In re A.V.























Filed 12/12/12 In re A.V. CA1/5











>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



FIRST
APPELLATE DISTRICT



DIVISION
FIVE




>

>In re A.V., a Person Coming Under the Juvenile Court Law.
> >THE PEOPLE, > Plaintiff and Respondent, >v. >A.V., > Defendant and Appellant.	A133762 (>Mendocino> County Super. >Ct.> No. SCUK-JDSQ-11-16250; >Alameda> County >Super. >Ct.> No. SJ11176391)

A.V.
appeals from jurisdictional and dispositional orders of the juvenile court in a
proceeding held pursuant to Welfare and Institution Code section 602. He contends: (1) the admission of his
confession into evidence violated his privilege against href="http://www.mcmillanlaw.com/">self-incrimination, because his waiver
of the privilege was not voluntary, intelligent, and knowing; (2) the admission
of his confession into evidence violated his href="http://www.fearnotlaw.com/">due process rights because his confession
was not voluntary; (3) certain probation conditions, including conditions
precluding him from being alone with other children and requiring him to be of
“good conduct” and obey his caregiver, were unreasonable or unconstitutionally
vague or overbroad; and (4) a minute order erroneously states that A.V.
admitted the second count against him.

We
will affirm the jurisdictional order. As
to the dispositional order, we will order modification of one of the probation
conditions, direct that two minute orders be corrected, and affirm the
dispositional order in all other respects.

I. FACTS AND PROCEDURAL HISTORY

A
wardship petition filed in Mendocino Superior Court alleged that A.V. committed
forcible sodomy with a person under the age of 14 (Pen. Code, § 286,
subd. (c)(2)(B)), and lewd and lascivious acts with a person under the age
of 14 (Pen. Code, § 288, subd. (a)).
(See Welf. & Inst. Code, § 602.) A.V. denied the allegations.

A. Jurisdictional
Hearing

A
contested jurisdictional hearing was held on August 24 and 25, 2011. The evidence included the following.

1. Petitioner’s
Case

J.M.V.
(the victim’s father and A.V.’s uncle), testified that he arrived home after
work and found A.V.’s brother trying to open a locked bedroom door. J.M.V. heard movement inside the bedroom and,
unable to open the door, knocked. When
the door opened, he saw his seven-year-old daughter N.V. “pulling up her clothes”
and A.V. running out.

When
J.M.V. asked his daughter what happened, she told him to ask A.V. Later she told him that A.V. had pulled down
her underwear and had done so several times before. Angry, J.M.V. reported the matter to A.V.’s
mother; then he confronted A.V. and slapped his face. A.V. denied that he had done anything.

Ukiah
Police Sergeant Guzman arrived at A.V.’s home to investigate a report that an
adult male had slapped a 12-year-old boy.
When he arrived, Guzman was advised by A.V.’s mother that J.M.V. had
slapped A.V. in the face.

Sergeant
Guzman then spoke with J.M.V., who told the officer that 10 minutes before the
officer’s arrival he had opened the bedroom door and found his seven-year-old
daughter N.V. standing near the closet and A.V. running into an adjoining
bedroom.

Sergeant
Guzman next spoke with N.V., who reported that A.V. entered her bedroom, closed
the door, pulled down her pants and underwear, and had “sex” with her. She demonstrated A.V.’s actions by moving her
hips forward and backward to show that, in the officer’s words, A.V. “was
humping her.” Sergeant Guzman arrested
A.V. and transported him to the police station.


At
the police station, Sergeant Guzman booked A.V. and, using a pre-printed card,
advised him of his rights under Miranda
v. Arizona (1966) 384 U.S. 436 (Miranda). Guzman asked A.V. if he understood those
rights, and A.V. nodded his head affirmatively.

A.V.
was not questioned at that time, but was held in the booking room while
Detective Noble Waidelich interviewed N.V.

>a.
Interview of N.V.

Detective
Waidelich interviewed N.V. for about an hour.
She told the detective that A.V.’s penis was in her bottom while she was
bent forward on the bed, with A.V. behind her.
Initially N.V. said that this had happened a few times before, but as
the detective continued to discuss the matter with her, it became apparent that
such incidents had occurred approximately 10 times since the beginning of the
school year. N.V. said that A.V.’s penis
was “kind of soft,” she felt it in her bottom only sometimes, and it did not
hurt. N.V. was taken for a sexual
assault examination and was found to have experienced no physical trauma.

>b.
Interview of A.V.

Detective
Waidelich next questioned A.V. in an interview room at the police station. A video and transcript of the interview was introduced
at the hearing. The detective testified
that, at the time of the interview, he had already decided that A.V. was guilty
and could be put in juvenile hall; the only purpose of the questioning was to
elicit an admission. Detective Waidelich
was wearing his full patrol uniform and was aware that A.V. was 12 years old.

Detective
Waidelich read A.V. his Miranda
rights from a pre-printed card. After
each right was stated, A.V. indicated that he understood. (The details of the advisement and A.V.’s
waiver are discussed post.)

After
A.V. said that he understood his rights, he told Detective Waidelich that he
did not know why he had been brought to the police station, and he even denied
that it involved N.V. The detective told
A.V. that A.V. could impact the “outcome of this” and asked A.V. to “be honest
and tell me what happened with her.”
When A.V. denied pulling down N.V.’s pants, the detective accused A.V.
of lying. Eventually, A.V. acknowledged
that he had pulled her pants down, but “not far.” The detective repeatedly asked A.V. why he
pulled down N.V.’s pants, but A.V. remained silent or claimed not to know. Detective Waidelich exhorted A.V. not to try
to think of a “crafty” reason for it, giving him the suggestions “I pulled her
pants down because I wanted to see her butt” or “I pulled her pants down
because I wanted to see her vagina.”
A.V. responded: “Because I wanted
to see her butt.” When A.V. claimed that
nothing had happened after that, the detective warned him that he was “going to
get into serious trouble” and that he should “come clean.” When A.V. again hesitated, the detective
asked him what he was afraid of, and A.V. replied that he was scared of going
to jail. The detective replied, “Well,
right now we’re just – we’re not talking about jail, okay? We’re just talking about what happened.”

