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Spence v. Hickman

May 5, 2009



Petitioner is a state prisoner proceeding through counsel with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 1998 judgment of conviction entered against him on June 4, 1998*fn1 in the Sacramento County Superior Court on charges of first degree murder and second degree robbery, and the jury found the existence of a special circumstance in that petitioner committed the murder in furtherance of the robbery, and found that the principal in the felony was armed with a firearm. Because petitioner was 16 years old at the time of the crime, the trial court exercised its discretion and sentenced petitioner to state prison for a term of 25 years to life with the possibility of parole for the murder conviction, plus a one-year enhancement for the section 12022, subdivision (a)(1) finding. The imposition of sentence on the robbery conviction was stayed.

Petitioner seeks relief on the following grounds: (1) denial of due process and the privilege against self-incrimination by errors in adjudicating petitioner's motion to exclude his custodial statement as a violation of his Miranda*fn2 rights; (2) insufficient evidence of first degree murder; (3) insufficient evidence of special circumstances; (4) ineffective assistance of counsel in failing to investigate and present evidence of petitioner's strongest defense, i.e. that his discussions with Smithson amounted only to mere preparation not amounting to aiding and abetting; (5) petitioner's right to testify was violated by the court's order that Smithson's attorney could cross-examine him and by the ineffective assistance of counsel in failing to investigate sufficiently to make an informed decision whether petitioner should testify under these circumstances; (6) ineffective assistance of counsel by counsel's failure to request a jury instruction that the evidence of petitioner's mental deficiencies and drug usage was relevant to determine whether petitioner harbored the mental state of an aider and abettor; and (7) deprivation of due process by an erroneous felony murder instruction that reduced the prosecutor's burden of proof beyond a reasonable doubt and misstated the elements necessary to be proven.

After careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.


The case against both defendants was prosecuted in a single trial but before dual juries. On June 4, 1998, one jury convicted [petitioner] of first degree murder (§ 187, subd. (a)) and second degree robbery (§ 211). The jury found the existence of a special circumstance in that [petitioner] committed the murder in furtherance of the robbery (§ 190.2, subd. (a)(17)), and found that a principal in the felony was armed with a firearm (§ 12022, subd. (a)(1)). Because [petitioner] was 16 years old at the time of the crime, the trial court exercised its discretion under section 190.5, subdivision (b), and sentenced [petitioner] to state prison for a term of 25 years to life with the possibility of parole for the murder conviction, plus a one-year enhancement for the section 12022, subdivision (a)(1) finding. The court stayed imposition of sentence on the robbery conviction pursuant to section 654.

On June 8, 1998, the other jury convicted Smithson of first degree murder (§ 187, subd. (a)), attempted robbery (§§ 211, 664), and of being a convicted felon in possession of a firearm (§ 12021). The jury found the existence of a special circumstance in that Smithson committed the murder in furtherance of the robbery (§ 190.2, subd. (a)(17)), and found that Smithson personally used a firearm in the commission of the crimes (§ 12022.5, subd. (a)). The trial court sentenced Smithson to life imprisonment without the possibility of parole for the murder conviction and special circumstance finding. The court also sentenced him to 10 years for the gun-use finding relating to the murder count and five years for the prior-conviction finding. The court stayed imposition of sentence on the other convictions and the gun-use finding on the robbery count pursuant to section 654. Both defendants timely appealed.

A. Evidence Submitted to Both Juries

On the morning of April 18, 1997, 16-year-old Tonelli burglarized a home in the Orangevale area of Sacramento County. He stole a number of items, including a butterfly knife and $1,000 in cash consisting of nine $100 bills and two $50 bills. At about 10 a.m., Tonelli went to the house of a friend, Melissa Johnston, to share the news of his new wealth. Johnston saw Tonelli count the money and put it in his wallet. Tonelli left Johnston's home around noon on Johnston's bike headed for 7175 Woodmore Oaks where both [petitioner] and Smithson resided ("[petitioner's] residence"). Before leaving, Tonelli informed Johnston he would return later so he could take his friends to the mall and spend money on them. Witnesses described [petitioner's] residence as a "crash pad" where a number of acquaintances of [petitioner] and his family lived at various times and used illegal drugs. Barbara Spence, [petitioner's] mother, owned a .38 caliber revolver which she kept on a shelf inside the headboard of her bed and behind her pillows fully loaded with five bullets. She also kept an ammunition box on her headboard. The box held 60 bullets. At that time, it contained 54 bullets. Five of the 60 were loaded in the gun, and a sixth had been previously fired. When she left for work that morning, she locked her bedroom door, as was her custom.

