People v. Keo

Filed 9/23/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B286844

Plaintiff and Respondent, (Los Angeles County

Super. Ct. No. NA103998)

v.

NGOUNSAY KEO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los

Angeles County, Gary J. Ferrari, Judge. Affirmed.

Tanya Dellaca, under appointment by the Court of Appeal,

for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief

Assistant Attorney General, Lance E. Winters, Assistant

Attorney General, Zee Rodriguez and Theresa A. Patterson,

Deputy Attorneys General, for Plaintiff and Respondent.

______________

Ngounsay Keo appeals from a judgment entered after a

jury convicted him of the second degree murder of his girlfriend,

Karina Duch, the mother of his two sons, 15-year-old S.L. and

eight-year-old S.K.1 The jury also found Keo guilty of making a

criminal threat on an earlier occasion, and found true the special

allegation he used a deadly or dangerous weapon, a knife, in the

commission of the murder. Keo contends the trial court erred in

admitting statements he made while in custody to a social worker

performing an investigation in a dependency proceeding filed

with respect to S.L. and S.K. He argues the admission of the

statements violated his Fifth and Sixth Amendment rights

because the social worker failed to provide a warning under

Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and

interviewed him without his attorney present. Keo also asserts

his statements were privileged under Welfare and Institutions

Code section 355.1, subdivision (f),2 as “testimony” in a

dependency proceeding. He urges us to find the statements were

privileged, even if they do not qualify as testimony, to protect his

due process rights because he was forced to choose between

protection of his parental interests in the dependency proceeding

and his right not to incriminate himself in the criminal case.

1 Because the sons have the same initials, we identify the

older boy by letters in his first name.

2 All further statutory references are to the Welfare and

Institutions Code unless otherwise noted. Section 355.1,

subdivision (f), provides that “testimony” by a parent, guardian,

or other person with care or custody of a minor subject to a

dependency proceeding is not admissible as evidence in a

separate action or proceeding.

2

We are troubled by the admission of statements Keo made

to the social worker without an attorney present while he was in

custody. But neither section 355.1, subdivision (f), nor the

United States and California Constitutions bar use of the

statements in his criminal case. It is up to the Legislature to

address in the first instance whether section 355.1, subdivision

(f), should be expanded to protect out-of-court statements made

by a defendant to a social worker. Unless the Legislature decides

as a matter of policy that protection is warranted, it is up to the

defendant, with the advice of his or her attorney in either the

criminal case or dependency proceeding, to decide whether to

discuss the facts of the alleged crime with the social worker, or to

wait until the dependency hearing to testify, at which time the

statutory privilege would apply. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The People’s Case

1. Events leading up to the homicide

Keo and Duch were in a relationship for more than 20

years, although they were never legally married. In early 2016

they lived in a one-bedroom apartment with S.L. and S.K. In

2016 the relationship soured, and Keo became more aggressive

toward Duch. Duch began communicating with other men on a

“messenger” phone application.

Sometime in February or March 2016 Keo slapped Duch on

the face. S.K. was in the room at the time. S.L. was in the living

room and heard Keo yelling at Duch in the bedroom, followed by

the sound of a slap. When S.L. entered the room to see what had

happened, he saw Duch crying and holding her cheek, which was

red. S.L. physically restrained Keo to prevent him from harming

3

Duch. Keo was drunk at the time. That same night S.L. was

present when Keo threatened Duch, S.L., and S.K., saying,

“You’re all worthless and I’ll kill you all and then myself.” S.L.

was scared. S.K. was not there, but Duch told him about the

threat later. On March 30 Duch went to the police station and

filed a criminal threats report.

On April 5, 2016, while Keo was at work, Duch took S.L.

and S.K. from their apartment, and they went to live in Duch’s

family home. That afternoon Keo came to the family home. He

was angry and acted in a threatening manner; he demanded to

take the family back to the apartment. Duch and the boys

refused, and Keo left. The next day Duch obtained a temporary

restraining order against Keo. On April 7 a sheriff’s deputy

personally served Keo with the restraining order.

2. The homicide

Despite the restraining order, in August 2016 Duch and

S.K. visited Keo, and they went together to watch the Cambodian

New Year’s day parade. Keo and Duch watched as S.K. danced in

the parade. A few days later, on the morning of August 13, Duch

and S.K. went to their former apartment to pick up a note from

S.K.’s doctor. Keo was there when they arrived. Keo told S.K. to

go play at his friend’s apartment next door, and S.K. left.

While S.K. was in the neighbors’ apartment, he heard a

loud scream from Duch and heard her yell “stop.” S.K. asked his

friend’s mother, Mariela Melgar, to call 911. Melgar did not call

because she did not hear anything. But she took S.K. and her

two children to Keo’s apartment on their way to the store. Keo

opened the door a little and S.K. asked about his mother. Keo

said she was sleeping. Keo went back into the apartment, and

Melgar and the children left. When they returned, they again

4

stopped by Keo’s apartment. Keo cracked the door open and said

Duch was still sleeping. S.K. and the children returned to

Melgar’s apartment to play.

At some point, S.K. returned to Keo’s apartment. He

knocked six times, but there was no answer. The door was

unlocked, and S.K. entered. He saw Keo lying on the floor in the

living room, with his internal organs hanging out of his stomach

and blood flowing from his stomach. There was a butcher’s knife

by Keo’s side. S.K. was scared and ran back to Melgar’s

apartment. Melgar went into Keo’s apartment, saw him with his

stomach “sliced open,” and called 911.

Long Beach Police Officer Benjamin Cobb arrived at the

scene with his partner and saw Keo lying on the floor in a pool of

blood with a large kitchen knife in his right hand. Keo was

conscious and started swinging the knife. When asked, Keo said

Duch was “in the bedroom sleeping.” Officer Cobb entered the

bedroom and saw Duch with multiple lacerations to her chest and

upper torso. She had a large laceration on her stomach and her

organs were exposed. Duch was pronounced dead at the scene.

An autopsy showed multiple stab wounds to the abdomen, upper

chest and lungs, arms, and right hip. The deputy medical

examiner opined the wounds were made by an object with a

sharp blade, were not self-inflicted, and could have been caused

by the knife held by Keo.

Keo was transported to the hospital, where he underwent

surgery for his injuries.