A.V.
eventually told the detective that he had put his penis “[i]n her butt” and
demonstrated with his fingers that he had inserted it about one inch. He acknowledged that he knew what he was
doing was wrong, and he did not get any pleasure from it. A.V.
denied that N.V. asked him to stop touching her, but admitted that she told him
to stop removing her pants.

A.V.
explained that, in a movie, he had seen a man put his penis in what A.V.
thought was a woman’s butt, and he wanted to try it. He had tried this out with N.V. or placed his
penis on her butt “maybe five times,” but their clothes were on for all but two
of the times. A.V. never put his penis
in N.V.’s vagina, he did not touch her vagina, she did not touch his penis, and
he did not ejaculate.

A.V.
admitted that he had lied to the detective previously in the interview “so [he]
wouldn’t go to jail.”

>c.
N.V.’s Testimony at the Hearing

N.V.
testified that “at first I went into the [bed]room and [A.V.] said if I tell
it’s a la muerte [death]. Then he locked
the door and he pulled my pants down and pulled his pants down.” A.V. then “put his wiener in [her] butt”
while he was standing with his arms around N.V.’s waist. While A.V.’s “wiener was inside [her]
bottom,” he moved his body “back and forth.”
Although N.V. “felt it a little,” she “didn’t think his wiener was
hard.” N.V. told A.V. several times to
stop, but he refused. When she tried to
pull her pants back up, A.V. told her not to.
After he finished, A.V. hid in the closet and then in the bathroom.

N.V.
recalled that A.V. had committed this act “a whole bunch of times” – more than four – previously. N.V. “told [A.V.] a whole bunch of times [to
stop] but he didn’t even stop.”

2. Defense
Case

Psychologist
Kevin Kelly, who interviewed A.V. on a number of occasions and reviewed the
video of the police interview of A.V., testified as an expert in child
psychology.

Dr.
Kelly opined that A.V. was not psychotic or otherwise emotionally
disturbed. A.V. had a good vocabulary,
but his ability to express himself was “immature for his age” and “regressed,”
and he lacked the emotional vocabulary and insight expected of a 12-year-old. In terms of being able to communicate his
needs, wants, wishes, and fears, A.V. “showed much less development than I
would expect for someone age 12.”

Dr.
Kelly found A.V. to be immature sexually, rarely experiencing erections and
never knowingly ejaculating. A.V. was
apparently concerned and confused about sex.
He was embarrassed talking about sex, and he was unfamiliar with
colloquial sexual expressions used by children his age.

From
his interviews with A.V., Dr. Kelly believed that A.V. would have understood
the words of the Miranda warnings,
but he questioned whether A.V. had the emotional capacity to act on those
warnings and assert his rights.

Dr.
Kelly also found A.V. to be “overly respectful of authority” and
“under-exercis[ed] his own ability to speak up for what he needed or
wanted.” When confronted with something
he did not want to do, Kelly asserted, A.V. would “fail to say he didn’t want
to do this or he would just comply.”
Thus, when the detective told A.V. that he could have a “huge impact” on
the outcome if he confessed, A.V.’s emotional development was such that he
would “override his own personal state and comply with the authority.” In Kelly’s view, A.V. would “contribute and
divulge information even if he didn’t want to.”


Dr.
Kelly theorized that, in molesting N.V., A.V. may have been “mimicking” sexual
behavior he had seen or heard in his home or on films. Mimicking is different from physical conduct
that is motivated by sexual desire.
Given A.V.’s lack of emotional maturity and sex drive, Kelly “[found] it
surprising that [A.V.] would try to engage in sexual behavior.” Although Kelly did not form a conclusive
opinion as to whether A.V. was mimicking during his conduct with N.V., he noted
several factors supporting such a conclusion:
A.V. had been exposed to sexual conduct; he slept in the living room and
was aware of sexual noises from the bedrooms; he had seen”an adult film [of a]
sexual nature”; he did not appear to have any interest in other parts of the
body, including the vagina; and he did not have a strong sex drive.

C. Jurisdictional
Order

On
August 25, 2011, the juvenile court denied A.V.’s motion to exclude his
statement to the police on the grounds of Miranda
and involuntariness. The court found
the forcible sodomy allegation (count one) not true, but found the allegation
of lewd and lascivious acts (count two) true.
The matter was transferred to Alameda County, A.V.’s residence, for
disposition.

D. Dispositional
Order

On
November 7, 2011, the Alameda County Superior Court declared A.V. a ward of the
court, ordered him removed from his home, and committed him to the custody of
the probation officer for placement in a foster home, private institution,
group home or county facility. The court
also ordered GPS monitoring, counseling, and an adolescent sex offender
treatment program. In addition, the
court imposed a number of conditions of probation, as discussed >post.


This
appeal followed.

II. DISCUSSION

We
address each of A.V.’s contentions in turn.

A. A.V.’s
Waiver of His Miranda Rights

A.V.
contends the juvenile court erred by admitting evidence of his statement to
Detective Waidelich, because A.V.’s purported waiver of his Fifth Amendment
privilege against self-incrimination was not voluntary, knowing, and
intelligent. We disagree.

1. Background

As
mentioned, Sergeant Guzman advised A.V. of his Miranda rights when he arrested him, and A.V. indicated that he
understood those rights. A second time
before he was questioned, Detective Waidelich advised A.V. of his >Miranda rights, also using a “preprinted
Miranda card.” This exchange, recorded on the video and as
set forth in the transcript, reads:
“Q. Well, I want to talk to you
about why you’re here. Is that
okay? [¶] A. Um-hm.
[¶] Q. Okay. Um, you have the right to remain silent. Do you understand that? [¶] A.
(Nods head.) [¶] Q. Can you – I need you to speak up, Bud. [¶] A.
Yeah. [¶] Q. Okay.
Anything you say can be used against you in court. Do you understand that? [¶] A.
Yeah. [¶] Q. Okay.
You have the right to the presence of an attorney before and during any
questioning. Do you understand
that? [¶] A. Yeah.
[¶] Q. If you cannot afford
an attorney, one will be appointed to you free of charge before any
questioning, if you want. Do you understand
that? [¶] A. yeah.
[¶] Okay. Those are what we call your Miranda rights. Have you ever heard that term before? [¶] A.
No. [¶] Q. Okay.
Those are what your legal rights are, okay? [¶] A.
(Nods head.)”

