FEUER, J. —
In this juvenile delinquency proceeding, we hold that a 13-year-old boy's statement — "Could I have an attorney? Because that's not me" — made during
The juvenile court should have granted the motion to suppress the statements subsequently elicited by police. Because the Miranda error was not harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824] (Chapman), we reverse and remand for further proceedings.
On August 18, 2012, about 12:40 a.m., there was a shooting on the 1400 block of Alvarado Terrace in Los Angeles. Alex Castaneda, Saul Barragan and Leonardo Villanueva were shot. Castaneda died; Barragan and Villanueva survived. Two surveillance cameras recorded the shooting.
As part of their investigation into the shooting, the police directed their attention to defendant Art T. (Art), who was then 13 years old. On August 20, 2012, police brought Art to the police station where Los Angeles Police Detectives Julian Pere, Jeff Cortina and Michael Arteaga interrogated him.
Detective Cortina made no attempt to secure an express waiver of rights from Art. After giving the Miranda warnings, he continued to talk to Art and to question him about the shooting. He informed Art that his partner was going to show him something. Detective Cortina said, "[w]e've talked to a lot of people and there's a lot we know. And so all we're looking for is just the truth."
Art continued to deny any complicity in the shootings. He said the clothes the person in the video was wearing were not his. He denied being on Alvarado Terrace and said he was with a friend in Arcadia. He denied even knowing where Alvarado Terrace was. At this juncture, starting on page 30 of the transcript, the following transpired:
Despite Art's request for an attorney, the interrogation continued with Detective Arteaga taking the lead. Detective Arteaga repeatedly encouraged Art to tell the truth so that he would not appear to be a "cold blooded killer." He told Art that his mother was crying and had identified him in the video, when in fact she had not. When Art continued to deny his involvement in the shooting, Detective Arteaga said, "I'm about to leave. I'm trying to give you an opportunity to tell us the truth because right now it looks like you're a cold blooded gang murderer. That is serious."
In the 32 pages of transcript memorializing the interrogation between the time Art asked for an attorney and the time he confessed, Art continued to deny any involvement in the shooting. He also made multiple requests to speak with his mother and his girlfriend, but these requests were denied. On
Over the next 10 pages of the transcript, Art continues to deny his involvement in the shooting. The detectives do not allow him to talk to his mother or to make a phone call. Art makes his first incriminating statement on page 63 of the transcript:
Art denied being drunk or on drugs but stated, "[j]ust feeling the power. You feel ... like the shit when you have a gun in your fucking hand." Art admitted that he shot at the group of individuals because he thought they were from the 18th Street gang. Art denied shooting in retaliation for the death of his "homey" two months earlier. Art admitted that "the thing that happened on Alvarado Terrace, that's like the only one I've been involved in."
Further questioning revealed Art and a second shooter each had a gun, but Art did not know the type of guns they used. Art admitted that they shot at
On August 22, 2012, the People filed a Welfare and Institutions Code section 602 petition alleging that Art committed one count of murder (Pen. Code, § 187, subd. (a)) and two counts of attempted willful, deliberate, and premeditated murder (id., §§ 187, subd. (a), 664). The People further alleged as to each count that Art personally and intentionally discharged a firearm, causing great bodily injury or death (id., § 12022.53, subds. (c) & (d)) and committed the crime for the benefit of, at the direction of, or in association with a criminal street gang (id., § 186.22, subd. (b)(4)).
In the juvenile court, Art filed a motion to suppress all statements that were obtained in violation of his Miranda and due process rights. Art argued that his confession resulted from the detectives' badgering and lies and thus was involuntary in violation of his due process rights. Art further argued that his Miranda rights were violated when the detectives failed to provide him with an attorney after he asked for one during the course of the interrogation.
Neither party presented any testimonial evidence at the hearing on Art's motion to suppress. As we have noted, although the police videotaped Art's interrogation, the juvenile court only had the written transcript before it in ruling on Art's motion. When the juvenile court asked Art's trial counsel to "frame the issues," counsel argued that Art's statement, "Could I have an attorney? Because that's not me," invoked his right to counsel and that the detectives improperly continued to question him.
The juvenile court stated: "I'm reading a cold transcript.... So the court has to use the objective standard, and so, to me, some of the things that are not issues: clearly, he's in custody. Clearly, he's the focus of the investigation, and, in the court's mind, based on the transcript, clearly he's been advised of his Miranda rights. Clearly, he meets the Gladys R. threshold. So the issue then is, one, as to whether you have any evidence — whether you're going to put on evidence. Were you going to call the minor? I'm not sure.
