In re J.V.















Filed 4/17/13 In re J.V. CA2/4



















NOT TO BE PUBLISHED IN THE OFFICIAL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opinion has not been certified for publication or ordered published for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



SECOND APPELLATE DISTRICT



DIVISION FOUR








>

In re J.V., a Person Coming Under the Juvenile Court Law. ___________________________________ THE PEOPLE, Plaintiff and Respondent, v. J.V., Defendant and Appellant. ___________________________________

B242841 (Los Angeles County Super. Ct. No. GJ29694)

APPEAL
from an order of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Robin Miller Sloan, Judge. Modified and affirmed.

Gerald
Peters, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Eric E. Reynolds and Rene Judkiewicz, Deputy
Attorneys General, for Plaintiff and Respondent.

______________________________

Minor J.V. appeals from an order
sustaining a petition under Welfare and Institutions Code section 602href="#_ftn1" name="_ftnref1" title="">[1]
and placing him home on probation. He
argues the juvenile court erred in admitting his statements to police. We find no prejudicial error. We strike the
maximum period of incarceration and affirm the order as modified.



>FACTUAL AND PROCEDURAL SUMMARY

In March
2012, J.V., who was almost 18 years old, was involved in a traffic accident on
Los Robles Avenue in Pasadena.
The PT Cruiser belonging to J.V.’s father struck a parked Honda
van. J.V. and his three companions ran
from the accident scene.

The section 602 petition alleged J.V.
committed the misdemeanor offenses of driving under the influence of alcohol
and fleeing the scene of an accident (hit and run). (Veh. Code, §§ 20002, subd. (a), 23152, subd.
(a).) At the adjudication hearing, two
police officers and three civilians testified for the prosecution, and one of
J.V.’s companions testified for the defense.


Prosecution witness Cesar Leon
testified he was inside a house, two doors down on the same street where the
accident occurred. After hearing a
crash, he went out and took cell phone pictures of the two cars and of two
individuals running away. He identified
J.V. as one of the two individuals, and claimed to have seen him go around the
PT Cruiser and help out a young woman sitting in the front passenger seat. Leon testified he did not see J.V. exit
the PT Cruiser, but saw him fall down two or three times while trying to go
around it.

Prosecution witness Anthony Villa
Gomez was in his car three doors away from the accident. He heard the crash and saw four individuals
get out of the PT Cruiser. Two of them
ran south, and two, including J.V., ran north.
Gomez said J.V. staggered and fell down twice before he ran away. He also testified J.V. got out of the
driver’s side of the PT Cruiser. When
asked whether he saw which door J.V. used to exit, Gomez said he “assumed” J.V.
“was coming out of the driver’s side, because the passenger on the driver’s
side headed south” along with “the female on the passenger side”; “the other
male . . . on the passenger, in the front side” headed north with J.V.

Kathryn Uchida, the daughter of the
owners of the Honda van, testified she heard the crash from inside the house,
went outside, and saw a male passenger in the front seat grab a backpack. She went inside the house to call 911 and did
not see anything else.

The police report indicated witnesses
had seen individuals running away from the accident scene. No witness had identified any of the
individuals as exiting through the driver’s door or falling down at the scene
of the accident, and no such statements were included in the police
report.

Officer Ivis Moran, who responded to
the accident, testified he saw J.V. walking on the sidewalk near Los Robles and
California Avenues. His clothes were
dirty and torn and his gait was unsteady.
Officer Moran suspected J.V. had been involved in the accident. The officer pulled up next to J.V. and asked
him to stop, but J.V. continued walking.
Officer Moran then got out of the car and told J.V. he was not in
trouble. The officer wanted to find out
if J.V. was well since he had blood on his forehead. He also exhibited symptoms of
intoxication. J.V. did not respond when
officer Moran asked if he was all right.
When asked what his name was, J.V. was able to tell the officer his
middle name. When asked if he had been
in a car accident, J.V. said, ‘“Yeah.”’
The officer then asked if J.V. had been driving, and J.V. again said,
‘“Yeah.”’ J.V. continued walking after
Officer Moran told him they should go back to the accident scene, and he tried
to pull away when the officer took him by the arm. At that point, Officer Moran handcuffed J.V.
and brought him back to the scene of the accident, where he handed him over to
Officer Donald Sevesind.

Officer Sevesind testified he saw
J.V. sitting in Officer Moran’s patrol car with eyes closed and head tilted
back. It took several seconds to rouse
him. He was initially unable to respond
to questions, but eventually told the officer his first name. Officer Sevesind read J.V. his >Mirandahref="#_ftn2" name="_ftnref2" title="">[2]
rights. During the reading, J.V. kept
slowly closing and opening his eyes, and did not respond when the officer asked
him if he understood each individual right.
After reading the Miranda
rights, the officer asked J.V. if he understood the rights he had just read,
and J.V. responded he did. In the
subsequent interview, J.V. did not answer some questions and gave incoherent
responses to others. He initially
admitted he had been driving, then said he had not been driving. J.V. also said he parked the car and ran out,
and did not know what happened. When
asked to submit to a blood or breath test, J.V. took several seconds to
respond, then said he did not need to because he could ‘“get zeroes.”’ But he admitted drinking seven shots of
vodka.

