THE PEOPLE, Plaintiff and Respondent, v. TONY MONTOYA LARA and RAYMOND MORALES ALVAREZ, Defendants and Appellants.
Crim. No. 10061
In Bank
Sept. 29, 1967.
67 Cal. 2d 365
Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, James H. Kline and Thomas Kerrigan, Deputy Attorneys General, for Plaintiff and Respondent.
MOSK, J.—Defendants Lara and Alvarez appeal from judgments convicting each on one count of first degree murder and one count of kidnaping for the purpose of robbery with the victim suffering bodily harm. (
Defendants’ principal contentions are that incriminating evidence was introduced against them which had allegedly been obtained by an illegal search and seizure, that they did not intelligently and understandingly waive their rights under People v. Dorado (1965) 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361], that it was a violation of People v. Aranda (1965) 63 Cal.2d 518 [47 Cal.Rptr. 353, 407 P.2d 265], to allow their mutually incriminating confessions into evidence, and that the prosecutor committed prejudicial misconduct. As will appear, we have concluded that no prejudicial error occurred and hence the judgments should be affirmed.
About 3 p.m. on May 23, 1965, the body of Raymond
That evening, Mitchell‘s car, a light-colored 1951 Chevrolet, was found abandoned approximately two miles away in an area known as the Bixby Slough. It was stuck, and could not be moved either forward or backward under its own power. Officer Taggart examined the vehicle and observed a discoloration appearing to be blood on the steering column.
Augustine Meza testified that about 1:30 a.m. on May 23 he was offered a ride by Mitchell in the latter‘s Chevrolet. They drove to a liquor store to buy some cigars. Meza declined Mitchell‘s offer of a drink from a bottle of wine, explaining he had been drinking since a wedding reception the previous afternoon. Ten or fifteen minutes later they drove to a lumberyard where they encountered defendants Lara and Alvarez, known to Meza respectively as “Tony” and “Baby.” Lara and Alvarez entered Mitchell‘s car, saying “Why don‘t you take us for a ride?” Meza then asked to be driven home, and Mitchell complied. It was 2 a.m.; Meza had something to eat, and went to bed.
Roberta Real testified that about 4 a.m. she received a telephone call from Lara, who was her boyfriend. He sounded drunk and sleepy. He told her he had been in a fight and “I shot some boy, me and some other ones,” and left him in the dump. The witness could not remember the other details of the conversation, but testified that a certain written statement she gave to the police two days later was true at the time she made it. In the relevant portion of that statement, which was read to the jury, “Tony [Lara] said he had a fight with the guy. They got out of the car and Tony took the gun and told the guy to take off his jacket and shirt. Tony said if you don‘t take off your jacket by the time I count to five, I will shoot you. The guy was crying and said ‘Don‘t shoot. Don‘t shoot.’ The guy took off his jacket, just leaving his T-shirt on. Then Tony said they tied the guy‘s hands behind his back, and the guy acted like he fainted or something.”
About 3:30 p.m. on the day of the shooting Meza again encountered Alvarez at the lumberyard. Alvarez told Meza that they had killed the boy who had driven Meza home; that “one of them had shot him first and then the other one.” Meza expressed disbelief, and left.
Two days later Meza was in the custody of the Pasadena police on an unrelated charge. Meanwhile, friends of Mitchell had informed the authorities they last saw the deceased in the company of a man named Augustus or Agosto. A Pasadena jailer who had heard about the Wilmington murder learned that Meza‘s first name was Augustine and saw what appeared to be blood on his clothing. He called the matter to his superior‘s attention, and Meza was interviewed by Officer Taggart and his partner, Sergeant Knapp. Meza related to the officers the above described events of May 23, including the apparent involvement of “Tony” and “Baby” in the murder. The officers learned through the juvenile authorities that the latter were probably Lara and Alvarez, and Meza recognized the names and identified their faces from photographs.
The Los Angeles police thereupon communicated this information to the Police Department of the City of South Gate, where Lara‘s sister, Mrs. Arujo, lived. Officer Miller of that department went to Mrs. Arujo‘s house at 6 p.m. the same day. She answered the door, identified herself as Lara‘s sister, and let the officer into the living room. He asked if Lara was there, and requested permission to search the premises. Permission was denied, but the officer heard a thumping noise from an adjacent bathroom. Lara then appeared from the hallway and said, “Are you looking for me?” After Lara identified himself he was placed under arrest on the charge of murder. The officer then looked in the bathroom and found a 12-gauge shotgun. Officer Miller said to his partner, Sergeant Weiss, “I wonder if this gun is loaded,” and Lara interrupted, “The gun is loaded” and volunteered to unload it. The gun was turned over to a ballistics expert, whose tests subsequently established it was the same weapon that had fired the two shells found near Mitchell‘s body.
Mrs. Arujo testified that in the two-day period between the shooting and Lara‘s arrest the latter asked her if he could stay at her house. He told her he was “in trouble” because he and others had shot the boy whose body had been found in the dump. After refreshing her recollection from a statement
At the time of Lara‘s arrest Sergeant Weiss told him it was his duty to advise him of his constitutional rights. Lara replied that he knew his rights; but the officer said it was his duty to advise him anyway, and informed him that he had the right to an attorney, that he could remain silent if he wished, and that any statements he made could be used against him in court. The officer asked Lara if he understood, and he replied that he did.
Lara, Mrs. Arujo, and her two children were transported to the South Gate Police Department and turned over to the investigating officers, Taggart and Knapp. Miss Real, whose mother had reported her to the police as a runaway juvenile, was also taken into custody. Lara was again advised of his constitutional rights, and again stated he knew and understood them. After failing in his efforts to make a “deal” with the officers, as hereinafter described, Lara confessed.
The first part of his statement corroborated the information given by Meza as to what occurred in the early morning hours of May 23. After taking Meza home, according to Lara, Mitchell drove back to the lumberyard with him and “this other person.”1 Lara retrieved a shotgun he had “stashed” there, and upon returning to the car displayed it to Mitchell and asked, “Do you know what this is?” There was a scuffle, then Mitchell began driving at their direction. They stopped at the dump near Wilmington, and Lara ordered Mitchell to take off his coat and shirt. Mitchell refused, and Lara warned that if he did not do it by the count of five he would hit him and the other person would shoot him. Mitchell either fainted or was knocked unconscious. Lara kicked him twice in the head; they removed his coat and shirt, tore off part of his undershirt, and used it to tie his hands behind his back. They first put him in the trunk of the car, but were unable to close the lid. They then carried him to the edge of the excavation and threw him over. Lara obtained the gun from the car, set the choke, and shot Mitchell in the back as he lay on a ledge below. The other person took the gun, reset the choke, and also fired a shot at Mitchell. According to Lara, he and his companion wanted Mitchell‘s car for the purpose of using it in the commission of an armed robbery, and they killed him to prevent him from identifying them.