2. Court’s
Ruling

The
court found that A.V. understood and waived his Miranda rights. The court
noted that A.V. was twice advised of his rights, once by the arresting sergeant
and once by the detective, and both times A.V. indicated that he understood
those rights. Further, the court found,
there was “absolutely no evidence . . . that he didn’t understand or that he
was threatened in any way to force him to make that waiver,” and Dr. Kelly
testified “very clearly [that A.V.] would have probably . . . understood the
rights.” The court concluded: “So I think the People have met their burden
of showing the Miranda requirements
were met in this case and that there was a knowing and intelligent waiver by a
preponderance of the evidence.”

3. Law

A
statement made during custodial interrogation is not compelled for purposes of
the Fifth Amendment if the individual voluntarily, knowingly, and intelligently
waived his constitutional privilege. (>Colorado v. Spring (1987) 479 U.S.
564.) The waiver must be voluntary – a
free choice rather than the result of intimidation, coercion or deception – and
with the understanding that he could stand mute and request a lawyer and that
the state intended to use his statements to secure a conviction. (Moran
v. Burbine (1986) 475 U.S. 412, 421-423.)

A
minor can waive his Miranda
rights. (People v. Lara (1967) 67 Cal.2d 365, 389-391 (Lara).) Whether a valid
waiver occurred turns on a number of circumstances including: the minor’s age; the minor’s intelligence,
education, experience, and ability to comprehend the meaning and effect of the >Miranda warning; the nature of the
minor’s Fifth Amendment rights; and the consequences of waiving them. (Lara, at
p. 383; People v. Nelson (2012) 53
Cal.4th 367, 378 (Nelson); >People v. Lewis (2001) 26 Cal.4th 334,
383 (Lewis).) The minor’s age is a factor because children
will often feel pressured to submit to police questioning when an adult in the
same circumstances would feel free to leave.
(J.D.B. v. North Carolina
(2011) __ U.S. __, 131 S.Ct. 2394, 2398, 2403 (J.D.B.).) We thus carefully
scrutinize any purported waiver of a minor’s right against self-incrimination
to ensure it was voluntary, intelligent, and knowledgeable. (See In
re Michael B. (1983) 149 Cal.App.3d 1073, 1083.)

The
prosecutor bears the burden to establish a valid Miranda waiver by a preponderance of the evidence. (Colorado
v. Connelly (1986) 479 U.S. 157, 168 (Connelly).)

4. Analysis

The
court did not err in concluding that A.V. voluntarily, intelligently, and
knowledgeably waived his Miranda
rights. As to voluntariness, there is no
question that A.V. was not threatened or coerced into waiving his rights. As to it being an intelligent and
knowledgeable waiver, A.V. was already 12 years and eight months old, attended
seventh grade at school, had a “good vocabulary,” was not developmentally
delayed, was not emotionally or psychotically disturbed, displayed “adequate
understanding” for his age, was able to understand instructions and proceed
adequately through Dr. Kelly’s testing, and appeared to Kelly to be of “average
intelligence.” The police read the >Miranda warnings to him twice, and
substantial evidence supported the conclusion that he understood those rights
and had the capacity to assert them.
Kelly acknowledged that A.V. understood the words of the >Miranda warning, and A.V. told the
police that he understood them. Although
Kelly testified that he thought it “questionable” whether A.V. understood he
had the capability of acting on those words, Kelly’s basis for that conclusion
– as discussed post – was itself
questionable and, in any event, not binding on the court. Furthermore, there was no evidence that A.V.
ever claimed that he did not understand his rights or his ability to invoke
them. In sum, ample evidence supported
the conclusion that, by expressing that he understood his rights and proceeding
to speak with the detective, A.V. voluntarily, intelligently, and knowingly
waived them.

A.V.’s
arguments to the contrary are not persuasive.
Primarily, he points to Dr. Kelly’s testimony that A.V. was
“regressed” and emotionally “immature” for his age. In this regard, Kelly stated that A.V.’s
“ability to express himself and to talk about things appeared to be immature
for his age, somewhat regressed,” and “he lacked an emotional vocabulary so to
speak or emotional insight that would be expectable for age 12.” Although Kelly explained that A.V. showed
less development than others his age
in being able to express what he needs, wants, and fears, Kelly did >not opine that A.V.’s relative ability
to express his emotions would preclude him from understanding the >Miranda warnings or invoking his >Miranda rights.

Dr.
Kelly did testify that, although A.V. probably understood the words of the >Miranda warning, “whether or not he
would understand that he had the actual capability of acting on those words in performance of his Miranda rights is questionable
to me.” (Italics added.) But again, Kelly never testified that A.V.
definitely lacked the ability to understand and invoke his Miranda rights. Moreover,
Kelly’s uncertainty on this point was derived from assumptions that could
reasonably be viewed as inconsistent with the record. Kelly claimed that A.V. was “overly
respectful of authority,” “did what he was told” at school and home, and
underutilized his “ability to speak up for what he needed or wanted,” but the
record shows that A.V. had in fact disobeyed authority, since he asserted that
his mother “grounds” him when he does something wrong and he had been in
trouble at school before. Further, Kelly
acknowledged that A.V. was able to
say he did not want to do things unless “he’s consistently overruled and asked”
to do it, particularly by authority figures; but here, A.V. was not
“consistently overruled and asked” to waive his rights or even to speak with
the detective. As the court found – and
as the video and transcript of the interview show – the detective did not
instruct A.V. that he was required to talk.


In
short, although Dr. Kelly’s testimony was uncontradicted (in the sense that his
opinions were not refuted by another expert), the court was not obligated to
accept it, and was certainly not obligated to accept the spin that the defense
tried to put on it.