3. The dependency investigator’s interview with Keo

On May 11 or 12, 2016, while Keo was in custody

recovering in the medical unit of the jail, he was interviewed by

Julia Han, a social worker who served as a dependency

5

investigator with the Los Angeles County Department of

Children and Family Services (Department).3 Han spoke to Keo

using a telephone in an interview room with a glass partition

between them. At the time Han spoke with Keo, Han was aware

a criminal case was pending and a dependency petition had been

filed. Keo had counsel appointed in this case, but not the

dependency proceeding.4 Keo was alone, and it is undisputed

Han did not provide a Miranda warning. Han testified her role

as a dependency investigator was to investigate a petition filed in

dependency court by interviewing all the parties to “gather

evidence” and prepare a report to the dependency court. As part

of that role, Han assessed the risk to the children and made a

recommendation as to whether the parent should retain custody

and parental rights over the children. Prior to interviewing Keo,

Han called the prosecutor to learn the criminal charges against

3 Because Han was a social worker employed as a

dependency investigator by the Department, we use the terms

“social worker” and “dependency investigator” interchangeably to

refer to Han’s position.

4 In response to Keo’s request to take judicial notice, we

augment the record to include the April 18, 19, 20, 21, 25, 26, and

27 and May 5 and 26, 2016 minute orders in this case, attached

as exhibit A to Keo’s August 23, 2018 request for judicial notice.

(Cal. Rules of Court, rule 8.155(a)(1)(A).) The records reflect the

public defender’s office was appointed as counsel for Keo in this

case on April 27, 2016. We also take judicial notice of the

April 18, May 5, and May 17, 2016 minute orders in the

dependency proceeding, Los Angeles Superior Court case

No. DK16546, attached as exhibit B to the request for judicial

notice. (Evid. Code, §§ 452, subd. (d), 459.) The records reflect

dependency counsel was appointed on May 17, 2016 to represent

Keo, who was in court on that date.

6

Keo and the next court date. Han and the prosecutor did not

discuss the details of the criminal case, and Han did not tell the

prosecutor she was planning to interview Keo.

Although English was not Keo’s native language, Han

spoke to him in English, and he responded in English. Keo

appeared to understand Han’s questions. At the outset of the

meeting, Han read Keo the allegations in the dependency

petition, including that he had murdered Duch and endangered

S.K., who saw Keo with his injuries. Han then “asked him about

the incident.” Keo told Han he killed his wife, then tried to kill

himself. Keo repeated that S.K. “was not there.” He added as to

S.K. being present that he would “never do [a] stupid thing like

that.” According to Han, Keo “said he killed his wife because the

wife tried to take his two sons away from him and that his sons

are his whole life and his soul and he cannot live without his

sons.” Keo said he placed a knife on Duch’s “belly” two times.

Duch screamed and told Keo, “Don’t do that.” Keo told Han he

attempted to kill himself, but the police arrived first.

Keo admitted he previously threatened Duch that if she

took S.L. and S.K. away from him, “something bad would

happen.” Keo added, “If she takes away my sons, then we all

die.” He added, “I told her, I told her, but she did not listen.”

Han testified Keo was not remorseful, but rather, “He sounded as

if that was the rightful thing that he did [be]cause he already

warned her or told her not to take his sons away from him.”

However, when asked what he wanted to say to his children, he

“apologized for the incident.” Keo also admitted he had hit Duch

on one prior occasion with his sons present after he learned Duch

had a boyfriend. Keo said he “pushed [his] wife’s face and

slapped her on her forehead.”

7

After interviewing Keo, Han obtained a copy of the police

report, which she reviewed before preparing her report to the

dependency court. Han did not inform the prosecutor or the

police about what Keo said, or that she interviewed him.

However, an attorney representing the Department, after

learning at a dependency hearing of Keo’s statements to Han,

contacted the prosecutor to inform her of the statements. A year

later, in response to a subpoena, the prosecutor obtained a copy of

the jurisdiction and disposition report filed in the dependency

proceeding, which contained Keo’s statements. Han testified to

the statements at trial.

B. The Defense Case

Keo testified in his own defense. In March 2016 S.L.

showed Keo text messages between Duch and two men. Keo

begged Duch to stop communicating with the men. Keo became

depressed, drank half a bottle of whiskey, and got “very drunk.”

He and Duch argued about the texts, she took the bottle away

from him, and he moved his arm in a manner such that the back

of his hand hit Duch on the cheek. Both boys were in the living

room where this happened. Keo and Duch went into the

bedroom, and S.L. came in, grabbed Keo, and dragged him out of

the room. Keo and Duch argued, and he told her he would kill all

of them because he was concerned he would lose Duch and his

sons.

The day of the murder, Keo returned from work at 10:00 in

the morning. After S.K. went to Melgar’s apartment, Keo

implored Duch to take him back, but she said 23 years was

“enough,” and she was taking the children. Keo “lost all [his]

memory, [and] went to grab the knife without knowing it.” He

retrieved the knife from the kitchen, returned, and stabbed Duch.

8

Duch was initially sitting on the couch, but when Keo returned

with the knife, she stood up and raised her hands to protect

herself. He “lost [his] mind . . . .” Duch screamed and told him to

stop, then she fell to the floor. Keo dragged Duch into the

bedroom so S.K. would not see what had happened. By this time,

Keo believed Duch was dead. Keo closed the bedroom door and

wrote a suicide note for his children. Then he cut himself and fell

to the floor.

Keo underwent surgery, as part of which he received 32

staples. At the time of Han’s interview, Keo was not feeling well,

his stab wounds were fresh, and he was in a wheelchair. He was

still in “a padded suicide gown.”

C. Keo’s Motion in Limine To Exclude Han’s Statements and

Closing Arguments

Prior to trial, Keo filed a motion in limine to suppress

Han’s testimony, arguing the failure of Han to give a warning

before questioning him in custody without a lawyer violated

Miranda and Massiah v. United States (1964) 377 U.S. 201, 206-

207 (Massiah).5 The prosecutor responded that Han’s role was to

assess the risk to the children, not to enforce the law or

investigate the crime. Further, Han was not acting at the

direction of law enforcement and did not tell the prosecutor or

police she planned to interview Keo. The prosecutor only

received Han’s report a year later when she subpoenaed the

jurisdiction and disposition report from the Department. The

prosecutor emphasized Keo had an attorney in the dependency

5 Keo also sought to exclude statements made by Duch in her

declaration seeking a temporary restraining order. The trial

court granted the motion to suppress as to these statements.