After making the foregoing oral statement, Lara reduced it to writing and signed it. He subsequently led Officer Taggart to some bushes in a field, where Mitchell‘s coat and shirt were found hidden, and to a spot in the back yard of his mother‘s house, where Mitchell‘s ignition and house keys, and the items taken from his car, were unearthed.
At 10:10 p.m. on May 25 Alvarez was arrested at his home and taken to the San Pedro police station. One of the arresting officers informed him he had the right to an attorney and the right to remain silent, and that anything he said could be used against him in a criminal prosecution. When asked if he understood, he replied that he did. Officers Taggart and Knapp arrived and again advised him of these constitutional rights. Alvarez asked if he could talk to Lara before saying anything, and the two were allowed to confer briefly in private. In the officers’ presence Lara said to Alvarez, “I have told them the story. Go ahead and tell them the truth.” Alvarez then wrote out and signed a statement substantially similar to that given by Lara, naming both himself and Lara as participants and concluding, “Tony shot him and then I shot him.” Finally, the two repeated their story orally for a tape recording.
No affirmative defense was offered.2
Lara first contends that the shotgun found by Officer Miller in the bathroom of Mrs. Arujo‘s house was obtained by means of an illegal search and seizure. As Officer Miller had neither an arrest nor a search warrant, the burden shifted to the prosecution to show proper justification. (People v. Henry (1967) 65 Cal.2d 842, 845 [56 Cal.Rptr. 485, 423 P.2d 557], and cases cited.) The search was clearly incident to the arrest of Lara, and hence was not “unreasonable” within the meaning of
“The question of probable cause to
Officer Miller acted on information supplied by the Los Angeles Police Department, which had telephoned a request to the South Gate Police Department to take Lara into custody on the charge of murdering Raymond Mitchell. Officer Miller was entitled to make an arrest on the basis of this information, as it was received through official channels. (People v. Webb (1967) supra, 66 Cal.2d 107, 112, and cases cited.) Of course, as there was no outstanding warrant for Lara‘s arrest the prosecution was also required to show (People v. Pease (1960) 242 Cal.App.2d 442, 450 [51 Cal.Rptr. 448]) that the officer who initiated the request had reasonable cause himself to believe that Lara had committed a felony (People v. Cartier (1959) 170 Cal.App.2d 613, 617-618 [339 P.2d 172]).
On the latter point Officer Taggart testified, as noted above, that in his interview with Meza at the Pasadena jail on the evening of May 25, Meza related that the victim had taken him for a ride between 1:30 and 2 a.m. on May 23, that two individuals subsequently identified as Lara and Alvarez had entered the car, that Meza had been driven home at his request, and that about 3:30 the following afternoon Alvarez told Meza that “him and his buddy, Tony, had shot and killed this fellow that had given him a ride home that night.”
Under settled rules (e.g., People v. Prewitt (1959) 52 Cal.2d 330, 337 [341 P.2d 1], and cases cited), this information would have constituted reasonable cause for arresting Lara and Alvarez if it had been furnished by a tested informant who had proved reliable on previous occasions. Meza had not been tested in this manner, and was under arrest at the time of his statement. But information given by an untested informant or arrestee is nevertheless sufficient if it is “corroborated, in essential respects, by other facts, sources or circumstances.” (People v. Reeves (1964) 61 Cal.2d 268, 274 [38 Cal.Rptr. 1, 391 P.2d 393].) Such corroboration need not itself amount to reasonable cause to arrest; its only pur-
Here the investigating officers knew, independently of Meza‘s information, that a felony had been committed. From the nature of the wounds they knew that Mitchell had been killed by one or more shotgun blasts; and from the fact he had been bound and shot in the back, they could reasonably infer the killing was murder. They could also infer that Mitchell‘s car had been involved in the perpetration of the crime, as it was found abandoned some two miles from the scene of the shooting. Meza, it will be remembered, told the officers that Lara and Alvarez were in Mitchell‘s car on the night in question, and that Alvarez subsequently said they had killed Mitchell by shooting him. Further independent investigation by the police disclosed that friends of Mitchell had last seen the deceased in the company of a man identified to be Meza; and the coroner‘s examination determined that death occurred in the period between the time that Meza had been taken home by Mitchell and the time he had been told of the shooting by Alvarez. Viewed together, these independently established facts justified the officers in placing reasonable reliance on Meza‘s information for the limited purpose here in issue. (See People v. Talley (1967) supra, 65 Cal.2d 830, 837.)
The record shows that prior to making his confession each defendant was fully and repeatedly advised of his right to counsel, his right to remain silent, and that anything he said could be used against him in court. Such admonitions were adequate to comply with the mandate of People v. Dorado (1965) supra, 62 Cal.2d 338. (People v. Sanchez (1967) 65 Cal.2d 814, 824 [56 Cal.Rptr. 648, 423 P.2d 800]; People v. Thomas (1967) 65 Cal.2d 698, 704-705 [56 Cal.Rptr. 305, 423 P.2d 233], and cases cited.)3 Both defendants contend, how-
Defendants stress that they are members of a minority group (Mexican-American); that they have little education (ninth or tenth grade), and no money; that they are minors;4 and that through lack of sleep and excessive drinking each was allegedly in poor physical and mental condition at the time he was questioned by the police. Such factors have often been considered by the courts in determining the voluntariness of an ensuing confession (see, e.g., Blackburn v. Alabama (1960) 361 U.S. 199 [4 L.Ed.2d 242, 80 S.Ct. 274]; Payne v. Arkansas (1958) 356 U.S. 560 [2 L.Ed.2d 975, 78 S.Ct. 844]; Gallegos v. Colorado (1962) 370 U.S. 49 [8 L.Ed.2d 325, 82 S.Ct. 1209, 87 A.L.R.2d 614]), and there is no doubt they are also relevant to the question whether a waiver of Dorado rights at the outset of an interrogation was intelligently and understandingly made. (See People v. Sanchez (1967) supra, 65 Cal.2d 814, 825-826.) Lara further complains, however, that the police did not inform him of “the elements of the crimes charged against him,” “the possible defenses available to him,” and the fact that “he could receive the death penalty.” There is no requirement that an accused be informed of these matters while the case is still in the stage of interrogation by investigating officers. Indeed, it would usually be impossible to do so, for at that stage no crimes have yet been “charged against him“; the latter decision is subsequently made by the district attorney, after appraising the legal effect of the evidence gathered from all sources in the case.