C.Q., who also was in the PT Cruiser
at the time of the accident, testified for the defense. He said J.V. had given him a ride to school
that day, parked the car, and gone to school, taking the car keys with
him. In J.V.’s absence, C.Q. and two
others started drinking vodka in the back seat.
J.V. later joined them, getting into the front passenger seat. C.Q. testified that at some point J.V. gave
him the car keys, and C.Q. drove everyone to a park, then crashed into the
Honda van on the way back to the school.
C.Q. stated all occupants of the PT Cruiser ran in the same direction
after the accident. According to C.Q.,
at the time of the accident, everyone else was in the back seat, with J.V.
sitting directly behind the driver’s seat.
But C.Q. admitted he told the investigating officer he was sitting in
the back seat at the time of the accident and did not remember who was
driving.

Defense counsel objected to the
testimony about J.V.’s statements to Officer Moran on the ground that J.V. had
not been read his Miranda rights, and
she objected to both officers’ testimony about J.V.’s statements on the ground
that J.V. was physically incapable of validly waiving his Miranda rights, due to his intoxication. The court overruled the Miranda objections and denied the motion to dismiss, telling
defense counsel, “I think you have an argument, I will give them their due
weight in light of all the evidence that I have heard.”

The court found credible the
testimony of the civilian witnesses “who didn’t really have an axe to grind,
and admittedly did not see who was driving, but were clear about the positions
of the persons in the car.” The court
also relied on J.V.’s admission to Officer Moran that he had been involved in
an accident and had been driving. Based
on this evidence, the court found the allegations against J.V. proven beyond a
reasonable doubt and sustained the section 602 petition. The court did not rely on J.V.’s statements
to Officer Sevesind, agreeing with the defense that Officer Sevesind’s
reporting was “not as clear as to the state of the minor.”

J.V. was placed home on probation for
six months, with a maximum term of confinement of one year, two months. He timely appealed.



>DISCUSSI>ON

I

Before a defendant’s custodial
statements may be admitted against him at trial, they must be shown to have
been made voluntarily after he was advised of his rights to remain silent and
to have an attorney present. (>Miranda, supra, 384 U.S. 436, 475.) J.V. argues his statements to officers Moran
and Sevesind were custodial and involuntary due to his intoxication, and the
juvenile court failed to determine his capacity to make voluntary statements
before admitting them into evidence.

Whether a suspect’s statements were
obtained in violation of Miranda, >supra, 384 U.S. 436, presents a
mixed question of fact and law, which we review independently while deferring
to the lower court’s resolution of disputed facts if supported by substantial
evidence. (People v. Weaver (2001) 26 Cal.4th 876, 918.) We conclude that J.V.’s statements to Officer
Moran were noncustodial and therefore not obtained in violation of >Miranda, supra, 384 U.S. 436.


“A suspect is in custody when a
reasonable person in the suspect’s position would feel that his ‘freedom of
action is curtailed to a “degree associated with formal arrest.”
[Citation.]’ [Citation.]” (People v. Bejasa (2012) 205 Cal.App.4th 26, 35.) Where the suspect was not formally arrested
at the time he made the challenged statements to police, relevant factors
include the length of the detention, its location, the number of police
officers involved, and the nature of the questioning. (Id.
at p. 36.) The “term ‘custody’ generally
does not include ‘a temporary detention for investigation’ where an officer
detains a person to ask a moderate number of questions to determine his
identity and to try to obtain information confirming or dispelling the
officer’s suspicions.” (>People v. Farnam (2002) 28 Cal.4th 107,
180.)

J.V.’s encounter with Officer Moran
was brief and took place on a public street.
Officer Moran told J.V. he was not in trouble and the officer was just
checking on his well being. The officer
did not physically restrain J.V. until after J.V. admitted he had been
driving. This brief investigative
inquiry was not a custodial interrogation even if the officer subjectively
suspected J.V. was involved in the accident and detained him to obtain
information confirming his suspicion.
The officer’s ‘“uncommunicated subjective impressions”’ about J.V.’s
custodial status are irrelevant. (>People v. Farnam, supra, 28 Cal.4th at pp. 180–181.) Additionally, since J.V. continued walking
both after the officer initially asked him to stop and after the officer told
him they should go back to the accident scene, we cannot conclude that he
reasonably believed “his freedom of action was being curtailed in any significant
way.” (Id. at p. 180.)