9

proceeding, who could have requested Keo not be interviewed,

but the attorney did not make that request.6 Keo’s attorney

responded that the Department was a prosecuting agency

because its actions could lead to removal of the children. The

court ruled, “I don’t think there is a [Sixth] Amendment violation.

I don’t think any privilege has been violated under the

circumstances of this case. . . . I’m going to permit the

statement.”

In her closing argument, the prosecutor relied on the

statements Keo made to Han to support her argument Keo

committed first degree murder by acting with express malice.

She argued, “In this case let’s talk about the words and the

actions that the defendant had that make this express malice.

First the words. He made a threat, ‘You’re worthless, I will kill

all of you and then myself if you take—’ [A]nd then the second

two are the words he used with the social worker, he had warned

[Duch] that, ‘If you take the kids, we both die. If you take away

my sons, we all die.’ So in this case, it’s clear from his words

what he was intending on doing.” Keo’s attorney argued Keo

committed voluntary manslaughter because he acted in the heat

of passion after Duch told him not only that she was not

returning to him, but that she was taking the children.

D. The Jury Verdict and Sentencing

The jury convicted Keo of second degree murder (Pen. Code,

§ 187, subd. (a)), and found true the special allegation Keo

personally used a deadly or dangerous weapon (a knife) in the

6 As noted, this statement was not accurate because Keo was

not appointed counsel in the dependency case until May 17, 2016,

after the Han interview.

10

commission of the crime (Pen. Code, § 12022, subd. (b)(1)). The

jury also found Keo guilty of making a criminal threat (Pen.

Code, § 422, subd. (a)). The trial court sentenced Keo to 15 years

to life for the second degree murder, plus one year for the deadly

weapon enhancement, plus the upper term of three years for

making a criminal threat, for an aggregate sentence of 19 years

to life. Keo timely appealed.

DISCUSSION

Keo contends his statements to Han should have been

suppressed, and they were used by the prosecution to prejudice

his heat of passion defense. He asserts the admission of his

statements violated his Fifth Amendment right not to

incriminate himself, his Sixth Amendment right to counsel, the

statutory protection in section 355.1, subdivision (f), and his due

process rights.

A. The Dependency Investigator Was Not Required To Provide

a Miranda Warning Before Interviewing Keo

1. Standard of review

“When reviewing a ruling admitting a confession, we accept

the trial court’s resolution of any factual dispute to the extent the

record supports it, but otherwise we determine independently

whether the confession was taken in violation of the rules of

Miranda . . . , or was involuntary.” (People v. Sanchez (2019)

7 Cal.5th 14, 48; accord, People v. Case (2018) 5 Cal.5th 1, 20 [In

reviewing a trial court’s determination of whether admission of a

defendant’s statements violated Miranda, “‘[w]e independently

determine from the undisputed facts and the facts properly found

by the trial court whether the challenged statement was illegally

11

obtained.’”]; People v. Gamache (2010) 48 Cal.4th 347, 385

[same].) “To the extent mixed questions of fact and law are

present, they are reviewed de novo if predominantly legal and for

substantial evidence if predominantly factual.” (Gamache, at

p. 385.) Because the facts are not in dispute, we independently

review whether Han was required to provide a Miranda warning

prior to interviewing Keo.

2. The dependency investigator was not a law

enforcement officer or an agent of law enforcement

“The Fifth Amendment provides that ‘[n]o person . . . shall

be compelled in any criminal case to be a witness against

himself.’ [Citations.] To safeguard a suspect’s Fifth Amendment

privilege against self-incrimination from the ‘inherently

compelling pressures’ of custodial interrogation [citation], the

high court adopted a set of prophylactic measures requiring law

enforcement officers to advise an accused of his right to remain

silent and to have counsel present prior to any custodial

interrogation [citation]. . . . [¶] A statement obtained in violation

of a suspect’s Miranda rights may not be admitted to establish

guilt in a criminal case.” (People v. Jackson (2016) 1 Cal.5th 269,

338-339; accord, People v. Sauceda-Contreras (2012) 55 Cal.4th

203, 217 [“‘Miranda makes clear that in order for defendant’s

statements to be admissible against him, he must have

knowingly and intelligently waived his rights to remain silent,

and to the presence and assistance of counsel.’”].) “Under

California law, issues relating to the suppression of statements

made during a custodial interrogation must be reviewed under

federal constitutional standards.” (People v. Nelson (2012)

53 Cal.4th 367, 374; accord, Jackson, at p. 339.)

12

“California courts have limited [Miranda’s]

requirements . . . to ‘law enforcement officials,’ their agents, and

agents of the court, while the suspect is in official custody.” (In re

Deborah C. (1981) 30 Cal.3d 125, 130, 134, citations omitted

[private store detective was not required to give Miranda

warning before questioning juvenile after citizen’s arrest for

shoplifting]; accord, People v. Thornton (2007) 41 Cal.4th 391, 432

[“Interrogation thus refers to questioning initiated by the police

or its functional equivalent . . . .”]; see Estelle v. Smith (1981)

451 U.S. 454, 467 (Estelle) [psychiatrist performing court-ordered

pretrial psychiatric examination of defendant in custody was

required to provide Miranda warning as an “agent of the State”].)

Keo contends a dependency investigator is a “peace officer”

within the meaning of Penal Code section 830.3, subdivision (h),

and therefore is a law enforcement officer subject to the

requirements of Miranda. Penal Code section 830.3 provides,

“The following persons are peace officers whose authority extends

to any place in the state for the purpose of performing their

primary duty . . . . [¶] . . . [¶] (h) All investigators of the State

Department[] of . . . Social Services, . . . provided that the

primary duty of these peace officers shall be the enforcement of

the law relating to the duties of his or her department or office.”

Notably, this definition of peace officers only includes

investigators for the State Department of Social Services, not

dependency investigators employed by a local agency such as the

Department. However, this does not end our inquiry because a

dependency investigator would be required to provide a Miranda

warning if he or she acts as an agent of law enforcement. (In re

Deborah C., supra, 30 Cal.3d at p. 130.)