Art's counsel stated that she did not intend to call Art to testify and that she was seeking "a legal ruling." The prosecutor argued that Art's statement, "Could I have an attorney? Because that's not me," was a conditional rather than an unequivocal invocation of his Miranda rights, and thus the officers did not have to stop their questioning.
Art's counsel urged the juvenile court to consider Art's youth in assessing whether he invoked his right to an attorney. The court appeared to acknowledge that Art's developmental level was significant, stating: "That's what I was trying to get to, counsel. And, forgive me, but I cannot assume facts not in evidence. I cannot imagine myself in the situation. The court has to have a picture — a word picture — painted for it. I know some 13 year olds that are quite sophisticated, quite able to manipulate the system. In fact, they manipulate me every day. Anyone who thinks somebody who is 12 or 13 can't do that is just fooling themselves. On the other hand, we have some kids in here who are quite naïve at 15 and 16, and there's a developmental phase to children.... Clearly, there is sleight of hand and some deception going on, but none of my research indicates that that, by itself, constitutes a violation of the law.... What basically I have is a statement in passing. Well, if that's not me — `That's not me. I want a lawyer,' whether that constitutes a revocation of his waiver to speak to the police. I mean, if you want a tentative based on what I have now, I just don't think that's sufficient."
Art's counsel then argued that Art's confession was coerced. The court stated, "But I think, again, based on my reading of the entire transcript, my review of the law, I think there is insufficient factual basis for the court to grant your motion, and, therefore, your motion is respectfully denied." The court did not address Art's motion to suppress the statements he made to his girlfriend given its denial of the motion to suppress his confession to police.
Art's adjudication hearing was held on May 7, 9 and 10, 2013.
The prosecution called three eyewitnesses to the shooting, including Saul Barragan, Leonardo Villanueva, and Ricky Mora, who were part of a group of seven or eight people gathered outside on August 18, 2012, when the shooting occurred. At around 12:40 a.m., Barragan, Villanueva, Mora, Alex
Mora saw "sparks" in two different locations and therefore believed there were two shooters. One shooter was on the sidewalk in front of a nearby apartment complex; the other was across the street from the group. After the shooting stopped,
According to Roger Negroe, the dean at Berendo Middle School, on August 18, 2012, Art was a student at the school. He started attending Berendo the year before, after transferring from another school. Negroe described Art as "very quiet" for the most part but noted that on a couple of occasions he was "disruptive" in class.
Los Angeles School Police Officer Daniel East, who was assigned to Berendo Middle School, stopped Art in May or June 2012 for being truant. Art told Officer East that he wanted to be a member of a gang or tagging crew, but he did not know which gang. Art stated that whatever gang he joined, he would be "loyal to that gang." Officer East searched Art's backpack and found some paperwork with "gang-style or graffiti writing." On August 20, 2012, Officer East encountered Art at school and noticed that he had cut his hair "pretty close to shaved."
Los Angeles Police Officer Marshall Cooley, whom the prosecution called as a gang expert, testified that he first met Art's mother on August 17, 2012, when she came into the police station and asked to speak to an officer about the M.S. gang. She told Officer Cooley she believed Art was affiliated with M.S. and that she was concerned for his well-being. She said that she had heard about a shooting on Leeward and did not know if her son was involved.
Officer Cooley then investigated Art using the Los Angeles Police Department databases and learned that he previously had been stopped with other
The defense called two witnesses, Art's mother, Helen C., and a video expert, Michael Jones. Helen C. testified that on August 17, 2012, Art walked home from school, returning around 4:30 p.m. Art stayed home while Helen C. ran errands. When Helen C. returned home around 6:20 p.m., Art was not home.
Around 9:00 p.m., Helen C. had not yet heard from Art and decided to go to the police station to make a missing person's report. As she was getting into her car, she heard a commotion down the street. Worried about her son, Helen C. drove in the direction of the commotion. She spoke to a police officer who stated that someone had been shot and killed. Helen C. inquired as to the age of the victim, but the officer said that he did not yet have that information. Helen C. then drove to the police station and filed a missing person's report for Art with an officer,
About 11:26 p.m., Helen C. received a telephone call from Art's friend Joshua, who lived in Arcadia.
On August 20, 2012, Helen C. received a telephone call from the police department, asking her to come to the station to close out the missing
The officer showed Helen C. a still shot on a computer and told her, "This is your son." Helen C. told the officer she did not think the person was Art because the person in the picture was "taller" and "thicker" than Art, the picture did not show Art's bald birth mark on the left side of his forehead, and the person was wearing different clothes from what Art had. Helen C. repeatedly told the officer that the person in the picture was not her son.