Along the way to [petitioner's] residence, Tonelli met Frank Cianciolo, a house-mate of [petitioner] and Smithson. Tonelli told Cianciolo he was going to [petitioner's] residence and asked if [petitioner] was home. When Cianciolo informed him [petitioner] was home sleeping, Tonelli said he knew that because he had just spoken with Smithson by telephone.

At approximately 3:30 that afternoon, another resident of [petitioner's] residence, Aaron Umfleet, and his girlfriend, Marshelle Birchman, arrived at [petitioner's] residence to wash their laundry. Tonelli was there when they arrived. Umfleet informed Tonelli he did not have money he owed Tonelli, but Tonelli told him "don't trip." Tonelli stated he had $1,000 and fanned a large amount of cash before Umfleet.

Tonelli showed Umfleet a small baggie of methamphetamine and offered it to Umfleet. Smithson, however, stated Tonelli had already promised to give the drugs to him. Tonelli agreed, and did not give the drugs to Umfleet. Instead, Tonelli agreed to give Umfleet $150 to buy drugs, resell them at a profit, and then pay Tonelli back. During his time at [petitioner's] residence, it appeared to Umfleet that Smithson did not let Tonelli out of his sight.

At about 3:50 p.m., Birchman told Umfleet they had to leave, even though they had not yet washed their laundry. Smithson, who appeared to Umfleet to be "jacked up" on methamphetamine, also told Umfleet and Birchman at least three times they had to leave immediately. Smithson asked Umfleet to pick up some money for him. Umfleet replied he did not understand, but Smithson stated Birchman would understand.

Birchman, however, stated Smithson asked them to leave because a drug transaction was about to occur in the house and he needed them to leave for about 30 minutes. He told them he would give them $50 to give him a ride somewhere when they came back. Smithson had not offered that much money for a ride before.

As Umfleet and Birchman left, [petitioner] was sitting in his bedroom smoking marijuana. He was wearing pants and a white T-shirt at that time. Tonelli walked Umfleet and Birchman outside with Smithson following behind them. Tonelli then gave Umfleet the $150. When Umfleet and Birchman left, Tonelli, [petitioner], and Smithson were the only people they knew to be inside [petitioner's] residence at that time.

At some point after 4 p.m., [petitioner] arrived at the home of Jessica Hitson, located three houses away from [petitioner's] residence. [Petitioner] was crying. He was wearing pants but not a shirt, and was carrying his shoes. He did not have any blood on him. Hitson let [petitioner] into her house, and at 4:38 p.m. she telephoned "911."

Meanwhile, Smithson had placed a "911" telephone call at 4:36 p.m. In his opening brief, but without citing to the record, Smithson claims he was frantic during the call and told the operator Tonelli had been shot. He also mentioned Russian Roulette. The operator told Smithson to place a towel on Tonelli's neck to stop the bleeding.

Sheriff's deputies arrived at [petitioner's] residence shortly thereafter. They found Smithson in [petitioner's] bedroom kneeling over Tonelli with his right hand on Tonelli's neck. Tonelli was laying on his back on a mattress and was bleeding heavily. Smithson was asking for help and saying, don't die on me." Deputies noticed a handgun on the floor about five feet away from Smithson.

