In rе MICHAEL B., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. MICHAEL B., Defendant and Appellant.
Civ. No. 7423
Fifth Dist.
Dec. 19, 1983.
1073
Hugh B. Fielder, under appointment by the Court of Appeal, and Mary L. Fielder for Defendant and Appellant.
John K. Van de Kamp, Attorney General, Daniel J. Kremer, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, Robert D. Marshall, Eileen Ceranowski and Maureen A. Daly, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FRANSON, Acting P. J.-Appellant, a nine-year-old boy, was declared to be a ward of the juvenile court under
The trial court‘s adjudicatory holding was based in part on appellant‘s trial testimony and six pretrial statements given by appellant during police interrogation. The prosecution argued the inconsistency in the testimony and the statements was evidence of consciousness of guilt.
We reach the following conclusions: (1) The record does not support a finding that appellant‘s waiver of his Miranda2 rights before giving the first five statements was knowing, intelligent and voluntary beyond a reasonable doubt. Because the five statements prejudiced appellant, the judgment of wardship must be reversed. (Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065].) (2) The other evidence against appellant does not constitute “clear proof” that at the time of the shooting appellant understood the wrongfulness of the act charged against him, as required by
THE FACTS
Appellant, nine years old, and the victim John Castro, fourteen years old, were playing together during the afternoon of February 18, 1982. While riding their bikes, appellant and the victim went to Marty D.‘s home where Marty was shooting a BB gun. Appellant was permitted to shoot the BB gun but when he pointed it at the victim, he was told by Marty not to do so. Appellant and the victim then proceeded to shoot the BB gun at a can.
Appellant‘s father kept a .22 caliber rifle in the entryway closet of the family home to “scare off dogs.” The rifle was in a loaded condition with the safety probably off. Although appellant had once shot the rifle, he had never been taught how to use the gun nor had he received any instruction on the gun‘s safety mechanism or on safety rules for handling guns. Nevertheless, appellant‘s father had “mentioned” to appellant that it was unsafe to point a gun at anyone. He had warned appellant to stay away from the gun. Appellant also had been told by his parents not to have playmates in the house when they were absent.
The victim was 18 to 24 inches from the muzzle of the gun when it was fired by appellant. The bullet struck the victim in the center of the chest, piercing the heart.
Appellant was hospitalized after the shooting because he was hysterical, frightened and incoherent. He was hyperventilating. At the hospital, he was given a “shot,” and valium was prescribed to calm him down. Appellant was then taken to the sheriff‘s office with his parents where he was interrogated by Officer Ralph Diaz beginning at 8:15 p.m. The officer described appellant as “a scared little boy.” According to Officer Diaz, he gave appellant his Miranda rights, including the right to have his parents present before and during questioning. Appellant said he understood his rights. Appellant and his parents also signed a written waiver of appellant‘s rights. Appellant was readvised of his rights about one-half hour later before he gave a tape-recorded statement. When appellant was readvised of his rights, he told the officer that he did not understand the right to an attorney. Officer Diaz later testified that he did not know whether appellant understood his rights the first time that they were explained but that appellant acknowledged he understood his rights after they were exрlained the second time.
The officer testified that during the interrogation appellant was “hyperventilating. He was crying. And he was nervous.” According to the officer, this was when appellant was talking about the shooting, “not during the Mirandizing.” Although the officer did not recall being told the type of medication appellant had taken, he acknowledged it was mentioned.
Appellant‘s mother Janet testified that she was present at appellant‘s interrogations. Both times appellant was advised of his Miranda rights at the first interrogation; she told him what to say by nodding her head. Janet also noted that appellant had never been in trouble before and had had no prior
Janet never explained to appellant any of the rights related by Officer Diaz.
Janet also testified that she had been told by Sergeant Robert Byrd, a Tulare County Deputy Sheriff and a lifelong friend who was at the house after the shooting before the first interrogation, that she was “not to worry.” Specifically, Sergeant Byrd “had told me at the house before Mike wеnt to the station . . . that they pretty much knew what happened, but Mike is so hysterical that they want him to calm down, and to not worry that they pretty well knew what happened.” (Italics added.) Janet asked Sergeant Byrd what did happen and “[h]e says well, at this point I would rather not say. We will talk to him later down at the station when we finish up here.” Janet had known Sergeant Byrd since she was a child.
