Opinion
In Parnell v. Superior Court (1976)
In this case a petition was filed in Sacramento County Juvenile Court alleging that Abdul Y., age 14, was a minor coming under Welfare and Institutions Code section 602 in that he had committed murder (Pen.
On appeal the minor challenges (1) the denial оf his peremptory motion to disqualify the juvenile court judge as untimely (Code Civ. Proc., § 170.6); (2) the voluntariness of his confession; and (3) the order committing him to the California Youth Authority.
Facts
At approximately 10:30 p.m. on June 16, 1980, 15-year-old Nurah Y. telephoned her 14-year-old boyfriend, Marvin Keola, and asked him to visit her at her house. A short time later Marvin entered the Y. home through Nurah’s bedroom window which she had left open. The surreptitious mode of entry was necessary because the Y. family did not approve of the relationship between Nurah and Marvin.
Mr. and Mrs. Y. were asleep during the early morning hours of that day when they were awakened by noises. Mrs. Y. attempted to enter Nurah’s room to investigate, but the bedroom door was secured shut by a chair Nurah had placed against it; this allowed Marvin time to hide under Nurah’s bed. Nurah then opened the door and allowed Mrs. Y. to enter. Mr. Y. was investigating the backyard area. He thereafter joined Mrs. Y. and Nurah in Nurah’s bedroom.
Marvin and Nurah had been smoking marijuana that evening. Mr. and Mrs. Y. smelled the marijuana and began searching Nurah’s bedroom for it. When Mr. Y. began to look near and around the bed, Nurah became frightened and ran out of the room. Mr. and Mrs. Y. continued their search and soon discovered Marvin hiding under Nurah’s bed. Mrs. Y. called to appellant to come into the room.
Appellant ran into Nurah’s bedroom armed with a .22 caliber semiautomatic rifle. The lights were on in the room. Marvin was lying on the floor with one leg under the bed. Appellant fired the entire clip of 15 shots at Marvin.
At approximately 3:26 a.m., Sergeant Farnsworth of the Sacramento Police Department arrived at the Y. house in response to a radio broadcast advising that a possible burglary suspect had been shot in the leg. 1 Sergeant Farnsworth was motioned into the house by Mrs. Y. He found the slain body of Marvin Keola in the house’s back bedroom.
Officer Olson then returned to the kitchen area. About five minutes later appellant joined his mother and father in the living room area. Appellant and Mrs. Y. sat on a couch and consoled each other. The Y.’s then agreed to accompany the officers to the police station for the purpose of giving statements. At the station the Y.’s were placed in separate holding rooms. Detective Padovan interviewed appellant at approximately 6:30 a.m. Appellant was read his Miranda rights and signed a waiver form. He then made a complete confession. In that confession appellant also implicated both of his parents. Repudiating his earlier version, he stated that when he entered the room his parents were already standing over Marvin with guns in their hands. His mother, he recounted, then shot Marvin twice. Appellant then fired his rifle at Marvin until he exhausted all 15 rounds in the clip. He admitted that he shot Marvin because “I just hаd hate for him .. . cause my sister is engaged to be married. Because he had no fucking business being with my sister.”
Appellant’s motion to exclude this confession was denied and the confession was admitted into evidence at the jurisdictional hearing. On December 3, 1980, the court made findings that appellant had committed murder in the second degree and had used a firearm in the commission of the offense. At the dispositional hearing, held January 7, 1981, appellant was committed to the California Youth Authority.
Appellant contends that the trial court erred in denying his peremptory 2 challenge of Judge Morgan under Code of Civil Procedure section 170.6. The petition to have appellant declared a ward of the court was filed on June 18, 1980. Following appellant’s request for a rehearing after the case had been heard by a referee (Welf. & Inst. Code, § 252), the juvenile court reset the jurisdictional hearing for August 20, 1980. That hearing was thereafter rescheduled twice and eventually wаs set for November 18. In the interim, appellant filed a motion to “exclude statements and/or confessions.” The motion was made on the grounds that the statements were the result of an illegal detention and arrest and were both involuntary and obtained in violation of his Miranda rights. The motion commenced on October 6 before Judge Morgan. It was vigorously contested, consuming all or portions of seven days. Appellant testified on his own behalf and also called his mother, a sister and a psychologist. On November 6, 1980, immediately following Judge Morgan’s denial of his motion appellant made an oral motion for the court to disqualify itself voluntarily, which motion was denied.
