Brian W., In re
| Decision Date | 12 November 1981 |
| Docket Number | Cr. 38902 |
| Citation | 125 Cal.App.3d 590,178 Cal.Rptr. 159 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re BRIAN W., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. BRIAN W., Defendant and Appellant. |
Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Russell I. Lynn and Richard Avila, Deputy State Public Defenders, for defendant and appellant.
George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Howard J. Schwab and Donald J. Oeser, Deputy Attys. Gen., for plaintiff and respondent.
The minor appeals from orders sustaining petition charging him with two counts of sodomy and two counts of attempted oral copulation on a one and one-half year old female, and committing him to the California Youth Authority.
Alexis was born November 11, 1978; the minor, a boy 15 years old, was left to babysit with Alexis by her mother; when her mother returned, the door was locked and the minor delayed opening it; when she entered the room she observed Alexis on the floor and blood on and running down the inside of Alexis' legs; Alexis was crying and her mother asked the minor what happened; he said he did not know, that he went to change her diaper and found her like that; Alexis was wearing nothing and her mother saw no soiled diaper. Alexis was taken to the hospital where she was examined by a physician. A half hour later the minor was at the hospital and asked the mother how Alexis was and what was going on. Dr. Palmer found two shallow fissures at the rectal opening; they were then nonbleeding but there was dried blood in the area of Alexis' feet; since there were no lacerations on the feet to account for it he concluded it probably came from the rectal area. It was his opinion that some object had been inserted into the rectal area, that the fissures or tears were caused by something large passing through the rectal opening. The injuries on the child were consistent with the act of sodomy but not necessarily diagnostic of such an act.
A tape recording of a conversation between the minor and the police, which included the minor's confession was played in open court.
The defense consisted of the testimony of Dr. Apthorp, a court certified pediatrician who explained other ways in which the fissures or tears in the rectum could occur. The minor did not testify.
The sole appellate issue is the admissibility of the minor's confession.
At the hearing on the admissibility of the confession that portion of the tape relating to the admonition was played. It establishes that the officers waited until the minor's mother arrived, and the entire conversation was in her presence. Officer Mercier read his constitutional rights and asked the minor if he understood each of the rights explained to him; he answered "Yes." Then the following took place:
The minor called a doctor of psychology, Michael Maloney, who listened to the tape and then questioned the minor concerning the admonitions and waivers. He testified that if he had to make a "guess," the minor did not understand his rights any more than he did when he (Maloney) talked to him; based on his own evaluation of the minor and review of his school records, the minor did not understand his rights; the minor had a verbal I.Q. of 81 and his mental age on that basis was 11 or 12 but he was not mentally retarded, and fit the category of "borderline intelligence"; he did not believe the minor to be totally incapable of understanding his Miranda rights and he thought he could be taught what they mean fairly easily.
Officer Mercier testified that she read to the minor his Miranda rights; when the minor answered "no" to her question whether or not he wished to give up his right to remain silent, she was not sure he understood her question, and she was not sure he understood "that in fact his no was to be a yes which is a common mistake," that "quite frequently" this will "come up with people"; she believes he understood his right but did not understand his answer; in her experience many people do not understand it by the way the question is phrased, "by the way it is read," so she asked him if he did want to talk to her; she asked other questions because she felt the minor still did not understand the question; from her initial conversation with him she did not perceive he had any mental difficulties or was retarded, but she wanted to make sure that he understood the question; he did not appear to be puzzled, rather was listening to her but not quite understanding; she was not trying to change his mind; from the totality of the circumstances it did not appear that the minor was unwilling to talk to her nor did it appear he wanted someone else present; it appeared that he did ultimately understand her questions and did not manifest any intent or desire not to talk to her or discuss the case with her.
After listening to the tape several times and hearing the witnesses, the judge made various findings 1 and rejected the application of People v. Fioritto, 68 Cal.2d 714, 68 Cal.Rptr. 817, 441 P.2d 625 because he concluded that the minor at no time "in reality invok(ed)" his constitutional rights; "... the minor at all times was willing to talk to the police." He also considered the presence of the minor's mother after she had spoken to an attorney, and said "I think it is especially applicable in a case where the minor does not at any time in reality invoke his rights." We conclude that that portion of the tape relating to the giving of Miranda rights considered in its complete context and in light of Officer Mercier's testimony, reasonably lends itself to the construction and interpretation afforded it by the judge to support his findings that the minor in fact did not invoke his constitutional rights, his waiver was...
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