A deputy took custody of Smithson and placed him in the backseat of a patrol car. Smithson was frantic, crying, and had blood on his hands and shirt. While being escorted to the car, Smithson said, "I didn't mean it, we were just fooling around" and "it was an accident." When he first sat in the car, Smithson was concerned about the blood on his hand and asked the observing deputy to "please get this shit off me." When the deputy said he couldn't help him, Smithson repeated, "Oh God, help me please, oh, shit." Smithson stayed in the car for approximately two-and-a-half hours. during that time, he made the following statements: "Is he going to be all right? Can you call and see if he is going to be all right? Please clean me up. I fucking told him. I fucking told him. Can you find out how he is? Let me out of here. Am I under arrest? Where did they take him? Where is he at? Please call my mom. Am I under arrest? Handcuff me or something. Why did this happen? If they put my face on TV I'll sue them. Please get me something to clean this off. I need to wash this off. Damn it, get this off me, please. What was he thinking?" When a television cameraman started filming Smithson through the car window, Smithson said, "Stupid, stupid, stupid, as stupid as, mother fucker, I have enough problems, asshole."

By the time paramedics arrived, Tonelli had died. Deputies recovered various items from the body, including a butterfly knife and a baggie of methamphetamine. Deputies also recovered Tonelli's wallet, but there was no money in it. Deputies, investigators and witnesses were unable to find any money at [petitioner's] residence.

At 4:44 p.m., another deputy reported to Hitson's home and found [petitioner] sitting on the floor crying and talking incoherently.

The deputy detained [petitioner] in the rear seat of his patrol car and returned to [petitioner's] residence.

Subsequently, the deputies performed gunshot residue tests on [petitioner] and Smithson. The tests revealed only one particle of possible gunshot residue on the back of [petitioner's] left hand, but he had washed his hands prior to the test. Smithson's hands had blood on them. They also had gunshot residue particles, indicating he had either discharged a firearm or had been close to a firearm when it discharged. After completing the residue tests, deputies transported [petitioner] and Smithson to the sheriff's station in downtown Sacramento.

At [petitioner's] residence, deputies analyzed the blood found in [petitioner's] bedroom. They also found blood on the door handle and deadbolt on the inside of the front door of the house. They collected, among other items, the handgun, determined to be a .38 caliber Rossi revolver, a butterfly style knife, and a box of ammunition. The gun contained one spent shell casing. Smears and droplets of blood were on the gun which were determined to have been caused by back spattering from a high-impact or close contact gunshot wound. The droplets of blood on the gun and the back of Smithson's hands, along with the residue test results, were consistent with Smithson firing the weapon.

Forensic evidence demonstrated Tonelli was shot in the upper left neck. The gun was held so close to Tonelli's neck it left an imprint. The bullet traveled left to right, front to back and downward at an angle of about 45 degrees. It struck the right carotid artery, and exited out the back of the upper right arm. The pathologist who conducted the autopsy concluded the wound was not self-inflicted because the bullet's path angled downward into the neck, not upward into the head as most self-inflicted gunshot wounds in the neck tend to be.

B. Additional Evidence Submitted to [Petitioner's] Jury

Before [petitioner's] jury only, Hitson testified that after she let [petitioner] into her house, [petitioner] informed her Smithson had shot Tonelli. She asked [petitioner] if he had called the police yet, but he had not. [Petitioner] said Smithson was going to call the police and say Tonelli shot himself. Hitson then called "911" and [petitioner] joined in the phone conversation. After the phone call, Hitson gave [petitioner] a T-shirt to wear.

During the "911" telephone call, [petitioner] informed the operator that Smithson shot Tonelli. [Petitioner] had not seen what had happened because he had been in the bathroom. Smithson, though, had told [petitioner] that Smithson was going to take some money from Tonelli, and Tonelli grabbed the gun. Other than that, [petitioner] did not know what happened.

Before [petitioner's] jury only, the deputy sheriff who reported to Hitson's residence, Greg Gillum, testified that [petitioner] explained he had been at [petitioner's] residence with Smithson when Smithson received a phone call from Tonelli. Then Smithson asked [petitioner] if [petitioner] wanted to "come up" on some money. [Petitioner] interpreted that statement as meaning Smithson was going to take money from Tonelli. About 20 minutes after Tonelli arrived at [petitioner's] residence, [Petitioner] went into the bathroom. While there, [petitioner] heard what he thought was a loud knock on the wall. Smithson then came running in saying, "I shot him, I shot him. He grabbed for the gun, and I shot him." [Petitioner] saw what happened, then ran to Hitson's home. [Petitioner] informed Gillum the gun was his but it was not normally kept in his room. Gillum then detained [petitioner] in the rear seat of his patrol car for about an hour.