The issue, as with all matters of waiver, is to be resolved upon the whole record. (See Johnson v. Zerbst (1938) 304 U.S. 458, 464 [82 L.Ed. 1461, 1466, 58 S.Ct. 1019, 146 A.L.R. 357]; In re Johnson (1965) 62 Cal.2d 325, 335 [42 Cal.Rptr. 228, 398 P.2d 420].) Here the officers specifically asked each defendant if he understood the statement of rights just given to him, and each replied that he did.5 There was testimony that at the time of the questioning
Alvarez called Eugene M. Blumberg, a Ph.D. in clinical psychology, as an expert witness on this issue. Dr. Blumberg testified he had administered the standard intelligence quotient tests to Alvarez and had concluded that the latter had an I.Q. of 65 to 71, characterized as “mild mental retardation,” with a “mental age” of 10 years and 2 months. The witness gave as his opinion that Alvarez did not have the ability to understand the nature and effect of relinquishing his rights to counsel at the interrogation. On cross-examination Dr. Blumberg stated he did not think Alvarez was knowledgeable enough to realize he would benefit by falsifying his answers to the tests. The witness conceded, however, that the findings negated the possibility that Alvarez might have been “in a state of unawareness at the time the act was committed.” He admitted further that Alvarez “understood the meaning of the words” in the Dorado admonition he was given, but asserted he would not have understood “the subtleties or the nuances.”
The People also put an expert witness on the stand, John Paul Walters, an M.D. and practicing psychiatrist. Dr. Walters testified that on the basis of his examination of Alvarez, the latter had the ability or capacity to understand the rights explained to him and their basic significance, and to understand what it meant to waive those rights. The witness testified that the I.Q. tests administered to Alvarez were designed for large screening operations and would not show whether an individual being tested could comprehend the nature and consequences of an admonition such as here involved. Dr. Walters was willing to assume that Alvarez’ I.Q. was between 65 and 71 and that his “mental age” was 10 years and 2 months; he explained, however, that this “does not mean that he is functioning as a person at the age of ten years and two months. It means that that is his capacity to learn as a person of ten years, two months. He is living as a 17-year-old and he has the accumulated life experience as a 17-year-old person. I think that one can‘t isolate a result on an intelligence test and say that this represents the entire individual. This represents a very small portion of the individual. What this individual does with his time, how he lives, is the important thing. . . . He is functioning as a person of his chronological age.” Dr. Walters characterized as “innate shrewdness” Alvarez’ request to talk to Lara before making a statement, and concluded that when Alvarez waived his Dorado rights “He did what he wanted to do and he knew at that time what he wanted to do.”
The matter was thus explored at length, and the trial court found on the basis of all the testimony that Alvarez had the capacity to understand the meaning of the Dorado admonition he was given and the effect of waiving his rights. The record supports this finding.
We cannot accept the suggestion of certain commentators (see 7 Santa Clara Lawyer 114, 127 (1966); 40 Wash. L.Rev. 189, 200-201 (1965)) that every minor is incompetent as a matter of law to waive his constitutional rights to remain silent and to an attorney unless the waiver is consented to by
We recognize that in a number of respects minors enjoy a privileged status in our law. One of the primary concerns of the Legislature has been to protect minors from suffering unfair treatment in their dealings with adults simply by reason of their immaturity. Perhaps the most conspicuous examples of this solicitude are found in the law of contracts, under which a minor is generally deemed to lack the capacity to enter into a binding agreement (
More relevant here, however, are those provisions of the law governing acts of wrongdoing by a minor. At this point society‘s interest in self-preservation intervenes,7 and the resulting law is an attempt to reconcile that interest with the general concern for the minor‘s welfare. Thus although he is held to a correspondingly lower standard of care than a com-
When the wrongdoing of the minor is not simply a tort but amounts to a crime, a more complex set of laws comes into play. On the one hand, a special system of juvenile courts has been created to deal with such cases in an essentially nonpenal manner, for the protection and benefit of the minor. (
In short, with respect to tortious or criminal acts of minors, the law extends no blanket presumption of incapacity. Rather, while the minor‘s immaturity will often result in his undergoing different methods of adjudication and treatment, it is simply one element, although an important one, to be weighed with many others in determining the issue of his liability. It is clear the Legislature intends that determination to be made on the particular facts of each case.
A similar approach has been taken by the courts in dealing with other stages of the criminal process. The most common context in which the issue has arisen is in ruling whether a minor has the capacity to make a voluntary extrajudicial confession. The leading cases on this point are Haley v. Ohio (1948) 332 U.S. 596 [92 L.Ed. 224, 68 S.Ct. 302], and Gallegos v. Colorado (1962) supra, 370 U.S. 49.
In Haley a 15-year-old Negro boy was arrested shortly after midnight on a robbery-murder charge. He was interrogated by relays of police officers, without being advised of his right to counsel, and at 5 a.m. he orally confessed. After being informed that he had a right to remain silent and that his statement might be used against him, he signed a written version of his confession. He was thereafter held incommunicado for three days before being arraigned.
The United States Supreme Court reviewed the foregoing undisputed evidence and held that the confession was obtained by unconstitutional methods and its introduction in evidence therefore violated due process. The court reasoned that “when, as here, a mere child—an easy victim of the law—is before us, special care in scrutinizing the record must be used. Age 15 is a tender and difficult age for a boy of any race. He cannot be judged by the more exacting standards of maturity. That which would leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens. This is the period of great instability which the crisis of adolescence produces. A 15-year-old lad, questioned through the dead of night by relays of police, is a ready victim of the inquisition. Mature men possibly might stand the ordeal from midnight to 5 a.m. But we cannot believe that a lad of tender years is a match for the police in such a contest. He needs counsel and support if he is not to become the victim first of
Rejecting the argument that the defendant was at least partly advised of his rights and must be presumed to have waived them by confessing, the court said: “That assumes, however, that a boy of fifteen, without aid of counsel, would have a full appreciation of that advice and that on the facts of this record he had a freedom of choice. We cannot indulge those assumptions.” (Id. at p. 601 [92 L.Ed. at p. 229].)
Again, in Gallegos a 14-year-old boy orally confessed to an assault and robbery immediately upon his arrest. He was held incommunicado for five days, without interrogation but without being allowed to see a lawyer, relative or friend. At that point he signed a formal confession which was subsequently used against him in a murder prosecution when his victim died. The Supreme Court reviewed the facts and, following Haley, held that the formal confession was obtained in violation of the defendant‘s constitutional rights. The court observed, “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 have 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.” (370 U.S. at p. 54 [8 L.Ed.2d at p. 328].)
