence of guilt or high-level anxiety․  She sees other people as vulnerable to her skills but does have a tendency to be overconfident in many situations and to attempt more things than she is capable of doing well.”   Dr. Boblitt concluded that “[s]he is also seen as a poor candidate for psychotherapy.   Ms. De Wester [sic] is not apt to make any major positive change in the next few years.”   Although not stated in Dr. Boblitt's report, the probation officer noted that Dr. Boblitt had advised that “he considers defendant the most dangerous person he has ever run across and feels she is not appropriate for the California Youth Authority programs.”   The doctor was not called to testify to either corroborate or repudiate that statement.

2. The Youth Authority Evaluation (March 1981)

The Youth Authority evaluation notes in the 17 months that Jeanice spent in prison prior to the evaluation she had obtained her GED (high school graduation equivalent).   Her use of marijuana beginning at the age of nine, LSD at the age of twelve, and cocaine, barbiturates, and amphetamines also is discussed.

Jeanice was found to be “adjusting well, in that, she is cooperative, usually mature behaving, self-directed and fits in well with the general YA population.”   She appeared “to be ambitious for herself and goal directed” with the ambition of getting a college degree while in YA and eventually attending law school.   She was remorseful about the death of the victim.

The overall conclusion was that “Jeanice DeWester is amenable to rehabilitative programs as provided by the CYA and that furthermore, after a psychiatric evaluation as well as a psychological evaluation, it was determined that she is neither a danger to herself or to others at this time.”

The Youth Authority evaluation also contains individual reports from Margo Krystian, a psychology associate, and Dr. A. M. Greene, a staff psychiatrist.

Ms. Krystian described Jeanice as “half woman, half child,” and stated that “there do not appear to be any counterindications [sic] to treating Jeanice within the California Youth Authority structure.”   Ms. Krystian's final conclusions were as follows:

“Given the advantage of two years hindsight it is possible to see that Jeanice is making productive use of the experience and that some attitudinal changes have already occurred.   The energy and drive which formerly found a destructive course are now being rechanneled into constructive directions.   Jeanice has made considerable academic, vocational and personal progress since her incarceration, which indicates that the remaining six years of jurisdiction available to the Youth Authority should be adequate to bring about the ultimate desired changes in attitude and behavior.   Her native intelligence, combined with the consistency of a stable environment, seem to be the necessary constructs to bring about rehabilitation and rechannel formerly negative energies.   Finally, Jeanice's adjustment at this Youth Authority facility has been totally acceptable and she readily fits into the population mainstream.   It appears to be an environment conducive to optimal change in this young woman.”

Dr. Greene in his report notes that Jeanice “does not deny that she caused a death, but she denies intent ․” ⁷  Dr. Greene concludes his report as follows:

“The imperious and grandiose personality as well as the asocial conduct has grown out of the extended family background experiences.   The lack of remorse is also a function of an inadequate self with its defensive pride․  There are no contraindications for the utilization of the California Youth Authority as a suitable agency for rehabilitation of this offender.   This offender does not appear to be a danger to others in that she could unduly influence other wards.”

3. The Supplemental Probation Report (April 1981)

After receipt of the diagnostic report, the probation officer filed a supplemental report, in which he stated that some of the information presented by Ms. Krystian and Dr. Greene “may be somewhat inconsistent with the conclusions that defendant presents no danger to society.”  (To support this statement, he alludes to a history of polydrug and alcohol abuse, an unfortunate lifestyle and an unrealistic goal of attending law school, as well as “[i]t is also felt she may still be avoiding direct responsibility for the victim's death.”)   The report then goes on to state that the primary concern of the probation department is a fear that Jeanice would do less than five additional years in custody, perhaps as little as two or three years, as compared to the minimum of fourteen more years if she were returned to prison.

The court made the following comments at the second sentencing:

“THE COURT:  All right, Jeanice I've indicated I've read all these reports a number of times.   I've read all the cases that have been referred to.   I've listened intently to your attorneys and to the District Attorney and now it's my duty to make a decision in this matter.

“I'm aware that I have the discretion to send you to the Youth Authority or to commit you to prison.   That is my choice now and mine alone.

“There are conflicting factors that are involved in the Court's decision.   Your attorneys have indicated the progress you made in the two years, your deprived childhood, and the fact that you appear to be amenable to treatment at the Youth Authority.