Helen C. testified she knew that Art was known as Casper and that Casper is a gang name, but she denied knowing that Art was connected to the M.S. gang. The People impeached Helen C. with a video from August 20, in which she stated to Detective Arteaga, "I know my son to be affiliated somehow with M.S. in the past." When asked how she knew, Helen C. stated that Art told her he was affiliated with M.S. and he "posted ... all this stupid stuff on Facebook."
Michael Jones, an expert in audio and video enhancement, testified that the two outdoor security cameras that recorded the shooting were mounted 16 feet and 16½ feet, respectively, from the ground. He opined that camera angles affect how objects and people appear and that the video taken in the case from its elevated position would distort how the subject walking across the screen would appear.
During closing argument, the juvenile court addressed the prosecutor: "the video identification and the quality of the video ... have the court concerned with establishing an I.D. off of that information, off of that evidence. To be quite frank with you. I just — I cannot tell." The prosecutor responded that "[i]f that's all we had, we'd be in a completely different situation," and he acknowledged that no witness identified Art from the video. The prosecutor urged the court to consider the "totality of the circumstances," including the video, Art's confession, and Art's statement to his girlfriend.
Before adjudicating the matter, the juvenile court stated, "I carefully reviewed the pictures, the photographs that were admitted by the defense, and with regard to the video evidence, that standing alone would not be sufficient for the court to sustain a petition.... And we know, even from when there is a video, it may be impossible to tell. However, when the court applies the reasonable interpretation to the state of the evidence, the court is hard-pressed to come to a different conclusion than that which I'm about to announce."
At the disposition hearing held on August 22, 2013, the juvenile court noted that the murder charge carried a statutory minimum of 25 years with a maximum of life but that it could not impose a life sentence on a minor. It therefore stated it would "set the timeframe at 25" years and "just sentence him on one of the counts." Neither side objected. The juvenile court committed Art to the Division of Juvenile Justice.
On appeal, Art challenges the juvenile court's denial of his motion to suppress the statements he made to the officers while in custody as violating his Fifth Amendment right against self-incrimination
"`On review of a trial court's decision on a Miranda issue, we accept the trial court's determination of disputed facts if supported by substantial evidence, but we independently decide whether the challenged statements were obtained in violation of Miranda.' [Citation.]" (People v. Hensley (2014) 59 Cal.4th 788, 809 [175 Cal.Rptr.3d 213, 330 P.3d 296]; accord, People v. Bradford (1997) 14 Cal.4th 1005, 1032-1033 [60 Cal.Rptr.2d 225, 929 P.2d 544]; People v. Thomas (2012) 211 Cal.App.4th 987, 1006 [150 Cal.Rptr.3d 361].) Further, "[w]e apply federal standards in reviewing defendant's claim that the challenged statements were elicited from him in violation of Miranda. [Citations.]" (Bradford, supra, at p. 1033.)
Because the only evidence submitted in support of Art's motion to suppress was the transcript of the interrogation, there is no dispute about the
Once a suspect is advised of his or her rights, the suspect can be found to have waived those rights by continuing to answer questions. (Berghuis v. Thompkins (2010) 560 U.S. 370, 384 [176 L.Ed.2d 1098, 130 S.Ct. 2250] [defendant waived Miranda rights where he received and understood Miranda warnings, did not invoke his rights, and made voluntary statement to the police]; North Carolina v. Butler (1979) 441 U.S. 369, 373 [60 L.Ed.2d 286, 99 S.Ct. 1755] [waiver of Miranda rights in some cases can be "inferred from the actions and words of the person interrogated," without an explicit waiver].)
However, even where an accused waives his or her Miranda rights, once the accused asserts his or her right to counsel, "the interrogation must cease until an attorney is present." (Miranda, supra, 384 U.S. at p. 474; see Davis, supra, 512 U.S. at p. 458; Edwards, supra, 451 U.S. at pp. 484-485.) Subsequent statements are presumed involuntary and inadmissible if made without a lawyer. (Edwards, supra, at p. 482.) Questioning can only continue where the accused initiates further communication. (Id. at p. 485.)