On November 12, 1980, appellant filed a formal application to disqualify the trial judge under section 170.6. The judge ruled that the jurisdictional hearing had earlier commenced with the suppression hearing and that the motion was therefore untimely. Appellant challenges the propriety of the denial of that secоnd motion in this appeal.
Code of Civil Procedure section 170.6 provides in substance that any party to an action may make a motion, supported by an affidavit of prejudice, to disqualify the trial judge, commissioner, or referee.
3
If the motion is timely and properly filed, the judge must recuse himself without further proof and the cause must be reassigned to another judge.
(Solberg
v.
Superior Court
(1977)
“The general rule established by section 170.6 is that disqualification is permitted at any time prior to commencement of the trial or hearing. Two exceptions are provided—the 10-day-5-day provision and the master calendar provision.”
4
(Los Angeles County Dept. of Pub. Social Services
v.
Superior Court
(1977)
The People argue that although the jurisdictional hearing was formally scheduled for November 18, 1980, in practical effect it had commenced on October 6th with the hearing on the motion to exclude the confession, thereby rendering the minor’s 170.6 motion untimely because not made “prior to trial.” We disagree.
California Rules of Court, rule 1354(b), provides that “[u]nless a different procedure is provided for by written local rule, the court shall hear and decide any motions to suppress evidence at this time [i.e., at the beginning of the jurisdictional hearing], and prior to the attachment of jeopardy.”
5
Jeopardy attaches in a juvenile proceeding when
The rule thus contemplates that the jurisdictional hearing may be bifurcated into two phases, a prehearing preliminary phase and an adjudicatory one. The purpose of the rule was to avoid possible double jeopardy problems. 6
The preliminary phase, designed for
in limine
suppression motions, is therefore the functional equivalent of the pretrial stage of adult crimi
Here appellant’s motion was filed on November 12, 1980. The rescheduled date set for the adjudicatory phase of the jurisdictional hearing was November 18. The motion was therefore made five days before trial.
7
(In re Robert P., supra,
The Attorney General next argues that the 170.6 motion was untimely because the hearing on appellant’s motion to suppress his confession involved a “determination of contested fact issues relating to the merits.”
Prior to 1965, if a party failed to exercise his section 170.6 rights before a pretrial hearing involving a contested issue of law or fact, he lost his right to peremptorily disqualify the judge.
(Swartzmen
v.
Superior Court
(1964)
“But hearings on demurrers, pleading and other matters before trial are comparatively routine and should not result in waiver.
“The committee believes that the suggested change in Section 170.6, if enacted into law, will (1) conserve judicial manpower on the smaller counties; (2) reduce the number of disqualification motions statewide; (3) preserve the motion for the important situation where fact determinations are involved, such as trials; (4.) recognize that preliminary motions and matters are often handled in routine fashion by an attorney other than the one who will try the case, without the presence of the client (whose views and information are important on a disqualification motion).” (Report of the Committee on Administration of Justice (1964) 39 State Bar J. 496, 498.)
Here, in making the determination that appellant’s statemеnts were voluntary and otherwise admissible, the trial court was required to resolve numerous factual conflicts in the evidence concerning the interrogation, the statements and the minor’s state of mind. That hearing indisputably dealt with “contested fact issues.”
9
We therefore turn
In
Parnell
v.
Superior Court, supra,
The merits of a criminal action refer to the guilt or innocence of the accused. 10 (See Pen. Code, § 1151.) That ultimate determination of culpability, by the nature of the criminal process, can only be made at a trial where jeopardy attaches. Yet it is self-evident that section 170.6 presupposes that there are proceedings “prior to trial ... relating to the merits.” The adjudicаtion of pretrial issues relating to the merits must therefore mean something other than the final determination of the accused’s guilt or innocence.