“The Youth Authority people themselves indicate that you are amenable to treatment and that it's possible that rehabilitation or reformation can occur within the time prescribed by law for your confinement there, that is the maximum age of 25.

“The Court has also considered the report of Dr. Boblet [sic] as it did at the time of the original sentencing in this matter, the report of the Probation Officer, the Court considers both of those persons to be experts upon whom the Court can rely, as well as those experts from the Youth Authority.

“We have experts then who come to different conclusions and the Court has to make the ultimate decision.

“Again I listened to the trial, in fact I think I had not only your trial but that of Nancy Anson.   I believe that you were as sophisticated as the co-participants in the crime.   I believe that you planned with those persons the taking of Mrs. VonGunten's [sic] life a considerable period of time before the actual killing, that there was some talk about you being in a wedding party, preparing a wedding dress some days before this event took place.

“I'm also aware that you secured the weapon with which the actual shooting which caused the actual death of the victim, that the plan was played, that when you got to the scene that the plan could not be carried out because Mrs. Von Gunten would not leave the house, that immediately on the spot another plan was devised in the event and you then went in the house and took Mrs. Von Gunten's life.

“To me then there was a considerable amount of planning, a sophistication involved with the offense itself.   I think you're probably smarter than the other people and are equally to blame as they, even though they were several years older than you.

“They have also been before the Court, and as I understand it, have been sentenced as adults to a 25 years to life term.

“Your attorney now, because of your age and your background, asks me to treat you differently than they.   I don't feel that I intend or will do that.

“I've tried to balance all of these things.   I feel that in balancing the needs of the community, of the state, the people of the state, and the laws as I read them and understand them, that the choice that I have, the discretion I have in committing you to the Youth Authority is a discretion that I do not care to exercise.

“It is therefore my order that you be committed to the state prison for a term of 25 years to life.”

Defense counsel then asked the court to strike the punishment for the Penal Code section 12022.5 enhancement, due to the length of the term already imposed and the strong mitigating factor of no prior record.   The court rejected this request and imposed the consecutive two-year enhancement.

WAS THERE SUBSTANTIAL EVIDENCE TO SUPPORT A FINDING OF UNSUITABILITY FOR COMMITMENT TO THE YOUTH AUTHORITY?

 People v. Carl B. (1979) 24 Cal.3d 212, 155 Cal.Rptr. 189, 594 P.2d 14 reversed a sentence to state prison of a person who was 17 years old following a plea of guilty to a charge of robbery (Pen.Code, § 211), with infliction of great bodily injury (id., § 12022.7) and use of a firearm (id., § 12022.5).   At the hearing to enter the plea, he admitted that he had shot and robbed the victim, taking approximately $65 from him.   A probation report disclosed that four years earlier, he had been placed in a state forestry camp ⁸ after he was found in possession of a loaded pistol on school grounds.   He was an escape risk, since after his apprehension on the robbery charge, he escaped and fled to another state, from which he was extradited.

After a remand to the Youth Authority for an evaluation and report pursuant to section 707.2 of the Welfare and Institutions Code, the Youth Authority submitted its report finding that defendant Carl B. was amenable to YA programs.   The trial court sentenced him to prison because it was not “convince [d]” that he would not recidivate, and because the court wished to “protect society just as long as I can ․”

Although the trial court made no express finding that the defendant was not suitable for the Youth Authority, the Supreme Court stated that such a finding was implied in the trial court's ruling.   Our high court held that although the trial court was not bound by YA's recommendation, expertise of the Youth Authority is entitled to great weight and should be followed in the absence of substantial countervailing considerations.   Such considerations were not extant in the case before it, since YA could confine the defendant for as long as his prison sentence, and YA's facilities are adequate for the training and treatment of serious offenders.   The seriousness of a defendant's conduct, of itself, would not ordinarily constitute a legally sufficient ground for rejection of a YA recommendation under section 707.2.   Since neither reason given by the sentencing court constituted a legally sufficient ground for rejecting YA's finding of amenability, its contrary implied finding lacked the support of substantial evidence.

It is our duty to apply Carl B. to the circumstances of the instant case.

To summarize, the court relied on the following factors to substantiate its implied ⁹ finding of unsuitability: ¹⁰  the report of Dr. Boblitt;  the report(s) of the probation officer;  the fact that the defendant is as sophisticated as the coparticipants in the crime;  the planning of the taking of the victim's life over a considerable period of time;  the fact that the defendant secured the murder weapon and fired the fatal shot;  the fact that an alternative plan was devised when the first one failed;  the fact that she was “smarter” than the coparticipants and the others have been sentenced as adults to a 25-year-to-life term.   We consider these factors seriatim.