Keo relies on Estelle, supra, 451 U.S. at page 468 and

Mathis v. United States (1968) 391 U.S. 1 (Mathis) to support his

13

argument a dependency investigator acts as an agent of law

enforcement when questioning a suspect in custody. Both are

distinguishable. In Estelle, in holding Miranda applied to

questioning by a doctor in a court-ordered psychiatric

examination, the United States Supreme Court explained, “A

criminal defendant, who neither initiates a psychiatric evaluation

nor attempts to introduce any psychiatric evidence, may not be

compelled to respond to a psychiatrist if his statements can be

used against him at a capital sentencing proceeding. Because

[defendant] did not voluntarily consent to the pretrial psychiatric

examination after being informed of his right to remain silent

and the possible use of his statements, the State could not rely on

what he said [in the evaluation] to establish his future

dangerousness.” (Estelle, at p. 468; accord, People v. Pokovich

(2006) 39 Cal.4th 1240, 1253 [Fifth Amendment privilege against

self-incrimination barred use at trial of statements made by

defendant in compelled mental competency examination].)

Unlike the defendants in Estelle and Pokovich, who were required

to submit to a court-ordered psychiatric examination, Keo was

not required to submit to an interview with Han or answer her

questions. While we recognize Keo had an interest in cooperating

with the dependency investigator to protect his parental interest

in custody of his children, as discussed below, he could have

testified fully at any dependency hearing pursuant to section

355.1, subdivision (f), without risking use of his statements in the

criminal case.7

7 We address below the separate question whether Keo’s due

process rights were violated by having to choose between

speaking with Han to protect his parental interest in keeping his

14

In Mathis, supra, 391 U.S. at page 4, the United States

Supreme Court held an Internal Revenue Service agent was

required to provide a Miranda warning before interviewing a

suspect who was in custody for a separate offense because “tax

investigations frequently lead to criminal prosecutions . . . .” The

court rejected the People’s argument the agent elicited the

incriminating statements during a “‘routine tax investigation.’”

(Ibid.) In contrast to a dependency investigation designed to

determine the best interests of a child, an Internal Revenue

Service investigator is required under the tax code to refer a case

for investigation by an agent who works on criminal matters as

soon as the investigator finds “‘definite indications of fraud or

criminal potential.’” (Id. at p. 6, fn. 2 (dis. opn. of White, J.).) In

this case Han did not reveal Keo’s statements to the police or

prosecution; instead, it was only after the prosecution

subpoenaed the Department’s records that the prosecutor

obtained Han’s report.

The fact the person conducting the questioning is a

government employee is not a sufficient basis to require Miranda

warnings. For example, in People v. Wright (1967)

249 Cal.App.2d 692, a parking lot security guard employed by a

county hospital detained the defendant, who had burglarized a

car in the parking lot, and questioned him without first giving a

Miranda warning. The Wright court held the defendant’s

statements to the security guard were admissible because “the

interrogator was not the agent of a governmental department,

the very function of which was to enforce the law.” (Id. at p. 694.)

Rather, the security guard was an employee of a governmental

children and his right not to incriminate himself in the criminal

case.

15

agency whose primary mission was “to make sick people well.”

(Ibid.) As the court explained, “It does not matter that a

particular employee’s duties may be confined to the protection of

persons and property on his employer’s premises or that his

employer may be the state, a political subdivision thereof or a

local entity. What does matter is whether he is employed by an

agency of government, federal, state or local, whose primary

mission is to enforce the law.” (Id. at pp. 694-695, fns. omitted.)

Neither does it affect our analysis that the interviewer is a

mandatory reporter. In People v. Salinas (1982) 131 Cal.App.3d

925, 938, the court concluded a doctor was not required to provide

the mother a Miranda warning before questioning her about

possible child abuse while they were in a small room in the

hospital with police officers present. The court explained, “It was

not [the doctor’s] intent to provide information to law

enforcement officers and the medical report was a standard part

of the business procedures at the hospital.” (Ibid.) That the

doctor was a mandated reporter of child abuse under the Penal

Code did not make him a police agent for purposes of Miranda

because the “purpose of the statute [was] to bring cases of

suspected child abuse to the attention of police authorities as

early as possible because of the potential danger to the child

when he remains with the abusing parent.” (Id. at pp. 941-942.)

Han’s function as a dependency investigator was to

determine the best interests of S.L. and S.K., and whether they

should be returned to Keo’s custody after his release. “Unlike

criminal trials, the primary purpose of dependency hearings is to

protect the child, not prosecute the parents.” (In re Corey A.

(1991) 227 Cal.App.3d 339, 346; accord, In re James F. (2008)

42 Cal.4th 901, 915 [“[T]he ultimate consideration in a

dependency proceeding is the welfare of the child . . . .”]; see

16

§ 202, subd. (a) [“The purpose of this chapter is to provide for the

protection and safety of the public and each minor under the

jurisdiction of the juvenile court and to preserve and strengthen

the minor’s family ties whenever possible, removing the minor

from the custody of his or her parents only when necessary for his

or her welfare or for the safety and protection of the public.”].)

As the Supreme Court has explained, “In a criminal

prosecution, the contested issues normally involve historical facts

(what precisely occurred, and where and when), whereas in a

dependency proceeding the issues normally involve evaluations of

the parents’ present willingness and ability to provide

appropriate care for the child and the existence and suitability of

alternative placements.” (In re James F., supra, 42 Cal.4th at

p. 915.) Further, the responsibility to perform the dependency

evaluation falls on the social worker. (§ 281 [social worker “shall

upon order of any court in any matter involving the custody,

status, or welfare of a minor or minors, make an investigation of

appropriate facts and circumstances and prepare and file with

the court written reports and written recommendations in

reference to such matters”];8 In re M.B. (2011) 201 Cal.App.4th

1057, 1071 [§ 281 directs social worker to investigate facts and

circumstances and file report with court, which report is

admissible (including hearsay) in any dependency proceeding].)

Although no published California cases have addressed

whether a social worker in a dependency investigation acts as a

law enforcement officer for Miranda purposes, courts in other

states have consistently concluded a social worker conducting a

8 Although section 281 places this obligation on a “probation

officer,” section 215 defines the term “probation officer” to include

“any social worker in a county welfare department.”