At the sheriff's station that evening, [petitioner] signed a form waiving his rights under Miranda, and gave a statement to a detective. He was videotaped while making his statement. [Petitioner's] jury, but not the Smithson jury, viewed the videotape and received a transcript of the statement. In his statement, [petitioner] said he had been sleeping when Smithson awoke him and asked if he wanted to "come up" on $500. Smithson said Tonelli had just called and was coming over with $1,000.

They discussed ideas about how to get the money from Tonelli. Ultimately, [petitioner] said he knew how to do it. He then walked to the door of his mother's bedroom, used a butter knife to open the locked door, and retrieved her gun from her bed. [Petitioner] told Smithson he would use the gun to make Tonelli empty his pockets and give them the money and then make him leave. Smithson nodded in agreement.

They went back to [petitioner's] room where [petitioner] put the gun under his pillow and laid down on it. About five minutes later, Tonelli arrived. Smithson let Tonelli in, they talked for a few minutes, and then walked back to [petitioner's] bedroom where [petitioner] was still laying on his bed. Tonelli showed them some of the money and put the cash back in his wallet. Tonelli said he only had $900 then. They engaged in some drug use. [Petitioner] asked Tonelli to retrieve the phone for him so he could call his girlfriend, which Tonelli did.

Smithson suggested Tonelli bring Tonelli's bike into the house so it would not be stolen. When Tonelli left the room to do so, [petitioner] informed Smithson he did not want to go through with their plan. But [petitioner] asked Smithson if Smithson was going to "do it." Smithson said "Yeah" and asked for the gun. [Petitioner] handed him the gun.

Smithson stood up and placed the gun behind the waistband of his pants and under his shirt. Shortly thereafter, Tonelli walked back into the bedroom. [Petitioner] then excused himself so he could use the bathroom, in part because he had to and also because he did not want to be present when Smithson robbed Tonelli. [Petitioner] went into the bathroom and shut the door behind him. After urinating, he turned on the water in the sink to wash his face and run water through his hair. While the water was on, he heard a "real hard thump on the bathroom door." While [petitioner] was looking for a towel, the bathroom door flew open and Smithson came in yelling, "I shot him. I shot him. He grabbed the gun. It ain't my fault. It ain't my fault. He grabbed the gun. He grabbed the gun."

Yelling "no, no, no," [petitioner] went back into his bedroom, grabbed his shoes, and saw Tonelli lying face-up on the bed choking on blood. Smithson still had the gun in his hands, and was wiping it off with his shirt. [Petitioner] repeatedly told him to call "911." Smithson said he would, and that he would tell the operator Tonelli was smoking methamphetamine and shot himself. [Petitioner] turned to leave out the front door to go to Hitson's house. While leaving, [petitioner] saw Smithson unload the gun and drop the bullets onto the kitchen table. [Petitioner] admitted he knew his mother's gun was loaded when he retrieved it. He also stated that even though he did not want to participate in the robbery, he did not suggest that they not commit the act because "$900 sounded good" to him. Despite not wanting to use the gun on Tonelli, [petitioner] still believed Smithson would split the money with him. [Petitioner] stated he and Tonelli were friends. Yet [petitioner] wanted to rob Tonelli because [petitioner] was "being greedy" and because Tonelli had stolen from him before. [Petitioner] had not intended to shoot Tonelli, and he never thought about what would happen if Tonelli resisted or reported the crime to the police. (Opinion at 3-13.)

Petitioner filed a timely appeal of his conviction on September 24, 1998. (CT at 863.) Petitioner's judgment of conviction was affirmed by the California Court of Appeal for the Third Appellate District on March 29, 2000. (Answer, Ex. A.) On July 19, 2000, the California Supreme Court denied review. (Pet., at 2; Answer, Ex. B.)

On October 18, 2001, petitioner filed a petition for writ of habeas corpus in the Sacramento County Superior Court which was denied November 13, 2001. (Answer, Ex. C.)

