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In re Elias V.

California Court of Appeals, First District, Second Division

June 9, 2015

In re Elias V., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, Elias V., Defendant and Appellant.

[As modified June 24, 2015.]

Sonoma County. No. 37612J, Raima H. Ballinger, Judge.

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[Copyrighted Material Omitted]

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COUNSEL

L. Richard Braucher, under appointment by the Court of Appeal, for Defendant and Appellant.

Center on Wrongful Convictions of Youth, Megan G. Crane and Joshua A. Tepfer as Amicus Curiae on behalf of Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Assistant Attorney General, Eric D. Share and Sharon G. Birenbaum, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

Kline, P.J.

In an original wardship petition (Welf. & Inst. Code, § 602), appellant, Elias V., then 13 years of age, was alleged to have committed a lewd and lascivious act upon a child under the age of 14 years. (Pen. Code, § 288, subd. (a).)[1] Prior to and again at the time of the jurisdictional hearing, defense counsel moved to exclude inculpatory statements appellant made to the police on the ground they were involuntary and therefore inadmissible under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602] (Miranda). After a three-day hearing, the motion was denied and the petition sustained. Elias was declared a ward of the court and placed on probation in the home of his parents.

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Elias claims his confession was involuntary under the due process clause of the Fourteenth Amendment, as it was the product of the type of coercive interrogation techniques condemned in Miranda, which had “overborne his will.” Contending the statements were erroneously received in evidence and cannot be considered harmless, he maintains the judgment must be reversed. We agree.

FACTS

Elias and his friend Hector T. lived across the hall from one another in a four-unit apartment building in Santa Rosa. The boys usually played together at Elias’s apartment, but on October 6, 2012, they played at Hector’s apartment in a bedroom shared by Hector, his mother, father, brother, and sister A.T., who was then 3 years old. Hector, nine years old at the time of the hearing, testified that while he and Elias were playing a video game, Elias lying on the bed and Hector sitting on the floor, A.T. climbed on the bed and lay down near Elias. Hector could not see the top of the bed from where he was sitting and did not hear anything Elias was saying. A.T. was laughing, the bedroom door was open, and Hector’s mother, Aurora, was in another room. The boys continued playing their video game until Aurora entered the room. Hector testified that when she came in, Elias was sitting on the bed. Aurora testified that when she entered the room she saw Elias lying on the edge of the bed next to A.T. and noticed that when A.T. got up her pants were at the middle of her leg. When Aurora asked, “what happened?” Elias said A.T. asked him to help take off her pants because “she wanted to go to the bathroom.” Aurora described Elias as “surprised” and “scared.”

Aurora never testified that she saw Elias improperly touch A.T. on October 6th or at any other time. She believed he did only because the child was “talking about it all the time, ” telling her and others, “ ‘This boy, he touched me.’ He did this he did that, you know, just in my head.” A.T. was interviewed on February 1, 2013, at the Redwood Children’s Center (RCC) by a person trained in interviewing very young children, and the interview was recorded, but the recording was never offered in evidence and the interviewer did not testify. The detective assigned to the case, Mechelle Buchignani, observed the interview but was not asked about it by the prosecutor. However, on cross examination, she stated that A.T. “did say that he touched her in the RCC interview, ” [2] and that she “showed us where he

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touched her” by pointing to the vaginal area on a doll. Asked, “[so she] doesn’t point to the stomach, ” the detective responded, “[l]ooked like the vaginal area to me.”

Aurora did not contact the police until October 23, 17 days after the incident, and her delay in reporting it became an issue at the jurisdictional hearing. The defense maintained that Aurora concocted the charge against Elias and contacted the police because she had just learned that the landlord intended to evict her family and falsely believed Elias’s father had put the landlord up to this.