A.V.
also argues that he told Detective Waidelich that he had not previously heard
of Miranda rights (at least by that
name – even though they had been read to him previously by Sergeant Guzman), he
did not have a lawyer or parent with him, he lacked prior experience with the href="http://www.mcmillanlaw.com/">juvenile justice system that would
familiarize him with the privilege against self-incrimination, Guzman did not
ask A.V. if he waived each right after reading it or understood its substance,
and Detective Waidelich read the rights quickly and did not ask additional
questions to ensure that he understood the rights and wanted to waive
them. However, all of these matters,
even combined with Dr. Kelly’s testimony, do not demonstrate that the juvenile
court erred in concluding that, in light of all the evidence, A.V. understood
the words of the Miranda warning, had
the capacity to exercise his rights, and voluntarily waived them. (See Lewis,
supra, 26 Cal.4th at pp. 383-384 [fact that minor was a href="http://www.sandiegohealthdirectory.com/">paranoid schizophrenic under
the age of 14 did not preclude finding that he validly waived his >Miranda rights].)

A.V.
fails to establish that his statement was admitted in violation of >Miranda.

B. Voluntariness
of Confession

A.V.
argues that the admission of his statement to Detective Waidelich violated his
due process rights under the Fourteenth Amendment of the United States
Constitution, because it was not freely and voluntarily given. Again, we must disagree.

1. Law

For
purposes of due process, a confession is voluntary if it is the product of free
will, without compulsion or promise of reward.
(People v. Thompson (1980) 27
Cal.3d 303, 327-328.) Conversely, an
involuntary confession is one “obtained by physical or psychological coercion,
by promises of leniency or benefit, or when the ‘totality of the circumstances’
indicates the confession was not a product of the defendant’s ‘free and
rational choice.’” (People v. Cahill (1993) 5 Cal.4th 478, 482, fn. 1.) No confession is deemed involuntary in this
context, however, unless there is a causal nexus between the confession and
police misconduct. (Connelly, supra, 479 U.S. at p. 163; People v. Benson (1990) 52 Cal.3d 754, 778.) The People bear the burden of establishing
the voluntariness of a confession by a preponderance of the evidence. (Connelly,
at p. 168; People v. Boyette
(2002) 29 Cal.4th 381, 411 (Boyette).)

In
determining whether a minor’s confession was voluntary, we consider a number of
factors including: the characteristics
of the minor, including his or her maturity, education, physical condition,
mental health, emotional state, and prior experience with the criminal justice
system; and the circumstances of the questioning, including the location,
length and continuity of the interrogation and any police coercion, threats,
promises of leniency, lies or deception.
(Boyette, supra, 29 Cal.4th at
p. 411; In re Shawn D. (1993) 20 Cal.App.4th 200, 209 (Shawn D.).) “Threats,
promises, confinement, lack of food or sleep, are all likely to have a more
coercive effect on a child than on an adult.”
(In re Aven S. (1991) 1
Cal.App.4th 69, 75.) Thus, courts must
“take particular care to ensure that [minors’] incriminating statements were
not obtained involuntarily.” (>J.D.B., supra, 131 S.Ct. at p.
2408.) We therefore apply heightened
scrutiny to the voluntariness of A.V.’s statement. (Nelson,
supra, 53 Cal.4th at p. 379.)

2. Court’s
Ruling

In
finding that A.V.’s statement was voluntary, the court considered A.V.’s age
and intelligence, whether there were improper promises or threats, whether the
police employed falsehoods or deceptions, the length of the interrogation, and
the possibility of any other police misconduct.
Specifically, the court found that 12-year-old A.V. was “bright and pretty
savvy” and seemed to “understand and respond to questions quite well.” The court determined that the police did not
make any express or implied promises to induce A.V.’s cooperation, and
Detective Waidelich did not threaten or lie to A.V. Although “[t]here was some discussion of the
positive effects of being honest,” the court concluded that “the main thrust of
the officer’s questioning was to get him to be honest and to push him to be
honest.” Further, the court noted, the
interrogation was not lengthy, lasting only about 40 minutes, and although
Detective Waidelich was “persistent” in encouraging A.V. to tell the truth, he
did not promise, threaten, or engage in similar misconduct. Lastly, the court observed, there was no
testimony from anyone that A.V. was forced to confess or did so because of
promises, threats, or the circumstances of his confinement; to the contrary,
the video showed that A.V.’s statement was voluntary.

3. Analysis

Substantial
evidence supports the court’s factual findings, and we agree those findings
support the court’s legal conclusion that A.V.’s statement was voluntary.

As
to the characteristics of the accused, the court’s observations that A.V. was
bright, understood questions, and responded to them quite well is supported by
substantial evidence. As Dr. Kelly
opined, A.V. – at nearly 13 years old and in seventh grade – was not
developmentally delayed or emotionally or psychotically disturbed, he displayed
“adequate understanding” for his age, he was able to understand instructions,
and he appeared to be of “average intelligence.” The video of the interview confirms that A.V.
understood the detective’s questions, was able to articulate responses, and was
“pretty savvy” in the sense that he knew right from wrong and knew he could go
to jail if he admitted what he had done.

As
to the circumstances of the interrogation, there was only one detective in the
room, the questioning took only about 40 minutes, and there is no indication
that A.V. was deprived of food, water, or sleep, or otherwise subjected to
physical discomfort. Although Detective
Waidelich described generally the benefits of telling the truth, there were no
threats or express or implied promises that would make A.V. think that, if he
confessed, he would receive more beneficial treatment. The detective did not lie to A.V. And the video of the interrogation does not
indicate any intimidating behavior by
the detective whatsoever.

A.V.’s
arguments to the contrary are unpersuasive.
A.V. refers us again to Dr. Kelly’s testimony that A.V. was
emotionally regressed and immature for a 12-year-old, and that he was overly
respectful of authority and might have lacked the capacity to assert his right
to end the interrogation. For all the
reasons we found that testimony unimpressive in the context of the >Miranda warning, we find it unconvincing
here too.