The question then is whether a pretrial motion to suppress a confession relates to the merits of the prosecution. Incriminating evidence sought to be introduced against a defendant relates, by definition, to the guilt of the accused and is relevant because it has a “tendency in reason to prove or disprove [a] disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) Hence a contested pretrial factual hearing to determine the admissibility of incriminating evidence necessarily involves an adjudication that is of consequence to
Moreover, the importance and magnitude of the pretrial suppression hearing suggests that this is not the kind of “comparatively routine” pretrial matter that “should not result in waiver” of disqualification rights under section 170.6. (See Report, supra, 39 State Bar J. at p. 497.)
In a different сontext, Justice Blackmun noted the importance of suppression hearing in the criminal process: “. . . the suppression hearing resembles and relates to the full trial in almost every particular. Evidence is presented by means of live testimony, witnesses are sworn, and those witnesses are subject to cross-examination. Determination of the ultimate issue depends in most cases upon the trier of fact’s evaluation of the evidence, and credibility is often crucial.... [¶] Moreover, the pretrial suppression hearing often is critical, and it may be decisive, in the prosecution of a criminal case. If the defendant prevails, he will have dealt the prosecution’s case a serious, perhaps fatal, blow; the proceeding often then will be dismissed or negotiated on terms favorable to the defense. If the prosecution successfully resists the motion to suppress, the defendant may have little hope of success at trial
(especially where a confession is in issue),
with the result that thе likelihood of a guilty plea is substantially increased.
United States
v.
Clark,
The minor’s attempted peremptory disqualification of Judge Morgan after the suppression hearing was untimely аs a matter of law. Therefore, although the trial court’s reason for denying appellant’s disqualification motion was erroneous, its decision was correct and is accordingly entitled to be upheld on appeal. (See
People
v.
Braeseke
(1979)
II
Appellant next challenges the admissibility of the confession he made at the police station. He argues that the court erred in ruling his confession was voluntarily given. The salient facts surrounding that confession are as follows:
Mr. and Mrs. Y. and appellant voluntarily agreed to be transported by the police to the police station to give statements. They were transported in an unmarked police car with no cage in it. Handcuffs were not used. They arrived at the station at approximately 5 a.m. The police believed at that time that the Y.’s were merely innocent witnesses to the slaying of a burglar. At the police station, the three Y.’s were placed in separate “holding rooms” while waiting to be interviewed. 11
Appellant was interviewed at approximately 6:30, about one and one-half hours after leaving his residence. Prior to commencing questioning, he was properly advised of his Miranda rights; he indicated his understanding of them and signed a waiver form. The minor then made a full confession of the killing of Marvin Keola, which was admitted into evidence at the jurisdictional hearing.
The use in a juvenile proceeding of a confession obtained without an intelligent, knowledgeable waiver of constitutional rights violates the Fifth Amendment and the due process clause of the Fourteenth Amendment of the United States Constitution.
(In re Gault
(1967)
The involuntary or voluntary nature of a confession must be tested by “the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation.”
(Schneckloth
v.
Bustamonte
(1973)
Appellant first contends that his confession is inadmissible because prior to police interrogation he should have been allowed to speak with his parents or his sister Ophelia. There is a conflict in the evidence as to whether Mr. and Mrs. Y. and Ophelia requested to see defendant. As a reviewing court, we accept, as we are required to do, that version of events most favorable to the People (see
People
v.
Jiminez, supra,
In
People
v.
Lara, supra, 67
Cal.2d at page 379, the Supreme Court, admonishing that in police interrogation of juveniles the advice and consent of an adult is “to be desired, and should be obtained whenever feasible,” held (at p. 383) that as a general rule “a minor has the capacity to make a voluntary confession, even of capital offenses, without the presence or consent of counsel or other responsible adult, and the admissibility of such a confession depends not on his age alone but on a combination of that factor with such other circumstances as his intelligence, education, experience, and ability to comprehend the meaning and effect of his statement.” In other words, failure to seek and obtain adult consent is but one of several factors to be considered by the trial judge in determining the admissibility of a confession.
12
(See
In re Patrick W.
