Petition — California v. P. S. W.

MICHAEL RO

OCTOBE x TERM. 1978 DAK, JR., CLERK

No. @8"1136

THE STATE OF CALIFORNIA,

Petitioner,

Vv.

PATRICK STEVEN W.,

Respondent.

ON WRIT OF CERTIORARI TO THE

CALIFORNIA COURT OF APPEAL

SECOND APPELLATE DISTRICT

DIVISION FOUR

PETITION FOR WRIT OF CERTIORARI

GEORGE DEUKMEJIAN

Attorney General of the State of California

JACK R. WINKLER, Chief Assistant

Attorney General - Criminal Division

DANIEL J. KREMER,

Assistant Attorney General

HARLEY D. MAYFIELD,

ROBERT M. FOSTER,

Deputy Attorneys General

110 West “A” Street, Suite 600

San Diego, California 92101

Telephone: (714) 237-7852

Attorneys for Petitioner

INTERIM PRINTING & MAILING COMPANY

1105 West MORENA BOULEVARD, SAN DIEGO, CALIFORNIA 92110 — 275-3050

5

TOPICAL INDEX

Page

Ne oc cew ices saves ececcccces 2

Eee ea has¢enetddecccceses 2

QUESTIONS PRESENTED ..............eeeee. 3

CONSTITUTIONAL PROVISIONS

en a ao coies 0.0.0 ciab00secccece 3

oe i - r 5

STATEMENT OF THE CASE ..............005- 5

A. STATEMENT OF THE PROCEEDINGS . 5

B. STATEMENT OF FACTS ADDUCED AT

THE JUVENILE COURT ADJUDICA-

IE Blase akswccccccesscccces 6

REASONS WHY A WRIT OF CERTIORARI

SEROUILS) TE GRANTED on ccccccccccccccccces 14

I. THE CALIFORNIA COURT OF APPEAL,

SECOND APPELLATE DISTRICT,

DIVISION FOUR, HAS IMPROPERLY

INTERPRETED MIRANDA vu. ARIZONA

AND GALLEGOS v. COLORADO TO

MAKE SPEAKING WITH AN ADULT

RELATIVE A NECESSARY PREREQUI-

SITE TO A VALID CONFESSION BY A

JUVENILE EVEN IN THOSE SITUA-

TIONS WHERE THE JUVENILE HAS

STATED HE DOES NOT WISH TO SPEAK

WITH EITHER HIS PARENTS OR AN

EEE SEE CULE GRU Sancccseceseccces 14

+ ¥

TOPICAL INDEX (Continued)

Page

A. THE MIRANDA EXCLUSIONARY

RULE BASED ON THE REQUIRE-

MENT OF SPECIFIC ADVISE-

MENTS AND WAIVERS OF RIGHTS

HAS NOT BEEN EXTENDED BY

POR cue tits ackenssceviecses 14

IN JUDGING THE VALIDITY OF

ANY WAIVER OF MIRANDA

RIGHTS THE TOTALITY OF THE

CIRCUMSTANCES MUST BE

EVALUATED BY THE COURTS .. 17

THE CALIFORNIA COURT OF

APPEAL, SECOND APPELLATE

DISTRICT, DIVISION FOUR,

IMPERMISSIBLY EXTENDED THE

HOLDINGS OF MIRANDA v.

ARIZONA, SUPRA, AND GALLEGOS

v. COLORADO, SUPRA, BY

HOLDING THAT SPEAKING WITH

AN ADULT RELATIVE WAS A

NECESSARY PREREQUISITE TO A

VALID JUVENILE CONFESSION

EVEN IN THOSE SITUATIONS

‘WHERE THE JUVENILE STATES

HE DOES NOT WISH TO SPEAK

WITH EITHER HIS PARENTS OR

RF EE kabhi dha de snciar 18

- iii -

TOPICAL INDEX (Continued)

THE OPINION BELOW IS BASED

EXCLUSIVELY ON FEDERAL

CONSTITUTIONAL AUTHORITY ...........

CONCLUSION ....ccccccccccccccccesccccccccees

APPENDICES .....ccccccsccccccccccvccccccccees

Page

- iy -

. Vv -

TABLE OF AUTHORITIES TABLE OF AUTHORITIES (Continued)

Page Page

CASES CASES (Continued)

Beckwith v. United States Oregon V. Hass

(1976) 425 U.S. 341 ......... ess eeee eens, 22 MME TEA |... bcvc hoc cacoceses 16,22

Gallegos v. Colorado ?

People v. Johnson

CURED ee Ws. ED cdacdectatsessinkene 17,18, (1969) 70 Cal.2d 541 .......cccccceccccecee 17

19,22

: People v. Lara

Harris v. New York (1967) 67 Cal.2d 365 .......c.ccececeeeeese 17,18,

(RGee: Ge Ga Gee se has bch eet acs 16 90.22

In re Dennis M.

People v. Schwartzman

GRD Ce Gas Oe nck ch icc cee. 18 (1968) 266 Cal.App.2d 870 .........cceee0e. 21

In re Gault

Schneckloth v. Bustamonte

(1967) S87 US. 1... ...eeeseeeeeeeeeeeees. aS ME ee ccses 17

In re Patrick Steven W.

(1978) 84 Cal.App.3d 520 ..........cccceees 2,19,22 ( STATUTES

Market Street Railroad Co. v. Railroad Commission : ;

of California (1944) 324 U.S. 548 .......... 2 ee ny com P

Michigan v. Mosley EE ci dvapwdsvsreasverniauserorseees 1,5,6

ti | 6 eer ee eee 16 California Welfare & Institutions Code,

Michigan v. Tucker EEE wae pydcrergavecrecentsvecssces 5,6

S1GTE) GAT UG See xinicsshwak canes 15,16 United States Code, Section 1257(3) ............ 2

Miranda v. Arizona

(2GGRD SDE UE Ge oecacésccdtucsineces 3,14,15, ! CONSTITUTIONS

16,17,18, .

