In re B.J.








Filed 9/30/11 In re B.J. CA5




NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

In re B.J., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent, v. B.J., Defendant and Appellant.	F061651 (Super. Ct. No. 09JQ0133D) OPINION

THE COURT^*
APPEAL from a judgment of the Superior Court of Kings County. George L. Orndoff, Judge.
Robert P. Whitlock, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and David A. Lowe, Deputy Attorneys General, for Plaintiff and Respondent.
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The juvenile court found that B.J., the minor, had committed felony vandalism when he defaced the truck of Josh G. He appeals arguing his counsel’s failure to raise an objection to the adequacy of the Miranda (Miranda v. Arizona (1966) 384 U.S. 436) warnings given to him prior to making incriminatory statements was ineffective assistance of counsel. He also claims that under the totality of the circumstances his confession was coerced and his counsel was ineffective in challenging the admissibility of his statement on constitutional grounds.
STATEMENT OF THE CASE AND FACTS
Josh, a high school student, had an argument and then fought with Jake W. B.J. and Jake were friends. On Friday, September 10, 2010, Josh drove his truck to the high school football game. He intentionally parked his truck in a spot that was filmed by the school camera. Because Josh was a football player, his truck remained in the parking lot during the entire game.
The following Monday one of Josh’s friends noticed that someone had scratched an expletive on the rear passenger panel of Josh’s truck. Josh reported the vandalism of his truck to the campus police officer, Oscar Lucio. Officer Lucio and Josh reviewed a video that showed his truck during the football game. Four individuals were seen near his truck, but neither Josh nor Officer Lucio could identify the individuals on the tape. Officer Lucio then looked at the individuals from a view taken on a different camera and with the help of another student was able to identify B.J. as one of the individuals seen close to Josh’s truck during the football game.
Josh learned B.J. was a suspect and confronted him at school. Josh asked B.J. if he had scratched his truck. B.J. said that he had scratched the truck and also said he had been drinking that evening. Josh also asked B.J. if he was going to pay for the damage and B.J. said he would. Josh’s father provided an estimate for the repairs to the truck in the amount of $1,074.
Officer Lucio spoke to B.J. in the office at school. B.J. was read his Miranda rights and was asked if he would agree to talk to Officer Lucio. B.J. agreed to talk and Officer Lucio asked him about what happened the night of the football game. B.J. was asked who he was with that evening and was asked why he had scratched the truck. B.J. said he did not remember doing anything. He admitted he was friends with the boy that Josh had a fight with two days before the football game. Officer Lucio informed B.J. that he had been told that B.J. was with the group going towards the back of the truck, and again B.J. was asked why he had scratched the truck. After again stating he did not remember doing anything to the truck, B.J. then said he probably did it. Officer Lucio pressed B.J. and asked him why he was denying his actions when it was pretty obvious that he was the one responsible. He replied that he was not denying it and repeated that he had already told the officer he probably did it, and probably meant yes.
Based on the above incident, a petition was filed alleging that 15-year-old B.J. had committed one count of felony vandalism with damage in excess of $400. The report prepared for the hearing listed 13 referrals to the probation department for B.J. These referrals included arson, disturbing the peace, resisting an officer, being a runaway, second degree burglary, battery with great bodily injury, unlawful sex with a minor, as well as, multiple acts of violating curfew. B.J. was on probation at the time of the current offense, the current offense would be his third adjudicated felony, and he had previously been required to complete a 90-day program.
A contested jurisdictional hearing was held on December 7, 2010. Josh and Officer Lucio testified as previously set forth. B.J. testified on his own behalf that he was pulled out of class and reported to Officer Lucio’s office. Officer Lucio asked him if he did something and then told him “you know what you did.” B.J. claimed that he told Officer Lucio he did not know what he had done. The video was shown to B.J. several times and he denied doing anything at least three or four times. In addition, B.J. told Officer Lucio the individual on the video did not look like him.
B.J. looked out the window of Officer Lucio’s office and saw his friends walking by. Officer Lucio kept insisting that B.J. was the person responsible for the vandalism. B.J. kept looking at his friends and thought if he told Officer Lucio he was responsible, then Officer Lucio would let B.J. leave the office. B.J. told Officer Lucio he “probably” did it.
Although B.J. denied having anything to do with the vandalism to the truck, he admitted he remembered walking in the parking lot with four others during the football game. One of the four people in the group was Marcus S.
Marcus testified that he was with B.J. in the parking lot during a football game and he did not see him scratch a red pickup truck. On cross-examination Marcus said he remembered walking by the red truck. When asked why he specifically remembered the red truck when there were several hundred vehicles in the parking lot that evening, Marcus replied that he remembered the truck because of the way it was parked and where it was parked.