The landlord testified that starting before 2011, when Elias’s family moved in, she frequently spoke with Aurora and her husband Carlos about complaints from tenants on both floors of the building and from neighbors that people living in or visiting Aurora’s apartment (including Aurora’s husband and children, her brothers, and others) were playing loud music, playing volleyball and “drinking alcohol a lot” in the backyard, obstructing the carport, and “peeing” in the yard and in the laundry room. The landlord repeatedly told Aurora “ ‘please, you need to stop the drinking, the loud music. It just needs to stop.’ And, like I said, I would go there at least once a week just telling them, ‘Hey, you need to cut it out.’ ”

The landlord finally realized “the complaints had gotten out of hand” when she learned from Elias’s father that Aurora’s brother, “wanted to take a swing” at him. Elias’s father “was scared, and you could hear it in his voice.” She evicted the family because she was “sick and tired” of the problems; the incident with Elias’s father “put the topping on the cake.” The landlord never told Aurora that Elias’s family asked her to evict her family, and denied that the eviction, which took place in November 2012, was retaliation for Aurora’s accusations against Elias. The landlord warned Aurora about eviction on October 22, the day after she heard about the incident with Elias’s father, and had also warned them previously that their behavior could lead to eviction, although at another point she testified that the first time she discussed eviction with any member of Aurora’s household was in October 2012.

Aurora complained to the police on October 23, the day after the landlord told her that her family was going to be evicted, but she denied that this had anything to do with Elias’s father complaining to the landlord about her family’s conduct. Her testimony on this issue, however, was inconsistent and confusing. According to Aurora, after she reported the incident with Elias

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and A.T., the landlord told Aurora’s sister-in-law that she was going to evict Aurora because of this report. Asked whether the landlord came to talk to her on October 20, shortly before she reported the incident to the police, Aurora responded that the landlord came that day to pick up the rent, and she asked her son Hector to “interpret for me and to tell her... [¶] [w]hat the boy, [Elias], had done to my daughter.” Aurora testified that the landlord did not say she was going to evict Aurora, only that she “wanted proof” of what [Elias] had done to A.T. Asked several times whether she told the landlord that her family could not be evicted “because [Elias] had touched [her] daughter, ” Aurora refused to give a responsive answer until directed to do so by the court, after which she stated “No.” Aurora then testified that she did not remember any conversation with the landlord in October 2012: “I don’t remember having spoken to [the landlord] before she gave me the eviction notice” on November 23.[3] And, further confusing matters, Aurora testified that she met with the landlord on October 9, three days after the incident, and told her “what this boy has done to my daughter.” In response to the question of why she had waited 17 days to report Elias’s conduct to the police, Aurora said she did not go immediately because the landlord said “she wanted proof. So then I said, ‘Okay. I’m going to file a report so that I can give you proof.’ She has-my daughter has to say what happened to her.” (Italics added.)

Aurora said she did not go to the police immediately after the incident because “I didn’t want to get to a point where the problem gets the way that it’s turned out right now. That is why I spoke to the landlord to tell her what kind of people she had there.” Asked why she waited another two weeks to contact the police, Aurora said, “I did not know what to do. My daughter... was always talking about the same things, saying ‘This boy, he touched me.’ He did this he did that, you know... so I thought if I leave things the way they are, then my daughter’s going to end up being raped.” On October 23, a friend told her to go to the police and she did so.

After Aurora phoned the police on October 23, 2012, Sonoma County Deputy Sheriff Carlos Chavez was instructed to look into the matter and make an “incident report” that would be used to decide whether a detective should be assigned to investigate the case. On October 24, Chavez met with Aurora, who told him she believed Elias “had assaulted her daughter” on October 6th. Chavez did not interview anyone other than Aurora before submitting his incident report to the detectives for further investigation. Detective Buchignani was assigned to the case on October 24.

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About a month after Officer Chavez took Aurora’s statement regarding Elias, he was “dispatched” to look into a “complaint between neighbors” at the apartment house where Elias and Aurora lived. The complainant, Elias’s father, was concerned “that his next-door neighbors were rowdy, were constantly drinking downstairs in a picnic area, urinating on the fence, and there may have been a challenge to fight him, and him stating he didn’t want any problems.” Officer Chavez spoke with Aurora’s husband, related Elias’s father’s concerns and told Elias’s father and Aurora’s husband “to stay away from each other and be peaceful, ” and “that was the end of the investigation.”

Detective Buchignani interrogated Elias on February 6, 2013, more than three months after the case was assigned to her. At the time of the interrogation, [4] Buchignani’s knowledge of the case was apparently based solely on Aurora’s statement to Officer Chavez, which was in turn based entirely on Chavez’s brief interview of Aurora, and Buchignani’s observation of the 10-minute interview of A.T.[5] Buchignani stated that at the time she interrogated Elias the Sheriff’s Office had not “[made] contact with anyone other than Aurora.” Neither Buchignani, nor, so far as she knew, any other officer, asked residents of the apartment complex about Elias’s behavior or whether “other children had been disturbed by Elias or anyone else.”