(1978)
This is not a case in which we are asked to decide whether the confessor, by some conduct, has manifested an intent to invoke his Fifth
Appellant’s sister, Ophelia Toney, arrived at the police station at approximately 5:30 a.m. in response to a call from her mother. Appellant’s parents were in a room adjacent to appellant. Obviously, all were family members whose consent was “feasible.”
(People
v.
Lara, supra,
The record reveals that appellant’s parents were present when appellant shot Marvin Keola, and therefore knew of his involvement in the killing. However, up until the time that Detective Padovan interviewed Nurah at the police station (approximately 5 a.m.), the police did not suspect appellant of criminal homicide. The preliminary police investigation at the Y. residence was conducted according to the report received by the police dispatcher from Mrs. Y. over the telephone that a burglar had been shot. The parents were permitted to talk privately with appellant and to move freely in and about the house. Mr. and Mrs. Y. were present when appellant agreed to travel to the police station to make a statement. At the station no request was made by appellant or his parents to speak to each other, though they knew they were in adjacent rooms. Their acquiescence in his decision to submit to questioning is tantamount to implied parental consent. Under these circumstances, we conclude that the failure to seek and obtain express consent from the parents before questioning appellant did not render the confession involuntary.
The
Patrick
court held that “the recommendation in
People
v.
Lara, supra,
Appellant called Dr. Grant Hutchinson, a clinical psychologist, who testified that appellant was not capable of making a knowing and intelligent waiver of
Miranda
rights.
14
He cited the following factors to support his conclusion: (1) appellant’s age and immaturity, (2) his inexperience with the law, e.g., "the fact “that he had [not] previously encountered
Miranda
or the court system directly,”
15
(3) his submissiveness to authority figures,
16
(4) appellant’s lack of sleep at the time of the confession, (5) his emotional condition, and (6) the fact that appellant was confined to a room for one and one-half hours without contact with parents, family, or friends. However on cross-examination Dr. Hutchinson also testified that appellant is of average or slightly above average intelligence, and that, although of foreign ancestry, he speaks and understands English well. He conceded that appellant had no psychiatric disorders that would inhibit understanding. Further, when Dr. Hutchinson asked appellant why
Miranda
rights are read to persons, appellant exhibited a clear understanding that he had a choice of talking or not talking, and that anything he said “could be used against me ... as evidence.” When Dr. Hutchinson questioned appellant about the meaning of the
Miranda
admonition that he had a right to an attorney, appellant responded “You could call an attorney and if you can’t afford it, they give you a public defender.” When queried as to how you get an attorney, appellant responded “Ask for one.” This testimony casts doubt on Dr. Hutchinsоn’s conclusion that appellant’s waiver was not knowing and voluntary. In any event, the trial court was not required to accept Dr. Hutchinson’s opinion with respect to appel
We have, of course, listened to the tape of appellant’s confession. No coercion may be found in the manner in which the interrogation was conducted. Moreover, at no time did appellant indicate in any manner that he wanted questioning to cease. We conclude, based on an independent examination of the record (see
People
v.
Sanchez
(1969)
III
At the conclusion of the adjudicatory hearing on December 3, 1980, the trial judge adjudged appellant a ward of the court pursuant to Welfare and Institutions Code section 602, finding that he had committed murder in the second degree (Pen. Code, § 187), and had used a firearm during commission of the crime (Pen. Code, § 12022.5). 18
At the January 7, 1981, dispositional hеaring, appellant was committed to California Youth Authority. Appellant contends that the
It is true that a CYA commitment is “the final treatment resource” available to the juvenile court. It is thus treated as a placement of “last resort,” proper only in the most serious cases after all else has failed.
(In re Aline D.
(1975)
“The decision of the juvenile court may be reversed on appeal only upon a showing that the court abused its discretion in committing the minor to CYA. An appellate court will not lightly substitute its decision for that of the juvenile court, as the former must indulge in all reasonable inferences in support of the latter’s decision and will not disturb it unless unsupported by substantial evidence. [Citations.]”
(In re Eugene R.