The court ruled on the Miranda objection as follows: “Well, unfortunately the Court, in assessing the voluntariness of a Miranda waiver with respect to minors, the Court has to weigh a number of factors.
“And the Court has to determine whether in fact the statements made by the minor were as a result of his free will, and also a rational intellect. But this has to of course, in my opinion, be viewed in light of the minor‘s even by this standard allowing for his sophistication in light of his sophistication and his age.
“And the Court can really find nothing on this record to indicate that it wasn‘t. There was no promise of leniency made here by the officer, not even the slightest hint of that.
“What the minor‘s decision in this matter may have been, may have been prompted by his mother, but it doesn‘t show that even her actions in that part, that she had in fact been made a police agent by a promise to her of any special treatment for her son, so that she in doing these things was doing it entirely on her own.
“And I fail to see how that had any effect of overbearing this minor‘s choice by the promise of any special treatment or any other improper matters.
Appellant gave six different statements to the police. In the first statement appellant said he had shown his dad‘s gun to the decedent, and it went off as he put it away.
After Officer Diaz said he did not believe appellant‘s story, a second statement was given approximately 30 minutes later at 9:40 p.m. without the benefit of further Miranda warnings. Appellant said that he was holding the rifle with his right hand over the trigger housing while the victim was looking at an Atari set, “and that as he turned to turn away from the victim . . . the rifle discharged.”
The third statement was taken 10 minutes after the second statement, again without any further Miranda warnings. In this statement, appellant admitted that he was pointing the gun at the victim, showing it to him when the rifle discharged as he turned to put the rifle away.
A fourth statement without further Miranda warnings was taken late that evening at about 11:30 to 12 p.m. at appellant‘s home, but differed little in substance from the earlier statement.
A fifth statement was taken at the sheriff‘s office on February 19th, the day after the shooting. There was some talk about appellant taking a lie detector test. Again, appellant was not advised of his Miranda rights. At this interview, appellant said he told the victim to leave the Atari set alone, but the victim paid no attention to him. Appellant pointed the rifle at the victim to scare him away but this had no effect on the victim. Appellant had his hand on the trigger and “the rifle went off, or dischargеd accidentally at the time he was pointing the rifle at the victim.” Appellant said he did not mean to shoot him. During the interview, appellant started hyperventilating, had shortness of breath and was weeping; he again had to be taken by ambulance to the hospital.
After the February 19th interview, the officers called appellant‘s parents to tell them appellant would have to be brought down to the station again so that he could be “booked into juvenile hall for investigation of homicide.” When appellant was taken to the station on February 22, a sixth and final interrogation was conducted on tape. Inexplicably, this questioning of
Appellant testified on his own behalf. He stated that the day of the shooting was the first time he had ever really talked with or played with the decedent. Prior to that time, appellant had only seen the decedent riding his bike and had said “hi” to him. The two boys rode their bikes to Marty B.‘s house where they shot a BB gun. Marty had a motorcycle, and appellant helped Marty fix it. The decedent then followed appellant to his house. Once inside, they began to talk about guns. Appellant brought his father‘s gun out of the closet to show to the decedent. The decedent then walked over to the Atari set. Appellant then asked the victim to leave because “my mom and dad were gonna be home.” He asked the older boy to leave “two, three times.” Contradicting his prior statements, Appellant said the decedent never threatened him. Appellant further testified that right after he asked the victim to leave, the gun went off while it was pointed at the victim. In answer to a question as to how it happened that he pressed the trigger, appellant said, “I had my finger in it, and I just barely pushed it.” “Did you push it because you wanted to push it?” “No . . . it went off.”
Appellant did not know the gun was loaded, and he had not checked the safety. When the gun was fired, the stock was under appellant‘s arm and not on his shoulder.
Appellant testified he had shot the gun once before, “a long time ago.” Appellant did not know how to tell whether the safety was on or off.
Dr. Bindler opined that the reason appellant gave so many versions of the facts was because he panicked and was in shock. From the information given to the doctor which included the statements made to the police, the hospital records and the interviews with the minor, the doctor concluded that immediately after the shooting appellant was extremely frightened to the point of panic. When appellant discussed the incident with the psychologist during the interviews he began to demonstrate the same kinds of symptoms of panic, perspiration, hyperventilating, becoming extremely nervous and uneasy. Appellant was most concerned that his parents would be angry at him for going against the rules about not having anyone in the house and not playing with the guns his father kept at home.