Under this standard, the court in Davis held that the statement, "`[m]aybe I should talk to a lawyer ...,'" was not a request for counsel, and therefore the officers were not required to stop their questioning. (Davis, supra, 512 U.S. at p. 462.) Other courts have construed similar statements to be equivocal, thus not invoking an accused's right to counsel. (See, e.g., Clark v. Murphy (9th Cir. 2003) 331 F.3d 1062, 1069 ["... `I think I would like to talk to a lawyer' ..." held not to be unambiguous and unequivocal]; People v. Sauceda-Contreras (2012) 55 Cal.4th 203, 219 [145 Cal.Rptr.3d 271, 282 P.3d 279] ["`[i]f you can bring me a lawyer, ... that way I can tell you everything that I know ..." held to be "conditional, ambiguous, and equivocal" in light of totality of circumstances]; People v. Bacon, supra, 50 Cal.4th at pp. 1104, 1105 ["... `I think it'd probably be a good idea for me to get an attorney' ..." held to be ambiguous or equivocal.].)
Other courts have found statements using words similar to "can I have a lawyer?" to be sufficiently clear to invoke the accused's right to counsel. (See, e.g., Alvarez v. Gomez (9th Cir. 1999) 185 F.3d 995, 998 [questions by defendant found to be unequivocal request for an attorney, including "... `Can I get an attorney right now, man?' ..." "... `You can have attorney right now?' ..." "... `Well, like right now you got one?'"]; U.S. v. De La Jara (9th Cir. 1992) 973 F.2d 746, 750 ["... `Can I call my attorney?' ..." or "... `I should call my lawyer' ..." invoked right to counsel.]; Smith v. Endell (9th Cir. 1988) 860 F.2d 1528, 1529 ["... `Can I talk to a lawyer?'" and "... `I think maybe you're looking at me as a suspect, and I should talk to a lawyer'" not ambiguous or equivocal.].)
Art urges us, in considering a juvenile's invocation of his or her right to an attorney, to consider the age and lack of sophistication of the juvenile at the time of the interrogation. We now turn to the question of the proper standard to be applied in the case of a juvenile.
We start our analysis by looking at the standard the courts have applied in considering whether a juvenile accused of a crime has waived his or her Miranda rights after being advised of those rights.
The court in Fare held, "the determination whether statements obtained during custodial interrogation are admissible against the accused is to be made upon an inquiry into the totality of the circumstances surrounding the interrogation, to ascertain whether the accused in fact knowingly and voluntarily decided to forgo his rights to remain silent and to have the assistance of counsel." (Fare, supra, 442 U.S. at pp. 724-725.) As to the unique nature of juveniles, the court held further: "The totality approach permits — indeed, it mandates — inquiry into all the circumstances surrounding the interrogation. This includes evaluation of the juvenile's age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights. [Citation.]" (Id. at p. 725.)
The Supreme Court in Fare specifically addressed the "special concerns" that must be considered with juveniles, holding that the juvenile court has the expertise to "take into account those special concerns that are present when young persons, often with limited experience and education and with immature judgment, are involved. Where the age and experience of a juvenile indicate that his request for his probation officer or his parents is, in fact, an invocation of his right to remain silent, the totality approach will allow the
The court in Fare found that the juvenile had voluntarily and knowingly waived his Fifth Amendment rights, after consideration of the fact that he was 16½ years old at the time of the confession, had several prior arrests, spent time in youth camp, was on full-time probation at the time of the interrogation, had his rights explained to him multiple times, there was no indication that he did not understand what the officers told him, and he clearly expressed his willingness to waive his rights and continue the interrogation. (Fare, supra, 442 U.S. at p. 726.)
We turn next to the question of what standard applies in determining whether a juvenile, after voluntarily waiving his or her rights under Miranda, makes a statement that is sufficiently unequivocal to invoke the juvenile's right to an attorney.
Our Supreme Court in Nelson held that the appellate court was in error in applying a subjective "totality of the circumstances" test in order to determine whether the juvenile suspect, after waiving his Miranda rights, intended to invoke his right to counsel. (Nelson, supra, 53 Cal.4th at p. 384.) First, the
Moreover, while the Nelson case was pending, the United States Supreme Court decided J. D. B. v. North Carolina (2011) 564 U.S. ___, ___ [180 L.Ed.2d 310, 318, 131 S.Ct. 2394, 2398] (J. D. B.), in which it considered "whether the age of a child subjected to police questioning is relevant to the custody analysis of Miranda ...." The court in J. D. B. considered whether a 13-year-old seventh grader who was questioned by two police officers with two school administrators present in a closed school conference room was in custody for the purpose of application of Miranda. (J. D. B., supra, at pp. ___-___ [131 S.Ct. at pp. 2398-2399].) The court held that, while the question of whether a suspect is in police custody for purposes of application of Miranda is an objective inquiry, "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.... It is, however, a reality that courts cannot simply ignore." (J. D. B., supra, at p. ___ [131 S.Ct. at p. 2406], fn. & citations omitted.)
