In re J.W.

Filed 2/4/09 In re J.W. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento and Butte)

----

The Sacramento County Juvenile Court found that minor J.W. was within the provisions of Welfare and Institutions Code section 602 in that he committed a lewd and lascivious act on a child under the age of 14 years. (Pen. Code, 288, subd. (a).)^[1] Because the minor then resided with his mother in Butte County, the Sacramento court transferred the case there for disposition. The Butte County Juvenile Court declared the minor a ward, imposed conditions of formal probation, and placed him in the home of his mother.

On appeal, the minor contends the juvenile court erred by admitting his statements to interrogating police detectives. He claims (1) he was in custody at the time of the interrogation, (2) he invoked his right to remain silent, (3) his statements to the detectives were involuntary, (4) his post-interrogation statements to his father were the tainted fruits of the prior questioning, and (5) absent his statements to the detectives, there was insufficient evidence to sustain the petition. We affirm the judgment.

FACTS

Prosecution Case-in-Chief

In April 2007, the then 14-year-old minor lived in Sacramento County with his father, his stepmother, his brother C., his half brother N., and his twin half sisters, J. and R. C. was 17 or 18 years old. N. was 12 years old and is autistic and mentally retarded. The twins were three years old.

At about 1:00 a.m. on April 3, the family was watching television in two locations. The parents, C., and the minor were watching a movie in the living room. The twins and N. were watching television in a bedroom, which was located toward the rear of the residence. The stepmother testified that, although she had not seen the minor leave the living room, he had done so at some point. Later, while en route to the bathroom at the rear of the house, the stepmother passed by the bedroom where the younger children were located. She explained that it is her custom to check on the young children when she uses the bathroom.

When the stepmother reached the bedroom, the lights were on and she looked inside. R. and N. were in their sleeping bags; J. was not immediately visible. From a distance of 10 to 15 feet, the stepmother saw the minor face down under the covers of the bed making a humping motion in which his buttocks were moving up and down. She yelled, What in the hell are you doing, and then noticed that the minor was on top of J.

The minor immediately rolled off of J. and quickly began moving or adjusting things under the covers. When the stepmother pulled back the covers, she saw that J.s sundress was up around her ribcage and her panties were down to her knees. She took J. to the living room and told the father that she had caught the minor molesting J. The father promptly took the minor and C. to their mothers residence.

The stepmother examined J.s vaginal area and discovered that the top of the vagina was beet red and appeared irritated. The stepmother had never seen this redness before in J.s pubic area. J. was taken to a medical center for a sexual abuse examination.

The parties stipulated that the examiner found no vaginal bleeding and received no complaints of pain, but observed a small red mark on the labia majora as well as a small linear abrasion that appeared to be healing. The examination neither confirmed nor ruled out sexual abuse.

Detective Darin Pometta obtained the fathers permission to interview the minor at his school. The interview was conducted at about 12:30 p.m. and lasted less than an hour. Pometta, with another detective present most of the time, interviewed the minor. Both officers were in plain clothes. The minor was told at the outset that he was not under arrest and did not have to answer the questions. The interview was conducted in a room used by the school as an office. The room was about 10 feet by 10 feet with a window, a desk, bookshelves, chairs, and pictures. The door was closed to maintain privacy.

The minor was advised of and waived his constitutional rights. He denied molesting J. and explained that he was simply trying to remove her dress or underwear from its entwinement between J.s buttocks, a condition he termed a wedgie. After telling several versions of this story, the minor began to cry and sob and said that he was sorry. He admitted that he had pulled J.s underwear down past her knees and had rubbed her vagina for more than a minute. However, he denied that he had penetrated her vagina.

Following the interview, Detective Pometta met with the father at the school. Pometta advised the father that the minor had admitted molesting J. Pometta suggested that the father assure the minor that he still love[d] the minor and still wanted to have something to do with him. The father and Pometta then met with the minor, whose eyes were red. In response to prompting by Pometta, the minor told the father that the stepmothers accusation of having molested J. was true and that he had touched [J.] in a private area. According to the father, the detective did not coerce the minor to make a statement. The father then thanked the minor for being brave enough to admit what he had done.

Defense

The minors older brother, C., testified that he went to the bedroom doorway in response to his stepmothers screaming. When J. was lifted from the bed, her dress did not appear to be pulled up. Later, in private conversations with C., the minor denied molesting J.

The minor testified on his own behalf that he had not molested J., but was only attempting to fix her wedgie when his stepmother walked in. After the stepmother started screaming, the minor got scared and hid under the blankets.

The minor testified that he told the detectives about fixing J.s clothing, and they responded by claiming that he was lying. The detectives confused the minor, and he wanted the interrogation to end. Eventually, he admitted touching J. because he was confused and just tired of it.

The minor admitted that the officers did not threaten him physically. Nor did they promise to make the charges go away if he confessed. However, they implied that nothing bad would happen to him.

A defense expert on police interrogation techniques opined that Detective Pometta was psychologically coercive when he suggested the only way the minor could receive counseling was if he admitted the allegations.