(1980)
The trial judge held that the purposes of the Juvenile Court Law
19
would not be accomplished by a facility other than the Youth Author
Although appellant is a first-time offender, this in itself does not indicate that CYA commitment is inappropriate.
(In re Michael R.
(1977)
Appellant correctly pоints out that the fact that a minor has committed a serious offense is not a ground, in and of itself, for a Youth Authority commitment.
(In re Lawrence B.
(1976)
The judgment is affirmed.
Blease, Acting P. J., and Carr, J., concurred.
A petition for a rehearing was denied May 14, 1982, and appellant’s petition for a hearing by the Supreme Court was denied July 14, 1982. Bird, C. J., was of the opinion that the petition should be granted.
Notes
The parties entered into a stipulation that Mrs. Y. called the police department at 3:24 a.m. on June 17th.
“‘Peremptory’ means that the motion results in disqualification ‘without any further act or proof.’ (Code Civ. Proc., § 170.6, subd. (3); see
Solberg
v.
Superior Court
(1977)
That section has been held applicable to juvenile proceedings.
(In re Robert P.
(1981)
All further references to section 170.6 are to the Code of Civil Procedure.
These two exceptions are found in subdivision (2) of section 170.6. That subdivision provides in relevant pаrt: “Where the judge ... assigned to or who is scheduled to try the cause or hear the matter is known at least 10 days before the date set for trial or hearing, the motion shall be made at least five days before that date. If directed to the trial of a cause where there is a master calendar, the motion shall be made to the judge supervising the master calendar not later than the time the cause is assigned for trial. In no event shall any judge ... entertain such motion if it be made . .. after the making of an opening statement by counsel for plaintiff, or ... after swearing in the first witness or the giving of any evidence or after trial of the cause has otherwise commenced. If the motion is directed to a hearing (other than the trial of a cause), the motion must be made not later than the commencement of the hearing. In the case of trials or hearings not herein specifically provided for, the procedure herein specified shall be followed as nearly as may be.”
Section 700.1 of the Welfare and Institutions Code now provides, in relevant part, that “[a]ny motion to suppress as evidence any tangible or intangible thing obtained as a result of an unlawful search or seizure shall be heard prior to the attachment of jeopardy and shall be heard at least five judicial days after receipt of notice by the people unless the people are willing to waive a portion of this time.”
“Subdivision (b) provides that, in the absence of a different procedure being provided for by local rule, the court shall, after completing matters relating to advice and appointment of counsel but before taking of the plea, ascertain whether any prehearing motions to suppress evidence are to be made in behalf of the minor and, if so, to hear and decide the motion at this time. There is no statutory or case law directly applicable to the procedural handling of these motions in the juvenile court (see Deskbook § 8.10), and as a result the procedures in each county vary. In some, these motions are heard and decided at a special hearing held in advance of the date scheduled for commencement of the jurisdiction hearing. This may require more than one appearance by some witnesses. In other counties, the motions are heard during the jurisdiction hearing as the challenged evidence is being introduced. Unlike in a criminal trial, of course, there are ordinarily no jury members being inconvenienced by the necessity for procedural interruptions in the taking of testimony on the merits of the case. (But see People v. Superior Court (Carl W.) (1975)
The original and postponed hearings were all assigned to department one rather than to Judge Morgan. “There is an uncertainty necessarily inherent in the practice of assigning a cause to a particular department but not to a named judge. The all too common continuance adds unknown variables. A consequent and undue hardship on the litigant flows which negates the underlying thrust of Code of Civil Procedure 170.6—to grant to the litigant a single reasonable opportunity to disqualify a known trial judge. To effectuate this legislative intent, the cases have evolved this rule: Where the hearing date is set, but postponed, a disqualification motion filed five days before the postponed date is timely. [Citations.]” (In re Jose S., supra, 78 Cal.App.3d at pp. 627-628.)
A 1967 amendment added “court commissioner” (Stats. 1967, ch. 1602, § 2, p. 3832) and the 1976 amendment inserted “referee” as well. (Stats. 1976, ch. 1071, § 1, P- 4815.)
A variety of pretrial motions have been found not to involve a determination of contested fact issues. (See, e.g.,
People
v.