While the United States Supreme Court has not addressed the type of objective inquiry a court should make when considering whether a juvenile, after waiving Miranda rights, has invoked his or her right to an attorney, the same considerations that informed the J. D. B. decision apply to this inquiry. Indeed, the court in Nelson, while finding that the juvenile there had not invoked his right to an attorney by his conditional statement that he would not take a polygraph test unless his mother or a lawyer was present, addressed the holding in J. D. B., noting: "While J. D. B.'s analysis generally supports the view that a juvenile suspect's known or objectively apparent age is a factor to consider in an invocation determination, knowledge of defendant's age would not have altered a reasonable officer's understanding of
In reaching its holding, the court in J. D. B. reviewed the other contexts in which the Supreme Court has "observed that children `generally are less mature and responsible than adults,' [citation]; that they `often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them,' [citation]; that they `are more vulnerable or susceptible to ... outside pressures' than adults [citations]; and so on." (J. D. B., supra, 564 U.S. at p. ___ [131 S.Ct. at p. 2403].) In particular, the Supreme Court has considered the maturity level of juveniles in barring capital punishment for juveniles (Roper v. Simmons (2005) 543 U.S. 551, 568 [161 L.Ed.2d 1, 125 S.Ct. 1183]), barring a sentence of life without parole for juveniles convicted of nonhomicide offenses (Graham v. Florida (2010) 560 U.S. 48, 67 [176 L.Ed.2d 825, 130 S.Ct. 2011]), and requiring consideration of a juvenile's "diminished culpability and heightened capacity for change" before imposing a sentence of life without parole for homicide offenses (Miller v. Alabama (2012) 567 U.S. ___, ___ [183 L.Ed.2d 407, 132 S.Ct. 2455, 2469]).
The court in J. D. B. concluded that "including age as part of the custody analysis requires officers neither to consider circumstances `unknowable' to them, [citation] nor to `anticipat[e] the frailties or idiosyncrasies' of the particular suspect whom they question [citation]. The same `wide basis of community experience' that makes it possible, as an objective matter, `to
We next turn to the facts of this case.
Accordingly, once Art made a request for an attorney, all questioning should have ceased. (See Davis, supra, 512 U.S. at p. 458; Edwards, supra, 451 U.S. at pp. 484-485.) All statements made by Art to the officers after he requested an attorney are presumed involuntary and inadmissible, and should have been suppressed. (See Edwards, supra, 451 U.S. at p. 482; Miranda, supra, 384 U.S. at p. 479.)
When statements are obtained in violation of Miranda, as they were in this case, the error is reviewed under the federal "harmless beyond a reasonable doubt" standard set forth in Chapman. (Arizona v. Fulminante (1991) 499 U.S. 279, 302 [113 L.Ed.2d 302, 111 S.Ct. 1246] (Arizona) [use of coerced confession not harmless error]; see People v. Cahill (1993) 5 Cal.4th 478, 510 [20 Cal.Rptr.2d 582, 853 P.2d 1037] (Cahill) [federal harmless error standard applicable to inadmissible confession admitted in a Cal. trial]; accord, People v. Thomas (2011) 51 Cal.4th 449, 498 [121 Cal.Rptr.3d 521, 247 P.3d 886] [admission of defendant's confession harmless error where cumulative to stronger evidence]; In re Z.A. (2012) 207 Cal.App.4th 1401, 1422-1423 [144 Cal.Rptr.3d 577]) [highly inculpatory statements admitted in violation of Miranda not harmless beyond reasonable doubt].)
In this case, when the juvenile court stated that it could not tell if Art was the shooter from the video, the prosecutor urged the court to consider the "totality of the circumstances," including the video, Art's confession, and his statements to his girlfriend. In reaching its ruling, the juvenile court expressed its view that the "video evidence ... standing alone would not be sufficient for the court to sustain a petition." The court ruled, however, that based on "the totality of the evidence," it is "hard-pressed to come to a different conclusion than that which [it was] about to announce." The court then sustained all three counts of the petition and found the enhancement allegations to be true.
Because the juvenile court relied on the confession to sustain the petition in light of the weakness of the video evidence, we find that the confession was an essential factor in the juvenile court's ruling sustaining the petition, and that the People have not proven that the error in admitting Art's statements was harmless beyond a reasonable doubt within the meaning of Chapman.
The juvenile court's jurisdictional findings and dispositional order are reversed. The matter is remanded for a new adjudication hearing consistent with the views expressed herein.
Woods, Acting P. J., and Zelon, J., concurred.