Dr. Bindler further commented he did not find appellant to be a criminal or criminally minded youngster. “I didn‘t find him to be outside the specific incident in which he is involved, I didn‘t find any evidence of anti-social behavior or of—of extreme hostility or anger that Michael has for anyone. [¶] Instead, I found a frightened, a frightened little boy.”
Dr. Bindler stated that in the general sense appellant was capable of understanding the difference between life and death, but not in the same way an adult does, i.e., a nine year old truly does not understand the permanence of death: “I don‘t think that Michael had a clear understanding that—the possibility for this kind of outcome existed at the time.”
On cross-examination, Dr. Bindler amplified the difficulty a child has in dealing with death: “Children think of life as—and of death in terms of the games they play and the television programs they see, and the things that go on around them in the general world, not in the direct sense of permanence of the destruction that happens, that can happen in certain situations. . . . And it‘s not uncommon for children of nine, who have lost relatives to death in one way or another, to wonder about where their relatives are, and when they‘ll come back.”
Dr. Bindler agreed that a child cоuld understand that fire burns, even though he has not had his hand over the fire. In the same way he can understand that a gun mishandled can kill, even though he has only seen that on television. However, Dr. Bindler pointed out: “The fact that a youngster of the age of nine can be aware that a gun kills does not neces-
The court questioned Dr. Bindler concerning whether a nine year old can appreciate the danger of his personal conduct with respect to his actions. Dr. Bindler responded that that was questionable. Nevertheless, Dr. Bindler opined that appellant recognized that it was dangerous behavior to point a gun at a playmate. The doctor, however, qualified the latter statement by declaring: “I don‘t believe that Michael had a—the kind of mature appreciation for the ultimate consequences of his dangerous behavior although I‘m certain that he was aware that holding the gun was dangerous.”
DISCUSSION
In California, a minor, like an adult, may waive his Miranda rights provided the waiver is voluntary, knowing and intelligent. (People v. Lara (1967) 67 Cal.2d 365, 389 [62 Cal. Rptr. 586, 432 P.2d 202]; In re Gault (1967) 387 U.S. 1, 55 [18 L.Ed.2d 527, 561, 87 S.Ct. 1428].) Whether a minor has made such a waiver depends upon his age, education, intelligence and his experience and familiarity with the law; in other words, upon the “totality of the circumstances.” (People v. Lara, supra, 67 Cal.2d at p. 389; In re Dennis M. (1969) 70 Cal.2d 444, 462-463 [75 Cal.Rptr. 1, 450 P.2d 296].) This “totality” approach meets the federal constitutional standard. (Fare v. Michael C. (1979) 442 U.S. 707, 725 [61 L.Ed.2d 197, 212, 99 S.Ct. 2560].)
In keeping with the philosophy that the immaturity and vulnerability of young juveniles place them at a greater disadvantage in their dealings with the police (see Gallegos v. Colorado (1962) 370 U.S. 49, 54-55 [8 L.Ed.2d 325, 329, 82 S.Ct. 1209, 87 A.L.R.2d 614]), the United States Supreme Court has declared that any purported waiver of a minor‘s right against self-incrimination must be carefully scrutinized: “The participation of counsel will, of course, assist the police, Juvenile Courts and appellate tribunals in administering the privilege. If counsel was not present for some permissible reason when an admission was obtained, the greatest care must be taken to assure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair.” (In re Gault, supra, 387 U.S. at p. 55 [18 L.Ed.2d at p. 561].)
The rules for determining whether a minor‘s Miranda waiver and confession are voluntary are summarized in In re Peter G. (1980) 110
Finally, “it bears emphasis” that in reviewing the finding of the lower court, the reviewing court is obligated to exаmine the uncontradicted facts and make an independent determination whether the trial court‘s finding of voluntariness is supported by the requisite quantum of evidence. In exercising this function, the reviewing court recognizes that the burden is on the prosecution to show that a confession (or waiver) was voluntarily given without previous inducement, intimidation or threat. (In re Peter G., supra, 110 Cal.App.3d at p. 583.)