19,21,22 rn United States Constitution,

kc eave ke ceveiecs ves 3,15,16

in. tac vewvbetevess 4

IN THE

Supreme Court of the United States

OCTOBER TERM 1978

No.

THE STATE OF CALIFORNIA,

Petitioner,

v.

PATRICK STEVEN W.,

Respondent.

PETITION FOR WRIT OF CERTIORARI

Petitioner, the State of California, respectfully prays that a

Writ of Certiorari be issued to review the judgment and

opinion of the California Court of Appeal, Second Appellate

District, Division Four entered in this proceeding September

1, 1978, reversing a judgment adjudicating respondent to be a

ward of the juvenile court and committing him to the

California Youth Authority for having committed murder in

violation of California Penal Code, section 187.

xy

OPINIONS BELOW

The opinion for the Court of Appeal, Second Appellate

District, Divison Four is reported as In re Patrick Steven W.

(1978) 84 Cal.App.3d 520; 148 Cal.Rptr. 735. A copy of that

opinion appears as Appendix A to this petition. The order of

the California Supreme Court issued on October 25, 1978,

refusing to grant a hearing in this case appears as Appendix

B to this petition.

JURISDICTION

Petitioner invokes the jurisdiction of this Court under Title

28, United States Code, section 1257(3) to review a judgment

of the California Court of Appeal, Second Appellate District,

Division Four which was entered on September 1, 1978. The

California Supreme Court denied a hearing in this case on

October 25, 1978. The present petition for Writ of Certiorari is

filed within the required 90-day period following entry of final

judgment. The judgment of the Court of Appeal became final

for purposes of this Court with the denial of the hearing by the

California Supreme Court on October 25, 1978. (Market Street

Railroad Co. v. Railroad Commission (1944) 324 U.S. 548, 550-

552.) Thus, the instant judgment is a final decision rendered

by the highest court of the State of California interpreting

rights under the United States Constitution.

sf

QUESTIONS PRESENTED

1. Must a juvenile who has been given his rights under

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

and waives those rights and has not asked to speak with

either his parents or an attorney nevertheless be required to

speak with some adult relative as a necesgary prerequisite to a

valid confession to a murder?

2. Moreover, in such a situation, must the police bear the

additional responsibility of locating some adult relative to

whom the juvenile can speak before commencing any

custodial interrogation of that juvenile?

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment V:

“No person shall be held to answer for a

capital, or otherwise infamous crime, unless on

a presentment or indictment of a grand jury,

except in cases arising in the land or naval

forces, or in the militia, when in actual service

in time of war or public danger; nor shall any

person be subject for the same offense to be

twice put in jeopardy of life or limb; nor chall

be compelled in any criminal case to be a

witness against himself, nor be deprived of life,

liberty, or property, without due process of law;

nor shall private property be taken for public

use, without just compensation.”

-

United States Constitution, Amendment VI:

United State Constitution, Amendment XIV, in relevant

part:

“In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public

trial, by an impartial jury of the State and

district wherein the crime shall have been

committed, which district shall have been

previously ascertained by law, and to be

informed of the nature and cause of the accusa-

tion; to be confronted with the witnesses

against him; to have compulsory process for

obtaining witnesses in his favor, and to have

the assistance of counsel for his defense.”

“SECTION 1. All persons born or natural-

ized in the United States, and subject to the

jurisdiction thereof, are citizens of the United

States and of the State wherein they reside. No

State shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any

State deprive any person of life, liberty, or

property, without due process of law; nor deny

to any person within its jurisdiction the equal

protection of the laws.

sie

STATUTES INVOLVED

California Penal Code, section 26 in relevant part:

All persons are capable of comitting crimes

except those belonging to the following classes:

One. Children under the age of fourteen, in

the absence of clear proof that at the time of

committing the act charged against them, they

knew its wrongfulness.

California Penal Code, section 187 in relevant part:

(a) Murder is the unlawful killing of a human

being, or a fetus, with malice aforethought.

California Welfare and Institutions Code, section 602:

“Any person who is under the age of 18 years

when he violates any law of this state or of the

United States or any ordinance of any city or

county of this state defining crime other than

an ordinance establishing a curfew based

solely on age, is within the jurisdiction of the

juvenile court, which, may adjudge such

person to be a ward of the court.”

STATEMENT OF THE CASE

A. STATEMENT OF THE PROCEEDINGS

Respondent is a minor who was committed to the California

- Youth Authority as a ward of the Superior Court of the State

of California in and for the County of Los Angeles on August

12, 1977, following the juvenile court’s finding under

ae

California Welfare and Institutions Code, section 602 that

respondent had murdered his stepfather in violation of

California Penal Code, section 187.

On September 1, 1978, the Court of Appeal of the State of

California, Second Appellate District, Division Four, reversed

the judgment in a unanimous opinion. (See Appendix A.)

Peitioner’s application to the California Supreme Court for

a hearing was denied on October 25, 1978. However Justices

Clark and Richardson were of the opinion that a hearing

should have been granted. (See Appendix B.)

On motion of petitioner, the California Court of Appeal,

Second Appellate District, Division Four stayed issuance of

the remittitur in this case pending action by the United States

Supreme Court on this petition for a Writ of Certiorari.

B. STATEMENT OF FACTS ADDUCED AT THE

JUVENILE COURT ADJUDICATION HEARING

On January 21, 1973, Bonnie Sue Bullis and her husband,

Edward, were married. (R.T. 4, 6.)'/ Mrs. Bullis had two

children from a prior marriage, Patrick and Deanna. (R.T. 6,

l/ “R.T.” refers to the “Reporter's Transcript” of the trial court

proceedings and which was included as part of the record before the

California Court of Appeal.

me Be

94.) Mrs. Bullis worked in a bird store. (R.T. 167, 265-266.)