Dr.
Kelly testified that, if A.V. were “consistently overruled and asked to do
[something he did not want to do] . . ., he would either fail to say he didn’t
want to do this or he would just comply.”
In the context of questioning by police, Kelly suggested, A.V. would
“override his own personal state and comply with the authority,” “divulg[ing]
information even if he didn’t want to.”
Notably, however, Kelly did not point to one specific thing in the video
of the interrogation that supported his opinions, and indeed the video tells a
different story. From the video, it is
apparent that A.V. was not divulging information just to please the detective,
because on most occasions he resisted making a substantive response to the
detective’s questions and, as the detective noted, seemed to be trying to
calculate how to answer. Nor is there
any indication that Detective Waidelich (or any other officer) had any reason
to suspect that A.V. was less able to withstand the questioning than the
average 12-year-old that A.V. appeared to be:
nervous, soft-spoken, but fully able to understand the questions and
reticent to speak only because he knew he had done something wrong and did not
want to go to jail.

A.V.
also complains that the court did not adequately consider A.V.’s emotional
state, insisting that A.V. was “pressured to submit by multiple authority
figures” and “his will was overborne.”
A.V. points out that he had been slapped by J.M.V., taken to the police
station, made to wait an hour, and then questioned by a uniformed
detective. He provides no authority,
however, for the proposition that any of those events constitutes police
misconduct. Moreover, A.V.’s characterization
of his emotional state is not supported by the record. Sergeant Guzman testified that A.V. was >calm when he was arrested (even after
being slapped by J.M.V.), and there was no evidence to the contrary. The video and transcript of the police interrogation
disclose no adverse impact of any of these matters on A.V.’s emotional state at
the time of his questioning: his
demeanor was the same throughout the interview, and he did not cry or appear
distraught or overly anxious under the circumstances. Although we consider seriously the fact that
these events occurred to 12-year-old A.V. rather than to an adult, nothing in
the record remotely suggests that A.V.’s will was overborne.

Turning
to the circumstances of the interrogation, A.V. urges there were a number of
improprieties. He argues, for example,
that Detective Waidelich impliedly promised
him leniency in exchange for his confession, based on the following
exchange: “Q [Waidelich]. So the fact that you’re here isn’t going to
change based on what you’ve said. But
the outcome of this, you can have a huge impact on, okay? [¶] A [A.V.]. Yeah.
[¶] Q. So, you and I both
know there’s a reason that you’re down here, okay? And you and I both know that it has something
to do with – with Natalia. What I would
rather see you do is be honest and tell
me what happened with her and have a positive
effect on the outcome here, rather than saying, ‘Oh, I don’t know what
happened,’ which we both know isn’t true.
[¶] Make sense?
[¶] A. Yeah.” (Italics added.)

Detective
Waidelich made no promise of leniency or other benefit. He did not promise A.V.’s release, reduced
charges, or a shorter sentence, or any other more lenient treatment at the
hands of police, the prosecution, or the court.
Moreover, A.V. was not promised that he would obtain such things in
exchange for a confession. Detective Waidelich merely observed that A.V.
could have a “positive effect on the outcome here” if he honestly said what
happened; this vague, general, and isolated reference to some positive
ramification of honesty cannot be said to so permeate the interrogation that it
rendered A.V.’s statement involuntary. (>People v. Musselwhite (1998) 17 Cal.4th
1216, 1236-1237 [detective’s statement that he wanted the record to show defendant’s
“degree of cooperation” was “too brief and insubstantial to qualify as an
inducement” and “convey[ed] no suggestion of any benefit in exchange for
defendant’s ‘cooperation’”]; see Shawn
D., supra, 20 Cal.App.4th at pp. 204-207, 214-216 [distinguishing between
“one isolated instance” of an implied promise of a benefit for confessing, and
repeated promises that “permeated the entire interrogation” by telling the
minor that his honesty and “cooperation” with police would be noted in the
police report, if he lied he would go to jail but if he told the truth he would
see his girlfriend and baby, and if he helped police retrieve stolen property
the officer would personally talk to the district attorney so the minor would
not be tried as an adult].)

A.V.
next contends that Detective Waidelich threatened
him with “trouble” in the criminal justice system if he did not admit that he
molested N.V. In the passage he relies
upon, A.V. admitted that he pulled down N.V.’s pants to see her “butt,” A.V.
claimed that he did “nothing else after that,” and the detective stated: “[A.V.], you’re going to get into serious
trouble, okay? Listen to me. Do you want to be the kind of guy, the
12-year-old who says, ‘Hey, look, you know, I – this is what I did and this is
why I did it, and I’m sorry, I shouldn’t have done it,’ or do you want to be
the 12-year-old who sits in here and goes, ‘Nope, didn’t do it, didn’t do it,
didn’t do it? [¶] Which looks
better? Which do you think looks
better? Which looks more honest? Which is honest?”

By
this comment, Detective Waidelich essentially pointed out that A.V. could admit
or deny what he did, but asked him which looked “better” and “more honest” and
what “kind of 12-year-old” he wanted to be.
That is an exhortation to honesty and integrity, not a threat. Although the detective did say that A.V. was
going to get into “serious trouble,” it is by no means clear that the detective
was threatening A.V. with “trouble” if he did not confess, as opposed to simply reminding him of the trouble he was
already about to experience due to what he had done to N.V. In any event, the detective’s statement was
not a threat that would have likely overcome A.V.’s will – and apparently it
did not overcome his will – since right after the detective’s comment A.V.
simply repeated his story and continued to deny that he did not pull down his
pants.

A.V.
next argues that he was under “sustained
pressure” during questioning, complaining that Detective Waidelich accused
him of lying and suggested admissions he sought to obtain. But this “pressure” was not particularly
“sustained,” and it was certainly not impermissibly extraordinary: the questioning lasted only about
40 minutes, with the first six pages of the 23-page transcript devoted to
background information; Detective Waidelich was the only officer in the room;
he asked questions from his own chair on the other side of the table from A.V.;
he did not engage in any menacing gestures, yelling, or other acts of
intimidation; and A.V. maintained the same demeanor throughout the interview –
whether the detective was in the room or not – without tears or extreme
anxiety.