The evidence is uncontradicted that appellant initially waived his Miranda rights and signed the written waiver form on February 18 because his mother told him to do so. Appellant did this because he was scared, and he trusted his mother. Yet the record does not show that the parents had any opportunity to discuss with Michael the meaning and consequences of a waiver of his rights before the first waiver оstensibly occurred. Nor does the record show that appellant ever discussed his rights with his parents before the second waiver took place. All that the mother knew at the time of both waivers was that her lifelong friend Sergeant Byrd of the Tulare County Sheriff‘s office had advised her that the sheriff‘s office “knew pretty much what had happened, but not to worry . . . .” (Italics added.) This statement rationally may be construed to suggest to appellant‘s mother that if appellant would waive his Miranda rights and submit to interrogation by the officers that everything would turn out all right, i.e., that appellant would not be prosecuted for wrongdoing. The officer‘s advice obviously
The evidence is also uncontradicted that after the shooting appellant was frightened, incoherent and hyperventilating and had to be taken to the hospital for treatment to calm him down. Yet no medical evidence was presented below as to the nature of the “shot” or the quantity of the valium administered to appellant at the hospital. Nor was any medical testimony presented as to the effect of such treatment on appellant‘s ability to comprehend his rights and the consequences of waiving those rights. This is a glaring omission in the light of the heavy burden placed on the prosecution to prove a valid waiver and the concomitant duty placed on the trial court to take the “greatest care” to assure that appellant‘s waiver and admissions were voluntary, i.e., the product of his free will and rational intellect. (In re Gault, supra, 387 U.S. at p. 55 [18 L.Ed.2d at p. 561]; In re Peter G., supra, 110 Cal.App.3d at pp. 582-583.)
Officer Diaz acknowledged that appellant still was a “scared little boy” when he was given his Miranda rights and signed the waiver form at 8:15 p.m., a fеw hours after the shooting. That appellant also was frightened and emotionally distraught during the second ostensible waiver is indicated by the fact that he started crying and hyperventilating when he was interrogated about the shooting. Moreover, when the officer was about to take the statement on tape (approximately one-half hour after appellant‘s initial advisement and waiver), appellant stated that he did not understand what it meant to be represented by an attorney. At this point, the record becomes totally confusing as to when appellant finally acknowledged that he understood what an attorney was. Even Officer Diaz admitted that “he didn‘t know” whether appellant had understood his right to an attorney at the timе of the initial waiver.
Although appellant was of normal intelligence for a nine year old, he had had no prior experience with law enforcement.4 Appellant was confused
Thus, under all of the circumstances, the prosecution failed to prove beyond a reasonable doubt that appellant made a knowing, intelligent аnd voluntary waiver of his rights before he was interrogated five different times on February 18 and 19.
Since the five statements given by appellant on February 18 and 19 were used against appellant at his juvenile trial, we are required to assess the prejudicial effect of the statements under the standard of Chapman v. California, supra, 386 U.S. 18. (People v. McClary (1977) 20 Cal.3d 218, 230 [142 Cal.Rptr. 163, 571 P.2d 620].) To avoid reversal, respondent must show that the error in admitting the statements was harmless beyond a reasonable doubt. (Ibid.) This cannot be done since the statements were utilized by the trial court to show appellant‘s consciousness of guilt in shooting the victim.
We turn now to the questions whether (1) appellant‘s sixth statement,5 his trial testimony and the other evidence in the record meet the “clear proof” standard required to show that appellant knew the wrongfulness of the act charged against him as mandated by
We equate the
The Attorney General‘s argument that because appellant had been told to stay away from the rifle and not to point a gun at anyone (once by his father and once by Marty B. when the victim and appellant were shooting the BB gun), and because appellant admitted in statement number six and at trial that he pointed the gun at the victim to get him to leave the house and that
Appellant was not charged merely with pointing a gun at the victim or brandishing a weapon; rather, he was charged with committing involuntary manslaughter—the killing of a human being with criminal negligence. People v. Penny, supra, 44 Cal.2d at page 879 explains that something more than ordinary negligence is needed to constitute a lack of “due caution and circumspection” as used in
To impose criminal liability for homicide caused by negligence other than vehicle cаses, the negligence must be aggravated, culpable, gross or reckless. The accused‘s conduct must be such a departure from what would be the conduct of an ordinarily prudent, careful person ““‘as to be incompatible with a proper regard for human life, or, in other words, a disregard of human life or an indifference to consequences.‘“” (Id., at p. 879, italics added.)