Edward Bullis was a police officer for the Los Angeles Police

Department. (R.T. 45, 170.) In February, 1977, they lived at

5049 Escondido Canyon Road, Acton, California. (R.T. 3.)

Edward Bullis and his stepson Patrick did not get along

very well, and they often quarreled. (R.T. 6, 114.) On Tuesday,

February 22, 1977, Edward and Patrick got into an argument

over Patrick’s treatment of his sister, Deanna. (R.T. 94-99.)

During the argument Edward apparently choked respondent

into unconsciousness. (R.T. 99, 107.)

Respondent decided he was going to kill his stepfather and

on Wednesday, the 23rd of February, he got ready but

“chickened out” before his father came home. (R.T. 95, 100.)

The next day, Thursday, February 24, 1977, around noon,

respondent took his father’s 30.06 rifle from under his parents’

bed. (R.T. 95; Peo. exh. 12, p. 6.) Since the gun was unloaded,

respondent took some ammunition from the bedroom and

loaded the gun. (Peo. exh. 12, p. 6.) Respondent took a practice

shot in the backyard while waiting for his father to come

home from work. (Ibid. at 7.) Respondent told his sister to

start packing food and clothing and blankets that the two of

them would need after the killing. (R.T. 95.) Respondent had

his sister look outside and tell him when his stepfather

arrived home and when he was coming through the gate. (R.T.

97.)

Around 5:30 p.m., the victim arrived home, checked the mail

box, opened the gate, drove his van up, closed the gate and

. pulled in. (Peo. exh. 12, p. 4.) Respondent had the rifle ready

and leaning on a chair. (Jd. at p. 5.) When the victim began to

open a sliding glass door leading into the house, respondent

ae ys

shot him, aiming at the area around the stomach. (Jd. at p. 7.)

Respondent then went outside near the body and shot at it two

more times. (Jd. at p. 8.) The victim died as a result of massive

hemorrhage as a consequence of a gunshot wound to the head.

(R.T. 1-2.)

Respondent went through Edward’s clothing, taking some

$551 from the decedent's wallet, as well as his service

revolver. (/d. at pp. 9, 12.) Respondent then began to drag the

body into the backyard but this proved very difficult. He tied a

rope from the body to the van and used the van to drag the

body to a hole in the backyard. (Jd. at p. 9.) Respondent then

buried the body. (Jd. at pp. 9-10.) Respondent and his sister

took the suitcases Deanna had packed and left. (R.T. 95; Peo.

exh. 12, p. 10.)?/

Respondent and his sister were hitchhiking along the Los

Angeles Highway, Route 14. Mr. David Trout, principal of the

Agua Dulce School had gotten a report of two possible truants

hitchhiking along the road. He drove along the highway and

saw respondent and his sister. (R.T. 15-16.) Mr. Trout asked

who they were since they had just started attending his school

and he did not know them from firsthand experience. (R.T.

16.) Respondent asked who Trout was and why he was

concerned about them. Mr. Trout explained who he was and

said he had: heard they were not in school. (R.T. 16-17.)

2/ Most of the material contained in this and the preceding two

paragraphs comes not from actual in-court testimony, but from the

contents of respondent's confession (Peo. exh. 12), which was

admitted into evidence by the trial court. (R.T. 88-89.) This exhibit

was also before the Court of Appeal.

a

Respondent and his sister then identified themselves. Trout

said he would take them back to the school. Patrick was

reluctant to get in the car and said he could not tell Mr. Trout

why. Trout assumed it had something to do with a truancy

problem and offered to help solve any problems respondent

had. (R.T. 18.) Finally, respondent said he could not go back.

He had shot his father and he could not face his mother. (R.T.

17, 18, 19.) Trout convinced respondent it was best to go back

and get it straightened out. Moreover, Trout offered to help.

(R.T. 18-19.) Respondent then got into the car. (R.T. 18.) On the

way back, respondent talked freely and said he knew he had

killed his stepfather because he had buried his stepfather’s

body. (R.T. 19.) Trout took respondent and his sister back to

Agua Dulce School, called the authorities, and later turned

them over to sheriff's deputies. (R.T. 20.) The deputies advised

respondent of his rights. (Peo. exh. 12, p. 12; R.T. 64-67.)

Later that evening respondent was interviewed by twv Los

Angeles County Sheriff's Officers Villareal and Rasure. (R.T.

41, 80-81.) The officers carefully explained all of respcndent’s

rights and then had respondent state the rights in his own

words to be certain he comprehended them. (See Peo. exh. 12,

p. 1.) Then the officer asked:

“(By Officer Villareal]

“Q. Do you want to talk about the case?

“A. [By appellant] I guess, if it’s gonna be

best.

“Q. Well, that’s up - up to you, you know, you

have your rights to be protected, you know, you

have the rights and so on, and also that - that

~ oe

uh, the reason we explain these things to you is

so you know what your rights are.

“A. Un-huh.

“Q. So, and that’s why we ask you that if you

can (unintelligible) that we don’t want to force

you or coerce you in any form or way.

“A. Yeah.

“Q. You - you understand that?

“A. Yes.

“Q. Okay, and that’s why - that’s why we ask

you if - if you wanted to talk or not?

“A. Yeah.

“Q@. Okay. Do you want an attorney or not?

“A. I’m not sure, I’ll have to talk to my

parents, to my mother, I don’t know.

“Q. Okay, do you want to see your mother?

“A. No, not really. Just answer questions

whatever you want or - - -

“Q. You just want to talk about the case,

huh? .

“A. I guess.

“Q. Get it all out?

“A. What - whatever you want is fine, right.

“Q. Okay. What we want is just you know, to

find out the truth, what happened, you know

- jl] -

and that’s all, but again, we also want to pro-

tect your rights, and that’s why we're going

through what we have and what we’re doing

here. Can you scoot up a little bit here so every-

thing (Unintelligible). Okay, then, my partner

is Duane Rasure, he’s going to be asking you

some questions and anything - and at anytime,

anytime during this, when we're talking to you,

if you don’t want to say anything, you just

want to quit talking, you tell us, okay?

“A. Uh-huh.

“Q. You understand that?

“A. Yes.

“Q. Okay, and that’s at any point?