The court found B.J. committed the crime with which he was charged and committed B.J. to the Kings County Juvenile Academy Bravo Program.
DISCUSSION
B.J. contends his counsel was ineffective because he failed to challenge the adequacy of the Miranda warnings and thus deprived B.J. of a potentially meritorious defense. It is his assertion there was no tactical reason for counsel to not object and a reasonably competent attorney would have challenged the admissibility of the statements. To support his position he points to the testimony of Officer Lucio and claims the officer was not asked whether he had provided the full Miranda warnings to B.J. nor did he inquire whether B.J. was willing to speak with him.
We begin by noting that B.J.’s interpretation of the facts is lacking. Officer Lucio was asked if he had given B.J. his Miranda rights. Officer Lucio said he did. Officer Lucio was asked if he had asked B.J. if he would agree to talk to him. Officer Lucio replied that he did ask B.J. if he would agree to talk to him. Finally, Officer Lucio was asked if B.J. agreed to talk to him. Officer Lucio replied, yes. We equate an agreement on B.J.’s part to talk to Officer Lucio with a willingness to speak with Officer Lucio.
“Under Evidence Code section 353, subdivision (a), a judgment can be reversed because of an erroneous admission of evidence only if the record contains an objection both ‘“timely made and so stated as to make clear the specific ground of the objection’” or motion. [Citation.] If a defendant fails to make a timely objection on the precise ground asserted on appeal, the error is not cognizable on appeal. [Citation.] Accordingly, unless a defendant asserts in the trial court a specific ground for suppression of his or her statements to police under Miranda, that ground is forfeited on appeal .…” (People v. Polk (2010) 190 Cal.App.4th 1183, 1194.)
There was no objection to the admission of B.J.’s statements at the contested jurisdictional hearing. The issue is forfeited. Although recognizing that forfeiture applies, B.J. contends his counsel was ineffective in failing to challenge the admissibility of his statements. “[A] claim of ineffective assistance of counsel in violation of the Sixth Amendment entails deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of an adverse effect on the outcome.” (People v. Huggins (2006) 38 Cal.4th 175, 248.) “A court need not ‘address both components of the inquiry if the defendant makes an insufficient showing on one.’ [Citation.] ‘Defendant bears the burden of proving ineffective assistance of counsel.’” (People v. Camino (2010) 188 Cal.App.4th 1359, 1377.)
B.J. has failed to demonstrate his counsel’s performance was deficient. We “must ‘accord great deference to counsel’s tactical decisions’ [citation] and ‘indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance …’ [citation]. Furthermore, ‘[i]f the record contains no explanation for the challenged behavior, an appellate court will reject the claim of ineffective assistance “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.”’” (People v. Camino, supra, 188 Cal.App.4th at p. 1377.)
There is nothing in the record to suggest anything was amiss regarding the questioning of B.J. by Officer Lucio. There is every possibility that B.J.’s counsel had explored the issue of Miranda and had determined there was no basis to challenge the statements that were made. The failure of counsel to raise an objection under the facts of this record does not support a finding that counsel was ineffective.
Next, B.J. argues that under the totality of the circumstances it was demonstrated his confession was coerced and his counsel was ineffective for not challenging the admissibility of that statement on constitutional grounds. In particular, B.J. contends the evidence demonstrates he felt he had no choice but to admit the act in order to be released from Officer Lucio’s authority. B.J. repeats his earlier argument that his confession was obtained absent a knowing and intelligent waiver and uses this as additional evidence that his statements were coerced. Again, B.J. raises the issue first on the merits, and then secondarily as a challenge to the effectiveness of his counsel.
“A confession is involuntary if it is the result of coercive police activity. [Citation.] The question is whether defendant’s will was overborne.” (People v. Mays (2009) 174 Cal.App.4th 156, 164.) “‘“‘The question posed by the due process clause in cases of claimed psychological coercion is whether the influences brought to bear upon the accused were “such as to overbear [the accused’s] will to resist and bring about confessions not freely self-determined.” [Citation.]’ [Citation.] In determining whether or not an accused’s will was overborne, ‘an examination must be made of “all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation.”’”’” (People v. McWhorter (2009) 47 Cal.4th 318, 347.)
Assuming for the sake of argument we accept B.J.’s account of what occurred, we fail to see any coercive activity related to the questioning. B.J. was in a room with a window when he looked out and saw his friends. B.J. had numerous previous encounters with the juvenile court system and was not naïve. He wanted to join his friends, so he told Officer Lucio he probably committed the vandalism. This is not coercion but more likely the impulsive behavior of a teenager who wanted to be with his friends. Because there was no evidence of coercion, even in B.J.’s version of what occurred, his counsel was not ineffective in failing to object to the admission of the confession on constitutional grounds.
DISPOSITION
The judgment is affirmed.


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