DISCUSSION

The minor contends the trial court erred by admitting his statements to the detectives. He first claims the court erred by ruling that the interrogation was not custodial within the meaning of Miranda.^[2] We are not persuaded.

Background

At the jurisdiction hearing, immediately before Detective Pometta was called as a witness, the minors counsel raised the issue of the admissibility of the minors extrajudicial admissions to the witness. First, counsel argued that there was no knowing, intelligent, voluntary waiver of Miranda rights because the minor had expressly invoked his right to remain silent. Second, counsel argued that Pomettas interrogation of the minor was custodial. The court tentatively ruled that Miranda did not apply, but allowed counsel to establish a further foundation during the officers testimony.

Detective Pometta then testified as set forth above. The advisement and asserted invocation of Miranda rights was as follows:

[Q] [BY DETECTIVE POMETTA]: Just keep in mind that, uh, I mean, were not arresting you.

[A] [BY THE MINOR]: I know. I know.

[Q] Youre not a -- all right? So I talked to your dad. He said it was cool to come talk to you. Um, so were just gonna -- cuz [sic] were trying to figure out whats going on, okay? Um, do you understand all that?

[A] Yeah.

. . . . . . . . .

[Q] All right. Just because youre a juvenile and were talking to you, Im gonna read you your rights, man. All right? Just so --

[A] Yeah.

[Q] Just so you know.

[A] I know.

[Q] Um, you have the right to remain silent. Anything you say can be used against you in a court of law. You have the right to talk to an attorney and have an attorney present -- or a parent -- before and --

[A] Okay.

[Q] -- during questioning. If you cannot afford an attorney, one will be appointed free of charge to represent you before and during questioning, if you desire. Do you understand each of those rights I explained to you?

[A] Yeah.

[Q] All right. Having those rights in mind, do you want to talk to me?

[A] No.

[Q] Okay. You dont want to talk, or are you cool to talk?

[A] Oh, about the rights? No, Im fine.

[Q] Youre -- youre good to talk with us, right?

[A] Yeah.

[Q] Okay. Um, cool. Um, whats the deal? Give me the scoop on whats going on.

[A] About the thing (unintelligible)?

[Q] Yeah, with [the stepmother] and --

[A] Oh.

[Q] [J.]

[A] She -- shes -- [the stepmother], shes a drunk, basically.

After hearing Detective Pomettas testimony, the trial court then ruled as follows: All right. After hearing the officer describe the scene and the preamble to the whole interview, Im going to rule that Miranda did not apply. He wasnt in custody. And I think -- so Im going to deny the motion. [] I realize any time anybody talks to a police officer theres a certain inherent coerciveness involved no matter how old you are. But I think in this situation I dont think Miranda applies in the custody analysis.

Analysis

Before being subjected to custodial interrogation, a suspect must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. [Citations.] (People v. Leonard (2007) 40 Cal.4th 1370, 1399-1400.) An interrogation is custodial when a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. [Citation.] Whether a person is in custody is an objective test; the pertinent inquiry is whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. [Citation.] (Id. at p. 1400.)

In this case, the detectives were in plain clothes. They both had weapons on them, but nothing in the record suggests the weapons were visible to the minor. The interview was conducted at the minors school, rather than in a police interview room or squad car. The room was secluded and the door was closed to maintain privacy, not to confine the minor. The interview lasted less than an hour. In People v. Leonard, supra, 40 Cal.4th 1370, a much longer (three and a half hours) interrogation in a room at the sheriffs department was held to be noncustodial. (Id. at p. 1400.)

Detective Pometta told the minor at the outset that they were not arresting him. Detective Pometta read the minor his Miranda rights just because [the minor was] a juvenile and the officers were talking to him. At the conclusion of the interview, the minor was released to his father. This is similar to Leonard, in which the deputies did not arrest the defendant and in fact took him home. (People v. Leonard, supra, 40 Cal.4th at p. 1401.)

Contrary to the minors argument, he was not told that he would never be released from the room unless he told the story the detectives wanted. (Italics added.) The detective responded to the minors statement, I just want this to end cuz it -- it --, by telling him, But its not gonna end. As we explain more fully post, it was not the minors confinement in the room. Rather, it was the allegation of wrongdoing, which could end with the minors being truthful and going to counseling.^[3]

The minor relies primarily on the demeanor of the officer, including the nature of the questioning. (People v. Lopez (1985) 163 Cal.App.3d 602, 608, fn. omitted.) Thus, [a]ccusatory questioning is more likely to communicate to a reasonable person in the position of the suspect, that he is not free to leave. [Citation.] (Id. at p. 608, fn. 4, citing People v. White (1968) 69 Cal.2d 751, 761.) But neither Lopez nor White suggests that such implied communicat[ion] necessarily trumps the officers express assurance that were not arresting you. We conclude that under all the circumstances, a reasonable person in the minors position would have felt free to end the questioning and leave. (People v. Leonard, supra, 40 Cal.4th at p. 1400.)