It is axiomatic that before a child may act without a proper regard for human life in the context of an unlawful homicide, he must fully appreciate the consequences of taking a life. He must appreciate the permanence of death. This requires more than knowledge gained through playing games or watching television that people who are shot with guns fall down and are “dead.” Dr. Bindler testified that appellant as a normal nine year old did not understand the permanence of death; he did not appreciate the consequences of threatening the victim with the gun. Although the trial court was free to reject the doctor‘s opinions, the prosecution introduced no expert testimony to the contrary, and we find no solid, credible evidence in the record to support a finding that appellant understood the possibly fatal consequences of his actions.
Nor can appellant‘s appreciation of the wrongfulness of the act charged against him be inferred from the bare commission of the act itself. This would frustrate the purpose of
Appellant was five years younger than the victim; this is a significant age difference, particularly in thе eyes of a nine year old and especially where the boys had met only shortly before the shooting. Appellant tried to get the older boy to leave his home because appellant was afraid his parents would soon arrive and find that he had violated the rule against having visitors at home during the parents’ absence. Appellant pointed the gun at the older boy and pulled the trigger hoping to scare the older boy into leaving the house. Appellant thought the gun was unloaded and did not
Intertwined with appellant‘s incapacity to appreciate the wrongfulness of his conduct insofar as committing involuntary manslaughter is the question whether the properly admitted evidence proved beyond a reasonable doubt that appellant was guilty of involuntary manslaughter. In Jackson v. Virginia (1979) 443 U.S. 307, 317-318 [61 L.Ed.2d 560, 572-573, 99 S.Ct. 2781], the United States Supreme Court held as a matter of due process that the standard for evaluating the sufficiency of evidence in a criminal case is whether any rational trier of fact could find guilt beyond a reasonable doubt. The principles of appellate review as announced in Jackson v. Virginia, supra, are applicable to the appellate courts in considering the sufficiency of the evidence admitted in the juvenile proceeding. (In re Roderick P. (1972) 7 Cal.3d 801 [103 Cal. Rptr. 425, 500 P.2d 1]; In re Frederick G. (1979) 96 Cal.App.3d 353, 365 [157 Cal.Rptr. 769].)
Since the prosecution failed to sustain the burden of proving that appellant had the legal capacity to commit the crime charged, it necessarily follows that a rational trier of fact could not find appellant‘s conduct so aggravated, culpable, gross or reckless as to be “incompatible with a proper regard for human life” as required by People v. Penny, supra, 44 Cal.2d 861.
The Attorney General‘s reliance on In re T.R.S. (1969) 1 Cal.App.3d 178 [81 Cal.Rptr. 574] wherein the trial court upheld an involuntary manslaughter conviction of an 11-year-old boy is misplaced. Not only is there a two-year age difference between the T.R.S. defendant and appellant, the facts in T.R.S. are totally different. There, the minor had been repeatedly warned not to touch the guns (a shotgun and .45 caliber pistol) and not to play with them; his father told him “a gun is dangerous at all times,” and even if “you know they‘re unloaded, treat them as though they are loaded because they are dangerous.” In spite of these warnings, the boy played with the guns outside the house. The minor‘s brother again told him to take the guns back into the house and put them away, but the minor came back outside with the .45 caliber automatic pistol. On the way out of the house he pulled back the hammer on the gun which cocked the pistol; when on the outside the victim asked the boy if the gun was real, the boy replied it was a real
The judgment is reversed. Since we find the evidencе to support the wardship insufficient as a matter of law, further proceedings are barred by the double jeopardy clause. (U.S. Const., Fifth Amend.; Burks v. United States (1978) 437 U.S. 1, 10-11 [57 L.Ed.2d 1, 9, 98 S.Ct. 2141]; In re Johnny G., supra, 25 Cal.3d 543, 548-549.)
Hanson (P. D.), J., concurred.
CAETON, J.,* Concurring and Dissenting.—I agree that the judgment must be reversed for the reason the nature, quality and effect of the substances administered to this nine year old are unknown. In light of this omission, no one can say with any degree of certainty that there was a valid waiver or that appellant‘s admissions were voluntary.
I respectfully dissent from the remainder of the decision.
*Assigned by the Chairperson of the Judicial Council.
Notes
Furthermore,
In any event, we need not decide the issue directly since the prosecution‘s evidence of appellant‘s capacity to commit involuntary manslaughter in the present case falls far short of the “clear and convincing” standard of proof.