“A. Alright.”

(Peo. exh. 12, p. 2.)

Following this portion of the interrogation, appellant went

on to describe in great detail his murder of his stepfather. (Jd.

at pp. 3-14.)

Respondent’s Grandparents

Around 6:30 p.m. on the afternoon of the killing,

respondent’s maternal grandparents, Mr. and Mrs. Lovelace,

who had heard of the killing, were at respondent’s home. (R.T.

48-49.) Although the investigation was being carried out by

the Los Angeles County Sheriff's Office, there were several

Los Angeles police officers present, since the victim had been

‘a member of that force. (R.T. 45, 170.) Mrs. Lovelace

approached one of the Los Angeles police officers, identified

herself as respondent’s grandmother and asked to see

-12-

respondent and his sister. (R.T. 49-51, 56) She was told by the

Los Angeles police officer that the two juveniles were being

interrogated and could not be seen for 24 hours. (R.T. 52.)

Sergeant Rasure was not present during this conversation.

(R.T. 44.) Moreover, it was the policy of his department to let a

parent communicate with an arrested juvenile upon request.

(R.T. 45.) Mr. and Mrs. Lovelace and respondent's mother got

a motel room nearby. (R.T. 83.) After hearing a report on the

11 o’clock news, Mrs. Lovelace called the sheriff's office and

talked to Sergeant Rasure. (R.T. 83-84.) Sergeant Rasure told

Mrs. Lovelace that if she came to the station Deanna would be

released to her. (R.T. 83-84.) When the Lovelaces went to the

station, they asked to see respondent. (R.T. 53.) They were told

respondent did not want to see anybody. (R.T. 53.) It was after

11 p.m. (R.T. 83-84.) The questioning of respondent had begun

over an hour earlier at 10 p.m. (R.T. 40-41.)

The Trial Court’s Ruling

The trial court ruled that the statement was admissible.

(R.T. 89.) In so ruling the court stated,

“ ., the totality of the situation indicates a

knowing and intelligent waiver.

“T have to take a number of things into con-

sideration here. There is no doubt in my mind

that the young man knew exactly where he

was and what it was about, and he understood

those rights.

“He had a decision to make. Considering his

situation, it was not a particularly easy

-13.-

decision to make. You can practically hear his

mind working when he decided to do it.

“Now, this kind of decisionmaking is going

to be somewhat reluctant most of the time,

don’t you think, when you have to make an

agonizing decision? And, that’s what he was

doing.

“I am quite convinced that that is the way it

comes out. I have seldom heard a minor as

conscientiously advised of his rights as I have

in this instance. As a matter of fact, it is one of

my criticisms of a number of people who deal

with children, that they rattle off the rights like

they were talking to adults. That’s bad form.

“It is a good idea to paraphrase and go over

it and ask certain questions. And, that was

done here.

“This was a good job of giving the rights, in

my opinion. And, as I say, the law was

complied with more than substantially in my

opinion, and that statement is admissible.”

(R.T. 88-89.)

7° Pe

REASONS WHY A WRIT OF CERTIORARI

SHOULD BE GRANTED

I.

THE CALIFORNIA COURT OF APPEAL, SECOND

APPELLATE DISTRICT, DIVISION FOUR, HAS

IMPROPERLY INTERPRETED MIRANDA uv.

ARIZONA AND GALLEGOS v. COLORADO TO MAKE

SPEAKING WITH AN ADULT RELATIVE A

NECESSARY PREREQUISITE TO A VALID

CONFESSION BY A JUVENILE EVEN IN THOSE

SITUATIONS WHERE THE JUVENILE HAS STATED

HE DOES NOT WISH TO SPEAK WITH EITHER HIS

PARENTS OR AN ATTORNEY

A. THE MIRANDA EXCLUSIONARY RULE BASED

ON THE REQUIREMENT OF SPECIFIC ADVISE-

MENTS AND WAIVERS OF RIGHTS HAS NOT

BEEN EXTENDED BY THIS COURT.

“Confessions remain a proper element in law

enforcement. Any statement given freely and

voluntarily without any compelling influences

is, of course, admissible in evidence.” (Miranda

v. Arizona (1966) 384 U.S. 436, 478.)

When this Court rendered its far-reaching decision in

Miranda v. Arizona, supra, it did so in the context of a

philosophy that while involuntary confessions are

constitutionally unacceptable, the admission of a suspect’s

statement that is the product of his free will is an acceptable

and useful tool of law enforcement. As such, the rule

announced in Miranda attempted a balance between the

community’s need for effective enforcement of the criminal

-1]5-

law and the individual’s rights under the Fifth and

Fourteenth Amendments.

This Court has never acted so as to expand the require

ments set forth in Miranda as necessary prerequisites of a

valid confession. However, the California Court of Appeal,

Second Appellate District, Division Four has, by its opinion in

the case at bar, made such an expansion. In a factual

situation where the explicit requirements of Miranda were

met, the California Court nevertheless suppressed the

confession because the juvenile involved had not first talked

with some adult relative or other advisor. This has resulted in

an improper expansion of the holding of this Court in

Miranda.

While over the years this Court has made certain exceptions

to the exclusionary rule set forth in Miranda it has never

expanded the number of advisements or waivers originally

required by Miranda. The rule of Miranda, establishing speci-

fic warnings and waivers as a prerequisite to the admission of

statements obtained during custodial interrogation, was criti-

cized by the dissenters in that opinion because of its excessive

rigidity. Justice Clark warned that: “[sjuch a strict constitu-

tional specific inserted at the nerve center of crime reduction

may well kill the patient.” (Miranda v. Arizona, supra, at pp.

500-501 (Clark, J., dissenting).) In recent years, this Court has

ruled that the rigid exclusionary rule established in Miranda

v. Arizona, surpa, is not without exceptions. In Michigan v.