The report of Dr. Boblitt was not entitled to great weight.   His report was dated February 23, 1979, more than two years before the second sentencing.   The sentencing court rejected a defense request that Jeanice be examined again and the court furnished with the current report.   Dr. Boblitt's finding that “she is not apt to make major positive change in the next few years” has proven wrong.   While incarcerated, the defendant made productive use of her time.   Some attitudinal changes had already occurred, with her energy being channeled in constructive directions.   In addition, she had made considerable academic, vocational and personal progress.   Although she quit school after attending the fifth grade, she obtained her GED (high school equivalent) in the first 17 months she spent in prison.   She is now ambitious for herself and goal directed.   She expressed some remorse about the death of the victim, especially the effect that the death had on the victim's children.   Dr. Boblitt's prediction that she is potentially dangerous falls within that category of psychiatric judgments that are particularly prone to error.   See the discussion in People v. Murtishaw (1981) 29 Cal.3d 733, 768–769, 175 Cal.Rptr. 738, 631 P.2d 446, citing various studies showing that such prophecies consistently err on the side of predicting violence which never materializes.

The recommendation of the probation officer should be evaluated in light of the opinions given.   In his report, the probation officer was concerned with the history of polydrug abuse,¹¹ an unfortunate lifestyle, an unrealistic goal of attending law school and avoidance with responsibility for the crime.   Of the four, only the first and last have value.   Defendant's lifestyle is reflected by the fact that with the exception for a citation for driving while unlicensed, she is arrest free.   The goal of attending law school, if unrealistic, is no more fanciful than the occupational plans of many people her age.   According to the diagnostic report, she is now accepting some responsibility for the crime.   The YA diagnostic study indicated that drug counseling would be offered her if defendant were committed to the Youth Authority.

We have difficulty in understanding how the defendant can be called sophisticated, unless the word is used in the sense of being street wise.   Certainly the crime itself was unsophisticated.   Although the crime was planned, there was no sophisticated planning.   Also, the parties left a clear trail of evidence to be used in identifying and apprehending them.   The motive for the crime was juvenile.  “Sophistication,” as used in section 707 of the Welfare and Institutions Code, is coupled with the adjective “criminal.”  (And see Jimmy H. v. Superior Court (1970) 3 Cal.3d 709, 716, 91 Cal.Rptr. 600, 478 P.2d 32, which gives as factors which a court should consider in determining if a minor is amenable to treatment as a juvenile under section 707 of the Welfare and Institutions Code before its amendment in 1975, “his degree of sophistication especially as the same may relate to criminal activities ․”)

 The factor of the planning of the taking of a life over a considerable period of time is a relevant factor and was properly considered.   However, as noted in Carl B., supra, 24 Cal.3d at page 219, 155 Cal.Rptr. 189, 594 P.2d 14, the seriousness of defendant's conduct, by itself, is not ordinarily a sufficient ground for rejecting a YA recommendation, since it is YA's business to deal with serious offenders.   Furthermore, the first appeal in this case, In re Jeanice D., supra, 28 Cal.3d 210, 168 Cal.Rptr. 455, 617 P.2d 1087, is direct authority that the nature of the offense in this case does not preclude a commitment to YA.

The above reasoning applies with equal force to the factors that the defendant procured the weapon and used it, as well as the fact that an alternative plan was devised on the spot when the first one failed.   The fact that the defendant was “smarter” than the coparticipants was noted by the trial judge.   We infer from this statement that the court was of the opinion that she was a free agent during this crime and not under the dominion of the adults.   There is no reason to believe that this would preclude a commitment to YA.   In this connection, we note that in the words of Ms. Krystian of the YA diagnostic team, the defendant functions as “half woman, half child.”

In the “closely analogous situation” of determining whether a minor is a fit and proper subject to be dealt with under the juvenile court law (see Welf. & Inst.Code, § 707 et seq.;  People v. Carl B., supra, 24 Cal.3d at p. 218, 155 Cal.Rptr. 189, 594 P.2d 14), only one (the last) of the five criteria specified by the Legislature as considerations of unfitness applies in a negative way to the instant case.   The five criteria are:

“(1) The degree of criminal sophistication exhibited by the minor.