17

dependency investigation is not an agent of law enforcement for

purposes of Miranda unless he or she acts under the direction or

control of law enforcement. (See State v. Jackson (2018) 154 Ohio

St.3d 542, 551 [116 N.E.3d 1240, 1247-1248] [social worker was

not acting as agent of law enforcement in interviewing defendant

at jail in response to referral for sexual abuse of child]; State v.

Bernard (La. 2010) 31 So.3d 1025, 1035 [child protection officer

investigating suspected child abuse was not required to provide

Miranda warning to defendant before interviewing him in

custody where the purpose of her interview was to determine

whether defendant was a fit parent and police officers did not

direct or control interview]; Wilkerson v. State (Tex.Ct.App. 2005)

173 S.W.3d 521, 531 [social worker who interviewed defendant in

jail as part of dependency investigation was not agent of law

enforcement]; cf. State v. Aguilar (Tex.Ct.App. 2017) 535 S.W.3d

600, 609-610 [special investigator for child protective services

was required to provide Miranda warning where he had

“‘unfettered access’” to police investigative unit, discussed police

investigation with detectives before interview, interviewed

defendant in police station interrogation room, and detectives

advised investigator before interview that defendant had

confessed].)

As the Louisiana Supreme Court explained in State v.

Bernard, “The most important factors are . . . whether the

investigator discussed the case with police prior to the interview,

whether the interview was conducted at the police’s request, and

whether the primary purpose of the investigator’s visit was to

elicit a confession while in cahoots with law enforcement. In

short, police may not circumvent Miranda by using [child

protective services] investigators (or anyone else) as stand-ins to

conduct interrogations in their stead.” (State v. Bernard, supra,

18

31 So.3d at p. 1035, citation omitted; accord, State v. Jackson,

supra, 116 N.E.3d at pp. 1247-1248 [“[A] social worker’s statutory

duty to cooperate and share information with law enforcement

with respect to a child abuse investigation does not render the

social worker an agent of law enforcement for purposes of the

Fifth and Sixth Amendments to the United States Constitution

when the social worker interviews an alleged perpetrator unless

other evidence demonstrates that the social worker acted at the

direction or under the control of law enforcement.”].)9

Here, Han did not discuss the facts of the case with the

police or prosecutor prior to interviewing Keo. She only called

the prosecutor to find out the charge brought against Keo and the

status of the criminal case. Neither did Han inform the police or

the prosecutor that she intended to interview Keo. Although the

Department’s attorney later advised the prosecutor that Keo had

made statements to Han, the prosecutor did not obtain a copy of

Keo’s statements until a year after the interview, in response to

the prosecutor’s subpoena requesting Han’s report. Thus, Han

was not acting as law enforcement or an agent of law

9 State v. Brown (2008) 286 Kan. 170 [182 P.3d 1205], relied

on by Keo, is inapposite. Brown involved a confession to the

police after the defendant was given a Miranda warning, not a

statement to a social worker. (Id. at p. 1208.) The court

concluded the father’s confession was not voluntary because he

was told by the social worker his parental rights would be

terminated unless he explained how his baby sustained injuries.

(Id. at p. 1211.) The court concluded the father’s confession to

the police on the day of the hearing on termination of his

parental rights was not voluntary because he had “a ‘classic

penalty’ situation,” which required him to choose between giving

up his right against self-incrimination and losing his parental

rights. (Id. at p. 1212.)

19

enforcement for purposes of Miranda. (Estelle, supra, 451 U.S. at

p. 467; In re Deborah C., supra, 30 Cal.3d at p. 130.)

B. Admission of Keo’s Statements to the Dependency

Investigator Did Not Violate His Sixth Amendment Right to

Counsel

Keo contends his Sixth Amendment right to counsel was

violated when Han, as a “state agent” deliberately elicited

incriminating statements from him in the absence of his

attorney. We agree with the People a social worker who serves as

a dependency investigator is not a law enforcement officer, and,

on the facts here, Han was not acting on behalf of law

enforcement.

“[O]nce a judicial proceeding has been initiated against an

accused and the Sixth Amendment right to counsel has attached,

any statement the government deliberately elicits from the

accused in the absence of counsel is inadmissible at trial against

the defendant.” (People v. Coffman and Marlow (2004) 34 Cal.4th

1, 66-67; accord, Massiah, supra, 377 U.S. 201, 206-207; People v.

Almeda (2018) 19 Cal.App.5th 346, 358-359.) The United States

Supreme Court in Massiah held the statements of a codefendant

who elicited incriminating statements from the defendant, who

was unaware the codefendant was cooperating with the police in

recording the conversation, violated the defendant’s Sixth

Amendment right to counsel by eliciting incriminating

statements from him without his lawyer present. (Massiah, at

pp. 205-206.)

To prevail on a Massiah claim, the defendant has the

burden of showing the statement was obtained by someone who

“‘(1) was acting as a government agent, i.e., under the direction of

the government pursuant to a preexisting arrangement, with the

20

expectation of some resulting benefit or advantage, and (2)

deliberately elicited incriminating statements.’” (People v.

Coffman and Marlow, supra, 34 Cal.4th at p. 67; accord, People v.

Hartsch (2010) 49 Cal.4th 472, 491; see Estelle, supra, 451 U.S. at

p. 471 [admission of psychiatrist’s testimony relaying defendant’s

statements during court-ordered examination violated

defendant’s Sixth Amendment right to counsel].) “The

requirement of agency is not satisfied when law enforcement

officials ‘merely accept information elicited by the [individual] on

his or her own initiative, with no official promises,

encouragement, or guidance.’” (Coffman and Marlow, at p. 67;

accord, Hartsch, at p. 491.) “A trial court’s ruling on a motion to

suppress informant testimony is essentially a factual

determination, entitled to deferential review on appeal.”

(Coffman and Marlow, at p. 67; accord, Hartsch, at p. 491.)