J.V. suggests his age is a relevant
factor, citing J.D.B. v. North Carolina

(2011) 564 U.S. ___, 131 S.Ct. 2394, 2402–2403. In that case, “a 13-year-old, seventh-grade
student attending class . . . was removed from his classroom by a uniformed
police officer, escorted to a closed-door conference room, and questioned by
police for at least half an hour.” (>Id. at p. 2399.) The majority held that “so long as the
child’s age was known to the officer at the time of police questioning, or
would have been objectively apparent to a reasonable officer, its inclusion in
the custody analysis is consistent with the objective nature of that test. This is not to say that a child’s age will be
a determinative, or even a significant, factor in every case.” (Id.
at p. 2406, fn. omitted.) The majority
specifically noted that omitting a suspect’s age was not unreasonable when the
suspect ‘“was almost 18 years old at the time of his interview.”’ (Ibid.,
citing Yarborough v. Alvarado (2004) 541
U.S. 652, 669, O’Connor J., concurring.)

The record
does not indicate that when Officer Moran talked to J.V. on the street, he knew
or had reason to know J.V. was a minor.
At the adjudication, the officer was asked only whether J.V. matched the
description of “a male Hispanic with some specific clothing.” The record also indicates that, at the time
of the accident, J.V. was six months short of his eighteenth birthday. J.D.B.
v. North Carolina, supra, 564 U.S. ___, 131 S.Ct. 2394, does not
require that we conclude J.V.’s age is a significant factor under the
circumstances.

J.V. also
argues his statements to Officer Moran were involuntary due to his
intoxication, and the juvenile court violated his right to due process by
admitting these statements without determining whether J.V. had the capacity to
make them. We are not persuaded. The defense objections were that J.V. should
have been read his Miranda rights and
that he did not have the capacity to understand or waive them. In ruling on a Miranda objection, the trial court need not make formal findings so
long as its ruling is reflected in the record with “‘“unmistakable
clarity.””’ (People v. Smithson (2000) 79 Cal.App.4th 480, 494.) Here, the juvenile court repeatedly overruled
the defense’s Miranda objections to
Officer Moran’s testimony.

As we have discussed, the protections
of Miranda, supra, 384 U.S. 436, apply only when a defendant is subjected to >custodial interrogation, and J.V. was
not in police custody at the time he made the statements to Officer Moran. Additionally, while a suspect’s intoxication
is a significant factor in determining whether a confession was involuntary, it
is not by itself determinative. (>People v. Perdomo (2007) 147 Cal.App.4th
605, 617.) Rather, “[a] finding of
coercive police activity is a prerequisite to a finding that a confession was
involuntary under the federal and state Constitutions. [Citations].”
(People v. Maury (2003) 30
Cal.4th 342, 404; compare Mincey v.
Arizona (1978) 437 U.S. 385, 401 [relentless questioning of wounded
man going in and out of consciousness resulted in involuntary statements] with >People v. Perdomo, at pp. 617–618
[statements elicited after 20-minute interview of suspect under influence of
pain medication in hospital were voluntary where officers did not exert
psychological or physical pressure].)
Here, although J.V. was apparently intoxicated, there is no evidence
that he was going in and out of consciousness at the time of his brief street
encounter with Officer Moran. During
this encounter, J.V. was able to walk, albeit unsteadily, and tell the officer
his name. There is no evidence that the
officer did anything besides asking J.V. a few brief questions or that he used
any coercive tactics to elicit J.V.’s responses.

The court did not err in overruling
the Miranda objections to Officer
Moran’s testimony, and J.V.’s statements to that officer were admissible
evidence. J.V. does not contend that his
statements to Officer Moran were insufficient to support the adjudication. Since the juvenile court expressly stated it
did not rely on J.V.’s statements to Officer Sevesind, we need not review their
admissibility. We also do not address
J.V.’s contention that the petition could not have been sustained solely on the
civil witnesses’ testimony.

II

Section 726, subdivision (c), which
requires the juvenile court to specify a maximum term of confinement not
exceeding the time of confinement allowable for an adult convicted of the same
offense, does not apply when a minor remains in the physical custody of his or
her parents. (In re Matthew A. (2008) 165 Cal.App.4th 537, 541; >In re Ali A. (2006) 139 Cal.App.4th 569,
573–574.) Relying on >In re Ali A., respondent argues that the
inclusion of a maximum confinement term in the disposition order has no legal
effect and need not be stricken. (>Id. at p. 574, fn. 2.) The better practice is to strike the
unauthorized term to provide J.V. with a legally correct disposition
order. (In re Matthew A., at p. 541.)



>DISPOSITION

The maximum confinement term is stricken from the July 17,
2012 order. In all other respects, the order is
affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS









EPSTEIN,
P. J.

We
concur:







WILLHITE,
J.







SUZUKAWA,
J.