“(2) Whether the minor can be rehabilitated prior to the expiration of the juvenile court's jurisdiction.

“(3) The minor's previous delinquent history.

“(4) Success of previous attempts by the juvenile court to rehabilitate the minor.

“(5) The circumstances and gravity of the offense alleged to have been committed by the minor.”  (Welf. & Inst.Code, § 707, subd. (a).)

The fact that the two coparticipants were sentenced as adults is totally irrelevant.   The defendant was not an adult at the time of the commission of the offense.   The Legislature has provided disparate treatment for minors.   Although Welfare and Institutions Code section 707 provides for a finding that the minor is not a fit and proper subject to be dealt with under the juvenile court law in certain cases,¹² section 707.2 provides that no such person may be sentenced to state prison without a finding that the minor is not a suitable subject for commitment to the Youth Authority.

The Determinate Sentencing Act effective July 1, 1977, represented a significant and substantial shift in penological theory.   The Legislature provided that “[T]he purpose of imprisonment for crime is punishment.   This purpose is best served by terms proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances.”  (Pen.Code, § 1170, subd. (a).)  It is the mission of the Youth Authority, on the other hand, to protect society by rehabilitation, not retribution.  (Welf. & Inst.Code, § 1700.) ¹³

 We believe that a proper interpretation of these sections is that the retributive purposes of Penal Code section 1170, subdivision (a), and the goal of equality in sentencing come into play only if a person who was a minor during the commission of the offense is, in the words of section 707.2, “not a suitable subject for commitment to the Youth Authority.”   It was therefore error to rely on the factor of uniformity in sentencing in determining whether to commit to the Youth Authority.

There was an absence of substantial countervailing considerations which would justify the trial court in rejecting the recommendation of the Youth Authority.   At the time of the second sentencing (April 16, 1981), the defendant was 19 years of age.   The YA could incarcerate her until her twenty-fifth birthday, on December 27, 1986, approximately eight years after her initial incarceration and some five and one-half years after the second sentencing.

 There was no substantial evidence before the trial court that rehabilitation might require treatment beyond the date of mandatory discharge.   The supplemental report of the probation officer expresses concern that a YA commitment would result in a “release into the community ․ long before defendant is able to function satisfactorily there, and long before her debt to society has been paid.”   The fear was expressed that YA would give credit for time served and that the defendant might be released after serving approximately five years total time.   The appropriate consideration is not whether the YA will in its discretion release at a given time;  it is assumed that official duty will be performed (McCaleb v. Dreyfus (1909) 156 Cal. 204, 208, 103 P. 924;  In re Hartmann (1938) 25 Cal.App.2d 55, 60, 76 P.2d 709) and that the Youth Authority Board would not release defendant if it deemed that she was not able to function satisfactorily in the community.   As indicated in Jimmy H. v. Superior Court, supra, 3 Cal.3d 709, 715, 91 Cal.Rptr. 600, 478 P.2d 32, when discussing an analogous problem concerning a former version of section 707, the relevant question is whether the YA's mandatory discharge date would occur before rehabilitation had occurred.

We conclude that there was no showing of “substantial countervailing considerations” (People v. Carl B., supra, 24 Cal.3d at p. 215, 155 Cal.Rptr. 189, 594 P.2d 14) to support the exercise of trial court discretion to sentence to prison.

This case is to be distinguished from one in which a repeat offender has demonstrated an inability to respond to YA and other rehabilitative treatment.  (See People v. Lujan (1981) 125 Cal.App.3d 166, 178 Cal.Rptr. 122.)

MIRANDA ISSUE

 Defendant also contends that certain statements that she made to Detective Cline of the Merced County Sheriff's Department should have been excluded as violative of Miranda ¹⁴ requirements.

While in custody in Texas Detective Cline advised defendant of her Miranda rights by reading them from a prepared card.   When asked whether she wanted to talk about the incident, defendant responded that she did not know.   The detective asserted that he had to have an answer one way or the other, and that a simple yes or no would suffice, after which and without hesitation she agreed to talk.