The cases following Massiah have focused on whether the

defendant can show “the deliberate elicitation by law

enforcement officers (and their agents) of statements pertaining

to the charge.” (Kansas v. Ventris (2009) 556 U.S. 586, 590;

accord, Kuhlmann v. Wilson (1986) 477 U.S. 436, 459 [“the

primary concern of the Massiah line of decisions is secret

interrogation by investigatory techniques that are the equivalent

of direct police interrogation”].)10 Therefore, our Fifth

10 Keo’s reliance on People v. Arauz (1970) 5 Cal.App.3d 523,

530, disapproved on other grounds in People v. Chi Ko Wong

(1976) 18 Cal.3d 698, 716, footnote 14, is misplaced. The court in

Arauz considered, but did not reach, whether the defendant’s

statements to a parole officer violated his Sixth Amendment right

to counsel under Massiah. Rather, the court based its conclusion

there was no Sixth Amendment violation on the fact the

21

Amendment analysis of whether Han in her role as a dependency

investigator was a law enforcement officer or agent of law

enforcement applies equally to our determination whether Han’s

interview of Keo violated Keo’s Sixth Amendment right to

counsel. As discussed, Han was neither law enforcement nor an

agent of law enforcement.

Although there are no California published cases

addressing whether a dependency investigator is an agent of law

enforcement under Massiah, courts in other states have

addressed this issue, applying the same analysis applicable to

consideration of a defendant’s Fifth Amendment rights under

Miranda. (See State v. Jackson, supra, 116 N.E.3d at pp. 1247-

1248 [defendant’s statements to social worker did not violate his

Sixth Amendment right to counsel because social worker was not

acting as agent of law enforcement in child abuse investigation];

cf. State v. Oliveira (R.I. 2008) 961 A.2d 299, 310 [admission of

defendant’s statements to child protective investigator violated

his Sixth Amendment right to counsel where state law provided

for investigator to work cooperatively with law enforcement,

investigator met and exchanged information with police a day

before interview, investigator was required to forward

information regarding alleged abuse to police, and one of

purposes in interviewing defendant was to “‘add to the

evidence’”]; Commonwealth v. Howard (2006) 446 Mass. 563, 567,

569 [845 N.E.2d 368, 371-373] [statements to social services

investigator while defendant was in jail violated his Sixth

Amendment right to counsel where investigator was working as a

team with the police and prosecutor’s office, asked questions only

defendant blurted out to the officer that he had killed the victim.

(Arauz, at p. 530.)

22

relating to defendant’s guilt, and forwarded her report describing

the interview to the prosecutor’s office].)

As discussed, Keo’s contention Han was a government

agent because a dependency investigator is a “peace officer”

within the meaning of Penal Code section 830.3, subdivision (h),

lacks merit. Keo’s contention Han was an agent of law

enforcement for purposes of Keo’s right to counsel likewise is not

persuasive. Han was not acting “‘under the direction of the

government pursuant to a preexisting arrangement, with the

expectation of some resulting benefit or advantage.’” (People v.

Coffman and Marlow, supra, 34 Cal.4th at p. 67.) Although it is

undisputed Keo’s Sixth Amendment right to counsel had attached

because counsel was appointed in the criminal case prior to Han’s

interview, as discussed, Han’s investigation was conducted for

the purpose of determining the best interests of the children, not

to develop evidence to assist law enforcement in the criminal

case. Han did not discuss the facts of the case with law

enforcement or the prosecutor before interviewing Keo, and she

did not provide her report to the prosecution until a year after the

interview, in response to a subpoena.

C. Neither Section 355.1, Subdivision (f), Nor Keo’s Right to

Due Process Bars Admission of Keo’s Out-of-court

Statements to the Dependency Investigator

1. Standard of review

“We review questions of statutory construction de novo.

Our primary task ‘in interpreting a statute is to determine the

Legislature’s intent, giving effect to the law’s purpose. [Citation.]

We consider first the words of a statute, as the most reliable

indicator of legislative intent. [Citation.]’ [Citation.] We

construe the statute’s words in context, harmonizing statutory

23

provisions to avoid absurd results. [Citation.] If the statutory

text is susceptible to more than one reasonable construction, we

may consider extrinsic aids such as legislative history to facilitate

our interpretative analysis.” (California Building Industry Assn.

v. State Water Resources Control Bd. (2018) 4 Cal.5th 1032, 1041;

accord, United Riggers & Erectors, Inc. v. Coast Iron & Steel Co.

(2018) 4 Cal.5th 1082, 1089.)

2. Keo has forfeited his argument section 355.1,

subdivision (f), provided statutory immunity for his

statements to the dependency investigator, and even if

forfeiture did not apply, the statements do not

constitute testimony

The People contend Keo forfeited his right to argue his

statements to Han were protected under section 355.1,

subdivision (f), because he raises the argument for the first time

on appeal. We agree. Evidence Code section 353 provides, “A

verdict or finding shall not be set aside, nor shall the judgment or

decision based thereon be reversed, by reason of the erroneous

admission of evidence unless: [¶] (a) There appears of record an

objection to or a motion to exclude or to strike the evidence that

was timely made and so stated as to make clear the specific

ground of the objection or motion . . . .” In accordance with

section 353, “[r]eviewing courts will generally not consider a

challenge to the admissibility of evidence unless there was a

‘“‘specific and timely objection in the trial court on the [same

grounds] sought to be urged on appeal.’”’” (People v. Gomez (2018)

6 Cal.5th 243, 286, italics added; accord, People v. Partida (2005)

37 Cal.4th 428, 433.)

As the Partida court explained, “‘The reason for the

requirement is manifest: a specifically grounded objection to a

24

defined body of evidence serves to prevent error. It allows the

trial judge to consider excluding the evidence or limiting its

admission to avoid possible prejudice. It also allows the

proponent of the evidence to lay additional foundation, modify the

offer of proof, or take other steps designed to minimize the

prospect of reversal.’” (People v. Partida, supra, 37 Cal.4th at

p. 434.) However, the court added, “[T]o further these purposes,

the requirement must be interpreted reasonably, not

formalistically. ‘Evidence Code section 353 does not exalt form

over substance.’” (Ibid.)

Keo argued in the trial court that admission of his

statements to Han violated his Fifth Amendment right against

self-incrimination and his Sixth Amendment right to counsel, not

that the admission violated either section 355.1, subdivision (f),

or his due process rights. To the extent Keo argues for the first

time on appeal section 355.1, subdivision (f), applies to bar use of

his statements to Han, he has forfeited this issue on appeal.