Montalvo
(1981)
If pleas other than not guilty have been entered, the merits would also refer to the ultimate facts tendered by those pleas. It is also true that a proceeding in the juvenile court involving a penal offense is not technically a criminal proceeding. (Welf. & Inst. Code, § 203.) “However, the ‘“civil” label-of-convenience’
(In re Gault,
The “holding rooms” are approximately four feet by six feet and contain a single chair; the doors lock when closed. It is the practice in Sacramento County to place wit
We are aware of the view that a minor is not competent to waive his rights without the consent of an adult, urged by the dissent in
Lara, supra,
After the California Supreme Court denied hearing in Patrick, June 25, 1979, the United States Supreme Court remanded the case back to the Court of Appeal for “further consideration in light of
Fare
v.
Michael C.
(1979)
Hutchinson formed his conclusion based on (1) the police reports prepared by Officers Olson and Peters concerning their conversations with appellant at approximately 3:30 a.m. on June 17th; (2) the confession taken by Detective Padovan later the same morning; and (3) an interview with appellant, lasting about three hours, that took place at juvenile hall on August 20th.
Reliance on this factor was substantially undermined by Mrs. Y.’s testimony later in the hearing that appellant had been to juvenile hall on a previous occasion at which time she fully explained to him the meaning of his Miranda rights.
Hutchinson’s opinion regarding appellant’s submissiveness was based entirely on the doctor’s interview with him—he did not attempt to contact appellant’s teachers, people at appellant’s church, or family members.
AppelIant also contends that his confession was inadmissible because he should have been taken to a probation officer prior to questioning. This contention is meritless. Welfare and Institutions Code sections 625 and 626 provide in substance that when a minor is taken into temporary custody for a suspected violation of Welfare and Institutions Code sections 601 or 602, the authorities must thereafter act “without unnecessary delay” to deliver the minor to the probation officer. “In no case shall he delay the delivery of the minor to the probation officer for more than 24 hours if such minor has been taken into custody without a warrant in the belief that he has committed a misdemeanor.” The purpose of the meeting with the probation officer is to “determine whether such detention is appropriate.” (In
re Wayne H.
(1979)
The provisions of sections 625 and 626 are inapplicable here. First, appellant was not “taken into custody” by police, but rather voluntarily agreed to accompany the police to the police station as a potential witness. He did not become a suspect until after arri-. val at the station». Second, appellant was later suspected of murder, a felony; section 626 by its terms applies only to misdemeanors. Finally, even if the police failed to deliver the minor to a probation officer within 24 hours, this would not ordinarily be a factor in determining whether a confession given prior to the running of that time period was voluntary and therefore admissible.
The prescribed term for second degree murder is 15 years to life; a 2-year enhancement was imposed for the use finding. Appellant was ordered to remain at CYA not past his 21st birthday.
The general statutory purposes of the Juvenile Court Law are stated in Welfare and Institutions Code section 202 which provides: “(a) The purpose of this chapter is to secure for each minor under the jurisdiction of the juvenile court such care and guidance, preferably in his own home, as will serve the spiritual, emotional, mental, and physical welfare of the minor and the best interests of the state; to -protect the public from criminal conduct by minors; to impose on the minor a sense of responsibility for his own acts; to preserve and strengthen the minor’s family ties whenever possible, removing him from the custody of his parents only when necessary for his welfare or for the safety and protection of the public; and, when the minor is removed from his own family, to secure for him custody, care, and discipline as nearly as possible equivalent to that which should have been given by his parents. This chapter shall be liberally construed to carry out these purposes. [¶] (b) The purpose of this chapter also includes the
Jerry Chase, representing the Sacramento County Probation Department, testified at the dispositional hearing that the duration of the program at the boys ranch is four to ten months.
In
In re Carrie W.
(1979)
School records from John Still Junior High show that appellant was involved in numerous fights; he was found on campus in possession of a knife with a locked blade and a razor box cutter; and when reprimanded he threw things in the classroom and would
Appellant always kept a rifle loaded in his bedroom and believed that keeping loaded weapons in the house was not unusual since no small children had access to the family weapons.