Tucker (1974) 417 U.S. 333, 446-452, this Court held that not

all fruits of a confession obtained in violation of the require-

ments laid down in Miranda would be required to be

suppressed where a suspect’s confession was obtained prior to

= 7

the Miranda decision but his trial conducted after the

decision. In making its holding the Court noted:

“The [Miranda] Court recognized that these

procedural safeguards were not themselves

rights protected by the Constitution but were

instead measures to insure that the right

against compulsory self-incrimination was

protected. As the Court remarked:

‘(W]e cannot say that the Constitu-

tion necessarily requires adherence

to any particular solution for the in-

herent compulsions of the interroga-

tion process as it is presently

conducted.’ ”

(Citations omitted.) (Michigan v. Tucker,

supra, at p. 444.)

This Court has also held that the invocation by a suspect of

his Fifth Amendment right as to one charge does not

necessarily require exclusion of a confession obtained after a

reiteration of Miranda rights at a later time on a different

charge. (Michigan v. Mosley (1975) 423 U.S. 96, 104-107.)

In Harris v. New York (1970) 401 U.S. 222, 225-226, a

statement obtained in violation of a suspect’s Miranda rights

was held admissible to impeach a testifying defendant, and in

Oregon v. Hass (1975) 420 U.S. 714, 719, the Court held admis-

sible for impeachment purposes a statement made by

defendant even though the defendant had previously

exercised his Miranda rights by requesting to speak to his

attorney.

ve

It is noteworthy that while this Court has made exceptions

to the exclusionary rule imposed by Miranda, the Court has in

no case expanded the number of advisements and waivers

originally required by Miranda. Nor has this Court ever held

as a matter of law that a necessary prerequisite to any

juvenile confession is a discussion between that juvenile and

some adult relative or advisor.

B. IN JUDGING THE VALIDITY OF ANY WAIVER

OF MIRANDA RIGHTS THE TOTALITY OF THE

CIRCUMSTANCES MUST BE EVALUATED BY

THE COURTS.

As this Court made clear in Gallegos v. Colorado the

voluntariness of a juvenile confession is to be judged by the

totality of the circumstances surrounding the confession.

(Gallegos v. Colorado (1962) 370 U.S. 49, 55.) This Court made

clear that no one factor controlled but that each of the

surrounding circumstances had to be evaluated in light of the

other circumstances. (Jd. at 54-55.)

Moreover, this totality of the circumstances test is to be used

in evaluating waivers of Miranda rights. (Schneckloth v.

Bustamonte (1972) 412 U.S. 218, 226.) The California Supreme

Court had independently recognized this as the proper test to

be applied. (People v. Lara (1967) 67 Cal.2d 365, 383-384, 62

Cal.Rptr. 586, 598-599; People v. Johnson (1969) 70 Cal.2d 541,

556-558, 75 Cal.Rptr. 401, 411-412.)

- 18 -

C. THE CALIFORNIA COURT OF APPEAL,

SECOND APPELLATE DISTRICT, DIVISION

FOUR, IMPERMISSIBLY EXTENDED THE

HOLDINGS OF MIRANDA vu. ARIZONA, SUPRA,

AND GALLEGOS v. COLORADO, SUPRA, BY

HOLDING THAT SPEAKING WITH AN ADULT

RELATIVE WAS A NECESSARY PREREQUISITE

TO A VALID JUVENILE CONFESSION EVEN IN

THOSE SITUATIONS WHERE THE JUVENILE

STATES HE DOES NOT WISH TO SPEAK WITH

EITHER HIS PARENTS OR AN ATTORNEY.

A minor is not as a matter of law, incapable of making a

voluntary confession. (See discussion Jn Re Gault (1967) 387

U.S. 1, 44-56.) This same principle has been recognized by the

California Supreme Court which has held that age alone does

not render a juvenile incompetent as a matter of law to waive

his Miranda rights. (People v. Lara (1967) 67 Cal.2d 265, 383;

62 Cal.Rptr. 586, 596; In Re Dennis M. (1969) 70 Cal.2d 444,

463-464; 75 Cal.Rptr. 1, 12-13.)

In adopting the totality of the circumstances test

promulgated by this Court in Gallegos v. Colorado, supra, the

California Supreme Court stated:

“Such adult consent is, of course, to be

desired, and should be obtained whenever

feasible. But as we will explain, whether a

minor knowingly and inteliigently waived

these rights is a question of fact; and a mere

failure of the authorities to seek the additional

consent of an adult cannot be held to outweigh,

in any given instance, an_ evidentially

supported finding that such a waiver was

actually made.” (People v. Lara, Id. at p. 379.)

- Fe

In the case at bar, the trial court specifically hold that the

minor had made a knowing and intelligent waiver of his

rights. (R.T. 89.) The Court of Appeal in its opinion did not

disagree with this finding. In fact, the Court of Appeal specifi-

cally stated that the appellant had demonstrated an

understanding of the Miranda admonitions given to him. Yet,

the Court went on to reverse stating that a 13-year-old juvenile

could not comprehend the meaning or consequences of his

statements without first talking to an adult relative. (Jn Re

Patrick Steven W., supra, 84 Cal.App.3d at 526.) This holding

not only ignores the finding of the trial court, but also is in

direct conflict with the prior rulings of this Court. The opinion

of the Court of Appeal makes the age of the respondent the

sole determining factor in its decision. Such a test ignoring

the totality of the circumstances, and centering only upon the

chronological age of the respondent clearly violates the rule

set forth by this Court in Gallegos v. Colorado, supra. The

Court of Appeal’s opinion thus isolates one factor out of the

totality of the circumstances and makes it the necessary

prerequisite of a valid juvenile confession. This is a vast

expansion of the rules of law laid down by this Court in both

Miranda and Gallegos.

There is no evidence in the record to even remotely suggest

that the respondent did not knowingly and intelligently waive |

his rights prior to his making a confession. (R.T. 89-90.)

Lacking such evidence, the Court of Appeal chose to rely on

dicta from this Court characterizing the mental capacity of a

different 14-year-old. (84 Cal.App.3d 520 at 525, citing

Gallegos v. Colorado (1962) 370 U.S. 49, 54.) But even Gallegos

goes on to reaffirm the use of the test of the totality of the

circumstances. (Id. at p. 55.)