(People v. Gomez, supra, 6 Cal.5th at p. 286; People v. Partida,

supra, 37 Cal.4th at p. 433.)11

Even if Keo had not forfeited his challenge to the

admissibility of his statements based on section 355.1,

subdivision (f), this argument fails because his out-of-court

11 However, Keo has not forfeited his argument that

admission of his statements violated his due process rights by

forcing him to choose between his interest in protecting his

parental rights and his right against self-incrimination because a

“defendant may argue an additional legal consequence of the

asserted error in overruling [his objection to admission of the

evidence] is a violation of due process.” (People v. Partida, supra,

37 Cal.4th at p. 438; accord, People v. Gomez, supra, 6 Cal.5th at

p. 287.)

25

statements do not constitute “testimony.”12 Under section 355.1,

subdivision (f), “[T]estimony by a parent, guardian, or other

person who has the care or custody of the minor made the subject

of a proceeding under Section 300 shall not be admissible as

evidence in any other action or proceeding.” “‘Testimony’ is

generally described in both statutory and decisional law as oral

statements made by a person under oath in a court proceeding.

The term ‘testify’ is referred to in identical language in the Penal

Code, the Code of Civil Procedure, and the Civil Code: ‘. . . every

mode of oral statement, under oath or affirmation, is embraced by

the term “testify,” . . .’ [Citations.] . . . [Citation.] ‘. . . Testimony

is limited to that sort of evidence which is given by witnesses

speaking under oath or affirmation [citation] . . . .’” (People v.

Belton (1979) 23 Cal.3d 516, 524, 526, fn. omitted [discussing

“literal construction” of “testimony,” but holding definition of

accomplice “testimony” under Pen. Code, § 1111 could include

specified out-of-court statements beyond literal definition to

further legislative intent]; accord, People v. Williams (1997)

16 Cal.4th 153, 245; see Pen. Code, § 7 [“every mode of oral

statement, under oath or affirmation, is embraced by the term

‘testify’”]; Code Civ. Proc., § 17, subd. (b)(5)(B) [“‘Testify’ includes

any mode of oral statement made under oath or affirmation.”];

Civ. Code, § 14, subd. (a) [“every mode of oral statement, under

oath or affirmation, is embraced by the term ‘testify’”]; see also

Evid. Code, § 710 [“Every witness before testifying shall take an

12 Because we conclude section 355.1, subdivision (f), does not

apply to Keo’s out-of-court statements, we do not reach his

argument his attorney’s failure to object to admission of his

statements on this basis constituted ineffective assistance of

counsel.

26

oath or make an affirmation or declaration in the form provided

by law . . . .”].)

As the Court of Appeal explained in In re Jessica B. (1989)

207 Cal.App.3d 504, 518 (Jessica B.), “[T]he immunity provided

by section 355.1 . . . is limited to statements of the parent in

court, i.e., ‘testimony’ in the strict sense of the word . . . .” The

court observed, “[E]ven though a more expanded definition of

testimony to include all statements, in or out of court, is more

consistent with the policy of the statute ‘that all relevant

evidence should be disclosed in proceedings of this nature in

order to protect the paramount interest of the safety and welfare

of the child’ [citation], it is clear this is not what was intended

when this provision was added.” (Jessica B., supra,

207 Cal.App.3d at p. 518.) Therefore, Keo’s conversation with

Han in the jail’s medical unit, not under oath, does not constitute

“testimony” under section 355.1, subdivision (f).

3. Admission of Keo’s statements to the dependency

investigator did not violate his due process rights

Keo urges us to expand the immunity provided for

testimony under section 355.1, subdivision (f), to out-of-court

statements made to a dependency investigator, relying on

Jessica B., supra, 207 Cal.App.3d at page 521, which expanded

immunity to cover statements made in court-ordered therapy,

People v. Coleman (1975) 13 Cal.3d 867 (Coleman), which

conferred immunity for an individual’s statements made in a

probation revocation hearing, and Ramona R. v. Superior Court

(1985) 37 Cal.3d 802 (Ramona R.), which provided immunity for

statements made by a minor in a juvenile fitness hearing.

Although we are troubled by use of Keo’s statements to the

dependency investigator in his criminal trial, there is no

27

constitutional or statutory basis to expand immunity to protect

all statements made by a parent to a social worker. Instead, this

is an issue that would need to be addressed by the Legislature in

the first instance.

In Jessica B., the Court of Appeal concluded a father’s due

process rights were violated where the juvenile court denied him

the right to reunify with his infant daughter based on the father’s

physical abuse of his daughter and his refusal to take

responsibility for the abuse in court-ordered therapy for fear he

would incriminate himself. (Jessica B., supra, 207 Cal.App.3d at

pp. 517-518.) The court noted the father could freely testify at

the dependency hearing, but the statements he made in therapy

would not be statutorily protected. (Ibid.) The court explained,

“The California Constitution requires that a person proceeding

simultaneously in the criminal courts for child abuse and the

juvenile court regarding a dependency of the abused minor

should not only be granted use immunity for his or her testimony

at dependency proceedings that constitutes an admission to the

acts at issue in the criminal case against him or her but also for

such statements made during court-ordered therapy.” (Id. at

p. 521.)

The Jessica B. court reasoned, “Without immunity [the

father] is forced to choose between incriminating himself or

having little chance of complete reunification with his daughter

Jessica. The consequences flowing from this are severe. The

dependency proceedings are not pursued for the purpose of

marshaling evidence of guilt but are designed to facilitate

reunification of the family and to assemble all relevant evidence

for the court to make an informed disposition. The burden of the

prosecution of proving the defendant guilty beyond a reasonable

doubt in the criminal proceedings will be substantially lightened

28

if allowed to take advantage of evidence from a dependency

proceeding. If [the father] continues to remain silent in the

dependency proceeding on the issue of his intentional abuse, he

not only loses his opportunity to present a convincing case for

reunification in the dependency proceeding, but also risks that

his position of silence on the issue is an indication that he is not

cooperating in the reunification process.” (Jessica B., supra,

207 Cal.App.3d at p. 520.)

Other Courts of Appeal have applied Jessica B.’s reasoning

to provide immunity for court-ordered treatment or evaluations

in dependency proceedings. (See In re D.C. (2015)

243 Cal.App.4th 41, 57 [immunity for statements made in court-

ordered therapy]; In re Joanna Y. (1992) 8 Cal.App.4th 433, 441

[immunity for statements made during court-ordered

psychological evaluation]; In re Lamonica H. (1990)

220 Cal.App.3d 634, 650 [immunity for statements made by

parent during court-ordered psychological treatment].)

