Ct.App. 4/1 D050019 San Diego County Super. Ct. No. SCN200740. Judge: Joan P. Weber.
The opinion of the court was delivered by: Werdegar, J.
We granted review to re-examine People v. Burton (1971) 6 Cal.3d 375 (Burton), in which this court fashioned a special rule to govern the application of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) to minors. Miranda requires courts in criminal cases to exclude, at least from the prosecution's case-in-chief, self-incriminatory statements made by the accused during custodial interrogation unless the accused has knowingly and voluntarily waived the Fifth Amendment privilege against self-incrimination, which in this context includes the rights to silence and the assistance of counsel. (Miranda, at p. 479; Harris v. New York (1971) 401 U.S. 222, 224-226; see U.S. Const., 5th Amend.) Applying Miranda, this court held in Burton that a minor's request to see a parent before or during custodial interrogation "must, in the absence of evidence demanding a contrary conclusion, be construed to indicate that the minor suspect desires to invoke [the] Fifth Amendment privilege." (Burton, at pp. 383-384.)
We conclude Burton, supra, 6 Cal.3d 375, is no longer good law. The Burton court based its holding on the United States Constitution, but Burton's special rule for minors is inconsistent with the high court's subsequent decision in Fare v. Michael C. (1979) 442 U.S. 707 (Fare), which requires courts to determine whether a defendant-minor or adult-has waived the Fifth Amendment privilege by inquiring into the totality of the circumstances surrounding the interrogation. (Fare, at pp. 724-725.)
Defendant Tony Lessie, then 16 years old, was tried as an adult and convicted of second degree murder. (Pen. Code, § 187, subd. (a).) Defendant challenges his conviction, claiming the trial court prejudicially erred under Burton, supra, 6 Cal.3d 375, by admitting into evidence confessions he made during two custodial interrogations. Because defendant does not otherwise challenge the evidence underlying his conviction, we summarize the facts of the crime only briefly and focus on the circumstances of the interrogations.
The evidence at trial showed that Rusty Seau died in a street confrontation on June 9, 2005, in Oceanside. Police, acting on information identifying defendant as the shooter, arrested him at 6:40 a.m. on September 20, 2005, at the home of his aunt and uncle in Hemet as he attempted to escape through the rear window. Although defendant formally resided with his father in Vista, his father had reported him missing some months earlier. Defendant was, in his own words, "on the run from probation." Defendant admitted his role in the shooting during a custodial interrogation at a police station in Oceanside and again during a subsequent interrogation at juvenile hall. Defendant's confessions were generally consistent with the other evidence admitted at trial, including his own testimony.
Defendant claimed he had been forced to shoot by James Turner, with whom he had been living. Turner, who used the gang moniker "Black Jack" and claimed membership in gangs affiliated with the Crips, forced a confrontation with Seau and another man over an offense given earlier in the day. Defendant, who used the moniker "Blue Devil," denied belonging to a gang but admitted wanting to join. On the way to the confrontation, riding in a car with defendant and two others, Turner gave defendant a pistol and told him he "better shoot. You got to shoot somebody." Defendant described the shooting as "like an initiation thing" and believed he would be beaten or killed as "discipline" if he did not do as he was told. Upon arriving at the scene of the confrontation, defendant, Turner and the others found that Seau and his companion did not want to fight. Turner nevertheless "banged" on Seau by announcing his gang affiliation, which Seau in turn mocked, and Turner and a companion then attacked Seau. At this point, Turner shouted at defendant to shoot. As Seau attempted to run away, defendant shot him fatally in the back.
The issue before us, as mentioned, is whether the court erred in admitting defendant's confessions into evidence. Before trial, defendant moved to exclude both confessions from evidence, and the People moved to admit them. The evidence at the hearing on the motions consisted of the testimony of Detective Kelly Deveney, who participated in defendant's interrogation, and the transcripts, recordings and videotapes of the interrogations.
Detective Deveney testified she spoke with defendant about half an hour after he was taken into custody. She identified herself, told defendant that he was under arrest on a juvenile detention order and that he could, upon arrival in Oceanside, "make as many phone calls as he wanted to whomever he wanted." "And then I told him," Deveney continued, "I understand your aunt and uncle know that you're in custody; is there anyone else we need to notify? And he said yes, his father." Defendant did not, however, have his father's phone number. The drive to Oceanside took about an hour and a half. Upon arriving at the police station, defendant waited 10 minutes alone and was then given breakfast. After another 10 minutes, Detective Deveney entered with another officer, Detective Gordon Govier. After some small talk about food and the weather, the following exchange occurred:
"DEVENEY: Okay, we're getting that warrant confirmed now. I got the information, your dad's phone number. Do you want to make a call to him? Or did you want us to?
"LESSIE: I'd like to call him.
"DEVENEY: Okay. So in the meantime, we've just got to fill out these papers. You go by Tony Lessie, right?"
A series of routine booking questions followed, after which Deveney read defendant his rights under Miranda, supra, 384 U.S. 436:
"DEVENEY: Okay. Tony because you're under age, you're only sixteen, and because you're in our facility, I have to read you your rights. Alright. So it's no big deal but I have to by law. You have the right to remain silent. Do you understand that? Can you say yes?
"DEVENEY: Any statements you make may be used as evidence against you. Do you understand that?
"DEVENEY: Okay. You have the right to the presence of an attorney, either retained or appointed free of charge, before and during ...