We acknowledge that the immaturity of most minors will make it desirable for those in custody to have the advice of counsel or other responsible adult. For our present purposes, however, the primary significance of Haley and Gallegos is that the high court declined to hold that as a matter of law all minors without such advice lack the capacity to make voluntary confessions. Rather, the court‘s approach was clearly implied in its conclusion in Haley (332 U.S. at pp. 600-601 [92 L.Ed. at pp. 228-229]) that “The age of petitioner, the hours when he was grilled, the duration of the quizzing, the
This, then, is the 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. (See cases collected in Note, 87 A.L.R.2d 624.) Applying the “totality of circumstances” test of Gallegos, such confessions have been held admissible when made by a minor of the age of fourteen,9 fifteen,10
Nor is it the law in California, where our courts uniformly follow the “totality of circumstances” rule. Thus in People v. Magee (1963) 217 Cal.App.2d 443 [31 Cal.Rptr. 658], confessions of robbery-murder taken from two 16-year-old and two 17-year-old defendants were used at their trial, which resulted in first degree murder convictions of all four. Contending on appeal that his confession must be deemed involuntary, defendant Magee argued that “any statement by a minor to the police is the result of an implied promise of immunity [i.e., from further proceedings other than in juvenile court].” (Id. at p. 455.) The contention apparently sought to invoke the special federal rule of Harling v. United States (D.C. Cir. 1961) 295 F.2d 161 [111 App.D.C. 174], which bars the government from using in a prosecution in a district court under the general criminal law any incriminating statement taken from a minor during the period he was detained under the auspices of the juvenile court; to hold otherwise, the Harling court reasoned, “would be tantamount
The California court expressly declined to adopt the Harling rule, observing that “there is no rule of this state making inadmissible statements made by juveniles to police officers or even to probation officers, between the time of their detention and the determination of the juvenile court as to whether they will be kept in the juvenile court or turned over for trial to the criminal courts.
“We see no reason at this time for making such statements inadmissible. In determining the character of their statements, that is, whether they are free and voluntary, the age of the person should be considered, but to rule out all statements merely because of the youth of the maker, would unduly restrict law enforcement.” (217 Cal.App.2d at pp. 456-457.)
The court then reviewed the circumstances surrounding the confessions of each of the defendants and concluded they were voluntarily given, distinguishing Haley on its facts. (Id. at pp. 465-466.) We denied a hearing, and the United States Supreme Court denied certiorari (376 U.S. 925 [11 L.Ed.2d 620, 84 S.Ct. 688]).
Among the circumstances emphasized by the courts as tending to show that the minor possessed the capacity required to make a voluntary confession are his prior experience with the police and courts (United States ex rel. Smith v. New Jersey, supra; Roberts v. Beto, supra; Clark v. State, supra) and the fact that advice as to his legal rights was given to him before he confessed (State v. Stewart, supra; State v. White, supra; Clark v. State, supra); each of these elements, it bears noting, is also present in the case at bar. On the other hand, if the minor is mentally retarded or of subnormal intelligence for his age, as is true of defendant Alvarez, that is a factor weighing heavily against a finding of capacity. Yet even the presence of such mental subnormality does not require the automatic exclusion of the minor‘s confession, and the “totality of circumstances” test still applies.
Thus in Reck v. Pate (1961) 367 U.S. 433 [6 L.Ed.2d 948, 81 S.Ct. 1541], a murder confession was given by a 19-year-
Again, the general rule governs: the mental subnormality of an accused does not ipso facto render his confession inadmissible, but is simply one factor, albeit of significant weight, to be considered with all others bearing on the question of voluntariness. (See cases collected in Note, 69 A.L.R.2d 348.)17 As we said in People v. Tipton (1957) 48 Cal.2d 389, 393-394 [309 P.2d 813], “a confession is not rendered inadmissible by a low emotional and mental stability on the part of the suspect if he is nevertheless capable of understanding the meaning and effect of his confession [citation]. Such matters may be taken into consideration in determining whether a particular confession was voluntarily made.” (Accord, People v. Isby (1947) 30 Cal.2d 879 [186 P.2d 405] [murder; 26-year-old “well down the scale of feeble-mindedness,” with a mental age of 8 years and 8 months and an I.Q. of 58; as a question of fact, confession held admissible].)
An equally persuasive analogy may be found in the cases dealing with waiver of counsel at trial. There again, it is settled that “The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” (Johnson v. Zerbst (1938) supra, 304 U.S. 458, 464 [82 L.Ed. 1461, 1466]; accord, In re Johnson (1965) supra, 62 Cal.2d 325, 335.) This rule applies to minors as well as adults, and the age of the defendant is simply a factor, although an important one, to be weighed with many others in
The rule was clearly delineated in Williams v. Huff (D.C. Cir. 1944) 142 F.2d 91 [79 App.D.C. 31]. In applying for a writ of habeas corpus, the defendant alleged that at the time he pleaded guilty to a charge of aggravated assault he was 17 years old, was not represented by counsel, and had not intelligently waived counsel. Writing for the court, Justice Edgerton recognized (at p. 92) that “Because the interests of society must be protected boys of seventeen are held competent, with certain limitations, to commit crimes and torts.” But he also stressed the various civil disabilities of minors, and remarked, “It seems to me to follow as a matter of law that a boy of seventeen cannot competently waive his right to counsel in a criminal case.” However, he acknowledged that “In saying this I do not speak for the court,” and concluded, in accord with the general rule, that “In view of the majority of the court appellant‘s competence was a question of fact, in the determination of which his youth was entitled to serious consideration but was not necessarily conclusive. It follows that the District Court should take evidence and determine whether, in the light of his age, education, and information, and all other pertinent facts, he has sustained the burden of proving that his waiver was not competent and intelligent.”
The holding of the majority in Williams has frequently been followed in the federal courts (see, e.g., De Souza v. Barber (9th Cir. 1959) supra, 263 F.2d 470, 477; McBride v. Jacobs (D.C. Cir. 1957) 247 F.2d 595, 596 [101 App.D.C. 189]; Shioutakon v. District of Columbia (D.C. Cir. 1956) 236 F.2d 666, 670 [98 App.D.C. 371, 60 A.L.R.2d 686]; Curtis v. Hiatt (3d Cir. 1947) 161 F.2d 621, 623), and is the law of California. In People v. Hardin (1962) 207 Cal.App.2d 336 [24 Cal.Rptr. 563], an 18-year-old defendant purportedly waived counsel before pleading guilty to being an accessory to burglary. The Court of Appeal observed that “Although minority itself would not prevent an intelligent waiver [citation], it is an important circumstance to be observed in the consideration of the other factors of the case” (at pp. 340-341). After reviewing the “other factors” bearing on the validity of the purported waiver, the court held it to be ineffective, concluding (at p. 343), “We observe that there is a combination of circumstances which differentiates the particular case before us from very many others, in the youth of
By contrast, in People v. Williams (1959) 174 Cal.App.2d 364 [345 P.2d 47], a 20-year-old defendant was found guilty of first degree murder after waiving counsel at trial. On appeal he contended that because he was a minor and was “acting alone” he did not have “the capacity to intelligently waive his counsel,” emphasizing his various civil disabilities. In rejecting this contention, the Court of Appeal reasoned that “As to appellant‘s argument concerning the disqualification attached to minors in various affairs of life, we are persuaded that since the court was clothed with jurisdiction to try him, and that is conceded, then in our opinion he had the right to waive or refuse appointment of counsel if at the time he did so, he had an intelligent conception of the consequences of his act” (at p. 379). The court then reviewed the totality of the circumstances surrounding the waiver, including the defendant‘s prior experience with the police and courtroom procedure, his active and able management of his defense, and the frequent advice and assistance of the trial judge. On this basis, the court concluded (at p. 380) that “The record before us does not warrant any inference other than that the waiver was an intelligent one by a person possessing the requisite capacity to waive his right to counsel.” The judgment was affirmed, and we denied a hearing.19
To sum up, we have seen that a minor, even of subnormal mentality, does not lack the capacity as a matter of law to make a voluntary confession without the presence or consent of counsel or other responsible adult, or to make a knowing and intelligent waiver of his right to counsel at trial; in either event, the issue is one of fact, to be decided on the “totality of the circumstances” of each case. We are of the opinion that the same rule governs the issue of the effectiveness of a minor‘s waiver of his rights to counsel and to remain silent after the accusatory stage has been reached in a pretrial investigation.