Alternatively, if the minor was in custody, there is no merit to his contention that he invoked his right to remain silent.

[T]he law is settled that when a suspect under interrogation makes an ambiguous statement that could be construed as an invocation of his or her Miranda rights, the interrogators may clarify the suspects comprehension of, and desire to invoke or waive, the Miranda rights. [Citations.] (People v. Farnam (2002) 28 Cal.4th 107, 181.)

In this case the exchange, Having those rights in mind, do you want to talk to me? [] No was ambiguous because the question did not identify the subject of the proposed talk. The officers ensuing questions promptly clarified that the minor did not want to talk about the rights he had been read, as to which he was fine; but he was good to talk with the detectives about the facts of the case. (People v. Farnam, supra, 28 Cal.4th at p. 181.) No error appears.

The minor contends his extrajudicial statements not only were obtained in violation of Miranda, but also were involuntary because they were produced by threats and inducements. In the juvenile court, the minors counsel argued that, following the exchange ending with No, Detective Pometta continue[d] to in essence bully him into talking, to induce him into talking at that point. So that every statement thereafter should be stricken from the record. (Italics added.)

We have already rejected the premise of this argument. The disputed exchange did not end with the minors No. Rather, the exchange continued with the clarification that he was good to talk with the detectives about the facts of the case. Thus, no bully[ing] or induce[ment] to talk was necessary; the minor expressed his willingness to talk.

On appeal, the minor claims his statements were involuntary for additional reasons not asserted in the juvenile court: his youth, immaturity, mental disability, [and] the location of the interrogation. He has not preserved these contentions. [A]n objection on Fifth Amendment grounds to the admissibility of the evidence is [forfeited] if not made at trial when the evidence is offered. (People v. Crittenden (1994) 9 Cal.4th 83, 126, citing People v. Edelbacher (1989) 47 Cal.3d 983, 1005.)

In any event, the minors arguments regarding his youth, immaturity, and mental disability are based upon the social study report. The juvenile court was prohibited from considering the report prior to or during the contested jurisdiction hearing. (E.g., In re Christopher S. (1992) 10 Cal.App.4th 1337, 1343.) Thus, the courts failure to consider information in the report on the issue of involuntariness was not error.^[4]

This leaves the minors argument regarding the location of the interrogation. Were we to consider this argument, we would conclude it lacks merit. The minor does not contend that the school office with its closed door was so inherently coercive that the statements obtained there were involuntary irrespective of his youth, immaturity, and mental disability. No error appears.

In the juvenile court, the minor did not contend that his decision, nearly an hour into the discussion, to cease denying the molestation and to admit his acts upon J. resulted from his free will being overborne. (Culombe v. Connecticut (1961) 367 U.S. 568, 602 [6 L.Ed.2d 1037, 1057-1058].) On appeal, he claims his will was overborne because Detective Pometta insisted that the minor would never be released from the interrogation unless he told the story that the detective insisted on getting. We disagree.

The context of the minors statements suggests that he confessed because he wanted the accusation of wrongdoing to be resolved, not because he wanted the interrogation to end.

On the previous page of transcript, Detective Pometta told the minor that he had told a bad story and that the detectives were coming at the end of this because [were] not gonna keep asking you. Shortly thereafter, the minor said he wasnt on top of J., and Pometta responded, All right. Thats where were gonna leave it, all right? At this point, with the interrogation about to cease, the minor said, I dont even care now and I just want this to end . . . . Pometta evidently understood that this referred to the allegation of wrongdoing, not the interrogation. In context, Pomettas response, But its not gonna end, did not refer to the questioning that he had twice indicated would soon end. Rather, the statement and the response referred to the allegation of wrongdoing, which the detective said could end with the minor being truthful and his attending counseling. There is no suggestion that the detective intended to continue the interrogation until a counseling session began.

The minors last two contentions require little discussion. He claims his post-interrogation statements to his father were the tainted fruits of his confession. He also claims that, if his confession is excluded, the remaining evidence of guilt is insufficient to support the adjudication. Having rejected his challenges to the confession, we also reject these two claims.

DISPOSITION

The judgment is affirmed.

NICHOLSON , Acting P. J.

I concur:

MORRISON , J.^*

I concur in the result:

ROBIE , J.

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^[1] Further undesignated statutory references are to the Penal Code.

^[2]Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda).

^[3] The detective later elaborated on this point as follows: [D]id you ever come to realize that it would never end, um, if you, you know, just kind of swept it . . . under the rug and -- but itd always be there, you know, to some extent, either with your parents or to some degree . . . . [] . . . [] But lookit. This is how we make it go away, right? We deal with it. All right?

^[4] The minor does not contend his trial counsel was ineffective for having failed to present this evidence by means other than the social study report. Any such contention is forfeited. (E.g., Peoplev.Hardy (1992) 2 Cal.4th 86, 150; Peoplev.Wharton (1991) 53 Cal.3d 522, 563.)

^* Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.