In fashioning an exclusionary rule, Jessica B. relied on the

Supreme Court’s earlier holdings in Coleman and Ramona R. In

Coleman, the defendant was indicted for grand theft and faced a

probation revocation hearing based on the facts supporting the

criminal charge. The Supreme Court created a “judicial rule of

evidence” that made the testimony of the probationer at the

probation revocation hearing “inadmissible against the

probationer during subsequent proceedings on the related

criminal charges, save for purposes of impeachment or rebuttal”

in limited circumstances. (Coleman, supra, 13 Cal.3d at p. 889.)

The Supreme Court explained, “It is apparent that the policies

served by the due process guarantee of an opportunity for a

probationer to be heard at his probation revocation hearing are

impinged when he declines to avail himself of this chance for fear

29

of self-incrimination. Constitutional values are similarly

disserved when the probationer resolves the conflict in the

opposite way by risking self-incrimination so as to testify at such

a hearing.” (Id. at pp. 874-875.) Thus, “when an alleged

probation violation also constitutes a criminal offense for which

the probationer might subsequently be prosecuted, he may be

presented with the ‘cruel trilemma’ of self-accusation, perjury or

injurious silence.” (Id. at p. 878.)

The Supreme Court in Ramona R., supra, 37 Cal.3d at

pages 809 to 810, extended Coleman to a minor’s statements at a

fitness hearing to determine whether she should be tried as an

adult or was “‘amenable to the care, treatment, and training

program available through the facilities of the juvenile court’” (id.

at p. 805). Notably, the court included within the scope of its

protection statements made by the minor to her probation officer,

who was statutorily required “to file a report on the minor’s

‘behavioral patterns and social history.’” (Ibid.) The minor

declined to be interviewed by the probation officer or to testify at

the fitness hearing for fear her statements would be used in her

subsequent criminal trial for murder. (Ibid.) The probation

officer concluded the minor was not amenable to treatment in the

juvenile system, and the referee agreed. (Id. at p. 806.)

The Supreme Court, in holding the Coleman exclusionary

rule applied to the minor’s statements to the probation officer

and testimony at the hearing, observed, “The purpose of [the

probation officer’s] interview is not the marshalling of evidence

on the issue of guilt, but rather the assembling of all available

information relevant to an informed disposition of the case if guilt

is established [citations], or to assist in the evaluation of the

minor’s fitness for treatment as a juvenile [citation]. Such

decisions, courts have uniformly concluded, should be based on

30

the most complete knowledge of the defendant’s background that

is possible. . . .’ [Citation.] ‘The minor who is subject to the

possibility of a transfer order should not be put to the unfair

choice of being considered uncooperative by the juvenile

probation officer and juvenile court because of his [or her] refusal

to discuss his case with the probation officer, or of having his [or

her] statements to that officer used against him [or her] in

subsequent criminal proceedings.’” (Ramona R., supra, 37 Cal.3d

at p. 806.) The court emphasized the “‘trilemma’” faced by the

juvenile of having to choose among remaining silent and losing

an opportunity “to present a conceivably convincing case” against

treatment under the juvenile court laws; risking self-

incrimination by submitting to an interview and testifying; and

testifying falsely at the fitness hearing to avoid use of damaging

statements in the subsequent criminal trial. (Id. at p. 810.)

Keo did not confront the stark choice faced by the

defendants in Jessica B., Coleman, and Ramona R. He could

have spoken with Han about all aspects of his parenting of S.L.

and S.K., but declined to discuss the events leading to Duch’s

death. Then, at the dependency hearing he could have explained

the incident in full, protected by the statutory privilege under

section 355.1, subdivision (f). By contrast, the defendants in

Jessica B., Coleman, and Ramona R. had to choose between

incriminating themselves and failing to participate in court-

ordered therapy (Jessica B.), refusing to testify at a probation

revocation hearing (Coleman), or declining to speak with the

probation officer and testify at a fitness hearing (Ramona R.).13

13 Neither In re S.C. (2006) 138 Cal.App.4th 396 nor In re

Fred J. (1979) 89 Cal.App.3d 168 supports Keo’s argument his

rights in the dependency proceeding would be jeopardized by his

31

Although the Supreme Court in Ramona R. extended

immunity to statements by the minor to her probation officer, the

court relied on the probation officer’s role in evaluating the

minor’s potential for rehabilitation, which took into account the

minor’s “‘acknowledgment of guilt and demonstration of

remorse,’” and the fact the minor could not explain the

circumstances to the probation officer without incriminating

herself. (Ramona R., supra, 37 Cal.3d at p. 806.) Here, the

dependency investigator was required to investigate the

“appropriate facts and circumstances” and file a report with the

court containing her recommendations for how to protect S.L. and

S.K. (§ 281.) The dependency investigator’s role was not to

investigate the historical facts of how the crime was committed,

but to evaluate “the parents’ present willingness and ability to

provide appropriate care for the child and the existence and

suitability of alternative placements.” (In re James F., supra,

42 Cal.4th at p. 915.) Although the question whether either child

was present at the time of Duch’s murder was relevant to the

dependency investigator’s evaluation of whether Keo could

failure to speak to the dependency investigator. Keo asserts in In

re S.C. the mother’s refusal to speak to the social worker without

her counsel present led to the agency filing a dependency

petition. But the Department filed the petition not because of the

mother’s refusal to speak with the social worker, but because the

mother “had changed her mind and no longer agreed to informal

supervision in lieu of court intervention via a dependency

petition.” (In re S.C., at p. 408.) Similarly, in In re Fred J., the

court’s finding of substantial evidence of abuse was based on the

children’s behavioral and emotional problems the mother had not

addressed, not the mother’s refusal to speak with the

Department. (In re Fred J., at pp. 180-181.)

32

protect his children, Keo could testify to this fact at the

dependency hearing. This single fact was not as central to Han’s

evaluation as the probation officer’s consideration in Ramona R.

of the minor’s remorse about committing the crime, which was

critical for the probation officer’s evaluation of whether the minor

was capable of rehabilitation.

DISPOSITION

The judgment is affirmed.

FEUER, J.

WE CONCUR:

ZELON, Acting P. J.

SEGAL, J.

33