- 20 -

Moreover, it must be remembered that neither this Court

nor the California Supreme Court has held that allowing the

juvenile to consult with a parent or guardian is required as a

necessary prerequisite to a valid confession. (People v. Lara,

supra, 67 Cal.2d at p. 379.) The suggestion by the California

Sureme Court in Lara did not go so far as to even remotely

suggest that when the juvenile states he does not want to see a

lawyer or his parents, as is the case here, that the police must

nevertheless go out and find some friend or relative of the

appellant’s and force a meeting before obtaining a confession.

But, that is the clear implication of the holding of the Court of

Appeal. The opinion implies that if a young juvenile cannot

give a valid confession without first talking to his parents and

if that juvenile refuses to see either or both of his parents, the

police then have a duty to find some relative to whom the

juvenile can talk in order to obtain a valid confession. Such a

court imposed rule would be a squandering of scarce police

resources without any resulting improvement in the juvenile

justice system.

It should be noted that it was the policy of the Los Angeles

County Sheriff's Office to allow a parent to see an arrested

juvenile upon request. (R.T. 45.) There is no showing in the

record that respondent’s mother even asked to see her son.

Moreover, the only time respondent’s grandparents asked

members of the sheriff's office to see respondent was over an

hour after respondent had confessed. (R.T. 40-41, 84.) To hold

that the police officers’ failure to honor the grandparents’

request, made long after the confession, is a factor that

supports the suppression of respondent’s confession, simply

defies all logic.

. er

Finally, even assuming arguendo that the officers had

refused a request made to them before the confession, that fact

alone is not a sufficient basis to suppress the confession. In

People v. Schwartzman (1968) 266 Cal.App.2d 870; 72

Cal.Rptr. 616, a juvenile was being questioned by the police

about a crime. His father, a police officer, came to the station

and asked to see his son. The officers refused. (Jd. at pp. 885-

886.) The court upheld the confession stating,

“. .. The minor’s capacity to waive his right

to an attorney is a function of his individual

intelligence, competence, and ability, unrelated

to the desires or intentions of his parents.

“... The failure of the police to respond to the

father’s request does not affect the validity

of... [the] waiver. .. .” (/d. at pp. 885-886.)

The Court in Schwartzman correctly recognized that where a

juvenile does not request to see an adult, the validity of the

confession is then dependent on what is going on around him

and in his mind and not on factors of which he is totally

unaware. So, in the case at bar, since there is a positive

finding in the record that appellant’s waiver of his Miranda

rights was knowing and intelligent, it was improper for the

Court of Appeal to reverse solely because respondent had not

talked to an adult before making his confession.

- Thus it is clear that the ruling of the California Court of

Appeal, Second District, Division Four was incorrect and has

resulted in a great expansion of the holding of this Court in

- 22 -

both Miranda and Gallegos. It is well settled that a state may

not as a matter of federal Constitutional law impose greater

Miranda restrictions when this Court specifically refrains

from imposing them. (Oregon v. Hass (1975) 420 U.S. 714,

719.) Petitioner submits in a case such as this when a lower

state court has read Miranda too broadly it is appropriate for

this Court to grant a Writ of Certiorari in order to insure that

the rule adopted in Miranda and Gallegos are confined to the

express terms and logic of the original opinion and that

Miranda is not cut “loose from its own explicitly stated

rationale.” (Beckwith v. United States (1976) 425 U.S. 341,

345.)

THE OPINION BELOW IS BASED EXCLUSIVELY

ON FEDERAL CONSTITUTIONAL AUTHORITY

The instant decision of the California Court of Appeal,

Second Appellate District, Division Four was based solely

upon an interpretation of the Federal Constitution, Miranda

v. Arizona, surpa, and Gallegos v. Colorado, surpa. There are

no references to state statutory or constitutional grounds. Jn

re Patrick Steven W. (1978) 84 Cal.App.3d 520, 524-528; 148

Cal.Rptr. 735, 737-740.) The state case relied upon by the Court

of Appeal, People v. Lara is in turn based solely upon the

Federal Constitution, Miranda and Gallegos. (See People v.

Lara, supra, at 381-391.)

For the foregoing reasons, petitioner submits that the

opinion below is based exclusively upon federal constitutional

authority and is properly the subject of review by this Court

on Writ of Certiorari.

x,

CONCLUSION

For the foregoing reasons, petitioner submits that a Writ of

Certiorari should be issued to review the decision of the

California Court of Appeal, Second Appellate District,

Division Four.

Respectfully submitted,

GEORGE DEUKMEJIAN

Attorney General of the State of California

JACK R. WINKLER, Chief Assistant

Attorney General - Criminal Division

DANIEL J. KREMER

Assistant Attorney General

HARLEY D. MAYFIELD

Deputy Attorney General

ROBERT M. FOSTER

Deputy Attorney General

Attorneys for Petitioner

- 25.

APPENDICES

APPENDIX A

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

In re PATRICK STEVEN W., 2 Crim. No. 31806

A Person Coming Under | (Super. Ct. Juvenile

the Juvenile Court Law. No. J813375)

THE PEOPLE,

Petitioner and

Respondent,

v.

PATRICK STEVEN W.,

Appellant.

a a er ee ee ee eee eee

APPEAL from an order of the Superior Court of Los Angeles

County. David N. Fitts, Judge. Reversed.

Jerry D. Whatley and Lonnie B. Springer, Jr. for Appellant.

Evelle J. Younger, Attorney General, Jack R. Winkler, Chief

Assistant Attorney General, Daniel J. Kremer, Assistant Attorney

General, Harley D. Mayfield and Robert M. Foster, Deputy Attorneys

General, for Petitioner and Respondent.

A-2

A petition was filed in the Los Angeles County Juvenile Court

alleging that Patrick Steven W., 13 years of age, was a minor coming

within the provisions of section 602 of the Welfare and Institutions

Code in that he had committed the crime of murder. The minor

appeals from the order of the court sustaining the petition, declaring

the minor a ward of the court and committing him to the California

Youth Authority.