On the day of the interrogation, Detective Buchignani, her partner Sergeant Ruben Martinez, and another unidentified deputy sheriff went to the elementary school to speak with Elias. The principal brought them to a small office used by a school counselor. When the principal returned to the room with Elias, Buchignani introduced herself and Sergeant Martinez, told Elias she had to tell him his legal rights, and then gave him the admonitions required by Miranda. Asked whether he ever previously had any contact with the police, Elias answered “no.”

The subsequent interrogation, which we later relate in greater detail, consumed 20 to 30 minutes. Throughout the session, Buchignani stated as a fact that Elias had touched A.T. in a sexual manner and needed help for his problem of attraction to a young child. For the vast majority of the interrogation, Elias adamantly denied Buchignani’s repeated assertions that he had

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touched A.T. in an improper manner; he portrayed A.T. as a somewhat annoying, very young child clamoring for his attention. and repeatedly explained that he had simply unzipped the child’s pants at her request. Finally, when Buchignani suggested Elias might have touched A.T.’s vagina because he found it exciting or just because he was curious, Elias rejected the first suggestion and, to Buchignani’s comment, “[b]ut you did it, ” said, “[f]or curiosity.” Elias thus accepted Buchignani’s alternative theory that he touched the bare skin of A.T.’s vagina for three to four seconds, in the midst of playing a video game with her brother, merely “out of curiosity.”

Before and again at the jurisdictional hearing, defense counsel moved to exclude the statements on the grounds they were involuntary. On August 22, 2013, after the court took the case under submission, the court impliedly denied the motion and ruled that the charged offense had been committed.

In finding Elias’s statements voluntary and reliable, the court observed that Detective Buchignani’s manner was “gentle” and “calm, ” her questions “were short, ” not “convoluted, ” “the questions weren’t split where there would be two responses you’d have to use to the same single question, ” and “her language usage for someone of Elias’s age was appropriate.” The court summed up its view this way: ”Just the totality of where the interview took place was, in the court’s view, not intimidating. It was very short. It was only a 20-minute interview. And it complied with the current case law. I don’t have a problem with the way the interview was conducted.” The court noted that “Elias was able to indicate in the flow of conversation [with Detective Buchignani] if he needed clarification of anything, and he did that a couple of times, and there was give and take in the conversation. In other words, sometimes he asked questions too, and that’s what really made me feel that this interview was appropriate.” The court thus impliedly concluded that Elias’s statements were “the product of his free and rational choice.” (Greenwald v. Wisconsin (1968) 390 U.S. 519, 521 [20 L.Ed.2d 77, 88 S.Ct. 1152].)

After the jurisdictional ruling, the Sonoma County Juvenile Probation Department interviewed Elias and his parents. Its report to the court states that Elias, who had never previously been charged with any delinquency, “indicated he only tried to help the young girl. The minor stated [that] prior to this incident, he liked helping other people and learned this trait from his father. As a result of this incident, he no longer wants to help others, as he feels his actions could be taken the wrong way. The minor maintains he did not commit this offense, was at her home playing video games with the victim’s younger [sic] brother, and the only thing he did was to try to help her.” Elias’s parents “maintain their son’s innocence, and stated the only thing their son did was to try to help the girl. They report the allegations stem

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from a dispute with the victim’s family because they blame the minor’s father for being evicted.” Elias’s mother said the charges against Elias have “caused a lot of conflict within the family as she told the minor’s father if he had not said anything to the landlord this situation would never have occurred.” Elias’s parents also told probation officers that “Elias grew very frustrated over these proceedings and kept telling them he would admit to anything just to get this over with. However, they kept telling their son not to admit to something he did not do just because he was tired and frustrated. They believe this outcome is not ‘just, ’ and they will continue their pursuit of the truth.”

At the close of the dispositional hearing the court declared Elias a ward of the court and placed him on probation at the home of his parents, with numerous conditions.

Notice of this appeal, which is authorized by Welfare and Institutions Code section 800, was timely filed on November 7, 2013.

DISCUSSION

I.