On April 25, 2002, petitioner filed a petition for writ of habeas corpus in the California Third District Court of Appeal which was denied May 2, 2002. (Answer, Ex. D.)

On January 21, 2003, petitioner filed a petition for writ of habeas corpus in the California Supreme Court which was denied September 17, 2003. (Answer, Ex. E.)

The instant petition was filed on September 23, 2003. After resolution of the motion to dismiss, respondent filed an answer to the petition on March 5, 2004. Petitioner filed a traverse on May 5, 2004.


I. Standards for a Writ of Habeas Corpus

Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-406 (2000)).

Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. A federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'") The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002).

Regarding section 2254(d)(2), a state court factual determination is unreasonable if it is "so clearly incorrect that it would not be debatable among reasonable jurists." Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997) (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir. 1996), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997). Factual determinations made by a state court are presumed to be correct, and a habeas petitioner has "the burden of rebutting the presumption of correctness by clear and convincing evidence." Id.

Under the AEDPA, in short, the federal courts "must give the state court's adjudication a high degree of deference." Yung v. Walker, 341 F.3d 104, 109 (2nd Cir. 2003); accord, e.g., Bell v. Cone, 543 U.S. at 455, 125 S.Ct. at 853. However, such "deference does not imply abandonment or abdication of judicial review. Deference does not by definition preclude relief." Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 1041 (2003); see also Hall v. Director of Corrections, 343 F.3d 976, 984 n.8 (9th Cir.2003)("AEDPA, although emphasizing proper and due deference to the state court's findings, did not eliminate federal habeas review.").

Even if a petitioner meets the requirements of § 2254(d), habeas relief is warranted only if the constitutional error at issue had a substantial and injurious effect or influence in determining the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710 (1993). Under this standard, petitioner "may obtain plenary review of [his] constitutional claims, but [is] not entitled to habeas relief based on trial error unless [he] can establish that it resulted in 'actual prejudice.' " Brecht, 507 U.S. at 637, citing United States v. Lane, 474 U.S. 438, 439, 106 S.Ct. 725 (1986).

II. Petitioner's Claims

A. First Claim

Petitioner identifies his first claim as follows: Denial of due process and privilege against self incrimination by errors in adjudicating petitioner's motion to exclude his custodial statement as a violation of Miranda.

(Pet. at 3.) The supporting facts are set forth as follows:

The superior court refused to afford petitioner an evidentiary hearing on his Miranda claim, and erred in denying the motion to exclude on the merits, in light of the evidence that petitioner was a 16 year old youth with mental disabilities at the time of the custodial interrogation and that he did not knowingly and voluntarily waive his Miranda rights.

(Pet. at 3.) Petitioner clarifies that he was "denied a full and fair hearing with respect to establishing the factual basis that he was deceived into speaking with the investigating detective without an attorney" and that, "in any event[,] his will was overborne and the statements were extracted in violation of his privilege against self-incrimination." (Traverse at 3.)

The last reasoned rejection of this claim is the decision of the California Court of Appeal for the Third Appellate District on petitioner's direct appeal. The state court addressed this claim as follows:

[Petitioner] seeks to exclude from evidence his confession to the sheriff's deputy. He claims the trial court committed prejudicial error by finding he voluntarily, knowingly, and intelligently waived his rights to remain silent and to have an attorney present when he gave his statement to the authorities. The People reply that because [petitioner] was not in custody for purposes of Miranda when he gave his confession, he was not entitled to be advised of his rights under Miranda. [The court] concludes [petitioner] was in custody for purposes of Miranda, and he voluntarily and knowingly waived his Miranda rights.