Two recent decisions from our sister state of Oregon so hold. In 311“>State v. Gullings (1966) 244 Ore. 173 [416 P.2d 311], the 17-year-old defendant was arrested for burglary on a detention warrant issued by the juvenile court. The arresting officer promptly and effectively advised him that any information secured could be used in a criminal prosecution against him, that he was entitled to counsel at state expense, and that he had an absolute right to remain silent. The defendant nevertheless made incriminating statements, produced part of the burglary loot, and signed a written confession. The latter was found to be voluntary when subsequently admitted at his trial in adult court, which resulted in conviction.
On appeal, the Oregon Supreme Court unanimously upheld the admissibility of the challenged confession. First, the court declined to adopt the rigid federal rule of Harling v. United States (D.C. Cir. 1961) supra, 295 F.2d 161, which excludes from criminal trials all confessions taken from a minor in custody of juvenile authorities, “regardless of the circumstances under which they are secured“; rather, the court stated that if Fifth and Sixth Amendment rights are preserved “we believe that an absolute prohibition is not required so long as it is made clear to the juvenile that criminal responsibility can result and that the questioning authorities are not operating as his friends but as his adversaries.” (416 P.2d at p. 313.) The court further explained (at p. 314) that “The parens patriae relationship does not exist between police and child but between court and child. Police are in the business of solving transgressions against the welfare of society and the apprehension of those who are responsible therefor. They are not engaged in the rehabilitation of the child. . . . So long as information is available which meets constitutional criminal due process standards and which was not secured through the close relationship between court worker and child, the safety and security of the law-abiding public requires its use in adult criminal proceedings.”20
Turning to the precise issue here under discussion, the court acknowledged (at p. 315) that “It might be argued that a juvenile does not have sufficient understanding to judge whether the situation was adversarial or to intelligently and knowingly waive his right against self-incrimination and his right to be represented by counsel.” But the court flatly rejected this argument, reasoning that “It can not be said that a juvenile can not waive constitutional rights as a matter
Again, in the companion case of State v. Casey (1966) 244 Ore. 168, 171 [416 P.2d 665, 666-667], the court upheld the admissibility of robbery confessions by defendants who were 16 and 17 years old respectively. Citing Gullings, the court reasoned that “The age of a juvenile does not rule out the possibility of an intelligent waiver of his Fifth and Sixth Amendment rights. . . . It is a matter of proof in each instance. The trial judge decided the state had carried the burden of proving that defendants had been effectively informed of and had waived such rights and there was, in our opinion, sufficient evidence to justify such a finding.” For the reasons set forth hereinabove, we reach a similar conclusion on the facts of the case at bar.21
The record fails to support Lara‘s further claim that his confession was “coerced” by alleged threats of the police to arrest his girl friend and his sister and to place the children of the latter in juvenile custody. On the contrary, Sergeant Knapp testified that when Lara was brought to the police station shortly after his arrest he asked the officers what they were going to do with his sister and his girl friend. They answered, “We don‘t know what we are going to do until we get it straightened out. At the present time your sister could have been arrested for harboring a fugitive, but we don‘t know what we are going to do.” During the ensuing 30 to 45 minutes Lara repeatedly approached the officers and asked if they would “make a deal” and let the girls go if he were to “get it straightened out.” The officers replied there could be no “deal” made while the matter was still under investigation.
Lara took the stand, without the presence of the jury, and limited his testimony to a voir dire inquiry into the voluntariness of his confession. On direct examination he stated he had confessed because he feared that unless he gave the offi
The matter was vigorously argued, and the trial court determined that the statement was voluntarily given. The court noted, inter alia, that Lara “made a very sophisticated approach by trying to make a deal with the officers. Both he and the officers agree that he instituted this, not the officers.” The jurors were then allowed to hear Lara‘s testimony on this issue,22 as well as the confession itself, and were properly instructed they could not consider the confession for any purpose unless they first determined that it was voluntarily given (Jackson v. Denno (1964) 378 U.S. 368 [12 L.Ed.2d 908, 84 S.Ct. 1774, 1 A.L.R.2d 1205]; People v. Gonzales (1944) 24 Cal.2d 870, 876-877 [151 P.2d 251]).23 Our independent examination of the uncontradicted facts on this issue convinces us that the confession was voluntary. (People v. Underwood (1964) 61 Cal.2d 113, 121 [37 Cal.Rptr. 313, 389 P.2d 937]; People v. Berve (1958) 51 Cal.2d 286, 290-291 [332 P.2d 97], and cases cited.) And to the extent that the relevant evidence is in conflict, the resolution of the triers of fact below, which was made under correct rules of law, will not be disturbed on appeal. (People v. Sanchez (1967) supra, 65 Cal.2d 814, 826.)
The confession of each defendant implicated the other.24 On its face, this record shows a violation of the rules
We do not mean to imply that a violation of the Aranda rules will be automatically nonprejudicial as to any defendant who has made a confession of his own. In every such case the issue remains whether the effect of any circumstances which might otherwise have mitigated the impact of the defendant‘s confession was overcome by the portions of a codefendant‘s statement implicating the defendant; in that event, the implication would be prejudicial despite the defendant‘s own confession. Such a situation might occur, for example, when the confessing defendant presented evidence to show his statement was not freely given, and also denied its truth on the witness stand. In the case before us, however, Lara made no such denial; on the contrary, he admitted he told the police the whole story of what had happened on the night of the killing.
tion by necessary inference. The same reasoning applies to Alvarez’ statement to Meza that he and “his buddy, Tony,” had shot and killed a fellow who had given him a ride home earlier that morning. On the other hand, no implication of Alvarez appears in Lara‘s statement to his girl friend that “me and some other ones” shot the victim, or in his statement to his sister that “Him and some boys” committed the crime. (See People v. Aranda (1965) supra, 63 Cal.2d 518, 530-531, fn. 10.)