Indeed,
A.V.’s bases for contending there was “sustained pressure” in the interview are
flatly refuted by the video. A.V. argues
that Detective Waidelich was much larger than A.V., but the video shows quite
clearly that the detective never attempted to use his relative size to any
advantage. A.V. contends that Detective
Waidelich suggested to A.V. the statements he wanted A.V. to make, but actually
the detective just gave A.V. a couple of examples why he might have pulled down
N.V.’s pants, after A.V. claimed that he did not know why he did it. A.V. claims the detective called him a liar
in a “raised voice” and accused him of lying about “24 times,” but the video
and transcript show that these aspersions are untrue. Except for a slight increase in volume on one
or two occasions, the detective maintained a calm and soft tone and never yelled. He accused A.V. of lying just >four times and merely encouraged him to “be honest” or
tell the truth five times. Otherwise,
the detective stated that A.V. was not going to be able to lie to him, he had
no reason to lie, should not think about trying to lie, and, >after A.V. confessed, asked why he had
lied originally and noted that A.V. had lied “briefly.” In sum, it is simply untenable to watch the
video of the interview and conclude that the interview was, as A.V. now calls
it, “a browbeating that this emotionally regressed 12-year-old was incapable of
withstanding.”

Lastly,
A.V. contends that Detective Waidelich engaged in deception because, after A.V. refused to respond when asked why he
pulled his own pants down, the following exchange ensued: “Q.
What are you scared of?
[¶] A. Going to jail. [¶] Q. Okay. Well,
right now we’re just – we’re not talking about jail, okay? We’re just talking about what happened. Be the big person here. Be – be the – the honest person here and be
honest about what happened, okay?
There’s no reason to lie, okay?
It’s out. I know what happened,
okay? And I want to hear it from you,
because you may have some really good explanation for some of this. Or maybe – maybe the person – the other
person who’s looking at this and goes, ‘wow, that seems really wrong and un’ –
may not understand it from your perspective, okay?”

By
this exchange, Detective Waidelich did not engage in any deception. He did not say or even imply that A.V. was
not going to jail; in context, he was merely saying that A.V. should focus on
what they were discussing: doing the
right thing and telling the truth about what happened. That is exactly how Detective Waidelich
explained it at the hearing, and there was no evidence to the contrary. Indeed, when the detective told A.V. at the
end of the interview that A.V. was going to juvenile hall, A.V. did not protest
or express any surprise.

None
of the circumstances A.V. brings to our attention – alone or in combination – indicates that A.V.’s statement was involuntary
for purposes of the Fourteenth Amendment.
And the case on which A.V. primarily relies – Shawn D. – only confirms our conclusion.

In
Shawn D., the minor was described as
“unsophisticated” and “naïve” and suffered from href="http://www.mcmillanlaw.com/">posttraumatic stress disorder. (Shawn
D., supra, 20 Cal.App.4th at p.
212.) He was interrogated by police for
about three hours, with the last 15-20 minutes of the interrogation conducted
by two officers with the video recorder turned off. (Id.
at pp. 203-204, 207.) The first
officer repeatedly lied to the minor, misled him into thinking that he might be
tried as an adult, and implied that his pregnant girlfriend would get into
trouble unless he confessed. (>Id. at pp. 204-207, 213-214.) When left alone in the interrogation room,
the minor was visibly agitated, mumbled to himself, and said: “I don’t need to get in trouble . . .
2 years, 7 years . . . San Quentin . . . Like father, like son. I change my life and now see what
happens.” (Id. at p. 206.) These
circumstances, the court observed, were probably not sufficient to show that the minor’s will was overborne. (>Id. at p. 214.) Nonetheless, the court concluded that the
minor’s confession was involuntary because, in addition to these circumstances,
the police repeatedly suggested that he would be treated more leniently if he
confessed, to the point that the interrogation was permeated with promises of
leniency such as: the minor’s honesty
and cooperation would be recorded in
the police report; if he lied he would go to jail but if he told the truth he
would be able to see his girlfriend and baby; he would receive more lenient
treatment if he explained his role in the burglary; and if he helped the police
retrieve stolen property, the officer would “personally talk to the D.A. or
persons who do the juvenile” so he would not be tried as an adult. (Id.
at pp. 204-207, 214-216.)

>Shawn D. is readily distinguishable from
the matter at hand. A.V. did not suffer
from posttraumatic stress disorder. The detective did not lie to him. He was questioned by only one officer, for
only about 40 minutes. He displayed no
signs of unusual distress. Although
Detective Waidelich exhorted A.V. to be honest, he did not say that A.V.’s
cooperation would be recorded in a police report or that he would communicate
with the district attorney so A.V. could avoid prison time as an adult. While the promise of leniency in exchange for
a confession permeated the entire interrogation in Shawn D. (Shawn D., >supra, at p. 216; Musselwhite, supra, 17 Cal.4th at p. 1237), the circumstances in
the matter before us are vastly different.

A.V.
fails to establish error in the admission of his statement to Detective
Waidelich.

C. Probation
Conditions

A.V.
asks us to modify or strike probation conditions that he not be alone with
younger males and females under the age of 14, and that he “be of good conduct”
and “[o]bey his caregiver.” He also
contends the purported probation conditions stated on the probation
department’s “Conditions of Probation and Court Orders” should be
stricken. We agree that one of the
probation conditions, as it appears in the minute order from the dispositional
hearing, should be modified.

1. Law

A
juvenile court may impose “any and all reasonable conditions that it may
determine fitting and proper to the end that justice may be done and the
reformation and rehabilitation of the
ward enhanced.” (Welf. & Inst. Code,
§ 730, subd. (b).)