Defendant cites several cases to support the proposition that her statement “I don't know” was an invocation of her rights under Miranda and its California prodigy.   All of the cases cited are factually distinguishable.   Defendant did not make a phone call to her attorney prior to questioning (People v. Randall (1970) 1 Cal.3d 948, 953, 83 Cal.Rptr. 658, 464 P.2d 114), nor did she request the police to “call my parents for an attorney” (People v. Ireland (1969) 70 Cal.2d 522, 533, 75 Cal.Rptr. 188, 450 P.2d 580), or ask to speak with her parent ¹⁵ (People v. Burton (1971) 6 Cal.3d 375, 379, 99 Cal.Rptr. 1, 491 P.2d 793).   She did not refuse to sign a waiver of her constitutional rights (People v. Fioritto (1968) 68 Cal.2d 714, 717, 68 Cal.Rptr. 817, 441 P.2d 625), and she did not request advice about whether or not she needed an attorney (People v. Superior Court (Zolnay) (1975) 15 Cal.3d 729, 732, 125 Cal.Rptr. 798, 542 P.2d 1390).   She was not induced to talk by assurances that it would be off the record.  (People v. Braeseke (1980) 28 Cal.3d 86, 87, 168 Cal.Rptr. 603, 618 P.2d 149.¹⁶ )

Defendant also contends that Detective Cline's statement that he had to know whether she wanted to talk or not “constituted improper police pressure which necessitates suppression.”   Respondent effectively answers this argument:

“Miranda, as well as the California cases which have applied it, requires the cessation of interrogation only upon an indication that the suspect wishes to invoke Fifth Amendment rights.  (Miranda v. Arizona (1966) 384 U.S. 436, 473–474, 86 S.Ct. 1602, 1627–1628, 16 L.Ed.2d 694;  People v. Pettingill (1978) 21 Cal.3d 231, 240–241, 145 Cal.Rptr. 861, 578 P.2d 108.)  Miranda ‘leaves unaffected the right of the police to clarify whether the suspect understood his constitutional rights or intended to waive them.   Accordingly, the case law draws a sensible distinction between clarification and interrogation.   On the one hand, it permits clarifying questions with regard to the individual's comprehension of his constitutional rights or the waiver of them;  on the other hand, it prohibits substantive questions which portend to develop the facts under investigation.’  (People v. Turnage (1975) 45 Cal.App.3d 201, 211, 119 Cal.Rptr. 237.)”

Detective Cline's statement to defendant that he needed to know whether she would talk constituted nothing more than an attempt to elicit a clarifying response.   The case is unlike People v. Williams (1979) 93 Cal.App.3d 40, 155 Cal.Rptr. 414 where the police officer did not limit his questions to clarifying whether the defendant desired to talk without the presence of an attorney, but instead exerted pressure to make a statement by accusing the defendant of lying, of pretending confusion, and by questioning about the facts of the crime.  (At pp. 62–63, 155 Cal.Rptr. 414.)

People v. McGreen (1980) 107 Cal.App.3d 504, 520–522, 166 Cal.Rptr. 360, provides guidance by analogy.   The defendant in McGreen had been arrested for robbery and burglary and the following interrogation was tape recorded after the defendant had been advised of his Miranda rights:

The defendant asserted that the questioning of him should have stopped at the point when he shook his head, between lines 3 and 4 of the quoted material.   The defendant apparently was relying, like defendant herein, on the statement in Miranda that “[i]f the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.”  (Miranda, supra, 384 U.S. 436, 473–474, 86 S.Ct. 1602, 1627–1628, 16 L.Ed.2d 694;  accord People v. Randall, supra, 1 Cal.3d 948, 954, 83 Cal.Rptr. 658, 464 P.2d 114.)   The McGreen court cited Turnage, supra, 45 Cal.App.3d 201, 211, 119 Cal.Rptr. 237, that clarifying questions are permitted regarding a waiver, but that substantive questions are not.   The McGreen court continued:

“Appellant's head shake, occurring between lines 3 and 4 of the above portion of the transcript, was a negative response to the request for a waiver of rights.   But it was not inappropriate for the officer, who was making a tape-recorded record, to ask appellant to verbalize his response.   A reasonable interpretation of the ‘No’ which appellant uttered at line 7 is just such a verbalization.   On the other hand, at that point, appellant's ‘No’ was not responsive because the officer had not asked any question.   In any case, the officer's further question at line 8 was ‘clarifying,’ not ‘substantive,’ in the sense stated by Turnage.”  (McGreen, supra, 107 Cal.App.3d 504, 522, 166 Cal.Rptr. 360, emphasis added.)