In February 1977, the minor lived in Acton, California, with his

mother, a sister Deanna, age 11, and his stepfather, Edward Bullis, a

Los Angeles police officer, who had married the minor’s mother in

1973. Patrick and his stepfather did not get along well together, had

often quarreled, and on some occasions there had been physical

mistreatment of the boy by his stepfather. The mother worked in Los

Angeles and was away from home much of the time.

On the afternoon of February 22, 1977, Deanna complained to her

stepfather that the minor had fought with her and had caused her to

cry. The stepfather became so angry that he choked the minor into

unconsciousness. On the following day the minor got his stepfather’s

rifle and loaded it while both parents were gone, telling his sister that

he wanted to kill the stepfather, but then he “chickened out” and put

the rifle away before Mr. Bullis came home. On the next day,

however, after the parents had left, the minor told his sister to stay

home from school, said he was going to kill Mr. Bullis and again

obtained the rifle, loaded it and took a practice shot with it while

waiting for the stepfather to return from work. As Bullis arrived

home about 5:30 p.m. and started to enter the house through a sliding

glass door he was shot fatally in the chest. The minor then took

money from the decedent’s pocket, buried the body and left home

with his sister, spending the night on a hill nearby.

On the following day the minor’s school principal received a phone

call from a motorist who had picked up the minor and his sister

A-3

hitchhiking on the freeway. The minor had admitted they were

running away from home and the motorist had left them at an off.-

ramp in Saugus. The principal drove to that location, saw the

children and told them he would drive them back to school. The

minor was reluctant to get in the car saying that “he just couldn’t go

back, and he couldn’t face his mother” and finally stating that he

had shot and buried his stepfather. The minor and his sister were

then persuaded to enter the principal’s car and he drove them to the

school where they were taken into custody by sheriff's deputies.

Decedent’s body had been discovered in the meantime by Los

Angeles police officers who had gone to the Acton home in response

to Mrs. Bullis’ report that’ decedent and the two children were

missing. The minor’s maternal grandparents had also arrived in

Acton by the time the body was found. They were told that the two

children were being taken to the Antelope Valley Sheriff's office in

Lancaster for questioning. The grandparents arranged to stay at a

motel in Palmdale with the mother that night and informed a

sheriff's deputy where they would be. Earlier the grandparents had

been told that they would not be able to visit the minor for a period of

24 hours, although this statement was probably not made by a

sheriff's representative but rather by one of the Los Angeles police

officers who had gone to the Bullis home voluntarily to help in the

search for their fellow officer.

The minor was interviewed by Detectives Rasure and Villarreal at

approximately 10:00 p.m. that night in the Antelope Valley Sheriff's

station, some three and one-half hours after being taken into

custody. After being properly advised of his Miranda rights and

indicating his understanding of them the minor was asked if he

wanted to talk about the case. He replied “I guess, if it’s gonna be

best.” Deputy Villarreal then went on to explain that this was a

matter for the minor to decide, that the officers did not want to force

him or coerce him in any way and the minor again indicated his

understanding. The conversation then continued as follows:

A-4

“Q. Okay, and that’s why-that’s why we ask you if-if you wanted to

talk or not?

“A. Yeah.

“Q. Okay. Do you want an attorney or not?

“A. I’m not sure, I'll have to talk to my parents, to my mother, I

don’t know.

“Q. Okay, do you want to see your mother?

“A. No, not really. Just answer questions whatever you want or-

“Q. You just want to talk about this case, huh?

“A. I guess.

“Q. Get it all out.

“A. What-whatever you want is fine, right.”

The minor then made a full and detailed confession of the killing of

his stepfather, which was admitted in evidence at the adjudication

hearing.

The minor now contends that his confession should not have been

admitted in evidence because the prosecution failed to show that

there had been a valid waiver of his right against self-incrimination.

In the absence of such waivers statements made by a minor while in

custody are inadmissible in a juvenile court proceeding under

Welfare and Institutions Code section 602. (In re Roderick P. (1972) 7

Cal.3d 801.) Also, a minor’s request to see one of his parents when

subjected to custodial interrogatin is to be construed as an indica-

tion that the minor desires to invoke his Fifth Amendment rights

and questioning must then immediately cease. (People v. Burton

(1971) 6 Cal.3d 375.)

A-5

Although our Supreme Court in People v. Lara (1967) 67 Cal.2d 365,

refused to require an adult’s consent as a condition to a minor's

waiver of his privilege against self-incrimination, it did state that

such consent is to be desired and should be obtained whenever

feasible. Whether or not such adult advice was sought and obtained

for a minor is.a factor to be considered in determining the

admissibility of a minor’s confession to the police. As the United

States Supreme Court stated in reference to a 14-year-old whose

confession was held inadmissible: “The prosecution says that the

boy was advised of his right to counsel, but that he did not ask either

for a lawyer or for his parents. But a 14-year-old boy, no matter how

sophisticated, is unlikely to have any conception of what will

confront him when he is made accessible only to the police. .. . He

cannot be compared with an adult in full possession of his senses and

knowledgeable of the consequences of his admissions. He would hav«

no way of knowing what the consequences of his confession were

without advice as to his rights--from someone concerned with

securing him those rights-and without the aid of more mature

judgment as to the steps he should take in the predicament in which

he found himself. A lawyer or an adult relative or friend could have

given the petitioner the protection which his own immaturity could

not.” (Gallegos v. Colorado (1962) 370 U.S. 49, 54.)