A. Custodial Interrogation

[The court] turn[s] first to the People's claim that [petitioner] was not in custody. "Absent 'custodial interrogation,' Miranda simply does not come into play." (People v. Mickey (1991) 54 Cal.3d 612, 648.) Our Supreme Court recently described how [the court is] to determine whether a defendant is in custody for purposes of Miranda: "The test for whether an individual is in custody is 'objective . . . : "[was] there a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest."' (Thompson v. Keohane (1995) 516 U.S. 99, 112; see also People v. Stansbury (1995) 9 Cal.4th 824, 830.) ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "The question whether the defendant was in custody for Miranda purposes is a mixed question of law and fact. (Thompson v. Keohane, supra, 516 U.S. at pp. 112-113.) 'Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. Once the scene is . . . reconstructed, the court must apply an objective test to resolve "the ultimate inquiry": "[was] there a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." [Citations.] The first inquiry, all agree, is distinctly factual . . . . The second inquiry, however, calls for application of the controlling legal standard to the historical facts. This ultimate determination . . . presents a "mixed question of law and fact" . . . .' (Ibid., fn. omitted.) Accordingly, [the court applies] a deferential substantial evidence standard (People v. Memro (1995) 11 Cal.4th 786, 826) to the trial court's conclusions regarding '"basic, primary, or historical facts: facts 'in the sense of recital of external events and the credibility of their narrators . . . .'"' (Thompson v. Keohane, supra, 516 U.S. at p. 110.) Having determined the propriety of the court's findings under that standard, [the court] independently decide[s] whether 'a reasonable person [would] have felt he or she was not a liberty to terminate the interrogation and leave.' (Id. at p. 112.)" (People v. Ochoa (1998) 19 Cal.4th 353, 401-402.)

The trial court did not make any findings on the issue of custody. Since Miranda does not even come into play unless there was custodial interrogation, and since the trial court decided the issue of waiver on the merits, [the court] necessarily assumes the trial court determined [petitioner] was subject to custodial interrogation. Accordingly, [the court] will accept all facts which support that conclusion and which are supported by substantial evidence as the facts on which the trial court based its decision, and will not engage in resolving conflicting testimony or making determinations of credibility.

The evidence presented at the preliminary hearing demonstrated the following: Deputy Sheriff Gillum contacted [petitioner] first in response to [petitioner's] 911 call. He questioned [petitioner] for about 15 minutes until [petitioner] stated the gun was his and that the gun was normally not kept in [petitioner's] room. At that point, the deputy detained [petitioner] unhandcuffed in the rear seat of his patrol car and drove back to the crime scene. [Petitioner] testified that Gillum told him he had no choice and had to get into his patrol car. [Petitioner] was detained in the patrol car for slightly over an hour, during which time he was within the sight of the deputy, who had left the car. [Petitioner's] mother was not allowed to speak with him while he remained in the car.

This patrol car was designed such that [petitioner] could not get out of the back on his own. The rear doors opened only from the outside, and a barrier separated the back seat from the front seat. [Petitioner] remained in the back seat for approximately one hour until he was removed from the car by two detectives.

Before [petitioner] was removed, Detective Clark Fancher came to the patrol car, sat in the front seat, introduced himself and said he wanted to ask [petitioner] a couple of questions. Fancher asked [petitioner] if his gun was loaded. [Petitioner] said it was not his gun but was his mother's gun, and that it was kept loaded. Then Fancher read [petitioner] his rights in the patrol car. Fancher did not ask [petitioner] at that time if he would give up those rights.

At some point, Fancher told [petitioner] that he wanted to interview [petitioner] downtown at the sheriff's department. Detective Fancher and his partner, Detective Ronald Garverick, took [petitioner] out of the first patrol car. Garverick ordered a gunshot residue test on [petitioner]. He heard from someone at the scene that [petitioner] was 16 years old.

Garverick told [petitioner] "we need to talk to you downtown." He told [petitioner] his partner would take him downtown and he needed to tell "us" the truth. [Petitioner] responded that he would. Garverick testified that [petitioner] did not volunteer to go downtown.

There was conflicting testimony about what, if any, conversations happened between [petitioner], his mother and the detectives after [petitioner] was removed from the first patrol car. During this time, however, the detectives remained at [petitioner's] side. Fancher directed [petitioner] to get into the front seat of Fancher's unmarked vehicle. Fancher drove [petitioner] to a point several blocks away where officers administered a gunshot residue test to [petitioner]. [Petitioner] got back into Fancher's vehicle at Fancher's direction, and Fancher drove him to the sheriff's department.