A
probation condition is unreasonable only if it bears no relationship to the
offender’s crime, relates to conduct not itself criminal, and requires or
forbids conduct not reasonably related to future criminality. (People
v. Lent (1975) 15 Cal.3d 481, 486 (Lent).) “Conversely, a condition of probation which
requires or forbids conduct which is not itself criminal is valid if that
conduct is reasonably related to the crime of which the defendant was convicted
or to deter future criminality.” (>Ibid.)
We review the reasonableness of a probation condition for an abuse of
discretion: “A juvenile court enjoys
broad discretion to fashion conditions of probation for the purpose of
rehabilitation and may even impose a condition of probation that would be
unconstitutional or otherwise improper so long as it is tailored to
specifically meet the needs of the juvenile.
[Citation.] That discretion will
not be disturbed in the absence of manifest abuse. [Citation.]”
(In re Josh W. (1997) 55
Cal.App.4th 1, 5 (Josh W.).)

In
addition, a probation condition must not be impermissibly vague or
overbroad. It may be too vague if it is
not “ ‘sufficiently precise for the probationer to know what is required
of him, and for the court to determine whether the condition has been
violated.’ ” (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).) Only reasonable
specificity is required, however, and the context in which the condition is
imposed may render the condition sufficiently concrete. (People
v. Lopez (1998) 66 Cal.App.4th 615, 630.)
A probation condition may be overbroad if it imposes limitations on a
person’s constitutional rights without being closely tailored to the purpose of
the condition. (Sheena K., supra, 40 Cal.4th at p. 890.)

2. Probation
Condition Limiting Presence With Other Children

The
court’s minute order of October 5, 2011, from the hearing at which the court
accepted transfer of the case, included the following directive: “Minor not [to] be in the presence of any
children under the age of 13 years without adult supervision.” At the dispositional hearing on November 7,
2011, the judge initially announced a different restriction as a probation
condition, as follows: “As before, not
to be alone with any female under the
age of 13. Actually, say under the age
of 14 years old.” (Italics added.) Apparently based on this language, the minute
order of November 7, 2011, states:
“Minor not to presence [sic] of any Female under the age of 14
years.”

The
reporter’s transcript of the November 7 dispositional hearing indicates,
however, that the court clarified or changed the probation condition later in
the hearing, such that it also pertained to A.V.’s presence with younger males
(like the October 5 minute order). The
court and defense counsel engaged in the following exchange: “[DEFENSE COUNSEL]: The other question I have, since he is just
13, he’s going to have difficulty staying away from 14 years old or under since
they’re going to be classmates of his.
[¶] THE COURT: I think
that’s in class, that’s supervised. If
he’s not in class, he’s got to stay away from females. [¶] [DEFENSE COUNSEL]: You said any children [apparently referring
to the October 5 order rather than the court’s earlier statement at the
November 7 hearing]. You didn’t limit to
females. [¶] THE COURT: Females.
[¶] [DEFENSE COUNSEL]: Going
to the bathroom or whatever at school, things of those sorts, at lunch, be in
contact. [¶] THE COURT: Males if they’re classmates; anyone younger
than that, no. Younger than him,
no. Lower grades, no. [¶] [DEFENSE COUNSEL]: And no female under the age of 14. Supervised by adult. [¶] THE COURT: Right.”


The
upshot is that A.V. was prohibited from being alone with a male younger than
him, and prohibited from being alone with a female under 14, unless supervised
by an adult. To the extent there is a
discrepancy between the court’s oral pronouncement and the minute order, the
oral pronouncement controls. (>People v. Zackery (2007) 147 Cal.App.4th
380, 385 (Zackery).)href="#_ftn1" name="_ftnref1" title="">[1]

A.V.
argues that the probation condition is unconstitutionally vague. He also argues that the probation condition
is overbroad, because it infringes on his constitutional right to freedom of
association, in that there are “many legitimate reasons why [he] would find
himself alone with another child,” such as being alone in a restroom when
another boy enters, participating in sports or school activities, walking in
the hallway on the way to class, or sharing a room in his group home. Respondent counters that those situations
would not give rise to a violation of the probation condition, because they
would occur within the structured environment of a school or residence facility
with the adult supervision contemplated by the court. In his reply brief, A.V. argues: “Certainly, it is appropriate for A.V. to be
restricted from being alone with other children in clandestine
environments. But when it comes to his
living facility and school environment, the condition must be narrowly tailored
to address his reasonable, daily needs.”


To
address the vagueness and overbreadth concerns raised by A.V., and to effect
what the record suggests the court had in mind, the statement of the probation
condition should be clarified so that it reads:
“Minor not to be in the presence of any younger male, or any female
under 14 years of age, except in his living facility, in school, or with adult
supervision.” The dispositional order
must be modified accordingly. href="#_ftn2" name="_ftnref2" title="">[2]

A.V.
contends the probation condition is nonetheless unreasonable under >Lent, supra, 15 Cal.3d 481, because A.V.
committed lewd and lascivious acts only with his younger female cousin in the
home they shared, not with a younger male or other child or in public. However, the probation condition (as we have
clarified it) is reasonably related to A.V.’s offense and the deterrence of
future criminality. A.V.’s offense was
lewd and lascivious conduct with a child under 14; it was not unreasonable for
the juvenile court to conclude that, in the future, A.V. might sexually assault
a child other than N.V. in a different location. A.V.’s molestation of N.V. was not directed
to female genitalia, and there was no evidence that A.V. would not try to mimic
a sex act on another child or at a location other than home.

We
will order the juvenile court to amend the November 7 minute order to reflect
the probation condition as we have articulated it.

3. Probation
Condition To Be of Good Conduct and Obey Caregiver

A.V.
contends that two other probation conditions are vague and overbroad: that he be “of good conduct” and that he obey
his caregiver. We conclude that the
former is not an independent probation condition, and the latter is
appropriate.

The
minute order of November 7, 2011, states:
“Obey all city, county, state, and federal laws and ordinances. [¶] Obey
parent, legal guardian, or caregiver.” (Italics added.) It does not use the words, “be of good
conduct.” That phrase was uttered by the
judge at the hearing, when he said:
“Obey all laws of the community and be
of good conduct. Obey your
caregiver.”