No useful purpose would be served by detailing Lara‘s charge of five alleged instances of misconduct by the prosecutor during voir dire of the veniremen and argument to the jury. After a careful examination of the record we are of the opinion that several of the remarks in question were ambiguous and it is unlikely they were given the sinister meaning now attributed to them, while the remainder were either corrected by prompt admonition of the trial court or were so trivial that they could not reasonably have affected the verdicts.
The trial court properly allowed the prosecutor to challenge for cause those prospective jurors who expressed a conscientious objection against imposing the death penalty. (People v. Thomas (1967) supra, 65 Cal.2d 698, 706, and cases cited.) Alvarez objected on the ground that such challenges were not proper as to him because he was not subject to the death penalty in view of his age at the time of the commission of the crime (see fn. 4, ante). The court overruled the objection, observing that the challenge was nevertheless proper as to Lara and this was a joint trial. After Alvarez had exhausted all his individual peremptory challenges, Lara declined to join him in a joint challenge of a certain additional juror; Alvarez then requested the court to allow him additional peremptory challenges equal in number to the challenges for cause exercised by the prosecutor on the basis of conscientious objection to the death penalty. Finding no statutory authority for such additional challenges, the court was not in error in denying the request.
There is no merit in Alvarez’ contention that the court committed an abuse of discretion in denying his motion for a severance on the foregoing ground. The legislative policy in favor of joint trials of jointly charged defendants (
Finally, the record fails to support Alvarez’ contention that there was no evidence of the corpus delicti of the crime of kidnaping for the purpose of robbery. When the victim was found his hands were tied behind his back with pieces of his T-shirt, and the cloth did not show a pattern of holes corresponding to the wounds on the back. Such evidence supports an inference that the shotgun blasts were fired after the shirt was removed. The body, moreover, was on a ledge some 15 feet below the top of the excavation, and the edge of the latter was 6 to 10 feet from the nearest point to which an automobile could be driven. From this evidence the jury could reasonably infer that before the fatal shots were fired Mitchell was forcibly removed from his car, transported to the dump, and thrown over the edge.
“It is the fact, not the distance, of forcible removal which constitutes the crime of kidnaping in this state.” (People v. Chessman (1951) 38 Cal.2d 166, 192 [238 P.2d 1001]; accord, People v. Monk (1961) 56 Cal.2d 288, 295 [14 Cal.Rptr. 633, 363 P.2d 865]; People v. Wein (1958) 50 Cal.2d 383, 399-400 [326 P.2d 457].)
As noted at the outset, both defendants were seen to enter Mitchell‘s car shortly before the killing, and the car was subsequently found some two miles from the murder scene, mired and abandoned. From these facts “the jury could choose, among various reasonable inferences, the one that a purpose of the abduction was the felonious taking of the property.” (People v. Carter (1961) 56 Cal.2d 549, 561 [15 Cal.Rptr. 645, 364 P.2d 477].) The foregoing evidence thus supplies the prima facie showing necessary to establish corpus delicti. (See People v. Amaya (1952) 40 Cal.2d 70, 76 [251 P.2d 324].)
The judgments are affirmed.
Traynor, C. J., McComb, J., Tobriner, J., Burke, J., and Sullivan, J., concurred.
PETERS, J.—I dissent.
The “totality of circumstances” rule in reference to the admissibility of a confession of a minor, adopted by the majority, is based on outdated concepts, disregards the recent cases in this field, and deprives the minor of the constitutional
We are now required to apply this new approach to the confessions of minors in criminal courts insofar as waiver of their constitutional rights is concerned. It is crystal clear to me that the “totality of circumstances” rule has not afforded the protection to minors to which they are constitutionally entitled. The exhaustive collection of cases all decided under the coercion concept cited in the majority opinion is the most eloquent argument that can be made in favor of repudiating the thinking upon which those cases are based. It is my view that if minors are to be given the full advantage of modern concepts to which they are constitutionally entitled we must hold that no minor may waive his constitutional rights unless he has the advice and counsel of an adult, such as a parent, guardian or other responsible person. To state the concept more specifically—I believe that no minor may waive his constitutional right to remain silent, and his right to counsel,
The facts of the instant case are not in dispute. Both defendants are minors. Both have confessed to murder, implicating not only themselves, but also their fellow defendant. Defendant Lara was just over 18 when the crime was committed, and somewhat sophisticated in police station procedure. The death penalty was imposed by the jury. His conviction in large part was predicated on his confession. Defendant Alvarez was 17 years and 11 months of age, and so was given a life sentence. His conviction, too, is largely based on his confession. He, as the prosecution conceded, has an I.Q. of between 65 and 71, and a mental age of 10 years and 2 months. Both boys, after their arrests, were separately given the Dorado warnings (People v. Dorado, 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361]). They both stated that they understood the warnings. They then made complete confessions. No adult was present other than the police. Had the warnings been given to an adult under similar circumstances a waiver would probably have resulted. (People v. Sanchez, 65 Cal.2d 814, 824 [56 Cal.Rptr. 648, 423 P.2d 800]; People v. Thomas, 65 Cal.2d 698, 704-705 [56 Cal.Rptr. 305, 423 P.2d 233].) The question is whether we should apply to minors the same rules that apply to adults. I think not.
Traditionally minors have been the special concern of the law. In an adult-controlled society, for their protection, minors are afforded a preferred status. This concept developed in the civil law by the holding that a minor has but a limited capacity to act. Thus he cannot make a binding contract like an adult. This rule is codified in California, the statutes providing that a minor cannot bind himself by contract (
This solicitude for minors, and the protective attitude of the law, exists in many fields besides contracts. Thus, a minor can appear in a civil court only through a guardian. (
This protective mantle has also been thrown about the
It was a natural development of the in parens patriae doctrine to hold, as the courts did, that a juvenile court proceeding was not aimed at punishment but was in fact not a criminal proceeding at all, and was civil in nature. This doctrine, conceived for the purpose of protecting minors, had some unexpected results. One was that, since the guarantees in the Bill of Rights are mainly aimed at protecting rights in criminal cases, minors were deprived of the protection of the Bill of Rights. Thus, as early as 1876 in California minors were denied the right of trial by jury in juvenile cases. (Ex parte Ah Peen, 51 Cal. 280; see for a later decision In re Daedler, 194 Cal. 320 [228 P. 467].) This doctrine also led naturally to the rule expressed in In re Castro, 243 Cal.App.2d 402 [52 Cal.Rptr. 469], that a minor was not entitled to the protection of Escobedo v. Illinois, supra, 378 U.S. 478; People v. Dorado, supra, 62 Cal.2d 338; and Miranda v. Arizona, supra, 384 U.S. 436. Thus, what started out as a doctrine for the protection of minors, became a straitjacket that made of minors second class citizens deprived of constitutional rights.