There, [petitioner] was detained in an interrogation room locked from the outside. Detective Fancher could exit the room only by unlocking the door with his keys. At the beginning of the taped portion of the interview, Fancher read [petitioner] his Miranda rights and obtained [petitioner's] waiver to proceed with the interview. [Petitioner] testified he did not believe he had the option of asking to leave the interrogation room. Although he had not been arrested, he did not know what would happen to him after his interview by Fancher or whether he would leave the sheriff's department that day. There is no evidence in the record showing the detectives informed [petitioner] prior to the interview that he could terminate the interview. During the interview, Fancher did not mention [petitioner's] mother coming to pick him up until the latter part of the interview when he was notified she had arrived. However, Mrs. Spence testified the detectives informed her in [petitioner's] presence that [petitioner] would be interviewed downtown as a witness and she could pick him up after the interview.

Based on the totality of circumstances as just outlined, the trial court correctly found implicitly [petitioner] was in custody for purposes of Miranda. On these facts, "a reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave." Certainly [petitioner] was subject to the restraint on freedom of movement of the degree associated with a formal arrest once he was placed in the back of the patrol car and left there for an hour with no means to exit the vehicle.

While he was not handcuffed or formally arrested once he was removed from the vehicle, his movements and actions were controlled by the detectives. He was subjected to a gunshot residue test, suggesting he was considered a suspect. He was read his Miranda rights twice, the second time occurring in a locked interrogation room at the police station, to which he had been taken by the detective. He was personally given no indication what would happen to him after he spoke with the detectives until towards the end of the interview.

Under these circumstances, a reasonable person, and in particular a reasonable 16-year-old, would not have felt free to terminate the interview and leave the station. [Petitioner] was entitled to the rights provided under Miranda. (Cf. People v. Stansbury, supra, 9 Cal.4th at pp. 831-834 [defendant not in custody when asked to answer questions at police station, offered choice of own transportation there, interview is short and non-accusatory]; Green v. Superior Court (1985) 40 Cal.3d 126, 136 [defendant not in custody where record did not show if defendant realized the police station interview room was locked during interview].) [The court] now determine[s] whether his waiver of Miranda rights was valid.

B. Validity of Waiver

"[D]eterminations as to the validity of a waiver of Miranda rights--a predominantly legal mixed question--are reviewed independently." (People v. Mickey, supra, 54 Cal.3d at p. 649.) "[A]pplying the independent review standard, a reviewing court should examine the uncontradicted facts to determine independently whether the trial court's [legal] conclusion . . . was properly found. . . . In exercising this function the [appellate] court recognizes that the burden is on the prosecution. . . . If there is conflicting testimony, the [appellate] court must accept that version of events which is most favorable to the People, to the extent supported by the record. We accept factual inferences in favor of the judgment or order below, even when we must independently review the legal conclusion the trial court has drawn." (People v. Stansbury, supra, 9 Cal.4th at 831, citations and internal quotation marks omitted.)

Whether a waiver of Miranda rights is sufficiently knowing and intelligent is "a matter which depends in each case upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused. The state must demonstrate the validity of the defendant's waiver by a preponderance of the evidence." (People v. Bradford (1997) 14 Cal.4th 1005, 1034, citations and internal quotation marks omitted.) "[T]he waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the totality of the circumstances surrounding the interrogation reveal[s] . . . the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived." (Moran v. Burbine (1986) 475 U.S. 41`2, 421 [89 L.Ed.2d 410, 421], internal quotation marks omitted.)

Our standard of review on this issue is not affected by [petitioner's] status as a minor. "We discern no persuasive reasons why any other approach is required where the question is whether a juvenile has waived his rights, as opposed to whether an adult has done so. The totality approach permits--indeed, it mandates-- inquiring into all the circumstances surrounding the interrogation. This includes evaluation of the juvenile's age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights. [Citation.]" (Fare v. Michael C. (1979) 442 U.S. 707, 725 [61 L.Ed.2d 197, 212].)