A.V.
argues that the phrase “good conduct” is vague and, since he is already
prohibited from violating the law and is required to obey his caregiver and
school rules, the condition that he be of “good conduct” is unnecessary and
should be stricken. Respondent concurs
that the phrase “of good conduct” is a “curious locution” that is absent from
the minute order, and agrees that the issue is resolved if it is assumed that
the court simply meant that A.V. was required to obey all laws. We will interpret the court’s reference to
being “of good conduct” as subsumed within the conditions stated in the minute
order and, as such, no modification to the minute order is required on this
ground.

As
to the court’s order that A.V. “obey . . . [his] caregiver,” A.V. argues that
the phrase is vague as to what it prohibits and overbroad in its restriction of
conduct beyond what is necessary to achieve the state’s interest. (He asks rhetorically, “Must A.V. do absolutely
everything his caregiver directs him to do?
What constitutes a caregiver directive?
What level, or how many instances, of disobedience would yield a
probation violation?”) To eliminate this
purported vagueness and overbreadth, A.V. urges, the probation condition should
be rewritten with language from Welfare and Institutions Code section 601, such
that he need obey only “reasonable and proper orders,” and his failure to do so
would not violate his probation unless it gets to the point that he
“persistently or habitually refuses to obey.”
(Welf. & Inst. Code, § 601, subd. (a).)href="#_ftn3" name="_ftnref3" title="">[3]

A.V.’s
argument is meritless. The purpose of
the probation condition that A.V. obey his caregiver is distinct from the
purpose of Welfare and Institutions Code section 601, subdivision (a),
which defines when a minor may fall within the juvenile court’s
jurisdiction. Although A.V. argues that
his proposed modification would provide the certainty necessary to inform A.V.
and the court what behavior constitutes a violation, we find no need for the
modification and, in any event, the inclusion of phrases like “reasonable and
proper orders” and “persistently or habitually refuses to obey” would not
accomplish the task. Nor is there any
indication that the court, in imposing the probation condition, contemplated
that it would be alright for A.V. to disobey his caregivers as long as he not
do so persistently or habitually. In the
final analysis, A.V. fails to establish unconstitutional vagueness, overbreadth
or other insufficiency in the condition that he “[o]bey parent, legal guardian,
or caregiver.”

4. Other
Purported Probation Conditions

A.V.
next contends that a document in the clerk’s transcript entitled “Conditions of
Probation and Court Orders” (Probation Document), apparently prepared by the
Alameda County Juvenile Probation Department and signed by A.V. and his mother,
contains additional probation conditions not ordered by the court, as well as
conditions that are variations on the ones the court ordered. He contends that two of them should be
stricken.

One
of the purported conditions reads: “Do
not frequent any campus or be within __ feet of any campus other than the
school in which currently enrolled.”
A.V. asserts that this condition must be stricken because it was not
mentioned by the court at the dispositional hearing, and a court’s oral
statements ordinarily prevail against a minute order (Zackery, supra, 147 Cal.App.4th at p. 385); respondent counters
that the Probation Document is not a minute order, but a list of probation
conditions signed by A.V. and his mother, so it should prevail. A.V. further contends this condition is vague
because it uses the word “frequent” (In
re H.C. (2009) 175 Cal.App.4th 1067, 1072-1073) and fails to specify the
number of feet A.V. must stay from a school campus.

Based
on the record on appeal, we conclude that the statement in the Probation
Document has no effect as a probation condition. The Probation Document is dated and signed
November 7, 2011, before the minute order was prepared (November 8) and served
(November 9). The restriction does not
appear in the court’s minute order, it was not among the conditions imposed
orally by the judge at the dispositional hearing, and there was no mention of
it at the hearing. The record is
insufficient to infer that A.V. and his mother agreed to this restriction as an
additional probation condition beyond what the court had ordered. Moreover, the absence of any indication of
how many feet A.V. must stay away from campus makes the restriction largely
meaningless and unenforceable, and there is no suggestion why A.V. would have
to stay away from a campus since he is already prohibited from being in the
presence of a younger male or female under 14 except in his living facility, in
school, or with adult supervision.

Another
purported condition appearing in the Probation Document reads: “Minor not to be in the presence of any
children under the age of 14 without adult supervision.” A.V. contends that this misstates the
probation condition ordered by the court, because the court did not mention a
requirement of “adult supervision” at the hearing. In this regard, A.V. is incorrect: the court expressly required that A.V. not be
in the presence of a female under 14 without adult supervision, and implied a
requirement of adult supervision with respect to A.V. being in the presence of
a younger male. In any event, we have
already concluded that the proper articulation of the probation condition is as
follows: A.V. cannot be in the presence
of any younger male or female under 14 except in his living facility, in
school, or with adult supervision. To
the extent the Probation Document purports to state the probation condition
differently, it shall be deemed in error.

D. Minute
Order

A.V.
contends that the minute order of October 5, 2011, erroneously states that he
admitted count two, while in fact count two was found true by the court after a
contested jurisdictional hearing, not by his admission. Respondent does not object to our correction
of the order. We also note that the same
statement is made in the minute order of November 7, 2011. Both orders shall be corrected to read that
count two was found true, but not that A.V. admitted it. (See Zackery,
supra, 147 Cal.App.4th at pp. 385-386.)


III. DISPOSITION

The jurisdictional order is
affirmed. As to the dispositional order,
the probation condition that presently reads (in the November 7, 2011, minute
order from the dispositional hearing), “Minor not to presence of any Female under
the age of 14 years” shall be replaced with the following: “Minor not to be in the presence of any
younger male, or any female under 14 years of age, except in his living
facility, in school, or with adult supervision.” The juvenile court is directed to prepare
amended minutes of the hearing on November 7, 2011, to make this
correction. In addition, the juvenile
court is directed to prepare amended minutes of the hearing on October 5, 2011,
and to provide





further amendment to the minutes of
the hearing on November 7, 2011, to make the following correction: count two was found true, but A.V. did not
admit the count. In all other respects,
the dispositional order is affirmed.











NEEDHAM,
J.





We concur.







JONES, P. J.







SIMONS, J.