Concurrently with these developments the courts became increasingly concerned with the possibility of the abuse of the confession process, both as it affects adults and as it affects minors. Thus developed the rule that confessions were inadmissible if coerced. But some courts soon realized that the coercion rule was not a sufficient protection for minors. Thus in Haley v. Ohio, 332 U.S. 596, 599-600 [92 L.Ed. 224, 228-229, 68 S.Ct. 302], the United States Supreme Court held that, although no physical coercion had been used to secure a
It was in this same context that the high court expressed its solicitude toward a 14-year-old boy who had voluntarily confessed in Gallegos v. Colorado, 370 U.S. 49, 54 [8 L.Ed.2d 325, 328-329, 82 S.Ct. 1209, 87 A.L.R.2d 614], when it stated: “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.” (See also Reck v. Pate, 367 U.S. 433 [6 L.Ed.2d 948, 81 S.Ct. 1541].)
This general concern for lack of adult guidance was recognized by the Legislature of California when it adopted section 858 of the Penal Code. It provides: “When the defendant is brought before the magistrate upon an arrest . . . the magistrate must immediately inform him . . . of his right to the aid of counsel in every stage of the proceedings. . . . [A]nd if the magistrate concludes that it is probable that the defendant is a minor . . . he shall immediately either notify the parent or guardian of the minor, by telephone, telegram, or messenger, of the arrest, or appoint counsel to represent the minor.”
Obviously these protections afforded minors in the courtroom would be meaningless if not extended to interrogation upon arrest. When an interrogation at the accusatory stage produces a confession, the minor has, in many cases, had his “trial.” As pointed out in Dorado, quoting from Escobedo: “‘This was the “stage when legal aid and advice” were most critical to petitioner. Massiah v. United States, supra at p. 204 [377 U.S. 201 [12 L.Ed.2d 246, 249, 84 S.Ct. 1199)]. It was a stage surely as critical as was the arraignment in Hamilton v. Alabama, 368 U.S. 52 [82 S.Ct. 157, 7 L.Ed.2d 114], and the preliminary hearing in White v. Maryland, 373 U.S. 59 [83 S.Ct. 1050, 10 L.Ed.2d 193]. What happened at this interrogation could certainly “affect the whole trial,” Hamilton v. Alabama, supra, at p. 54 [7 L.Ed.2d at p. 116], since rights “may be as irretrievably lost, if not then and there asserted, as they are when an accused represented by counsel waives a right for strategic purposes.“’ (People v. Dorado, supra, 62 Cal.2d 338, 348.) Indeed, to deprive the minor at the accusatory stage of the protection considered necessary for his protection at arraignment—which is what the majority here does—is to repudiate the basic reasoning of Dorado and Escobedo. The rule I advocate assures that at no stage of the orderly administration of justice will the minor receive anything less than the full measure of protection to which he, because of his immaturity, is entitled.
The failure of the coercion concept to protect even adults from the abuse of the old confession rule was recognized in Escobedo and Miranda. Now the concepts that the accused must be informed of his constitutional rights and can waive them only by an informed consent have been added to the old
That case involved the very constitutional warnings and the doctrine of waiver here involved in the context of juvenile court proceedings. The court, however, did not so limit its pronouncements. It used language sufficiently broad to indicate its concern with the whole problem of the competency of minors to waive their constitutional rights regardless of the forum adjudicating their competency to do so. In reference to the problem here involved, the court stated:
“We conclude that the Due Process Clause of the Fourteenth Amendment requires that in respect of proceedings to determine delinquency which may result in commitment to an institution in which the juvenile‘s freedom is curtailed, the child and his parent must be notified of the child‘s right to be represented by counsel retained by them, or if they are unable to afford counsel, that counsel will be appointed to represent the child.” (In re Gault, supra, 387 U.S. 1 at p. 41 [18 L.Ed.2d at p. 554, 87 S.Ct. 1428 at p. 1451].) In reference specifically to waiver the court said (p. 55 [18 L.Ed.2d at p. 561, 87 S.Ct. at 1458]): “We conclude that the constitutional privilege against self-incrimination is applicable in the case of juveniles as it is with respect to adults. We appreciate that special problems may arise with respect to waiver of the privilege by or on behalf of children, and that there may well be some differences in technique—but not in principle—depending upon the age of the child and the presence and competence of parents. . . . If counsel is not present for some permissible reason when an admission is obtained, the greatest care must be taken to assure that the admission was voluntary, in the sense not only that it has not been coerced or suggested, but also that it is not the product of ignorance of rights or of adolescent fantasy, fright or de
spair.” In suggesting that the sole test is coercion the majority flies in the face of this language.
At page 49 [18 L.Ed.2d at p. 558, 87 S.Ct. at p. 1455] appears this significant language: “The authoritative ‘Standards for Juvenile and Family Courts’ concludes that . . . ‘Before being interviewed [by the police] the child and his parents should be informed of his right to have legal counsel present and to refuse to answer questions . . . if he should so decide.‘”
California has also been alert to the problem involved. In the report of the Governor‘s Special Study Commission on Juvenile Justice, Part II, page 14 (1960) it is stated: “[I]t cannot always be said that the minor is fully aware of what he is actually admitting to or that the parents are always cognizant of the processes that are involved. In fact, it is indeed ironic that our laws view the competency of a minor to deal with financial matters with such strictness and yet fail to make any notice of such incompetence in a matter involving the minor‘s basic freedoms.”
The Court of Appeal in In re Castro, supra, 243 Cal.App.2d 402, 409, although not recognizing the significance of its language and coming to the wrong conclusion under the facts of that case, expressed the thought under consideration in the following language: “An 8-, 9-, or 10-year-old boy, or even a minor of an age up to majority, is considered by our civil law as incapable of clearly making a binding contract in the same way as an adult; in tort law there are many situations in which a juvenile is not held to the same standard of care as one who has gained his majority; the necessity of guardianship, in connection with the property rights of minors, illustrates that juveniles are not invariably held to adult standards of understanding and judgment. An unaided minor cannot convey his real property, even though he knowingly wishes to do so. How then can he be expected knowingly and effectively to waive his constitutional rights?”
In Harling v. United States, 295 F.2d 161, 163, footnote 12 [111 App.D.C. 174], the federal court stated: “Whenever possible and especially in the case of young children, no child should be interviewed except in the presence of his parents or guardian.”
Thus, the pendulum has shifted. Now the law in the criminal field is approaching the capacity doctrine of the civil law.