In the present case the minor indicated uncertainty when asked by

the deputy whether he wanted an attorney, saying that he would

have to talk to his mother. When asked if he wanted to see her he

(understandably) said “No, not really” and stated further, with some

encouragement from the form of the officer’s question, that he was

willing to talk about the incident. At least one of the deputies present

(Sgt. Rasure) while the questions were asked knew that the minor’s

maternal grandparents were with the mother at a nearby motel, a

fact apparently unknown to the minor, and also knew that they were

greatly concerned about the minor and his sister. Shortly after the

minor had completed his confession telephone arrangements were

A6

made with the grandparents to pick up the sister from the sheriff's

station, and this was done. Under these circumstances we perceive

no reason for the sheriff's deputies not seeking the presence of the

grandparents as responsible adults to counsel with the minor before

he was questioned, We think that the recommendation in People v.

Lara, supra, 67 Cal.2d'365, that such procedure be followed comes

close to being a mandate when dealing with a 13-year-old boy

suspected of murder. The minor had already voiced difficulty in

facing his mother, whom he rightly assumed to be highly distraught

at the time. If he had been made aware of his grandparents’ concern

and that they were near there is good reason to believe that he would

have sought their advice before reaponding to the officers’ questions.

Also, although the minor showed understanding of the Miranda

admonitions as explained to him by the deputies he would not, of

course, have been likely to fully “comprehend the meaning and effect

of his statement” (People v. Lara, supra, 67 Cal.2d at p. 383); for

example, its use in this case to refute an expert's opinion concerning

the minor's diminished mental capacity to commit the crime

charged, To those who argue that the same thing can be said of an

adult whose confession is used against him, the simple answer is that

the courts have always given more zealous protection to minors’

rights, under both criminal law and civil, because of their relative

helplessness when dealing with adults by reason of immaturity. We

therefore hold that the minor's confession in the present case was

inadmissible on the totality of the circumstances present. Since the

admission of a confession obtained in violation of Miranda

principles constitutes reversible error per se (Jn re Michael C. (1978)

21 Cal,3d 471, 478) the order declaring the minor a ward of the court

must be reversed. Even without the rule of Jn re Michael C., supra,

reversal would have been required because, although there was other

evidence admitted which showed that the minor had killed his step-

father, the court relied on the confession in rejecting a claim of the

minor’s diminished mental capacity.

A-7

Since a rehearing will be required in this case we address ourselves

to the minor’s further contentions on appeal that evidence of the

circumstances pertaining to the crime should not be admissible to

show his knowledge that the act was wrongful when committed, that

statements made by the minor in respect to that issue are not

admissible and that the court should determine that issue separately

before receiving other evidence on adjudication pursuant to Welfare

and Institutions Code section 602.

Penal Code section 26(1) provides that children under the age of 14

years are incapable of committing a crime “in absence of clear proof

that at the time of committing the act charged against them, they

knew its wrongfulness.” This requirement applies as well to juvenile

court proceedings under section 602 of the Welfare and Institutions

Code charging the minor with having committed ac e. (/n re

Gladys R. (1970) 1 Cal.3d 855.)

“Only if the age, experience, knowledge, and conduct of the child

demonstrate by clear proof that he has violated a criminal law

should he be declared a ward of the court under section 602.” (Jn re

Gladys R. supra, 1 Cal.3d at p. 867.) To prohibit evidence as to the

child’s conduct on the occasion in question would often result in

omission of the only truly relevant evidence on the subject. In the

present case, for example, we would be left with evidence that the

minor, 13 years of age, is a bright boy whose mother told him it was

wrong to hurt people and that in her opinion the minor knows that it

is wrong to shoot another person -- hardly the “clear proof’ required

by Penal Code section 26(1). Turning to evidence of the minor's

conduct on the occasion in question, however, and the two days

preceding, there are numerous circumstances which in our opinion

were relevant to show that the minor knew the wrongfulness of his

act at the time it was committed and collectively satisfy the “clear

proof’ requirement of section 26(1).

A8

It should be noted also that the minor himself presented psychia-

tric testimony on the issue, to the effect that the minor was a victim

of transient psychosis at the time of the killing and unaware that his

act was wrongful. The doctor's opinion included a consideration of

the circumstances surrounding the event, without which such

evaluation would be of little or no value. The judge as fact finder

rejected the evidence, as he had a right to do. (Pen. Code, § 1127b.)

Certainly, however, the apparently intentional killing of his

stepfather by a 13-year-old boy is so abhorrent and abnormal that

psychiatric evaluation would be essential, and that would

necessarily include consideration of and testimony concerning the

minor's conduct at the time of the crime charged.

Although most of the above facta were proved by witnesses other

than the minor, his declarations can also be considered for the

purpose. (/n re Tanya L, (1977) 76 Cal.App.3d 725.) The case of In re

Michael B. (1975) 44 Cal.App.3d 443, involving a nine-year-old

charged with a burglary of an automobile is not to the contrary, but

simply holds that the child’s admission that he knew such conduct

was wrong was not sufficient by itself to meet the burden of proof

under the facts of that case.

Finally, on the Penal Code section 26(1) issue in this case there is

no reason to hear and rule on thet issue before hearing other

evidence on the adjudication issue, since the same evidence of the

minor’s conduct and declarations would be admissible on each, as

stated above. In this respect it is unlike the social study report

concerning a minor, which may contain a great deal of legally

incompetent background material that might tend to be prejudicial

A-9

and therefore must be read only after determining the adjudication

issue. (See In re Gladys R., supra, 1 Cal.3d at pp. 859-862.)

The order is reversed.

CERTIFIED FOR PUBLICATION

JONES, J.*

. We concur:

KINGSLEY, Acting P.J.

JEFFERSON (Bernard) J.

Assigned by the Chief Justice of California.

APPENDIX B

ORDEi, DUE

October 31, 1978

ORDER DENYING HEARING

AFTER JUDGMENT BY THE COURT OF APPEAL

2nd District, Division 4, Crim. No. 31806

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

IN BANK

IN RE PATRICK W., A PERSON COMING UNDER THE

JUVENILE COURT LAW

PEOPLE

v.

STEVEN W.

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Respondent’s petition

for hearing DENIED.

Clark, J., and Richardson, J., are of the opinion that the petition

should be granted.

SUPREME COURT

FILED

OCT. 25, 1978

G. E. BISHEL, CLERK

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