Since the facts are uncontradicted, we independently determine whether the prosecution has proven that a valid Miranda waiver occurred, using the standard of beyond a reasonable doubt.  (People v. Murtishaw, supra, 29 Cal.3d 733, 753, 175 Cal.Rptr. 738, 631 P.2d 446;  People v. Jimenez (1978) 21 Cal.3d 595, 609, 147 Cal.Rptr. 172, 580 P.2d 672.)

Since this is not a per se case (cf. People v. Burton, supra, 6 Cal.3d 375, 99 Cal.Rptr. 1, 491 P.2d 793), we inquire into the totality of the circumstances surrounding the interrogation to ascertain whether defendant in fact knowingly and voluntarily decided to forego her rights to remain silent.   (Fare v. Michael C. (1979) 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197.)

The defendant had been emancipated for several years.   She was 17 years old, had been married, and, although she had little formal education, functioned in some ways as an adult.   She indicated that she understood her Miranda rights, and, in a braggadocio way, stated that she had been read them hundreds of times.  (As indicated above—she has no record, so this could not have been a statement of fact.   It, however, indicates no need on defendant's part for any clarification of her rights.)

We conclude that the record in this case shows beyond a reasonable doubt that the defendant voluntarily and knowingly waived her Miranda rights and consented to an interrogation without the presence of an attorney.   It follows that the admission of those statements in the trial below was not error.

The judgment is reversed insofar as it directs that defendant be punished by imprisonment in state prison.   The cause is remanded to the superior court for an order committing her to the California Youth Authority.

FOOTNOTES

1.   Von Gunten had a learning disability.

2.   Jack testified he had heard defendant give the former as the reason, Nancy testified as to the latter.

3.   Defendant had called Nancy from Texas to give her her address.

4.   The information about abuse is from the YA evaluation.

5.   See footnote 6, post.

6.   Jeanice was administered a battery of psychological tests by John A. Testa, as part of her psychological evaluation.   Mr. Testa's evaluation notes that “[t]here was no remorse or guilt felt in this [interview] nor any felt during my prior evaluation of Ms. DeWester and her alleged killing of Mrs. Van Gunten [sic].”  Dr. Boblitt reflected the same sentiments:  “She shows an amazing lack of guilt or remorse considering the circumstances under which she currently finds herself.”

7.   Also part of the YA evaluation was a background statement written by Jeanice herself on March 23, 1981.   In that handwritten statement Jeanice makes the following assertion:  “I know I can not replace the life I took, I wish I could, [b]ut I know I can't.   Although I can honestly say I did not have the intent to harm anyone when this happened.”

8.   We are not told, but infer, that a juvenile court had committed the defendant to the Youth Authority which placed him in camp.

9.   See Carl B., supra, 24 Cal.3d at page 217, 155 Cal.Rptr. 189, 594 P.2d 14.

10.   The words “suitable” and “amenability” are both used in Welfare and Institutions Code section 707.2.   The concepts appear to be used interchangeably.

11.   There is no indication of opiate abuse.

12.   Such a finding carries with it significant sequelae.   The maximum term of confinement is advanced from age 23 to 25.  (Welf. & Inst.Code, §§ 1769, 1771.)   The minor is given an adult record.

13.   Welfare and Institutions Code section 1700 provides:“The purpose of this chapter is to protect society more effectively by substituting for retributive punishment methods of training and treatment directed toward the correction and rehabilitation of young persons found guilty of public offenses.   To this end it is the intent of the Legislature that the chapter be liberally interpreted in conformity with its declared purpose.”

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

15.   Defendant's stepmother was available, in that defendant was at her stepmother's house when she was arrested in Texas.

16.   The original judgment of the Supreme Court of California, reported at 25 Cal.3d 691, 159 Cal.Rptr. 684, 602 P.2d 384, was vacated and remanded by the Supreme Court of the United States for determination of whether the judgment was based on federal or state constitutional grounds.  (446 U.S. 932, 100 S.Ct. 2147, 64 L.Ed.2d 784.)   The material cited to appears in 25 Cal.3d supra, at pages 701–703, 159 Cal.Rptr. 684, 602 P.2d 384, which opinion was reiterated in its entirety in 28 Cal.3d supra, at page 87, 168 Cal.Rptr. 603, 618 P.2d 149.

ANDREEN, Associate Justice.

ZENOVICH, Acting P. J., and BACA, J.,* concur.