[Petitioner] was read his Miranda rights twice. He testified at the preliminary hearing that he understood those rights on both occasions. He argues, however, he was in effect tricked into signing the waiver because one of the detectives allegedly stated in his presence at the crime scene and prior to the sheriff's department interview that he did not need an attorney. Given his intellectual and emotional states, [petitioner] claims such a statement would have adversely impacted his ability to knowingly waive his Miranda rights. [The court] disagree[s].

The evidence of whether one of the detectives stated [petitioner] would not need an attorney is contradicted. Detective Garverick testified that at some point Mrs. Spence asked him if her son needed an attorney. He replied, "I don't believe so, no." Garverick did not know if [petitioner] was present when he made the comment to Mrs. Spence. [Petitioner] and his mother testified at the preliminary hearing that Detective Fancher, not Detective Garverick, informed [petitioner's] mother that [petitioner] would not need an attorney. They both claimed [petitioner] was standing immediately next to his mother when Fancher made the statement. Fancher, however, testified he did not speak with Mrs. Spence at the crime scene.

Before the trial judge, Mrs. Spence testified she first requested an attorney while speaking with Fancher alone. Then, after the two detectives had taken [petitioner] out of the car, she asked the two detectives for an attorney while [petitioner] was standing next to her. Defense counsel showed to Mrs. Spence a photograph made from a videotape shot by a local television news crew. The photograph depicted herself, her son Justin, the [petitioner], and Detective Garverick. Mrs. Spence testified the video was taken at the time she was asking whether her son needed an attorney. She stated "they" [the detectives] told her "no attorney." [Petitioner] further claims that during the ride to the sheriff's department, he asked Fancher if Fancher was sure he did not need an attorney. [Petitioner] claims Fancher responded by saying there was no need for an attorney. Fancher, however, claims [petitioner] never asked him about the need for an attorney during the ride downtown.

Thus, there is no uncontradicted evidence showing the comment was made in [petitioner's] presence. In fact, the testimony of the deputies is controlling on appeal, and neither deputy testified they informed [petitioner] he needed an attorney.

Based on his review of police and educational records, psychological tests and an interview with [petitioner], Dr. Eugene Roeder testified he discerned certain psychological factors that limited [petitioner's] ability to make a knowing and intelligent voluntary waiver but not necessarily factors that precluded his ability to waive. [Petitioner's] developmental level was not that of a typical 16-year-old. His IQ ranged between 71 and 74, or between the third and fifth percentile. Roeder claimed that range was not considered developmentally disabled or mentally retarded, but was in that range just above that. [Petitioner's] comprehension level was that of a 10-year-old. His ability to attend and concentrate was on level with a six- or eight-year-old.

At a developmental and intellectual level, Roeder testified, [petitioner's] ability to make independent decisions and to understand the facts and consequences of decisions was significantly reduced. [Petitioner] demonstrated comprehension levels of an average 10-year-old. Nevertheless, all other things being ideal, Roeder believed a person with this level of intellectual ability would be able to understand the vocabulary of the Miranda warning. In fact, if [petitioner] was given the Miranda form he was actually given, and this form was read to him, Roeder stated [petitioner] would have understood it.

On an emotional level, Roeder claimed, [petitioner] had a passive and dependent personality and would tend to have a dependency on authority figures. Roeder believed [petitioner] would be much more likely to accept the detective's statement of not needing an attorney as authority rather than raise an independent objection to that information.

Based on [petitioner's] development level and inability to make independent decisions, Roeder opined a statement by a detective that [petitioner] did not need an attorney would have more impact on someone in [petitioner's] situation than it would on someone in a different set of circumstances.

After the preliminary hearing, [petitioner] underwent additional neuropsychological testing by Dr. Daniel Edwards. Those tests showed [petitioner] was dyslexic. Roeder testified that Edwards's finding was consistent with Roeder's earlier testimony that [petitioner] would rely more on what he hears because he cannot read well. Because [petitioner] had a difficult time understanding things independently, he would tend to be dependent on information from other people. In Roeder's opinion, the additional study strengthened his earlier opinion, but it added nothing new. Finally, Dr. James Wu, an optometrist, testified that [petitioner] was quite far-sighted with some astigmatism, and was cross-eyed most of the time. Wu stated it would be very difficult for [petitioner] ...

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