The chief issue presented in this appeal is the voluntariness of the admissions Elias made at the close of Detective Buchignani’s interrogation. The use of an involuntary confession for any purpose in a criminal or delinquency proceeding violates a defendant’s or minor’s rights under the Fourteenth Amendment. (Arizona v. Fulminante (1991) 499 U.S. 279 [113 L.Ed.2d 302, 111 S.Ct. 1246].)

“The admissibility of a confession depends upon the totality of the circumstances existing at the time the confession was obtained. (People v. Robertson (1982) 33 Cal.3d 21, 39-40 [188 Cal.Rptr. 77, 655 P.2d 279]; People v. Sanchez (1969) 70 Cal.2d 562, 572 [75 Cal.Rptr. 642, 451 P.2d 74]), cert. dism., Sanchez v. California (1969) 394 U.S. 1025 [23 L.Ed.2d 743, 89 S.Ct. 1646].) A minor can effectively waive his constitutional rights (People v. Lara (1967) 67 Cal.2d 365, 390-391 [62 Cal.Rptr. 586, 432 P.2d 202], cert. den. Lara v. California (1968) 392 U.S. 945 [20 L.Ed.2d 1407, 88 S.Ct. 2303] . . . [fn. omitted] but age, intelligence, education and ability to comprehend the meaning and effect of his confession are factors in that totality of circumstances to be weighed along with other circumstances in determining whether the confession was a product of free will and an intelligent waiver of the minor’s Fifth Amendment rights ([Lara], at pp. 385-387).” (People v. Maestas (1987) 194 Cal.App.3d 1499, 1508 [240 Cal.Rptr. 360].)

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The federal and state Constitutions both require the prosecution to show the voluntariness of a confession by a preponderance of the evidence. (Lego v. Twomey (1972) 404 U.S. 477. 489 [30 L.Ed.2d 618, 92 S.Ct. 619]; People v. Markham (1989) 49 Cal.3d 63, 71 [260 Cal.Rptr. 273, 775 P.2d 1042].) Voluntariness turns on all the surrounding circumstances, “both the characteristics of the accused and the details of the interrogation” (Schneckloth v. Bustamante (1973) 412 U.S. 218, 226 [36 L.Ed.2d 854, 93 S.Ct. 2041]); it does not depend on whether the confession is trustworthy. (Rogers v. Richmond (1961) 365 U.S. 534, 543-544 [5 L.Ed.2d 760, 81 S.Ct. 735].) While a determination that a confession was involuntary requires a finding of coercive police conduct (Colorado v. Connelly (1986) 479 U.S. 157 [93 L.Ed.2d 473, 107 S.Ct. 515]; People v, Maury (2003) 30 Cal.4th 342, 404 [133 Cal.Rptr.2d 561, 68 P.3d 1]), " ' "the exertion of any improper influence” ’ ” by the police suffices. (Hutto v. Ross (1976) 429 U.S. 28, 30 [50 L.Ed.2d 194, 97 S.Ct. 202]).

The issue of voluntariness presents “ ‘a mixed question of law and fact that is nevertheless predominantly legal....’ [Citation.] Hence ‘ “[o]n appeal, the determination of a trial court as to the ultimate issue of voluntariness of a confession is reviewed independently.... [¶] The trial court’s determination concerning whether coercive police activity was present, whether certain conduct constituted a promise and, if so, whether it operated as an inducement, are apparently subject to independent review as well.” [Citation.] However, “the trial court’s findings as to the circumstances surrounding the confession-including ‘the characteristics of the accused and the details of the interrogation’ [citation]-are clearly subject to review for substantial evidence....” ’ [Citation.]” (People v. Jones (1998) 17 Cal.4th 279, 296 [70 Cal.Rptr.2d 793, 949 P.2d 890].)

II.

As appellant asserts the techniques employed by Detective Buchignani to overcome his will were condemned by the Supreme Court in Miranda, supra, 384 U.S. 436, we commence our analysis by discussing the portions of that opinion describing such techniques.

The foundational theses of Miranda are that “the modern practice of in-custody interrogation is psychologically rather than physically oriented” (Miranda, supra, 384U.S. at p. 448), and the psychological techniques now employed by interrogators “trade[] on the weakness of individuals, ” and “may even give rise to a false ...


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