It is a reasonable interpretation of these cases to hold that
The majority opinion, in holding that each case of a minor must be decided on the “totality of circumstances” involved, disregards these modern cases, overlooks the modern thinking in this field, and relies on the coercion cases which are concerned primarily with the issue of the voluntariness of the confessions there involved. It mentions only in passing the real issue of the competency of minors to waive crucial and complex rights. The two issues, although related, are substantially dissimilar in nature.
The majority opinion tries to erect an iron curtain between consensual concepts of our civil law and “those provisions of the law governing acts of wrongdoing by a minor.” It then discusses at length the voluntariness of confessions by minors and the ability of minors to withstand police coercion. As indicated, this is now a repudiated approach. It does not come to grips with the real problem involved, which is the intellectual capacity of the minor to waive or contract away his constitutional rights. Thus, the majority opinion clings fast to the old outdated authorities and refuses to recognize the impact and sophistication of the recent criminal rights decisions. It cites and relies upon some 19 cases where the sole issue discussed was coercion, and the issue of waiver and consent was not mentioned. Those cases need not be summarized here. The greater number of them arose and were decided long before the United States Supreme Court came to grips with the idea that warnings and waiver were involved and not only coercion. It is not surprising therefore that they do not contain any enlightened analysis of the question of competency to waive constitutional rights, a subject not yet fully developed by the courts. The coercion cases are simply not in point and are outdated because they are concerned primarily with the conduct of the police. Today the focus of attention has shifted from the conduct of the police to the capacity of the accused. The majority opinion simply ignores this change in focus.
Even in this era when the courts generally did not understand the relevancy of competency as distinguished from the issue of coercion, there were some enlightened judges who
The majority opinion also refers to several cases dealing with the right of a minor to waive counsel on trial in court. These cases are obviously distinguishable because at the time of waiver in court the minor under California law has the benefit and support of a friendly adult.
Two Oregon cases are cited by the majority which decide the precise point at issue adversely to the views expressed in this dissent. (State v. Gullings, 244 Ore. 173 [416 P.2d 311]; State v. Casey, 244 Ore. 168 [416 P.2d 665].) No useful purpose would be served by discussing the facts of those cases. They support the majority. They, like the majority, treat the real problem here involved in a most cursory and inadequate fashion. They, like the majority opinion, are just wrong and should not be followed. They, like the majority, reflect the thinking of an outdated era when coercion, not competency, was the main subject of concern.
The majority hold that the rule of waiver should vary with the age and maturity of each child. I think not. As was said in Harling v. United States, supra, at page 164, footnote 12: “[W]e do not believe that the question of admissibility of the child‘s statements as evidence against him in the District Court should vary from case to case depending on criteria which could at best only partially indicate the child‘s capacity to waive his rights.” Moreover, the proposed rule would place on the police an almost impossible burden, requiring them, on the spur of the moment, to determine the competency and maturity of each child arrested by them.
Certainly, as a matter of federal constitutional law, minors
The problem is a legislative one. The Legislature has repeatedly defined a minor as any person under 21. (
Since the Legislature has fixed 21 as the age of capacity to consent to a binding contract and as the age below which a criminal suspect needs the advice of counsel or a parent or guardian at arraignment, we have no choice but to adopt 21 as the age of capacity to consent unaided to waiver of Dorado rights at the accusatory stage. Until the Legislature determines otherwise, it should be held that 21 is the age below which a suspect is not legally competent to waive his rights without advice of counsel or parent or guardian.
It should be noted that when the Legislature wants to regulate the waiver of constitutional rights it knows how to express its intent. This was dramatically illustrated in the last session of the Legislature by the amendment of section 372 of the Code of Civil Procedure. That is the section that requires a guardian to be appointed for a minor, insane or incompetent person who appears as a party in a civil suit. The amendment reads as follows: “Nothing in this section or in any other provision of this code, the Probate Code, or the Civil Code is
This amendment, passed after the instant case was tried, is, of course, not retroactive, and has no application to the present case. But it is significant for several reasons. In the first place, presumptively, the amendment was intended to accomplish a change in the law. It implies that before the amendment was passed a minor could not waive his constitutional rights, even in a juvenile court proceeding, so a fortiori he could not waive them in a superior court proceeding.
In the second place, the amendment, by limiting its application to juvenile court proceedings, and by its careful reference to certain codes and its failure to refer to the Penal Code, indicates, as clearly as if it had expressed it directly, the intent that the waiver permitted should apply only to juvenile court proceedings. This is, of course, not such a proceeding. The obvious implication is that the Legislature did not intend that a minor could waive his constitutional rights in a superior court trial.
There is still another reason why the judgments should be reversed. The jury was never instructed on the theory so eloquently and strongly argued by the majority. If it be the proper rule that in considering whether a minor has intelligently waived his constitutional rights the “totality of circumstances” must be considered, and that special rules apply and special factors must be considered in such cases, certainly the content of such rules, whether they were complied with, and what factors are involved are questions of fact for the jury. The majority emphasize time and time again that whether a waiver was made depends on the “totality of circumstances” and that that question is one “of fact.” Obviously, if it is a question of fact, and it is a most important one, it should be submitted to the jury on proper instructions. Otherwise, the defendant minors have been deprived of the jury trial guaranteed to them by the Constitution.
It is true that in People v. Sanchez, supra, 65 Cal.2d 814, 827, it was held that the questions of whether the constitutional warnings were given and apparently whether they were waived were for the court and not the jury, but that case conflicts with People v. Eli, 66 Cal.2d 63, 76 [56 Cal.Rptr. 916, 424 P.2d 356], where it was apparently held that when conflicting evidence is introduced on the issues, they
It must be remembered that we are dealing with minors, not adults. The majority state, in fact strongly argue, that whether the minors were warned and the warnings waived is a question governed by special rules and governed by special factors. Certainly the jury should be told what those special rules and factors are or they would not know what they were to determine. The fact defendants were minors was not even mentioned anywhere in the instructions. The jury was given but one general instruction on the issue of the warnings required, and on the issue of waiver. That instruction reads in its entirety as follows:
“You may consider a voluntary admission or confession made to a police officer only if the evidence establishes that before such interrogation:
“(1) the authorities effectively warned defendant of his absolute right to remain silent and of his right to be represented by counsel, and
“(2) defendant knowingly and intelligently waived the right to remain silent and to be represented by counsel.”
Nowhere was the jury told that waiver by a minor of constitutional rights presents special problems and that special factors are to be considered. They should have been so informed. To hold that the finding of the jury is supported under such circumstances, when the jury was not told what it was to consider, was clearly erroneous. That it was prejudicial, is obvious.
The fact defendants did not request instructions on the issue is immaterial. The issue is so fundamental that the court should have given the instructions on its own motion. (People v. Bevins, 54 Cal.2d 71, 77 [4 Cal.Rptr. 504, 351 P.2d 776]; People v. Eli, supra, 66 Cal.2d 63, 76.)
For these reasons I would reverse the judgments.